DeWolf - TORTS The classic definition of a tort case places the burden upon the plaintiff to show (1) that the defendant breached a duty that he owed to the plaintiff; (2) that this breach was a proximate cause of the plaintiff's injury; and (3) that the plaintiff suffered legally compensable damages. Each subsequent chapter describes one of these components. I. Breach of Duty In General. Tort law deals with cases where the plaintiff has suffered a loss and is trying to shift the responsibility for that loss to one or more defendants. To do so, the plaintiff must first prove that the defendant's conduct was of a type that entitles the plaintiff to be compensated. The two most common forms of conduct on the defendant's part that justify such loss-shifting are negligence and strict liability. A. Negligence Negligence is the failure to exercise reasonable care; reasonable care is what a reasonably prudent person would do in the same or similar circumstances. It is judged objectively, although it may be "customized" where appropriate (i.e., reasonably prudent blind person standard for a person who is blind). When children engage in adult activities (driving, power boating), they are held to an adult standard. In determining reasonable care, one should consider both the potential for an accident and the cost of taking measures to avoid one. Learned Hand's test (Is B < P*L?) is simply a mathematical expression of the intuitive judgment that reasonable prudence, not perfect safety, is expected. 1. Standard of Reasonable care Lussan v. Grain Dealers Mutual Insurance Company a. The “reasonable” person An objective standard based on what society sees as prudent. Under the circumstances, what would a reasonably prudent person do? Vaughn v. Menlove Idiots haystack set fire to neighbors property. Defendant doesn’t want to be held to the standard of an ordinary person because he is stupid. Jury holds him to an ordinary, reasonable, person standard and finds him negligent. TORTS OUTLINE 2 Adams v. Bullock Kid is electrocuted while crossing a bridge swinging a wire. The wire touched a trolley line under the bridge. On appeal the court finds for the defendant. There is a duty to adopt all reasonable precautions to minimize the resulting perils Ordinary caution does not involve the forethought of extraordinary perils. The defendant had done everything it could and had no reason to believe the wires were a threat. b. “Customizing” the standard of a reasonable person The reasonable person standard can be adjusted for minors, disabilities, or emergencies. Robinson v. Lindsay The kids on the snowmobile case. Defendant held to adult level. When kids are doing what kids do, hold them to that standard. When they are doing what adults do, hold them to an adults standard. The standard depends on how severe the injury would be if there was a failure to exercise reasonable care. c. Efficiency The Learned Hand calculation: You are negligent if the cost of preventing the injury is less than the cost of the injury multiplied by the probability it will occur. Basically a cost benefit analysis. United States v. Carroll Towing – the Learned Hand analysis. Bargee was not present, barge got free and sank. The court suggests a mathematical approach may be used in some situations to prove negligence. The owner’s duty to provide against resulting injuries is a function of three variables: (1) the probability it will beak away - P (2) the gravity of the resulting injury – L (3) the burden of adequate precautions - B. Algebraically liability depends on B<PL. It is not beyond reasonable expectation that the barge will have to be moved and that the other people may not take reasonable care. Levi v. Slemco Oil company power line case. Used the same factors as Carroll towing case. Based on those factors you have to conclude someone would get hurt; it’s a matter of law. One judged pointed to partial negligence of plaintiff. New rule, reduce award proportionate to plaintiffs contributory negligence. 2. What Evidence Establishes Negligence? a. Jury experience TORTS OUTLINE 3 The people consider their own experiences in determining what a reasonable person would do. b. The Use of Industry Custom The industry custom is a floor. If a safety precaution is taken by most people in the industry, it suggests that it is what a reasonable person would do. However, a judge may find that the whole industry is lagging behind, in which case doing what every else does is not a defense to negligence. Bennett v. Long Island R. Co. Railroad construction/ “lock and target” case. Ruling for defendant. You must provide a safe work environment, but you do not have to foresee every possible injury; as long as your selection of tools/equipment is reasonable. Industry standards are a way of proving reasonableness. This policy discourages innovation T.J. Hooper Tug sank in rough seas. No radio receiver. Statute requires transmitter only, most ships in the industry did not have receivers. Industry custom is not an absolute defense, especially when there are inconsistencies in the industry. Court reserves the right to call the whole industry negligent. c. Statutory violations There are two ways of viewing statutory violations: 1.) Negligence per se – violation of the statute proves that you were negligent. The jury no longer needs to decide if you used reasonable care. Three things must be proven for negligence per se: a.) Statute was in fact violated b.) Statute was designed to protect against this kind of injury c.) The violation was unexcused. The restatement lists five excuses: 1 The violation is reasonable because of the actor’s incapacity 2 He neither knows nor should know of the occasion for compliance 3 He is unable after reasonable diligence or care to comply 4 He is confronted by an emergency not due to his own misconduct 5 The compliance would involve a greater risk of harm to the actor or to others. TORTS OUTLINE 4 2.) Evidence of negligence – violation of the statute is evidence that you were negligent. Martin v. Herzog No lights on the buggy case. Statutory violation equals negligence. By omitting the lights you are not exercising the diligence that you owe to society. However, this is only negligence if the omission of the lights is the cause of the injury. It was undisputed that lack of vision was the cause, the existence of lights would have given the plaintiff warning. Tedla v. Ellman The people walking on the wrong side of the road, hit by a car. Proves that statutory violation is not always negligence. Excused if obeying the statute would put you in greater risk. Nettleton v. Thompson Plaintiff fell down stairs because of building code violation. Defendant was not excused from obeying the code. Ignorance is not an excuse. d. Res Ipsa Loquitur Where all the evidence has been destroyed or is otherwise unavailable, the courts may infer negligence from the fact that an injury occurred. The restatement lists three items that must be met before negligence can be inferred from the injury: 1 Type of accident doesn’t happen without negligence, and 2 Defendant was in control (exclusive), and 3 Other explanations have been eliminated. Judson v. Giant Powder Co. Dynamite factories don’t explode unless someone is negligent Nobody else could have caused it Defendant had a duty not to blow up his neighbors. Was exclusively responsible for this. Murphy v. Montgomery Elevator Co. Res ipsa failed because other people besides the defendant could have been responsible (the hospital had to approve work). Couldn’t sue employer b/c of Workers Comp rules. e. Evidence of Defendant’s Safety Policies / Rule Book TORTS OUTLINE 5 The defendants safety policies enacted prior to the accident can be admissible in proving negligence. Safety rules are usually enacted to prevent accidents. Post accident repairs are not usually admissible as evidence. Allowing post accident repairs to be used as evidence would prevent companies from preventing further accident because the prevention would be used to prove their past negligence; this would be bad public policy. Exceptions: 1 Show control of the premises – when there is disagreement over who is in control of the premises. 2 Show feasibility of precautionary measures – Defendant says it isn’t feasible. 3 Controverter or Impeachment – “open the door” its admissible if the defendant brings it up. Smith v. Wal-Mart Stores The defendant opened the door to the testimony. Stevens v. Boston Elevated Ry. Co. Streetcar accident would not have happened if operator obeyed employer’s rules. Rulebook violations can be used to prove negligence, just like statutory violations. As long as the rule was made before the accident, no subsequent rules allowed. 3. Establishing Vicarious Liability (Respondeat Superior) Used to attach negligence to a deeper pocket. Usually used to hold an employer liable, but in the case of independent contractors you may be able to get the deep pocket if you can show enough control. To hold someone vicariously liable, you need to show that the negligent act was done in the Course and Scope of the employment. An alternative is to show negligence in hiring. a. Course of employment – On the job. b. Scope of employment – part of the employees duties. Hayes v. Far West Services Inc. Didn’t prove the intoxication was negligent. Three pronged analysis from Dickenson v. Edwards: (1) Was the employee’s alcohol consumption within the scope of his employment, and TORTS OUTLINE 6 (2) Did the employee’s consumption of alcohol while within the scope of employment constitute negligence, and (3) Did the negligent intoxication continue until the time of the incident and constitute a proximate cause of the injuries. B. Strict Liability 1. Distinction between Strict Liability and Negligence If a court imposes strict liability, the defendant will be liable without proof of fault or negligence. This is usually done for policy reasons. Helling v. Carey The glaucoma case. Ruled for the plaintiff. Where the test is simple and inexpensive, and the consequences of not diagnosing the disease in time are grave, the doctors should administer the test. No proof of fault. 2. When is Strict Liability imposed? a. Abnormally Dangerous Activities The defendant is carrying on an activity with a very high degree of danger. The activity may produce injury even when reasonable care is used. The magnitude of the harm is often so great that the plaintiff would have no way of avoiding the risk. 1. The defendant is liable even though he has exercised the utmost care to prevent such harm. 2. The liability is limited to the kind of harm, the risk of which makes the activity abnormally dangerous. In determining what constitutes an abnormally dangerous activity, the restatement §520 sets forth six factors: 1 Degree of risk 2 Gravity of harm 3 Whether the risk can be not be eliminated by reasonable care 4 Whether the activity is inappropriate to the place where it is carried on 5 The value of the activity to the community. Siegler v. Kuhlman Gasoline spill case. Abnormally dangerous activity. Fault does not need to be proven. Policy; defendant can pass along the cost. b. Invasion of Property Rights – Nuisance A party is doing something on their property that a neighbor has a reasonable expectation of being free from. Its not negligence because TORTS OUTLINE 7 the offending party may be using reasonable care in the operation of their facility. 1. Public nuisance – activity forbidden by statute 2. Private nuisance – Irritates your neighbor. Violates neighbor’s rights because of proximity. “Coming into the nuisance” may negate the plaintiff’s expectations. Fletcher v. Rylands The reservoir that flooded the neighbors mine. The case gives rise to the abnormally dangerous activity doctrine, and the nuisance/trespass doctrine. Neighbor has a right to be free from foreign water. Bohan v. Port Jervis Gas and Light Co. Plant emitted odors and destructive gases. Neighbor has a reasonable expectation that he will not be annoyed – nuisance. Boomer v. Atlantic Cement Co. The cement plant case. The court granted an equity remedy. They gave an injunction until the defendant paid the neighbors. Forced the neighboring properties into servitude. The court didn’t want to do anything about it because they thought legislature should do it. Spur Industries v. Del E. Webb Development Co. The feed lot case. Web developed land next to the lot, then wanted an injunction. Brings up the “coming to the nuisance” defense. Court found public as well as private nuisance. Because of public nuisance, they can’t find in Spur’s favor. But, they made Webb pay Spurr. If the nearby city would have grown outwards, Spurr would have been shut down. c. Animals The traditional notion is that you had to be on notice before you are strictly liable for injuries caused by your animal, if not on notice you must only exercise reasonable care. The dangerous propensities of the animal may put you on notice; i.e. wild animal, trained to bite, bitten before, breed of animal, etc.. Statutes may govern the liability of the animal’s owner. Statutes can be worded in two ways: 1. Violation serves as negligence per se. 2. Statutory strict liability. Williams v. Johnson. TORTS OUTLINE 8 Dogs chased mailman who hurt himself getting away. Found for defendant. The plaintiffs didn’t bring up the statute at trial. Without the statute, they had to prove the defendant was on notice. II. CHAPTER 2 PROXIMATE CAUSE Introductions Tort law has generally divided the question of proximate cause into two separate inquiries, both of which must be affirmatively answered by the finder of fact: (a) But -for causation (also called cause in fact): Can it be said that the injury would not have occurred but for the defendant’s conduct? (b) Legal cause: was the defendant’s conduct closely enough related to the plaintiff’s injury to make it fair to hold him liable? Cause in fact will generally be proven if it can be said that the injury would not have occurred but for the defendants conduct. Exceptions: (a) Substantial factor test - the defendant would be a cause in fact if the jury found its act was “a material or substantial element” in producing it. Mitchell v. Gonzalez The kids that drowned after they fell out of the paddle boat. In order to recover, the plaintiff must prove Breach of Duty (negligence) and that it caused the injury. Proximate is the contemplated word. The breach of duty was when they stopped supervising the kids. There was a bunch of time and other events between the time of the breach ad the injury. The instruction might lead the jury to look for an act that causes the injury immediately A. But-For Causation (Cause in Fact) Traditionally you would prove that but-for the defendant’s conduct, the accident would not happen. But, quite often there are a number of different acts that contribute to an accident. In addition, how are you supposed to know for certain what would happen if the defendant had not been negligent? 1. The traditional Burden of Proof Hull v. Merck & Co Plaintiff was exposed to a bunch of benzine (stuck his head in a pipe). The court held that the exposure was not a proximate cause of the cancer. Reason: the plaintiff’s expert made some assumptions about the level of exposure; he admitted that the level of exposure could not have caused the disease. Lesson: Don’t skimp on experts. Reynolds v. Texas & Pacific Railway Co. Plaintiff claimed that poor lighting was why she fell down stairs at the defendants train station. The court held that the lighting was a proximate cause of the accident. The plaintiff did not need to show that the lighting was the only cause of the fall, only that the defendant’s actions multiplied the possibility that an accident would occur. TORTS OUTLINE 9 2. Modifying the But-For Causation Requirement a. Excusable Inability to Identify the Defendant Where two or more defendants commit substantially similar negligent acts, one of which caused the plaintiff’s injury, the burden of proof shifts to each defendant to each defendant to show that he did not cause the harm. If they cannot make that showing, both will be held liable for the plaintiff’s loss. However, this will not apply if you can not prove that both defendants were negligent or that their negligent acts were of a different nature. Summers v. Tice Two hunters shot in the same direction, a pellet hit the plaintiff in the eye. The court held both hunters liable even though the P could not prove whose pellet hit him. In order to apply alternative liability, (1) All the defendants were negligent and could have caused the injury, and (2) All the possible tort feasors have been joined in the action, (3) Therefore the party who caused the injury is among them. In alternative liability we know the defendants were negligence, but we don’t know if he caused the injury. Sindell v. Abbott Laboratories DES case. Daughters whose moms took the drug while they were pregnant were able to recover even though they couldn’t prove which company manufactured the drugs their mothers were taking. Defense files a motion for failure to state a claim because she can not identify a manufacturer so can not prove a proximate cause. General rule: The imposition of liability depends upon a showing by the plaintiff that his or her injuries were caused by the act of the defendant or by an instrumentality under the defendant’s control. Exceptions to the rule: (1) “Alternative liability” the burden of proof of causation upon tortuous defendants in certain circumstances (summers v tice). This theory won’t work in this case because she can not be sure one of the defendants is the one who supplied to drug. (2) Defendants acting in concert. Example – the drag race. Where you have a joint agreement to engage in negligent behavior, where someone gets hurt, they do not have to prove who caused the injury because all the people who encouraged the activity should be liable. Plaintiff says all the manufacturers are taking part in the action. The problem is, that the companies are not acting in an agreement. They are doing the same thing, but they do not have an agreement between them. (3) “Enterprise liability” aka “industry-wide” liability; identify the industry that caused the injury. Hall v. Dupont – the blasting cap case. If you can establish that they had the opportunity fix the problem and they didn’t, they can all be held liable. The blasting cap makers had a trade organization and shared advertising etc.. In this case, it is the food and drug administration that sets the standards. This is different from the industry that meets together. TORTS OUTLINE 10 (4) New approach this court comes up with, extension of the summers doctrine, “market share” liability. Each defendant is responsible for the judgment in proportion to their market share. Works best for generic products – they share the same formula We are ignorant of who caused the damage, but the policy that it would be better shift the burden of proof to the defendant than the plaintiff; kind of like the dynamite factory res ipsa locquitor case. Brown v. Superior Court Another DES case. ....... Edwards v. A.L. Lease & Co. ABS pipe case. The plaintiff wanted to sue the wholesalers even though they were already recovering from the manufacturers. The market share liability approach doesn’t stand for two reasons (1) they were able to identify the manufacturers, they have the defendants already, they are just trying to pull in additional people. (2) The other reason for tossing out market share liability is the fact that we are not dealing with a fungible product here. Fungible product: one product is not different from the other, brand name doesn’t matter; it can be hard to determine if a product is fungible or not sometimes. The DES from the other case all used the exact same formula and we had no idea which company made it, but that is not the case here. The products here are distinguishable because you can look at them and know exactly who made them. The market share liability is a last resort remedy. Since they have a remedy, we will not apply market share. b. Loss of a chance If a defendant reduced the decedent’s chance of survival, the jury may be allowed to value the damages in proportion to the chance lost due to the defendant’s negligence. However, it can be argued that allowing a plaintiff to be compensated based on this theory would cause over and under compensation. If the decedent would have died anyway, the plaintiff gets over- compensated. If the defendant’s conduct did in fact cause the death, the plaintiff is under- compensated because the only get a portion of the recovery they should be entitled to. Dillon v. Twin State Gas & Electric Co Kid grabbed an electric wire while he was falling off a bridge and died. But for causation – without the negligence, the accident wouldn’t occur. But for the defendants placement of the wire, the boy would have survived. Legal cause - the defendants negligence was a substantial factor. Loss of chance theory, the plaintiff would like to say they are entitled to recover an amount in proportion to the chance of recovery they would have had if the defendant wasn’t negligent. TORTS OUTLINE 11 Hardy v. Southwestern Bell Telephone Co. Plaintiffs wife had a heart attack and they couldn’t call an ambulance because the phone company was messing with the phone lines for concert ticket sales. The court held that the plaintiff could not recover. Policy: if we wanted to apply the theory, it would encourage doctors to be negligent when the chance of recover falls below 50%. Patients with pre-existing conditions would be in peril. So, in the medical field we recognize the lost chance theory. Applying it outside the medical field, would we have to allow the plaintiff and the defendant to prove certain percentages. According to the plaintiff we need to look at the statistics on the chance of recovery if the wife would have received prompt treatment. Treat it like a lottery ticket; if you had a one in eight chance of winning $1 million, it should would be worth $125,000. In this case the plaintiff says he has X% chance of saving his wife, if someone takes it away they owe him. Should the plaintiff be able to recover for the value of the chance that his wife would have been able to recover? c. Multiple Redundant Causes: The “substantial factor” test If one of the defendant’s would have put a warning label, would the ultimate injury still occur? In as Purcell v. Asbestos Corporation, Ltd. Products liability, failure to warn case against a bunch of asbestos manufacturers. Substantial factor test: If the defendants products combined to create an increased risk of harm, a jury may conclude the products were a substantial factor in causing a plaintiff’s injury. A single exposure could cause the disease, but all of the exposures added to the likelihood of contracting the disease. Were there are multiple redundant causes of the injury, each of which is enough to cause the injury by themselves; we will use the substantial factor test. B. Legal Cause: Policy Considerations Precluding Liability 1. Increased Risk v. Mere Chance Berry v. Sugar Notch A tree fell on a speeding streetcar. Claiming that the speed brought the car to the site at the exact moment that the tree fell on it is completely unpredictable. The same thing might have happened to a car traveling below, above, or at the speed limit. Is he negligent in speeding? Yes. TORTS OUTLINE 12 Can we say that BUT FOR his speeding the accident would not have happened? Yes. We have one prong of proximate cause. What about the legal cause? His actions did not make the accident more likely to occur. The court compares to running to a tree that is laying on the track. If the tree was laying on the track, the speed would have made it harder for him to stop before hitting the tree. Channel v. Mills Defendant T-boned the plaintiff’s car at a controlled intersection. Proximate cause is subdivided into cause in fact (but for) and legal cause. Cause in fact is a cause but for which the accident would not have happened. Legal cause is a cause in fact that warrants legal liability as a matter of social policy. A cause is “proximate” only if it is both a cause in fact and a legal cause. Speed is not a proximate cause if it does nothing more than bring two drivers to the same location at the same time. It can not be said that Mills hit Channel because he was driving over the speed limit; rather it can only be said that Mills hit Channel because Mills was not driving at a speed different from 51 MPH. There can be an exception if additional evidence shows that but for the excessive speed, the driver would have been able to brake, swerve, or otherwise avoid the impact. What about the plaintiffs expert who said the field of vision would have been different if he was going slower, and probably would have been able to see the danger and apply the breaks? The expert can not prove that the average person would have stopped. He only says that you would be able to see the other person coming, and would have a better chance of stopping. But, you would not be looking for someone run a red light, so the expert should have testified that the defendant would have had enough time after realizing the plaintiff was running the light, not just that he could see her coming. 2. Superseding Tortfeasors: Breaking the Chain of Causation Crowe v. Gaston Case of the drunk minors. In order to prove an actionable claim for negligence, Crowe must show (1) the existence of a duty to the plaintiff, (2) a breach of that duty, (3) a resulting injury, (4) the breach as a proximate cause of the injury. The duty can be proven through the statutes that prohibit the sale of alcohol to minors. The policy behind the statute being concerns about minors driving while intoxicated. Proving items 1-3 isn’t hard. As for proximate cause, it has to be shown that the injury was foreseeable. The court does not think the injury is too remote to be foreseeable, and thinks that public policy would be best served by holding vendors liable for the foreseeable consequences of illegal sale of alcohol to minors. Oscar’s also claims that the acts of Rettenmeier and Fitzpatrick serve to break the chain of causation. Cause in fact requires sufficiently close, actual, causal connection between defendant’s conduct and the actual damage suffered by the plaintiff. The defendant’s action is TORTS OUTLINE 13 the cause only if there is not another independent action that causes the injury (breaks the chain). Were another action breaks the chain of causation it is called “superseding cause”. Only intervening acts that are not foreseeable can supersede. It is for the jury to decide if the acts of the other minors were not foreseeable; i.e. highly extraordinary or improbable as to be wholly beyond the range of expectation. As for the second claim, the court holds that social host liability does not extend to injuries to third persons because social hosts are not capable of handling their guest alcohol consumption like commercial hosts are. Commercial vendors have a profit motive and should be expected to exercise greater supervision. The statute the plaintiff is relying on was enacted to protect the minor themselves, not third parties. DISSENTING/CONCURRING: Three judges think that social hosts should be liable to third parties. Liney v. Chestnut Motors Repair shop left the keys in a customers car, which was stolen and used to run someone over. The thief’s negligent driving superceded the defendant’s negligence because it was not foreseeable that a thief that couldn’t drive well would steal the car and run someone over. It could be foreseen that the car might get ripped off, but that’s it. Therefore, the defendant owed no duty to the plaintiff. Usually proximate cause would be for the jury, but because it is so remote here, it is a question of law. DeWolf disagrees. Thinks it is reasonable to foresee that a thief would be a bad driver for several reasons. Ross v. Hartman Defendant left his truck in an alley with the keys in it (against an ordinance), it was stolen an ran over the plaintiff. By creating the hazard an ordinance intended to avoid and bringing about the harm the ordinance intended to prevent, it is legal cause of the harm. The ordinance intended to promote safety on public streets. There isn’t much more risk that an unlocked vehicle will be stolen than an unlocked bicycle, but there is a much greater risk that a stolen car will result in public injury. Since the ordinance was a safety measure, its violation was negligence. This negligence brought about the harm the ordinance intended to prevent. It was therefore a legal or “proximate” cause of the harm. The risk was both obvious and prohibited. The action of the thief, itself a proximate cause of the harm, is immaterial. The statute shows that the injury was foreseeable; therefore leaving the keys in the truck can be a legal cause of the injury. 3. Remote and Indirect Results of Negligent Conduct TORTS OUTLINE 14 Recognize the issues where this will come into play and discuss what the plaintiff will say and what the defendant will say. Only arises where reasonable minds could differ on the causation issue. Cordozo/Andrews split: Doesn’t matter unless we are looking at a case where the defendants negligence injures someone that is unexpected. Example, the exam question about a truck tire that fell off, car swerves, hits ambulance on its way to help heart attack victim. Cardozo - could you forsee that a tire falling off a truck would injury the heart attack victim? Not a question for the jury. Andrews - would give the question to the jury. Palsgraf v. Long Island R. Co. Andrews says you should look at the behavior itself. Is it negligent to push someone onto a train. Then, it is a proximate cause of the injury. He’s looking at it from a policy standpoint - if jury thinks the defendant to pay, make him pay. A guy was pushed onto a moving train, dropped a package of fireworks, they exploded and caused some stuff to fall on a lady a distance away. The conduct may have been wrong to the holder of the package, but was not a wrong in relation to the plaintiff, standing far away. There was no duty owed to the plaintiff, the observance of which would have avoided the injury. The scope of danger defines the duty. Palsgraf was outside the “zone of danger” or the area where a reasonable person could anticipate a risk. Seems to think that anyone who is injured by a negligent act should be able to recover. It doesn’t matter if someone’s rights are violated or not, where an act is unreasonable, the actor is negligent. There can be negligence without an injury. Four concur, three dissent. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. (2-59) It appears that there is a foreseeability factor that the court is looking into. The injury was too remote to be foreseeable. Cardoza thinks this is a duty of care case. Andrews thinks this is a proximate cause case. Andrews. Distinguishes but for cause and legal cause, Kinsman Transit Co. The barge that got loose and messed up all kinds of stuff. Ended up with the flooding of a town because the barge got lodged under a bridge. Cordozo thinks that there must be a degree of forseeability between the defendant and the plaintiff. Kind of zone of danger type of deal. Under Cardozo’s theory from Palsgraf the guy tying up the boat would ask himself, “if I screw this up, how bad can it get?” Same question for the bridge operator who was in the bar. We TORTS OUTLINE 15 can’t impose liability on these people because of bad luck and unforeseeable accidents. Look for the zone of danger. Andrew’s theory from Palsgraf applied to Kinsman would by question the proximate cause. It’s a function of expediency, common sense, forseeability, etc. The majority in Kinsman takes Andrew’s position. The make the bridge operator liable because the city has the money to pay for it. Make them The dissent doesn’t think that it should depend on who has the deep pockets. For the exam it doesn’t matter as much to distinguish between Cardoza and Andrews, but spot the issue “this is a palsgraf argument, the plaintiff will claim?, the defendant will claim?” Harris v. R.A. Martin, Inc. Overloaded dumpster fell on the garbage man. Duty is defined in terms of foreseeability, it also involves policy considerations including “the likelihood of injury, the magnitude of the burden of guarding against it, and consequences of placing that burden on the defendant”. DISSENTING: The majority places too much emphasis on the issue of forseeability. III. CHAPTER 3 DAMAGES Introduction A. Types of Recoverable Damages 1. Property Damage McDaniel v. Linder Plaintiff recovered for damage done by defendant’s boat battery explosion. The best way to determine damages is the difference in fair market value before and after the damage. Other methods can be used if FMV is not available or would not be reliable. Before the damage the boat was worth $7300. After $333 was expended, the boat was worth $4800. The proper amount of the award should be 7300-4800+333=2833 The amount of the remittitur in such cases is fixed by the highest estimate of the element of damage affected by the error. 2. “Economic” Losses a. Lost Wages Lost earnings: The wages lost from the time of the injury until the time of the trial. TORTS OUTLINE 16 Pretty easy to calculate; look at his earnings record for the period immediately prior to the accident, evidence of his likely advancement had he not been injured, and evidence concerning changes in the salary structure of his employer up to the time of trial. Lost earnings capacity: Loss of future earning potential. First the jury has to determine how long the plaintiff would have worked if he had not been injured. This may depend on the type of work he did, his life expectancy, state of health prior to the injury, and level of interest in his work. Other factors that might have led him to retire early must also be considered, such as a spouse’s retirement, an unrelated medical condition which could cause him to move to a different climate, or an anticipated inheritance. Second, the jury will have to determine what type of work the plaintiff would have done if he had not been injured. For plaintiffs with a long established work history, this may be clear, but in other cases it is not. Maybe the plaintiff had just been accepted to business school, maybe just graduated magna cum laude from Berkeley, maybe was a partner in a law firm but hated his job so much he wouldn’t have lasted another month. Maybe not working at all, but was going to return to work, or was 5 years old and had not work or educational history at all. The jury will consider such factors as prior advancement in the plaintiffs job, projected future fortuned of his employer, general state of the sector of the economy in which he worked, the prospects that he would have been promoted or moved to a more lucrative position with another employer, possible alternative employment he may be able to find after his injury, and doubtless many other unique to each plaintiff’s circumstances. In order to fully compensate the plaintiff, the jury should also consider fringe benefits, such as health insurance, a company car, educational credits, bonuses, stock options, retirement fund partially funded by the company, etc. O’Shea v. Riverway Towing Riverboat cook is injured and is awarded lost wages, but the computation is being challenged. Defendant says that the plaintiff has never worked a full year before. – Court says previous wages do not put a cap on an award of lost future wages. Inflation needs to be treated consistently in choosing a discount rate and in estimating the future lost wages to be discounted to present value using that rate. It is unfair to leave inflation out of one the calculations. There are two ways to calculate the lost wages: (1) Do not factor in any wage increase and do not factor inflation into the discount. The discount is based on the estimated real interest rate (interest rates include a speculation about what inflation is going to do). (2) Use a discount rate based on risk free 10yr interest rate and apply the discount rate to a lost wages figure that includes an inflation figure. Ex. If the 10yr rate is 12% and the risk free rate is 1% - 3%, then inflation is expected to be 9% - 11%. Posner said the trial judge should have factored in the probability that she would have got another job – even if the probability was very small. But, the defendant didn’t suggest it, so the appellate court will leave it alone. TORTS OUTLINE 17 Posner – you should use 1% - 3% growth even without inflation. When you factor inflation into the future wages, you must use an inflation factor in discounting it. For exam you do not have to do a huge calculation, but know the magnitude of the damages you can ask for. What kind of damages, and what can they add up to? Take into account the medical bills, the wages, the age (what is their income potential) b. Medical Expenses The plaintiff is entitled to compensation for all medical costs of diagnosing and treating the injuries resulting from the tort, such as doctor and hospital bills, medicines and special therapeutic equipment, rehabilitation therapy, travel for medical treatment and on-going nursing care. Past medical expenses are relatively easy to value, but future medical expenses are extremely difficult to evaluate. 3. “Non-Economic” Damages - Pain and Suffering Pain and suffering can cover a lot of injuries: physical pain from the impact of an accident, on-going pain from a wound, long term discomfort from a permanent condition, and pain of medical procedures to treat the injuries. Also includes mental suffering, such as humiliation, anguish, or embarrassment suffered from living with permanent disfigurement, the frustration of dealing with disability caused by the injury, the fright associated with a traumatic accident, fear of a recurrence of the accident, or depression induced by the injury and its consequences. Therefore, “pain and suffering” is a catch-all that can encompass almost any kind of subjective reaction to the accident or its consequences. The sensations are highly subjective and there is no scale or mathematical process jurors can use to reach a dollar figure to compensate the plaintiff for them. The jurors are simply instructed to pick a number and be objective, even if there are no objective guideline to apply. Loss of Enjoyment of Life: Some court see this as part of the “pain and suffering” others see it as a separate claim as damages. It comes down to whether or not the jury will get an instruction on this loss in addition to the pain and suffering. Loss of enjoyment of life is intended to compensate for the limitations on the person’s life created by the injury. Examples: loss of the ability to play tennis, walk in the woods, carry son to school, dance, or many of life’s other common, pleasurable experiences. Disability and permanent impairment: These terms overlap with a lot of other damages in the pain and suffering category. It actually refers to the injured party’s condition, not to the losses suffered as a result of the condition. This can create confusion with the Loss of Earnings Capacity and Loss of Enjoyment of life. Many courts use the term “disability” loosely as an equivalent to Loss of Enjoyment of Life. However, it should be noted that it is the condition of being disabled that leads to the consequence of loss of enjoyment of life or loss of earnings capacity. Morse v. Auburn and Syracuse Railroad Co. TORTS OUTLINE 18 Train accident. When someone is awarded damages for personal injury and mutilation, pain and suffering is part and parcel of the actual injury. It his harder to determine what the damages are when compared to lost time or money, but the loss is no less real. Not paying for those injuries would leave the plaintiff under-compensated. Pain and suffering is not punitory, but strictly compensatory. Spade v. Lynn & B.R. Co. Old lady was “scared stiff” by a fight on defendant train. In a negligence case there can be no recovery for fright, terror, alarm, etc. when there is no physical injury. There can be no recovery for such physical injuries as may be caused solely by such mental disturbance, where there is no injury to the person from within. Carrier of passengers should not have to look out for people who are over sensitive. This would open the door for unjust claims. If you are only mentally disturbed – no recovery. You need a physical injury. If the mental disturbance causes a physical injury, you can recover. Exceptions: (1) Cases where the mental harm is intentional (2) There is gross carelessness or recklessness showing utter indifference to such consequences. Flood gates: If we start allowing certain types of claims, we would open the flood gates of litigation. Temple-Inland Products Corp. v. Carter Plaintiffs were exposed to asbestos from drilling holes in desks at defendants labs. Haven’t developed any disease yet, but want to recover for mental anguish. There must be a physical injury. They must develop the disease. If they allowed recovery for these types of cases, it would be very hard for judges to determine which claims are serious and which ones are not. It would lead to inconsistency The courts are busy already, allowing people to bring these suits would cause a lot more litigation. People would be bringing suits just in case they developed a disease someday. There is a lot of uncertainty that exposure to asbestos will eventually develop into a disease, even though the risk is significantly increased. There is kind of a physical injury; there are tiny particles in their lungs, but it hasn’t developed into a disease. SOL begins to run when all of the aspects of your claim are satisfied. Breathing the particles doesn’t start the running of the clock; you need to have some manifestations. TORTS OUTLINE 19 The court doesn’t want to give an award because there is a chance the disease will never develop. There could be overcompensating and under-compensating. In addition, if they give an award now, what if it isn’t enough when he develops the disease. Plaintiff failed to establish a physical injury that had manifested itself in a way the court could allow recovery. Johnson v. State of New York Hospital mixed up the dead people. Recovery for emotional harm may not be disallowed so long as the evidence is sufficient to show causation and substantiality of the harm suffered, together with a guarantee of genuineness. The hospital owed a duty to refrain from such conduct, a duty breached when it negligently sent the false message. The false message and the events flowing from its receipt were the proximate cause of claimant’s emotional harm. Hence, claimant is entitles to recover for that harm, especially if supported by objective manifestations of that harm. One does not need to be held liable for extraordinary consequences, but in this case the consequences were foreseeable. Defendant said they will pay for the economic damage. Plaintiffs way around the general rule prohibiting recovery for emotional distress without physical injury is a couple cases where the courts have made exceptions. (1) Negligent transmission by a telegraph company of message announcing death (this one applies if the person has died, but …) (2) Mishandling of the corpse (the other family could sue for this, because it was their corpse. The plaintiff uses these exceptions to show that this is a way to prove the genuineness of the claim. Even though these exceptions don’t apply, they are there because the courts need a guarantee that the claim is genuine. Steinhauser v. Hertz Corporation Girl went nuts after a car accident. 1) In New York they got rid of the physical injury requirement, as long as there are physical symptoms, which are capable of clear medical proof. 2) There was not evidence that the plaintiff already had the disease, but it looked like she was a prime candidate. Recovery will not be barred if it can be shown that the accident was a precipitating cause. 3) An appropriate discount should be made for the damages that would have been suffered even in the absence of the defendants negligence. It is for the jury to decide if she was going to be crazy in the future; not for the psychiatrists to decide. It is for the jury to decide where experts disagree. TORTS OUTLINE 20 4. Punitive Damages Moran v. John-Manville Sales Corporation Plaintiffs husband died from asbestos related disease. Trial court awarded compensatory and punitive damages. Generally, carelessness will get you a compensatory award, ill will or malice will get punitive damages. The court says that a flagrant indifference is enough. Policy: Defendant says that punitive damages would not be a deterrent because they no longer make the product, the people who made the decisions are long gone, etc. Court says following this rule would make the corporate veil an impenetrable shield against punitive damages. Defendant also says that punitive damage award will destroy them because there are so many people in line to get paid. They will run out of money before they have a chance to pay all the compensatory damages, because they will be paying such large punitive damage awards. The court thinks they should ask the legislature to change the rules, they are just a court. There are different levels of culpability. Examples in ascending order: Nobel prize, reasonable care, negligence, recklessness/flagrant indifference, intentional ill-will. The court says flagrant indifference is enough to award punitive damages. There does not have to be intentional ill-will, but if act recklessly you can be liable. Grimshaw v. Ford Motor Co. The Pinto case. Jury awarded a bunch of punitive damages, trial court reduced the award. Punitive damages: must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences. Punitive damages: you need to show “malice” or a “conscious disregard of the probability that the actor’s conduct will result in injury to others”. Remittitur: a procedural device. The judge says “I agree with the defendant that something is wrong with the verdict, If you (the plaintiff) agree to reduce the award, I will not grant a new trial”. The opposite is Addditur. In awarding punitive damages, you look at the defendants net worth, profits, etc. You do not look at these things in compensatory damages, but for punitive damages you do. The judge may have reduced the award because he is thinking that there will be a bunch more cases like this, so an award of $3.5M for each case will have a sufficient effect on punishing the defendant. We have kind of a vicarious liability issue because the management of the company did something very egregious. This decision was not made by someone on the assembly line, it was made by the management in course and scope of their employment. In order to get Vicarious Liability we need a management decision by someone who is in a position to speak/make TORTS OUTLINE 21 decisions for the company; or a decision by some lower level person which is ratified by someone up the line who is in a position to make the decisions. BMW, Inc. v. Gore Doctor bought a BMW that turned out to be repainted. Jury awarded $4million in punitive damages, court of appeals reduced, U.S. supreme court said the award was excessive. Factors used to consider punitive damages (A) (B) Difference (ratio) between compensatory and punitive damages (C) Difference (ratio) between civil and criminal fines, if a criminal fine would have been warranted. Justice Scalia thought it was wrong for the supreme court to mess with the state court decision. Dewolf: Punitive damages are a form of leverage for the plaintiff, so they can convert a case into one that scares the defendant. It is hard to see exactly where the court will allow punitive damages, you can not exactly determine where the behavior of a defendant will be a flagrant disregard. To the extent that you can meet the standard of flagrant/reckless disregard, it allows a plaintiff to get punitive damages and convert the case into one that is substantial. 5. Attorneys Fees B. Related Parties: Who Else Is Entitled to Compensation? Look at the statutes. The plaintiff will be wondering if they fit into one of the catagories of people entitled to recover. The defendant will be concerned with who (how many) will be able to line up at the cashiers window. 1. Wrongful Death The key is look at the statute! It will tell you who can recover and what they can get? Wrongful death and survival claims are governed by statute. Who may bring a claim and what may be recovered must be determined by the statute. Wrongful death claim: A claim for damages for tortiously causing the death of another. Damages are measured by the loss to the statutory beneficiaries. Economic (pecuniary) and non-economic damages may be recovered. Pecuniary damages include medical and funeral expenses, as well as the loss of financial support that the beneficiary would have received from the decedent. The non-economic damages can include things such as mental anguish and suffering of the beneficiary, loss of society, companionship, marital care, attention, advice, etc.; note that some of these damages might be included in a claim for loss of consortium. Under the Loss-to-estate rule economic damages to the estate are calculated based on the plaintiffs life expectancy but for the defendants negligence. The estate can basically TORTS OUTLINE 22 recover for everything it would have received after the plaintiff’s other beneficiaries would have took their cut of thedecedents pay check. The estate looses out in cases where the decedent is retired and is living off of their savings; or if the decedent doesn’t make enough money to be able to save anyway. Survival claim: A claim brought by the representative of the estate of a deceased person for injures suffered by the decedent before her death. Allows the estate of a decedent to enforce a tort claim for damages suffered by the decedent before death, which she could have enforced personally had she lived. Try to reconcile this with what DeWolf said. Moragne v. States Marine Lines First National Bank of Meadville v. Niagara Therapy Manufacturing Corporation Somebody dies in a plane crash. The executor of the estate sues under wrongful death and survival statute. Wrongful death: Who? The widow and children. What? In Pennsylvania, economic loss. Does not include non-economic loss. How to calc.? Out of his earnings, the court looks at three uses, (1) himself, (2) his wife and daughters, (3) his estate. Under the wrongful death the wife and daughters get what contributions the husband would have made over the course of his remaining life expectancy. Under the survival act, the estate recovers for what would have been in his estate at the end of his expected life. What is recoverable? In some states economic and non-economic (loss of enjoyment of life, etc.). In Pennsylvania only economic loss. They take the present value of his earnings for his life expectancy, then subtract the present value of what he would have paid for his maintenance and his wife’s maintenance. The residual amount is considered to be the amount he would have contributed to his estate. On exam look at who your client is. Are they primarily benefited, or secondarily benefited, On defendant side, all you care about is the total dollar amount. Feldman v. Allgheny Airlines Lady who had been accepted to law school dies in a plane crash. Connecticut compensates for loss of earnings capacity as well as loss of enjoyment of life’s activities. Where a decedent suffers both at the same time, each must be valued independently in relation tot eh elements particular to it. Under this statute there can be recovery for loss of earning capacity and loss of capacity of enjoying non-remunerative activities. Trial judge says that the value of the eight child raising years is the same as if she was still working at the wage just before she had kids. Doesn’t calculate the two kinds differently. TORTS OUTLINE 23 2. “Wrongful Birth” and “Wrongful Life” Only applies when they otherwise would not have had a child. They need to have the decision whether or not they want to take the risk of having a child. University of Arizona Health Science Center v. Superior Court Poor guys vasectomy didn’t work. Three views for damages: 1. Defendant rule - child birth costs only 2. Plaintiffs rule - Debits only - including cost to raise the kid and emotional costs 3. Net benefits rule - All the costs offset by the benefits of having a child. We are putting the parents in a position where they will get more money by not bonding with their kid. The smaller the benefit the bigger the award. Policy: Plaintiff - They should be compensated in order to encourage more careful procedures. Doctors will be more careful. Defendant - “The child will be an emotional bastard”. The kid may find out about the case and find out that their parents didn’t want them. And by suing they are saying “our lives are worse off now that we have this kid”. If they said that they could have had an abortion or gave it up for adoption, there would still be a suit, and they would have to try to figure out the damages - mental/emotional. Haberson v. Parke-Davis Medical malpractice. Doctor said it was OK to have kid while on medication, but they turned out messed up. Wrongful Birth: The damages are just like the University of Arizona health Science center case. Net benefits analysis. The parents should recover the cost in excess of raising to normal kids as well as mental anguish and emotional stress. Wrongful Life: in a wrongful life case the kids are essentially claiming that their lives would be better off if they were not born. If there was another medication that she could have taken, that would not have had the same effects, the wrongful birth suit goes away. I.e. they made the choice to have kids and chose between the drugs. Without alternative treatments it is kids or no kids. Taylor v. Kurapati 3. Bystander Injuries No set rule. Just evaluate the factors to make your arguement. TORTS OUTLINE 24 Dillon v. Legg Mother sees girl get hit by car. Suit for emotional injuries Three factor Criteria (not test) (1) was plaintiff near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. Hegel v. McMahon Guy gets hit by car and is laying in a ditch all messed up when some family members get to the scene. Kid on motorcycle hits a bus and his dad gets to the scene as he is dieing. A family member may recover for emotional distress if he or she arrives at the scene shortly after the accident before substantial change has occurred in the victim’s condition or location. The emotional distress must be reasonable, and the plaintiff must present objective symptoms of the distress that are susceptible to medical diagnosis and proved through qualified evidence. 4. Loss of Consortium Loss of Consortium is compensation for the interference with the relationship. Not the grief or sadness a spouse feels, but the emotional loss stemming from the inability to carry on services performed or activities enjoyed before the injury, or that they would have had in the future. Most commonly these suits are brought by spouses of injured parties, but some courts (not very many) allow children to bring actions for injuries to a parent or parents for injuries to their children. The reasons courts are reluctant to recognize a claim brought by someone other than the spouse relate to the lack of precedent; and such claims would be a burden on defendants and insurers since many parents have a number of children. Rodriguez v. Bethlehem Steel Corporation Pipe fell on a guys head and paralyzes him. His wife sues for loss of consortium. Previous CA cases said they would not recognize loss of consortium, particularly in Deshutel case. Part of the problem was the belief that the wife’s interest gets merged into the marital estate, so she can not make a claim on her behalf. Husband and wife are one. The court thinks this is kind of an old view. The court is also concerned about double recovery, if he recovers, giving her some cash is double recovery. The court recognizes that she has a loss that is separate from his. TORTS OUTLINE 25 Another problem is the speculative nature of the damages. But, this is what juries are for. What about opening the floodgates? The court decides to deal with this problem when they get to it. What if they split up after a couple years? Should that affect the consideration of damages in these sorts of cases? Borer v. American Airlines Mother is injured by falling light fixture at an airport. Her nine kids want loss of consortium. Plaintiffs problem: They have nine kids. It looks like you are opening the flood gates. The court is thinking, if we don’t stop here, where will we. The dissenting opinion says that the majority opinion has just agreed (or disagreed) with all the arguments in Rodreguiz. The court says that it would be too hard to put a value on it, etc. but in Rodreguiz they said it wasn’t a problem. A good plaintiffs lawyer would have added this to her injury. Ie. “I can’t take care of my children the way I used to” Inflate her damages by the amount that is needed to compensate for the loss of ability to care for he kids. The court distinguishes Dillon v. Legg on the issue of physical injury. In Dillon, the court didn’t really pay any attention to the injury. C. The Size of Damage Awards 1 How Much is Too Much (or Too Little)? Fortman v. Hemco, Inc. Girl falls out of a jeep and is awarded $18M in economic and $6M in non-economic damages. If when you evaluate the evidence, it does not appear that the award is justified, it may be the result of passion or prejudice. The trial court must independently weigh the evidence and assess whether it is sufficiently supports the jury’s verdict. The trial court must reweigh the evidence, the inferences there from, and the credibility of the witnesses in determining whether the jury clearly should have reached a different verdict. We find an expert who knows enough about health care for a person in this position, then look at a lifetime of medical costs, adjusted for the trend of price increases, etc.. Defendant doesn’t want to fight the economic analysis too much, because it may give the impression that they are agreeing that a substantial award is justified. Its a strategy that screwed them in this case. Example “I’m not guilty, but if I am the punishment should be this...instead of ....”. TORTS OUTLINE 26 Fein v. Permanente Medical Group Statute reduced the jury award because there was a ceiling on the size of awards. $250,000 in non-economic losses, Economic loss $700,000 Non-economic $500,000 Medical $24,000 But, because of the legislation the non-economic loss gets cut down to $250,000. Now we have a legal problem of what the plaintiffs rights are. Attacks this legislation through constitution argument. (1) equal protection clause - can’t treat people differently. This doesn’t work example: tax rates, people over 21 vs Under 21, etc. You can treat people differently but it has to be justified by the distinction you are making. Blah blah blah. 2. Collateral Source Benefits Schonberger v. Roberts Plaintiff was in a traffic accident while working. Was getting workers compensation, and sued the guy who ran into him. In this case the plaintiff had to pay back the workers compensation, so anything received so far should not be counted towards the award the jury gave him. The Iowa statute said that injured parties have to repay workers compensation if they receive a recovery from a third party. What if the plaintiff was not required to pay back the benefits? He would still get the whole award. Why should the defendant benefit from the plaintiffs insurance. This is even holds up if someone is gifting the plaintiff money to cover the losses. Why should an outside source benefit the plaintiff. This is called the collateral source rule. Collateral payments do not reduce the defendants obligation. The statue said that the defendant could admit evidence that the plaintiff had received workers compensation. The judge doesn’t allow it, because it would serve no purpose. The plaintiff has to pay it back, allowing the evidence would confuse the jury and probably reduce the verdict. The supreme court of Iowa upheld the trial judges decision. 3. The Scope of Acceptable Argument Botta v. Brunner Lawyers in trying to get larger awards try to break it down into an hourly rate. It looks smaller to say $20 per hour instead of $3million dollars, so a jury may be more inclined to give it. TORTS OUTLINE 27 The court says you can ask for whatever you want in total, but you can not break it down into a per diem. Why isn’t this an acceptable argument? Dewolf thinks it is because the damage is on a curve. You get used to things. When you are first injured, it really sucks, but you learn to live with it. In some courts it may be acceptable. What is the majority rule? The notes in the book say they are evenly split. Jewett v. Deutsch You cannot make a prejudicial statement at closing. Suggesting to the jury that you should punish the defendant. TORTS OUTLINE 28 PART II DEFENSES TO A PERSONAL INJURY CASE CHAPTER 4 IMMUNITY Affirmative defenses - defenses that a defendant would bring up independent of the plaintiffs claim. A. Governmental Immunity Historically, in old England you couldn’t sue the queen. This came to the U.S., but as with wrongful death cases there was a statute passed to allow certain suits. On the exam we will want to determine what the legislature allows in the statute. Is it broad or narrow? Federal Tort Claims Act Laird v. Nelms Individual working in the course and scope of employment inherits the government’s immunity. Under the federal tort claims act, the district courts can entertain suits against the government, but you must look at the statute to determine if the suit qualifies under the act. Ps argument - statute says that the government should be treated like a private cititzen §2674 “in the same manner and to the same extent as a private individual”. P says that if a private person caused a sonic boom over his property they would be liable for nuisance, or ultrahazardous activity or something. Ds argument - §1346. they are only liable if there is “negligence” or a “wrongful act”. They are trying to say that congress did not intend to allow this kind of case. Does negligence and wrongful act apply in a strict liable case (trespass/nuisance)? The majority finds for the D. Relying on Dalehite where the government could not be sued for damage caused by the concussion from an explosion. After the Dalehite case, congress gave money to the victims, but didn’t change the wording of the statutes. Dissent notes the “discretionary function” exception to liability. §2680(a) pg 4-1. If the court were to call the sonic boom negligent, they would be second guessing the governments decission to authorize such flights. But, the dissent says in this case imposing liability would not be second guessing because they would not be saying it is negligent just ultrahazardous. Discressionary function exemption: There is a distinction between policymaking and operational decisions. Congress wants to exclude policymaking judgments from liability. States get to decide for themselves how they want to be exposed to tort liability. There are two types of statutes: TORTS OUTLINE 29 (1) Broad waiver - “State agrees to be subject to liability, except for ______” (2) Narrow waiver - “you can sue the State for X, Y, Z only” What is fair game depends on the statute. Have they said they are liable for anything with certain exceptions, OR have they said they are immune from everything with exceptions? Vanderpool v. State Plaintiff works for the Oklahoma Historical Society. He was injured by a fellow employee, operating a brush hog. The protective shield of the hog had been removed by the state which the P says was negligent. Trial court granted summary judgment for the defendant and dismissed the case, holding that governmental immunity bars the action. As a government agency is the OHS immune to this suit? Reversed and remanded. The court held in a prior case that the state could be sued for injuries arising from its proprietary functions. They had also held that where the state had insured itself, it could be sued to the extend of its insurance coverage. The court now holds that a proprietary function inquiry is no longer determinative in assessing liability. The court decides that the state is liable for the negligent or wrongful acts or omissions of its employees and agents acting within the course and scope of their employment, if a private person would be liable to the claimant in accordance with the law of the place where the act or omission was committed. With some excepts the set forth in the opinion. The dissent thinks that the legislature should make the call. Did Oklahoma not have a statute of immunity or one permitting suit? The court mentions a statute but doesn’t get too specific about what it allowed. Even though the standard rule is that the state is immune from these kinds of suits, the Ps lawyer basically says its time to get rid of this rule, and the court agrees. State would argue too bad, go to the legislature if you have a problem with it. But, P would note that other states have tossed out the immunity. In Oklahoma the immunity has been eroded by the legislature. They decided to allow counties and municipalities to be sued. It has also been held that they can be sued where there is insurance coverage. In addition, the state is liable for proprietary functions (ex. State owned swimming pool operated on a fee basis, can be liable for injury). It can be seen that the progression is toward allowing liability. The court in almost the last paragraph says that the new rule that the state is not immune does not come into effect until 1985 except for this case. They probably do this so the legislature has time to look at it and decide if this is the way they want it. B. Family Immunities Bad parenting vs. Duty Do you need parental relationship to establish duty? If yes, there is immunity. Example: parent watching child run into the street. If you try to sue, you are relying on the parental relationship. If the kid is a passenger in a car and the TORTS OUTLINE 30 parent’s negligence causes injury to the child, immunity doesn’t matter - It’s still negligence. Tip: Ask; “if I replaced the parent with Mr. Rogers, could I bring a suit?” Holodook v. Spencer Holodook child darted out from between parked cars and was hit by a car. Defendant brought a third party claim against the mother for negligent supervision and a counter claim against the father for the same. Parents moved to dismiss the third party claim and counter claim. Trial court denied, appellate division reversed, this court affirms. Does a parent owe a legal duty to supervise his child? To who is the duty owed, third parties or the child? Infant children have no cause of action against their parents for negligent supervision. The defendant’s claims are based on a duty owed by the parent to the child. The dissent doesn’t think it is fair to hold the defendant liable for damages that are in part the fault of the parents. Thinks that this is against our law which is moving towards a system of comparative fault. C. Workers Compensation No Fault based system. Employer Immunity - Workers Compensation. When workers compensation started out there was a quid pro quo deal where the employer’s liability was limited, but the employee was guaranteed compensation. Intentional torts are outside of workers compensation immunity. Wher the line between intentional and unintentional is drawn is somewhat unclear. See Berklid case pg 4-17 General Rule - employer sheilded from negligence, but intentional torts are outside of immunity. The ground is shifting on what is outside of immunity. Example: Does letting equipment degenerate over time fall into intentional/recklessness? In most jurisdictions the employer stays immune. If a 3rd party has to pay the plaintiff, he can’t bring an action against the employer for indemnity. Wolf v. Scott Wetzel services, Inc. Employer had a third party (the defendant) that administers their workers compensation. The plaintiff was injured and received some compensation. The defendant denied part of his claim related to psychiatric care. The plaintiff bases his lawsuit on the initial refusal to pay for psychiatric care and premature claim closure. Does the industrial insurance act bar an employee from bringing a civil action against a company which was hired by a self-insured employer to administer workers compensation claims for wrongful delay or termination of benefits? The TORTS OUTLINE 31 industrial insurance act expressly provides a remedy within the workers compensation system for wrongful delay or termination of workers compensation benefits; that is the exclusive remedy for any such wrongful delay or termination. The industrial insurance act represents a quid pro quo compromise between employers and employees. The employer pays some claims for which it would not be ordinarily responsible in exchange for limited liability. The employee on the other hand gives up common law actions and remedies in exchange for sure and certain relief. Courts have held against such claims for two reasons. 1. the policy underlying the exclusive remedy provisions of their workers compensation statutes. 2. the courts have been greatly influenced by the fact that workers compensation statutes typically contain provisions that impose penalties for wrongful delay or termination of benefits. The penalty provisions show the legislative intent that the remedy remains with the workers compensation system. Class notes: Plaintiff doesn’t think Scott Wetzel services should be immune because they are not his employer. The court decides that Scott Wetzel is standing in the shoes of the employer. The plaintiff also tries to claim that this sort of claim (delay in payment, bad faith, etc) was not given up when workers compensation came into effect. One tort that is not excluded from liability under Workers Compensation is intentional torts. So, does the refusal to pay benefits fall into the area that is covered under the workers comp. Immunity, or is it closer to an intentional tort. The court says that the fact that there is a provision in the act that deals with this sort of problem, shows that the intent of legislature was that the system handle these disputes not allow litigation. The workers comp. System did not get rid of litigation for workplace injuries, it took the uncertainty and delay out of compensation. This case illustrates that there are situations where there is a dispute over whether or not it is actually a compensable injury or if the injury actually happened on the job. CHAPTER 5 CONTRIBUTORY FAULT How do we factor in the plaintiff’s fault? The traditional rule was there could be no recovery for a plaintiff that is partially at fault. More modern rules take the plaintiffs actions into account as a reduction. Some systems mix: modified comparative fault. Contributory negligence/comparative negligence (fault); Three varients: (1) Pure - recovery based on percentages (2) 50% (Modified) - “not greater than” (3) 49% - “not as great as” - Plaintiff recovers as long as his negligence is not as great as the defendant’s. His recovery is reduced by his percentage of fault. TORTS OUTLINE 32 A. The Contributory Negligence Rule The old school contributory negligence rule - if the plaintiff was partially negligent; No recovery. In most places there is now some form of comparative negligence. Harrison v. Montgomery County Board of Education 14 year old kid broke his neck in gym class, he is now quadriplegic. Plaintiff claims the school was negligent. Defendant says the kid was also negligent. Defendant want to say if P was negligent at all he was barred recovery (the old common law rule from butterfield v. forester). Plaintiff is arguing that the court should compare the levels of negligence and reduce the award. The court refuses the change the rule. The court says it is for the legislature to change. Since they have been faced with this question before and chose not to change the rule, the court thinks this is a sign that the legislature is endorsing the old policy. They also note that of the states that have changed the rule all but eight have done it through legislation. Li v. Yellow Cab Company of California Li turned in front of the cab driver. Li sues the cab company. They are both at fault in the accident. Defendant argues that a provision of the California civil code means that if the P is at fault also, the P can not recover. See footnote on page 5-13. The court is treating the statute as a restatement of the law of torts. It was not the legislature saying, “this is what we want” they were saying “this is our understanding of the law”. It was therefore advisory and not law. Dewolf says you could read the words of the statute and interpret it as a comparative fault statute. “you are negligent for your actions except so far as the other party caused their own injuries”. The court adopts a pure comparative negligence rule so that damages are allocated in proportion of fault. The court holds off on deciding what will happen when there is multiple tortfeasors. Assumption of risk - the court in this instance treats it similar to contributory negligence. Dewolf: for the exam there will be a statute to tell us if the jurisdiction is pure/modified, 50%, 49%, etc. Dewolf: sometimes a party may be barred all together even when they are not very responsible. If the jury sees your client as being slightly more at fault you could get screwed. Pure comparative fault jurisdiction you will get something, modified Jx you might get zero. B. Assumption of Risk Assumption of risk: (a) Primary assumption - transfer of risk from one party to the other. Like the baseball game case or a demolition derby case. (b) Secondary assumption - cases where the defendant has done something negligent, but plaintiff is doing something to cope. Example - getting in a car TORTS OUTLINE 33 with a drunk driver, the plaintiff is doing something in response to the defendants negligence. Balancing/allocation between plaintiff and defendant. Unreasonable vs. reasonable assumption - treat an unreasonable assumption like contributory negligence. Assumption of risk is like another form of contributory negligence. Sometimes it is treated as a reduction of damages; sometimes it bars recovery. Volenti non fit injuria - volunteer not suffer a legal injury = voluntary assumption of a known risk. How much about the risk do you have to know? If it is a voluntary assumption of a known risk; what is voluntary? And what is a known risk? Whether or not you are allowed to recover depends on the jurisdictions; assumption of risk may bar recovery, or it may reduce the award. Should it bar recovery or reduce it? Did the plaintiff sign something? Does the plaintiff know what the risk is? What is the proper disposition of the negligence claim? Smith v. Baker & Sons Plaintiff worked in a rock quarry or something. His job is to hold a drill while someone else hits it with a sledge hammer. In the quarry there is a steam crane that is carrying moving stones, sometimes overhead. A stone is dropped from the crane and injures him. The defendant says that by accepting the job and working in that place, he assumed the risk of getting hit by a falling rock. The majority doesn’t think he is assuming the risk because he has no choice. Assumption of Risk - the voluntary assumption of a known risk. They say he is assuming the risk that if the guy with the sledgehammer hit his hands, he would have assumed the risk, but the risk of falling rocks has not been assumed. The reason is he has a certain degree of control over the hammer guy (he can see if he is sober, experienced, etc) but he has no relationship with the crane operator. The dissent think P has assumed the risk. When he took the job, the extra risk was probably part of compensation. Do we need to prove that he went to the employer and said ”I will take this risk if you pay me additional cash”? But what is the difference if the employer says “I will not pay additional money” and he still decides to take the job? There doesn’t seem to be any. [what if poverty forces him to take the job no matter what risk] Brown v. San Francisco Ball Club Lady goes to a ballgame, sits in an area that does not have a screen, gets hit with a baseball. The claim was barred. If this was a chapter one case the ball club would probably take a Learned Hand approach to determine if the should have screened more area. Did she voluntarily assume a known risk? It is pretty simple to say it is a voluntary assumption of a known risk at the ballpark because people who sit in the unscreened areas show up with baseball gloves hoping that a ball will get hit at them. Was the stadium owner negligent? No, he provided screened and TORTS OUTLINE 34 unscreened areas and the plaintiff chose to sit in an unscreened area. The actions of the plaintiffs determine what standard of care the D has. They encourage the defendants to be more negligent. Plaintiffs want ballfield without screens. Dewolf makes an example of a skier who hits a metal post. They assume the risk of falling down, etc. but not the risk of hitting hidden unknown dangers. Alston v. Blythe Alston was walking across the street. She wasn’t in a crosswalk. A truck driver stopped and waived her across. When she got into the next lane a car hit her. The trial court gave an assumption of risk instruction. The plaintiff ended up losing the case and appeals claiming that the court should not have instructed on assumption of risk, but only on contributory negligence. Assumption of risk has four facets. (1) express assumption of risk, (2) implied primary assumption of risk, (3) implied reasonable assumption of risk, (4) implied unreasonable assumption of risk. We instruct the jury on Kirk v. Washington State University Plaintiff was a cheerleader for WSU. They usually practiced in the mat room, but on this instance they were on astro turf. She fell during a practice routine sustained injuries. Trial court ruled for the plaintiff. The jury was instructed that to the extent she assumed the risk the recovery should be reduced, and to the extent the D was negligent they should increase the award. The jury decided the P was 27% responsible. On appeal each party claimed there was a mistake. D wanted the recovery barred - the jury found that she had assumed the risk. P wants all the money since they found that the D was negligent. The court says this false into the implied secondary reasonable assumption of risk. The plaintiff’s decision to become a cheerleader was in part responsible for her injury, but so should the universities action. There is a combination of the plaintiff’s choice and the defendants negligence. The court talks about four kinds of assumption of risk. (1) Express Primary - (2) Implied Primary (3) Secondary reasonable - defendants negligence has already occured (4) Secondary unreasonable We need to look at whether or not the plaintiff made a choice and whether or not the defendant was negligent. Dewolf’s classifications of assumption of risk: (1) Defendant wasn’t negligent (SF ball club - -bars plaintiff’s recovery) (2) Plaintiffs conduct amounts to no more than contributory negligence. Example: plaintiff gets in a car with a drunk driver or plaintiff crosses a street when should not have - - Recovery is reduced. (3) Defendant has in fact been negligent. Inflicted some additional risk, but the plaintiff did engage in a dangerous activity - - kind of an unpredictable TORTS OUTLINE 35 outcome [kirk v. WSU] vs [the Gonzaga scuba case or the skibinding case]. The Plaintiff had the choice to engage in some risky activity. First thing to don on exam is ask “could this be a VOLUNTARY assumption of a KNOWN RISK?” For purposes of the exam, the jurisdiction has some form of comparative negligence. If Dewolf says assumption of risk will be treated like contributory negligence, he means in this jurisdiction only. CHAPTER 6 MULTIPLE TORTFEASORS Big picture: What impact does it have when the plaintiff shows more than one defendant caused the injury. Three issues: (1) Insolvency - one defendant can’t pay its share. (2) Settlement - reduce remaining claims? Dollar for dollar or by percentage of fault. (3) Contribution (not common law) - If one defendant pays more than their share we get defendant vs. defendant. Q. What happens if one defendant is negligent and another is strictly liable because of abnormally dangerous activity and the plaintiff is innocent? Jury will probably assign responsibilities. DeWolf: when faced with comparing apples and oranges we make fruit salad. A. Overview and Statutory Excerpts Know how to read the statutes. Idaho statute §6-801 is a modified comparative fault statute. The key word is “IF”. It’s a 49% modified. Under §6-803, Joint and Several liability applies to (a) concerted action, (b) toxic/hazardous waste, (c) medical devices and pharmaceuticals. These are defendant friendly statues. The defendant will not pay more than their share. Limits the plaintiff’s ability to recover. Oregon Statute §18.470 - Its a modified form of comparative negligence. Contributory negligence will not bar IF the fault of claimant was not greater than the combined fault of persons .... the words “greater than” invoke the 50% rule - plaintiff can be up to 50% negligent. What about joint and several liability? §18.485 - Several liability only Except if one defendant can not pay, then the liability is reallocated among the other defendants according to their fault. There are also exceptions to the reallocation provisions. B. Joint and Severable Liability Look to statute for what the effect of plaintiff’s fault is? Can they still get joint and several liability? TORTS OUTLINE 36 Laubach v. Morgan Three car accident. Jury found fault plaintiff=30%, D1=50%, D2=20% Can the plaintiff recover against D2 because the plaintiffs negligence was greater. It is a modified comparative fault statute. The court determines that the legislature intended that the plaintiffs negligence be compared to the defendants at a group. If the Ps neg is greater than the groups negligence, then no recovery. The court then determines that the statute did not allow full recovery from either defendant. Boyles v. Oklahoma Natural Gas Co. Empty building full of natural gas exploded. .P is injured by an explosion caused by a number of different people. Judgment entered against all defendants on the basis of joint and several liability. This means the P could have recovered 100% from anyone. The Ds were pissed off claiming this didn’t follow the precedent. The court distinguished from prior cases, ruling that when the plaintiff is fault free he can recover from anyone, but where the plaintiff is fault free he gets a full recovery. COMMENTS: If he is partially at fault, how can he expect full recovery; even if someone defaults. If he is blameless he should be able to get everything. One of the complaints that the Ds could have had was that the court did not make determinations of relative fault, so the could go after one another. In this case they did not determine the % of fault of each party, just that they were at fault. “Here we are concerned not with comparative negligence, but rather with an admittedly blame-free plaintiff seeking recovery from multiple tortfeasors whose negligence is said to have “concurred, commingled and combined” to produce harm.” Coney v. J.L.G. Industries Inc. A guy was killed in an accident involving a hydraulic lift manufactured by the defendant. The suit was based on products liability/strict liability. The defendant thinks the award should be reduced by any fault of the deceased and the deceased’s employer. The defendant also claims that retention of the joint and several liability in conjunction with comparative fault denies equal protection of the laws in violation of the XIV amendment. The court held that where it is established that the defendants defective product and the plaintiffs misconduct contribute to cause the damages, the comparative fault principle will operate to reduce the plaintiffs recovery. Joint and several liability is retained: if one tortfeasor is unable to pay, the plaintiff can recover from the entire amount from one of the others. Four reasons: (1) The feasibility of apportioning fault on a comparative basis does not render an indivisible injury “divisible” for purposes of the joint and several liability rule. (2) In those instances where the plaintiff is not guilty of negligence, he would be forced to bear a portion of the loss should one of the tortfeasors prove financially unable to satisfy his share of the damages. (3) The plaintiffs negligence relates only to lack of due care fro his own safety while the defendant’s negligence relates to a lack of due care for the safety of others; the later is tortious, the former is not. TORTS OUTLINE 37 (4) Elimination of joint and several liability would work a serious and unwarranted deleterious effect on the ability of an injured plaintiff to obtain adequate compensation for his injuries. American Motorcycle Ass’n v. Superior Court Kid gets hurt during a motorcycle race. The parents bring a suit against a few different parties. The AMA wants to bring the parents in as defendants. Indemnity - collect everything from another tortfeasor. Contribution - collect a share from another tortfeasor. C. The Effect of Settlement Issues: Good Faith Application of statutes Multiple tort feasors Washington rule on settlement - the jury is supposed to assess the fault of the empty chair and award judgment accordingly. The jury allocates fault among all parties even the ones that settled, but the jury does not know about the settlement. Uniform comparative fault act; Section 4(b) - pre-emptive settlement (“global”): If one defendant settles for everyone, he has a right of contribution from everyone else. Section 5 - 3rd parties. Section 6 - you have a partial settlement. P chooses to settle with one party but not the other - gives up the proportionate share of liability. Settlement: don’t need to know the factors on pg 6-31. Dollar Method (Tech-Bilt) - Percentage Method (Washburn case) - every entity is assigned a % of fault, the plaintiff gets to recover from the people found to be at fault. What happens if someone settles, but at trial the jury assigns no fault to them? Does the plaintiff get over compensated? Tech-Bilt, Inc. v. Woodward-Clyde & Associates Plaintiff filed suit against a couple defendants. Woodward brought up the fact that the statute of limitations had run on the claim against them. The plaintiff dismissed the case against woodward; settled. Tech-bilt is pissed off because they want Woodward to pay a share of the judgment. If they would not have settled, but been dismissed by the court, tech-bilt would not have gotten screwed by the statute of limitation. They could bring a claim of contribution later than the statute of limitations, but not where one of the defendants has settled. The California TORTS OUTLINE 38 legislature has a statute that says once a defendant has settled, another co-defendant can not ask for contribution from him. The statute said the settlement must be in good faith, but doesn’t explain the term “good faith” very well. The statute had two objectives: (1) equitable sharing of costs among parties at fault, (2) encouragement of settlement. Was it in good faith towards the plaintiff? Yes. But we should also consider the interests of the other parties. Why do we have to be concerned with good faith? To protect the interest of all parties to the litigation. The court holds that it was not a good faith settlement. They decided that the court, when questioning good faith, should consider a reasonable range for settlement. If the settlement is within that range its ok. The give a bunch of factors to consider on page 6-31: Amount of settlement (also remember that settlement will be less than recovery at trial), settler’s share of liability, approximate total recover for plaintiff, allocation of settlement proceeds, other financial conditions and insurance policy limits, existence of collusion, fraud, tortuous conduct aimed to injure the interest of non-settling parties, etc. Washburn v. Beatt Equipment Company Propane system blew up and lit a couple guys on fire. Some defendants settled, some didn’t. Jury entered judgment against Beatt for $6million then reduced it by the amounts the other defendants settled for. What they did was calc the total damages, reduce by the liability of the settled parties, then reduce by the settlement amounts. Is this right? Beatt is the only non-settling defendant. He is not entitled to credit/offset for amounts paid by any settling entities, whether fault-free or at fault, because not of those entities are jointly and severally liable defendants within the meaning of the statute. How do we ascribe liability when parties settle? Plaintiff was interpreting the statutes looking for more money. Defendant CHAPTER 7 STATUTES OF LIMITATION Statutes of limitation/Statute of Repose. There is a time when the time to bring a suit passes. (1) What is a reasonable period of time to say “after this period passes it is too old for a court to hear it?” Why do we have it? (2) When does the time begin to run? (3) Is there something that can suspend the statute of limitations (tolling) Purpose - passage of time makes it unfair to bring suit against a defendant where evidence, witnesses, records, and cause has gone away. Need to balance the interest of the P and D. TORTS OUTLINE 39 Issues - (1) what is the limitation period? (2) When does the period begin to run? (Discovery rule - not until you discover or should have discovered the cause of action). (3) Do we stop the clock for equitable reasons? (toll the statute). A. Applying the Correct Limitation Period Dickens v. Puryear Plaintiff got his ass beat real bad because he was doin’ the defendant’s daughter. He brought assault and batter claims and also intentional infliction of emotional distress. The same action will sometimes give rise to different claims. These different claims may have different statutes of limitations. The courts often look at the gravamen of the case (the weightiest claim). In this case, the defendant committed several different acts; severe beating, threat of castration (assault) and threatened to kill him. The court says that castration threat is over when they let him go, but the threat that he is going to get killed is a different one. It is not imminent to happen, and is a future action. They therefore let that claim survive even though the statute of limitations has passed on the other claims. The statute of limitations is shorter on intentional torts. The reason is because the standard we use is a subjective one. We need to know the subjective state of mind of the defendant and we may loose it over time. In addition, these sorts of cases are not difficult to discover. You are generally aware of it when it happens. B. Accrual of the Cause of Action Discovery Rule - Statute of limitations doesn’t begin to run until the plaintiff knows they have a cause of action, or reasonably should have known. (accrual date) Estates of Hibbard v. Gordon In 1977 Knox murdered Heidi’s parents and raped her. In 1983 she became aware that the estate could have claimed that estate was negligent when they released him before the murder. So, she sues the bank that was the executor of the estate (bank) for negligently failing to sue the state, sues the state for releasing the murderer, and sues the lawyers for the bank. COMMENTS: The court holds that the statute of limitation starts to run when a reasonable person knew or should have known about the cause of action. Usually a P is required to make reasonable inquiry into whether or not there is a cause of action. Discovery rule - Statute of limitation doesn’t begin to run until plaintiff knows or should have known about cause of action. the court is reluctant to apply this rule to the state for policy reasons. Stale claims may be spurious and generally rely on untrustworthy evidence. The society benefits when it can be assured that a time comes when one is freed from the threat of litigation. Even though the rule did not apply to the state, the claim is ok against the bank and the lawyers. They had a fiduciary duty to look after her interest. The statute of limitations starts to run when she knew or Should have known about the cause of TORTS OUTLINE 40 action. They reason that she put her trust in them to inform her of what is available. Key thing to look at is when does the cause of action spring into life. Pfeifer v. City of Bellingham 1979 Island Construction company completed building an apartment complex. They then sold the building to individual buyers. It was a three story building that should require extra safety standards, but the city granted them the permits because they raised the land around the building enough to call it a two story building. June of 1986 lady had to jump out of the window of her apartment complex because it was on fire. She suffered physical and emotional injuries. There is a statute that say a claim against a builder must be brought within six years of the substantial completion of the building. The plaintiff is claiming that she can sue Island construction in their capacity as sellers of the building. Ie they misrepresented the safety of the building when they sell it. The court holds that the statute specifically says “builder” so the statute doesn’t apply. Statute of repose - focuses on the length of time that the defendants work has been satisfactory. Example - WA statute for product liability, if the product works for Xyears beyond that point no liability. C. Tolling of the Limitation Period Tolling: The plaintiff may recognize the claim, but there is an equitable reason not to sue. Walters v. Marion Memorial Hospital Old lady was in the hospital. While in the hospital she fell and broke her hip on June 1, 1987. She was released on July 31, 1987. A complaint was filed on her behalf on July 14, 1987. There is a 2 year statute of limitations, but the P argues it was tolled during the time she was in the hospital. The court holds that the continuing care doctrine only applies if the negligent care continues. Reasons against the courts holding. What if she was in the hospital for more than two years. Would she want to file a suit while still in the hospital? Also, “stockholm syndrome” while she is dependant on the hospital for her care she might no realize she has a case worthy of suit, she thinks they are doing what is best for them. Difficulty with this concept, when will it ever end? What about people who are permanently in the care? Strahler v. St. Luke’s Hospital Plaintiff was in the hospital when she was 15. Now she is 19 but wants to sue the hospital for negligence even though the 2yr statute of limitations had expired. There was a statute that said the statute is tolled for a minor until the parents are aware....P argues that the statute is unconstitutional because it does not afford the child with any rights of access to the courts. TORTS OUTLINE 41 PART III MODIFICATION OF DUTY BY STATUS AND RELATIONSHIPS Modification of duty by status and relationships. The impact of contract law and relationships change the nature of the duty. Chapter 8 - premises liability - nature of the relationship determines the duty that is owed. (invitee, licensee, trespassor). Chapter 9 - consumer and product manufacturer. Chapter 10 - medical malpractice - health care provider/patient relationship. Chapter 11 - Did the defendant owe the plaintiff reasonable care .... -Pre-existing relationships- CHAPTER 8 PREMISES LIABILITY The nature of the relationship between plaintiff and defendant changes the duty that is owed. A. The Status Distinctions If we were in chapter one, failure to use reasonable care results in negligence and thus liability, but because of premises liability the defendant claims he owes no duty. Any duty they owe depends on the classification of the plaintiff. . The classes are: (1) Invitee: (a) Business invitee - invited to enter or remain on land for a purpose directly or indirectly connected with business. The owner owes reasonable care. (b) Public invitee - just like business invitee except owner is not a business. Example - University invites public to hear lecture - not business, but still owes reasonable care. Usually the owner is a government or charitable organization. (2) Licensee: Bare permission/social guest. Duty to warn of known, hidden perils. (3) Trespasser: No permission - Avoid willful and wanton injury. I.e. don’t shoot. Except children - attractive nuisance 1. Are the Status Distinctions Desirable? Younce v. Ferguson Girl was injured at a kegger. She tried to claim she was an invitee because she paid for a keg cup. The court says just because you split the cost of refreshments doen’t make you an invitee. The plaintiff also makes an argument to overrule class system, but the court says if legislature wants to, let them. The owner in this case only has a duty to war of hidden perils. The plaintiff knew of all perils. TORTS OUTLINE 42 Rowland v. Christian Christian had a broken faucet that she had told the landlord about. A guest of Christians was injured using the faucet. Trial court granted summary judgment for the defendant - no duty. But, a guest is a licensee, the danger is hidden, Christian knew and had a duty to warn. On appeal the plaintiff argues to get rid of class system. The plaintiffs argument is dumb, should just argue that the trial court screwed up. The court says we should go to a reasonable care standard under all the circumstances - consider everything. The courts policy - says that the class system suggests that some lives are worth more than others. We shouldn’t vary conduct based on a class of people. For the exam, be able to apply the classifications. May want to add a note about what some jurisdictions have done. California went to a reasonable person considering all of the circumstances including the plaintiffs status on the land standard. So it turns out that reasonable people change their degree of care depending on visitors classifications. The point of the CA standard is procedural: Do we leave it to the discretion of the jury, or do we classify people under the law. Makes it hard to get summery judgment in CA. We need the jury to decide what a reasonable person would do. What is the key when trying to classify someone as an invitee? Is it the foreseeability or the benefit to the owner? 2. How is the Visitor’s Status Determined? Markle v. Hacienda Mexican Restaurant Plaintiff was in defendant’s parking lot. He stopped to eat, but was transferring steel to a co-workers car when he stepped in a hole and injured himself. P claims that he was on the land as an invitee and that the business of transferring the steel was just incidental to his purpose of being on the land. COMMENTS: The trial court said he entered the land as an invitee then changed his status to a licensee when he was moving the steel (you can change your status while on the property), they also say that the status if for the court to determine. Whether the p was an invitee depends if his conduct was pursuant to the visit to the owners business. Pursuant to does not have to mean that you are actually paying the owner, you are just there doing what could be expected. Indiana used two tests “economic benefit test” and “invitation test”. The economic benefit test isn’t necessarily a dead idea, all Jx will look for some degree of benefit. Don’t focus on the benefit to the owner, but the extent of the invitation. You don’t lose invitee status when you engage in activity related/incident to the invitation. The defendant does not have to enjoy a specific benefit on that day, but if the owners business benefits or will benefit from this type of visit. Your status may change when using the property for purpose other than reason it is open to the public. Broad interpretation of reason it is open to the public. Looks like you should make as many arguments for owner’s benefit as possible. In this case the TORTS OUTLINE 43 court decided that whether or not the action was incidental to his invitation was for the jury to decide. Hostick v. Hall Mother goes to laundry mat with her child. The child climbed on a chair, turned on hot water, and burned itself. What is the status of the 17month old child? Invitee because the presence of the child is pursuant the to owner’s business. Without being allowed to bring their kids, mothers probably wouldn’t do their laundry. Must consider what is customarily done by invitees. Owe a duty of reasonable care to prevent foreseeable injuries. Can’t get the child on assumption of risk because too young. Can’t bring in the mom because of the parental immunity. The failure to supervise would be like suing the mother on behalf of the child. Key to assumption of risk is being capable of understanding the risk. Guilford v. Yale University Old guy went to class reunion at yale. They were booz’n and stuff. He needed to take a piss and walked toward what he thought was a bush. It was really the top of a tree growing from a lower level. He fell over a wall to the lower level. He was definitely an invitee when he started, the question is whether he exceeded the scope of his invitation. Does this activity seem to be reasonable. It looks like the University promoted his intoxication. Probably to get donations. Jury found that he was an invitee. 3. An Exception for Trespassing Children - “Attractive Nuisance” Osterman v. Peters Four and a half year old fell into the neighbors pool and drowned while trying to retrieve a ball. Parents are suing the neighbors. Court says he was a tresspasser, they don’t recognize attractive nuisance, age doesn’t matter, etc. No duty owed. Plaintiffs arguments (1) Age. Not old enough to know he was were he didn’t belong. But the court has declined to make exceptions for age before and isn’t willing to do it now. (2) Argues that child’s purpose was to get the ball and then found the pool. It is kind of like the allurement element that is sometimes required, but this doesn’t make sense since the purpose of entering the land should have been because of the allurement. (3) Leaving the pool was an act of indifference that was equivalent to willful and wanton conduct. The pool was full, the gate didn’t latch, etc. (4) Violation of a statute. Pools are required to be enclosed and have a latching gate. They are implying a cause of action from the violation. But, negligence doesn’t mean they deserve a remedy. First they must show that the child was owed a duty. First comes duty, then negligence, then cause of action. Hofer v. Meyer 3 year old was found in a horse pasture owned by Meyer’s and it looked like Kiefer’s horse did it. The trial court directed the verdict for the defendant because there was TORTS OUTLINE 44 no evidence to raise the status above a trespasser. Keifers only duty was to abstain from wanton/willful conduct. Meyers had no reason to know of dangerous propensities of the horse. The plaintiff wants to get rid of the class system and adopt a an ordinary negligence standard regardless of status. The court avoids addressing this argument by instating the attractive nuisance doctrine as presented in the restatement. Restatement test for “artificial condition” (1) Possessor knows children will trespass, and (2) Possessor knows of risk of death or serious bodily harm to children, and (3) Children because of their youth do not discover the risk, and (4) It is not hard to eliminate the risk. “cheap fix”, and (not like Learned Hand test were there is a balancing, this is just looking for a slight burden) (5) The owner fails to exercise reasonable care to eliminate the danger or otherwise protect the kids. Just needs to use RC to implement a cheap fix. The trial court decided the horse is not an artificial condition, but the court of appeals says let the jury decide. Note: the restatement rule doesn’t really say age to be considered child or youth. Some courts say only “tender years”. The restatement test does not require allurement. B. When Does Premises Liability Govern the Case? Herrick v. Wixom Guy snuck into a circus and was hurt by a firecracker. Trial judge said if you find he was a trespasser there was not duty. This is not a premises case. The court doesn’t say this, but instead says that once a trespasser is discovered he is owed reasonable care. This is screwed up because a discovered trespasser gets better treatment than a licensee. How do we know if we are dealing with a premises case or a firecracker case? Dewolf says it is not a premises case. If this was a test you would say that d would argue for premises liability, but the p will argue that becuase the injury arose out of ____ ...... Humphrey v. Twin State Gas & Electric Co. TSs power lines run across thomas’s land. The had negligently fixed a line (temporary fix). Humphrey was trespassing on Thomas’s land and was electrocuted. TS says they owed him no duty because he was a trespasser. But, the court says “its not your land”. You can not invoke premises liability when it is not your land. If the D doesn’t have a right to exclude the P why should they be able to insulate themselves. Premises liability claims are based on the Ps presence on the Ds land. Potts v. Amis P was at Ds house. D was swinging a golf club and smacked P in the face. D says P was a licensee and only duty was to warn of hidden perils and not willfully injury him. If it is the premises that forms the basis of the injury, then we look at TORTS OUTLINE 45 Premises Liability categories. But if it is the Ds activity that does it and not the premises we need reasonable care. The ownership and maintenance of the premises is irrelevant. Thoughts - - -There is a case cited in Potts that says that the owner can not willfully or wantonly injure a licensee. “the rule as thus expressed does not exclude liability on the part of the owner for extraordinary concealed perils or for unreasonable risks incident to the possessor’s activities. The Potts court holds that an owner has a duty to exercise reasonable care to people on his land if he knows they are there. It looks like if you know someone is on your land, you will be liable for unreasonable risks incident to your activities. If they are injured by your activities it gets kicked out of premises liability and we then have to determine liability by ordinary negligence standards. . . . . . ? Zuniga v Pay Less Drug Stores Bum falls asleep on Ds property. Truck driver backed over his leg. What is the outcome? The court of appeals ends up saying that he was a trespasser and tosses it out. P can argue that it was an injury due to the Ds activity and it is independant of the ownership of the premises. How do we reconcile with Potts v Amis? DeWolf didn’t seem to like this holding. I would argue it was because he was a trespasser and the truck driver was not aware of his presence. Therefore, even though injured by the truck driver’s activity the fact that he was unknown keeps him from getting into negligence realms. CHAPTER 9 PRODUCT LIABILITY A. History: The Rise and Fall of Privity Duties affected by relationship between parties. Sellers and purchasers. In chapter 8 the plaintiff’s ability to recover was diminished because of the relationship. In Chapter 9 relationship enhances duty owed - it is related to contract law. Products liability grew up in the land of contract, absorbed principles of strict liability, and retained it when repatriated to land of tort. Winterbottom v. Wright (1842) Law of product liability got off to a bad start. Guy in a coach/carriage, wheel came off, he was injured and wants to recover from the manufacturer/repairer. Mfg’r says car was sold to the guys employer so the injured guy isn’t in privity of contract. The court agrees. The say in the absence of a contract they had no duty to the injured guy. The mfg’r also has other defenses. What is puzzling about this case is they regard contract as the basis for duty. The existence of the contract reduced the liability to the injured party. What if the wheel TORTS OUTLINE 46 would have flew off and hurt someone walking down the street? Courts took this decision to mean you needed privity to have a claim. Is contract the reason we should have liability? Where does duty come from? From the promise in a contract? Macpherson v. Buick Motors Co. P bough a car from a dealer who bought it from the D manufacturer. The wheel collapsed and the plaintiff was injured. This was an old car that had wooden wheels. The wood was defective. There was another manufacturer who made the wheel. Question of duty? If we follow winterbottom we need privity. There have been cases since then that have carved out some exceptions. Devlin v. Smith - scaffolding. Thomas v winchster - pharmacist gave poison on accident, Statler v Ray - coffee urn. Court comes up with a new rule. If you make a product that is dangerous when negligently manufactured, you owe a duty to anyone that can be reasonably foreseen. Duty doesn’t grow out of contract. Duty is part of the law (tort law) Henningsen v. Bloomfield Motors, Inc. Husband buys a car for wife, it breaks and she is injured. The sale agreement said that D was no liable for almost anything. Court rejects this as a contract case and goes for tort remedy. The court says this deal was unconscionable. Legislature has decided there is an implied warranty of merchantibility and this contract frustrates legislatures intent. Unconscionability (a) procedural - sneaky deal (b) substantive - the deal itself is unfair/unconscionable. We started by saying duty comes from contract. Then we said there was duty outside of contract. Now we are saying you can not bargain it away. PRODUCTS LIABILITY In one sense, it is very simple: if injury is caused by defective product, plaintiff recovers. But what is a defect? (A) Manufacturing/Construction defect - The product deviates from design/specifications (true strict liability) (B) Design defect - the design itself is defective (C) Warning defect/failure to warn. Each classification has a different policy question to set the standard. Standards: Consumer expectations Risk-Utility (like learned hand) What is injured persons burden of proof in order to recover? We could apply rule of reasonable care, foreseeability, etc. but that is not the direction we want to go because of the nature of the relationship between plaintiff and defendant. Restatement - strict liability in tort (1) Intendend (foreseeable) use TORTS OUTLINE 47 (2) Defect (what is a defect?) (3) Causes injury No need to prove privity or negligence. Proving defect - not suitable for intended purpose. This is a point of controversy in restatement 3d, they came up with consumer expectation test vs. risk utility test. Expectations - minimum expectations - there is basically a floor standard. Standard for design defect. Would a reasonably prudent manufacturer use the same design knowing what we are now aware of? (not the same as a negligence test) Policy: What happens if later on you are smarter than when you manufactured the product - imputed knowledge. Is this desirable from a policy standpoint? Manufacturing defect - Product differs from the design. Policy: manufacturer should compensate without proof of fault. B. The Adoption of Strict Liability in Tort Escola v. Coca Cola Bottling Company of Fresno Waitress was putting a coke bottle in a refrigerator and it exploded causing injury. Majority says that P must prove traditional negligence standard; in this case she wants to use Res Ipsa theory. She wants to use res ipsa because the bottle has been destroyed. Ct says P must prove that she did not change the condition of the bottles since D dropped them off. Logic - it was under Ds exclusive control, they are in a better position to prove they were not negligent. Assume the jury believes that she was using it in the normal matter, they can infer that D was negligent. Justice Traynor concurs. He thinks strict liability should be the standard not negligence. Mfg’r is in the best position to guard against defects. Liability without proof of fault. As majority has it, the standard is still negligence and P has to prove it. Traynor says the P has to prove a defect. The difficulty as Dewolf points out is that the definition of what is a defect is not very clear. Why does Traynor think we should make the Mfg’r pay? It is an economic incentive to make sure products are safe. Built in insurance - p might pay a little more, but d is taking greater precautions to prevent injuries. What kind of defect is this? Mfg’ing defect. With respect to mfg defect we go with true strict liability. You prove defect and mfg is liable. Greenman v. Yuba Power Products P had a multipurpose power tool that operated as a lathe. He was using it and a piece of wood flew out it and messed him up. He sued the retailer based on an implied warranty (merchantibility, fitness for purpose) and manufacturer on express warranty. But are we/do we want to sue on warranties with all of the baggage that comes along with it? Traynor: all you need to do to establish mfg liability is that the P was injured while using the machine during its intended use. Liability is not based on an agreement. Mfg can not define scope of responsibility. Not governed by contract law. Cost of TORTS OUTLINE 48 defective products should be borne by mfg.. P could argue express warranty because he relied on written representations, but he didn’t have to because it was implied to be safe because it was on the market. P only needs to show he was hurt while using product as intended because of defect. P does not need to show privity or prove negligence. This is a design defect. Why? The machine as designed and manufactured was unsafe for its intended use. SL in Tort: (1) intended Use (foreseeable) (2) defect (3) causing injury Phillips v. Kimwood Machine Co. P worked for a company that made plywood. The company had a sander that could be adjusted for different thickness of boards. They manually fed the machine. The set it for thick boards, but a thin one got in the punch, was spit out of the machine, and messed up the P. P claimed design defect and TC directed the verdict for the D. D could have manufactured the machine differently. D knew that Ps employer was manually feeding the machine. CT suggests a kind of retrospective negligence test or imputed knowledge. The Mfg produces a defective product if it is the kind of product a reasonable mfg would not have made if they knew then what we know now. Test: “ a dangerously defective article would be one which a reasonable person would not put into the stream of commerce if he had knowledge of its harmful character. Would the seller be negligent if he sold the article knowing of the risk involved? (you should have known) Brown v. Superior Court DES case. The court looked at the policy behind using the imputed knowledge approach to design defects. The court decides that a true negligence test is more consistent with public policy. The public would be harmed if we apply strict liability to prescription drugs. There is a policy that drug manufacturing is desirable, to hold manufacturers liable for defects not known at the time would inhibit the development of new drugs. This is applicable to prescription drugs only. Why is there the distinction between prescription and non-prescription drugs? Don’t want to stifle development. Higher insurance prices, more liability, ......... C. Statutory Modifications Washington’s revision of product liability. One section to define terms. 7.72.030 - liability for manufactures (distinguishes from sellers). (1) uses the word negligence (a) design defect - at the time of manufacture (b) warning - at time of mfg (c) warning - after mfg (2) Strict liability for manufacturing defect TORTS OUTLINE 49 Not really a true negligence test. The court decided strict liability for design and warning. D. The Restatement of Torts CHAPTER 10 PROFESSIONAL NEGLIGENCE A. Medical Malpractice 1. Negligence Knight v. Haydary Wrongful death and survival action based on medical malpractice after a lady died when being treated for a miscarriage. The doctors failed to diagnose a condition that killed her. Trial court directed verdict for the plaintiff. In a medical malpractice case, the plaintiff, by use of expert testimony, must establish the standards of care against which the defendant/doctor’s conduct is measured. Then the plaintiff must prove that, judged in light of these standards, the doctor was unskillful or negligent ant that his want of skill or care caused the injury to the plaintiff. In this case the experts did not agree as to how the patient should have been treated. Additionally, the plaintiff tried to prove what the proper treatment would have been if the doctors diagnosed the condition. The primary duty was to actually diagnose the condition. Only after proving negligent diagnosis could they question the treatment of the condition. Trial courts JNOV was inappropriate. Restatement (2d), Torts, §299A, comment f. Where there are different schools of thought ...... the actor should be judged by the professional standards of the group to which he belongs. The law can not sort out questions were experts reasonably agree, but there may be a minimum requirement of skill applicable to all persons of whatever school of thought who engage is any trade or profession. Basically, professionals are held to the minimum standard. 2. Informed Consent Wachter v. United States Short, fat, old lady whose double bypass didn’t work is pissed off because she didn’t know about some other procedure as well as some other complaints. Trial court granted summary judgment for the hospital (it was gov’t hospital). Informed consent - a physician has a duty to explain the procedure to the patient and to warn of any material risks or dangers inherent in or collateral to the therapy, so as to enable the patient to make an intelligent and informed choice about whether or not to undergo such treatment. The duty to disclose specifically requires a physician to reveal the nature of the ailment, the nature of the proposed treatment, the probability of success of the contemplated therapy and its alternatives, and the risk of TORTS OUTLINE 50 unfortunate consequences associated with such treatment. As to what should be disclosed, the standard is whether a reasonable person in the patient’s position would consider the data significant to the decision whether to submit to a particular treatment or procedure. The elements of prima facie case of medical malpractice by failure to obtain informed consent are (1) a material, undisclosed risk existed; (2) the risk occurred; and (3) injury flowed from the occurrence. 3. Statutory Modifications Forms: (1) negligent procedure (2) express warranty - rare because doctors usually qualify their statements (3) uninformed consent (a) Risks (b) Alternatives Statute - reasonable patient standard for uniformed consent. - What would a reasonable patient want to know. In some jurisdictions it is a reasonable physician standard. Dewolf - most health care providers do not do enough with paper to inform the patients. A handout would help to establish what the doctor told them. Statute - obtaining written consent is prima facie proof the patient gave informed consent. B. Other Forms of Professional Malpractice CHAPTER 11 RESCUERS, JUSTIFIABLE RELIANCE, AND THE EXTENSION OF DUTY TO REMOTE PLAINTIFFS The previous chapters dealt with cases where the defendant affirmatively did something to injure the plaintiff. This chapter deals with injuries caused by the defendant’s failure to act, “sins of omission”. Buch v. Amory Manufacturing Co. Tarasof v. Regents of University of California Wrongful death action. Therapist didn’t do enough to keep murderer from killing the plaintiff’s daughter. The therapist had campus police detain the guy, but he didn’t call the victim. Common law has traditionally imposed duty only if the defendant bears some special relationship to the dangerous person or to the potential victim. The key is foreseeability. The plaintiff says reasonable care is required - duty to warn. Defendant responds with: (B) No relationship between therapist and victim - he only had a duty to the patient. Does a physician owe a duty to anyone besides the patient? The court holds there is a duty if there is a foreseeable injury...? There is a case cited in TORTS OUTLINE 51 which a Dr. prescribes drugs and the patient gets in a car wreck. This is distinguishable in that the Dr. encouraged the behavior where in this case the therapist did nothing. (C) Don’t want to break the confidentiality. This goes nowhere since he already told the campus police about the guy. Policy/Principle: The tort system could force people to do the right thing; on the other hand, where the defendant is in a position to do something instead of nothing, tort liability might make them choose nothing at all (i.e. change the nature of practice - stop counseling people with problems.). Brown v. United States Lobster fishermen in a storm. The families of the decedents sue the weather service. The trial judge found the government liable. Did the government create a duty by having a weather service? NO, because there must be just justified reliance. The defendant must lure the plaintiff into relying on them. Even though the plaintiffs relied on the weather reports, it was not justified. Weather reports are often inaccurate, nobody should entrust their life to a weather report. There is a second issue of sovereign immunity. The defendant argues discretionary function. Replacing the buoy was discretionary. They chose to spend their money on other stuff. The court agrees - allocating scares a resource is policy making. Justifiable reliance vs. Duty. Defendant’s acts vs. lack of defendant’s action. If the defendant had induced the plaintiff to rely on him, he has a duty.