Overview of Tort Law - delmarlearning.com

© 2009 Delmar, Cengage Learning. All Rights Reserved. 53

CHAPTER

1 Overview of Tort Law

ANSWERS TO OVERVIEW QUESTIONS 1. The burden of injury should be borne by those who create the risks rather than by those who fall prey to

them. a. The court system has become too paternalistic in its effort to protect individuals and the people should

bear the consequences of their decisions. Life comes with no guarantees and it is not the place of the court to try to guarantee it.

2. A tort is a civil wrong for which damages can be awarded. 3. a. intentional

b. negligence c. strict liability

4. It is a subjective standard and must be determined on a case-by-case basis. Everyone’s idea of what is reasonable is different.

5. Product liability cases because of the social consequences of manufacturing and selling a defective product can be so great.

6. Justice, fairness, and equality. 7. Because our judicial system is based on a system of precedent, meaning that every decision rendered today

may be followed tomorrow by another court. Therefore, people have an interest in seeing that disputes between litigants are resolved in such a manner that the principles set forth in that process are fair and just for all concerned. One never knows when one may just have to rely on precedent. a. Because individuals’ beliefs can vary greatly and sometimes what is legal can still be reprehensible and go

unpunished. Therefore, there is no real way to objectively consider social interests. The court system should not step in and impose its will on people when it comes to such a highly subjective area.

8. Tort law borrows heavily from it because we all have some basic sense of what is right and wrong. 9. The allowance of an argument in one case will allow the application of that same argument in innumerable

other cases and maybe not in an undesirable way. Therefore, its application in the current situation in the current time may be good, but applied as precedent may lead to unintentional negative consequences. a. A judge rules that it was reasonable for a man to speed through town to get his daughter to first grade

because if she were late, she would have been expelled from school. This standard as set up would allow the next man who speeds through town, for fear of being late to work and losing his job, and hits someone to escape liability because the precedent stated that fear of being late and facing a negative consequence can eliminate liability. While some may think that the first example was acceptable because a poor little first grader was going to suffer and no one got hurt, the second scenario used that precedent, even though most people would not like the outcome.

b. The courts cannot just determine cases as they are presented to them. They must also carefully set up the ruling with its effect on future cases as well. Each case is not decided in a vacuum.

10. Largely case law and some statutes where gaps in case law exist. a. A publication by legal scholars and practitioners in an attempt to provide lawyers and judges with legal

principles of tort law generally accepted by the legal community. While not a primary authority initially, many jurisdictions have adopted it and use it in case opinions.

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© 2009 Delmar, Cengage Learning. All Rights Reserved

11. a. purpose b. standard of proof c. interests violated d. procedural rules

12. a. In a contract, two people voluntarily enter into the agreement to set up certain rights and obligations. Whereas in tort law, duties are imposed without express consent or awareness of those involved.

b. In a contract, the duties imposed are made to specific individuals and not to society as a whole. In tort law, these duties extend to society as a whole.

13. This system required that a clan go to war against any outsider who inflicted harm on a clan member, thereby dishonoring the clan as a whole. Atonement for the humiliation suffered by the victim’s kin was the primary goal. This was often very bloody and the clans attempted to create a forum where the parties’ grievances could be heard. Community members gave advice on how it should be handled. a. Instead of a feud, the Anglo-Saxons set up a system where the victim would be compensated financially for

the damage. The compensation was given directly to the clan and the damages were distributed to the injured party’s family. There was no difference between a crime or a tort and no concern was given for fault.

b. This was a forum set up by the clans whereby members of the community listened to each party’s side and offered them suggestions of how best to solve the problem.

14. This evolved out of a belief that certain fundamental rules did exist. This was basically a crime that dealt with serious and forcible breaches of peace. a. Force and arms. The plaintiff had to show that the defendant used force directly on the plaintiff’s

person or property. 15. This was created for cases when the injured occurred without the defendant using force directly. In this

case, the plaintiff need only show that he suffered some damage because of the defendant’s wrongful intent or negligence. a. In an action in trespass, damages were presumed and the plaintiff had to show that the defendant

directly used force on him. There was also no need to show fault. In trespass on the case, the plaintiff had to prove that he suffered some damage by the defendant’s indirect actions of being negligent.

16. As society changed, negligence emerged and the trespass actions dissolved. A few states still have some aspects of it in their common law.

17. Since people are more mobile, courts were faced with more traffic-related cases. Since the courts were biased in favor of the victim, the fear was that this would make people fearful of using the public highways. Therefore, in an effort to encourage travel, negligence was created as a compromise. With this, victims were still given protection when a defendant acted unreasonably, but defendants would be protected from out of control suits that were biased in favor of the victim.

18. Initially, in Anglo-Saxon times, there was no need to prove fault and thus a strict liability standard was created. Over time, strict liability lost favor and negligence reigned supreme. However, today, many forms of strict liability are reemerging in the areas of product liability and workers’ compensation. a. People think that tort law is a way to equitably distribute losses on society in a peaceful manner.

Therefore, tort law became more of a means of creating social justice. b. It is always best to understand how the laws were created to understand the intent behind them and to

help one use them for the future.

ANSWERS TO REVIEW QUESTIONS 1. Damages should be borne, ultimately, by the person most responsible for causing the damages. When no

one is to blame, in other words, when no one can be shown to have caused then damages, it is difficult to then just make someone arbitrarily pay them. Life is not fair, sometimes bad things happen, and sometimes a person gets hurt. If no one is to blame, then it is equally unfair to pin that arbitrarily on another person simply because he is able to pay. Therefore, in a situation where no one is to blame, and the victim cannot show that anyone in society was the cause of his injury, the victim should pay. a. If both the victim and the defendant are to blame for the victim’s injuries, damages should be apportioned

according to the amount of fault each party has. For example, if the victim was 50% responsible for his own injuries, then the defendant should only have to compensate the victim for the 50% of injuries that he caused. The defendant should not have to bear the burden for the plaintiff’s role in her own injuries.

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2. The courts look at the reasonableness of the defendant’s actions and the foreseeability of the potential injuries occurring. Also, courts look to see who is at fault and what societal interest, such as justice, fairness, and protection, are best served when deciding a case. And, finally, courts must determine how the precedent set in the current case will affect others in future cases according to the slippery-slope analogy.

3. Tort law differs from criminal law in that the purpose of torts is to compensate the victim. The focus of criminal law is to punish the wrongdoer and to deter others from engaging in similar conduct in the future. In torts, the standard of proof is preponderance of the evidence, whereas in crimes, it is a much higher, much more complex standard of beyond a reasonable doubt. In torts, the focus is on the individual’s interests in the case and the compensation of those interests. In criminal law, the interests violated are those of society as a whole. The courts focus is on what is good for society rather than what is good for the individual. Finally, in criminal cases, the courts follow the criminal code, and in torts, the courts follow the civil code for procedural matters.

Torts differ from contracts in that the duties assigned according to tort law are those imposed by law, whereas those assigned in the context of contracts are by virtue of the party’s consent. Furthermore, in contract law obligations are assumed toward specific individuals, whereas tort law assumes that obligations are owed to society as a whole.

4. Tort law initially started as a strict liability system in that no attention was placed on who was at fault or who was to blame. Rather, the system chose to just compensate the victim. This led to some unjust results and started to change into a system where proof of damages and fault were necessary, such as in trespass on the case instances. This system, however, was very victim friendly, and was phased out as negligence emerged. Under this system, courts were able to evaluate the reasonableness of the defendant’s actions to determine if liability did indeed exist. Finally, more recently, the no-fault system is reemerging as an important legal concept in the form of product liability cases.

ANSWERS TO PUTTING IT INTO PRACTICE The theory behind the tort system is that the burden of injury should be borne by those who create the risks rather than by those who fall prey to them. And, under the strict liability system, societal interests are best protected when the courts make the ones who can bear the burden of paying damages of a victim pay the damages rather than the victim himself. Those in the tobacco industry can afford to pay the victim’s damages and it will not faze them. However, the cost of damages for the victim could destroy him financially for the rest of his life. This is just one of the costs of doing business in an industry known to cause damages.

Tort law has evolved over time from a highly volatile and bloody system whereby atonement, and not compensation, was the main goal, to a more civilized system where compensation, the protection of people, and justice and fairness reign supreme. Under the current system, courts must look at who needs to be protected and when is it fair to make others pay for one’s own choices. Since the tobacco industry is knowingly producing, marketing, and selling a product that will cause dangerous consequences, it should bear the burden of the victims. That is fair, that is just and that compensation is a peaceful method of resolution.

The friend may argue that the court system has become too paternalistic in its effort to protect individuals and the people should bear the consequences of their decisions. Life comes with no guarantees and it is not the place of the court to try to guarantee it. In allowing a court to impose strict liability on the tobacco industry, innumerable consequences may follow in the precedence it establishes for future cases. For example, since a person’s decision to smoke the first cigarette of his lifetime is totally voluntary, why is it fair to impose strict liability on the company that plays a passive role in manufacturing it? Is the victim not to blame? Doesn’t the victim have to take some affirmative steps to avail himself of the dangers of tobacco? And, if the courts leave out any responsibility on the part of the victim, couldn’t that thinking be used to hold gun manufacturers responsible if a person takes a deer hunting gun and shoots someone? Since the gun manufacturer produced a product that could be dangerous, should it be strictly liable for all of the negative consequences that evolve from it? And, similarly, just like the tobacco case, even when a person voluntarily uses the gun (or tobacco) to cause an injury, should the manufacturer be liable? In other words, when will people be responsible for their own actions and when will the courts let people bear the burden for the consequences of their own actions? Thus, by shifting the blame in the tobacco case it leads down the slippery slope to shifting responsibility in the future in any case, even when the victim voluntarily engaged in the activity.

56 © 2009 Delmar, Cengage Learning. All Rights Reserved.

CHAPTER

2 Overview of a Tort Case

ANSWERS TO OVERVIEW QUESTIONS 1. a. letter detailing a client’s damages and setting forth the reasons for the demand of damages. 2. a. Jurisdictional statement asserting that this case is being brought in the correct court.

b. Parties involved in the suit so that it is evident who will be a part of the case. c. The claim whereby a brief summary of each of the element of the wrong are alleged. d. Damages or relief being sought. You must let the courts know what you are seeking.

3. It depends on the jurisdiction in which the complaint was filed. In general, the plaintiff must be careful to give enough facts such that the defendant reasonably knows why he is being brought into the court system so that he can adequately answer the complaint.

4. A verification is an affidavit indicating that the plaintiff has read the complaint and to the best of her knowledge, it is true. a. No, it is not required in all states, but in many states once a complaint is verified, any other documents

used in the course of litigation, must be verified as well. 5. When the other party does not answer the complaint, fails to appear in court, or does not comply with the

pretrial process. 6. a. Admit to those statements made that the defendant believed to be true.

b. Deny those statements that the defendant believed to be false. c. Indicate a lack of sufficient knowledge to admit or deny the truthfulness of the plaintiff’s statements. d. Raise any affirmative defenses thus if true releasing the defendant from liability. e. Raise any counterclaims or cross-claims against the plaintiff or co-party.

7. The defendant, or the party asserting it. 8. A counterclaim is where the defendant, in his answer, sues the plaintiff. A cross-claim is a claim raised

against a co-party, or in other words, a co-defendant. 9. This is a demurrer and he or she, in essence, is asserting that the defendant’s actions are not something that

is recoverable under the law because the plaintiff failed to assert one of the elements that give rise to a cause of action. For example, if a plaintiff states that the defendant was driving recklessly down the road and that is all, the defendant would make a motion for a demurrer because the plaintiff never asserted that the defendant caused her any damage. Therefore, one would request that the judge dismiss the action. a. They in essence mean the same thing, just that a demurrer is the name of the motion to dismiss the case.

10. The more each side finds out about the other side’s case, the more likely it is that the parties will be able to settle the case and that the final outcome will be an equitable one. a. Most cases today are won or lost in the discovery process because it is the time when all of the facts are

laid on the table and each party really learns how strong or weak its case is. 11. Interrogatories are written questions that require written answers under oath. They can only be given to

the opposing party and are usually prepared with the assistance of the attorney. A deposition is an oral examination taken under oath of any person who may have information relevant to the case. The deposed witness is not aided in his answers by an attorney. The statements made during a deposition can be used at trial to impeach a witness. a. Since interrogatories can be answered with the help of the attorney, they are best for gaining certain

basic factual information. They are relatively inexpensive as well.

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b. Depositions are best used when you want information without the aid of an attorney, you want to see how this witness will favor with the jury, and you want candid, impromptu answers rather than the answers one gets in interrogatories. They are, however, much more time-consuming and costly to use.

12. If the other party will admit to certain basic facts then it is not an issue that needs to be litigated at trial. Therefore, when parties stipulate to certain facts, the trial is shortened and only those facts truly in dispute are litigated. a. Under federal rules, if one party does not answer to these requests than the courts will deem that he or

she admits to them. 13. To obtain the documents vital to the case that are in possession of the opposing party such as tax filings,

pay stubs, medical bills, etc. 14. To determine what, if any, medical damages the plaintiff has sustained if they are made an issue.

Oftentimes, opposing counsel will use this to get a second opinion of the plaintiff’s assertion of damages. 15. A motion to compel is used to get the other side to comply with certain court orders, usually during the

discovery process, whereas a motion for a protective order prevents discovery of information that is privileged and therefore not discoverable.

16. During discovery, if the parties find sufficient information to determine that there is no material fact at issue and that a court could render a decision as a matter of law without having to go to court, one party will request a motion for a summary judgment. For example, if a man got into his car while drunk and ran over the plaintiff, breaking her leg, and both parties stipulate to these facts, there would really be no reason to go to trial over this because by their admissions, all elements of negligence have been met. Therefore, the court would grant a motion for summary judgment and save the court’s time and money. Say, however, the parties did not agree as to whether the plaintiff really suffered any damages; maybe she refused any medical treatment at the accident site. This case would have to go to trial because the extent of her damages would be a question for the jury to decide. a. To rebut this, the other side would show that there are still facts in dispute that the reasonable person

would question. 17. A pretrial conference is used to set the schedule for discovery, to clarify the issues and defenses for trial, to

establish witnesses and exhibits for trial, and to encourage settlement. 18. A motion in limine is to resolve evidentiary questions so that they need not be brought up before the jury

at trial. It is made once the trial has begun. 19. A bench trial is a trial before a judge and not a jury. Thus, the judge has the job to decide both factual and

legal issues. 20. Voir dire is jury selection through a process of questioning potential jurors to weed out those who would

be biased. 21. Removal for cause refers to removing a juror because the juror would be too biased to decide the case fairly

based on the questions presented. In most jurisdictions, the attorneys have an unlimited right to remove a potential juror based on cause. An attorney can also request that a juror be removed but cannot allege a bias or cause can also remove the juror using a peremptory challenge. a. Most jurisdictions limit the number of peremptory challenges.

22. During the opening statement, the attorney’s goal is to give an overview of the basic elements of the case, introduce the parties and the witnesses, set the general tone and theme of the case, and ultimately win favor with the jury. a. Since you never have a second chance to make a first impression, this is the attorney’s opportunity to

win favor with the jury. Studies show cases are won and lost during the opening statements alone. 23. Preponderance of the evidence, or, in other words, more likely than not. 24. To impeach the witnesses testimony given during direct examination. 25. Once the plaintiff rests her case, the opposing counsel will generally request a directed verdict alleging that

the plaintiff did not prove all of the elements of the cause of action. a. If the motion is granted the case is in essence dismissed.

26. Summarize the facts of the case, show how the evidence established each of the legal elements and ultimately wrap up the entire scenario to convince the jury that it should decide in her favor.

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27. Charging the jury is when the judge will instruct the jury on the rules of law to be applied in reaching its decision as to whether the defendant should be held liable. a. Because how one poses a question can often times determine how it will be answered. For example, the

age-old question of, “Have you stopped beating your wife?” makes it very difficult to answer but one way imputing guilt. Additionally, any objections to jury instructions must be made to preserve the record for appealing the case.

28. A general verdict requires the jury to decide if the defendant was liable for the plaintiff’s injuries and to determine what damages should be paid. A special verdict would require the jury to answer a certain set of question and the judge would then determine the prevailing party after he reviewed the jury’s answers.

29. A motion for a new trial asserts that errors were committed during the trial and requests that in essence the issue be retried de novo. A motion for a judgment notwithstanding the verdict asserts that the verdict reached by the jury was contrary to the evidence presented at trial and basically that the jury went contrary to common sense. This motion asks that the judge change the jury’s verdict. a. The attorneys must make appropriate objections during the trial to show as proof that it objected to the

handling of the trial. If the jury does not, often times, these procedural remedies will be lost. 30. A final judgment on the merits of a case has been reached and that the case can no longer be retried on the

merits.

ANSWERS TO REVIEW QUESTIONS 1. Interrogatories, depositions, requests for admissions, requests for production of documents, request for

medical examination, a motion to compel, a motion for a protective order, and in some states, a disclosure statement.

2. Jurisdictional statement asserting that this case is being brought in the correct court. Parties involved in the suit so that it is evident who will be a part of the case. The claim whereby a brief summary of each of the elements of the wrong is alleged. Damages or relief being sought. You must let the courts know what you are seeking.

3. a. Voir dire to select a jury that might be favorable to your side or at least not biased. b. Opening statement to give an overview of the basic elements of the case, introduce the parties and the

witnesses, set the general tone and theme of the case, and ultimately win favor with the jury. Since you never have a second chance to make a first impression, this is the attorney’s opportunity to win favor with them. Studies show cases are won and lost during the opening statements alone.

c. Direct examination to elicit the important evidence from your witness to support your cause of action. d. Cross-examination to impeach the other side’s witness’s testimony. e. Closing arguments to summarize the facts of the case, show how the evidence established each of the

legal elements, and ultimately wrap up the entire scenario to convince the jury that it should decide in her favor.

f. Charging the jury is when the judge will instruct the jury on the rules of law to be applied in reaching its decision as to whether the defendant should be held liable. In some jurisdictions attorneys can draft the proposed jury instructions for the judge to use.

4. This answer depends on the student who is reading the text. However, the most common ones that students confuse are the JNOV and the motion for a summary judgment. In a JNOV, the person making the motion is asking the judge to set aside the jury’s verdict because it runs contrary to what any reasonable jury could have decided. Not just that the judge did not agree with how it ruled, but that the judge can find no way that the reasonable jury could have decided that way given the facts presented at trial. In a motion for summary judgment, the facts as presented during discovery leave no room for a jury to make a factual determination because nothing is in dispute.

ANSWERS TO PUTTING IT INTO PRACTICE The first step would be the initial interview to determine if there is any cause of action. Once determined that there is a viable legal claim, the attorney would draft a demand letter and send it to the other side requesting compensation for the client’s injuries. If the other side does not comply with that letter, then the plaintiff’s attorney will have to file a complaint on behalf of the plaintiff alleging the facts that give rise to a legal cause of action.

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The complaint will be served to the defendant and the defendant will have a chance to answer the complaint. If he does not, the judge has the option of issuing a default judgment in favor of the plaintiff. However, if the defendant answers the complaint he can basically admit or deny the facts and allege any affirmative defenses or cross-claims or countersuits. Once this is done, discovery begins, or the process of obtaining information for purposes of litigation. The client could be subjected to written question, interrogatories or verbal questions, depositions, or could be required to submit certain documents or undergo certain medical examinations at the request of the other side. If the case does not settle during discovery, which it usually does, the case will go to trial. At trial many steps are taken which include voir dire to select a jury that might be favorable to your side or at least not biased; an opening statement to give an overview of the basic elements of the case, introduce the parties and the witnesses, set the general tone and theme of the case and ultimately win favor with the jury; direct examination to elicit the important evidence from your witness to support your cause of action; cross-examination to impeach the other side’s witness’s testimony; closing arguments to summarize the facts of the case, show how the evidence established each of the legal elements, and ultimately wrap up the entire scenario to convince the jury that it should decide in her favor. Charging the jury is when the judge will instruct the jury on the rules of law to be applied in reaching its decision as to whether the defendant should be held liable. In some jurisdictions attorneys can draft the proposed jury instructions for the judge to use. Finally, at the conclusion of the trial, the job of the attorney is not done. If the case is decided against the client he can move for a retrial, or a JNOV, asking the judge to set aside the verdict or request an appeal. However, very few cases ever make it this far.


CHAPTER

3 Intentional Torts

ANSWERS TO OVERVIEW QUESTIONS 1. An intentional tort requires that the defendant have a desire to bring about a particular consequence.

a. No. The tortfeasor need not desire to harm a person but he must be aware that certain consequences are substantially certain to result from his acts.

b. Yes. (1) If the consequences are merely highly likely but not substantially certain, the defendant will be

considered negligent, but will not have been deemed to have acted intentionally. c. Yes, an intentional tort may also be a crime. An assault is actionable both in the civil system as well as

the criminal system. 2. Under the transferred-intent doctrine the intent with respect to one person is transferred to the person is

actually injured. For example, a person attempts to hit person A, person A ducks and person B is actually hit. The intent to batter person A is transferred to person B. a. Yes. If a person intends to scare someone by pointing a gun at him and the gun accidentally goes off and

hits the other person, the intent to assault that person is transferred to the battery. 3. Battery is defined as the intentional infliction of a harmful or offensive contact upon a person.

a. No. Contact must be with the person’s body or anything attached to them. For example, it would be a battery to hit a hat off of a person even if there was no direct contact with the person’s skin.

b. No. Contact occurs if a person shoots a gun. There is no requirement that the defendant’s body actually touch the plaintiff’s body.

c. No. The contact can be harmful or offensive. Therefore, a plaintiff does not have to be harmed, just touched in an offensive manner.

d. “Offensive” means that a person with a reasonable sense of dignity would be offended. e. No.

(1) For example, a battery still occurs if the tortfeasor hits a person when that person is asleep. The harmful or offensive contact still occurred even though the victim is not aware of it.

f. The defendant who commits battery is liable for any consequence regardless of how unforeseen it may be. You take the victim as you get him.

4. Assault is defined as the intentional causing of an apprehension (awareness) of harmful or offensive contact. a. (1) A person swings a fist at someone but misses.

(2) A person shoots a gun by misses the intended victim. In both examples, the victim is assaulted by being aware of the impending contact. The tortfeasor commits an assault by either intending to hit a victim and missing or just merely attempting to scare a victim.

b. Yes. If the tortfeasor throws a rock, intending to scare one person, but also scares another person because of the fear of the harmful contact of the rock, the intent to commit an assault is transferred to the other person as well.

c. Yes, because unless a person is aware of the impending contact, there can be no apprehension. d. No, the plaintiff only has to be aware that he is about to be touched in a harmful or offensive manner.

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e. Yes, the tortfeasor must appear to have the present ability to carry out the threatened contact. Therefore, a tortfeasor yelling over the phone at the plaintiff stating that he wanted to beat that person up is not immediate. However, if the tortfeasor is yelling at the plaintiff to his face, an assault has occurred.

f. No. A plaintiff will not be able to recover for assault if his apprehension is that someone else will be touched and not himself.

g. No. The defendant must appear to have the present capability of carrying out the threat. h. Jurisdictions are split as to whether words alone constitute a threat. Some courts state that there must be

some overt act to accompany the words. i. As soon as the plaintiff apprehends the contact.

5. False imprisonment is committed when a person intentionally confines another. a. The confinement must be complete, therefore blocking someone’s path. If there was an alternate route

it would not constitute false imprisonment. b. No. A person is completely confined if there is no reasonable means of escape. Putting one’s self in

harm’s way is not a reasonable means of escape. c. Yes. d. Yes. Threats of immediate harm to the plaintiff or threats to harm another (say your child) all constitute

methods of confinement even though no physical force was used. e. No. Threats of immediate harm to another is also enough. f. No. The tortfeasor must have the apparent, present ability to carry out the threats. g. Yes. The plaintiff must be aware of the confinement, otherwise false imprisonment has not occurred. h. The police office must show that he acted reasonably and in good faith in carrying out an arrest even if

it is later found out that the accused did not commit any crime. i. A shopkeeper has a right to use reasonable force to detain an individual for a brief duration of time if

the shopkeeper reasonably believes that a customer has stolen property. If the shopkeeper cannot point to reasonable facts, takes too much time delaying a customer, or uses too much force, then a false imprisonment has occurred.

6. This tort can be committed either intentionally or recklessly. Either the tortfeasor wanted to bring about a particular consequence or the tortfeasor acted with a deliberate disregard of the emotional distress that he knows he is very likely to cause the plaintiff. a. Recklessness is a deliberate disregard of the consequences. Negligence means that the person acted

sloppily or breached a duty. Recklessness rises above negligence. b. Conduct is extreme and outrageous when it is totally unacceptable in civilized society and exceeds all

possible bounds of decency that no reasonable person should have to endure it. c. No. Extreme and outrageous goes beyond that. d. Sensitivities of the plaintiff are only taken into consideration if the defendant knew of the plaintiff’s

peculiar sensitivities and acted upon it. e. No. This would open the floodgates of litigation.

(1) An exception is when a defendant directs his conduct against a member of the plaintiff’s immediate family and is aware that the plaintiff is present at the time.

(2) No. f. Severe emotional distress to the extent that he or she has sought some medical attention.

(1) No. Generally, the plaintiff must only show that he has faced some severe emotional distress. g. They are held to a higher standard of care than private individuals.

(1) Public policy dictates that those who provide a public service should not be rude to their customers. Since they benefit from the public, they should also be held to a higher standard.

7. Trespass to land occurs when a person enters or wrongfully remains on another’s land or when a person fails to remove an object from another’s land if she is under the duty to remove it. a. The defendant’s intent must be to make physical contact with the plaintiff’s land. He does not have to

intend to cause harm. b. Yes. The defendant only has to possess the intent to enter the land, not the intent to wrongfully enter

the land. c. Yes.

(1) If the defendant cuts a tree down and allows it to fall on the plaintiff’s land. Even though the defendant himself never actually entered the land, he caused something to wrongfully enter the land.

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d. A defendant will be held liable if he knows that such an entry is reasonably certain to happen is liable for trespass.

e. Yes. (1) Yes, if that blast causes vibrations on the plaintiff’s land.

f. Yes, but general aviation laws allow planes to fly in the airspace above certain minimum flight altitudes as established by federal statutes. However, if a landowner can show actual damages due to the flight over the allowable airspace, he may have a suit for nuisance.

g. Yes. A person can be liable for trespass even if they were originally invited onto the land and then refuse to leave once asked.

h. A defendant is liable for almost all consequences that may occur as a result of the trespass, even emotional distress.

8. Trespass to chattels is the intentional interference with the plaintiff’s use of possession of personal property. a. Yes. The length of deprivation is irrelevant. b. Yes. Both the owner and the possessor of the personal property are entitled to recover. c. The only intent required is the intent to interfere in some way with the plaintiff’s personal property.

The defendant need not intend to harm the property. d. No. A mistaken belief that the property was the defendant’s is not a defense. The plaintiff has still

suffered a deprivation of the use of his own personal property. e. Yes. The plaintiff must prove actual damages.

9. Conversion refers to an interference with the plaintiff’s personal property that is so substantial that justice demands that she pay the plaintiff the full value of the property. Therefore, the amount of interference differentiates conversion with trespass to chattels. a. Both do not require an intent to harm the plaintiff’s property. For both, a mistake by the defendant as

to his right to take the property is NO defense. And, in both cases either the owner or the person who was in rightful possession prior to the interference can recover damages in a suit.

b. In trespass to chattel, the defendant has a right to just return the goods. However, in a suit for conversion, the defendant is required to pay the full value of the personal property rather than just the damage done.

c. (1) The extent and duration of the defendant’s control over the property. The greater the extent and duration, the more likely that it rises to the level of conversion.

(2) The extent and duration of the resulting interference with the plaintiff’s right of control. (3) The defendant’s intent to assert a right inconsistent with the plaintiff’s right of control. (4) The defendant’s good faith. (5) The harm done to the personal property. (6) The inconvenience and expense caused to the plaintiff.

d. Mistake is not a defense to conversion. However, when someone in good faith takes a hat and then loses it, while it was a mistake in the first place, the fact that the defendant lost it, does not reduce the loss of property to the plaintiff. In the second scenario, the plaintiff’s loss is relatively short and the damages minimal.

e. Yes, as long as it creates a relatively serious interference with the plaintiff’s right to possess and control his property.

f. Yes, because the defendant still has caused an interference in the plaintiff’s use and possession of the good.

g. Yes. Chattel, personal property, includes intangibles such as stock certificates, savings books, etc., because these goods are linked to ownership of some good.

10. No. a. A mistake can be considered when a person reasonably believes that he must defend himself.

11. Yes, as long as the consent was voluntary and informed. a. Consent can be implied by actions or conduct. b. To determine if the plaintiff consented, courts will look at objective factors to determine if the

reasonable person in the defendant’s shoes would have believed that the plaintiff had consented to the invasion of his interest. For example, a person puts on boxing gloves and jumps into a boxing arena with another boxer. The reasonable person would imply that that person was consenting to boxing.



c. A plaintiff that is incompetent or incapable cannot consent. A minor or someone who is unconscious cannot consent. (1) In an emergency situation, consent will be implied if emergency action is immediately necessary to

save an incapacitated person’s life, if no indication exists that he would have refused to give consent, and a reasonable person would have consented under like circumstances.

d. Even if the plaintiff is mistaken about a material fact, consent is generally effective unless the defendant knows of or induces the plaintiff’s mistake (commits fraud), consent will be deemed ineffective. (1) No. (2) Consent will be considered ineffective if the doctor fails to disclose the consequences of a procedure

that she knows will definitely follow a procedure. However, every remote risk possible does not have to be disclosed.

e. Normally, an individual cannot consent to criminal activity. f. No, if that threat creates an immediate and serious physical threat to herself or another.

(1) No, they are generally not enough to render consent ineffective. (2) No.

g. If a defendant exceeds the scope of consent in a way that substantially deviates from that originally consented to, the tortfeasor will be liable.

12. Was the defendant privileged to use force to defend herself? And, was the amount of force use reasonable? a. No. The defendant need only show that he reasonably perceived a threat and can reasonably act to

prevent that from happening. b. Yes. Courts will look at what the defendant would have reasonably perceived. c. The amount of force used in self defense must be in proportion to the amount of threat posed. The

amount of force is that which is reasonably necessary to protect herself against a threatened harm or against words alone if those words are accompanied by some type of overtly hostile act.

d. Words alone are not enough unless they are accompanied by some overtly hostile act. e. No. Future harm is not enough. The threat must be imminent. f. No. There is no reasonable fear of imminent harm.

(1) No. This is only done for self-preservation and not for retaliation or to get even. g. Deadly force is that which is likely to cause death or serious bodily injury. h. While interpretation of this varies by jurisdiction, generally, one cannot use deadly force to protect his

property unless he can show that he reasonably believed he was in imminent danger of serious bodily injury and no other alternative existed.

i. (1) Some say that a defendant has no duty to retreat but can protect his honor and home. (2) Other courts say that a person should attempt to escape rather than use deadly force if that escape

can be done safely. j. Yes, if the defendant reasonably believed that he would suffer serious bodily injury and that no other

option existed to prevent the completion of a felony. 13. The defendant can defend others when his intervention is necessary for the protection of the other person.

a. (1) Most courts believe that the defendant steps into the shoes of the person he has sought to help. Therefore, if the person they seek to help has a privilege to act in self, than the defendant does also.

(2) A minority of courts allow the defendant to claim the privilege as long as he reasonably believes the person he is aiding would have been privileged to use self-defense.

14. The defendant must verbally insist that the intruder stop before he is entitled to use force. However, the defendant cannot use deadly force to defend property. a. The defendant may use only the amount of force reasonable to protect the property, but never deadly

force. b. The case stated that the owner of property cannot use deadly force in a mechanical device against a

trespasser unless that trespasser is endangering human life or committing some violent felony. c. The homeowner can only use a device if she could use a similar degree of force that he could use if he

were present when the intruder entered. And, a person must post a warning before using a nondeadly mechanical device. (1) No. Deadly force cannot be used to protect property.

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15. Because by using force to regain your property you become the aggressor. a. (1) The defendant must show that he used reasonable force to regain the goods.

(2) The defendant must show that the property was wrongfully taken. (3) The defendant must be in fresh pursuit of the property. Otherwise, any delay in the recapture of

goods will require the defendant turn to the courts for remedy rather than take the law into his own hands.

b. Courts allow people to use force to recapture property only because of the concern for delay and costs created by using the courts.

c. Any mistakes on the part of the owner will cause him to lose all privileges and he will have to bear all of consequences of his actions.

d. The detention must be relatively short. The amount of force used must be reasonable and the shopkeeper must have a reasonable belief that the customer did indeed steal from the store. The shopkeeper cannot use threats of arrest and cannot coerce payment or confession.

16. Landlords cannot use force to evict a tenant. They must use the courts and the legal process. a. The courts do not want the landlords to take the law into their own hands. b. A landlord may enter the land if done without force or if a provision in the lease allows a landlord the

right of entry. 17. In all the other torts, the defenses revolved around the wrongdoing of the plaintiff as some type of

justification for the defendant’s wrongdoing. Necessity, however, focuses on the defendant’s need to take certain actions to protect either himself or the public. The plaintiff’s conduct is immaterial. a. A public necessity is a protection of a large group of people, whereas a private necessity is meant to only

protect the defendant. (1) A defendant does not have to pay for the damages caused by a public necessity but will have to pay

for the damages caused by a private necessity. b. It can only be used to avert a disaster in the community. c. It is justified if there was no other less damaging way to avert the damage. d. The defense is effective when it is used to prevent injury to one’s self, to his property, or to a third party.

The defense is complete when the defendant causes no actual damage to the plaintiff’s property. e. No.

ANSWERS TO REVIEW QUESTIONS 1 a. The defendant intended to cause apprehension of harmful or offensive contact.

b. The defendant intended the harmful or offensive contact. c. The defendant intended to cause complete confinement of another. d. The defendant intentionally or recklessly conducted themselves in a manner that was extreme and

outrageous and it caused severe emotional distress on the plaintiff. e. The defendant intentionally entered or wrongfully remained on the property of another. f. The defendant intentionally interfered with the plaintiff’s use or possession of personal property. g. The defendant intentionally interfered with the plaintiff’s use or possession of personal property in a

way that was so substantial that justice demands the defendant pay the full market cost of the good as damages.

2. Assault and battery often times go together as a battery is the completion of an assault. However, assault requires that the plaintiff be aware of the imminent harmful or offensive contact, battery does not. In both cases the doctrine of transferred intent applies.

3. The difference between trespass to chattels and trespass to land is that chattels refers to the deprivation of the plaintiff’s use and/or possession of personal property whereas trespass to land refers to the intrusion by the defendant on the plaintiff’s real property. In both situations, the defendant need not intend to harm or deprive the plaintiff with his right to use and possession of the property. The defendant must merely have the intent to enter the land, or gain possession of the personal property.

The difference between trespass to chattels and conversion is the amount of deprivation to the plaintiff. In conversion, the deprivation is more substantial and in conversion the damages recoverable are the full market value of the product. With trespass to chattel, the plaintiff must prove actual damages. In all of the trespass and conversion cases, mistake to true ownership is not a defense. These torts focus on the loss suffered by the plaintiff rather than the mindset of the defendant.



4. A person may use reasonable force to defend his property, one’s person, or another person in proportion to the threat perceived. And, while deadly force can be used if the plaintiff reasonably believes that his life or that of another is in risk of imminent death or serious bodily injury, a person can never use deadly force to protect property alone.

5. One could raise the defense of consent. The defendant would have to show that the plaintiff voluntarily made an informed consent. The defendant could also claim the defense of necessity. In a defense of public necessity, the defendant must prove that he used this action to avert a serious public disaster and that there was no other, less damaging alternative. In that situation then the defendant would not be held responsible for any damages caused.

6. In a private necessity, the defendant must only show that the damage occurred to prevent an injury to himself, his property, or the person of property of another. If the plaintiff suffered no actual harm, the defendant will not be held liable for any damages. However, if the plaintiff can prove actual damages, then the plaintiff will be personally responsible.

ANSWERS TO PUTTING IT INTO PRACTICE First of all, as a paralegal, you should never give legal advice to anyone. That is unauthorized practice of the law and in some states it is considered a felony.

The brother may have the defense of the right to recover chattel. Chattel refers to personal property and a car is personal property. The brother would only be allowed to use reasonable force to recover the personal property that was wrongfully taken from him while he was in fresh pursuit. Reasonable force means only that which is necessary to recover the property. Therefore, the brother should refrain from using deadly force. The brother must also be sure that the car was wrongfully taken from him. The facts do not explicitly state whether or not the “joy ride” was consented to or not, but assuming that the brother did not consent to it, he can retrieve the car if he is in fresh pursuit. Therefore, the fact that the he immediately left to retrieve the car supports the fact that he was in fresh pursuit.

To avoid liability for assault, battery, false imprisonment, or IIED, the brother can only use the amount of force necessary to recover the car and nothing more. To avoid liability for assault, he must not threaten deadly force. To avoid a claim of battery, he must not use deadly force. To avoid false imprisonment, he should not attempt to confine the son, by either obstructing his passage or his freedom of movement in the car. And, to protect himself against a claim of IIED, he must not act in a manner that would be considered extreme and outrageous. Nothing in his actions or words can cause the son to be in reasonable fear of deadly or serious bodily injury as that would mean using deadly force. Again, deadly force is never allowed to recover chattel.

The brother does have the right to recover the property instead of turning to the courts because the son wrongfully took the car and the brother immediately left to regain possession of the car. As long as the brother uses reasonably force to regain the car, and does not exceed those boundaries, he will be justified.


CHAPTER

4 Negligence: Duty

ANSWERS TO OVERVIEW QUESTIONS 1. Duty is the legal obligations that result from our relationships with others. In general, the defendant’s duty

is to act reasonably and exercise the degree of care that any reasonable person would exercise under similar circumstances. a. (1) The relational approach is where the nature of the relationship between the parties determines

whether the defendant has a duty to protect the plaintiff. For example, a parent would have a duty to protect, feed, clothe, and care for his child, whereas a complete stranger to that child would have no duty.

(2) Other courts analyze the existence of duty in context of foreseeability; where a defendant owes a duty only to those persons the defendant could reasonably foresee would be endangered by his action.

2. Under common law the duty owed by a possessor of land was determined by the class into which the plaintiff fell. a. The purpose behind this is that a landowner holds a higher duty to someone that is invited onto his

property rather than someone who enters without his permission. 3. Common law was designed to protect a trespasser from the owner or possessor setting deliberate traps to

injure a trespasser. 4. The possessor must refrain from willfully or deliberately hurting even a trespasser. However, beyond that

the landowner owes no duty of care to a trespasser. a. (1) Trespassing children.

(2) Individuals known to be trespassers. (3) Rescuing someone from danger as a result of the defendant possessor’s negligence. (4) Trespassing on a very limited portion of the possessor’s land.

5. a. The possessor has reason to know the condition of a place on the land where children are likely to trespass.

b. The possessor must have reason to know of the condition and that it poses an unreasonable risk of serious bodily injury or death to trespassing children.

c. The children, because of their youth, have not realized the risk or danger posed by coming into the dangerous area.

d. The benefit in maintaining the condition in its dangerous form must be slight in comparison to the risk posed to the children.

e. The possessor fails to take reasonable care in eliminating the danger or protecting the children. 6. Yes. A younger child would be more likely unable to understand a risk posed by an attractive nuisance,

whereas an older child would. 7. This doctrine generally applies to artificial conditions only because it would be almost impossible for a

possessor of land to protect a trespassing child from all natural dangers, whereas with an artificial condition the possessor has created the condition.

8. No. This doctrine means that the possessor take reasonable precautions to protect a child from dangerous artificial conditions.

9. Under the rescue doctrine anyone who negligently causes harm to a person or property may be liable to one who is injured in an effort to rescue the imperiled person or property.

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a. The rationale is that the rescuer would not have been injured were it not for the negligence of the tortfeasor. This prevents the plaintiff from being found contributorily negligent for voluntarily placing herself in a dangerous situation in order to save another.

b. If the defendant’s conduct is neither negligent nor intentionally tortious, the doctrine is inapplicable. 10. Once a possessor knows that someone is trespassing on his property he owes a duty of reasonable care to

that known trespasser. a. Since the possessor allows the trespasser to continue trespassing, the possessor has impliedly given

permission to the trespasser and the trespasser’s status as a plaintiff is now raised to a licensee. b. The possessor owes a reasonable duty to warn when he knows or has reason to know that the trespassers

are too close to a hazard and the trespassers will not discover or realize the danger involved. 11. Possessors owe a limited duty of care to frequent trespassers who use only a very limited area of the land to

anticipate the trespass and to use reasonable care to protect the trespassers in that limited area. 12. A licensee has the consent of the possessor to be on the land, but does not have a business purpose for

being there, for example, a social guest. a. The possessor must warn the licensee of any dangerous conditions if the possessor is aware of that

condition and should reasonably anticipate that the licensee would not discover it. For example, the railing on a stairway is extremely lose and might fall off if someone leans on it. The possessor has a duty to warn the licensee of this. However, a possessor does not have to warn a licensee of obvious dangers, such as not jumping off a roof.

b. Litigation in this area usually revolves around the obviousness of a condition and the warning that is required to prevent the harm.

c. There is no duty to inspect for dangers unless a statute states otherwise. The possessor is only responsible for those dangers that he knows of or should have reasonably known.

13. An invitee is a person invited by the possessor onto his land to conduct business. a. (1) Public invitee—one who is invited and enters the land of another for the purpose for which the land

is held open. An example is a person who walks on a park trail. (2) Business invitee—one who is invited onto the land for a purpose connected with the business

dealings of the possessor. An example is a person shopping in a clothing store or a person whom a possessor hires to fix a bathroom faucet in his house.

b. Yes, as long as he has a general business relationship with the possessor. c. No. The host must gain some economic benefit before the guest can be considered an invitee. d. A slip and fall case is when a store owner is sued because a shopper slips and falls while in the owner’s

shop due to an unreasonably dangerous condition in the shop. The plaintiff must prove that the possessor either caused the danger or should have known about it and did not take reasonable care to prevent injury. For example, in a grocery store there is a puddle of water. The store must clean up the water and post a sign “Caution: Floor slippery when wet.”

14. He loses his invitee status if he goes to a part of the premises that extends beyond his invitation or if he stays on the premises for longer than is reasonably necessary to conduct his business.

15. A possessor owes a higher duty of care to an invitee than he does to either a licensee or a trespasser. The possessor does have duty to inspect. a. In determining what reasonable care is, the use of the premises is a variable. The more public the use,

the higher the duty. In other words, a homeowner’s reasonable care may be lower than a shopkeeper’s duty simply because a shop is more public than a home.

b. No. In some instances, the possessor must also take reasonable steps to reduce the risk. 16. No. Some states make no distinction and have adopted a reasonable-person standard. This is a minority of

states, however. 17. Possessors are generally found liable for conditions that pose an unreasonable risk of harm to persons

outside the premises, especially when it is a man-made or artificial condition. a. If the possessor of the land alters the condition of the premises the landlord will most likely be held

liable. However, if the hazard is a natural one the possessor is generally not held liable because he is under no general duty to remove it or protect others from it even if it poses an unreasonable risk of danger to people outside the property. For example, if a possessor of land puts gutters on a house so the pipe drains in a certain direction, he would generally be held liable for any dangerous conditions.

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However, if the natural flow of the land creates the same runoff of rain that is dangerous, the courts will most likely find that he does not owe a duty to those outside the property.

18. Under common law, a landlord was relieved of liability once he surrendered possession of his property to the tenant. a. Under common law a possessor’s liability was limited so as to encourage possessors to use the land to its

fullest potential with minimal interference from others. This protection was given to the actual possessor and the land owner. Therefore, in a landlord-tenant relationship, since the landlord is giving up possession of the property he is also relieved from liability.

19. A tenant possesses the same duty to inspect the premises does not include common areas such as an elevator or hallways in an office building.

20. Currently, a landlord is liable to the tenant and to the tenant’s invitees and licensees for those dangers that the landlord knows about or should know about and that the tenant has no reason to know about. This is not a duty to inspect, but does require the landlord to protect tenants from hidden dangers that the landlord knows or should know about. If the land will be held open to the public, say for a party, the landlord must inspect and repair any dangers. a. The majority of courts allow a tort claim to anyone injured as a result of the landlord’s breach of

contract if the landlord fails to make repairs in a timely manner. (1) The plaintiff must prove that the landlord failed to use reasonable care in performing his contractual

duties. b. Once beginning a repair, the landlord must do so reasonably and complete the repair because, in effect,

he makes the situation worse if the tenant is implicitly led to believe that the dangerous condition no longer exists. For example, if a landlord attempts to repair a step on the stairway of a tenant’s house but stops work halfway and covers up the offending step and the tenant is hurt as a result of that, the landlord will be held responsible.

c. Yes, in a common area the landlord has a duty to make it safe because the tenant does not obtain sole possession of that area. The landlord is the only person who has the power to keep these areas reasonably safe. This is usually not extended to criminal activity because courts generally rule that criminal activity of a third party is not foreseeable. In the Kline case, no individual tenant could or should have a duty to guard the entrance to the premises. The landlord knew of the repeated crimes that were occurring in his building and should have known that they would occur again. Therefore, the landlord should have taken those steps that were within his power to minimize the risk. The landlord is the only person who has the power to do so and he is the only one who is equipped to do so as well.

21. In general, a seller of land is released from liability once the buyer takes possession of the property. However, if the seller fails to disclose a dangerous condition of which he knows about or should have known about and that the buyer would not discover, he will be liable for any injuries. His liability will cease once the buyer has a “reasonable opportunity” to find and correct the situation. If the seller intentionally hides the defect, or commits fraud, the seller will be held liable. a. A seller must disclose a dangerous situation that he knows of and that the buyer would not reasonably

discover. 22. No, not unless a special relationship exists.

a. It made no difference even if they could assist them without danger or harm to themselves. 23. Parent/child, doctor/patient, innkeeper/guest, attorney client. 24. In general, if a special relationship exists, such as an attorney/client or doctor/ patient, the professional may

have a duty to control the defendant from hurting the plaintiff. For example, if a doctor learns from a patient that he is going to kill the plaintiff, the doctor has a duty to control the patient/defendant. Dram shop acts also relate to this point. Under the dram shop acts, a bartender may be held liable if he sells alcohol to an obviously intoxicated customer and that customer drives drunk and injures the plaintiff. The bartender here had a duty to control the drunk defendant by not selling him alcohol. a. Yes. This is a special relationship, and just like a parent/child relationship, a duty arises when otherwise

there would be no duty.

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25. Tarasoff blurs the line between the duty of a professional to protect a plaintiff from a defendant/patient’s threats and the professional’s need to have an open line of communication with a patient. In this situation, the defendant told the psychotherapist that he was going to kill the plaintiff and he ultimately did. The court held that the psychotherapist did have a duty to warn the plaintiff of the patient’s intentions if a reasonable person in those circumstances would have done so.

26. Yes, under the dram shop laws, a bar owner can be held responsible if he sells alcohol to an obviously intoxicated patron. Social hosts are also increasingly being held liable if they serve alcohol to minors.

27. A special relationship forms once someone begins to administer emergency assistance to a person in need. Therefore, the person assisting must use reasonable care and every reasonable means must be used to keep the plaintiff safe. a. The rational is that once the defendant begins giving help to someone in need, others will not step in

and help, and if the defendant stops assisting the plaintiff, the plaintiff will be essentially worse off than if the defendant had done nothing.

b. The law states that anyone providing emergency medical treatment is not liable for damages arising out of that assistance as long as care is provided in good faith and does not constitute gross negligence. These statutes were created to encourage people to help others and not to fear potential liability.

c. The voluntary undertaking doctrine states that a defendant may be held liable even though he has no legal duty to protect the plaintiff when the defendant voluntarily undertakes that service because the plaintiff was induced to believe that the defendant would uphold their service. The plaintiff reasonably relied on the defendant to continue with a service that he had been doing in the past, such as warning people of impending danger.

28. It is essentially the same; however, sovereign immunity (governmental immunity) does confuse this concept a bit.

29. No, under common law a child could not recover for his injuries. a. Modern courts have reversed this duty and have allowed recovery in most instances where a causal link

between the defendant’s act and the fetus’s injuries can be proven. However, the plaintiff must show “convincing evidence” of causation. Some states also require that the plaintiff show that the fetus was viable or capable of living outside the womb.

30. Vicarious liability is a legal theory that makes the defendant liable for the tortious acts of another even though he is not at fault.

31. Doctrine that makes employer liable for the tortious acts of employees committed in the scope and furtherance of their employment. a. The doctrine applies when the defendant has the duty to control the other person’s actions. An

employer is responsible for how an employee carries out his job responsibilities. b. The rationale behind this is that the master should answer for the servants because they are in a better

position to bear the burden. 32. The family purpose doctrine holds the owner of a car vicariously liable for the torts committed by the

members of his household whom he allows to drive his car.

ANSWERS TO REVIEW QUESTIONS 1. The duty of care owed by a defendant possessor of land varies depending on the status of the plaintiff. In

general, a possessor owes a trespasser no duty of care to make the premises safe or warn the trespasser unless the trespasser is a child, a known and repeated trespasser, or a rescuer. A possessor of land has a duty to warn a licensee of hidden dangers that the possessor knows of or of which he should reasonably know. A possessor of land has the highest duty of care to an invitee. The possessor must inspect the premises for hidden dangers on behalf of an invitee.

2. Landlord/tenant, parent/physician, doctor/patient, attorney/client, innkeeper/guest. 3. Once the landlord transfers possession to the tenant, he is responsible to keep the premises in good repair

and is liable for those dangers that he knows about or should know about and which the tenant has no reason to know about, for example, hidden structural dangers. As for a seller; a seller also has a duty to disclose a dangerous condition of which he is or should be aware and which he should realize that the buyer will not discover.

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4. Vicarious liability occurs when a third party is liable for the actions of the defendant because that person is under the control of that third party. For example, an employer can be held liable for an employee’s actions. A parent can be liable for the acts of his child.

ANSWERS TO PUTTING IT INTO PRACTICE The first set of questions would need to establish what classification the child was, either a trespasser, licensee, or invitee (business or public). Did the firm know that the child was riding the horse? Did the firm allow the child to be on the farm with the firm’s consent? Did the child pay to ride the horse, such as for riding lessons? Did the farm allow the general public to ride the horses, such as for a community event? What was the age of the child? Had this child ridden horses before the accident? Did the farm know that she was riding the horses? Did they see her ride the horse? What is the temper of the horse? Is the horse generally calm or high-strung? Was the child aware of the temper of the horse? What types of precautions did the farm take in making sure that unwanted children could not get on the horses? Was the child riding alone or was a farm guide pulling the horse along by a rope? Or was a parent of the child pulling the child along with a rope?

Next, once the status of the child is determined, then one should establish the condition of the horse and the child’s riding habits to determine if the attractive nuisance applies and if the farm used reasonable measures in protecting a child. What was the child doing while on the horse? How much experience did the girl have in riding and handling horses? Did the farm have any warning signs posted about the horse? How was the health of the horse? Was the horse properly maintained? What made the child fall off the horse? Did anyone witness the child fall? Were there any fences around the farm to prevent the child from entering the horse riding area? Was the child given any instructions prior to riding? If so, who gave those instructions? What was the condition of the ground? Were there rocks or pebbles that may have caused the horse to jump?

Technically, whether the client was on the farm or not at the time of the incident would not really matter because he is both the owner and the possessor, even if he is not physically present at the time of the injury. Therefore, he would owe the same duty if the child were a trespasser under the attractive nuisance doctrine, a licensee or a public or private invitee.


CHAPTER

5 Negligence: Breach of Duty

ANSWERS TO OVERVIEW QUESTIONS 1. The basic duty everyone owes is to use reasonable care. Everyone is required to recognize the risks created

by one’s actions and to act reasonably in light of those risks. In other words, what would a reasonable person do under similar circumstances? a. The actions must be determined at the time of the plaintiff’s injury and not after the fact.

2. What are reasonable precautions in various situations when the gravity of the harm differs? 3. Under Judge Learned Hand, the more serious the potential injury that could occur, the less probable or

likely its occurrence must be before the defendant is obligated to guard against it. a. The more serious the danger, the less likely the occurrence before a reasonable person is required to act.

For example, it is not very common that people drown in private pools, however, since the potential injury is so serious (death) a pool owner is required to take precautions to guard others from pool injuries even if no one has ever drowned in his pool.

b. Courts look at the probability that the harm would occur as a result of the defendant’s conduct, the gravity of the potential harm, and the burden of precautions to avoid the risk. The burden imposed upon the defendant includes the cost in taking the precautions but also the social utility in allowing the defendant to continue with such activity. In other words, it asks whether society would be better off if it let the defendant continue with the activity. It is basically a cost-benefit analysis.

c. To answer that question, one would have to determine the statistical likelihood of injuries to a vehicle’s occupant because of a car accident. Second, the court would determine the gravity of the injury that would occur in a car accident. Death is a potential injury and therefore it is very serious. Third, the courts would have to analyze the burden of making cars safer by the use of airbags. If the probability of injury multiplied by the amount of damages caused by each injury is more than the burden (cost) to install airbags, the court would determine that it is reasonable to install airbags. If it is less, then installing airbags may not be reasonable.

4. The Restatement incorporates Learned Hand’s approach and requires the courts to evaluate the reasonableness of the defendant’s conduct by looking at whether the social value of the product outweighs its potential risks. For example, live electrical lines are very dangerous, but they also have a very high utility value of providing electricity to houses. Statistically, people are not generally at risk of getting shocked by a live wire from a utility pole, and since the social value of it is so high, the courts will be less likely to find someone negligent in a live wire injury.

5. The objective standard requires that the reasonable person act just as the average individual in society. The courts will determine what is reasonable based on society standards. The subjective theory is just the opposite: the court would look at what the defendant himself thought was acceptable or reasonable. For example, some parents think it is acceptable to not provide any medical treatment for easily curable childhood diseases. However, in determining whether a parent is negligent in failing to allow medical treatment, the courts will not use the subjective standard and look at what that particular parent thought was reasonable, but will instead look at what is generally accepted in society as reasonable. What would the average person in the same situation have done? a. The objective standard is generally used in the legal system because it reduces the uncertainty of legal

rulings based upon individuals’ beliefs.

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b. Under the Restatement, a person is expected to act reasonably according to the objective theory. In other words, the court will look at the reasonable person to serve as a barometer for all negligence cases. A reasonable person is not expected to be perfect, but rather to know the “qualities and habits of human beings and animals and their qualities, characteristics, and capacities of things and forces insofar as are matters of common knowledge at the time in the community.”

c. No, ignorance of the law is no excuse under the reasonable-person standard. 6. No. No special allowances are made for a defendant who is emotionally unstable.

a. No. IQ is not taken into consideration, even when it is low. However, in the minority of jurisdictions, courts will not impose liability where there is an extreme mental deficiency.

7. An intoxicated person is held to the same standard as the reasonably sober individual because public policy dictates that if a person voluntarily imbibes alcohol or becomes intoxicated he thereby deliberately creates a risk of harm to others and cannot be absolved of liability.

8. Generally, insane people are held to the reasonable-person standard; however, some courts are starting to deviate from this rule when a person is unable to understand or to avoid the danger. a. (1) The allowance of an insanity defense would lead to fraudulent claims of insanity in an effort to avoid

liability. (2) When interaction between two innocent people occurs, the one causing the injury should bear the

consequences. (3) The potential of liability provides an incentive to the wards of the mentally incompetent to supervise

their charges closely and to prevent them from harming others. 9. Yes. The law does take into consideration the physical attributes of the individual.

a. For example, a blind person is held to the standard of a reasonably blind person. That person would know to use a cane or a Seeing Eye dog, and not to engage in certain activities such as driving a car.

b. If the physical condition is unknown, then the defendant will not be held responsible, such as a person who unexpectedly has a heart attack while driving. However, if the defendant had heart attacks before and was having chest pains prior to entering the car, that defendant may not escape liability.

10. Children are held to the standard of a “reasonable person of like age, intelligence and experience under like circumstances.” Therefore, the actions of a two-year-old would be compared to those of another two-year-old, and not to those of an adult. a. Children are held to the standard of a reasonable adult when they engage in potentially dangerous

activities that are normally limited to adults. An example might be if a child attempted to drive a car. 11. In an emergency, the courts will take into consideration the circumstances under which the defendant was

operating. The defendant is still expected to act reasonably, and failure to do so will result in his liability. a. In some situations, a reasonable person should anticipate the actions of others and exercise special

precautions to guard against other people’s carelessness. For example, if the defendant was driving down a heavily populated residential area where children are playing, the defendant should anticipate that a child may run out in the street and, therefore, the defendant should slow down and be extra alert. The commission of crimes or intentional torts by another person is never something, however, that a defendant should anticipate.

12. Custom may be considered. Courts will look at the standard practices of a trade or community in assessing the reasonableness of the defendant’s actions. a. Adherence to custom is persuasive evidence of reasonable conduct, but not necessarily conclusive.

13. A defendant who is a professional in a certain area is thought to have a higher degree of knowledge or skill as a result of training or experience and therefore will be held to a higher standard of care. a. Since the neurosurgeon specialized in the medical profession he would be held to the specialist’s

standard of care. A general practitioner would only be held to the standard of a reasonable general practitioner and not of a specialist.

b. A novice is held to the same standard as any other member in that same profession. 14. Negligence per se is negligence that is established by statute, or “negligent by itself.” For example, if the

speed limit is 65 and a defendant drives at 67 mph, that defendant is presumed to be negligent simply by violating the speed limit imposed by statute. a. (1) The plaintiff must show that he is a member of the class of person whom the statute intended to

protect.

Negligence: Breach of Duty, 73


(2) The plaintiff must show that the statute was designed to protect against the kind of harm that was sustained.

15. When a person leaves keys in a car and the car is stolen, the analysis of negligence per se becomes difficult. The courts, in jurisdictions where leaving keys in the car is prohibited by statute, must determine the intent behind the statute before continuing.

16. It depends on the wording of the statute. Some statutes automatically impose civil liabilities. a. The majority will apply the criminal statutory standard to civil cases as a matter of law.

17. In rare instances a violation of a statute deemed to impose absolute liability. a. An example of absolute liability would be if a person sold a gun to a minor even though that person in

good faith believed that person to be an adult. 18. Usually the courts will treat violation of a statue merely as presumptive evidence that can be rebutted if the

defendant can prove reasonable care or some other excuse. 19. Yes. 20. No. The reasonable person is expected to act in relation to the circumstances at the time of the plaintiff’s

injury. Sometimes merely complying with a statute is not enough. For example, if the roads are very icy, a reasonable driver would drive well below the speed limit.

21. This statute is used to limit the duty of care of the driver to a guest in the car. The driver of a car is only liable to the guest of the car under instances of extreme misconduct. a. Originally, prior to the availability of automobile insurance, the court did not want an ungrateful

“guest” in a car to sue the driver and make the driver financially responsible. When auto insurance became commonly used, the court’s rationale shifted to not wanting a driver and a guest to collude, whereby the driver of the car would concede to negligence so that the guest could recover for injuries.

22. “The thing speaks for itself.” This doctrine allows the plaintiff to create an implication that the defendant was negligent without providing direct evidence of that negligence. a. (1) The instrument that caused the plaintiff’s injury was under the exclusive control of the defendant, or

the negligence was probably due to the defendant. (2) The injury suffered by the plaintiff was of a type that does not ordinarily occur except as a result of

someone’s negligence. (3) The plaintiff did not voluntarily contribute to his or her own injuries. (4) Some courts also require that the plaintiff show that the defendant is better able to explain the events

that transpired than the plaintiff. 23. No. If it is just as likely that someone else caused the plaintiff’s injuries, then res ipsa loquitur does not

apply because the first element is not met. 24. When there are multiple potential defendants, the plaintiff will have a difficult time proving which one

had exclusive control. a. Courts will allow the doctrine to apply when there are multiple defendants if the plaintiff would have

been unconscious (during an operation, for example) and if the codefendents have interrelated responsibilities and therefore a combined duty to prevent harm to the plaintiff. Also, in operating room examples, courts also recognize that there could be a “veil of secrecy” among those co-defendants.

25. The plaintiff must prove that it is highly unlikely that the accident would have occurred without the defendant’s negligence or that such events are normally a consequence of negligence. For example, planes do not normally crash without some person’s negligence.

26. The plaintiff must show that he acted properly and was not negligent himself. 27. In the majority of courts, this requirement is not determinative of the outcome. Rather, the courts use it as

a rationale for applying the doctrine. 28. The jury in a trial is allowed to infer negligence. In some courts, res ipsa loquitur only creates a

presumption of negligence which the defendant can rebut. Once res ipsa loquitur is established, a directed verdict will be imposed.

ANSWERS TO REVIEW QUESTIONS 1. In general, a person is held to the reasonable-person standard, meaning that one will act in the same

manner as a reasonable person in the same circumstances at the time of the plaintiff‘s injuries. This requires that the court look at the person’s actions at the time the event occurred rather than after it. The

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law does not impose perfection on all people, rather that all people act reasonably. The defendant’s emotional instability, low intelligence, or alcohol consumption will not negate liability. However, physically impaired individuals and children are held to a different standard of care than the general public. A physically impaired person will be held to the same standard of care as a reasonable person with the same physical impairment. A child, unless he is engaging in dangerous activities normally reserved for adults, is held to the standard of care of a child of similar age, experience, and intelligence rather than that of an adult. Custom may be taken into consideration when determining the reasonableness of one’s conduct, and a professional who possess specialized training and skills will be held to a higher standard than that of the general public. A professional will also be held to the same standard as those who are in good standing in their profession.

2. The law uses the objective theory to determine whether a person’s actions were reasonable. In other words, the courts will not look at what the defendant believed was reasonable, but rather what the general, ordinary person of average intelligence and ordinary prudence would do. This leaves out the subjective determination of the defendant’s state of mind. In addition to the objective standard, some courts apply the Learned Hand formula to determine whether the defendant’s actions were reasonable. Under this theory, the probability of the harm a defendant’s act presents is multiplied by the gravity of such harm. If this resulting number exceeds the defendant’s burden of taking precautions to avoid the harm, then the defendant is reasonable. Finally, the Restatement incorporates the Learned Hand formula and further looks at the utility value of the risk created. The higher the utility value, the less likely the defendant will be held liable.

3. Negligence per se and res ipsa loquitur held a plaintiff to prove his case be at least creating a presumption of negligence. In both situations, the plaintiff need only show that the defendant engaged in such activities and then the burden shifts to the defendant to prove an excuse or otherwise. Therefore, both of these doctrines alleviate the burden on the plaintiff to prove all of the elements necessary to make the defendant liable. a. However, in defense to negligence per se, the defendant may argue that the statute violated was not meant to protect the plaintiff or that the violation of the statute did not cause the plaintiff’s injuries. In res ipsa loquitur cases, the defendant may argue that the type of injury was not under his exclusive control, that the plaintiff was also contributorily negligent, or that the plaintiff assumed the risk when engaging in the activity.

ANSWERS TO PUTTING IT INTO PRACTICE The doctor will be held to a higher duty of care than even that which is applied to professionals. The gynecologist will be held to the standard of a specialist since he possesses a skill more refined than that of a general practitioner. Therefore, in determining if the doctor breached his duty of care, one must establish the standard procedures and precautions taken by gynecologists at the time of the plaintiff’s injuries without regard to the doctor’s nontraditional methods. Gynecologists must be deposed to determine what they would have done in similar circumstances, especially given that it was a emergency, lifesaving situation. The firm could also look at the American Medical Association’s guidelines to establish a standard of care and to determine how to proceed in such circumstances. The medical record of the patient should include any notes taken at the hospital, and any tests that were conducted, and the results must be evaluated. All of this is to measure the doctor’s conduct against what a reasonable gynecologist in similar circumstances would have done.

Res ipsa loquitur may also be a factor here since the plaintiff is now suffering from pain injury after the operation. The plaintiff must establish that the doctor’s actions were probably the cause of her leg pain. To do this, the plaintiff would have to show that her leg was absolutely fine prior to the surgery and that the pain started immediately after the surgical procedure. Next, the plaintiff would have to rule out any other causes of the leg injury such as a preexisting, latent condition, or some other injury that occurred post surgery. The plaintiff will have to show that leg pain is not normally caused without someone’s negligence. And, finally, the plaintiff will have to show that she did not contribute to the injury. The plaintiff will need to show that she followed the doctor’s orders, took the medication as prescribed, and completed the necessary treatment. Medical records and testimony of the plaintiff will establish this.


CHAPTER

6 Negligence: Causation

ANSWERS TO OVERVIEW QUESTIONS 1. Actual causation is a factual issue. 2. The “but-for” test looks at whether the plaintiff’s injuries would have occurred without the defendant’s

actions. a. This test is broad because it does not measure how much the defendant’s actions contributed to the

plaintiff’s injuries, simply if it would have occurred without the defendant’s action. This can lead to some insubstantial actors being held liable in situations. For example, a server at a restaurant serves a meal that is later found out to be laced with E. coli. Under the “but-for” test, one could argue that without the server having served the food, the plaintiff would not have been injured. In other words, had the server just forgotten to serve the food, the plaintiff would not have suffered injury. Therefore, under the “but-for” test, the server would be held to be the actual cause of the plaintiff’s injuries. However, this result seems absurd, unfair, and way too broad. This analysis makes too many people liable even when their role in causation was minor.

b. If a tavern owner serves an obviously intoxicated patron and that patron drives and injures someone, the courts must determine if the tavern owner’s conduct contributed to the defendant’s conduct and if the result would not have occurred but for the tavern owner’s actions.

3. The substantial factor test determines that two or more concurrent or successive events combined to cause the plaintiff’s injury, and that each of them is a substantial factor in the plaintiff’s injury. The court will determine whether the defendant was a substantial factor in producing the plaintiff’s injury. This test is not as broad in its application as the but-for test. a. In toxic tort cases, the courts use the substantial factor test; because often times there could have been

concurrent causes of injuries–it is difficult to determine which event was the determining factor. Therefore, courts will look at whether this particular toxin was the cause of the plaintiff’s injury and not some other factor. (1) Often times, in a toxic tort case, there is a possibility that many other factors could have caused the

plaintiff’s injuries. The challenge is determining which one was the substantial factor. Therefore, courts must use statistics, expert testimony, and experimental studies to determine whether the defendant’s actions were the substantial cause of the plaintiff’s injuries. To further complicate this, the plaintiff must not only prove that this type of toxin caused a certain injury, but also that it was the substantial factor in the plaintiff’s injuries.

4. Successive events take place independently of another and not in combination, whereas concurrent events take place at the same time and combine to cause the plaintiff’s injury. a. Yes. The burden then shifts to the defendant to prove that he was not the cause of the plaintiff’s injury.

5. The plaintiff bears the burden by a preponderance of the evidence. a. The plaintiff must then show that the defendant’s negligence greatly enhanced the chances of harm

occurring in order to sustain the burden of proof. 6. Alternate liability occurs when two or more defendants have been found liable of the plaintiff’s injuries.

The burden shifts to the defendants to prove that they did not cause the plaintiff’s injuries, otherwise they will both be held liable.

7. In product liability cases where there are three or more defendants to allow a plaintiff to be able to recover from multiple defendants even though he cannot prove which defendant actually caused the injury.

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a. In a product liability case, where there could be 200 defendants, or in other words 200 possible manufactures of an injury-causing product, the plaintiff will not be able to prove which manufacturer actually made the injury-causing product. In this situation, the courts will apportion liability to the manufacturers according to their market share. The burden then shifts to the defendants to prove that they did not make the offending product.

b. It differs in that res ipsa loquitur applies when the plaintiff has no way of proving the nature of the defendant’s conduct. If the plaintiff can establish res ipsa loquitur, negligence will be presumed. With market share, the plaintiff must still prove that someone was negligent but just cannot point to a particular defendant.

8. The “concerted-action” theory is a theory from the Restatement under which the plaintiffs must show that a tacit agreement existed among the defendants to perform the tortious act.

9. In the “lost chance of recovery” theory, a plaintiff in a medical malpractice case can recover if he proves a lost chance to recover even if he cannot prove that the doctor’s negligence resulted in a loss of life.

10. Legal cause puts a limitation on a defendant’s liability when an injury is highly unlikely or improbable because it would be unfair.

11. Proximate cause boils down to foreseeability. 12. In Palsgraf, the plaintiff was standing on a platform at a train station. Farther down the platform, another

patron was boarding the train. He was carrying an unmarked box under his arm that contained explosives. When a guard on the railroad car tried to help the man onto the train, the package dislodged, fell to the ground, and exploded. The vibrations traveled down the platform and caused a hanging scale to hit the plaintiff. a. Whether the defendant’s negligence toward the passenger attempting to board the train should give rise

to the liability to the plaintiff who was injured in a series of fluke events. b. The court held that the defendant was not liable because the defendant’s conduct did not create an

unreasonable risk of injury to the plaintiff, and that the injury sustained was not a foreseeable one. c. Cardozo’s “zone of danger” rule states that, “a wrong is defined in terms of the natural and probable, at

least when unintentional.” A defendant is only liable to the foreseeable plaintiff. d. In his dissent, Justice Andrews wrote that the defendant had a duty to protect society and that ”every

one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others.” A defendant is liable for all actions that flow directly from his actions no matter how unforeseeable.

e. Cardozo’s zone of danger rule is generally followed. 13. Any injury that flows directly from the defendant’s action is direct causation.

a. It parallels Andrews’ dissent because it disregards whether the injury to the plaintiff was foreseeable and only determines if the injury was a direct result of the defendant’s actions.

b. Direct causation makes liability to the defendant limitless because it does not take into consideration how foreseeable the injury is.

c. Supporters state that not using this theory would make the innocent pay for the negligence of the defendant.

14. Many times they are similar and hard to differentiate because a defendant is only liable to the plaintiff for foreseeable injuries and a defendant only has a duty to the plaintiff when he creates a foreseeable risk to the plaintiff. However, proximate cause is generally thought of as a policy question in that it determines ultimately if it is “fair” to hold the defendant liable.

15. You take your plaintiffs as you get them. In other words, if the plaintiff suffers any foreseeable injury the defendant is liable for any unforeseen physical consequences.

16. The defendant will be held liable if the harm suffered is of the general type that made the defendant’s conduct negligent even if the harm occurs in an unusual manner. a. For example, the defendant gives a box full of explosives to a child to carry over to the plaintiff. While

handing it to the plaintiff, the child drops the box and it explodes. The defendant would be held liable even though the harm occurred in an unusual manner. If the child just dropped the box on the plaintiff’s foot and broke it the defendant would not be held liable because the type of risk created by a box of explosives is an explosion, not a broken foot.

17. As long as the plaintiff is a member of a class to which there is a general foreseeability of harm, the defendant is liable.

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© 2009 Delmar, Cengage Learning. All Rights Reserved.

a. For example, a man negligently drives a car into a building and injures the pedestrians walking in front of the building. The defendant would be liable to all of the pedestrians because it is foreseeable that careless driving could result in a pedestrian’s injury. However, suppose a lady across the street watches the event and becomes so distraught that she suffers severe emotional distress. The defendant would not be held liable because he could not foresee that careless driving might result is a witness’s stress.

18. An intervening cause is anything that occurs after the defendant’s negligent act and that contributes to the plaintiff’s injury. a. If the event rises to the level of importance in the chain of events it becomes superseding. b. Yes. c. No.

19. Someone else’s minor negligence, an accident, someone attempting to help or rescue the plaintiff. a. It is only superseding when they act in a grossly negligent manner. b. It is only superseding when they commit gross medical malpractice. c. It is only superseding when the criminal activity is unforeseeable or even intentional tortious conduct.

20. It is highly foreseeable that a drunk patron will attempt to drive home at some point in the night and that drunk driving is likely to cause someone injury. Foreseeable negligence, driving home drunk, is not considered a superseding cause.

21. A superseding cause is an “act of God,” or a natural disaster, someone’s unforeseeable criminal conduct, or acts that constitute gross negligence. a. Courts have to determine if drinking by the patron supersedes the negligence of the owner by serving an

intoxicated patron. Given the fact that a patron will most likely attempt to drive home, the tavern owner knows or should know that by serving them they are increasing the potential of harm.

22. No. a. Because the defendant exposed the plaintiff to an unreasonable risk of harm of the same type of injury

as that that occurred. It would be unfair to allow the defendant to escape liability simply because the harm was produced by an unforeseen intervention.

23. It is a jury question as long as there is a possibility that a reasonable person could differ on this issue.

ANSWERS TO REVIEW QUESTIONS 1. The plaintiff bears the burden of proving causation. This can be problematic when several defendants are

involved since it is difficult to show which defendant was negligent. The plaintiff can use the theory of market-share or alternate liability to shift the burden to the defendants to show who actually caused the harm. In most situations, when there are multiple defendants, they are in a much better position than the plaintiff to prove whether or not they were negligent.

2. Proximate cause is basically a policy question of limiting liability of the defendant to that which is fair. Under the Cardozo rule, the defendant is only liable to those in his “zone of danger” even though his actions caused the plaintiff’s injuries. To be outside that zone of danger, according to this theory, renders the plaintiff’s injury unforeseeable. The other theory is Justice Andrews’ “world at large.” According to this theory, a defendant is liable for any injuries that are a direct result of his actions no matter how remote or unforeseeable. This theory greatly increases the defendant’s potential liability but the rationale behind it is that it is better to have the negligent defendant bear the burden rather than the innocent plaintiff.

3. The “eggshell-skull” rule is an exception that states that the defendant take the plaintiff as he finds him, including any weakness. The defendant is also liable for harm occurring in an unforeseen manner if the harm is of the same general type that made the defendant’s conduct negligent. The defendant is also liable if the plaintiff is a member of a class to which there is general foreseeability of harm even if the plaintiff was not particularly foreseeable. And, finally, the defendant is liable even if there is an unforeseeable intervening cause leading to the same type of harm threatened by the defendant’s negligence.

4. A cause is intervening when the defendant is expected to foresee the possibility of it occurring. A cause is superseding when there is no way that the defendant could have imagined that the event might occur.

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ANSWERS TO PUTTING IT INTO PRACTICE For actual cause, the problem is two-fold. First, would the plaintiff have suffered these injuries without the doctor’s negligent (we will presume for the sake of answering this question that he was negligent) care? That will be difficult to establish since she had suffered from the injuries prior to the treatment. Alternatively, it would be difficult to prove actual causation by determining that the accident or the doctor’s negligence is a substantial factor in her migraines since she previously suffered from them. At best, the plaintiff would have to argue that the increase of pain and intensity as well as the other problems were actually caused by the accident or the doctor’s negligence.

The larger issue involves proximate cause. The court will basically have to determine if the injury is foreseeable. The court will have to determine whether chronic fatigue and increased migraines are a natural result of a car accident or a doctor’s negligence. This seems very problematic since that is not the normal injury that results. The plaintiff will have to rely on the eggshell-skull rule and assert that the defendant take the plaintiff as he gets them, including the plaintiff’s preexisting conditions. If the plaintiff can establish that the type of injury that she suffered is foreseeable, then all of the other unforeseeable injuries that flow from it will be recoverable. The problem is whether the plaintiff can establish even one foreseeable injury.

The driver in the accident will attempt to limit his liability by stating that it was not his negligence that caused the plaintiff’s injuries, but rather the doctor’s negligent treatment. Obviously, without the accident, the plaintiff would have never been put in the doctor’s care, so the question revolves around whether the doctor’s negligence was foreseeable (and therefore only an intervening cause) or not (and therefore a superseding cause). Medical malpractice of the doctor occurring after the event is generally foreseeable unless the doctor was grossly negligent and therefore superseding. No facts in this case seem to give rise to that severe form of negligence.

Finally, the plaintiff’s purported failure to follow the treatment may release the doctor from liability. The question revolves around whether the patient’s disregard for the doctor’s orders is a foreseeable act and therefore intervening or not and therefore a superseding act. In general, if the doctor’s treatment of the plaintiff puts her in a weakened state, then the maladies that result from his actions are foreseeable and do not alleviate the doctor from liability. However, if the doctor can show that she intentionally disregarded his advice and that this was unforeseeable, the doctor may not be held liable.


CHAPTER

7 Negligence: Damages

ANSWERS TO OVERVIEW QUESTIONS 1. The two categories of compensatory damages are general damages and special damages.

a. General damages compensate a plaintiff for the normal types of damages that result from that injury or to make the plaintiff whole. (1) An example is that most people would face pain and suffering if a defendant negligently ran over

their foot with a car. b. Special damages are damages specific and unique to the particular plaintiff.

(1) Medical costs associated with an injury are unique to each plaintiff since the costs and needs of treatment will vary by each plaintiff.

c. Special damages. 2. To deter and to punish the wrongdoer. 3. Nominal damages are awarded in intentional and strict liability cases where liability is established but

where there is no actual harm. a. Since damage is one of the four main elements needed to be proven to establish negligence, where there

is no damage there is no negligence. 4. It is very difficult to put a value on pain and suffering. There is no objective way of doing it and therefore

it leads to much uncertainty in that area of the law. In addition, allowing the jury to determine the award of pain and suffering can lead to very emotional rulings because of a sympathetic plaintiff. a. The per diem technique is an attempt to establish an objective process to determine pain and suffering.

An incremental numerical value is assigned to the amount of suffering experienced by the plaintiff, and then this is multiplied by the number of days this pain and suffering is predicted to last.

b. Some courts do not allow this technique because it leads to inflated final dollar amounts. c. The law allows others to be compensated for their losses that are far less intrusive than pain and

suffering. Therefore, the courts should not punish an innocent victim simply because the law has failed to create a valid objective formula. Should the defendant feel that the amount demanded by a plaintiff is extreme then the defendant’s job is to dissuade the jury from awarding that amount. The jury should be able to use its best judgment on an approximate amount.

d. Peck asserted that the cause of the injury seems to affect the amount of pain and suffering. Peck also argues that compensating individuals for pain tends to reinforce the pain behavior and may actually increase the amount of pain one suffers. In addition, the goal of tort law—to allocate expenses to those who can best bear them—is not achieved here. Statistically, those who suffer relatively low amounts of pain and suffering receive many times more that in damages, whereas those who suffer much more receive only a portion of that amount.

5. Recovery for past earnings and recovery for prospective future losses. a. It is easy if plaintiffs were employed continuously at a fixed wage; however, for those who were

unemployed or underemployed it becomes a problem. Courts must use circumstantial evidence to establish past earning patterns.

b. The life expectancy of the plaintiff, the wage he is expected to earn in the future, and at what rate his income may increase.

6. The courts want to stay out of an area of awarding damages that is highly uncertain and incalculable and that may result in the awarding double damages.

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7. The collateral-source rule states that a plaintiff is allowed to recover for any damages including those already covered by another source such as insurance. a. The defendant should not be alleviated from liability just because the plaintiff took the precautions of

obtaining insurance, maintaining the policy, and paying the premiums. b. No. Most courts do not allow this evidence to be introduced at trial, and in many cases it is enough for

a mistrial if the defense attempts to introduce it. 8. No, not in the United States. 9. Critics of the contingency-fee system contend that it may create a conflict of interest with the attorney

when determining the client’s wishes in a settlement. In some cases, the attorney receives an unreasonable fee—compared with other areas of practice—based on the efforts he or she expends. a. The response is that this type of system allows plaintiffs who would not be able to otherwise afford an

attorney to do so and that the attorney would bear the costs if the plaintiff did not recover, rather than the plaintiff bearing the costs.

10. If the property is completely destroyed, damages are measured according to the fair market value of the property at the time and place that the tort occurred. a. If the property is damaged but not destroyed, the damages are measured by the difference in the value of

the property before and after the tort, although the amount cannot exceed the replacement cost. b. If the plaintiff’s property is not damaged but the plaintiff is deprived of the use of the property then

damages consist of the value of the use of the property. 11. Fair market value is the amount that the property could have been sold for on the open market had the

owner wanted to sell the property to a willing buyer. a. To compute the amount, the court will determine the maximum amount of money the property owner

voluntarily could sell the property for to a willing buyer. This leaves out of the equation any sentimental value that one places on property and merely computes the value of the property on the open market.

12. Punitive damages are awarded to punish the wrongdoer and to deter any similar future conduct. Therefore, punitive damages in negligence cases are only awarded when the defendant’s conduct is “reckless, willful, or wanton” or done “with an evil mind”; in other words, when the defendant’s conduct is grossly negligent. a. Yes because the action was intentional. b. Punitive damages have been criticized because they are seen as a windfall to the plaintiff. The goal

behind the tort system is to make an injured plaintiff whole again and not to create a windfall. Some believe that punitive damages are more of a criminal punishment, and that money awarded should go to the state rather than the plaintiff.

c. Punitive damages serve as a deterrent to others with an evil motive and they also allow a plaintiff to pay attorney’s fees which are not awarded in negligence-based cases.

d. In product liability cases an award of punitive damages against the defendant can bankrupt the defendant before any other potential plaintiff can bring suit and recover damages. Other victims who file suit will then receive nothing.

e. According to the Restatement, punitive damages will only be awarded against the employer if the employer had personal culpability or if the employee was working in a managerial capacity.

13. Ford argued that it should not be liable for punitive damages because there was no evidence that the corporation authorized or ratified the alleged misconduct. a. The court disagreed by concluding that there was substantial evidence introduced at trial that a jury

could reasonably believe that Ford’s management went ahead with the production of the Pinto with full knowledge of the design defect. Furthermore, the court found Ford’s executive decision-making process as corporate malice.

b. (1) The degree of reprehensibility of the defendant’s conduct. (2) The wealth of the defendant. (3) The amount of compensatory damages. (4) The amount necessary that would serve as a deterrent to the defendant and others who may be so

inclined to act like the defendant. 14. Since under common law, a man and woman were considered one once they were married, if one spouse

was injured the other could recover for lost services such as sex, earnings outside the home, and companionship.

Negligence: Damages, 81


a. The claim derives from another claim. In other words, a spouse can only recover if the other spouse already had an underlying claim for negligence.

b. Originally a wife could not recover because, according to the law, she had no rights to services from her husband.

c. Yes. Today both spouses can recover due to the equal-protection laws. In this instance, it was unconstitutional to treat the sexes differently.

d. Yes. One spouse could sue for medical costs associated with an injury while the other spouse could file a suit separately and claim that he or she in fact paid the medical bills.

e. Yes, in most jurisdictions. They are also entitled to recovering for lost services and earnings. f. Generally, most courts do not allow children to recover for loss of companionship of a parent who has

been injured. Some courts allow it only when the child is a minor and is dependent on the parent both financially and emotionally.

15. To assess pain and suffering attorneys look at the nature and the extent of the injuries, the permanency of the injuries or disfigurement, the effect of the injuries on the plaintiff’s daily life, and precedent set by other cases in regards to types and amounts of damages. a. To assess future medical expenses the courts will consult with medical doctors to determine what types

of medical treatment will be necessary, the permanency of the injuries, and the amount of rehabilitation required.

b. Future lost wages are determined by expert economist and vocational rehabilitation counselors. c. Attorneys must also weigh the experience and reputation of the opposing side including that of

opposing counsel, any insurance adjusters, the insurance policies, and the insurance company which is responsible for the claim.

16. Any personal injury claim died with the plaintiff. In other words, it was cheaper for a defendant to kill a plaintiff than to injure the plaintiff. a. Courts felt it was immoral to put a value on any human life. b. Lord Campbell’s Act created a survival action which allowed family members to recover for a victim’s

death that resulted from the defendant’s tort. 17. A statue that allows the injured party’s claim to survive even if the plaintiff dies. The estate of the victim

steps in and brings the case on behalf of the deceased. a. Yes. All statutes allow for this. b. Yes. The majority of the states allow for this as well. c. A few states allow for this with claims such as intentional infliction of emotional distress and

defamation. d. Yes.

18. A wrongful-death action is brought by a third party, usually a spouse or child, to recover the losses he or she suffered as a result of the plaintiff’s death. a. A spouse or a child brings the action.

19. This area centers on the interpretation of legislative intent of statutes that were written more than 100 years ago. Therefore, it is often a confusing area of the law.

20. Yes. a. Many states limit survivor actions to those losses that occurred prior to the decedent’s death. Therefore,

expenses are limited to medical expenses, lost earnings prior to death, and pain and suffering. (1) If the death is instantaneous no survival action exists because the decedent faced no medical

expenses, lost earnings, or pain and suffering. 21. They were limited originally to economic losses, however, in recent years the courts have attached an

economic value for loss of consortium of the decedent as well as the grief suffered by the survivors. 22. It is problematic because the costs associated with raising a child today are much more than the child’s

earning capacity. 23. This information shows that they are no longer suffering loss of consortium because they are receiving

those services from another person now and the jury will give a lower award. a. Defense attorneys would love to admit this evidence; however, most courts do not allow its

introduction. 24. The executor or the administrator of the estate on behalf of the victim’s estate.

a. Yes. Any judgments become an asset of the estate and can be reached by creditors.

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b. Some criticize survival actions because if a decedent had no will and no close relatives, this could result in a windfall to some distant relative who had no contact with the plaintiff (since the estate would be distributed by intestacy laws).

25. In a wrongful death case the defendant can raise the same defenses that he would use against the decedent himself. In other words, the estate takes on the role of the decedent. Even thought the victim is dead, the defendant can use the same defense he would use if the deceased were alive and standing in the court room. a. Statutes of limitation begin to run at the date of the decedent’s death. They vary in length from

jurisdiction to jurisdiction. 26. Often it is a windfall because plaintiffs are paid for future earnings in a lump sum. Since the plaintiff will

most likely invest that lump sum, the plaintiff has the potential to earn additional money from it. a. Discounting the money’s present value allows the courts to realize that a dollar has a much greater value

through investment twenty years from now. The court will discount the present lump sum award with that in mind.

b. The present value of anticipated earnings is determined by calculating the dollar amount at the current interest and multiplying it by the average monthly earnings for the designated period of time.

c. Inflation offsets the discounting of present-value awards. In other words, even though a dollar has the potential to grow through investment over the years, inflation will offset that growth because each year a dollar buys less and less. A plaintiff is therefore undercompensated.

27. A structured settlement is a periodic payment plan for a large award. Rather than pay the damages in one lump sum, the defendant will pay the amount over a period of time on a payment plan. a. (1) Makes a plaintiff less responsible for investing the money and decreases the chance that the plaintiff

will waste the money. (2) Minimizes income tax implications on interest earned from the money through investment.

b. The plaintiff does not get to freely spend the money but has to wait for each payment to come. The plaintiff may die before the total amount is received thereby alleviating the defendant of further payment. The defendant may become insolvent and therefore not have to pay any additional payments.

c. It may cost the defendant less in the long run. The defendant is more likely to settle rather than go though the time and expense of a trial and an appeal. This allows for more flexibility in the negotiating process.

d. The defense bar because it offers them great benefits and lessens the initial burden of paying a lump sum.

28. A plaintiff cannot recover for any damages he could have reasonably avoided. The defendant has the burden at trial to prove this. a. If a seat belt must be worn and the plaintiff fails to wear it, one might conclude that the plaintiff did not

take the reasonable safety precautions before the accident, and that the injuries suffered from the accident would have been less if the plaintiff had worn the seat belt.

29. No, there must be some physical injury generally; although, some courts lessen this requirement when it seem legitimate. a. If a plaintiff can prove physical injury then the plaintiff may be able to recover for mental suffering

because it attaches to the claim for physical damages. b. Courts worry that without some proven physical injury, a plaintiff may be more likely to fabricate a

claim of mental suffering since there is no objective way to determine if the plaintiff did indeed suffer mentally.

c. Courts generally believe that those instances are so horrific by nature that it is logical to assume that the family members suffered mentally; and therefore a claim would not be fake.

d. The “impact rule” predicates recovery for mental suffering for a plaintiff who experiences an impact that did not cause any physical harm but did indeed cause some mental harm. An example is if one felt an impact in a car accident, but did not sustain any physical injuries. The fear from the impact may be enough to successfully assert a claim for mental suffering. This rule is only followed in a few states, however.

e. (1) If the defendant’s actions were intentional or willful. (2) If the emotional distress turns into physical distress. For example, someone is so mentally stressed

from an event that he or she develops an ulcer.

Negligence: Damages, 83


(3) If one would reasonably believe from the facts of the case that mental distress would logically occur, such as in the mishandling of corpses.

f. The courts use this doctrine to limit the plaintiffs to only those in the “zone of danger” of the defendant’s conduct. People who are outside the zone are not protected from the defendant’s actions and therefore can receive no compensation for any emotional distress caused by the defendant. (1) The Dillon case expanded the class of plaintiffs by allowing a person to sue if she was near the scene

of an accident, observed it personally, and was a close family member to the victim.

ANSWERS TO REVIEW QUESTIONS 1. There are two types of damages in personal injury cases: compensatory and punitive. Compensatory

damages are meant to compensate the plaintiff for any damages suffered as a result of the defendant’s action. This is not a get-rich-quick scheme, but instead an attempt to make the plaintiff whole again. The types of damages that can be recovered are pain and suffering, impaired earning capacity, damage to physical property, loss of the plaintiff’s services to others or loss of consortium, and medical expenses. Punitive damages are awarded in personal injury cases but only when the defendant’s conduct is particularly reprehensible, or in other words, “reckless, willful, or wanton or with an evil mind.” They are not based on any actual loss or injury to the plaintiff, but rather meant to punish and deter the defendant. With that in mind, punitive damages are usually a windfall to the plaintiff or, at the very least, will cover attorney expenses.

2. The problems arise when there is no objective way of determining the amount. For example, the awards for pain and suffering are very subjective. There is no actual bill, as there would be with medical costs. Therefore, the jury may be swayed by pure emotions rather than a verifiable cost. Trying to anticipate the loss of future earnings is also highly speculative. Jurors must attempt to ascertain the plaintiff’s expected life span and how much money he could have earned had he not been injured. This becomes problematic because there is really no way to know how long a person would have worked, if he would have worked continuously, and at what rate his earning potential would have grown (every plaintiff, when claiming loss of future earnings, claims that he was going to be a doctor). When considering the damage to property, damages will only be awarded according to the fair market value (FMV) of the property and do not take into consideration the emotional value that the property possesses. Everyone has an item in their closet that means more to them than its actual FMV, like photo albums or family heirlooms. Damages do not account for that.

3. Survival actions are the continuation of the deceased’s claim brought by the estate. In other words, the case is brought as if the deceased were still alive. The estate just steps into the decedent’s shoes. The defendant is allowed to use all of the same defenses he would have used had the plaintiff not died. All monies awarded will be part of the decedent’s estate and therefore subject to a creditor’s claim. In all states any tangible damage to property survives but courts often vary in their acceptance of other types of damages, such as emotional distress and an injury to the deceased’s good character in defamation.

Wrongful-death actions are brought by a third party and are independent from a survival action. The third party, most likely a spouse, and in some jurisdictions, parents or children, the person claims losses sustained as a result of the victim’s death, such as loss of consortium, loss of services, loss of future earnings, loss of companionship, loss of moral guidance. The person who brings the case is the person who will be awarded the money. The only defense that the defendant can really use is to challenge the relationship between the plaintiff and the deceased. However, this remains controversial. a. They are similar in that they both survive the plaintiff’s death. They are created by statute. And, in most

cases, both statutes of limitations start at the time of death of the decedent. 4. Present value of the dollar is used whereby lump sum awards are reduced to take into account the potential

income that could be earned from that dollar by prudent investing. This will reduce the chance of a plaintiff receiving a windfall. Structured settlements eliminate the defendant’s burden to pay a lump sum payment in favor of a periodic payment schedule. Another protection is to put a duty on the plaintiff to mitigate damages, when reasonable. This requires the plaintiff, when reasonable, to reduce the amount of damages rather than placing the burden on the defendant. Courts also generally require that a plaintiff show some sort of physical injury if he or she wants to also claim mental stress in order to reduce the ability to create a highly subjective assertion of mental suffering. All of these attempt to reduce the unavoidable consequence of a plaintiff receiving a windfall.

84, Chapter 7


ANSWERS TO PUTTING IT INTO PRACTICE The main problem faced in this case is that it is highly speculative to determine what a sixteen-year-old may have the potential to earn in the future. While his life expectancy is quite long, his assertion that he was going to be a doctor is quite uncertain. His grades were low and the facts do not indicate any steps taken to pursue that career. Since determining future income is only proven by circumstantial evidence, these facts do not support his assertion. Additionally, he was working at a grocery store at the time of his injuries. The defense will claim that at this point in his life, that is his income, and that amount must be used. Additionally, the defense would correctly assert that what a person wants to pursue as a sixteen-year-old is often not the same as later on in life. The road between a sixteen-year-old’s dream and actual profession is full of hard work, sacrifices, and student loans, and there is no certainty that he would pursue it completely. Therefore, in proving lost income potential, the plaintiff has an uphill battle.

The plaintiff should not have a problem recovering for past medical bills as long as the plaintiff kept adequate records. Future medical bills will only be proven by the use of expert testimony as to what types of treatments, vocational training, and therapy will be needed in the future. The defense may attempt to have this amount reduced to the present-day value so as to avoid a windfall to the plaintiff.

Pain and suffering, while still uncertain, should be relatively simple to prove given his condition. The firm will want to show a day in the life of the plaintiff before and after the injury. Most juries will be emotionally affected by the drastic reduction in the quality of life of the plaintiff. The defense will have no real argument to use to assert that his quality of living was impaired. The defense, however, challenge the amount asked for as being excessive. This will be difficult because of the condition of the plaintiff, and the fact that he will have to deal with this situation for the rest of his life.

Ultimately, this case is highly emotional. While it will be difficult to prove that the plaintiff really lost out on the future income of a doctor because of his current grades, he should be successful in recovering medical costs, both present and future, and damages for pain and suffering.


CHAPTER

8 Negligence: Defenses

ANSWERS TO OVERVIEW QUESTIONS 1. In contributory negligence, the plaintiff is barred from recovery. In comparative negligence, the plaintiff’s

recovery is only reduced by that percentage. Both assert that the plaintiff was in some way at least partly to blame for his injury.

2. The burden is shifted to the plaintiff because the plaintiff was responsible at least partly for his injury. 3. No. The plaintiff is totally barred in states that recognize this defense. 4. The rationale is that if the plaintiff is partly responsible for his own injury then the defendant should not

be punished for that. Negligent plaintiffs should be punished for not protecting themselves and this failure may actually become the proximate cause of their injuries. a. The practical explanation lies in the judiciary’s fear that given free reign, juries would award huge

amounts in damages and hamper the growth of industry by awarding such large amounts. 5. Completely barring a plaintiff from recovery in states that have adopted contributory negligence as a

defense can lead to harsh and unjust results; therefore, courts have adopted some loopholes or exceptions. 6. The defendant must prove and specifically plead it. 7. In most jurisdictions the jury will decide the answer. 8. The defendant must prove that the plaintiff’s negligence was the but-for cause or at least the substantial

factor cause to the plaintiff’s own injury. Some states lower this requirement of proving actual causation in favor of barring recovery if the plaintiff is in any way negligent, no matter how slight. a. The exception is that when the harm that is likely to occur as a result of the plaintiff’s negligence

actually occurs in some unforeseen manner, the defendant may still be held liable. In other words, if the harm came about in a different way than the harm was threatened, the plaintiff would not be barred. For example, if a plaintiff negligently was driving too fast and ran over an explosive that the defendant negligently left in the street and was therefore injured, the plaintiff would not be barred from recovery.

9. If the defendant has an opportunity that is unavailable to the plaintiff to prevent the harm that occurs and does not take advantage of it, the defendant will remain liable despite the plaintiff’s contributory negligence. a. Yes. If the defendant can avoid an injury caused by the plaintiff’s negligence, the defendant should do

so. b. The courts are split and uncertain about this but the majority would still hold the defendant responsible

because he is the only one that could have avoided the injury. c. The courts will most likely still hold the defendant liable because the defendant had a better chance to

avoid the injury. d. The last-clear-chance doctrine is not applicable because neither discovers the danger. e. The last-clear-chance doctrine is not applicable because the defendant’s first act of negligence precludes

him from avoiding the accident after he discovers the plaintiff’s peril. (1) It is called a first-clear-chance scenario.

10. No, because a person is under no obligation to prevent or protect himself from another person’s intentional wrongs. a. Not unless the plaintiff’s conduct was also willful and wanton. Those who intentionally try to harm

others should not escape liability simply because the plaintiff was negligent.

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11. It would not be a defense if the statute upon which the defendant’s negligence is based was enacted for the sole purpose of protecting a class of persons of which the plaintiff was a member, and if the statute’s intent was to place sole responsibility upon the defendant.

12. The all or nothing nature of comparative fault undermines the judicial system because it fails to apportion fault and can lead to some drastic and unfair consequences.

13. Comparative negligence reduces the amount of the award based on percentage of the plaintiff’s negligence. In other words, if the plaintiff were found to be 20% at fault, the award would be reduced by that same percentage. a. Yes.

14. Under a pure system the plaintiff can recover no matter how extensive his negligence. Even if the plaintiff were 90% at fault, the courts would still allow the plaintiff to recover the remaining 10%. Under the 50% approach, if the plaintiff is over 50% negligent, his negligence will have superseded that of the defendant and therefore the plaintiff will be barred from recovery. a. Under the “not as great as” system the plaintiff’s claim is barred as soon as her negligence is as great as

that of the defendant’s negligence. Under the “not greater than” approach the plaintiff is barred only when her negligence is greater than the defendant’s. (1) If a jury determines a 50/50 split in negligence, the plaintiff would be barred because her negligence

would be as great as that of the defendant under the “as great as” system. However, in a “not greater than” system, the plaintiff would not be barred because her negligence is equal to, and not greater than, that of the defendant.

15. The apportionment of fault is highly subjective. Courts must grapple with the issues of determining what percentage of the fault can be attributed to the plaintiff’s resulting harm. Courts are uncertain how to measure this. In other words, should they look at how unreasonable the plaintiff’s conduct was or should they determine to what extent each party’s actions contributed to the plaintiff’s injuries? a. What if there were additional defendants not included in the case? Should the unnamed defendants be

apportioned a percentage of the blame? And should a plaintiff be allowed to recover when there are multiple defendants if the plaintiff’s negligence is greater than any one defendant’s actions, but not as great as all of the defendant’s percentage of negligence added together? Most state statutes remain silent on these questions.

16. Most states have not recognized the last-clear-chance doctrine after adopting the comparative negligence standard and some have abolished it all together. a. No, because a plaintiff is under no obligation when someone intentionally harms them. b. Yes, because the defendant’s actions, while willful and wanton, only give rise to extreme negligence.

However, they were not intentional. c. Yes, even when the statute was enacted to protect a specific class.

17. Assumption of the risk occurs when a plaintiff knowingly and voluntarily takes the risk created by the defendant’s conduct. a. Not always. Some jurisdictions just reduce the amount of recovery.

18. Some courts have abolished assumption of the risk and just merged it into the concept of contributory negligence. The courts presume that if you assume the risk you are contributorily negligent. a. Yes. If the plaintiff’s assumption was reasonable in light of the circumstances he will not be considered

contributorily negligent. 19. Courts differentiate between the two defenses by stating that contributory negligence refers to careless

behavior, whereas assumption of the risk refers to adventurous behavior. 20. The defendant will have to show that the plaintiff’s conduct constituted both assumption of the risk and

contributory negligence. a. Contributory negligence is measured by the objective standard of the reasonable person. Assumption of

the risk is measured by a subjective standard, or in other words, whether the plaintiff knowingly and voluntarily assumed the risk. It looks at the plaintiff’s intentions rather than what the reasonable person would have done.

b. Contributory negligence is not a defense to the defendant’s reckless conduct, nor is it a defense to strict liability cases. However, the opposite is true for assumption of the risk.

21. An example would be a person who signs a release.

Negligence: Defenses, 87


22. a. If the defendant has an unusual bargaining power, is the sole provider for the service, or has the power to compel the plaintiff to assume the risk.

b. If the provider is a common carrier. c. If the waiver is buried in the fine print.

23. Basically, in adopting comparative fault, the states have abolished assumption of the risk as a defense and have merged it with comparative negligence.

24. A release must be express, clear, and unequivocal and can only limit a person’s liability for negligence. It cannot limit liability for intentional torts or strict liability cases.

25. An example would be that, after watching others play for a while, you engage in a game of football by picking up a football, getting on the line, and getting ready to play. Your actions show that you are aware of the risks and assume them.

26. The plaintiff must actually know, or should have known, because in certain activities the risks are inherent and everyone should know of them. a. Yes. The consent is not voluntary if the plaintiff had no other reasonable choice but to confront the

danger. b. No. c. The duty of a sport sponsor is to use reasonable care to make the conditions as safe as they appear.

(1) Athletes are assumed to be more aware of the risks involved and more willing to accept the risks because they are usually paid to do it.

d. The courts will still assume that the plaintiff accepted the risk. e. The plaintiff will still assume the risk because he basically waived his right to object to that risk.

27. It is a complete defense in that it absolves the defendant of any liability. 28. The concept was “the king can do no wrong,” or in other words, that government cannot be sued without

its consent. 29. The FTCA provides that damages can be recovered against the United State for “injury or loss of property

or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government, under circumstances where the United States, if a private person, would be liable to the claimant.” a. Money damages. b. No, unless they are committed by federal law enforcement agents. c. No liability exists because doing the task was not specifically mandated, but rather it allowed the

employee to make some personal judgments. (1) Discretionary function is involved where there is room for policy judgment and decision and can

occur at the planning stage of an activity rather than actually following those plans. 30. Most states have abolished it to some extent either by statute or judicial decisions; however, judges and

legislators are almost always immune in their official capacity. a. Most state governments can get public liability insurance. States view that it is one of the risks of

administering a government, and something for which the state should be held responsible. b. Most states have passed tort claims acts that allow for some types of immunity in matters such as “basic

policy decisions.” The statues often place limits on damages available to the plaintiff. (1) Failure to follow the procedure for filing a claim within the allowable time will bar the plaintiff’s

claim forever. 31. Most local governments still have partial immunity, except when the government engages in propriety

functions where the job could be performed by a private individual, but the local government chooses to do it to make money for the local government. a. A propriety function is one that could be done by a private individual but the local government does it

to make money for themselves. Governmental functions are those roles which are traditionally supplied by the government rather than a private individual. Local governments are immune when performing a governmental task but not a propriety task.

b. An example would be when a local government hosts a community picnic and makes money from the sale of food and tickets for rides or city airports.

32. They receive complete immunity as long as the act complained of is within the scope of their duties. a. Public officials must be given free rein to carry out their duties without fear of persecution. This fear, if

allowed, may deter competent people from pursuing public office.

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b. No, unless he engages in the malicious activity outside the jurisdiction of that public office held. c. Yes. Even if some states have abolished it, the public official’s immunity is still viable. d. The exclusive remedy is Congress.

(1) Yes, because under this act the plaintiff must file suit against the United States only and not the wrongdoer individually.

(2) The act limits recovery because the government is immune from discretionary activities. Another provision also limits the government’s liability when a federal employee is operating a motor vehicle.

e. This claim is filed when anyone who “under the color of any statute, ordinance, regulation … of any state” violated the federal civil rights of any person. In other words, that defendant, acting as an agent of the government or because a law confers certain duties and responsibilities on him, abuses that power to infringe upon the civil rights of another. The employee will not be immune from the suit personally. (1) The inmate must prove that the employee, acting “under the color of the law,” violated his

constitutional rights, that the inmate suffered damages as a result of the employees’ actions, and that the employees were not immune.

33. No, because courts did not want to interfere in the family relationship. 34. Spousal immunity arose out of the concept that once married, and man and woman were one in the eyes

of the law, and therefore could not sue each other. a. Most states have abolished the immunity. b. The predictions were that it would interfere in spousal relationships and upset the harmony of the

family. There would be a flood of litigation. Some thought it would allow for fraudulent claims of one spouse against another where the defending spouse does not really defend himself so that the plaintiff spouse can collect insurance money. (1) Most predictions have not been accurate.

35. Some states have abolished it while other states have limited it to allow only cases where the act was intentional, where it caused some pecuniary damage, where the injury occurred in the course of business, or where the child was emancipated. a. Some courts have not allowed a defendant to use this as a defense while other courts use the “reasonable

parent” standard to determine what should have been done in supervising the child. 36. Charitable immunity protects the entity from tort claims that might otherwise undermine their existence

because their existence offers many benefits and those who use those benefits have impliedly waived their right to sue. a. This theory is based on the premise that funds given for a charitable purpose should not be used to pay

judgments resulting from tort claims. b. This theory asserts that a beneficiary of a charitable organization, by accepting the benefits it provides,

impliedly waives any rights to sue. c. Most states have abolished it altogether and some have only abolished it in reference to hospitals. States

that accept the trust-fund theory allow damages to be awarded when there is insurance to pay the award, but not when damages will be paid out of a trust.

37. It limits the time that a plaintiff can file a suit against a defendant. If not brought within the allowable time frame, the action is barred. The courts want to alleviate stale or old claims. a. The clock starts ticking when there has been actual injury to the plaintiff or the plaintiff’s property. b. Problems arise when the plaintiff did not actually discover the damage until after the time had run. c. This doctrine states that the time does not start to run until the injury is, or should have been,

discovered. (1) Some say that this contributes to the rising costs of medical malpractice because a doctor could be

the subject of a suit from actions that occurred many years ago. Therefore, it is very difficult to determine insurance rates and that ultimately leads to guessing and sky-rocketing rates.

38. This rule states the time begins to run at the time a product is purchased. a. To limit a manufacturer’s liability, decrease the costs of insurance, and to add some predictability and

stability in the area of product liability. b. At the moment the product is bought. In most states it lasts for five to twelve years. c. At times the effect can be devastating because it can potentially bar a plaintiff in very tragic cases.

Negligence: Defenses, 89


ANSWERS TO REVIEW QUESTIONS 1. You would want to raise the defense of contributory/comparative negligence when you can prove that the

plaintiff in her actions by her negligence somehow was part of the cause of her injuries. This will either limit or completely bar the plaintiff’s recovery. A defendant would want to use assumption of the risk when he can prove that the plaintiff either by her actions or expressly (by signing an obvious and clear release) assumed the risk voluntarily and knowingly. If successful, the plaintiff would be barred from recovery.

2. The last-clear-chance doctrine is an exception. If the defendant has an opportunity that is unavailable to the plaintiff to prevent the harm that occurs and does not take advantage of it, the defendant will remain liable despite the plaintiff’s contributory negligence.

3. It cannot be used as a defense to intentional torts or strict liability or when a defendant’s conduct is willful and wanton or reckless. It cannot be raised if the defendant’s negligence is based on the violation of a statute that was enacted with the intent to protect a certain class of people and the plaintiff was a member of that class.

4. The apportionment of fault is highly subjective. Courts must grapple with the issues of determining what percentage of the fault can be attributed to the plaintiff’s resulting harm. Courts are uncertain how to measure this. In other words, should they look at how unreasonable the plaintiff’s conduct was or should they determine to what extent each party’s actions contributed to the plaintiff’s injuries? What if there were additional defendants not included in the case? Should the unnamed defendants be apportioned a percentage of the blame? And should a plaintiff be allowed to recover when there are multiple defendants if the plaintiff’s negligence is greater than any one defendant’s actions, but not as great as all of the defendant’s percentage of negligence added together? Most state statutes remain silent on these questions.

5. Currently, immunity has been either abolished or severely limited. Therefore, the list assumes that these immunities still exist in your jurisdiction: • Federal governmental immunity for discretionary functions (FTCA) • State government immunity for judges or legislators acting in their official capacity • Local government immunity when engaged in governmental functions (not proprietary) • Public official when engaged in activities within the scope of their duties • Interspousal immunity (most states have abolished this) • Parent-child immunity when the action of the parent was intentional, when the child suffered some loss

of property, when the child was emancipated or was the step-child of the defendant • Charitable immunity when the beneficiary of that charity’s deeds has implied waived any rights to sue

ANSWERS TO PUTTING IT INTO PRACTICE The first defense to be raised is charitable immunity. This would most likely be unsuccessful since most states have abolished it. We may be able to argue the implied-waiver theory whereby the woman, by availing herself to the benefits of this hospital has impliedly waived any rights to sue. However, once again, this would most likely be unsuccessful because a hospital is almost unequivocally not immune from suit even when it is a charitable organization.

The next defense would be to determine if the patient signed any releases prior to the surgery. The plaintiff must knowingly and voluntarily sign the release. If the release was clear, unambiguous, and readily understandable, AND the hospital can show that it acted reasonably, the defense of assumption of the risk may be valid. However, many issues would present themselves since the exact wording, the full disclosure of any side effects, and the ease of reading the release will all be subjects of litigation. There should be no issue that she entered into this procedure voluntarily since it was not for a life-or-death situation and many other providers of this service exist.

The final defense, and the strongest, is that the statute of limitations has run. While the facts do not give a number of years, the courts will start the statute’s clock at the moment she received the implants. If this jurisdiction follows the discovery doctrine, then the clock will start ticking once she knew or reasonably should have discovered the damage. She may have missed her opportunity to bring suit by the statute of limitations and if so her action would be completely barred.


CHAPTER

9 Malpractice

ANSWERS TO OVERVIEW QUESTIONS 1. A professional is required to have the skill and learning commonly possessed by members of good standing

within that profession. In other words, since that professional has skills that are greater than the average person, the professional must be compared to others with the same level of skills and training. Therefore, there is the reasonable doctor standard, the reasonable attorney standard, and so on.

2. The problem with what is reasonable often depends upon the locale of the doctor. Rural areas often possess fewer resources than large urban areas known for their medical facilities. For example, what might be available in the way of pediatric oncology in St. Louis, Missouri, would be substantially more advanced than what is available in the Upper Peninsula of Michigan. The question then becomes should we hold the doctor in the UP to the same standard (the national standard) as the doctor in St. Louis? Or should we take into consideration the implicit differences and hold the UP doctor to a different standard based on the locale (or local standard)? Critics argue that all doctors should possess the same skill and training regardless of where they practice, yet what technology is available to them often determines what is reasonable.

3. No. Reasonable does not mean perfection. Sometimes, despite the professional’s best efforts, the outcome will not be favorable. For example, if a person in stage IV of cancer enters a doctor’s office for treatment, the doctor may do all that is reasonable, but the facts are the facts and the outcome will most likely not be good.

4. No. Professionals may differ on how they might handle the situation and that does not mean that one is reasonable and the other is not. The only issue is whether the method the professional used is considered reasonable by members within that profession. a. Yes, because it is more difficult to prove that others in that area may find the methods used as a

reasonable procedure if it is considered unorthodox. And the more serious the problem is, the more difficult this becomes.

5. a. Failure to have the skills and learning commonly possessed by members in good standing within that profession.

b. Failure to use good judgment in choosing the course of action to the extent that the action chosen is a deviation from the standard of care reasonably expected of professionals in that area.

c. Failure to ask for essential information from the client. d. Failure to make referrals when the professional is lacking skills in a particular area. e. Failure to keep abreast of changes in that profession.

6. Specialists are held to a higher standard than generalists. The duty of care owed by a specialist is that of “the reasonably careful and prudent specialist” in that field. a. In other words, an oncologist is held to a higher standard of care in the treatment of cancer than a

general practitioner is. Therefore, a specialist may be found negligent when a generalist would not. b. A national standard.

(1) Clients seek out specialists because of their advanced skills and knowledge of advances in that area nationwide.

Malpractice, 91


7. A fiduciary relationship is a relationship based on trust and confidence that imposes an obligation to act in good faith and in the best interests of the client. Therefore, when a fiduciary relationship exists, the professional has the obligation to disclose all relevant facts to the client so that the client can make informed consent. a. Informed consent is very important in the medical world because a person has the ultimate control over

his own body and those events that affect his life. Medical treatment usually affects people’s lives and therefore a person must be given enough information about treatments such that the person can knowingly consent to what is right for him.

8. The physician has the duty to warn the client about the possible hazards, complications, and expected and unexpected results of the treatment to make an informed consent. a. The duty to warn becomes higher the more severe the possible risk is or the more likely the risk is. b. Yes. Failure to do so in itself constitutes negligence unless that physician does not think it will help the

patient in a particular case. c. Not if the patient is so ill that he cannot comprehend what is being said. d. Some courts look at what the reasonable layperson would reasonably need to know to make an

informed decision. “The physician is bound to disclose only those risks which a reasonable man would consider material to his decision whether or not to undergo treatment.” Other courts look to what the reasonable doctor would feel is necessary to disclose to a patient to make an informed decision in the same circumstances.

e. Physicians must balance the need to know some remote risk with the effect that it might have on the patient. In other words, if only one in ten million people suffered some horrific side effect of the treatment, the doctor will make a judgment call as to whether it is really necessary to tell the patient considering the fear it may cause him and the affect it may have on his mental state. (1) If the probability of the risk occurring is high, the risk must be disclosed. If the severity of the risk

involved is high but the probability of its occurrence is low, the risk must still be disclosed. How, if both the probability and severity are relatively low, the doctor may decide not to disclose a risk if he feels it will negatively affect the patient’s mental state.

9. If the patient did not consent to a procedure and had no idea what was done or if the patient consented to one procedure and another was performed, a suit for battery could be brought. a. If the action brought is for battery, lay-witness testimony is sufficient to show that the plaintiff did not

consent to the treatment. However, if a case for negligence is brought, expert testimony is necessary to prove that the doctor breached his duty of care.

10. An expert witness must be an expert in that same area of practice in the profession and must be familiar with the procedures and practices used in the case, although the expert witness need not follow the same procedures. a. If the jurisdiction applies the locality rule, the expert must be familiar with the standard of care in the

relevant community or in similar communities. 11. The defendant must prove that the client refused to comply with the instructions by the professional or

was otherwise uncooperative. 12. If the plaintiff made an informed consent the doctor may rely upon this to presume that he assumed the

risk. However, the professional must be careful to make sure that the consent was indeed informed. 13. Treatment given in a life and death situation may be considered. Additionally, if death is imminent and

treatment is absolutely necessary for the patient’s protection this defense is appropriate. However, a physician cannot use this defense if he initially caused the life or death situation. a. It depends on the circumstances. It would be a factual question for the jury to determine whether the

doctor’s conduct conformed to the expectations for a reasonable doctor working under those circumstances.

14. A professional must maintain adequate records to prove that no negligence occurred and that the doctor used reasonable methods of treatment. With time, people’s memories fade and therefore having a paper trail will help in a trial that may be filed years after the alleged negligence.

15. Yes, while it is considered property of the health care provider, its content is the property of the patient. a. Yes, if the plaintiff has made medical problems the subject of litigation.

16. Yes, especially those involving attorneys.

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17. They are about the same, although attorneys per capita pay more for claims than doctors. a. 10%. b. Three or more claims in their professional career. c. Litigation attorneys, particularly those in the criminal and family areas. d. Administrative errors, such filing documents in a timely manner.

18. a. Communication problems or failing to keep a client abreast of any advances in the plaintiff’s case. b. Failure to return phone calls.

19. a. Ensure that their workload is not excessive such that it prevents attorneys from doing their job to the best of their abilities.

b. Manage the business better to make them more efficient and less likely to commit an administrative error.

c. Dedicate the necessary time to handle a client’s issue competently. If the attorney is not competent enough in a particular area, he must refer the matter to another attorney. Do not take shortcuts.

20. a. Maintain client confidences. b. Never offer legal advice as it is unauthorized practice of the law and is a felony in some states. c. Help the attorney improve client relations by keeping close contact with clients, informing them of the

progress of their cases, listening to their concerns, relaying their concerns to the attorney, and answering questions under the supervision of an attorney.

d. Maintain documents and files in a well-organized manner so that information is readily available. In addition, a paralegal should review the files periodically to make sure they are complete. Back up all information from the computer.

e. Help the attorney maintain the client trust account; make sure that it can be accessed quickly so the attorney can review it monthly for accuracy.

f. Use a tickler system to help maintain a calendar of deadlines for the attorney. 21. A paralegal must make sure that faxes and computer-generated information are reviewed periodically to

ensure confidentiality and that client conferences are conducted in places where privacy is protected. However, the most important thing that a paralegal can do to maintain confidentiality is to keep quiet about client matters and not make judgment calls as to what is really confidential and what is not. Just keep work at work!

22. Never, ever give out legal advice to anyone. This includes family members and friends. Work with your attorney to define your job functions. Have an attorney review and authorize any work that you do even if the attorney does not want to. Always consult the attorney before giving any answers to questions. While a paralegal can be the messenger, she cannot create the message.

23. Most states have passed new statutes that affect medical malpractice litigation because of the crisis of medical malpractice suits. These laws include capping damages, requiring peer review of any lawsuit filed, and determining practice guideline which define a standard of care to be used.

ANSWERS TO REVIEW QUESTIONS 1. Professionals are held to a reasonable standard of care, in that they are required to have the skill and

learning commonly possessed by members in good standing within their profession. Not all professionals would follow the same course of action in a situation, but all are expected to do that what the reasonable professional would have done.

2. Lack of proper training, failure to stay abreast of new discoveries and failure to follow up on a client’s progress are all reasons why professionals may be sued for negligence. In order to protect themselves from a professional malpractice suit, professionals should: 1) ensure that their workload is not excessive such that it prevents them from doing their job to the best of their abilities; 2) manage the business better to make them more efficient and less likely to commit an administrative error; 3) dedicate the necessary time to handle a client’s issue competently; and 4) refer the matter to another professional if the professional is not competent enough in a particular area.

3. The professional could assert that the plaintiff was contributorily negligent because he did not follow the professional’s instructions or advice or was otherwise uncooperative with the professional. The professional can assert the affirmative defense that the plaintiff assumed the risk when the professional informed the plaintiff of the possible risks and the plaintiff still accepted the action of the professional.

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4. A physician must disclose to the patients the possible risks or complications and the expected or unexpected results as well as any alternative methods. The more probable the negative event to occur, the less severe the event must be to mandate disclosure. The more severe the risk, the less probable the risk has to be to require a professional to disclose. A professional is required to disclose all material information such that a client could make an informed consent.

In the medical arena, the amount of disclosure that is necessary is problematic because of differing opinions about how much information must be disclosed. Doctors must balance the need for the patient to know of the possible risks with the need to preserve a good mental attitude during the procedure. Studies have shown that a good mental state of mind is a very important for a full and speedy recovery. Therefore, when disclosing information about a medical procedure, the doctor must walk a proverbial fence to determine what a patient needs to know and what he does not need to know in favor of a good mental state.

ANSWERS TO PUTTING IT INTO PRACTICE We will have to prove that the doctor did not act reasonably in cleaning the dog’s teeth. In other words, the doctor’s actions will be compared to how other vets would have proceeded when they were told that the dog acted lethargicly after the procedure. The doctor will then try to prove that he did act reasonably and that this type of outcome is so remote, even given the knowledge of the lethargy of the dog, that no other reasonable vet would have proceeded any differently. Additionally, the doctor may try to claim that the owner assumed the risk when he allowed the doctor to clean the dog’s teeth. To be successful, the doctor will have to prove that he explained all of the foreseeable risks such that the dog’s owner could have knowingly and voluntarily assumed the risk.


CHAPTER

10 Misrepresentation, Nuisance,

and Other Torts

ANSWERS TO OVERVIEW QUESTIONS 1. Making a false representation .

a. It usually coincides with other types of tortious behavior. For example, a person may misrepresent to others that the plaintiff has a loathsome disease. That misrepresentation may cause the plaintiff severe emotional distress as well.

b. Misrepresentation arose out of the common law action of deceit. c. Deceit is a much more limited action than misrepresentation. Deceit is based on the intent to deceive.

Misrepresentation can be based not only on the intent, but there can be negligent misrepresentation, or even strict liability misrepresentation, which is also known as innocent misrepresentation.

d. It is basically another word for misrepresentation. 2. a. Intentional misrepresentation

b. Innocent misrepresentation c. Negligent misrepresentation

3. a. The defendant misrepresents something with the intent of inducing the plaintiff’s reliance on that misrepresentation.

b. The defendant knows that the representation is false or acts with reckless indifference to the truth. c. The plaintiff justifiably relies on the defendant’s misrepresentation. d. The plaintiff suffers damages stemming from this reliance.

4. a. Intentionally concealing a fact from the plaintiff. b. Actions can constitute misrepresentation; for example, by turning back the odometer in a car. c. When the defendant fails to disclose a latent defect that he knew about and the plaintiff has no real way

of discovering. 5. When the defendant fails to disclose a latent defect that he knew about and the plaintiff has no real way of

discovering—in other words, it is a latent defect. a. Yes. b. If a homeowner knows that a house is infested with termites, that homeowner has a duty to disclose that

defect because it would not be readily noticeable by the plaintiff. It is a material latent defect. 6. Yes, if it is done with the intent to deceive. 7. When there is a fiduciary relationship, the law imposes a higher standard to be truthful and not misleading

than if no special relationship existed in the first place. A fiduciary relationship is a special relationship of trust and confidence that one person puts in another.

8. If the fact is material or essential to the transaction. In other words, the court would look at whether knowledge of this fact changed the misled party’s mind.

9. No. A defendant can also be held liable to those of a protected class whom the defendant would reasonably expect to learn of and rely on the misrepresentation. a. (1) If the plaintiff is a member of a protected class that the defendant knew would be deceived by the

misrepresentations.

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(2) If the plaintiff’s reliance occurred in the “type of transaction” the defendant could reasonably expect the plaintiff to engage in as a result of the reliance.

(3) If the misrepresentation occurs within the context of commercial documents. 10. An example would be if a landlord gives faulty information to a tenant and that tenant subleases the

property to a third party and gives out the same faulty information. The tenant could sue the landlord even though the landlord only meant to mislead the original tenant. a. A potato chip manufacturer intentionally mislabels a bag of chips, leaving out the fact that there are

nuts so as to not discourage people who fear they have a nut allergy from buying it. Anyone who buys it and suffers damages may recover, even if it was not the manufacturer’s intention to hurt a particular buyer.

11. The requirement for misrepresentation is that the plaintiff relied on the defendant’s misrepresentation. a. Therefore, if the plaintiff found out the truth and relied solely on this evidence, the defendant will not

be held liable. If the plaintiff only relied partially on it, the defendant will be held liable. 12. If the plaintiff relies totally or almost totally on his own investigation, he will be deemed not to have relied

on the seller’s misrepresentation. 13. a. If a fiduciary relationship exists.

b. If the defendant has worked to cultivate a trusting relationship between each other. c. If the defendant purports to have special knowledge.

14. No, it is merely stating an opinion, not a fact, when advertising that in its very nature should be taken with a grain of salt.

15. If a person will receive no benefit from the plaintiff’s reliance on a misstatement, it is more likely that the plaintiff’s reliance would be considered reasonable. a. If a consumer advocacy group such as Consumer Reports, which receives no kickbacks from endorsing a

product’s quality, makes a misrepresentation about a product, the court will most likely view the plaintiff’s reliance on the statement to be reasonable.

16. Yes, if the plaintiff can show that the defendant was aware of such incompatible facts. 17. No, because it ultimately depends on how a reasonable person would have perceived the statement. In

other words, a statement from an attorney about the strength of a case is truly only the attorney’s opinion, but because an attorney is thought to be someone with special knowledge about the law, a plaintiff would be justified in relying on that statement (even though it was only the attorney’s opinion). Conversely, it would not be reasonable for a plaintiff to rely on a nonattorney neighbor’s opinion about a case. a. The court will look at the context in which it was said. Again, the courts will look at whether a

reasonable person in that situation would be justified in placing special reliance in the misleading person’s statement.

18. No, because everyone is aware that predictions are really just another form of an opinion of the likelihood of an event occurring. a. If the defendant knows of facts that are inconsistent with that prediction he may still be held liable.

19. Yes, if the plaintiff can show that the defendant was actually never intending to do what he said he would. In other words, the misrepresentation occurred when the defendant said he would do it knowing full well that he was never going to do it. a. If a defendant tries to raise the statute of frauds as a defense to release him from the responsibility of a

verbal promise, the plaintiff may still be able to recover for misrepresentation as an alternative if the plaintiff can prove the defendant never intended to do the event promised. Additionally, most courts will not allow the defendant to use this as a defense since the actual deception occurred when the defendant made a promise he never intended to keep.

20. That he suffered actual damages that were proximately caused by the defendant’s misrepresentation. In other words, the loss must be a “reasonably foreseeable” result of the misrepresentation. a. When the defendant can point to other factors that may have actually caused the damages. For example,

a severely diabetic, overweight person suffers a heart attack and claims it was because her doctor said a certain medication would help her. She sues for misrepresentation. If the defense can show that her heart attack occurred because of other, more substantial factors, the doctor will not be held liable.

21. a. Reliance Damages could be the amount necessary to make the plaintiff whole again or put him in the position he was in immediately prior to the wrong.

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b. Benefit of the bargain Damages could be the amount necessary to put the plaintiff in the position he would have been in had the facts been true. In other words, if a defendant lies and says that a ring has a real diamond on it, the plaintiff may be able to recover the value of a ring with a real diamond, rather than just get the money he paid for the ring.

22. Historically no, but today most courts do allow such a claim. The court will basically replace the intent requirement with a breach of duty of care or what the defendant should have done. a. If a defendant makes a false statement during the course of a business transaction. b. Yes, because it does not change the fact that the plaintiff was injured by the defendant’s lie. c. The class is much narrower because the defendant is only liable to those whom he intends to reach with

the information or those he knows received it. d. Yes, because it is reasonable to determine that these people will receive the information.

(1) The defendant will not be held liable because it is not reasonable to perceive the many people that might hear the information.

23. Until recently courts did not allow this. a. (1) If the defendant makes a misrepresentation during the course of sale, rental, or exchange in an effort

to close the deal. (2) If the defendant makes misstatements on the product label or in the course of public advertising.

b. The defendant mislabels a product or mislabels the warnings. 24. Nuisance is the defendant’s interference with a plaintiff’s rights or interests.

a. No. A precise definition is difficult to determine. 25. A public nuisance is an interference with a “right common to the general public” whereas a private

nuisance is interfering with the rights of only the plaintiff. 26. That the substantial injury suffered by him is unique and different than that suffered by the general public.

a. That is no longer necessary, however, it is more likely that a plaintiff will recover if the defendant’s actions were criminal.

b. No, the damages must be unique to the plaintiff and not to the rest of the population. (1) No. The government can bring an action on behalf of the general population. (2) It has prevented many plaintiffs from bringing an action because pollution does affect most people

in the same way and therefore it is very difficult for a plaintiff to show that he was unique to the rest of the population.

c. There is no uniformity in courts when addressing this situation because some courts allow a plaintiff to recover if the plaintiff suffered greater economic loss than others while other courts have barred plaintiff’s recovery.

d. The legislature, by virtue of its police power, can enact laws declaring certain actions a public nuisance. They can also set up local agencies to whom citizens can report these wrong doings and local boards can investigate these claims and order it to stop.

27. The plaintiff must show that he has an interest in the affected land. a. No, because ownership is indicative of a private nuisance; rather, the courts will look at whether the

plaintiff’s right of quiet enjoyment was breached. Renters have the right to quiet enjoyment of the property even though they do not own it.

28. A trespass consists of an interference with the plaintiff’s right to possession of the property, whereas nuisance consists of an interference with the plaintiff’s right to use and enjoy it without interruption from others. a. If it interferes with the plaintiff’s enjoyment of the land, yes. An example would be when a neighbor

blasts music very loudly. b. There must be a substantial harm.

29. If the property was damaged or if the plaintiff was inconvenienced or subjected to unpleasant sensory awareness. a. The plaintiff must show that a reasonable person would be bothered by this event. A person with

abnormal sensitivities would not fit this standard. 30. A defendant must know with substantial certainty that interference will occur even if he has no desire to

interfere with the plaintiff’s use and enjoyment. 31. The courts will balance the utility of the defendant’s conduct against the plaintiff’s harm. The greater the

utility, the greater the harm that must occur for it to be recoverable or recovery will be barred.



a. (1) The plaintiff’s harm outweighs the utility of the defendant’s conduct; or (2) The harm caused by the conduct is substantial and greater than anything any individual should be

required to bear without compensation. 32. The plaintiff may seek compensatory damages or an injunction.

a. The plaintiff must show that damages would be an insufficient remedy. Further, the plaintiff must then prove that the harm to him outweighs the utility of the defendant’s conduct.

33. Contributory negligence and assumption of the risk. a. When the plaintiff already knows of the risk and still avails himself to it. b. If someone buys a plot of land next to an oil refinery plant. It would be very obvious that there would

be a strong smell prior to the purchase and, therefore, the buyer takes it as it is. c. It used to be but now it is only one of the factors to be considered.

34. Because most state statutes allow for nuisance claims to be brought in addition to any claims for pollution. The plaintiff can thereby recover damages and in many circumstances not have to prove that they suffered a greater harm than that of the general public. a. A 1986 law passed by Congress, the Comprehensive Environmental Response, Compensation, and

Liability Act (CERCLA) authorizes the EPA to clean up sites contaminated by toxic wastes. (1) Plaintiffs can recover more damages and higher awards; they can obtain injunctions more easily; and

the common law has a broader interpretation of liability. (2) Under nuisance, the defendants are liable only for the contamination they cause. The original owner

of a contaminated site can defeat liability claims by subsequent owners by asserting the buyer beware defense. Defendant can avoid the long-term costs of cleanup by declaring that the site is contaminated and only having to pay the difference in the value of the land because of the contamination. Finally, under nuisance claims, the courts will look at the utility value of the defendant’s conduct, whereas under CERCLA they do not.

(3) Still, cleanup is easier, the outcomes of the cases are more predictable and settlement is more likely. 35. a. Intentional interference with existing contractual relations.

b. Intentional interference with potential contractual relations. 36. By inducing another to breach a contract with the plaintiff.

a. The plaintiff must prove that the interference is intentional and improper. b. No. Merely offering another person a better price, while the defendant may know that it might cause

that person to breach an existing contract, is not enough. The defendant’s actions must be done with the specific intent of inducing the person to breach the contract.

c. No, because an illegal contract is an oxymoron. There is no contract. And therefore there is no contractual relationship in which to interfere.

d. No, because the contract is terminable at either party’s discretion. e. Yes. Just because they are unenforceable for other reasons does not mean that contractual interference

did not occur. f. Pecuniary losses and in some courts emotional harm. g. No, as long as the defendant can prove that his motive in inducing the breach was to protect his own

existing contractual rights and not to gain a business advantage. h. No. As long as that person was supporting a social interest, and the courts rule that the actions were

justified, he will be privileged. 37. With potential contractual relations, no contract actually exists and therefore, the defendant is given

greater leeway as to what he can do to interfere. A defendant is privileged to interfere to gain a business advantage or even to drive the other person out of business as long as he does not do it in an illegal manner. a. If a person acts out of sheer malice, his actions will not be privileged. For example, if a defendant

induces one to leave someone out of a will out of sheer malice, the defendant could be liable. 38. a. Malicious prosecution

b. Wrongful institution of civil proceedings c. Abuse of process

39. A person who has been subjected to unwarranted judicial proceedings. The plaintiff in the case was originally the defendant in the suit that led to the misuse of legal process claim. They have switched roles.

40. If the defendant’s motives for instituting criminal proceedings (reporting the plaintiff’s wrong actions) are

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anything other than bringing the plaintiff to justice, then the defendant has engaged in malicious prosecution. a. The proceedings ended in the plaintiff’s favor and the defendant actively participated in instigating the

prosecution. b. A mistrial, a hung jury, or a plaintiff’s plea of guilty in acceptance of a plea bargain. c. The probable cause requirement. In other words, if a defendant reasonably believed that the plaintiff

committed certain acts, he will be deemed to have probable cause. Even if he made a mistake, it will not be deemed actionable if the mistake was a reasonable one.

d. Prosecutors and police officers are immune as long as they are acting within the scope of their duties. 41. Malicious prosecution applies to criminal wrongs. Wrongful institution of civil proceedings applies to the

misuse of the civil system. a. A suit brought by one person merely to harass them or drive them out of business because of the

expense of litigation. A holdup suit is an example. b. Since the burden of proof is substantially less in a civil case, a suit for wrongful institution of civil

proceedings is much more difficult to prove because of lack of probable cause in a civil case. 42. It is when a person, while maybe having a legitimate reason to file a claim or initiate proceedings, only uses

it for improper purposes. a. If a person issues subpoenas to harass them into settling on a suit rather than its true purpose to gather

information for a suit. b. As long as the defendant’s primary motive was proper, any ulterior motives of the defendant is

immaterial.

ANSWERS TO REVIEW QUESTIONS 1. The plaintiff must prove that the defendant intentionally lied about a material fact with the intent to

mislead the plaintiff, and that the plaintiff did indeed reasonably rely upon it and was in fact harmed in some way.

2. A lie, half-truth, a nondisclosure of material facts, intentionally hiding the truth, or intentionally concealing facts.

3. When a reasonable person would have relied upon a fact. In general, those who have a fiduciary relationship with the plaintiff make it reasonable that the plaintiff relies on the other’s statements. Even when a person is stating an opinion, if he holds himself out as an expert in that area (such as an attorney), reliance on his statement is reasonable.

4. If one commits intentional misrepresentation, the plaintiff will have to prove that he intended to mislead, and the defendant will be liable to anyone who the defendant could have reasonably foreseen to have relied upon that lie, and not just the person the defendant intended to deceive. In negligent misrepresentation, the plaintiff does not have to prove that the defendant intended to deceive, but rather that the defendant did not live up to his duty of care in conveying the information; the defendant is only liable to those he intends to reach with this information or whom he knows the recipient of his information intends to reach.

5. Reliance: the plaintiff must be made whole and put back in the position she was in prior to the misrepresentation. Benefit of the bargain: the plaintiff must be put in the position she would have been in had the misrepresented facts been true.

6. A public nuisance is an interference with the rights common to the general public. In order for a plaintiff to be successful for this tort, he would have to prove that he suffered some unique damage that was not suffered by the general public and that the harm was substantial. A private nuisance is a claim that the defendant’s actions substantially interfered with the plaintiff’s own right of quiet enjoyment of land and that the defendant’s actions were either intentional, negligent, or abnormally dangerous.

7. Interference with contractual relations, either existing contracts or potential contractual relations, are related to business transactions. When a contract already exists, the plaintiff only has to prove that the defendant intentionally and actively induced another to breach a contract with the plaintiff for an improper motive, such as to gain a business advantage. In interference with prospective contractual relations, the same requirements must be met, except that a defendant is given much greater rights to



interfere. In other words, a defendant can attempt to steal away business from another by offering lower prices or the defendant can even attempt to drive the plaintiff out of business. The only time that the defendant’s actions constitute a tort is when the defendant violates some other law such as price fixing or monopolization or if he acts out of sheer malice.

8. The plaintiff may allege: Malicious prosecution, and must prove that the defendant actively instituted criminal proceedings against the plaintiff but has no probable cause and acts out of motives other than a sense of bringing the plaintiff to justice. Additionally, the plaintiff will have to prove that the proceedings ended in her favor. Abuse of process, and must prove that the defendant uses litigation devices for an improper purpose, such as to harass and to force a settlement. The plaintiff must prove that this was the defendant’s primary motive rather than just an ulterior motive. Wrongful institution of civil proceedings, and the plaintiff must prove that the defendant institutes civil proceedings against the plaintiff but has no probable cause and acts out of motives other than seeking compensation for a wrong suffered.

ANSWERS TO PUTTING IT INTO PRACTICE 1. Assuming that your client is being truthful when he claims that he had no idea that his statements were

erroneous, the plaintiff will most likely bring a cause of action for either negligent misrepresentation or innocent misrepresentation. In both actions, a plaintiff can recover for economic damages sustained by a person who makes false statements during the course of a business transaction in which he is involved. The real estate agent would definitely fit this circumstance. In both situations, it would be easy to show that the real estate agent intended to reach the plaintiff, the potential buyer, when he misstated the value of the house. Since there is no requirement that he intended to mislead him, the plaintiff would most likely be able to recover under these two actions because, ultimately, the courts would find that the value of the house is material.

If the plaintiff chooses to sue for intentional misrepresentation, the plaintiff will have to prove that he either intended to mislead the plaintiff or that he acted with reckless disregard to the truth. The court would have to determine if the client’s statements about the value of the house were seriously erroneous, or if a reasonable person would have reached the same conclusion about the value of the house. Additionally, assuming that he had no idea, the court will then have to look at whether he should have known that he misrepresented the value of the house.

Since a real estate agent would most likely be classified as a person purporting to have special knowledge in the value of the house, the courts would most likely rule that the plaintiff was reasonable in relying on the real estate agent’s representations of the price.

The real estate agent may try to assert that he was just merely offering his opinion and did not state a fact as is required in any suit for misrepresentation. However, most likely, because of his special fiduciary relationship with the potential buyer and the fact that he is considered a person with specialized knowledge in the estimation of house values, the courts would most likely rule that his “opinion” would be taken as a fact.

Finally, the plaintiff will have to prove that he suffered some sort of damage stemming from the reliance on the real estate agent’s misrepresentation. If the plaintiff has not tried to sell the house, there would be no damage at this point. The facts do not indicate whether this is so. However, if the plaintiff did try to sell the house and had to sell it at a substantially lower price than he paid when relying on the real estate’s misrepresentation of the value, the court may award damages.

2. The wife may have a cause of action for private nuisance in that he is interfering with her right to quiet enjoyment of her property. She must show that he is substantially interfering with her rights to enjoy the property and that she is not just being overly sensitive. Looking at the facts, it is hard to determine the nature and extent of his walking back and forth in front of her house and whether it would qualify as substantial. The other requirement is that his conduct must be intentional. Since he lives in the same neighborhood, he may be able to assert that he is just walking to and from his house as would any person living in the neighborhood. However, if she can prove this, she could request an injunction to prevent him from engaging in this activity as it is the only damage that would fix the problem.

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However, when the facts are added, that he corners the clients leaving her house, and that he tells them about other vendors, the intrusion becomes more actionable in that she could bring suit against him for intentional interference with contractual relations or potential relations. In both situations, the wife would have to prove that he was trying to induce the client to either breach a contract with the wife or that he was trying to get them to NOT enter into a contract with the wife. In both actions, the damages resulting from his actions will be recoverable because it is obvious that his motive is out of sheer malice and not to protect his rights or to even gain a business advantage.

Finally, when he has repeatedly threatened to call the police on her for stealing jewelry, and he knows she did not steal, she would have a claim for malicious prosecution because he is actively pursuing criminal proceedings without any probable cause and his motives are other than to bring justice, but rather to harass and embarrass her.

Again, however, a paralegal is not allowed to offer legal advice and therefore should refrain from telling the client any of this information without the approval and ratification of an attorney.


CHAPTER

11

Strict Liability

ANSWERS TO OVERVIEW QUESTIONS 1. a. Animals

b. Product liability c. Abnormally dangerous activities

2. While it is liability without having to determine the defendant’s fault, the defendant still may bring certain defenses for his action. Therefore, absolute liability is often mischaracterized as automatic liability and that is not correct. a. No. Liability without fault exists under an intentional tort basis of liability. However, this term does

more closely define it because it states the rule that courts will not look at whether the defendant took reasonable precautions as in negligence cases or whether the defendant intentionally injured the plaintiff to allow recovery.

3. In negligence, the defendant must prove that the defendant was at fault by not living up to the standard of care required. This is not required in strict liability.

4. Owners of animals are liable for damages caused when the animals trespass onto another’s land even if they used the utmost care in confining their animals. This rule applies only to animals likely to roam, such as cows, sheep, and goats and not to household pets. a. Most courts still follow the rule. b. Some states have limited liability by passing statutes that say if an owner erects a fence the owner will

not be held strictly liable. The converse, however, is that if the owner fails to erect a fence he will be held strictly liable.

c. In other states, property owners who properly fence their land to keep trespassing animals out will also have a strict liability claim against the trespassing animal’s owner.

5. Wild animals are those that are not normally considered by custom to be “devoted to the service of mankind.” These animals do not have a valid social purpose to the owner such as a dog or cow would have. a. They can be and still be domesticated if they serve a social purpose. For example, an old bull can be very

dangerous, but has a very valuable purpose to society and is therefore considered a domesticated animal. b. If the owner knows of a dangerous or vicious propensity of a particular domesticated animal, the owner

can still be held strictly liable. c. Not really. If the owner knows of the dog’s dangerous propensities, even though the dog has not been

successful in biting a person, the owner is still strictly liable for the dog. The problem is that it can be difficult to prove that an owner actually knew the dog was dangerous without the evidence of a bite.

6. From this case, courts now impose strict liability on a defendant if that defendant engages in abnormally dangerous activities.

7. The elements are that there must be a high degree of risk to a person, land, or chattel of another; the risk of serious harm is great; the risk cannot be eliminated by due care of the defendant; the activity is not something that the average individual commonly does; the inappropriateness of the activity to the place where it is carried on; and the value of the activity versus its dangerousness. a. No. One alone is generally not enough, but the courts do not require that all of them be met. However,

the more factors that are present, the more likely the action will be classified as abnormally dangerous. b. Whether the risk created is so unusual as to justify strict liability even though the activity is carried out

with all reasonable care.

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c. No. They are highly fact-specific, and to determine if something is abnormally dangerous, an attorney must use the rationale behind precedent to predict whether an event will be classified as so. One cannot classify any particular event as automatically abnormally dangerous.

8. Crop dusting. In the case of crop dusting, the defendant’s actions amplify the potential of harm because of the act of spraying chemicals into the air. The chemicals will drift. And when one balances the utility of the event, the court would look at what others who lived around the defendant did. If the adjacent landowners were also farmers, then there may be no damage; however, the innocent, nonfarmer should not have to pay for the benefit that a farmer received. Rather, since the farmer received the benefit, he should also bear the burden of the consequences of his actions.

9. Today, flying is a common event and not unusual. Courts prefer to hold airlines liable only if they committed negligence rather than impose strict liability.

10. An irrigation canal built in a rural area is not abnormally dangerous because it would not be an uncommon activity in a rural area and it would not involve an abnormally high degree of risk.

11. Public policy affects whether something will be classified as abnormally dangerous because it will take into account the utility of the defendant’s actions. The greater the social benefit, the more the courts want to encourage the actions and the less likely it will be considered abnormally dangerous.

12. a. It is easier for the defendant to bear the risk of loss than for the plaintiff because manufactures have the ability to internalize the cost of accidents and can redistribute those costs onto the customers who purchase their products.

b. It also promotes greater incentives to make a product safer. 13. a. Proximate cause. The damage that resulted was not the kind of risk that made the activity abnormally

dangerous in the first place. b. Assumption of the risk. The defendant can argue that someone who has assumed the risk should be

barred from recovery. 14. a. The plaintiff will not be able to recover if the harm that resulted from the defendant’s actions is not the

harm that normally makes the defendant’s activities dangerous. b. A defendant will not be strictly liable if the harm occurred only because the plaintiff was conducting an

“abnormally sensitive” activity. In other words, strict liability does not extend to harms that occur because of the plaintiff’s “extraordinary and unusual use of the land.”

c. There is no strict liability if the harm occurred in an unforeseeable manner, such as resulting from an act of God, because the event was clearly out of the control of the defendant.

15. Because the injury that was caused by the defendant engaged in an abnormally dangerous activity is not the type of injury that made the defendant’s actions abnormally dangerous in the first place.

16. In this case, the plaintiff tried to hold a blasting company strictly liable for the mother minks killing its children due to the vibrations felt from the blasting. These minks were highly sensitive to any tremors and the plaintiff’s asserted that this was due to the defendant’s activities. a. The reason that blasting was determined to be a strict liability activity was because of the fear of flying

debris and not its effect on an unusual condition of minks. A defendant will not be strictly liable if the harm occurred only because the plaintiff was conducting an “abnormally sensitive” activity. In other words, strict liability does not extend to harms that occur because of the plaintiff’s “extraordinary and unusual use of the land.” Ultimately, the court ruled that these minks killed their young because they were abnormally sensitive and not because the defendant engaged in the blasting.

17. An acts of God is not an absolute defense to strict liability but courts today are more likely to consider it because the actions are totally outside of the defendant’s control.

18. Courts are more likely to find proximate cause in negligence cases. a. The implication of it in strict liability is more severe: the defendant will be held liable because the

plaintiff will not have to prove fault. Whereas in negligence cases, even if a person was deemed to be the proximate cause of the defendant’s injury, if he acted reasonably, then he will not be liable.

19. In a strict liability case, courts are more likely to deny liability because of an unforeseen cause. a. The implication of in strict liability is more severe: the defendant will be held liable because the

plaintiff will not have to prove fault. Whereas in negligence cases, even if a person was deemed to be the proximate cause of the defendant’s injury, if he acted reasonably, then he will not be liable. Additionally, if there is an unforeseen, intervening cause, the court may evaluate if the defendant should have known to take further precautions or care.

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20. An example would be where a plaintiff insists on driving his car through an area where he knows blasting is going on or where a plaintiff goes to extraordinary measures to jump into a wild animal’s cage at a zoo.

21. No, not generally because again, the court will only look at a plaintiff’s intentional assumption of the risk and not just inattentively or negligently availing one’s self of the danger.

ANSWERS TO REVIEW QUESTIONS 1. Strict liability applies when the defendant is engaged in abnormally dangerous activities—such as housing a

wild animal, owning domesticated animals that trespass onto others’ land, owning an animal that the owner knows has a dangerous propensity to be dangerous even though it is otherwise a domesticated animal—or in product liability cases.

2. The court will evaluate the social value of the defendant’s activities—whether the defendant knew or should have known that the activity created a high degree of risk, whether the defendant’s activities created a serious danger, whether the defendant could have reasonably eliminated the risks involved, whether the activity is commonly done in society, whether the defendant’s activities were appropriate where carried out—and the likelihood that that the harm will result from the defendant’s activities.

3. Proximate cause. The damage that resulted was not the kind of risk that made the activity abnormally dangerous in the first place. Assumption of the risk. The defendant can argue that someone who has assumed the risk should be barred from recovery. The plaintiff will not be able to recover if the harm that resulted from the defendant’s actions is not the harm that normally makes the defendant’s activities dangerous. A defendant will not be strictly liable if the harm occurred only because the plaintiff was conducting an “abnormally sensitive” activity. In other words, strict liability does not extend to harms that occur because of the plaintiff’s “extraordinary and unusual use of the land.” There is no strict liability if the harm occurred in an unforeseeable manner such as resulting from an act of God because the event was clearly out of the control of the defendant.

ANSWERS TO PUTTING IT INTO PRACTICE First, the state would have to show that the farmer engaged in an abnormally dangerous activity. To do this, the court will look at whether there is a high degree of risk to a person, land, or chattel of another; whether the risk of serious harm is great; whether the risk cannot be eliminated by due care of the defendant; whether the activity is not something that the average individual commonly does; the inappropriateness of the activity to the place where it is carried on; and the value of the activity versus its dangerousness. In this situation, it is very common for a farmer to have a controlled bonfire to burn grass. This would also be deemed an appropriate use of the property since it is essential to maintaining good grass for grazing animals. The value of the activity is very high in that it maintains good grass for grazing animals and introduces excellent nutrients into the soil. Therefore, it may be difficult for the plaintiff to overcome the hurdle of proving that grass burning is abnormally dangerous. However, if he does, then the plaintiff need only show that he suffered damages that were the proximate result of the farmer’s abnormally dangerous activities.

Damages are simple to prove in that the land was destroyed. In determining proximate cause, the state will have to prove that the damage that resulted was the kind of

risk that made the activity abnormally dangerous in the first place. The plaintiff will not be able to recover if the harm that resulted from the defendant’s actions is not the harm that normally makes the defendant’s activities dangerous. This would be easy to prove since fires are dangerous simply because they can cause other fires. That is why when one has a bonfire, precautions should be taken to keep it from spreading and igniting other areas.

However, the farmer may assert that there is no strict liability if the harm occurred in an unforeseeable manner, such as resulting from an act of God, because the event was clearly out of the control of the defendant. This assertion is only allowed in some states and cannot be relied upon as an ultimate release from liability. Additionally, if there is an unforeseen, intervening cause the court may evaluate if the defendant should have known to take further precautions or care.


CHAPTER

12 Product Liability

ANSWERS TO OVERVIEW QUESTIONS 1. Product liability refers to the liability of a manufacturer, seller, or other supplier of chattel which, because

of a defect, causes injury to a consumer. 2. a. Negligence

b. Warranty c. Strict liability

3. Yes, if a manufacturer uses defective components made by another party. a. The manufacturer could be held responsible if it did not take reasonable care to obtain the components

from a reliable source or did not reasonably inspect the components before incorporating them. 4. Yes, even thought the retailer may have a duty to inspect the product and fails to do so, the manufacturer

will not be released from liability because the manufacturer has a duty to use reasonable care in making a product and a retailer’s failure to inspect a product is not the event that would cause the product to be defective. a. If the retailer does inspect the product, finds it to be defective, and fails to warn the consumer, the

manufacturer is usually absolved from liability. 5. A retailer generally has no duty to inspect a product unless it has a reasonable belief that the product may

be dangerous. a. A majority of courts hold that retailers usually have a duty to make a superficial inspection—especially

of cars that enter a lot to be sold—because they are in a much better position to ascertain if a product is defective.

6. Yes, if they negligently fail to discover defects. a. Yes, they may also be found negligent because they are in a much better position to know if a product is

defective. 7. The privity requirement meant that only a person who bought the product, and who entered into a

contract directly with the defendant, had standing to bring a cause of action. Common law abolished this requirement and now allows a plaintiff to sue the manufacturer even though the plaintiff buys the product from a retailer and thus is not in privity with the manufacturer. a. Yes, if that plaintiff is a reasonably foreseeable plaintiff. For example, a husband may be the person who

buys a car, but it is reasonably foreseeable that his wife may use the car as well. Therefore, the wife can also bring a cause of action even though she did not buy the car.

8. Yes, even though they most often sue for personal injuries. a. It is more difficult because those cases are best tried as warranty breaches rather than negligence.

9. Tort and contract. It was initially considered a type of misrepresentation and thus a tort, but it is also considered a breach of a contract because of the implied contractual warranties that come with every sale of a good. a. Tort remedies are designed to protect the public from dangerous products and to allocate the risk to

manufacturers who are better suited to bear the burden. In contrast, contract law is meant to compensate a plaintiff for any loss sustained due to the defendant’s breach.

b. In a contract case the plaintiff would allege that the product failed to perform in accordance with the expectations one would have for a product of a particular quality and fitness for ordinary use. Contract

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cases are more appropriate when the defect involves only the quality of the products and presents no unreasonable danger to people or property.

c. When a plaintiff can allege that he has been exposed by means of a hazardous product to an unreasonable risk of injury. Tort law is reserved for defects that result in an unreasonably dangerous product.

d. A majority of jurisdictions restrict contract cases to those where there is some commercial or economic loss, and restrict tort cases to those where the damage is to people or property. Some jurisdictions allow plaintiffs to seek either remedy when the damages are both personal and economic or commercial.

10. a. An affirmation of fact or promise regarding the goods; or b. A description of the goods; or c. By using a sample or model of the products.

11. Because the plaintiff need not show if he believed the defendant’s assertions or if he even knew that the defendant made any warranties at all. Rather, the plaintiff need only show that the warranties the defendant made were false.

12. Yes, because the plaintiff need only show that he is in a class of people reasonably expected to use the product. This qualification, however, is applied in a very broad manner and really does not limit the class of potential plaintiffs. a. Yes, if he is in a class of people reasonably expected to use the product. This qualification, however, is

applied in a very broad manner and really does not limit the class of potential plaintiffs substantially. b. The plaintiff can recover the difference between what the product would have been worth had it been as

it was warranted and what it was in fact worth given its defect. 13. a. A warranty of merchantability.

b. A warranty of fitness for a particular purpose. 14. It is an implied (assumed) warranty that goods are fit for the ordinary purpose for which they are used. 15. This doctrine absolves retailers from any liability when they sell sealed containers straight from the

manufacturer. In other words, the retailer did not alter the product in any manner and is only an intermediary selling the product exactly as the manufacturer made it.

16. Yes, both consist of a sale of a good. a. No because the UCC does not consider it a good, but rather a service. b. Jurisdictions vary on whether it does apply to used goods.

17. Warranty of fitness for a particular purpose is an implied warranty that goods are suitable to be used for particular (noncustomary) purpose.

18. Personal injury and damage to property resulting from the defective product as well as for solely economic damages, such as loss of profits and the difference between what the product would have been worth had it been as it was warranted and what it was in fact worth given its defect. The plaintiff can also recover for incidental and consequential damages.

19. Personal injury and property damage. a. Most likely not. That plaintiff should instead sue the seller of the product rather than the manufacturer.

(1) The plaintiff should sue the immediate seller of the product instead. 20. Yes.

a. Yes, if they are manufacturers whose components are incorporated into a larger product that caused the injury.

b. There is no general consensus about this matter. c. Yes, because courts analogize the situation to the UCC and determine it should be treated like a sale of

goods. d. Yes.

21. Strict liability cases possess far fewer hurdles to conquer to make the defendant to be liable and, therefore, these cases are easier to prove. a. If the plaintiff is the direct purchaser and suffered solely economic damages, he will prefer to file a

warranty case because the UCC offers much greater damages than pure strict liability cases. 22. a. The seller of defective products, rather than the consumers, should bear the cost of compensating a tort

victim for the injuries they sustained. b. Sellers should be made to internalize the cost of any injuries their products may cause, therefore

increasing the cost of the product to the consumer. Eventually, consumers will not buy the higher cost

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product but will opt for the safer product that is cheaper as a result of not having to internalize the costs of injuries.

c. The sophistication of modern products precludes the average consumer from pinpointing the act of negligence responsible for his injuries. If strict liability cases were not used, the plaintiff would have to prove the negligence of some entity and that could be impossible considering the advanced technology that exists.

23. Critics argue that statistics do not support the contention that strict liability litigation makes the products safer, and that some people have taken law too far and it is having a very devastating effect on manufacturers.

24. His opinion laid the foundation for the Restatement, which has been adopted by a majority of the states. Namely, he stated that a “manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect which causes injury to a human being.” The manufacturer put the defective product on the market and he, rather than the innocent consumer, should bear the burden of its defect.

25. a. A product was sold by the defendant. b. The product was defective. c. The product sold was the cause in fact and proximate cause of the plaintiff’s injuries. d. The defect existed at the time the product left the defendant’s hands.

26. No, it only applies to the sale of a good. 27. A product is unreasonably dangerous when it is “dangerous to an extent beyond that which would be

contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” a. The consumer-expectation test measures the plaintiff’s thoughts to that of the reasonable consumer

when attempting to discern whether a product is defective. In other words, would the reasonable consumer have anticipated that a product was unsafe? The risk-utility test looks at the actions of the defendant to determine whether a reasonable person would conclude that the perceived risks created by the design and marketing of the product outweigh the benefits.

28. Foreign objects in the products such as a finger in chili; from decay and deterioration before the sale such as an expired product; or from the way a product is packaged, such as a carbonated beverage that explodes due to too much pressure.

29. A product that is incapable of being made safe for its intended and ordinary use. Courts will take into consideration the utility value of the product to see if the benefits outweigh the risks and, if so, the courts will not impose strict liability. a. An experimental drug that cannot be assured to be safe because there is little research data and a lack of

medical experience with the product since it is so new. Blood is another example. 30. The plaintiff could not identify the manufacturer responsible for making a drug taken by her mother while

pregnant with said plaintiff. Therefore, the court shifted the burden to the defendants to prove that they were not responsible for making the product.

31. Most products pass through several intermediaries before the product makes it into the hands of the plaintiff. Therefore, the plaintiff is often not able to prove that the product was defective when it left the manufacturer or if the product became defective in the hands of an intermediary. a. It is not applicable in strict liability cases, however, some of the assumptions made under that doctrine

can be used in strict liability. This will help the plaintiff because the court will most likely presume that if the product bought by the defendant was defective and none of the intermediaries tampered with it that it was defective when it left the manufacturer.

32. Anyone in the business of selling goods whether or not he is the manufacturer. However, the defendant must be “in the business of selling goods” and not merely a one-time seller of a good at a garage sale. a. No, generally they are not held liable unless the plaintiff can prove that the defects were caused by the

defendant. 33. Anyone who is the “ultimate consumer” of the product, including those who prepare the product for

consumption, those who passively enjoy the benefit of the product, and those who use the product for the purpose of doing work on it. a. Some courts have extended liability to bystanders whose presence was reasonably foreseeable. Allowing

bystanders the right to sue entitles them to greater protection than the consumers or users because they



do not have the opportunity to inspect the product for defects. The main issue is trying to prove causation or that the defendant caused the plaintiff’s injuries with the defective product. Courts must draw the line somewhere because at some point causation become tenuous.

34. Property damage and personal injuries. a. Generally not unless the plaintiff can also show that he suffered personal injury or property damage.

35. a. Personal injury b. Property damage c. Economic loss

36. A diminution in the value of the product, including such items as the cost of repairs, the cost of replacement, and the loss of profits. a. Because most courts do not allow for recovery of pure economic losses under strict liability. Therefore, a

plaintiff would be barred from bringing the claim if the only damage claimed was economic. (1) No.

b. No. The classification differs from state to state and therefore requires case law research to determine how a particular jurisdiction will classify damages.

37. a. Manufacturing defect b. Design defect c. Defective warning

38. A design defect is a defect in the actual design of the product. The manufacturer correctly followed the directions to make the product, it is just that the actual design was flawed. A manufacturing defect is one where the manufacturer incorrectly assembles a product, or, in other words, produces a product not according to specifications.

39. The courts in this case looked at whether the product was made according to specifications. They determined that it was not because the wheel was made with defective wood and therefore consisted of faulty construction.

40. In MacPherson, the defendant was held liable because it breached its duty of care by failing to inspect and discover a manufacturing defect. In Henningsen, however, the plaintiff recovered from the defendant based on a breach of the implied warranty of merchantability.

41. Yes. a. They can be found in foods that are improperly produced, stored, or processed. In other words, faulty

food products, because of a lack of care by the defendant’s handling of the food, can be classified as having a manufacturing defect even though the defendant did not really manufacture it.

42. Whether the defendant chose a design that posed an unreasonable danger to the plaintiff in light of the availability of some other design.

43. Negligence (whether the defendant was reasonable in placing the product on the market) or strict liability (what the plaintiff‘s expectation about the safety of the performance of the product was).

44. A defense where the defendant argues that the level of technology existing at the time they made the product precluded them from using a safer design. In other words, they did not know of a better way. a. Courts allow the defense but it will not always absolve a defendant from liability.

45. To show that the defendant realized a problem of the design and attempted to fix it, therefore proving the plaintiff’s assertion that the design was flawed. a. It is inadmissible. Allowing a plaintiff to introduce such evidence would inhibit the manufacturer from

redesigning products to make them safer for fear that the redesign would be used against them in a courtroom as proof that the product was unsafe.

46. a. Structural b. Safety features c. Foreseeable misuse

47. This is when the defendant’s choice of materials results in a structural weakness, causing the product to be dangerous. For example, a manufacturer does not use material sturdy enough on a ladder to hold the weight of a person. a. No, the only requirement is that the manufacturer makes the product reasonably safe.

48. One must consider the expense and burden of installing the feature in comparison with the cost of the product and the magnitude of the danger that exists without the safety feature.

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49. It does not prove the reasonable safeness of the product, rather it shows that the entire industry is negligent in the installation of safety devices.

50. It does not usually work because the defendant still has a duty to make the product reasonably safe even if the danger is obvious.

51. A product, while not dangerous when used as intended, becomes dangerous if used in an improper way. Therefore, the defendant is obligated to make the product reasonably safe for its intended use and also its foreseeable misuse. For example, a chair is made to sit in, however, every person alive has stood on a chair to reach something higher. The manufacturer is required to make the chair safe for its purpose and also that which is foreseeable that it might be used for other than its intended design. a. Car manufacturers are required to make the car crashworthy and also safe for a secondary collision (the

collisions that occur inside the car after the initial impact). b. The court balanced the gravity and likelihood of harm resulting from a particular design against the

burden of precautions necessary to avoid the harm. c. No. Even though no other manufacturer used the safety feature, the court looked at the case

independently of other manufacturers and determined that the plaintiff was unreasonable, and in essence, so was the entire industry.

d. Whether manufacturers who have failed to install airbags have fully complied with the duty to make the car reasonably safe based on state-of-the-art technology and feasibility considerations. In other words, are they necessary to make the car reasonably safe? Proponents say that they are within the realm of state-of-the-art protection. Critics say that there has been no real statistical evidence that proves their effectiveness, and that they may even be dangerous to some car occupants as they can become deployed improperly. (1) That the defendant’s failure to install an airbag made the design defective. In other words, a design

existed with an airbag that was practicable; the plaintiff’s injuries would have been lessen or prevented with such a safety feature; and the lack of the airbags were the cause of the enhanced damages to the plaintiff.

(2) The plaintiff has to establish that the car without the airbag has a design defect or is unreasonably safe, and that at the time the car was made it was technologically and economically feasible to install an airbag. In addition, many jurisdictions require that the plaintiff show that the damages were enhanced because of the failure to use airbags.

52. Courts will look at the likely number and severity of accidents that could be avoided by having a warning or instructions and weigh that against the difficulty of providing such warnings or instructions. a. Warnings that clearly convey the nature, gravity, and likelihood of the known or knowable risks of the

drugs. b. No, because he only has a duty to warn of foreseeable dangers. c. No. They are makers of the product and if they can show that they used reasonable steps to test the

product and to make it safe they will be absolved from liability. (1) Asbestos cases where the courts held the defendant liable even though at the time they had no reason

to know of the potential long-term side effects. d. No, that factor alone does not preclude recovery but instead is a factor to be considered.

53. Contributory negligence, comparative negligence, assumption of the risk, disclaimer of the warranty, limitation of the remedies, failure to discover breach in reasonable time, statute of limitations. a. Courts will generally consider it as an issue in determining proximate cause of the injury rather than use

it as a defense. (1) The burden lies with the plaintiff when proving proximate cause.

b. Use language that is clear, unambiguous, conspicuous, and that specifically mentions merchantability. An implied warranty can be disclaimed by selling it “as is.” (1) It requires that if a manufacturer gives a written warranty then the implied warranty of merchantability

can never be waived and is always included. c. They state in the warranty that they are not responsible for any consequential damages.

(1) These are not enforced by the courts because they are unconscionable. 54. No if the plaintiff fails to discover the defect.

a. It can be a valid defense in that situation if the misuse was reasonably foreseeable. b. Yes, if the plaintiff can show that the plaintiff’s acts were not superseding.



55. Courts are split on this answer. Some courts do allow this defense and therefore reduce the plaintiff’s recovery.

56. Yes, just as in negligence cases, if a plaintiff discovers a defect and voluntarily and unreasonably proceeds to use the product, that plaintiff is barred from recovery.

57. Tort statute of limitations are applicable to negligence claims and begin to run at the time of injury. UCC statute of limitations are applicable to breach of warranty claims and are generally four years from the sale of the product. There is disagreement among the courts as to which statute of limitations applies.

58. A statute that provides a fixed period of time from the date of the original sale during which a product liability case can be brought. After that time the cause is barred. a. At the time the product is sold. b. The statute may have run before the plaintiff ever discovers the damages or the injury occurs.

59. A concept that a state action cannot be brought if a federal statute expressly or impliedly prohibits such an action because it covers it.

a. In an express preemption, Congress explicitly states the extent to which its enactments preempt state law. In an implied preemption, one deduces from the words of the statute that Congress intended the federal government to have exclusive control in that area (while not explicitly stating that in words). (1) (a) Field preemption—where Congress intends to control that area exclusively

(b) Conflict preemption—where state law is preempted because it conflicts with federal law b. It preempted the plaintiff from bringing a claim based on state law against the defendant for failure to

warn, but did not preempt claims based on breach of warranty, product liability, or intentional fraud because Congress had explicitly limited its scope of preemption. This decision has not helped clarify the application of the preemption doctrine and therefore its application in the future cases is very uncertain.

c. The tobacco industry and car manufacturers.

ANSWERS TO REVIEW QUESTIONS 1. Each type of claim has its benefits but also its negatives. The plaintiffs would want to consider who they

can sue, if the plaintiffs even has standing to bring the suit, for what type of defect they can sue, the statute of limitations of each action, the possible defenses that might be raised, what type of damages they are trying to recover, and whether state law or federal law is controlling.

2. Express warranties are an express warranty by a seller that a product possesses certain qualities. Implied warranties are representations as to the product’s qualities that are implied or assumed by virtue of the product being offered for sale. Therefore, express must be explicitly stated to be effective while implied is presumed and effective even if not stated.

3. First that a product was sold as opposed to a service. The product was defective either in its design, manufacturing, or failure to warn of risks thereby making it unreasonably dangerous. The defective product was the proximate cause and cause in fact of the plaintiff’s injuries and that no other factors became superseding factors. The defect existed at the time the product left the defendant’s hands; however, this can be inferred in certain situations. And finally, the plaintiff must prove that the defendant actually made the product.

4. A manufacturing defect results from a deviation in the manufacturing process. A design defect occurs when the design of the product itself is flawed and therefore unreasonably dangerous. These could include structural design defects, safety feature defects, and a failure to protect the consumer against the misuse of the product. Lastly, a defective warning defect occurs when the manufacturer fails to warn the plaintiff adequately of the potential dangers associated with the product or fails to give proper directions of how to use the product safely.

5. Personal injury, which is injury to one’s self. Property damage, which is physical damage to one’s property. Economic loss, which only includes the diminution in the value of the product and such things as the cost of repair, the cost of replacement, and the loss of profits. Often it is very difficult to differentiate between property damages and economic damages, as they revolve around the same item being damaged. However, it is very important to determine what type of damage it is because only certain types of damages are allowable under certain claims. For example, with an express warranty the plaintiff may recover for personal injuries, property damage, pure economic loss, and incidental and consequential damages. However, under an implied warranty only the direct purchaser can recover for incidental and

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consequential damages. The other damages are recoverable. And under strict liability, economic losses can only be recovered if they are accompanied by personal injury or property damage.

6. The types of defenses that can be raised depend on what type of claim the plaintiff brings the product liability case under: negligence, warranty, or strict liability. If brought under negligence, contributory negligence, comparative negligence (in states that allow it), assumption of the risk, and statute of limitation are available. In warranty cases, the same defenses are allowed, as are disclaimer of the warranty, limitation of remedies, and failure to discover the breach of warranty in a reasonable time. In strict liability cases, the defenses are more limited since it is a no-fault tort. The defendant can use contributory negligence, but this will only be allowed if the plaintiff misused the product in an unforeseeable manner. Comparative negligence is sometimes allowed in some jurisdictions but is subject to a great amount of debate. Assumption of the risk and statute of limitations are two other defenses.

7. Product liability: must involve a product and not a service 1. Basis of claims

a. Negligence (1) who may sue

(a) direct purchaser (b) remote purchaser (c) reasonably foreseeable user

(2) who can be sued (a) manufacturer (b) user or manufacturer of component part (c) retailer (d) lessor (e) seller of real estate (f) supplier of service

(3) what can plaintiff recover (a) personal injuries (b) property damage (c) economic loss, however, pure is hard to recover

(4) what defenses can be used (a) contributory/comparative negligence (b) assumption of the risk (c) statute of limitations—same as tort law statutes

b. Express warranty (1) who may sue

(a) direct purchaser (b) remote purchaser (c) User, if member of protected class expected to be reached by the warranty

(2) who can be sued (a) manufacturer (b) user or manufacturer of component part (c) retailer (d) lessor (e) seller of real estate (f) supplier of service

(3) what can plaintiff recover (a) personal injuries (b) property damage (c) economic loss (d) incidental and consequential damages

(4) what defenses can be used (a) contributory/comparative negligence (b) assumption of the risk (c) statute of limitations—UCC limitation of four years



(d) disclaimer of warranty (e) limitation of remedies (f) failure to discover breach in a reasonably amount of time

c. Implied warranty (1) who may sue

(a) direct purchaser (b) remote purchaser (c) User—limited

(2) who can be sued (a) manufacturer (b) user or manufacturer of component part (c) retailer (except for sealed container in some courts) (d) lessor (e) seller of real estate (in some courts) (f) supplier of service (in some courts)

(3) what can plaintiff recover (a) personal injuries (b) property damage (c) economic loss—direct purchaser only

(4) what defenses can be used (a) contributory/comparative negligence (b) assumption of the risk (c) statute of limitations—UCC limitation of four years (d) disclaimer of warranty (e) limitation of remedies unless unconscionable (f) failure to discover breach in a reasonable amount of time

d. Strict liability (1) who may sue

(a) direct purchaser (b) remote purchaser (c) User (d) bystanders—in some courts

(2) who can be sued (a) manufacturer (b) user or manufacturer of component part (c) retailer (except for sealed container in some courts) (d) lessor (e) seller of real estate (f) supplier of service

(3) what can plaintiff recover (a) personal injuries (b) property damage (c) economic loss if accompanied by personal injury or property damage

(4) what defenses can be used (a) contributory negligence if plaintiff misused the product in an unforeseeable manner (b) comparative negligence—subject to much controversy (c) assumption of the risk (d) statute of limitations

2. Types of defects a. Design

(1) Structural (2) Safety feature (3) Misuse of product

b. Manufacturing

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c. Failure to warn (1) must be adequate (2) must be clear

ANSWERS TO PUTTING IT INTO PRACTICE In a breach of warranty case, the plaintiff would allege that the product failed to perform in accordance with the expectations one would have for a product of a particular quality and fitness for ordinary use. Breach of warranty cases are more appropriate when the defect involves only the quality of the products and presents no unreasonable danger to people or property. The client would be able to sue if there was an express warranty that the blood was of a certain quality and that she was a member of a class of people expected to use the goods. This would be easy to prove since blood is very commonly used by people who need a transfusion. However, assuming that there is no express warranty, it would depend on her jurisdiction’s rules about whether an ultimate user has standing to sue for breach of an implied warranty. If they allow it, however, then the next hurdle would be who to sue. In both situations, the company that supplied the blood and the hospital could be sued assuming that that hospital would be classified as a “seller” of the product and assuming that blood would be classified as a “product.” The biggest hurdle the plaintiff will face is whether or not she must be in privity with the entity that manufactured the product. While not all jurisdictions require this, depending on the jurisdiction, this requirement could limit her ability to recover.

The client could also sue the blood bank for negligence, alleging that it breached its duty of care owed to the client. Again, this cause of action would be predicated on the classification of the blood bank as a manufacturer of the product. Assuming that it is classified as this, the client as a reasonably foreseeable user of the product has standing to sue alleging that the blood bank did not take reasonable precautions when it secured and tested the blood it drew from the blood donator. The client may also state that the blood bank did not adequately and clearly convey the nature, gravity, and likelihood of the known or knowable risks of the blood. Additionally, the client will have to prove that the blood was the proximate cause of her contracting the AIDS virus. The plaintiff, depending on lifestyle choices, may have a problem proving that the blood was the cause. The plaintiff will have to be able to trace back to the blood and determine that it was defective when it left the blood bank. If that can be done, then the plaintiff should be able to recover for the personal injuries.

Strict liability cases possess far fewer hurdles to conquer to make the defendant liable and therefore, these cases are easier to prove. The client need only prove that the product was sold by the defendant, the product was defective as it posed an unreasonable risk of danger to society, the product sold was the cause in fact and proximate cause of the plaintiff’s injuries, and the defect existed at the time the product left the defendant’s hands. A product is unreasonably dangerous when it is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” In this situation, strict liability would be the easiest avenue to pursue as all the facts stated illustrate each element.

However, it is very important to determine what type of damage it is because only certain types of damages are allowable under certain claims. For example, with an express warranty, the plaintiff may recover for personal injuries, property damage, pure economic loss, and incidental and consequential damages. However, under an implied warranty, only the direct purchaser can recover for incidental and consequential damages. The other damages are recoverable. And under strict liability, economic losses can only be recovered if they are accompanied by personal injury or property damage.

Additionally, the types of defenses that can be raised depend on what type of claim the plaintiff brings the product liability case under: negligence, warranty, or strict liability. If brought under negligence, contributory negligence, comparative negligence (in states that allow it), assumption of the risk and statute of limitation are available. In warranty cases, the same defenses are allowed as are disclaimer of the warranty, limitation of remedies, and failure to discover the breach of warranty in a reasonable time. In strict liability cases, the defenses are more limited since it is a no-fault tort. The defendant can use contributory negligence, but this will only be allowed if the plaintiff misused the product in an unforeseeable manner. Comparative negligence is sometimes allowed in some jurisdictions but is subject to a great amount of debate. Assumption of the risk and statute of limitations are two other defenses.

Given all the considerations listed above, the client is best served by pursuing a strict liability cause of action.

© 2009 Delmar, Cengage Learning. All Rights Reserved 113

CHAPTER

13 Defamation and Related Torts

ANSWERS TO OVERVIEW QUESTIONS 1. The invasion of the reputation of a person or group resulting from libel or slander. In other words, telling a

third party a lie about someone or putting him in a false light that hurts his good character. a. Courts must balance a person’s freedom of speech and expression against another’s right to protect his

character. Courts do not want to put a chilling effect on a person’s right to debate, comment, and express one’s opinions out of a fear of litigation but they also want to protect a person from lies about his character. While the first amendment does not protect defamatory statements, courts are reluctant to deter those that are criticizing another.

b. The status of the plaintiff, whether he is a private or public official, and the subject matter of the statement, whether it is a private or public issue.

c. No, because there are so many competing issues. Lawyers will not usually take those cases unless substantial damages can be won.

2. Libel is a written lie; slander is a verbal lie. In libel, damages are presumed if the defendant acted with actual malice, or the matter is of private concern even if no malice existed. With slander, the plaintiff must prove special harm unless there was slander per se and there are no presumed damages. a. No, the line gets blurred when a radio announcer is reading from of a script and then ad-libs portions of

it. The information read off of the script is libel while courts are uncertain how to treat the ad-libbed portion.

3. Special harm is a harm of a pecuniary nature (money). It does not include emotional harm but those damages can be tacked onto pecuniary harm if necessary. a. In slander it must be proven.

4. Slander per se a. That the plaintiff engaged in some criminal activity. b. That the plaintiff suffers from some loathsome disease. c. That the plaintiff is unfit to conduct business, trade, or profession. d. That the plaintiff has engaged in sexual misconduct.

5. Presumed damages are those damages that ordinarily flow from defamation, thereby precluding the necessity of the plaintiff proving actual harm. a. The plaintiff does not have a burden of proving it and still recover the amount of damages normally

recovered in such cases. b. The plaintiff must prove actual malice, that the defendant said it with the intent of harming the plaintiff

because the defendant knows the falsity of his statements. 6. a. That it was defamatory.

b. That it was published. c. That it must have a tendency to harm the reputation of the plaintiff.

7. No, just that those sort of statements have a tendency to harm one’s reputation. a. No, at least one person must reasonably interpret it as true. b. No, the plaintiff’s reputation need only be harmed by a respectable segment of the community. People’s

values differ greatly, so what might be reprehensible to one group might be acceptable to another. For example, one group might find it terrible that a person does not tithe (donate 10% of his income to the

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church) while another group may see no problem in that at all. Therefore, a lie about a person’s tithing would harm that person’s reputation with one group and not affect his reputation at all with another.

c. No, the plaintiff can show that someone reasonably interpreted the statement as applying to the plaintiff. For example, if the person refers to the female tort professor, but does not mention her by name in a defamatory matter, that is still actionable because the average person can figure out to whom the defendant was referring.

d. Yes, but it becomes more difficult the larger the group is. 8. The plaintiff must show that the statement is defamatory in accordance with at least one interpretation

that a reasonable person might make, and must also prove that at least one person interpreted it in a defamatory way.

9. A suggestion or intrinsic facts that suggest a defamatory meaning while not expressly stating that meaning. a. When extrinsic facts must be known to make the statement defamatory. Otherwise, the average person

receiving the statement would not find it defamatory. 10. No. A statement that is substantially true, even though it may not be literally true in all respects, is

considered true by the courts and therefore not a subject of defamation. 11. The plaintiff must prove that it is false if it involves a matter of “public interest” and if the defendant is a

media defendant. In private matters the plaintiff still has the burden. The defendant can use truth as a defense, however.

12. No, only living persons can be defamed, unless the defamatory words about the deceased also, by implication, defame a living person. In that case the living person may be able to recover. a. Yes, because they are considered an artificial person in the eyes of the law. They can recover if the

statement “tends to prejudge it in the course of its business or to deter others form dealing with it.” 13. The answer depends on who makes the statement. On one hand, everyone has an opinion and the person

who hears such information should take those statements with a grain of salt and recognize that it is just an opinion. On the other hand, if the person making the statement implies factual matters, the receiver of the information may not recognize it as an opinion. a. The defendant may be held responsible if the defendant’s statement implies that the defendant knows or

has factual information about the plaintiff that would justify rendering an opinion that may be considered a fact. If a doctor states that he thinks that the plaintiff is suffering from depression, while technically an opinion, this would probably be considered a fact because of the doctor’s special knowledge.

14. a. Whether the statement is objectively verifiable. If so it is a fact, if not, it’s an opinion. b. A statement implying undisclosed facts is more likely to be considered an opinion. c. The more precise the statement is the more likely it will be considered a fact. d. Statements based on implied knowledge of certain facts will most likely be a fact even if the defendant

uses the words, “I think.” 15. Relaying the message to a third party, someone other than the plaintiff.

a. No it may merely be negligent. b. No, that is not publication. The courts will look at the actions of the defendant and not that of a third

party to determine if the defendant published the statement. c. Yes, otherwise if they did not understand it, they would not think less of the plaintiff. I cannot defame

someone by speaking in Japanese to a room of people who only speak English. Likewise, I cannot publish a defamatory statement to a two-week-old baby because he will not be able to understand my statement.

d. Yes. The person that repeats the statement is just as liable as the one who said it originally. e. No, just the mere restatement of the falsity would add to the harm of the plaintiff’s reputation. f. Under this rule, the entire publication is treated as one publication. Thus, if a retailer sells hundreds of

editions of the same book containing the falsity, a defamation suit can only be brought once. 16. This case held that a plaintiff who is a public official can only recover if she can show the defendant

possessed actual malice or, in other words, that the defendant knew the falsity of his statements. a. Actual malice is someone who knows of the falsity of his statements or acted with reckless disregard. In

other words, the defendant had serious doubts as to the truth of his statements. b. Public officials and now so do public figures.

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17. One intentionally holds himself in the public’s limelight and has achieved pervasive fame or notoriety by doing so.

18. Because these people make their living from the notoriety they receive and benefit from such publicity. Therefore, the public person must take the good with the bad. They “usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.”

19. No. The plaintiff must at least prove that they acted negligently in misstating facts. 20. Pecuniary and nonpecuniary damages. In matters of private concern, punitive damages may be allowed.

a. Yes, but only in matters of private concern or when dealing with a public figure with matters of private concern when the plaintiff can prove that the defendant acted with actual malice.

b. Under common law, damages were presumed in cases of libel and slander per se. Recently, however, courts have imposed limitations on that presumption and require that the plaintiff prove that the defendant acted with malice unless it is a matter of only private concern.

c. To make a record that clears his name. 21. This bars the plaintiff from recovery if a defendant retracts a defamatory statement within a certain period

of time. This is done in an attempt to lessen the number of defamation lawsuits. a. This act requires the plaintiff to request a retraction within 90 days after learning of the publication and

then limits recovery to economic losses only, excluding emotional damages, if the defendant does indeed retract or correct the statement. Therefore, the media can act with reckless disregard and still protect itself from the noneconomic damages as long as it prints a retraction. In many instances, the damage is already done. This statute also puts the initial burden on the plaintiff to request the retraction. If he does not request the retraction within the timeframe, he is essentially barred from recover. (1) It gives them an avenue to request a retraction and therefore affords them a public correction even

when they are unable to prove actual malice. 22. A privilege that applies regardless of the actor’s motives is an absolute privilege. A qualified privilege applies

only when the defendant acts on the basis of certain well-defined purposes. 23. a. Judges, lawyers, parties, and witnesses during a judicial proceeding

b. Legislators acting in furtherance of legislative functions c. Witnesses testifying before the legislature d. Federal officials, governors, and high-ranking state officials acting in their official capacity e. Husband-wife communications

24. Yes, except if the defamation originates from a third person and is relayed from one spouse to another, the repetition will still be considered a publication and the third person will still be liable for the privileged repetition of his defamatory statement.

25. a. Reports of public proceedings. b. Statements made to someone with capacity to act in the public interest; for example, a person making an

accusation to a prosecutor about another’s alleged criminal activity enjoys a qualified privilege and will not be actionable unless that person acted with reckless disregard.

c. Statements made to protect one’s own interests as long as not for the purpose of obtaining a competitive advantage; for example, a person who thinks that someone stole his property and tells the police about it would be immune from suit even if it was not true.

26. No, unless the statement was made for the protection of the recipient if the defendant’s statement would be considered “within the generally accepted standard of decent conduct.”

27. Yes, if the statement was made for the protection of the recipient if the defendant’s statement would be considered “within the generally accepted standard of decent conduct.”

28. Yes. If the defendant acted with reckless disregard to the falsity of the statement, the defendant will lose his qualified immunity.

29. Warren and Brandeis authored a Harvard Law Review article that proposed creating a new tort that protected an individual’s right to be free from a particularly invasive press. While originally not compensable, now virtually all states have a tort of invasion of privacy because they believe that while something may be true, the average person has a right to protect certain private information.

30. a. Unreasonable intrusion b. Appropriation c. False light

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d. Public disclosure of a private fact 31. When the value of the plaintiff’s name is used by the defendant for financial gain.

a. The unauthorized use of an actress’s picture for advertising. 32. Unreasonable intrusion is when a defendant unreasonably intrudes upon the seclusion of another in a

manner that is considered “highly offensive to a reasonable person.” a. Secretly videotaping a woman going to the bathroom.

33. Publicizing the details of a person’s private life. a. Showing the secretly made video of the woman going to the bathroom to another person. b. Not if it is a matter of public record and a matter of legitimate public concern.

34. When a defendant represents the plaintiff to the public in a manner that would be highly offensive to a reasonable person. a. The difference allows for recovery for offensive publicity, depicting them as pathetic or immoral,

whereas defamation allows for recovery when publicity depicts them as immoral or dishonest. In addition, for defamation, the plaintiff must prove that the defendant acted with reckless disregard to the truthfulness of the statements, whereas with false light, the plaintiff need only show that the portrayal of the plaintiff would be considered “highly offensive to a reasonable person.”

35. Injurious falsehood protects plaintiffs against false statements made against their business, product, or property rights. a. (1) Trade libel—disparaging a business falsely

(2) Slander of title—disparagement of the property rights of a plaintiff 36. The plaintiff must show that the defendant made a false statement clearly referring to the plaintiff’s goods

or business and disparaging those goods or business. a. It is different than defamation in that the false statement need not ridicule or disgrace the plaintiff.

Similar to defamation, however, the plaintiff must show the statement was published and that he suffered some kind of pecuniary harm. In both, the defendant must know or act with reckless disregard for the truth or falsity of the statement. Both allow the same defenses and both allow the defendant to “puff” to engage in fair competition.

37. If a defendant interferes with the plaintiff’s right to hold or to dispose of property by filing a false document, such as a mortgage or levy of execution, he commits slander of title.

ANSWERS TO REVIEW QUESTIONS 1. While both are forms of defamation, each has different requirements to recover damages. If a plaintiff

alleges libel, there is no need to prove special harm, and damages will be presumed if actual malice is shown in a matter of public concern or that matter is a private concern even if no malice is shown.

If the plaintiff alleges slander, the plaintiff must prove special harm unless there is slander per se and there are no presumed damages.

2. A person alleging defamation must prove that the statement must have a tendency to harm the reputation of the plaintiff; that the statement is false; that at least one person reasonably interpreted the statement to be defamatory; that, in most cases, the statement was a statement of fact rather than opinion; and that the statement was relayed to a third person, and if the person was a public figure, that the defendant had actual malice.

3. If a private individual brings a suit for defamation he has a much lower burden to prove the allegation just that the statement was false and it harmed the plaintiff‘s good character. Public figures must show that the defendant had actual malice in addition to the other elements. And, in some cases of libel, damages will be presumed if the matter is of private concern and not a matter of legitimate public interest.

4. Some people may be able to claim either absolute immunity or qualified immunity. Basically, courts recognize that some people, in their official capacity, must have absolute immunity in order for them to function completely in their position. People such as judges, lawyers parties to a case and witnesses in judicial proceedings, legislators acting in their legislative capacity, witnesses testifying before legislature, federal officials, governors and high-ranking state officials acting in their official capacity, and husband-wife communications all have absolute immunity. This means that they cannot be sued unless, of course, they act outside their official capacity or outside the course and furtherance of the defendant’s job. Others have a qualified immunity that applies only when the defendant acts on the basis of certain well-defined purposes, such as those who make reports of public proceedings or statements made to someone with

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capacity to act in the public interest (as in a prosecutor), or statements made to protect one’s own interests as long as not for the purpose of obtaining a competitive advantage. This immunity can be lost if it is abused.

5. The four types of invasion of privacy include the torts of appropriation, unreasonable intrusion, public disclosure of private facts, and false lights. In appropriation, the defendant uses the value of the plaintiff’s name or picture or likeness for a financial gain. Unreasonable intrusion is when the defendant intentionally intrudes upon the seclusion of the plaintiff in ways that would be highly offensive to a reasonably person. Public disclosure of a private fact is when a defendant publicizes details of the plaintiff’s private life that would be highly offensive to the reasonable person. False light is when the defendant puts the plaintiff before the public in a false light that would be highly offensive to a reasonable person. All of these torts protect a person from an unreasonable invasion into his private life, but each has very distinct elements as stated above.

ANSWERS TO PUTTING IT INTO PRACTICE The teacher may be successful in bringing a cause of action for defamation under either libel or slander. To prove either of these, the teacher will have to show certain elements. For slander, the teacher will have to prove that when the assistant principal “told” her peers and others about what he observed in class that it was a lie about a material fact that harmed her good reputation. First, the teacher will have to prove that he lied. This will be difficult to prove. Second, it must be considered a fact and not merely an opinion. If he opines about her ability to do a job, since it cannot be objectively determined, the courts may rule that it is just merely an opinion and should be taken as such. However, the fact that he was the assistant principal and in the position to evaluate the conduct of the teacher, means that the courts will most likely determine that while his evaluation is actually only an opinion, it will be treated as a fact because he has specialized knowledge in that area. Finally, the teacher will have to show that it harmed her good character. Again, the court will look at whether this one evaluation was the reason that she was terminated or if she had a long history of poor evaluations and work performance appraisals. In other words, was it this one evaluation that caused her to be fired? Since the evaluations, assumedly, commented on her ability to conduct her business relations, the courts will most likely interpret this to be slander per se and therefore there will be no need to show any special harm. There are many variables here that will need to be explored more completely in order to fully evaluate the strength of her claim.

For libel, the elements are essentially the same, in that the teacher will have to prove that the assistant principal published (he wrote a letter to the school board) a lie about the teacher to a third party (the school board) and that the statement has a tendency to harm the teacher’s good character. The exact wording of the letter would be imperative to ascertain whether or not he did indeed harm her good character. Again, the teacher would also have to prove that his statement would be considered a fact rather than just merely an opinion. The analysis provided above would apply for libel as well. Damages will be presumed if all the other elements are shown.

118 2009 Delmar, Cengage Learning. All Rights Reserved

CHAPTER

14 Vicarious Liability

ANSWERS TO OVERVIEW QUESTIONS 1. When an individual is held liable for the tortious acts of another, because these acts are imputed upon that

individual due to the special relationship that he holds with the tortfeasor. 2. a. Employer—employee

b. Employers—independent contractors c. Members of a joint enterprise

3. Respondeat superior literally means, “let the person higher up answer” where the employer is liable for the acts of the employee. a. Employers should consider the expense of reimbursing those injured by their employees as part of the

cost of doing business. The employer is also more able to bear the burden than the employee. b. The employer is more able to bear the burden and is considered the “deep pocket.” Or, in other words,

the plaintiff will be able to recover more damages from the employer than the employee. c. When the employee is acting “within the scope and furtherance of his employment.” This includes

decisions that are foolish or where the intent is both to help the employer and to satisfy personal needs. Just like in workers’ compensation, however, traveling to and from work is generally not within the scope of employment.

d. Yes, as long as the tort is reasonably connected to the employee’s job. For example, an overzealous security guard commits a false imprisonment when he unlawfully detains a shopper. The employer will not be held liable if the employee’s acts are driven by some purely personal motive, such as vengeance. For example, an employee batters a customer because the customer called him rude names. The employer would not be liable.

e. No, generally not. f. No, as long as that employee stayed on the frolic and detour. However, once the employee gets back on

track and is working for the benefit of the employer again, the employer would resume the role of respondeat superior.

g. Under the traditional view, while on a frolic and detour, the employer would not be responsible for any tortious acts the employee might commit. Recently however, courts have modified that rule to make the employer liable if that frolic and detour would be reasonably foreseeable and the time and distance of the frolic in detour were slight.

h. Yes, as long as the acts are done within the scope and furtherance of employment. For example, an employer may instruct an employee to never touch a store patron. However, an overzealous employee who disobeys the boss’s orders and wrestles a suspected shoplifter to the ground to prevent him from leaving the store will still be held liable.

i. The answer depends on whether the employer gave the employee authorization to delegate a task or whether the employer knew and should not have known anything about it. In both situations, the issue of liability revolves around the reasonableness of the employer’s actions in maintaining a well-trained competent work force.

4. Generally no, however, exceptions exist that might make an employer liable for the actions of the independent contractor because the independent contractor is acting more like an employee. a. An independent contractor is considered his own boss, able to control how and when a job is done, and

is not beholden to the employer. An employee is someone who works under the control and direction of

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2009 Delmar, Cengage Learning. All Rights Reserved

the employer; that person has less or no say in how and when a job is completed but rather must obtain directions or authority from the employer.

b. (1) The amount of control exercised by the employer over the person’s work (2) The nature of the person’s work (3) The length of employment (4) The method of payment

c. No. Courts will look at the quality and nature of the person’s work contacts with the employer rather than the title given to the worker. To do otherwise would allow many employers to escape liability of the work of the employees simply by classifying them as an independent contractor.

5. a. Nondelegable duties are duties that are so important that they cannot be delegated to another person. b. Employer is negligent in dealing with independent contractors. c. An employer hires an independent contractor to conduct an activity involving unusual risks that are

recognizable in advance. d. Employer contracts for the performance of an illegal act. e. Physicians are liable for negligent acts of those under their control. While this has been abolished or

limited in some states, a doctor would still be held liable for the actions of a nurse in the operating room even though the nurse did not work for the doctor. Basically, courts view a doctor’s role in an operating room to be that of a supervisor and, therefore, it is his responsibility to make sure that others act reasonably.

6. One who entrusts work to an independent contractor, but who retains control over any part of the work, will be held liable for physical harm to others whose safety the employer owes a duty of care. For example, an employer hires a cleaning company to clean the office and leaves all of the cleaning supplies that he wants the independent contractor to use. The independent contractor uses those supplies but accidentally, or negligently, dumps some of the cleaning solution on the plaintiff, causing skin damage. Since the employer held onto control of the way the job was completed, the employer will be responsible for the independent contractor’s actions. a. The control must go beyond control of the premises to control of the manner in which the work is

performed. b. A possessor of land who hires an independent contractor to work on the property is subject to same

liability as if he had done the work himself if he retained possession of the property while the work was being committed or resumed possession after the work was completed. Therefore, this section sets forth a nondelegable duty of employers to business invitees. Thus, if a business remains open while the premises are being worked on, the employer will still be held liable mainly because in doing so the employer did not use reasonable care in protecting the customers, as the business should have shut down.

7. The physician was still liable for the actions of independent contractors because they were in charge of their actions. a. The impetus behind this doctrine lay in the court’s attempt to get around the charitable immunity

doctrine and find a solvent defendant. In other words, historically, if the doctor could have delegated the duty the doctor would be immune from liability and the hospital staff would also be immune from suit as a charitable organization. This would leave the plaintiff without a defendant to compensate him for damages sustained during treatment.

b. Since the charitable immunity doctrine has been almost entirely abolished or limited in most states, so has this exception to the nonliability rule.

8. A bailor is a person who has ownership rights over personal property but gives possession to another person. A bailee is the person who receives possession of personal property but not ownership. For example, your neighbor (the bailor) lets you (the bailee) borrow his lawnmower. You have possession of the lawnmower but have no ownership interest in that you must eventually return the mower to the neighbor. a. No, unless the bailor is negligent in entrusting his property to a person that he knows or reasonably

should know is likely to endanger others. For example, the bailor lets a drunk friend shoot his gun. b. If the bailor is negligent in entrusting his property to a person that he knows or reasonably should know

is likely to endanger others he will be held vicariously liable. For example, the bailor lets a drunk friend shoot his gun.

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c. Practically speaking, owners of cars must maintain insurance on their cars and therefore are generally more able to bear the plaintiff’s damages than a bailee because they would carry no insurance.

d. The owner is vicariously liable for the acts of the driver. (1) No. Some make this a rebuttable presumption and others treat the nondriving owner as if she were a

guest in her own car. (2) No, because the owner is not present and therefore has no ability to control the driver’s actions.

9. A doctrine that makes the owner of a car liable for the tortious acts of family members while driving. a. Courts have created this doctrine to get around the nonliability of owners when they are not present if

that person is a family member. To support this doctrine, the courts presume that the driver, a family member, is carrying out a family purpose, a favor for the family, thereby making the head of the family, the most financially able, liable.

b. Yes, as long as the driver has the owner, family member’s permission to use the car. c. It is not as prominent today as over half the states do not follow it and those that do have littered it with

exceptions. d. Oftentimes, a minor driver will be allowed to drive only a certain car and the parents will maintain only

the minimum insurance required by law. This insurance will not offer adequate compensation to the severely injured plaintiff. Therefore, the plaintiff will try to use this doctrine to recover from the parents’ insurance as it most likely is more substantial.

10. Legislators who were unhappy with the nonliability of bailors adopted these types of statutes to make the owner of a car liable for negligent acts committed by anyone using the car with the owner’s permission. a. The owner of a car will be liable for negligent acts committed by anyone using the car with the owner’s

permission. b. No because the bailee exceeded the bounds of consent unless the deviation is a minor one. c. The courts are divided on this issue. However, even in courts that do make the bailor liable, they will

most likely still be immune from suit if the bailee was not in the car when the accident occurred. d. It is contained in most auto insurance policies and has substantially reduced the need of auto consent

statutes because it extends insurance coverage not only to the owner of the car but also to members of the owner’s household and anyone using the auto with the insured’s permission as long as the driver’s action fell within the scope of permission by the owner.

11. a. Express or implied agreement among members of a group; b. A common purpose or goal to be carried out by the group; c. A common economic interest in the purpose or goal; and d. An equal right of each member to control the direction of the enterprise.

12. Because it involves no sharing of pecuniary interests. Merely sharing expenses is not enough. Additionally, the guest in a car usually has no control over the driver’s actions.

13. All joint venturers are vicariously liable for the negligent acts of other joint venturers. Negligence is imputed on all of the joint venturers. a. Automobile cases when the plaintiff wishes to attack a deeper pocket of a passenger, versus the driver,

who is in a joint venture with the driver. b. The passenger would be treated as if he were in a joint venture and, therefore, the passenger would be

held liable for the driver’s actions or in the alternative barred from recovery from the driver. 14. Negligence is charged to or attributed to another person. Under the modern view, contributory negligence

is imputed only if the relationship is such that the plaintiff would be vicariously liable if she were the defendant. Contributory negligence cannot be imputed unless negligence can also be imputed. a. Most states do not follow this rule for spouses because of the consequence that it would bar a plaintiff

from recovery simply because of the actions of a spouse. This result is drastic and often unfair. b. Under the modern view, contributory negligence is imputed only if the relationship is such that the

plaintiff would be vicariously liable if she were the defendant. Contributory negligence cannot be imputed unless negligence can also be imputed.

c. For example, an employer bears the responsibility of the employees. Therefore, if the employer of a driver was imputed with the driver’s negligent acts that injured another driver, the employer will be unable to sue the other driver.

d. Because the passenger basically has no control over the driver’s actions.

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e. They are allowed in derivative claims such as wrongful death and loss of consortium because the claim is derived from and dependent upon another person’s injury. And, if the person injured was contributorily negligent, the person bringing the derivative lawsuit must bear that burden of the contributory negligence caused by the injured person.

15. To curb juvenile delinquency. Courts recognize that the person most responsible for making sure a minor child act appropriately is the parent. Therefore, if the parent is unable to control the minor child’s intentional actions, the parent should also be held responsible. a. They must be intentional torts if the parent encourages the commission of a tortious act or benefits from

it. Parents will also be held responsible for a parent’s negligent entrustment of a dangerous object to a child or for a parent who fails to protect others from dangerous tendencies of the child. For example, a parent will be held liable if he allows his child to play with a loaded gun.

ANSWERS TO REVIEW QUESTIONS 1. The employer is liable for the acts of the employee when the employee is acting within the scope of

employment or for the benefit of the employer. The main issue is whether the employee is working for the benefit of the employer and the tort is reasonably connected to employee’s job. The employer will be liable for the negligence of the employee as well as any intentional torts even if the employer explicitly instructs the employee not to do something as long as it is reasonably connected to the job. And while many jurisdictions do not hold an employer liable for an employee’s frolic and detour, many courts do limit this by stating that an employer will be held liable if the frolic and detour was reasonably foreseeable. Finally, even if the employee delegates his job to a third party without the employer consent, that employer could still be held liable due to not supervising the employee’s selection of person to whom to delegate a job. Therefore, if the employee is negligent in delegating a duty to an individual that lacks the skills necessary to do a job, the employer can still be held liable for the employee’s negligence in delegating a duty.

2. Usually, an employer is not liable for the acts of an independent contractor. However, there are exceptions to this rule. First, just because an employer classifies someone as an independent contractor does not automatically absolve the employer from liability. If someone is classified as an independent contractor, but the employer retains control over the manner in which the job is completed, the method of payment and is the main employer of the independent contractor, the courts will most likely classify that worker as an employee.

Additional exceptions exist. An employer who is negligent in dealing with an independent contractor can be found liable, as can an employer who contracts for the performance of an illegal activity. In other instances, the employer will retain liability because certain duties cannot be delegated and therefore an employer will not be able to hire an independent contractor to avoid liability. These duties that cannot be delegated include duties that are so important that they cannot be delegated to another person or when an employer hires an independent contractor to conduct an activity involving unusual risks that are recognizable in advance. Physicians are liable for negligent acts of those under their control. While this has been abolished or limited in some states, a doctor would still be held liable for the actions of a nurse in the operating room even though the nurse did not work for the doctor. Basically courts view a doctor’s role in an operating room to be that of a supervisor and, therefore, it is his responsibility to make sure that others act reasonably.

One who entrusts work to an independent contractor, but retains control over any part of the work, will be held liable for physical harm to others whose safety the employer owes a duty of care. For example, an employer hires a cleaning company to clean the office and leaves all of the cleaning supplies that he wants the independent contractor to use. The independent contractor uses those supplies but accidentally, or negligently, dumps some of the cleaning solution on the plaintiff, causing skin damage. Since the employer held onto control of the way the job was completed, the employer will be responsible for the independent contractor’s actions.

Finally, an employer who is the possessor of land who hires an independent contractor to work on the property is subject to same liability as if he had done the work himself if he retained possession of the property while the work was being committed or resumed possession after the work was completed. Therefore, this section sets forth a nondelegable duty of employers to business invitees. Thus, if a business remains open while the premises are being worked on by an independent contractor, the employer will still be held liable mainly because in doing so the employer did not use reasonable care in protecting the customers, as the business should have shut down.

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3. Parents may be held liable for the actions of their children in a couple of ways. First, under the family-purpose doctrine, a parent can be held liable for his child who is driving with the parent’s permission. Some states have also enacted statutes that hold parents liable for the tortious acts of their children, but they must be intentional. Another avenue to hold parents, while rare, is negligent supervision. Parents can be sued for failure to control and to guide their children’s activities and to maintain a reasonable amount of necessary to ensure that the child will not commit any tortious or criminal acts. Yet other jurisdictions have made parents responsible for specific acts of their children such as making fake bomb threats, or when children use firearms to commit crimes. A parent who negligently entrusts a dangerous object, such as a gun, will be held liable for negligent entrustment. Finally, if a parent encourages or receives a benefit from a child committing a crime, the parent can be held liable.

4. The majority rule states that bailors are not liable for the acts of the bailees unless the bailors negligently entrust control of their property to a person they know or reasonably should know is likely to endanger others. Additionally, in relationship to allowing someone to borrow a car, the bailor will be presumed to be liable if he is a passenger in the car. The family-purpose doctrine extends liability to a family member bailor even when the bailor is not present in the car as long as the family member bailee has the bailor’s permission. And many states have passed automobile consent statutes where an owner of a car will be vicariously liable for the negligent acts committed by anyone using the car with the owner’s permission as long as that bailee does not exceed the scope of the owner’s consent.

5. Negligence may be imputed to the employer for the acts of a negligent employee acting within the scope of employment. However, an example when negligence would not be imputed is when a passenger of a car wants to sue the driver of another car who collided with the driver of the passenger’s car. The difference between the two scenarios is that in the case of the employer, the employer has a duty to control and oversee the actions of the employee, whereas a passenger has virtually no control over the actions of the driver.

ANSWERS TO PUTTING IT INTO PRACTICE Yes, the person will be able to sue the employer under the theory of respondeat superior because you, the coworker, and the employer are in a special relationship. The person injured will have to prove that the employee/coworker was at fault for the accident and that the employee was acting within the scope and in the course of employment even if the employer specifically prohibits you and the coworker from engaging in the activity. If you and the coworker were engaged in a frolic and detour, the employer will not be responsible if the frolic and detour was not foreseeable.

Additionally, if the state in which you work has automobile consent statutes, the employer can be held liable as a bailor because under these statutes, the owner will be held responsible for the negligent acts committed by anyone he allows to drive his car.

Most likely, you would not be able to recover damages from the driver of the car but would be eligible to receive workers’ compensation as long as your activities were within the scope of employment.

The driver of the other car may be able to recover from you personally if it can be shown that your car is at fault for the accident and that you and the coworker were in a joint venture and not merely a social trip.

009 Delmar, Cengage Learning. All Rights Reserved 123

CHAPTER

15 Joint Liability

ANSWERS TO OVERVIEW QUESTIONS 1. Joint tortfeasors are those who act together to cause the plaintiff’s injury. 2. This means that the defendants who are joint tortfeasors are both totally liable for the entire loss suffered

by the plaintiff if that loss is indivisible in that the loss cannot be apportioned to the defendants. A percentage of fault cannot be assigned to each defendant. a. When two or more tortfeasors’ actions combine to cause the plaintiff’s injuries, but they each act

independently. For example, two drivers hit the same pedestrian. Both were driving separately, however, they both caused the plaintiff’s injuries. (1) Yes, because it still results in an indivisible injury to the plaintiff.

b. The plaintiff can recover from one or all of the joint tortfeasors, but she can only recover the total amount of damages once. For example, if the amount of damages is $50,000 and there are five joint tortfeasors, the plaintiff can recover $50,000 from one defendant or $10,000 from each defendant but cannot recover more than the total amount of damages of $50,000.

c. Yes. d. Yes, because the burden should not be on the innocent victim. e. Yes, if the plaintiff dies because of joint tortfeasors’ actions, each defendant will be held responsible for

the death because death is not apportionable. f. Yes, because the damage is considered indivisible and nonapportionable.

3. If one of the defendants directly causes the plaintiff’s injuries, but other defendants act in concert, the courts will still hold them all liable because the tortious acts of one lead to the harm suffered by the plaintiff.

4. Yes, because it can lead to unfair results when one entity was only a minor actor as a joint tortfeasor but is held liable for all of the damage because it was a “deep pocket.”

5. The question is, where does society want to assign the burden when one of the joint tortfeasors cannot pay? Should the plaintiff bear the burden, or should a more able defendant? Some feel that it is only fair to assign the burden of paying damages to those who can pay or are better able to bear the burden rather than having the plaintiff bear the burden because not all defendants are able to pay for damages. For example, say there are three tortfeasors. One is large business, one is an employee of the business, and one is a ninety-year-old shopper supported only by Social Security who caused the plaintiff’s injuries. The business played only a minor role in causing the plaintiff’s injury. However, the other two tortfeasors have very limited financial resources. If the plaintiff’s damages were divided among the three, only the business may be able to pay the damages. Therefore, without the joint and several liability, the innocent plaintiff would only be compensated for one-third of the actual damages because the other two defendants would be unable to pay. This is not fair to the person innocently injured. a. Some say that defendants should not be required to bear the burden for harm caused by others. Some

say that it hurts industry because it causes the plaintiff to only sue deep pockets, and that is usually industry. Industry passes on these costs to society by increasing prices. Thus, this encourages plaintiffs to search out the wealthiest plaintiffs and make them scapegoats. Finally, those who are only marginally involved could be forced to pay for those who played a more substantial role simply due to their ability to pay.

6. The plaintiff is only entitled to one satisfaction of a judgment. In other words, the plaintiff cannot recover more than the amount of damages when there are multiple defendants paying damages.

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7. The defendant who paid damages to the plaintiff can seek reimbursement from other joint tortfeasors for their share in the damages. a. No. It denied it to intentional joint tortfeasors and eventually denied it to all joint tortfeasors. b. Today, courts allow it but have limited it usually to negligent tortfeasors and denied it to intentional

tortfeasors. (1) No.

c. One tortfeasor should not be saddled with all the damages while others are allowed to escape liability simply because they were not named in the suit.

d. Some states require each defendant to pay an equal share. In states that have adopted comparative negligence, the damages are generally divided in proportion to each defendant’s contribution to the plaintiff’s harm. Therefore, if the jury decides that the defendant was 30% at fault, but pays the entire judgment, the plaintiff will be able to collect the other 70% from the other joint tortfeasors.

e. Contribution depends on joint liability. In other words, if a defendant has some defense that would bar the plaintiff from recovering from him, then the other defendants cannot recover from him either. (1) No, because if the plaintiff is barred from recovering from the defendant due to a defense, then it is

logical that so would the other defendants. 8. A release is a document absolving a defendant of all liability.

a. Releasing one joint tortfeasor released all of them. (1) Instead of a release, the plaintiff would sign a covenant not to sue where the plaintiff promised not

to sue one of the joint tortfeasors; however, this would not release the others from liability. b. The majority state that in a release, all joint tortfeasors are released if the release is silent regarding their

continuing liability. c. The plaintiff must include a specific provision in the release that states his intention to preserve his right

to sue the other defendants and therefore in no way release them. 9. A release is when a plaintiff surrenders her claim. In a covenant not to sue, the plaintiff does not surrender

her right to sue, but instead agrees that she will not sue on it. If the plaintiff sues the defendant later on, the defendant can countersue for breach of contract. a. Plaintiffs should be careful because they may not realize the extent of their injuries and the need for

future medical treatment. Therefore, the plaintiff would have to go through another litigation hurdle to get the release thrown out based on fraud or error. That is time-consuming, not easy, and results in additional cost to the plaintiff.

10. Since a defendant who settles a case for a release can still be subject to contribution by the other codefendant later on, this lessens the desire to settle in the first place. a. Yes. A defendant could still have to reimburse the other codefendants even if he was released by the

plaintiff. (1)This discourages settlement because they know they may still be subject to contribution later on.

b. (1) The nonreleased defendant cannot seek contribution, but the plaintiff’s claim is reduced on a pro rata basis.

(2) The nonreleased defendant cannot seek contribution and the plaintiff’s claim is unaffected by release as long as the parties negotiate in good faith.

c. (1) This discourages the plaintiff from settling. (2) This leads to additional litigation to determine if the parties acted in good faith, and this can be a

quagmire! 11. This is an agreement where a defendant or some of the defendants agree to guarantee the plaintiff a certain

amount of money if the plaintiff loses or recovers less than a stated amount in return for the plaintiff’s promise that he will refund part of the defendant’s payment in the event of a verdict against the defense in excess of a stated amount. a. The defendant is still a party and participant to the trial, and benefits by a larger size of the judgments

against other defendants. b. The more the other defendants pay, the less the party to the agreement will have to pay the plaintiff, or

may possibly even get reimbursed funds by the plaintiff. c. The Gallagher agreement is fully disclosed whereas the Mary Carter agreements are secret.

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d. Plaintiffs benefit because settling defendants will have an interest in the plaintiff’s sizeable recovery from other defendants, thereby lowering their liability. Therefore, the defendant is almost an ally to the plaintiff. Additionally, the plaintiff secures a guaranteed amount.

e. Settling defendants are better able to predict the maximum liability with the potential to reduce it. The costs associated with litigation is lessened because they no longer have to present an aggressive defense. If the settling defendant is able to attack the other defendants, he may not have to pay anything at all.

f. These agreements can skew the trial process and mislead juries by failing to disclose the allegiance and shared interests by the plaintiff and settling defendant, promote collusion among adversaries so that in essence they become allies against the nonsettling defendant, and create the likelihood that a less culpable defendant will be held liable for the full judgment.

g. With this rule, when a plaintiff executes a judgment against the “deep pocket” defendant, that defendant will be unable to limit his liability by seeking relief from the other joint tortfeasors. However, these agreements allow parties to get around the no-contribution rule.

12. When one tortfeasor accepts total financial responsibility for another tortfeasor. a. Oftentimes a general contractor will sign a contract with subcontractors. In other words, the general

contractor is the indemnitee and the subcontractor is the indemnitor. b. A contribution involves sharing liability because one defendant seeks to be reimbursed from another

tortfeasor, whereas an indemnification involves the shift of liability from one tortfeasor to another. c. Indemnification attempts to avoid unjust enrichment of tortfeasors in cases that involve vicarious

liability because the tortfeasor is not required to reimburse a tortfeasor who pays the claim, resulting in the discharge of both. For example, an employer pays a judgment incurred by one of its employees only because it is vicariously liable for the torts of the employee. The employer must be indemnified by the employee so that it could recover the full amount; the employee would be unjustly enriched by getting out of paying any damages.

d. If the retailer innocently fails to discover a defect in goods that he sells, he will be indemnified by the manufacturer because the retailer is an innocent party.

e. Because the sheriff is most likely following the directions of another and reasonably believes the directions to be lawful.

f. The doctor may indemnify a person who caused the plaintiff’s injuries and pays the total injuries that he caused may be indemnified by the doctor if the doctor aggravated the plaintiff’s injuries by negligent treatment.

g. Under this doctrine, the amount of indemnity is dependent on the relative fault tortfeasors. Therefore, a tortfeasor may be only partially indemnified for part of the total damages that she paid.

ANSWERS TO REVIEW QUESTIONS 1. A defendant may be jointly and severally liable when the defendant acts in concert with another person or

at the same time as another person, but independently, and produces an indivisible harm to the plaintiff. Therefore, one of the defendants can be held liable for all of the damages even if he was only a minor contributor to the tort.

2. The defendant is entitled to contribution, or reimbursement, from other tortfeasors when that defendant has paid more than his pro rata share.

3. When one defendant is released, all other tortfeasors are released as well. This can be a problem when someone without the representation of an attorney signs a release not realizing that it will release all of the other defendants, too. To get around this, courts do allow a plaintiff to explicitly state in the release of one defendant that is does not in any way release the other defendants. However, even if the release is silent as to the others’ continuing liability, they too will be released. Therefore, it is very important for a person to have an attorney present to explain the effect of a release as it seems a bit illogical in its effect.

4. A contribution involves sharing liability because one defendant seeks to be reimbursed from another tortfeasor, whereas an indemnification involves the shift of liability from one tortfeasor to another. An employer that is vicariously liable for the torts of its employee may be indemnified by that employee, in that is can recover the full amount of what it paid in damages.

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5. This is an agreement where a defendant or some of the defendants agree to guarantee the plaintiff a certain amount of money if the plaintiff loses or recovers less than a stated amount in return for the plaintiff’s promise that he will refund part of the defendant’s payment in the event of a verdict against the defense in excess of a stated amount.

Plaintiffs benefit because settling defendants will have an interest in the plaintiff’s sizeable recovery from other defendants, thereby lowering their liability. Therefore, the defendant is almost an ally to the plaintiff. Additionally, the plaintiff secures a guaranteed amount.

Settling defendants are better able to predict the maximum liability with the potential to reduce it. The costs associated with litigation are lessened because they no longer have to present an aggressive defense. If the settling defendant is able to attack the other defendants, he may not have to pay anything at all.

ANSWERS TO PUTTING IT INTO PRACTICE To reduce the amount of damages, the firm should recommend that the client, who is a joint tortfeasor, pursue several avenues. First, if any damages are awarded the client should look to the other tortfeasors for contribution. In other wordsmake them reimburse the client for the extra damages that he paid. The client may also seek to be released from the suit by the plaintiff so that he will not be a part of the suit. In the alternative, the client could enter into a covenant not to sue with the plaintiff in exchange for a settlement. The client could also, in some jurisdictions, enter into a Mary Carter or Gallagher agreement where he would enter into an agreement to guarantee the plaintiff a certain amount of money if the plaintiff loses or recovers less than a stated amount. In return, the plaintiff would agree to refund part of the client’s amount paid should the plaintiff recover more than the stated amount in the agreement. This can be risky, but can also potentially limit the amount.

2009 Delmar, Cengage Learning. All Rights Reserved 127

CHAPTER

16 Tort Reform

ANSWERS TO OVERVIEW QUESTIONS 1. a. Compensation of the victim.

b. Deter others from engaging in tortious activities or provide an incentive to act in a socially acceptable way by considering the consequences of their actions.

c. Spread the risk of injury and the costs associated with it among all members of society. d. Promoting justice by making the plaintiff whole again, or restoring him. e. Exposes corruption, incompetence, and misconduct.

2. a. Are the goals of the tort system viable? b. If they are, is the tort system as presently structured effectively achieving these goals?

3. An era after World War I where legal commentators were primarily concerned with plaintiffs being adequately compensated and looking for a less defendant-friendly court system as it currently was. During this time, the workers’ compensation and strict liability systems were developed. a. Medical costs rose sharply because more plaintiffs filed negligence claims, manufacturers’ liability

insurance rates increased, and insurance companies lost money because of high-risk insurance policies. Most people blamed these increases on the litigious nature of society.

b. They sought to repeal any rules that were not aimed at deterring potential tortfeasors from engaging in risky behavior, especially those harsh towards defendants.

c. A majority of states passed legislation that limited the potential medical malpractice liability. Many states eliminated joint and severally liability and imposed caps on noneconomic damages. Many states reenacted sovereign immunity, established a payment plan for settlements, penalized plaintiffs for frivolous lawsuits files, and mandated some forms of alternative dispute resolution.

4. a. The plaintiff’s position in the system. b. The litigious nature of society. c. The excessive jury verdicts. d. The inhibition of medical and business practices.

5. a. Strict liability in product liability cases shifts the burden of the costs of injuries to the manufacturers simply because they can bear the expense better than the plaintiff. Since plaintiffs are not required to prove a breach in the defendant’s duty or fault, this makes it much easier for the plaintiff to recover and has led to the increase of those types of cases being filed.

b. The relaxation of causation requirement has allowed plaintiffs who cannot prove who caused the injuries to attach blame to an entire group of people. Again, it takes away the burden from the plaintiff and shifts it to the defendant to prove that he is not the cause. These types of changes have made it much easier for a plaintiff to be successful in a case.

c. Comparative negligence has replaced contributory negligence in many states and has done away with its harsh treatment. In this system, a plaintiff will not be barred from recovery because she was partly the cause of her injuries. And in some states, she can be even 90% to blame and still recover the 10% balance from defendants. Again, this increases the plaintiff’s chance of recovery.

d. Abolishing the privity requirement has opened the doors for many potential plaintiffs as courts have lessened the requirements to be a plaintiff.

6. Studies have shown that Americans use the court system per capita at about the same rate as other countries. Much research has shown that fewer than one in ten people who were injured in an accident

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sought compensation from the other party to the accident. The rate of increase of filings has risen, but at the same rate as population, generally, and in some years the rate of filings has even decreased. The rate of cases filed has also increased in the federal court system, but most of the cases have sprung from the government and not the people. Therefore, all of these facts seem to indicate that Americans are no more litigious today than they were many years ago.

7. It depends on the statistics you read, but most studies show that Americans are not any more litigious than other countries per capita.

8. Per capita they are substantially similar and seem to have increasing consistency with population growth. 9. It may mean that defendants are less willing to settle a case out of court or that the number of transactions

between people and businesses have increased. 10. Those citing the increase are not reliable sources because of the method of testing. The validity of their

statistics does not conform to the standard method of data sampling and interpretation. 11. Studies show that juries are hesitant in awarding large awards. Fewer than half of the cases that juries hear

award damages to the plaintiffs and when they do it is generally less than the actual damages to the plaintiff. The large awards that people read about in the newspapers are generally against businesses, and involve business litigation rather than tort claims. As a caveat to statistics, one must be aware that any statistic can be manipulated to show what the tester wants it to say.

12. Studies show the number of claims have dropped since the 1980s. Many of the injuries that patients do face go uncompensated as this area of the law has the lowest rate of recovery for the plaintiff. The fear of litigation has improved the safety of many products and has therefore benefited the consumer. Studies show that jurors tend to be generally more favorable toward business, more skeptical about the profit motives of individual plaintiffs than of the business defendants, and committed to holding down jury awards.

13. This average was computed by a less-than-reliable source, and on the basis of plaintiffs’ verdicts alone. If the statistic included all of the cases where the defendant was successful, the amount would be much lower. This average is based on a small sample of product liability verdicts which represents only a small portion of the product liability cases. The sampling only includes “important” verdicts and not the typical ones. “Important” means that there were high awards and thus the statistic is skewed.

14. Some studies show that those states that have adopted some sort of tort reform have seen an increase in employment and productivity.

15. Insurance premiums are sky-rocketing, coverage is increasingly harder to acquire, and the insurance industry appears to be losing money. Additionally, people’s perception of the legal system and those who work in it tend to be worse.

16. a. The perception is that society is overly litigious and therefore reformers want to decrease lawsuits. b. Since others believe that jury awards are excessive, reformers want to decrease unduly high damage

awards. 17. The provision of this bill called for punitive-damage limitations, reformation of product liability rules, and

the allowance of fee-shifting. Additionally, several bills precluded a plaintiff from recovering punitive damages unless the plaintiff could show by clear and convincing evidence that the defendant had acted with a conscious indifference to the plaintiff’s safety. Many bills eliminated joint and severally liability and limited damages for plaintiffs who misuse a product.

18. No, because they usually are actual damages and can be objectively ascertained. a. Yes because courts defer to across the board restrictions that promote fair and consistent awards.

19. Deterrence. a. Because some courts see them as a way to equalize “the playing field between the powerful and the

powerless.” Also the fear of punitive damages is an incentive to companies to make a safer product, and still serves as a deterrent to others from engaging in reprehensible tortious activities.

b. They state that the goals hoped for are not achieved and the caps instead lead to overly cautious manufacturers who fail to develop new and improved products for fear of litigation. They also state that it is an incentive to the plaintiff to bring suits with the hope that the fear of punitive damages will force the defendant to settle. Others say that it is a windfall for the plaintiff and thus an unfair benefit for the plaintiff and contrary to the goal in tort law of making a plaintiff whole. Finally, punitive damages increases the cost of doing business because insurance rates have sky-rocketed, especially in very vital areas such as in the medical arena.

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c. Some studies show that the use of punitive damages has changed relatively little since the 1960s. Others have concluded that the awards of punitive damages were neither excessive nor frequent as they were awarded in less than 4% of the cases overall and the amounts were relatively insignificant.

20. Some states have enacted caps on punitive damages to a certain amount or a certain number of times the compensatory damages. Some states created different levels of punitive damages. The more abhorrent the defendant’s action, the higher the possible punitive damages allowed. Some states have created specific defenses to damages, while other states have recommended that punitive damages be awarded to the state and not the plaintiff, thus eliminating the windfall.

21. It was not sufficiently related to the state’s legitimate interests in punishment and deterrence since the defendant was from another state. And while it does have a goal to deter its own citizens, it cannot impose its will on other states. Additionally, the courts determined that their actions were not egregious enough to award such a large amount; its actions were not sufficiently reprehensible; the ratio between the plaintiff’s compensatory damages and his punitive damages was 500:1 and that ratio was unreasonable; and the award exceeded the sanctions for comparable misconduct elsewhere. a. Both criticized the majority for setting up an ambiguous standard of “too big” awards that do not offer

any guidance to future courts. Additionally, they stated that the United States Supreme Court, as well as the federal government as a whole, was stepping into areas traditionally reserved to the state.

22. Even tort reforms have little effect on the overall effect on businesses. Studies have compared current jury verdict in states that have enacted reforms and older verdicts, and found that the resulting amount of damages that could be awarded remained the same.

23. Alternatives include requiring the plaintiff to relinquish punitive damages to the state and structuring the award around the magnitude of the plaintiff’s harm, the egregiousness of the defendant’s actions, the harm that some of the plaintiff’s actual costs will not be covered, and the chances that the defendant will escape liability. This structure would hopefully objectify an already capricious system of awarding damages.

24. It dispersed losses among defendants rather than plaintiffs and provided plaintiffs with full compensation for their injuries. a. It caused the “deep pocket” scenario where plaintiffs would seek out those who were most able to pay

rather than those who shared the greater share of the fault. Thus, a relatively minor actor could bear the entire judgment, not because he was the most to blame, but rather he was the most financially stable. This led to many unfair results.

25. a. The first objective is to hold the defendant liable only for his proportionate share of fault. b. The second objective is to compensate plaintiffs fully for their injuries.

26. Comparative negligence modified joint liability so that only defendant whose fault was relatively large in comparison to the plaintiff were jointly liable. a. A majority of states have either abolished or modified the joint and severally liable rule. b. Some suggest that if a plaintiff cannot recover from a defendant, the remaining plaintiff and defendants

should be held accountable for that uncollected share based on their individual fault percentage. 27. Under this rule, the admission of evidence of payments already received by the plaintiff is not allowed to

be introduced at trial. For example, if a plaintiff’s own medical insurance pays for her medical expenses, this cannot be introduced into evidence at trial. The reason is that the plaintiff spent her life paying for her medical insurance benefits and a tortfeasor should not be able to benefit from the plaintiff’s insurance and escape liability. a. Many states are passing laws to eliminate double recovery for the same injury because the plaintiff

should only be able to recover once for his injuries. 28. As reforms led to a more pro-plaintiff society, the number of frivolous lawsuits were filed, namely in an

attempt to get defendants to settle. a. They enacted laws to punish those who file frivolous lawsuits and to require the loser to pay litigation

costs, which include attorney’s fees. b. Fee-shifting rewards plaintiffs who are successful by reducing their litigation costs but does not penalize

plaintiffs who lose. It does nothing to discourage filing frivolous lawsuits because the plaintiff has nothing to lose.

29. He sees it as a predictable consequence to the philosophy that courts are in the business of setting precedent and thereby correct wrongs even if lawsuits increase. And since the goal of the system is to

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compensate victims, then as the demands of social justice increase, new causes of action must be created to keep pace with newly recognized wrongs. a. A common law system is self correcting and can change with the times and compensate for the changes

in society and its needs. It also has the ability to decide cases on a case-by-case basis as they are presented to the court. This cannot happen with a centralized system, such as statutes. It would be ludicrous to expect a body of legislators to create proactive legislation that addressed every factual nuance of life. Therefore, a centralized body of law is very static and unbending. Common law is more flexible.

b. It is evidence that common law reacts to society. After society has been deluged by news of runaway juries and awards, the pendulum is swinging in the other direction to compensate for the perceived inequity.

ANSWERS TO REVIEW QUESTIONS 1. The primary goals of the tort system are to compensate the victim, to deter others from engaging in

tortious activities or provide an incentive to act in a socially acceptable way by considering the consequences of their actions; to spread the risk of injury and the costs associated with it among all members of society; to promote justice by making the plaintiff whole again or restoring him; and to expose corruption, incompetence, and misconduct by members of society.

Historically, the courts system was very pro-defendant, but critics saw a problem with innocent victims not being able to be compensated for injuries sustained and thus they attempted to change the system to a more plaintiff-friendly system. First they enacted strict liability and relaxed causation requirements. This, in some eyes, started the litigation explosion in society. Therefore, some viewed this as the legal pendulum swinging to the other extreme to a plaintiff-friendly system. As a result, critics of that system passed laws that attempted to rectify the system and offer more protection to the defendants.

2. The primary objectives of tort reformers today are to curb damages and reduce the number of claims filed. To do this, law have been enacted which place caps on damages, abolish joint and severally liability, and punish those who file frivolous lawsuits.

3. a. Making a system easier for plaintiffs to bring a successful suit is an incentive, thereby creating an overly litigious society that would rather battle it out in the courtroom than to solve the problem informally. In contrast, some say the statistics just do not support this. The rate at which claims are filed has risen at the same pace that the population has risen, the per capita use of the court system is the same as other countries, and only a small percentage of those injured in a tortious event ever seek compensation.

b. To support that contention, the average product liability case award is $1,000,000.00. There are cases to illustrate the lack of common sense of juries, such as the McDonald’s coffee case, and the BMW car paint case. However, to negate that contention, critics state the average award was computed by a less than reliable source. The average was computed on the basis of plaintiffs’ verdicts alone. If the statistic included all of the cases where the defendant was successful, the amount would be much lower. This average is based on a small sample of product liability verdicts which represents only a small portion of the all the product liability cases. The sampling only includes “important” verdicts and not the typical one. “Important” means that there were high awards and thus the statistic is skewed.

c. One side contends that businesses are hurt because the cost of doing business is getting more expensive as businesses must deal with frivolous lawsuits and large jury verdicts. And in an effort to avoid litigation, doctors are practicing defensive medicine rather than the most effective medicine and businesses are reluctant to create new, improved, and innovative products. In addition, to compensate for the fear of litigation, insurance premiums have sky-rocketed and become harder to obtain. Thus, this hurts business. Others contend that litigation actually serves as an incentive to create better and safer products and for doctors to practice better medicine. Therefore, those who are more effective and better will flourish while the weak and ineffective will be driven out of business. This is good for our economy as it ensures the survival of the fittest.

4. a. Put caps on it or at least find an objective way to determine how much is a legitimate amount. b. To abolish it or limit it so it is fairer and does not promote the “deep pocket” scenario where plaintiffs

would seek out those who were most able to pay rather than those who shared the greater share of the fault.

c. Under this rule, the admission of evidence of payments already received by the plaintiff is not allowed to be introduced at trial. For example, if a plaintiff’s own medical insurance pays for her medical expenses,

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this cannot be introduced into evidence at trial. The reason is that the plaintiff spent her life paying for her medical insurance benefits and a tortfeasor should not be able to benefit from the plaintiff’s insurance and escape liability. However, many states are passing laws to eliminate double recovery for the same injury because the plaintiff should only be able to recover once for his injuries.

d. Laws have been enacted to punish those who file frivolous lawsuits and to require the loser to pay litigation costs, which include attorney’s fees.

5. Dr. Hasnas suggests that the litigation explosion should come as no surprise if the purpose of the tort system is to vindicate wrongs suffered by victims of torts. He suggests that we allow this system to self-correct through the natural evolutionary process rather than try to change the system artificially.

ANSWERS TO PUTTING IT INTO PRACTICE Drafting tort reform legislation to support the ultimate goal of satisfying those critical of the system should include the following provisions: Put a cap on punitive damages by allowing only a certain multiplier of the compensatory and consequential damages (for example three times the total compensatory and consequential damages awarded at trial). An exception could be made if the facts give rise to show that the defendant acted with an extreme disregard for human life. This would prevent the windfall criticism often levied by the critics.

Another proposed legislation would be to abolish any part of joint and several liability so that a minor defendant, who may be wealthy, will not be saddled with the bulk of the damages simply because he has a greater ability to pay. To do this, the courts could require juries to assign percentages of negligence between codefendants and then apportion damages according to these percentages. This may lead to the unintended negative consequence of leaving a victim without compensation for a valid claim.

Legislation could require mandatory mediation or arbitration in any cases that demand a threshold damages amount. This may encourage settlement and may also weed out any frivolous lawsuits before they get to a trial.

Legislation could also require that the attorney and plaintiff who file frivolous lawsuits face some punitive damages, or, in the alternative, be required to pay the other side’s attorney’s fees. This would be difficult to do and may have the opposite effect, causing people to not file claims for fear of litigation even when they do have a legitimate claim.

While these reforms are what I would recommend in tort reform, it is clear that the statistics relied upon by the critics are just that, statistics. And, statistics can be manipulated in many different ways to say what the critic wants them to say. Additionally, the critics’ complaint that it is a problem with the judicial branch may be inaccurate. It could very well be a problem with the insurance industry. However, these reforms would promote the two main objectives of the tort reformers: to reduce the number of claims filed and curb the damage amounts awarded.

132 © 2009 Delmar, Cengage Learning. All Rights Reserved

CHAPTER

17 Automobile Insurance

ANSWERS TO OVERVIEW QUESTIONS 1. a. There are a lot of automobile accidents.

b. Mandatory insurance requirements on automobiles in every state has increased the incentive for litigation.

2. No-fault insurance states require that the insured’s carrier pay for the insured’s damages regardless of who is at fault.

3. With split-limit coverage, each individual may recover a set amount of damages, with an aggregate amount available for damages independent of the total number of individuals injured. In other words, this sets a maximum amount that an individual can recover for damages. For example, a type of insurance may allow a maximum that an individual can recover at $15,000, with a total amount of recovery allowed if there is more than one plaintiff at $30,000. Therefore, if there are six plaintiffs, the sum of all their damages awarded cannot exceed the cap. a. A single-limit coverage is insurance coverage providing a single amount of recovery that is available for

damages. However, there is no individual maximum as in the split-limit coverage. 4. An umbrella policy is a secondary source of coverage after the deductible has been paid, usually

coordinated with the limits of the underlying policy to compensate the injured party for the actual damages that exceed the limited coverage. It makes up the difference. a. After the first or primary insurer pays the full limits of it coverage.

5. When an insurance carrier attempts to issue a policy with limits less than those required by statutes, the courts will reform the policy to provide minimum statutory coverage.

6. If an insurer pays its insured, the insurer is then able to bring suit, in the name of the insured person, against the person responsible for the insured’s injuries for the amount that it paid its insured person. In other words, the insurance company can seek reimbursement for the money it paid in the insured’s name against the party that was at fault. a. Uninsured motorists, collision, and comprehensive payments made by the insurer. b. The insured must cooperate fully with the insurance company and the insured will take no action that

would cause the insurer to lose any of its right to recover against the other party. 7. Medical payment coverage provides for reimbursement of all reasonable medical expenses incurred by an

insured while occupying a covered vehicle or when the insured, as a pedestrian, is struck by a different vehicle. a. The insurance of the automobile owner will be the first insurance to pay for the insured’s medical

expenses up to the limits of the owner’s medical payment coverage. b. The owner’s medical payment coverage will be the primary insurance.

(1) Then the person will be able to be compensated by his own medical coverage, or the secondary coverage.

c. Yes, usually that time frame ranges from one to three years after the accident. (1) Then the insurer is not responsible for payment.

d. Yes, in most situations, unless laws limiting that have been passed. (1) It precludes payment if other insurance is available.

e. Yes. They are usually fixed at a certain dollar amount and are intended to cover burial expenses as well as any medical expenses incurred by the deceased up to the date of death.

Automobile Insurance, 133


8. Comprehensive insurance coverage provides coverage for loss to the insured vehicle and in some cases, to a nonowned automobile for losses other than those resulting from the collision. a. Actual cash value is the purchase price less depreciation whereas replacement is simply the cost to replace

the item. b. Physical signs of forced entry. c. No, however if a car is being financed, the financer usually requires it.

9. It provides reimbursement for the cost to repair or replace the car no matter who is at fault. a. The insurance still pays for the insured’s damages.

10. Pay for towing of a disabled vehicle to the nearest station. a. Death, disability, and car rental. b. The insured needs to make sure that the premium for the risk to be covered is in proportion to the

premiums and risk covered in a regular disability or accidental death. In other words, make sure that you are getting enough coverage to justify paying the premium that you are paying.

11. Insurance that provides coverage only for injuries caused by an uninsured motorist. a. Yes, in most states. b. State statues set the minimum-coverage limits required for liability insurance coverage. c. An uninsured motorist is a motorist having no applicable automobile insurance policy for the vehicle

being driven or having an applicable policy with an insolvent insurance carrier. And, in some policies, hit-and-run drivers are treated as uninsured motorists.

d. The percentage of uninsured motorists is alarmingly high and because many UMs are incapable of paying any substantial award for damages, this type of insurance ensures that funds are available to compensate the injured insured.

e. Yes, in most states it is allowed to do that. f. An insurance company, for the most part, cannot attempt to offset monies paid under medical payment

policies against the amount otherwise due under a UM policy. 12. If the insured was driving a different car, the UM coverage will be coordinated with the coverage that

would otherwise be available on the vehicle—that would be the primary insurance. The secondary insurance would be the insurance attached to the policy covering the insured driver. a. After all limits of the primary coverage have been met, the secondary insurance steps in and covers the

excess up to the limits of the secondary. 13. Most policies will require the insurance carrier to be responsible for its pro rata share of the damages as

long as the insured is driving her own car. 14. UIM coverage applies to protect the insured who is injured by a motorist whose liability coverage is

insufficient to fully compensate the insured for his injuries. 15. The insured UM and UIM are added together to cover the same accident. In other words, the responsible

motorist is considered both UM and UIM for the same accident. a. No, most states prohibit this.

16. Most policies require arbitration for disputes arising out of medical payment, UM, or UIM coverage with respect to the amount of damages sustained by the insured. a. Both the insured and the carrier are usually required to select and pay for an arbiter of their choosing.

The two arbiters then select a third and the compensation is split between the insured and the insurer. b. Arbitration is not binding if the arbiters award an amount in excess of the statutory minimal limits for

bodily injury. (1) A trial de novo will occur and the arbiters’ findings and award will be inadmissible at trial.

17. a. At the request of the insurer. b. Due to the acts of the insurer, by not paying premiums, has his license suspended, or if the insured is

convicted of driving while intoxicated. 18. No. Insurance is terminated on the day that notice is given to the insured’s agent.

a. Some states will terminate your car registration on the date that you terminate your insurance. b. He must comply with the policy’s notification requirements as well as the terms and conditions upon

which termination is permitted in that state. c. Yes always.

(1) Usually at a specified time after payment becomes delinquent and notice is given to the insured. d. Not paying premiums, having a license suspended, or if the insured is convicted of driving while

intoxicated.

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19. It was in response to what some called a crisis in the insurance industry due to the increasing volume of tort claims for automobile accidents to allow for prompt payment to the injured insured for economic damages and in reduced automobile insurance premiums. a. Prompt payment to the injured insured for economic damages and reduced automobile insurance

premiums. 20. The injured insured gives up the right to sue in return for payment for the damages the injured insured

receives and these policies also promise lower premiums and prompt payment of claims. 21. More than twenty, but none are pure no-fault. 22. Yes, if they are inflicted with an automobile or while the other driver was intoxicated.

a. Yes, for injuries covered by other intoxicated drivers. b. Many states set limits above which the responsible party may be sued for damages in excess of those

limits. 23. Yes, but all states vary greatly in the amount of coverage required, or personal injury protection.

Additionally, separate limits may be set for various types of damages such as medical, lost wages, and rehabilitation. Other states require only the total amount of insurance coverage (the aggregate amount) to fulfill certain minimum requirements.

24. Because the threshold for suing in tort is so low that the no-fault benefits are merely an add-on cost for the typical tort suit that follows. This has also increased treatment expenses to exceed the threshold amount. In other words, the cost of medical treatment miraculously was always slightly above the threshold amount and if the threshold amount increased, so did the cost of medical treatment.

25. It closely parallels it because in both, rights to sue are relinquished; medical expenses are paid; and, after a prescribed waiting period, lost wages are paid for a preset percentage of the insured’s average weekly wage. a. It is different in that the amount of medical and rehabilitative costs that can be recovered are capped by

the amount of coverage purchased as is the amount of lost wages. In workers’ compensation there is no cap that is determined solely by the amount of insurance purchased, rather it is determined by statute.

26. Preventing uninsured motorists from suing for damages sustained or prohibiting uninsureds from suing for pain and suffering but to allow them to recover for economic losses.

27. It is fairly new and still has many problems associated with it that need to be worked out. There is no uniform system followed, therefore, it changes often and from jurisdiction to jurisdiction. Additionally, the goals for which it was originally established have not been met. a. Many state constitutions have provisions prohibiting interference with a citizen’s right to sue.

ANSWERS TO REVIEW QUESTIONS 1. Liability insurance covers losses caused by the insured while operating a motor vehicle. In other words, it

attaches to the person, the insured. Medical payment reimburses medical expenses incurred when injured in a vehicle covered by the policy. In other words, it attaches to the car. Comprehensive covers losses resulting from something other than a collision such as property theft. Collision reimburses for the repair or replacement of a damaged vehicle. Accessory covers additional costs such as emergency road service, car rental, and death and disability. Uninsured covers losses caused by uninsured motorists, and underinsured motorists covers losses caused by a motorist whose liability insurance is insufficient to cover the insured’s losses.

2. Coverage that is attached to the car is primary insurance and secondary insurance is the insurance that is attached to the person. The secondary insurance comes into play when the limits of the primary policy have been met and there are damages in excess of that.

3. An umbrella policy is a policy that provides a secondary source of coverage after the deductible has been paid, usually coordinated with the limits of the underlying policy. They become applicable as a secondary source of coverage when the full limits of the primary coverage are exceeded.

4. Subrogation rights are the right of an insurance company to institute suit in the name of the insured against the responsible party to collect for monies paid by the insurance company to the injured insured. The insurer can sue to get reimbursed; however, several states prohibit it with respect to UIM claims. The insured has an obligation to cooperate fully with the insurance company and not do anything that would cause the insurance company to lose the right to sue.

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5. Not paying premiums, having a license suspended by the insured or someone living with them, or if the insured is convicted of driving while intoxicated are all valid reasons for an insurance company to terminate coverage. However, the insurer must comply with notification requirements established within the policy.

6. Most policies require arbitration for disputes arising out of medical payment, UM, or UIM coverage with respect to the amount of damages sustained by the insured. Both the insured and the carrier are usually required to select and pay for an arbiter of their choosing. The two arbiters then select a third and the compensation is split between the insured and the insurer. Arbitration is not binding if the arbiters award an amount in excess of the statutory minimal limits for bodily injury. If either party contests the ruling, a trial de novo will occur and the arbiters’ findings and award will be inadmissible at trial. Without any contests, however, the decision of two of the arbiters is binding on the parties.

ANSWERS TO PUTTING IT INTO PRACTICE Again, as a paralegal, you should not offer anything that may be construed as legal advice because doing so would be considered unauthorized practice of the law and is a felony in some states. With that in mind, the information that the friend should have before going to a lawyer is exact information about her car and medical insurance coverage. If she was driving her mother’s car she should also have her mother’s insurance information.

Since the other party’s insurance will not cover the total costs of her injuries, the coverage that is attached to the car is primary insurance and secondary insurance is the insurance that is attached to the person. The secondary insurance comes into play when the limits of the primary policy have been met and there are damages in excess of that. Additional insurance reimbursement that she may be able to receive include liability insurance that covers losses caused by the insured while operating a motor vehicle. In other words, it attaches to the person, the insured. Medical payment reimburses medical expenses incurred when injured in a vehicle covered by the policy. In other words, it attaches to the car. Comprehensive covers losses resulting from something other than a collision such as property theft. Collision reimburses for the repair or replacement of a damaged vehicle. Accessory covers additional costs such as emergency road service, car rental, and death and disability. Underinsured motorists covers losses caused by a motorist whose liability insurance is insufficient to cover the insured’s losses. The attorney will want to be able to review the exact type of insurance coverage that you have in addition to that of the other car owner to determine what alternate sources of insurance might be used to secure your adequate compensation.

Her ability to recover will also depend upon if the accident occurred in a no fault state. Since the facts indicate that the other car driver’s insurance paid part of the expenses, that does not appear to be the situation here. However, if the state were a no-fault state, only her insurance would be at issue here.

136 © 2009 Delmar, Cengage Learning. All Rights Reserved

CHAPTER

18 Bad Faith

ANSWERS TO OVERVIEW QUESTIONS 1. Bad faith is an intentional tort that occurs when a party to an insurance contract breaches its implied

covenant of good faith and fair dealing. This is a tort because often times, the insurance company has an unequal bargaining power with more knowledge of the insurance business and therefore, many people are at their mercy. Therefore, the courts require them to act in good faith and not to act in a way that intentionally misleads or deceives them. Mere negligence on the part of the insurance company is not enough. This tort requires the insurance to act intentionally.

2. a. When the insurer wrongfully refuses to provide coverage for a client. b. When the insurer fails to adequately investigate a claim before making a decision to deny coverage or pay

only a portion of the insured’s claim. c. When the insurer unreasonably refuses to settle a third-party claim within the limits of the insured’s

policy. 3. Adhesion contracts are standardized contract characterized by the unequal bargaining power of the parties

and the lack of negotiation regarding the terms of the contract because the other party is unfamiliar with the terms of the contract and also has no real opportunity to negotiate what those terms will be. In other words, negotiations are nonexistent because it is take it or leave it and one party has no other options. a. There is an unequal bargaining power between the insured and the insurer and often the insured is not

familiar with the complex and often confusing terms of the contract, such that they are not readily able to understand every nuance of it.

4. Because an insurance company is relied upon by the insurers to protect their interests since the insureds do not generally have a comprehensive knowledge of the insurance business. Courts wanted any ambiguities to be interpreted in favor of the insured because they hoped that insureds would be protected from complex insurance contracts and that it would pressure insurance companies to create easily understood documents.

5. The reasonable expectations doctrine allows the court to protect the interests of the insured and hold that certain provisions of a policy could not be used against the insured because the insured could not be reasonably expected to understand all of the terms of the contract. For example, under this doctrine, if a policy said that it covered accidents within a 50-mile radius of the insured’s home, even if the insured meant nautical miles, the reasonable expectation of the average person would be that it meant regular miles to measure it. The court will reform the contract to meet the reasonable expectations of the insured.

6. To curb misused discretion of insurance carriers. To provide an incentive for insurance carriers to deal with clients in a fair and unambiguous manner.

7. The insurer must then act in the best interest of the insured. Any objectionable acts of the insurance carrier including any objectionable terms of the insurance contract will be found to be a breach of the fiduciary duty and the courts will be able to eliminate any objectionable terms from the contract.

8. It started as an equitable means of providing relief to the insured. At first it only applied to the claims of a third party, but now it allows claims from first parties as well.

9. It is a factual question for the jury and will only be taken away from the jury if the judge rules that no reasonable person could find that the person acted in bad faith.

10. A first-party claim is a claim brought by the insured against the insurer, whereas the third-party claim is brought attempting to collect damages from the insured’s insurance carrier after the insured has cut a deal with the injured party to bring suit in the name of the insured.

11. If a fiduciary relationship has been established and the insurance company is acting in bad faith it will

Bad Faith, 137


breach the implied contract of good faith and fair dealing that goes along with any fiduciary duty. a. Yes, when the insurer unreasonably denies a claim it is a tort of bad faith even though a court determines

that the insurer had no contractual obligation to pay coverage for every claim. (1) When the carrier denies a claim without proper investigation of the claim and later, after being sued,

discovers evidence that supported its original claim. They still acted in bad faith originally. 12. Yes, it is theoretically possible but it rarely happens.

a. Contractual damages only. Tort and punitive damages have been denied. 13. The third-party claim is brought attempting to collect damages from the insured’s insurance carrier after

the insured has cut a deal with the injured party to bring suit in the name of the insured since most states do not allow the third party to sue the insurance company directly. An example would be when the insurer fails to settle the injured party’s claim against the insured for an amount less than or equal to policy limits.

14. An excess judgment is a judgment for more than the policy limits allow. a. Assign the injured party all of her rights under the contract, including any claims that she might have for

bad faith. (1) Most states prohibit pure personal injury claims, but most allow contractual rights and some states

even allow punitive damages to be assigned. (2) The injured party then pursues the insurer in the name of the insured. The insured must agree to

cooperate with the injured party. (3) Yes, because they initially tell the insured it will provide a defense to a claim. At the same time the

carrier reserves the right to later deny that coverage exists, in which case it can withdraw the defense previously offered. In most cases, however, the carrier will tell the insured to retain its own legal counsel.

15. If coverage is denied immediately the insured had no chance of indemnity for any judgment rendered against him and must pay for his own legal defense. Usually, the insured will then stipulate that any awards will go to the injured party. Then the injured, in the name of the insured, sues the insurance company. However, if the insurer defends with a reservation of rights, the insured is not completely vulnerable. Basically, the insurer defends against the claim with the opportunity to withdraw defense counsel if needed. The difference is the amount of vulnerability that the insured faces. In a flat denial the insured has no chance of indemnity. a. Usually the insured will then stipulate that any awards will go to the injured party. Then the injured, in

the name of the insured, sues the insurance company. The injured party agrees to help the insured by not being adversarial in the trial. (1) Once judgment is entered the insured assigns all rights under the insurance policy to the injured

party and the injured party brings suit in the name of the insured seeking indemnity or garnishes the insurer.

(2) The injured party can recover the amount of the judgment obtained up to the policy limits and for any amounts awarded independently for an independent claim of bad faith.

16. If the insurer defends with a reservation of rights, the insured is not completely vulnerable. Basically, the insurer defends against the claim with the opportunity to withdraw defense counsel if needed. a. An agreement that basically protects the insured IF the insurance company withdraws representation.

(1) No because once the insurer removes representation, the insured is left out in the cold, but up until that point the insured is required to cooperate with the insurer.

(2) It must be in the insurance contract itself and the insurer must usually advise the insured of the terms and conditions of the agreement prior to entering into any agreement.

b. It is resolved when the injured party files suit against the insurance party in the name of the insured. c. In the reservation of rights trial, the injured party must prove that the insurance policy issued to the

insured covers the claim and that the agreement between the insured and the injured party was not a fraud on the court. He must also show that the judgment entered by the court was not fraudulent and was fair and reasonable. To analyze this, the jury must be told the terms and conditions of the agreement and the fact that the insured was released from liability. This is a trial within the trial and it allows the insurer to introduce all relevant evidence that counters any of the positions taken by the plaintiff. If a judgment is entered in favor of the insured was excessive, it can lessen the amount. (1) To analyze this, the jury must be told the terms and conditions of the agreement and the fact that

the insured was released from liability. (2) If a judgment is entered in favor of the insured was excessive, it can lessen the amount.

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17. When the insurance carrier had a reasonable opportunity to settle the case within the policy limits and failed to do so. a. Because if the case goes to trial, the insured could be personally liable for any amount over the policy

limits. In essence, the insurance company if gambling with the insured’s money. b. This agreement would be done in exchange for a release of liability for any excess judgments. c. Because the insured is required to cooperate with the insurance company until AFTER the award is

entered. 18. a. The amount of judgment entered against the insured in excess of the policy limits (the amount the

insured is personally liable for); b. The legal fees the insured has incurred in pursuing the claim against the carrier. c. The emotional distress, if any, suffered by the insured; and d. Any other monetary loss of damage to the insured’s credit or reputation.

19. Whether the insurer’s actions have been sufficiently egregious. They are an attempt to prevent this misconduct in the future and therefore are based on the financial resources of the insurer and the degree of its misconduct on the insured.

20. Denies benefits of the contract to the insured due to a failure to deal with her fairly or in good faith, such as a failure to investigate the claim adequately. a. No because an insurer is under an obligation to investigate a claim initially.

21. They are similar but in first-party claims the damage involves the loss of unpaid benefits, whereas third-party cases involve an excess judgment. a. Any loss of the bargain, any resulting consequential damages, and lost interest on the unpaid amount

due the insured. b. Yes, because that is a foreseeable consequential damage if the insured can show that they stem from the

wrongful acts of the insurance company. 22. In first-party cases the insurer does have sole control of litigation relating to the insured’s potential liability,

which it does not in a third-party claim. Additionally, in first-party claims, the insured makes her claim directly in her own name and does not face losses in excess of her policy limits. Therefore, because of the lack of control by the insured in the outcome of the case, in essence they are very passive, the courts usually impose a higher standard to prove that the insurance company acted in bad faith.

23. a. Reasonableness of the carrier’s position, such as if it is fairly debatable to deny the claim. b. Negligent conduct must occur and therefore must be more than just a simple mistake, but rather

whether one could objectively determine that the carrier’s actions were unreasonable. 24. This test is used in third party claims to determine whether the insurer gave as much consideration to its

insured’s interests as it did its own. a. Third party claims b. It is a higher standard of care that the insurer must follow. c. (1) The strength of the injured party’s claim;

(2) The insurers failure to investigate the claim adequately; (3) The insurer’s failure to advise its insured of an offer to settle within policy limits; (4) The insurer’s failure to follow the advice of its own attorney or agent; (5) The extent of the financial risk to its insured if the insurer fails to settle

d. No. 25. Where the court renders an opinion with respect to a matter of law or with regard to the rights of the

parties, but orders no action be taken. It is just made to make a record or to prove a point. a. To determine that no coverage exists. b. It allows a carrier to dispute coverage as well as to go before a court hoping that the potential for a bad

faith claim will be minimized by its efforts to obtain a judicial determination of its position. 26. The insurer is obligated to make payment directly to the insured.

a. The insurer stands in the shoes of the allegedly responsible party and as such the insurer can assert any defense that the responsible party might have, including comparative or contributory negligence, assumption of the risk and denial of liability.

b. First party. 27. A declaratory judgment in the issue of coverage.

a. A declaratory judgment.

Bad Faith, 139


28. Most courts reject this contention; however, courts have stated that bad faith has not occurred if the liability of the allegedly responsible party is reasonably in question and the amount of damages that must be paid the insured is reasonably disputed.

ANSWERS TO REVIEW QUESTIONS 1. Historically, courts held that an insurer had an implied covenant of good faith and fair dealing in reference

to the insured. Later, courts determined that certain type of standardized business contracts were adhesion contracts because insurance carriers took advantage of their unequal bargaining power and knowledge of the insurance area. Courts acknowledged that those entering into insurance contracts are reliant on the carrier to help them, to explain the terms to them and to protect their interests. Therefore, courts ruled that carriers must act in good faith when dealing with a client. And thus the tort of bad faith emerged.

2. A first-party claim is a claim brought by the insured against the insurer, whereas the third-party claim is brought attempting to collect damages from the insured’s insurance carrier after the insured has cut a deal with the injured party to bring suit in the name of the insured.

In most cases, the standard of care owed to an insured by the insurer depends on when the case is a first-party or third-party case. In the first, if the claim requested is fairly debatable the insurer’s actions in refusing to pay the claim will not constitute bad faith. In third, however, the standard owed is much higher and considers whether the insurer gave equal consideration to the insured rights as it did its own.

As in a first-party claim, the insurer is obligated to make payment directly to the insured. However, as in a third-party claim, the insurer stands in the shoes of the allegedly responsible party and as such the insurer can assert any defense that the responsible party might have, including comparative or contributory negligence, assumption of the risk, and denial of liability.

3. When the insurer fails to settle the injured party’s claim against the insured for an amount less than or equal to the policy limits and then the trial renders an excess judgment, the insured will often assign to the injured party all of her rights under the contracts including any claims for bad faith. The injured party then pursues the action in the name of the insured.

A second example is when the insurance company denies coverage outright. In this case, the insured is left without any coverage of the insurance company and the insured will often enter into an agreement with the injured party stipulating the amount of any judgment to be entered to be assigned to the injured party. The injured party thus proceeds with the case in the name of the insured and without an adversarial relationship.

The third instance is when the insurance company defends the insured under a reservation of rights. Until the insurance company asserts its rights and refuses to defend the insured, the insured must act in cooperation with the insurance company.

4. In most cases, the standard of care owed to an insured by the insurer depends on whether the case is a first-party or third-party case. In the first-party claim, if the claim requested is fairly debatable the insurer’s actions in refusing to pay the claim will not constitute bad faith. In the third-party claim, however, the standard owed is much higher and considers whether the insurer gave equal consideration to the insured rights as it did its own. Mere negligence will not be considered bad faith. In all cases, the party’s actions are evaluated at the time coverage was denied and not in hindsight as a result of discovery for litigation.

ANSWERS TO PUTTING IT INTO PRACTICE Since the friend is alleging bad faith on the part of another party’s insurance company, the friend would have to bring suit as a third-party claim, attempting to collect damages from the insured’s insurance carrier. The insured would in essence cut a deal with the injured party to bring suit in the name of the insured since most states do not allow the third party to sue the insurance company directly. In this example the friend would assert that the insurance company acted in bad faith when the insurer fails to settle the injured party’s (your friend) claim against the insured.

In a third-party claim, the insurer stands in the shoes of the allegedly responsible party and as such the insurer can assert any defense that the responsible party might have, including comparative or contributory negligence, assumption of the risk, and denial of liability.

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The insured must assign the injured party part all of her rights under the contract, including any claims that she might have for bad faith. The injured party then pursues the insurer in the name of the insured. The insured must agree to cooperate with the injured party. Therefore, any damages awarded to the insured for a bad faith claim would then be passed off to your friend.

However, the friend will have to prove that the insurance company is acting in bad faith in not paying the claim and this is much harder to prove in a third-party suit. Basically, your friend will have to show that the insurance company failed to give equal consideration to the insured’s rights as it did its own. And this is all predicated on the notion that the insurance company is indeed acting in bad faith in that it is intentionally breaching its implied covenant of good faith and fair dealing and not just merely being negligent in its handling of the claim. If the friend cannot prove more than negligence, then the claim is not actionable.

However, once again, you as a paralegal should not be giving out any legal advice, as it would be considered an unauthorized practice of the law.

© 2009 Delmar, Cengage Learning. All Rights Reserved 141

CHAPTER

19 Workers’ Compensation

ANSWERS TO OVERVIEW QUESTIONS 1. It came into existence out of a need to compensate individuals who were injured while on the job and also

to protect employers from large awards being levied against them. In most situations, employee injuries went uncompensated and, therefore, that person had no means to support his family let alone pay for medical costs. In other, rarer situations, a large award would bankrupt a small business. Thus, legislatures saw a need to create a standardized no-fault system where compensation was guaranteed to the injured employee and the employer was also protected by statutory limits of compensation. a. The promise that the employer would compensate the employee for the reasonable damages that resulted

from a work-related injury. 2. The Industrial Revolution increased the number of employee injuries because of the hard physical labor

associated with the machines and the need for operators to operate those machines. a. A rule which rendered an employer not liable for an injury inflicted upon an employee through the

negligence of another employee, but made every employee liable to his fellow workers for his own negligence.

3. Yes. 4. Mandatory coverage is where the employee has no alternative other than to accept the benefits and

restrictions imposed by the statutory framework adopted by the state. Voluntary coverage is where the employee may opt out of the system and retain her right to sue the employer in state court. a. Few workers know of these rights, therefore they do not opt out; if they accept any medical payment or

benefits, they will have deemed to have opted in. 5. To compensate the injured worker for injuries sustained on the job.

a. Administrative law judges replaces judges and juries. Civil procedure rules are replaced with administrative rules and regulations.

6. Intentional or self-inflicted injuries or those caused by intoxication or a controlled substance. 7. A fixed method of determining the amount of compensation to the injured employee. In most states, a

statute that consists of an outline of a person assigns each part of the body a maximum number of weeks of compensation allowed. For example, complete loss of a finger may be assigned twelve weeks.

8. This fund’s main role is to step in to cover the worker when the employer lacks proper workers’ compensation insurance to pay the statutory sums due or when the insurance company has been insolvent and therefore unable to pay any claims.

9. No, the United States Supreme Court has held that workers’ compensation acts do not violate due process, however some states had to make constitutional amendments to their own constitution to make it acceptable.

10. In most states the government sets up an industrial relations board that is an administrative agency organized under the executive branch. a. Failure to follow the rules set forth by either party may result in the employee losing benefits or the

employer losing the right to contest the award. 11. Most employers still have the majority of the control over the system due to legislative regulations. The

amounts that are allowed are often inadequate to compensate the employee. Additionally, fraud is rampant in the scheme and therefore has caused employers to have to defend themselves aggressively. This has created an environment of fear and distrust between employers and employees.

12. The employee is not allowed to receive continued contribution for retirement benefits while off the job. The employee may lose his job, seniority, or advancement opportunities and the amount received is often less than his average weekly wage before the accident.

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13. According to the figures given, the employee would be entitled to 2/3 of $10.00 times 40 hours a week (assuming that they worked full time) times 4.33 (the number of weeks in a month). Then one must multiply the months scheduled for this injury per statute to determine a lump sum amount. Since this arm is a dominant arm, in Arizona, she may also be able to recover an additional sixty months’ compensation. a. In Arizona, the injured worker is paid 66.7% of her average monthly salary at the time of the accident. b. If the loss of her leg resulted in her being unable to earn the same amount of income after recovering

from the injury, she would be entitled (in Arizona) to payments equal to 66.7% of the difference between her post-injury earning capacity and her pre-injury average monthly income. She would also be entitled to post-injury training and rehabilitation.

c. No. (1) By legislative action only.

14. Because the employer’s workers’ compensation insurance premiums are tied to the amount of claims that are made against it. Therefore, it is better to handle an employee’s injury and get him back to work as soon as possible than to have the claim linger.

15. Because the system is very adversarial among all parties involved. a. The employer must act through the insurance company, and can require that the employee undergo an

independent medical evaluation by a doctor of their choosing. The hearings are often scheduled at a time that is convenient to testifying doctors rather than to the injured employee’s need for compensation.

b. Fraud in the claims made and attempts to continue receiving benefits after recovery are widespread. Therefore, defense attorneys, representing the employer or insurance company, have to resort to the increased cost and time of surveillance when fraud is anticipated.

c. Fraud by employees is rarely punished criminally and employers are not discouraged from engaging in aggressive defensive measures because they are rarely held liable.

16. The employee must be injured in the course and scope of employment or on the job. 17. The employee is required to report the injury within a specified period (prescribed by statute) to the

employer and the employer must report it to the state executive agency that oversees workers’ compensation.

18. If the injury results in lost work time than the minimum timer period prescribed, the employer will have to submit wages to determine what the average weekly wage was at the time of the accident to compute compensation requirements. a. If an employee is new or just received a raise. b. It is determined by the prior year’s income.

19. They are usually based on a percentage of the difference between an employee’s pre-injury earning capacity and his post-injury earning capacity. a. No, if it does not affect job ability.

20. No. 21. If a third party caused the injury on the job, the employee can assert any tort claims she may have against

the third party. a. An employer has a subrogation right to get reimbursed for any medical payments that it covered for the

injured employee as a result of the third party’s actions. The subrogation claim may have to be paid from the settlement or litigation of any lawsuit against the third party.

22. Many new issues are presenting a problem in the workers’ compensation scheme. For example, is potential exposure to AIDS a compensable injury if the worker does not become infected? Do the psychological stresses caused by the fear of possibly contracting AIDS, which could result in a person’s being unable to work, constitute a work-related injury? Psychological incapacity due to sexual harassment and/or hostile work environments must also be addressed. Many systems are having problems as well in dealing with purely psychological injuries that have no physical cause. The ADA also presents a problem because in the past, employers were not required to keep an injured employee. Finally, while contrary to its original intent, the system is very adversarial and has been a breeding ground for distrust and resentment between the employer and the employee.

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ANSWERS TO REVIEW QUESTIONS 1. It came into existence out of a need to compensate individuals who were injured while on the job and also

to protect employers from large awards being levied against them. In most situations, employee injuries went uncompensated and, therefore, that person had no means to support his family let alone pay for medical costs. In other, rarer situations, a large award would bankrupt a small business. Thus, legislatures saw a need to create a standardized no-fault system where compensation was guaranteed to the injured employee and the employer was also protected by statutory limits of compensation.

2. Low compensation statutory schedules often result in an injured employee being undercompensated and under the poverty line. The legislative branch is the only branch that can increase the benefits. In other words, the administrative law judge’s hands are tied as a result of the statute. Determining the amount recoverable to the injured worker is often confusing and not easily understood. The system, by its very nature, is very adversarial and has bred an atmosphere of distrust and deception between the employer and employee. Oftentimes, the goal of compensating an injured party is forgotten in light of the fraudulent employee reports and the aggressive defense used and it leaves the truly deserving employee out in the cold as he waits for the bureaucratic nightmare to process his claim.

3. In general, benefits are determined based on the permanency of the injury and according to a percentage of the average weekly or monthly wage multiplied by a statutory schedule that establishes the maximum amount of weeks that are allowed for each claim made.

4. An employee must be injured on the job or, in other words, in the scope of employment. Sometimes this is a subject of litigation. Next, both the employee and the employer have a reporting requirement. The employee must report his injury within a statutorily determined time frame and the employer must report the injury to the appropriate state agency. Failure to do so could result in a loss of benefits to the employee or a loss in the chance to defend the employer. Finally, the employer must establish the employee’s average weekly or monthly wage. This is based, generally, on the average wage for the prior year. The parties then refer to statutory guidelines to determine how many weeks or months the employee’s injury is worth.

5. It is often confusing, adversarial, and filled with bureaucratic nightmares. Often times, the injured employees may be compensated at a level below the poverty line while others will not be able to support themselves while the claim lingers in the court system waiting to be resolved. If a claimant needs to employ the services of an attorney, that attorney will oftentimes base his compensation on a percentage of the total award and, therefore, the employee will receive only a percentage of the amount allowed by statute to compensate him for an injury. Finally, in general, once a claim is either settled or adjudicated in an administrative hearing, the employee has no further recourse in the court system should future medical costs related to the injury appear.

ANSWERS TO PUTTING IT INTO PRACTICE Using the guidelines set forth in the text about Arizona workers’ compensation, the employee would be compensated at $12.00 per hour times 40 hours a week (assuming that the employee was a full-time employee) times 4.33 weeks (the number of weeks in a month in general). This would result in an average monthly wage of $2078.40. Then one would have to compute 2/3 of that amount to find the amount to determine the amount of $1,385.60 (the amount the employee would be paid after taxes). Assuming that the amount is within the statutory cap imposed in Arizona, the employee would get that amount multiplied by the total number of months statutorily allowed for that injury since amputation of an appendage is a total loss. However, once the employee is able to return to work, the monthly payments will cease and he will only be able to receive 2/3 of the difference in the amount he earned before the accident and after the accident. In addition, the employee would be able to recover for any medical expenses, such as the prosthesis, post-injury training, and rehabilitation.

Documents

Overview of Tort Law - delmarlearning.com