Law School Outline - Torts Outline

I. A. II. A. B. C. D. E. F. G. III. A. B. C. D. E. IV. A. B. C. V. A. B. INTRODUCTION TO TORT LIABILITY ....................................................2 Standards of liability (Primary and Vicarious) ................................................2 NEGLIGENCE ................................................................................................3 Reasonableness of Risk ...................................................................................3 Hand Formula ..................................................................................................4 The Roles of Judge and Jury –.........................................................................5 The Role of Custom .........................................................................................5 The Role of Statutes.........................................................................................5 Proof of Negligence .........................................................................................7 Medical Malpractice ........................................................................................8 DUTY REQUIREMENT ................................................................................9 Obilgations to Others .......................................................................................9 Obligations to Control the Conduct of Others ...............................................11 Landowners and Occupiers ...........................................................................12 Intrafamily Duties ..........................................................................................16 Governmental Liability..................................................................................17 PROTECTION AGAINST NONPHYSICAL HARM .................................19 Emotional Harm.............................................................................................19 Wrongful Birth and Wrongful Life ...............................................................22 Economic Harm .............................................................................................23 CAUSATION ................................................................................................25 Cause in fact ..................................................................................................25 Proximate Cause ............................................................................................28 1 I. INTRODUCTION TO TORT LIABILITY Tort: (1) a tort is a civil wrong committed by one person against another; and (2) torts can and usually do arise outside of any agreement between the parties. A. Standards of liability (Primary and Vicarious) 1. Policies of Tort Liability a Compensating individuals who have been injured b Determining the social cost-benefit of a given policy c The emphasis on value choice d The emphasis on reason to explain the premises underlying choices 2. Objectives of the Tort System a 1) Be equitable 2) Contribute to the wise allocation of human and economic resources 3) Compensate promptly 4) Be reliable 5) Distribute losses rather than leave them on single individuals 6) Be efficient 7) Deter risky conduct 8) Minimize fraud. 3. Torts law aims to redress harms by weighing following factors, Social Benefit, Economic Consideration and Forseeability: a Social Benefit: courts want to deter risky conduct, but not a socially beneficial activity. 1 i.e. Hammontree v. Jenner - court held that an epileptic who drove his car through a shop is not strictly liable b/c driving is a beneficial activity – he took medicine and reduced risk to reasonable level. b Economic Considerations: court determines who is best suited to absorb the costs. 1 Illustrated in vicarious liability/respondeat superior (includes costspreading and insurance coverage) a. respondeat superior – Had the defendant been driving a delivery truck for a corporate employer, plaintiffs would have sued the employer and no one would have questioned his responsibility for the actions of his employee. ―vicarious liability‖ 1. The employer is legally entitled to be paid back by the servant for any money he has to pay b. Economic argument 1. It would be inefficient to allow liability to rest solely on the individual (they have no money) or to make society pay for the costs 2. The employee was not required to add into the price of his labor, a reserve for a possible tort judgment, the employer was 3. The idea of spreading the risk among all possible customers 4. ―Liability should be at least partially a function of the ability to pay‖ c. As a means of deterrence 1. The employer, concerned about liability, will police his employees and make compliance with rules a condition of employment d. Employees outside the scope of their employment 2 c II. 1. Employers are rarely held liable for the torts of their employees acting outside the scope of their employment except in cases where the employer a. Negligently hired the employee in the first place b. Retained the employee after 1 or more incidents that should have warned the employer of the dangerous habits of the employee c. Foster v. The Loft - The jury held that the owner failed to take reasonable steps to screen the employees who would be dealing most closely with the public in an atmosphere that was ―volatile‖ and in which ―there was a high potential for violence‖ 2. In cases of independent contractors, employers are now being held liable especially when they hire the contractor for an inherently dangerous task. a. Maloney case, an owner of a car was found liable for brake failure (the fault of a mechanic) because they were responsible for the maintenance of the property and the selection of the contractor Forseeability: courts weigh the forseeability of the harm. NEGLIGENCE A. Reasonableness of Risk 1. Occurs when: a D‘s conduct imposes an unreasonable risk upon another b Which results in injury to that other. c Note: The negligent tortfeasor‘s mental state is irrelevant. 2. Prima facie case: The components of a negligence action are: a Act or omission of the defendant b Duty owed by the defendant to exercise due care c Breach of duty by the defendant d Causal relationship between the defendant‘s conduct and harm to the plaintiff (both actual and proximate cause) and e Damages 3. Standard of care: The defendant is bound only to use that care that is commensurate with the hazard involved. The risk, reasonably perceived, defines the duty owed. The standard is objective and defined as the ―reasonable person‖. a Exceptions to this rule include: 1 Unusually skilled or perceptive person - Fredericks v. Castora (1976) Court refused to hold the truck drivers to a higher standard of care than ordinary motorists a. 2nd Restatement of Torts § 298 – ―the actor must utilize with reasonable attention and caution not only those qualities and facilities which as a reasonable man he is required to have, but also those superior qualities and facilities which he himself has.‖ 2 Emergency situations - Rivera v. New York Transit (1991) - A person in an emergency situation cannot reasonably be held to the same accuracy of 3 3 4 5 6 judgment or conduct as one who had full opportunity to reflect, even though it later appears that the actor made the wrong decision. Children - Held to the standard on conduct reasonable for persons their actual age, intelligence and experience a. Conclusive presumption (i.e. children under 6 cannot be found negligent. Most courts now use 7 as the age) b. Rebuttable presumption for ages 7-14. Note: Does not apply to vehicles (adult standard of care used) Disabled persons, unless, as in Roberts v. Ramsbottom, a stroke victim is still conscious and acting with average metal ability. Insane people (vicarious liability on their caretakers) Doctors (held to the standard of the profession) Holmes on reasonableness - ―The Common Law‖ - When a person has a distinct and recognizable defect making certain precautions impossible, he cannot be held liable - Blind man cannot be expected to see - Insanity to an extent The Reasonable Person – Harper, James, and Gray - Represents, but does not excel in foresight, caution, judgment, self-control, altruism, and the like – the general average of the community. Capable of making mistakes and errors of judgment only to the extent that these behaviors model the normal standard of community behavior. Represents the general level of moral judgment of the community. It does not hold him liable for unintentional injury unless he had the capacity to have foreseen the danger B. Hand Formula 1. If probability of an accident (P) x cost of accident (L)  Burden of taking precautions (B), then party that has not employed a precaution is liable for negligence. An attempt to incorporate economic considerations with forseeability. a Adams v. Bullock kid was electrocuted swinging a wire. P was so low, defendant not liable for failing to take precaution. b Greene v. Sibley kneeling mechanic; PxL was higher than B, but it would be absurd and against public policy to apply hand formula here according to Jones – make everyone announce their intentions. c Braun case, carpenter electrocuted by worn-off wire casing, P x L high, defendant liable for not taking precaution. d Carrol Towing bargee not on board, PxL greater than B, liable for untaken precaution. e Using cases based on negligence and the hand formula – there would be no negligence since the cost for the precaution was more than the probable damage 1 Krayenbuhl - A group of children were playing on a railroad‘s unlocked turntable. One child, the plaintiff‘s, leg got caught off. Court ruled that benefits of machinery outweigh the danger and should have unrestricted use up until this is no longer and the public good is at stake. There are ways to make a machine 100% safe, but they take away from its utility 2 Note: In strict liability, even if you did not take that cost, you would be liable 4 a. Mark Grady – Theory of Strict Liability within the Negligence Rule - It is impossible to engage in any high-repetition precautionary behavior without an occasional lapse. People try to respond to this by creating an efficient rate of error. Courts should take this into account, but instead they assess every penalty C. The Roles of Judge and Jury – 1. Judge typically instructs the jury about the law so that they can decide if it‘s negligence per se or if the Hand Formula applies. 2. Baltimore v. Goodman (did not check for train) vs. Pakora v. Wabash (checked but could not see train); judge decides in former, but jury should decide in latter case because it‘s not clear if conduct was negligent. 3. Andrews v. United Airline jury allowed to decide facts b/c not clear if conduct negligent – weigh untaken precautions, jury familiar with subject. D. The Role of Custom 1. A common practice or usage may establish due care (dependant on its ‗reasonableness‘) in cases of negligence. 2. When proof of an accepted practice is accompanied by evidence that the defendant conformed to it, this may establish due care. (Bennett v. Long Is.) 3. When proof of a customary practice is coupled with showing that it was ignored and that this departure was a proximate cause of the accident, it may serve to establish liability. Levine v. Russell Blaine Co. 4. The practice must be practical in operation and be ready to be employed. 5. Note: Custom does not establish negligence but makes it a jury case. A jury must find it reasonable for it to be a conclusive test of negligence. Holmes – what usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence. a The test of negligence is what reasonable people would do in similar circumstances. Custom then replaces this need to answer the test. = A ready made collection of what people may do in like circumstances 6. The absence of custom does not mean that failure to take care does not prove negligence (TJ Hooper case) 7. Failure to match custom does not necessarily mean that there is negligence 8. Note: If an industry adheres to a single way of doing something, the court may be wary of the plaintiff‘s assertion that there are safer ways to do it. If the plaintiff can show a feasible alternative, the fact that it may not have been in use anywhere may suggest that it was unreasonable for the defendant to have been aware of it. If the custom involves a large fixed cost, there may a social impact that the court determines unreasonable. E. The Role of Statutes 1. If a statute aims to correct a harm, and failure to comply with the statute results in that harm, then failure is negligence per se. 2. Most states treat the violation of a statute as negligence per se (the violation of the statute in and of itself does not constitute negligence – negligence is for the jury to decide). Restatement § 286. a Test for negligence per se 5 3. 4. 5. 6. 7. The person complaining is in the class of the people that the statute was aimed to protect 2 The harm caused be of the type that the statute aimed to prevent 3 The violation has to be the proximate cause of the harm (this is for the jury to decide) 4 The omission – the violation of the statute not be excused Role of jury is to determine if statute was violated, cannot relax stat. requirement. Like custom, statutes can also prescribe what is reasonable conduct The unexcused omission of a statutory signal is more than a consideration for negligence, it is negligence. (Martin v. Herzog) Other theories on violation of statutes a Some evidence of negligence b Prima facie evidence of negligence- negligence is established unless the other party offers and excuse that satisfies the jury Since the legislature did not impose civil liability for a criminal action, it is taken as a negative inference that the court did not want to provide for a civil liability. a The court found that in cases when there is no statute, a jury must decide whether the individual acted reasonably. (See Clinkscales v. Carver – a defendant ran a stop sign and crashed into the plaintiff, but claims he cannot be charged since the ordinance to erect the sign had not been enacted and he could not be tried criminally.) b Courts have been unwilling to use statutory violations in cases where the harm that occurred was different from the harm that the legislature was seeking to prevent 1 (De Haen v. Rockwood Sprinkler Co.) A radiator fell down a shaft and killed someone; the contractor who had violated a statute to build a barrier around the shaft was not found liable because the statute was enacted to prevent men from falling and its specs would have still allowed the radiator to fall. a. ―Although the statute has been violated, that violation ―does not establish liability if the statute is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury.‖ 2 Darmento v. Pacific Molassess Co. - Truck driver was following the plaintiff too closely, a violation of the statute. The plaintiff lost control of the car and collided with another. The court ruled that although the statute was enacted to prevent rear-end accidents, it is the most obvious accident of tailgating and other types of accidents also may occur. c Note: Violation of statute can be negligence w/out being negligence per se; since cost of complying with statute is zero (usually), then PL is greater than that. This is not the black letter law. Start by looking at purpose of the statute; if the harm caused not within the statute’s intent, look to the Hand Formula. Exceptions to the general rule of negligence per se - Obedience to a law cannot add to the danger (Tedla v. Ellman). Also, failure to obtain a license is not negligence per se. The court should not meddle in agency standards. 1 6 F. Proof of Negligence 1. The plaintiff bears the burden of proof and the burden of persuasion that defendant‘s conduct fell below the standard of reasonable care 2. Constructive Notice Theory – if defendant had implied notice (i.e. knowledge) of a dangerous condition that caused the injury, then negligence. a Evidence must have existed for sufficient amount of time prior to incident to allow Defendant to discover and remedy it. 1 Negri v. Stop and Shop store was negligent under constructive notice b/c dirty situation had existed for twenty minutes. 2 Gordon v. American Musuem museum not negligent because mess was not visible, had not existed long enough to clean. b If problem is recurring, constructive notice can be established. 3. Actual Notice Theory – if defendant had actual notice of a dangerous condition, then it was negligence. 4. Mode of Operation Rule – if store owner is aware that a particular type of hazard recurs, duty to cope with that hazard arises, no need for notice to establish negligence. a Chiara v. Fry’s Food in self-service restauarant, mode of operation rule applies for negligence for slip and fall b/c recurring hazard. 5. RES IPSA LOQUITUR - (―the thing speaks for itself‖) allows P to point to the fact of the accident, and to create an inference that, even without a precise showing of how D behaved, D was probably negligent. a Example: A barrel of flour falls on P‘s head as he walks below a window on the street. [Byrne v. Boadle] b Four Requirements: 1 No direct evidence of D’s conduct: There must be no direct evidence of how D behaved in connection with the event. 2 Seldom occurring without negligence: P must demonstrate that the harm which occurred does not normally occur except through the negligence of someone. P only has to prove that most of the time, negligence is the cause of such occurrences. 3 Exclusive control of defendant: P must demonstrate that the instrumentality which caused the harm was at all times within the exclusive control of D. (Example: P, while walking on the sidewalk next to D hotel, is hit by a falling armchair. Without more proof, P has not satisfied the ―exclusive control‖ requirement, because a guest, rather than the hotel, may have had control of the chair at the moment it was dropped. [Larson v. St. Francis Hotel]) a. Multiple defendants: If there are two or more defendants, and P can show that at least one of the defendants was in control, some cases allow P to recover. This is especially likely where all of the Ds participate together in an integrated relationship. (Example: P is injured while on the operating table, and shows that either the surgeon, the attending physician, the hospital, or the anesthesiologist must have been at fault, but is unable to show which one. P gets the benefit of res ipsa, and it is up to each individual defendant to exculpate himself. [Ybarra v. Spangard]) 4 Not due to plaintiff: P must establish that the accident was probably not due to his own conduct. 7 c d Evidence more available to D: Some courts also require that evidence of what really happened be more available to D than to P. (Example: This requirement is satisfied on the facts of Ybarra, supra, since the Ds obviously knew more than the unconscious patient about who was at fault.) Defenses to RIL 1 Inspection is no defense 2 Offer alternative explanations for the injury to the plaintiff other than the defendant‘s negligence 3 Show that injuries happen frequently without the negligence of anyone 4 Show that the defendant did not control of the situation or that another person had control. REMEMBER RES IPSA LOQUITOR IS ONLY AN INFERENCE REBUTTABLE BY A JURY 1 Evidence to ―conclusively rebut‖ the inference a. Leonard v. Watsonville – Three doctors were being held under res ipsa loquitor when a clamp was left inside a patient. One doctor testified that he did not use such a clamp and was working on a different area. The other two doctors corroborated his testimony. Since that increased the possibility they would be found liable, the court believed their testimony and dismissed the case against the doctor. 2 Res ipsa loquitor is ―inapplicable in cases where the instrumentality producing the injury or damage is unknown or is not in the exclusive control of the defendant‖. a. Helton v. Forest Park Baptist Church – child was injured in a nursery, there was no evidence of what caused the injury. Only speculation or guess could possible figure out how the injury occurred. 5 G. Medical Malpractice 1. The professional standard: A doctor or other professional is required to have the same skill and learning as average members of the profession and to apply that skill and learning with the same care as is generally exercised by other members of his profession. 2. Same specialty not required - Any doctor with knowledge of or familiarity with the procedure, acquired through experience, observation, association, or education, is competent to testify concerning the requisite standard of care and whether the care in any given case deviated from that standard. (Sheely v. Memorial Hospital) 3. Use of expert witness to prove res ipsa loquitor allowed – Connors v. University. . . It does not matter where the knowledge comes from because the question is that of whether the accident would normally occur in the ordinary course of events. 4. Reasonable patient standard - Informed Consent – doctors must disclose to patients all risks inherent in the proposed treatment which are material, which a reasonable person would take into account in determining whether to have surgery. a Test for informed consent: 1 What are the risks? 2 What would reasonable person want to know? 3 Did any exceptions apply? 8 b c 4 Was the non-disclosure material? Exceptions to providing info to patient: 1 Detrimental Psych. Effect (must inform family though) 2 Great urgency makes it impractical to tell 3 Remote risks (Pauscher v. Iowa risk is 1/150000 – don‘t have to tell of risk) 4 Common knowledge risks 5 Doctor unaware of the risk 6 Patient unable to give consent 7 Note: If patient asks, exceptions are not applicable. a. Korman v. Mallin doctor had duty to provide info to inquiry. Merely identifying a risk does not necessarily provide a patient with information necessary for an informed decision. 1 Kinikin v. Heupel – where a doctor is aware or should be aware that a patient attaches particular significance to a risk, further disclosure may be required 2 By not telling the patient of all medically reasonable alternatives, the physician breaches the patient‘s right to make an informed choice. (Matthies) III. DUTY REQUIREMENT Duty must exist for an action to be negligent. Negligence = ―breach of duty.‖ To establish duty, plaintiff can show that there was a specific duty between parties (special relationship), or that the parties were governed by a more general duty of due care. A. Obilgations to Others 1. There is no duty to act. 2. Exceptions usually arise if: a The victim is deprived of the normal opportunities to protect himself b The defendant knew or should have known of the danger, or c The defendant was able to render assistance without endangering himself. 3. Special Relationships. If a special relationship exists between the parties, then a duty to warn or assist exists. a I.e. 1. Common carriers/passengers, 2. Innkeepers/guests, 3. Possessors of land who hold land open to the public, 4. Persons who have custody of another person under circumstances in which that other person is deprived of normal opportunities to protect himself, and 5. Business relationships. 4. In the absence of duty to provide protection, superior knowledge of a dangerous condition by itself does not establish liability in negligence (Harper v. Herman): a NO special relationship between a social host and guest, (so no duty to warn of shallow water. Jones disagrees – in this case, Hand Formula dictates negligence b/c low L, high B.). 5. Restatement imposes a duty where there is an affirmative act to omit that causes harm a See Randy W. v. Muroc Joint Unified School District – school districts placed affirmative letters in the files of a known child molester. Found liable for negligent misrepresentation and fraud. T 9 6. 7. 8. 9. The duty comes from 2nd Restatement 310 – ―an actor who makes a misrepresentation is subject to liability to another for physical harm which results from an act done by the other or a third person in reliance upon the truth of the representation, if the actor 1 Intends his statements to induce or should realize that it is likely to induce action by the other, or a third person which involves an unreasonable risk of physical harm to the other and 2 Knows that the statement is false or that he has not the knowledge which he professes, and c 311 – One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information where such harm results 1 to the other 2 to such third persons as the actor should expect to be put in peril by the action taken Generally, all persons have a duty to use ordinary care to prevent others from being injured as a result of their conduct (Rowland v. Christian) a Considerations are the 1 Forseeability of harm 2 The closeness of the connection between the defendant‘s conduct and the injury suffered 3 Whether the plaintiff‘s injuries were a foreseeable result of the defendant‘s representation 4 The moral blame attached to the defendant‘s conduct 5 Public policy considerations Defendant’s conduct caused harm - Second Restatement § 321 – one who has done an act and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, is under a duty to exercise due care to prevent the risk from occurring even though at the time, the actor had no reason to believe that his act would create such a risk. a Tresemer v. Barke – patient had an IUD implanted. Years later, the doctor found out that there were risks but did not tell the plaintiff. Defendant and Victim were Co-Venturers. Courts impose a duty to warn and assist upon co-venturers. a Farwell v. Keaton (p. 125): defendant and victim were co-venturers in chasing women (so defendant had duty to assist - not to leave his beaten and bloodied buddy to die in the car). 1 Section 324 of the Second Restatement – one who, being under no duty to do so, takes charge of another who is helpless is subject to liability caused by a. The failure of the actor to exercise reasonable care to secure the safety of the other while within the actor‘s charge, or b. The actor‘s discontinuing his aid or protection, if by doing so he leaves the other in a worse position than when the actor took charge of him.‖ Voluntary Assumption of Duty. If defendant begins to assist, then he assumes a duty to continue giving assistance (p. 129, n. 3-4). b 10 Exception – Volunteer Protection Act of 1997 – personal immunity for volunteers of nonprofit organizations and governmental as long as the harm does not constitute willful misconduct. 10. Defendant Undertakes to Warn or Assist. If defendant undertakes to assist through a promise, then a duty to warn or assist arises. Morgan v. County of Yuba (p. 122, n. 7) sheriff had duty to warn because he promised victim that he would do so. 11. Good Samaritan Law. Every state has some version of this now. (The law indemnifies Samaritan from liability barring willful misconduct.) a Ames Proposal, One who fails to interfere to save another from impending death or great bodily harm, when he might do so with little or no inconvenience to himself, and the death or great bodily harm follows as a consequence of his inaction, shall be punished criminally and shall make compensation to the party injured or to his widow and children in case of death. - Criticized by Epstein, Jones agrees with the idea 12. Duty to Control Others. If defendant had a duty to control others, then also had duty to warn or assist. More on this in Part C 13. Defendant Interferes with Third Party. If defendant interferes with a third party‘s effort to warn or assist, then defendant is liable. Soldano v. O’Daniels (p.130, n.7) bartender liable for preventing third party access to telephone to summon police. 14. Countervailing Interests to the Creation of a Duty a Public Policy outweighs Imposition of Duty. H.R. Moch v. Rensselaer – defendant not liable for nonfeasance of failing to provide water to fight a fire – it would‘ve raised utility rates, which goes vs. public interest. b Auto Passenger Exception. Lego v. Schmidt (p. 145, n. 2) Auto passenger has no duty to warn or assist because could intervene incorrectly. c Victim Engaging in Reckless or Illegal Activity Ronald M. v. White (p. 129, n. 2) – defendant had no duty to intervene in case of minors driving a car after doing illegal drugs. d Foreseeable Harm. If harm to third party was not foreseeable, defendant had no duty to warn third party. Strauss v. Belle Realty (p. 133), defendant power company not liable for non-customer‘s injuries sustained in blackout b/c not foreseeable that non-customer would be harmed. 1 Albala case – liability does not extend to third generations – ―would require the extension of traditional tort concepts beyond manageable bounds‖ a B. Obligations to Control the Conduct of Others 1. Duty to Warn of Conduct - Situations can arise in which those who are charged with the care of others, such as physicians, prisons, parole boards, even lawyers, may have duty to warn about the conduct of that person. a If danger to an individual is foreseeable, duty to warn arises. Tarasoff v. Regents of Univ. of California - defendant psychologist had duty to warn victim that his patient vowed he would kill her. Dissent: duty compromises Dr./Patient relationship. 1 The court uses the balancing of considerations approach a. Forseeability - avoidance of a foreseeable harm requires a defendant to control the conduct of another person a special relationship must exist. 11 b. The risk that unnecessary warnings may be given is a reasonable price to pay for the lives of possible victims that may be saved c. The court must weigh the public importance of safeguarding the confidential character of psychotherapeutic communication with the public interest in safety from violent assault. b Thompson v. County of Alameda (p. 148, n. 5) : no duty to warn when threat not directed at a particular individual – not sufficiently foreseeable. 2. Duty to Control the Conduct of Others - If defendant‘s relationship with another party is in some manner ―regulatory,‖ then defendant may have a duty to control the conduct of that party. a Negligent entrustment – ex. Both an automobile dealer and a person who buys a car for a person who they know to be incompetent can be held liable. Vince v. Wilson 1 Restatement of Torts – one who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them. a. Applies to sellers b Social hosts have NO duty to third parties to prevent minors from drinking alcohol because they‘re ill-equipped to handle liability (standards are stricter on commercial vendors.) Reynolds v. Hicks. c Book Publishers - The 1st Amendment does not provide an absolute defense for publishers against state law civil claims for aiding and abetting the killer in causing deaths. (hired killer used book for killings) d Other Cases 1 Pulka v. Edelman (p. 150, n. 10) Defendant parking garage has no duty to warn pedestrians of danger because garage has no obligation to control conduct of driver. 2 Osborne v. Hertz (p. 155, n. 4) car rental company has NO duty to investigate driving record of renters b/c relationship not ―regulatory.‖ C. Landowners and Occupiers 1. Landowners and tenants have a duty to exercise a certain degree of care to persons on their property; the degree of care varies depending on the following categories. Failure to exercise the requisite degree of care is a breach of duty. 2. Categories of Duty for Landowners (including tenants) a Trespasser: all entrants to land until possessor of land gives them entrance permission  no duty of care, but you can‘t inflict harm on them 1 Can‘t set traps for trespassers – if you have an electric fence, you better have a sign 2 Children - Expect a lawsuit  Restate. § 339 & Holland v. B & O Railroad CB 170: a. A land possesor is liable to physical harm to children trespassing caused by an artificial condition if: 12 b c 1. Possessor knows that the place where condition occurs, children likely to trespass, 2. Condition involves unreasonable risk of death or serious harm to children, 3. Children would not discover the condition or realize the risk of being in that area, 4. Utility of maintaining condition and burden of eliminating it are slight when compared to the risks to children, 5. Possessor failed to exercise reasonable care to eliminate danger or protect children. b. Burlington & Quincy RR v. Krayenbuhl (1902) CB 37 - Attractive nuisance doctrine which protects children b/c of their age from dangers with possessors property that to them may look safe [kids playing on unlocked RR equipment]. 3 General Exceptions: Landowner owes no duty of to make safe, warn, or avoid dangerous activities unless: a. There has been a constant trespass on a limited area b. A trespasser has been discovered c. An attractive nuisance on land attracts children 1. In case of above exceptions, landlord should treat trespasser as licensee. 4 Special Cases a. If sign on your door says ―no soliciting,‖ then a solicitor is a trespasser; BUT once you invite solicitor in, he‘s an invitee. If solicitor sees no sign, then he‘s a licensee. Licensees: Entrants w/ permission  must disclose any known hazards 1 Includes social guests 2 Cannot negligently inflict harm on a guest - Bowers v. Ottenad – a possessor must refrain from dangerous activities that may injure a licensee. 3 Carter v. Kinney (Missouri 1995) CB 165 - If land owner doesn‘t know about a hazard that inflicts harm, owner‘s not liable. P slipped on ice coming from Bible study group. 4 Restatement 330 – regarding social guests as licensees – the guest is expected to take the premises as the possessor himself uses them, and does not expect and is not entitled to expect that they will be prepared for his reception Invitee: Entrants who the land possessor has an interest in such that the visitor has reason to believe that the premises have been made safe to receive her.  duty to exercise reasonable care to protect them against both known dangers & those that would be revealed by inspection. 1 Public invitees – invited to event, open to public, even if event is free 2 Business invitees – not invited as public, but as a businessperson who gives tangible benefit to the owner  Columbia students, store browsers a. The limitations of the duty are determined by the specific time or length of stay, part of premises visited. 13 1. Tharp v. Bunge Corp. (1994) Possessor not liable to invitees for open and obvious dangers (R2 S343) unless the possessor should anticipate the harm despite such knowledge or obviousness. 2. A person remains an invitee only while in those areas or parts of the premises held open to her for the purposes for which she came. If an invitee goes outside the area of invitation, but under consent – she is a licensee. Without consent – trespasser. d Rowland v. Christian (1968 p.176) – D is liable b/c he owes all visitors (licensee or invitees) reasonable care to avoid harm. Plaintiff would normally be considered a licensee anyway (like Carter). D didn‘t warn about broken faucet which injured P. Court attempts to destroy distinctions between licensees and invitees – adopted in 20 states. 1 The court moves from a strict rule to a balancing of considerations (similar to Randy v. Muroc) including a. Forseeability of harm to the plaintiff b. The degree of certainty that the plaintiff suffered injury c. The closeness of the connection between the defendant‘s conduct and the injury suffered d. The moral blame attached to the defendant‘s conduct e. The policy of preventing future harm f. The extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach g. The availability, cost, and prevalence of insurance for the risk involved. Note: The theories of licensees and invitees still apply. But, there is not that much different between the two. Both are protected from active negligence. The standard is the same for known defects. The difference is narrow and goes to defects for which you are ignorant. The licensee cannot sue and the invitee could sue if they can prove that even though you were ignorant, reasonable inspection would have revealed the defect. 3. Landlord Duties to Tenants a Traditionally, a landlord was not liable in tort except for (Sargent v. Ross) 1 Hidden danger of which the landlord, but not tenant, is aware; 2 If the premises is leased for public use; 3 Common areas that are negligently maintained; 4 Negligent repairs made by landlord; b Recently, standard has evolved to impart a normal duty of care upon landlords 1 Putnam v. Stout (p. 178, n. 6) Landlords can be held liable for not keeping their promises to make repairs. 2 Sargent v. Ross (p. 178, n. 6) Landlord liable for failing to exercise due care in maintenance of a stairwell. a. Exception: landlord cannot infringe on privacy of tenants – tenant must call the dangers to the attention of the landlord. 3 Kline v. Mass Ave (p. 179, n. 7), extended the landlord‘s duty to protect its tenants against criminal activity. Court assumes that the landlord can pass on 14 4 the costs. Jones hates this decision – it will eliminate low-income housing options. Criminal Activities of Third Parties a. Ann M. v. Pacific Shopping Center – court found it with the scope of a commercial landlord‘s duty to secure common areas against foreseeable criminal acts of third parties. In taking into account the cost of imposing commercial land owners with the obligation to employ security guards, a ―high degree of forseeability‖ is required to include security guards in the scope of the landowner‘s duty of care. This can rarely be proven without prior similar incidents b. Isaacs – forseeability of harm ordinarily should be determined upon consideration of ―what is reasonable in light of all the circumstances‖ and that the absence of prior similar incidents of crime did not negate the existence of a duty c. Sharon P. v. Arman - An unknown assailant sexually assaulted plaintiff at gunpoint in the 79-car parking garage owned and operated by defendants. No assaults had occurred in the garage for 10 years prior to this incident. Court finds that sexual assault was not foreseeable such that the defendants should have secured the area. Social costs of security guards too high. Rejects theory that underground garages are inherently dangerous 1. An example of the Learned Hand formula as a calculus for duty. But, once the court uses this formula in this way, there is no question for the jury as to reasonableness 2. From Williams v. Cunningham Drug Stores – although juries normally decide what constitutes reasonable care, ―in cases in which the overriding public policy concerns arise, the court determines what constitutes reasonable care.‖ d. Valencia v. Michaud - The plaintiff tenants claimed that their child was stabbed by an unauthorized guest, the adult son of another tenant. They claim that the stabber should have been evicted because his residence violated the lease and management was aware of other incidents with him. 1. The court found that the alleged negligence was not removing the guest, the burden was minimal, and there was notice of the danger 2. The court relying on Sharon P. used a 3-prong test to determine a duty a. The court must determine the measures that the plaintiff asserts the defendant should haven taken to prevent the harm b. The court must analyze the financial and social burdens these measure are c. The court must then identify the nature of the third party conduct that the plaintiff claims could have been prevented had the landlord taken the proposed measures e. Resisting Robbery  Hard Responses are allowed 1. Boyd v. Racine Currency Exchange (1973) – Ct. ok‘d hard response. Robber P‘s wife in front of D‘s store and told teller to open door, he said no and robber killed woman. Ct held no duty to accede to 15 criminal activities. KFC v. Superior Ct. – (1995) CB 167 & SUPP 56 - hard responses are ok D. Intrafamily Duties 1. Spousal Suits: SPOUSES ONLY (must be legal marriage). Virtually all forms of spousal immunity have disappeared today. Spouses can sue each other for intentional or negligent harms. a Either sponsor can recover for loss of consortium as long as there is a complete loss of companionship and intercourse with the injured spouse for same definite period of time. 2. Parent-child suits: Children can sue parents for intentional harm, but not usually allowed for negligent harm. Parent can recover for loss of child‘s services—can recover for economic loss and loss of child‘s companionship. Child cannot recover for loss of parent‘s consortium. a Zikely v. Zikely (SCt. of NY, 1983) CB 189 - There is no cause of action against a parent for negligent supervision of their children in NY. Judgment for child will distort family resources Parent filled tub with scalding water. Unsupervised child fell in and suffered severe burns. b Holodook v. Spencer (cited in Zikely)- Negligent supervision by parent. Court reluctant to allow claim on basis of failure to supervise. Reluctance due to concerns about the possibility that third-party contribution actions could be brought against the parent, which would reduce the child‘s compensations. 1 Note: New York has not extended the Holodook principle to grandparents, school teachers, camp directors, etc. all of whom can be sued for negligent supervision c Goller v. White (Wis. 1963) – the court removed parental immunity except in two instances 1 Where the alleged negligent act involves an exercise of parental authority over the child 2 Where the negligent act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, etc. 3 Rejected by Cal. in Gibson v. Gibson – ―we reject the implication that within certain aspects of the parent-child relationship, the parent has carte blanche to act negligently toward the child‖ a. The proper test is that of a reasonable parent d Problems with allowing children to sue parents for negligence: 1 Financially silly to have money earmarked for child within the family financial context. 2 Possibility of fraud to raid resources of insurance company. 3 Excessive interference in family matters. e Contribution – the issue of parental responsibility can arise when the child‘s guardian sues a third person who in turn seeks contributory negligence from the parent. This can only happen in a case where the child could have sued the parent initially. Barocas v. F.W. Woolworth 16 3. Dominant theme: Courts reluctant to get into family affairs. Policy of not intruding unduly. a However, parent can‘t refuse to give reasonable care to child, i.e. out of religious belief as in Lundman v. McKown (denial of medical treatment to kid b/c of religious beliefs), even if sincere. This is case where autonomy clearly should end. E. Governmental Liability 1. Governmental Tort Liability rests on public policy (the idea that people as a whole cannot be guilty of a tort) a Not only are state and federal governments immune from tort liability, but so are various state and federal agencies (hospitals and schools) 1 ½ the states retain municipal liability a. Torts immunity is limited to governmental or public functions, but not proprietary or private functions 1. Not easy to see the difference b Note: Not applicable when the state sues an individual and the individual then seeks to assert a counterclaim or offset against the state c Police Protection 1 Riss v. City of NY - Linda Riss was being terrorized by an ex-boyfriend who threatened to kill her. She sought police protection twice, but was refused. He hired someone to throw lye in her eye and she was permanently scarred and blinded. She sued the city for failure to provide special protection. a. The court found that it was beyond their judicial power to place a duty of protection and determine how limited police resources should be used 1. Distinguished from: cases where the police have taken responsibility and then expose people to harm or where they make active use of a citizen (Schuster v. City of NY) 2 Cuffy v. City of NY – court stated the general rule to be no tort duty to provide police protection, with the exception of cases of ―special relationship‖ created by: a. An assumption by the police through promises or action of a duty to act on behalf of the party that was injured b. Knowledge on the part of the police that inaction could lead to harm c. Some form of direct contact between the police and the injured party d. The party‘s justifiable reliance on the police d Other Custodial Relationships 1 Schools a. Hoyem v. Manhattan Beach C.S.D. – a 10-year-old student left school during the say and was run over. 1. The court found that the school district owed a duty of care in supervising the child. b. Compare with Pratt v. Robinson, a 7-year-old student was run over while crossing the street after the school bus dropped her off. 1. The court dismissed the complaint against the school district on the grounds that the duty terminated when the child left the bus at a designated stop. 17 c. Educational Malpractice - Peter W. v. San Francisco Unified School District – A graduate of a public high school sued the district for its negligent failure to teach him to read above a 5th grade level. 1. The court ruled that there are no acceptable standards of care in the classroom and that there are a host of factors that determine achievement outside of the formal teaching process. 2. Cases like Donohue v. Copiague U.F.S.D. and Hoffman v. Bd. of Ed. found that courts cannot second guess the decisions of administrators and that disputes can be handled through administrative processes. e Cases where liability was found 1 Friedman v. State of NY – Friedman – plaintiff claimed state was negligent in failing to construct a median barrier. DOT decided 5 years earlier that a barrier should be constructed, but no action was taken. Court found that once they were aware of the dangerous highway condition, repairs must be made within a reasonable time. 5 years was not reasonable. a. Muller – same as above with 3 years (same ruling) b. Cataldo – qualified immunity for discretionary decisions. The study at the time was not inadequate and was consistent with expert opinion at the time. f Liability of Government Officers 1 Judges, legislators, and high-ranking members of the executive branch are totally immune from tort liability for acts carried out within the scope of their duties, even if the acts involve malice or abuse of discretion a. Lower level officers are immune from claims of negligence under federal law (some states) b. Other states make a distinction 1. Discretionary functions – those in which the officer has some element of personal judgment (immunity as long as honest and in good faith) 2. Ministerial functions – required duties, no choice (no immunity regardless of good faith) 2. Federal Tort Claims Act of 1946 a The government waived its general tort immunity for negligent or wrongful acts or omissions by government employees: 1 Exceptions: There is still immunity for intentional torts, strict liability, and discretionary acts by government agents (discretionary – administrative decisions at the planning level) 2 Berkovitz v. United States Berkovitz, an infant, contracted polio from an oral vaccine. His parents filed suit against the US under the FTCA claiming that the Division of Biologic Standards (DBS) had acted wrongfully in licensing the lab to produce the particular vaccine and that the FDA had acted wrongly in approving release of the particular lot of the vaccine that was given to Berkovtiz. The state claimed that this fell under the discretionary function of the govt. a. It is the nature of the conduct, rather than the status of the actor that governs whether the discretionary function exception applies in a given case. (Varig) 18 1. The exception protects only governmental actions and decisions based on considerations of public policy a. The DBS issued a product license without receiving the required data to match it up against regulatory safety standards. This is not protected by the discretionary exception b. The Bureau knowingly released a noncomplying lot of the vaccine that did not comply with the safety standards. This involved no policy discretion and is not protected by the discretionary exception IV. PROTECTION AGAINST NONPHYSICAL HARM A. Emotional Harm 1. There is a movement away from the physical injury requirement a But physical injury manifestations are still required to recover damages b K.A.C. v. Benson - P sued D-gynecologist after learning he had performed procedures while infected w/HIV and had open sores on his hands and forearms. Court dismisses case on the grounds that plaintiff was not within the zone of danger – she did not allege actual exposure 1 Test to establish a claim for IIED, plaintiff must show a. Was in the zone of danger of physical impact 1. Limited to ―apparent, imminent peril‖ a. A remote possibility is not enough b. Reasonably feared for her own safety c. Suffered severe emotional distress 2 Jones completely disagrees with this decision- should be submitted to the jury to find out whether P was in ―zone of danger.‖ a. Dr. only has duty to disclose HIV status if asked. Doesn‘t have to volunteer info. This prevents irrational discrimination in medical field. c Williamson v. Waldman – the court rejected the showing of an actual exposure to HIV in favor of asking what a reasonable well-informed citizen might fear. 1 The plaintiff should get damages for serious and genuine distress that would be experienced by a reasonable person who has a level of knowledge that coincides with the then-current, accurate and available information about the causes and transmission of AIDS. d Falzone v. Busch (N.J.1965) – actual physical impact was not necessary to recover damages for emotional distress. But the main reasons a court supports such a rule are: 1 It was not probable that healthy people would suffer physical injuries when subjected to fright 2 Proof of fear-induced physical injury would be difficult 3 A fear of a ―flood of litigation‖ e Metro-North Commuter v. Buckley – A railroad worker sued his employer for negligently inflicting emotional distress for failing to warn him of the risks of extensive exposure to asbestos in his job. The defendant claimed that he could not allow recovery for emotional distress in the absence of physical injury. The court refused the claim: 19 Adopting a ―zone of danger‖ test which required ―a threatened physical contact that caused or might have caused immediate traumatic harm‖ and 2 Stressing the administrative difficulty in determining when serious emotional distress occurred and 3 The fear of reducing the funds that would be available for recovery by victims who actually suffered harm. f Physical impact is no longer required for NIED as long as you have: 1 You were in zone of danger, but being in zone doesn‘t guarantee recovery. 2 Emotional harm is manifested physically  i.e. psychiatrist diagnosis 3 You sustained a loss  i.e. inability to fly due to fear 2. Non-hazardous cases of severe emotional distress a Gammon v. Osteopathic Hospital (Maine 1987) CB 234 – P can recover for negligently inflicted psychic stress w/o physical injury. D‘s behavior created special circumstances by giving P bag of severed limbs instead of Dad‘s personal belongings. 1 Principle of foreseeability adequately protects against unduly burdensome liability claims  D party could reasonable expect someone to get upset in the circumstance. b Does not only apply to situations involving death and the special sensitivity of families after a death 1 See Nieman v. Upper Queens Medical Group – The defendant negligently reported that the plaintiff‘s sperm count was sterile. The plaintiff sued for severe mental stress and the court upheld the complaint 3. Test for Bystander recovery a A person may recover for emotional distress caused by injuries to another person. Subject to specific criteria. May recover if witnessed negligent physical injury inflicted on close family member- rigorous guidelines of who is included and who is not. 1 Portee v. Jaffee (NJ 1980) CB 238 – P watches as son struggle & die while stuck in elevator shaft. A parent who sees her child violently die will foreseeably suffer psychological injury. 2 Criteria for Recovery  Dillon v. Legg a. The death or serious physical injury of another caused by the defendant‘s negligence (added) b. A marital or intimate familial relationship between the plaintiff and the injured person c. Observation of the death or injury at the scene of the accident 1. Only a witness at the scene of the accident will suffer a traumatic sense of loss that may destroy his sense of security and cause severe emotional distress d. Resulting severe emotional distress 3 Note: New York has not gone as far as to adopt Dillon and Portee. See Bovsun v. Sanperi (NY 1984) – the court only extends the duty to members of the immediate family who were themselves in the zone of physical danger. The emotional distress had to be ―serious and verifiable‖. 1 20 Except for Hawaii, the bystander rule has been adopted to require something more than the forseeability element. a. Once you decide that bystanders can recover for emotional distress you have to draw some line (restriction to family member) 1. Elden v. Sheldon (Cal. 1988) - Denied recover to an unmarried partner a. Did not want to give the same rights as those given to married couples b. Imposes a difficult burden on the court to figure out whether the relationship was significant and stable c. To limit the number of persons to whom the negligent defendant owes a duty of care b Loss of Consortium – Loss of the benefits that a spouse is entitled to receive, i.e., companionship, cooperation, aid, sexual relations 1 The claim is for emotional distress resulting from this loss 2 Barnes v. Outlaw (Ariz. 1998) – A minister revealed information he learned about the plaintiff during a confidential session a. Court allowed damages for loss of consortium in cases where the injury is purely emotional 1. A marriage can be damaged by emotional trauma 2. Loss of consortium is no longer based on deprivation of services theory c There is no cause of action for indirect psychic injuries unless the P was w/in the “zone of danger” and their injuries resulted from the contemporaneous observation of serious physical injury or death caused by D’s negligence 1 Johnson v. Jamaica Hospital (NY 1984) CB 251 - P sued hospital for emotional distress brought on by negligence when her daughter was abducted from the hospital and not recovered until 4 ½ months later. a. The hospital may have been negligent, but it is not responsible for emotional distress suffered by P. 2 Exceptions - Courts have viewed the mother who is claiming negligent infliction of emotional distress resulting from giving birth as a special case (whether she is conscious or not). d Hawaii cases (Tons of exceptions) 1 Emotional recovery for negligent flooding of a home - Rodrigues v. State – plaintiffs can claim emotional distress from the negligent flooding of their home that they built themselves because a ―reasonable man would be unable to cope with the mental stress of the circumstances‖. 2 Emotional recovery for loss of a dog - Campbell v. Animal Quarantine Station – plaintiffs could recover emotional distress from learning that their dog had died from the negligence of the defendant a. 1986 legislation – recovery for emotional distress from loss of property only if distress resulted in physical injury or mental illness 3 Emotional Recovery to a stepchild - Leong v. Takasaki – The lack of a blood relationship was not controlling 4 21 Recovery to parents who did not witness - Masaki v. General Motors – the fact that the parents did not witness the accident was not a bar to recovery but only a ―factor in determining the degree of mental stress suffered‖. e New York - Jacobs v. Horton Memorial Hospital – plaintiff wanted to recover from emotional distress when a doctor negligently diagnosed her husband as having pancreatic cancer. Court denied recovery on the ground that a duty was owed only to those ―directly injured by the act of malpractice‖. B. Wrongful Birth and Wrongful Life 1. Parents have begun suing when their children are born with birth defects (the child would have been better off not to be born) a Courts have generally denied recovery by the child (wrongful life), but permitted recovery by the parents (wrongful birth) b Unhealthy child: Greco v. U.S. (Nev. 1995) CB 257 - Requirements for wrongful birth claim, as in Greco v. US (p.257)-- mother has claim for wrongful birth b/c no timely diagnosis of terrible defects, but no recovery for child under wrongful life or loss of child services b/c she would have avoided them anyway by abortion. 1 Mother needs to show: 1) negligence; 2) causation: that she would have aborted if she had been given correct info. 2 Parent can recover for what‘s necessary treatment costs & for metal distress brought about. BUT ONLY IF it can be proven that parents would‘ve acted differently if they had known about the defect c Healthy Child: Marciniak v. Lundborg (Wis. 1990) CB 266 (Jones: "important and best case‖ under this category) Involved negligent sterilization of a woman. Couple already had 2 children and wanted no more. Can recover for birth of healthy child due to failed sterilization procedure or failed contraception -recover for costs of raising child. Held not to debase sanctity of life. Can recover: 1 Expenses from unwanted pregnancy, including medical expenses, loss of earnings, etc. 2 Wife‘s pain and suffering. 3 Husband‘s loss of consortium during pregnancy. 4 Costs of raising child. 5 Emotional distress to parents from added expenses and change in lifestyle. Jones says this is maybe too speculative. d Healthy baby v. Deformed baby - Can‘t recover for loss of companionship of healthy child e Unnecessary Abortion: Martinez v. Long Island Jewish Hillside Medical Center (p.264)- ―unnecessary abortion‖ case- told that will be birth defects, she aborts, but then finds out that baby was fine, and abortion against her beliefs. Wife can recover. Jones says should be less damages than in Greco b/c here is alerted to possible problem, so should get second opinion. 1 Burden is on doctor for any retesting or wrong results since patients & society expect correct results a. False negatives are as dangerous here as in AIDS cases b/c of possible harm to the unborn 4 22 C. Economic Harm 1. No other types of damages, only pure economic loss 2. In order for a plaintiff to recover for a negligently caused economic harm, there must be proof that the duty owed was specific to that plaintiff a Privity or close relationship requirement 1 Prudential Ins. Co. v. Dewey – attorneys may be held liable for economic injury arising from negligent representation. There must be a showing of privity of contract or a relationship so close as to approach that of privity a. In this case, the court finds that there was no privity but there was a close relationship 1. Found using Credit Alliance’s 3 criteria for imposing a liability a. An awareness by the maker of the statement that the statement is to be used for a specific purpose b. Reliance by a known party on the statement in furtherance of that specific purpose c. Some conduct by the maker of the statement linking it to the relying party and evincing its understanding of that reliance 2 Glanzer v. Shepard – the court imposed a duty despite the absence of privity because the representations had been made for ―the very purpose of inducing action‖ on the part of the buyer 3 Ultramares Corp. v. Touche – accountants had prepared a certified balance sheet for their clients, but other parties relied on it – the court ruled that the accountants were not liable to third parties who may have relied on the financial information to their detriment. 4 Attorney’s Duty of Care a. On incorrect advice to a client 1. Meeting filing deadlines – the client may have a claim for malpractice if it is possible to show that the action, if filed, had a good chance for success 2. Making strategic choices – the courts are not likely to second guess the attorney‘s decision unless it lacked any plausible justification. An expert is usually needed to show the standard of conduct. a. Clients in criminal cases may have an extension of the requirement (Shaw v. State of Alaska – plaintiff argued that lawyer should have made arguments that would have prevented his conviction – court held that case should fail is the plaintiff was actually guilty of the charges) b. Levine v. Kling – the court held that a criminal defendant suing an attorney for negligence, must show, as part of his tort action, that he was innocent b. The Second Restatement 552(1) – the duty owed to the client 1. One who, in the course of his business. . ., supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. 23 b a. The best default rule for lawyers to protect themselves is ―for your eyes only‖ disclaimer on all material they prepare for their clients so they know that if they show it to someone else who relies on info it‘s the client‘s bad and not the lawyers. Other statutes & Restatement § 552(2)(3) also have created default rules. CB 279 c. Attorney-client relation duty to third parties extended. In Biajanka v. Irving - The defendant drew the plaintiff‘s brother‘s will giving the plaintiff the entire estate. Because of the defendant‘s failure to have the will properly witnessed, the brother‘s property was passed by law to other relatives and the plaintiff only received 1/8 of the estate. The California court affirmed her recovery against the notary. 1. The determination whether a defendant will be held liable to a third party not in privity is a balancing of the following factors: a. The extent to which the transaction was intended to affect the plaintiff b. The forseeability of harm to him c. The degree of certainty that the plaintiff suffered injury d. The closeness of the connection between the defendant‘s conduct and the injury suffered e. The moral blame attached to the defendant‘s conduct f. The policy preventing future harm 2. The ―end and aim‖ was to provide for the passing of the estate to plaintiff – defendant was aware that faulty terms would cause the plaintiff to suffer a loss d. Nonliability of accountants and other providers of information can be justified on the ground that that suppliers of information cannot capture the benefit of their product once it has entered into the stream of commerce. 1. Liability should be restricted when a. The information is the type that is valuable to many potential users b. The producer of the information cannot capture in his prices the benefits flowing to all users of the information c. The imposition of liability to all persons harmed would raise potential costs significantly enough to discourage information production altogether. e. To recover in trilateral cases: 1. Lawyer, accountant, etc. must know that product will be used for particular purpose 2. Third party must rely on product; and 3. Maker must demonstrate that it knows about this reliance. (If no such demonstration, ask if is reasonable to infer that third party can rely on the information -- affirmative answer might suffice for this criterion.) Forseeability that negligence will cause another party pure economic harm 1 People Express Airlines v. Consolidated Rail Corp (NJ 1985) CB 282 - D caused dangerous chemical to escape from railway tank car, thereby causing evacuation and interrupting P‘s business causing economic loss. 24 a. A defendant owes a duty of care to take reasonable measures to avoid the risk of causing economic damages, regardless of the presence of physical injuries, to particular plaintiffs of an identifiable class with respect to whom the defendant knows or has reason to know are likely to suffer damages. 1. Historically there has been a bar for recovery for economic loss without physical damages (an attempt to stop boundless liability). But, now, there are exceptions a. The defendant is only liable for the harm proximately caused b. He must have a duty to the plaintiff c. Forseeability of the plaintiff i. By the type of persons comprising the class ii. The certainty of their presence iii. The approximate numbers of those in the class iv. The economic expectations disrupted v. NOT employees or concessionares d. The extent to which the defendant knew or should have known the consequences of his negligence b. Extended to hold the following liable: auditors, surveyors, termite inspectors, engineers, attorneys, notary publics 1. Here, the defendants, by virtue of their special business have particular knowledge or reason to know that others would be economically harmed by negligent conduct a. Knowledge establishes duty and proximate cause 3. Recovery in Tort v. Recovery in Contract a Jones notes that many of these economic loss cases could be brought in contract, not in Tort. 1 In bilateral cases, should keep the parties in contract. 2 When no contract between parties, must bring suit in Tort V. CAUSATION Note: You must be able to prove both actual and proximate cause to find a defendant liable A. Cause in fact 1. The ―but for‖ rule – if the injury to the plaintiff would not have happened “but for” the act or omission of the defendant, such conduct is the cause in fact of the injury (an attempt to tie D‘s conduct to P‘s harm in an almost physical/scientific way) a Plaintiff’s Burden of Proof – the plaintiff must prove that more likely than not, the defendant was a substantial factor in bringing about the result (probability not certainty) 1 Stubbs v. City of Rochester - The city's negligent intermingling of drinking water and sewage water possibly caused the plaintiff to contract typhoid fever. a. In the presence of multiple possible causes, plaintiff only has to establish facts such that it can be said with reasonable certainty that defendant's action was the direct cause of the injury. 25 2 b c No proof that darkness caused fall/that stairs were used in proper manner - Wolf v Kaufmann - Neighbors heard thud, found neighbor dead at foot of dark and unlighted negligence. a. Compare Hinman v Sobocienski - inference sufficient, no need for direct causation 1. Tenant recovers on inference of causation since it‘s reasonable to infer that when a resident is found injured at bottom of dimly lighted staircase, the dangerous condition of staircase ―more likely than not played a substantial part in the mishap.‖ Loss of opportunity 1 Most courts have used the probable approach to causation (50% of more) = 100% recovery 2 A plaintiff may show the negligence of defendants by proving that it is more probable than not that defendants reduced the opportunity to avoid harm – Falcon v. Memorial Hospital – Defendant did not insert an intravenous line that would have given the decedent a 37.5 percent chance of survival. The court determined that if there is a substantial opportunity for survival (including probability of under 50%) and the defendant has destroyed it, he is liable for that loss. Overturned by statute in Michigan 3 Rejected by Fennell v. Southern Maryland Hospital Center, Inc, Court denied all recovery in a case in which the plaintiff had shown that the hospital deprived the decedent of a 40 percent chance of survival. 4 Also rejected by Kramer v. Lewisville Memorial Hospital - The court felt that there must be a direct showing of cause and not just a showing of lost opportunity, otherwise they would have to award damages to those who survived despite their lowered chance of survival. Unquantified enhanced risk 1 No recovery for enhanced risk unless there is a reasonable medical probability – Mauro v. Raymark Ind. – Plaintiff was exposed to asbestos, suffered injury from exposure also causing an increase in risk of lung cancer. a. Restatement 912 – When an injured person seeks to recover for harms that may happen in the future, he is entitled to damages based on the probability that the harm will happen and its seriousness if it does. 1. Court removed the statute of limitations and single controversy doctrine in Ayers, but did not allow the enhanced-risk doctrine a. Only allowed medical surveillance expenses and emotional distress i. Theer v. Philip Carey – in order to recover for medical surveillance, a plaintiff must show discrete and direct exposure to a toxic substance and have suffered an injury or condition related to that exposure. The risk of cancer must be limited and related specifically to that exposure ii. So that the plaintiff will not receive damages for something with no proof of its likelihood b. General Motors Acceptance Corp. v. Layton – no damages for a prospective arthritic condition unless its occurrence was a matter of reasonable medical probability 26 d Establishing causation through expert testimony 1 Daubert established a new rule a. ―If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, etc, may testify‖ e Joint and Several Liability 1 P can sue multiple Ds together or separately & recover the full extent of the damages against either one. 2 or more tort-feasors can act in concert to produce a single injury or separately.  i.e. drag racers. a. Jones: if you are a joint tortfeasor, you will be held as a guarantor of the others. b. Several – each tortfeasor is responsible for his/her individually apportioned share of P‘s injury 2 Summers v. Tice (Ca. 1948) CB 325 – You don‘t have to prove concerted action to recover joint & several liability. Ds both negligently fired in P‘s direction. P was hit by one of the shots. If both defendants act negligently and their actions bring about plaintiff's harm, they are both liable for the whole damage whether they are deemed to be acting in concert or independently. 3 Garcia v. Joseph Vince Co., (Cal.1978) CB 328 - Plaintiff was injured by a defective saber but could not identify which of two manufacturers had made the defective saber. The case was dismissed. Jones: This is just like Hancock. You can not use a probability argument to identify a tortfeasor. 4 Basko v. Sterling Drug, Inc., (2d Cir.1969) CB 328 - Plaintiff was blinded after taking two drugs manufactured by the defendant, but did not know which drug caused the blindness. Consequently the "but for" test of causation could not be used in this case. Instead, the causation element would be satisfied if plaintiff could prove that defendant's negligence was a "substantial factor" in producing the harm. 5 Rules a. Shifts the burden of causation on the defendant; each must absolve himself b. Applies only when there is no evidence as to which of the possible defendants is responsible for the injury c. Both defendants must be negligent here 6 Recent Changes a. Defendants can obtain contribution from each other in proportion to their fault (Comparative negligence) 7 Alternative liability a. Defendants will be forced to speak and reveal the responsible party unless they will be held jointly and severally liable 1. But in these cases, the defendant must have better access to information than the plaintiff and that 2. All possible tort-feasors be in court 8 Concerted action 27 a. Provides for joint and several liability in cases where part or all of the defendants have an understanding to participate in a common plan to commit tortious acts f Market Share analysis - the imposition of liability on a group of defendants, all of whom are shown to be negligent based on their respective shares of the market. 1 Hymowitz v. Eli Lilly & Co., (NY 1989) - Plaintiff's alleged that they were injured by DES ingested by their mothers during pregnancy. They sued the DES manufacturers even though identification of the specific drug that caused the injury was impossible. a. The court granted several liability under a market share theory based upon the national market because this will apportion defendants' liability roughly equal to the injuries that they caused. 2 Likely defendant? – Shackil v. Lederle Laboratories, (N.J.1989) CB 340 Market share liability was not imposed on manufacturers of DTP vaccine. There were 3 likely candidates & was stronger than the others. Public policy would be subverted by allowing market share liability for producers of vital vaccines. g Joint Tort-feasing Categories 1 Agency (i.e. respondeat superior)  always joint & several a. Actor is always responsible & boss is always vicariously liable for hiring action 2 Concerted action (i.e. drag racing, unruly mob)  always joint & several a. Behavior of 1 actor is contributive to the whole 3 Indivisible injury (i.e. negligent entrustment) sometimes only several; involves enormous # of cases 4 Alternative liability (Hymowitz & market share)  sometimes several h Environmental Liability and the Tort System, Robert L. Rabin 1 Problems of Identification: a. Issue of whether the victim actually suffered identifiable harm that can be isolated from the everyday risks of living; b. Identification is usually a costly enterprise that relies on types of evidence and probability judgments which can be regarded as illsuited to traditional resolution through the adversary process. 2 Problems of Boundaries: a. The challenge of unconfined liability intrinsic to many environmental harms; b. Thousands of possible victims of toxic harm c. The intrinsic vagaries of chemically induced diseases that introduce bizarre pathologies that are costly to treat and raise intergenerational concerns 3 Problem of Source: a. Frequently, environmental harm is a consequence of the aggregate risk created by a considerable number of independently acting enterprises. B. Proximate Cause 1. The proximate cause requirement is a policy determination that a defendant, even one who has behaved negligently, should not automatically be liable for all the 28 consequences, no matter how improbable or far-reaching, of his act. Today, the proximate cause requirement usually means that D will not be liable for the consequences that are very unforeseeable. 2. 29