Physical and Mental Harms

Torts Outline Overarching question: is there any wrongful behavior that should not result in Tort Liability? Hypos: a) Intentionally giving bad directions to the hospital when you know some harm will be caused if you don‟t? b) Refusing to give directions to the hospital? Physical and Mental Harms Intentional Torts Define: intending to harm or intending the act that caused the harm. Physical Harms I) Battery: Intentional, harmful/offensive physical contact with another or a connected object, causes physical injury. a) Vosburg v. Putney: child kicked under desk by another child in the classroom. Resulted in severe harm. 1) Eggshell Skull Rule: must “take the P as you find him.” 2) Intention: Intent to act, not intent to harm, is what matters. 3) Vosburgian Playground: No license to kick in the classroom. However, if there is a reasonable expectation of physical contact, one is one the vosburgian playground, and the act would be lawful. b) Garratt v. Dailey: D pulled chair out from under P. 1) Connected Object: can commit battery by touching an object connected to P. 2) Substantial Certainty: if the act itself is not necessarily unlawful, but D is substantially certain harm will result, he is liable. 3) Same with Children and Adults: adults/children held to same standard. c) Talmage v. Smith: D threw stick at one person, hit another. Liable to his victim. 1) Transferred Intent: if you intended a wrongful act, and got a weird result, still liable II) Trespass to Real Property: Physical or intangible intrusion a) Physical Intrusion: (1)intentionally enters or remains (or places physical object) on (2)another‟s property… whether or not physical harm is caused 1) Dougherty v. Stepp: D surveyed some of P‟s land and claimed it as his own, even though he was not aware P owned the land and caused no damage. Still found liable, because he satisfied all four elements. 2) Liable for ALL damages, whether foreseeable or not, whether or not foreseeable or whether or not you committed wrongful acts besides the trespass. Brown v. Dellinger: two children lit a charcoal burner on P‟s property and it burned P‟s house down. b) Intangible Intrusion: same as physical intrusion, but physical harm must be caused. 1) Public Service v. Van Wyk: noise, radiation, and electromagnetic fields were emitted. There was no real physical damage, however, so no trespass. III) Trespass to Chattels: (1)intent, (2) harm‟s another‟s chattel, (3) must be in P‟s possession at the time. a) How to show harm: 1) Harms physical condition, quality or value OR (i) Without physical harm, there is no liability Intel v. Hamidi (former employee writing emails, likened to a picketer using his freedom of speech) / Ebay v. Bidder’s Edge (D actually slowed down P‟s servers) (a) One key difference: both companies were harmed, but Intel could have easily taken care of things outside of the court system. 2) Deprives owner of use of chattel For a substantial time OR Affects a legally protected interest (i) Putting governors on gas company‟s gas meters was trespass (Blondell v. Consolidated Gas) Defenses to Intentional Torts I) Consent: when a person or their guardian agrees explicitly, or consent is implied in fact, to the touching that would have been an intentional tort, with some exceptions. a) Prima Facie No Consent Case: 1) Mohr v. Williams: P sued D for battery when he performed an operation on an ear which she did not consent to. She had asked him to operate on the other ear, but once she was under anesthetics, he realized that her big problem was in the other ear. Court held that because she had not consented to that ear being operated on, he was liable for battery. (i) This can be construed as an application of Vosburg – the playground was on one ear, not the other… b) Methods of Consent: 1) Agrees explicitly (i) Consenting to a second smallpox vaccination explicitly does not make Dr. liable. (O’Brien v. Cunard Steamship) 2) “Consent Implied by Fact” – emergency, convenience, implied license. (a) Emergency: Allore v. Flower Hospital: consent implied to save life. (b) Convenience can imply consent: (Kennedy v. Parrot – popping a cyst in the area of original surgery had implied consent) (c) Sports/Games/Playground: “violenti no fit injuria” (Vosburg, Turcotte v. Fell: where a jockey hurt another jockey while jostling for position.) 3) Substituted Consent: consent from guardian is generally enough, except sometimes in end of life cases, where you must show it is what the incompetent wanted (a) Consent from parent is enough (Boner v. Moran) (b) In Matter of Quinlan: parents allowed to disconnect respirator (c) Strunk v. Strunk: consent from guardian enough. (d) Exception from Cruzan v. Director. Disconnect from life support only if there is clear and convincing evidence that is what she wanted. 4) EXCEPTIONS: no fraud/non/incomplete disclosure, no illegal, no exceeding scope of consent (i) Fraud/Nondisclosure/Incomplete Disclosure (a) Must disclose ALL material risks to patient before an operation (Canterbury v. Spence) (b) Not disclosing one has an STD creates liability even if there is consent (McPherson v. McPherson) (ii) Illegal (a) Hudson v. Craft: Boxing promoter liable for injuries when he had two boxing contestants fight each other and get injured because it was an illegal boxing ring (b) NOTE: you can consent civilly in some cases where you cannot consent criminally (Barton v. Bee Line) (iii)Exceeding Scope of Consent: (a) Mohr v. Williams: ear surgery, Doctor operates on a different ear when he realizes the ear he had consent for is OK, the other ear is worse… he was found liable. (b) Hackbart v. Cincinatti Bengals: reckless hit during football game after play was over. Did not consent to reckless hit. II) Insanity: if insanity causes one to commit a completely involuntary act, or the injured party voluntarily assumed the risk, there is no liability. a) Note: 1) Generally, insanity is not a good defense for intentional torts. 2) “Where a loss must be borne by one of two innocent persons, it shall be born by him who occasioned it.” Gould v. American Family Mutual Insurance b) In General, not a defense: McGuire v. Almy: insane person acting violently in room, caregiver goes to room, insane person smashes her in the head. Insane person found liable – as long as insane person intentionally does the act, even if acting insane, still liable just like a sane person c) Can succeed when: 1) Voluntary assumption of risk by injured party OR (i) Anicet v. Gant: insane resident harmed attendant, but was not liable because attendant voluntarily assumed risk. 2) Completely involuntary act (i) Lobert v. Pack: D fell asleep, kicked P‟s seat, who crashed car. D not liable because he was asleep and did not voluntarily kick the seat d) Hypos from Class: 1) What if a defendant attacks a plaintiff that he perceives is a gigantic space alien? (i) Transferred intent IF act would be tortious III) Self Defense: not liable if you act with the force a reasonable man would use to prevent an imminent threat, given the circumstances. a) Innocent Attacker: Courvoisier v. Raymond: robbers are harassing D, and throwing rocks at him. A police officer approaches, and D shoots the police officer. Court held that one is within the boundaries of self defense if he uses reasonable force in a situation where a reasonable man would use force. b) Innocent Bystander: Morris v. Platt: accidentally harming an innocent bystander if force is directed at assailant is not actionable. c) Reasonable Force: Boston v. Muncy: (guy punches another guy with trivial harm on the line) must use force in proportion to threat of harm. d) Under the Influence of Danger: Laidlaw v. Sage: hiding behind another person to avoid harm to one‟s self, which results in harm to the other. Court held an act is considered involuntary, when under the influence of danger. e) Same to Others as Self: Restatement. f) Hypos from Class: 1) “Little Old Lady” – you have to run over a little old lady to avoid being shot. Courts would find you liable if you ran her over. (“innocent obstacle… on purpose”) 2) “Ray Gun” – you can shoot someone flying at you that would kill you if you didn‟t shoot them. Courts would not find you liable here. (“innocent projectile”) 3) “Shoot or Else” – shoot someone in the leg or be shot in the head by a criminal. Courts would find you liable here. (“innocent bystander”) IV) Defense of Property: one can use reasonable force to defend property, intend to deter, and must warn if possible. a) Intend to Deter, not Harm: Bird v. Holbrook: P innocently trespassed on D‟s tulip garden, his livelihood, and was shot by a spring gun. No warnings posted. D intended to catch intruders, not deter them. Court allowed action, holding if one is liable if his purpose is to harm those entering his property, rather than deter them. 1) Concurrence: Should have set up the gun only at night (sound?)… D would not have fired had he been present. b) Unreasonable Force: Katko v. Briney: Ds stored a lot of stuff in a second home away from their home. Several times there had been trespassers. They first posted no trespass signs, but break-ins continued. Then they placed a shotgun trap in one of the bedrooms. Court found liable, holding the only time when a dangerous device could be set would be if trespasser was endangering human life. c) Reasonable Force to Defend: Meck v. Hurst Corp: a woman is driving, looking for a spot, goes to unmarked parking lot and is attacked by a guard dog who pins her down but does not bite. Court found no liability, because force was appropriate. d) No Warning Required with Actual Force: M’Ilovy v. Cockran: P was trying to tear down D‟s fence, and D shot him. Self defense is appropriate in situations of actual force… tearing down fence however might be too little to justify shooting.. V) Recapture of Chattels: can retake by least force possible if you rightfully own the property taken, and the taking is purely wrong a) Retake by Force Test: Kirby v. Foster: P worked in D‟s warehouse. P was held responsible for a lost $50, which was to be deducted from his paycheck. However, P spoke to an attorney, who told him the money was rightfully his, so he kept it. D seized P and attempted to take the money, injuring him. Court held one can retake a chattel by force if (1) he rightfully owns the chattel and (2) the person possessing it has no claim of right to the chattel. b) Public Policy Objective: Keep the peace. c) Damned if you do…: if you retake, you are liable for injury. If you don‟t, you lose out because the trial is often going to cost more than the stuff is worth, and takes years. d) Hypos from Class: 1) Valet refuses to return car to owner unless he pays a lot of extra money the valet believes he truly deserves. What to do then? VI) Necessity a) Private Necessity: not liable for trespass if you use another‟s property out of necessity to save your own life or property. However, if you deliberately damage another‟s property to save your own, you can be liable for the damages. 1) Necessity Precludes Trespass; No Opportunity to Bargain: Ploof v. Putnam: P was sailing, violent storm, moored boat to D‟s dock, D‟s servant unmoored it, boat destroyed, P injured. Court held entry upon the land of another is justified by necessity of entry to preserve life or property. 2) Unjust Enrichment: Had an opportunity to bargain: Vincent v. Lake Erie Transportation Co.: D was moored to P‟s dock, storm arose, D continually kept tying ropes from the boat to the dock as ship kept crashing against dock and damaging the dock. Court held if one deliberately preserves his property at the expense of another, must pay for actual damage caused. (i) PP: creates efficient economic incentives for internalizing costs. b) Public Necessity: an agent is not liable for damages if he infringes on private property rights for public necessity. 1) One is not liable for damages if doing the following is necessary to avoid public disaster: (no opportunity to bargain) (i) Destroying (Respublica v. Sparkhawk, US v. Caltex) (ii) Occupying (Nat Board of YMCAs v. US) (iii)Use force on others (Scheuer v. Rhodes) 2) Hypos from Class: (i) “Baltimore” Trolley problem: if you don‟t flip a switch, five people die, if you do flip it, one person dies. (a) Bystander v. Trolley Driver: Think in terms of duty to rescue. (ii) Loop problem: if you flip a switch, one person gets run over which causes a train to stop. If you don‟t flip it, five people get run over. (iii)Doctor problem: you can operate and kill one non-consenting person to save five, or don‟t operate on the one and let the five die. (iv) Health pill problem: you can push a health pill towards five people to save their lives, or let it continue floating towards one individual. (v) Solution to these problems (Thompson’s Law Review Article): According to Thompson, the reason the Dr. problem is wrong and the others are right is because in all of the other problems, one is merely redirecting the exact same harm from five to one. In the Dr. problem, rather than a wrong being redirected, a new wrong is being used, cutting open an unconsenting adult, to save five. Additionally, incentive effects are very perverse for the doctor problem. No one would ever go to a hospital if they knew a Dr. might cut them up without consent. Additionally, acting in a state of emergency is not really considered volitional (Laidlaw v. Sage), so trolley different from doctor. Also, similar to Cooley: putting a basket under power lines would endanger people walking by more than not putting the basket would endanger woman. Emotional and Dignitary Harms I) Assault: (1) intentionally inflicting harmful/offensive contact or apprehension; and (2)apprehension of imminent physical harm. a) No Harm Required: I. de S. and Wife v. W. de S.: D had beat P in the past. He came up to her door and knocked on it with a hatchet, even after she said to stop. He was liable for assault, even though he did no harm. b) INTENTIONALLY Attempting or Threatening to Beat Another – where completion of act would result in bodily harm: Tuberville v. Savage: D puts hand on P‟s sword and says, “if it were not assize time, I would not take such language from you.” Court holds no assault because no imminent threat. c) Depends on Victim’s Mind/Must be Aware: Allen v. Hannaford: D brandished an unloaded pistol and pointed it at P. Court held whether there is an assault depends on apprehensions created in the mind of the person assaulted. d) Mere Words are not an assault: Brower v. Ackerly: calling someone and saying “I‟m going to kick your ass,” is not an assault. e) Doesn’t matter if victim thinks harm will be nominal or he can defend himself (2nd Restatement) f) Hypos from Class: 1) Noose found outside Black Student Union – was this an assault? 2) Black family moves to white neighborhood, KKK burns cross in front of their house. (i) Krauss says this is an assault because they could easily direct the fire right at the house. g) Other Important Notes 1) Controversial Case: VFA v. KKK: KKK sailed around Vietnamese sailors with a cannon on their boat and an effigy hanging from a noose. Court said no assault. 2) Is there assault for intentionally scaring someone? (i) Yes, if the completion of the act would result in bodily harm 3) Venn Diagram for Assault and attempted battery? (i) What is an attempted battery that is not an assault? Punching someone in their sleep and missing. (ii) What is an assault that is not an attempted battery? Threatening to stab someone with a knife but not trying to stab them. II) Offensive Battery: Assault plus the act actually occurs. Punitive damages allowed in offensive battery, unlike battery. 1) Intentionally Offensive: Alcorn v. Mitchell: D spat in P‟s face at a trial in front of many people. Court held if an act is done for the purpose of insult, punitive damages allowed. 2) Playground Still Exists: Leichtman v. WLW Jacor: a talk show host blows smoke in an antismoking activist‟s face. Ruled not to be offensive battery. 3) Includes Objects Near a Person: Respublica v. De Longchamps: striking cane, which is a big insult, is an offensive battery. III) False Imprisonment: must confine (1)within a boundary; (2)using threat/physical force; (3)without good reason to imprison; (4) whether or not harm is caused. a) Four Walls + Physical Force or Threat: Bird v. Jones: highway closed off, P not allowed to go through but could leave. Sued, court held there must be a total boundary and a physical force or threat accompanying the imprisonment for there to be a cause of action. 1) Dissent argued harm possible b/c P has to take an alternate, dangerous route. b) No harm need be caused: Whittaker v. Sandford: woman confined on really nice Yacht, still considered wrongful imprisonment. 1) Exception: harm must be caused in negligent wrongful imprisonment. c) No Reason for Imprisoning: Colbyn v. Kennedy’s: P, an old man, shopping in store, grabbed by two security guards, had health issues afterwards. Court held can only imprison if a reasonably prudent person would do so, can‟t use hunches. 1) Think of incentive effects for merchants after this case… wow. 2) Contrast with Sindle v. NYC Transit: driver starts driving bus to police station because kids are destroying property, kid jumps out of window and is run over by tires. Held: no false imprisonment, driver was protecting school property. d) Contracts/Consent can Alter: Herd v. Weardale: a miner called for an elevator to take him out of dangerous mine, had to wait 30 minutes extra. Court held not false imprisonment, because he accepted the conditions in becoming a miner. 1) Parental Control, a form of consent: Peterson v. Sorlien: parents hired a deprogrammer to get someone to leave a cult. The deprogramming is successful, but then the person joins the cult later. She sues both parents and deprogrammer. Court found for parents and against deprogrammer. e) Aside: Negligently Caused False Imprisonment: has same requirements as above, but harm must be caused for there to be a cause of action. IV) IIED: Intentional Infliction of Emotional Distress: (1)extremely outrageous conduct; (2)causes severe emotional distress that leads to physical harm; (3) calculated to cause harm. a) Physical Harm Must be Intended and Caused: Wilkinson v. Downton: D falsely told P her husband was lying hurt in the street. P rushed there and the nervous shock caused her physical harm. Court held D is liable for IIED if he willfully did an act calculated to cause physical harm to P, and physical harm was caused. b) Must be SEVERE emotional distress/physical harm: Russo v. White: P went on date with D, stopped dating. D run P‟s phone hundreds of times, at suspicious times during the day. Court held no IIED suit because no physical injury. c) Constitutional Overtones: Hustler v. Falwell: fake ad in Hustler made fun of Falwell, by saying he committed incest with his mother. Supreme court held that the first amendment precluded an IIED suit. d) Discrimination suits have to go through federal statute process first (not tort) e) Other Important Notes 1) This tort is more of a “last resort.” If you can sue with something else, you should avoid suing with IIED. Courts are reluctant to enforce it. 2) Use this when the wrong in question is parasitic upon another tort, or does not quite encompass the tort you want to sue for. Unintentional Torts I) Economics and Law Foundations a) Calabresi and Melamed 1) Three rules to allocate entitlements: property rule, liability rule, inalienability rule (i) Property rule: to remove the entitlement, must pay the owner in a voluntary transaction. (a) Use this entitlement when TC low, and/or certain about least cost avoider. (ii) Liability rule: may remove the entitlement if willing to pay an objectively determined value, that the courts determine. (a) Use when TC high, and/or uncertain about least cost avoider. (iii)Inalienability rule: transfer is not permitted between a willing buyer and willing seller. (a) Paternalism/Self-Paternalism 2) Who should you give the entitlement to? (i) Least cost avoider – whomever can minimize costs best. For example, give an entitlement to a rancher who can build a cheap fence around his property instead of a farmer who can only build an expensive fence. 3) There can also be distributional and justice concerns beyond economics. Who you give the entitlement to, even with zero transactions costs, can dramatically effect distribution, as well as how the entitlement is enforced. 4) Why are liability rules generally used for accidents? Because there is no opportunity to negotiate beforehand. Enter negligence… II) Strict Liability v. Negligence a) Historical Background 1) French conquered Britain, offering a dispute resolution system to stay in power (partially replacing feudal dispute resolution system) 2) The first disputes were related to a “breach of peace of the land,” i.e. “trespass.” 3) Royal Jurisdiction was obtained by a writ (i) The # of writs was severely limited because French conquerors did not want to be overthrown. (ii) If you could not invoke Royal jurisdiction, you had to deal with biased Feudal Courts. 4) First Writ: Writ of Trespass: D applied force to person/property with force and arms 5) Eventually, French expanded their jurisdiction and created another writ, Writ of Case. 6) These two writs were differentiated by direct (trespass) or indirect (case) harm. (i) Compare this to today: intentional/unintentional. (ii) Fault had nothing to do with whether you were liable according to the law, only according to the jury. (iii)To get to a jury trial, if you were accused of trespass, you had to say: “I didn‟t do it!” and then in jury make your no-fault argument. 7) The system got really crazy over time: (i) People could say a third party did it when being accused to trespass, and the suit would be thrown out. If accused of case, they could say they did it, to get the suit thrown out. 8) Big Turning Point in US History: around civil war, Brown v. Kendall: court holds P must show D‟s intention was unlawful or he was at fault to be liable. (i) Holmes, the Common Law: Holmes makes an argument that no one can consistently argue for strict liability. If one says a man is always liable for his acts, then he should believe any remote act a man commits can lead to liability, even involuntary acts that seem like they will cause no harm to anyone. Holmes thinks it is bogus that one could be held liable for committing an act with a “concealed consequence” the actor could not have known about. Why should we care if D acted at all? (ii) Holmes does not extend his argument to intentional torts because intentional torts are not acts with concealed consequences or involuntary acts, his argument deals with torts that we call negligence today. (iii)Is every intentional tort a negligent tort? (iv) Holmes does not believe we should be insured against all damages by making those who caused the damages (even involuntarily) have to pay up. State interference is not efficient, private enterprise better at insurance. III) Strict Liability Transitioning to Negligence a) Econ & Law Info Comparing S.L. and Negligence 1) See handout (Class 6) 2) Torts as Insurance (i) Default rule under Tort Law creates first party insurance (can‟t shift loses, so use your insurance to recoup) (a) Costs $1.10 per $1.00 payoff (ii) If you can recoup under tort, this is 3rd party insurance (a) Costs $2.15 per $1.00 payoff (iii)From a societal standpoint, we want to keep things out of tort, because third party insurance is expensive. 3) Which Incentives lead us to most efficient outcome? (i) Negligence OR S.L. w/ Contributory Negligence (a) Why do we use Neg. w/ CN? Equity, non-econ reasons. 4) Economics of SL vs. Negligence (i) With a S.L. rule, D will take approximately the most efficient level of care, and the payoff from taking certain levels of care will look like a normal distribution. (ii) With a negligence rule, however, D will err on side of caution, because payoff goes way up if D is not negligent (full liability to no liability based on just a small increase in standard of care). (a) This might be a good thing, because of the cost of third party insurance is so high, and extra care will keep things out of tort. (iii)Court costs are lower with strict liability (but not if you use SL with contributory negligence) (iv) SL, unlike negligence, causes an individual to not only use a reasonable standard of care, but causes them to alter their level of activity. (a) This is not necessarily true in all situations – negligence can account for activity choice. b) Development of Negligence 1) Bolton v. Stone: court held to a negligence standard instead of strict liability, because expected loss of playing cricket with the current fence was so low, compared to cost of building a higher fence. 2) Rinaldo v. McGovern: Slicing a golf ball off the course and hitting a car is not negligent or strictly liable, because expected loss for hitting a golf ball is low, and all golfers slice; also impossible to prevent without not golfing (high B). 3) Hammontree v. Jenner: court held one is not strictly liable or negligent for having an epileptic seizure while driving unless they have good reason to believe they will seize regularly. (this driver hadn‟t had a seizure in 14 years) (i) Allowing D to drive without negligence is pro-public policy, because you are encouraging the driver to be a productive member of society. 4) Buckley v. TTC: after driver drove in an apparently negligent manner, court held he was not negligent because it turned out syphilis had entered his brain approximately at the time of the accident, making him crazy. c) Other Important Notes 1) Saying that one must have a 0% of having a seizure to drive without negligence is like saying the D in Stone had to build a dome (“infinitely high fence) to protect from balls going over. That‟s asking for people to provide so much care that nothing will ever get done. IV) Negligence a) General Steps: 1) Must produce evidence that a duty was breached to someone who was owed that duty (i) The reasonable man (BPL) (ii) Proxies for the reasonable man: (a) Custom (i) Expert testimony (b) Statutes (c) Res Ipsa Loquitur 2) Must persuade that this caused the injury complained of (i) Expert testimony (ii) Eyewitnesses b) Breach 1) The Reasonable Person (i) Subjective Standard of Care: (a) When will a subjective standard of care be used: (i) More likely if others can see the infirmity (physical infirmity over mental) 1. Holmes: must be a “major defect of nature.” (ii) More likely to be taken into account if they do not injure anyone else (iii)Engage in appropriate activity, given infirmity. (b) Subjective Standard Found (i) Blind: Fletcher v. City of Aberdeen: City worker removed a barrier from an excavation and a blind man fell in. Court had two important holdings. First, blind man was held to a subjective standard of care, and was not contributorily negligent because he acted according to the standard of care a blind man would use. Second, city was negligent because it had to take into account that blind people would walk by. 1. Poyner v. Loftus legally blind guy turned his head to the side while walking and hurt himself… found contributorily negligent… must act with level of care of average blind person. (ii) Youth: Roberts v. Ring: child was not contributorily negligent for jumping in front of a car and being hit. Old man not held to subjective standard, chose poor activity. (iii)Sudden Insanity: Bruenig v. American Family Insurance Co.: If disorder affects a person‟s ability to act with a certain level of care or to understand acting with a certain level of care during a certain act, and there is no forewarning they will be subject to a disorder, they can be held to a subjective standard of care. (iv) Beginners/Experts: If someone is learning how to drive with an experienced driver, they have a lower standard of care owed toward the driving instructor, but no lower standard toward a pedestrian who did not assume the risk. 1. Experts can be held to a HIGHER standard of care if they claim they possess greater skill. (v) Drunk: Robinson v. Pioche: D left a hole in the sidewalk, in front of his property, and P fell into the hole while drunk. Court found D negligent, and did not find P contributorily negligent. This may have been due to the fact that lots of people at the time in the San Fran Gold rush area were drunk, and D needed to exercise a higher standard of care to keep them from falling into holes. (c) No Subjective Standard Found (i) Poor eyesight: Roberts v. Ring (ii) Youth in inappropriate activity: Daniels v. Evans: P, a youth, was killed when he crashed his motorcycle into D‟s car. Court held because he engaged in adult activities, he should be held to an adult standard of care. (iii)Low IQ: Wright v. Tate: poor, stupid guy lived in a town where everyone knew he was stupid. He got in a car with a drunk driver who knew him, and the car was crashed and he was killed. Court held that a low IQ does not entitle one to a subjective standard of care. Criticisms of Wright: 1. The fact that everyone around knew P was stupid should have made it more apparent that others needed to exercise more care around him. 2. His contributory negligence did not contribute to the accident. (iv) Rich/Poor: Denver & Rio Grande v. Peterson: court held care is same whether someone is rich or poor. 2) Calculus of Risk (i) Risk Theories (a) Terry: Five factors should be weighed to decide whether one took an unreasonable risk: (i) Magnitude (ii) Principle Object (what might be damaged from risk) (iii)The collateral object (what might be gained from risk) (iv) The utility of the risk (probability the collateral object will be achieved by taking the risk) (v) The necessity of the risk (probability collateral object would have been attained without taking the risk) (b) Criticism by Seavey: one would be liable for intentionally destroying 10 cents of P‟s property to save his own life, but not liable for doing something with a 10% risk of killing P to save his life. (ii) This is an evolution towards the hand rule: (iii)Reasonable Man Standard: Blyth v. Birmingham Water Works: D damaged P‟s house because an unusually cold storm caused a water main to break and flood P‟s house. Court held D was not negligent because the storm was really unusual, and D had adequately prepared for ordinary circumstances. One who acts like a reasonable man given considerations which ordinarily regulate the conduct of human affairs is not negligent. (iv) Worthwhile Risk: Eckert v. Long Island R.R.: If one takes a risk to save another‟s life, and the risk is not rash or reckless, yet he is killed, he is not contributorily negligent. (opinion is wrong because assumption of risk is not the same thing as contributory negligence) (v) Osborne v. Montgomery : A balancing of social interests can be used to find negligence. For instance, opening a car door without looking out is negligence because it endangers a biker riding by. (vi) Balancing of Social Interests: Cooley v. Public Service Co.: Not preventing one risk because preventing it would create an even greater risk is not negligence per se. For instance, putting a net under power lines would create a greater risk (to pedestrians) than the one it would prevent. (vii) Hand Rule: U.S. v. Carroll Towing Co.: When B < PL, unless it is customary to do otherwise, an individual is negligent. For instance, when P‟s barge broke away from other barges and P had not been on the barge for 21 hours, so he was CN. (a) Critiques of the Hand Rule (i) Never actually used in tort law? (ii) Hard to measure the variables? (iii)Marginal precautions hard to determine? (iv) Should we take into account care to protect only self or care to protect others as well? (v) Assumption of risk neutrality – not necessarily true. (vi) Not the only route to economic efficiency – strict liab. w/ contr. Neg (vii) Strict liab. Allows more precise choice of care (see econ & law notes above) (viii) Hand Rule in Emergency Situations (like subjective standard): Lyons v. Midgnight Sun Transportation Svcs: std of care a person must exercise in an emergency is that of a reasonable person given the circumstances. Thus, when P was killed by D‟s truck driver when P swerved out in front of him, he was not negligent. (ix) Hand Rule for Common Carriers: Andrews v. United Airlines: briefcase fell, not stopped by netting; court held this should go to the jury to determine negligence (jury know airlines, can assess negligence) (i) Must be Marginal Analysis: Grimshaw v. Ford Motor: D designed Pintos, which had a major safety defect that could be corrected for $11 per car, whereas the cost of deaths/injuries would be about $4 per car. This case has nothing to do with hand rule, because Ford will be liable for designing poor cars in the first place. They might choose not to correct the cars in their own economic interest, but they will still be liable for all injuries and deaths. 3) Custom: a proxy for the reasonable man standard. Custom is evidence for establishing the standard of care – usually introduced via expert testimony. (i) Formative Case: Titus v. Bradford: RR business transferred standard width freight cars to a narrow track. P was killed when car he was on toppled over. P sued, claiming the entire practice was negligent (couldn‟t sue fellow employees due to fellow servant rule). Court held if the average business in an industry observes a certain standard of care, another cannot be negligent for observing that same standard. (ii) Exception: Careless Customs not Accepted: Mayhew v. Sullivan Mining Co.: court held that a hole D created without warnings was negligent, did not allow custom to enter the decision. Held following a custom, if the custom is careless, is still negligence. (iii)Exception: Not Necessarily Conclusive: TJ Hooper: two tugboats lost in a storm, did not have radios like most other ships did. Court held that reasonable prudence is often common prudence, but in the end, courts must say what is required. (iv) Exception: Private Std of Care: Lucy Webb Hayes Nat’l Training School v. Perotti: Court upheld standard D had established for itself, when P, a mental patient, slipped by nurses and jumped out a window and died. (v) Solid Evidence Required: Margarin v. Hawkins: P, old man, tried to board D‟s boat and smashed his face into it and was hurt. D said it was customary to board a boat in that manner, whereas P said D should have used hypothetical devices like a bridge/ladder. Court held from the jury (production not satisfied), and held a reasonable boat owner would not have those hypothetical devices. (vi) Updating Custom: (a) Trimarco v. Klein (1976): P cut himself of non-tempered glass in shower, when it was customary to use tempered glass. P was allowed to reach jury. (b) Blackburn v. McLaughlin (2001): identical facts, but in 2001 and D had purchased this apartment from a previous landlord, and did not know about shower door. P was not allowed to reach the jury. This case was differentiated from Trimarco, because in 2001, probably no one in D‟s situation would check to see if glass was tempered, just assume that it was. (vii) Medmal and Custom: A doctor must (1) use same skill as doctors in good standing, similar practices, similar circumstances; (2) allow patients to make informed consent by disclosing all material risks of action/inaction. (a) Skill & Custom (i) Formative Case: Lama v. Borras: P got back surgery from D (Dr. and hospital), who failed to follow customs by giving conservative treatment. Liable after using expert testimony to establish the standard of care. Also had to use expert testimony to show causation… causation issue was difficult for court. (ii) Local Standard of Care: Small v. Howard: said standard of care depended on locality. (iii)National Standard of Care: Brune v. Belinkoff: overruled Small, held proper standard of care is national, although circumstances in a locality (resources available to doctor, etc) may be taken into account. (iv) Two schools: Jones v. Chidester: Not negligent if one follows a practice that a considerable number of physicians, recognized and respected in their field, also use, thus creating a school of thought. (v) Desk References Not Equivalent to Expert: Morlino v. Medical Center of Ocean County: Dr. disregarded a desk reference. (vi) Who can testify? Any Dr. with familiarity. Sheely v. Memorial Hospital. (vii) Exception: TJ Hooper-esque: Helling v. Carey: D did not check P‟s eyes for glaucoma, according to custom, which says not to check people under 40. It turned out P had glaucoma. The court found for P, according to TJ Hooper Standard. (viii) Exception: Very Clear Failed Promise: Sullivan v. O’Connor: court held that if there is clear proof an exact promise was made, and that promise was not fulfilled, one can be negligent. (Plastic surgery) (b) Consent & Custom (i) General Rule: Canterbury v. Spence: P, under 18, was having back pain, and had surgery and later slipped and fell off of the bed. P said she would have not gone through with the surgery had she known there was a 1% risk of paralysis. The court held that if a Dr does not disclose all material risks of therapy that causes injury, where disclosure of one of those risks would have caused a reasonably prudent individual to forgo the therapy, is has breached his duty of care, unless (see exceptions below). (ii) TEST from Canterbury: one can be negligent for failing to obtain consent if he performs therapy that causes injury or does not perform therapy that would have avoided injury and: 1. Did not disclose material risks 2. Or, Fails to disclose material risks of inaction 3. Exceptions: a. Where patient is incapable of consenting. b. When risk-disclosure poses a serious detriment to the patient. (iii)Fork: Expert Testimony: Bly v. Rhodes: required to prove! Canterbury: laypersons can be used. (iv) Knowledge at the Time: Kozup v. Georgetown: not required to disclose risks of something that is not known at the time (AIDS) (v) Fork: Disclose Risks of Alternatives?: Valles v. Einstein Med Ctr.: not required (permacath); Stover v. Association: is required. (vi) Pros/Cons of Consent Rule: 1. Pros: patient autonomy 2. Cons: leads to less care and more malpractice suits, scares patient into a poor preoperative state. 4) Statutes: proxy for the reasonable man standard. Negligence per se if violates without excuse and (1) P falls within protective class; (2) statute is designed to protect against this kind of harm; (3) no excuse (i) Formative Case: Osborne v. McMasters: P died from drinking poison, D didn‟t label according to statute; D negligent. Duty is imposed by statute; also sets standard of care. Statute establishes a fixed standard by which the fact of negligence may be determined. (ii) Theory: an ordinary person complies with statutes, so violating a statute is acting unlike the ordinary person. (iii)Which Statutes are Relevant: ALL STATUTES: federal, proposed statutes, statutes not in effect due to technical defects (iv) Statute is merely evidence of negligence (production), unless negligence per se… (production + persuasion of negligence)… remember, you still have to prove causation. (a) Negligence Per Se: No Excuse: Martin v. Herzog: P was driving in the dark in an unlit buggy, in violation of a statute, and was killed by D, another driver. Court held unexcused omission of statutory law is negligence per se. Causation inferred because no lights in the dark. (b) Not Negligence Per Se: With Excuse: Tedla v. Ellman: person walking along the wrong side of the road, which was not as busy as right side, and hit by car. There was not contributory negligence per se because they had an excuse. (c) Liable: Broad Statutory Purpose: Stimpson v. Wellington: driving over-heavy truck on city streets without permit, breaks pipes, liable because statute had a dual purpose. (d) Not Liable: Narrow Statutory Purpose: Wawanesa v. Matlock: selling minors cigarettes, resulting in a fire; not statutory purpose (also fails proximate cause test) (e) Not Liable: Statutory Purpose: Gorris v. Scott: failure to pen sheep in according to statute designed to protect against transmitting disease, sheep washed overboard; not negligence per se. However, one could argue there is cause in fact (“but for”) and proximate cause (“extra risks”) (f) Not Liable: Inconsistent with Legislative Scheme: Uhr v. East Greenbush Central School District: P sues school district for not checking daughter for scoliosis during one school year, and the next, they found out she had it, and had to get surgery because of the year she was not checked. Court affirmed summary judgment, saying that the lawsuit would not be consistent with the gratuitous nature of the state‟s legislative scheme. (v) Something can be negligent per se, but can still fail the causation test. For instance, a minor driving without a driver‟s license can crash, but if the minor was driving non-negligently, and a storm caused him to crash, and would have caused a licensed driver to crash, fails “but for” test. (vi) Medmal & Statutes: (a) Common Law: Brown v. Shyne: A chiropractor, who does not hold himself out as a doctor, and is trained to do chiropractic work, but does not have a license, is not negligent per se for practicing medicine without a license, because there must be a logical connection between breach of statutory duty and alleged negligence. Although statute was a safety measure, it was to allow people to know whether they were dealing with a licensed Dr or not, and he never held himself out as a doctor. Also fails but-for test: chiro acted with care of a Dr… also fails AOR test… (b) Statutory Law: NY Statute: there is prima facie evidence of negligence in medmal in any action for injuries/death against any person not authorized to practice medicine for any act constituting practice of medicine, when act is prox/contrib.. cause of injuries. (vii) Dram Shop Statutes (a) Differ greatly between states: hard to state an overall common law rule. (b) States sometimes hold liable for serving alcohol to someone who goes out and drives drunk, depending on statutory law. 5) Judge and Jury: How, When, and Why the judge controls the jury. (i) Holmes, The Common Law: (a) Sooner or later, judges need to make law. (b) If judges leave every negligence case to the jury without special instructions, no law will be made. (c) Two cases: (i) Decisions of fact: 1. Sending a case to the jury without special instructions to decide facts is perfectly appropriate. (ii) Did D breach standard: 1. Special instructions needed, or court should give its own opinion. 2. Over time, take away from jury, either b/c jury decides the same way many times, or waffles too much, so the judges need to step in. a. Exception: rapidly evolving standards. (ii) How: (a) Instructions @ end of case (b) Keep certain questions from jury (c) Declare mistrial/JNOV/directed verdict (iii)When to take away: (a) Clear cut rule (b) “No reasonable juror” would rule a certain way. (c) Biased jury (hindsight bias in particular) (d) Jury likely to make an error given the circumstances (e) Why take away in theory: cheaper, juries can be prejudiced, typically get same result from judge anyways, avoid runaway verdicts. (iv) When to give to jury: (a) Rapidly evolving standard (b) Questions of Fact (c) When there is an established rule, but custom does not conform to it or it is no longer practical (d) Why give to jury in theory: juries represent sense of community, represent the reasonable person, check domination of legal system by professionals. (v) Clear Cut Rule… No Jury: Baltimore & Ohio R.R. v. Goodman: P was hit while driving a truck across RR tracks… did not stop to get out and look… court held this is contributory negligence by law and did not need to go to jury because it is a clear cut rule. (vi) Old Rule has Evolved… Jury: Pokora v. Wabash Ry.: same facts as above. Court held that when custom does not conform to established rule, or established rule is no longer practical jury decides (vii) Questions of Fact go to Jury, Obvious Question do not: Jewell v. CSX Transp., Inc.: P was hit by train when he crossed elevated tracks at an acute angle, where only warning devices were crossbucks. He claimed crossing was extra-hazardous: court held no reasonable juror would agree with P, so jury did not get to decide this. P also claimed negligence for failing to blow train whistle – although evidence is iffy as to whether it was or not. Thus, jury decided the issue because it was a matter of fact. 6) Res Ipsa Loquitur: using circumstantial evidence as evidence of breach. (i) Possible Explanations: (a) It gets the cheapest cost provider of evidence to provide the evidence. (shifting burden to D) (b) It is just probability theory (c) It is just a “search for reasons.” Canterbury v. Spence. (d) In some situations, “everything” should be explained, such as in a hospital. In the sea, not so much. (ii) Three Part Test: if established, burden of proof for negligence shifts to D: (a) Accident ordinarily would not happen without Negligence. (i) P(neg) / injury > 50%. (ii) NOT P(injury) / neg < 50% (object to this!) (b) Accident probably attributable to defendant. (i) Must show “exclusive control” (c) P probably did not contribute to injury (iii)Cases: (a) Extraodinary: Byrne v. Boadle: barrel from D‟s store fell on P. Court shifted burden of proof to D, because barrels that fall from sky are usually negligent. (b) P contributed?: Wakelin v. London & SW Ry.: P killed by D‟s train… res ipsa not allowed because no more evidence that train hit man than man hit train (c) No CCP: Walston v. Lambersten: sea-worthy ship lost at sea, ship owner sued for negligence. Nonsuit – sea contains many hazards. (d) CCP: Haasman v. Pac. Al. Air Exp.: Suit is allowed when airplane is lost; P is most efficient provider of evidence. (note: sample bias, AK) (e) Exclusive Control/Inferred Negligence: Colmenares Vivas v. Sun Alliance Ins. Co.: escalator accident at airport, handrail stopped moving, stairs kept moving, P fell. Court shifted burden of proof to D; escalator safety was in exclusive control (nondelegable) of D, even though contracted out for escalator. (i) Contrast: Holzhauer v. Saks & Co.: escalator completely stopped, could have been caused by someone pressing stop button, no RIL b/c no exclusive control. (ii) Contrast: Kmart v. Bassett: automatic doors closed on old lady. Court held this kind of thing likely to happen without negligence, so no RIL. Agrees with dissent in Colmenares. (f) Opposes Ybarra (below): Samson v. Reising: turkey salad made by many mothers, eater contracted salmonella poisoning, recovery not allowed; can‟t determine who did it (no exclusive control) (iv) Medmal Cases: (a) Ybarra v. Spangard: P went to get an appendectomy, woke up with shoulder injury. He sued tons of caregivers @ hospital (not same boss, not respondeant superior). Court held where a P can sue, and burden shifts, to all those who had any control over his body or instrumentalities that caused his injuries. (i) Multiple suits, can‟t prove in any one of the suits that more likely than not act of one person was negligent… (ii) This case is worse than Summers. No proof of causation OR negligence. (b) Anderson v. Somberg: surgical forcep breaks off in P‟s spinal canal. P sued surgeon, hospital, medical distributor, and manufacturer. Court held jury was obligated to impose a verdict against at least one of the named defendants. (v) Hypos from Class: (a) "Gatecrasher": a guy owns some land, and makes money by putting a fence around the land, and selling tickets to events. One day, he only sells five tickets, but looks inside and sees someone has cut a hole in his fence, and 100 total people are inside (95 snuck in). He sues one random attendee. Attendee says "no evidence, I didn't do it." Gatekeeper claims res ipsa. (i) INTENTIONAL TORT – Trespass to Real Property! (ii) Would gatekeeper survive summary judgment motion? (iii)If all 99 others testify they didn't do it as well, would gatekeeper survive summary judgment? (iv) Could a nonbiased jury believe D? (b) "Hunters": assume P is walking non-negligently through the forest wearing blaze orange. He is shot by a shotgun. He somehow closes off the forest and finds five hunters, all with identical shotguns which were fired at the exact same time. Additionally, they were all hunting independently. P sues 3 of them. (i) It is likely the person who shot P did so negligently. (ii) Should A have to pay in P's suit against him? V) Plaintiff’s Conduct (Defenses to Negligence) a) Contributory Negligence 1) Not necessary for economic efficiency (for justice, instead) 2) Formative Case: Butterfield v. Forrester: P riding horse hard through town, hits pole negligently left in street by D. No recovery: “one person being in fault will not dispense with another‟s using ordinary care for himself.” 3) Not CntNeg: Beems v. Chicago, RI & P R.R.: P signaled to fellow RR employees, asked them to slow train down, signal not obeyed, he was killed. 4) 5) 6) 7) Recovery allowed, P had reason to believe his signal would be obeyed. Must be Cause in Fact: Gyerman v. US Lines Co.: P injured unloading fishmeal stacks, had complained that they were in a dangerous condition, complained to wrong supervisor, was told that nothing could be done. Court found contributory negligence on part of plaintiff, for not reporting, but the contributory negligence was not cause-in-fact, so no directed verdict. Must be Prox. Cause: Padula v. State: rehab patients snuck into copy room, drank ditto fluid they had been told was dangerous. Court allowed suit; “irresistible impulse.” (no intervening cause) Fork: Invasion of Property: LeRoy Fibre v. Chicago, M & S.P. Ry: P stacked flax on his property near RR tracks. Spark started fire. (i) Majority: right to use own property not limited by wrongs of another. (ii) Holmes (most courts follow): jury should decide whether flax was stacked too close to tracks. Fork: Seat Belt Defense: (i) No Effect: Derheim v. N. Fiorito Co.: P failed to wear seatbelt prior to accident caused by D‟s negligence. Court held seat belt does not affect damages or liability… did not “cause” accident. Must increase PROBABILITY of accident, not damages. (ii) Affects Damages, Not Liability: Spier v. Barker. (iii)Same kind of dispute for Helmets. (iv) My opinion: Derheim wrong, at least today; back when decided, could be right based on “reasonable man” standard. (v) Hypos from Class: (a) Is comparative negligence fairer than Cont. Neg? (i) Ex: two cars collide in an intersection, both are totaled. A is driving a $300K car, B is driving a $10K car. Each sue the other. 1. In Cont. Neg., each bears his own losses and his choice to drive the more expensive car. 2. In Comp. Neg.: each bear‟s the other‟s choice to drive a particular car. (ii) This hypo is much like the seatbelt rule. b) Last Clear Chance: P‟s contributory negligence is overridden, if D has LCC to prevent harm. No longer exists in comparative negligence regimes, but can be used to alter % responsible. 1) Test from Restatement: (i) Helpless P: P can recover if (1) P is unable to avoid accident by exercise of reasonable care; (2) D is negligent; (3) D knows of P‟s situation or should know via reasonable diligence; and (4) D does not exercise reasonable care to avoid accident. (ii) Inattentive P: P can recover if (1) P could have discovered danger created by D‟s negligence via reasonable care; (2) D knows of P‟s situation; (3) D realizes or has reason to realize P is inattentive; (4) D does not use reasonable care. 2) Inattentive (Formative): Fuller v. Illinois Central RR (308): P was riding his wagon across train tracks while not paying attention. D clearly saw him, while driving his train too quickly. Evidence suggests he could have stopped his train in time or blew a warning whistle, but did not slow down or stop, and only gave a routine whistle-blast. Court held the party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible for it. 3) Helpless (Formative): Davies v. Mann (31): P left his donkey in plain view of the highway, and it was run over by D‟s wagon. Court held if D, by proper care, could have avoided injuring the animal but did not, he is liable for consequences of his negligence, even if animal was improperly there. 4) Known or Should have Known: Kumkumian v. City of New York (312): city‟s subway train ran over P. Train had halted three times after its tripping device came in contact with something on the tracks. The first two times, the brakesman inspected tracks but found nothing. The third time, the brakesman and engineer discovered P‟s mangled corpse. Evidence suggested he was not dead until third time. Court left the case to the jury, holding that one cannot be non-negligent as a matter of law if he had “requisite knowledge upon which a reasonably prudent person would act.” (i) Dissent: Says neither motorman/conductor knew person was in peril, and evidence is insufficient to support the inference that they should have known. 5) Exception: Suicide: Washington Metropolitan Area Authority v. Johnson (313): P flung herself onto tracks of an oncoming train when D‟s intoxicated conductor ran over her. Court held “when P and D are equally at fault, „the law leaves both parties where it finds them‟… A P whose conduct is in reckless disregard of her own safety is barred from recovery against a D whose reckless disregard of P‟s safety is a legal cause of P‟s harm. (a) Dissent: Majority undermines policies of LCC, and P could not have been reckless because she had serious mental illness and didn‟t know what she was doing. c) (The Death of) Imputed Contributory Negligence: negligence imputed from one to another. 1) Used to be able to impute contributory negligence from one person to another. 2) No longer in existence. 3) Mills v. Armstrong (The Bernina): Ps were employees on a ship, which collided with another ship due to mutual negligence of both ships. Court held the relationship between passenger in a public vehicle, and the driver of it, is not a situation where negligence of driver can be imputed on passenger… recovery allowed 4) Dashiell v. Keauhou-Kona Co.: P was injured, through negligence of his wife and D, who was driving him in a golf cart. Court held the joint enterprise defense was inapplicable… unless P were under a duty to control the actions of his wife as she drove the cart. 5) Hartfield v. Roper: infant wandered onto roadway and was injured, due to both D‟s negligence and his mother‟s. Court held P cannot recover because his mother‟s negligence is imputed onto him. (i) Has been repudiated in virtually all jurisdictions. (ii) There would be contributory negligence if D killed child. d) Assumption of Risk 1) Test: to use AOR defense: (i) P must know/understand the risk (ii) P voluntarily confronts risk (has an alternative) 2) Express Assumption of Risk: P enters a contract, voluntarily accepting risks. (i) “Risk Premium” for a risky job. (ii) OBGYN v. Pepper: D signed arbitration agreement prior to treatment; D suffered an injury after treatment, accused P of negligence. D claimed she did not remember signing agreement. Court asserted this was an adhesion contract (“take it or leave it”), and held that courts will not enforce against an adhering party without plain and clear notification, and understanding consent. (a) Problem: she probably got to pay less by signing form; now she gets best of both worlds… she got a discount for nothing! 3) Implied Assumption of Risk: either (1) Primary: D had no duty to protect P because risk was obvious or foreseeable; or (2) Secondary: P VOLUNTARILY continued to act in the fact of D‟s negligence. (i) Understand the Risk: Lamson v. American Axe & Tool: P worked for D under daily contract, D provided him with an unsafe hatchet rack. P complained; was told he could use it or leave. P continued working; injured. Court did not allow recovery, because P assumed the risk (could have left, understood the risk). (a) Awareness assessed against experience: Maddox v. City of NY: outfielder slips in wet field, career ended. No recovery, AOR (he knew dangers of wet field). Same idea in Lamson, worked many years (ii) Must be Obvious + Necessary Risk given Activity: Murphy v. Steeplechase Amusement: P got on a ride called “the flopper.” He watched people beforehand. Ride involved shaking people and knocking them down. Court held one who takes part in such a sport accepts the dangers in it as long as they are obvious and necessary. Court noted if the activity were “inherently dangerous,” AOR would not apply and liability would ensue (inalienability rule to users). (iii)Must be a Choice: if you are forced into confronting a risk, no AOR. (iv) Hamel v. Glen Echo Pk: father sat on arm of roller coaster, asked to get off, thrown off and killed. Court said AOR, no recovery. (sequential? LCC?) (v) Exception: Fireman’s Rule: Public officers ALWAYS ASSUME RISK (a) On the way to work (but still acting in officer capacity): Kelhi v. Fitzpatrick: no recovery when officer on way to work was hit by a tire that fell off a negligently maintained truck. (b) Exception: Int’l Tort: Goodwin v. Hare: female police officer was punched by a suspect. Recovery allowed. Strong dissent by female justice (although this was not just carving out an exception to females) 4) Key Questions: (i) Assumption of risk can be two things: a property rule and an inalienability rule. When is it property and when is it inalienability? (a) You can choose three types of ways to give up some of your rights in an adhesion contract: lower std. of care, lower dmgs level, and diff forum. Which is worse? When is one allowed? 5) Hypos from Class: (i) D starts a fire which spreads to P‟s house. P comes home from work to see it on fire and rushes inside to save photos of her deceased husband. She gets them but is burned. She sues negligent D for her burns. Should she be able to recover? (a) D will claim assumption of risk. She can assert it was an emergency situation and she didn‟t think about the risk. (b) This is NOT contributory negligence, because (1) B>PL, and (2) the average person may have done it (ii) A sign posted in front of a roller coaster says there is a 2% chance of death. ARE YOU MAN ENOUGH TO RIDE? Still AOR. f) Comparative Negligence: P‟s negligence does not bar recovery; it decreases the amount P can recover. Adopted by most jurisdictions: mostly by statute, but sometimes enacted via courts (Krauss not happy about that) 1) Fork: Three Types: (i) Pure Comparative Negligence: P can recover [total damages] * [1-P‟s % fault] (ii) Modified Comparative Negligence: cannot recover from a D if (in some states from sum of the Ds): (not-as-great-as): P‟s % fault is equal to a D. (not-greater-than): P‟s fault is greater than a D. (iii)Divided Damages: old admiralty law rule in US, damages were divided 50/50 2) Effect on other Doctrines: (i) AOR: lowers P‟s potential recovery; not necessarily bar to recovery. (ii) LCC: applicable in terms of causation, can change fault %. (iii)Intentional Torts: No effect. (iv) Joint and Several Liability: some states moved to several only, contribution rules have been modified. 3) Pros and Cons: (i) Pros: internalization of costs, societal efficiency, “justice,” the juries did it anyway with contributory negligence… (ii) Cons: expensive, inaccurate, too much power to jury b/c virtually all cases go to jury, can‟t JNOV a cmpNeg verdict, complications with defendants and joint/several liability, settlement rate is lower in comparative negligence, less certainty. 4) Established @ Common Law: Li v. Yellow Cab: two drivers negligent; court created “pure comparative negligence” regime. Held legislative code did not preclude establishing regime through courts b/c legislative intent. Trial courts to establish intricacies. Main thrust of argument was that it wanted to eliminate the “lottery” system of contributory negligence. Dissent: Barred by statute. 5) Established via Statute: most states, various statutes. 6) Recovery can be barred due to causation: Buckley v. Bell: farmer siphoned out diesel negligently filled by gas station. Negligently through a match in to engine afterwards; explosion. Court barred recovery; no proximate cause. g) Joint and Several Liability 1) Joint Liability: each D responsible for entire loss; occurs when damage is indivisible (two hunters shoot lung at same time), one lawsuit for all Ds. P can recover 100% of damages from a D who is only 5% negligent. (i) Release Rules: must be careful of how you release someone in an indivisible tort. If you say “I release you” instead of “I release you and only you,” you could accidentally let all parties off the hook. 2) Several Liability: each D responsible for his share; occurs when damage is divisible (hunters hit hand & foot); separate lawsuits for each D; no contribution issues. P can recover damages from each D in proportion to their negligence. (i) Some states using comparative negligence have completely abolished their joint liability; only use several liability. 3) Common Law Rule: Union Stock Yards v. Burlington & Quincy RR: P and D were both negligent for failing to inspect a RR car. P had to pay total damages, sought to recover from D. Court did not allow recovery; D‟s cannot recover from one another, except for the Rule of Indemnity: when a D who did not participate in causing damage but has to pay all, he can try to recoup damages from a D who actually caused damage (if not insolvent… usually a vicarious liability issue) 4) AMA v. Superior Court: P injured in novice motorcycle race, D had to pay total damages, sought contribution from P‟s parents. The court overruled CA‟s pro-rata contribution statute; held (i) Contribution Rule: a tortfeasor can recover from other tortfeasors on a comparative fault basis but cannot recover from a D who settled in good faith. (a) Dissent: D1 liable for 70% and D2 liable for 30%. P sues D2 for all. D2 can try to recover, afterward, but if D1 is insolvent, D2 must pay all. See Disney World v. Wood (boyfriend mostly negligent, Disney World 1% negligent, Disney had to pay all b/c boyfriend insolvent) (ii) “Pro Tanto” Settlement Rule: P‟s recovery from other D‟s after a settlement diminishes only by amount P actually recovered. 5) 6) 7) 8) (a) Dissent: If D1 who is 80% responsible settles for 10%, and D2 who is 20% responsible is found liable. D2 will have to pay 90% damages. “Proportionate Share” Settlement Rule: McDermott v. River Don: Admiralty; two Ds did not settle but three Ds did; how much should two Ds have to pay? Court established proportionate share rule: Ps recovery from other D‟s after a settlement diminishes by the proportionate share of whomever was settled with. (i) Contrast with AMA: P‟s recovery diminishes only by dollar amount of settlement. (ii) McDermott is better for Ds, AMA is better for Ps. “Pro Tanto” with Contribution Rule: non-settling Ds can collect from settling Ds the total share of their negligence minus settlement. Terrible rule, discourages settlement. Fork: Some Pure CmpNeg States: Only Several Liability: Bartlett v. NM Welding: court held because NM is a pure comparative negligence state, only several, no joint, liability. Fork: Insolvent Ds: AMA believes Ds bear risk of insolvent Ds. Evangelatos v. Superior Ct believes shortfall should be apportioned among remaining parties. (i) Mary Carter Agreements: Booth v. Mary Carter Paint Co.: secret agreements where D settles but remains in case, amount he has to pay is reduced when other D has to pay more. Illegal. h) Vicarious Liability 1) Employer/Employee Scenario (i) Respondeant Superior: Liable if one is under the control of employer. (ii) Frolic and Detour Rule: no liability for employer if employee is “frolicking”… but what is the extent of frolicking? (a) Bushey v. United States: Drunk sailor spins some valves, damages a ship. Found the navy liable. Court held conduct by employee can result in vicarious liability if it is (1) motivated by serving employer; (2) reasonably foreseen by employer; or (3) proximate to employer‟s premises creates employer liability. (b) Does not matter if employer specifically forbids actions, specific act not foreseen. (iii)Intentional Torts: generally beyond employer‟s control, but liability if employer knows about act or reasonably should be expected to know, or if acts are in scope of employment. Lancaster v. Norfolk & Western Ry. (iv) Two Employers: if someone has 2 employers, both are jointly liable. Morgan v. ABC Manufacturers. (v) Contribution: employer can try to recover contribution, but usually not possible due to employee insolvency. (vi) Pros/Cons: (a) Pros: Ensures P recovers something, employer is better risk-bearer, may be least cost avoider. (b) Cons: incompatible with individual freedom, workers are individuals who don‟t always act in the interest of their employer, if at all. 2) Independent Contractor Scenario: contractee liable when: (i) Petrovich v. Share: Share, an HMO, pays for healthcare through independent Drs. However, Share handbook does not mention these Drs. are independent contracts, and P believed at the time that Dr. was an employee of Share. (a) Apparent Authority: when (1) HMO holds itself out as the provider of healthcare, without informing patient that care is given by independent contractors; and (2) patient justifiably relied on HMO to provide services, rather than a specific physician. (b) Implied Authority: when HMO retains some right to control the manner of doing the work (i.e. cost cutting “suggestions” or incentives). (ii) Or when the work is a direct result of work contracted (iii)Or that work is inherently dangerous.     Causation First must establish cause in fact (would not have happened “but for” D‟s wrongful conduct) Next, must establish legal cause (no break in causal chain from D‟s act to harm) Causation is not necessary for economic efficiency… or is it? Basic Case that shows why we need causation: Guy driving drunk, someone 100 miles away has a heart attack… there is no causation. Lacks of cause in fact; even if there were cause in fact, no proximate cause. I) Cause in Fact: a) Two Key Tests: 1) “But For”: Injury probably would not have happened but for D‟s negligence. (a) NY Central RR v. Grimstad: P‟s husband drowns when he falls off a barge and there are no life buoys. P alleged D negligent in not providing life buoys. Court held there must be evidence, not speculation, to link D‟s negligence to the harm (too many “what-ifs”). 2) Substantial Factor: D‟s negligence was a substantial factor in causing harm. Negligence is wrongful because it increases risk of a particular type of accident, and that accident occurs. (i) Zuchowicz v. US: P erroneously instructed to take an overdose of Danocrine. She develops PPH and dies. Court holds if negligence is wrongful because it increases risk of a particular type of accident, and that accident occurs, cause in fact is established. b) Burden of Proof: Initially rests on P; shifts to D when P satisfies production burden EXCEPT when P can‟t prove burden through no fault of his own. Then, SOME courts will shift burden to D. 1) Haft v. Lone Palm Hotel: father & son drowned in pool w/out lifeguard or no lifeguard sign. Burden shifted to D b/c P could not prove causation due to D‟s negligence. AOR?? c) Fork: Admissible Proof: three standards: 1) Oxendine Standard: evidence must be taken as the “sum of its parts.” 2) Frye Standard: only expert testimony generally accepted as “reliable” by scientific community (i.e. peer reviewed / big school of thought) 3) Daubert Standard: “reliable” PLUS “relevance” required (applied in Joiner… must have peer review plus relevancy.) (i) General Electric v. Joiner: P, an electrician, had to stick his hands into PCB fluid, considered hazardous to human health; developed lung cancer; he was a smoker. Court remanded for D, held expert evidence must be relevant and reliable, and P‟s was not – studies too dissimilar to the facts. (a) Compare to Agent Orange: recovery denied for birth defects; no correlation, animal studies considered insufficient to prove. (b) Contrast with Fedorczyk v. Carribean Cruise: P fell in shower, expert claimed too few grippy strips; court held testimony inadmissible. 4) Pros/Cons of Daubert: (i) Pros: less extraneous expert testimony. (ii) Cons: judges, rather than a peer review system, are in charge of admissible evidence. d) Applications: 1) Lost Opportunity: liability for increasing someone‟s chance of death. (i) Fork: Liability: (a) Substantial Factor Test: Herskovitz v. Group Health Cooperative: P‟s cancer was negligently nondiagnosed, increased her chance of death. Court held significant reduction in chance of survival is enough to go to jury. (two problems: survival instead of death, does not define “significant”) (b) But for Test: Fennell v. SMHC: “but for” test (must increase chance of death by >50%). (c) Anything Test: Professor Robinson thinks any loss of chance should create liability. (ii) Fork: Damages: (a) Herskovitz: damages should be awarded based purely upon damages caused by premature death. (b) Fennel: should take into account current chances of death when assessing damages. (iii)Hypo: “Raffle”: 3 people are left in a room who might win a raffle for $100K. Someone leaves an explosive in the room and kills the three. Is the person who blew them up allowed to be sued for the $100K or some part thereof (in addition to wrongful death)? 2) Enhanced risk of required medical tests test: (i) Paoli RR Yard PCB Litigation: For something like asbestos, where one needs to get early warning tests and treatment before disease strikes, when are the tests compensable? Four part test: (a) P was significantly exposed to a proved hazardous substance through D‟s negligent actions (b) As a proximate cause, P suffers a significantly increased risk of contracting disease (c) Increased risk makes periodic medical exams necessary. (d) Monitoring and testing procedures exists which make early detection and treatment of the disease possible and beneficial. 3) Joint Causation: when two parties create one inseparable harm. (i) Kingston v. Chicago & NW Ry.: two fires created, one of unknown but human origin, one created by D. Jointed together, burned down P‟s property. Court found D liable: if P can prove (1) one source of damage; and (2) the other source is not natural, D is liable. (a) Why not for nature? Because accident “would have happened anyway”… can‟t sue God in a tort. (ii) Harm is apportioned when possible. 4) Alternative Liability: when one of two negligent Ds causes harm, can‟t tell which. (i) Summers v. Tice: three hunters in woods, two Ds independently shoot in P‟s direction, one hits him in the eye. Court finds both Ds jointly liable; shifts burden to each D to absolve if they can. Arbitrarily says they can be treated as joint tortfeasors. (a) “But For” Test? No – 50% chance injury would not have occurred but for D‟s negligence; not more likely than not. (b) Substantial Factor Test? Is firing a bullet at someone a substantial factor in their injury? There actually has to be damage in the substantial factor test… no damage by the bullet that sailed by. (ii) Contrast with Leuer v. Johnson: same facts as Summers, no recovery. 5) Market Share Liability: when one of many manufacturers caused injury. (i) Test: (established in Sindell v. Abbot Labs: DES Case) (a) All named Ds are potential tortfeasors (b) Allegedly harmful products are fungible (c) P‟s inability to identify is not his fault (d) Substantially all manufacturers during relevant period are named Ds. (ii) Skipworth v. Lead Industries: child gets lead poisoning. Failed test because led paint is not fungible. e) Other Cases: 1) Causation/CmpNeg: Reyes v. Vantage Steamship: drunk man jumps in water, court held D‟s negligence was the cause of death, but P was 85% negligent. 2) Discounted Damages: Steinhauser v. Hertz: fender bender, P became schizophrenic; discounted damages based on pre-existing condition & chances it would develop into an injury. 3) Lost Chance: Hotston v. E. Berkshire Health Auth: child falls from jungle gym, negligent reading of X-ray, actual bone-break; 75% chance if caught first time, no permanent damage; recovery barred. II) Proximate Cause: weave PERSONAL RESPONSIBILITY „moral choice‟ into answer a) Direct Cause: 1) Negligent act + Injury + Reasonably Foreseeable Harm = Liability b) Indirect Cause: 1) Negligent act + Reasonably Foreseeable Intervening act + Reasonably Foreseeable Harm = Liability c) Tests: 1) “Any Damage” Test: Polemis: if direct cause, damage is caused, and any damage is foreseeable from negligence: proximate cause is proven; it does not matter that the extent of damage is not foreseeable, must pay for it all. 2) “Extra Risks” Test: Marshall v. Nugent: negligence creates extra risks which make particular damages foreseeable. If the extra risks cause those damages, proximate cause is proven. 3) “Natural/Probable” Test: Wagon Mound #1 / Palsgraf: only responsible for the probable consequences of negligence; extent limited by foreseeability. d) Early Case, Not Good Law: Ryan v. NY Central RR: D set fire to P‟s woodshed, which ends up burning P‟s house and lots of other houses. Court only allowed recovery for woodshed, holding that “remote” damages cannot be recovered. e) Coincidence: breaks causal chain, unforeseeable; Berry v. Sugar Notch: the fact that P was speeding was cause-in-fact that tree fell and crushed car, but it was totally coincidence that tree landed on car – not reasonable to foresee speeding would increase probability tree would fall on car. 1) Contrast with: Bibb Broom Corn v. AT + SFRR: RR negligently fails to get corn on proper train in time, stores it, flood destroys corn. Court in this case essentially ignored “proximate cause” and only focused on “but for.” This case is wrong, essentially, IMO. f) In Re: Polemis: Plank fell, caused spark, ignited gas, explosion, direct cause. Workers liable. As long as some damage is foreseen, liable for all damage. g) Marshall v. Nugent: Truck driver runs car off road and blocks road, car driver goes to road to warn of danger, another driver hits him. Truck driver is held liable. Proximate cause shown if one of the extra risks created by D‟s negligence causes an injury. 1) Contrast with Union Pipe Co. v. Allbriton (470): P slips on some foam after putting out a fire from D‟s defective pipe. Court holds waters had settled, no proximate cause or liability. h) Wagon Mound #1: oil leaks into dock, P did not know it would explode. Held proximate cause established only if results are foreseen. (i) Contrast with Wagon Mound #2: Different facts: court finds D should have known oil was flammable, holds D liable. (ii) Compare with Doughty v. Turner (476): cement cover falls into vat of hot solution, splashes, then after a while, it unexpectedly explodes. Court held consequence was unforeseeable. (iii)Contrast with Kinsman Transit (478): boat negligently tied, breaks loose from large cakes of ice, crashes into another ship. Both crash into a negligently manned bridge, formed dam, flooded city. Court held both Ds jointly liable. Court reasoning seems to be a hybrid of Polemis and Wagon Mound: said if BP2L2, D is still liable for L2, and the equation should be B