Torts I Outline

Torts I: Outline Disclaimer: These notes and outlines are provided asis without any warranty as to their correctness, completeness, or quality. They are not meant to be a substitute for your own efforts. You may copy and forward this document as long as you do not alter its contents. 8/9/2004 Revision 0.1 Author: Philip Larson 703.798.5244 (tel) Torts I: Outline Table of Contents 1. TORTS I: OUTLINE ............................................................................................................. 3 1.1 BACKGROUND ............................................................................................................ 3 1.1.1 GENERAL BACKGROUND .................................................................................... 3 1.2 INTENTIONAL TORTS................................................................................................ 3 1.2.1 INTENT ..................................................................................................................... 3 1.2.2 BATTERY ................................................................................................................. 4 1.2.3 ASSAULT .................................................................................................................. 5 1.2.4 FALSE IMPRISONMENT ........................................................................................ 5 1.2.5 INTENTIONAL INFLICTION OF MENTAL DISTRESS ...................................... 6 1.3 DEFENSES OF INTENTIONAL TORTS ..................................................................... 7 1.3.1 PRIVILEGES: CONSENT ........................................................................................ 7 1.3.2 PRIVILEGES: SELF-DEFENSE ............................................................................... 7 1.3.3 PRIVILEGES: DEFENSE OF PROPERTY .............................................................. 8 1.3.4 PRIVILEGES: NECESSITY ..................................................................................... 8 1.3.5 PRIVILEGES: JUSTIFICATION .............................................................................. 8 1.4 NEGLIGENCE GENERALLY ...................................................................................... 8 1.4.1 ELEMENTS OF TORT OF NEGLIGENCE ............................................................. 8 1.4.2 STANDARD OF CARE: REASONABLE PERSON................................................ 9 1.4.3 VIOLATION OF STATUTE ................................................................................... 10 1.4.4 PROOF OF BREACH .............................................................................................. 11 1.4.5 RES IPSA LOQUITUR ........................................................................................... 12 1.5 ACTUAL AND PROXIMATE CAUSE ...................................................................... 13 1.5.1 CAUSATION IN FACT .......................................................................................... 13 1.5.2 PROXIMATE CAUSE - GENERAL ...................................................................... 14 1.6 STRICT LIABILITY .................................................................................................... 15 1.6.1 ANIMALS................................................................................................................ 15 1.6.2 ABNORMALLY DANGEROUS ACTIVITIES ..................................................... 15 Philip Larson Page 2 Torts I: Outline 1. TORTS I: OUTLINE 1.1 BACKGROUND 1.1.1 GENERAL BACKGROUND A. Definition of tort: a tort is a civil wrong committed by one person against another that does not arise from a breach of contract. B. Categories 1. Intentional Torts: defendant desires to bring about a particular result a. Battery b. Assault c. False Imprisonment d. Infliction of Mental Distress e. ANALYSIS OF INTENTIONAL TORTS (1) Are all the elements met? (2) Did D have a legally recognized privilege? (3) Were D‟s actions justified? 2. Negligence: defendant does not intend to bring about a result, but has behaved carelessly. 3. Strict Liability: (least culpable category) defendant is held liable even though he did not intend to bring about the undesirable result, and even though he was not negligent. a. Conducting abnormally dangerous activities (e.g. blasting) b. Selling of a defective product that causes injury or property damage C. Significance of categories 1. Scope of liability: three categories differ concerning D‟s liability for far-reaching, unexpected consequences. The more culpable D‟s conduct, the more far-reaching the liability. Therefore, intentional tortfeasor is liable for a wider range of unexpected consequences than a negligent tortfeasor. 2. Damages: measure of damages is generally broader for the more culpable categories. D is more likely to pay punitive damages when he is an intentional tortfeasor than when he is negligent. 3. Recommended exam approach: Review fact pattern and identify a. Prima Facie Case: is there a prima facie case for that tort? b. Defenses: What defenses or justifications may D be able to raise (e.g. self-defense, necessity, etc.) c. Damages: discuss what damages may be applicable if the tort has been committed and there are no defenses. In particular, 1. punitive damages, 2. damages for emotional distress, 3. damages for loss of companionship of another person, 4. damages for unlikely and far-reaching consequences, and 5. damages for economic loss where there isn‟t personal or property damage. 1.2 INTENTIONAL TORTS 1.2.1 INTENT A. Meaning of intent: Purpose or knowledge to substantial certainty of the legally relevant consequences (where consequences are defined separately for each tort). Intent is defined subjectively with objective (reasonable person) being evidentiary support. 1. No intent to harm: intentional torts generally do not require that D intend to harm the plaintiff. 2. Substantial Certainty: if D knows w/ substantial certainty that a result will occur, she is deemed to have intended the result. a. Example: D pulled chair out from under P as she was sitting. If D knew w/ SC that P would hit the ground, D would have intent for battery, even if he didn‟t desire to do so. [Garratt v. Dailey] b. Example 2: [Spivey v. Battaglia “where a reasonable man would believe…a result substantially certain to follow, he will be held in the eyes of the law as though he had intended it.” Philip Larson Page 3 Torts I: Outline High likelihood or “Grave Risk”: not enough for an intentional tort. [Garratt v. Dailey] d. Intent w/o substantial certainty? YES! Purpose… (1) Yes. All you need is purpose. Example: Dr. Evil shoots at Austin Powers on a windy day. He has purpose but not substantial certainty of killing Austin. 3. Legally Relevant Consequences: D must be SC or the legally relevant consequences. This is different from what they thought might happen. a. Example 1: D intends to tap P in jaw to annoy him. P has a „glass jaw‟ that shatters. D still „intended‟ the contact so battery has taken place. ) XXXXXXXXXXXX REVIEW FOR ACCURACY b. Example 2: [MR. NY EVE watches American football then pats female coworker in the butt; not liable] 4. Mistake a. Mistake as to consequences that do not indicate a disposition to commit an intentional tort negates intent. [Spivey v. Battaglia – D was not liable for battery because he did not intend a harmful or offensive contact] b. Mistakes as to consequences that DO indicate a disposition to commit an intentional tort do not negate intent. [Ranson v. Kitner – D mistaken about whether the dog was a wolf, not about the legally relevant consequences of killing a dog; D still liable] [Talmage v. Smith – D threw stick at boys and accidentally hit P. His was still liable.] c. Mistakes about identity of person or animal do NOT negate intent 5. Subjective vs. Objective a. Intent is judged subjectively. [Garratt v. Dailey, Mr. Ny Eve – not liable because he was mistaken about the consequences] (1) What a reasonable person (objective) would know provides evidentiary support of intent. 6. Who can have intent? a. Minors can have intent [Garratt v. Dailey: 6 yr old] b. Insane people, in general, are liable for their torts [McGuire v. Almy – patient hits caretaker in the head with leg of a chair; D liable] (1) PUBLIC POLICY/JUSTICE reasons: 1. Guardians will be more watchful, 2. insane cause damage so they should have to make good on it (corrective justice) c. Being drunk does not vitiate intent. d. NOTE: all of these go towards proving whether someone had the “purpose” or “knowledge to substantial certainty”. B. Transferred Intent 1. Doctrine says that if D had necessary intent wrt person A, he will be held to have committed an intentional tort against any other person who happens to be injured. When a defendant intends any one of the five “trespass” torts (battery, assault, false imprisonment, etc) and accidentally accomplishes any one of them, the D is liable.] a. Intend any intentional tort and the intent can be transferred to any of the others. [Talmage v. Smith – D threw a stick in direction of kids on his shed and hit P whom he hadn‟t seen. Intent transferred and he was liable] b. Example: D shoots at A and accidentally hits B. D is liable to B for battery. c. 1.2.2 BATTERY A. Definition: Battery is the intentional infliction of a harmful or offensive bodily contact that occurs. B. Battery protects: our dignity in addition to protecting us from physical harm. [This has changed since Cole v. Turner because originally there had to be physical contact.] C. Elements of Battery (2nd Restatement of Torts – 1965 - p30) 1. Intent: It is not necessary that D desires to physically harm P. D has the necessary intent for battery if he intended to cause a harmful or offensive contact. “Harmful” is based on the nature of the contact and nothing else. 2. Harmful or offensive contact (§13 & 18 2nd Restatement): a. Offensive contact is subjective: based on P‟s perspective although D must intend it to be offensive [example: host on „anti-smoking‟ radio show blows smoke into guests Philip Larson Page 4 Torts I: Outline face repeatedly is liable] [male worker slaps an unusually sensitive female worker on the back for a job well done w/o knowing she is sensitive – no liability] Harmful contact is objective [this is why the doctor who cuts the patient without consent is liable] P need not be aware: it is not necessary that P be aware of the contact at the time it occurs. [D kisses P while she is asleep. D committed battery] What if D is trying to help P: Doesn‟t matter as long as they intend the harmful or offensive contact [e.g. doctor cutting a patient to remove a disease; cutting an intestine is a harmful contact] Not just person to person contact: Anything “Intimately connected to individual” [Fisher v. Carrousel Motor Hotel, Inc – D grabs P‟s plate and calls him a nigger and is liable for battery]; also [Garratt v. Dailey - D pulls chair out from under P] (1) REASONING: Battery is meant to protect our dignity. b. c. d. e. 1.2.3 ASSAULT A. Definition: Assault is the intentional causing of an apprehension of harmful or offensive contact. B. Elements 1. Intent: two types of intent a. Intent to create apprehension of H or O contact [D threatens to shoot P but does not actually intend to shoot P] b. Intent to create contact: [D shoots at P trying to hit P. P is frightened but the shot misses] 2. Imminence: It must appear to P that the harm being threatened is imminent and that D has present ability to carry out the threat touch. [Western Union Telegraph Co. v. Hill – D says he‟ll fix P‟s clock if she comes behind the desk and „loves‟ him. He reaches for her and it is found that he can reach over the desk and touch her. Relevance of length of desk, etc.] [on basketball court D says “I‟m going home to get my gun”; no assault] 3. P’s awareness of threat: P must be aware of the imminent threat. [small man starts coming at a large man. He is not afraid of the offensive contact but it is still assault.] Note: this shows that the purpose of tort law is NOT punishment. [Dr. Evil fires at Powers from behind using a silencer and misses. Powers finds out later and sues…no assault] 4. No hostility is required: D does not need to intend harm to P. [D points a toy pistol at P hoping to scare her into thinking she‟s going to be shot] 5. Words alone are not enough: there must be some overt act before P can claim to be assaulted. [Cucinotti v. Ortman, “words in themselves, no matter how threatening, do not constitute an assault] 6. Conditional Threat: D threatens to harm only if P does not obey D‟s demands. Existence of assault depends on whether D had a legal right to compel P to perform the act. [on basketball court, man points gun at opponent and says if you don‟t leave, I‟ll shoot you. Assault] however, [burglar breaks into D‟s house and D says if you don‟t get out, I‟ll throw you out. Not assault.] 7. Threat to third persons: never discussed in class. However, the apprehension cannot be that someone else will be touched. It must be yourself. 1.2.4 FALSE IMPRISONMENT A. Definition: False imprisonment is the intentional infliction of a confinement without adequate legal justification (e.g. no privilege). B. Elements: 1. Intent: P must show that D intended to confine him, or knew with SC that P would be confined by D‟s actions. False imprisonment cannot be committed merely by negligent or reckless acts. 2. Confinement: P must be held within certain limits. [D refuses to let P return home. This is not false imprisonment because she can go anywhere else] 3. Means used: imprisonment can be carried out by physical means or by threats or by assertion of legal authority a. Force [Big town nursing home v. Newman – P, in home of own volition, was caught and brought back 5-6 times. He was taped to a restraint chair; FI] b. Threat of Force: D threatens to use force if P tries to escape Philip Larson Page 5 Torts I: Outline Assertion of legal authority: [Enright v. Groves - cop tells P to give him her license and she refuses. He arrests her. Court says arrest was unlawful and she makes successful claim of FI] however, [Hardy v. LaBelle‟s Distributing Co – P accused of stealing a watch is asked to talk to the manager in an office w/ two armed guards – no FI because there was not sufficient assertion of legal authority. She was free to leave.] d. Failure to furnish an exit when you have a legal duty to do so: [Whitaker v. Sandford – religious sect leader refuses to provide P a boat to get ashore- FI] however, [train refusing to make an unscheduled stop when P is having chest pains – not FI] P must be aware of confinement or suffer actual harm a. Aware at time of confinement [Parvi v. City of Kingston – P was drunk and can‟t remember being confined now. However, judge ruled he was aware at the time.], [P is locked in hotel room but she is asleep – not FI] b. Suffer actual harm [baby left in car seat suffers dehydration – FI], [P is asleep in hospital and D locks her in preventing medical treatment from getting to her – FI] No reasonable means of escape: doesn‟t take much for P to prove an escape route as “unreasonable” [6 foot window when P is wearing nice clothes – FI] [unlocked door but it is hard to find – FI] Mistake: mistake of legally relevant consequences excuses intent. Mistake about circumstances does not excuse intent. [hospital confines P thinking he is involuntarily committed – still FI] c. 4. 5. 6. 1.2.5 INTENTIONAL INFLICTION OF MENTAL DISTRESS A. Definition: intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress, even in the absence of physical harm. B. Elements: 1. Intent to cause “severe emotional distress”: a. Types of Intent (1) D desires to cause P “severe” emotional distress or [Slocum v. Food Fair Stores of Florida – P had heart attack after D‟s employee verbally insulted her – NOT IIED; court felt that a “toughening of the mental hide is a better protection than the law could ever be”] also [Harris v. Jones – employee w/ speech impediment repeatedly ridiculed by boss – NOT IIED] (2) D knows w/ SC that P will suffer “severe” emotional distress (3) D recklessly disregards high probability that “severe” emotional distress will occur [Harris v. Jones – “conduct must be intentional or reckless] b. Transferred Intent: more limited than in other torts. If D attempts to cause emotional distress to X and P suffers, P usually cannot recover. Why? PUBLIC POLICY [3 million people witness assassination of president on TV. Can they all recover for IIED?] (1) Immediate family present: Primary exception in which transferred intent is applied if: (a) D directs conduct to member of P‟s family (b) P is present (c) P‟s presence is known to D [Taylor v. Vallelunga – P witnessed D beat up her father. Court ruled that she could not collect because D did not know she was there.] c. Ordinary Person absent special knowledge: intent to cause SED to an ordinary person [Slocum v. Food Fair Stores of Florida – “…a person of ordinary sensibilities, in the absence of special knowledge or notice”] 2. Actual “severe” distress: a. Public policy: Requiring “severe” distress in order to recover prevents flood of litigation b. Does NOT require physical harm [State Rubbish Collectors Ass‟n v. Siliznoff] 3. “Extreme and outrageous”: [State Rubbish Collectors Ass‟n v. Siliznoff – D threatens that if P, a garbage collector, does not pay over part of his proceeds to D, D will severely beat P. Court ruled that since D‟s conduct was extreme and outrageous, and since he intended to cause P severe distress, D is liable for IIMD] Philip Larson Page 6 Torts I: Outline 1.3 DEFENSES OF INTENTIONAL TORTS 1.3.1 PRIVILEGES: CONSENT A. Actual “Express” Consent: If P expressly consents to an intentional interference w/ his person or property, D will not be liable for that interference. 1. Actual consent must come from individual [Hypo: Wife is hurt. Husband does not consent to operation. Can doctor proceed? YES. Husband cannot remove consent] B. Manifestation of Consent (Implied Consent): Existence of consent may be implied from P‟s conduct, from custom or from circumstances. 1. Objective Manifestation: NOT subjective. If it reasonably seemed to one in D‟s position that P consented, consent exists regardless of P‟s subjective state of mind. a. Example 1: [O’Brien v. Cunard – D offers to vaccinate all passengers on the ship. P says she‟s been vaccinated but holds her arm up anyway. Since it reasonably appeared to D that P consented, he is not liable…There was battery but court said there was consent.] b. Example 2: [Hackbart v Cincinnati Bengals, Inc - football is not consenting to be battered against the rules.] c. REASONING: Just having actual consent or having manifestation of consent be “subjective” would place too high a burden on people interacting with P. The only way to know whether or not to proceed is if you could read their mind. C. Exceeding Scope: Even if P consents to invasion of interests, D is not privileged if he goes substantially beyond the scope of that consent. 1. Construe scope of consent narrowly: privilege is on actual consent so we want to be careful to restrict scope a. Example: [Mohr v. Williams – P visits D and consents to operation on right ear. While P is unconscious, D decides left ear needs an operation and does it. P‟s consent on right ear does not block an action for left ear because it was beyond the scope.] D. Consent Negated By: Consent is invalidated if P is incapable of giving consent because they are 1. Incompetency (Child) 2. Deceit a. Deceit must go to the act of consent: [De May v Roberts – physician sent to treat P brings “partner” who knows nothing. P believes him to be a physician; P recovers despite consent to his presenceunder false pretenses.] however, [A mail room emp. takes out a personal ad describing himself as a wealthy corporate executive. A woman who answers the ad has sexual relations with him under the misapprehension as to his job. Is he liable for a battery? NO. Consent was for sex.] b. [Hardy v. LaBelle – employee accused of stealing a watch is deceived. She thinks she‟s going on a tour but is taken into a room for interrogation. Did deceit negate her consent to being there? No, consent came after] 3. Duress – if it threatens a legal entitlement, it is duress… 4. Intoxicated 5. Unconscious a. Exception: if 1. P is unable to consent; 2. risk of serious bodily harm; 3. no indication P would not consent; 4. a reasonable person would consent in the circumstances b. [Mohr v. Williams – ear specialist does work on both ears: court said if conditions would “endanger the life or health of” P doctor would have been justified in extending the operation w/o express consent] E. BURDEN OF PROOF: different than other defenses. Burden is on plaintiff to establish consent. 1.3.2 PRIVILEGES: SELF-DEFENSE A. Privilege generally: a person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact and any threatened confinement or imprisonment. B. Only for protection: 1. Retaliation: once battery is no longer threatened, privilege terminates and the original victim becomes liable for any subsequent battery. Philip Larson Page 7 Torts I: Outline Imminence: D may not use force to avoid harm which is not imminent, unless it reasonably appears that there will not be a later chance to prevent the danger. C. Degree of Force: Only degree of force necessary to prevent threatened harm may be used. If more is used D will be liable for the damages caused in excess. 1. Deadly force: D may not use deadly force unless he himself is in danger of death or serious bodily harm. D. Retreat: Courts disagree about when D has a “duty to retreat” E. BURDEN OF PROOF: on defendant 1.3.3 PRIVILEGES: DEFENSE OF PROPERTY A. Privilege generally: a person may use reasonable force to defend her property, both land and chattels. 1. Warning is required: unless it reasonably appears that violence or harm will occur immediately. B. Mistake: if D‟s mistake is about whether force is necessary, D is protected [D uses non-deadly force to stop a burglar he believes to be armed] C. Deadly Force: D may not use deadly force unless he himself is in danger of death or serious bodily harm. D. Mechanical devices: 1. Owner may use a mechanical device to protect her property only if she would have privilege to use the same degree of force if she were present. [Katko v. Briney – D set up a “shotgun trap” that would shoot when the bedroom was opened; P recovered; “A possessor of land cannot do indirectly with a mechanical device that which, were he present, he could not do immediately and in person.”] 1.3.4 PRIVILEGES: NECESSITY A. Privilege generally: a under defense of necessity, D has privilege to harm the property of P where it is necessary to prevent great harm to third persons or D himself. B. Public Necessity: If interference is necessary to prevent an apparent public disaster, one is privileged to enter land or interfere w/ chattels under concept of “public necessity.” [Surocco v. Geary – D trying to stop a fire blew up D‟s house. Fire would have destroyed house but later. Found for D. “individual rights of property give way to the higher laws of impending necessity.”] 1. Absolute privilege (no personal liability for damages) C. Private Necessity: if a person prevents injury to himself or his property, this is protected under “private necessity”. 1. Actual Damage: private necessity is a complete defense unless P suffers actual damage, in which case D must pay for the damage caused. [Vincent v. Lake Erie Transp. Co. – D‟s boat was docked during a storm and caused damage to P‟s dock; D had to pay for the damages.] D. PROPERTY not LIFE: Necessity is only a privilege for property not for taking someone‟s life. 1.3.5 PRIVILEGES: JUSTIFICATION A. Justification generally: Even if D‟s conduct does not fit one of the narrower defenses, she may be entitled to the general “justification” defense, a catch-all phrase used where there are good reasons for preventing D from being liable. 1. Example: [Sindle v. New York City Transit Authority – 14 yr old kid was in a school bus. Boisterous kids were breaking lights, banging on windows. Driver drove to police station bypassing some stops. Father sued for False Imprisonment. Appellate Ct. reversed sending it to trial saying defense of justification should be considered] 1.4 NEGLIGENCE GENERALLY 1.4.1 ELEMENTS OF TORT OF NEGLIGENCE A. Generally: negligence occurs when D‟s conduct imposes an unreasonable risk upon another, which results in injury to that other. Negligent tortfeasor‟s mental state is irrelevant. B. Prima Facie Case: The components of negligence 1. Duty: a legal duty requiring D to conduct himself according to a certain standard. 2. Breach: A failure by D to conform his conduct to this standard. 3. Causation: a sufficiently close causal link between D‟s negligence and the harm suffered. 2. Philip Larson Page 8 Torts I: Outline Cause-in-Fact: defendant‟s conduct directly caused the damages (“BUT FOR”) Proximate Cause: if there is cause-in-fact, how far down the causation chain should we have liability? 4. Actual Damage: P must suffer actual damages. Different than Intentional torts where P can recover nominal damages w/o actual injury. C. Normative vs. Empirical: Duty and Proximate cause are normative. Breach, Cause-in-fact, and damages are empirical. D. Optimal Deterrence vs. Corrective Justice a. Optimal Deterrence: provide optimal deterrence. Imposes the cost of injury on the least cost provider. Collective focus (Greatest good for the greatest number.), efficiency-based (Law&Econ), follows negligence formula (B>PL) b. Corrective Justice: rectify a wrong by restoring moral balance between parties. Individual focus, equity-based, individual justice, the reasonable person standard. a. b. 1.4.2 STANDARD OF CARE: REASONABLE PERSON A. Objective Standard: reasonableness of D‟s conduct is viewed under an objective standard. Would a “reasonable person of ordinary prudence” in D‟s position, do as D did under the circumstances. a. Ordinary Care i. [Blyth v. Birmingham Waterworks Co – D found not guilty when pipes burst after severe frost. “a reasonable man would act with reference to the average circumstances of the temperature at ordinary times”] ii. [Gulf Refining v. Williams – old worn oil drum found to be negligently delivered. It exploded. “the test is not of the balance of probabilities, but of the existence of some probability of sufficient moment to induce action to avoid it on the part of a reasonable mind.” There is a duty to exercise care to avoid all reasonably foreseeable harm.] iii. [Chicago, B. & Q.R. Co. v. Krayenbuhl – trespassing kid injured on railroad turntable. Railroad found negligent. The precautions should be such as “a man of ordinary care and prudence would observe under the circumstances.”] iv. Changes w/ Circumstances 1. Hypo: If I build homes in San Francisco, would it be negligent to build homes that can‟t survive an earthquake? Yes. 2. Hypo: In DC, would you be negligent? No, because a reasonable person would not build homes that can survive an earthquake. b. B>PL i. [United States v. Carroll Towing Co – Learned Hand] ii. [Lubitz v. Wells – D leaves golf club in backyard and kid hits someone with it. B>PL] iii. [Delair v. McAdoo – D is driving car w/ worn tires. Tire blows and car injures P. “the law requires drivers and owners of motor vehicles to know the condition of those parts which are likely to become dangerous where the flaws or faults would be disclosed by a reasonable inspection.”] B. Physical and Mental Characteristics: when deciding whether D behaved reasonably under the circumstances, the „circumstances‟ typically include the physical characteristics of D. a. Physical Disability: if D has a disability, the standard for negligence is what a reasonable person with that disability would have done. a. [Roberts v. State of Louisiana – D (blind), going to bathroom from concession stand, bumps into P and knocks him over. He is not using a cane. Found not guilty because a reasonable blind person would not use a cane in that situation] b. visible and measurement costs are low b. Mental Characteristics: ordinary person is not deemed to have the particular mental characteristics of D (D being more stupid or careless than an ordinary person is not a defense) c. Insanity – insane are liable for their torts. i. Exception: [Breunig v. American Family Ins. Co. – driver thought God had taken over the wheel. She crashed. Court said that while insanity is not typically a defense, “a sudden mental incapacity equivalent in effect to such physical causes as a sudden heart attack, should be treated alike and not under the general rule of insanity”; found for D] Philip Larson Page 9 Torts I: Outline Stupidity – stupid people are liable for their torts.[HYPO: 22 year old with mental capacity of 9 year old is driving a tractor. He runs over someone. Defense argues that he was using the highest degree of care of which he was capable. Plaintiff argues that the court should use the standard of the “reasonable person.” Can he be liable even though he did his best?] i. Yes! You can do your best and still not meet the standard of a “reasonable person”. c. Intoxication: Intoxication is no defense. Held to the standard of care of a reasonably sober person. d. Children: A child is held to the level of conduct of a reasonable person of that age and experience, not of an adult. e. MAJORITY EXCEPTION: Adult Activity: when a child engages in a dangerous activity normally pursued by adults, he can be held to the standard of care of a reasonable adult. i. [Robinson v. Lindsay – 13 yr old driving a snowmobile pulled P on innertube. P‟s thumb was severed. Supreme Court said he should have used an adult standard of care.] f. MINORITY EXCEPTION: Inherently dangerous activity: asdf C. Custom: Showing D did not follow standard customs (industry, etc.) is evidence that there was absence of reasonable care. However, it is generally not conclusive. a. Evidence by D: Even if D shows that everyone in an industry does things the way D does them, a jury can still find that the industry custom is unreasonably dangerous and negligent. i. [Trimarco v. Klein – P was sliding a door to his bathtub and it shattered. P contends w/ expert testimony that since 1950s using shatterproof glazing materials was custom so that doing this in 1976 was negligent; NY Court of Appeals said “a common practice or usage is still not necessarily a conclusive or even a compelling test of negligence…Before it can be, the jury must be satisfied with its reasonableness”] ii. [HYPO: In 1912, the titanic sank and there were not enough lifeboats. In fact, the industry custom in 1912 was not to have a lifeboat for every individual. Titanic met all board of trade requirements…Does this mean that they were not negligent? Yes or no depending on jury.] 1. Following customs is evidence that one behaved the way a reasonably prudent person would behave. However, it is not conclusive evidence. b. Proof by P: Similarly, if P proves that other‟s in D‟s industry use a certain precaution and D did not, this will not be conclusive evidence that D was negligent. D. Emergencies: If D is confronted with an emergency, and is forced to act with little time for reflection, D must behave as a reasonable person would if in the same emergency, not as a reasonable person would with plenty of time to think. a. [Cordas v. Peerless Transportation Co. – thief jumped into the taxi and had a gun. Taxi driver pulled emergency breaks and jumped out of the car. Car minorly injured P and her two kids. “the law in this state does not hold one in an emergency to the exercise of that mature judgment required of him under circumstances where he has an opportunity for deliberate action.] d. 1.4.3 VIOLATION OF STATUTE A. “Negligence Per Se” Doctrine: Most courts apply “negligence per se” that says a violation of a statute is “negligence per se” and conclusively establishes that D breached a duty to P. You still have to prove causation and damages. a. [Osborne v. McMasters – poison sold from drugstore did not have label as required by statute. Court found negligence per se regardless of whether custom was not to require labels. Statute was the standard of care.] b. Why is a statute the standard of care? a. The reason we use the statute as the standard of negligence is that we have faith in legislatures to be in a position to be able to determine what classes of people should be protected, what they must be protected against, etc. Philip Larson Page 10 Torts I: Outline Ordinances and regulations: Courts are split about whether “negligence per se” should be applied to ordinances and regulations. MAJORITY – apply it; MINORITY – don‟t apply negligence per se… d. “Failure to Report” Statutes: most states with mandatory reporting statutes have concluded that failure to report child abuse is not negligence per se. [Perry v. S.N. and S.N. – D‟s new of negligent day care but said nothing. P claims negligence per se for breaking a statute. Texas Supreme Court found for D.] Statute must apply to facts: negligence per se will apply only where P shows the statute was intended to guard against the very kind of injury in question. a. Class of Persons Protected: P must be a member of the class of persons whom the statute was designed to protect. i. [Stachniewicz v. Mar-cam Corp. – bar fight between Native Americans and Caucasians. P is suing bartender for negligence. “because P was within the class of persons intended to be protected by the regulation and the harm caused to him was the kind the statute was intended to prevent ,we hold that the trial court erred in not treating the…violations…as negligence as a matter of law.”] b. Protection against particular harm: statute must have been intended to protect against a particular kind of harm that P seeks to recover for. Excuse of Violation: court is always free to find that the statutory violation was excused, as long as the statute itself does not show that no excuses are permitted. a. Typical excuses: 1. D in emergency not of his own making; 2. compliance would have involved a greater risk of harm; 3. D made a reasonable and diligent attempt to comply. i. [Zeni v. Anderson - Lady gets hit by a car while walking on street, when statute requires that she walk on sidewalk. But it was during a snowstorm and the sidewalk was iced over and possibly more dangerous than the street. Others had fallen. P wins] ii. Jury decides if excuse is valid… Licensing Statutes: Most courts refuse to use licensing statutes as the standard of care because the lack of a license itself does not establish the lack of due care. a. [HYPO: A beautician practicing without a cosmetology license uses a hair dye that causes burns on Plaintiff's scalp. Can Plaintiff recover on the grounds of negligence per se? P argument: primae facie elements are all met; D: legislative intent designed to prevent against misrepresentation of expertise] i. Licensing statues are usually disregarded. Summary of Negligence per se: a. Person harmed is part of class of people that statute is designed to protect b. Injury that results is the sort of injury statute was designed to prevent c. Injury was a direct result of statute‟s violation (causation) d. Defendant did not have a reasonable excuse for violating statute e. Violation of statute is not safer than compliance c. B. C. D. E. 1.4.4 PROOF OF BREACH A. Burden of Proof: in negligence cases, P bears the “burden of proof.” P must prove each element by a “preponderance of the evidence.” P must put on enough evidence so that a jury would find it “more likely than not” D failed to act reasonably. B. Function of Judge and Jury a. Judge decides law: judge decides all questions of law. Determines whether reasonable people could differ as to what the facts of the case are; if they could not, he will direct a verdict. b. Jury decides facts: jury is the fact finder. For negligence, jury usually decides whether D‟s conduct satisfied the “reasonable person” standard. C. Kinds of Evidence a. Direct Evidence: evidence that comes from personal knowledge or observation b. Circumstantial Evidence: proof that requires drawing an inference from other facts. D. Weak Circumstantial Evidence (Banana Cases) a. [Goddard v. Boston & Maine R.R. Co. - Man slips on banana peel on train platform. There was no evidence that the reasonable ordinary duty of care was breached.] Philip Larson Page 11 Torts I: Outline b. c. [Anjoy v. Boston Elevated Railway Co. - Woman slips on banana peel on train platform. Banana peel was dark, gritty, sandy, flattened down. Sent to jury.] [Joye v. Great Atlantic and Pacific Tea Co. - Man slips on banana peel in supermarket. Banana was brown with dirt and sand on it. Floor went 35 minutes without the floor being swept. D wins from lack of evidence.] [Jasko v. F.W. Woolworth Co.- Woman slips on pizza dropped on floor. “storekeeper is allowed a reasonable time to discover and correct the condition"] d. 1.4.5 RES IPSA LOQUITUR A. Generally: doctrine of res ipsa loquitur allows P to get into court with little evidence. P can point to the fact of the accident and create an inference that, even w/o precise showing of how D behaved, D was probably negligent. a. [Byrne v. Boadle – barrel of flour falls on P‟s head as he walks down street. P has no other evidence except that barrels do not fall out of windows w/o negligence. Under res ipsa loquitur, P has enough evidence. D must provide rebuttal that barrel was not dropped by negligence or did not come from his shop.] b. [McDougald v. Perry - P sued D for injuries sustained when D‟s tractor-trailer‟s spare tire came out of its cradle and bounced into P‟s windshield. Res ipsa loquitur applied. Verdict for P.] B. Requirements for: courts generally impose four requirements for the res ipsa doctrine a. Doesn’t ordinarily occur without negligence: P must show that the harm does not normally occur except through negligence. P only has to prove that most of the time, negligence is the cause of such occurrences. b. Exclusive control of D: P must demonstrate that the instrument causing the harm was at all times in the exclusive control of D. i. [Larson v. St. Francis Hotel – P, while walking on sidewalk next to D hotel, was hit by a falling armchair. Without more proof, P had not satisfied “exclusive control” requirement of res ipsa b/c a guest may have had the control] ii. [HYPO: What if the defendant in McDougald introduced evidence that he noticed there were some teenage boys hanging around the truck and he chased them away? Would this matter? No. He was still in exclusive control…] iii. Multiple Defendants: If there are two or more Ds, P can show that at least one of the Ds was in control, some cases allow P to recover. This is particularly likely where Ds participate together in an integrated relationship. 1. [Ybarra v. Spangard – P went in for appendicitis and woke up unable to move his arm. He could not determine whether the physician, anesthesiologist or hospital were at fault. P got benefit of res ipsa and it was up to each individual to prove they were NOT negligent.] C. Burden of Proof: the burden of proof is still on P to show D was negligent. Res ipsa just gets you into court. a. [Sullivan v. Crabtree - Son was riding in D‟s truck. Truck swerved off a highway and went down a steep embankment. P's son died. Court said "in the ordinary case...res ipsa loquitur merely makes a case for the jury] b. Exception: Unconscious Medical Treatment: burden of proof shifts to D‟s when P is unconscious undergoing medical treatment… i. [Ybarra v. Spangard – P went in for appendicitis and woke up unable to move his arm. He could not determine whether the physician, anesthesiologist or hospital were at fault. P got benefit of res ipsa and it was up to each individual to prove they were NOT negligent.] D. Effect of Res Ipsa Loquitur: usually, the effect is to permit an inference that D was negligent without direct evidence. When res ipsa is used, P has met his burden of production and is therefore entitled to go to jury. Philip Larson Page 12 Torts I: Outline 1.5 ACTUAL AND PROXIMATE CAUSE 1.5.1 CAUSATION IN FACT A. “BUT FOR” Test: majority of the time, P shows “cause in fact” by showing that D‟s conduct was a “but for” cause of P‟s injuries – “but for” the defendant’s negligence, plaintiff would not have been injured a. [Perkins v. Texas & New Orleans Ry. Co. – passenger in an automobile with a negligent driver gets hit by a train that is speeding. Railroad not liable if the accident would have occurred even if the train were not speeding.] b. [Gentry v. Douglas Hereford Ranch: a guy hunting on a ranch trips and accidentally shoots Gentry‟s wife in head. RULE: Proof that it is possible that plaintiff‟s injury would not have occurred in the absence of defendant‟s negligence does not establish but for causation.] c. [Kramer Service, Inc. v. Wilkins: guest in hotel gets cut in forehead from piece of glass from window. Suing for damage from cut and for eventual cancer. RULE: Could not recover for cancer because he could not prove that plaintiff‟s injury probably (50.1%) would not have occurred in the absence of defendant’s negligence establishes but for causation.] d. [Reynolds v. Texas & Pac. Ry. Co.: fat woman waiting for train told to hurry up down unlit stairway. She missteps and falls. RULE: Proof by the defendant that it is possible that plaintiff‟s injury would have occurred in the absence of defendant‟s negligence does not establish that there is not but for causation.] e. [Wilder v. Eberhart: P is treated for obesity. During surgery her esophagus tears. She sues. While burden is still on P to prove D‟s negligence caused her injury, proof from D that it is possible that Ps injury would have occurred in the absence of Ds negligence is relevant and admissible.] B. SUBSTANTIAL FACTOR: it is not sufficient for their to be “but for” causation to prove “cause in fact”. You also need it to be a substantial factor. a. [HYPO: doctor negligently performs a vasectomy. They have a son and at 21, the son drives his car into the plaintiff. They sue the doctor. NO cause-in-fact because, despite “but for” causation, the cause was not a substantial factor of the injuries.] C. EXCEPTIONS TO “BUT FOR” TEST: a. Increased Likelihood of Harm from Another Source: If P fails to protect D from harm from another source AND it increases the likelihood of that harm. i. [Herskovits v. Group Health Cooperative: P had cancer. Doctors misdiagnosed it. While his chance of survival was <50%, his chances were reduced 14%. Alternatively, you can think of this as BUT-FOR causation in which the reduced chance of survival was the injury. However, this creates a floodgates problem because people that survive could sue for their percentage chance of injuries that didn‟t occur] b. Concurrent Causes: sometimes D‟s conduct can meet a “cause in fact” even though it is not a “but for” cause. This happens when two events concur to cause harm, and either one would have been sufficient to cause substantially the same harm without the other. i. [Hill v. Edmonds – P is passenger in a car. Car collides w/ truck negligently parked in the middle of the road with no lights on. Court said that “where separate acts of negligence combine to produce a single injury, each tortfeasor is responsible for the entire result, even though his act alone might not have caused it” ii. [Anderson v. Minneapolis, St. P. – sparks from D‟s railroad car start a forest fire. Fire merges with another unknown fire. Combined fire burns P‟s property. D‟s fire is a cause in fact even though it is not a “but for” cause.] c. Multiple Fault: If P can show that each of two or more defendants was at fault, but only one could have caused the injury, the burden shifts to defendants to show that the other caused the harm. i. [Summers v. Tice – Defendants go hunting. Both simultaneously fire negligently and P is struck by one of the shots. It is not known who fired the fatal shot. Court put burden on Ds to show it was the other that hit P.] ii. The “Market Share” theory: in product liability cases, courts often apply the “market share” theory. If P cannot prove which of 3 or more persons caused his injury, but can show that all produced a defective product, the court will require each of the D‟s to pay a Philip Larson Page 13 Torts I: Outline percentage of P‟s injuries equal to their percentage market share of that product at the time of injury. 1. [Sindell v. Abbott Laboratories – 200 manufacturers make drug DES. P shows her mother took the drug while pregnant and it caused her to develop cancer. P cannot show which D produced the drug taken by her mother. Court said it was up to D‟s to prove they could not have produced the particular dose taken by P‟s mother or they would pay the percentage of their market share at the time] 1.5.2 PROXIMATE CAUSE - GENERAL A. General: proximate cause requirement is a policy determination that a negligent D should not be liable for all consequences, no matter how far-reaching or improbable. Today, D is typically liable for all foreseeable consequences. B. FORESEEABILITY: most courts hold that D is liable only for consequences of his negligence which were reasonably foreseeable at the time she acted. a. [Ryan v. New York Central R.R. Co.(1866) – D‟s railroad set fire to a woodshed. P‟s house, 130 ft away caught fire and a number of other houses burn down. Only liable for first house. Others are not proximate.] b. RULE 1: Foreseeable type + unforeseeable manner/extent = PC. If you have foreseeable injury of an unforeseeable extend, this does not sever proximate cause. i. [Bartolone v. Jeckovich – P suffers injury from negligent driving. P says it aggravated a pre-existing paranoid schizophrenic condition permanently disabling him. Extent of the injury is unforeseeable.] ii. [Polemis and Furness, Withy & Co. – (note: this case was quickly overturned) spark caused by falling board ignited petrol and blew up the ship. Trial court said that all harm directly traceable to original harm was recoverable.] iii. [Wagon Mound No. 2 – uses same rule as #1, see below, (unforeseeable type = NO PC) but questions the original decision that it was not a foreseeable type. Reverses. Therefore, there foreseeable type + unforeseeable manner = PC] iv. [HYPO: Egg Shell Skull – D must “take his P as he finds him”. This is unforeseeable extent of a foreseeable type.] c. RULE 2: Unforeseeable type of harm = NO PC: If the type of harm is unforeseeable, there is no proximate cause. i. [Wagon Mound No. 1 – D negligently discharged fuel into the ocean and it ignited seriously damaging the wharf. At trial, P‟s win under “direct traceability standard”. Highest court overrules because D‟s “did not know and could not reasonably be expected to have known” the oil would ignite. Court overrules Polemis rule stating that there is no proximate cause if the type of harm was unforeseeable.] d. RULE 3: Unforeseeable P = NO PC. If the plaintiff is unforeseeable (outside a foreseeable zone), there is no proximate cause and no liability. i. [Palsgraf v. Long Island R.R. Co. – P standing on platform of train. Two men run to catch it. A package containing fireworks falls onto the rails, explode, and throw scales to the other end of the platform many feet away injuring P. Cardoza says P must be within “the range of reasonably foreseeable danger.” C. INTERVENING CAUSES: an intervening cause is a force which takes effect after D‟s negligence, and which contributes to that negligence in producing P‟s injury. a. Superceding Cause: some, but not all, intervening causes are sufficient to prevent D‟s negligence from being held to be a proximate cause of the injury. Intervening causes that are sufficient to prevent D‟s negligence from being a proximate cause are called superceding causes because they supercede or cancel D‟s liability. b. RULE 1: Unforeseeable harm from Intervening Cause = superceding cause = No PC. c. RULE 2: Intervening Cause if foreseeable IF type of harm from the intervening negligence is the same type of harm that is foreseeable to the original D. i. [Derdiarian v. Felix Contracting Corp. – D, forgetting to take medicine, suffers a seizure and drives into a worksite throwing P into a 400 degree boiling hot liquid. Company found negligent for failing to put up a barrier. There was PC.] Philip Larson Page 14 Torts I: Outline Analysis 1: Negligence – company failing to put up barrier; Intervening cause – driver failing to take medicine; This was a foreseeable type of harm (auto accident) with unforeseeable manner of harm. 2. Analysis 2: Unforeseeable Intervening Cause = superceding cause = No PC. Here, the intervening cause is foreseeable because the type of harm is the same that was foreseeable to the original D. ii. CRIMINAL ACT  typically UNFORESEEABLE (no PC) 1. [Watson v. Kentucky & Indiana Bridge & R.R. – R.R. negligence allowed a car to derail spilling gasoline. Third party lit a match and gasoline caught fire injuring P. Court said if intervening cause was malicious and intentional and criminal, then it would be an unforeseeable cause.] iii. SUICIDE  typically UNFORESEEABLE (no PC) 1. Exception: must be a direct causal connection from the original injury that causes the impulse. [Fuller v. Preis – P was in a car accident and started having bad seizures. 7 months later, frustrated by the seizures, he committed suicide. P‟s estate could recover for wrongful death.] iv. RESCUE, ESCAPE, MEDICAL MALPRACTICE  typically FORESEEABLE (is PC) 1. “Danger invites rescue” a. [Wagner v. International R.R. Co. – conductor runs train full of people with door open. A vestibule falls out. Train stops and cousin jumps out, slips off the bridge and falls. P says conductor encouraged him to go out onto the bridge after his brother as well.] 2. “Danger invites escape” a. [Cordas v. Peerless Transportation Co. – thief jumped into the taxi and had a gun. Taxi driver pulled emergency breaks and jumped out of the car. Car minorly injured P and her two kids. “the law in this state does not hold one in an emergency to the exercise of that mature judgment required of him under circumstances where he has an opportunity for deliberate action.] 1. 1.6 STRICT LIABILITY 1.6.1 ANIMALS A. Trespassing animals: owner of livestock are typically liable for property damage caused if they trespass. B. Non-trespass liability: a person is liable for non-trespass damage done by a “dangerous animal” a. Domestic animals: don‟t count unless the owner knows the animal has dangerous characteristics 1.6.2 ABNORMALLY DANGEROUS ACTIVITIES A. General Rule: person is strictly liable for any damage which occurs while conducting “abnormally dangerous” activities 1. Six Factors: to determine if it is “abnormally dangerous”. a. 1) is there a high degree of risk of harm to others? b. 2) the harm is likely to be serious, c. 3) the risk cannot be eliminated by the exercise of reasonable care d. 4) the activity is not common, e. 5) the activity is not appropriate for the place where it is carried out, f. 6) the danger outweighs the activity‟s value to the community. i. [Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. - D is a manufacturer of a dangerous chemical. At its manufacturing plant it loaded 20,000 gallons onto a railroad car and sent it through Chicago. P is the switching line. There was a $981,022.75 clean up cost mandated by Dept. of Environ. Protection. P wants D to pay for it and sues them for negligence and strict liability] 2. Examples a. Nuclear Reactor Philip Larson Page 15 Torts I: Outline b. c. Explosives Crop dusting B. Limitations on Strict Liability a. Scope of risk: usually only liable for damage which results from the kind of risk which made the activity abnormally dangerous. [Foster v. Preston Mill Co. - blasting operation caused a mother mink to kill her kittens. No liability.] b. Assumption of risk: assumption of risk can be a defense to strict liability. If P assumes the risk knowingly and voluntarily, D may not be liable.[Sandy v. Bushey - injured party voluntarily put himself in the situation knowing the probable consequences, he cannot recover. Puts mare in pen w/ horse that has “vicious propensitites] c. Act of God: i. Golden v. Amory [hurricane: the rule from Rylands does not apply when the injury occurs from an “act of god.” ] Philip Larson Page 16 Torts I: Outline Assault............................................. 2, 3, 4, 5 B>PL ........................................................... 9 Battery ......................................... 2, 3, 4, 5, 7 Breach ....................................... 2, 3, 8, 9, 11 Causation........................... 2, 8, 9, 10, 11, 13 Cause-in-Fact ........................................ 9, 13 Substantial Factor.................................. 13 Children........................................... 7, 10, 11 Circumstantial Evidence ........................... 11 Conditional Threat ...................................... 5 Corrective Justice ........................................ 4 Custom ...................................................... 10 Defense ............................................. 7, 8, 10 Disability ..................................................... 9 Duress ......................................................... 7 Duty......................................... 6, 8, 9, 10, 11 Evidence ........................................ 10, 11, 12 Failure to Report ....................................... 11 False Imprisonment ..................... 2, 3, 4, 5, 8 Foreseeability .................................. 9, 14, 15 IIED................................................. 3, 4, 5, 6 Extreme & Outrageous ........................... 6 Imminent ................................................. 5, 8 Insanity.................................................... 4, 9 Intervening Causes .............................. 14, 15 Intoxication ....................................... 4, 6, 10 Negligence .. 2, 3, 8, 9, 10, 11, 12, 13, 14, 15 Negligence Per Se ............................... 10, 11 Optimal Deterrence ..................................... 9 Privilege Consent ........................................... 2, 5, 7 Negated By.......................................... 7 Defense of Property ............................ 2, 8 Justification ..................................... 2, 5, 8 Necessity ......................................... 2, 3, 8 Self-Defense .................................... 2, 3, 7 Proximate Cause ......................... 2, 9, 13, 14 Reasonable Person .......... 2, 3, 4, 7, 9, 10, 11 Emergency ................................ 10, 11, 15 Res Ipsa Loquitur .................................. 2, 12 Special Knowledge ..................................... 6 Strict Liability ............................. 2, 3, 15, 16 Abnormally Dangerous ........... 2, 3, 15, 16 Exception Act of God......................................... 16 Scope of Risk .................................... 16 Suicide....................................................... 15 Transferred Intent.................................... 4, 6 Violation of Statute ......................... 2, 10, 11 Words alone are not enough ....................... 5 Philip Larson Page 17