1 Torts Professor Vandall Fall 2002 INTRODUCTION A. Theory of Torts Law: 1. Compensate injured party 2. Deter the actor 3. Keep the peace B. Tort Law has come full circle 1. Malone—Says law has a basis in absolute liability. If you invited someone to a wild beast show and they get killed, you are liable. All you have to show is cause-in-fact. 2. Weaver v. Ward: P wins b/c D failed to allege the shooting was inevitable. Court says inevitability is a defense (but burden is on D)--Begins to introduce concept of contributory negligence. 3. Brown v. Kendall: D beats dogs, backs up, and hits P in the eye with a stick. Judge Shaw says all the previous thought was dicta. Now you are going to intent or you are going to have to show negligence. Now burden is on P to show intent or negligence—P takes burden of proving all things essential to his case. Judge Shaw protecting interests of big business in this case. 4. Hammontree v. Jenner: Absolute liability/strict liability is not applicable in an auto crash. D suffers epileptic seizure and crashes into P’s shop. P argues absolute liability. Court says it doesn’t apply because: a. Products liability is about spreading the loss (if price of ford explorers goes up, people will buy Acuras) b. Court says if California wants to shift to a product liability regime it is the legislature’s job. INTENT Purpose Knowledge with substantial certainty ex. punch in nose RECKLESS/GROSS NEGLIGENCE Realizes strong probability of harm will result ex. serve alcohol to teen driver NEGLIGENCE Knows there is risk of harm—no intent ex. drive 5 miles over speed limit STRICT LIABILITY Individual guilty regardless of intent or negligence ex. blasting with explosives 2 c. Court says there would be chaos in insurance industry if product liability applied here—it is automatic now that people who are at fault pay. In this case, let P’s insurance pay. 5. Distinction between absolute liability and Strict Liability: a. Absolute Liability: D will be held liable if cause and fact are shown. No defenses. b. Strict Liability-New Theory. Two situations: Products arena and abnormally dangerous activities (blasting). You have defenses here. 6. Langan v. Valicopters, Inc.: D gets pesticide on P’s crops doing crop dusting. P argues strict liability. Court says crop dusting constitutes an abnormally dangerous activity. 7. Spano v. Perini: Blaster in NYC. P brings suit. Lower court says you are obstructing progress. Appellate court says the question is who should pay for the damage. If you put costs on blaster, blasters costs will go up. We aren’t saying don’t blast—we are saying if you are going to blast, cut us a check. 8. Thus, law has come full circle a. Absolute liability in 1300 b. 1850-we go to fault and say you have to show intent or negligence in order to recover c. Present day (2001): We have strict liability for products and for abnormally dangerous activities. Strict liability rests on policy questions. INTENTIONAL TORTS A. INTENT IN GENERAL 1. Difference between intentional torts and negligence a. Intentional Torts require that D intended the conduct by which injury resulted (but not necessarily that the injury was intended) b. Intentional Torts are not concerned with proximate cause-P need only prove cause-in-fact that the conduct did occur i. D is liable for all damages/consequences of act (someone taps a person with an eggshell head—D is liable for the whole damage) ii. No actual damages/injury necessary to recoveroffeensiv touching is sufficient c. P can recover punitive damages for intentional torts—not so for negligence i. The test for punitives is whether conduct was willful 3 d. Repondeat superior does not usually apply to intentional torts. Employers are thus not liable for intentional torts of their employees. i. Respondeat superior: business/employer is responsible for negligent acts of employees ii. exception is bouncers, security guards. Employer is responsible for intentional torts of bouncer b/c it is within their line of work. 2. Intent a. Intent has two elements i. Purpose to cause the contact OR ii. Knowledge with substantial certainty that harmful or offensive contact is likely to occur b. Majority of jurisdictions hold children responsible for their intentional torts provided they intend the conduct (court only considers age of child to the extent that it affects their knowledge) . Garrett v. Dailey (five year old pulls out the chair from under his babysitter). Some states have brightline tests for children (ex. if you are over age of 14, you are capable) c. Hypo: Suppose someone is downstairs dancing with their hands in the air and hits someone. Suppose he does this when no one is around. We have only risk and are talking about negligence. Suppose he does this when people are out of class. Probably battery b/c he had knowledge that harmful or offensive contact could occur. d. Hypo: Suppose postal employee wants to blow up his boss. He is aware that secretary is likely to be injured. He throws a bomb, kills secretary, and says “I love the secretary.” It doesn’t matter. He committed a battery because b/c he knew with substantial certainty that she would be injured. 3. 5 Original Intentional Torts i. Assault ii. Battery iii. Trespass to Land iv. Trespass to Chattel v. False Imprisonment b. P need not show actual damages or injury to recover for one of the original intentional torts c. Transferred Intent: If any of one of the 5 original torts is intended and one of these 5 torts results, you can transfer the intent to a third party. (deals with third parties). i. Keel v. Hainline: Girl was injured by eraser thrown by boy. D is the boy who handed the eraser to the boy 4 who threw it. Court says boy was sufficiently involved to be held liable. ii. Let’s say thrower intended to scare one of the other guys. Instead he hits the plaintiff. You have an assault intended and a battery result. This fulfills concept of transferred intent. B. BATTERY: 1. Requirements: Intent + Harmful or Offensive Contact a. D intended the conduct i. Not necessarily to cause injury b. Infliction of harmful or offensive (unpermitted) contact as judged by a reasonable person standard i. Harmful=punch in nose, offensive=removal of mole ii. Would reasonable person have permitted the action? iii. Touching qualifies as contact 1. Socially acceptable touching does not qualify even if person is very sensitive 2. Unless D knows P is sensitive to normal touching which would be offensive if known c. Without P consent or if consent is gained by fraud or duress -Classic case: Vosburg v. Putney: One kid lightly touches another on the knee and aggravates a previous injury. Kid acted with purpose to cause contact and even though contact was light, it was offensive. --Hypo: Boy throws bottle against telephone pole and hits guy working on telephone lines. What is his defense? He didn’t act with purpose and there is no evidence he knew man was up there so there is no knowledge with substantial certainty. Can we transfer intent from hitting telephone pole to hitting human being? To do that you have to analyze the torts. Is the hitting of pole a trespass to chattels? Well, we don’t allow trespass to chattels for trivial conduct and there has to be substantial interference with ownership and control. So that probably wouldn’t work. 2. Essence of battery is the offense to a person’s dignity. 3. Informed Consent: Doctor must inform you of the risks involved in the treatment. Contemporary treatment of informed consent is negligence. Early thinking was in battery. a. Lack of informed consent is a tort in negligence but where there was no consent at all for any type of surgery, battery results. (suppose you break your nose, doctor fixes nose but also removes a mole—this would be a battery) b. Mink v. University of Chicago: Women were unknowingly given DES as part of a medical experiment. When given to women, DES causes kids to develop cancer. Cancer is a direct result of DES. Court says there is a battery. Defense for 5 hospital is that patient consented to treatment when they checked in. P would argue that person was not consenting to being treated with an experimental drug. c. Must remember—Who controls your body—Patient controls his or her body. d. Battery is easier to prove than negligence b/c don’t have to show actual injury. e. Doctors are allowed to perform unconsented to medical treatment in emergency situations without being charged with battery. 4. Contact a. Battery can result from contact with an object closely identified with the body of P. Carrousel Motor Hotel –battery occurred when D snatched plate out of P’s hand, even though P wasn’t touched and didn’t suffer physical injury. b. Battery can occur without assault—you don’t see or have opportunity to fear the impending contact (hit from behind) c. Technical Battery: Elements of battery are met, but only nominal damage resulted-P can recover only nominal damages. d. Battery can occur while asleep (such as when under anesthesia) e. Battery can occur even if it is a joke. If elements are there, liability flows. 5. Federal Tort Claims Act: permits actions against US when civil employees negligently injure person in the scope of their employment but there is no recover if it is an intentional tort. Lamberton v. US (horseplaying meat inspector caused P to fall onto nearby hooks causing battery—no recover against US government). C. ASSAULT 1. Requirements: a. D intends to cause apprehension of harmful or offensive contact or intent to cause the contact itself. b. P must be reasonably apprehensive of harmful or offensive contact or that imminent contact will result i. Must know that it is coming ii. Size doesn’t matter (Ali does not have to be frightened—all he has to do is apprehend the offensive contact). iii. Words are usually not enough unless they are unmistakably going to result in contact c. Gesture requirement: i. Saying I’ll kick your ass even if you see weapon isn’t enough w/o gesture ii. Words alone do not make actor liable unless together with other acts or circumstances 6 iii. Words could undue conduct—shaking fist and saying “if you weren’t my best friend, I’d punch you in the nose.” 1. I told you I wouldn’t punch b/c you are my best friend so there is no reasonable apprehension iv. If a man is just holding gun, there is no gesture. If man reaches for gun or pulls out his gun that might be gesture. 2. P must have reasonable fear of impending battery or physical harm. Bouton v. Allstate Insurance Co. –man shot and killed trick or treater, believing military fatigued 13 year old was actually going to shoot him—he should have known it was a prank and not reasonable. 3. Assault only applies to intended victim not onlookers from afar (can’t be apprehensive about someone else being contacted). C. FALSE IMPRISONMENT: 1. Requirements: Intent to confine, physical confinement, and plaintiff must be aware of confinement. a. D intends to confine P within boundaries fixed by D i. Freedom of movement is limited b. Physical Confinement without consent, without a reasonable means of escape that P knows of. (person doesn’t have to be locked up, confinement is the test) i. Actual physical restraint is required ii. Inaction is enough—doing nothing qualifies (cult case-he did not give boat to get to shore so she was confined) iii. Irrelevant how short confinement period is iv.Threats are enough, don’t need force to be confined. c. P is conscious of confinement i. restatement argues that harm is enough even if person is not conscious. d. Actor’s act directly or indirectly results in confinement of another 2. D need not confine P by physical force, it may be enough that D exerts such power of authority over P that P is effectively confined (Whittaker v. Sandford (Syrian cultist traitor was confined on a ship by will of the religious leader). a. In Whittaker, it was found that P’s inability to use row boat provided her with no reasonable means of escape. 3. P may also be falsely imprisoned by the expressed or inferred threat of force—it may be enough that P thinks she is physically confined. Dupler v. Seabert (woman was 7 confined by her employer’s refusal to let leave the office). Court said yes FI. D argued that she wasn’t physically confined b/c d never held her, etc. Court doesn’t buy this. a. What if she says sure I would love to come and talk in the office and then changes her mind. Still FI? Yes, it can shift from consenting to FI. b. Given clear expression of person’s desire to leave, FI may result from refusal 4. Hypo: Deprogrammer would argue that they had parents consent. Some courts are willing to take position of parents. Other courts say young people have free will. E. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED) 1. Requirements a. Conduct must be intentional or reckless i. or where D acts recklessly in deliberate disregard of high probability that emotional distress will follow ii. when D intends and knows distress to be certain to result from conduct b. Conduct must be extreme and outrageous—this is the main test Vandall says i. Must go beyond all bounds of decency and be regarded as atrocious and intolerable ii. Insults or threats do not count iii. Conduct may arise from actor’s knowledge that the other person is particularly susceptible to emotional distress by reason of physical or mental condition. iv. Personality of insulted individual is factor v. Sometimes the extreme and outrageous character of D’s conduct is evidence enough that IIED exists vi. Is the truth a defense—you have to argue policy c. Must be causal connection between wrongful conduct and emotional distress d. Emotional distress is severe i. Intensity and duration are factors to be considered in determining severity ii. More outrageous the conduct, the less you need to come up with in damages e. No bodily contact or physical injury is required for IIED 2. Court has to decide whether there is sufficient evidence of extreme conduct to go to jury. Court decides if D’s conduct was extreme and outrageous and jury decides if P should be held liable 3. There are two kinds of emotional distress a. Intentionally inflicted b. Negligently inflicted 8 4. Plaintiff must show that D’s conduct, outrageous in nature, in and of itself cause the emotional distress. Harris v. Jones. (IIED did not lie where supervisor’s harassment caused P’s stuttering to worsen since this was a preexisting condition) a. Thick skin is best defense for this type of harassment 5. Classic case: Conductor on a train starts swearing at a passenger. 6. Americans with Disabilities Act—reminds us you should always check the statutes. You may have a parallel cause of action in the statutes. Today P could have recovered in Harris v. Jones under ADA. 7. Taylor v. Vallelunga: In order to hold attacker liable for IIED, she must be known to be present. The attacker must know that third party is there watching the beating. Attacker has to have intent not only to cause injury to father but also to daughter watching. 8. You can’t transfer intent in IIED. 9. Public figures may not recover for IIED without showing that (as for libel or defamation as brought out in Times v. Sullivan) the offensive publication contains a false statement of fact which was made with knowledge of the falsehood or with reckless disregard of whether it is false or not Hustler Magazine v. Falwell. Falwell sued magazine for offensive parody and loses. Court shifts theory of defamation to apply to IIED in the case of public figures. 10. Also Vandall talks about Westmoreland and how he sued for IIED for a TV show. He came out looking worse after show. You have to communicate this risk to your client. F. TRESPASS 1. Trespass in General (can sue in intent, negligence, strict liability) a. Every unauthorized entry on the land of another is trespass (Dougherty v. Step). Vandall says this is an overstatement. When we use word trespass, we are usually talking about the intentional entry on the land. b. Law infers some damage even without evidence of injury Longenecker v. Zimmerman (P entitled to damages from D’s trespass action to chop P’s trees). Law views property as being important and thus presumes damages. Vandall does not like that they say jury must find nominal damages always for trespass. Vandall thinks juries should decide the award. c. Two means of trespass i. Unauthorized, intentional entry up on the land of another (intentional tort) ii. Mistaken entry upon land of another (negligence) d. Hypos showing how law is seamless: i. If airplane is buzzing a cornfield you could argue that there is an interference with usable portion of the land. You could say this is intentional ii. Strict liability-airplane is flying over a populated city and crashes into a building. Suit is brought in strict liability. Issue became whether such flights are customary? Court said they were, therefore 9 rejected strict liability cause of action. You have to look at definition of strict liability in the jurisdiction. iii. Others say no trespass even though it is intentional. There will only be held liable for negligence which means you must show damages. iv. In Cosby case, where P owns property near runway where planes land. P argues inverse condemnation based on Constitution. (that his land had been taken). e. For airspace above your property, you have an argument in: i. Trespass-if they take off the tops of your corn. If they interfere with usable portion of land. ii. Negligence-if they negligently run out of fuel and land on your property. iii. Strict Liability iv. Constitutional Taking 2. Trespass to Land and nuisance a. Trespass to land protects the owner’s possession/ownership of his property b. Modern law of trespass does not require the invasion by a person or physically tangible object, rather trespass by miniscule particles (vapor, gas, dust). c. Trespass: Must be intentional and D must physically invade P’s land, but need not personally go onto the land to do this. i. Most states require that at least some physical object must go on land ii. Interferes with exclusive possession of property iii. Do not have to personally touch surface of land—land includes space going up and down of surface for a reasonable distance iv. Intent to trespass is not required—intent to do act that caused trespass is ok. d. Nuisance: Interferes with use and enjoyment of land. Vandall says it is a charge to the jury to do what is right. e. Modern Law of Trespass-when intrusion is indirect (gases, vapors, dust, etc) Requirements: i. An invasion affecting interest in exclusive possession of property ii. An intentional doing of the act which results in the invasion iii. Reasonable forseeability that the act could result in an invasion iv. Substantial damage to res f. Borland v. Sanders Lead Co. (Trespass resulted from the indirect invasion of emission particles from D’s smeltering operation. D’s defense is Alabama Air Pollution Control Act—compliance with a statute as a defense. Court says the door is open for civil suits. g. Note: You could have a situation where the release of particles is negligent and not intentional. 3. Trespass to Chattels: a. A chattel is something moveable. Almost everything that is not real property. 10 b. Trespass to chattels lies for the intentional interference with the possessionary right of the owner to the chattel c. Trespass to chattels is not awarded to something trivial d. There must be evidence of substantial interference with ownership and control of the chattel. e. Damages will not be presumed in trespass to chattels--P must show damage to the chattel f. Huffman & Wright Logging Co. v. Wade (Logging company says trespass to chattel is the immobilization of their trucks b/c it costs money to move logs. D argues free speech—they tie themselves to trucks and are protesting logging. Court finds this activity is not speech. Court says there may be a speech component and a trespass to chattel component and therefore punitive damages may not arise in the speech component. Also, court says Constitution doesn’t apply to private property. Some things are so open to public there is a constitutional component, like a shopping mall. G. CONVERSION: 1. Conversion: Intentional exercise of domain or control over a chattel which so seriously interferes with the right of another to control it that the actor may be required to pay the full value of the chattel. a. Intermeddling which occurs impairs the condition, quality, or value of chattel b. Impairing condition, quality, or value of chattel upon brief interference constitutes only a trespass c. Intentional destruction or material alteration of chattel will constitute conversion 2. Conversion differs from trespass to chattels: a. In the amount of control person has over chattel b. Amount of interference (trespass is lesser interference) c. Whether it is fair to hold D liable for whole amount (primary issue) i. D has constructively bought the property by his conversion of it, and he is held liable for the value of the property ii. Conversion is more serious exercise of dominion over another’s property 3. Factors to consider to determine if serious enough to be conversion a. Extent and duration of actor’s exercise of domination or control b. Actor’s intent to assert right in fact inconsistent with other’s right of control c. Actor’s good faith d. Extent and duration of resulting interference with other’s right of control i. Take briefcase for couple of hours and not injure it, trespass ii. Take it for 10 months, conversion e. Harm done to chattel (little damage=trespass to chattels, lot of damage=conversion) f. Whether it is appropriate to entitle plaintiff to full value of chattel 11 g. Inconvenience and expense caused to the other 4. Hypo: Suppose you are in an argument—person takes keys and throws them in oil. Are we in conversion or trespass to chattels? D will argue about extent and duration of the interference. You might also look at IIED—a jury is likely to be sympathetic. You can attack emotional distress to any tort and leave it to the jury to decide the damages if any. 5. Dickens v.Debolt: D police officer discretionary activity in eating the confiscated sturgeon did not fall under the immunity of his official duty and was conversion. 6. For purposes of conversion, information not considered to be property unless it has value as: a. Literary property b. Scientific invention c. Secret Plans d. Sold as commodity 7. Pearson v. Dodd: (information as property case—conversion did not lie for D’s conduct in copying sensitive documents). Court says these docs were property of government. PRIVILEGES A. If applicable, privileges justify or exempt from liability the intentional act that is the basis of the underlying intentional tort suit 1. A defense is that an element of the tort is missing. 2. Privilege assumes all elements are there, but question is whether there is a social policy that justifies the conduct B. Technical Battery: Elements are met but damages not required but jury is able to speculate. C. CONSENT AS DEFENSE TO BATTERY 1. MEDICAL ARENA a. Except in emergency, life-threatening situations, surgeon must have the patient’s consent before operating. Mohr v. Williams. Doctor successfully operated on the ear not consented to. b. Emergencies are defined as something that threatens life or limb (the ear in Mohr case did not meet this test) c. Remember, everyone controls his/her own body d. Where contact was beneficial to P, damages will be nominal, but is no defense e. Informed Consent: What you have to show is that if you had been informed of the risk, you would have selected another alternative. You have to show you wouldn’t had surgery if you had been informed. f. Patient has right to impose express limitations or conditions on doctor’s authority to perform an operation Ashcraft v. King (P’s consent was conditioned on use of family-donated blood so doctor was 12 liable regardless of whether blood hadn’t been HIV positive (it was HIV positive in this case). 2. SPORTS ARENA a. To recover for a battery during the course of a recreational or sports activity, D must have acted recklessly or intentionally outside usual scope of activity. Marchetti v. Kalish (P injured while playing kick the can-no intentional, so no recovery). Hackbart v. Cincinatti Bengals (after play, guy gets hit by other player). Player recovered b/c it was intentional. i. When you play sports, you assume the ordinary risks of the activity. ii. Whether the activity is organized, unorganized, supervised, or unsupervised is immaterial to the standard of liability 3. OTHER ARENAS: a. Consent to an illegal fight cannot be used as a defense to assault and battery b/c can’t consent to illegal act. Teolis v. Moscatelli (P was stabbed after accepting D’s challenge to fight). i. Jury might mitigate damages though b/c he consented to fight. ii. The holding of this case may not deter fights—plaintiff is in a win-win situation. Either wins the fight or a lawsuit. Another group of cases has gone the other way and said consent is a valid defense-under this theory, no one can recover. b. Aggressor doctrine—someone can defend themselves if provoked— self defense. c. Two theories of self-defense i. North-victim must retreat to the wall before retaliating ii. South-victim need not be against the wall to retaliate d. Self-defense examples: i. Person goes into 7 eleven to buy something. He sees someone getting ready to get into his corvet so he turns around and shoots him. This is not self-defense. Self-defense has to do with the person not the chattel. ii. Jeff threatens to knock Melissa’s hat off and lunges toward her reaching for the hat—to prevent Jeff from knocking the hat off, Melissa punches him in the stomach, causing substantial bruises to Jeff—in the process, Melissa cuts her knuckles on Jeff’s belt buckle. a. Is Melissa liable to Jeff? 1. No, b/c self defense-had threat and act b. Is Jeff liable to Melissa? 1. Yes b/c had it not been for Melissa defending herself, she would not have been injured c. Her defense is a privilege which means she did not commit battery so she is allowed to recover for her injury. 13 e. Use of reasonable force must be congruent with the immediate, timely and reasonable consequence of provocation Thomas v. Bedford (teacher’s punishment came several minutes after student’s offending action so not self-defense). f. There is also a concept of defense to others—you have a privilege to defend others. Suppose you see a fight going on and start wailing on the big guy. You can use reasonable force in defending someone. But you may have made a mistake and helped the aggressor. Some courts adopt the rule that he steps into the shoes of the person he helps. Thus if you help aggressor, you lose. Other courts adopt the opposite and ask whether it was reasonable for guy to think he was helping the non-aggressive party. D. Privileges to False Imprisonment 1. One who consents to being placed within a limited and enclosed space by the other is not legally confined. a. Consent to be confined is no defense when it is conditioned and D somehow breaches that condition. Noguchi v. Nakamura (girl agreed to go only to the store with her ex-boyfriend) b. Consent to confinement can be limited to time or events 2. Nonconsensual detention can be deemed consensual if one’s behavior so indicated. Peterson v. Sorlien. Parents confined cult-involved daughter for deprogramming. Court viewed her latter 13 days choosingly spent with parents as a waiver of the first three days when she did not want to be there. P could argue that she realized she would better off if she acted happy and thus there was no waiver. A different court that embraced individual rights could rule the other way on a case like this. a. If one is aware of reasonable means of escape that does not present a danger of bodily or material harm, a restriction is not total and complete and does not constitute FI b. Coercive persuasion is fostered through the creation of a controlled environment that increases the susceptibility of a subject to suggestion and manipulation through sensory deprivation, physiological depletion, cognitive dissonance, peer pressure and clear assertion of authority and dominion. 3. Restatement allows a retailer privilege to detain for a reasonable investigation a person whom he reasonably believes to have taken chattel unlawfully. Bonkowski v. Arlan’s Department Store (woman suspected of shoplifting detained in store parking lot and court say no FI). a. It must be a reasonable detention and they must reasonably believe that plaintiff had taken goods b. If the merchant did not have this privilege, he would have to let the suspected person walk away or must arrest him, with the risk of liability for false arrest. c. Court extends privilege to detain to the areas surrounding the store, such as the parking lot, b/c a merchant may not be able to form the 14 reasonable belief justifying detention before a suspected person leaves the premises. At some point, extension outside of store is cut off. E. PRIVILEGES TO SUITS ALLEGING TRESPASS TO LAND AND CHATTELS 1. There is no privilege to use deadly force to repel the threat to land or chattels, unless there is also such a threat to defender’s personal safety to justify selfdefeense Katko v. Briney (no trap guns to defend old barn-liable b/c greater value placed on human life than property a. Although one may use reasonable force to protect his property (after requesting them to leave property), one may not use deadly force unless person himself is threatened b. There may be assumed to be threat against the person where the trespasser has broken into the home c. A trespasser injured by a barking dog may be said to have assumed the risk (b/c can hear dog barking), but the owner may be liable if he has reason to believe that the dog is vicious. d. A defender cannot do indirectly by a mechanical device that which he could not have done immediately if he were present. F. NECESSITY 1. Private necessity a. Only benefits a limited number of people b. Necessity, especially in preservation of human life, will justify entry upon land and interference with personal property that would otherwise have been trespass. Ploof v. Putnam (D’s servant unanchored P’s boat and is thus liable for damages, b/c P was forced to anchor on D’s dock b/c of a storm). c. Although necessity is a defense to trespass, person is still responsible for any damage to the property. Vincent v. Lake Erie Transportation Co.—dock was damaged when ship held anchored to it for protection against storm. You have a right to tie up, but you have to pay for any damage done. 2. Public Necessity a. Doing something to prevent injury to a lot of people b. The most widely held view is that public necessity is a defense to both the imputed damages of technical trespass and the actual damages caused by the injury to the property. Surocco v. Geary: Suit by owner of house to recover for its value when it is blown up to stop a fire. Since there was a reasonable appearance of necessity, it was okay to blow up house. Court says you cannot recover for the value of the house. c. Minority view is that you can recover. Wegner v. Milwaukee Mutual Insurance Co. Court says the state constitution states that when gov. 15 destroys property under “imminent domain”, the person has to be compensated. d. Comparing Surocco and Wegner: In Wegner, city will only have to pay $43,000 whereas in Surocco the city will have to pay lots and lots. Also, in Surocco, you can say public necessity rests on immediacy whereas if was a situation in imminent domain, it may have been planned for 10 years. NEGLIGENCE FORMULA: 5 part formula and must meet all 5 to prove negligence 1) Duty—policy question—does act or owe a duty to injured party? Look at policy not superficial term of foreseability— The court controls and answers the question of duty--Vandall thinks that the judge usually determines duty. 2) Breach—whether person conformed to the standard (whether defendant failed to exercise reasonable care) 3) Cause in fact-question of science-did defendant’s conduct have to do with injury as a matter of science 4) Proximate Cause-Policy question—matter of line drawing. A line must be drawn somewhere in regard to liability. 5) Damages—Duty and proximate cause are most serious issues in damage (you have to show damages in negligence unlike intentional torts). DUTY A. Two main theories that will help start the duty analysis: 1) Heaven v. Pender: DUTY TO WHOLE WORLD 1. Stands for idea that anytime you recognize a problem, you must use reasonable care 2) Cardozo—Palsgraf: YOU OWE A DUTY ONLY TO FORESEEABLE PLAINTIFFS B. Obligation to Assist Others 1. Generally, a person does not have a duty to assist another in peril Yania v. Bigan (man drowned in trench as defendant looked on)—held that there was no duty to render aid. Theory is based on rugged individualism of America. a. There is a duty when there is a special relationship (carrier/passenger, employer/employee, innkeeper/guest, husband wife, parent/child b. There is also a duty if there is a public invitation based on economic benefit. (no duty if you invite someone over for dinner; this has to do with if you are the Dekalb library and you open your doors to the public or if you go into Macy’s) 16 c. You also have a duty if D has control of the instrument. (elevator, trains, cars). d. Statutes: i. Vermont statute requires a rescue if you are not putting yourself in danger to render aid ii. A person involved in a highway collision is required to provide assistance by statute. A failure to do so will likely be interpreted as negligence per se. iii. Good Samaritan statutes: Medical professionals who render aid at a scene of accident without making any charge are often protected from suit. Medical professionals are not required to assist. 2. Misfeasance: Refers to some action wrongly done for which there may be liability. Classic example: Someone is drowning, you get in your rowboat and start rowing to them—then you say you have an exam tomorrow so you row back to shore (law would find a duty in this situation). Nonfeasance refers to situation of non-action for which there is usually no liability (see Soldano v. O’Daniels for exception) 3. Law and Economics can play a role: Applying Law and Economics to shower hypo. Benefit was saving a life. Cost for calling 911 was zero. Economic theory would argue for a rescue in this situation. 4. Once you begin to render aid, you can’t stop b/now you have a duty. Where action has commenced but fails, misfeasance (inappropriate doing of act) may lie. 5. Farwell v. Keaton: Court finds a duty to rescue. Vandall critiques this case on its broad interpretation that anytime we have companions, there is a duty to rescue. Court found a duty b/c of special relationship but this is flawed. This case is more based on fact that rescuer began to act and then stopped. 6. Soldano v. O’Daniels: Everyone has general duty to not prevent others from providing aid to third party. In this case, bartender refused to allow rescuer to call police—was found to have a duty. Court considers a number of factors in determining if there is a duty: a. Forseeability of harm to plaintiff b. Degree of certainty that plaintiff suffered injury c. Closeness of connection between defendant’s conduct and injury d. Policy of preventing future harm e. Moral blame attached to D’s conduct f. Extent of burden on D g. Availability of insurance h. Administrative factor: The issue of whether this in the sphere of the court. Whether it will open pandora’s box. Professor Green raises administrative factor 17 a) A duty can exist even when there is no action (Nonfeasaance)Court here is saying there is a duty when there is no action. 7. Normally, courts will not find a duty based on a mere promise. But Marsalis (D promises to keep cat in house and doesn’t), stands for proposition that there is a duty if there is a promise, reliance, and personal injury. 8. Once a duty is found, there is an obligation to exercise reasonable care. C. PRIVITY: SUITS BY THIRD PARTIES (Whether there is privity only begins the analysis, court will also look at policy) 1. Privity: Relationship between two parties where each has legal interest in same subject matter a. People are in contractual relationship with each other 2. H.R. Moch Co v. Rensselaer Water Co: P is not a party to contract between city and water company. P’s warehouse burns down for lack of water pressure. a. Court says third party cannot hold water company liable when there is no privity. b. Court says concept of third party beneficiary does not apply b/c water company did not intend to make itself answerable to individuals c. Water company had taken action and begun to pump water but court says there is no action. d. Court also talks about indefinite liability—court doesn’t want a flood of lawsuits. e. Courts are aware that warehouse has insurance and water company might go out of business if it had to pay everyone 2. Ukia: City could not sue water company even though there was privity. The reason the city cannot recover is b/c they are in a good position to insure. Ukia follows Moch but reaches a decision we didn’t expect. Establishing privity doesn’t mean you will recover. 3. In Hayes residents contracted typhoid from contaminated water supply. Court found a duty b/c there was action. The better rationale is that there was no insurance in play—people didn’t have insurance. 4. Which rule do we follow? Vandall wants us to talk about all of these rules. 5. Strauss . Belle Realty Co.: Man fell down stairs during blackout-no duty was found to him by electric company b/c electric company contracted with landlord, not tenant. Also: a. Policy: Court is concerned that thousands would sue. 18 D. Duty of Professionals 1. An attorney who negligently draws up a will can be held liable to the third party beneficiaries even though there is no privity. Lucas v. Hamm. a. Court is not concerned that this will place an undue burden on the profession of attorneys b. But court says attorney is not liable for every mistake, especially in regard to a difficult area of law (Vandall disagrees with this) E. Duty to Control Others: 1. Tarasoff v. Regents of Univ of Cal.: Court holds that doctor had a duty to warn Tatiana about Poddar. Doctor argues doctor-patient privilege between him and Poddar. Once a therapist does in fact determine or should have determined that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect foreseeable victim of that danger. a. There is a duty if special relationship with either person whose conduct needs to be controlled or with foreseeable victim of that conduct. b. Therapist need not render a perfect diagnosis but only exercise reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of that professional specialty under similar circumstances. c. Public interest in protecting lives outweighs considerations of confidentiality d. Risk of unnecessary warnings is reasonable price to pay for lives of possible victims that may be saved. 2. Hypo: suppose student walks into health department and says I am going to kill a female student. Court did not hold doctor or university liable b/c killing a student is vague. How do you warn all of the students. In Tarasoff, the doctor knew who the exact person might kill. 3. Hypo: Suppose you are an attorney and your client tells you that he sells drugs? What is your obligation? 4. Tarasoff stands for the rule that when someone is threatening life, you have an obligation to tell. Harsher rule than code of professional responsibility. 5. Rule 1.6 of code of professional responsibility says when the conduct may cause imminent death or substantial bodily harm you may inform the authorities. 6. In other words, you can be held civilly liable under Tarasoff but not criminally liable. 7. If client says your fee is too expensive I am going to embezzle money to pay. You would be aiding and abetting and would probably be disbarred and be held civilly liable. 8. Negligent Entrustment: (ie, giving your car to a drunk). Liability arises out of the combined negligence of both, he who entrusts and he who acts, therefore both are liable. 19 a. If the entrustor knows or had reason to know that so entrusting is foolish or negligent, she will be held liable for negligent entrustment. Vince v. Wilson (extends to the grand aunt who gives her nephew money to buy a car, even though she knew that he was unlicensed and abused drugs and alcohol). b. Under Vince, the entrustor need not have possession of the item, only provide the means for the actor to receive the item. c. Entrustment of money is sufficient, for without the money the car couldn’t have been bought d. B/c the car dealer and salesman also knew of the nephew’s unlicensed status, they are also negligent in selling the car to him e. Banks can also be held liable under negligent entrusment for lending money to person for a known person that makes such lending unwise f. For negligent entrustment, both parties must be negligent. 9. Joint Tort-Feasers: Under joint tort feasers, the plaintiff can recover the whole amount from any of the joint tort-feasers. They are joint b/c their conduct produced a single indivisible result. In Vince, Aunt can drag in Ace and Salesman to pay their appropriate share. Plaintiff collects the whole amount but the money may be divided based on fault. 10. Hypo: Boy got a gun and shoots a bunch of people. How did he learn to shoot? Video Games. The manufacturer of video games should not be held liable b/c the purpose of these video games was not to help people kill others. They were for entertainment. 11. Olivia v. NBC: A movie that shows a violent act and the act is replicated. The defense in Olivia is the first amendment. Lawsuits would be enormously injurious in terms of stifling creativity if they were permitted in this case. 12. Crowley v. Spivey: Grandparents responsible when mother killer children in their custody, having allowed the mother visitation even though they knew that she might have a gun. Grandparents had embarked on a course of conduct in terms of looking for the gun. This constitutes action, and where there is action, a duty can be found. F. Negligent Infliction of Emotional Distress—remember courts are concerned about people faking here. 1. Tests for finding negligent infliction of emotional distress. 4 rules which different states ma apply to limit recovery— a. Impact Rule-Must show physical impact to your person by defendant—strict rule and an old rule. i. Ex. Woman standing in field and horses charge her but stop before touch her, she cannot recover b/c no impact. ii. Must be contact or touching but need not show physical injury b. Zone of Danger-must show reasonable fear of immediate physical danger (ex. in area where could have been hurt by speeding car) created by negligent activity. 20 i. For mom to recover, car must be heading towards mom and child ii. Plaintiff must be in the path of the danger iii. Negligent act was dropping of baby but for mom to recover and be in zone of danger nurse would have to throw the baby at mother c. Parasitic—Must have another tort involved. Example in Georgiawooma is sitting at home and truck dumps a load of gravel in her yard. She calls and complains and another truck comes and dumps gravel. She is able to recover for emotional distress b/c there is a trespass. d. Resulting physical injuryii Purpose of physical injury rule was to screen clients for actual damages ii. In order to recover, there must be a resulting injury iii. Injury doesn’t have to be as severe as a heart attack. Adrenaline rushes, extreme nervousness, sweaty palms are sufficient to constitute resulting physical injury. . Applying tests to cases: 3. Quill v. TWA: Unique Facts+ resulting physical injury led court to hold there was negligent infliction of emotional distress when guy is on plane that comes close to crashing and he later suffers from nervous spells. 4. Potter v. Firestone and Rubber Co.: Can you recover for fear of cancer when all you have is the fear? Court says yes. a. In absence of present physical injury or illness, damages from fear of cancer may be recovered only if P proves that i. As a result of D’s negligent breach of duty owed to P, P is exposed to a toxic substance which threatens cancer, and ii. P’s fear stems from knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that P will develop cancer in the future due to the toxic exposure b. Court will consider P’s contributory negligence, such as smoking (P could argue though that people start smoking at age 11) c. Cost of future medical monitoring is recoverable too where proof demonstrates through expert testimony, that the need for future monitoring is reasonably certain consequence of P’s toxic exposure and monitoring is reasonable d. Purpose of these rules it to limit recover and limit administration problem of courts being overrun with cases 5. Thing v. La Chusa: For third person to recover for emotional distress caused by observing the negligently inflicted injury of third person, the following is required: a. P must have been present at scene of injury at time it occurs and be aware that it is causing injury to victim b. Be of close relation to victim 21 c. Serious mental distress resulted—beyond normal responses and beyond anticipated distress d. In this case, Thing did not actually witness injury to her son (daughter ran and told her) she could not recover for emotional harm e. The Thing decision criticizes looking at foreseability as the test of whether a person can recover for emotional distress. f. Decision here reflects that courts wanted a brightline test to ensure the likelihood of a real, valid claim. 6. Hypo: What if mother hears the screeching tires and rushes to the scene of the accident. If Thing test is applied rigidly, hearing would not be enough. If test is applied liberally, hearing might be enough. 7. Boyles v. Kerr: D was found not liable for distributing revealing video of P and him having sex. Boyles rule is that in Texas, you can’t bring NIED by itself, you must attach it to another tort. (parasitic rule). Boyles overturned Garrard in Texas which had previously held that physical injury requirement was not necessary and all questions of NIED go to the jury. If you had a bottom of a casket falling out, you could still cite Garrard. G. INJURY TO UNBORN CHILDREN 1. Does a duty extend to a particular plaintiff for this particular injury? 2. Renslow v. Mennonite Hospital: Extreme case that says that a child may have a cause of action against defendant, even though child was not yet conceived at time of negligence. a. Child recovered for injuries resulting from negligent transfusion of mistyped blood to mother many years previous before child was conceived. b. Court refers to Dean Green and the factors that need to be considered in establishing duty c. Conception is not a requirement for recovery here d. However, in recovery for injuries arising out of car collision, courts have held that plaintiff must be either i. previability but born alive ii. Viable at time of injury, or iii. viable and born alive 3. Parents of a child born with genetic disorders may recover against a physician whose negligent preconception counseling led the parents to decide to conceive children. Viccaro v. Milunsky. e. Court in this case skirts question of whether life with disability is less valuable than life without f. Parents recover medical costs, costs of care, majority (b/c if parents don’t have money, state has to pay for the care of the child, as well as emotional distress offset by value of having a child. g. Child is not able to recover b/c doctor didn’t cause the illness-no cause in fact. 22 h. Courts will not tolerate wrongful life claims. There is nothing wrongful about being born, doctor’s negligence was wrongful h. Plaintiffs recover medical expenses, cost of care, majority, emotional distress offset by value of raising a child 3. We are really talking about economics. It is question of what do we want to do about the economic costs of raising children with disabilities. Look to econ not philosophy. 4. Daubert: It used to be that plaintiff hired an expert and defendant hired an expert and they both threw them in front of the jury letting the jury sort out the validity of expert’s arguments. Daubert says that trial judge must first examine qualifications of the expert and the convincing power of the expert before it goes to the jury. You have to hire a competent expert that has something of value to offer to the jury. Sometime it is hard to find experts b/c they are often biased. 5. A doctor who performs a birth-preventive surgery may be liable if birth of another child subsequently results. Burk v. Rivo (tubes tied b/c could afford any more kids, P has more kids and sues doctor and wins). a. The cost of raising a child is both a reasonably foreseeable and natural and probable consequence of D’s failure to inform P about risks of recanalization involved in a bipolar cauterization procedure b. Court views the family as an economic unit, and the parents decision to not have more children as an economic decision 1. This court rejects claims that there is net positive circumstance of joy and pride of raising child and that the benefits of parenthood outweigh burdens, economic and otherwise a. there is not always a net benefit in having a baby 2. There is no public policy consideration that would deny the parents’ recovery for the cost of raising the child when the sterilization was elected for economic reasons 3. Parents can recover cost of rearing healthy child minus the benefits parents receive in having normal child IF reason for seeking sterilization was based on financial considerations a. Overall, courts are divided on whether parents may recover economic expense of raising the child b. Definitely can recover cost associated with pregnancy and birth, unsuccessful sterilization procedure, wife’s lost earning capacity, cost of care for other kids while wife incapacitated, cost of second sterilization, husband’s loss of consortium c. This court adds, wife’s pain and suffering associated with unwanted pregnancy and birth and second sterilization procedure 23 4. Court rejects reasoning that child would be adversely affected knowing that someone else paid for upbringing— in fact it might alleviate some of the child’s distress in knowing unwanted—for parents to decide whether knowledge of lawsuit would adversely affect child 5. Court rejects reasoning that the cost of child rearing is too speculative and unreasonably disproportionate to doctor’s negligence a. determination of anticipated costs of raising child is no harder than other future losses calculations NEGLIGENCE (breach of duty) A. 4 Thoughts as to origins of civil liability 1. Foundation is absolute liability 2. Rabin-there was a sea of immunity that gave way to liability 3. Another theory it that we just don’t know 4. Prosser-liability prior to 1800 rested on two writs. Writ of trespass (required direct injury) and writ of case (everything else). Trespass grew into intentional torts. Case grew into negligence. B. Breach-did the defendant conform to standard of reasonable care (negligence) C. Standard of Care: 1. Generalaa Negligence is the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do. Blythe v. Birmingham Waterworks-D is not liable when its precautions against frost proved insufficient against an unexpectedly severe frost which caused water main break—he took reasonable care and can’t be held liable for rare occurrences. Court weighs how much the benefit of water is with the cost of burying the water mains. b. US v. Carroll Towing: barge company was found negligent when their barge sank at a time when bargee was not on board—contributory negligence case. i. Posner thinks this case is the foundation of law and economics ii. An individual’s duty to provide against the resulting injuries is a function of: 1. P: Probability that injury will result 2. L: Gravity of resulting injury 3. B: Burden of adequate precautions iii. Liability lies where B50% 2. expert testimony in indispensable (must have) to the question of cause in fact in medical cases a) Richardson v. Richardson-Merrell (court held that Π’s expert’s testimony need not be accepted by the court—Π’s expert testimony was contrary to the weight of research) (1) Testimony only proved action was a mere possibility—must be more (2) This expert reformulated data—he took data provided by defense and reformulated it. (3) Prior to this case, experts would testify in front of the jury and jury evaluated what was said as well as the expert so Π got to jury • This court doesn’t allow jury to evaluate expert—now hg dsatrial judge is gatekeeper and he evaluates the message and the expert and can throw the expert out (4) None of the expert’s opinions had been published—but can’t require to be published b/c if did, medical journals would not publish articles that were against the medical community (5) Daubert v. Merrel Dow Pharmaceuticals (SC rejects the general acceptance checklist test for admitting an expert’s testimony, rather leaving it to the discretion of the court) • Holding is that judge is gatekeeper—key question will be whether testimony of expert will assist the triar of fact—if not, judge will throw out expert. • Didn’t require studies supporting the expert’s testimony—b/c there is a possibility of bias in regard to the studies • When opponent presents an expert, you should argue Daubert—we have a new defense. • If going to use an expert, must prepare him for a Daubert challenge that he is unqualified and his methodology is unqualified • IMPT. case b) Expert testimony must show more than a mere possibility that ’s conduct was a cause in fact of the injury, rather Π must prove a probability 43 c) Ex. taking prozac and shooting wife—prozac is not the cause in fact of shooting, depression is—you would need to get a hold of scientists to address the question d) Agent Orange—It was hard for P to show causation and it is hard for D to deny causation. The opinion counseled parties to settle. PROXIMATE CAUSE Judge sets the standard for negligence for the jury. Jury decides whether or not there was negligence, The judge establishes the standard for proximate cause inside the instructions for negligence. A. Proximate cause is a matter of social policy to determine scope of liability—does ’s liability extend to this specific Π for this particular injury. It is strictly a policy question. 1. Proximate cause exists to control the jury—the judge controls the jury through PC 2. Proximate cause is our analytical technique to draw the line somewhere 3. Proximate cause is a question of law for the judge to determine—in a difficult case, the judge may give proximate cause to the jury 4. Vandall says there is no rule for proximate cause—the facts in each case are critical 5. direct cause—uninterrupted chain of events between negligent act and injury 6. indirect cause—where after first negligent act, but before injury, in between the two, there is intervening act on part of third person or act of God 7. a D must take a Π as he finds him a) Bartolone v. Jeckovich (D who caused car accident involving P was held liable when P suffered psychotic breakdown, caused by D’s negligence, from which he did not recover) b) D may be held liable in damages for aggravation of a preexisting illness (here was schizo condition) (1) Doesn’t matter if condition might have occurred without the accident—Π was functioning normally before the accident so that is all that matters c) Question of can a crash cause person to come apart = cause in fact question B. BASIC RULES OF PROXIMATE CAUSE—Rules approach 1. “First building rule”—(D is not liable for remote injuries) a) where negligently sets fire to one building, which in turn ignites a next and so on, is only liable for the first building Ryan v. NY Central RR (train ignited ’s shed which in turn ignited a string of houses including Π’s) b) it was foreseeable that the first building would catch fire by ’s negligence—not so for the next house 44 c) court finds RR is responsible for causing fire to woodshed, but fire of Π’s house was not natural—it was unexpected and remote (this test is fuzzy says Vandall) d) not liable b/c the damages to Π’s house were the remote result of ’s negligence and not immediate e) subsequent fire were not under ’s control and too remote to hold liable—setting fire to Π’s building was not a material and expected result of the first fire f) result and whatever flows from it is what is liable for when there is intended injury or one in which ought to have anticipated g) Vandall’s take (1) This ruling serves to protect the railroad and is primarily concerned with insurance—it’s easier for individual homeowners to insure their homes and they should have insurance!! (2) Of course subsequent houses are going to catch fire from the first h) First building rule doesn’t apply anymore 2. Some foreseeable injury—Polemis theory—directness test—(defendant is liable for the damages that are a direct result of his conduct.) a) gas-filled boat was ignited when ’s servant dropped a plank into the gas hold (1) Π won b/c dropping plank could foreseeably cause damage to something so liable for resulting fire (2) Fire was directly caused by falling of plank b) In order to have negligence, there must be some injury or damage foreseeable and if some injury was foreseeable, then being negligent is liable for injury that directly results from negligence (1) The actual injury need not have been foreseeable, only the fact that some injury was foreseeable c) Would reasonable person foresee the act would cause damage—if not, the act is not negligent 3. Reasonable foreseeability of injury—Wagon Mound #1 Theory a) Π is owner of wharf property was damaged when it’s welding activity ignited an oil slick for which was responsible for spilling into bay due to carelessness—won b/c fire on water is not foreseeable b) is liable only for the foreseeable injuries caused by his negligence c) only foreseeable injuries are preventable d) standard is what reasonable person would’ve foreseen e) Under Polemis test, would allow recovery b/c foreseeable that spilled oil would cause damage (no matter how trivial the injury might be) and fire was a direct result of oil spill (1) This court rejected Polemis directness test, finding that the test wasn’t consonant with the real world (2) Can’t hold liable for unforeseeable consequences of his negligent act 45 f) What is negligence in the air—Wagon Mound said there is no such thing as negligence in the air—Vandall thinks we can still talk about negligence in the air. You can at least talk about second element (failure to exercise ordinary care). If you see someone driving 110mph down Clifton road. g) Note 6: P. 298: drunk driver hits a telephone booth that is too close to the road. Drunk driver recovers for his injuries. Wall Street journal never mentioned that the phone booth had been taken out several times. There are two causes—drunk driver and location of phone booth. 4. Slight forseeability (D is liable if there was a foreseeable small risk of injury)—Wagon Mound #2 Theory a) Π in Wagon Mound #1 did not argue forseeability b/c it would have been equally foreseeable to Π that injury result, and thus he was contributorily negligent b) Wagon Mound #2, owner of ship being worked on raises the argument of forseeability b/c they are totally innocent—claims engineer should’ve foreseen the risk of fire—’s duty to stop discharge of oil c) is liable if slight amount of foreseeability that this injury could result, is liable (1) b/c ’s engineer should have realized this injury would occur, is liable (2) case construes subjective standard—injury need not be foreseeable to the reasonable layman—but a reasonable person in the shoes of the ship’s engineer (if he could’ve foreseen and anticipated this, it was his duty to stop)—not pure reasonable man standard d) Brings Polemis back in—if we are going to say chief engineer should be able to foresee fire in water—this approached Polemis. 5. Zone of Danger Theory—Cardozo’s Palsgraf Theory (majority)— Palsgraf in general is foreseeable Π test a) Π injured when ’s employee jostled a man while helping him on the train, causing the man to drop his unmarked package containing fireworks, which exploded and caused a scale to fall on Π some distance away—not liable b) Palsgraf rule—foreseeable Π—was specific Π in foreseeable zone of danger of negligent conduct c) Zone of danger—defined by the perceived risk determined by pushing and shoving of package that could’ve fallen—there is no way to know what was contained within the package—if package said fireworks, then zone of danger would increase d) Cardozo says you must have a duty before you look at negligence—if there is no duty, then no negligence and you never get to proximate cause. Duty extends only in the area of reasonable foreseeability. 46 e) There is no negligence in the air—must first find duty—Π must show a wrong to herself, i.e., a violation of her own rights—there is no duty to her b/c she is outside the zone of danger f) What does Cardozo say about proximate cause? Suppose he were to find duty and negligence—he would then say that if you find duty, negligence, defendant will be held liable for all consequences (like Polemis test) 6. Duty to the world—Andrew’s Palsgraf Theory (dissent) (Heaven v. Pender) a) Everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others—must foresee some injury to someone—Andrews casts a very large net with duty. b) There can be negligence in the air and where it is found is liable to all injuries the natural result of such negligence (Polemis) (1) Negligence is relationship between and person injured without regard to forseeability (2) “negligence in the air” idea is there is no victim or injury yet, but by failing to exercise care there will be (3) Cardozo says it isn’t negligence until someone is injured c) Andrews agrees with Polemis directness test with caveat the law will be drawn for proximate cause based on policy. d) Proximate cause is purely political—the point at which liability is cut off is a policy decision made in view of such factors as the existence of intervening causes, forseeability and ’s negligence being too attenuated—proximate cause will go to the jury according to Andrews. Most trial lawyers are thrilled to go in front of jury. e) Look at notes for hypos (11/1/2001) 7. VANDALL—believes in negligence in the air (1) When you see a car speeding down the street, you know that the driver is failing to exercise car and it is likely that he will injure someone but we don’t know who yet 8. OTHER argued approaches to Palsgraf a) Since she was a ticket holder, the common carrier owed her the highest duty of care and therefore you violated high standard of care in maintenance of the scale regardless of how it happened b) Π attorney could argue that scales on RR should not fall over and that the RR was negligent as to the attachment of the scale (1) D would argue that it is not foreseeable to railroad that there would be fireworks in the station (2) P would argue that’s true, but there are other things that could have made the scales fall 9. this is the first case to stress the importance of duty—this was a direct result on an unanticipated Π 10. —Kinsman Transit Theory—defendant is liable for foreseeable injuries a) negligent by failing to properly tie down a boat caused the boat to drift down stream and collide with another boat, finally becoming 47 wedged on a closed bridge which caused severe flooding upstream—vessel owner liable for mooring boat incorrectly and city is liable for not raising bridge when given notice and damage occurs by reason of delay in raising bridge b) Where the danger is foreseeable, in fact a result of the forces guarded against, unforseeability of the exact developments and of the extent of the loss will not limit liability c) is liable for the direct consequences of negligence in the face of a foreseeable danger—liability extends to the foreseeable class of Π’s (1) Shipowner owed duty of care to all within reach of ship’s known destructive power (2) Foreseeable consequences of City’s failure to raise bridge were not limited to the boats b/c crash of vessels could foreseeably result in damning that would cause upstream flood d) Forseeability of danger is necessary to render conduct negligent e) Distinguishes Palsgraf by saying that actual events here stretch the limits of foreseeable Π f) Extends Palsgrad b/c court says you can have a number of plaintiffs in different positions who are foreseen b/c of the nature of the risk. Palsgraf talked about one plaintiff. This extends it to many plaintiffs. Court says this was not unbelievable that this could happen—fast moving chunks of ice, huge ships, and these plaintiffs were foreseen. C. INTERVENING CAUSES 1. A child’s youth and inexperience would not be an intervening cause of an injury that results to the child—an intervening cause has to come from another source 2. Rat hypo: vending machine people would argue that they couldn’t foresee a rat catching on fire and running into machine. From plaintiff’s perspective, you would argue that maybe you can’t foresee a rat catching on fire, but you could foresee that it could catch on fire. 3. In intervening cause cases, the defense is going to argue that there was another cause and other cause should be held liable 4. D will be liable for creating a situation whereby the dangerous reactions of third persons are foreseeable Weirum v. RKO General (radio station liable when speeding teenagers caused an accident while racing to the site of a radio promotion) a) There are two cause in facts here: Radio broadcast was a cause in fact of injury as well as driving of car by teenagers b) Court holds that it is foreseeable that teenagers would race to find the D.J. The reckless conduct by the defendants was stimulated by the defendant c) This is one of the few cases where a court will intrude on free speech where a tort was involved—in the Ozzie Ozborne situation free speech was upheld based on argument that speech was poetry, artistic license. 48 Here, the speech is inciteful—the radio station wants people to come after the D.J. d) Duty to control conduct of third parties is not what we are dealing with in this case e) Court says duty is a question of law f) Unforeseeable intervening cause with a foreseeable result?? Applies to Wierum?? 5. Derdiarian v. Felix: It doesn’t matter that the particular incident resulting in injury was not foreseeable, only that the occurrence of some injury was a foreseeable result of the conditions D created. Defendant has an epileptic seizure, crashes into worksite, hits boiling enamel, and that splatters plaintiff. a) Defendant argues that they could not have foreseen that someone would have epileptic seizure and crash into boiling enamel b) Court holds for plaintiff—here we have a foreseeable result and an unforeseeable intervening cause. Court says they could have put concrete barriers up. 6. Hypos: a) Assume that Tom negligently drives into Sally’s car. As a result, her leg is broken and bleeding. She is taken out of car and they are working on her in the middle of the street. Art is driving past, looking at crash site, and runs into sally. Is Tom going to be held liable in this situation? Tom will say he can’t be held liable for second injury to Sally. Perhaps the first driver Tom will be held liable in this situation. b) Suppose that Art volunteers to take her to hospital instead of crashing. Then let’s say Art takes her to hospital and rapes her on the way. Is first driver responsible for the rape. But for Tom’s negligence, Sally would not be in the care with Art. Probably not—criminal behavior can’t be foreseen by other person. c) What about theft of corvette? Let’s say you go to Buckhead and you park the car and leave the key in it. Someone steals your car and runs into someone else. Might you anticipate that someone will steal your car? Yes. Not all criminal behaviors are immune. d) If a person parks a truck in bad section of town with valuable equipment in it. It is foreseeable that truck would be stolen. e) Let’s say contractor leaves bulldozer with keys in it. Kid comes along and steals it, crashes into someone. If you are arguing for construction company, you would say that is not foreseeable. Plaintiff would argue that it was foreseeable. 6. criminal activity: general rule is that criminal intervening cause severs liability but not always. 49 b) Watson v. Kentucky & Indiana Bridge (court held that RR would not be liable if Duerr maliciously ignited the gas which D had negligently allowed to pour into the streets— (1) Here court says if we have a negligent cause (train jumping the track) and a negligent intervening cause=liability. (2) Here court says if we have a negligent cause (train jumping the track) and a criminal intervening cause=no liability. (3) Here, the court says the jury determines proximate cause. In a case like this the court is saying reasonable persons could differ, so we will give question to jury. (4) Vandall says that proximate cause is a matter for the court. (5) Court gave it to the jury because they may have thought that there is a likelihood that jury will find it is criminal and then protect the railroad (6) Proximate cause is a great defense and you can use it to confuse the jury and the judge (7) Vandall thinks the railroad should have been held liable— strict liability. It was foreseeable that gasoline would catch on fire. Proximate cause is only used as a means in this case to create confusion and let the railroad have a way out. (8) Vandall thinks it is irrelevant whether Duerr purposely dropped a match or not—it was foreseeable that some spark would ignite it—railroad was negligent and should be held liable regardless of how it catches fire since we know that it will somehow c) Criminal intervening causes do not always sever liability— (1) Note 4a P. 315: child steals chemical explosives from an unlocked storage room (2) Note 4c P. 315: Pharmacist sells poison to wife’s husband. Husband uses poison to kill her. The pharmacist was held liable. The suit was brought against pharmacist b/c husband was in the slammer. Court holds that pharmacist was negligent in violation of statute (you have to go through statutory analysis—was wife within class/hazard—arguable she was). (3) Also car thefts were covered—see above. (4) 4d: The photographer is sent to take pictures of owner of hotel. Owner of hotel almost kills him. The owner of the hotel is in prison. Can you recover against the newspaper that sent the photographer out? Newspaper laughs and thinks they aren’t liable. Newspaper argues that he cannot anticipate a criminal activity— liability rests solely with a criminal-A criminal intervening cause severs negligence. Plaintiff would argue that it was foreseeable. Photographer was able to win. d) Gun manufacturers: 50 (1) In New York someone was shot by criminals. Plaintiff’s attorneys were able to find that there was a connection between south and north in regard to guns. Criminals will come to the south and buy huge amounts of guns and take them to Chicago and New York where they are sold on the black market. You could argue gun manufacturers are liable based on strict liability— Vandall thinks they should be. The argument they made was negligent marketing--over-saturation of the south with the understanding that the guns would end up in New York and Chicago. What is your defense---that criminally intervening cause was not foreseeable. The superior court of new york said it was remote—there are lots of possible shooters—therefore we don’t find a duty on the part of manufacturers not to saturate south with guns. (2) Several cities have brought suits against gun manufacturers for the costs of crime that have resulted in the city. Many of these cases have come out in favor of gun manufacturers. So far the suits have been lost on subjects of foreseeability—you can’t anticipate a criminal intervening cause. Vandall thinks you can anticipate a criminal intervening cause. e) If the criminal act was a reasonable consequence of ’s conduct (it was foreseeable), then the causal connection between that conduct and the injury is not broken, and will be held liable and is proximate cause of injury Braun v. Soldier of Fortune Magazine (Magazine was liable b/c it was foreseeable from the fact of the ad that a criminal activity would result) (1) This is case of clear criminally intervening cause—reasonable person should’ve foreseen that the person who placed ad would engage in murder (2) Criminal activity (intervening cause) normally cuts off liability, but a foreseeable criminal activity does not (3) Court says it will hold publisher liable only if the advertisement on its face would have alerted a reasonably prudent publisher to the clearly identifiable unreasonable risk of harm to the public that the advertisement posed. (a) Advertisement in Eimann was not as clear on its face and court did not hold defendant liable. f) Key cases: Suppose plaintiff sues the owner of the car when a thief crashes the car into someone. Sometimes the result turns on the language of the statute, sometimes common law will hold owner of the car liable. g) Suppose a publisher publishes a book that is a cookbook for how to murder. What kind of gloves to by, guns, etc. Suppose John buys the book and kills someone. Could publisher be held liable? Possibly. What about right to free speech? You could probably argue that policy of protecting a person is greater than speech in this case. The court held that tort liability was appropriate 51 where a cookbook on how to commit murder was written. If the book has literary value, it might be harder to argue tort liability. 7. liability of social hosts a) Old rule was that the only cause of the crash was the drunk driver b) Now, host who serves liquor to an adult social guest, knowing both that the guest is intoxicated and will thereafter be operating a car, is liable for the injuries inflicted on a third party as result of the negligent operation of car by adult guest when such negligence is caused by the intoxication Kelly v. Gwinnell c) The test court uses is serving alcohol to someone who is visibly intoxicated c) Defense argues they will lose their home—court says too bad d) New Jersey adopted a statute that provides social host liability for willfully and knowingly providing alcoholic beverages to a person who was visibly intoxicated in the host’s presence e) You also have to look for dram shop acts f) Hypo: Mother purchased beer and supervises its consumption by teenagers. Georgia law held mother liable. 8. Rescue Doctrine: a) Wagner v. International Railways: D’s negligence (starting the train with the doors open) extends to rescuer. b) Court says there must be an unbroken continuity in the action. It can be a volitional act. c) The rescue must be reasonable under the circumstances—the liability of the negligence party will be cut off if the rescuer is foolish, acts in a reckless fashion, or a wanton fashion d) Note 4: Fear does not cut off liability. Woman brings suit against the railroad. The plaintiff fell and injured her leg while running from the defendant’s car that had jumped the track. Court held for plaintiff. Fear is not a superseding cause. e) Fireman’s Rule: Police officer or fireman cannot recover when they are injured in the line of duty b/c of negligent defendant. Vandall doesn’t like this rule. Apparently the reasoning is that worker’s compensation is sufficient. Worker’s comp. is small though 9. Irresistible impulse a) Suicide does not cut off liability when there is irresistible impulse (otherwise it does) Fuller v. Preis (driver liable where car accident resulted in decedent suffering seizures that ultimately caused him to commit suicide). Vandall thinks this case is a stretch of irresistible impulse rule—because here it was not immediate. (1) neither public policy nor precedent bars recovery for suicide of tortiously injured person 52 (2) as opposed to criminal law, torts recognizes that one may retain the power to intend, to know and yet to have an irresistible impulse to act and therefore be incapable of voluntary conduct (3) Cause in fact question—whether accident caused the seizures—court resolves this by looking at the number of seizures and the fact he didn’t have any before the crash. There were zero prior to and they continued to increase after crash. 10. DES liability—the next generation a) Plaintiff is the granddaughter. Is there a cause-in fact issue here? Cerebral palsy can be caused by a number of things—court doesn’t deal with causation issue because they would have had to bring in experts b) Court says granddaughter cannot recover against manufacturer of DES c) Public policy reasons do not exist to extend liability for the injuries caused by the ingestion of DES to the third generation, i.e. the grandchildren of DES takers, who possibly suffer birth defects b/c DES damaged their mother’s reproductive systems Enright v. Eli Lilly d) The court is concerned about opening liability to an unmanageable level—the court is line drawing. e) The court is also aware of the dangers of overdeterrence the possibility that research will be discouraged or beneficial drugs withheld from the market f) Forseeability doesn’t do us any good here—ex. car manufacturer knows all ways car can crash and how it will impact the car so injuries are foreseeable but that isn’t helpful g) Here, we see a contrast between the rules approach of proximate cause and the operative factor approach 11. Products cases v. Others: a) A court is likely to be more accurate and clear in deciding proximate cause in products cases b/c you have large manufacturers. b) Foreseeability doesn’t get you very far in products liability cases. Of course manufacturer can foresee that a weak roof on a SUV will cause the person to get injured. D. ECONOMIC LOSS—lost revenue, lost profit, 1. Robins Dry Dock v. Flint (SC held that recovery was barred for economic loss unless the negligent conduct caused physical harm— 2. Louisiana ex rel. Guste v. M/V Testbank (fisherman were able to recover against ship owner for an oil spill b/c they relied on the clean water for their livelihood--restaurateurs and bait sellers could not recover) 3. People Express Airlines v. Consolidated Rail (P’s building was evacuated for 12 hours when D suspected an explosion on its property). 53 a) Court says the class that can recover is an identifiable class which is particularly foreseeable. People’s Express having rented a building t