Tort Exam Answer Structure 1. What torts may have been committed? 2. Who parties are for each tort? a. Discuss prima facie case for each tort (separately) i. If P has not satisfied the case for each tort, then he loses. ii. If P has satisfied the case then you move on. b. Defenses – Are there any good affirmative defenses? i. If there are none and P has satisfied his case, then he wins.
I. Introduction to Tort Liability a. Goal i. Compensate the victim – make him whole ii. Deter tortuous acts iii. Spread Losses iv. Fairness (sometimes added) – provide clear rules b. Categories i. Negligence ii. Strict Liability iii. Intentional Torts c. Hammontree v. Jenner (p. 3) (bike shop car accident) i. Epileptic has accident, P argues for SL because only D would know about the potential danger he poses to society – he takes the risk. ii. Jury verdict for D. iii. No S.L. for drivers, not like product liability, no exception for suddenly stricken (knew about epilepsy): still unforeseeable for driver d. Christensen v. Swenson (p. 18) (security guard car accident) i. Security guard lunch accident, SJ for employer. S.Ct. reverses. 1. Doctrine of Respondeat superior (vicarious liability) – 3 criteria a. Conduct is of general kind that employee is hired to perform i. So it‘s not just a ―personal endeavor‖ b. Employee‘s conduct must occur substantially within hours and ordinary spatial boundaries of employment c. Employee‘s conduct must be motivated, at least in part, by the purpose of serving the employer‘s interests. The Negligence Principle a. Historical Development of Fault Liability i. Tort Law and the Economy in 19 th Century ii. Brown v. Kendall (p. 35) (dog fight) 1. dog fight; P wins – reversed a. ORDINARY CARE. No recovery to P if i. D & P using ordinary care ii. D use ordinary care, P no ordinary care iii. Neither D & P using ordinary care b. Impact for industrial revolution – allow for risks of ―progress‖ c. If D has lawful, unintentional act, w/reasonable care = no recovery for P. b. The Central Concept i. The Standard of Care 1. Adams v. Bullock (p. 40) (boy swinging wires, electrocuted) a. P wins – reversed. b. Reasonable Foreseeability is rule used. D has duty to adopt all reasonable precautions to minimize resulting perils.
II.
Torts Outline – Prof. Cynthia Bowman Fall ‗06
Adam King
i. Again, industrial revolution was key to decision. c. Cardozo 2. Braun v. Buffalo (p. 41) a. D had strung electric wires 25ft above vacant lot. b. Insulation of wires expected to last 3 years. c. 15yrs later, man dies from contact. d. Question of fact: was it reasonably foreseeable? 3. Green v. Sibley (p. 42) a. Woman stumbling over mechanic‘s foot in store – not reasonably foreseeable for the mechanic. 4. U.S. v. Carroll Towing Co. (p. 44) (B
PL costs too high! i. Fulfill duty by placing limited screen behind home plate
20
Torts Outline – Prof. Cynthia Bowman Fall ‗06
Adam King
VII.
ii. Some states have statutes disallowing recovery unless willful conduct or negligent screen – encourage sporting activities b. Hockey rink HYPO – Plaintiff struck by puck, has no knowledge about dangers i. D duty to post warnings (higher duty than baseball?) ii. Knowledge of risks (P from MN) can sub for posted warnings 5. Roberts v. Vaughn (Firefighter Rule) a. Bars firefighters from recovery for injuries sustained as a result of negl. that gave rise to their emergency duties. Doesn‘t apply to volunteers i. Rationale: 1. firefighters paid to confront dangers & rescue ppl from neg. caused situations 2. they are paid to do that and shouldn‘t get more. Originally an assumption of risk case, not considered ―no duty‖ rule 6. Levandoski v. Cone a. Police officer case (like firefighter rule) b. Bowman thinks this is a ―no duty‖ case – no duty to professional rescuers. Or you could say that they assumed the risk in taking the job. Strict Liability (Traditional) a. Doctrinal Development i. Similar to Res Ipsa Loquitur 1. Res Ipsa a presumption, SL isn‘t. 2. In SL, you can still challenge cause, proximate cause and damages, but not duty or breach of duty. ii. Prima Facie case – same as negligence, but duty is absolute b. Fletcher v. Rylands (p. 506) (coal mine next door to mill) i. D reservoir flooded P‘s coal mines ii. No fault by D, although subcontractor knew (but no respondeat superior) iii. Strict Liability – water not naturally there – escaped 1. character of activity 2. place and manner of activity 3. relationship of activity to surroundings iv. Travel on highways different – P takes a risk c. HYPO – 1947 munitions inspector injured, no recovery i. Not property, no liability ii. Not unnatural use of land iii. Nothing ―escaped‖ d. Losee v. Buchanan (p. 512) i. D‘s steam boiler exploded and was catapulted onto P‘s land and through several building ii. Rejected Rylands – importance of industrialized society – no recovery e. Sullivan v. Dunham (p. 514) (blasted tree on highway) i. P killed by wood from blast while traveling on highway ii. SL appropriate – opposite of highway thinking in Fletcher iii. Same court as Losee, different outcome, why? 1. Hay precedent, p. 515 a. Injury a direct consequence of act (Losee was not) 2. Denison precedent a. Supports Hay – P had right to be there f. Restatement of Torts i. 1st – Ultrahazardous activities 1. risk of serious harm that cannot be avoided with the utmost use of care 2. Not common usage or activity
21
Torts Outline – Prof. Cynthia Bowman Fall ‗06
Adam King
3. HYPO – exterminator uses poison to kill bugs, but commonly used; court says common use by public is important ii. 2nd – Abnormally Hazardous; Factors: 1. High Risk 2. Harm is greater than 3. Can‘t eliminate risk with reasonable care 4. Not a common usage 5. Inappropriate to the area 6. Value of Activity to the community\ 7. Different from Restatement 1 b/c: a. Added last 2 elements b. Standard of reasonable care instead of utmost care i. Poses prob for D b/c if D says could be eliminated w/use of reasonable care and the accident happened, then still negligent iii. Abnormally Hazardous Activities include flammable liquids, pile driving, crop dusting, poison gas, rocket testing, hazardous waste disposal, oil wells, escaping water g. Indiana Harbor Belt Railroad Co. v. American Cyanamid Co. (p. 519) (leaky railcar) i. Posner prefers negligence theory of relief, not SL 1. Likes SL when can‘t eliminate risk under reasonable care 2. Applied 2nd Restatement Factors
i. whether the shipper of hazardous chemical by rail should be strictly liability for the consequences of a spill or other accident to the shipment ii. not to be held strictly liable and remanded for issue of negligence iii. no reason can‘t be negligence case iv. no one suggests that the leak was caused by the inherent properties of the chemical v. it was caused by carelessness vi. accidents that are due to lack of care can be prevented by taking care a. when lack of care can be shown in ct such accidents are adequately deterred by the threat of liability for negligence
b. Elements of Cause of Action Based on Traditional Strict Liability i. Abnormally dangerous activity (argue factors) 2. Substitutes for duty and breach of negligence i. Actual Cause ii. Proximate Cause iii. Damages iv. Contributory negligence is not a defense to SL except when P‘s conduct involves knowingly and unreasonably subjecting himself to the risk of harm from the activity b. Theoretical Perspectives i. Enterprise Liability enterprise should bear the risks of accidents it produce b/c: 1. Superior risk bearing capacity compared to victims. 2. better placed to respond to the safety incentives created by liability rules 3. California (under Green) a. strict liability is imposed b/c the ultrahazardous actor intentionally exposes others to a serious danger – an anti-social act is being redressed b. but not logical reason for creating a public duty exception when the rationale for subjecting the carrier to absolute liability is the carrier‘s ability to distribute the loss ii. Goals of Strict Liability 1. Loss Spreading a. Less social and economic disruption if loss is borne collectively, not individually
22
Torts Outline – Prof. Cynthia Bowman Fall ‗06
Adam King
VIII.
b. Have to decide whether the actor engaging in the injurious activity is an appropriate party to incur and then spread the loss i. Depends on: 1. extent to which the actor was able to anticipate/evaluate the underlying risk, 2. take appropriate steps toa ccumulate resources to insure against loss 3. systematically recapture those outlays by passing them on to consumers c. has no stopping point so need other goals 2. Loss Avoidance (or Risk Reduction) a. Aims at imposing liability in a way that reduces the # and severity of accidents b. Seeks to impose accident consts on those who could reduce accident costs most cheaply c. Less weighty goal than loss-spreading b/c i. Contradiction 1. finessed by asserting that, under SL, the threat of liability operates as an incentive to promote safer conduct, not deterrence ii. Efficacy of general deterrence 1. req. unattainable knowledge of relevant risks by decision makers who don‘t have access to that knowledge iii. threat of liability can over-deter 3. Loss Allocation (or Internalization) a. Internalization rather than externalization of loss b. Induce price-mediated adjustments in production and activity, etc. – allocate to party whose activities allow to reflect loss in cost of product or activity i. Price will increase, but then better choices (more informed) by consumers 4. Administrative Efficienty a. SL may result in settlement rather than long trials but also may result in more cases 5. Fairness a. Victim has right to recover for injuries caused by a risk > in degree and different in order from those created by the victim and imposed on the D i. Belief that b/w 2 innocent persons, the initiator who benefits from the ultimately injurious activity should be liable 1. temporally bound a. no clear understanding of what ―fairness‖ means b. req. consumers to pay higher prices so accident victims can be compensated 6. Protection of Individual Autonomy 7. Reasonableness Paradigm a. Commitment to the community‘s welfare as the criterion for determining who is entitled to receive and who ought to pay compensation Liability for Defective Products a. Introduction i. Privity doctrine originally shielded manufacturers from liability. Strong movement away from this. ii. MacPherson v. Buick Motor Co. (p. 550) (defective wheel)
23
Torts Outline – Prof. Cynthia Bowman Fall ‗06
Adam King
1. if the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger a. if added knowledge that that thing will be used by persons other than the purchaser w/o new tests then irrespective of contract, manufacturer is under duty to make it carefully b. must be knowledge of danger probable, not just possible c. must be knowledge that in usual course of events that danger will be shared by others than the buyer d. proximity/remoteness of the relation 2. D was responsible for the finished product had to do inspection/tests. a. B