Brill torts Fall 97 Intentional Torts
A. Intent
Def: With purpose of voluntarily causing or with knowledge to a substantial certainty that the act will occur. Before you can prove the tort, you must prove that there was intent. In addition, intent alone is not enough to prove liability, also needs to be an act 1. Defenses to intent itself:
a. Mistake of fact: does not negate intent, but may enter into the picture for negligence. b. Insanity: not a viable defense ( this is because of public policy reasons) also because of the following:
1. will force caretakers to be more careful 2. easily faked 3. in the insane person has money, it is only right that the injured party should collect 4. difficulties of proof, or on the other hand, the ease of proof
c. Children – need to determine what a normal child of that age knows and would have thought and then determine how far away from the norm the child is
2. Transfer of intent – all of these intentional torts have the same intent requirement, so the intent to cause one of them can transfer over to another.
a. Battery, assault, false imprisonment, trespass to land, trespass to chattels b. if you commit one, and instead cause another, you are liable for the other tort.
B. Seven intentional torts (what are the pfc elements?)
1. Battery
a. Def: Intentionally causing (directly or indirectly) harmful or offensive contact with plaintiff‟s person, or some extension of plaintiff‟s person without consent or other privilege. b. „Intentionally causing...)
1. Acting with a purpose of causing a battery 2. or with knowledge to a substantial certainty that battery will occur. 3. do not have to have a motive, only intent to cause action that results in battery
c. „...direct or indirect...‟
1. conduct that is direct is battery, and offensive contact without permission is battery , even if the person did not intend to otherwise touch the person. 2. conduct can also be indirect, such as setting a force in motion which causes the contact
a. baseball
b. horse d. „...harmful or offensive contact...‟
1. harmful contact is generally construed as physical harm 2. offensive contact is determined by a reasonable person standard. What society deems is offensive contact. Battery is a dignitary tort – it tries to protect a person‟s dignity. 3. If you know that a person is hyper sensitive to something, this may change what is non offensive to offensive IE: being hugged in public.
e. „ ... or some extension of the P‟s person...‟
1. anything that is directly touching the P is a part of his person, such a plate or a book
b. Do not need to have a motive, but there must be intent to cause the action that results in the battery d. Do not need to have actually touched someone, can touch something associated with that person, such as a plate or book e. Offensive contact without permission is considered battery, even if the person did not intend to otherwise touch the person.
2. Assault
a. Def: Intentionally causing, by overt acts, the reasonable apprehension of imminent harmful or offensive contact, with apparent and present ability to carry it out, without consent or other privileges. b. „Intentionally causing...‟
1. Acting with purpose of voluntarily causing P to apprehend imminent harmful or offensive contact. 2. OR with knowledge to a substantial certainty that P will apprehend imminent harmful or offensive contact.
c. „....by over act....‟
1. act must be directed at the individual (just showing a weapon is not enough, but pointing it at them is sufficient) 2. words along are not enough 3. However, acts that normally would not constitute an assault, when coupled with specific works, can become an assault. (reaching into pocket while saying “I‟m going to kill you.)
d. „....reasonable apprehension of imminent harmful or offensive contact....‟
1. Standard: reasonable person. If an average person would have reasonably apprehended the contact, then this element is met 2. Overt act + conditional threat does not constitute assault. (If a reasonable person would understand the conditional nature of the threat, then there is no assault. IE: a guy shakes his fist at a women and says, “If you weren‟t a girl, I‟d .....” 3. Cannot suffer assault if you are asleep
e. „....with apparent and present ability to carry it out....‟
1. as long as the P believes that the D had an apparent and present ability, then this element is satisfied.
f. criminal assault
1. different from tort assault in that criminal assault does not require an apprehension of contact but does require that D have the actual ability to carry out the contact. 2. Whereas in tort assault, the d need not have the actual ability t carry out the contact, and the P must have had an apprehension of imminent contact. 3. Thus: in criminal assault, the victim need not know about the assault, but in tort assault, the victim must have known about the assault (otherwise the element of apprehension is not met)
g Most of the time there is assault and battery
3. False Imprisonment
a. Def: Intentionally causing, by words or conduct, the confinement of the P within some sort of boundary established by D, where the P is aware of the confinement, without reasonable means of escape, without consent or privilege. b. Intent
1. acting with the purpose of voluntarily causing P to be confined 2. Or with knowledge to a substantial certainty that P will be confined
a. intent can be transferred b. if you falsely imprison the wrong person, the intent to falsely imprison is transferred to the wrong person. c. „....by words or conduct....‟
1.Words or acts must be such as would restrain an individual against his will, because the individual would be afraid to disregard the threats. 2. Conduct may be an omission to act provided that D has an affirmative duty to assist P in leaving.
a. impossible to leave without P’s assistance, and prior understanding that assistance would be forthcoming (ship example) d. „....confinement of P within some sort of boundary established by D....‟
1. length of confinement is immaterial 2. Physical barriers, such as locked door 3. physical force
a. physical force toward the person of the P b. OR physical force toward a family member or possession of the P ( purse example)
4. Direct threat of force, must be immediate
5. Indirect threat of force: acts or words that reasonably imply that D will use immediate force against P‟s person, family, or property. 6. Loss of job can also be a means of escape 7. Failure to provide means of escape. Three ways
a. If P has lawfully come under D’s control b. It would be impossible to leave without P’s assistance c. There is an understanding between the parties that the assistance would be forthcoming. e. Invalid use of legal authority
1. False arrest
a. If warrant is invalid (warrant for wrong county) b. If police improperly used warrant for arrest (ie. Arrest wrong person) c. cannot arrest for a misdemeanor not performed their presence. Unless police have a warrant. d. If the police arrest someone without reasonable grounds e. If after a valid arrest, the prisoner is unduly restrained before being taken before a magistrate for holding over. f. Failure to release a prisoner after they have been freed by the court
2. Shoplifting detentions are illegal unless all three elements are satisfied:
a. there is a reasonable belief as to the fact of theft b. the detention must be conducted in a reasonable manner and only nondeadly force is used c. the detention must be only for a reasonable period of time, and only for purpose of making an investigation. f. „....P is aware of confinement....”
1. P must have an awareness of confinement at the time of confinement 2. 2nd restatement does not require awareness of confinement if confine is injured.
g. „....Without reasonable means of escape...‟
1. There must not be a reasonable and apparent means of escape. 2. How reasonable and apparent an escape might be depends heavily on the facts of he case, and the confinee‟s personal characteristics (age/fear/disabilities). 3.
Exceptions: there are some exceptions made if the person has a medical condition or some other ailment which would justify restraining someone
4. Trespass to Land – did we do this? 5. Trespass to Chattels – did we do this? 6. IIED – we did not do this? 7. Conversion – did we do this?
C. Defenses to intentional torts
1. Consent
a. A defendant will not be liable for an otherwise tortuous actions if plaintiff consented to the act. Consent can be given through express, implied, or customary means. b. Expressed – when P has expressly shown a willingness, through words (verbal or written) or acts, to submit to D‟s conduct. c. Implied – overt acts, or words which would lead D to believe that P consented. There are three types of implied consent:
1. Apparent consent: This is judged by the reasonable person standard. If it would reasonably seem to D that P consents, regardless of P‟s subjective state of mind, the law would treat P a consenting. 2. Subjective consent: If P‟s state of mind indicates he gives consent, even if it this consent is never manifested to the D, consent will be implied. 3. If there is an emergency situation (life threatening or bodily harm) where P is incapable of consenting, then consent for help is implied if a reasonable person would conclude that contract was necessary to save life or limb.
d. Customary – If it is customary for one in the P‟s position to consent to a certain act by D, there will be consent (even if a reasonable person would not have thought so). e. If D goes beyond the act consented to, and does something substantially different, D will be liable. f. Exceptions
1. Consent induced by deceit or fraud, of an essential matter 2. Consent given under duress 3. Consent based on mistake, only if D knew of P‟s mistake and took advantage of it. 4. Consent given to those without capacity (such as incompetents, drunks, small children cannot given consent) 5. Consent to criminal acts (majority view)
2. Self Defense (Did we cover this?)
a. Def: When a person has reasonable grounds to believe that he is being or is about to be attacked, he may use such force as is reasonably necessary for protection against the potential injury. b. When Applicable/ available
1. Reasonable belief: the actor need only have a reasonable belief as to the other party‟s actions. IE: apparent necessity, not actual necessity, is sufficient. Hence, reasonable mistake as to the existence of the danger does not negate the defense. 2. Retreat: There are two views on this
a. One may stand his ground and use force without retreating so long as it will not cause serious bodily harm (except when in the actor’s home). b. However, many courts have hold that one need not retreat before using force sufficient to cause serious bodily harm, or even deadly force.
3. If a person is the initial aggressor, once he retreats, he ahs the right to self defense against the person who he had originally threatened.
c. When Not applicable/available
1. Retaliation not allowed: Self defense is limited to the right to use force to prevent the commission of a tort. Thus, one may never use force in retaliation (ie. When there is no longer any threat of injury) 2. Provocation not allowed: Most courts have held that insults, verbal threats or offensive language do not justify self- defense. Usually, however, if abusive words are accompanied by an actually threat of physical violence which warrants an apprehension of imminent physical harm, on e has right to defend.
d. Amount of force – One may use only that amount of force which reasonably appears to be necessary to prevent the harm. NO more force than is apparently necessary may be used (if actor doesn‟t use „like‟ force, he can loose the privilege of self defense).
1. Considerations for the amount of force to be used are: age, size, and relative strength 2. To justify using deadly force, actor must have a reasonable apprehension of loss of life or serious bodily harm. (thus deadly force only against deadly force)
e. Injuries to third parties: Injures done to third parties by someone legally acting in self defense cannot be held against the actor. If A intends to shoot B in self-defense, and accidentally shoots c. there will be a transferred intent allowed and A will not be held liable for injuries sustained by C. (Unless C can prove negligence).
3. Defense of Others
a. One may use reasonable force to defend another person, only if that person could have used force to protect himself. Thus the person aided must have a legitimate claim to self defense b. When this defense is available: There are a variety of views
1. one may defend someone else, even if that person is a stranger, if he reasonably believes that the circumstances warrant the necessity of the intervention.
a. Some courts have held that the person is only privileged if the person who he is helping was privileged, (ie if you made a mistake and helped the aggressor, you may be liable) b. other courts have held that even if mistake was made so long as your belief was reasonable you will not be held liable.
2. Amount of force: the same rules apply to defense of others as apply to self defense 4. Defense of Property
a. Def: one may use reasonable force to prevent a tort against his property b. When defense is available:
1. After a request to desist: such a request usually required to precede the use of force, unless the circumstances make it clear that the request would be futile or dangerous.
c. Defense is limited to preventing the commission of a tort against the property
1. therefore, once the property is permanently dispossessed the one may not use force to recapture the property. 2. However, if one is in hot pursuit, the person is still considered to be in the process of committing the tort; therefore, one may still claim the defense.
d. Mistakes
1. Mistake of dangerousness: if the property owner mistakenly but reasonably believes that force is necessary to protect his property, his use of force will be not be challenged, provided there is a real non privileged intrusion 2. Mistake as to intruder‟s privilege
e. Privilege of necessity will prevail over the privilege of defense of property. d. Amount of force used:
1. Rule, one may use reasonable force 2. May not use deadly force unless the invasion of property includes a serious threat of bodily harm to the owner 3. Cannot use traps, spring guns, etc on a trespasser unless property owner had a right to use those things him self directly
Negligence:
A. Negligence Formula
PFC Case:
a. D had a duty to use reasonable care towards the P. Did defendant owe a duty to plaintiff to conform to a standard of conduct that would protect plaintiff from unreasonable risk of harm a.k.a. did the defendant take reasonable care b. The D breached that duty (Was there a breach of that duty) c. This breach was the proximate cause of the resulting injury to P. Proximate cause, cause in fact, causation, legal law d. And P‟s injury constituted actual damages. The plaintiff must suffer actual harm, either physical or to property
B. Key is to balance the factors
a. What would be the burden of care for the defendant vs. the possible injuries resulting for the lack of care. One way to consider this is to ask how foreseeable the injury was.
C. To determine if there was a breach of duty,
1. did the D owe the P a duty of reasonable care. 2. Determine whether a reasonably prudent person acting under the same circumstances as the D, would they acted as the D did. 3. Only if the D owed a duty to the P, and a reasonable person wouldn‟t have acted as the D did, can the D be found to have breached the duty, and is hence negligent.
I - Was there a duty, what was the standard of care?
General:
To find Negligence, first determine if there was a duty owed, Then go on to see if a reasonable person...would have acted in the same way... Assuming that the duty outweighs the burden, it is then a jury question as to the reasonable precautions that should be been taken, and what should be taken in the future. If the D did owe the P a duty to protect against unreasonable risk, then move on to the reasonable man standard Reasonable foreseeability: the courts will look to whether the danger was „reasonably possible‟
Foreseeability is not a matter of odds, rather it is based to a large part on our own experiences (conventional wisdom). Degree of danger: The more serious the potential injury, the less foreseeable its occurrence need be before the D will be held to be negligent for not guarding against it.
Burden: what society will tolerate. If the burden it too great, society will tolerate the foreseeable risk. Deals with preservation of freedom
Prima facia case for negligence is based on probability (51%) Def: Reasonable foreseeability of the potential harm, coupled with the magnitude of the injury likely to result, then balanced against the burdens – financial, physical, societal – that would be imposed on the defendant if required to alter his/her conduct.
Standard of care (Duty):
Def of Duty: an obligation recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks Cardozo: the P has to be a foreseeable plaintiff. If the P was not a foreseeable P, then the D owed no duty and therefore breached no duty to the P
P must be a part of the foreseeable P class Ship example: Burden of Proof: the P must be able to show that a reasonable person would have foreseen the risk of injury to him Negligence in the air: The fact that the D‟s conduct was unjustifiably risky to someone else is irrelevant. Proof that there was some act of negligence somewhere will not do.
Andrews: D has a duty to all P‟s
Like all members of society, D bears a burden of due care, a burden to protect society from unnecessary danger, not to protect A, B, C alone. Once a breach of duty of care to someone has been established, the D is liable to anyone who was injured This is very similar to a general duty of care test
Reasonable Person Standard (objective measure)
After assessing the „balance test‟ from above, the courts turn to the reasonable person test‟ : Would a reasonable person of ordinary prudence, in the same circumstances as the D, have conducted himself as the D did?
If a reasonable person would have acted differently, then the D breached his duty of care This is an objective standard and does not ask whether the D intended to act carefully, or if he thought he was acting carefully. This „reasonable person‟ standard will vary somewhat depending on the circumstances of D‟s situation.
Variations of the reasonable person standard
Problems with the body The Physical attributes of the RPPC are generally identical to those of the actor
Physical disabilities
a. Rule: people with physical disabilities are still judged under the RPPC standard. Disability is taken into consideration when determining the circumstances. Thus: If the D has a physical disability, the standard for negligence is what a reasonable person with that physical disability would have done.
b. Courts will make exceptions for sudden illnesses or infirmities, such as strokes, as long as they were not foreseeable. c. Compensation for infirmity – Incumbent upon the disabled person is to compensate for the infirmity. 1.IE; if you are blind you hold a cane to warn others. 2. To determine the amount of compensation, apply the Learned Hand formula: balance harm and how foreseeable vs. burden. If burden, like holding cane, is small, then will be considered in RPPC standard.
Mental attributes – Treated the same as Intentional torts, no exceptions.
courts will make exceptions for sudden mental illness inferior mentality – no allowances, when that person is the plaintiff, court takes that into consideration because it is difficult for the person to appreciate the danger they are being put into. If the D is mentally retarded to the point that the D doesn’t even recognize the danger, he usually won’t be found negligent.
Insanity – treated as in intentional torts, no exceptions.
courts will make exceptions for sudden insanity, however if there are warning signs, i.e. it is foreseeable, then you may still be negligent Policy – Difficult to prove: easy to make up and hard to disprove, leads to battle of the experts We want to encourage the state to restrain the insane person If someone suffers losses, they should be able to recover why not lower standard like for kids? – Because we want to encourage kids to be young and free, but we do not want to encourage insanity
Intoxication – held to RPPC standard
Children (under 16)
not held to the same standard as adults A child must merely conform to the conduct of a reasonable person of a like age, intelligence, an experience under like circumstances. To determine duty, consider the child‟s age, training, intelligence, experience, and maturity. (subjective standard) Exception: child will be held to adult standards when the are operating a dangerous item or object that is normally operated by adults. There is greater foreseeabilty of harm when these things are operated by minors who don‟t have the same skills.
Knowledge- the RPPC standard cannot go down, but if you have more knowledge or training or strength, then it can go up.
Ordinary experience - People will be expected to know the kind of things that everyone learns from ordinary experience
Superior knowledge/ experience – If the D has superior knowledge or experience, he will be held to the standard of care by a reasonable person with the same superior knowledge Stranger to the community – Facts known by other adults in a community will be imputed to a stranger who enters the community in question without the knowledge Duty to investigate – you have to have a certain amount of knowledge or you have to learn about things that ordinary people learn about (bald tire ex) Memory – A reasonable person is excepted to remember certain things, from experience, which could cause risk Distractions – A reasonable person pays attention to what he is doing, and is not distracted, unless there is some legitimate reason for such distraction. Misc. – The reasonable person is not without imperfections. His care for his own safety and that of others is merely reasonable and not flawless.
Professionals
General
General Rule: A professional must meet the standard of the ordinary care and caution which a reasonably prudent professional would use under the same or similar circumstances, (Specialists will be held to the standards of specialists)(Standard = School followed) A professional is allowed to use his best judgment as a expert in the field, but they will also be held to that standard. Doctor is held to standard of care of the community they practice in. (med is more national in many courts) The professional will not normally be held to guarantee a successful result. He is liable for malpractice only if he acted without the requisite minimum skill and competence. If a professional is faced with a series of choice, just because they make the wrong choice does not mean there is negligence Custom is also not dispositive for professionals.
Legal malpractice
General: an attorney is only answerable for damages for loss to a client which results from the following three deficiencies: Attorney lacks ability and knowledge of the reasonably prudent attorney Attorney fails to exercise in good faith his best judgment in attending to the litigation. The attorney fails to use reasonable care and diligence Thus, a strategy mistake is not negligence provided that the attorney used his best judgment and reasonable care in planning the strategy. An attorney can not be held to foresee how a jury will react. Damages: client must show that but for the attorney’s negligence the client would have been successful in prosecuting or defending the claim.
Typical types of malpractice Missing the statute of limitations Not knowing the law or failing to shephardize Failure to discover, find and use a statute Failure to properly investigate or interview a crucial witness for evidence.
Medical Malpractice – go back and review
1. Expert testimony 2. ?? 3. Limits on malpractice 4. Informed consent Custom
Custom is the acceptance of the many of what is reasonable and prudent This is not conclusive because you can still be negligent if you are following custom, because you still rely on the RPPC standard. Advances in technology – The technological „state of the art‟ at a particular moment is relevant to what constitutes negligence. Thus what was not negligent in the past could be negligent now due to technological advances.
Emergency
Still held to RPPC standard The emergency is taken into consideration as one of the factors of the circumstances, calculated into the RPPC standard. IE: What would a RPP, who is not clear headed and cannot make infallible decisions in an emergency do is such a situation. If the emergency situation is caused by D, then D cannot rely on the emergency doctrine. In such a situation, it is the initial negligence leading to the emergency, not the emergency, that makes the D negligent. Circumstances where one is required to anticipate an emergency;
One who works with the apprehension of an emergency (life guard, ems) One whose training has better prepared him for emergencies When the potential for an emergency is signaled or forewarned (you see kids running into the street. Anticipating conduct of others
Def: the reasonable person is assumed to possess a certain ability to anticipate the conduct of others Negligence of others: Generally the D will be required to anticipate a third party‟s negligence only when the likelihood of injury is great, or the magnitude of the injury is very substantial.
IE; children: D is responsible for anticipating careless or dangerous conduct on the part of children, since they are incapable of exercising the degree of care of the average adult
Criminal and intentional torts:
Def: the reasonable person is normally entitled to assume that third persons will not commit intentional crimes or torts unless he has some reason to believe the contrary. Special relationship: certain special relationships may require the D to anticipate and prevent intentional torts and criminal acts by the third person (therapist and patient. )
Aggravated Negligence: (move this into breach?)
Rule: a form of negligence in which the D‟s conduct is theoretically more culpable (reckless). The conduct is often classified as wanton or willful, and is construed as conduct between simple negligence and intentional torts. Standard: there is a split
Subjective: some courts requires the actor exercised a deliberate, conscious disregard for a known risk of harm to another Objective: Many other courts use an objective standard. Instead of a reasonably foreseeable outcome, the standard goes up to very likely outcome (a.k.a. wanton or willful)
Punitive damages: These are awarded for recklessness in many courts. We do this because we want to deter conduct with is a result of conscious disregard for a high degree of risk Legal cause: Where the actors conduct is reckless there is an increased tendency to find his actions to be the legal cause of a harm ( as compared to ordinary negligence Trespassers: In some courts, a landowner will only be liable to a trespasser or a licensee if their presence is known to the landlord and the risk created by the landlord‟s conduct is extremely disproportionate to its social utility.
Automotive guest statutes (move this into breach?)
Rule: Provide that the owner/driver is not liable for injuries received by his non-paying passenger unless the driver has been “grossly” or “willfully negligent” or “reckless.” Most of these statutes have been found to be unconstitutional
Rules of law. (move this into breach?)
Standards of care acknowledged by courts and given effect of law. Duty depends upon circumstances. Rule: judges sometimes try to regulate the standard of behavior by establishing the standard of conduct of a reasonable man, as a matter of law, through his judicial decisions – Holmes and getting out of the car to check for the train – very rare.
Limited Duty
General rule: In certain situations, a D will have a modified duty. When the D‟s duty concerns unborn children, mental suffering , or a failure to act, D‟s duty is defined by that particular situation Duty to unborn children
a. Child Born
A born child may sue the D for damages where the child was born with an injury, which resulted from the D‟s negligent acts to his mother while it was a fetus. P must show that the injury to the womb is what caused the P‟s injury
b. Still born
Whether a wrongful death c/a is available to a parent of a still-born fetus depends upon the state legislatures definition of a person as stated in a wrongful death action
c. Wrongful life
not used much, idea is that the child may bring a suit arguing that they would have been better off dead
d. Wrongful birth
Brought by parents against a doctor when he negligently failed to provide birth control or when something bad happened which the doctor did not detect and thus child was born with a defect. Some courts allow for recovery only when the child is born with a defect, other allow for recovery for the child being born in the first place.
e. Causation problem
Mental Suffering
General: in most states, there is a limited duty for preventing negligent infliction of emotional distress. The line is drawn in different places in different states. See also by stander rule No impact and no physical symptoms
Rule: the majority of courts have denied recovery when there is no impact and no physical symptoms of the emotional distress. Thus there is no duty to prevent negligent infliction of pure emotional distress Rational: IF P doesn‟t have to show physical symptoms, then the risk of fraud is to great Exceptions: Recovery will be allowed even without physical symptoms in two situations;
Sending of erroneous messages Mishandling of corpse
IIIED; a few states have found that they can be recovery for an IIED where there is no impact and no physical symptoms If the infliction was intentional Intentional torts: the general rule applies only to negligent conduct by D – if D‟s conduct is intentional or willful, P may recover for purely emotional harm with no physical symptoms, by use of the tort of IIED.
No impact but with physical symptoms
General: Most courts will allow for recovery, thus D has a duty to avoid negligent infliction of emotional distress. Fear of one‟s own safety: the P can generally recover when he suffers fear for his own safety, if this fear leads to physical symptoms Fear of other‟s safety:
If P suffers purely emotional distress and P’s distress is due solely to fear or grief about the danger or harm to a third person, courts are split Zone of danger – If P was in the „zone of danger‟ nearly all courts will allow him to recover for emotional distress. Other theory: As long as P observes the danger or injury to X and X is a close relative to P, P may recover.
Failure to act
There is no general duty to act Exceptions
Business relationships – Anyone who maintains a business premises must furnish warning and assistance to a business visitor or employee regardless of the source of the danger, this includes inn keepers and common carriers. D caused danger or injury - If D endangers/harms the P, even if done innocently, he must render assistance
Co-venturer – some courts have said that there is a duty to warn or assist where the P and the D are cooperatively involved in the same activity Assumption of duty –Once the D voluntarily begins to assist the P, he must proceed with reasonable care, keep the P safe, and not discontinue assistance if the P would be left in a wore position
D is especially likely to be found liable if he begins to render assistance, and this has the effect of dissuading others from helping P. Mere promise – many courts have found that D is liable where the D relies on that promise but where actions did not really being. This is not written in stone.
Duty to control others – A D may have a duty to control a 3rd person when there is a special relationship between the D and the P or between the D and the 3rd person
P – D relationship: when the D has assumed some sort of responsibility for the safety of the P. D – 3rd party relationship: even if the D and the P have no relationship at all, the D may have a duty to control the 3rd party to prevent him from harming the P.
Duty of owner and occupier of land
Duty depends on class of person on the land, see below Trespasser
Def: someone with no right to be on the D‟s land, the general rule is that the D has no duty to a trespasser to protect or warn of danger. Exceptions: Duty may exist where:
Constant trespass on limited area: If the owner has reason to know that a limited portion of his land is frequently used by trespassers ( ie a crossing or a path), he must use reasonable care to make his premises safe, or at least to warn of potential danger Discovered trespass
Once the owner has knowledge that he P is trespassing on his property, he is under a duty to exercise reasonable care for the P’s safety. Discovery – A trespasser is discovered not only when he is actually noticed, but also when the owner is confronted by evidence which should reasonably lead him to the conclusion that a trespasser is present and in danger Active and Passive conditionsthere is no duty to prevent passive (natural) conditions (ie an open well) although there may be a duty to warn. There is a duty to prevent harm from active conditions (a farm tractor9 Distinction between activity and condition: The D has a duty of ordinary care if it is an activity, but if it is a condition of the land, he has a duty only to not be wanton or willful Sufficiency of warning – The D will usually be able to satisfy his burden by warning of the danger. However, if the D believes the warning will be ignored, his duty to prevent harm may increase
Criminal activity – Courts will generally find a duty to protect a P who is injured while committing or attempting to commit a crime on the property. Because the court want to protect against the dangerous condition for all people, doesn’t matter if they are evil or bad
Children
Dangerous instrumentality test (originally the attractive nuisance test) When an artificial item on the land is attractive to children but is very dangerous, it allows recovery for an injury to a child resulting from any injury once the child is on the land. Conditions: Foreseeability: must be foreseeable that the child would be trespassing (artificial attractive item) Danger: Item must pose a dangerous risk to children (unreasonable) D‟s Burden: the burden on the D to change the dangerous condition is slight compared to the danger to the kids (balancing test) Child‟s Age: Children must be young enough not to perceive the danger Lack of reasonable care : the landowner fails to exercise reasonable care to eliminate the danger to the children Natural condition: The court is less likely to find liability where the condition is a natural one rather than an artificial one. No duty of inspection: the child trespass rules do not generally impose any duty of inspection.
Licensee
A licensee is a person who has the D‟s consent to be on the property . Someone with bare permission (can not conduct business or posses the land for mutual benefit) Duty owed
The owner or occupier had a duty to warn the licensee of a dangerous condition known to the owner or occupier where he knows it creates an unreasonable risk of harm to the licensee. Inspection: the owner has no duty to a licensee to inspect for defects nor to repair known defects Active Operations: the owner has a duty to exercise reasonable care in the conduct of active operations for the protection of the licensee whom he knows to be on the property
Social guests – the social guest is a licensee. Performance of minor services for the owner does not make the guest an invitee
Invitee
Someone with permission and rights to be on the land Two types:
Public place: Those who enter as members of the public into a public place IE airport
Private Place: Those who enter for business or mutual benefit with the land owner (private home)
Duty
Gen: Owner does owe an invitee a duty of reasonable inspection to find hidden dangers. Also, the owner must use reasonable care to take affirmative action ot remedy a dangerous condition. The owner or occupier has a duty to warn the invitee of a dangerous condition known to the owner or occupier where he knows it creates an unreasonable risk of harm Inspection: the D has duty to inspect for dangers Fix Danger: The D has a duty to fix dangers and warn of them Active operations: The owner has a duty to exercise reasonable care in the conduct of active operations for the protection of the invitee whom he knows is on the property. Scope of invitation: A person will lose her status as an invitee if she exceeds the scope of the invitation – if she goes into a portion of the premises where here invitation cannot reasonably be said to extend.
Illinois – Illinois legislature has made Licensee and Invitee duty the same Duty to care is to activities and conditions. Rejection of categories:
Invalid Standards of care
1. Best judgement – this would be a subjective standard and no one would be liable for their negligence 2. Average person – average person makes mistakes. To make exceptions for not knowing would make the standard subjective, and it would fluctuate with the knowledge of every individual.
II - Breach of duty
General
Rule Re: Breach of duty: Even the D did not use reasonable care, he won‟t be liable to the P unless he owed the P a duty to use reasonable care. If the foreseeability and severity of the risk outweigh the burden to the D to prevent the risk, then the court will find that the D had a duty to use reasonable care. If a RPPC would have acted differently, then the D can be found to have breached his duty
A. Basis = reasonableness. To prove must show
1. Defendant had constructive notice that danger existed 2. Defendant had reasonable opportunity to correct it
B. Violation of Statute
General re: negligence per se:
As an alternate to establishing duty, can show that defendant violated a statute or regulatory ordinance. Some states have adopted negligence per se policies which do not allow the jury to apply RPPC, rather they only decide if the defendant violated the statute Can only use this approach if there a statute that clearly deals with this the specific breech, if no statute, use RPPC The court is setting up a standard of care and basing it on a statute or regulation – it is not the statute or regulation establishing the standard of care. Statutes can be used to show negligence per se or can be used as evidence of negligence (see below) Statutory torts: a statute which makes the D liable for any damages if the D violates the statute. Created by legislature to assign liability for damages resulting from a specific type of negligence
Elements/ requirements to use a statute to show breech of duty
One of the purposes for writing the statute/ordinance was for safety;
If this is applicable, and the statute was breached, then must still show proximate cause and harm to prove liability. The statute/ ordinance was written to protect plaintiff from the harm he suffered The statute/ ordinance was written to protect the class of people to which plaintiff belongs
Defenses: Excuse
Rule: in some circumstances, a D may present evidence to show that his violation of the statute was excusable. Some example:
Ignorance of need: the D was reasonably unaware of the particular need for compliance Reasonable attempt to comply Emergency Greater risk of harm if the statute was complied with.
Courts are split regarding when the judge, or jury, should be responsible for judging the D‟s excuse If the D is excused of violating the statue, then
If the state views violation of the statute is a negligence per se statute, then it may only be used as evidence of negligence If the statute views violation of the statue as evidence only, then the violation has no bearing on the issue of negligence. Violation of ordinance or regulations as evidence of Negligence
a. Where states have allowed this, if the defendant does this, then the breech is evidence of as what a RPPC would do under the circumstances, but is not binding. b. Statute does not determine duty, can only be used as evidence. c. Up to the jury to decide if they want to adopt the statute
1. If yes – still have to show proximate cause, harm 2. If no – look to the RPPC standard.
C. Res Ipsa Loquitur – “The thing speaks for itself
Relies on circumstantial evidence to establish a breech of duty where there is no direct evidence Point of RIP is that plaintiff has suffered at the hands of the defendant, but there is no direct evidence. Or, the defendant is the best qualified to discuss the problem. There can be no direct evidence of how D behaved in connection Plaintiff has to prove
The ordinary explanation for the incident occurring is that someone was careless (most of the time, negligence is cause) Must eliminate other possible explanations for the incident, such as that plaintiff did not cause the harm unto himself
Rule: contributory negligence on the part of the P will sometimes, not always, constitute a failure to meet this requirement, If the P‟s contributory negligence does not lessen the probability that the D was also negligent, then the requirement was met.
the defendant had exclusive control of he instrumentality that caused the injury.
Proof: P must do this by producing evidence negating other possibilities (no intervening causes) This is usually the most difficult to prove Multiple D‟s: when there are multiple D‟s who had control of instrumentality, and the P cannot determine who is liable for negligence, the cts may treat instrumentality collectively by construing the control as a result of collective instrumentality. Ct then can use a procedural device which will hold D‟ jointly and severally liable unless they can testify as to who was responsible Common carriers: the fact that common carriers have the upmost duty of car to the P makes it more likely that it was their instrumentality that cause the injury
Defendant‟s defenses:
s/he did everything proper (exercised sufficient care) injury was something was not foreseeable if can disprove one of the above factors, may be able to get a directed verdict (such as the instument. Was not in his control)
Procedural Effects of RIL
Inference: RIL warrants an inference of negligence which the jury may accept or not ,as their judgement dictates. Presumptions: RIL raises a presumption of negligence which requires the jury to find negligence if D doesn‟t produce evidence sufficient to rebut the presumption Shift of burden. The burden is shifted to the defendant to show that s/he was not at fault.
Effects of specific pleading of negligence: If P pleads specific acts of negligence and fails to prove them, can he fall back on RIL? Four opinions
RIL not available RIL available only to the extent that is supports P‟s specific allegations. RIL available only if specific pleading is accompanied by general allegations of negligence RIL available without regard to the form of pleading
III Causation
Even if you show cause in fact, must still show proximate cause.. III a - Causation in Fact
P must show that D‟s conduct was the „cause in fact‟ General rule re: cause: There must be a reasonably close causal connection between the conduct and the resulting injury. This requires causation in fact or legal proximate cause Causation in fact: act or omission to act is the cause in fact of an injury when the injury would not have occurred, “but for” the act
IE: failure to provide a fire escape is a cause of death of someone who is thereby unable to flee, but is not the cause of death of someone who suffocated in bed.
Direct Consequences
Def: The D is liable for consequences which flow in an unbroken sequence, without an intervening sufficient cause, from his original acts. Factors to consider
Natural and continuous sequence – was there a natural and continuous sequence between cause and effect? Substantial factors - Was each event a substantial factor in producing the next? Looks at the logical step from one event to another
Intervening causes – were there too many intervening causes? Remoteness in time and space – Was the result too remote in time and space from to cause?
Rationale: View is often criticized because it may result in limitless liability. However, arguments in favor of it:
The injury has already occurred, and because the loss must fall on someone it should fall on the party who is guilty, not the innocent P. Direct causation does not impose a higher burden of conduct on the D. He has already been found to be negligent, he is merely being required to pay the consequence of his negligence. “But for” Test (a.k.a. Sine Qua Non)
A very broad test which covers a lot of acts Test is not met when the injury would have occurred anyway Multiple negligence: a D may not claim he is not an actual cause of the P‟s injury merely because some other negligence also contributed to the harm. In these cases both acts of negligence were necessary to cause the injury. The courts will hold that both parties caused the injury together. Duty threshold: possible (based upon Hand formula) Cause threshold: probable: this is a higher threshold of 51% “But for” the negligence, more likely than not plaintiff would not have suffered the injury Defense: Defendant does not have to prove that there was another cause, only that he was not his alleged negligence was not the cause of the injury.
Proof of actual cause
Generally
P must prove, by a preponderance of the evidence (51%) that D actually caused his injury
Preponderance of the evidence
P must only show that if it is probably (more likely than not) that the injury would not have occurred without the defendant‟s act Possibility that D‟s act caused injury is not enough for causation Proving the above
Common experience: Inquires as to what would have normally happened if D was not negligent based upon common knowledge Expert testimony: can be used by the P to prove actual causation by the D. ESP in medcal cases where jury has no info about med causation. Increasing risk of future injury
D‟s conduct cannot be shown to have caused immediate injury, but increased the risk that injury would later occur. The D may be a cause in fact of the later injury
Measure of damages: When the P dies as a result of the negligence which increased the risk of injury, damages are based on the working life expectancy of the decedent. Thus where the decedent had a bad illness or disease, his working life expectancy is lower. Consequently, the D will only have to pay damages equal to he effect on the already shorter working life expectance of the P.
Future complications
P can bring the potential complications of an existing condition to the jury for damages today. If the jury concludes that more likely than not complications will arise, P will get damages. Reason: P has to collect for all future losses because once P gets a settlement in a case, P is barred from recovering on the same cause of action Concurrent Causes
This is an alternate to but for... When two event happen at he same time to cause a single indivisible injury, and either on would be sufficient to cause substantially the same injury without the other, each of these concurring events is a cause of the injury
Double fault and alternative liability
Def: The court can shift the burden of proving actual causation from the P to the D, when the P shows that two parties were negligent but only one could have caused the injury. It is up to each D to show that the other caused the harm. Ex: two hunter firing at the same time, one hits something: unless you can prove which one did it, both are considered liable. P‟s can‟t have also been negligent: When the P has been a part of the negligence, the CT usually won‟t shift the burden to the D‟s (P must be innocent and D clearly negligent) Multiple fault:
If P cannot prove which of three or more parties caused the injury, but can show that all were negligent, the court may shift the burden to each D to prove he did not cause the injury Product liability: Multiple fault liability is common in product liability suits where the P was injured by his long ago use of a product which he can identify only by type, not brand name. Here there are two types of multiple fault liability
Market share liability theory: I f a member of the class of D’s is unable to prove that he did not cause the injury, the court can require him to pay that % of the P’s injury equal to the D’s market share of the product Enterprise liability theory: Where there is a faulty industry wide standard that D adhered to. All companies in that enterprise engaged in this industry wide practice, and thus jointly controlled the risk. Any member of the industry is liable, Jointly and severally for the entire injury if it cannot show that it didn’t cause the injury When the industry is small this is only fair because it would be harder to show all member of a large industry were responsible, and the biggest companies would always be hit.
III b - Proximate or Legal Cause
Most courts will hold that D is liable, as a general rule, only for those consequences of his negligence which were reasonably foreseeable at the time she acted. Proximate Cause or Legal Cause: A policy determination which limits the D‟s liability for far reaching and bizarre consequences which technically resulted from his negligent acts. Where the line is drawn is not based on logic, rather it is public policy based on a rough sense of justice. Foreseeable Consequences
General stuff
rule: the D is only liable for those consequences of his negligence which were reasonably foreseeable at the time he acted. If the results seem extraordinary in hindsight, this negates proximate cause. Must be foreseeable Unforeseeable plaintiff:
the general rule that D is liable only for foreseeable consequences is usually applied to the unforeseeable plaintiff problem. If D’s conduct as to X contains a duty, but is not negligent to P, and by some fluke P is injured, P cannot recover.
The actions is stopped at the point the D acted negligently, and we ask what is a reasonably foreseeable consequence of his actions? Foreseeable injury/ unforeseeable manner: If an act would normally cause foreseeable injury, then the fact that the injury actually caused by the act occurred I an unforeseeable manner is irrelevant. The consequence (injury) is still foreseeable. Also, person injured must be of a class that suffers the foreseeable injury Once D is found liable for the initial injury, he is liable for any additional unforeseen physical consequences. Egg shell.
Cardozo‟s foreseeable theory is generally followed. However, some situations exist where unforeseeable consequences may be recovered.
Additional unforeseen consequences: Once the P suffers any foreseeable impact or injury, even if relatively minor, the D is liable for any additional unforeseen consequence.
The D takes the P as he finds him : a D will not be absolved of liability for not foreseeing the magnitude of the injury to a P with a hidden defect. Ex: Egg shell skull idea Ex: plaintiff with a psychotic condition unknown to D, D’s negligence causes a psychotic condition, aggravation of a preexisting condition
Rescuers:
A D will not be held liable when he negligently puts himself or a third person in peril and P was injured in attempting a rescue.
Even though the consequence that a rescuer will be injured is often unforeseeable, the courts may find liability. If the rescuer acts in a grossly careless manner his conduct may be a superceding act of negligence.
Foreseeable but highly unlikely:
Some courts have held that as long as the actual harm to the P was remotely foreseeable, there is liability even though the consequences were highly unlikely. Balancing risks: In these cases the courts balance the danger of the injury and its likelihood versus the burden on the D to take precautions to prevent injury
Unforeseen consequences ?
2. Rescuers 3. Foreseeable but highly unlikely
Intervening causes
Intervening cause: A force which takes effect after Ds negligence, and which contributes to that negligence in producing P‟s injury Generally superceding
Extraordinary negligent conduct by a 3rd party, against which D has no obligation to take precautions, will generally be held as a superceding cause of P‟s injury. Causes that are sufficient to D from being negligent (legally), since they supersede or cancel D‟s liability. Act of god
Generally are foreseeable. Only in the most extraordinary circumstances will it be a superceding cause of P’s injury Foreseeable intervening causes
Where the risk from the intervening cause is similar or the same as the original risk, there will almost never relieve D of liability Ex:
Foreseeable negligence of 3rd party – Negligence of a 3 party is foreseeable if the D should have anticipated and guarded against it (normal and natural result of the risk created by the D) Examples D‟s negligent act was a failure to erect a barrier around a worksite, 3 party rd negligently drives into work area and injures the P. 3 parties act was foreseeable because it naturally follows from D‟s negligence in not erecting barrier. Serving alcohol: If a tavern owner serves liquor to someone already intoxicated, it is foreseeable that that person may injure someone else (dram shop act)
rd rd
Exception to above: serving alcohol in the home, not held to the foreseeable consequences because the burden on society would be too great. Foreseeable criminal or intentional tort If a 3 party‟s criminal conduct or intentional conduct is foreseeable , the D will still be liable, this is very difficult to prove and therefore is usually unforeseeable. However the following are example where it has been found; Duty or contract: If the D owes a duty to protect P from criminal misconduct, the criminal conduct is foreseeable. IF D negligently fails in his duty, he is liable D destroys P‟s protection : D‟s affirmative act destroys or defeats the protection P has established for himself to protect against crime. The crime is foreseeable and the D is liable Known criminal: If D brings a person known (or should have known) to cause criminal acts it the presence of P. Resulting criminal act is foreseeable (security guard with violent past) Responses to Defendant‟s actions:
rd
Where the third party‟s intervention is a normal response to the defendant‟s act, the response will generally not be considered superseding. This is true even if the response was not all that foreseeable: EX:
Negligence of rescuers – rescuers are considered foreseeable intervening forces; therefore, the D is liable for their acts of negligence. Aggravated injury General: The D is liable for an aggravation of an existing injury which the D negligently caused. If the results of subsequent medical trrmnt are so gross and unusual they may be considered superseding. Subsequent Medical malpractice – The D is liable for the aggravation of P‟s condition caused by the malpractice of P‟s treating physician. Subsequent Disease – The D is liable for diseases caused in part by the weakened condition in which D has placed the P by negligently injuring him, ie pneumonia Subsequent Accident – If the P suffers a subsequent injury following her original injury, and the original injury was a substantial factor in causing the second accident, the D is liable for damages arising from the second accident Efforts to protect persons or property - D is liable for negligent efforts on the part of persons to protect life or property of themselves or third persons endangered by D’s negligence Reactionary forces – If D’s negligent actions cause another to react, the D is liable for the harm caused by the 3rd person. (D negligently fires gun at 3rd party, 3rd party reacts and harms P, D is liable to P) Suicide If the D’s negligent act drives the P insane, the suicide may be foreseeable as a product of the insanity. D is liable
Unforeseeable intervention, foreseeable result;
If an intervention is neither foreseeable nor normal, but leads to the same type of harm as that which was threatened by D;s negligence, the intervention is usually not superseding.
Unforeseeable intervention, unforeseeable result:
If the intervention was not foreseeable or normal, and it produced results which are not of the same general nature s those that made D‟s conduct negligent, the intervention will probably be superseding. Extraordinary act of nature – usually are superseding.
Dependant vs. independent intervention:
Courts will sometimes distinguish between dependant and independent intervening causes. An independent intervention is one which would have occurred even had D not been negligent.
3 party‟s failure to discover:
rd
A 3rd person‟s failure to discover and prevent a danger will almost never by superceding. If a third person does discover a defect and then willfully and negligently fails to warn P, D may escape liability if D took all reasonable steps to remedy tha danger.
III c Misc Problems
Indeterminate P(s):
General: When a D has negligently caused a particular harm, but it is not clear which of numerous possible P‟s has been injured. (this is especially likely to happen in mass toxic exposures cases) Recovery by class: Some courts may allow all the potential P‟s to sue as a class, and award an aggregate recovery based on the estimated damage to the entire class. IN this case the courts have adopted a „weak‟ version of the preponderance of the evidence rule (to allow recovery without direct evidence of causation) EX: Agent orange case
Shifting responsibility
Def: Where the D may say that the responsibility for a dangerous condition, created in part by him, has passed to a their person who bears even greater fault. The responsibility nd „shifts‟ to the 2 D. Rule: there is no general rule about when this happens, Some examples:
When there is a K or agreement re: responsibility
There may be a K or other agreement between the D and the 3 rd person expressly or implicitly shifting the responsibility to the 3rd person. Court will usually find responsibility has shifted in the way agreed to However such a K is not dispositive if policy indicates that D should be liable
When there is no agreement
When there is no agreement or K regarding responsibility, the courts will weigh the factors such as Foreseeability: the degree to which D should have foreseen that the 3 rd party might be negligent Severity of Harm: The severity of harm which would result from 3 rd party negligence Lapse of time: Between the D’s negligent act, and the 3rd party’s negligent act
3rd person‟s failure to discover or detect
If a manufacturer negligently produces a dangerous product, he will never be able to shift responsibility to a 3rd person who failed to discover the danger, and passed the product on to the P without warning Discovery of defect: When the 3rd party does discover the danger and then willfully or negligently fails to warn the P. To shift responsibility the D must have taken all reasonable steps to fix his original negligence
Joint Tortfeasors
Def: When you are sueing more than one D at a time Joint and several liability:
Def: When more than one person is a proximate cause of the P‟s harm and the parties is indivisible, each D is liable for the entire harm Only applies where the harm is indivisible, cannot be apportioned, that is you cannot say that a particular part of the harm came from a particular plaintiff. Note: Courts will sometimes limit the P‟s recovery to the actual damage done by the D, when the D‟s act caused P some injury, but the P would have been injured or killed anyway even if the D had not been negligent. Burden of Proof Shifts: When the P can not prove who caused the injury and the burden shifts to the D‟s Five examples/types of J & S liability
Acts in concert: Where the D’s acted in concert together, each is considered to be a willful participant Common Duty: Both D’s have a separate duty to perform to same entity: if duty is neglected by both, they are J & S liable Concurrent Acts: Concurrent acts of negligence leading to a single indivisible injury. This is the most common Separate acts: Separate acts of negligence leading to a single indivisible injury
Recovery privileges
If any of the above categories are met, P may collect from one or all the D’s Furthermore the division of the award is up to the P, P may target the deepest pocket to insure the payment
Always indivisible harm
Death of the P will always be considered an indivisible harm Similarity, injury resulting from fires is usually an indivisible harm.
Comparative negligence
Minority view: In a case involving multiple D’s one D will not have to pay for the negligence of other D’s This has the effect of abolishing J & S liability Majority view: Continue to follow traditional J & S doctrine allowing full recovery against any D Satisfaction (not covered in class):
A P may recover once for a cause of action. Thus once the P has fully recovered against on D, he is barred from recovering from the other J & S liable D‟s Incomplete recovery: If the recovery from one of the J&S D‟s does not fully satisfy the claim, the P may claim the remainder from the other D‟s
Release (not covered in class)
If D signs a release against 1 J&S D, he may be releasing all J&S D‟s depending on the jxd he‟s in. Common law JXD: The minority view holds that if P releases on D, this releases the other D‟s even if it states otherwise In this jurisdiction, if the P wished to preserve his rights to sue the other D‟s the P must use a „covenant not to sue‟ Majority JXDs: The release may explicitly preserve the P‟s right to sue other J&S D‟s However, if the releases silent, the other D;s are deemed released.
Contribution: (not coverd in class)
General : A partial reimbursement from the other J&S D‟s sometimes available if the D paid more than his „pro rata” share of P‟s damages. Amount of Contribution: depends on jdx
Tradition J&S : each D pays an equal share Comparative: Each D’s amount of contribution is proportional to it fault
Limitations to contributions:
D’s who commit willful and intentional torts: Cannot get contribution from other J&S D’s Original liability: The contributing D must have original liability to the P. Therefore if the contributing D has a defense that would bar his liability to the P, the other D may not seek contributions from him. Examples: Contributing D is immune from P‟s suites Contributing D is an employer, and P cannot sue him under workman‟s comp The statute of limitations has run against the contributing d from the original negligent act against P.
Indemnity (not covered in class)
When on J&S pays some or all of the P‟s damages, he can be indemnified by the other J&S D‟s for EVERYTHING that he paid (different from partial recovery in contribution) No general rule: some common situations:
When D seeking indemnity was only vicariously liable When D seeking indemnity was liable only because he failed to discover or prevent another’s misconduct. When D seeking indemnity has a K which allows him to do so.
IV Actual Damage
Def: There must be actual loss or damage resulting to the interests of another.
Defenses
A. Contributory Negligence
All or nothing type of defense General: Based on the idea that the P has a duty to protect himself. When the P‟s negligence has contributed proximately to his injury, he was completely barred from recovery from the D. D‟s conduct – If the D was engaged in wanton, willful, or reckless conduct, P‟s contributory negligence is not a bar to recovery. Not applicable to intentional torts Negligence per se: Contributory negligence can be asserted as a defense even to D‟s negligence per se, ie: his negligence based on a statutory violation. This is not true if the statute protects a class of people. P is held to the same standard of care as the D, that is the RPPC Defense only applies: Last clear chance: However, if the D had the last clear change of avoiding injury to the P, then the P‟s contributory negligence did not matter. D must have had an actual opportunity to avoid the harm
Inattentive defendant: If D did not discover that he has the last clear chance, most courts would apply Antecedent negligence: When D discovers P‟s plight, and tries to avoid it but is unable to do so due to her earlier negligence, most courts do no apply the last clear chance doct.
Reason for demise: Juries were apt to apply their own comparative negligence doctrine.
B. Comparative Negligence
Also known as comparative fault: divides the liability between the P and the D in proportion to their relative fault. Two forms
Pure form:
P will recover ( even if P was also at fault) for injuries done, but P‟s award is only equal to the percentage of D‟s fault ( event if D is only 1% at fault)
Modified forms:
Not fair for P to recover if P is just as at fault or more at fault than D. Two versions which limit P‟s recovery:
If P 50% and D 50% then the P can not recover
If P 51+% and D 49%- then the P cannot recover (slight or gross negligence) Illinois is the second theory
Set offs
Remedy employed by D to Discharge or reduce P‟s demand by an opposite one arising from transaction which is extrinsic to P‟s C/A
Multiple D‟s
Under the modified forms, when the P sues multiple D‟s the P‟s negligence is compared to the combined negligence of the D‟s (otherwise the P may be found more negligent than any one of the D‟s) Missing D‟s: If one of the D‟s are missing or unknown, you can try the negligence of the missing D in order to determine the total negligence of the D‟s as a whole (do not ignore the missing D‟s liability when comparing to P‟s negligence) Then P‟s recovery is reduced by the amount of the missing D.
Comparative faults
Effects on;
Last clear chance: split Res Ipsa Loquitus: not resolved Punitive damages: should we punish when P is also negligent? Unresolved, brill says yes
C. Assumption of Risks
A P is said to have assumed the risk of certain harm if he has voluntarily consented to take his changed that that harm will occur. Where such an assumption of risk is shown, the P is, under the traditional common law principle, completely barred from recovery. The assumption of risk by be expressed or implied
Expressed:
If the P explicitly agrees with the D, in advance of any harm, that the P will not hold the D liable for certain harm, the P is said to have expressly assumed the risk of that harm If there is not a public polity against the assumption of the risk involved, the agreement will be enforced, and the P may not recover. Factors in determining public policy
Bargaining power: if the D uses a superior bargaining position to force the P to waive liability, the D will not be able to enforce the agreement Fine print: The P must have been actually aware of the limitation, or at least that a reasonable man in P’s position would have been Intentional or willful conduct: Assumptions of risk normally will not be construed as including intentional or willful misconduct. Health care: courts will not allow a P to assume the risk of medical malpractice.
Implied
When P does something voluntarily with knowledge regarding the particular risk involved, he can be said to have impliedly assumed the risk by his conduct. No voluntariness when
Deliberate encounter with danger: Deliberate exposure to others does not mean consent to danger Protest by P Duress
Statutory violations; the courts will allow the D to use assumption of the risk even if his negligence was established by violation of statute UNLESS the class that the statute was trying to protect, and which p is part of, is a class who can not protect themselves.
D. Avoidable consequences
Doctrine which applies to the P who after the accident, unreasonably fails to mitigate his damages. Requires P to exercise proper care after a legal wrong ahs occurred in order to prevent an increase in the damage Apportionment: The P will be responsible for additional damages that could have been avoided through mitigation after the accident, while the D will be responsible for the damages which occurred as a direct result of his negligence.
E. Statute of Limitations
The D might use the running of the statute of limitations as a defense to the P‟s recovery. Injustice can result if the statute runs before the P has a reasonable chance to discover the injury. This problem frequently arises in Medical Malpractice cases. Several approaches to when the statue should start to run:
Termination of treatment Time of discovery of injury Time of discovery of legal claim against D
F. Immunities
Am immunity is a defense to tort liability that is given to an entire class of persons based on their relationship with the respective P, the nature of their occupation, or their status as government or charity, etc Family immunity doctrine: there are two types of immunities;
Between spouses:
husband and wife cannot sue each other because it avoids collusion and fraud through insurance (many state abolished) Exceptions
Intentional torts
Torts occurring before marriage Torts occurring after marriage Parent and Child
Parent and child cannot sue each other (some states abolish)
Illinois: Illinois retains the family immunity doctrine, however it not only retains the exceptions but also some other qualifications:
Immunity is only to close family members for acts which occur within the family relationship Charitable immunities;
People give $ to charities to help charities help other people, not to pay damages done by employees of charity (abolished)
Governmental Immunities;
State immunity is a result of the protection in the state constitution. Federal government th immunity is a result of the 11 amendment. Therefore, state and federal courts cannot erase immunity because they cannot override these constitutions. However, Federal government has waived some immunity and allows suits in court of claims, There are exceptions for which there are no recovery:
Intentional torts of government employees Discretionary negligence of governmental employees. (on the job judgment calls) Military personal are limited to recovery according to the MCJ
Government initiated Duty:
Once the government has established a special relationship with the P and the P gets injured because of government negligence, the government is not immune, Furthermore, once government has begun to act, it must act with diligence and care (P calls 911, but police respond neg) School Immunities
In Illinois this immunity has been partially restored (after abolition) by interpreting the schools as having “parent like authority” due to discipline rights. Since the child parent immunity still exists in Illinois, he schools are immune also. In order to get recovery for negligent activities of schools, the P must show willful and wanton conduct.