Law School Outline - Torts - Zweir2

I. PROCEDURAL STAGES .............................................................................................................................................. 4 II. IS IT AN INTENTIONAL TORT: SUBSTANTIAL CERTAINTY OF THE CONSEQUENCES .......................................... 4 A. BATTERY ................................................................................................................................................................ 4 B. ASSAULT ................................................................................................................................................................ 4 C. FALSE IMPRISONMENT: grew out of writ of trespass and protects the right of individuals to move freely. .............. 5 D. TRESPASS TO LAND ............................................................................................................................................ 5 E. TRESPASS TO CHATTELS: GREW OUT OF WRIT TO TRESPASS .................................................................................... 5 F. CONVERSION ......................................................................................................................................................... 6 G. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS............................................................................................ 6 A. CONSENT ............................................................................................................................................................... 6 B. SELF DEFENSE ....................................................................................................................................................... 6 C. DEFENSE TO PROPERTY ......................................................................................................................................... 6 D. NECESSITY ......................................................................................................................................................... 6 1. Private Necessity (Ploof v. Putnam) .............................................................................................................. 6 2. Public Necessity (United States v. Caltex (Philippines), Inc.) .................................................................... 6 IV. NEGLIGENCE........................................................................................................................................................ 6 A. THE REASONABLE PERSON STANDARD: ................................................................................................................. 6 2. For a negligence cause of action we need: .............................................................................................................. 6 3. Plaintiff must prove all the following with negligence: ........................................................................................... 7 B. APPLYING THE REASONABLE PERSON STANDARD OF CARE ................................................................................... 7 1. Minors .............................................................................................................................................................. 7 2. Elderly .............................................................................................................................................................. 7 3. Reasonably Prudent Woman .......................................................................................................................... 7 4. Physical Disabilities: ....................................................................................................................................... 7 5. Drunkenness, Blackouts, Seizures, and Sudden Mental Illness.................................................................. 7 6. Mental Disabilities: Insanity and Alzheimer’s Disease (Breunig v. American Family Insurance Co.): .. 7 7. Wealth .............................................................................................................................................................. 7 C. THE ROLE OF CUSTOM........................................................................................................................................... 7 1. Intro: ................................................................................................................................................................. 8 2. Custom as Applied in Medical Malpractice .................................................................................................. 8 D. CALCULUS OF RISK ............................................................................................................................................. 8 E. SPECIFYING THE STANDARD OF CARE: CRIMINAL STATUTES, CIVIL STATUTES, AND NEGLIGENCE PER SE............ 8 1. Intro .................................................................................................................................................................. 8 2. Does the Statute Impose a Duty Towards This Particular Plaintiff and for this Risk of Injury? ............. 8 3. Negligence Per Se Applied ............................................................................................................................. 8 F. PROOF OF NEGLIGENCE ........................................................................................................................................ 9 1. Intro: more probable than not standard ........................................................................................................ 9 C. (Wilkerson v. McCarthy): ................................................................................................................................ 9 2. Res Ipsa Loquitur............................................................................................................................................ 9 3. Guest Statutes and Res Ipsa Loquitur ......................................................................................................... 10 4. Res Ipsa in Medical Malpractice ................................................................................................................. 10 B. Conditional Res Ipsa: .................................................................................................................................... 10 V. CAUSE-IN-FACT ....................................................................................................................................................... 10 A. BUT-FOR CAUSATION .......................................................................................................................................... 10 B. PROVING BUT-FOR CAUSE: THE SLIP AND FALL CASE ......................................................................................... 10 C. MULTIPLE CAUSES AND THE “SUBSTANTIAL FACTOR” TEST ................................................................................ 10 D. CAUSE IN FACT AND PROOF OF MATHEMATICAL PROBABILITIES ..................................................................... 10 1 VI. A. PROXIMATE CAUSE.............................................................................................................................................. 10 JURY INSTRUCTIONS ON PROXIMATE CAUSE ........................................................................................................ 10 2. Direct Cause instructions: ............................................................................................................................ 10 3. Foreseeability of Injury Instructions: .......................................................................................................... 10 B. THE DIRECT CAUSE TEST .................................................................................................................................... 11 C. FORESEEABILITY AS A DUTY LIMITATION ............................................................................................................ 11 D. FORESEEABILITY AND THE RISK RULE ............................................................................................................. 11 E. FORESEEABILITY AND THE INTERVENING CAUSES .............................................................................................. 11 A. Cardozo analysis: ............................................................................................................................................. 11 B. Andrews analysis: ............................................................................................................................................. 11 D. Thin skull rule: .............................................................................................................................................. 12 VII. MULTIPLE TORTFEASORS ................................................................................................................................... 12 A. JOINT AND SEVERAL LIABILITY ............................................................................................................................ 12 B. THEORIES OF JOINT LIABILITY ............................................................................................................................. 12 4. Concert of Action (Bierczynski v. Rogers) .................................................................................................. 13 5. Enterprise Liability (Hall v. E.I. du Pont de Nemours & Co.) ................................................................. 13 6. Alternative Liability (Summers v. Tice) ...................................................................................................... 13 7. Market Share Liability .................................................................................................................................. 13 C. INDEMNITY AND CONTRIBUTION ........................................................................................................................ 13 VIII. DAMAGES FOR PERSONAL INJURIES ............................................................................................................... 13 C. ECONOMIC LOSS .................................................................................................................................................. 13 A. Non pecuniary damages: .............................................................................................................................. 14 B. Pecuniary damages: ...................................................................................................................................... 14 D. NON-ECONOMIC LOSSES: PAIN AND SUFFERING ............................................................................................. 14 E. MITIGATION ........................................................................................................................................................ 14 F. LOSS OF CONSORTIUM ......................................................................................................................................... 14 G. FUTURE DAMAGES ............................................................................................................................................... 14 H. COLLATERAL BENEFITS ................................................................................................................................... 14 I. PUNITIVE DAMAGES ............................................................................................................................................ 14 IX. LIMITED DUTY: SPECIAL LIMITIATIONS ON THE SCOPE OF DUTY .................................................................... 14 A. MISFEASANCE VS. NON-FEASANCE ...................................................................................................................... 14 B. EXCEPTIONS TO THE NO-DUTY RULE ................................................................................................................. 15 1. Defendant’s Negligence Places the Plaintiff in a Position of Peril ........................................................... 15 2. Voluntarily Assumed Duties ......................................................................................................................... 15 3. Special Relationships .................................................................................................................................... 15 C. PUBLIC VERSUS PRIVATE DUTIES ......................................................................................................................... 15 D. CONTRACTUAL DUTIES .................................................................................................................................... 15 E. NEGLIGENT INFLICTION OF (SOLELY) EMOTIONAL INJURIES .............................................................................. 15 X. PREMISES LIABILITY: DUTIES OF OWNERS AND OCCUPIERS OF LAND................................................................... 16 A. COMMON LAW “STATUS” CATEGORIES OF ENTRANTS ......................................................................................... 16 B. SPECIAL CATEGORIES OF ENTRANTS ................................................................................................................... 16 1. Trespassing Children .................................................................................................................................... 16 2. Firefighters, Police Officers, and Other Public Officials – the Firefighter’s Rule ................................... 16 3. Social Guests .................................................................................................................................................. 16 C. RECREATIONAL PREMISES.................................................................................................................................... 16 D. CRIMINAL ASSAILANTS ..................................................................................................................................... 16 E. ABOLITION/MODIFICATION OF COMMON LAW “STATUS” CATEGORIES.............................................................. 16 2 F. XI. XII. A. LESSORS OF REAL PROPERTY ............................................................................................................................... 17 WRONGFUL DEATH ............................................................................................................................................. 17 DEFENSES ........................................................................................................................................................... 17 DEFENSES BASED ON THE PLAINTIFF‟S CONDUCT ............................................................................................... 17 1. Contributory Negligence .............................................................................................................................. 17 2. Comparative Negligence .............................................................................................................................. 17 3. Assumption of the Risk................................................................................................................................. 17 B. OTHER DEFENSES: LIMITATIONS AND IMMUNITIES.............................................................................................. 17 1. Statutes of Limitation and Repose ............................................................................................................... 17 2. Immunities..................................................................................................................................................... 17 XIII. VICARIOUS LIABILITY ...................................................................................................................................... 18 A. RESPONDEAT SUPERIOR....................................................................................................................................... 18 B. EMPLOYER-EMPLOYEE RELATIONSHIP ................................................................................................................ 18 1. Who is an Employee ..................................................................................................................................... 18 2. Was the Employee Acting within the “Scope of Employment”? .............................................................. 19 3. “Frolics” and “Detours” ............................................................................................................................... 19 4. Employer’s Vicarious Liability for Intentional Torts ................................................................................. 19 5. Vicarious Liability for Punitive Damages ................................................................................................... 19 C. INDEPENDENT CONTRACTORS ............................................................................................................................ 19 D. JOINT ENTERPRISES, JOINT VENTURES, AND PARTNERSHIPS ............................................................................ 20 XIV. COMMON LAW STRICT LIABILITY.................................................................................................................... 20 A. ANIMALS .............................................................................................................................................................. 20 B. ABNORMALLY DANGEROUS ACTIVITIES............................................................................................................... 20 XV. NUISANCE ........................................................................................................................................................... 21 A. PRIVATE NUISANCE ............................................................................................................................................. 21 2. General Principles of Liability ...................................................................................................................... 21 3. Remedies........................................................................................................................................................ 21 B. PUBLIC NUISANCE ............................................................................................................................................... 22 XVI. PRODUCTS LIABILITY ...................................................................................................................................... 22 A. HISTORY: NEGLIGENCE ASSAULTS THE CITADEL OF PRIVITY .............................................................................. 22 B. NEXT ASSAULT: BREACH OF WARRANTY ............................................................................................................. 23 D. THE DEFINITION OF “DEFECTIVE” ................................................................................................................. 23 1. The definition of “defective condition”....................................................................................................... 23 2. Manufacturing Defects ................................................................................................................................. 23 3. Design Defects .............................................................................................................................................. 23 4. Warning Defects ............................................................................................................................................ 24 E. THE DEFINITION OF “ONE WHO SELLS” ............................................................................................................. 24 F. SALE OF PRODUCTS OR PROVISION OF SERVICES? ................................................................................................ 24 1. (Royer v. Catholic Medical Center) ................................................................................................................. 24 G. THE TYPE OF HARM: THE ECONOMIC LOSS PROBLEM ......................................................................................... 24 H. THE ISSUE OF PLAINTIFF‟S CONDUCT .................................................................................................................. 25 1. (Daly v. General Motors Corporation) (California) .......................................................................................... 25 2. (General Motors Corporation v. Sanchez) Justice Gonzalez ............................................................................ 25 3 I. PROCEDURAL STAGES A. Complaint is Filed 1. Motion to Dismiss. B. The Answer is Filed. After a complaint is filed, the defendant has approx. 30 days, depending on jurisdiction, to file a formal written response agreeing or disagreeing with what the complaint asserts. Counterclaim (separate complaint against the plaintiff) or a cross-complaint (separate Complaint against a third party that arises out of some factual occurrence). C. Discovery. Each party tries to find details about the other‟s case. 1. Motion for Summary Judgment. Again, like Motion to Dismiss, asks the trial court to rule to dismiss case. 2. Motions in Limine. Once case goes to trial, parties will try to limit the type and amount of evidence presented by other side. A Motion (on the verge of trial) in Limine. D. Selection of a Jury. E. Opening Statements from Both Parties. F. The Plaintiff‟s Case 1. Motion to Dismiss G. The Defendant‟s Case. 1. Motion for Directed Verdict. Usually made on behalf of opposing party to challenge sufficiency of evidence. Jury has not yet reviewed evidence and so judge must rule in light of this and will not grant the motion unless “no reasonable juror” could interpret the evidence in favor of the non-moving party. H. Closing Arguments I. Jury Instructions. J. the Verdict 1. Motion for Judgment, N.O.V. (non obstante verdicto, not withstanding the verdict). Very similar to Motion for Directed Verdict. 2. Motion for New Trial. Either party can make this motion and it always goes to higher court. K. Final Judgment. L. Brown v. Kendal: two dogs fighting and defendant raises stick to separate them, striking plaintiff: trespass assault and battery. II. IS IT AN INTENTIONAL TORT: SUBSTANTIAL CERTAINTY OF THE CONSEQUENCES A. BATTERY 1. 1) contact, 2) that the contact was harmful or offensive, 3) that the defendant caused the contact intentionally. 2. Intent (Garratt v. Dailey) Plaintiff suing 5 year old boy from pulling chair under her. He knew with substantial certainty that she would fall as a result. a. Even if A tries to shoot B and misses but hits him instead, he is liable for battery. Intent to commit different tort: doesn‟t matter, still liable. b. If there is no substantial certainty, then the c/a may be negligence, but not battery. 3. Contact and Offensiveness (Fisher v. Carrousel Motor Hotel). Black guest at reception is forcibly dispossessed of his dinner plate and humiliated. ACTUAL physical contact is not required, just contact with something contacting them. a. The burden of proving consent to contact lies with the defendant because it is a justification, but plaintiff needs to prove that they would not have consented had they known the contact was to occur. b. Plaintiff does not need to have awareness of the contact when it occurs (P kissing D while she sleeps). c. Once Intent to contact is established, defendant is liable for ALL ensuing consequences, even if unforeseeable. 4. Damages: a. If it is just negligence, only nominal. b. If the act was malicious or outrageous, punitive can also be awarded. c. Damages for mental effects can be recovered. B. ASSAULT 1. Elements of assault are: 4 Intent Offer of injury Reasonable apprehension Apparent ability Imminent threat of injury i. Transferred Intent: (Holloway v. Wachovia Bank & Trust Co.) Plaintiff defaulted on her car payments and bank representative tried to repossess the car with a gun with her children in the car. a. If an action is done intending to affect a third person, but puts another in harmful or offensive contact, then defendant is subject to liability. b. Transferred intent applies to all torts that come out of writ of trespass (at least). 1. It‟s a slippery line between gross negligence and intent. C. FALSE IMPRISONMENT: grew out of writ of trespass and protects the right of individuals to move freely. 1. An actor is subject to liability to another for false imprisonment if a. he acts intending to confine the other or a third person within boundaries fixed by the actor, and b. his act directly or indirectly results in such a confinement of the other, and c. the other is conscious of the confinement or is harmed by it. 2. (Teichmiller v. Rogers Memorial Hospital). Plaintiff was signing her termination forms and tried to leave room but felt that she was prevented from doing so by people blocking the door. a. Plaintiff must be intentionally and unlawfully restrained from leaving the room. i. If it was false imprisonment, then defendants are responsible for anything that happens to her while she is there. b. Plaintiff must be aware of confinement for false imprisonment to exist. c. It can‟t be confinement from going to a specific area, but actually being confined to within specific limits. 3. Means of escape: If the plaintiff does not know of a specific means of escape, it‟s irrelevant. a. Even if the plaintiff does know of means of escape, it must be reasonable: i. Not physically dangerous to the plaintiff ii. Not harmful to his clothing iii. Not offensive to his “reasonable sense of decency or personal dignity” iv. Not dangerous to a third person. 4. Privilege: If reasonable, there may be a privilege to confine, for example, a suspected shoplifter (should be brief). 5. Threats to property: If a defendant seizes property to dissuade the plaintiff from leaving, there may be false imprisonment. D. TRESPASS TO LAND 1. One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally a. enters land in the possession of the other, or causes a thing or third person to do so, or b. remain on the land, or c. fail to remove from the land a thing which is under a duty to remove 2. (Amphitheaters, Inc. v. Portland Meadows) Light entering into the plaintiff‟s outdoor theatre causing nuisance. a. Interference must be tangible in order to constitute trespass to land: nuisance is intentional and unreasonable, but light is not tangible. 3. (Bradley v. American Smelting and Refining Co) E. TRESPASS TO CHATTELS: GREW OUT OF WRIT TO TRESPASS 1. It is the unauthorized use or damage of personal property. 2. One who commits a trespass to a chattel is subject to a liability to the possessor of the chattel if, but only if, a. he dispossesses the other of the chattel, or b. the chattel is impaired as to its condition, quality, or value, or c. the possessor is deprived of the use of the chattel or a substantial time, or d. bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest. a. b. c. d. e. 5 i. Proof of damage is required. 3. (CompuServe, Inc. v. Cyber Promotions, Inc.) F. CONVERSION 1. 2. (Wiseman v. Schaffer) G. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 1. 2. When the defendant completely dispossesses the plaintiff of an interest in personal property: a defendant need not physically damage a plaintiff‟s property to convert it. a. The difference between trespass to chattels and conversion: the degree of the invasion and the “forced sale” remedy. The conduct must be intentional or reckless; The conduct must be extreme and outrageous; a. (the more power differential, the less likely to have to prove severity of emotional distress). There must be a causal connection between the wrongful conduct and the emotional distress; The emotional distress must be severe. Defendant liable if plaintiff can show a. Intention to cause emotional distress; or b. Knew with substantial certainty that emotional distress would result; or c. Or acted recklessly. Transferred intent is NOT applicable generally. 3. 4. 5. 6. III. A. CONSENT 1. (Peterson v. Sorlien) 2. (Hackbart v. Cincinnati Bengals, Inc.) B. SELF DEFENSE 1. a. (Figueiredo-Torres v. Nickel) b. (Caldor, Inc. v. Bowden) DEFENSES TO INTENTIONAL TORTS Defense of others: when trying to defend someone else, you always have to be right, and need put yourself in the shoes of the person you are defending and ask if they would do the same. a. (Roberts v. American Employers Insurance Company) C. DEFENSE TO PROPERTY 1. (Katko v. Briney) Defendant used gun trap to protect property that had been broken into in the past – plaintiff was shot and injured. a. Use only reasonable force to defend property: it must be proportional to the threat. b. Warning is required. D. NECESSITY 1. Private Necessity (Ploof v. Putnam) a. Necessity sometimes requires certain actions or justifies intrusion – it‟s not wrong, but you have to pay the person who suffered losses as a result (Vincent v. Lake Erie) where the shipman docked his ship during storm and damaged the dock. 2. Public Necessity (United States v. Caltex (Philippines), Inc.) IV. NEGLIGENCE A. THE REASONABLE PERSON STANDARD: 1. 2. Defendant‟s actions must fall below the reasonable person standard of care and the risk should be foreseeable. For a negligence cause of action we need: a. causation, b. damages, c. proximate cause and 6 3. 4. (Vaughn v. Menlove) B. APPLYING THE REASONABLE PERSON STANDARD OF CARE 1. Minors d. negligent behavior. Plaintiff must prove all the following with negligence: a. A duty of due care i. in general, a duty exists if the defendant‟s conduct foreseeably creates unreasonable risks of harm. b. Breach of the duty. i. Plaintiff must prove that the defendant failed to use reasonable care to avoid causing harm. c. Causation. i. The causation element has two parts. Plaintiff must first prove “cause in fact”; that the defendant‟s breach of duty (the negligent conduct) in some way brought about the plaintiff‟s injury. Plaintiff must then prove “proximate cause”; that the causal connection between the negligent conduct of the defendant and the plaintiff‟s injury was close enough that the defendant should be held liable. d. Damages. i. The plaintiff must prove that actual injury resulted from the defendant‟s conduct. Nominal damages are not awarded for negligent conduct that does not cause injury. capacity and understanding of the child (which is subjective). But if he causes injury to another, he cannot take advantages of his age p. 108. ii. Apply reasonable child of like age, intelligence, and experiences under like circumstances. Rest.2d §283A. b. (Daniel v. Evans) 19 year old operating motor vehicle. i. Standard of care to minors does not apply to minors engaging in adult activities. “…When the minor undertakes an adult activity which can result in grave danger to others and to the minor himself if the care used in the course of the activity drops below that care which the reasonable and prudent adult would use, the defendant maintains that the minor‟s conduct in that instance should meet the same standards as that of an adult,” p. 112 a. We can see children and anticipate erratic behavior, but we can‟t tell cars driven by minors from those that are not. 2. Elderly 3. Reasonably Prudent Woman 4. Physical Disabilities: a. What a reasonable person who is disabled. Doesn‟t count if you are stupid, hot-tempered or careless. Imbecility or moronic is different (where the intelligence is SO low). Restatement disagrees with moronic standard. 5. Drunkenness, Blackouts, Seizures, and Sudden Mental Illness a. Sudden disability: if someone had their first seizure while driving as opposed to knows they have a propensity for seizures, liability different. b. Drunkenness is not a defense. 6. Mental Disabilities: Insanity and Alzheimer’s Disease (Breunig v. American Family Insurance Co.): a. Woman driving suddenly thinks God is driving and has an accident. Courts have generally applied the reasonable person standard here, but are beginning to change their minds. 7. Wealth a. Wealth should not be taken into account when deciding if the defendants acted within the reasonably prudent person standard of care, but it is taken into consideration when calculating damages. C. THE ROLE OF CUSTOM a. (Charbonneau v. MacRury): i. Children are only expected to act with the same amount of care as other children with their experience, 7 1. Intro: defendants say that the decedent had the assumption of risk. i. Custom dictated that the defendant was not acting as the reasonably prudent person under the circumstances. b. (Mayhew v. Sullivan Mining Co.)Plaintiff working around where a bucket hole and a shaft large enough to fit him in and he fell through. i. Custom has no relevance on whether or not to determine ordinary care. c. (The T.J. Hooper) 2. Custom as Applied in Medical Malpractice a. (Brune v. Belinkoff) b. (Helling v. Cary) Plaintiff visited opthamologist and was not given a pressure test on her eyeball, only to discover that she had a disease that made her blind that could have been prevented had this test been performed. i. At the time, it was not customary to perform this test, particularly not on this patient considering her age and health. c. (Canterbury v. Spence) D. CALCULUS OF RISK 1. (United States v. Carroll Towing Co.) a. Burden (to the plaintiff) < Probability x Liability i. 40% of juries rule in favor of plaintiff. ii. With this calculation we get optimality; economic efficiency. 2. (Rinaldo v. McGovern) E. SPECIFYING THE STANDARD OF CARE: CRIMINAL STATUTES, CIVIL STATUTES, AND NEGLIGENCE PER SE 1. Intro a. (Osborne v. McMasters) Defendant sold plaintiff poison without label, but argues that he didn‟t know. a. Mere evidence of negligence: burden of proof not changed: defendant must prove that there was no negligence. If there is no production of evidence, then the defendant loses b. Prima Facie Evidence Burden of Production c. Rebuttable Presumption – Burden of Proof: you must decide, jury, that despite the statute, the defendant acted reasonably, and they need to prove their case. Here the burden of proof has shifted to the person who is making the negligence allegations. d. Conclusive evidence of negligence: a statute was violated, period=negligence. 1. When the violation of the statute causes injury, there does need to be proof, according to Cardozo, that the action caused the injury. If someone‟s headlights were out and they are rear-ended but would have been rear-ended anyway, then there is no causation. If causation is proven, the jury cannot second-guess the statute, negligence took place. a. There are exceptions for: incapacity, great danger, impossibility, emergency, necessity. b. (Chaffin v. Brame) 2. Does the Statute Impose a Duty Towards This Particular Plaintiff and for this Risk of Injury? a. How are the Relevant Statutes Applied? What’s the Jury’s Role? b. (Martinez v. Herzog) 3. Negligence Per Se Applied a. (Brown v. Shyne) Defendant is guilty of a misdemeanor under Public Health Law because he diagnosed and gave plaintiff chiropractic treatment without a license to practice. She became paralyzed. i. Injury caused by lack of skill, not lack of license. License does not give skill and care, it bars those who don‟t have it: if the injury arises out of lack of skill or carelessness, then the lack of license is material. a. There needs to be a “logical connection between the proven neglect of statutory duty and the alleged negligence.” P. 176 a. (Titus v. Bradford) Plaintiff killed by train while working on the railroad brakes and family sues, 8 because they have a license, so it‟s not automatically negligence if you practice without a license. b. (Veseley v. Sager) Defendant served plaintiff alcohol until 5:00 AM knowing that defendant would drive home down the long windy road. Defendant struck plaintiff. i. Servers of alcohol are customarily not held liable for the actions of their customers: lack of proximate cause to the actual sale (and not the drinking of the liquor). ii. Cardozo says yes, there IS proximate cause. The alcohol can be proximate cause, and “an actor may be liable if his negligence is a substantial factor in causing an injury, and he is not relieved of liability because of the intervening act of a third person if such act was reasonably foreseeable at the time of his negligent conduct. a. Cardozo: who needs proximate cause if we have duty breach? Vendor violated Business Professions Code section 25602 when serving alcohol and can be held liable. F. PROOF OF NEGLIGENCE 1. Intro: more probable than not standard a. (Baltimore & Ohio R.R. v. Goodman) Which has the right of way, trains or cars? Economic efficiency? i. Punitive damages no longer was a question of fact for juries to decide, Justice Stevens made it a question of law because awards were getting out of control. b. (Pokora v. Wabash Ry.) c. (Wilkerson v. McCarthy): i. Federal Employee Liability Act: contributory negligence is not a defense under the FELA, but juries would always find for the plaintiff anyway. Defendant argued that it should be a question of law, and not fact for the jury because jury would rule for the plaintiff. Bad reason to accept motion. ii. Worker’s Compensation: a. After WWI, 1920s, US instituted WC statutes. Originally was a German statute: a political movement to support this trade: Employer will pay for all injuries that will occur on the job, but we will pay according to legislation, and lawyers will only be able to get 10% of the recovery. b. Defamation and intentional torts are not covered by Worker‟s Comp – if can elevate the action to intentional tort, can sue employer. 1. FELA became a de facto workers‟ comp law, but without restrictions on the compensation, resulting in the railroad saying, we‟ll pay you, keep the lawyers out. c. Intentional wrongs are NOT covered by the WC statutes: i.e., if the employer had the actual intent to injure the employer, or had substantial certainty that it would occur (not just substantial likelihood). 2. Res Ipsa Loquitur a. Majority rule is that you survive the defendant‟s motion to dismiss, that‟s all. It amounts to mere evidence of negligence, and will let the jury decide what to do. Nothing more than probably inference: the jury could find that it is more likely than not, so give them a shot at hearing it. i. As a result of someone‟s negligence ii. Exclusive control iii. Plaintiff was not negligent b. We argue res ipsa when we don‟t have evidence to form a theory. Most courts hold that plaintiff can make a case for the jury under res ipsa loquitur by showing that: i. He was injured by an accident that would not ordinarily happen without negligence. ii. That the negligence is more likely than not attributable to the defendant, rather than to the plaintiff or a third party. a. It does not prove a direct connection between the negligent act and the defendant, but it is accepted by the legal system as a sufficient way to satisfy the “more probably than not” standard of negligence cases. c. Letting the facts speak for themselves, Wigmore Test. 1. Legislature does not want practitioners to hide behind license and say no negligence 9 d. (Byrne v. Boadle) Guest Statutes and Res Ipsa Loquitur a. (Larson v. St Francis Hotel) b. (Miles v. St. Regis Paper Co.) 4. Res Ipsa in Medical Malpractice a. Ybarra was diagnosed with appendicitis and was hospitalized: malpractice led to his paralysis because of trauma during operation. Injury was on arm and neck, so far away from appendix that there must be negligence. i. Res Ipsa allows an appeal to the empathy of the jury, not the matter of law. b. Conditional Res Ipsa: i. There are several things that could‟ve gone wrong, either the Dr. didn‟t do his job, the hospital broke the equipment, or the equipment was defective from the company. Burden of proof shifted to defendant, they need to prove that they were not negligent. V. CAUSE-IN-FACT A. BUT-FOR CAUSATION 1. Just because bullfrogs come out after it rains doesn‟t mean it rained bullfrogs. 2. Burden of proof shifts to defendant to prove that they were not the cause. a. (Lyons v. Midnight Sun Transportation Services) B. PROVING BUT-FOR CAUSE: THE SLIP AND FALL CASE 1. (Dapp v. Larson) 2. (Williams v. Emro Marketing Company) C. MULTIPLE CAUSES AND THE “SUBSTANTIAL FACTOR” TEST 1. (Anderson v. Minneapolis, St. Paul & Sault Ste. Mary Ry. Co) 2. (Dillon v. Twin State Gas & Electric Co.) Decedent played on electric tower and was killed by a low electric cable. a. Can argue that but-for the electric cable, he would have died anyway (fallen?) but maybe not as quickly: the economic efficiency of the additional seconds of his life is negligible. D. CAUSE IN FACT AND PROOF OF MATHEMATICAL PROBABILITIES 1. (Weymers. V. Khera) 2. (Daubert v. Merrel Dow Pharmaceuticals, Inc.) Two minors sue for birth defects caused by Benedictin taken by mothers during pregnancy. Birth defects can occur with and without Benedictin, how prove proximate cause. a. Causation can still be proved even if we don‟t know how precisely the damage occurred (can‟t trace back genetic progress of children). For example, when 50 people eat at a restaurant and all get sick, infer that restaurant caused sickness. i. Here, however, scientific evidence was inadmissible, there were no statistics to prove their claim and plaintiffs failed to prove causation. VI. PROXIMATE CAUSE A. JURY INSTRUCTIONS ON PROXIMATE CAUSE 1. Proximate cause is reached if and only if actual cause is established. In practice, they are not always kept separate. 2. Direct Cause instructions: a. Proximate cause produces an injury directly, or in a natural and normal sequence of events without the intervention of any independent, intervening cause, and without which the injury would not have occurred. 3. Foreseeability of Injury Instructions: a. Proximate cause is when its natural and continuous sequence produces an event without which an event would not have occurred. A preponderance of evidence of facts and circumstances should indicate that the reasonable and prudent person would have reasonably foreseen that the injury would be a natural and probably consequence of the negligence. 4. Both instructions have a but-for clause, but the first one emphasizes directness of causation and the lack of an independent intervening cause while the second speaks to foreseeability. 3. 10 B. THE DIRECT CAUSE TEST 1. (In re Arbitration Between Polemis and Furness, Withy & Co., Ltd): Ship carrying benzene docked in Casablanca and during the course of heavy slinging, a metal board fell, sparked the floor and set fire to the ship. a. Questions to ask: i. IS THERE A CAUSE IN FACT ii. IS THERE A DUTY AND HAS IT BEEN BREACHED iii. IS THERE PROXIMATE CAUSE b. Court of appeals held that charterers were responsible for all the consequences of their negligent act, even if they were not reasonably anticipated. If the defendant is guilty of negligence, he is responsible for all consequences arising out of that, whether reasonably foreseeable or not. Foreseeability relates to negligence and if negligence is established, foreseeability is immaterial. c. This is no longer good law. See Wagon Mound. Defendants now only held responsible for the probably consequences of their act. C. FORESEEABILITY AS A DUTY LIMITATION 1. (Palsgraf v. Long Island R. Co): Defendant jumping helped onto the train by train employee against rules and dropping a package with dynamite in it, exploding and causing a clock to fall on the woman. a. Cardozo’s test is not outcome determinant. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. “Proof of negligence” is not sufficient. There is an eye of ordinary vigilance and if the defendant‟s actions did not appear to be negligent then, then he is not liable. Negligence itself is not a tort, it‟s a term of relation to a tort. We must have a duty analysis. If Mrs. Palsgraf is not within the zone of foreseeable danger, then there is no duty. b. Andrews dissents and says: if we want to draw a line in these cases, the place to do it is in proximate cause. The question is, what will beak up the causal chain? The act itself, not the intent of the actor is important. Foreseeability is immaterial. i. Andrews uses language of causation, if there is a direct causal connection, i.e. Polemis rules, then foreseeability is unnecessary, you pay. If it isn‟t direct, examine the various chains of causation, and see if there is anything that breaks up the causal chain, if we have a break, there is no causal relationship. D. FORESEEABILITY AND THE RISK RULE 1. (Overseas Tankship (UK) Ltd. V. Morts Dock & Engineering Co. Ltd - Wagon Mound): Plaintiffs seek recovery for damage caused to their equipment (dock) by a fire that broke out when plaintiff‟s oil burning vessel was negligently spilled into the bay and not cleaned up. a. Although the reason d‟être of furnace oil is to burn, but the defendant could not have reasonably expected it to burn in water. b. Polemis is no longer applied, and although the fire is a direct result of the oil spillage, it has to be reasonably foreseeable that a bit of molten metal was going to fall into the oil and spark a fire. c. In Wagon Mound II the ship sues. We‟ve already established that there is no proximate cause to the burning of the dock. 2. When proximate cause is addressed in terms of the risk rule we again go back to the duty and breach and try to determine the type of unreasonable risk of harm that the defendant has imposed on the plaintiff, in order to determine whether the harm the plaintiff has suffered is “within the risk” E. FORESEEABILITY AND THE INTERVENING CAUSES 1. (Herman v. Markham Air Rifle Co): Plaintiff injured when BB gun that should have been unloaded was pointed at their face and shot by a customer at store. Court rules that manufacturer is liable. a. Cardozo analysis: i. the eye of vigilance goes up when gun is packaged with bullet. b. Andrews analysis: i. there were a lot of intervening actions before the defendant‟s actions, particularly, the customer‟s use of the gun, aiming and shooting the plaintiff in the eye. Aiming and shooting at people‟s faces is not acceptable, and this may be enough for Andrews to decide an intervening cause to move liability to customer. 11 skull plaintiff would likely have occurred from something else, what we give with the thin skull rule we take away with the but-for analysis. This is if you are already susceptible to the injury. e. Good Samaritans/Rescuers: are protected for public policy reasons, and they cannot be superceding intervening causes. 2. (Derdiarian v. Felix Contracting Corp) 3. (Marshall v. Nugent) 4. (McLaughlin v. Mine Safety Appliances Company) 5. Watson v. Kentucky & Indiana Bridge & R. Co) 6. Brauer v. New York Central & H.R.R.Co.) VII. MULTIPLE TORTFEASORS A. JOINT AND SEVERAL LIABILITY 1. (Carolina C. & O. Ry v. Hill): each defendant is fully responsible for the plaintiff‟s damages: the effects of which are not separable, though due to independent authors, either of which is sufficient to produce the entire loss, all are jointly or severally liable for the entire loss. a. Liability is several only where defendants cause distinct or separable components of a plaintiff‟s harm. “Where there are several concurrent negligence causes, the effects of which are separable, due to independent authors, neither being sufficient to produce the entire loss, then each of the several parties concerned is liable only for the injuries due to his negligence” p. 296. i. Liability is several only where defendants cause distinct/separable components of plaintiff‟s harm. b. The Restatement sets out five separate tracks to deal with joint and several liability: i. Eleven jurisdictions have retained joint and several liability even after adopting comparative fault. ii. Approx. 14 states apply only several liability to multiple defendants who have caused indivisible harm. iii. Imposition of joint and several liability, subject to a reallocation of unenforceable shares to all parties in proportion to their share of comparative responsibility. iv. Imposition of joint and several liability for a plaintiff‟s economic damages, but only several liability for non-economic damages, such as pain and suffering. v. Imposition of joint and several liability only against defendants who are assigned a “percentage of comparative responsibility equal to or in excess of the legal threshold.” 10%-60%. Below that, defendants are only liable for the plaintiff‟s harm. a. Regardless of what “track” jurisdiction follows, with an intentional tort, Restatement suggests joint and several liability for indivisible harm. B. THEORIES OF JOINT LIABILITY 1. Plaintiff must show that all defendants were aware of the risk of their actions and their ability to reduce those risks. a. Plaintiff must show that they were merely passing and that the defendants were acting and were the substantial cause of injury. 2. Joint liability has four distinguishable situations: a. The actors knowingly join in the performance of the tortious act or acts; b. The actors fail to perform a common duty owed to the plaintiff; c. There is a special relationship between the parties (e.g. master and servant or joint entrepreneurs); d. Although there is no concerted action, nevertheless the independent acts of several actors concur to produce indivisible harmful consequences. 3. These create three overlapping distinguishable problems: a. The problem of joint or group control of risk: the need to deter hazardous behavior by groups or multiple defendants, as well as by individuals. b. The problem of enterprise liability: the policy of assigning the foreseeable costs of an activity to those in the most strategic positions to reduce them. c. Green analysis: d. Thin skull rule: i. Superceding analysis is difficult, thin skull rule takes PLA as you find them. If the injury to the thin 12 innocent injured plaintiff because proof of causation may be within defendants‟ control or entirely unavailable. 4. Concert of Action (Bierczynski v. Rogers) a. Two people racing and one of them hit a third car, both sued. There is joint enterprise in racing, the guy wouldn‟t race himself. It doesn‟t have anything to do with making a profit and the parties are in agreement to do something. 5. Enterprise Liability (Hall v. E.I. du Pont de Nemours & Co.) a. Thirteen children injured by blasting caps that were not marked with warning labels. Can a group of people be held liable for the individual action of manufacturing a product. b. Pursuant to their pleading, plaintiffs have to show that defendants were all aware of the risk at issue and their joint capacity to reduce or affect those risks. c. Plaintiffs also have to show by a preponderance of the evidence that it is more probable than not that the product was manufactured by the defendants. 6. Alternative Liability (Summers v. Tice) a. Defendants shooting at quail shot defendant who was instructing them. 7. Market Share Liability a. (Sindell v. Abbott Laboratories) DES drug taken by pregnant mothers to prevent miscarriage but caused a form of cancer in their daughters after a latent period of 10-12 years. Drug approved by FDA on experimental basis. Mother and daughter could not show which specific company out of 200 actually produced the drugs the mothers took. Plaintiffs say joint concert because they relied on each others‟ testing and marketing methods. b. A substantial share of the market needs to be joined. Recovery is limited to each manufacturer‟s liability for an injury approximately equivalent to the damages caused by the DES it made; unless it demonstrates it could not have made the product which caused the plaintiff‟s injury. c. (Hamilton v. Accu-Tek) C. INDEMNITY AND CONTRIBUTION 1. (National Health Laboratories, Inc. v. Ahmadi). The rule at common law is that there is NO CONTRIBUTION between joint and several tortfeasors. Court does not want to deal with who has more/less fault. a. Contribution is pro-rata distribution. b. Indemnification is a third party taking 100% liability for the defendant‟s liability (costs). It can only be granted based on a contractual relationship. 2. (Bervoets v. Harde Ralls Pontiac-Olds, Inc.) VIII. DAMAGES FOR PERSONAL INJURIES c. The problem of fairness with respect to burden of proof: the desire to avoid denying recovery to an A. Damages are questions of fact. B. Calculation of lost wages relies on the following variables: 1. The person‟s present wages and benefits 2. Expected wage growth due to expected increases in job responsibility and promotion 3. Years of work expectancy 4. A subtraction for other employment in mitigation 5. A discounting to present value 6. A determination of the tax effect on the award, if any. C. ECONOMIC LOSS 1. Damages are questions of fact. 2. Calculation of lost wages relies on the following variables: a. The person‟s present wages and benefits b. Expected wage growth due to expected increases in job responsibility and promotion c. Years of work expectancy 13 (Seffert v. Los Angeles Transit Lines). Damages appealed for excessiveness and that at first blush it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury. Australian judge says it‟s not “manly” to pay damages for past pain and suffering. a. Non pecuniary damages: i. Pain and suffering ii. Loss enjoyment of life iii. Loss of consortium b. Pecuniary damages: i. Lost Wages: Calculate what the market interest rate is on a reasonable safe security; the discount rate is between 1-3% as long as the court can give reasons why it picked whatever it was between 1-3%. ii. Medical Expenses D. NON-ECONOMIC LOSSES: PAIN AND SUFFERING 1. (McDougald v. Garber). Emma McDougald is in a permanent comatose state: the condition of her cognitive abilities and capacity to realize her condition and experience pain were sharply disputed. Two questions arose here: a. Whether some degree of cognitive awareness is a prerequisite to recovery for loss of enjoyment of life and b. Whether a jury should be instructed to consider and award damages for loss of enjoyment of life separately from damages for pain and suffering. 3. d. A subtraction for other employment in mitigation e. A discounting to present value f. A determination of the tax effect on the award, if any. cost to fix a defect in their guns vs. how much it would cost to leave it and they decided not to fix it. a. Standard for punitive damages: Reckless indifference for the safety of others: similar to IIED. b. Look at reprehensibility and ration between total harm and particular harm, in Cooper the court determined that when damages are too high, it becomes an issue of law, not fact. 2. (BMW of North America, Inc. v. Gore) IX. LIMITED DUTY: SPECIAL LIMITIATIONS ON THE SCOPE OF DUTY A. MISFEASANCE VS. NON-FEASANCE 1. (Weirum v. RKO General, Inc.): Duty is a question of law, foreseeability is a question of fact for the jury. E. MITIGATION 1. (Colton v. Benes) F. LOSS OF CONSORTIUM G. FUTURE DAMAGES 1. (Jones & Laughlin Steel Corp. v. Pfeifer) H. COLLATERAL BENEFITS 1. (Helfend v. Southern California Rapid Transit District) 2. (Thompson v. KFB Insurance Co.) I. PUNITIVE DAMAGES 1. (Sturm, Roger & Co., Inc. v. Day): Gun company did a cost-benefit analysis to determine how much it would i. APPELLATE COURT SAYS: 1) YES 2) NO. ii. One cannot be compensated for pain not experienced, but can for loss of enjoyment of life without being conscious of it. iii. Punitive damages are FORBIDDEN unless the harmful conduct is malicious, outrageous or otherwise aggravated beyond mere negligence. a. Supreme Court REVERSED Appellate Court: Although it‟s paradoxical where the greater the injury the smaller the award for their (realization) of loss of enjoyment, but a temptation to balance the two would be punishment, and retributive symmetry does not have a place in civil law. Loss of enjoyment of life should NOT be considered separately. 1. For pain and suffering, the standard is at “some level of awareness” 14 B. EXCEPTIONS TO THE NO-DUTY RULE 1. Defendant’s Negligence Places the Plaintiff in a Position of Peril a. (Day v. Waffle House, Inc.) 2. Voluntarily Assumed Duties a. (Florence v. Goldberg) 3. Special Relationships a. (Farwell v. Keaton) b. (Tarasoff v. Regents of University of California) Psychiatrist tells police that his client is threatening to kill a person but he doesn‟t warn the person. i. There has to be proof that the psychiatrist knew that their client was going to act. ii. This also protects the attorney-client privilege, allowing attorneys to talk their clients out of illegal activity. iii. Therapists need only exercise “that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of [that professional specialty] under similar circumstances.” a. Once he does determine harm, he has a duty to exercise reasonable care to protect the foreseeable victim of that danger.” The standard to measure therapist‟s action is the traditional negligence standard of the rendition of reasonable care under the circumstances.” 1. The protective privilege ends where the public peril begins. 2. Police who were warned were not liable because they had no special & continuous relationship with the victim or the patient. C. PUBLIC VERSUS PRIVATE DUTIES 1. (Thompson v. County of Alameda): Juvenile delinquent who said he‟d kill a child if he was released in a neighborhood with a young child murdered a child. Plaintiffs cited Tarasoff and sued state for not warning them. a. Court said that victim in Tarasoff was easily identifiable. Here there was general danger and no duty to disclose. There was no special and continuous relationship with the specific plaintiffs. Just like police in Tarasoff. i. Victim has only to be readily identifiable, not specifically named. b. According to the Restatement: a duty arises if i. A special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person‟s conduct, or ii. A special relation exists between the actor and the other which gives the other a right to protection. D. CONTRACTUAL DUTIES 1. (Soldano v. O’Daniels): Someone hurt and bartender at Happy Jack‟s refused to let helper use telephone. a. The fact that the actor realizes or should realize that action on his part is necessary for another‟s aid or protection does not of itself impose upon him a duty to take such action.” b. There is a contractual obligation to clear the telephone line if someone is in peril, as enacted by Congress. c. You cannot prevent assistance by others: by starting to rescue, you are preventing others from doing it, so you need to complete. If start to aid, you need to act like the reasonably prudent person and finish. d. Soldano court does not apply the approach above, it says there is a contractual obligation to the general public. E. NEGLIGENT INFLICTION OF (SOLELY) EMOTIONAL INJURIES 1. (Dziokonski v. Babineau) a. The old rule: in order to recover for negligent infliction of emotional distress, must have impact. Because cannot distinguish between fear and injury (emotional) and it is unreasonable for people to have to worry about causing fear in others. i. Tobin v. Grossman abandoned the “impact rule” for the “danger zone rule”: if you thought you could‟ve been hit, then there doesn‟t need to be an impact. It doesn‟t count for people who show up to the scene before it has been cleared. ii. Dillan v. Legg abandoned both the impact and danger zone rule and laid out a three factor test: 15 There needs to be close familial relationship. There needs to be a contemporary sensory observation. It doesn‟t mean that you have to actually see it, you could also hear it. c. Need to have severe emotional distress. b. This court applies most of the Dillan rule but looks at the zone of danger also: if someone witnessed the action, then is it foreseeable that they would suffer emotional distress? 2. (Thing v. LaChusa) a. They have to actually be there to be able to recover. X. PREMISES LIABILITY: DUTIES OF OWNERS AND OCCUPIERS OF LAND A. COMMON LAW “STATUS” CATEGORIES OF ENTRANTS 1. Only Invitees are traditionally owed the traditional duty of reasonable care – but exceptions. 2. (Holzheimer v. Johannesen) Guy fell through the middle of stacked boxes. a. An Invitee is one who enters upon the premises of another for a purpose connected with the business conduct on the land, or where it can reasonably be said that the visit may confer a business, commercial, monetary or other tangible benefit to the landowner. i. Duty to warn an invitee of hidden or concealed dangers. ii. Duty to reasonably maintain premises and make periodic inspections for purposes of discovering hazards, and may be required in some circumstances to make repairs. b. A Licensee is a visitor who goes upon the premises of another with the consent of the landowner in pursuit of the visitor‟s purpose. i. Even if the guests renders the landowner a minor, incidental service, still a licensee. 3. (Palmtag v. Garner Construction Co) B. SPECIAL CATEGORIES OF ENTRANTS 1. Trespassing Children a. (Mozier v. Parsons) Invited daughter of guests went to pool unattended and drowned. There was an unlocked fence. i. A swimming pool is NOT an attractive nuisance. b. There is liability if: i. The possessor knows, or in the exercise of ordinary care should know, that young children are likely to trespass upon the premises; and ii. The possessor knows, or in the exercise of ordinary care should know, that the condition exists and that it involves an unreasonable risk of bodily harm to young children; and iii. The children because of their youth either do not discover the condition or understand the danger involved in coming into the dangerous area; and iv. One using ordinary care would not have maintained the condition when taking into consideration the usefulness of the condition and whether or not the expense or inconvenience to the defendant in remedying the condition would be slight in comparison to the risk of harm to children 2. Firefighters, Police Officers, and Other Public Officials – the Firefighter’s Rule a. (Chapman v. Craig) Recovery is denied (as held in Pottebaum) when the firefighter/policeman‟s cause of action is based on the same conduct that initially created the need for their presence in an official capacity. i. If the defendant engages in subsequent acts of negligence or misconduct once the officer is on the scene, they might be held liable for that. 3. Social Guests a. (Hambright v. First Baptist Church-Eastwood) C. RECREATIONAL PREMISES 1. (Reed v. Employers Mutual Casualty Co.) D. CRIMINAL ASSAILANTS 1. (McClung v. Delta Square Ltd. Partnership) E. ABOLITION/MODIFICATION OF COMMON LAW “STATUS” CATEGORIES a. b. 16 (Rowland v. Christian) Faucet broke in his social guest‟s hand, defendant aware of the crack. a. Guests are only granted, like licensees and trespassers, the duty that the landowner refrains from willful or wanton injury. i. But this standard is slowly moving towards the imposition of a single DUTY OF CARE to all guests ii. Ultimately, the status may give rise to facts bearing on the question of liability, but it is not determinative. 2. (Jones v. Hansen) Plaintiff fell backward down the stairs while looking at photos hung over stairwell. a. Foreseeing injury rather than the plaintiff‟s status is the controlling factor of determining liability. b. Criticism of tri-partite classifications (trespasser, licensee, invitee) is that the same injury can happen on a different night with different liability. 3. Two major tests for foreseeability apply: Totality of Circumstances and Balancing Test a. Totality of circumstances takes all the factors in b. Seeks to address the interests of both business proprietors and their customers by balancing the foreseeability of harm against the burden of imposing a duty to protect against the criminal acts of a third person. F. LESSORS OF REAL PROPERTY 1. (Coggin v. Starke Brothers Realty Co. Inc) 2. (Pagelsdorf v. Safeco Ins. Co. of America) XI. WRONGFUL DEATH A. (Moragne v. States Marine Lines, Inc.) B. (O’Grady v. Brown) C. (Murphy v. Martin Oil Co.) D. (Bullard v. Barnes) XII. DEFENSES A. DEFENSES BASED ON THE PLAINTIFF‟S CONDUCT 1. Contributory Negligence a. Contributory negligence bars recovery in jurisdictions that have that approach. b. The Last Clear Chance doctrine: is always asserted by PLAINTIFFS, and is when the defendant has time to avoid the accident (helpless plaintiff, able defendant), and didn‟t. Wipes out P‟s contributory negligence. c. (Butterfield v. Forrester) 2. Comparative Negligence a. In a “pure” comparative negligence jurisdiction, if P is 60% at fault, she recovers 40% of her costs, but in a “modified” jurisdiction, if she is 50% or more at fault, P cannot recover. b. Courts are split about whether Last Clear Chance applies in comparative negligence, many say no. c. (Bradley v. Appalachian Power Company) d. (Law v. Superior Court) 3. Assumption of the Risk a. Express Assumption of the Risk (Wolf v. Ford) b. Implied Assumption of the Risk i. (Murphy v. Steeplechase Amusement Co. Inc) ii. (Knight v. Jewett) B. OTHER DEFENSES: LIMITATIONS AND IMMUNITIES 1. Statutes of Limitation and Repose a. (Garcia v. Texas Instruments Inc.) b. (Nelson v. Krusen) 2. Immunities a. Family Immunities i. (Bonte v. Bonte) ii. (Shoemake v. Fogel Ltd.) 1. 17 XIII. VICARIOUS LIABILITY A. RESPONDEAT SUPERIOR 1. If an employee commits a tort during the “scope of his employment” his employer is vicariously liable. 2. (Fruit v. Schriener) Fruit (who works for Equitable Life) was at a conference and drank, slept, then drove. a. Control theory: finds liability whenever the act of the employee was committed with the implied authority, context of the act of the employee but for the unfortunate injury. c. There is vicarious liability even when the servant‟s responsibilities are in no sense unlawful or violative of the plaintiff‟s rights, where there is no delegation of duty and where the tortious conduct was neither commanded nor ratified. 3. (Wong-Leong v. Hawaiian Independent Refinery, Inc.): Deceased drove at company celebration and drove. a. To recover under Respondeat Superior the plaintiff must establish: i. A negligent act of the employee, a breach of a duty that is the legal cause of plaintiff‟s injury; and ii. That the negligent act was within the employee‟s scope of employment. b. To establish enterprise liability consider: i. Whether “the enterprise of the employer would have benefited by the context of the act of the employee but for the unfortunate injury” and ii. “Whether the employer‟s risks are incident to [the] enterprise. iii. It does NOT require knowledge or fault on the part of the employer. B. EMPLOYER-EMPLOYEE RELATIONSHIP 1. Who is an Employee a. (Buitrago v. Rohr): Guy who advertised for Blockbuster‟s with hot air balloons at a festival had an automobile accident driving home. i. To establish if someone is an employee or independent contractor: a. The extent of control which, by agreement, the master may exercise over the details of the work; b. Whether or not the one employed is engaged in a distinct occupation or business; c. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; d. The skill required in the particular occupation; e. Whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; f. The length of time for which the person is employed; g. The method of payment, whether by the time or by the job; h. Whether the work is part of the regular business of the employer; i. Whether or not the parties believe they are creating the relation of master and servant; and j. Whether the principal is or is not in business. ii. The Maryland Court of Appeals set forth this test in Keitz v. National Paving and Contracting Co., a. The selection and engagement of the employee; b. The payment of wages; c. The power to discharge; d. The power to control the employee‟s conduct; and e. Whether the work is part of the regular business of the employer. b. Charitable Immunity c. Governmental Immunity d. Municipal Immunity i. (Cuffy v. City of New York) ii. (Aguehounde v. District of Columbia) b. Enterprise theory: finds liability whenever the enterprise of the employer would have benefited by the acquiescence or subsequent ratification of the employer. 18 him regularly uses the hunting camp for business purposes. i. Court asked if he was within the scope of employment. c. (Jones v. Halvorson-Berg): Worker carrying window slipped on gravel and permanently disabled himself. Worker worked for contractor who sent them to help subcontractors, who make the window, carry it. i. Borrowed servant doctrine: REST.2. §227 “[a] servant directed or permitted by his master to perform services for another may become the servant of such other in performing services. He may become the other‟s servant as to some acts and not as to others.” 2. Was the Employee Acting within the “Scope of Employment”? a. (Skinner v. Braum’s Ice Cream Store): Employee instructed to pick up supplies on her way to work has an accident. i. Going and coming rule does not apply when the employee is rendering a service. b. (Courtless v. Joullifee): Employee on his way to work stopped to buy shocks for his truck that employer paid to use and had accident on his way to office. i. If he was doing work for the company, the company is liable. c. Exceptions to the going-coming rule: i. Special Hazards (distance alone is not a hazard, but if transporting explosives) ii. Employer compensates employee for time and travel. iii. Dual purpose: picking up supplies. 3. “Frolics” and “Detours” a. (Laird v. Baxter Health Care Corp.): Going to hospital to work, they stop at McDonald‟s on the way and have an accident on the way to clinic (their main job was to drive to different clinics and sell stuff). i. Frolic: The employee‟s personal business is seen as unrelated to employment. ii. Detour: The employee‟s deviation for personal reasons is nonetheless seen as sufficiently related to employment. a. Look at “the reasonableness of the employee‟s conduct in which the employee was engaged and whether it might normally be anticipated or foreseen by the employer.” Bailey v. Industrial Commission. iii. A traveling employee need not take the most direct route. 4. Employer’s Vicarious Liability for Intentional Torts a. (Sunseri v. Puccia): Angry bartender beats the shit out of customer in front of non-intervening boss after comment made carding. i. Rest.2 §317 Look at: a. The conduct within scope of employment b. The occurrence within the time and location of the employment c. The foreseeability of the assault in view of the bar‟s business d. The employer knows or should know that control over the employee is necessary e. Ability to control exists. b. (Plummer v. Center for Psychiatrists): Psychiatrist has sex with patient and patient says taken advantage of given her mental state. 5. Vicarious Liability for Punitive Damages a. (Brueckner v. Norwich University): Hazed student at military academy. i. “Indifference attributable to negligence is not malice” and punitive damages were reversed. ii. “Complicity theory”: Res.2 §909 “A principal may be held vicariously liable for punitive damages awardd on the basis of an agent‟s misconduct where the principal has acted in either authorizing or subsequently ratifying such misconduct, or where the principal has recklessly hired an otherwise unfit agent.” C. INDEPENDENT CONTRACTORS 1. (Bagley v. Insight Communications Co. LP) b. (Ermert v. Hartford Insurance Co.): Guy shot in the foot while a guest at hunting camp. Guy who shot 19 injury. XIV. COMMON LAW STRICT LIABILITY A. ANIMALS 1. (Sinclair v. Okata) Kids got bitten by German Shepherd. a. One bite rule: every dog has a bite, but if the owner knew of the dangerous propensity, then liable. b. The owner is only strictly liable if: i. The animal‟s owner knew or should have known of the animal‟s “dangerous tendency” and ii. That the dangerous tendency resulted in an injury to the claimant. c. Generally, there is a strict liability rule (except for with dogs and cats), but many western states have “fencing in” and “fencing out” statutes: no strict liability if it is fenced in (and required by statute) and the animal breaks out, and alternatively, landowners who fence out animals (as according to statute) can impose strict liability on animal-owners whose animals break through the fence. 2. Wild animals: strict liability generally for all damage done. B. ABNORMALLY DANGEROUS ACTIVITIES 1. (Fletcher v. Rylands) Denied liability to defendants who paid an independent contractor to build a reservoir that later broke and flooded old mines that they didn‟t know about. 2. (Rylands v. Fletcher) Reversed district court‟s decision. If anyone who brings on his land anything that is naturally not supposed to be there, if it escapes will cause mischief is liable if it does escape. If it had rained and flooded, no liability. The restatement rejects this “act of god” exception. a. Rest. 2d §520: Codifies Rylands rule: To determine “abnormally dangerous activity” look at: i. Existence of high degree of risk of some harm ii. Likelihood that the harm that results will be great iii. Inability to eliminate the risk by the exercise of reasonable care iv. Extent to which the activity is not a matter of common usage. v. Inappropriateness of the activity to the place where it is carried out. vi. Extent to which its value to the community is outweighed by its dangerous attributes. b. Value to the community: if it has great value, no strict liability: in TX and OK, energy industry not have strict liability. But this is non-dispositive. a. Five exceptions where principals are not held liable for the negligence of independent contractors: i. Where the contract requires the performance of instrinsically dangerous work; ii. Where the act will create a nuisance; iii. Where the principal is by law or contract charged with performing the specific duty; iv. Where the act to be performed will probably cause injury to others unless due precaution is taken; and v. Where the act to be performed is illegal. D. JOINT ENTERPRISES, JOINT VENTURES, AND PARTNERSHIPS 1. (Farmers Insurance Exchange v. Parker) a. The elements of joint enterprise are: i. An agreement, express or implied, among the members of the group; ii. A common purpose to be carried out by the group; iii. A community of pecuniary interest in that purpose, among the members; iv. An equal right to a voice in the direction of the enterprise, which gives an equal right of control. 2. (Cullip v. Domann) Two kids go hunting with consent of one of parents but not the other a. The essential elements to joint venture liability are: i. An agreement ii. A common purpose iii. A community of interest; and iv. An equal right to a voice accompanied by an equal right of control over the instrumentality causing the 20 c. Thus, strict liability applies when doing something ultra-hazardous that is not in a matter of “common usage” even if due care is exercised. UNREASONABLE ASSUMPTION OF RISK or an ASSUMPTION OF RISK in which case, recovery is barred. 3. Airplane damage: No strict liability with passengers suing, but there IS strict liability for ground damage. This strict liability for ground damage is being increasingly abandoned by jurisdictions. 4. (Siegler v. Kuhlman): Commercial transporters are held strictly liable if their goods escape because the high risk cannot be eliminated by due care BUT THE COSTS CAN BE SPREAD AMONG CUSTOMERS WHO BENEFIT. 5. (Indiana Harbor Belt Railroad Co. v. American Cyanamid Co.) Posner, Chicago: Even though the spillage was toxic and dangerous, it shouldn‟t leak from a well-maintained car and thus, the risk can be eliminated by due care. Employ negligence analysis because a strict-liability analysis would be too costly. 6. (Cambridge Water Co. v. Eastern Counties Leather PLC) XV. NUISANCE A. PRIVATE NUISANCE 1. Unreasonably interferes with the use and enjoyment of nearby property. a. Two principles must be proven by plaintiff: i. That his use and enjoyment of his land was interfered with in a substantial way; and ii. That the defendant‟s conduct was either negligent, abnormally dangerous or intentional. 2. General Principles of Liability a. (Clinic & Hospital, Inc. v. McConnell): Defendants played loud music all day and everyone in clinic could hear it. i. A person has a right to exclusive control of his property and the right to devote it to such uses as will be subserve his interests, but this is not absolute. ii. A business that is lawful in itself may become a nuisance where it is not operated in a fair and reasonable way to the rights of others in the use and enjoyment of their property. iii. In every case the question is one of reasonableness. What is reasonable to one may not be to another, and this will depend upon the locality and the circumstances. b. Nuisance is an umbrella term that covers injuries of land. The cause of action has uncertain roots, we are not sure if it is based in trespass or negligence or strict liability. What we do here is that we do not do with intentional torts is examine the amount of interference and determine whether or not it was reasonable. c. (Winget v. Winn-Dixie Stores, Inc.) 3. Remedies a. (Boomer v. Atlantic Cement Company) Both the cement plant and landowners were there for a long time, but landowners beginning to realize the pollution effects. i. There was a substantial nuisance and an injunction was ordered. a. Traditionally, injunctions were offered for nuisances. b. More recently, courts are examining economic consequences between the injunction and the effect of the nuisance to determine whether to order an injunction or award money damages. b. When dealing with permanent injunctions or an equity, ask: i. Is there an adequate remedy at law? ii. Is the harm irreparable? iii. What are the public policy issues and the balance of the individuals and their activities? iv. When you are trying to get a preliminary injunction (to get it stopped immediately) you have to show a likelihood success on the merits (that you‟ll win when you get to court). c. (Spur Industries, Inc. v. Del E. Webb Development Co.) The cattle feedlot that was established in the previously agricultural area was ordered closed as a result of the encroaching residential areas. i. Established that the difference between public and private nuisance was degree. d. Contributory negligence is no defense and will not bar plaintiff‟s recovery, unless there is an 21 B. PUBLIC NUISANCE It is an interference with a right common to the general public. Rest. 2d, §821B(1). Is a species of catch-all criminal offenses, consisting of an interference with the rights of the community at large, which may include anything from obstruction of a highway to a public gaming-house o indecent exposure. a. To constitute public nuisance it must: i. Cause substantial harm ii. Injure the public at large. b. Consider factors such as type of neighborhood, nature of the wrong complained of, proximity, etc. 3. (State v. H. Samuels Company, Inc.) 4. (Goose v. Commonwealth) XVI. PRODUCTS LIABILITY A. HISTORY: NEGLIGENCE ASSAULTS THE CITADEL OF PRIVITY 1. (Thomas v. Winchester): Injuries sustained by Mrs. Thomas from the effects of a quantity of extract of belladonna administered to her by mistake as extract of dandelion. a. Misrepresentation (intention tort of fraud and deceit): it gets damages but no contributory negligence as a defense and a different statute of limitations (that is usually adverse). b. Privity needs to exist. i. Winterbottom v. Wright: Postmaster who contracts for the delivery of wagons and servants to manage those wagons in the delivery of the mail. Contract with servants and servants injure plaintiff, can plaintiff sue postmaster? a. Court said no liability because there is no privity between by-stander and postmaster a. Huset v. J.I. Case Threshing Machine Co.: When a manufacturer sells articles to the wholesale or retail dealers, or to those who are to use them, injury to third persons is not generally the natural or probably effect of negligence in their manufacture because i. Such a result cannot ordinarily be reasonably anticipated, and because ii. An independent cause – the responsible human agency of the purchaser – without which the injury to the third person would not occur, intervenes, and… „insulates‟ the negligence of the manufacturer from the injury to the third party. b. Privity Exceptions: i. Negligence of a manufacturer or vendor which is imminently dangerous to the life or health of mankind, and which is committed in the preparation or sale of an article intended to preserve, destroy or affect human life, is actionable by third parties who suffer from negligence. ii. Owner‟s act of negligence which causes injury to one who is invited by him to use his defective appliance upon the owner‟s premises may form the basis of an action against the owner iii. One who sells or delivers an article which he knows to be imminently dangerous to life or limb to another without notice of its qualities is liable to any person who suffers an injury therefrom which might have been reasonably anticipated, whether there were any contractual relations between the parties or not. 2. Foodstuffs strict liability rule: remember the case where there is strict liability for poison that doesn‟t have the skull and crossbones on it – we don‟t care if consumer knew it was dangerous or not. a. For third-party beneficiaries in contract law, you have to have special forseeability. 3. Misfortune to third persons who are not parties to the contract is not a natural and necessary consequence to the manufacturer‟s negligence. B. (MacPherson v. Buick Motor Co.) Defendant was an automobile manufacturer who obtained wheels for its automobiles from a separate manufacturer. Defendant sold its vehicles to automobile retailers. Plaintiff purchased one of defendant's vehicles from a dealer. Plaintiff was riding in the vehicle when it collapsed and plaintiff was injured. Plaintiff sued defendant for negligence. A jury verdict was rendered in plaintiff's favor. This case does nothing but get rid of privity. 1. Privity: No privity necessary with products of danger: 2. 1. 22 If the nature of the thing will reasonably certainly place life and limb in peril when negligently made, it is a product of danger b. There must be knowledge of a danger, not merely possible, but probable. It is possible to use almost anything in a way that will make it dangerous if defective, this is not enough. c. There must also be knowledge that in the usual course of events the danger will be shared by others than the buyer. d. The proximity of remoteness of the relation is a factor to be considered. 2. It is negligent for a manufacturer to put his product on the market without inspecting it for defects – if he does this, he is liable for injuries sustained as a result. The duty to inspect depends on the nature of the product and its use. 3. The court has put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. The court has put the source of the obligation where it ought to be. The court has put its source in the law. 2. (Escola v. Coca Cola Bottling Co. of Fresno) B. NEXT ASSAULT: BREACH OF WARRANTY 1. (Henningsen v. Bloomfield Motors, Inc.) C. STRICT LIABILITY IN TORT 1. Res ipsa says nothing about contributory negligence defense. a. In the concurring opinion Trainor recommends strict liability because of: i. Loss minimization: people how know of those risks and can take the precautions (manufacturers have expertise) ii. Loss spreading: You can pass it on the costs of the manufacturer – it‟s a matter of probability who gets hit by it, everyone pays for it. iii. This is a foodstuffs analogy: like Thomas v. Winchester and I iv. It eliminates the proof complications and they are not efficiently borne by the plaintiff in these cases. (like in the Pepsi case where the bottle broke, the plaintiff doesn‟t know the manufacturing process). v. It is corrective justice: Your product caused my harm, you pay – this is back to strict-liability and Rylands v. Fletcher. He says that causation is enough to establish liability. D. THE DEFINITION OF “DEFECTIVE” 1. The definition of “defective condition” a. Defects in which the product leaves the control of the manufacturer in a condition that is different from what the manufacturer intended; i.e., the product was not made correctly and the mistake escaped the manufacturer‟s quality control. b. Section 402A: It is also defective if the mistake makes it unreasonably dangerous or (comment J) the manufacturer failed to provide necessary warnings or instructions for use. 2. Manufacturing Defects a. STRICT LIABILITY: (Ford Motor Company v. Gonzalez): If it came off the line, does not conform to company standards or the standards a reasonable consumer expects, manufacturer is liable, regardless of fault. 3. Design Defects a. NOT STRICT LIABILITY: (Barker v. Lull Engineering Company, Inc.), negligence analysis. i. Two pronged test: a. Consumer expectation test, who the ordinary consumer is, and b. The risk utility standard. ii. Barker opinion turns the plaintiff into the designer and gives him the burden of proof to show other way to design (this is also the California approach and the MINORITY approach; i.e., the burden of proof that the utility of the product outweighs its risk is on the defendant) a. Elsewhere, burden of proof is on the plaintiff, and once the plaintiff shows the prima facie case, the burden shifts to the defendant. b. (Hernandez v. Tokai Corporation) Kid gets a hold of some lighters without childproof safeties and burn. i. Lighter is not defective because it met the ordinary consumer expectation. This is the majority. a. 23 ii. State of the art defense is not possible because it is technologically possible to find a safer design. c. (Brown v. Superior Court) DES defects in mothers, you didn‟t warn us and didn‟t test long enough. i. If a product is dangerous but unavoidably dangerous, it is not “unreasonably dangerous” as according to the Restatement. Warning Defects a. Negligence analysis: risk utility analysis, obligation to warn. b. (Livingston v. Marie Callendar’s, Inc.) c. (Jackson v. Coast Paint and Lacquer Company) E. THE DEFINITION OF “ONE WHO SELLS” 1. (Allenberg v. Bentley Hedges Travel Serv., Inc.) The doctrine of manufacturers‟ liability is inapplicable to commercial sellers of used products if the alleged defect was not created by the seller and if the product is sold in essentially the same condition as when it was acquired for resale. a. Manufacturers are “processors, assemblers, and all other persons who are similarly situated in processing and distribution” and based on the public interest in human safety, manufacturers are best situated to have responsibility to protect the public. 2. There may be local statutes and regulations that require certain standards, regardless of how new the product is. 3. Principles of strict liability: a. Loss minimization b. Loss distribution c. Relative innocence of the plaintiff to the manufacturer of the product. F. SALE OF PRODUCTS OR PROVISION OF SERVICES? 1. (Royer v. Catholic Medical Center) a. The reasons for development of strict liability in tort are the lack of privity between the manufacturer and the buyer, the difficulty of proving negligence against a distant manufacturer using mass production techniques, and the better ability of the mass manufacturer to spread the economic risks among consumers. b. “The essence of the transaction between the retail seller and the consumer relates to the article sold. The seller is in the business of supplying the product to the consumer. It is that, and that alone, for which he is paid.” Hoff v. Zimmer, Inc. 746 F.Supp. 872. A patient goes to the hospital “to obtain a course of treatment in the hope of being cured of what ails him,” and not to purchase stuff. c. The hospital is not engaged in the business of selling prosthetic legs, so it was not held strictly liable. From a public policy vantage point, it would cost patients much more ultimately to hold them responsible. d. It‟s a matter of litigation skills to see if people are treating it as a product. How does the provider of the service treat the service? A hairdresser; they dye your hair or shampoo it and you hair falls out. Are they liable? If they do treat it as a product can the consumers bear the additional costs. Likely- the more necessary the product the more likely we are to see it as a service. G. THE TYPE OF HARM: THE ECONOMIC LOSS PROBLEM 1. (Moorman Manufacturing Company v. National Tank Company) a. Plaintiffs cannot recover from manufacturing defects on the theory of strict liability for only economic losses (no personal injury). i. When an unreasonably dangerous defect is present, such as the truck‟s nonfunctioning brakes in Seely, and physical injury does, in fact, result, then “physical injury to property is so akin to personal injury that there is no reason to distinguish them.” ii. On the other hand, Justice Traynor says “[the manufacturer] cannot be held for the level of performance of his products in the consumer‟s business unless he agrees that the product was designed to meet the consumer‟s demands.” b. As long as the injury is only economic, strict liability does not apply and you are left with the provisions of the UCC. 4. ii. If the product is advertised directly to the public, they have a duty to warn. iii. It says that the Barker test is inapplicable. 24 c. If there is physical injury, you get tort damages: but what is physical injury? The short answer is: physical injury that is like an explosion, cause things to break and blow up, is more likely to be treated as tort damages. It‟s just as likely that a human being could have been injured. H. THE ISSUE OF PLAINTIFF‟S CONDUCT 1. (Daly v. General Motors Corporation) (California) a. Question: Can comparative principles apply in strict products liability actions? b. Argument for no: Contributory negligence is only a defense to negligence, and comparative negligence only affects contributory negligence, therefore, comparative negligence cannot be a defense to strict liability. c. Negligence as it is commonly understood is conduct which creates an undue risk of harm to others. Contributory negligence is conduct which involves an undue risk of harm to the actor himself. Negligence requires a duty, an obligation of conduct to another person. Contributory negligence involves no duty. d. The goal of strict liability is to hold manufacturers responsible for the protection of individual consumers where consumers are unable to protect themselves. e. Comparative negligence still protects the defenseless and defendant‟s liabilities for injuries caused by the defects are still strict – the only difference is that recovery will be reduced to the extent that the plaintiff‟s own lack of reasonable care contributed to his injury. Not allowing an examination of the plaintiff‟s conduct and how it affected his injury would stand in the way of awarding damages in proportion to fault. f. Comparative principles CAN be applied to strict liability. 2. (General Motors Corporation v. Sanchez) Justice Gonzalez a. Comparative responsibility applies strict liability of a plaintiff‟s negligence is something other than the mere failure to discover or guard against a product defect. b. There was evidence here the decedent was negligent apart from the mere failure to discover or guard against a product defect. c. Implicit in Keen is that the consumer has no duty to discover or guard against a product defect - this would defeat the purpose of strict liability. d. Plaintiff (Sanchez who was pinned to the wall behind him after his car started to roll in reverse) breached the duty to use ordinary care and was fifty percent responsible for the action. e. Texas Court wants to be careful: plaintiff could have discovered defect in product but did not inspect: but there is no obligation on the part of the consumer. BUT if plaintiff should have known there was a problem with the product (maybe the car was shaking, etc) then there is a duty to inspect. Contributory negligence has a knowing feature to it: known or should have known that there may be a problem, then in this case, the jury can examine comparative responsibility. 25