Child is accused of contributory negligence, but court finds child can not be held to standard of care. Defendant says parent's negligence should be imputed to child. What if it were a dog rather than a child? Could owner's negligence in controlling dog = parent's negligence in controlling child? Even if it seems like plaintiff cannot prove prima facie case, still give possible contributorily negligence defense (on exam)!. Assumption of risk--another way to cut back on defendant's liability. Professor is available on Tuesday and Wednesday or by appointment Final Exam, closed book will test: 1 - Knowledge of Basic Principles and Court Laws 2 - Analytic Ability - Application 3 - Organizational Skills Torts: private or civil wrong other than breach of contact for which court will provide a remedy in the form of a cause of action of damages. Civil wrongs, not criminal wrong; however, criminal act may give rise to cause of action in torts. Contracts involve voluntarily situations between parties, where parties are in position to negotatie. With tort cases, one is not in position to negotiate with all possible parties that might be involved. -& Look at Epstein Table of Contents -- basic outline of course -- should create an outline Several categories of torts, classified by standard of liability: - Intentional Torts - Allegation and proof that alleged wrongdoer acted with requisite intention. - Trespass, battery, conversion (?) - Intention is only one element to satisfy intentional tort - Torts where liability does not hinge on wrongdoers' intention, but whether defendant met standard of care ('unintentional'?) - Where party has not met standard of care, party is 'negligent' - Negligence (breach of duty) is only one element that has to be satisfied - Strict Liability: Liability hinges neither on intention nor negligence - Could hold someone liable in highly risky behavior, e.g., someone using explosives. - Parents could be strictly liable for torts of children - Employer could be strictly liable for employee's behavior (even if employee is negligent or intentional) Course will not approach product liability or worker compensation Law of torts distinguishes between two important things: - If you intended act that caused harm, you might not intend harm itself (intent of act vs. intent of harm). Vosburg v. Putney:
- Putney intended to touch Vosburg's shin with toe, but did not intend harm. Is intent to act and intent to harm distinction that can be made? In strict liability, this distinction does not matter. What are permissible excuses? - For every tort, there are elements must plaintiff must plead, allege, and prove to make prima facie case for liability to lie with defendant: intentionality, harm, etc.. - Prima facie case: elements which define tort. - If plaintiff adequate pleads prima facie case, case can go to trial. If plaintiff doesn't prove (with evidence) prima facie case, defendant can move for summary judgement, otherwise defendant must mount defense. - That is: defendant doesn't need to mount defense unless prima facie case has been made by plaintiff. - Prima facie case has been made, defendant can argue: - Self-defense - The more allowed excuses, the narrower the box of 'tort' becomes. - Limits on excuses: one can use force to protect oneself, but when can one use deadly force? Vosburg v. Putney - Intentional Tort/Battery Case - Prima Facie Case: - Defendant must act - Act must be intentional - Act must cause contact with plaintiff - Contact must be either harmful or offensive - Injuried party must prove each and every element of prima facie case (sometimes responsibility is shifted to defendant, in special cases) - Facts - January 1, 1889, plaintiff is injuried while 'coasting', two months later leg is not completely healed but is nearly healed - Special verdict (finding of facts) plaintiff was not lame on February 20, 1889, immediately before contact occured. Leg was neither inflamed nor diseased. - Plantiff did not feel contact, but later experienced pain, surgery, etc.. - No question about whether defendant acted, whether act was intentional, whether defendant intended harm (no), whether plaintiff was harmed (yes). - One could allege that injury was mere coincidence, or that kick was only 'nominal' cause--instead of leg inflamming the next day, it inflammed that day, for example. - Assault: to put person in apprehension of being battered. Need intent to cause harm. - Battery: maybe intent to cause harm is not necessary, but intention to do an unlawful act. If intention exists, you have assault; if harm occurs, you have battery. - If defendant is kicking leg out repeatedly without contact or physical harm, defendant is only liable for assault if intent to cause harm is present. - Court never explains in Vosburg why intention to do harm drops out after contact (battery); this may be carry over from criminal law. In criminal law, person needs specific intent, except where there is harm, in which case only 'general intent' is needed.
- Notion of assumption of risk: if everyone were kicking, for example, they might not be liable. - Lots of counterfactual questions. - Strict liability would make things much easier, simpler. As log as defendant acted purposefully, would be liable. Streamline system, more efficient, less costly. - Or: have standard of care--if defendant meets standard of care than person is not liable, otherwise if harm results they are liable ('negligence system'). - There are alternative systems that may have advantages. - Under negligence system, would Vosburg be decided in same way? - Plaintiff could have assumed risk, this would provide defense, but this is not an absolute defense. Class covers Epstein 4-17. Last class discussing Vosburg Battery Case. Intentional tort of battery, need: - Harmful Act - Intention to Commit Act - Unlawful act, not necessarily criminal - Context: unlaw act in classroom. - What is remedy? - In torts, place *all* loses directly resulting from defendant's action, whether foreseeable or not. - In contracts, loses are often equal to that which are foreseeable by defendant. - Example: improper tuxedo is delivered to groom resulting in cancelled wedding. Only foreseeable damage is difference in value of improperly fitting tuxedo and properly fitting tuxedo, rather than damages resulting from failed wedding. - In contracts, both parties have opportunity to bargain with respect to consequences of failure. In torts, there is no opportunity to decide in advance what consequence will be. Tort liability forces potential tortfeasor to internalize costs. Provides disincentive to misbehave. - In Vosburg, one could say there is informal consensual arrangement between boys--assumption of risk, suggests contractual elements with respect to calculating damages. If plaintiff has consented to activity, plaintiff should not expect to be compensated for injuries. Vosburg exposes interface between contracts and torts. - Contributory negligence: plaintiff's failure to wear shin guard given knowledge of plaintiff's condition. - Might failure to wear seatbelt be contributing factor to injuries sustained in car crash? - Vosburg starts book because of issue of intention to act which causes harm vs. intention to cause harm. - In case of assault, intent is important. In case of battery, you don't need intent to cause harm itself. - In Garrat v. Dailey (quoted in Vosburg), there was no actual contact. Defendant moved chair plaintiff was about to sit in. *Substantial certainty test*: a battery would be established if defendant knew with substantial certainty that the plaintiff were going to sit in chair. Defendant need not know with substantial certainty that *harm* would occur. Could be held liable for weaving between lanes in a car, causing accident even without contact. - Third restatement of torts distinguishes _Purpose_ and _Knowledge_. -* Classic Assault: "Failed battery." Substantial certainty test migrates into assault and other areas of torts. - What constitutes substantial certainty that harm will occur?
- Discussion of liability of children, teenagers, etc.. To extent children, teenagers, insane people are not held liable, victim of tort goes without compensation. Might want to hold parents liable. Mohr v. Williams - Doctor operated on ear other than that which was agreed. Defendant liable for assault and battery. - Prima Facie Case: contact, intention, injury, unlaw (not according to contract which specified other ear). - Liability does not determine damages; in Mohr v. Williams plaintiff is ultimately rewarded only nominal damages. - In case where act was beneficial, you still have all elements of PFC for battery, but damages might be mitigated. -* Question here is what constitutes consent? Does consent require language? When might actions or language provide consent? - O'Brien v. Cunard Steamship Company: patient puts out arm, implying consent. Not discussed in Epstein: evidence that doctor harbored prejudice against Irish and against women, it was not clear that people could leave line or leave room without receiving vacation. Not clear if situation is consent or coercion from 'real life' circumstances. - Consent is affirmative defense even when Prima Facie Case is made. Can be substituted consent when consent is actually not available--guardian, etc.. Always conflict of interest--person causing harm can claim substituted consent. - Emergency consent--fiction is that person *would* have consented had they been able to do so. Want to encourage others to provide assistance in emergency situations; otherwise good samaritans could be making themselves liable for battery. - Ordinary rules of autonomy must be suspended when person is unable to contract for their own interest. - Kennedy v. Parrott - Court did not permit tort of trespass against the person (battery) as decision to operate on cyst in interest of patient. Should tort law be used in enforcement of criminal law? Should law recognize cause of action when plaintiff was engaged in criminal activity (i.e., boxing in unregulated match?) Hudson v. Craft - Although both fighters engaged in consensual illegal activity, they can sue each other for battery. - If two fighters are equally matched, then injuries inflected on each other are roughly equal, thus damages will be roughly equal. - If fighters are significantly mismatched, stronger combattant should know he is likely inflict substantial body injury and be liable for injuries, thus should only engage in match if prize is greater than potential damages in battery case. - Consent does not negate Prima Facie Case for battery. - Minority rule: 'volunteer suffers no wrong', combattants had both volunteered, thus law should not recognize a harm. - Other fighter is named as defendant, but other fighter is never served, thus suit is really between fighter and promoter. - Court allows case to go through in order to facilitate aim of criminal law, presents powerful disincentive to allowing these fights to occur. - Should court law have special rule for criminal activity?
Definition on recklessness (p. 27) from Third Restatement. Mental States of Actor--possible defenses (p. 30-31) McGuire v. Almy Nurse McGuire knows defendant is insane at time of employment and is occasionally violent and aggressive. Enters into room to remove objects that could cause injury. Defendant strikes nurse with the leg of furniture, McGuire sues Almy for battery. Is Prima Facie Case there? - Defendant acted. - Act was intentional. - Act resulted in contact with plaintiff. - Contact resulted in injury. What elements might not be satisfied? - Was act intentional? - Reasonable jury might conclude yes, but this is weakest element of case. - If defendant is so insane they could not control what they were doing, then act might not be found intentional. - Two completely different levels of defense - Element of Prima Facie Case was not satisfied - Affirmative defenses - Additional facts that might mitigate Prima Facie Case which has already been proven - In this case, defendant wants to negate element of Prima Facie Case: insanity prevented defendant from having requisite intention. - Issue of case: Is insanity ever defense for tort of battery, and, if so, when? Is it defense under facts of this particular case? - Governing rule: Insane people can be held liable for battery. - Court wants to make distinction between those torts where a specific intent is present vs. only require a general intent (battery). - Specific intent: person intends the harm itself, not simply intending the act itself which results in the harm - General intent: need only intend the act itself - Question becomes: Is defendant capable of forming requisite intent to do act? Did defendant intend act? - Courts generally frown on insanity defense in tort action, for policy reasons. Practical considerations support holding people liable even if they are not morally culpable. Between two 'innocent' parties, who should suffer? Court believes insane defendant should be liable. - Might cause guardians of insane person to take responsibility. - Same questions exist for children. - Is there any alternative to intentional tort system? - Holding defendant liable will not change their behavior (if they are insane). -* Rules in criminal law are not same as rules in tort law. - Can insanity defense ever helpful in case of conversion? - Court rejects argument that plaintiff assumed risk; court may have asked too quickly in rejecting this defense. Took assumption of risk defense away from jury, probably should not have done that. - Injury took place in context of work; now most of these sorts of injuries are no longer handled by tort law, but instead fall under worker's compensation law.
Courvoisier v. Raymond - Raises defense of 'self-defense' - Defendant labors under mistake of fact concerning plantiff's intention - Defendant shoots plantiff thinking plaintiff is threat to life; in fact, plaintiff is police officer doing his duty. - Prima Facie Case: - Defendant acted. - Defendant acted intentionally. - etc. PFC proved. - Trial Court's instruction: If you believe, at time of defendant's act, plantiff was not assaulting defendant, verdict should be for plaintiff. - On appeal: if plaintiff was not assaulting defendant, was there sufficient evidence to think plaintiff was assaulting defendant? - Trial court does not allow for mistaken self-defense, but appeal court does. - Self-defense is potential affirmative defense. -& Read notes on 36 & 38 regarding self-defense M'Ilvoy v. Cockran - Defense of Property can be affirmative defense for battery - Defense of Property afforded much lower protection than defense of person (self-defense). - Injury to person's property may be better protected by award of money damages. - Cannot use more force in self-defense than originally used against you--law does not want to encourage 'escalation' - e.g.: cannot wound someone to protect your property, can only wound to protect your person - Law is unable to articulate response to person who refuses to leave property but is not doing anything else--there is no force which can be used in terms of 'self-help'. Bird v. Holbrook - "Spring gun" case - Plantiff enters property and is wounded by spring gun - Was there an assault and/or battery? - Defendant acted by setting spring gun in position to fire - Defendant's act was intentional - Act caused contact with plaintiff - Contact was harmful/offensive - PFC is satisfied -* If PFC is not satisfied, defense does not matter. - If M'Ilvoy case is correct, can Bird be decided in any other way? Force cannot be appropriate in Bird case. - Law does not bar recovery if plaintiff was engaged in unlawful act Use of force allowed in response to 'hot pursuit' or fraud. Example: someone impersonates a parking attendant, drives off with your car, force is allowed at the time in recovering property. cannot use force if property has been lost 'voluntarily'--if you bring car to mechanic, later mechanic refuses to return car, cannot use force to recover car. Law is not that powerful. Necessity Defense
Ploof V. Putnam - Owner of sloop sued owner of dock for unmooring sloop which was moored to survive storm - Second cause of action: breach of duty for defendant to actively unmoor sloop from dock - Necessity exception to 'exclusion' exists to overcome enormous 'hold up' problem. Tremendous benefit to plantiff, little cost to defendant. Without necessity exception defendant could extract damages from plaintiff. - Notwithstanding plaintiff's possible negligence, plaintiff can still exercise necessity defense. - Plantiff is entitled to use force to obtain right to use property. - Necessity privilege (or defense) only lasts as long as necessity itself lasts. - Necessity may require specific act--for example, throwing cargo overboard, that is may require use of other people's property. Does not answer question of 'which cargo to throw overboard?' - Loss should be pooled among all owners--'average general contribution' rule Vincent v. Lake Erie Transportation Co. - Completes conditional defense of necessity - Defendant's ship is already at dock when storm starts - Due to storm and inability to fid a tug to take ship away, it becomes a necessity for ship to remain moored at dock. - Ship causes major damage to dock during storm - Defendant's rights to use property is conditional on defendant compensating property owner for use of property - Case does not present cleanest example of necessity defense; parties were in a consensual arrangement before storm arrived--maybe consensual arrangement asssumed risk that storm would arrive and boat would not be able to leave dock. - Issue should be dealt with by contract, custom, etc., necessity might not be needed--risks could be allocated less by tort law and more by contract and custom. Above cases are 'private' necessity cases--to be contrasted with 'public' necessity--notes 3,4 on 58-59. Discussion of differences between civil and criminal battery, torts and criminal law, etc.. Assault, p.64 I. de S. and Wife v. W. de S. - Common law protection against injury was never construed in a narrow or 'hyper-technical' way, include injury of 'fear of injury', rising out of distinct threat to use force against person. - Defendant struck door of tavern with hatchet, gives rise to own cause of auction--trespass on someone's property. -* Case allowed action for harm even though there was no trespass to the person. - Holding defendant liable for assault must take into account the mind of the plaintiff--real and personal property can not be assaulted (they do not have mental states, cannot suffer fear). - What sort of mental state does defendant have to have in order to commit assault?
- Did defendant intend to frighten but not hit plaintiff with hatchet? Intent of fear vs. intent to hit. - Both scenarios are consistent with fact that plaintiff saw defendant before he struck out with hatchet, but involve completely different accounts of the intentionality involved. - Modern tort law allows both situations as assault, so long as the ability to afflict immediate harm is present--assault requires the plaintiff to be apprehension of immediate harm. Brockner (p. 69) - Shows limits of assault case - Person is speaking over telephone, not in position to carry out immediate alleged threat, plaintiff was not indifferent to the present threat to future harm Savage (p. 62) - Conditional assault, committed by plaintiff - While plaintiff places hand on his sword, says if courts were not in session, I would not take such language from you - Defendant raises plaintiff's conditional assault as an affirmative defense - Plaintiff is suing for assault, battery, and wounding - Court decides other party was not in imminent danger, but perhaps hand on sword should speak louder than words. Court ruled correctly if emphasis is placed on words rather than on action. - Reasonable people could disagree about interpretation of plaintiff's acts/words - What would be result if there were no words at all, just putting hand on sword? -& Get through page 87 for Monday. Case where person intended to physical injure person but failed to actually have contact. Need to be careful in assuming attempted battery is necessarily assault: - If someone attempts battery from behind, potential victim doesn't realize person is there, thus doesn't havve any apprehension of physical harm. - Measure of compensatory damages in battery: what is necessary to bring person back to where they were but for the battery - With assault, since there is no battery, can't compensate person for physical harm, must compensate for 'apprehension', very difficult to measure. - One measure would be cost to plaintiff/victim of 'avoiding' or 'repelling' the battery - Does plaintiff have some obligation to mitigate battery? Offensive Battery (P. 65) - Person deliberately spat in face of another at the end of court case - Actual physical harm is minimal; law generally doesn't worry about sort of harm caused when injury is small or non-existent (society does not want to spend time/cost adjudicating these things). - Law does not recognize cause of action for _de minimus_ injury; even if it did, the damages would be nominal. - Where action is deliberate, law recognizes as an *offensive battery* case. - If harmful but not offensive contact results, you will have harmful battery, not offensive battery. If both result, you will have both sorts of battery.
- Context is very important - Court repeatedly stresses 'mental element'; defendant's mental state of 'malice'. - Hard to show disrespect for someone (defamation) without 'publishing' it in some way--element is lost if contact in done secretly, likewise insult and humiliation are reduced if person is not aware of offensive contact. - Example of cook spitting into food of customers who complain, but customer is not aware, thus does not give rise to tort of offensive battery. -? Why would someone bring a cause of action if they had no knowledge of offense? (all this focus on the plaintiff having know contact occurred) - In order to have offensive battery, defendant needs to act with intention of having offensive contact - Classic offensive battery is one where actual harm is small or nonexistent -* Law wants to prevent retaliatory action; if act would provoke retaliation, is more likely to be offensive. - Question of transferred intent - Offensive battery does not necessarily require person to think physical harm. False Imprisonment (P. 67) - Intentional unconsented and unprivilege confinement of another who either knows of confinement or is harmed by it - Person's package is blocked, but they can freely turn around and go back whence they came, thus false imprisonment is denied (should have sued for obstruction of right-of-way) - Is plaintiff actually confined/imprisoned by defendant? Plantiff needs to know about it. Elements of Prima Facie case. - As restrictions on person's liberty are reduced, offense may move from 'imprisonment or confinement' to 'exclusion'--i.e., person is free to move about but is excluded from certain area. - Imprisonment could just take form of threats - Damages will be increased proportionately to risk plaintiff risks from defendant in fleeing location On Tuesday, will begin talking about Strict Liability, etc., next chapter. False Imprisonment continued... - Could include case where police arrest someone with no grounds for doing so Griffin case--'confinement by analogy' - No compulsion for plaintiff to go along for ride, but failure to do so put plaintiff's personal property at risk - Plaintiff is entitled to self-help, which includes getting into car False imprisonment is generally considered to be intentional tort--security guard who locks building without knowing someone is in building has not acted intentionally Where injury is slight, cause of action can go forward to protect dignitary losses
If plaintiff never finds out that they were confined, there will be no lawsuit, but tort still may have been committed. May have cause if you find out after the fact. Knowledge of false imprisonment will effect damages. Coblyn v. Kennedy's, Inc. P. 71 - Thinking that Plantiff was shoplifting, defendant employee imprisoned plaintiff, who suffered heart attack. - Do we have PFC for false imprisonment? - Argument that confinement was privileged - Was privileged act reasonable to suspect? - Failure on part of employee to disclose that he was employee of store and reason for detention - Private citizen should not have greater power of detention than would police - Even if false imprisonment tort fails, might still be tort in negligence. Contributory vs. Comparative Negligence Regimes - Consent is another element which would negate Prima Facie Case Issue of 'reasonable time' in mine shaft elevator - Main issue in case is 'reasonable delay', issue for jury to decide Tuesday, October 23 -- Practice Exam - Intentional affliction of emotional distress -- will not be covered on the exam. Court recognizes independent tort of intentional affliction of emotional distress--practical joke in this case. Defendant did not intend harm but did intend act which caused harm. "Foundations of Legal Liability" p. 78 -- important point about parasitic liability. If there is no independent cause of action for intentional inflection of emotional distress, may have to be parasitic on fraud, for example. You see parasitic liability most often in cases where law is in transition. Conflict between constitutional protections on speech and tort liabilities for harms resulting from one's speech. Problem emerges when there is no other basis for action other than emotional distress; how do you measure emotional distress, how do you place dollar value on it? Skipping through rest of intentional affliction of emotional distress, moving on to Chapter 2. Chapter 2: Issue of holding persons liable for harm to others when act is not intentional. 3 classes of circumstances: - Defendant in driving down Huntington Avenue, sees Dean of Law School, and intentionally hits Dean with car--classical case of battery
- Defendant is preoccupied with changing CD in car player, never sees Dean, still hits Dean and causes same physical harm. No intent of harm. Classical case of negligence. - Defendant is driving carefully, Dean runs out into street from between parked cars when it is too late to stop, same physical harm results. Chapter 2 introduces historic and analytic foundations to Strict Liability and Analytic Liability Under traditional theory of strict liabity, just act: did defendant cause harm to property?... PFC: - Did you act? - Did your act cause harm? - Then you are liable (unless law provides for exceptions) Traditional Negligence - Did defendant act without care? Compare how cases would come out under strict liability regime vs. negligence regime. _Thorn Case_ (p. 86) - Defendant and plaintiff own adjoining land, defendant has thorn bush close to boundary of land - In process of trimming thorn bush, some thorns land on plaintiff's property - Defendant enters plaintiff's land to remove thorns, allegedly tramples plaintiff's crops - Plaintiff sues defendant for trespass. Thorns in question were of value to defendant. - Two lawyers for defendant, three for plaintiff, two judges writing opinions - Defendant's lawyer argues that tort liability and criminial liability have common basis--must look at mens rea. - This position is widely rejected. - People are sometimes held liable in tort when acts committed are in fact lawful and/or unintended. Need to protect *innocent plaintiffs*. Want to give incentives to potential defendants to take care. - Even rejecting this position does not tell us when we might want to hold someone liable - Judge seems to be adopting a negligence standard - Is there an objective standard or a subjective standard based on what the defendant might think? - Other judge adopts uncompromising strict liability rule - Should we examine intentionality aspect of this tort, or rather strict liability vs. conditional right of defedant to go onto property to recover thorns? _Thorns Case Continued_ (p. 86) - With strict liability, intention 'drops out'. - In Thorns case, parties are first arguing about whether strict liability or negligence standard should be used, and then secondly whether there are mitigating factors. - Could have privilege as excusing condition even if pfc case exists for either strict liability or negligence - Assuming defendant has some right to recover thorns - Room for parties to bargain
- Regardless of liability regime, there still may be conditions which mitigate situation Most cases in book are present to show alternative between strict liability and negligence standards. Would appear that ancient/traditional standards tended more towards strict liability. Can't push 'historical material' too far. Modern tort law is somewhat divided on central issue of whether strict liability or negligence regime is better. Ancient regime was somewhat muddled in its analysis--claimed to be strict liability regime, but occasionally negligence came into play. _Weaver v. Ward_ (p. 92) - 161 English Court - Soldiers involved in war games exercises - Ward accidentally shoots Weaver, Weaver sues Ward for assault and battery - Seems to be classic case of assumption of risk--Ward did not force Weaver to participate in these games. - What are parameters/boundaries of assumed risk? - No discussion of assumption of risk in case itself - In order to negate pfc, defendant must prove that harm was not caused by defendant's action or that the defendant didn't act. - Example: defendant did not pull trigger, someone bumped into defendant causing gun to fire. Defendant did not cause harm. _Scott v. Shephard_ (p. 107) - One instance where Cause of Action is allowed against 'remote author' of mischief (preview, jump ahead) _Gilbert v. Stone_ (p. 94) - Animal liability question, and conflict between strict liability and negligence - Horse bolted, causing harm (ran into plaintiff), but this was not action of defendant - Under negligence regime, defendant would be liable only if not using proper level of care as required by law - Was defendant riding with care, handling horse properly? - Would horse have bolted if defendant were better horseman? - If you adopt *vicarious liability* (if rider of horse is liable for actions of horse). A simple vicarious liability rule would eliminate the need to determine if rider was negligent. "It's your horse, you are vicariously liable for the things your horse does." Possible defense in strict liability regime--you took 'exceptional care' and event still happened. Later, fence shifted from standard of exceptional care to standard of ordinary care. Question of when do you cross the line between strict liability and negligence standards as you lower standards for exceptions? Has to be continuum rather than binary system: Strict Liability, No Defenses/Excuses Whatsoever <---> some allowed defenses pertaining to level of care <---> negligence standard, what is required standard of care? <---> standard of care = 'nothing' Yellow Cab Company --> moving into negiglence regime Intentional torts and unintentional torts
Put aside intentional torts (where intentionality is the basis of liability), looking at unintentional torts: Strict Liability vs. Negligence Possible Defense - Lack of negligence Excuses in strict liability regime -- as more excuses are permitted, move towards negligence regime _Fletcher v. Rylands_ 112-114 - Represents partial repudiation of Brown v. Kendall - Poses challenge to universal negligence principle - Brown v. Kendall posed principle that would allow someone to escape liability by lack of negligence - Challenge for strict liability: is it able to provide notion of proximate cause such that defendant is not held liable for all bad things that happen infinitely. - At trial level, water escaping is considered trespass. Defendant's water was trespassing on plaintiff's mine. - Question about whether harm is direct? Does harm directly result from act or indirectly? - Blackburn: Under strict liability, do not need to inquire whether harm was direct or indirect. Only defenses would be "act of God", "not really defendant's act that caused harm but was act of 3rd party." _Brown v. Collin_ p. 123 - American reaction to Fletcher v. Rylands - Economic argument: if you hold defendant strictly liable, creates disincentive for defendant to use his property--'best way to escape liability is to do nothing'. - Strict liability provides too much of this negative economic incentive--claims this is the wrong system _Excerpt from "The Common Law"_ p. 131 - Justice Holmes - Each paragraph is worth close inspection - Contract vs. tort-related liabilities for harms - Torts--no previous agreement as to who will bear risk -* Essence of tort law is about figuring out when we want to hold someone liable for the harms they caused, and when we want to not hold them liable for the harms they caused--to fix dividing line between these cases - Personal autonomy grounds for strict liability are incoherent because they allow for no limitation upon liability - "If you act, you need to be responsible for all consequence of your act, no matter how remote." Corrective Justice approach _Buchanan Case_ p. 124 Could argue that strict liability might encourage people to make full use of their property--encourages those who invest in their property... Those who improve their property which is damaged by someone else, that other person could be held liable under strict liability theory.
Law should find liability rule that comes up with best social benefit -& Page 138 for tomorrow More on tension between negligence and strict liability... Low probability events that cause harm. Cricket case where person is suing property owner (cricket club). Why isn't plaintiff suing cricket player? Maybe wants to have cricket club move. Also, club might be 'deeper pocket'. Might be more concerned with getting rid of club than injuries suffered. Under negligence system, there is a longer chain of events to take into account. - Was the plaintiff hit by a ball? - Was the cause of the plaintiff being hit by a ball the lack of care of the defendant? - Was the plaintiff being hit caused by the cricket club placing the pitching mound where they did? By not having a high enough fence? Etc.? - Under negligence system, if defendant is not negligent, there is no liability. - Difficult part for plaintiff to prove is breach: hard to say that defendant's were negligent in where they put pitching mound, etc.. People thought strict liability was primitive/unfair to defendants generally. Negligence system thus trades unfairness to defendants to plaintiffs. P. 143 Questions 1-3 - Think about institutional question: why go after batsman when it's possible to sue club? - If batsman is found liable, club could be found *vicariously liable*. - Other theory is direct liability: club is not vicariously liable but directly liable. - Do we want to encourage defendants to build a higher fence? Mere fact that Mrs. Stone was injured does not necessarily mean defendants were negligent. Strict liability rule with vicarious liability rule attached would allow cricket club to know that, on the off-chance, someone on the street is hit, they could be held vicariously liable. P. 148 Why should strict liability regime apply to product liability? Where to put burden? (discussion) what Negligence Issue - Chapter 3 (p. 153) To prove legal negligence need:
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Duty Breach Causation Injury
Need to keep elements in mind throughout chapter. This chapter focuses on duty and breach. "What sort of care would a reasonable person take?" Negligence is the person making the mistake of not taking that care. What is 'a reasonable person' for purposes of tort law? _Vaughan v. Menlove_ (p. 155) 132 Eng. Rep. 490 (C.P. 1837), 157 Eng. Rep. 1351 (Ex. 1860) - Defendant keeps haystack on his property close to border of plaintiff's property. Plaintiff claims is fire hazard, but defendant is insured. - Haystack catches fire, burns plaintiff's property. - Economic theory of torts: mechanism for externalities to be internalized. - Court instructs jury that question is 'whether or not fire is caused by defendant's gross negligence in failing to exercise reasonable care?' - Jury found for plaintiff and defendant appealed. - Defendant argues: - Even if instruction to jury were correct, they were confusing in that instructions made reference both to gross negligence and reasonable/ordinary care. Argues that jury may have adopted higher standard of ordinary care rather than lower standard of gross negligence. - Judge Park's opinion (p. 158) tension between ordinary care and gross negligence standards. Defendant has been warned that hay may be dangerous. Park thinks defendant was negligence (failure to meet even ordinary care). Even with higher standard, defendant breached standard of care. - Ordinary care: what would a reasonable person do under the circumstances? - Claims he should be held to gross negligence standard. - Defendant claims 'subjective standard' should be used rather than 'objective standard'. If standard of ordinary care is subjective, then we need to examine defendant to determine standard. - Combined: standard of care should be whether or not he has failed to meet a subjective standard of gross negligence. - Subjective: what did this defendant think was reasonable under the circumstances? Objective: what would objective reasonable person have done under circumstances? - Judge Tindal: 'Rule of Law': you must enjoy your property so as not to inqure that of another. Is this an absolute duty? Must be 'objective' standard--person of ordinary prudence would observe rather than Subjective standard of 'what this particular individual would have done'. -* Whatever standard of care we impose (gross negligence, ordinary negligence), do we define in terms of an objective standard or do we define in terms of a subjective standard? - Modern law imposes objective standard, increasingly subjective elements come into play to 'tweak' it. - Do you want to hold a ten year old to same objective standard that you would hold a 25 year old?
- Do you want to hold people of different levels of physical ability to the same standard? - Elderly? Need to be able to articulate argument as to why 'x' is standard of care that a reasonable person will meet. What constitutes a Reasonable Person? _Roberts v. Ring_ (p. 163) 173 N.W. 437 (Minn. 1919) - Elderly defendant in slow-moving car hits young boy. - Could plaintiff sustain case for battery as intentional tort? - No, defendant was engaged in lawful activity without intent to cause harm nor was there a substantial certainty that someone might be hit. - Intentionality element is weak. - Should reasonable person drive with poor sight and poor hearing? - At trial, defendant was found not to have been driving negligently - Could focus on causation element--if boy had not run out in front of car, accident would not have happened. - Defendant argues that proper standard is duty of reasonable care for this kind of person; elderly person with poor vision and poor hearing. Question becomes did defendant act in reasonable way under circumstances? Court rejects this argument. - Question becomes decision to drive in the first place rather than specific actions in incident. - Defendant is not able to argue that standard of care should be relative to him, but plaintiff is successful in establishing that standard of care is specific to child. - Should standard be objective or subjective? - Could argue that defendant hasn't even met subjective standard--should have known that it was not safe to drive. Negligence standard ("standard of ordinary care") works best in 'stranger' situations--where parties don't know each other. When defendant's abilities differ, may want to modify standard of care. Could hold professional driver to higher standard. We hold doctors, lawyers, professionals, etc., to different standard than average person. Alternatively, 'beginners' might be held to lower standard of care. _Daniels v. Evans_ (p. 165) 224 A.2d 63 (N.H. 1966) - Minor/beginner is not held to same degree of care as adult (trial court). - Appeals court rules minor is engaged in adult activity and thus should not be held to different standard of care. Restatement of Torts provides for blanket exemption for children under five years of age. But guardian still might be held liable for activity. _Fletcher v. City of Aberdeen_ (p. 173) 338 P.2d 743 (Wash. 1959) - City erects barriers to protect pedestrians, one barrier is removed to facilitate construction work. - Blind plaintiff falls into ditch and is injured.
- All parties agree city had some duty to warn of danger - If plaintiff had not been blind, might have seen ditch, known about risk, even though City was in breach of duty, could argue plaintiff's contributory negligence or challenge causation element. - If accident had occurred at night when even sighted person could not have seen ditch, City might still be liable. - Duty is much harder to establish on private property. If you are inviting people on to property, duty might exist. (duty to invitee, not to trespasser). - Plaintiff prevails mainly because accident takes place on public road where they had a right to be. _Lyons v. Midnight Sun Transportation Services, Inc._ (p. 175) 928 P.2d 1202 (Alaska 1996) - Emergency may change what is reasonable to do. Trial court gave 'emergency exception'. Marginal incentives to take care--everything happens at the margin. According to Abraham and Jeffries, 'how much will be lost if certain precautions are taken?' It will cost defendant something to take additional precaution. Should not matter how wealthy defendant is. Should we take wealth into account in setting duty of care? Wealth is not easy to calculate. Pipes case... Source of liability defetive installation of pipe or failure to do something once you see snow and ice accumulating on pipe, or some combination? Duty to repair pipes or remove snow or ice, once the risk becomes apparent. Similar in some ways to Stone v. Bolton, Cricket Case. Is person in position of contributory negligence to calculate what is reasonable behavior under circumstances? Difficult to characterize person's behavior as rash or reckless in Eckerdt, although this is ex post reasoning. Good samaritan issue... Value of action is 0.8 if 40% chance of 2 people surviving. "Rashness test." Recovery is allowed for conduct that is not prudent, given probability of success ex ante. Value of Person's Life Damages awarded for prolonging sickness typical much greater than that for wrongful death--thus tortfeasor has perverse economic incentive to commit murder once they have caused great harm. Criminal law can handle these situations. Dollar value of insult? alternative?' Problematic in tort law, 'but what's the
'Horse for horse' vs. 'person for person'. If there is a 50-50 chance that killing one horse will save the other horse, what should happen? What if both horses belong to the same person? Do we want to use economic/cost-benefit analysis? interests or case-by-case basis. Alternative, balancing
Defendant opens door, plaintiff rides bicycle turns corner, runs into car door and is injured. If plaintiff was contributorily negligent, then defendant would have escaped liability completely. Under modern comparative liability, if defendant can show that plaintiff was negligent, then defendant does not escape liability completely but rather you apportion liability between plaintiff and defendant. Contributory negligence does not arise until plaintiff has first established prima facie case for liability against defendant. Question is how long after turning the corner did plaintiff have to see double-parked car? Defect in jury instruction--since trial court did not instruct as to standard of care, jury might have thought about this backwards: "Because someone has been injured, someone must be negligent, and it must be the defendant." _Cooley v. Public Service Co._ P. 187 - Defendant installed power line, severe storm caused power line to break, power line hit a telephone cable, ultimately causing injury to plaintiff, who is on telephone at the time. - Any arrangement for hanging power line involves alternate perils. Method chosen by power company minimizes sum of risks. Since there was no desire on part of public to be without power, nor desire to re-orient behavior of company--has already acted in a way to minimize risk. - Under negligence system, defendant is not liable. - Idea of 'enterprise liability' -- liability associated with business's purpose Tomorrow -- 189. Hand formula 190 tomorrow-- Barge was struck by ship - Owner of barge sues towing company - Towing company either countersues against plaintiff for negligence or alleged plaintiff's contributory negligence as a defense - Issue on appeal is contributory negligence of barge owner - In order for barge owner to be contributory negligent, barge owner must have had duty to keep someone on board while barge is being tugged. (Need to have duty, breach, causation, and damages). - Issue on appeal is duty element. - Question is: would reasonable person in barge owner's position have kept someone on board while the barge was being towed? - p. 190 'Hand Formula': Defendant's duty of care is function of three variables: - Probability that barge will break away - Gravity of resulting injury if barge does break away - Burden
- Burden < Probability * Liability used to determine negligence - From lawyering perspective, stress variable (B, P, or L) which is in best interest of client _Practice Exam_ - Will be given fact pattern, some instructions, need to advise senior partner on merits of case. Not necessarily who will win or lose, just the merits of case. Do not need to figure out if it is a legal issue or not; do not need to figure out if it is a question of torts or not. - Will need to present the merits if the case is presented as an intentional tort, an uninetional tort, negligence, or strict liability. - Need to identify weakest element; if you are plaintiff's attorney, need to explain why this more controversial element has been satisfied. Also need to think about counterargument. What defense will the defendant raise? - Find basis of liability. Should be easier if basis is strict liability. - Questionable whether plaintiff could win on intentional or strict liability basis, is there a way to recast as negligence tort? - Has defendant done what reasonable person would do under the circumstances? - Your role is not to decide who should win, but to articulate the strengths and weaknesses of various weaknesses for cause of actions - Stone v. Bolton case - If you think that more facts (not changing facts)--i.e. what facts are missing that might be important--need to explain why those facts are important. - Practice exam will cover intentional torts. - Prof. does not care "what we think"--not what right outcome should be, but whether or not we can identify pertinent issues and explain why those issues are important and what arguments are surrounding those issues. - Don't spend great deal of time analyzing causation element, since we haven't covered that yet. - Don't need to cite name of particular case, but sometimes is easier (shorter) to argue by analogy to case. - Need to apply Hand Formula for what constitutes negligence - Principles about objective standard vs. subjective standard - Should consider tort in different categories (intentional, unintentional, negligence, strict liability) _Hand Formula_ - Reasonable person will take on precautions if it reduces the probability of them being liable but also taken into account the liability. More precautions = less probability of bad thing happening. - "If it's only going to cost me $1 of precaution, and I can reduce P * L by $10, worth taking action." - Having taken that precaution, is there is additional precaution that I can take, that might be a little more expensive of burden size, but continues to reduce P * L even more. - Keep doing this until the burden and probability * liability are equal. - Want to take into account Social Benefit of activity. Social benefit should not be at expense of greater harm. Driving car has social benefits - Driving down Huntington Ave at 120 mph = higher probability of liability
- Take precaution to drive more slowly, causes some burden, decreases probability and liability - Could be set by statute or by social norm rather than by each individual tortfeasor making calculation - Under negligence or strict liability, potential tortfeasor will probably take same precautions under Hand theory; difference is in whether they will be held responsible afterwards. Strict liability removes some of the litigation costs and uncertainity and difficulty in making calculation. _Andrews v. U.S._ (p. 197) --FIRE ALARM-Airplane examples 'Product' in product liability context would be service. Airline probably knows better than the passenger what is required to be safe. Do jury's use Hand formula in determining negligence? If they don't, what do they do? As counsel in this sort of case, you will give some sort of Hand formula. If we dispense with Hand formula, how else might you figure out what Duty of Care is? To get around ambiguities of cost-benefit analysis, look for other bases to establish duty of care: - Custom - What is role of custom in strangers vs. consent situation? - With strangers (highway), role of custom should be weak. What custom will potential tortfeasors adopt? May have incentive to adopt custom with very low duty of care. - Reason to believe people will adopt low standard. Need to come up with other system to take other people's well-being into account. - With consent situation, plaintiff needs to be induced to accept risk of situation. Potential tortfeasor needs to provide inducement to participate in activity. - Could negotiate situation: "I won't get in car with someone who won't meet a level of care with respect to driving." - Another problem with custom: what happens if the world changes? - Example: custom did approximate Hand formula, world changes, new technology is available. Hand Formula would give much higher standard of care. - Should doctors be held to different standard of care depending on where they practice? - Custom is very conservative principle. _Titus Case_ p. 201 - Take into account facts as relate to the level of knowledge that plaintiff and level of precaution taken by defendant. - Two potential sources of defendant's negligence: - General practice of hauling round bottom freight cars, in the manner which defendant hauled cars. - How it handled particular freight car which injured plaintiff. - Plaintiff knew about the defendant's customs and type of freight cars it carried.
- Court's ruling could be interpreted: - Doesn't want to 2nd guess defendant's way of running the business. - Will let custom figure it out. - Second source of negligence might be more appealing. - Negligence in inspecting cars? - Court concludes conductor could, without negligence, be satisfied with visual inspection. - Weak link in defendant's case: we can articulate reasons to suspect that it would not have been too burdensome for conductor (defendant railroad) to engage in additional inspection. - Case was not necessarily wrongly decided, but there is a credible argument that plaintiff can raise that defendant is in breach of its duty of care. - Good case for illustrating close connection/affinity between custom and assumption of risk Relying on custom assumes that custom will embody proper level of care, does not require anyone to analyze duty of care independent from custom. Custom is fairly stable, conservative principle. Easy to administer.
Policy question: is custom proper way to define duty of care? - Problem: custom will tend to lag behind changed circumstances - How far does custom lag behind? _Sullivan Case_ p. 204 - Plaintiff is independent contractor working in mine. Falls into hole and is injured. No lights, no guardrails or warnings. Sues mine-owner for negligence. - Defendant can't use custom to define duty of care - Industry, by custom, tolerates danger of unlit and unguarded ladder holes. - Custom is wrong that court won't permit it - Adding lights (candle light) and guard-rails would significantly lower potential of falling down ladder hole, but this might increase significantly other potential injuries such as mine explosion or people falling over guard rails. - Placing signs 'beware of ladder holes' doesn't help very much. - Might not be fair to expect outsider (independent contractor) to be familiar with custom. Might argue for heightened duty of care. Even in 19th century, question existed as to whether one could leave Duty of Care to industry standard. Need to read _Mayhue_ as making 'bold' move that custom is not the way to define Duty of Care. Court in _Mayhew_ (p. 204) decided that custom was not 'reasonable' by any means. Then used case to make argument for not using custom at all. If we view _Mayhew_ as rejecting custom 'all out', we must reject it on plaintiff's side as well. P. 205 case among most-cited case. (T.J. Hooper) Judge Learned Hand -- outcome of case especially attractive on facts, but only attractive on Judge Hand's statement of facts. If boat had radio on board, would benefit plaintiff as well. Would guess that industry standard
should be to have a radio on board. Reduces probabilities of harms while you're tugging, reduces bad things happening to yourself even when not tugging any barges. Judge Hand seems to think industry custom in lagging behind technology; district court seems to think radio on board *is* industry custom. If there are a lot of cases in which industry custom lags behind technology, good argument exists against custom. If this is rare, then custom may be good standard. Custom does not do well during periods of transition. Air bags discussion. Generally crew provided radio and not boat owner because radios were not as easy to use or standardized. P. 211 Note #4: Trimarco case--anticipates recurrent theme found in product liability litigation. Is relevant custom based on time product is introduced onto market or time injury occurred? Should defendant be required to bring its product into compliance with new custom? -& Pick up on 281 on Tuesday Custom... - Patient claims glaucoma was not tested an should have been--if doctor had duty to administer test. - What is standard of care? Was it established by custom? - Court concludes that it is a matter of law that Doctor breached duty by failing to perform test. - Reasonable precautions are variable depending on patient. - No medical procedure is 'riskless', even when properly performed. - Risk of false positive associated with test - Who is in the best position to determine whether glaucoma test should be given to people under 40? The Court? The Industry? The Doctors? The Legislature? _Canterbury v. Spence_ (p. 216) - Very difficult to win case if only defense is 'informed consent'. - Would want to believe that if defendant had made proper disclosure, plaintiff would not have agreed to procedure in the first place. People tend to believe that since the plaintiff agreed and was injured, the disclosure must not have been correct. - Defendant will try to break open each and every element of disclosure - Battleground: ways in which any additional information would have influenced patient's decision. - Autonomy Principle - Waiver of bodily control requires knowledge/information - Disclosure requirement can increase cost of care
- Compromised, in part, in any case, because objective standards are used to determine what gets disclosed _Statutory Basis_ - One could believe that implicit in any statute is a private cause of action. (i.e., should criminal statutes always have civil actions?) - But shouldn't legislatures make this explicit? - "There is statute, defendant is in violation of statute, and that violation is negligence *per se*." (Baird) - Alternatively, interpretation of statute could be "merely evidence" of negligence (Thayer)--opposes using statute as proof per se. - Example: statute provides that all handguns must be stored with child safety lock, thus you are negligent per se if you have a handgun and you store it without child safety lock. - Contrast: statute is only evidence of standard of care, but other evidence can be brought in: "Would a reasonable person, under the circumstances, store a handgun without a child safety lock?" Certain circumstances where burden of proof will shift to defendant... Some criminal rules do not give rise to private cause of action--e.g., securities regulation. Child safety lock statute would not be relevant in case of adults shooting each other P. 247: Excerpt from RTT: An Actor is Negligent, if, without excuse, the actor violates the statute that is designed to prevent the action the statute prevents and applies to. Doctrine that 'thing speaks for itself' is not only standard of proof in negligence cases but a more general mode of proof which only provides that plaintiff needs to prove by preponderance of evidence in a way that defendant would escape liability. Doctrine -> standards of proof. Can prove that there is no other explanation of how things happened that does not include defendant. Standard of liability established independently. Burden of proof: under certain circumstances where situation can only be explained by defendant being negligent, burden requires only that there is no other explanation. Burne Case, P. 281 - Plaintiff is struck and injured by falling barrel of flour in front of defendant's place of business. Defendant is dealer in flour. Defendant claims he was not negligence. Standard of liability is negligence. - If strict liability were standard, could resemble Reilly v. Fletcher: who brought water onto land, flour into warehouse, etc.. - Under negligence standard, plaintiff has to prove there was a duty of care and that duty was breached (with strict liability, no need to establish duty and breach). Information about defendant's negligence is in control of defendant. If you have accident that only normally occurs when someone is negligent. - Very hard to establish that an accident or class of accidents only occurs when someone is negligent.
P. 284 - Guest statute Innkeeper not generally responsible for torts of guests Connolly case goes other way because it is now possible to hold hotel owner liable for guest torts, if hotel has notice of what the guests are doing. Negligence -- strict liability with a very big set of excuses (and viceversa). P. 288 - Modern interpretation of doctrine - Plaintiff's wife is going up escalator, rail stops but steps continue to move - Court refused to apply doctrine that facts speak for themselves. First Circuit reverses trial court. - Litigation costs may be too high--strict liability will make it easier for plaintiff to get to court. - New jury will only consider whether facts speak for themselves Yberra and remainder of chapter 3 "for our amusement" -& Friday: chapter 4, p. 307 Causation was historically considered to be either 'a solely caused collision' or 'b soley caused collision' or some external force. Thus no possibility of A & B causing it together. In world with only one cause, issue of liability is all or nothing matter. Contributory negligence -- plaintiff's assumption of risk --> 'consensual tort'. Historically no such thing as consensual tort. As immunities give way and potential for liability increases, then need to look for possible excuse/defense in plaintiff's behavior/consent (assumption of risk, negligence) increases. If party has status of immunity, no need to look to other areas. Product liability: strict liability for defects, contributory negligence from misuse of product by plaintiff. _Butterfield v. Forrester_ (p.308) - Dual causes--introduction of contributory negligence. Need to admit possibility of multiple causation. - Causal roles must come together at time of accident. - Defendant has burden of raising defense of plaintiff's contributory negligence. Also has burden of proving plaintiff's negligence is a cause of plaintiff's injury. - Defendant need not raise this affirmative defense until plaintiff is able to prove that defendant caused harm. - In this case, Judge Bailey analyzes that harm was caused entirely by plaintiff. But he got the facts wrong. - Judge Ellenborough does not 'apportion' responsibility, says that if plaintiff has any liability, no fault is assigned to defendant. - Under basic doctrine of contributory negligence, if plaintiff has any negligence, no damages will be awarded.
_Beems v. Chicago Rock Island Railroad_ (p. 309) - Contributory negligence in employer-employee relationship - Railroad was running trains too fast - Alleged contributory negligence on part of plaintiff is that plaintiff was attempting to uncouple tinder car when he was aware that train was running too fast - On principle of contributory negligence, as articulated in Butterfield case, a finding that the plaintiff's conduct was negligent, and that plaintiff's negligent conduct contributed to injury, would relieve defendant of liability. - If plaintiff was not negligent or negligence does not contribute to injury, defendant is completely liable. - Argument will be over causation issue - Court finds for plaintiff on grounds that seem sound on principle: if plaintiff follows accepted procedures, then plaintiff should not be viewed as negligent, regardless of where foot happened to be at the time. Procedure establishes duty of care. _Schwart Excerpt_ (p. 310) - Supports that Beems opinion was fair, that contribute negligence was used in an even-handed manner in the 19th century - Another view of contributory negligence was that it was used to protect the railroad/business. - Recent literature suggests contributory negligence was not so unfair. _Note_ (p. 312) - Why worry about contributory negligence as defense at all? - Is it designed to provide incentives for plaintiff to take proper care? - Economic arguments against contributory negligence: - Defense is really unnecessary to give plaintiff proper incentives to take care, if proper standard of care can be incorporated into prima facie case. - If you properly establish standard of care defendant should meet, then no need for contributory negligence. - Harshest form of strict liability says 'you need to take perfect care' - One problem with removing contributory negligence does not make sufficient allowances for errors and uncertainty - By having contributory negligence as separate and independent defense, will give more attention to jury on issue (otherwise plaintiff could just stipulate own negligence and would not be issue at trial) P. 313: - How difficult it is for any defendant to prevail on any contributory negligence claim. - Appeal: did plaintiff's conduct actually constitute contributory negligence? Court finds employee incapable of fending for himself. Standard of care for employee lower than that expected from institutional employer. May not be easy for plaintiff to 'walk away'. - Hand formula might not work for evaluating plaintiff's behavior. Formula might not take into account psychological consequences of walking away, etc.. - Appellate court does not put weight on testimony regarding 'changes would have been put in place if they were neeed.
p. 317 - Appellate finds that trial record does not show that plaintiff's failure to report condition was substantial factor about fall of sacks. Does not find plaintiff was or was not contributorily negligent. Not established in trial record, or that was cause of injury. Remands matter back to trial court. Retrial on issue of contributorily negligence. _Contributory Negligence_ One cause-->prima facie case must be established before contributory negligence becomes affirmative defense. Contributory negligence bar. Law begins to cut negligence is "absolute has contributed to only is an affirmative defense which functions as absolute back on Contributory negligence. If Contributory bar", plaintiff is barred from recovery, even if he 1% of fault. *unfair*.
P. 345 -- Contributory negligence starts to modify doctrine... Open road and inattentive train engineer. Is prima facie case against defendant established? Under strict liability regime, yes. "LAST CLEAR CHANCE DOCTRINE" P. 333 Restatement 2nd Could require plaintiff's negligence to precede defendant's to be affirmative defense Could approach willful/reckless disregard for other's welfare Does affirmative defense contributory negligence require defendant to have knowledge of peril? Assumption of Risk--does employee assume risk by being employee at will? Employment doctrine Assumption of risk--decision of plaintiff to engaged an activity, not how they engaged in that activity Commont employment... Even if employer wins in negligence of employee, could still be sued for negligence of supervisor. Could have contributory negligence in Vosberg--failure to wear shin guard. Argument that assumption of risk defense falls along the contributory negligence spectrum. With assumption of risk, less emphasis on there being a duty of care which the plaintiff has breached. If one can truly identify a duty which has been breached by plaintiff, makes more sense to start talking about contributory negligence. Maybe plaintiff was negligent?
_Murphy v. Steeplechase Amusement Co._ (p. 346) 177 N.E. 173 (N.Y. 1929) - Bible of contributory negligence outside of employment context. - Plaintiff steps on 'flopper' and is injured. How could defendant raise contributory negligence? - Tortured argument to say plaintiff has duty not to ride on machine, thus contributory negligence fails. Try assumption of risk--doesn't require defendant to posit duty on part of plaintiff. - Deciding to ride on flopper implies up and down motion - Was plaintiff's injury really caused by up and down motion of flopper (which plaintiff assumed) or by a sudden jerk of flopper; machine was not designed to make sudden jerks, if this is cause of plaintiff's injury then assumption of risk may not have occurred. - Still need to prove prima facie case for negligence. No contributory negligence in spectator sports--have to use assumption of risk argument. "Fireman rule"--assumption of risk still survives (although law generally moves away from assumption of risk). Law avoids assumption of risk because it will remove an otherwise liable defendant from liability. Professional firefighter routinely knows that all fires contain risk of unexpected, thought to be compensated in advance for risks and losses. Not an absolute rule--for example, arsonist case may be exception (tortfeasor). Don't want relieve arsonist from liability, but may want to relieve owner of building (if not connected to arsonist). May not apply when firefighter is engaged in activity that an ordinary citizen would be engaged in. Modern view: assumption of risk can not be distinguished from contributory negligence. Express contract may be defense in liability -- contract defines duty of care. Do to confuse express contract as defense with implied assumption of risk or most incidents of contributory negligence. There are express negotiations-no negotiations in other situations. Can parties contract as to tort liability? Policy issues. Do you want to enforce contract in particular instance? Were parties to contract in relatively equal bargaining position? _Obstretrics & Gynecologists Ltd. v. Pepper_ (p. 353) 693 P.2d 1259 (Nev. 1985) - Contract issue - Plaintiff might argue that they didn't understand contract; that they didn't have bargaining power, etc. _Comparative Negligence_ (p. 360)
- "Comparative contributory negligence"--contributory negligence is no longer absolute bar to recovery--emerged in 1969. Replaces not only contributory negligence but also assumption of risk. Also called comparative fault. - Used to adjust downward damages to plaintiff - "Pure comparative negligence"--plaintiff's recovery is reduced by percentage of plaintiff's negligent, no matter the extent of plaintiff's negligence. - Other versions: if plaintiff's fault is greater than defendant's fault, no recovery. - Another version: if plaintiff is 50% at fault, plaintiff is barred from recovery, otherwise apportion. - Third version (adopted in a few jurisdiction): if plaintiff's fault is slight and defendant's fault is gross relative to plaintiff, then plaintiff's negligence will not be absolute bar, but does not tell jury how to apportion. _Li v. Yellow Cab Co. of California_ (p. 362) - Best brief on comparative negligence. Juries might have been adopting comparative negligence standard on their own. Additional cost in trial due to litigating apportionment. Might want to have assumption of risk incorporated into comparative negligence--plaintiff has not assumed 'all the risk', don't want to let defendant completely off the hook. Last clear chance doctrine--if you look at case where both parties were negligent; case where defendant really does have knowledge of risk and doesn't take reasonable action to avoid injury; court's often direct jury to ignore plaintiff's negligence when defendant had a last moment chance to avoid injury. E.g.: plaintiff was negligent for driving on tracks, defendant engineer saw plaintiff and had chance to stop train but failed to do so, law is reluctant to allow apportionment of negligence. Chapter 5: Joint and Several Liability (p. 385) Putting aside situation where A and B are acting as "one person" (A and B decide to beat up C), you have situation where something A did and something B did cause injury. Law had hard time with idea of multiple causes. Joint and several liability: even though 2 or more people are responsible for cause of injury, each person is 100% liable; later, the law moves to say defendant who has paid 100% of damages to have claim against other defendants (although initially this is prohibited). Designed to enhance plaintiff getting a recovery. In practice, apportionment gets divided between locatable/living defendants, even if responsibility were distributed otherwise. _Vicarious Liability_ one of most pervasive concepts in law. Corporations, government, etc., can't act on their own, must act through agent.
_Ira S. Bushey & Sons, Inc. V. United States_ (p. 413) 398 F.2d 167 (2d Cir. 1968) - Problematic application of vicarious liability. - Need to distinguish between actions done on employee's account, and action done on employer's account. - "Arising out of and within the scope of employee's employment" - Driving: distinguish between illegal left turn in the course of employment (vicarious liability) and 'frolick and detour' cases (no liability) - If you move to foreseeability test, vicarious liability 'drifts away' -- then employer is responsible only for 'foreseeable harm' Causation in fact - Law has limits at which it will consider 'cause in fact'--i.e., 'but for had this person not been born'... doesn't work. - Need to consider counterfactual world--'if the lifebuoys had been on board, could they have been saved?' - When there is a statutory duty, courts often 'gloss over' causation-liability is just attached - Would look at 'whole class' in determining reasonableness-would having equipment on board save a significant number of people, not just the plaintiff _Haft v. Lone Palm Hotel_ (p. 437) When sequence of events is not known, should burden of proof be reversed? Causation at 'molecular level' -- very hard to prove (p. 445) Courts more frequently taking decision away from jury 451-452: cause in fact with Agent Orange _Herskovits v. Group Health Cooperative_ (p. 453) 664 P.2d 474 (Wash. 1983) - What increase in likelihood of fatal cancer is necessary to attach liability? - Plaintiff cannot prove that decedent would have survived had lung cancer properly been diagnosed - One possibility: unless probability of bad thing increases by 50% from previous level, plaintiff recovers nothing. - Will cause systematic undercompensation for broad class of cases: - E.g., all cases where early detection would have decreased likelihood of premature death by 25%. No compensation. - If law has decided that for probabilistic causal connections you need 50% increase, no recovery. - Alternative approach: 'the lost chance doctrine' - Apportionment rule - Defendant pays its proportion of damage - Think of lost chance doctrine as analogous to comparative negligence Note 1 (p. 457) - Last chance doctrine not used in standard causation cases Should a person be able to recover for future injury? - E.G.: Not all cigarette smokers will get lung cancer
- Causation in lung cancer issue--industry has rejected causal link in the past Responsible through Page 535--Chapter 6 Focus on negligence and strict liability material Book: "Getting to maybe" Think about possible answers, no definite answers Only one question on exam ...more exam discussion _Causation_ - What about future injury? - Do we want to provide a remedy for those who turn out not to be injured? - Particular problem in bankruptcy law and in mass tort litigation - *Every* tort has a causation element - Which of causation in fact will be given legal significance? - Defendants A, B, and C might all be cause in fact, but A's causal contribution might be examined as legal cause but B and C not legal cause. p. 479 -- proximate or legal causation if there is no intervening act, epstein would prefer this to be proximate causation. Modern Tort Law: - Is there some other culpable conduct? Defendant's woodshed caught on fire, then plaintiff's caught on fire. Court decide defendant was negligent. Duty and breach are thus settled. No doubt that plaintiff's woodshed has burned to ground, so injury is clear. Question is whether defendant's negligence caused plaintiff's injury? Caustion in fact is also clear. Was there any intervening cause that would cut off defendant's liability? Example: - Image several houses in between plaintiff and defendant - No liability if intervening structures were involved - Foreseeability analysis - Problem with courts analysis: fails to recognize that fire continues to burn Multi-car wreck--usually can't establish causation for whole chain of events-usually 'a sues b, b sues c, etc'. Bari cases on 484 Theme of "coincidence"
Legal cause of accident was tree falling on tracks, not plaintiff's speed or any number of other factorst Situation would be different if speed of trolley shook tree--if trolley itself caused tree to fall downt Plaintiff missed stop -- in one case was put in place of safety, in other case was not, but bad thing happens in both case. Only in latter case is recovery (cause) permitted. Cause in Fact _Ryan_ case Requires causation in fact, and that harm is foreseeable consequence of defendant's action. Otherwise considered too remote (unforseeable). Proximate causation also exists in intentional torts--causal chain tends to be shorter--not always shorter. With respect to causation look at some of intentional torts cases--e.g., _Vosper_. Issue might be whether or not plaintiff's kick is cause-in-fact if it is still legal cause. In _Erie_ -- case about necessity -- question about whether boat is tied to dock, whether it caused harm. Is there an intervening event that cuts off liability? Even once boat went down, did captain of boat make bad judgment about what boat should do? If captain had made reasonable decisions, would that have saved boat? Could that cut off liability? _Dylan_ Independent causation--two successive causes: - Kid is trespassing on defendant's property falls from building. - One cause of death is falling from defendant's property. Did defendant breach its duty of care with respect to trespasser? - Touching high voltage wire sufficient, falling from building each is sufficient - If wire only shortened life by ten seconds, then only thing plaintiff should be responsible are these seconds of life p. 487 _Pittsburg Reduction_ case Was Pittsburgh's action too remote? P. 506 Alternatives for causation Suicide cases--in principle, recovery should be allowed if conduct of defendant drove deceased to commit suicide. So many reasons to commit suicide, however, problematic. If defendant has not taking reasonable precautions for foreseeable risk, then liability.
If they have breached duty, responsible for both foreseeable and unforeseeable consequences, in case. Directness test--does not look at foreseeability. Most american courts have followed directness test foreseeability test--'reasonable defendant' Probablistic cause review... Two theories: 50% rule, lost chance rule Child is accused of contributory negligence, but court finds child can not be held to standard of care. Defendant says parent's negligence should be imputed to child. What if it were a dog rather than a child? Could owner's negligence in controlling dog = parent's negligence in controlling child? Even if it seems like plaintiff cannot prove prima facie case, still give possible contributorily negligence defense (on exam)!. Assumption of risk--another way to cut back on defendant's liability. Professor is available on Tuesday and Wednesday or by appointment Final Exam, closed book will test: 1 - Knowledge of Basic Principles and Court Laws 2 - Analytic Ability - Application 3 - Organizational Skills Torts: private or civil wrong other than breach of contact for which court will provide a remedy in the form of a cause of action of damages. Civil wrongs, not criminal wrong; however, criminal act may give rise to cause of action in torts. Contracts involve voluntarily situations between parties, where parties are in position to negotatie. With tort cases, one is not in position to negotiate with all possible parties that might be involved. -& Look at Epstein Table of Contents -- basic outline of course -- should create an outline Several categories of torts, classified by standard of liability: - Intentional Torts - Allegation and proof that alleged wrongdoer acted with requisite intention. - Trespass, battery, conversion (?) - Intention is only one element to satisfy intentional tort - Torts where liability does not hinge on wrongdoers' intention, but whether defendant met standard of care ('unintentional'?) - Where party has not met standard of care, party is 'negligent' - Negligence (breach of duty) is only one element that has to be satisfied - Strict Liability: Liability hinges neither on intention nor negligence
- Could hold someone liable in highly risky behavior, e.g., someone using explosives. - Parents could be strictly liable for torts of children - Employer could be strictly liable for employee's behavior (even if employee is negligent or intentional) Course will not approach product liability or worker compensation Law of torts distinguishes between two important things: - If you intended act that caused harm, you might not intend harm itself (intent of act vs. intent of harm). Vosburg v. Putney: - Putney intended to touch Vosburg's shin with toe, but did not intend harm. Is intent to act and intent to harm distinction that can be made? In strict liability, this distinction does not matter. What are permissible excuses? - For every tort, there are elements must plaintiff must plead, allege, and prove to make prima facie case for liability to lie with defendant: intentionality, harm, etc.. - Prima facie case: elements which define tort. - If plaintiff adequate pleads prima facie case, case can go to trial. If plaintiff doesn't prove (with evidence) prima facie case, defendant can move for summary judgement, otherwise defendant must mount defense. - That is: defendant doesn't need to mount defense unless prima facie case has been made by plaintiff. - Prima facie case has been made, defendant can argue: - Self-defense - The more allowed excuses, the narrower the box of 'tort' becomes. - Limits on excuses: one can use force to protect oneself, but when can one use deadly force? Vosburg v. Putney - Intentional Tort/Battery Case - Prima Facie Case: - Defendant must act - Act must be intentional - Act must cause contact with plaintiff - Contact must be either harmful or offensive - Injuried party must prove each and every element of prima facie case (sometimes responsibility is shifted to defendant, in special cases) - Facts - January 1, 1889, plaintiff is injuried while 'coasting', two months later leg is not completely healed but is nearly healed - Special verdict (finding of facts) plaintiff was not lame on February 20, 1889, immediately before contact occured. Leg was neither inflamed nor diseased. - Plantiff did not feel contact, but later experienced pain, surgery, etc.. - No question about whether defendant acted, whether act was intentional, whether defendant intended harm (no), whether plaintiff was harmed (yes).
- One could allege that injury was mere coincidence, or that kick was only 'nominal' cause--instead of leg inflamming the next day, it inflammed that day, for example. - Assault: to put person in apprehension of being battered. Need intent to cause harm. - Battery: maybe intent to cause harm is not necessary, but intention to do an unlawful act. If intention exists, you have assault; if harm occurs, you have battery. - If defendant is kicking leg out repeatedly without contact or physical harm, defendant is only liable for assault if intent to cause harm is present. - Court never explains in Vosburg why intention to do harm drops out after contact (battery); this may be carry over from criminal law. In criminal law, person needs specific intent, except where there is harm, in which case only 'general intent' is needed. - Notion of assumption of risk: if everyone were kicking, for example, they might not be liable. - Lots of counterfactual questions. - Strict liability would make things much easier, simpler. As log as defendant acted purposefully, would be liable. Streamline system, more efficient, less costly. - Or: have standard of care--if defendant meets standard of care than person is not liable, otherwise if harm results they are liable ('negligence system'). - There are alternative systems that may have advantages. - Under negligence system, would Vosburg be decided in same way? - Plaintiff could have assumed risk, this would provide defense, but this is not an absolute defense. Class covers Epstein 4-17. Last class discussing Vosburg Battery Case. Intentional tort of battery, need: - Harmful Act - Intention to Commit Act - Unlawful act, not necessarily criminal - Context: unlaw act in classroom. - What is remedy? - In torts, place *all* loses directly resulting from defendant's action, whether foreseeable or not. - In contracts, loses are often equal to that which are foreseeable by defendant. - Example: improper tuxedo is delivered to groom resulting in cancelled wedding. Only foreseeable damage is difference in value of improperly fitting tuxedo and properly fitting tuxedo, rather than damages resulting from failed wedding. - In contracts, both parties have opportunity to bargain with respect to consequences of failure. In torts, there is no opportunity to decide in advance what consequence will be. Tort liability forces potential tortfeasor to internalize costs. Provides disincentive to misbehave. - In Vosburg, one could say there is informal consensual arrangement between boys--assumption of risk, suggests contractual elements with respect to calculating damages. If plaintiff has consented to activity, plaintiff should not expect to be compensated for injuries. Vosburg exposes interface between contracts and torts. - Contributory negligence: plaintiff's failure to wear shin guard given knowledge of plaintiff's condition.
- Might failure to wear seatbelt be contributing factor to injuries sustained in car crash? - Vosburg starts book because of issue of intention to act which causes harm vs. intention to cause harm. - In case of assault, intent is important. In case of battery, you don't need intent to cause harm itself. - In Garrat v. Dailey (quoted in Vosburg), there was no actual contact. Defendant moved chair plaintiff was about to sit in. *Substantial certaint y test*: a battery would be established if defendant knew with substantial certainty that the plaintiff were going to sit in chair. Defendant need not know with substantial certainty that *harm* would occur. Could be held liable for weaving between lanes in a car, causing accident even without contact. - Third restatement of torts distinguishes _Purpose_ and _Knowledge_. -* Classic Assault: "Failed battery." Substantial certainty test migrates into assault and other areas of torts. - What constitutes substantial certainty that harm will occur? - Discussion of liability of children, teenagers, etc.. To extent children, teenagers, insane people are not held liable, victim of tort goes without compensation. Might want to hold parents liable. Mohr v. Williams - Doctor operated on ear other than that which was agreed. Defendant liable for assault and battery. - Prima Facie Case: contact, intention, injury, unlaw (not according to contract which specified other ear). - Liability does not determine damages; in Mohr v. Williams plaintiff is ultimately rewarded only nominal damages. - In case where act was beneficial, you still have all elements of PFC for battery, but damages might be mitigated. -* Question here is what constitutes consent? Does consent require language? When might actions or language provide consent? - O'Brien v. Cunard Steamship Company: patient puts out arm, implying consent. Not discussed in Epstein: evidence that doctor harbored prejudice against Irish and against women, it was not clear that people could leave line or leave room without receiving vacation. Not clear if situation is consent or coercion from 'real life' circumstances. - Consent is affirmative defense even when Prima Facie Case is made. Can be substituted consent when consent is actually not available--guardian, etc.. Always conflict of interest--person causing harm can claim substituted consent. - Emergency consent--fiction is that person *would* have consented had they been able to do so. Want to encourage others to provide assistance in emergency situations; otherwise good samaritans could be making themselves liable for battery. - Ordinary rules of autonomy must be suspended when person is unable to contract for their own interest. - Kennedy v. Parrott - Court did not permit tort of trespass against the person (battery) as decision to operate on cyst in interest of patient. Should tort law be used in enforcement of criminal law? Should law recognize cause of action when plaintiff was engaged in criminal activity (i.e., boxing in unregulated match?) Hudson v. Craft - Although both fighters engaged in consensual illegal activity, they can sue each other for battery.
- If two fighters are equally matched, then injuries inflected on each other are roughly equal, thus damages will be roughly equal. - If fighters are significantly mismatched, stronger combattant should know he is likely inflict substantial body injury and be liable for injuries, thus should only engage in match if prize is greater than potential damages in battery case. - Consent does not negate Prima Facie Case for battery. - Minority rule: 'volunteer suffers no wrong', combattants had both volunteered, thus law should not recognize a harm. - Other fighter is named as defendant, but other fighter is never served, thus suit is really between fighter and promoter. - Court allows case to go through in order to facilitate aim of criminal law, presents powerful disincentive to allowing these fights to occur. - Should court law have special rule for criminal activity? Definition on recklessness (p. 27) from Third Restatement. Mental States of Actor--possible defenses (p. 30-31) McGuire v. Almy Nurse McGuire knows defendant is insane at time of employment and is occasionally violent and aggressive. Enters into room to remove objects that could cause injury. Defendant strikes nurse with the leg of furniture, McGuire sues Almy for battery. Is Prima Facie Case there? - Defendant acted. - Act was intentional. - Act resulted in contact with plaintiff. - Contact resulted in injury. What elements might not be satisfied? - Was act intentional? - Reasonable jury might conclude yes, but this is weakest element of case. - If defendant is so insane they could not control what they were doing, then act might not be found intentional. - Two completely different levels of defense - Element of Prima Facie Case was not satisfied - Affirmative defenses - Additional facts that might mitigate Prima Facie Case which has already been proven - In this case, defendant wants to negate element of Prima Facie Case: insanity prevented defendant from having requisite intention. - Issue of case: Is insanity ever defense for tort of battery, and, if so, when? Is it defense under facts of this particular case? - Governing rule: Insane people can be held liable for battery. - Court wants to make distinction between those torts where a specific intent is present vs. only require a general intent (battery). - Specific intent: person intends the harm itself, not simply intending the act itself which results in the harm - General intent: need only intend the act itself - Question becomes: Is defendant capable of forming requisite intent to do act? Did defendant intend act?
- Courts generally frown on insanity defense in tort action, for policy reasons. Practical considerations support holding people liable even if they are not morally culpable. Between two 'innocent' parties, who should suffer? Court believes insane defendant should be liable. - Might cause guardians of insane person to take responsibility. - Same questions exist for children. - Is there any alternative to intentional tort system? - Holding defendant liable will not change their behavior (if they are insane). -* Rules in criminal law are not same as rules in tort law. - Can insanity defense ever helpful in case of conversion? - Court rejects argument that plaintiff assumed risk; court may have asked too quickly in rejecting this defense. Took assumption of risk defense away from jury, probably should not have done that. - Injury took place in context of work; now most of these sorts of injuries are no longer handled by tort law, but instead fall under worker's compensation law. Courvoisier v. Raymond - Raises defense of 'self-defense' - Defendant labors under mistake of fact concerning plantiff's intention - Defendant shoots plantiff thinking plaintiff is threat to life; in fact, plaintiff is police officer doing his duty. - Prima Facie Case: - Defendant acted. - Defendant acted intentionally. - etc. PFC proved. - Trial Court's instruction: If you believe, at time of defendant's act, plantiff was not assaulting defendant, verdict should be for plaintiff. - On appeal: if plaintiff was not assaulting defendant, was there sufficient evidence to think plaintiff was assaulting defendant? - Trial court does not allow for mistaken self-defense, but appeal court does. - Self-defense is potential affirmative defense. -& Read notes on 36 & 38 regarding self-defense M'Ilvoy v. Cockran - Defense of Property can be affirmative defense for battery - Defense of Property afforded much lower protection than defense of person (self-defense). - Injury to person's property may be better protected by award of money damages. - Cannot use more force in self-defense than originally used against you--law does not want to encourage 'escalation' - e.g.: cannot wound someone to protect your property, can only wound to protect your person - Law is unable to articulate response to person who refuses to leave property but is not doing anything else--there is no force which can be used in terms of 'self-help'. Bird v. Holbrook - "Spring gun" case - Plantiff enters property and is wounded by spring gun - Was there an assault and/or battery? - Defendant acted by setting spring gun in position to fire - Defendant's act was intentional
- Act caused contact with plaintiff - Contact was harmful/offensive - PFC is satisfied -* If PFC is not satisfied, defense does not matter. - If M'Ilvoy case is correct, can Bird be decided in any other way? Force cannot be appropriate in Bird case. - Law does not bar recovery if plaintiff was engaged in unlawful act Use of force allowed in response to 'hot pursuit' or fraud. Example: someone impersonates a parking attendant, drives off with your car, force is allowed at the time in recovering property. cannot use force if property has been lost 'voluntarily'--if you bring car to mechanic, later mechanic refuses to return car, cannot use force to recover car. Law is not that powerful. Necessity Defense Ploof V. Putnam - Owner of sloop sued owner of dock for unmooring sloop which was moored to survive storm - Second cause of action: breach of duty for defendant to actively unmoor sloop from dock - Necessity exception to 'exclusion' exists to overcome enormous 'hold up' problem. Tremendous benefit to plantiff, little cost to defendant. Without necessity exception defendant could extract damages from plaintiff. - Notwithstanding plaintiff's possible negligence, plaintiff can still exercise necessity defense. - Plantiff is entitled to use force to obtain right to use property. - Necessity privilege (or defense) only lasts as long as necessity itself lasts. - Necessity may require specific act--for example, throwing cargo overboard, that is may require use of other people's property. Does not answer question of 'which cargo to throw overboard?' - Loss should be pooled among all owners--'average general contribution' rule Vincent v. Lake Erie Transportation Co. - Completes conditional defense of necessity - Defendant's ship is already at dock when storm starts - Due to storm and inability to fid a tug to take ship away, it becomes a necessity for ship to remain moored at dock. - Ship causes major damage to dock during storm - Defendant's rights to use property is conditional on defendant compensating property owner for use of property - Case does not present cleanest example of necessity defense; parties were in a consensual arrangement before storm arrived--maybe consensual arrangement asssumed risk that storm would arrive and boat would not be able to leave dock. - Issue should be dealt with by contract, custom, etc., necessity might not be needed--risks could be allocated less by tort law and more by contract and custom. Above cases are 'private' necessity cases--to be contrasted with 'public' necessity--notes 3,4 on 58-59.
Discussion of differences between civil and criminal battery, torts and criminal law, etc.. Assault, p.64 I. de S. and Wife v. W. de S. - Common law protection against injury was never construed in a narrow or 'hyper-technical' way, include injury of 'fear of injury', rising out of distinct threat to use force against person. - Defendant struck door of tavern with hatchet, gives rise to own cause of auction--trespass on someone's property. -* Case allowed action for harm even though there was no trespass to the person. - Holding defendant liable for assault must take into account the mind of the plaintiff--real and personal property can not be assaulted (they do not have mental states, cannot suffer fear). - What sort of mental state does defendant have to have in order to commit assault? - Did defendant intend to frighten but not hit plaintiff with hatchet? Intent of fear vs. intent to hit. - Both scenarios are consistent with fact that plaintiff saw defendant before he struck out with hatchet, but involve completely different accounts of the intentionality involved. - Modern tort law allows both situations as assault, so long as the ability to afflict immediate harm is present--assault requires the plaintiff to be apprehension of immediate harm. Brockner (p. 69) - Shows limits of assault case - Person is speaking over telephone, not in position to carry out immediate alleged threat, plaintiff was not indifferent to the present threat to future harm Savage (p. 62) - Conditional assault, committed by plaintiff - While plaintiff places hand on his sword, says if courts were not in session, I would not take such language from you - Defendant raises plaintiff's conditional assault as an affirmative defense - Plaintiff is suing for assault, battery, and wounding - Court decides other party was not in imminent danger, but perhaps hand on sword should speak louder than words. Court ruled correctly if emphasis is placed on words rather than on action. - Reasonable people could disagree about interpretation of plaintiff's acts/words - What would be result if there were no words at all, just putting hand on sword? -& Get through page 87 for Monday. Case where person intended to physical injure person but failed to actually have contact. Need to be careful in assuming attempted battery is necessarily assault: - If someone attempts battery from behind, potential victim doesn't realize person is there, thus doesn't havve any apprehension of physical harm. - Measure of compensatory damages in battery: what is necessary to bring person back to where they were but for the battery
- With assault, since there is no battery, can't compensate person for physical harm, must compensate for 'apprehension', very difficult to measure. - One measure would be cost to plaintiff/victim of 'avoiding' or 'repelling' the battery - Does plaintiff have some obligation to mitigate battery? Offensive Battery (P. 65) - Person deliberately spat in face of another at the end of court case - Actual physical harm is minimal; law generally doesn't worry about sort of harm caused when injury is small or non-existent (society does not want to spend time/cost adjudicating these things). - Law does not recognize cause of action for _de minimus_ injury; even if it did, the damages would be nominal. - Where action is deliberate, law recognizes as an *offensive battery* case. - If harmful but not offensive contact results, you will have harmful battery, not offensive battery. If both result, you will have both sorts of battery. - Context is very important - Court repeatedly stresses 'mental element'; defendant's mental state of 'malice'. - Hard to show disrespect for someone (defamation) without 'publishing' it in some way--element is lost if contact in done secretly, likewise insult and humiliation are reduced if person is not aware of offensive contact. - Example of cook spitting into food of customers who complain, but customer is not aware, thus does not give rise to tort of offensive battery. -? Why would someone bring a cause of action if they had no knowledge of offense? (all this focus on the plaintiff having know contact occurred) - In order to have offensive battery, defendant needs to act with intention of having offensive contact - Classic offensive battery is one where actual harm is small or nonexistent -* Law wants to prevent retaliatory action; if act would provoke retaliation, is more likely to be offensive. - Question of transferred intent - Offensive battery does not necessarily require person to think physical harm. False Imprisonment (P. 67) - Intentional unconsented and unprivilege confinement of another who either knows of confinement or is harmed by it - Person's package is blocked, but they can freely turn around and go back whence they came, thus false imprisonment is denied (should have sued for obstruction of right-of-way) - Is plaintiff actually confined/imprisoned by defendant? Plantiff needs to know about it. Elements of Prima Facie case. - As restrictions on person's liberty are reduced, offense may move from 'imprisonment or confinement' to 'exclusion'--i.e., person is free to move about but is excluded from certain area. - Imprisonment could just take form of threats - Damages will be increased proportionately to risk plaintiff risks from defendant in fleeing location On Tuesday, will begin talking about Strict Liability, etc., next chapter. False Imprisonment continued...
- Could include case where police arrest someone with no grounds for doing so Griffin case--'confinement by analogy' - No compulsion for plaintiff to go along for ride, but failure to do so put plaintiff's personal property at risk - Plaintiff is entitled to self-help, which includes getting into car False imprisonment is generally considered to be intentional tort--security guard who locks building without knowing someone is in building has not acted intentionally Where injury is slight, cause of action can go forward to protect dignitary losses If plaintiff never finds out that they were confined, there will be no lawsuit, but tort still may have been committed. May have cause if you find out after the fact. Knowledge of false imprisonment will effect damages. Coblyn v. Kennedy's, Inc. P. 71 - Thinking that Plantiff was shoplifting, defendant employee imprisoned plaintiff, who suffered heart attack. - Do we have PFC for false imprisonment? - Argument that confinement was privileged - Was privileged act reasonable to suspect? - Failure on part of employee to disclose that he was employee of store and reason for detention - Private citizen should not have greater power of detention than would police - Even if false imprisonment tort fails, might still be tort in negligence. Contributory vs. Comparative Negligence Regimes - Consent is another element which would negate Prima Facie Case Issue of 'reasonable time' in mine shaft elevator - Main issue in case is 'reasonable delay', issue for jury to decide Tuesday, October 23 -- Practice Exam - Intentional affliction of emotional distress -- will not be covered on the exam. Court recognizes independent tort of intentional affliction of emotional distress--practical joke in this case. Defendant did not intend harm but did intend act which caused harm. "Foundations of Legal Liability" p. 78 -- important point about parasitic liability. If there is no independent cause of action for intentional inflection of emotional distress, may have to be parasitic on fraud, for example. You see parasitic liability most often in cases where law is in transition.
Conflict between constitutional protections on speech and tort liabilities for harms resulting from one's speech. Problem emerges when there is no other basis for action other than emotional distress; how do you measure emotional distress, how do you place dollar value on it? Skipping through rest of intentional affliction of emotional distress, moving on to Chapter 2. Chapter 2: Issue of holding persons liable for harm to others when act is not intentional. 3 classes of circumstances: - Defendant in driving down Huntington Avenue, sees Dean of Law School, and intentionally hits Dean with car--classical case of battery - Defendant is preoccupied with changing CD in car player, never sees Dean, still hits Dean and causes same physical harm. No intent of harm. Classical case of negligence. - Defendant is driving carefully, Dean runs out into street from between parked cars when it is too late to stop, same physical harm results. Chapter 2 introduces historic and analytic foundations to Strict Liability and Analytic Liability Under traditional theory of strict liabity, just act: did defendant cause harm to property?... PFC: - Did you act? - Did your act cause harm? - Then you are liable (unless law provides for exceptions) Traditional Negligence - Did defendant act without care? Compare how cases would come out under strict liability regime vs. negligence regime. _Thorn Case_ (p. 86) - Defendant and plaintiff own adjoining land, defendant has thorn bush close to boundary of land - In process of trimming thorn bush, some thorns land on plaintiff's property - Defendant enters plaintiff's land to remove thorns, allegedly tramples plaintiff's crops - Plaintiff sues defendant for trespass. Thorns in question were of value to defendant. - Two lawyers for defendant, three for plaintiff, two judges writing opinions - Defendant's lawyer argues that tort liability and criminial liability have common basis--must look at mens rea. - This position is widely rejected. - People are sometimes held liable in tort when acts committed are in fact lawful and/or unintended. Need to protect *innocent plaintiffs*. Want to give incentives to potential defendants to take care. - Even rejecting this position does not tell us when we might want to hold someone liable - Judge seems to be adopting a negligence standard
- Is there an objective standard or a subjective standard based on what the defendant might think? - Other judge adopts uncompromising strict liability rule - Should we examine intentionality aspect of this tort, or rather strict liability vs. conditional right of defedant to go onto property to recover thorns? _Thorns Case Continued_ (p. 86) - With strict liability, intention 'drops out'. - In Thorns case, parties are first arguing about whether strict liability or negligence standard should be used, and then secondly whether there are mitigating factors. - Could have privilege as excusing condition even if pfc case exists for either strict liability or negligence - Assuming defendant has some right to recover thorns - Room for parties to bargain - Regardless of liability regime, there still may be conditions which mitigate situation Most cases in book are present to show alternative between strict liability and negligence standards. Would appear that ancient/traditional standards tended more towards strict liability. Can't push 'historical material' too far. Modern tort law is somewhat divided on central issue of whether strict liability or negligence regime is better. Ancient regime was somewhat muddled in its analysis--claimed to be strict liability regime, but occasionally negligence came into play. _Weaver v. Ward_ (p. 92) - 161 English Court - Soldiers involved in war games exercises - Ward accidentally shoots Weaver, Weaver sues Ward for assault and battery - Seems to be classic case of assumption of risk--Ward did not force Weaver to participate in these games. - What are parameters/boundaries of assumed risk? - No discussion of assumption of risk in case itself - In order to negate pfc, defendant must prove that harm was not caused by defendant's action or that the defendant didn't act. - Example: defendant did not pull trigger, someone bumped into defendant causing gun to fire. Defendant did not cause harm. _Scott v. Shephard_ (p. 107) - One instance where Cause of Action is allowed against 'remote author' of mischief (preview, jump ahead) _Gilbert v. Stone_ (p. 94) - Animal liability question, and conflict between strict liability and negligence - Horse bolted, causing harm (ran into plaintiff), but this was not action of defendant - Under negligence regime, defendant would be liable only if not using proper level of care as required by law - Was defendant riding with care, handling horse properly? - Would horse have bolted if defendant were better horseman? - If you adopt *vicarious liability* (if rider of horse is liable for actions of horse). A simple vicarious liability rule would eliminate the
need to determine if rider was negligent. "It's your horse, you are vicariously liable for the things your horse does." Possible defense in strict liability regime--you took 'exceptional care' and event still happened. Later, fence shifted from standard of exceptional care to standard of ordinary care. Question of when do you cross the line between strict liability and negligence standards as you lower standards for exceptions? Has to be continuum rather than binary system: Strict Liability, No Defenses/Excuses Whatsoever <---> some allowed defenses pertaining to level of care <---> negligence standard, what is required standard of care? <---> standard of care = 'nothing' Yellow Cab Company --> moving into negiglence regime Intentional torts and unintentional torts Put aside intentional torts (where intentionality is the basis of liability), looking at unintentional torts: Strict Liability vs. Negligence Possible Defense - Lack of negligence Excuses in strict liability regime -- as more excuses are permitted, move towards negligence regime _Fletcher v. Rylands_ 112-114 - Represents partial repudiation of Brown v. Kendall - Poses challenge to universal negligence principle - Brown v. Kendall posed principle that would allow someone to escape liability by lack of negligence - Challenge for strict liability: is it able to provide notion of proximate cause such that defendant is not held liable for all bad things that happen infinitely. - At trial level, water escaping is considered trespass. Defendant's water was trespassing on plaintiff's mine. - Question about whether harm is direct? Does harm directly result from act or indirectly? - Blackburn: Under strict liability, do not need to inquire whether harm was direct or indirect. Only defenses would be "act of God", "not really defendant's act that caused harm but was act of 3rd party." _Brown v. Collin_ p. 123 - American reaction to Fletcher v. Rylands - Economic argument: if you hold defendant strictly liable, creates disincentive for defendant to use his property--'best way to escape liability is to do nothing'. - Strict liability provides too much of this negative economic incentive--claims this is the wrong system _Excerpt from "The Common Law"_ p. 131 - Justice Holmes - Each paragraph is worth close inspection - Contract vs. tort-related liabilities for harms - Torts--no previous agreement as to who will bear risk
-* Essence of tort law is about figuring out when we want to hold someone liable for the harms they caused, and when we want to not hold them liable for the harms they caused--to fix dividing line between these cases - Personal autonomy grounds for strict liability are incoherent because they allow for no limitation upon liability - "If you act, you need to be responsible for all consequence of your act, no matter how remote." Corrective Justice approach _Buchanan Case_ p. 124 Could argue that strict liability might encourage people to make full use of their property--encourages those who invest in their property... Those who improve their property which is damaged by someone else, that other person could be held liable under strict liability theory. Law should find liability rule that comes up with best social benefit -& Page 138 for tomorrow More on tension between negligence and strict liability... Low probability events that cause harm. Cricket case where person is suing property owner (cricket club). Why isn't plaintiff suing cricket player? Maybe wants to have cricket club move. Also, club might be 'deeper pocket'. Might be more concerned with getting rid of club than injuries suffered. Under negligence system, there is a longer chain of events to take into account. - Was the plaintiff hit by a ball? - Was the cause of the plaintiff being hit by a ball the lack of care of the defendant? - Was the plaintiff being hit caused by the cricket club placing the pitching mound where they did? By not having a high enough fence? Etc.? - Under negligence system, if defendant is not negligent, there is no liability. - Difficult part for plaintiff to prove is breach: hard to say that defendant's were negligent in where they put pitching mound, etc.. People thought strict liability was primitive/unfair to defendants generally. Negligence system thus trades unfairness to defendants to plaintiffs. P. 143 Questions 1-3 - Think about institutional question: why go after batsman when it's possible to sue club? - If batsman is found liable, club could be found *vicariously liable*. - Other theory is direct liability: club is not vicariously liable but directly liable. - Do we want to encourage defendants to build a higher fence? Mere fact that Mrs. Stone was injured does not necessarily mean defendants were negligent.
Strict liability rule with vicarious liability rule attached would allow cricket club to know that, on the off-chance, someone on the street is hit, they could be held vicariously liable. P. 148 Why should strict liability regime apply to product liability? Where to put burden? (discussion) what Negligence Issue - Chapter 3 (p. 153) To prove legal negligence need: - Duty - Breach - Causation - Injury Need to keep elements in mind throughout chapter. This chapter focuses on duty and breach. "What sort of care would a reasonable person take?" Negligence is the person making the mistake of not taking that care. What is 'a reasonable person' for purposes of tort law? _Vaughan v. Menlove_ (p. 155) 132 Eng. Rep. 490 (C.P. 1837), 157 Eng. Rep. 1351 (Ex. 1860) - Defendant keeps haystack on his property close to border of plaintiff's property. Plaintiff claims is fire hazard, but defendant is insured. - Haystack catches fire, burns plaintiff's property. - Economic theory of torts: mechanism for externalities to be internalized. - Court instructs jury that question is 'whether or not fire is caused by defendant's gross negligence in failing to exercise reasonable care?' - Jury found for plaintiff and defendant appealed. - Defendant argues: - Even if instruction to jury were correct, they were confusing in that instructions made reference both to gross negligence and reasonable/ordinary care. Argues that jury may have adopted higher standard of ordinary care rather than lower standard of gross negligence. - Judge Park's opinion (p. 158) tension between ordinary care and gross negligence standards. Defendant has been warned that hay may be dangerous. Park thinks defendant was negligence (failure to meet even ordinary care). Even with higher standard, defendant breached standard of care. - Ordinary care: what would a reasonable person do under the circumstances? - Claims he should be held to gross negligence standard. - Defendant claims 'subjective standard' should be used rather than 'objective standard'. If standard of ordinary care is subjective, then we need to examine defendant to determine standard.
- Combined: standard of care should be whether or not he has failed to meet a subjective standard of gross negligence. - Subjective: what did this defendant think was reasonable under the circumstances? Objective: what would objective reasonable person have done under circumstances? - Judge Tindal: 'Rule of Law': you must enjoy your property so as not to inqure that of another. Is this an absolute duty? Must be 'objective' standard--person of ordinary prudence would observe rather than Subjective standard of 'what this particular individual would have done'. -* Whatever standard of care we impose (gross negligence, ordinary negligence), do we define in terms of an objective standard or do we define in terms of a subjective standard? - Modern law imposes objective standard, increasingly subjective elements come into play to 'tweak' it. - Do you want to hold a ten year old to same objective standard that you would hold a 25 year old? - Do you want to hold people of different levels of physical ability to the same standard? - Elderly? Need to be able to articulate argument as to why 'x' is standard of care that a reasonable person will meet. What constitutes a Reasonable Person? _Roberts v. Ring_ (p. 163) 173 N.W. 437 (Minn. 1919) - Elderly defendant in slow-moving car hits young boy. - Could plaintiff sustain case for battery as intentional tort? - No, defendant was engaged in lawful activity without intent to cause harm nor was there a substantial certainty that someone might be hit. - Intentionality element is weak. - Should reasonable person drive with poor sight and poor hearing? - At trial, defendant was found not to have been driving negligently - Could focus on causation element--if boy had not run out in front of car, accident would not have happened. - Defendant argues that proper standard is duty of reasonable care for this kind of person; elderly person with poor vision and poor hearing. Question becomes did defendant act in reasonable way under circumstances? Court rejects this argument. - Question becomes decision to drive in the first place rather than specific actions in incident. - Defendant is not able to argue that standard of care should be relative to him, but plaintiff is successful in establishing that standard of care is specific to child. - Should standard be objective or subjective? - Could argue that defendant hasn't even met subjective standard--should have known that it was not safe to drive. Negligence standard ("standard of ordinary care") works best in 'stranger' situations--where parties don't know each other. When defendant's abilities differ, may want to modify standard of care. Could hold professional driver to higher standard. We hold doctors, lawyers, professionals, etc., to different standard than average person. Alternatively, 'beginners' might be held to lower standard of care.
_Daniels v. Evans_ (p. 165) 224 A.2d 63 (N.H. 1966) - Minor/beginner is not held to same degree of care as adult (trial court). - Appeals court rules minor is engaged in adult activity and thus should not be held to different standard of care. Restatement of Torts provides for blanket exemption for children under five years of age. But guardian still might be held liable for activity. _Fletcher v. City of Aberdeen_ (p. 173) 338 P.2d 743 (Wash. 1959) - City erects barriers to protect pedestrians, one barrier is removed to facilitate construction work. - Blind plaintiff falls into ditch and is injured. - All parties agree city had some duty to warn of danger - If plaintiff had not been blind, might have seen ditch, known about risk, even though City was in breach of duty, could argue plaintiff's contributory negligence or challenge causation element. - If accident had occurred at night when even sighted person could not have seen ditch, City might still be liable. - Duty is much harder to establish on private property. If you are inviting people on to property, duty might exist. (duty to invitee, not to trespasser). - Plaintiff prevails mainly because accident takes place on public road where they had a right to be. _Lyons v. Midnight Sun Transportation Services, Inc._ (p. 175) 928 P.2d 1202 (Alaska 1996) - Emergency may change what is reasonable to do. Trial court gave 'emergency exception'. Marginal incentives to take care--everything happens at the margin. According to Abraham and Jeffries, 'how much will be lost if certain precautions are taken?' It will cost defendant something to take additional precaution. Should not matter how wealthy defendant is. Should we take wealth into account in setting duty of care? Wealth is not easy to calculate. Pipes case... Source of liability defetive installation of pipe or failure to do something once you see snow and ice accumulating on pipe, or some combination? Duty to repair pipes or remove snow or ice, once the risk becomes apparent. Similar in some ways to Stone v. Bolton, Cricket Case. Is person in position of contributory negligence to calculate what is reasonable behavior under circumstances? Difficult to characterize person's behavior as rash or reckless in Eckerdt, although this is ex post reasoning. Good samaritan issue...
Value of action is 0.8 if 40% chance of 2 people surviving. "Rashness test." Recovery is allowed for conduct that is not prudent, given probability of success ex ante. Value of Person's Life Damages awarded for prolonging sickness typical much greater than that for wrongful death--thus tortfeasor has perverse economic incentive to commit murder once they have caused great harm. Criminal law can handle these situations. Dollar value of insult? alternative?' Problematic in tort law, 'but what's the
'Horse for horse' vs. 'person for person'. If there is a 50-50 chance that killing one horse will save the other horse, what should happen? What if both horses belong to the same person? Do we want to use economic/cost-benefit analysis? interests or case-by-case basis. Alternative, balancing
Defendant opens door, plaintiff rides bicycle turns corner, runs into car door and is injured. If plaintiff was contributorily negligent, then defendant would have escaped liability completely. Under modern comparative liability, if defendant can show that plaintiff was negligent, then defendan t does not escape liability completely but rather you apportion liability between plaintiff and defendant. Contributory negligence does not arise until plaintiff has first established prima facie case for liability against defendant. Question is how long after turning the corner did plaintiff have to see double-parked car? Defect in jury instruction--since trial court did not instruct as to standard of care, jury might have thought about this backwards: "Because someone has been injured, someone must be negligent, and it must be the defendant." _Cooley v. Public Service Co._ P. 187 - Defendant installed power line, severe storm caused power line to break, power line hit a telephone cable, ultimately causing injury to plaintiff, who is on telephone at the time. - Any arrangement for hanging power line involves alternate perils. Method chosen by power company minimizes sum of risks. Since there was no desire on part of public to be without power, nor desire to re-orient behavior of company--has already acted in a way to minimize risk. - Under negligence system, defendant is not liable. - Idea of 'enterprise liability' -- liability associated with business's purpose Tomorrow -- 189. Hand formula 190 tomorrow-- Barge was struck by ship
- Owner of barge sues towing company - Towing company either countersues against plaintiff for negligence or alleged plaintiff's contributory negligence as a defense - Issue on appeal is contributory negligence of barge owner - In order for barge owner to be contributory negligent, barge owner must have had duty to keep someone on board while barge is being tugged. (Need to have duty, breach, causation, and damages). - Issue on appeal is duty element. - Question is: would reasonable person in barge owner's position have kept someone on board while the barge was being towed? - p. 190 'Hand Formula': Defendant's duty of care is function of three variables: - Probability that barge will break away - Gravity of resulting injury if barge does break away - Burden - Burden < Probability * Liability used to determine negligence - From lawyering perspective, stress variable (B, P, or L) which is in best interest of client _Practice Exam_ - Will be given fact pattern, some instructions, need to advise senior partner on merits of case. Not necessarily who will win or lose, just the merits of case. Do not need to figure out if it is a legal issue or not; do not need to figure out if it is a question of torts or not. - Will need to present the merits if the case is presented as an intentional tort, an uninetional tort, negligence, or strict liability. - Need to identify weakest element; if you are plaintiff's attorney, need to explain why this more controversial element has been satisfied. Also need to think about counterargument. What defense will the defendant raise? - Find basis of liability. Should be easier if basis is strict liability. - Questionable whether plaintiff could win on intentional or strict liability basis, is there a way to recast as negligence tort? - Has defendant done what reasonable person would do under the circumstances? - Your role is not to decide who should win, but to articulate the strengths and weaknesses of various weaknesses for cause of actions - Stone v. Bolton case - If you think that more facts (not changing facts)--i.e. what facts are missing that might be important--need to explain why those facts are important. - Practice exam will cover intentional torts. - Prof. does not care "what we think"--not what right outcome should be, but whether or not we can identify pertinent issues and explain why those issues are important and what arguments are surrounding those issues. - Don't spend great deal of time analyzing causation element, since we haven't covered that yet. - Don't need to cite name of particular case, but sometimes is easier (shorter) to argue by analogy to case. - Need to apply Hand Formula for what constitutes negligence - Principles about objective standard vs. subjective standard - Should consider tort in different categories (intentional, unintentional, negligence, strict liability) _Hand Formula_
- Reasonable person will take on precautions if it reduces the probability of them being liable but also taken into account the liability. More precautions = less probability of bad thing happening. - "If it's only going to cost me $1 of precaution, and I can reduce P * L by $10, worth taking action." - Having taken that precaution, is there is additional precaution that I can take, that might be a little more expensive of burden size, but continues to reduce P * L even more. - Keep doing this until the burden and probability * liability are equal. - Want to take into account Social Benefit of activity. Social benefit should not be at expense of greater harm. Driving car has social benefits - Driving down Huntington Ave at 120 mph = higher probability of liability - Take precaution to drive more slowly, causes some burden, decreases probability and liability - Could be set by statute or by social norm rather than by each individual tortfeasor making calculation - Under negligence or strict liability, potential tortfeasor will probably take same precautions under Hand theory; difference is in whether they will be held responsible afterwards. Strict liability removes some of the litigation costs and uncertainity and difficulty in making calculation. _Andrews v. U.S._ (p. 197) --FIRE ALARM-Airplane examples 'Product' in product liability context would be service. Airline probably knows better than the passenger what is required to be safe. Do jury's use Hand formula in determining negligence? If they don't, what do they do? As counsel in this sort of case, you will give some sort of Hand formula. If we dispense with Hand formula, how else might you figure out what Duty of Care is? To get around ambiguities of cost-benefit analysis, look for other bases to establish duty of care: - Custom - What is role of custom in strangers vs. consent situation? - With strangers (highway), role of custom should be weak. What custom will potential tortfeasors adopt? May have incentive to adopt custom with very low duty of care. - Reason to believe people will adopt low standard. Need to come up with other system to take other people's well-being into account. - With consent situation, plaintiff needs to be induced to accept risk of situation. Potential tortfeasor needs to provide inducement to participate in activity. - Could negotiate situation: "I won't get in car with someone who won't meet a level of care with respect to driving." - Another problem with custom: what happens if the world changes?
- Example: custom did approximate Hand formula, world changes, new technology is available. Hand Formula would give much higher standard of care. - Should doctors be held to different standard of care depending on where they practice? - Custom is very conservative principle. _Titus Case_ p. 201 - Take into account facts as relate to the level of knowledge that plaintiff and level of precaution taken by defendant. - Two potential sources of defendant's negligence: - General practice of hauling round bottom freight cars, in the manner which defendant hauled cars. - How it handled particular freight car which injured plaintiff. - Plaintiff knew about the defendant's customs and type of freight cars it carried. - Court's ruling could be interpreted: - Doesn't want to 2nd guess defendant's way of running the business. - Will let custom figure it out. - Second source of negligence might be more appealing. - Negligence in inspecting cars? - Court concludes conductor could, without negligence, be satisfied with visual inspection. - Weak link in defendant's case: we can articulate reasons to suspect that it would not have been too burdensome for conductor (defendant railroad) to engage in additional inspection. - Case was not necessarily wrongly decided, but there is a credible argument that plaintiff can raise that defendant is in breach of its duty of care. - Good case for illustrating close connection/affinity between custom and assumption of risk Relying on custom assumes that custom will embody proper level of care, does not require anyone to analyze duty of care independent from custom. Custom is fairly stable, conservative principle. Easy to administer.
Policy question: is custom proper way to define duty of care? - Problem: custom will tend to lag behind changed circumstances - How far does custom lag behind? _Sullivan Case_ p. 204 - Plaintiff is independent contractor working in mine. Falls into hole and is injured. No lights, no guardrails or warnings. Sues mine-owner for negligence. - Defendant can't use custom to define duty of care - Industry, by custom, tolerates danger of unlit and unguarded ladder holes. - Custom is wrong that court won't permit it - Adding lights (candle light) and guard-rails would significantly lower potential of falling down ladder hole, but this might increase significantly other potential injuries such as mine explosion or people falling over guard rails. - Placing signs 'beware of ladder holes' doesn't help very much.
- Might not be fair to expect outsider (independent contractor) to be familiar with custom. Might argue for heightened duty of care. Even in 19th century, question existed as to whether one could leave Duty of Care to industry standard. Need to read _Mayhue_ as making 'bold' move that custom is not the way to define Duty of Care. Court in _Mayhew_ (p. 204) decided that custom was not 'reasonable' by any means. Then used case to make argument for not using custom at all. If we view _Mayhew_ as rejecting custom 'all out', we must reject it on plaintiff's side as well. P. 205 case among most-cited case. (T.J. Hooper) Judge Learned Hand -- outcome of case especially attractive on facts, but only attractive on Judge Hand's statement of facts. If boat had radio on board, would benefit plaintiff as well. Would guess that industry standard should be to have a radio on board. Reduces probabilities of harms while you're tugging, reduces bad things happening to yourself even when not tugging any barges. Judge Hand seems to think industry custom in lagging behind technology; district court seems to think radio on board *is* industry custom. If there are a lot of cases in which industry custom lags behind technology, good argument exists against custom. If this is rare, then custom may be good standard. Custom does not do well during periods of transition. Air bags discussion. Generally crew provided radio and not boat owner because radios were not as easy to use or standardized. P. 211 Note #4: Trimarco case--anticipates recurrent theme found in product liability litigation. Is relevant custom based on time product is introduced onto market or time injury occurred? Should defendant be required to bring its product into compliance with new custom? -& Pick up on 281 on Tuesday Custom... - Patient claims glaucoma was not tested an should have been--if doctor had duty to administer test. - What is standard of care? Was it established by custom? - Court concludes that it is a matter of law that Doctor breached duty by failing to perform test. - Reasonable precautions are variable depending on patient. - No medical procedure is 'riskless', even when properly performed. - Risk of false positive associated with test
- Who is in the best position to determine whether glaucoma test should be given to people under 40? The Court? The Industry? The Doctors? The Legislature? _Canterbury v. Spence_ (p. 216) - Very difficult to win case if only defense is 'informed consent'. - Would want to believe that if defendant had made proper disclosure, plaintiff would not have agreed to procedure in the first place. People tend to believe that since the plaintiff agreed and was injured, the disclosure must not have been correct. - Defendant will try to break open each and every element of disclosure - Battleground: ways in which any additional information would have influenced patient's decision. - Autonomy Principle - Waiver of bodily control requires knowledge/information - Disclosure requirement can increase cost of care - Compromised, in part, in any case, because objective standards are used to determine what gets disclosed _Statutory Basis_ - One could believe that implicit in any statute is a private cause of action. (i.e., should criminal statutes always have civil actions?) - But shouldn't legislatures make this explicit? - "There is statute, defendant is in violation of statute, and that violation is negligence *per se*." (Baird) - Alternatively, interpretation of statute could be "merely evidence" of negligence (Thayer)--opposes using statute as proof per se. - Example: statute provides that all handguns must be stored with child safety lock, thus you are negligent per se if you have a handgun and you store it without child safety lock. - Contrast: statute is only evidence of standard of care, but other evidence can be brought in: "Would a reasonable person, under the circumstances, store a handgun without a child safety lock?" Certain circumstances where burden of proof will shift to defendant... Some criminal rules do not give rise to private cause of action--e.g., securities regulation. Child safety lock statute would not be relevant in case of adults shooting each other P. 247: Excerpt from RTT: An Actor is Negligent, if, without excuse, the actor violates the statute that is designed to prevent the action the statute prevents and applies to. Doctrine that 'thing speaks for itself' is not only standard of proof in negligence cases but a more general mode of proof which only provides that plaintiff needs to prove by preponderance of evidence in a way that defendant would escape liability. Doctrine -> standards of proof. Can prove that there is no other explanation of how things happened that does not include defendant.
Standard of liability established independently. Burden of proof: under certain circumstances where situation can only be explained by defendant being negligent, burden requires only that there is no other explanation. Burne Case, P. 281 - Plaintiff is struck and injured by falling barrel of flour in front of defendant's place of business. Defendant is dealer in flour. Defendant claims he was not negligence. Standard of liability is negligence. - If strict liability were standard, could resemble Reilly v. Fletcher: who brought water onto land, flour into warehouse, etc.. - Under negligence standard, plaintiff has to prove there was a duty of care and that duty was breached (with strict liability, no need to establish duty and breach). Information about defendant's negligence is in control of defendant. If you have accident that only normally occurs when someone is negligent. - Very hard to establish that an accident or class of accidents only occurs when someone is negligent. P. 284 - Guest statute Innkeeper not generally responsible for torts of guests Connolly case goes other way because it is now possible to hold hotel owner liable for guest torts, if hotel has notice of what the guests are doing. Negligence -- strict liability with a very big set of excuses (and viceversa). P. 288 - Modern interpretation of doctrine - Plaintiff's wife is going up escalator, rail stops but steps continue to move - Court refused to apply doctrine that facts speak for themselves. First Circuit reverses trial court. - Litigation costs may be too high--strict liability will make it easier for plaintiff to get to court. - New jury will only consider whether facts speak for themselves Yberra and remainder of chapter 3 "for our amusement" -& Friday: chapter 4, p. 307 Causation was historically considered to be either 'a solely caused collision' or 'b soley caused collision' or some external force. Thus no possibility of A & B causing it together. In world with only one cause, issue of liability is all or nothing matter. Contributory negligence -- plaintiff's assumption of risk --> 'consensual tort'. Historically no such thing as consensual tort. As immunities give way and potential for liability increases, then need to look for possible excuse/defense in plaintiff's behavior/consent (assumption of risk, negligence) increases. If party has status of immunity, no need to look to other areas.
Product liability: strict liability for defects, contributory negligence from misuse of product by plaintiff. _Butterfield v. Forrester_ (p.308) - Dual causes--introduction of contributory negligence. Need to admit possibility of multiple causation. - Causal roles must come together at time of accident. - Defendant has burden of raising defense of plaintiff's contributory negligence. Also has burden of proving plaintiff's negligence is a cause of plaintiff's injury. - Defendant need not raise this affirmative defense until plaintiff is able to prove that defendant caused harm. - In this case, Judge Bailey analyzes that harm was caused entirely by plaintiff. But he got the facts wrong. - Judge Ellenborough does not 'apportion' responsibility, says that if plaintiff has any liability, no fault is assigned to defendant. - Under basic doctrine of contributory negligence, if plaintiff has any negligence, no damages will be awarded. _Beems v. Chicago Rock Island Railroad_ (p. 309) - Contributory negligence in employer-employee relationship - Railroad was running trains too fast - Alleged contributory negligence on part of plaintiff is that plaintiff was attempting to uncouple tinder car when he was aware that train was running too fast - On principle of contributory negligence, as articulated in Butterfield case, a finding that the plaintiff's conduct was negligent, and that plaintiff's negligent conduct contributed to injury, would relieve defendant of liability. - If plaintiff was not negligent or negligence does not contribute to injury, defendant is completely liable. - Argument will be over causation issue - Court finds for plaintiff on grounds that seem sound on principle: if plaintiff follows accepted procedures, then plaintiff should not be viewe d as negligent, regardless of where foot happened to be at the time. Procedure establishes duty of care. _Schwart Excerpt_ (p. 310) - Supports that Beems opinion was fair, that contribute negligence was used in an even-handed manner in the 19th century - Another view of contributory negligence was that it was used to protect the railroad/business. - Recent literature suggests contributory negligence was not so unfair. _Note_ (p. 312) - Why worry about contributory negligence as defense at all? - Is it designed to provide incentives for plaintiff to take proper care? - Economic arguments against contributory negligence: - Defense is really unnecessary to give plaintiff proper incentives to take care, if proper standard of care can be incorporated into prima facie case. - If you properly establish standard of care defendant should meet, then no need for contributory negligence.
- Harshest form of strict liability says 'you need to take perfect care' - One problem with removing contributory negligence does not make sufficient allowances for errors and uncertainty - By having contributory negligence as separate and independent defense, will give more attention to jury on issue (otherwise plaintiff could just stipulate own negligence and would not be issue at trial) P. 313: - How difficult it is for any defendant to prevail on any contributory negligence claim. - Appeal: did plaintiff's conduct actually constitute contributory negligence? Court finds employee incapable of fending for himself. Standard of care for employee lower than that expected from institutional employer. May not be easy for plaintiff to 'walk away'. - Hand formula might not work for evaluating plaintiff's behavior. Formula might not take into account psychological consequences of walking away, etc.. - Appellate court does not put weight on testimony regarding 'changes would have been put in place if they were neeed. p. 317 - Appellate finds that trial record does not show that plaintiff's failure to report condition was substantial factor about fall of sacks. Does not find plaintiff was or was not contributorily negligent. Not established in trial record, or that was cause of injury. Remands matter back to trial court. Retrial on issue of contributorily negligence. _Contributory Negligence_ One cause-->prima facie case must be established before contributory negligence becomes affirmative defense. Contributory negligence bar. Law begins to cut negligence is "absolute has contributed to only is an affirmative defense which functions as absolute back on Contributory negligence. If Contributory bar", plaintiff is barred from recovery, even if he 1% of fault. *unfair*.
P. 345 -- Contributory negligence starts to modify doctrine... Open road and inattentive train engineer. Is prima facie case against defendant established? Under strict liability regime, yes. "LAST CLEAR CHANCE DOCTRINE" P. 333 Restatement 2nd Could require plaintiff's negligence to precede defendant's to be affirmative defense Could approach willful/reckless disregard for other's welfare Does affirmative defense contributory negligence require defendant to have knowledge of peril? Maybe plaintiff was negligent?
Assumption of Risk--does employee assume risk by being employee at will? Employment doctrine Assumption of risk--decision of plaintiff to engaged an activity, not how they engaged in that activity Commont employment... Even if employer wins in negligence of employee, could still be sued for negligence of supervisor. Could have contributory negligence in Vosberg--failure to wear shin guard. Argument that assumption of risk defense falls along the contributory negligence spectrum. With assumption of risk, less emphasis on there being a duty of care which the plaintiff has breached. If one can truly identify a duty which has been breached by plaintiff, makes more sense to start talking about contributory negligence. _Murphy v. Steeplechase Amusement Co._ (p. 346) 177 N.E. 173 (N.Y. 1929) - Bible of contributory negligence outside of employment context. - Plaintiff steps on 'flopper' and is injured. How could defendant raise contributory negligence? - Tortured argument to say plaintiff has duty not to ride on machine, thus contributory negligence fails. Try assumption of risk--doesn't require defendant to posit duty on part of plaintiff. - Deciding to ride on flopper implies up and down motion - Was plaintiff's injury really caused by up and down motion of flopper (which plaintiff assumed) or by a sudden jerk of flopper; machine was not designed to make sudden jerks, if this is cause of plaintiff's injury then assumption of risk may not have occurred. - Still need to prove prima facie case for negligence. No contributory negligence in spectator sports--have to use assumption of risk argument. "Fireman rule"--assumption of risk still survives (although law generally moves away from assumption of risk). Law avoids assumption of risk because it will remove an otherwise liable defendant from liability. Professional firefighter routinely knows that all fires contain risk of unexpected, thought to be compensated in advance for risks and losses. Not an absolute rule--for example, arsonist case may be exception (tortfeasor). Don't want relieve arsonist from liability, but may want to relieve owner of building (if not connected to arsonist). May not apply when firefighter is engaged in activity that an ordinary citizen would be engaged in. Modern view: assumption of risk can not be distinguished from contributory negligence.
Express contract may be defense in liability -- contract defines duty of care. Do to confuse express contract as defense with implied assumption of risk or most incidents of contributory negligence. There are express negotiations-no negotiations in other situations. Can parties contract as to tort liability? Policy issues. Do you want to enforce contract in particular instance? Were parties to contract in relatively equal bargaining position? _Obstretrics & Gynecologists Ltd. v. Pepper_ (p. 353) 693 P.2d 1259 (Nev. 1985) - Contract issue - Plaintiff might argue that they didn't understand contract; that they didn't have bargaining power, etc. _Comparative Negligence_ (p. 360) - "Comparative contributory negligence"--contributory negligence is no longer absolute bar to recovery--emerged in 1969. Replaces not only contributory negligence but also assumption of risk. Also called comparative fault. - Used to adjust downward damages to plaintiff - "Pure comparative negligence"--plaintiff's recovery is reduced by percentage of plaintiff's negligent, no matter the extent of plaintiff's negligence. - Other versions: if plaintiff's fault is greater than defendant's fault, no recovery. - Another version: if plaintiff is 50% at fault, plaintiff is barred from recovery, otherwise apportion. - Third version (adopted in a few jurisdiction): if plaintiff's fault is slight and defendant's fault is gross relative to plaintiff, then plaintiff's negligence will not be absolute bar, but does not tell jury how to apportion. _Li v. Yellow Cab Co. of California_ (p. 362) - Best brief on comparative negligence. Juries might have been adopting comparative negligence standard on their own. Additional cost in trial due to litigating apportionment. Might want to have assumption of risk incorporated into comparative negligence--plaintiff has not assumed 'all the risk', don't want to let defendant completely off the hook. Last clear chance doctrine--if you look at case where both parties were negligent; case where defendant really does have knowledge of risk and doesn't take reasonable action to avoid injury; court's often direct jury to ignore plaintiff's negligence when defendant had a last moment chance to avoid injury. E.g.: plaintiff was negligent for driving on tracks, defendant engineer saw plaintiff and had chance to stop train but failed to do so, law is reluctant to allow apportionment of negligence.
Chapter 5: Joint and Several Liability (p. 385) Putting aside situation where A and B are acting as "one person" (A and B decide to beat up C), you have situation where something A did and something B did cause injury. Law had hard time with idea of multiple causes. Joint and several liability: even though 2 or more people are responsible for cause of injury, each person is 100% liable; later, the law moves to say defendant who has paid 100% of damages to have claim against other defendants (although initially this is prohibited). Designed to enhance plaintiff getting a recovery. In practice, apportionment gets divided between locatable/living defendants, even if responsibility were distributed otherwise. _Vicarious Liability_ one of most pervasive concepts in law. Corporations, government, etc., can't act on their own, must act through agent. _Ira S. Bushey & Sons, Inc. V. United States_ (p. 413) 398 F.2d 167 (2d Cir. 1968) - Problematic application of vicarious liability. - Need to distinguish between actions done on employee's account, and action done on employer's account. - "Arising out of and within the scope of employee's employment" - Driving: distinguish between illegal left turn in the course of employment (vicarious liability) and 'frolick and detour' cases (no liability) - If you move to foreseeability test, vicarious liability 'drifts away' -- then employer is responsible only for 'foreseeable harm' Causation in fact - Law has limits at which it will consider 'cause in fact'--i.e., 'but for had this person not been born'... doesn't work. - Need to consider counterfactual world--'if the lifebuoys had been on board, could they have been saved?' - When there is a statutory duty, courts often 'gloss over' causation-liability is just attached - Would look at 'whole class' in determining reasonableness-would having equipment on board save a significant number of people, not just the plaintiff _Haft v. Lone Palm Hotel_ (p. 437) When sequence of events is not known, should burden of proof be reversed? Causation at 'molecular level' -- very hard to prove (p. 445) Courts more frequently taking decision away from jury 451-452: cause in fact with Agent Orange _Herskovits v. Group Health Cooperative_ (p. 453) 664 P.2d 474 (Wash. 1983) - What increase in likelihood of fatal cancer is necessary to attach liability?
- Plaintiff cannot prove that decedent would have survived had lung cancer properly been diagnosed - One possibility: unless probability of bad thing increases by 50% from previous level, plaintiff recovers nothing. - Will cause systematic undercompensation for broad class of cases: - E.g., all cases where early detection would have decreased likelihood of premature death by 25%. No compensation. - If law has decided that for probabilistic causal connections you need 50% increase, no recovery. - Alternative approach: 'the lost chance doctrine' - Apportionment rule - Defendant pays its proportion of damage - Think of lost chance doctrine as analogous to comparative negligence Note 1 (p. 457) - Last chance doctrine not used in standard causation cases Should a person be able to recover for future injury? - E.G.: Not all cigarette smokers will get lung cancer - Causation in lung cancer issue--industry has rejected causal link in the past Responsible through Page 535--Chapter 6 Focus on negligence and strict liability material Book: "Getting to maybe" Think about possible answers, no definite answers Only one question on exam ...more exam discussion _Causation_ - What about future injury? - Do we want to provide a remedy for those who turn out not to be injured? - Particular problem in bankruptcy law and in mass tort litigation - *Every* tort has a causation element - Which of causation in fact will be given legal significance? - Defendants A, B, and C might all be cause in fact, but A's causal contribution might be examined as legal cause but B and C not legal cause. p. 479 -- proximate or legal causation if there is no intervening act, epstein would prefer this to be proximate causation. Modern Tort Law: - Is there some other culpable conduct? Defendant's woodshed caught on fire, then plaintiff's caught on fire. Court decide defendant was negligent.
Duty and breach are thus settled. No doubt that plaintiff's woodshed has burned to ground, so injury is clear. Question is whether defendant's negligence caused plaintiff's injury? Caustion in fact is also clear. Was there any intervening cause that would cut off defendant's liability? Example: - Image several houses in between plaintiff and defendant - No liability if intervening structures were involved - Foreseeability analysis - Problem with courts analysis: fails to recognize that fire continues to burn Multi-car wreck--usually can't establish causation for whole chain of events-usually 'a sues b, b sues c, etc'. Bari cases on 484 Theme of "coincidence" Legal cause of accident was tree falling on tracks, not plaintiff's speed or any number of other factorst Situation would be different if speed of trolley shook tree--if trolley itself caused tree to fall downt Plaintiff missed stop -- in one case was put in place of safety, in other case was not, but bad thing happens in both case. Only in latter case is recovery (cause) permitted. Cause in Fact _Ryan_ case Requires causation in fact, and that harm is foreseeable consequence of defendant's action. Otherwise considered too remote (unforseeable). Proximate causation also exists in intentional torts--causal chain tends to be shorter--not always shorter. With respect to causation look at some of intentional torts cases--e.g., _Vosper_. Issue might be whether or not plaintiff's kick is cause-in-fact if it is still legal cause. In _Erie_ -- case about necessity -- question about whether boat is tied to dock, whether it caused harm. Is there an intervening event that cuts off liability? Even once boat went down, did captain of boat make bad judgment about what boat should do? If captain had made reasonable decisions, would that have saved boat? Could that cut off liability? _Dylan_ Independent causation--two successive causes: - Kid is trespassing on defendant's property falls from building.
- One cause of death is falling from defendant's property. Did defendant breach its duty of care with respect to trespasser? - Touching high voltage wire sufficient, falling from building each is sufficient - If wire only shortened life by ten seconds, then only thing plaintiff should be responsible are these seconds of life p. 487 _Pittsburg Reduction_ case Was Pittsburgh's action too remote? P. 506 Alternatives for causation Suicide cases--in principle, recovery should be allowed if conduct of defendant drove deceased to commit suicide. So many reasons to commit suicide, however, problematic. If defendant has not taking reasonable precautions for foreseeable risk, then liability. If they have breached duty, responsible for both foreseeable and unforeseeable consequences, in case. Directness test--does not look at foreseeability. Most american courts have followed directness test foreseeability test--'reasonable defendant' Probablistic cause review... Two theories: 50% rule, lost chance rule