1 Torts Outline Fall 2006 – Cochran Purposes of Tort Law Provide a peaceful means for adjusting rights of parties Deter wrongful conduct Encourage socially acceptable behavior Restore injured parties to their original condition I. Intentional Torts to the Person and to Property A. The meaning of intent 1. Ways Plaintiff can establish intent Purpose to enact a result Garrett v. Dailey Knowledge to a substantial certainty that an invasion of the protected interest would take place o Knowledge and appreciation of risk, short of substantial certainty, is NOT the equivalent of intent. Spivey v. Battaglia Transferred intent – if D intended an invasion which falls within one of the original trespass writ torts (battery, assault, false imprisonment, trespass to land, trespass to chattel) and causes an invasion which falls within one of them, intent is established. Talmage v. Smith o The fact that the injury resulted to another than was intended does not relieve the D from responsibility 2. Not a Limit on Intentional Tort Claim Age – Garret v. Dailey Extended consequences When D intentionally causes P to undergo an offensive contact and the resulting injuries are more extensive than a reasonable person might have anticipated, D will still be liable for those injuries. Insanity Where an insane person by his act does intentional damage to the person or property of another he is liable for that damage in the same circumstances in which a normal person would be (and by extension children) McGuire B. Intentional Torts – P’s case 1. Battery An act – Must be voluntary With the intent to cause a contact with a person which is harmful or offensive, or with the intent to cause the imminent apprehension of such contact. To be ―offensive,‖ the contact intended must be a contact which a reasonable person within the P’s shoes would find to be offensive. Causing: Indirect causation is sufficient A harmful or offensive contact with the person. Includes contact with something P is holding. Fisher v. Carrousel Motor Hotel, Inc. 2. Assault An overt act – Open to be seen or viewed. Speech is not an act
2 With the intent to cause an immediate contact with a person which is harmful or offensive, or with the intent to cause the imminent apprehension of such contact. Causing A reasonable, imminent apprehension of such contact. 1. Actual ability to make contact not required, so long as apprehension is reasonable. 2. Apprehension (not fear) is required Western Union v. Hill 3. We require an overt act as a practical administration matter, in order to eliminate some cases. 4. If threat not imminent, not an assault. False Imprisonment An act – must be voluntary. Or in the case of duty to another person, an omission (that isn’t unreasonable) With the intent to confine within boundaries. Confined area must have no other known reasonable exits. Intent to confine must be for the present time, not the future. Causing The confinement of P within boundaries 1. If you reasonably believe that you can’t leave, that is enough 2. Retention of P’s property sometimes may provide the ―restraint‖ necessary 3. If P submits to persuasion without force or threat, there is not false imprisonment 4. Threat of future actions is not enough Whittaker v. Sanford (boat away from shore) P’s awareness of the confinement OR P’s harm from such confinement Intentional Infliction of Emotional Distress An extreme and Outrageous Act exceeds all bounds that society could tolerate, or must be a not so outrageous act that would cause sever distress to the particular P because of a certain condition that was known to D. Intentionally or recklessly Recklessness – a conscious disregard of a high probability of the harm An intention to cause severe emotional distress exists when the act is done for the purpose of causing distress, or with knowledge on the part of the actor that sever emotional distress is substantially certain to be produced by his conduct. Causing Can cause the distress to the person the conduct was aimed at or a third party if the third party was 1) observing the conduct, 2) close relative of victim and 3) D knew third party was observing. Severe emotional distress Parasitic Claim—all doors are open if there is another tort claim Common Carriers & Inn Keepers—situations where free market system does not operate well, and there is not way to avoid these services. Trespass to land An act
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3 With the intent to enter or remain on land. Don’t have to know it’s someone else’s land. Land refers to actual land as well as everything underground and immediate airspace. Substantial certainty can prove intent. Causing The entry or remaining on land in which P has a possessory interest by the D, 3rd person, or thing. Does not have to be a tangible thing to be trespass, but actual and substantial damages are required, otherwise it is a possible nuisance. Interferes with the right to exclusive possession of property, trespass Intrusion is to the use and enjoyment of property: law of nuisance applies Private Nuisance An act Negligently or intentionally Causing A substantial, unreasonable interference with P’s use or enjoyment of P’s land. If P moves to area where nuisance already existed, no tort Characteristic of neighborhood Value of interests Who was there first Trespass to Chattels (all property except real property) An act With the intent to affect a chattel Causing Damages to a chattel in which P has a possessory interest or loss of its use for a substantial time or injury to P or a person or thing in which P has a legally protected interest. Only remedies are to get property back, or damages Must be substantial damage Conversion An act With the intent to exercise dominion or control over a chattel Causing An interference with the right of P to control the chattel And the interference is so serious that the D may be justly required to pay the P the full value of the chattel. Must have one of these: o D’s exercise of dominion and control for a substantial amount of time o Substantial harm done to the chattel o Substantial inconvenience and expense caused to the P, or o D’s intent to assert a right that D knows is inconsistent with P’s right of control (good faith under rare circumstances, may be a defense to an action for conversion) Remedy: get property back and or value or damages or forced sale (Replevin or Trover)
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4 C. Privileges (Defenses) to Intentional Torts 1. Consent a) Explicit Consent (Express Consent) Restatement – if your purpose is to cause injury, there can be liability. Given prior to a medical procedure (informed consent) No defense: consent given under duress Valid defense: consent given by mistake, unless D knew it was a mistake b) Implied Consent Sports – consent to actions that are normal and usual within the game; general customs of the game Medical – if you are conducting surgery and you notice something else that is life threatening, you have consent, or if unconscious in the ER, implied consent. Law assumes consent under social policy. c) Apparent Consent In determining if there is consent, ask, would a reasonable person in D’s shoes consider it consent. Must be considered in connection with the surrounding circumstances Behavior indicated consent D can be guided by overt acts and manifestations of her feelings d) Factors negating consent Fraud: (consenting under false conditions, including explicit direct fraud and where there is mistake on part of P as to D, and D knows of the mistake but doesn’t say anything) Incapacity, age, mental disability – there are some torts that even people at a young age should be able to consent to, if you are able to know the nature and probable consequences of the act; look to the circumstances; same idea with mental dis. Duress-threat does not have to be immediate Consent to a violation of a positive law: Something the legislature has prohibited, i.e., consenting to a price war, but there are laws against it.) Majority rule says if there’s a statute ruling against it, even if P consented, he has a cause of action, unless statute is designed to protect persons with a particular vulnerability, i.e., under the age of 16, like stat. rape. 2. Self Defense a) Existence of privilege Burden of proof is on D to show he had a Reasonable Belief of harm (okay if mistaken) b) Retaliation NO PRIVILEGE c) Reasonable Belief Still a defense (except in some jurisdictions) d) Provocation Words not enough unless the words make D think he’s reasonably in danger No privilege, but can affect punitive damages for P
5 e) Amount of Force Limited to the use of force that is or reasonably appears to be necessary for protection against a threatened battery To justify deadly force, or a deadly weapon, D must prove reasonable apprehension of loss of life d) Retreat With Gun, doesn’t matter In home, no retreat Retreat the best way one can without causing danger e) Injury to third Party Privilege is carried over, and he is not liable to third parties, unless negligence. Negligence is determined by emergency and necessity of defense. Defense of others Some courts: you step into the shoes of the person you’re defending. If they are the aggressor, so are you. Other courts: D is privileged to use reasonable force to defend another even when he is mistaken in his belief, so long as the mistake was reasonable. Defense of Property a) Deadly Force Only use when trespasser was committing a felony of violence OR Felony punishable by death OR Trespasser was endangering human life by his act b) To defend Real Property First make a request to leave (unless futile) Then you can use REASONABLE force No privilege against lawful entry (even if mistaken) unless intruder mislead D. Recovery of Property a) Rule If you have tried to get it back and it fails, you can use reasonable (not death or serious injury) force, but there needs to be prompt and persistent recovery) b) Stealing Rule If they have a reasonable belief that somebody took something, they have a right to stop them for a reasonable investigation of the matter. c) Force If the person uses force against you to put you at risk, you at that point can use reasonable force against them d) Reasonable mistake Can be used when recovering personal property, but not for real property Necessity a) Protecting If you are protecting your own interests, okay but you have to pay damages. If protecting other people’s interests, don’t have to pay. b) Rule In an emergency situation, you are entitled to do what would otherwise be a tort
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6 c) What is sufficient necessity? Believes it is needed (not a good one) Destruction was needed (in retrospect). If in looking back, it looks like D did in fact save something else, then he is not liable Did D reasonably believe there was necessity? (Private actors) Did P believe it was necessary? (Public Officials) 7. Authority of Law a) If D is duly commanded or authorized by law (by his position) to do what he does, he is of course not liable. b) Arresting: a cop will still be liable if he makes a reasonable mistake and arrests the wrong person even if he has a warrant to arrest the right one. Can arrest w/o warrant if there is a reasonable belief that a felony or a breach of peace will occur. 8. Discipline Reasonable force under the circumstances by a parent or a guardian or someone temporarily responsible for the child. The discipline can be carried out even if the parent objects. D. Additional Important Information Concerning Torts 1. Procedural Steps giving rise to tort questions Directed Verdict 2. Factors which influence courts Social policy Consistency Compensation Practical Court administration Culpability 3. Factual issue as it becomes a legal issue: This would happen when the facts were so established that it needn’t be sent to the jury Scale: Legal Issue-------------Factual Issue------------Legal Issue Clearly No Arguable Clearly No Judge Decides Jury Decides Judge Decides 4. Definitions: Prima Facie – Present enough evidence so that reasonable people would differ over the facts Duty – Created by 1) promises made; 2) relationship i.e. dependence; 3)being in charge of premises Parasitic Claim – One claim links to another claim (like battery) enable for recovery to be allowed (plate snatcher) Conversion – There is a more serious remedy so what establishes conversion needs to be more serious. The interference needs to be ―so serious.‖ Respondeat Superior – a type of Vicarious liability (we hold someone else liable for a person’s negligence) that says employers are responsible for torts of employees if done within the scope of employement II. Negligence Torts Duty: P must show that D owed him a duty Breach: of duty of reasonable care; (can be referred to as negligence)
7 Causation: Damages: A. Cause in fact: ―without which not‖ test Proximate cause: reasonably close connection between negligence and harm no recovery for nominal damages, must have proof of damages Duty 1. Persons not foreseeably injured Cardozo/Majority Rule: Duty to only those that are foreseebly injured. There has to be notice of some risk to P for there to be a duty Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do Half states follow rule that there is a duty to everyone, including those unforeseeably injured When the B (burden of Safety) < P (probability) x L (loss); Hand formula B < foreseeable risk (PL) = negligence; what’s the risk that D could have foreseen? 2. The risk reasonably to be perceived defines the duty to be obeyed; Risk to others within the range of apprehension. Zone of Danger Exception: imminently dangerous acts (shooting a gun) create a larger range of apprehension (transferred intent) 2. Andrews: Everyone has a duty to exert reasonable care to the world at large (Minority Rule) Breach (D was negligent) 1. Negligence Factors & Negligence Formula a) Probability – Foreseeable Probability of Injury Ex: Pipes bursting during cold weather o Courts look at the reasonableness of situation o Unusually Cold o Extraordinary circumstances possible, but small probability b) Loss – Foreseeable Loss if Injury Occurs A person of ordinary prudence, and mindful of the duty of cautious care with which appellants were charged, should have known of the condition aforemoment, that a sudden fire or explosion would be caused by the stated condition of unrepair, and hence appellants are liable for the injury that resulted Burden of Safety was small, the potential loss was great c) Burden of Safety – Burden of Safety Does the danger outweigh the slight expense or inconvenience that would be entailed to make it safe? Ex: Kids playing on R.R. turntable, kid loses leg. Turntables were unlocked, and R.R. knew kids played there Learned Hand Formula: B < P x L = Negligence/Liability o L is measured as foreseeable loss from D’s viewpoint at time of accident o Criticism: attempts to simplify a complicated problem o Standard of ―reasonable safety‖ allows reasonable lack of safety o Hand formula encourages costs-benefit analysis
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8 2. The Reasonably Prudent Person Objective Standard (as opposed to subjective standard of intentional torts) a) Custom Tends to show that a risk was so foreseeable that it was well known within the industry Facts of ―general practice‖ are admissible, but NOT conclusive o Common usage is not enough o Test of Reasonableness: was it reasonable or unreasonable to replace the glass door at this time? Proof of customary practice can also be used to show reasonable care, but is also not enough on its own to be conclusory Circumstances where D will want to introduce custom: o Trying to argue contributory negligence o Circumstance where he followed customs as a defense (i.e. when he installed the shower door, glass was custom) b) Emergency Situations What a reasonable person would have done under the same emergency (unexpected dangerous situation). Some people may exhibit great courage in such situations, that is still not what an average reasonable person would do c) Physical Disabilities Standard is what a reasonable person with a disability would have done Intoxication is not treated as a handicapped person, for purposes of this rule d) Children What a reasonable child with the same intelligence, age, & experience would have done Exception: (some courts) children engaging in an activity which is normally one for adults only (gun) Exception: when a child engages in an inherently dangerous activity, as is the operation of a powerful mechanized vehicle, the child should be held to the adult standard of care (snowmobile) e) Mental Incapacity: A sudden incapacity equivalent in effect to such physical causes as a sudden heart attack, epileptic seizure, stroke, or fainting should be treated alike and not under the general rule of insanity Insanity is not a defense unless it is sudden and unforeseeable Practical court administration: otherwise insanity would always be a defense and one cannot fake a disability or age Most courts do not make any allowances for the mental illness of D; D is judged by the standard of the reasonable person Contributory Negligence: more likely to excuse an insane person’s conduct if the insanity prevented the P from understanding the danger and taking action; instead held to a standard of care for person with insanity Malpractice a) The professional
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9 Held to objective minimum standard of all members of his professional class o The knowledge, training, and skill of an ordinary member of the profession in good standing o Expert testimony is usually needed to inform jury of the standard of care for the profession b) Legal Malpractice An attorney who acts in good faith and in an honest belief that his advice and acts are well founded and in the best interest of his client is not answerable for a mere error of judgment or for a mistake in point of law which has NOT been settled by court of last resort an on which reasonable doubt may be entertained by well-informed lawyers Is answerable if: o Any loss to client which proximately results from a want of that degree of knowledge and skill ordinarily possessed by others of his profession similarly situated, or o From the omission to use reasonable care and diligence, or o From failure to exercise in good faith his best judgment in attending to the litigation committed to his care P must show that but for lawyers negligence they would have been successful c) Medical Malpractice A doctor must have the degree of skill and learning possessed by an average member of medical community in which he practices, and to apply that skill with ordinary reasonable care. IF does notmalpractice To be held liable for malpractice, a doctor’s treatment must have done something forbidden by his medical community, or failed to do something standard by his community Standard of medical practice in the community must be shown by affirmative evidence, without which jury cannot reach verdict Negligence is never presumed, but must be affirmatively proven o A treatment that was unsuccessful, or did not give intended results, or results in death does not alone prove malpractice Negligence must be established by expert medical testimony, unless so grossly apparent Testimony that other doctors would have used different treatment NOT enough, UNLESS it also appears that the course of treatment followed deviated from methods approved by standard of community General Standard is the Practice of the Profession of the ordinary Doc, established by expert testimony (narrow exception: so outrageous that an ordinary layperson can look at the situation and understand it) Generally Jury does not assess what the conduct SHOULD be for doctors What Custom do we look at? Traditional Rule: General practice within that doc’s community (―strict locality rule‖) Majority Rule: Practice of Docs in this or similar communities (moving nationally)
10 Trend, Developing today: National standard of medical practice Informed Consent: Generally You have a right to informed consent, including alternative treatments Doctrine of Informed Consent: Does not allow a physician to substitute his judgment for that of the patient by any form or artifice Imposes a duty on the physician to inform patient of his options and their risks Adequate Consent: (must be based on): Adequate information about the treatment Available alternatives Collateral Risks The standard is different o Standard is established by the profession in some jurisdictions (what is done by doctors in community generally, do doctors generally inform patients of particular procedure). o Other jurisdictions have jury determine if a reasonable patient would want informed consent in this situation Cause in Fact was an issue in this case: o Canterbury Rule: most jurisdictions require P to show that HE would not have had a procedure if knew danger, AND that a reasonable person would not have procedure Harder for patient to recover o Minority: Just prove that the P would not have had procedure Subjective Standard, Scott v. Bradford This at least puts risk on Doc, if he chooses to give informed consent Both methods carry disadvantages: reasonableness test cuts back on the rights of personal autonomy; the personal test puts doc at risk for hindsight of patient Source of the Standard of Conduct Look for these in reverse order: a) Reasonableness Determined by Trier-of-fact (Jury) b) Reasonableness determined by Trial Judge as Issue of Law c) Rule of Law Established by Appellate Court Decision General Rule: have a duty to stop, get out, walk around, check, and then get back in the car and go forward Question becomes when should appellate court adopt a new rule; when does the old rule become unreasonable? Rules of Law: when there is a clearly defined risk and a standard set of facts, and a well established loss and probability of loss, it’s a good situation for a rule of law d) Statute or regulation adopted by a court Statute will establish negligence when: 1) the injured person is in the class of persons that the statute is intended to protect, and 2) injuries (type of harm) that the legislature intended to prevent by passing statute When applied
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11 o Limitations: P must prove the failure to perform the duty constitutes negligence, and renders the party liable for injuries resulting from it o HYPO: no parking 30 ft from hydrant, car swerves and hits kid, statute does not apply o P must prove: Statute meant to protect the P and Damage was proximately caused by failure to follow statute o When statute does not provide context for determining whether the 3rd party’s injury would not have been caused but for breaking the statute; the court looked to a regulation for context Effect: Evidence of Negligence o Negligence per se: Negligence established as a matter of law, so that breach of the duty is not a jury question. Negligence per se usually arises from a statutory violation – also termed legal negligence May be rebutted by an excuse Restatement An excused violation of a legislative enactment or an administrative regulation is not negligence Unless the enactment or regulation is construed not to permit such excuse, its violation is excused when: o The violation is reasonable b/c of the actor’s incapacity o He neither knows nor should know of the occasion for compliance o He is unable after reasonable diligence or care to comply o He is confronted by an emergency not due to his own misconduct o Compliance would involve a greater risk of harm to the actor or to the others. (this list not exclusive) Strict liability statutes cannot be excused Statute which establishes negative cause of action by its terms o Some statutes give explicit tort liability to anyone who is harmed by any violation of the statute Ex. Clean water Act It is bound by Legislation Proof of Negligence a) Direct Evidence Testimonial, or physical, evidence. If you believe the testimony of the witness and it’s direct evidence, it will control the outcome of the case. Fact of consequence (ex. People that were sitting on a bench and saw the employee ignore the peel) b) Circumstantial (Indirect) Evidence – In General
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12 Evidence that, if believed, establishes an intermediate fact, an inference is required to get to fact of consequence Two levels of burden: enough evidence that reasonable people could find the elements to exist (see handout) o If he fails to meet burden of production, Judge gives directed verdict for D o If successful for there to be discussion – goes to jury o If he provides a lot, then he is in the zone of persuasion that through the greater weight (preponderance) of evidence, the wrong exists o Produces so much that all reasonable people would agree, Judge gives directed verdict for P (rare) Banana Peel Cases: Challenge to the P: prove that D has failed to keep premises reasonably safe. P can show: o Lots of trash on floor: circumstantial o Color of peel: circumstantial; does not absolutely establish that it had been there for long period of time, though alternative unlikely o Testimony of people saying they saw it there for hours: testimonial o Constructive Notice v. Actual Notice CN: they didn’t have notice, but we are assuming that they knew b/c it had been there a long enough period of time they should have known and taken care of it (shows breach of duty) Cases: Goddard & Anjou: peel was flat & dirty, allowing inference to be made Anjou: employee was leading P Joye: just dark brown in color, not enough for inference; dirt on the peel not enough because there was dirt around the floor Ortega: Store manager’s testimony could be between 10 min. to 2 hours – question of fact (jury) Pizza Cheese on Floor: When operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable, the logical basis for the notice requirement dissolves P has burden of proof for the elements D has burden of proof of defenses c) Res Ipsa Loquitur The thing speaks for itself (barrel of flour rolls out 2nd story window, hits P) P’s burden is especially difficult because we do not know what the D did, we cannot easily develop a standard of conduct Determine that D is negligent if: o Accident ordinarily does not happen without negligence o The instrument was under D’s control – it’s reasonable to conclude D was negligent
13 o (P not at fault) – only some districts Hotel case: P must prove that hotel had exclusive control. Hotel only had partial control. P would not prove that under ordinary events and ordinary care the accident would not have happened o Modern Trend: focuses on practicality of control, forms standard of conduct Ybarra: patient would not have had injury unless there was negligence o When unconscious from med treatment, all Ds may be negligent under RIL Ban mothers case: issue of multiple Ds, all of which might not be negligent Distinguish: o Cooked independently, so only one is responsible, and no one else is at fault o Not trying to protect each other – no ability to know who did it (no inference of collusion) o Deep pocket of med insurance o ―special responsibility of med professionals Courts give RIL different weight in different jurisdictions: o Most courts say that if RIL is found, it’s only an Inference of negligence o Other courts will call it presumption of negligence o Other courts will call it a presumption of negligence and the burden of proof is shifted onto D to prove that there was NOT negligence
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Cause-in-Fact 1. The “Without Which Not” Test Without the acts of D, P wouldn’t have suffered any injury P has to show not that it 100% would have happened, but that more likely than not, it would not have occurred Test works w/ multiple negligent acts Is expert witness testimony required? NO because a reasonable person with ordinary experiences could make the appropriate determinations Reduced Chance of Recovery/Loss of Chance to Live: o Split in jurisdictions regarding reduced chance of recovery Traditional – only if the doc has deprived you of 51% or more then you get full recovery Is ambiguous in P – value of life? Heskowitz – proportional recovery; would be able to recover 14% of the loss of P’s life; there is no way to prove if he would have been in that 14% category or not – court says we won’t give you full recovery but we’ll take the value of the reduction and multiply it Courts only examine the natural and ordinary course of events Where the negligence of the D greatly multiplies the chances of accident to the P, and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect
14 Expert Testimony: Daubert (Benedictin Case) Court’s gate keeper function Fry Rule: expert testimony admitted if generally accepted in the scientific community (rejected by Supreme Court) Daubert Test (9th Circuit) o Court must determine nothing less than whether the expert’s testimony reflects ―scientific knowledge,‖ findings ―derived by scientific method,‖ and whether their work amounts to ―good science‖ o Court must ensure that the proposed expert testimony is ―relevant to the task at hand.‖ (logically advances a material aspect of the proposing party’s case) Factors mentioned by Supreme Court o Is theory/technique used by expert generally accepted in scientific community? o Has it been subjected to peer review & publication? o Can it be tested, and has it been tested? o Is the known or potential rate of error acceptable? Does the Expert Testimony fall within range of acceptable standards of scientific research? Multiple Causes, generally Where separate acts of negligence combine to produce directly a single injury each tortfeasor is responsible for the entire result, even though his act alone might not have caused it Multiple Causes, either would have caused the harm Anderson Twin Fire Case o Cook Doctrine (not followed in Anderson) If either cause independently would have caused the loss, there is not liability o Joint and Severable Liability (adopted by Anderson Court) P can recover full amount from any one or combination of Ds Looked for a material or substantial factor (concurrent, independent causes according to CA) Alternative Negligent Factors Substantial Factor Test: Summers (problems in determining which party caused the harm) o When two facts combine to cause an injury, and either one of the factors would have independently caused the loss o Innocent P, guilty Ds; both Ds were definitely negative, Ds should bear the cost of the injury o Ds are in a better position to prove their innocence Sindell – Drug given to mother during preg and now defects are suffered. Applying the w/o which not test: w/o the drug co producing the drueg, the loss would not have occurred. All Ds were negligent in producing a drug that caused the loss, even if they aren’t all the CIF.
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15 Hall – Blasting cap case – industry wide cooperation in the manufacture and design of blasting caps, industry wide practice caused injury. Small number of producers in a small industry, joint & severable liability (―enterprise liability‖) D’s Market Share x Full Loss = what D owes P, Unless D can prove he could not have made product which caused P’s injuries Proximate Cause 1. Ryan Case: NY Rule: only responsible for first building destroyed in fire Reasoning: o Not expected result that fire would extend to other buildings o Injury: no prudence could guard o Damages that no fortune could meet o No liability insurance o Fairness: punishment greater than the fault o KN rule: enforces liability all ―the way to Z‖ 2. Egg Shell Skull Rule, p 299 D must take P as she finds him; liable for aggravation of pre-existing condition Unforeseeable consequences following a physical injury Minority: limit to pre-existing physical conditions, Majority allow fragile psyche and physical conditions ONLY APPLIES TO PROXIMATE CAUSE 3. Polemis Case: The ―stage was set‖ o Foreseeable that some damage could occur, therefore negligence for all damage traceable to the negligent act o Unforeseeable in manner, not result o Subject to liability for direct cause Direct Cause comes into play when D’s negligence acts upon existing conditions without the intervention of external forces that come into operation later Turns on timing rather than culpability 4. Wagon Mound 1 (suit by dockowner) Did ship owe a duty to the dock? o Cardozo: duty to those foreseeably injured o It is foreseeable that a ship acting negligently will cause injury to the dock o Oil caused damage to slipaways (foreseeable damage) o Court’s criticism of Polemis: (direct cause rule) do you look to discreet aspects of the activity or the activity in general o Court cites unfairness of Polemis (A & C suffer damage, only duty to A, only A can recover Test of liability for fire is foreseeability of injury by fire Liability imposed within the circle of reasonable foreseeability o Note: a negligent actor is legally responsible for the harm, and only that harm, of which the negligent aspect of his conduct is a cause in fact.
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16 5. Wagon Mound 2 (suit by other ships) If it is clear that a reasonable man would have realized or foreseen and prevented the risk, then it must follow that the appellant is liable in damages o Different from #1, because #1 tried to show direct cause o #2: perspective of expert, not ordinary sailor: that some risk of fire would be present in mind of a reasonable man in ship’s engineer’s shoeshe ought to have known it was possible, therefore liability Palsgraff: Negligence would entail liability for any and all consequences, however novel or extraordinary R.R. Loop Case Liability for foreseeable injuries in an unforeseeable manner Kinsman 1 Recovery for landowner between dock and lake Foreseeable injury: doesn’t have to be same injury, as long as same risk Kinsman 2 No recovery, economic loss was too remote an injury/indirect consequence of D’s negligence Economic loss alone cannot recover, parasitic if it can be attached to damages Review of ways to show proximate cause Foreseeable consequences (Wagon M 1, very narrow) Foreseeable injury in unforeseeable manner (R.R. loop) Eggshell skull rule Intervening v. Superseding Cause Intervening Cause: cause in fact for loss, removes direct cause Superseding Cause: an intervening cause which cuts off liability Precise manner of event need not be anticipated; an intervening act may not serve as a superseding cause & relieve actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent IF the intervening act is extraordinary under the circumstances, not foreseeable in the normal courses of events, or independent of or far removed from the D’s conduct it may be a superseding cause o Ex: Trunk Lid Case: car maker not liable if driver is injured by 3rd party while fixing trunk lid o P’s own conduct can be superseding cause Watson v. R.R. o Man lights a match on purpose after R.R. negligently allows flammable gas out o Man’s criminal act is superseding cause, not foreseeably by R.R. o If Man’s action was unintentional, then foreseeable, R.R. liable If D had a duty to protect against criminal acts, then not superseding cause Suicide o Traditionally, cut off liability Argument that the P was the intervening act o Issue of irresistible impulse, if so, not superseding
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17 Minority Rule o Rescuers There is a duty owed to the rescuer, because it is foreseeable that negligence will cause a need for rescue: ―danger invites rescue‖ Rescuer must still prove proximate cause Is it foreseeable that rescuer would be injured in such a way? Remote cause will not allow recovery LA rescue case Liability against the rescued if the negligently caused loss suffered Fire fighter Rule The D who caused the danger will be liable to someone who is injured trying to escape the danger Attempt to alleviate harm caused by D, D still liable for aggravation 2nd Injury caused by weakened condition resulting form 1st injury First D responsible for second injury o Duty of Host/Hostess Minority: host has a duty to guests (is proximate cause for DD) Majority: Host does not have a duty (is not proximate cause) Damages Must be shown by P to recover on a negligence claim
DUTY PART II A. Failure to Act 1. European Countries do have a duty to rescue 2. No general duty to rescue; exceptions When one proceeded against is master or invitor Or when the injury resulted from use of an instrumentality under the control of the D Obligation may exist although the accident or original injury was caused by the negligence of the P or through that of a 3rd person and without any fault on the part of the D. (Ayers) 3. In other words: recovery allowed because (each one would be enough for liability) Their instrumentality created the dangerous situation (though not negligently), therefore affirmative duty to act with reasonable care to avoid exacerbation of the injury When your instrumentality has created a dangerous situation, you have a duty to exercise reasonable care to correct it o Ex: hit cow with car, cannot just leave cow in middle of road where it could cause injury to someone else later on. You have a duty to correct it. 4. A duty to act can arise from a special relationship with victim/plaintiff EmployerEmployee o When employee is unable to look after himself, and in the course of work Common CarrierPassenger Innkeeperguest Temporary legal custodianher charge
18 Occupier—entrant on land Good Samaritan Statute: immunity to doctors & rescuers so not held liable for harm caused while rendering assistance When through your negligence you harm another, who have a duty to aid When a D creates (through negligence) a dangerous situation on the highway, he is under a duty to take reasonable precautions against injury to persons using it. If you do give aid, you are bound to reasonable care standard You can terminate aid so long as you do not leave him in a worse condition from when you found him When a spouse is on notice of a particular type of tendencyduty of reasonable care his or her spouse engaging in sexually abusive behavior against a particular person or persons, a spouse has a duty to take reasonable steps to prevent or warn of harm; breach of this is proximate cause Basic Rule: when D has a level of control over 3rd Person, they have a duty Yuba Case: Sheriff (CA) with witness, who testified against violent offender, scared he would do her harm, sheriff promised to notify when convict released, failed to do so, witness was killed by convict Court Held: liability (promise + reliance + personal injury = liability, limited to personal injury) D stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct Once a therapist does in fact determine, or under applicable professional standards should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger o Risks of unnecessary warning is reasonable price P must show that if they had been warned, they would have taken steps to protect themselves (cause in fact issue) Reasonable care duty: when a reasonable psychologist would know of the danger, to take steps of a reasonable psychologist
5. 6. 7.
8.
9.
B.
Mental Harm Original Rule: impact requirement for emotional harm o Physical contact & physical consequences Contemporaneous physical impact (not injury, just impact) was stretched far (Majority Rule) o Physical consequences (included faints) Must be objective, physical injury Court contradicts itself by allowing nervousness as enough to recover Absent special knowledge, if P is especially sensitive, allows recovery for ordinary person in that experience CA (Molien Syphilis) o Severe distress & high likelihood Risk for foreseeable to D D owed a duty to the spouse Viewing an incident & emotional distress o NY Rule: no recovery
19 o Amaya: zone of physical danger & physical symptom o Dillon: overruled Amaya, foreseeability of injuring a person then it is foreseeable that someone will suffer emotional distress Factors: Closeness to dangerous action, contemporaneous observation, closeness of relationship to individual o Thing v. La Chusa May recover for ED caused by observing negligence inflicted on 3rd party only if P Is closely related to injury victim Is present at the scene of the injury – producing event at the time it occurs and is then aware that it is causing injury to the victim AND As a result suffer serious emotional distress IF E.D. form injury to 3rd Party 1. No recovery 2. Zone of physical danger (amaya) 3. Foreseeable in the eyes of the D (Dillon) (ability to foresee this might happen) CA Rule (factors: closeness to scene, closeness of relationship, seeing the event) 4. Personally observe injury causing event & closely related (blood or marriage) (Thing) HYPO o Mother helping daughter ride bike, recovery under all but 1 o Watching daughter on bike out of window: No 1, No 2, Likely yes 3, yes 4 o Grandfather on phone, your daughter/granddaughter had been killed, Grandpa has heart attack No 1, No 2, Possibly either way 3, No 4 o Father watches in delivery room, by time of c-section, doctors were negligent No 1, No 2, Yes 3, No 4 – could not actually observe umbilical cord strangulation (arbitrary line) Unborn Children o Personally injury in utero, is born recovery allowed, all jurisdictions o Wrongful death: child not born is not a decedent, cannot recover o Woods: a child viable in utero, if injured by tort, should when born, be allowed to sue o Some jurisdictions draw line at certain timeline in womb o Majority do allow recovery at viability (and birth?), NY at birth, minority at conception Wrongful Life o NJ: wrongful birth claim by parents allowed Must show they would have terminated pregnancy if they had been informed Only extraordinary expenses may be recovered Small minority allow child to recover these expenses o Still must show that parents would have terminated pregnancy Doctor has a duty to the fetus
20 Wrongful life claim not allowed
Duty: Owners & Occupiers of Land A. Common Law: as individual’s status on property increases: more of a duty owed. a. Adult Trespassers, Generally No Duty b. Known Tress., Tres. In Freq. Area, Licenses Licenses: those permitted on your property for their business purposes. Social guests Police and firemen Active Conditions (ex. machinery, R.R. tracks) Traditional Rule/Minority Rule: no recklessness duty Majority: reasonable care Passive, Concealed dangerous condition (trap, hidden well) of which O is aware Duty to warn Obvious, passive dangers No duty c. Invitees (people you invite on your property for your business) Duty of reasonable care, including reasonable affirmative care. 1. Which category is person 2. which duty is owed 3. factual question: was duty met under the circumstances. Rowland v. Christian p. 502 Where the occupier of land is aware of a concealed condition involving in the absence of precautions an unreasonably risk of harm to those coming in contact with it, and is ware that a person on the premises is about to come in contact with it, the failure to warn or repair is negligence Trial court never decided if broken faucet was obvious or not. Supreme Court could have sent it back to trial to determine this. Instead Court said all are to be given a duty of reasonable care to all owners and occupiers. Another option court had was to only move licenses to duty of reasonable care. Ex.: Wherehouse that had been broke into before - O had notice that it was foreseeable that Tresspassers might break in, was responsible to another T who electrocuted himself. 10 other states adopted CA rule, 10 jurisdictions adopted a modified version, since then, many jurisdictions have kept the Common Rule categories (Majority Rule)
Tresspass and Children: 1. no special duty
21 2. attractive nuisance doctrine: if property had artificial condition (machinery, pool, ect.) the landowner was blamed for trespass itself, and a duty of reasonable care was imposed. Also, same for dangerous condition problem when the attractive nuisance or dangerous condition was not what attracted the children 3. RS: if artificial condition, if children are likely to trespass, there is a risk of death or serious bodily injury, the burden of safety to owner is slight compared to the risk, then owner is subject to liability. [end of plaintiff’s case, plaintiff had burden of proof] Nelgligence Defenses based on Plaintiff’s Conduct A. Defenses: defendant has burden of proof In the following cases, the defendant is alleging the plaintiff’s contributory negligence as a defense. This is distinguished from where there is a 3rd party or other defendant who is also negligent. That is NOT contributory negligence. B. Butterfield v. Forrester, p. 586 Contributory Negligence Old Rule: if plaintiff was acting without reasonable care, and one using ordinary care would have avoided the injury, then defendant not at fault Courts tended to send to jury anway. C. Davies v. Mann Rule of last clear chance Entitled plaintiff to get full recovery if defendant had last clear chance to avoid the loss. Based on timing of who was negligent at what time Hypo: drunk man asleep in street at night, driver hits him, drunk gets full recovery D. McIntyre v. Mann
Contributory Negligence – (minority today) – this is a complete defense o If Δ can prove that Π negligent act contributed to the injury, Π recovery is barred o The Last Clear Chance doctrine accompanies this If Π was negligent, but Δ had the last clear chance to avoid the injury, Π is entitled to full recovery E.g. If Π was lying in road, Δ can speeding along – he had the last clear chance to avoid the injury, and thus is seen as liable Comparative Negligence – (most jurisdictions) – Πs negligence is considered in the amount of recovery, but his recovery is not completely barred b/c of it o Pure Comp. Neg. – Πs recovery is reduced by his relative % of fault E.g. Π 48%, Δ 52% - Π recovers 52% of the damage o “Less Than” – Π will recover as long as he is less negligent than Δ – Π 49%, Δ 51% Π will recover; Π 50%, Δ 50% Π cannot recover o “Not more than” – Π will recover as long as his negligence is not more than Δs – Π 50%, Δ 50% Π recovers; Π 51%, Δ 49% Π cannot recover o When analyzing w/ comparative negligence, you should consider all of these rules. Relatively even split amongst jurisdictions Assumption of the Risk o Express AOR – (exculpatory clause) – generally enforced. This is more a matter of contract, and we want to maintain an autonomy principle among parties There are some situations in which a court will find that such a clause is detrimental to the public interest
22
(1) If party seeking protection intentionally harms individual, or acts recklessly or grossly negligent o But, there are some cases where you can even relieve a party of liability for intentional torts (i.e. athletics, etc) (2) If respective bargaining powers are grossly unequal (3) Public Interest – generally, these activites are a necessity. A great importance to the public (e.g. medical care, child care) Implied AOR – must be (1) Voluntary assumption (2) of a known risk Generally, known risks are a subjective test, but there are certain risks that everyone knows (or should know) about – e.g. foul balls at baseball games Implied AOR can sometimes merge w/ Comp. Neg. (1) (2) (3)
o
CNeg
AOR
Zone (1)(CNeg Only) Majority – Comp. Neg. // Minority – Contr. Neg. Zone (2)(CNeg & AOR) Majority – Comp. Neg. // Minority – Contr. Neg. Zone (3) (AOR Only) Some – No recovery // Some – Comp. Neg. // Some – Full ON an exam, 1st determine which category the actions fall into (Could fall into more than one – make respective arguments) – THEN, describe the different rules that have been adopted by jurisdictions