Torts Outline
I. Accidental Injury
A. Accidental and Intentional harm
Vosburg v. Putney (borderline b/n accidental and intentional tort) o Wrongdoer is liable for all injuries resulting directly from his wrongful act, whether or not they’re foreseeable. White v. University of Idaho Like Vosburg, not in a situation where touching was required or expected (must be context-sensitive) o Why have the eggshell plaintiff rule? 1. Makes sure people receive compensation for their injuries. 2. INFLUENCES INCENTIVE--Deters people from intentionally harming others and stronger incentives to act and behave safely. (i.e. take into account the consequences of their actions) Garratt v. Dailey o Moving a chair while someone is in the process of sitting down is battery and a wrongful act. Dailey caused Garrett to hit ground. o The defendant is liable for unforeseeable damages he causes while committing a wrongful act. Daugherty v. Stepp o In torts, not necessary to intend to be on someone else’s land; only necessary to be where you are If ruled other way, Ps would have to prove D’s state of mind (whether or not D knew who owned land) Nominal Damages: what P is entitled to when a D did something that would render a tort, but the plaintiff did not suffer any damages Quiet Title Action: action where someone who would normally be the plaintiff in a case can be the defendant Hammontree v. Jenner o Jenner had epileptic seizure and crashed into P’s bike shop, causing injuries to Maxine Hammontree o Causation alone was not enough o D acted reasonably (he hadn’t had a seizure in 18 yrs), so not liable
B. Liability for Negligent Harm 1. The Emergence of Negligence
Strict liability is based on causation, not fault Arguments for negligence: a. some things that rational people will do are risky and still justifiable b. some risks are worth it even when they may harm other people (litmus test: suppose all the risks could be borne by one person, would it be worth it?)
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The Thorns Case o Criminal and civil liability are separated, especially in strict liability Possible to cause something and be civilly liable w/o having criminal mind Weaver v. Ward o 2 important ideas to take away from this case 1) If D did everything in his power toward extraordinary care, maybe he’s not liable (precursor to negligence) 2) ????????? Forms of Action o WRIT SYSTEM WAS DESIGNED TO FOCUS CASE ON ONE PARTICULAR QUESTION AS EARLY AS POSSIBLE sacrificed flexibility for simplicity o Trespass (technically Trespass on the Case) deals w/ direct harm o had to use case if harm was indirect (A pushes B, B falls on C, C knocks over D, D sues) Negligence-based liability Scott v. Shepard – squib thrown around in marketplace o Judge Blackstone says he should have brought Writ of Case instead If voluntary actions of intermediate people, then actions become indirect and it has to be case Guille v. Swan o Swan sues Guille because Guille lands in Swan’s farm in hot air balloon and causes damages o Action of trespass => don’t have to prove negligence Law changed in England so you didn’t have to prove whether harm was direct or indirect, you just had to prove negligence Brown v. Kendall – dog fight, stick over shoulder o General Rule Shaw announced: Behave reasonably under the circumstances NEGLIGENCE DEFINED o Technical legal meaning: the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation
2. The Idea of the Reasonable Person
Plaintiff must show duty, breach, causation, and damage o Duty: 3 Questions What was the standard of conduct that applied to the D? Is P entitled to enforce duty? What did D do and did that constitute a breach? o Breach: Did the D’s conduct, whether by act or omission, fall below the applicable standard of care? o Causation: Was the D’s failure to meet the applicable standard of care causally connected to the P’s harm? (causation in fact & proximate cause) o Damage: Did the P suffer harm? 2
Vaughan v. Menlove – haystack burns down, idiocy is no excuse for negligence o Objectivity: don’t think about this particular person; think about the average reasonable person Roberts v. Ring – old man hits boy while driving o If person is old or accident-prone, should take more precautions Objective standard provides this incentive o Bottom Line: Standard must be objective o Children are held to a level of reasonableness appropriate to their age Roberts not held contributorily negligent Who is in better position to take precautions to avoid injury? Why reasonable person standard? o Difficult to apply subjective standard, hard to det. if someone is lying o Guest statutes-If P is suing D for a car accident and D was just a guest (not a paying customer) of the P in the car, P can only sue if D was grossly negligent. Daniels v. Evans - 19-year-old riding motorcycle is involved in accident and dies o Special rule for children as long as they’re involved in childlike activities o Negligence per se = negligence due to the violation of a public duty (e.g. high speed driving) o Regulatory rules differ from standard rules in 2 important ways: Enforced differently Rules seek kinds of remedies other than damages
3. Standards of Care a. Cost and Benefit
Hand formula o Liability exists if B < PL where B = burden, P = probability of loss, L = injury o 2 virtues: (1) Presents a way to do things systematically; (2) Shows how difficult it is to determine the factors needed to do things systematically o basically assumes precaution will prevent loss (may just reduce likelihood of loss) Eckert v. Long Island RR - P rescued young child on train tracks, but P died o Contributory Negligence? What is to be gained by doing this and how likely are you to gain it What is to be lost by doing this and how likely are you to lose it? United States v. Carroll Towing Co.: 1 of 5 most important tort cases o Issue: Was there a necessary precaution to have a bargee on the barge? o To determine negligence, we need to know what injury could have been prevented by a bargee, how much would it cost to put the bargee there, how much would it cost if the bargee were not there, and what is the probability of the injury o Hand formula in this case
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Good application – show it’s impossible to apply exact numbers to the variables involved B = salary of bargee, P = prob. of loss, L = lost cargo o safety precautions can sometimes produce costs by interfering Lyons v. Midnight: no more sudden emergency doctrine What are comparative incentive effects of negligence v. strict liability? o both create incentive to take right level of precautions o strict liability will not cause people to take more precaution, but will cause people to pay more o activity levels of strict liability tortagenic activities are done less (unlike negligence, where you do activity as much as you want as long as you take due care) Marginal Relief: if additional $100 in additional expenditure produces $150 of safety, the expenditure is worth it o but not worth it if first $60 produces $120 of safety and the remaining $40 produces $30 of safety (i.e. you word spend the $60, but not the full $100) o you don’t see margin relief in cases because it makes D look heartless on where they stopped taking the precautions Lyons v. Midnight Sun Transportation Services, Inc. (Alaska 1996) o P appeals: Appellate court rules that courts should not give the “sudden emergency doctrine” instruction to juries any longer; however, it did not matter in this case this doctrine is redundant and confusing in comparative negligence systems (originally used to nibble away at contributory negligence) Sudden emergency doctrine = ―If, in an emergency, a person acts as a reasonably careful person would act in a similar emergency, there is no negligence even though afterwards it might appear that a different course of action would have been better and safer.‖ Andrews v. United Airlines-P struck by briefcase falling from overhead compartment o D never showed inserting nets would be prohibitively costly or undue hindrance to passengers – summary judgment reversed and case remanded o must be careful in telling jury that you purposefully took one precautionary step but not the next step because of cost-benefit analysis o Common Carrier Doctrine-b/c of special hazards of trains (and planes), it is rational for railroads to pay special attention
b. Custom
Titus said custom is key to negligence; Mayhew said custom doesn’t matter; and T.J. Hopper said custom can be used to help determine negligence, but the courts—not a specific business—decide what is negligent. (thesis, antithesis, synthesis) Titus v. Bradford, B. & K. R. Co – wire used to secure RR car came undone o “reasonably safe” means safe according to the usages, habits and ordinary risks of the business; therefore, D was reasonably safe (custom = key to neg) 4
Mayhew v. Sullivan Mining Co. – D fails to provide railing next to ladder-hole o ―It would be no excuse for a want of ordinary care that carelessness was universal about the matter involved, or at the place of the accident, or in the business generally…‖ The T.J. Hooper – tug boat not equipped with radios, lost cargo in storm RULE: the custom is relevant and evidence of good behavior, but it’s not dispositive MOST JURISDICTIONS FOLLOW THIS RULE Trimarco v. Klein – updating custom o guy lives in apartment is cut by broken shower door that was made of shattering glass, instead of tempered glass (custom) o Court ruled evidence of custom is admissible, but not conclusive Fonda v. St. Louis City – D has way of doing thing, but abandons custom once o RULE: Plaintiffs can’t use defendants’ own normal customs Medical Malpractice o negligence is based on custom; o judges and juries don’t understand intricacies of medicine; can’t apply simple reasonable man standard o Problems underlying all of medical malpractice the setting of customs relies on the idea that medical professionals are looking out for the best interest of the patient. is there something wrong on the doctor’s side or is patient’s illness incurable? continued illness doesn’t constitute malpractice on own o functions like tax—little correlation b/n actual malpractice and being found liable. (provides incentive to reduce activity level) Lama v. Borras o Three questions must be answered to show negligence 1) What is the custom? 2) Did D’s conduct deviate from the norm? 3) Did D’s actions CAUSE injury to P? o MEDICAL MALPRACTICE NEGLIGENCE IS BASED ON CUSTOM Brune v. Belinkoff – Deals w/ and REJECTS STRICT LOCALITY RULE o New Bedford Dr. gives different dosage of med than NY/Boston Dr. o Lower court gave strict locality rule; Appellate court overruled, holding nationwide standard of care mattered o Gave rise to multiple schools of thought idea if a substantial number of physicians do something different for a reason, it will be considered an acceptable level of care fossil remains of strict locality: o ―a doctor must use that degree of skill and learning which is normally possessed and used by doctors in good standing in a similar practice in similar communities under like circumstances‖ Helling v. Carey – glaucoma test has 96% false positive rating o physicians customarily didn’t give glaucoma tests to people under 40 for valid reason, yet court disagrees o COURT DEPARTED FROM CUSTOM STANDARD IN MEDICAL MALPRACTICE (stuck in Harrison’s head since law school) 5
Canterbury v. Spence – lawmaking case about DUTY TO DISCLOSE o medical expertise determines 1% chance of paralysis patient’s decision whether or not to take the risk point of disclosure is to allow patients’ autonomy to determine whether or not to make a risk based on individual idiosyncrasies o RULE: doctor can be liable if surgery went well, but patient suffers after doctor didn’t disclose the pertinent risk RISK v. UNCERTAINTY o Frank Knight (econ professor) makes distinction b/n risk and uncertainty there are some situations in which you do things when you’re ignorant of what’s going to happen, but you have good knowledge of odds of certain outcomes roulette, blackjack, flipping a coin, etc. = risk if you don’t know how many cards are in the deck or don’t know how many bullets are in the gun (in Russian roulette) = uncertainty OBJECTIVE v. SUBJECTIVE standard for disclosure o objective = risk is big enough that people would want to know about it o subjective = risk is big enough that the individual in question would want to know about it o needs to be objective, otherwise you open door to P lying about risk aversion o 2 problems with objective test: 1) giving up autonomy (you w/ all your idiosyncrasies don’t get to make decisions) 2) paradox that if you really take seriously the objective standard, then the requirement of disclosure won’t add anything to a general negligence standard Consent/disclosure exceptions 1) unconscious patient 2) medical reason narrowly defined (if fear induced by disclosure would prevent patient from undergoing necessary surgery) o Causation problem in disclosure o P must show he wouldn’t have had surgery if he knew about the risk Objective Test - strong incentive to lie and hard to sort out lies o Assume physician is making decision based on avoiding liability and judges and juries don’t make mistakes. o if benefits exceed costs, negligence standard says perform surgery o if disclosure isn’t made, it doesn’t matter (reasonable person would make decision to have surgery) o you would never have to disclose anything to patient as long as reasonable person would have surgery o if legal system were completely transparent, there would be no difference b/n negligence standard and objective test of risk disclosure o Truman v. Thomas - must accurately describe the benefits as well as costs o dr. has pecuniary incentive to recommend treatment, tort incentive not to o doctor held liable for not telling patient about benefits of treatment
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c. Rules of Conduct Other than the Law of Tort
Negligence per se = negligence as a matter of law o Restatement § 14: An actor is negligent, if without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect. o Varying strength the doctrine of negligence per se can have prima facie – one side has enough to win unless the other side comes up with more shifts the burden to the other side noncompliance with a statute is prima facie proof of negligence 190 proof version – the other side can’t come back; case is over o the reasonable person obeys statutes (2 practical consequences) 1) the legislature takes the question away from the jury 2) the legal rules get more determinate Thayer, Public Wrong and Private Action o D leaves his horse unhitched and it injures P o there is an ordinance that prohibits leaving horses unhitched before the ordinance, the P would have to prove D was negligent (a reasonable person would not left his horse unhitched in D’s circumstances) after the ordinance, the D is ―negligent per se‖ meaning he’s negligent b/c he didn’t obey the law in this matter and P does not have to prove a reasonable man would not have left his horse unhitched in similar circumstances Clinkscalses v. Carver - ran stop sign (question of who can best take precautions) o 2 rationales idea that there has been some official judgment about what is or is not reasonable behavior reliance–people should be able to rely on others acting responsibly Osborne v. McMasters – D sells a deadly poison to P’s intestate w/o labeling it ― o it is immaterial whether the duty is one imposed by the rule of common law requiring the exercise of ordinary care not to injure another, or is imposed by a statute designed for the protection of others Gorris v. Scott (p. 230) – statute not designed to prevent harm that occurred o P relied on law that required barriers b/n animals on ship didn’t deal w/ animals being washed overboard; dealt w/ diseased animals Therefore, no negligence per se in this case Wawanesa Mutual Insurance Co. v. Matlock – analogous to Gorris o D sold cigarettes to kids in violation of statute; kids started fire while smoking that caused $100,000 in damage o Court held to statutory right of action (i.e. no negligence per se) o question arose b/c statute of not giving cigarettes to children was passed in 1891-is the corresponding risk one of health or fire? 7
no uniform answer on whether or not you date the statute (consider the information known at the time the statute was passed) courts apply subjective standard of what risks the legislators were trying to prevent, or what a reasonable legislator would be thinking Martin v. Herzog - D struck P’s vehicle in dark, killing P; P driving w/o lights o Rule: The unexcused violation of a statute designed to promote safety is negligence per se, and may or may not be contributory negligence (must show causation still). Brown v. Shyne – forget about negligence per se in licensing requirements o man performs back adjustment without a license to practice medicine o statute is concerned with people who screw up in law or medicine b/c they’re not properly trained, not b/c they merely failed to fill out paperwork legal norms have purposes - sometimes law can operate even if purpose doesn’t o Rule = legal provision that are clear but don’t have a good match-up with purpose (eg 55 mph Speed Limit) o Standard = legal provision like the concept of negligence that are vague but always align w/ purpose (e.g. drive at a safe and reasonable speed) Tedla v. Ellman (pg. 234-235) – walking facing cars example o Rule is being changed into standard (do what’s safe) o legislature had turned standard into rule, but tort law recognizes there should be exceptions to this rule Ross v. Hartman - D left keys in unlocked car, criminal stole care and ran into P o Two problems from these cases keep two distinct problems distinct (problem of the intervening cause) Negligence per se problem (law prohibits leaving keys in car) o court holds P liable – fairer to hold him responsible for the harm than to deny a remedy to the innocent victim 2 important things in 3rd Party Claims: 1) What’s the scope of the risk being dealt with by regulatory requirement? 2) ????? Uhr v. East Greenbush Central School District – school scoliosis case o P sued D for failing to comply with statute and not finding the disease o if statute doesn’t specifically state whether violation permits civil liability, the court asks 3 questions in determining implied cause of action: whether the P is one of the class for whose particular benefit the statute was enacted whether recognition of a private right of action would promote the legislative purpose; and whether creation of such a right would be consistent w/ the legislative scheme o court concludes that P satisfies the first 2 parts, but fails on the third requirement
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4. Litigating Negligence
a. The Roles of Judge and Jury
In tort cases, juries do two things: o Questions of fact narrowly conceived (e.g. did this person get out of the car?) o Application of law to fact (jury is making a normative judgment—what should have the person done in the situation?) General standard for negligence is usually applied by juries Holmes didn’t like juries applying law o Common Law - gradually over time the standard of negligence would become more and more rule-like (courts would precipitate out the law, making it more determinant) Baltimore and Ohio RR v. Goodman (1927) - guy in truck gets killed by train o Holmes said you must stop and get out of the car (―Stop, look, and listen‖) or you’re contributorily negligent o Holmes does 2 things at once: takes questions from juries makes tort law more rule-like o Harrison point out weakness of Holmes’ rule-like approach there are exceptions—sometimes not a good idea Pokora v. Wabash (1934) – failing to stop, look, listen not enough for dir. verdict o THIS IS A STANDARD, NOT A RULE (i.e. failing to stop, look, and listen may be negligence in future cases, but it’s not negligence per se— must be determined case by case) SC stopped doing it’s own tort law in 1937 (Eerie Decision) Jewell v. CSX Transportation, Inc. - KY has rule-ized Holmes’ general concept o the intersection had no light or cross-bars; cross-bars and lights are required only at extra-hazardous intersections o An extra-hazardous intersection is one where your view is objected by some physical object; no physical object in this case, therefore, P was contributorily negligent for not stopping, looking, and listening. FELA Cases (pg. 256-258) o Two points pattern to what court would do: lower court will not let issue get to jury or overturned jury verdict in favor of defendant; SC would grant cert and overturn, ruling for P every time (Pro-plaintiff justices kept standing up for jury—this issue should go to jury, hoping for sympathy for P) questions of whether state courts have to follow federal procedure when they are applying federal law hindsight bias: tendency to think that something that actually happened was more likely than what didn’t happen (effects both judges and juries)
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b. Proving Negligence
o Res Ipsa Loquitur (the thing speaks for itself) o Is this the kind of accident that when it happens it is usually caused by negligence? (hard part of res ipsa) o Steps to Res Ipsa 1-circumstantial evidence exists 2-accident happened 3-Can you infer the accident occurred b/c of negligence? o Byrne v. Boadle - source of phrase res ipsa loquitur P hit by barrel of flour when he’s just walking by Pollock claims barrels fall only b/c of negligence o 2 primary questions 1-Can we be confident on basis of accident’s happening that it was due to negligence? 2-Can we be confident it was D’s negligence? o VJ Day (Victory in Japan Day) - chair thrown out of hotel window o court refused to apply res ipsa loquitur b/c the D was not responsible for object o res ipsa does not tell you when A is responsible for B’s torts not a source for vicarious liability o What exactly is the question you need to answer in order to say that res ipsa can be inferred? o at least more than half of the accidents must occur due to negligence o Need to know 3 things to infer res ipsa loquitur when there is due care, how likely is accident to happen? when there is negligence, how likely is accident to happen? what’s the rate at which people are negligent as opposed to exercising due care? o Base rate fallacy: people fail to take into consideration base rate most common mistake in determining if res ipsa applies o Medical Hypo: o no false negatives—whenever someone has the disease, they test positive (test must be very sensitive, which means lots of false positives) o accident rate when there is negligence is 100% o false positive rate is 1/10,000 if 1,000,000 people are tested, 100 will be false positives o 1/1,000,000 people has the disease (base rate) o if 1M tested, 1 will test positive and have the disease and 100 will test positive but not have the disease o Colmenares Vivas v. Sun Alliance Insurance Co – Res Ipsa does apply. o man is hurt on escalator when the handrail suddenly stops o focus on first component of res ipsa (hardest component)
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o real question in Colmenaras b/n majority and dissent: Is this a situation in which jurors have experience to be able to apply res ipsa loquitur doctrine? people have enough info in, say, car accidents, to apply res ipsa, but the escalator problem is a different situation o Procedural issues: o it’s important to see res ipsa loquitur doesn’t change the P having the burden of production—it’s a way to meet that burden o res ipsa loquitur is used to determine if P has a prima facie case (most likely ruled on following P’s case in D’s motion for judgment nov) o Imig v. Beck (p. 267) – car being towed fell and struck P’s vehicle o How often are you going to get judgment nov for P from res ipsa? NOT OFTEN o Ill. SC said you can’t take case away from jury and rule for P in this case o Standard judge-jury problem— o core competence of jury is determining if someone is lying o jurors are allowed to draw inferences, but cannot pile inference upon inference o Res ipsa regulates that there are situations where you can infer negligence from the facts of the accident, but you have to look at certain facts. o Ybarra v. Spangard - res ipsa necessary to get sheep to rat out goats Normally you can find this info during discovery; court uses res ipsa in this case to force parties to talk o Harrison unhappy w/ court’s reasoning: p. 280 ―It would be manifestly unreasonable for them to insist that he identify any one of them as the person who did the alleged negligent act.‖ court should just say what they’re doing—breaking down conspiracy of silence substantive tort law not used often to force people to talk sanctions can be imposed on people during discovery if one party refuses to come up w/ evidence (court can say Ps will lose claims or Ds will lose certain defenses) - discovery better way to do this vicarious liability applies when there are employees o every Defendant would prevail if A,B, or C was responsible but no one knows which one it is (the employees involved left the country)—we distribute liability according to probability they were involved (1/3 each) courts occasionally use res ipsa when no one knows (including Ds) who’s responsible, but someone was negligent (sometimes courts will just allocate amounts of liability by likelihood of liability, as opposed to the usual on-off switch)
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II. Liability Without Regard to Fault
A. Unusually Hazardous Activities 1. Rylands and its Progeny
Ryland v. Fletcher – court applies strict liability o water from reservoir traveled into mine shafts and harmed the land of P o ULTIMATE RULE: Distinction b/n natural and non-natural uses of land. building reservoir is non-natural use, P is liable o Rule: If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbor, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage. (i.e. strict liability) Brown v. Collins – NH rejects strict liability, Ryland precedent o D’s horses were frightened by train and ran into P’s post, causing damage D was not negligent in managing his horses o if changing property gave rise to strict liability, people would have incentive not to improve land o American courts erroneously believed activity would shut down if strict liability standard were adopted (actually provides same incentive as negligence) Truth: If what you’re doing is worthwhile, you’ll be able to pay for damages. o two points on this case: 1-??????? 2-strict liability would cause these things not to happen
2. Contemporary Doctrine on Unusually Hazardous Activities
The abnormally dangerous activities concept does not override ordinary tort doctrines like assumption of risk (no recovery), causation principles, etc. Spano v. Perini Corp. - D was dynamiting in Brooklyn, damaged P’s property o RULE: One who engages in blasting must assume responsibility, and be liable without fault, for any injury he causes to neighboring property o 2 primary points: strict liability doesn’t mean don’t do it, it means only do it if it’s profitable you’re going to get the benefits, you have to pay the costs Restatement (Second) of Torts: 6 factors where courts have generally found strict liability (Pg. 593-594) o a) existence of a high degree of risk of some harm to the person, land or chattels of others o b) likelihood that the harm that results from it will be great o c) inability to eliminate the risk by exercise of reasonable care o d) extent to which the activity is not a matter of common usage o e) inappropriateness of the activity to the place where it is carried on
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o f) extent to which its value to the community is outweighed by its dangerous attributes Indiana Harbor Belt RR v. American Cyanamid Co. o chemical spills from railroad car; P forced to pay to clean it up o Posner says risk in this case could be eliminated by reasonable care (see (c) above), so no reason to use strict liability Only use SL if some extra good can be accomplished due care makes shipping chemicals safe Activity level effects o negligence tells you how to do things o SL factors identify situations in which even after negligence has done all it can do, is there something else that can be accomplished o activity level affects how much of the activity you do rather than how you do the activity o another activity level effect is moving the activity (e.g. blasting in desert) o strict liability can make you do activity less or do it somewhere else neither apply in American Cyanamid case o activity level effect of blasting: use a wrecking ball instead
B. Vicarious Liability (Liability for the Fault of Another)
o Respondeat Superior = ―let the master answer‖ (vicarious liability) o the employer is strictly liable for injuries for which the employee is liable o 2 primary boundary questions: 1) What kind of relationship creates respondeat superior? -generally employer, employee -as opposed to independent contractor 2) How closely connected does the bad thing the employee did have to be to the job? -within the scope of employment o Why have respondeat superior? o 1st basic reason for vicarious liability: you know who the employer is, but not employee hypo: you see Intrastate Pest Control vehicle slam into your parked car and drive away (i.e. you know the responsible employer, but not the employee) o Real question is not who is liable, but who should bear the risk that the employee can’t afford to pay damages Employer can seek indemnification from employee B/n employer and victim, who should bear risk? o 2nd main reason – employers can generally insure more effectively than victims o other reason – employers have deeper pockets o Ira S. Bushey & Sons, Inc. v. United States o U.S. sailor floods dry docks through negligent behavior o \
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o RULE: principal can be liable for agent’s torts, but only if agent was negligent and acting within scope of employment 2nd Circuit says if employee thinks he is advancing interests of employer, employer is liable (looks at subjective motivation of employee -- since overturned) o my notes also say 2nd Circuit doesn’t like the old rule of ―furthering employer’s interests‖????? o FROLIC AND DETOUR o situations in which employee torts someone not pursuant to employment o employer is liable for detour, but not frolic o Respondeat Superior covers small deviations, but not large ones
C. Necessity and the Invasion of Property Interests
o Another pocket of SL in world of negligence o Concept of Privilege: You are allowed to invade someone else’s property, but you must pay for it. o Ploof v. Putnam - Ploof’s employee unmoors Putnam’s boat, storm ensues o Putnam and his family suffer injuries and boat is lost o RULE: in case of emergency, the usual property rights yield to necessity o Vincent v. Lake Eerie Transportation Co. o storm on Lake Superior; vessel owner docks and unloads o dock owner says to leave, but vessel owner refuses (must pay for damage) o RULE: you can use someone else’s property under extreme circumstances, but you have to pay for it o Basic idea of necessity: property owner loses right to exclude in case of necessity, but not right to compensation o Why not allow people always to use others’ property and have them merely compensate? o consensual transactions tell you that both parties are better off o take and pay not adequate b/c of personal idiosyncrasies o problem w/ subjective valuation is that there will be overvaluation, undervaluation, etc. - very difficult to determine o sometimes you won’t be able to create a deal even when it’s in the best interest of both parties o valuation must be done by courts, not parties o 2 different kinds of legal rules (private necessity reduces protection of landowners from property rule down to liability rule) o Property Rule – price and sanction are both associated (your property is protected by both compensatory damages and penalties) o Liability Rule – price associated with it, but no sanction o think of liability rules (you can inflict harm but you have to pay compensation) as second best when parties can’t bargain with each other, seems natural to get compensatory remedies b/c they can’t bargain with each other in advance.
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o Public necessities o fires – sometime you knock down buildings to save rest o wars – Japanese were about to take an oil refinery, so Americans took it out. o should the building owners or oil company be compensated? British said you can destroy buildings, but you have to compensate owners Americans said you don’t have to compensate oil company o courts can’t waive sovereign immunity – only legislature can do that o normally a gov can take someone’s property unlike a private individual, but they usually have to pay (eminent domain) o in cases of public necessity, the gov can take the property and doesn’t have to pay
III. Causation
A. Cause in Fact but for concept: ―Suppose there hadn’t been negligence, would the injury
have occurred.‖ NY Central RR v. Grimstad – D must cause accident to be held liable o 2nd Circuit assumes the drowning would have still occurred if due care was present (he was gone when wife got back w/ line) o negligence, but no causation; therefore, no liability first primary complication of causation: o (variant of Grimstad) P needs to prove it’s more likely than not that the injury wouldn’t have occurred if there had been due care o safety inspector for coast guard (P’s expert witness) testifies at least 75% of time the vessel has a life buoy, they keep it outside on the railing o what happens in majority of cases is important b/c of the standard of proof (P has to prove case by preponderance of evidence) Zuchowicz v. United States - P dies of primary pulmonary hypertension o First Question-was this lung condition caused by the drug Danocrine? o Second Question-was the disease caused by the overdose of Danocrine? o overdose is clearly negligence, so couldn’t a jury reasonably conclude it was the cause? No, that’s not so obvious there are circumstances in which taking the overdose is not negligence (e.g. the extra dosage may provide more marginal benefit than marginal risk) Suppose people who take Danocrine at recommended dosage get PPH 60% of time. And if double dosage, people get PPH 70% of time. Negligence may increase risk of harm, but the baseline is already over 50% o MUST ASK WHAT USUALLY HAPPENS WHEN DUE CARE IS TAKEN
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Reynolds v. Texas - slip and fall; lighted waiting room, unlighted staircase o even if D’s negligence just increases risk by 10%, still has to compensate P 100% fair b/c D is only liable 10% of the time (don’t have to pay 9 people who don’t fall) Sanchez v. Hillerich & Bradsby – NEED FOR EXPERT TESTIMONY o need expert testimony to determine additional reaction speed that is lost from faster aluminum bat how much faster is it coming off the attack bat? how much does that shave off the reaction time of the pitcher? margin of danger the attack bat creates? how much more likely is it that the pitcher is going to be hit? Herskovits v. Group Health Cooperative – lost chance o Cancer victim diagnosed late: prob of death goes from 61% to 75% o Concurring opinion: should be a reduced recovery; there should be some recovery rather than none o Damages awarded only for lost earnings and additional medical expenses due to premature death (probably would’ve died anyway) o This gets away from orthodox rule that rounds 60% chance of injury up to 100% and 30% of injury down to 0% Lost Chance Hypos: can be pro-plaintiff or pro-defendant Traditional doctrine (rounding up or down) claims it all works out in wash o in aggregate, they probably do o with particular physicians, won’t work out (e.g. some doctors only treat patients who are about to die – never liable) Asbestos o asbestos litigations are closely linked to bankruptcies for liquidation purposes, companies want to pay here and now o give everyone who has been exposed to asbestos a discounted recovery now instead of waiting to see which ones will contract cancer Kingston v. Chicago & N.W. Ry. – multiple causation problem o two fires converged on property at same time, burned P’s property one caused by railway, the other of unknown origin o joint and several liability when both fires set by human origin o no liability when one fire is set by human, and the other by natural, origin Joint and Several Liability v. Apportionment o primary argument for JSL over apportionment risk that a D will be insolvent does not fall on P o reasoning for joint and several liability otherwise, you leave people under-deterred unfair to make P pay for Ds’ negligence o Apportionment: apportion liability among all parties during primary lawsuit b/n P and Ds o generally in multiple D situations, there is joint and several liability makes it possible for P to accept full amount, and Ds can later fight it out
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Smith v. JC Penney – apportionment case o both caused harm – required both of them to create harm o JC Penney, D, sells flammable coat to P o another D (gas station employee) negligently creates fire o P suffers extreme burns; both Ds caused damage together CERCLA (comprehensive environmental response, compensation and liability act) - Congress didn’t specify apportionment or joint and several liability o In Matter of Bell Petroleum Services, Inc. -- firms dumped chromium, each D tries to claim what share they were responsible for EPA asks for joint and several liability Ds ask for apportionment all Ds contributed to injury Summers v. Tice – multiple causation, burden on D to prove non-negligence o P hit by buckshot during hunting accident only shot by one of Ds, but both Ds fired guns negligently o California SC shifted burden of proof to Ds to show they didn’t cause injury - really takes form of joint and several liability o Criticism: some courts have reaction that they don’t like that they don’t know if D hurt the P o Defense to criticism: 2 different injuries of equal weight A’s negligently shooting hit P w/ due care by B, P wouldn’t have had problem in lawsuit B’s negligence inflicted harm preventing P from winning case Market Share Liability – courts only use when they’re sure to get right answer o the apportionment of harm in cases where the exact manufacturer of an item cannot be determined, but the market share of the manufacturers can be determined therefore the Ds pay according to their market share (e.g. 35% liability for 35% mkt share) o in aggregate, every P gets compensation and every D is deterred o makes mistakes in every case—none of Ds pay correct amount one should be paying all, rest should pay none idea of tort law is to match harm w/ D o courts reluctant to apply mkt share liability o 1-the difficulty is from moving from aggregate to individual cases; you wrongly impose liability on every single D o 2-Courts tend not to like applying purely statistical proof Skipworth v. Lead Industries Association – court rejects market share liability o lead poisoning from child eating paint o Court said no mkt share liability b/c bioavailability varies from one paint company to another o 2 problems w/ applying market share liability: 1- the chemical make-up product varies from company to company (different kinds of lead paint have different bioavailability); different causal contributions
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2-must be able to say mkt share each company had truly tells you likelihood of getting poisoning from each one (lead paint companies came and left over 100 years)
B. Proximate Cause and Limits on the Running of the Defendant’s Duty
INTERVENING AND SUPERSEDING CAUSES Ryan v. NY Central RR – fire proximate cause of first building’s destruction, but not subsequent buildings o Court ruled D’s negligence was too remote, not proximate cause o D won, but not representative answer of most courts Jones v. Boyce – for P to collect, his behavior must be reasonable ex ante o P jumped off coach and broke leg after D lost control of coach o wouldn’t have gotten hurt if he remained in D’s coach o when D creates circumstances in which P is more likely to jump, the risk D created was the risk eventuated and it was foreseeable o at least where P behaves reasonably in situation, causal sequence stays intact and D is liable Berry v. Sugar Notch Borough (Pa. 1899) – no liability if coincidence o no causal connection b/n speeding and tree falling on you incentive – you can’t speed up or slow down to reduce likelihood of getting hit by tree o as general matter, there is no liability in cases of coincidence (e.g. P in this case wasn’t held to be contributorily negligent) Central of Georgia Ry. v. Price – harm must be foreseeable and w/in scope of risk o lady is dropped off wrong stop from railroad, kerosene lamp causes fire o not foreseeable in sense that odds of being caught in hotel fire are not necessarily greater b/c she was dropped off in wrong place; not liable Dillon v. Twin State Gas and Electric Gas Co. – incremental damages o a kid trespasses, loses his footing, falling off bridge, grabs exposed electrical wires o D not responsible for fall b/c P was a trespasser, but was responsible for incremental damage of electrocution from exposed electrical wires Pittsburg Reduction Co. v. Horton - pause in causal chain (superseding cause) o kid picks up dynamite cap, plays with it for a while, his mom cleans it up occasionally, cap explodes when o/ kid is playing with it o D not responsible b/c mom created pause in causal chain Brower v. New York Central & H.R.R. - intervening cause is human, but still liable if within the scope of risk (crime doesn’t break causal chain) o railroad negligently hits horse and wagon; horse is killed, barrels inside wagon are knocked out of wagon, thieves steal barrels o majority’s argument is scope of risk – if you smash someone’s transport in a bad neighborhood, you are more likely to have goods stolen o RR knew danger b/c they hired detectives to protect their supplies o majority holds D responsible even though thieves are intervening cause o restatement takes majority’s position 18
Watson v. Kentucky & Indiana Bridge & RR – crime breaks causal sequence o D spilled gas o Duer drops match (may be responsible for arson) Duer had been fired by D and threatened to burn something down o court says crime would break causal sequence, but negligence wouldn’t - same as dissent in Brower Restatement § 448 (Pg. 448) o Third person committing crime or intentional tort is superseding cause unless D realized or should’ve realized the crime would be likely in the situation D created. o Essentially like Brower ruling: If the initial negligence creates situation where subsequent wrongdoing is predictably more likely, the causal sequence continues. Restatement § 449 o simply a restatement of concept of harm within scope of risk o not responsible if not within scope of risk Bigbee v. Pacific Telephone and Telegraph Co. – follows Bower rule o P stuck in telephone booth that was negligently placed too near the highway and P couldn’t get out of phone booth; p hit by drunk driver o court now says doesn’t matter if crime or tort o wrongdoing doesn’t break chain; D is liable Wagner v. International Ry. – P behaved reasonably by trying to rescue; therefore, causal chain remains intact. o Cardozo’s pithy phrase: ―Danger invites rescue.‖ o Herbert falls out of train on curve and yells ―Man overboard‖ o Wagner, while looking for cousin, loses his footing and falls o Wagner sues railroad: he behaved reasonably in dangerous circumstances In re Polemis & Furness, Withy & Co. – if negligent, liable for all damages o foreseeable P, not foreseeable harm – doesn’t matter, liable anyway o spark caused by falling plank led to explosion and fire, but no serious damage from fall itself o foreseeability is considered for negligence, but not for determining damages (directness required for proximate cause) Palsgraff v. Long Island R.R. o train employees were negligently pulling and pushing on unidentified person, causing him to drop an unmarked package of explosives; heavy scales were knocked onto Mrs. Palsgraff in process, causing injury o particular question in Palsgraff: Is there a foreseeability component in the kind of injury that gives rise to a cause of action? this is what Andrews and Cardozo are arguing about o RULE: foreseeable Ps can sue, but unforeseeable Ps can’t o It is one thing to know standard of conduct to which D is subject, but it’s another to know if this negligent conduct runs to potential P; duty runs only to forseeable Ps Second Restatement on p. 465
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o seems to agree w/ Cardozo—must be risk to class of which P is a member o e.g. those immediately around when shoving took place by train employees Wagon Mound (No. 1) o oil spilled in Sydney bay; Morts Dock employees continue to weld and explosion ensues (owner sees oil, calls ship owner to ask if flammable) o court rejects Polemis and adopts foreseeability as standard o can collect for foreseeable risks, but not unforeseeable o Wagon Mound (#2) owners sue Overseas Tanker (not precluded b/c not a party to first suit) in this case, court decided fire was foreseeable (more reasonable finding) America’s response to Wagon Mound #1 o if you have a foreseeable P, you can have unforeseeable injuries and still recover (i.e. rejects Wagon Mound and sticks to Polemis) Kinsman Transit – Harm within the risk o ice knocks loose a ship that is negligently tied to dock; ship hits and knocks loose second ship; both ships hit drawbridge; effectively dams water, causing a flood; flood water damages property of adjoining landowners o sounds pro-plaintiff: no limitation based on foreseeability o 2nd Circuit says adjoining landowners were not like Palsgraff, but more like Wagon Mound / Polemis o If you take into account the precaution you should have but didn’t, would the small risk of the large injury gone down. not that far from foreseeability Nitroglycerine example (p. 465) o can of nitro falls and hurts child’s foot o wouldn’t be able to recover if can contained water, corn, etc. o both nitro and facts in Kinsman are situations in which the precautions that should have been taken but weren’t could reduce risk of injury to both. o not clearly pro-defendant or pro-plaintiff 2 approaches to harm w/in risk (nitroglycerine example) o 1) reason for being careful w/ nitroglycerine is not to fall on someone’s foot but b/c it may explode; however, negligence counts for both if you take super precautions, you will also make it less likely to fall and injure someone’s foot if you fail to take precaution, you make it more likely for it to explode as well as to hurt someone’s foot o 2-negligence counts only with respect those harms that are the reason for nitro possibly falling side effect – prevents it from falling on somebody’s foot how do you deal w/ the side effects of precaution? Friendly says side effects count extension of eggshell P principle
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o as long as we’ve got proper Ps, if P’s extent of harm is not a defense, then neither is the kind of harm Di Ponzio v. Riordan – classic side effect problem o D left car running at gas station o court says it’s not proximate cause b/c reason of precaution was to avoid fire, not to avoid having car run into someone o Explicitly relying on Palsgraff, court ruled for D b/c the ―harm was not within the risk of any duty of care that it, as the operator of a station, owed its customers‖ Marshall v. Nugent - causal chain problem o primary crash; traffic obstructed b/c of crash o Nugent tries to go around crash and runs into Marshall o one reason to avoid traffic accidents = avoid follow-up accidents o Court just says there’s sufficient evidence to go to jury on issue of proximate cause (D wanted directed verdict), hinting there is p.c. brief summary o 1-In America, the Palsgraff principle is well established. there’s a cut-off on who can sue (must be susceptible to main risk of negligence, and then you can sue for minor risks as well) o 2-Almost every American jurisdiction has some form of proximate cause analysis. (Probably the murkiest part of tort law.)
IV. Defenses to Liability Based on the Plaintiff’s Actions
A. The Common Law 1. Contributory Negligence AFFIRMATIVE DEFENSE – D HAS BURDEN OF PROOF
Differences of relationships o stranger cases (parties have no prior connection) o consensual relationship (e.g. employer/employee) worker’s comp (no fault) – employee recovers regardless of who’s at fault - can only recover certain amount Gyerman v. United States Lines o negligence consisted of not properly stacking sacks of fishmeal ; P made complaint of unsafe environment to chief marine clerk, not union supervisor (as D claims he should have) o proper inquiry into contributory negligence for consensual relationships, especially employment, requires a lot of info and facts this is the problem of applying CN in consensual relationships Sudden Emergency Doctrine = the less time you have to make a calculated choice, the more likely you are to act unreasonably o questions concerning negligence are resolved in same way whether primary or contributory Restatement 2nd on pg. 299 o if a court believes in harm-within-risk doctrine, applicable to both P and D
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Smithwick v. Hall & Upson – not harm within risk, no contributory negligence o P was negligent in going to east side of icehouse (where there is no railing), icehouse collapses on him o D told P not to go on east side b/c he may slip due to the lack of railing o going on east side was ―but for‖ cause, but precaution of staying on west side would not have reduced likelihood of the icehouse collapsing Leroy Fire v. Chicago, Milwaukee & St. Paul Ry. o stacks of flax, which are too close to RR, catch fire as railroad goes by o Kansas SC says you must take precautions w/ own property as well o if you don’t take due care, you threaten damage to someone else’s estate after stacks of flax burn, P sues, D’s estate goes down P must take precaution not to have his flax burn HYPO: 2 things to do to prevent fire o 1-RR installs really expensive fire prevention equipment o 2-requires the flax people to mow next to RR (cheap) o if courts do job correctly, they will say RR doesn’t have to install fire equipment this produces strict liability for flax owners, and they’ll move o Now suppose the court mistakenly believes not installing fire prevention is negligence. RR still doesn’t use equip b/c it’s cheaper just to settle lawsuits flax people have no incentive to move flax o when RR is single owner, the efficient thing gets done (move the flax) because they internalize the cost o ―bargain around rule‖ RR has incentive to pay landowners to move flax Holmes raises another question – if it’s true that people are required to exercise due care even w/ respect to damage to their own property (if they want to recover), in deciding what is due care do they have to take measures to protect selves only on assumption that other people are using due care or that they are using negligence? o reasonable people know others are sometimes negligent must deal w/ small possibility of others not taking due care Coase – The Problem of Social Cost (most famous law review ever written) o Coase Theorem – as a general matter, if parties can freely bargain w/ one another (in absence of transaction costs), it doesn’t matter what initial allocation of entitlements is, because the parties would rearrange them. The parties to a transaction will reach the optimal solution. o reciprocal causation – it takes two to tort every tort is joint effect of P and D o incentives potential victim has in system of negligence suppose injurer took due care, what will injured P recover? nothing
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suppose that expected cost of fire is $1000 and the owners could prevent fire by moving flax back for $500, then they will take precaution and move them back o strict liability – would matter if you have contributory negligence; you want to give incentive to victim to take due care o Coase Theorem assumes legal system is getting things right everyone makes mistakes, even the courts o reason we have accident law – we live in a world of transaction costs parties don’t know each other in advance, so they can’t negotiate with one another another reason for accident law is that victims and injurers can’t identify each other in advance 1) If negligence is rule for injurer, what is rule for victim? strict liability???? -Abraham says there’s always strict liability for somebody 2) Is it possible to completely eliminate so that government would never have to find if there was due care? Yes in principle, but rarely in practice. Seatbelt defense: o contributory negligence? it decreases injury; it doesn’t reduce likelihood of accident o P’s generally have obligation to mitigate damages o When does duty to mitigate begin? usually after negligence occurs since must put seatbelt on before negligence, WA court refused to extend concept of mitigation of damages to seatbelt defense o NY court, on the other hand, expands mitigation concept to seatbelt defense requires a lot more expert testimony (how do you know who’s expert is right?) decide case-by-case what would happen some states reduce damage by specific percentage if you’re not wearing a seatbelt
2. Assumption of the Risk
2 points 1) You have substantial knowledge about what is likely to happen and what the risks are. 2) If you don’t like your risk exposure, you can sit in the outfield or not go on Flopper. Sometimes assumption of risk is just a contract A of R is sometimes evidence of reasonable risk that comes from P’s conduct and sometimes it comes from contributory negligence (complete bar to recovery) Murphy v. Steeplechase Amusement Co. – P assumed risk, can’t recover o Flopper on Coney Island—man is injured on attraction in amusement park Flopper is designed to make people fall down people knew this would happen, including P o primary assumption of risk – where risk attached to activity is reasonable
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Harrison’s experience w/ minor league baseball (Lynchburg Hillcats) o hit by baseball in second row o he assumed risk, so he couldn’t recover damages o fun to go to ballgame, so he goes anyway People with a lot of info implied in fact contract o No force numerous alternative o No fraud plentiful info???? Marshall v. Ranne o Mad Boar bites neighbor who had previously thought this might happen but didn’t kill the boar o Perhaps P should have stayed indoors or killed the boar P was not contributorily negligent being prisoner in own home is unreasonable precaution Victims that fail to take cost-justified precautions will only get compensated for the little cost and a bit of injury instead of the big injury they actually suffered ADM partnership v. Martin (Pg. 328) o Woman falls on walkway covered w/ snow and ice while making a delivery to D’s premises o Court said she assumed the risk and could not recover o First time assumption of risk, second time contributory negligence o Why do something stupid if you’re an employee? Fireman’s Rule o Negligently set a fire, and firefighter is injured Firefighter can’t file a claim against you this is his job, what he was hired to do o Don’t want emergency response people to do what they do w/ an eye to recovery Don’t want to provide incentive to make things look like negligence when they aren’t o important that incentives for firemen and policemen be set by employment contracts and not the law of torts
B. Comparative Negligence
Li v. Yellow Cab Co. of California o Two cars hit each other => P crossed 3 lanes of traffic and D ran yellow light o CA went from contributory to comparative negligence (like majority of states) o CA used case law rather than legislation (unlike majority of states) VA has no law about keeping promises or paying damages (K law), also doesn’t have comparative negligence law o Must look to common law (unwritten law) Jeremy Bentham suggested we write the law down David Dudley Field proposed a codification of the law of torts
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Field Codes said things about Ks and torts and o/ common law principles e.g. whoever injures another through his own fault must pay damages
Measuring fault o there’s not a lot of cases about what jurors are supposed to do when they are asked to compare fault o being negligent means you don’t take upon yourself an inconvenience in order to impose a greater inconvenience should internalize costs o Harrison says he would measure comparative fault by asking: How great was the disproportion b/n the inconvenience you avoided and the inconvenience you imposed on someone else? e.g. if you refuse to take upon yourself an inconvenience of $100 and impose upon someone else an inconvenience of $1000, you’re $900 negligent. First step in determining comparative negligence o Next, jurors must determine percentage of fault of P and D Np = 17 (P was negligent 17 worth) Nd = 31 (D was negligent 31 worth) Np/Nd = 17/31 Np + Nd = 100 o Jurors are supposed to compare degree of fault, not comparative causal contributions Impure comparative negligence: once P’s negligence rises above 50%, can’t recover o in PA, ties go to Plaintiff (P can take advantage of comparative negligence) o in few states, ties go to Defendant (contributory negligence is used) o Harrison believes impure forms of comparative negligence are ―unfathomably stupid‖ o argument for impure forms: if P is more at fault than D, P shouldn’t be able to recovery anything argument against impure forms: if P is 49% at fault, can recover 51% of damages, if P is 51% at fault, no recovery o simply not fair creates near occasion of sin for jurors: if they think P is 52% at fault, have strong incentive to claim P is actually 50% single most common jury verdict of comparative negligence is 50/50, so the entire verdict depends if state is a tie to P or tie to D state
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last clear chance doctrine o grew out of proximate cause—what cause is closest to accident o contributory negligence didn’t apply if D had last clear chance to avoid accident o someone had opportunity to avoid accident and they didn’t—should be liable o in comparative negligent state, doctrine would just increase liability of D o NO LONGER DISTINCT DOCTRINE IN COMP NEGLIGENCE STATES o secondary assumption of risk becomes form of comparative negligence??? problem of degrees at fault o contributory negligence is not defense for intentional tort o some states also said same for wanton negligence or recklessness o comparative negligence is a matter of degree and some states allow D to take advantage of it, no matter how negligent they are (e.g. New Jersey) o other states say at some point you can’t even take advantage of comparative negligence (usually intentional torts) o multiple defendants creates incentives w/ respect to joinder hypo: suppose P is 40% negligent, 2 Ds are each 30% negligent if P sues just one, can’t recover in impure comp neg states old rules (from days of contributory negligence) o last clear chance is subsumed under comparative negligence o secondary assumption of risk is still with us D has duty, breaches duty, P knows about breach, P assumes risk and gets injured o some states voided contributory negligence in cases of gross and wanton negligence or intentional torts o Two potential approaches to old rules throw it all under comparative negligence 2nd approach: keep old rules separate Special Verdict Concept o hypo: dispute about relative degrees of fault and amount of damages P claims 0% at fault and damages = $120,000 D claims P is 80% at fault, damages = $30,000 o Jury comes back with $60,000 verdict – don’t know what they decided could be 50/50 fault and damages = $120,000 could be 100/0 (D/P) fault and damages = $60,000 o Appellate court decides it’s absolutely clear damages = $60,000; fault not clear o jury verdict might or might not be right o SOLUTION IS SPECIAL VERDICT o Special Verdict: jury fills out form, answering specifically amount of damages and percentage of fault
V. Limitations on Duty
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A. The Harm of Emotional Distress
Palsgraff said that main rule of tort is standard of care that the party has to satisfy o What is reasonable behavior under this standard? Duty connects P to D. o unforeseeable injuries don’t qualify Mitchell v. Rochester Railway – no recovery for emotional distress w/o phys inj o P waiting for streetcar, D’s horses’ heads come to either side of her head o horses don’t touch Ms. Mitchell, but she’s frightened P claims it causes miscarriage o Mitchell rule (absolute bar) operates ex ante many cases aren’t meritorious; court bars all emotional distress cases from start if you’re actual victim, you can collect for physical and emotional distress (impact rule), but can’t recover at all if no physical impact Dillon v. Legg – Zone of Danger rule overturned o traffic accident: Dillon daughter killed, mother and other daughter survived o CA had taken step down slippery slope – already moved away from impact rule to ―zone of danger‖ rule zone of danger meant to get away from arbitrariness of impact rule physical injury no longer required treats everyone who might have gotten hit alike o zone of danger has own arbitrary effect sister was in zone of danger, but mother wasn’t both saw it and suffered emotional distress mother and daughter treated differently under this rule, but shouldn’t be o court says jury should take 3 things into consideration: 1) proximity to scene of accident 2) shock resulted from from direct emotional impact upon P from sensory and contemporaneous observance of accident, as contrasted with learning of accident from others later 3) Closeness of relationship o If you think most Ps are lying, go with Mitchell rule. If you think most Ps aren’t lying, you might use Dillon rule. 3 considerations when comparing 2 possible approaches to emotional distress: o 1) How many errors and what kind of errors will they make? o 2) How much do different errors cost? o 3) How much does it cost to administer the system? Absolute bar rule (Mitchell): o 1) could say most people are lying about their emotional distress; very few claims valid – mistake: will throw out all claims, including at least some valid claims o 2) Some mistakes are worse than others. Better to let 10 guilty men go free than convict one innocent man. The error this rule makes is especially bad. 27
o 3) Absolute Bar is very inexpensive to administer. hypo: assumes juries are perfect and absolute bar makes few mistakes -- still concerned about costs of jury trials Molien v. Kaiser Foundation Hospital (pg. 489-490) o Dr. tells woman she has STD o she tells husband (and accuses him of adultery) and they get divorced o the direct observation requirement doesn’t apply here; the second transmission of info was more detrimental o Husband’s suit for emotional distress was allowed, notwithstanding the limitations in Dillon, on the ground that he was a ―direct victim‖ of D’s action
B. Duty to Rescue? Only in very limited circumstances
Critics (of no duty to rescue)-at low cost, can get large benefit o e.g. rescuer can perform rescue at low risk to self (man saves boy on train tracks with train still far away) Reasons for No Duty to Rescue o can produce perverse incentives held liable if you choose wrong avoid coming close to those in need of help o most people are going to help anyway important motivations at work other than the law of tort—don’t want the law of torts to interfere with them mean lowlifes who aren’t going to rescue out of goodness of heart are probably not going to rescue b/c of tort law either if they don’t, there may be a weird explanation for it o Difficult to determine who’s liable (e.g. crowded beach, drowning swimmer) Buch v. Amory Manufacturing Co. o 6-year-old boy trespasses onto D’s mill where weaving machines were operating; D told him to leave, but he didn’t o P’s 13-year-old brother shows P how to use machine and P’s hand is crushed o usually obliged to take precaution if low cost, but not so in duty to rescue cases o THERE IS NO DUTY TO RESCUE substantial overlap needed b/n people’s liability and their moral intuitions o otherwise, holding them liable will not influence their behavior o moral intuition: hurting someone is worse than not helping someone Exceptions to no duty to rescue: Montgomery v. National Convey and Trucking Company - exception to no duty to rescue o trucks stall on icy hill; not truck driver’s fault that it stalled (i.e. no negligence) o failed to take precaution of putting flares on top of hill to warn oncoming traffic 28
o D caused accident, but was not necessarily negligent o when you make it more dangerous for someone else, you have duty to take affirmative steps to alleviate danger o if you create danger, you have duty to take due care to prevent injury Why the exception to no duty to rescue rule? o it removes barrier of knowing who has the duty to rescue b/c it goes to the person who created the harm o the person who caused the danger will have important info and will be able to stop the harm if reasonably possible b/c they have the facts available to them o if you don’t want to have this duty to rescue, don’t put people in danger in the first place hypo: A backs into B’s car o not immediately obvious (car is junker), but wire is knocked loose o next time the car is started, the starter explodes o had person taken in it for repairs immediately, no explosion o A not negligent in structural damage, but fails to leave note o A is responsible for starter explosion, but not structural damage Zelenko v. Gimbel Bros. o if you’re going to be a Good Samaritan, have to go all the way o P’s intestate was taken ill in D’s store o D takes P to D’s infirmary; D passes away o person who starts rescue but gives up has created more risk b/c someone else may have rescued if original good Samaritan had done nothing o other exception to no duty to rescue rule: once you start rescue, must finish it Soldano v. O’Daniels o any person who ―knows or has reason to know that a third person is giving or is ready to give another aid necessary to prevent physical harm to [an endangered person]‖ is tortiously liable if he ―negligently prevents or disables the third person from giving such aid‖ o man shot in Happy Jack’s Saloon across the street o bartender refuses to call police or allow patron from across street to call police - held liable
Affirmative Duties and Special Relationships
Tarasoff v. Regents of University of California o many courts disagree with how this case was ruled o ―special relationship‖ – general principle of duty to rescue doesn’t apply relationship b/n Podar and Dr. Moore (patient/psychotherapist) Dr. Moore had duties to Podar, but not Tarasoff o When will special relationship b/n A and B give B duties w/ respect to C? after Tarasoff, Moore has duty to take action to help C (exception to no duty to rescue) key is relationship b/n Podar and Dr. Moore (no duty if strangers)
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o if relationship is b/n convict (A) and jailer (B), jailer (B) has duty to public (C) B has duty with regard to A, but B also has duty to public (who pays his salary through taxes) o CA has since made public/private distinction o Moore could have been violating confidentiality duties b/n doctor and patient o When law of tort departs from people’s normal views, it will be effective under 2 circumstances: 1 – where effect of that exception is narrolwy focused 2 – where people it affects have legal counsel (psychotherapists usually have access to lawyers) o Tarasoff remains exception to general rule of no duty to rescue o The only relationship b/n Dr. Moore and P in Tarasoff is that the doctor came into possession of certain knowledge Pg. 567 – Second Restatement Section 319 o One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm. o rationale – could be like the duty to continuing a rescue after you’ve started. If you take charge of someone who is going to kill someone then the other people around will be less likely to do that duty
DAMAGES with respect to retrospective damages, there are 2 general categories: 1) restitutionary (B gets back very thing B lost) 2) substitutionary (B receives a substitute for B’s loss – usually money) Damages: D has done something wrongful to P, P has been made worse off, and D must compensate to put P back to rightful position (as if tort hadn’t occurred) -e.g. car destroyed; damages = diminution of value of car Tort system does 2 things: 1) provides compensation for victims of accident 2) internalization (deterrence) Pain and suffering o Can’t put dollar figure on loss of limb; therefore, courts used to not offer pain and suffering damages (can’t compensate) o Outcome can’t be priced, but risk can be (internalization) people pay money to reduce risk (e.g. buy Volvo for safety) and receive money to take extra risk (e.g. accepting dangerous jobs) HYPO: Injury will occur 1 in 1,000 times. The risk costs $1,000,000. You’re essentially paying $1,000 per risk of injury. D should have to pay the $1,000,000 and may as well pay the P. o should ask: What risk did D subject P to? What would P have paid to avoid risk? must multiply this number by factor of chances that injury will occur 30
McDougal v. Garber o medical malpractice created serious damages to P o don’t know if she suffered pain and suffering b/c she’s in coma o NY Court of Appeals: we don’t know why, but we have damages for pain and suffering (court only understands compensation and punishment) willing to award damages for ―legal fiction‖; failed to take into consideration internalization
Technical problems in law of damages: O’shea v. Riverway Towing o what do you do when someone is injured and can’t do old job anymore? o compensate for difference b/n old job and job they can now do o value of money changes over time (inflation) o in market, price of money has 2 components: real rate (Volvo example-rather have car now than a year from now) and inflation Duty to mitigate: (p. 790) o HYPO: injurer smashes hole in roof of victim’s house suppose injured didn’t repair roof if victim acted promptly, repairs would cost $1,000 victim didn’t act, rain causes $10,000 of water damage Victim only receives $1,000 from tortfeasor even when victim of due care, you still must act with due care reasoning: want to avoid moral hazard MORAL HAZARD – being insured makes people more lax when it comes to taking precautions o Hypo: D says we’re not going to pay full damages b/c you didn’t have surgery P says the back surgery may worsen condition, so doesn’t want surgery P can make this decision (exception to mitigation) reason not to worry about people choosing not to have surgery: people want to be better individual internalizes most of the consequences D might pay more, but it’s P’s health at stake Duncan v. Kansas City Southern Railway o main question: whether jury excessively compensated P out of sympathy? o pain and suffering – requires jury to put themselves in place of jury, sympathy allowed o worried jury sympathy will bleed over to objective parts of case: loss of future earnings, future medical costs, etc. o struggle b/n technocrats (judges) and juries o Judge calls for remittitur (form of extortion) in this case
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