Torts Outline – Spring 2010

Table of ContentsNegligence: The Duty of Reasonable Care..................................................................................................................................................5

I. Introduction:.................................................................................................................................................................................... 5II. The Reasonable Person Standard:.................................................................................................................................................5

A. Defining and justifying the reasonable person standard.............................................................................................................5B. Reasonable conduct as a balancing of costs and benefits.........................................................................................................5

III. Range of Application of the Reasonable Person Standard........................................................................................................6A. Especially dangerous instrumentalities......................................................................................................................................6B. Emergencies............................................................................................................................................................................... 6C. An actor’s knowledge and skill...............................................................................................................................................6D. Youth: special treatment for minors.......................................................................................................................................6E. Physical and mental disabilities.................................................................................................................................................. 7

IV. Recklessness............................................................................................................................................................................. 8Proving Breach............................................................................................................................................................................................. 9

I. Introduction..................................................................................................................................................................................... 9II. Violation of a Statute....................................................................................................................................................................... 9III. Industry Custom:...................................................................................................................................................................... 10IV. Res Ipsa Loquitur..................................................................................................................................................................... 10

Legal Cause: Cause-in-Fact...................................................................................................................................................................... 12I. Introduction................................................................................................................................................................................... 12II. Basic Cause-in-Fact: the But-For Test..........................................................................................................................................12III. Alternatives to the But-For Test................................................................................................................................................12

A. Reasons for alternatives........................................................................................................................................................... 12B. Multiple sufficient causes.......................................................................................................................................................... 12C. Concert of action.................................................................................................................................................................. 13D. Alternative liability................................................................................................................................................................ 13E. Joint v. several liability.............................................................................................................................................................. 14F. Market Share Liability............................................................................................................................................................... 14G. Liability for lost chance of recovery or for increased risk of eventual harm..........................................................................15

Limits on Liability: Duty and Proximate Cause...........................................................................................................................................16I. Introduction................................................................................................................................................................................... 16II. Duty............................................................................................................................................................................................... 16III. Proximate cause:...................................................................................................................................................................... 18

A. Introduction............................................................................................................................................................................... 18B. Directness................................................................................................................................................................................. 18C. Foreseeability....................................................................................................................................................................... 18D. Substantial Factor Test........................................................................................................................................................ 19E. Intervening and Superseding Forces........................................................................................................................................21

Defenses.................................................................................................................................................................................................... 23I. Introduction:.................................................................................................................................................................................. 23II. Plaintiff’s Contributory Fault:......................................................................................................................................................... 23

B. Traditional common law treatment of plaintiff’s negligence......................................................................................................23C. Modern comparative treatment of a plaintiff’s negligence....................................................................................................23D. Reckless Conduct:............................................................................................................................................................... 24III. Assumption of risk:............................................................................................................................................................... 25E. Express assumption of risk:......................................................................................................................................................25F. Implied Assumption of Risk:.....................................................................................................................................................26

IV. Mitigation and Avoidable Consequences:................................................................................................................................27V. Immunities:.................................................................................................................................................................................... 27

Apportionment of Damages....................................................................................................................................................................... 29I. Apportioning Damages among Liable Defendants.......................................................................................................................29

A. Joint and Several Liability......................................................................................................................................................... 29B. Allocating Responsibility to Absent or Immune Actors.............................................................................................................29

II. Vicarious Liability.......................................................................................................................................................................... 29A. Respondeat Superior................................................................................................................................................................ 29

Professionals.............................................................................................................................................................................................. 32I. Professional Standard’s Basic Definition and Rationale...............................................................................................................32II. Applying the Professional Standard in Medical Cases.................................................................................................................33

A. Geographic Scope of Professional Standard...........................................................................................................................33B. Common Knowledge................................................................................................................................................................ 33C. Informed Consent................................................................................................................................................................. 33

III. Legal Malpractice and the Professional Standard........................................................................................................................33Owners and Occupiers of Land.................................................................................................................................................................. 35

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I. Introduction:.................................................................................................................................................................................. 35II. Traditional Rules........................................................................................................................................................................... 35

A. Trespassers.............................................................................................................................................................................. 35B. Licensees and Invitees............................................................................................................................................................. 36C. Slip-and-Fall Cases!!............................................................................................................................................................ 36D. Open and Obvious Dangers; Natural Accumulations...........................................................................................................37E. Criminal Conduct by Third Parties............................................................................................................................................37F. Liability to Tenants and Their Guests.......................................................................................................................................38

III. Modern Approaches................................................................................................................................................................. 38A. Rejection of the Three-Category System......................................................................................................................................38

B. Changes in Landlord-Tenant Doctrines....................................................................................................................................38Special Duty Rules..................................................................................................................................................................................... 40

I. Duty to Rescue or Protect............................................................................................................................................................. 40A. General No-Duty-to-Rescue and Its Exceptions.......................................................................................................................40B. Obligations to Rescuers........................................................................................................................................................... 40C. Protecting Third Parties from Criminal Attacks or Disease..................................................................................................40

II. Duty Limited by Type of Harm...................................................................................................................................................... 41A. Negligently Inflicted Emotional Distress...................................................................................................................................41B. “Mere Economic” Harm............................................................................................................................................................ 42C. “Wrongful Pregnancy,” “Wrongful Birth,” and “Wrongful Life”..............................................................................................42

Damages.................................................................................................................................................................................................... 43I. Compensatory Damages.............................................................................................................................................................. 43

A. Three main categories of damages:.........................................................................................................................................43B. General Damages.................................................................................................................................................................... 43C. Future damages................................................................................................................................................................... 43

Traditional Strict Liability............................................................................................................................................................................ 45I. Injuries Caused by Animals.......................................................................................................................................................... 45II. Selected Dangerous Activities...................................................................................................................................................... 45

Products Liability........................................................................................................................................................................................ 46I. Introduction................................................................................................................................................................................... 46II. Allowing Recovery Without Proof of Negligence: Development of Strict Liability.........................................................................46

A. Early Development................................................................................................................................................................... 46B. Manufacturing Defects.............................................................................................................................................................. 46C. Design Defects..................................................................................................................................................................... 47D. Warnings and Instructions.................................................................................................................................................... 47E. Special Treatment for Drugs..................................................................................................................................................... 48F. Plaintiff’s carelessness or Misuse of Product...........................................................................................................................48

Trespass and Nuisance............................................................................................................................................................................. 50I. Trespass....................................................................................................................................................................................... 50

A. Trespass to Land...................................................................................................................................................................... 50B. Trespass to Chattel and Conversion........................................................................................................................................50

II. Nuisance....................................................................................................................................................................................... 50Intentional Torts......................................................................................................................................................................................... 52

I. Battery:.......................................................................................................................................................................................... 52II. Assault:......................................................................................................................................................................................... 52III. Intentional infliction of emotional distress:................................................................................................................................52IV. Defenses to Intentional Torts:................................................................................................................................................... 53

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Negligence: The Duty of Reasonable Care

I. Introduction:A. Unintentional harms: injuries that happen by accidentB. Common analysis of negligence cases:

1. Plaintiff may recover damages if the defendant…a. Owed the plaintiff a duty to act in a certain wayb. Breached the duty by failing to act as well as the duty requiredc. The defendant’s conduct caused somed. Harm to the plaintiff

2. Usually summarized as “duty, breach, causation, damages”C. Standard of care:

1. Way of legal system controlling fundamental societal issues2. Tells us how careful some people are supposed to be to protect some other people from some types

of injuriesD. Power of the jury:

1. If standard of care is vague or subject to interpretation – jury will use own ideas about what standard of care means

II. The Reasonable Person Standard:

A. Defining and justifying the reasonable person standard1. Vaughan v. Menlove (dumb hayrick builder)

a. Use of ordinary prudent man standard b. Later meant to imply that substandard intelligence would not require special standard of

reasonable person – jury would never receive case2. Reasonable person:

a. Restatement: reasonable person is not a typical person, but a hypothetical person who is always reasonably prudent

3. Negligence:a. The omission to do something which a reasonable man, guided by those considerations

which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do

4. Parrot v. Wells Fargoa. Issue: Leaking crate = explosion -> should WF have to pay for damage to building?b. Reasonableness dependent on actor’s knowledge about riskiness of situation – court held

that cannot be liable for unavoidable accident5. Policy: deterrence if held to reasonable person standard

B. Reasonable conduct as a balancing of costs and benefits1. McCarty v. Pheasant Run

a. Window left unlocked – plaintiff robbed in motel b. Plaintiff claims hotel should have warned against intruders and of windowc. Learned hand definition of negligence:

i. Failure to take precautions that would generate greater benefits in avoiding accidents than the precautions would cost

d. Holding: notice was incremental, no burden of proof met2. Learned Hand formula for negligence:

a. Conduct would be negligent if B < PL i. B = burden of prevention or avoidanceii. P = probability of lossiii. L = magnitude of loss that would be avoided with the possible prevention or

avoidance3. Note: Courts will not likely overturn jury decisions with reasonable person, even if wrongly applied4. Costs and benefits in non-economic terms:

a. Restatement includes assessment of societal values

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III. Range of Application of the Reasonable Person Standard

A. Especially dangerous instrumentalities1. Stewart v. Motts

a. Issue: whether higher standard of care for use of dangerous instrumentalitiesb. Facts: plaintiff pulled into gas station while defendant was repairing car fuel tank = explosion

and burns to plaintiffc. Court:

i. Only one standard of care that does not vary – reasonable personii. Reasonably prudent person would exercise higher degree of care in presence of

dangerous substancesiii. Standard of care must be proportionate to danger involved in the act

B. Emergencies1. Myhaver v. Knutson

a. Issue: whether sudden emergency instruction is appropriateb. Facts: defendant swerved left in face of oncoming car, collided with plaintiffc. Jury instructions: consider whether conduct was affected by an emergency…emergency =

sudden and unexpected encounter with a danger which is either real nor reasonably seems to be real, If person without negligence encountered emergency and acts reasonably to avoid harm, may find that person not negligent

i. Some states – no instruction EVERii. Other states – instruction not required, trial judge has discretion

d. Rule: jury instruction is appropriate when i. Party seeking the instruction had not been negligent prior to the emergencyii. The emergency had come about suddenly and without warningiii. And reaction to the emergency was spontaneous, without time for reflection

e. Court: trial judge has discretion to apply jury instruction for emergency – in this case, valid emergency = appropriate for instruction

f. Concurrence: negligent conduct already rules out situations in which conduct could not be expected

C. An actor’s knowledge and skill1. Cervelli v. Graves

a. Facts: plaintiff’s truck hit by defendant’s cement truck when defendant tried to pass in icy conditions - Defendant had significant history of being truck drive (10 years)

b. Court: i. Keep reasonable person standard – “under the same or similar circumstances” =

taking into account characteristics of actor himselfii. Reasonable person standard is minimum bar, person with greater knowledge or skill

must act within those restraintsiii. Experience, skill, knowledge should be considered by jury in analyzing reasonable

person standard

D. Youth: special treatment for minors1. Robinson v. Lindsay (snowmobile case)

a. Child standard applicable in most cases: child held to reasonable care of children his ageb. Exception to rule: if child is involved in activity that is inherently dangerous – child is held to

adult standard of carei. Policy reasons – hazard to public if rule is otherwise, protects needs of children to be

children, discourages immature individuals from engaging in inherently dangerous activities

2. Peterson v. Taylor (curiosity with matches)a. Facts: plaintiff (7 yrs old) stopped at defendant’s house playing with gasoline and burned selfb. Expert testimony = plaintiff hyperactive and more prone to play with fire -> not realize extent

of danger involved i. Reasonable child of plaintiff’s age would recognize danger of activity

c. Court: i. Evidence must be presented to jury to determine typical behavior

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ii. Jury’s job to determine if care of plaintiff was reasonable according to typical behavior – expert witness cannot testify

3. Note: some states – children under seven not capable of negligence (“Illinois rule”)a. Most states: Restatement approach –n variety of intelligence/development issues + range of

situations = good for jury4. Policy reasons for special standard for children:

a. Passed at a time when contributory negligence = complete bar to recoveryb. Allowed plaintiff to recover some damages c. No longer as important because contributory negligence mostly overridden by comparative

negligence 5. Parental liability statutes

a. CL: parents not usually liable for children’s negligence and damages (usually covered by home insurance policy)

b. Majority view:i. NJ: parents fail/neglect to exercise reasonable supervision and control of minor –

liable for willful, malicious, or unlawful conductii. WV: liable (up to $5K) for damages which are proximate result of malicious or willful

injury to person, property, arson, theftc. Minority view:

i. HI: joint and severally liable for tortuous acts

E. Physical and mental disabilities1. Poyner v. Loftus

a. Facts: legally blind plaintiff – walked off sidewalk that frequented b. Modified standard of care: “such care as an ordinarily prudent person with the same disability

would exercise under the same circumstances”2. Intoxication NOT acceptable factor in reasonable person standard – not a defense for negligent

action3. Creasy v. Rusk

a. Facts: Alzheimer’s patient in hospice – bit nurse, nurse suedb. Rule: adults with mental disabilities have same general duty of care toward others as those

withoutc. Policy reasoning:

i. Allocates losses between two innocent parties to the one who caused or occasioned the loss – protect even negligent third parties from bearing excessive liabilities

ii. Provides incentive to those responsible for people with disabilities to prevent harm and “restrain” those who are potentially dangerous

iii. Removes inducements for alleged tort-feasors to fake a mental disability in order to escape liability

iv. Avoids attempt to determine actor’s disability in court – too difficult to draw the line with

v. Forces a person with disabilities to pay for the damage they do if they are “to live in the world”

d. Factors to determine if a duty is owed to a person:i. Relationship between the partiesii. Reasonable foreseeability of harm to the person injurediii. Public policy concerns

e. Holding: nurse had special relationship with defendant, no duty owed by defendant

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Young Dumb Physically Disabled

Mentally Disabled

Encourage activity Yes No Yes Yes? - deinstitutionalization

Injuries likely small? Yes No ? Yes

Judges can apply easily Yes No Yes Yes

Juries can apply? Yes No ? Yes (society allows in crim)

Potential victims - can ID the actor and adjust?

Yes No Yes? Yes? No?

Is a special standard accepted? Yes No ? No

IV. RecklessnessA. Tort law generally recognizes three theories of recovery:

1. Intentional torts (battery): actor must intend to invade a legally protected interest of the other person2. Unintentional torts: actor creates an unjustifiable risk of invading another’s legally protected interest3. Strict liability torts: impose liability without regard to whether actor’s conduct is blameworthy4. Recklessness is in between intentional tort and negligence

a. Many courts and restatement – “recklessness” = all intentional torts other than negligence, including behavior described as “wanton misconduct” and “gross negligence”

b. Importance: allows punitive damages i. Waivers may allow for recovery of damages when conduct was reckless

B. Sandler v. Commonwealth1. Facts: Plaintiff fell off bike when crossing uncovered trench 2. Reckless conduct: conduct that produces liability for what the court has traditionally called willful,

wanton, or reckless conducta. May consist of failure to act, as well as affirmative conductb. Reckless failure: intentional or unreasonable disregard of a risk that presents a high degree

of probability that substantial harm will result to another (must be proved by plaintiff)i. Risk of death or grave bodily injury must be known or reasonably apparentii. Harm must be a probable consequence of the defendant’s election to run that risk or

of his failure reasonably to recognize it3. Holding: degree of risk not great enough for recklessness (usually involve motor vehicles)

C. Elements of recklessness theory (restatement)1. Person knows of the risk of harm created by the conduct or knows facts that make that risk obvious to

anyone in the person’s situations, and2. The precaution that would eliminate or reduce that risk involves burdens that are so slight relative to

the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk

D. Knowledge of the risk for recklessness:1. Restatement Third:

a. Plaintiff must show that actor either (a) knew of the risk or (b) knew of facts that made the risk obvious

2. Restatement Second (majority):a. Plaintiff must prove that the defendant “had reason to know of facts relating to the risk

presented by the conduct”i. Actor had information that person of reasonable intelligence would inter that fact in

question existsii. Different from “should have known” – standard negligence cases

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Proving Breach

I. Introduction A. Plaintiffs have two burdens of proof

1. Burden of persuasion: if jury is undecided, person with burden will lose2. Burden of proof: have to prove case to the jury with evidence

a. Plaintiff can choose any kind of evidence, but have an incentive to provide a large amount of persuasive evidence

B. Recurring types of proof:1. If a statute applies to the factual circumstances in which the defendant acted, the statute may be

considered as proof of how a reasonable person behaves2. A party may rely on custom to show what behavior is reasonable3. Circumstantial evidence may be so strong in some cases that it can substitute for direct or eyewitness

proof about how a defendant acted4. When it is clear that the defendant must have been negligent in some way that caused the plaintiff’s

harm, the law excuses the plaintiff from identifying the specific negligent conduct of the defendanta. Inference of negligence from circumstantial evidence = res ipsa loquitur (“the thing speaks for

itself”)

II. Violation of a StatuteA. Party may establish that opponent’s conduct violated a statute if the statute’s purpose was to protect the

injured party from the type of harm that occurred , proof of violation will have special evidentiary effect1. May be treated as establishing a standard of care and as evidence that the opponent’s conduct was

negligent2. May support a finding that either a plaintiff or defendant was negligent

B. Martin v. Herzog: 1. Facts: plaintiff did not have headlights on buggy, car turned corner and hit head on2. Defendant may be negligent and injure a person, but if defendant can prove that plaintiff was also

negligent, won’t have to pay3. Plaintiff broke statute (headlights on) and therefore negligent 4. Still need to show causal relationship

C. Negligence per se: Violation of the statute constitutes conclusive evidence of negligence1. Specificity required for per se rule:

a. Some states refuse to accept per se unless statute is specific in conduct it requires (must be other than reasonable person because that is CL standard)

D. Role of jury1. When proof is treated as equivalent to proof of negligence – jury’s function is to determine whether a

violation occurredE. Rationale for statutory standards: legislative process and accountability are cornerstones of the democratic

processes which justify the General Assembly’s role as lawmakerF. Thomas v. McDonald (pickup collision on hill)

1. Because truck was missing emergency signals – could not comply with statute = apply per se instruction

2. But plaintiff failed to prove failure of entire statute = no negligence for second statuteG. Variations in treatment of statutes

1. States vary in elements plaintiff must prove to rely on a statute as evidence of breacha. Thomas court: plaintiff must show he is a member of the class that the statute was designed

to protect and that the harm he suffered was the type of harm which the statute intended to prevent

b. ID: statute must define clear conduct, statute must have been intended to prevent type of harm which occurred, plaintiff must be member of the class

c. MT: defendant violated statute, statute meant to protect certain people, plaintiff member of group, plaintiff’s injury intended to be protected, statute intended to regulate members of defendant’s class

2. Violation of licensing statute not treated as a violation (theory of no causal relationship)a. Only treated as violation if would have prevented occurrence of dangerous conduct

H. Wawanesa v. Matlock1. Facts: minors with cigarettes playing on telephone poles – property damage

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2. Negligence per se cannot apply if plaintiff was not in the class of persons designed to be protected or the type of harm which occurred was not one which the statute was designed to prevent

I. Sikora v. Wenzel1. Facts: deck collapsed (not up to code) – owner did not know when purchased2. Lack of notice is viable excuse for negligence3. Strict liability: in some cases, conduct that violates a statute will be treated as negligent conduct

without regard to any excuse or justification an actor might assertJ. Excuses:

1. Reasons for recognizing excuses:a. Statutes are insensitive to detailed factual variations that real cases presentb. Most states allow violator of statute to offer excuses for violation

2. Allowable types of excuses:a. Anything that would make compliance with the statute impossibleb. Anything over which the driver has no control which places his car in a position violative of

the statutec. An emergency not of the driver’s own making by reason of which he fails to obey the statuted. An excuse specifically provided by statute

K. Procedural effect of proof of violation and excuse1. When jurisdiction seeks to give some effect to a statute violator’s excuse, cannot treat proof of

violation as requiring a finding of breach of duty. Can be the followinga. Some evidence: excuse offered or no excuse offered – some evidence that is admissible can

be considered by juryb. Prima facie evidence: no excuse offered – violation as prima facie evidence of duty and

breach i. Can also create presumption of negligence in some jurisdictions – if no evidence

against, found against defendantc. Negligence per se: no excuse offered – proof of statutory violation = conclusive on issues of

duty and breachd. Prima facie evidence and negligence per se: excuse offered – case to jury

III. Industry Custom:A. If litigant can show that industry as a whole has a customary way of doing something, proof could support

number of conclusions1. Less power given to proof of industry custom than proof of statutory violation

B. T.J. Hooper (tugboats with no warning)1. Custom of keeping radios not widely accepted in community = crash not negligent

C. Elledge v. Lexington1. Facts: student falls from playground equipment negligently lowered 2. Industry custom was to keep equipment in certain conditions, because defendant failed to do so –

negligent action D. Uses of industry custom:

1. Might be introduced to show that actor’s failure to follow amounts to negligence2. Might be introduced to show that conduct in conformity meets standard of reasonable care

E. Walmart v. Wright1. Plaintiff trying to use Walmart employee manual as standard of care2. Use of manual would create subjective test and would be unfair standard for most companies

IV. Res Ipsa LoquiturA. Elements of res ipsa loquitur doctrine:

1. Type of injury is usually associated with negligence2. Defendant had exclusive control of whatever caused the injury3. Plaintiff made no causal contribution to the harm (no longer applicable)

a. In modern jurisdictions where careless plaintiffs are allowed to recover, question comes up about whether element #3 should come into play or bite the dust

b. Connected to element #2 – if defendant had total control of instrumentality, plaintiff would not have contributed to harm (enforces this principle)

4. Defendant’s access to information about the event was superior to the plaintiff’s (no longer applicable)

a. No longer as applicable in modern times because discovery allows opposing parties the opportunity to obtain all relevant information

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B. Benefit to plaintiff by using this doctrine:1. Plaintiff is protected from judgment as a matter of law, dismissal, directed verdict2. As trial continues, can be more fairness for the defendant because the jury will understand that the

action has to meet all elementsC. Byrne v. Boadle (Donkey Kong)

1. Jury can infer from the evidence in this event that injuries could not have occurred without negligence a. Reasoning: defendant might have had better access to information regarding the incident,

plaintiff would have come forward with additional evidence if he would have had itD. Should not be interpreted to mean that circumstantial evidence is permitted in only particular cases –

permitted in variety of cases1. Doctrine only prevents directed verdict and gives special jury instruction

E. Shull v. B.F. Goodrich (jack in the box)1. Plaintiff is not required to eliminate with certainty all other possible causes or inferences – only need

to prove that it is more likely that there was negligence associated with the cause of the event that there was not

2. Where responsibility for defect may be attributable to defendant, negligence may be inferred 3. How to invoke res ipsa loquitur:

a. Injuring instrumentality is shown to have been under the exclusive control of the defendant and

b. The accident is one which in the ordinary course of things does not happen if those who control the instrumentality use proper care

F. Restatement and exclusive control requirement:1. “The factfinder may infer that the defendant has been negligent when the accident causing the

plaintiff’s physical harm is a type of accident that ordinarily happens because of the negligence of the class of actors of which the defendant is the relevant member”

G. Dover v. Swann1. Plaintiff injured in elevator accident – alleged due to negligence in maintenance2. Use of expert witness gave full explanation of negligent action – precludes res ipsa loquitur

a. Preclusion applies when plaintiff’s evidence “does not stop at the point of showing the happening of the accident under the circumstances in which negligence of the defendant was a permissible inference”

b. Expert testimony often allowed in conjunction with doctrine in medical cases – expert testimony gives background to jury

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Legal Cause: Cause-in-Fact

I. IntroductionA. Cause-in-fact:

1. Causal connection between defendant’s conduct and plaintiff’s harm2. Requires proof that as a matter of historical and physical fact, it is more likely than not that the

defendant’s conduct was a cause of what happened to the plaintiffB. Other limitations to liability:

1. Proximate cause: defendant’s conduct may be too remote from plaintiff’s injury to justify holding the defendant liable

2. Superseding cause: conduct by actor other than defendant that also insulates the defendant from responsibility

3. Duty: protects defendants from liability in cases where the law concludes that a person owes no obligation or only a limited obligation to another to protect another person from harm

II. Basic Cause-in-Fact: the But-For TestA. Defendant’s action is defined as a cause-in-fact if a plaintiff’s harm if the plaintiff’s harm would not have

occurred if the defendant had acted properly1. Whether plaintiff would have been free from harm “but for” the negligent conduct of the defendant

B. Treats one occurrence as a cause of the second occurrence if the first occurrence was necessary or essential for the happening of the second occurrence

C. Cay v. Louisiana1. Wrongful death against state for daughter falling over bridge2. Burden of proof: plaintiff must prove by a preponderance of evidence that X would have prevented

harm to plaintiff, that more likely than not, X was a cause in fact.3. May have multiple causes in fact

D. Lyons v. Midnight Sun1. Negligence not cause in fact of harm = no liability of defendant

III. Alternatives to the But-For Test

A. Reasons for alternatives1. Multiple actors = difficult to prove conduct by any one actor was but-for cause2. Conduct by only one of some, but not all, of a group of defendants could have caused plaintiff’s injury

but plaintiff cannot show who caused it3. Difficult to determine whether physician’s substandard conduct made a different in outcome

B. Multiple sufficient causes1. Once plaintiff demonstrates that each of the defendant’s acts would have been sufficient to cause the

harm, each defendant must prove its act was not a substantial factor in producing the harm2. Courts must determine two questions:

a. Whether any particular defendant may be subject to liability for the plaintiff’s injury (answer is often yes)

b. Amount of liability that can be fairly assigned to any particular defendant3. Kingston v. Chicago and Northwestern Railway

a. Facts: two fires (one from train, other from unknown origin) = combine into one – damage plaintiff property

b. Rule: one of two or more joint tort-feasors whose concurring acts of negligence result in injury, are each individually responsible for the entire damage resulting from their joint acts of negligence

i. Reasoning: impossible to apportion damages and irrational to prevent liability because of this failure

4. Shifting burden of proofa. If each of several acts would be sufficient to produce the plaintiff’s harm, the burden shifts to

each defendant to avoid liabilityb. Defendant will not be liable unless all defendants acted tortuouslyc. Some jurisdictions: one defendant with tortuous act + natural act = no liability

i. Other jurisdictions do not exclude this situationd. Kingston rule: requires all acts to be tortuous

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i. Other jurisdictions: only one actor had to have acted tortuously5. Brisboy v. Fiberboard Paper

a. Wrongful death from asbestos -> lung cancerb. Rule: Actor not liable for his negligent conduct unless that conduct was a legal or proximate

cause of an injury – mere fact that some other cause could have contributed does not limit liability

i. Considerations in determining whether actor’s conduct was substantial factor: a) Number of other factors which contribute to producing the harm and the extent of

the effect which they have in producing it1) One factor may have such predominant effect as to make effect of

negligent action insignificant2) Where none of contributing factors has a predominant effect, combined

effect may dilute effect of actor’s negligence3) Many causes and/or if causes other than a particular actor’s conduct

have a much greater effect in producing the harm, that actor will not be liable

c. Plaintiff did not directly prove negligence of defendant but established that husband worked with asbestos in environment where fiber could have become lodged in lungs

6. Multi-party cases where but-for analysis works wella. Cases where neither actor’s conduct was independently sufficient to cause the harm

i. Considered to be indivisible causes – causes that are both necessary and combine to produce a single indistinguishable harm

C. Concert of action1. Theory that sometimes permits a plaintiff who is injured by a defendant’s tortuous conduct to impose

liability on someone else in addition to that defendant2. Shinn v. Allen

a. Facts: underage drinking – crashed into plaintiff – claims that defendant assisted intoxicated person to drive

b. Rule: all those who, in pursuance of a common plan or design to commit a tortuous act, actively further it by cooperation…are equally liable

c. Test to determine whether defendant substantially assisted wrongdoer:i. Nature of wrongful actii. Kind and amount of assistanceiii. Relation of the defendant and the actoriv. Presence or absence of the defendant at the occurrence of the wrongful actv. Defendant’s state of mind

3. Common plan or objective: person may be held liable for harm caused by another person if defendant expressly or impliedly agrees to cooperate in a particular line of conduct or to accomplish a particular result

4. Substantial assistance and knowing tortuous conduct – must prove…a. Defendant knew conduct was tortuous and b. Defendant substantially assisted or encouraged actor

5. Substantial assistance and separate tortuous conducta. Person provides substantial assistance to the other person whose tortuous conduct harms

the plaintiff and b. Person’s conduct, separately considered is tortuous

D. Alternative liability1. Situations where multiple actors, but only one or some of them (not all of them) caused the harm2. Alternative liability theory expose actor to liability where there is possibility that plaintiff’s harm was

entirely caused by someone else3. Summers v. Tice (Cheney case)

a. Both defendants acted negligently – defendant has burden of proving that other was sole cause of harm

b. Reasoning: each joint tortfeasor is responsible for whole damage to plaintiffi. Let defendants apportion damage distributionii. Defendants have better information as to who may have actually caused harm

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E. Joint v. several liability 1. Two defendants injure the plaintiff and plaintiff's damages are $100,000

a. Joint AND several liability=both are liable for the full amount. Plaintiff can go after one or both. If D1 has lots of money=can go after D1 for all money. Or can go after both and they would split it

i. If P collects 100% from D1, and then tries to go after D2=D2 is protected. P will be prohibited from collecting more than 100%a) D1 pays 100%, D1 can then go sue D2 for the % D1 feels they are liable for the

judgment=contribution1) What amount of the total should D1 be responsible for?

A. At time of common law=juries only asked to determine if D was liable (then Ds split it evenly)

B. NOW juries apply percentages of responsibility and that determines percentage of liability/damages due from each D

b. OTHER CHOICE: SEVERAL LIABILITYi. Each defendant is obligated to pay

a) Plaintiff gets separate individual judgments against each defendant1) All plaintiff can do is seek to enforce individual judgment against each

defendant (rather than ability to enforce full amount on any defendant/in any distribution they chose under joint and several)

2. PLAINTIFF PREFERS joint and severala. HERE: joint and several was applied=if both had money each paid 50%=one person paid

50% too much and other paid 50% too little but some think it is fairb. WHY?

i. What other harm (beside hitting the defendant in the face) did BOTH D's cause?a) Legal interest: did the D do anything that hurt the victim from a legal, tort law

point of view1) Hunter #2, whose pellet did not hurt the victim, did hurt/harm victim by

making the victims potential tort case harder to work out (kind of conduct that hurts someone’s litigation chances)

A. Do we have an interest in potential litigation success??B. In some courts you can sue someone for getting rid of evidence

they should have known might be needed in a court case (insurance company throws away car and you later want to sue car manufacturer)

F. Market Share Liability1. Applicable in cases where victim has been harmed by a product that was produced by a number of

manufacturers to identical specifications -> plaintiff has no way of identifying sources of the product and cannot be sure that he or she has sued actor who caused the injury

2. Hymowitz v. Eli Lillya. Market share liability doctrine: liability is apportioned so as to correspond to the overall

culpability of each defendant, measured by the amount of risk of injury each defendant created to the public at large

b. Liability of company is only several in this case – each defendant responsible for only an individual share of the plaintiff’s total damages

i. Joint and several liability: each liable defendant jointly responsible for plaintiff’s full damages – plaintiff chooses who pays

c. NY statutes increased SOL to encompass these cases3. Black v. Abex

a. Requirements for market-share liability:i. Injury or illness occasioned by a fungible product (identical-type product) made by all

of the defendants joined in the lawsuitii. Injury or illness due to a design hazard, with each having been found to have sold the

same type product in a manner that made it unreasonably dangerousiii. Inability to identify the specific manufacturer of the product or products that brought

about the plaintiff’s injury; andiv. Joinder of enough of the manufacturers of the fungible or identical product to

represent a substantial share of the market

Torts Outline 12

b. Market share liability not applicable in asbestos cases – asbestos is not a fungible product (variety of uses and amounts)

G. Liability for lost chance of recovery or for increased risk of eventual harm1. Traditional principle: plaintiff could only recover if proved that adverse consequence was caused by

doctor’s error 2. Lord v. Lovett

a. Facts: auto accident – misdiagnosed spinal injury – loss of opportunity for better recoveryb. Analysis:

i. Identify plaintiff’s cause of action/conditionii. Identify whether the defendant’s actions caused the condition

c. Loss of opportunity doctrine: medical malpractice form of recovery which allows plaintiff, whose preexisting injury or illness is aggravated by alleged negligence of doctor, to recover for lost opportunity to obtain better degree of recovery

d. Three approaches to loss of opportunity claims:i. Traditional tort approach (all or nothing)

a) Plaintiff was deprived of at least 51% chance of a more favorable outcome than she received

b) Recover damages for entire preexisting condition/illnessii. Varied traditional approach (worst of both worlds)

a) Defendant’s negligence more likely than not “increased the harm” to the plaintiff or “destroyed a substantial possibility” of achieving more favorable outcome

iii. Loss of chance approacha) Plaintiff has to prove a factual connection between the defendant’s negligence

and the lost opportunityb) Best approach because only receives damages for the lost opportunity, not the

entire injuryc) Expands the field of plaintiffs

e. By choosing the loss of chance doctrine, the has changed the cases – plaintiff now has the chance to prove the loss of a chance

f. Social policy concerns with adopting this new principle:i. May want to apply standard to prevent more instances of medical malpractice

3. Petriello v. Kalmana. Plaintiff had 8-16% change of future complications from surgery

i. If something happened, statute of limitations would probably run before actionii. Couldn’t get immediate remedy because future actions and low rate of potential

occurrence (did not meet preponderance of evidence)b. Court: defendant pays for increased risk of complications

i. Policy problem: plaintiff overpaid if no complications, plaintiff underpaid if does have complications

ii. Result is great deterrence as a class – average out to amount for someone who did develop complications

c. Most states: if jury believes 51% or more chance for future issues, jury can award up to full amount of future resolution

Torts Outline 13

Limits on Liability: Duty and Proximate Cause

I. Introduction A. Role of duty and proximate cause:

1. Harms of defendant separated into two categoriesa. Harms the defendant should be required to pay forb. Harms whose costs the victims should bear themselves

2. Liability limited by policy based doctrines related to duty and causeB. Two different approaches to solving same problem

1. Duty: if not have a duty to a person, no liability for any injuries inflicted2. Proximate cause: even though have cause to injure someone, if injury is not proximately linked to the

cause, no liability3. Problem with this: when person acts unreasonably, should the person have to pay for every event

related to their conduct or should we draw the line somewhere?C. Palsgraf v. Long Island Railway

1. Plaintiff claims guards acted negligently by pulling passenger off train and releasing container of fireworks that exploded upon impact with ground

2. Court: prudent, vigilant eye of a reasonable person would see dangera. Essence of issue = dutyb. Causation is not important if there is no duty in the case

3. Dissent (Andrews)a. Duty is owed to everyone who may get injured due to our negligent conduct – but still may not

have to payb. Factors relevant to legal cause:

i. “But-for” cause – must be something without which the event would not happenii. Natural and continuous sequence between cause and effectiii. Substantial factoriv. Directness without too many intervening eventsv. Attenuationvi. Likelihood of injuryvii. Foreseeabilityviii. Remoteness in timeix. Remoteness in space

c. Because of convenience, public policy, or a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point

d. Too attenuated to not find foreseeability in most circumstances4. Difference of opinions:

a. Allocation of responsibility between judge and jury (duty is question for the court)

II. DutyA. Hegyes:

1. Court: motorist cannot reasonably foresee that negligent would cause injuries to child en utero four years later

a. Need more than mere possibility of occurrence because in hindsight, everything is foreseeable (matter of law)

B. Duty question will always be: 1. Does a defendant like this owe a duty to a plaintiff like this to protect them from a certain kind of harm

under this type of activity?C. Dykema v. Gus Macker

1. Plaintiff sued for negligence for failure to notify plaintiff of oncoming storm that resulted in injuries to plaintiff

2. Court: defendant did not have a duty to the plaintiff because there was no special relationship between the two

3. Duty principle: a person has given up something and therefore the person is owed a duty by the person that was given something

4. Two approaches to finding whether there is a duty taken by the court:a. Determining whether plaintiff has entrusted himself to the control and protection of another,

with a consequent loss of control to protect himself

Torts Outline 14

b. Multiple factors: balance of societal interests, severity of risk, burden of defendant, likelihood of occurrence, relationship between the parties, foreseeability of harm, defendant’s ability to comply with proposed duty, victim’s inability to protect himself from harm, costs of providing protection, whether the plaintiff had bestowed some economic benefit on the defendant

i. Multiple factor test not applied rigorously (no qualification for how many factors need to be met)

ii. Only a description of the aspects of life that the high court thinks may matter in determining whether there may be a duty

5. Difference between recognizing a duty and what the duty requiresD. Graff v. Beard: majority view

1. Issue: whether a common-law duty may be imposed on a social host who makes alcohol available to an intoxicated adult guest who the host knows will be driving

2. Holding: host does not have a duty when supplying alcoholic beverages to adults 3. Court rationale for rejecting duty of care:

a. Very difficult to know whether or not a person is intoxicated i. Different signs of intoxicationii. Cannot observe all peopleiii. No control over other people to prevent excessive drinking

b. Counter to this argument:i. In theory, could rely on the jury to tell whether or not a person was drunk - therefore,

could apply the reasonable person test and still allow responsible social hosts from being found guilty in all cases

4. Duty of care is actually on the person who is drinking, not the person providing the alcohol5. Court: only way to comply with suggested duty of care is either not serve alcohol at all or cut off

guests that are intoxicateda. Drinker should have primary responsibility - but could also hold the host to some standard to

act reasonablyb. Difficult balance: Don't want a friend to get hurt by driving drunk but don't want to put self in

danger or have to call the police on your friendsE. Various state provisions for social host duty:

1. NJ statute (pg. 235):a. Social host has some duty of care when the person is visibly intoxicatedb. Offers protection to the host:

i. Limits the duty to only when a person is visibly intoxicatedii. Host has to act willfully and knowingly provide alcohol to the intoxicated

c. Statute does not cover underage drinkers - good for plaintiff (could argue greater duty of care required by social host)

d. More balanced than TX decision to not require any duty of care, but not so extreme to require duty in all circumstances

2. AK statute:a. Only licensed people who serve to underage or drunk people are liable

F. Eisel v. Board of Education (teen suicide)1. Issue: Should there a duty of care required of the school officials to the students in the school?2. Factors used by court to determine whether there is a duty:

a. Foreseeability of harm to plaintiff – duty if reasonably foreseeable to someone in defendant’s position that a person in plaintiff’s position will suffer type of harm that occurred

b. Degree of certainty of harmc. Closeness of conduct between conduct and injury - proximate cause element of a negligence

actions considered on the macroscale of policy3. Analysis:

a. Foreseeability of harm to plaintiff: completely foreseeable because decedent ended up deadb. Degree of certainty that the plaintiff would suffer injury - 100% by counselors because

decedent lost lifec. Closeness of conduct between conduct and injury on the macroscale

i. Why does the court take a global approach in their analysis of the third element:a) Considers whether there is a general duty in the community - more

applicabilityG. How should the court review the factors - all general, all specific, mixture as they already apply:

1. Recognizing duties of care in a general manner - usually easy to know if the harm has occurred (with exception of emotional distress)

Torts Outline 15

H. NOTE: issue should be SHOULD there be a duty of care - never "is" because assumes that duty is already out there and just needs to be found

1. NOTE: duty does not equal liability

III. Proximate cause:

A. Introduction1. Plaintiff must show cause-in-fact and satisfy requirement of proximate causation

a. Requirement expresses law’s policy judgment – some cases it would be unfair to make defendants pay for all of the harms associated with their conduct

b. Reflect idea that defendant’s conduct and plaintiff’s harm must have a connection that is reasonably close in order to justify imposing liability on the defendant

2. Proximate: defendant’s act satisfies policy criteria jurisdiction uses to treat a harm a person causes as one the person must pay for instead of one that the person may inflict for free

3. Three approaches to proximate cause:a. Directness: defendant’s conduct that is cause-in-fact of a plaintiff’s harm as proximate cause

if no intervening forces between defendant’s act and plaintiff’s harmb. Foreseeability: cause-in-fact as proximate cause if plaintiff’s harm was reasonably

foreseeablec. Substantial factor: defendant’s conduct as a proximate cause of plaintiff’s harm if the conduct

is important enough, compared to other causes of the harm, to justify liability4. Proximate cause = question of fact = left to jury to decide

B. Directness1. Polemis

a. Action of dropping a plank of wood was already negligent because could have harmed someone or cause injury to the ship

b. Risk of dent, pay for fire? - YESc. Issue: whether fire was a foreseeable consequence of dropping the plank on the shipd. Court:

i. This was a direct consequence of dropping the plank on the e. Directness test: pro-plaintiff result, treats foreseeability of the actual action as not necessary

to establish damagesf. Deterrence: directness test requires a person to be extremely careful g. Could be liable for a wide range of damages inflicted by any workers and therefore cannot

establish beforehand how much you may be liable for (critique of test)2. Laureano v. Louzoun:

a. Plaintiff boiling hot water, knocked two pots together and burned self, sued landlord for negligence to provide hot water

b. Landlord is a "but-for" cause of the injuries - BUT actions were not direct enough to create liability

c. Court:i. Proximate cause is determined by directness test - there were other factors that

intervened that caused the injury that were not directly caused by the landlord's actions

ii. Requires some type of judgment - what types of actions can be considered to break the chain of directness?

C. Foreseeability1. Linking Liability to Foreseeability

a. Tieder v. Little:i. Specified claim of unreasonable conduct: wall was constructed negligentlyii. Causal link between design and death: bizarre circumstances because not

foreseeable that the event would happen the way it did to cause the plaintiff's deathiii. Court:

a) Consequences were foreseeable as her death because wall's poor construction could have foreseeably caused the death of a person due to the negligent construction

iv. General principle: defendant has to pay for kind of event that happen fall within the general risk the defendant created by their negligence

a) If event is very specifically characterized - very likely to be a discrepancy

Torts Outline 16

b) If event characterized generally - more likely to find for plaintiffv. Whether injury was reasonably foreseeable consequence = within scope of danger

created by defendant’s negligenceb. McCain v. FL Power Corp.

i. Issue: Whether foreseeability should be used in proximate cause and duty analysesii. Court:

a) Foreseeability in duty: defendant who creates a risk is required to exercise prudent foresight whenever others may be injured as a result

b) Foreseeability in proximate cause: harm is "proximate" if prudent human foresight would lead one to expect that similar harm is likely to be substantially cause by the specific act or omission in question

iii. Is this approach of using foreseeability twice reasonable?a) Court rationalizes use by foreseeability of duty being related to a court

determined standard that allows the case to be heard by the jury - general circumstances

I) Foreseeability of proximate cause: connected more with particular facts and is decided by the jury

iv. Critique: First stage is so general as to be meaningless - will never produce an answer that there is no duty or foreseeability - fails to sort cases into two categories (automatic victory for plaintiff or no victory for plaintiff)

2. Relating the “Eggshell Plaintiff” Rule to a Foreseeability Analysisa. Shaffer v. Hoffman:

i. Tortfeasor has to pay for the damages caused to a person "as is" a) If person is unusually weak, defendant is liable for additional effects due to

this predispositionii. Tort law makes you pay for unforeseeably consequences if related to the unusual

magnitude of the harmiii. Shabby millionaire: foreseeability is not an issue in determining the extent of the

damages that the injuries causeb. Calculation of damages can mitigate severity of eggshell plaintiff rule (ex: if plaintiff’s life was

already shortened)3. Difficulty in Applying Foreseeability Analysis

a. Foreseeability approach tailors liability to the risks a defendant should have comprehended = deterrence power directed properly

b. Kinsman Transit Co. (ice and bridges)i. American jurisdictions would accept this foreseeability standard of proximate cause

a) Harm suffered is from outside scope of riskii. Liability proven because same forces that made defendant's actions risky were at

stake in real harmc. Does proximate cause doctrine ever prevent defendants to pay for actions that may not be

cause-in-facti. Court: question of politics and common sense

4. Reason why an issue may be negligence may have nothing to do with the type of harm presenteda. Policy issue to prevent certain types of action b. Ex: giving a toddler a gun, toddler drops gun and breaks foot - find negligencec. Ex: person not paying income taxes - would not find negligenced. Restatement approach to foreseeability - retroactive when in triale. Otherwise do not care about foreseeability

D. Substantial Factor Test1. Substantial factor test for proximate cause generally ignores foreseeability

a. Considers whether contribution of party’s act was relatively importance compared with other but-for causes in producing the harm suffered by the plaintiff

2. American Truck Leasinga. Demolition contract was an intervening act that cut the causal chainb. Rule: defendant's action must be a substantial factor in bringing about the harm to another -

taking into considerationi. Number of other factors which contribute in producing the harm and the extent of the

effect which they have in producing it;

Torts Outline 17

ii. Whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible;

iii. Lapse of time3. Foreseeability and the Restatement’s Substantial Factor Test:

a. 435(1) - foreseeability of harm or manner in which if occurred to someone in defendant’s position is irrelevant to determination of whether defendant’s act is substantial factor

b. 435(2) – if looking back from harm to negligent action and harm was extraordinary = no liability

4. Different types of proximate cause tests:a. Directnessb. Foreseeable

i. General kind of harm has to be foreseeableii. Scope of risk was different from kind of risk that hurt the plaintiff, defendant might be

protected from claimsc. Substantial factor

5. Reality of proximate cause:a. Cases are rarely reversible on proximate cause b. States usually make some combination of anything to determine proximate cause

6. Superseding/intervening causes:a. Come up in cases where multiple causes to the injuryb. Challenge for this doctrine: what to do about this other conduct? Does this limit liability?c. Superseding: cuts the causal chain and protects the original actor from being exposed to

liabilityi. Pro-defendant because only exposed to liability for original event

d. Intervening: does not cut causal chain, defendant is still liable for harm caused i. Pro-plaintiff

e. Tort law: usually asks jury whether second act was foreseeable or not - if foreseeable, intervening, if not foreseeable, protect original actor from liability

7. Chelcher v. Spider Staging Corp. (sandblasting in a ball)a. Prongs of causation that must be proven by plaintiff:

i. Alleged product defect was the cause-in-fact of injuriesii. Whether the alleged defect was the proximate of legal cause of injuries

a) Conduct is proximate cause if conduct is a substantial factor in bringing about the harm

b. Trial courti. Not even sure if action was cause-in-fact of injuries - plaintiff was fully aware of the

danger and therefore claim is invalid ii. Proximate cause: substantial factor - failure to warn was not a substantial factor in

bringing about plaintiff's injuriesa) Factor that is tricky to apply in substantial factor analysis against the plaintiff:

I) Plaintiff's unreasonableness/carelessness - has overlap with idea that negligent plaintiffs have to lose

II) Since this doctrine has been declined in 48 states, does not comport with current tort law issues

a. If defendant can no longer get off the hook by proving plaintiff's contributory negligence - is it okay to call the plaintiff's actions causation instead of negligence?

c. Restatement rules:i. 433(a) – courts should consider “number of other factors which contribute in

producing harm and extent of effect which they have in producing it”ii. 434 – determination of proximate causation within province of court when reasonable

minds cannot differd. May be more than one proximate cause

Torts Outline 18

8. Taylor v. Jackson (continuous rear-ending)a. Temporal issues in substantial factorb. Holding: reasonable individuals can differ on whether a two hour difference could create

substantial factor in harmc. Restatement 433(c):

i. Where evident that influence of actor’s negligence is still substantial factor, mere lapse of time, no matter how long it is, is not sufficient to prevent it from being the legal cause of the other harm

E. Intervening and Superseding Forces1. In general:

a. Intervening act: third party conduct comes after the defendant’s act in the chain of events leading to the plaintiff’s injury

i. Intervening act that is foreseeable – not superseding and does not protect defendant from liability

b. Superseding event: third party conduct that comes between defendant’s act and plaintiff’s harm and was not reasonably foreseeable to someone in defendant’s position - will protect defendant from liability

c. Focus is on foreseeability of intervening act rather than the foreseeability of the harm that results or the plaintiff who was injured

2. When is an intervening force treated as superseding?a. Price v. Blaine Kern Artista, Inc. (Ben Stein in Reno)

i. Plaintiff claims: mask was negligently created because of absence of safety harness to support head and neck under heavy weight

ii. Better argument court created for the plaintiff:a) Chain of injury remains unbroken when the third party's intervening

intentional act is reasonable foreseeableb) Jury could reasonably find that because plaintiff was in a busy area, potential

to be bumped and be injured was foreseeableiii. Idea that third party misconduct severs causal chain - usually ignored

b. McClenahan v. Cooley (stolen car):i. Actor's conduct was cause-in-fact of injuryii. Issue: Should car theft be considered a superseding/intervening act in the causal

chain?iii. Jury may conclude that defendant was unreasonable in leaving his keys in a parked

cara) Dangerous if someone steals a car - pose a greater to the public

iv. Statement: once TN court allowed leaving keys in the car to be considered negligent, superseding cause no longer relevant

a) Once the definition of negligent act becomes leaving keys in the car - no longer can argue that a superseding act cuts causal chain

b) Point of tort is to deter - because negligent act that is trying to be deterred, cannot argue that end result of theft was a superseding event

c. Three ways intervening acts are not superseding causes:i. If it is a normal response to the negligent act that is reasonably foreseeable and a

substantial factor in bringing about the harm;ii. If it could reasonable have been anticipated; oriii. If the intervening conduct could have been anticipated and taking the risk of it was

unreasonable (sometimes referred to as scope of risk test)a) Asks whether the intervening act was among the foreseeable circumstances

that made the defendant’s conduct blameworthyd. CO statute on proximate cause: limits liability of gun/ammunition manufacturers for placing in

stream of commerce3. Negligent treatment of a plaintiff’s injury: intervening or superseding?

a. Weems v. Hy-Vee:i. Plaintiff slipped and fell in grocery store, went to doctor, doctor gave epidural -

infection a) Suit for damages associated with injuries received as result of fall, including

infectionii. Rule: intervening act can only become superseding if not a normal consequence of

original tortfeasor’s acts or must not have been reasonably foreseeable Torts Outline 19

a) Subsequent risk must be within scope of original riskb) Original tortfeasor does not have to foresee specific conduct

iii. Generally: medical treatment sought by injured person = normal consequence of original tortfeasor’s acts

a) Restatement 457 – comment B: risks associated with human fallibility in medical treatment also included in scope

b. Corbett v. Weisband:i. Plaintiff had history of knee issues - went to Dr. Weisband for treatment

a) Treatment unsuccessful according to Dr. Greene - knee replacement - fails - leg amputation

ii. Issue: whether courts should treat Dr. Greene's actions as a superseding event to any negligence performed by prior doctors

iii. Rule: negligent act is considered to be superseding act if…a) Actor at time of his negligent conduct should have realized that a third person

might so actb) Reasonable man knowing the situation existing when the act of the third

person was done would not regard it as highly extraordinary that the third person had so acted

c) Intervening act is a normal consequence of a situation created by the actor's conduct and the manner in which it is done is not extraordinarily negligent

c. Some jurisdictions: If plaintiff acted negligently, recovery of damages is reduced or eliminated entirely

Torts Outline 20

Defenses

I. Introduction:A. Defenses that protect defendant from liability:

1. Negligent conduct by plaintiff (can bar or limit recovery)2. Plaintiff’s agreement to accept risks created by defendant’s conduct (prevent recovery)3. Plaintiff’s failure to minimize consequences of defendant’s conduct or failure to protect against it

(reduce or eliminate damages)

II. Plaintiff’s Contributory Fault:

B. Traditional common law treatment of plaintiff’s negligence1. Plaintiff’s negligence = complete bar from recovery if one of legal causes of plaintiff’s injury2. Wright v. Norfolk and Western Railway Co. (truck crossing railroad)

a. Rule: if jury finds plaintiff contributorily negligent, plaintiff may not recoverb. Court analysis:

i. Plaintiff had sufficient knowledge of circumstances surrounding the train/railroad crossing and failed to act accordingly

ii. Defendant was negligent in creating an ultra-hazardous crossing iii. Plaintiff was "architect of his own misfortune"

c. Purpose of total bar of recovery on plaintiffs:i. Maximizes deterrence of plaintiff to act negligently (however, does not maximize

deterrence to defendant)

C. Modern comparative treatment of a plaintiff’s negligence1. Introduction:

a. Criticism of contributory negligence = comparative negligence replaces (removes complete bar of recovery for plaintiffs)

b. Two varieties of comparative negligence:i. Pure: allows contributorily negligent plaintiff to recover some portion of his or her total

damages as long as the defendant’s negligence was also a proximate cause of the accident

a) Damages will be reduced by whatever percentage jury assigns to the plaintiff’s negligence

ii. Modified (two forms):a) 49%: negligent plaintiff allowed to recover damages only if his negligence is

less than that of the defendantb) 50%: negligent plaintiff allowed to recover damages only if his negligence is

less than or equal to that of the defendantc) Only difference results in cases where jury splits negligence 50/50

2. McIntyre v. Balentine:a. Jury: both plaintiff and defendant equally at fault (both consumed alcohol), rule in favor of

defendant b. Rule: as long as plaintiff's negligence is less than negligence that defendant provided, then

can recover, but damages are reduced in proportion to percentage of plaintiff's negligencec. Policy concerns:

i. Should the doctrine of contributory negligence stay or go?ii. If we decide that contributory negligence should go, what do we replace it with?

d. Court's reasoning for adopting modified system of comparative negligence:i. In a pure system, plaintiff could recover under circumstances in which majority of

fault fell on plaintiffii. Want to get rid of the harshness of the old rule, but allow the more innocent plaintiffs

to recovere. Is it okay for the court to change the standard or should it have been created by the

legislature?i. Problematic for courts to wait on legislative changeii. Legislature can change after the case if they would likeiii. Difference in rule adopted:

a) States where court made decision choose pure

Torts Outline 21

b) States where legislature made decision choose modifiedc) Modified form is more arbitrary, explicit choice, detailed - looks better as a

statuteI) Pure form is more black/white - easier for courts to applyII) Courts understand bad public policy behind modified forms and how

this affects casesf. Modified form of comparative negligence presents deterrence to bring misdirected suits when

plaintiff is majority of fault3. Purpose of telling the jury what consequence of judgment will have on holding:

a. Prevents jury from being upset over result that may not satisfy jury's intentionsb. Percentages are arbitrary in system

4. Effect of jury instructions on deliberation:a. May come back with 50/50 and not know consequences of their decisions if not get

instructionsb. Jury will second guess their conclusions without information anyway

5. In comparing strengths/weaknesses of modified system, ask yourself, how does modified system support deterrence of poor conduct?

a. Pure system punishes everyone who contributes to the harmi. More judgments against defendants than in modified system

b. Modified system applies some deterrence to defendants, but great deal of deterrence to plaintiffs

6. Dobson v. Louisiana (power line = electrocution):a. Issue: What do we expect the jury to measure when they assign degree or percentage of

negligence attributable to a person for purposes of reducing recovery due to comparative fault

i. Almost NO courts give juries any guidance on this issue7. Jensen v. Intermountain Health Care (medical malpractice combine fault)

a. Issue: for comparative negligence, do we consider all of the defendants together or each defendant against plaintiff separately

i. Would not come up in pure comparative negligence because wouldn't matter if plaintiff had any negligence to win

b. If against defendants individually, plaintiff loses - if against defendants together - plaintiff winsc. Three styles of court analysis:

i. Judge's personal feelings on the issueii. Defining what other jurisdictions have doneiii. Choice that does the best job serving the purposes of the basic structure

d. Need to pick the rule that supports the public policy/social purpose desired i. What social policy in legislature's mind - take into account the legislative history -

modified contributory negligence accepted (not pro-plaintiff)a) Therefore, want to protect good plaintiffs

8. Unit rule in modified comparative negligence:a. Plaintiff’s degree of fault is compared to defendant’s degree of fault

i. If multiple defendants, courts can treat two ways:a) Compare plaintiff’s fault to each defendant separately = defendant may

escape liabilityb) Compare plaintiff’s fault to defendants as a unit = no defendant may escape

liability

D. Reckless Conduct:1. Coleman v. Hines (riding with intoxicated driver):

a. Loopholes that would allow plaintiff to win even if negligent - defendant's actions were willful and wanton

b. Doctrines that contributory negligence jurisdictions use to modify contributory negligence:i. Even though contributory negligence jurisdiction negligent plaintiff can win in cases

where defendant was negligenta) Withdrawing contributory negligence rule and not barring recovery

ii. Last chance doctrine: defendant had last clear chance to prevent conduct and did not - plaintiff can still recover even if negligent

a) Plaintiff placed in position of peril from which she could not escapeb) Defendant saw, or by exercise of reasonable care should have seen and

understood perilous position of plaintiff Torts Outline 22

c) Defendant had time and means to avoid accident if defendant had seen or discovered plaintiff’s perilous position

d) Defendant failed or refused to use every reasonable means at his command to avoid impending injury to plaintiff AND

e) Plaintiff was injured as a result of defendant’s failure or refusal to avoid impending injury

2. Downing v. United Auto (midget racecars):a. Problem: if defendant acts willfully or wantonly, does plaintiff's recovery get reduced because

of negligent action on his part? Should the plaintiff's negligence be ignored?i. In comparative negligence jurisdiction, why should plaintiff's negligence be ignored

a) Defendant acted willfully and wantonlyb) Contributory negligence era rule: if defendant acted worse than plaintiff,

ignore the plaintiff's negligenceb. Court: jury will figure out if conduct was reckless and take this into account when assigning

damages 3. Last chance doctrine: should not be applicable anymore because jury can take care of it

III. Assumption of risk:

E. Express assumption of risk:1. Definition of express assumption of risk:

a. Agreement by plaintiff, usually written, to accept risks created by defendants' activities and forgo right to sue defendant in case of negligent conduct on defendant's part

2. Wagenblast v. Odessa School District:a. Whether public school districts can require students and their parents to sign a release of all

potential future claims as a condition to student participation in certain school-related activities

b. Six characteristics to determine whether exculpatory agreements violate public policy:i. The agreement concerns an endeavor of a type generally thought suitable for public

regulationii. The party seeking exculpation is engaged in performing a service of great importance

to the public, which is often a matter of practical necessity for some members of the public

iii. Such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards

iv. Because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services

v. In exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence

vi. The person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees or agents

3. Two questions as to whether release is enforceable:a. Is the activity, in general, one that society would accept releases for?b. Assuming that the activity in general is one that the law will tolerate releases, is the release

subject to enforcement?4. Turnbough v. Ladner (scuba steve):

a. Release signed by Turnbough was void i. Case proceeds on assumption that scuba diving is an activity that courts recognize

as allowing releasesii. Release was not clear and explicit - Turnbough did not intend to accept risks

associated iii. Instructor created additional harm outside of inherent risks of activityiv. Kinds of suits a person is barred from have to be explicit

b. Important factor in this case: what risks the plaintiff meant to accepti. Turnbough meant to give up nothing - thought that waiver would be unenforceable

Torts Outline 23

F. Implied Assumption of Risk:1. Definition of implied assumption of risk: plaintiff has not made an explicit agreement to excuse the

defendant's negligence, but the plaintiff has acted as if he or she was willing to encounter the risks presented by that negligence

a. Primary implied assumption of risk: defendant has no duty to the plaintiff or has not breached duty to plaintiff

i. Serves as rebuttal to plaintiff’s arguments for duty and breachb. Secondary implied assumption of risk: subjective test of whether plaintiff actually knew and

appreciated risk created by defendant’s wrongful conduct and voluntarily accepted the riski. Serves as defense for defendant ii. Two types of secondary assumption of risk:

a) Secondary unqualified assumption of risk – bars or reduces plaintiff’s recovery even if plaintiff acted reasonably

b) Secondary qualified assumption of risk – adds fourth element of “objectively unreasonable for the plaintiff to expose herself to the risk” (similar to contributory negligence defense)

c. Traditionally, both concepts served as complete bars to recovery2. Schroyer v. McNeal (dancing on ice):

a. Issue: now that we have comparative negligence, what do we do with contributory negligence?

b. Court: plaintiff assumed the risk of her injury, acknowledged the risk, and yet acted in face of that risk

i. Plaintiff denied that her conduct was unreasonablec. Rule: doesn't matter if conduct was reasonable or unreasonable, if you saw it, you are

negligent if you actd. Bar to recovery is two-fold:

i. Plaintiff assumed riskii. Plaintiff was contributorily negligent

e. Defenses of contributory negligence and primary assumption of risk can be applied in cases where:

i. Plaintiff knew and appreciated and voluntarily accepted the risk andii. A reasonable person either would not have accepted the risk or, having done so,

would not have behaved as the plaintiff behaved3. Davenport v. Cotton Hope (no lights):

a. Issue: whether assumption of risk survives as a complete bar to recovery in a comparative negligence system

b. Rule: assumption of risk is not a complete defense, has to be weighed in comparative negligence analysis

i. Express assumption of risk = complete barc. Holding: plaintiff is not barred from recovery by the doctrine of assumption of risk unless the

degree of fault arising therefrom is greater than the negligence of the defendantd. Why is the standard so redundant? Want to make it difficult to meet the standard

4. At common law - unreasonable conduct = lose, acknowledge risk = losea. What should comparative negligence do with this? Depends on

i. If unreasonably ignorant of the risk, assumption of risk will not kick in because did not have any knowledge

ii. If knowledgeable and break leg, conduct is a hybrid - focus on knowledgeable or ignorant - if know it's a risk and still encounter it, maybe special treatment?

iii. Best idea is just to treat all of these issues as part of the comparative negligence analysis

5. Comparison of plaintiff's conduct:a. Ignorant - may or may not be unreasonable b. Knowledgeable and daring - not a problem in this case because person who is daring, is

acting negligently = unreasonable

Torts Outline 24

IV. Mitigation and Avoidable Consequences:G. Introduction:

1. Mitigation of damages: lessening of damages if possibly could have reduced total damages (ex: going to hospital)

2. What does tort law say about mitigation?a. If action after the event could have prevented additional injury - damages reducedb. If victim unreasonably declined to get medical attention, damages should be reduced

H. Law v. Superior Court (seat belts):1. Issue: Can the obligation to mitigate damages be included in circumstances where the plaintiff should

have acted specifically before an event?2. Rules:

a. Uniform Comparative Fault Act: Fault…includes unreasonable failure to avoid an injury or to mitigate damages

b. Under comparative fault statute, each person is under obligation to act reasonably to minimize foreseeable injuries and damages – if person chooses not to use safety device, person may be at fault

3. Different statutory responses to issue of mitigation of damages in this situationa. Some states – prohibit introduction of seatbelt non-use for ANY reasonb. Other states – imposed precise limits on the percentage of responsibility a jury is permitted to

assign to a plaintiff’s failure to use a seatbelt4. Different approaches to mitigation of damages:

a. Majority of decisions reject previous actions as mitigation possibilitiesb. Allow the jury to decide whether prior action should be part of mitigation

5. Compare with thin-skull doctrine:a. Not wearing a seatbelt is considered to be unreasonable conduct of the plaintiffb. However, being more susceptible to harm because of prior condition would not be considered

to be unreasonable conducti. But could argue that thin-skull plaintiff should be wearing a helmet at all times to

prevent injuries

V. Immunities:I. Sovereign Immunity:

1. Historically, federal and state governments immune from suit – now, immunity has been modified in various ways for all types of government

a. Federal Torts Claims Act: allows federal government to be suedi. Most notable exception to FTCA: preclusion of suits based on discretionary functions

a) US government cannot be held liable under strict liability theories (only waiving immunity for negligent acts)

b. Most states have similar statutesc. Municipalities: immune from tort liability in connection with “governmental” or “proprietary”

activities2. Coulthurst v. US:

a. For certain functions, the government may be held from tort liability b. Government becomes liable under any tort issue for anything that could be sued for against a

private citizeni. Have to sue in federal courtii. Not going to get a jury

c. Discretionary Function Exception:i. Conditions which must be met in order for government not to be sued:

a) Act has to be discretionary in that it involves an element of judgment or choice and are not compelled by statute or regulation

b) The judgment or choice in question must be grounded in considerations of public policy or susceptible to policy analysis

ii. What counts is the kind of discretion in choosing whether to bar the suitd. Kind of policy choice could be too skimpy to enforce the decision (ex: enforcement of

protecting natural resource v. sign posted for hikers)3. Carter v. Chesterfield:

a. Comparison of how governmental immunity would work on state/municipal level as federalb. Court: nursing home was performing government function

Torts Outline 25

i. Test: whether, in providing such services, the governmental entity is exercising the powers and duties of government conferred by law for the general benefit and well-being of its citizens

c. On state and local level, different approaches - VA does not ask what action wasd. Why is public apartment different from public nursing home?

i. Nursing home was proprietary - fees charged, not available to all residentse. What to learn: proprietary/governmental distinction is hard to apply and difficult to interpret

J. Intrafamilial Immunity:1. CL prevented suits by one family member against another in order to…

a. Preserve family harmonyb. Protect insurance companies from false claims c. Avoid using judicial resources to transfer wealth from one family member to anotherd. Protect parental discretion, authority, and control

2. Boone v. Boone:a. CL immunity that prevents families from suing each other should be done away with

because…i. Wrecks a happy familyii. Can't allow because will be collusion iii. Principles are inconsistent with each other because collusion would require family to

be cohesive and other reason would prevent this type of activity between the members

b. Court: CL is not consistent with current standards (allow women to sue)i. Weak justification from court because why wouldn't a person work together to get all

the money3. Broadwell v. Holmes:

a. Positions a state can have in allowing minors to sue parents:

Full Immunity Specified Activities Immunity Reasonable Parents

State should stay out - too difficult to know what is correct (consequences are unique to the relationship) - should respect variety in parenting

***** **1/2 (ordinary care should be up to parents, but still protects children)

No stars - No specific conduct listed as immune from trial

Protect children No stars **1/2 *****

b. Reasonable person v. reasonable parent standard:i. More inclined to find liability under reasonable parent standard

c. To expose more parental conduct to scrutiny maximizes protection to children, but also maximize state interference

d. In jurisdictions that have full tort immunity for parents, can parents just do anything?i. In between tort suits and criminal law = social service interference with statutory

enforcement to remove the child from the custody of his parentse. What is ideal mix of control/parent immunity?

i. Depends on who is the boss of instigating the case - if tort law - should be a private individual

a) If criminal law/child services - becomes a public authority that begins the case

Torts Outline 26

Apportionment of Damages

I. Apportioning Damages among Liable Defendants

A. Joint and Several Liability1. Apportionment issue is only raised when two or more defendants/tortfeasors2. Lacy v. CSX : (pg. 370)

a. Jury issued special verdict determining that Cacoe's blame was sole proximate causei. Trial judge entered judgment in favor of the railroad - b/c Cacoe was sole proximate

causeii. Bad for plaintiff to enter judgment against railroad (cannot collect from railroad)

3. How is it fair to hold one defendant liable for all damages (as stated by joint and several liability):a. Fair to plaintiff - still get to recover damagesb. Under common law doctrine, plaintiff who was contributorily negligent could not recover

(plaintiff had no fault)c. Not unfair to defendant that has to pay - still contributed to the injury, why not make them pay

for all damages?i. Each person had a significant causal role in the injury

4. Types of injuries:a. Divisible injuries: two separate injuries caused by two separate actors that can be separated

for purpose of apportioning damagesb. Indivisible injuries: most injuries in tort law, good ex: death - not going to say one person

caused one part of the death and the other person caused another part of death5. Joint and several liability still used in several states (25 states)

a. Under common law, D1 can seek repayment from other defendants if forced to pay total amount of damages to plaintiff

b. Modern approach: D1 only pays percentage of damages attributed to his negligent conduct percentage

6. Are jury instructions regarding J/S liability similar to comparative fault jury instructions?a. Similar: both about whether jury should get details about what results from jury findingsb. Different: jury instruction in J/S liability may affect who jury determines is at fault when

determining who should pay7. CO rule: tell jury about consequences for modified comparative fault

a. Rejected J/S liability - using several liability - and also no jury instructions for consequences to this choice

b. Tort reform movement: legislatures adjust J/S liability - statues (pg. 381)c. Deciding which type of statute to use:

i. Pro-plaintiff (J/S) or pro-defendant (several) goal?

B. Allocating Responsibility to Absent or Immune Actors1. Sullivan v. Scoular Grain Company of Utah : (Employer lawsuit)

a. Employer is immune from lawsuit - under state workers compensation provisioni. Prevents worker from suing the boss - in exchange, get statutory benefits for

compensationii. Have not kept up with what jurors would reward = not as fair to plaintiff

b. Issue: should jury be able to assign 100% liability to remaining defendants in suit or a portion of liability to all defendants (including those not in trial)?

c. Why this is controversial circumstance: i. Worker's compensation - not fair payment = remaining damages possible are not

paid to plaintiffd. Effect on worker for boss being excluded: plaintiff doesn't get to recover percentage of

damages attributed to injury (but still gets worker's comp)e. Issue becomes whether to let jury assign some responsibility to immune party

i. Doesn't matter in J/S liability because can still recover full damages from RRii. Under several liability - hurts plaintiff to acknowledge other actors

Torts Outline 27

II. Vicarious Liability

A. Respondeat Superior1. Trahan-Laroche v. Lockheed Sanders : (pg. 399)

a. Plaintiff sued under theory of respondeat superior - employee was acting within the scope of employment when accident occurred

i. Would also have to show that employee was acting unreasonablyii. Also claimed bad supervision of employee (not considered to be liability without fault

- not necessarily vicarious liability)b. Example of legal system imposing liabilityc. Why is this theory so accepted?

i. May encourage employers to be careful in selection of employees 2. Is it a good idea for good enterprises to pay for bad employees?

a. Tradeoff of societal goals - individual responsibility v. tort law emphasizing moral responsibility

b. Economic rationale: defining the costs that ought fairly be associated with a particular enterprise or defining a border between costs the enterprise is willing to bear in comparison to the costs society is willing to accept from the enterprise

3. Distinction between boss supervision and bad employee action breaks down because everyone is a worker for the company and therefore never really a boss (fictitious legal body) - everything is vicarious liability in some way

4. O'Connor v. McDonald's Restaurants : (pg. 402)a. Six terms of art included in case:

i. Going and coming: going to and coming back from work (boss is free from payment in this course of action)

ii. Special errand: exception to going and coming (boss may be liable)iii. Scope of employment: if action is proven to be within guidelines of working

conditions, boss may be liableiv. Frolic: personal deviation from standard path of employment (not employer liable)v. Detour: deviation from standard path to employment (employer liable)

b. Point of lots of terms of art:i. Which kinds of conduct are enough like the enterprise to associate with the

enterprisec. Issue: does going and coming rule of liability apply - was meeting an exception or a complete

departure from special errand?5. Hardest cases to apply this doctrine is when plaintiff is in vulnerable position and is harmed by defendant

- outside scope of employment because an intentional torta. If attributed of enterprise facilitate or encourage potential for intentional torts, more likely to be

within scope6. Santiago v. Phoenix Newspapers (pg. 407)

a. Problem with case question: requires fact-specific analysisb. Employer is generally liable if damage is caused when within scope of employment

i. How can boss get out of paying for this injury?a) Not within scope of employmentb) "Independent contractor" - this case

c. Respondeat superior - reasons for this doctrine:i. Effort by society to make sure that typical/essential impacts that the business has on

society are paid for by the businessa) Effort to prevent businesses from imposing costs on us that the businesses

should carry themselvesii. Encourages employers to conduct "good" hiring - not a mainstream view b/c boss will

still have to pay even if they completed perfect hiringiii. NOTE: want to know reason for this doctrine in order to apply to instant facts and

determine whether conduct falls within doctrined. Test for determining whether an employer-employee relationship exists:

i. The extent of control exercised by the master over the details of the workii. The distinct nature of the worker's businessiii. Specialization or skilled occupationiv. Materials and place of workv. Duration of employmentvi. Method of payment

Torts Outline 28

vii. Relation of work done to employer's regular businessviii. Belief of the parties

e. If they are an independent contractor and the company hires them to complete a job that is, in its nature, dangerous, employer is still liable

Torts Outline 29

Professionals

I. Professional Standard’s Basic Definition and RationaleA. Osborn v. Irwin Memorial Blood Bank : AIDS baby

1. Case was at a time when knowledge about AIDS was beginning to grow - very little scientific background2. Negligent act: blood bank's failure to test blood for AIDS

a. BB was acting in accordance with common procedures in the industryb. Although new techniques were being created that would test for AIDS - but not widely accepted in field

3. Issue: whether BB should be held to reasonable person or professional standard of carea. Professional standard:

i. Plaintiff's claim would lose at summary judgment stage - plaintiff would have to prove that defendant acted worse than other professionals in field (comparing to regular conduct)

b. Reasonable person standard:i. Plaintiff would be entitled to jury verdict - but difficult to assess with professional standard over

reasonable personii. Expert testimony to provide additional information about professional standardiii. Reasonable person standard has been replaced by the judgment of the professional

a) Creates juror personal thinking about what a reasonable person would do 4. Important point: because medicine is technical and because jurors lack technical training, professional

standard should be applieda. Another view: even though juries may lack this training, jury can still apply reasonable person standard

provided they receive expert testimony regarding the medical background5. Holding: apply professional standard6. Court analysis:

a. Who is considered a professional?i. Statutes cover BB in this case -> statutes are included under "professional" section -> BB =

professionalB. Rationale for professional standard of care:

1. Restricts jury's freedom in making decisions (can be beneficial)2. Because medical cases are highly technical, we need to use a professional standard of care

a. Criticism: there are lots of cases where facts may be difficult and may need expert testimony to evaluate, but this does not necessarily require applying the professional standard

3. Typical thinking about professional standard of care: more demanding, imposes a higher standard on professionals

a. Slant to professional standard: might have demanded less care than reasonable care or what jury might have considered reasonable in the facts of this case

C. Overarching question: if we want to provide safe and available medical care to as many people as possible without extreme costs, what approach should tort law consider?

D. Nowatske v. Osterloh : (pg. 421)1. Under which of these standards does plaintiff have more freedom in what kinds of proof/options to prove

that doctor fell below standard of care?a. Choices: reasonable person or professional b. Professional care: dependent on professional customc. Reasonable: more of a question of what should have been

i. Will usually match up with professional standard ii. But in a case where it doesn't match up - who should control?

a) Page 426, Note 5 1) Standard of care was met by doctor b/c test was not likely to be worth it

for age group of plaintiff 2) If question is, what is reasonable amount of procedures for check-up,

who would you want deciding this - doctors or jurors? Probably doctors because would generally take into account costs and benefits of certain tests

E. Rossell v. VW of America : (pg. 426)1. Issue: what standard of care should be and what burden of proof should be for plaintiff?

a. Implications on types of evidence and amount of evidence permissible in each standardi. Professional standard of care would require specific evidence of usual conduct of people

in the field and what they are doing

Torts Outline 30

ii. In this case, P introduced zero evidence about what was typical in the field 2. Court: plaintiff only needed to prove that defendant's conduct would present foreseeable, unreasonable

risk of harm3. Why reject professional standard for auto makers?

a. Working relationship - doctors have one on one relationship with patients, auto designers do not - factory construction = abstract relationship

b. State regulates conduct of professionals and subject to discipline in medical communities F. Rossell court represents restrictive view for what lines of work are appropriate for professional standard versus

other courts that allow for more extensive list of professions that allow greater range of professions to be considered under professional standard

II. Applying the Professional Standard in Medical Cases

A. Geographic Scope of Professional Standard1. Vegara v. Doan : (pg. 431)

a. Doctor held to "similar localities" standard in malpractice b. Looks at doctors in similar localities

2. Statutes (pg. 433)a. MI:

i. If GP - community or similar communityii. If specialist - facilities available in community

b. ID: Standard of care in community (very difficult b/c have to find some other person with specialty in same area w/o using people who are partners of defendant)

B. Common Knowledge1. McGraw v. St. Joseph's Hospital : (page 434)

a. Plaintiff injured by being dropped, did not provide expert testimony regarding injuriesb. Issue: whether expert testimony is needed in cases where standard of care is based in

knowledge that jurors would commonly know c. Rule: alleged breach related to noncomplex matters within understanding of lay jurors, failure to

present expert testimony not fatal to prima facie showing of negligence2. Majority of jurisdictions do not require expert testimony if common knowledge3. Statutes: (pg. 438)

a. Nevada: Certain exceptions to rule regarding expert testimony

C. Informed Consent1. Largey v. Rothman:

a. Prudent patient Rule: duty to warn of dangers lurking in proposed treatment and impart information that patient has every right to expect as well as duty of reasonable disclosure of the choices with respect to proposed therapy and dangers inherently and potentially involved

i. Scope measured by patient’s need (objective) all material information to making decision (reasonable)

ii. Causation must be shown that prudent person would have decided differently if informed adequately

b. Reason for prudent patient rule:i. Existence of discernible custom reflecting a medical consensus is open to serious doubtii. Professional custom should not furnish the legal criteria for measuring the physicians’

obligation to discloseiii. Professional standard is subject to whim of doctors in communityiv. Doctors unlikely to testify against fellow colleagues

III. Legal Malpractice and the Professional StandardA. Russo v. Griffin

1. Malpractice turns on whether reasonable and prudent attorney can be expected to know of existence and practical applications of law

2. Rule: Geographic area limited to jurisdiction in which lawyer practicesa. Locality rule bad because rules out sole practitioners and prevents other attorneys from coming

forward and testifying against colleaguesB. Elements of malpractice claim:

1. Employment of the attorney (or some other basis for a duty)

Torts Outline 31

2. Failure of the attorney to act as well as the standard of care required3. Causal connection between the negligence and the plaintiff’s damage

C. Legal malpractice also allows common knowledge exceptions to expert testimonyD. Fishman v. Brooks

1. Rule: attorney who has not held himself out as a specialist owes his client a duty to exercise the degree of care and skill of the average qualified practitioner. If duty is violated, attorney is liable to his client for any reasonably foreseeable loss caused by his negligence (what a properly represented client would have accepted)

2. Damages: a. Some jurisdictions: plaintiff bears burden of proving damages would have been collectibleb. Other jurisdictions: collectability assumed, defendant entitled to rebut that presumption

E. Judgmental immunity:1. Lawyer ordinarily protected from liability for error in judgment about unsettled point of law2. Required to disclose nature of unsettled issue if would be detrimental to client

Torts Outline 32

Owners and Occupiers of Land

I. Introduction:A. Common law - landlords have responsibility for certain narrowly defined types of hazards on landB. Tenants have significant burdens for providing safe conditions

II. Traditional Rules

A. Trespassers1. Ryals v. United States Steel Corporation

a. Issue: i. Whether defendant was obligated to the same standard of care for the decedent

even though he was trespassing to commit a crimeii. Normal standard of care: landowner is bound only to refrain from reckless, willful, or

wanton conduct toward the trespasser (lowest standard of care owed to one who enters upon another's land)

b. Rule:i. Duty owed by a landlord to an adult trespasser who comes upon the land and is

injured while committing a crime is the duty not to intentionally injure such trespasser (NOT A COMMON RULE - MOST STATES LIKE al BEFORE RYALS)

c. Analysis:i. Two classes of trespassers:

a) Mere trespassers: landowner owes the duty not to wantonly injure themb) Trespassers who enter with the manifest intent to commit a criminal act:

landowner owes the duty not to intentionally injure themii. Preventative measures taken by defendant to prevent harm (barbed wire, danger

sign)a) Unlocked gate would not imperil a person unless indications of danger

were disregarded by trespasseriii. Reason for court changing rule: public policy issue - too vague and difficult to apply to

future cases a) Want to prevent robbers from collecting money in the future and deter

lawbreaking d. Holding:

i. Defendant had lesser standard of care for decedent because decedent was committing a crime at time of injury - not liable for death (changed the prior law to account for criminal trespassers)

B. Basic rules: a. Some jurisdictions, all trespassers receive treatment held in Ryals courtb. Other jurisdictions, all trespassers receive treatment in general rule (landowner can be liable

to trespasser only for intentional torts and for reckless or want conduct)C. Rationale for basic rules:

a. Maximize land occupier's freedom of choice regarding how to use and maintain landb. Rules seen as standardized application of reasonable person test

D. Discovered, frequent, or tolerated trespassers:a. When trespassers are frequent/discovered/tolerated, many courts require landowner to use

reasonable care in order to protect the trespasser from injuries caused by landowner's activities or by artificial conditions on the land

b. Possessor of land has higher duty of care when engaged in "active conduct" E. Exception for criminal trespassers:

a. Ryals court adopted exception to state's ordinary rules regarding trespassers to increase landowner's protection from liability in cases where a trespasser enters the land to commit a crime

F. Merrill v. Central ME Power Company a. Factors for attractive nuisance doctrine: possessor of land is liable for physical harm to

children trespassing…caused by artificial condition upon land if:i. Possessor knows or has reason to know that children are likely to trespass, andii. Condition will involve unreasonable risk of death or serious bodily harm to such

children, and Torts Outline 33

iii. Children, because of their youth, do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

iv. Utility to the possessor of maintaining the condition and burden of eliminating danger are slight when compared with risk to children involved, and

v. Possessor fails to exercise reasonable care to eliminate danger or otherwise protect the children

b. Principal reason for rule is because of child inability to protect himself – children are childrenc. If child is fully aware of the condition, understands the risk carried, and is able to avoid it, he

stands in no better position than adult with similar knowledge and understandingd. Basic rule for recovery: plaintiff proves that…

i. Child was attracted onto land by artificial, rather than natural, condition on the land ii. Possessor of land failed to use reasonable careiii. NOTE: some jurisdictions have adopted attractive nuisance doctrine (above)

B. Licensees and Invitees1. Knorpp v. Hale : (pg. 467)

a. Duty to invitees: to recover must prove…i. Landowner had actual or constructive knowledge of some condition on the premisesii. Condition posed unreasonable risk of harmiii. Landowner did not exercise reasonable care to reduce or eliminate riskiv. Landowner’s failure to use such care proximately caused the plaintiff’s injuries v. NOTE: in some states, if mutual benefit, can be considered invitee

b. Duty to licensee:i. Not to injure by "willful, wanton, or grossly negligent conduct"ii. Licensee cannot know of condition - owner had to know

c. Distinction between licensee and invitee because:i. Friend is more likely to understand circumstances related to homeowner in

comparison to electriciana) Society wants to encourage business relationshipsb) Want to encourage workers safe place to perform duties

ii. Lower standard for guest may reflect indecency to sue friend 2. Public invitees:

a. Person who is invited to enter or remain on land as member of the public for purpose land is held open to public

b. Same standard of care to public and business invitees3. Statutes: (pg. 470)

a. GA: licensees are like trespassers - only willful and wanton conductb. CO: licensee does not need to be ignorant of harm c. CT: social invitee = same as business inviteed. Most care for invitees, less care for licensees, least care for trespassers

4. Richardson v. the Commodore : (pg.472)a. Issue: whether D knew about dangerous condition of ceiling failure b. Duty rule: knows or with reasonable care should know c. Rules:

i. Knowledge of dangerous condition is imputed to possessor of land who has created the condition that causes the plaintiff’s injuries

ii. Duty of one who operates a place of entertainment is higher than that of the owner of private property generally

d. Court: there are cheap and relatively effective ways to find this dangeri. Learned hand approach

 

C. Slip-and-Fall Cases!!1. Actual knowledge: Best evidence would be that cause of accident was open and notorious to the

defendant and defendant failed to act in such a way that did not prevent harm2. Constructive notice: defendant will be treated as if he or she had actual knowledge of a hazardous

condition if there is proof supporting the conclusion that the condition was present for a significant period of time prior to the plaintiff's injury

Torts Outline 34

3. Mode of operation: defendant will be treated as having actual knowledge of a hazardous condition if the defendant has chosen to operate an enterprise in a way that makes it likely that dangerous conditions will occur often

a. If jury is allowed to evaluate quality of D's general housekeeping in which there is a situation with frequent debris on the floor

4. Constructive notice and mode of operation answer the same question:a. Is this defendant a defendant whose quality of housekeeping may be evaluated by the jury or

is this a defendant who is going to win regardless of how often they sweep?5. Plaintiff has to prove that hazard was on the floor and that defendant failed to act in a way to prevent

hazard creating injury6. Nisivoccia v. Glass Gardens : (grapes!!!!)

a. Is mode of operation rule fair in this case?i. Sure - reasonable to assume that grapes would be on the floor ii. Mode of operation rule only applied to produce aisle and checkout area

b. If non-response is justified - no liability

D. Open and Obvious Dangers; Natural Accumulations1. Valance v. VI-Doug : (pg. 480)

a. Two doctrines:i. Open and obvious:

a) Plaintiffs in general are better equipped to assess danger of situation better than defendant

b) Shields defendants from liability 1) Also can preclude invitees from suit because condition is so obvious

c) Can be man-madeb. Natural accumulations:

i. Always part of nature ii. Too burdensome to make someone who owns land to remove the hazards created

by natural accumulations a) But if you use a plow to modify the natural accumulation - you MAY BE

LIABLE c. Rule:

i. Proprietor not considered negligent for allowing natural accumulation of ice due to weather conditions where he has not created the condition

ii. Conditions created by the elements are universally known and no liability where danger is obvious or is as well known to the plaintiff as the property owner

iii. Rationale: climate where frequent storms and sudden changes in temperature, conditions appear without prevention

d. Injury: door was caught by wind and woman fell due to force of door being pulled open i. WIND was open and obvious condition in this caseii. Plaintiff's argument: defendant's design of building (lack of shelter to block the wind)

plus a windy place = hazard2. Variations on “open and obvious”

a. Some jurisdictions: rule applies to all hazards that are open and obvious – natural or made by a person

b. Small number of states: rejected doctrine completely

E. Criminal Conduct by Third Parties1. Seibert v. Vic Regnier Builders : (pg. 483)

a. If enterprise creates environment that facilitates criminal conduct - may be liablei. General rule:

a) Proprietor not generally held responsible for willful criminal act of a third person which could not be foreseen or anticipated

ii. How foreseeable did the third party crime have to be in order to invoke this duty?a) Prior similar incidents rule:

1) Occurrence of prior offenses is key element of proof2) Offenses must be same type and same nature of injury that occurs

and also occurred with some frequency3) Must be in the same place

b) Totality of circumstances rule:

Torts Outline 35

1) Jury would look at all facts in circumstances, would include place and character of business

2) Circumstances must have a direct relationship to the ham incurred3) Would not need to show prior incidents and would not need to be in

the same place as prior incidents2. In jurisdiction that recently changed from constructive notice (prove something that store owner had

reason to act reasonably) to mode of operation (nature of the business) for slip and fall cases…what similar foreseeability approach would the court use?

a. Totality of circumstances - mode of operation allows court to see wider range of circumstances - similar to approach taken in TOC - similar common sense approach

b. Was crime on the landowner's premises foreseeable? Was crime all around something that would let them know crime could occur on their premises?

F. Liability to Tenants and Their Guests 1. Borders v. Roseberry : (pg. 488)

a. General rule (CL): landlords ordinarily do not owe any duty of care to tenants with regard to the safety of leased premises (would not make sense to impose burdens on landlord when tenant is responsible for upkeep

b. Exceptions to the general rule:i. Undisclosed dangerous conditions known to lessor and unknown to the lesseeii. Conditions dangerous to persons outside the premisesiii. Premises leased for admission of the publiciv. Parts of land retained in lessor's control which lessee is entitled to usev. Where lessor contracts to repairvi. Negligence by lessor in making repairs

c. Also exception for common areas - none of the tenants are direct owners of the land i. Landlord is able to inspect places easily and therefore to discover dangerous

conditionsii. If no incentive to landlords to maintain those areas, unclear how multiple tenants

would organize themselves to maintain or repair those areas

III. Modern Approaches

A. Rejection of the Three-Category System1. Some states – landowners owe all entrants duty of reasonable care, other states – combined licensee

and invitee category into -> lawful entrants and trespassers2. Nelson v. Freeland : (pg. 493)

a. Issue: whether leaving a stick on the porch = negligenceb. Court: not sure whether to call the dude a licensee or inviteec. Social policies for trichotomy:

i. Keep: jury abuse - unreasonable burdens imposed on landownersii. Reject: people should be able to recover regardless of title (should not get less

protection)d. CA case of Rowland v. Christian: abolished common law trichotomy in CA

i. Contrary to modern social mores and humanitarian valuesii. Suggested instruction for jury: landowner maintained land in a way that reasonable

person would have maintained that land taking into account all circumstancesa) Landowner could still win in cases where he didn't know about harm b) Juries will take factors into account under reasonable person standard

iii. Used to show that analysis is complicated -> no social goals are furthered = we're getting rid of this

e. Holding: landowners = reasonable care for lawful visitors, no duty to trespassersi. Unfair burden to landowner who has no reason to expect a trespasser's presence

B. Changes in Landlord-Tenant Doctrines1. Newton v. Magill (pg. 499):

a. AK starting point = immunity for landlords -> move past CL with other statesb. Courts have begun to move away from complete landlord immunity -> landlords liable for

injuries caused by failure to exercise reasonable care to discover or remedy dangerous conditions

i. Warranties of habitability

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ii. Belief that rule of landlord immunity is inconsistent with modern needs and conditionsc. Rule:

i. Landlords have continuing duty to make all repairs and do whatever is necessary to put and keep premises in fit and habitable condition (retain responsibility for conditions on leased property)

d. Also moving toward more general duty of care for landlords – reasonable person in maintaining his property in a reasonable sage condition in view of all the circumstances

2. Modern approach allows jury to interpret CL and all circumstances to determine how reasonable person had to have been

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Special Duty Rules

I. Duty to Rescue or Protect

A. General No-Duty-to-Rescue and Its ExceptionsI. No obligation to act to avert impending calamity, even if action would be easy and harm it might avert

is enormousII. In some cases, there may be a limited duty/no duty special tort rule that applies instead of a duty

being found in almost all cases Limited duty rule with regard to landowner only applies to injuries based on conditions on the land

a. With respect to activities on the land, general duty to act reasonablyIII. Lundy v. Adamar of NJ (casino heart attack):

a. CL does not require strangers to help people in harm without liabilityb. Restatement:

i. Common carrier under duty to its passengers to take reasonable actiona) To protect them against unreasonable risk of physical harm, andb) To give them first aid after it knows or has reason to know that they are ill or

injured, and to care for them until they can be cared for by othersii. Innkeeper is under similar duty to its guestsiii. Possessor of land who holds it open to the public is under similar duty to members of

the public who enter in response to his invitationiv. NOTE: duty does not extend to providing all medical care that carried or innkeeper

could reasonably foreseec. Employer can be liable under certain circumstances = transfer to landowner/invitee

relationshipd. If have no duty to care, but you choose to help and suck or stop helping and person is in

worse condition -> liablei. Good Samaritan = exception - wants to promote people to helpii. But does not create exception for those who had preexisting duty

e. Good Samaritan rule: i. Person who acts in good faith and renders emergency aid at scene of emergency to

victim shall not be liable for civil damages as a result of acts or omissions by such person in rendering the emergency care

1. Duty to rescue: generally no duty to rescue a. Rescuers are considered to be foreseeable - "danger invites rescue"b. Helps non-professional rescuers collect for damagesc. Very few states recognize full immunity

B. Obligations to Rescuers

1. Moody v. Delta Western (pg. 516):a. Issue: can police officers sue negligent people that are responsible for injuries?b. Rule: Firefighters and police officers who are injured may not recover based on the negligent

conduct that required their presencec. Court:

i. Can't claim damages for negligent actions conducted in field of work that already paid for

ii. Not right to allow "double-dipping" of damages d. Rationale:

i. Society is paying person for this responsibility - rescuers know what they're getting into when going into the line of work

ii. Good to insulate the people whose carelessness creates the issue because it encourages them to ask for help when it is needed

2. Firefighter's rule is great majority in statesa. If injury is so far outside the scope of the potential injuries incurred in that position,

professional is allowed to recover

C. Protecting Third Parties from Criminal Attacks or Disease1. Emerich v. PA Center for Human Development (pg. 519):

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a. Mentally unstable person told psych he was gonna kill gf, psych told gf to stay out of the house, she declined, person killed gf

b. Issue: should PA impose a certain duty on mental health workers?c. Exception to general rule of no obligation to control others when:

i. Defendant is in special relationship to either person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct

ii. When this applies:a) Existence of a specific and immediate threat of serious bodily injury that has

been communicated to the professionalb) Threat made against a specifically identified or readily identifiable victim

d. Court analysis:i. Likens to duty between physician and patient and duty to inform public of health

concerns that supersede confidentialityii. Ease of determining whether a mentally ill person may commit a crime is difficult in

comparison to determining whether a person is physically ill and creates a risk to the public

2. Clear that court is influenced by the gravity of the threat a. Different from children and school requirements because children protected to higher degree

and have less need for confidentiality

II. Duty Limited by Type of Harm

A. Negligently Inflicted Emotional Distress

1. Robb v. PARR (stuck on RR tracks):a. Impact rule: if way defendant hurt you was only b/c of emotional reaction

from D's action - satisfy impact rulei. Had to show physical contact (any tiny mark showing SOME impact)ii. Does not require that D had to actually touch - just some physical ailmentiii. Rationale for this rule: more likely to be telling the truth if there is a physical

manifestation - prevents too many suitsb. Court rejects impact rule:

i. Don't need to worry about lying - science can help us figure that outii. As consequence, develop factors that plaintiff must be proximate to zone of danger

and psychiatric evaluation c. Zone of danger:

i. Legal mechanism for sorting P's into two categories: in court or out of courtii. Plaintiff says D's negligent conduct so traumatized that had emotional damages

a. Had to be so near to danger that was "near miss"d. Does ZOD rule better define classes of plaintiffs than impact rule?

i. Being close = more sensible guarantee that P is telling the truth

2. James v. Lieb (kid sis dies in front of bro):a. Factors considered for bystander recovery:

i. Plaintiff located near the scene of the accidentii. Shock resulted from direct emotional impact upon plaintiff from sensory and

contemporaneous observance of the accidentiii. Plaintiff and victim closely related

b. Idea: bystanders can recover if close relative is injured (b/c of attachment)i. Responds to social goal of removing invalid claimsii. Although slight increase in potential plaintiff rule, does not increase significantly

c. Contemporaneous observation: Close relative has to see injury happen i. In line with what we value as society - and although may prevent damages in some

cases - minor amount of cases in comparison to amount of people excluded properlyii. Can use jury instead of making this rule applicable in all cases - this would take into

account differences in emotional disparity in different situations iii. Courts also distinguish kill/serious injure with normal injuries

d. Could weed out phony plaintiffs by…i. Jury instructionii. Establishing elements of a cause of action

3. Grotts v. Zahner (fiancé bystander):a. Issue: how close the relationship has to be between a bystander and a victim

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i. Majority: immediate family members only - plaintiff excludedii. Dissent: closeness not determined by law or blood

4. Rabideau v. City of Racine (dog shooting):a. Issues:

i. Can claim emo distress for killing of dog?ii. Can claim emo distress for loss of property?

b. Court: dog is not a relative and therefore no claim for emotional distressc. Public policy factors to determine authenticity/fairness of emo distress claim

i. Injury is too remote from the negligenceii. Injury is wholly out of proportion to the culpability of the negligent tortfeasoriii. In retrospect, it appears too extraordinary that negligence should have brought about

the harmiv. Allowance of recovery would place unreasonable burden on negligent tortfeasorv. Allowance of recovery would be too likely to open the way to fraud claimsvi. Allowance of recovery would enter a field that has no sensible or just stopping point

B. “Mere Economic” Harm1. NOTE: courts have usually rejected plaintiff claims that defendant’s negligent conduct caused harms

that are entirely economic and have occurred in absence of physical connection between defendant and plaintiff

2. Madison Ave (pg. 544):a. Exception when lost profits directly related to negligent D action resulting in physical

damages (similar to impact rule)i. More particular foreseeability that economic loss would be suffered as a result of

defendant’s negligence = more just that liability be imposed and recovery permittedb. Limiting scope of defendants’ duty to those that have suffered injury = Principled basis for

reasonably apportioning liability

C. “Wrongful Pregnancy,” “Wrongful Birth,” and “Wrongful Life”1. Greco v. US (pg. 553):

a. Terms of art:i. Wrongful pregnancy: failed sterilization leading to standard babyii. Wrongful birth: any kind of med. malpractice that leads to non-standard baby (cause

of action brought by mother)iii. Wrongful life: harm of having been born in non-standard condition (cause of action

brought by child)b. Offset rule: any award is offset by amount it would cost to raise a non-handicapped child

i. Avoidable consequences rule: requires plaintiffs to mitigate damagesii. Expectancy rule: place plaintiff in position he or she would have been in had he

contract been performediii. Benefit principle: requires costs imposed by the defendant’s act to be offset by

benefits the defendant has bestowedc. Court: Grecco is distinguishable from previous case law because...

i. Birth of a non-standard child is necessarily unpleasant and adverse eventii. Additional financial burdens than attached to a healthy child

d. Criticism of this approach: i. Focuses more on the end result and not the action of actual malpracticeii. Can't really believe no damages v. huge damages iii. Contradictory approach: burdensome to live with damages as a mother and also as a

child, why not allow damages?e. No wrongful life claim for child - who is to say that a life is wrong (too philosophical)f. Holding: damages acceptable for extraordinary care associated with handicapped child up to

age child is dependent upon mother for care (this option precludes additional damages for period extending past mother's life)

g. Defendant charged for child's life expectancy because wrongful life claim was denied (court assumed child's life expectancy would be shorter than the parent's)

i. But if the child outlived the parent, the court would have to create a new rule because statute only protects child's lifetime within parent's care so if the parent is no longer living, would the defendant still have to pay?

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Damages

I. Compensatory Damages

A. Three main categories of damages:1. General damages:

a. Also called non-economic damagesb. Pain and suffering damages/loss of consortion damages

2. Special damages: a. Lost wages and medical expenses b. Includes anticipated future damages associated with claims

3. Punitive damages: a. Highly controversialb. Part of common law since founding of USc. Where defendant's conduct is particularly evil (not just unreasonable), jury is allowed to

award punitive damagesd. Meant to provide an additional deterrent to conducte. Due process prevents jury from awarding more than nine times actual damages

B. General Damages1. Pain and suffering

a. Objective injuries: likely to cause pain and suffering for anyone who sustains themb. Subjective injuries: plaintiff claims to have pain and suffering but it is not generally understood

that anyone who had incurred the underlying injury would also feel that type of pain2. Rael v. F & S Co. (pg. 584):

a. Issue: whether considering objective or subjective injury for pain and suffering - this determines amount of proof required by the plaintiff

b. Two-pronged approach for proof of future pain and suffering:i. Objective injury: plainly apparent from very nature of the injury, that the plaintiff must

undergo pain and suffering in the future, then P not required to prove fact so plainly evident – jury may infer pain and suffering

ii. Subjective injury: need expert witnesses in human anatomy who can testify, either from personal examination or knowledge of the history of the case, that the P, may be expected to experience future pain and suffering as a result of the injury proved

c. Problem: there is no real way to determine how much pain should cost (fundamental disconnect between pain and money)

3. Why does the legal system tolerate P/S? a. Hidden way for the plaintiff to pay for lawyer feesb. Dollars are all we have to work with - it might suck, but it's all we can do

4. Giant Food v. Satterfield (pg. 586):a. Issue: whether can use per diem method to calculate damages (any mathematical calculation

to determine award for P/S)b. Rationale behind per diem: way to overcome jurors lack of familiarity and reluctance with

choosing a large award c. Holding: okay as long as not considered evidence

i. Other jurisdictions reject completely - invites jury to be more precise than they ought to be

5. Golden rule argument: a. Method for attempting to qualify paint and suffering damagesb. Counsel asks jurors to place themselves in P’s shoes and to award such damages as they

would charge to undergo equivalent pain and suffering6. Hedonic damages:

a. Loss of enjoyment of life’s pleasuresb. Some courts include with pain and suffering – others do not and characterize as pleasures

plaintiff will never get to experience

C. Future damages1. Kaczkowski v. Bolubasz (pg. 600):

a. If we give P $200 at end of trial, will we have given him too much, just enough, or too little?

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i. Too much: money is worth more now than later ii. Example: give $20/yr for four years v. $80 in first year

b. Assuming that spend around $20 a year, have interest each year because P invested $ in savings account -> gaining money on the $80 over the remaining three years, instead of only getting flat $20 a year

c. What should jurors do with inflation in this calculation?i. Three approaches:

a) Traditional approach: Ignore everything - both interest and inflation because they will cancel each other out

b) Middle ground: permits factfinder to consider effects of productivity and inflation on lost future earnings, but prohibits expert testimony on either issue

1) Good b/c within juror knowledge2) Bad b/c doesn’t contribute to accuracy or predictability of lost future

earningsc) Evidentiary approach: require that both factors be considered

d. Two evidentiary approaches:i. Feldman: detailed history + offset present value methodii. Beaulieu: general history + total offset method

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Traditional Strict Liability

I. Injuries Caused by AnimalsA. Strict liability: if you engage in an activity and someone gets hurt because you were engaged in that activity -

you pay - it doesn't matter how careful you are in conducting the activity1. Only imposed on some activities

B. Clark v. Brings (pg. 634):1. Strict liability applies to domestic animals when has a history of aggression 2. Dog law: changed CL by no longer requiring history of aggression -> just has to attack without

provocationC. Common law rule:

A. Strict liability for wild animal attacks, domestic animal attacks if owner knewB. Some states: all animals, regardless of domesticationC. Strict liability for damage to property by animalsD. Some states: only if fence was constructed

D. Defenses:1. Can use unreasonable assumption of risk as complete defense2. No using contributory negligence

II. Selected Dangerous ActivitiesA. Clark-Aiken:

1. Rule: proper subject for strict liability is “an unusual undertaking or one of such an extremely dangerous nature that it must be performed at the sole risk of the one therein engaged”

2. Factors to determine “abnormally dangerous”:a. Activity involves high degree of risk of harm to the person, land, or chattels of othersb. Gravity of harm which may result is likely to be greatc. Risk cannot be eliminated by exercise of reasonable cared. Activity is not a matter of common usagee. Activity is inappropriate to the place where it is carried onf. Value of the activity to the community

3. Essential question: whether risk is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm which results from it, even though it is carried on with all reasonable care

B. Klein v. Pyrodene: 1. How to use six factors: any one not necessarily sufficient of itself, ordinarily several required for strict

liability. But not necessary that each of them be present.2. Restatement approach:

a. D who carries on abnormally dangerous activity is subject to strict liability for physical harm resulting from activity.

b. Activity is abnormally dangerous if:i. Activity creates a foreseeable and highly significant risk of physical harm even when

reasonable care is exercised by all actors; andii. Activity is not a matter of common usage

C. Defenses:1. Unreasonable assumption of risk = complete defense2. Contributory negligence is NOT a defense

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Products Liability

I. IntroductionA. Common law: only direct customer of manufacturer could recover for product-related injuriesB. Customer was required to show that manufacturer had been negligent or that product’s attributes were worse

than warranty had promised they would be

II. Allowing Recovery Without Proof of Negligence: Development of Strict Liability

A. Early Development1. Escola v. Coca-Cola:

a. Majority: res ipsa = negligenceb. Rule: irrespective of privity of K, manufacturer is responsible for injury caused by such an

article to any person who comes into lawful contact with itc. Public policy:

i. Responsibility fixed to wherever most effectively reduce hazards ii. Manufactures in better position to prevent harm (know that buyers don't inspect) and

can disseminate costs across societyiii. RELIANCE: close relationship between the producer and consumer of a product has

been alterediv. Manufacturing processes=frequently valuable secrets are ordinarily inaccessiblev. Manufactures build up confidence by ads and marketing devicesvi. Consumers no longer approach products warily but accept them on faith=rely on

reputation of the manufactures trade mark2. Greenman v. Yuba:

a. Rule: manufacturer is strictly liable when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being

3. Assumes that adoption of strict liability will decrease overall number of injuries related to products

B. Manufacturing Defects1. Latex Glove (pg. 671):

a. This case answers a crucial question: How do you decide if a product has a defect?b. Manufacturing defect: discrepancy between item that injured the plaintiff and similar items

produced by the company or from the original design intended for the producti. Plaintiffs don't have to prove that the manufacturer's design choice was

defective - we don't care about thisc. Manufacturer's intent: make plaintiff's glove the same way they did make the glove - plaintiff's

glove was different from other gloves currently manufactured, but the same as other gloves of the same type created

d. Three types of product defects:i. Flaw in manufacturing = product different from manufacturer’s intended resultii. Perfectly manufactured -> unsafe because of absence of safety deviceiii. Dangerous because lacks adequate warnings or instructions

e. Difference between defect in manufacture and defect in design:i. Design: whether product designed to perform as safely as ordinary consumer would

expect or whether risk of danger inherent in design outweighed the benefits of the design

ii. Manufacture: whether particular product involved was manufactured in conformity with the manufacturer’s design

2. Myrlak (pg. 674):I. Plaintiff can collect even though he doesn't have proof

II. Res ipsa doctrine - not applicable because negligence claim! III. Don't care about unreasonable conduct in strict liability cases - we're judged the product, not the maker's conductIV. Rule:

i. May be inferred that harm sustained by plaintiff was caused by a product defect existing at the time or sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:

a) Was of a kind that ordinarily occurs as a result of a product defect;

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b) Was not, solely the result of causes other than product defect existing at the time of sale or distribution (direct and circumstantial evidence)

V. Court: Indeterminate product instruction = okay3. Michigan statute: manufacturer not liable for production defect harm unless plaintiff shows that

product not reasonably safe and production process was unreasonably safe (NJ speak "imputing the conduct of the defendant")

4. Did the evolution of strict liability benefit the plaintiff in comparison to negligence?a. Yes, particularly in manufacturing defect casesb. Design defects - can be easy plaintiff's case in some states

i. However, if risk was unknowable, no liability - in some states (rooted in negligence theory)

C.  Design Defects

1. Two ways to determine design defects:a. Consumer expectation test: product may be found defective in design if the plaintiff

demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner

i. Doesn't lead to a reasonable result - just asks "how safe"ii. Moves closer to automatic payout

b. Risk-benefit test: product may be found defective if it represents an unreasonable and unsafe balance between number of risk and utility factors

i. Similar to asking whether designer's conduct was reasonable or unreasonable - want to look at all benefits and costs associated

ii. Existence of warning is a factor, but not decisive2. Morton (pg. 678):

a. CA recognizes both doctrines and picks dependent on facts of case3. Warner v. Boston (pg. 682):

a. Rule: i. Plaintiff must show the risks, costs, and benefits of the product in question and

alternative designs and that the magnitude of the danger from the product outweighed the costs of avoiding the danger

b. Expert testimony - extra safety feature would make safer and not cost morec. Warning: not detailed, not easily read without being in zone of danger = not effectived. Factors considered for risk-utility analysis:

i. Usefulness and desirability of the productii. Safety aspects of the productiii. Availability of an alternative productiv. Manufacturer’s ability to eliminate unsafe character of the productv. User’s ability to avoid dangervi. User’s anticipated awareness of the dangersvii. Feasibility, on the part of the manufacturer, of spreading the loss by setting the price

of the product or carrying liability insurance4. Negligence cases – manufacturer conduct itself as reasonable person (not all knowledge)

Strict liability – state of the art (all knowledge available – regardless of whether reasonable manufacturer would have known about risks and alternatives)

5. Purpose for imposing liability on manufacturers:a. Deep pocket theory – liability on wealthier party – suffer less loss than plaintiffb. Risk spreading theory – distribute loss as widely as possible so that many individuals suffer a

small loss rather than one victim suffering a large loss 

D. Warnings and Instructions

1. Product may be defective because of inadequate instructions or warnings when foreseeable risk of harm posed by the product could have been reduced by the provision of reasonable instructions or warnings

2. Richter v. Limax (pg. 698):a. Rule: Manufacturer has duty to warn when it knows or has reason to know that its product is

or is likely to be dangerous during normal use. Duty is constant and requires manufacturer to

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keep abreast current state of knowledge of its products. Failure to adequately warn renders that product defective under doctrine of strict liability

b. Why can plaintiff collect? i. Warning did not include potential for injuries sustained by plaintiff

c. How does defendant know how many warnings to add?i. State of the art: limit of known or reasonably known knowledge OR what everybody is

doing3. Read and heed rule:

a. Seller is entitled to assume that if it has provided adequate warnings, those warnings would be read and heeded by product users

E. Special Treatment for Drugs

1. Edwards v. Basel Pharm (pg. 707):a. Doctors told that overdose could create significant harm, users told overdose could make

them faintb. Learned intermediate doctrine: where product is prescription only, duty of doctor to inform

patient of qualities and characteristics.i. Shelters manufacturers from liability if give appropriate to doctorsii. Doctors transmitting information to patient and knows what is relevant to patientiii. Exceptions to this rule:

a) Mass immunizations - may not be patient/doctor relationship to inform b) When FDA requires warning be given directly to consumer

c. Court: state decision to determine if warning given was sufficient d. Federal regulations usually preclude state regulations if it says so (preemption)

i. Can also be implied if overall text of statute makes understood that federal statute > state statute

D. Plaintiff’s carelessness or Misuse of Product1. Smith v. Ingersoll-Rand (pg. 711):

a. Rule: Contributory fault chargeable to claimant diminishes proportionally the amount awarded as compensatory damages for the injury attributable to claimant’s contributory fault, but does not bar recovery

b. Why noteworthy:i. AK has condescending treatment of legislature - "stupid legislature, we know that

strict liability doesn't care about plaintiff negligence" ii. History in AK - ignore P bad conduct except do look at voluntary assumption of risk in

product liability -> only use plaintiff bad conduct when complete bar -> comparative negligence

2. Daniell v. Ford (pg. 714):a. Overriding factor for no damages: P trying to take own life, therefore, not used for intended

purposesb. Rule:

i. Manufacturer has duty to consider only those risks of injury which are foreseeable. Risk is not foreseeable when product is used in manner which could not reasonably be anticipated by the manufacturer and that use is the cause of the plaintiff’s injury.

c. Court: no way to prove design defect because purpose of trunk is otherwise than storing people

d. Manufacturers must present proper design for proper use of product and foreseeable misuse of product

3. What should the legal system do when P uses in a different way than proper? a. NM - misuse product = lose (old-fashioned approach subject to critique)b. Modern approach: allows P to establish defect of design in any way possible, if P misused

product - use comparative faultc. If product has adequate build for foreseeable misuse and proper use - D wins

4. Problem: Might apply to two different parts of product liability:a. Was product defective? Evaluating design choices in light of appropriate use and foreseeable

misuseb. P using in careless way, but D is using as a defense in comparative negligence

5. Trull v. VW (pg. 716): a. Two questions:

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i. Should possibility of crash something we take into account when we evaluate car's design?

ii. If P proves car is not crashworthy, should D have to pay for all injuries suffered or should P have to prove that crashworthiness increased degree of injuries? How do you prove which is which?

b. Two approaches to analyze:i. Plaintiff has to establish what % of damages were from crashworthiness - can only

win damages if can show jury % inflicted by crashworthiness of carii. P entitled to 100% of harms from accident unless D can prove to jury what % came

from crashworthinessc. Rule:

i. Crashworthiness case, manufacturer should be liable for that portion of damage or injury caused by the defective design over and above the damage or injury that probably would have occurred as a result of the impact or collision absent the defective design

d. Court: i. P must prove that design defect = substantial factor in producing injuries above and

beyond those caused by original accident -> D has burden to prove contraryii. Rationale: less stringent burden of proof in strict liability cases, P burden would be

practically impossible to provea) Overriding goal or social policy of products liability litigation

iii. Abstract rationale: faced with choice of two doctrines, found some social policy in doctrine and asked which doctrine would be best consistent with social policy

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Trespass and Nuisance

I. Trespass

A. Trespass to Land1. Trespass: intentional tort with strict liability

a. P has to prove that D did willful act with intention of entering P's propertyi. Willful act = intentional moving of musclesii. Intent to be somewhere

b. Do not need to have plan or desire to enter onto someone else's property i. Mistakes are no defense

c. Plaintiff does not need to prove actual or compensatory damagesd. Defendant may be liable for harms he could not have foreseen

2. Thomas and Baker cases:a. Reasonableness of intrusion does not protect D from being trespasser

i. Immaterial whether knew intruding or on other propertyii. Negligent and reckless entries are not trespasses (would need to prove actual

damages to recover in this case)b. Can get permission from P to intrude property c. What's the big deal about using a little piece of land?

i. Adverse possessionii. Proscriptive easement

d. Lack of foreseeability of harm? Doesn't matter - liable for all consequences when trespassing

B. Trespass to Chattel and Conversion1. Two kinds of interference with property:

a. Trespass of chattel: intentional use or intermeddling with the chattel in possession of another - chattel is impaired as to its condition, quality, or value

b. Conversion: intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel

2. Factors to determine if interference is conversion:a. Extent and duration of actor’s exercise of dominion or controlb. Actor’s intent to assert a right in fact inconsistent with the other’s right of controlc. Actor’s good faithd. Extent and duration of the resulting interference with the other’s right of controle. Harm done to the chattelf. Inconvenience and expense cause to the other

3. Damages in conversion:a. Conventional rule: damages for totally destroyed chattel at market value as of date of

conversion + interest to date of judgmentb. Purpose of damages: provide indemnity for all losses

4. Remedies for trespass:a. Nominal, compensatory damagesb. Enjoinmentc. Punitive damages (clear and convincing evidence of malice)

5. Privilege to trespass: if confronting an emergency and protecting self from death or serious bodily harm and have to trespass - that's okay!

a. If someone who owns land and casts you off when you need to be there b/c of emergency - they are committing a tort against YOU!!!

b. Person becomes privileged entrantc. If you harm the property while on it, though, you still have to pay for damages

 

II. NuisanceA. Two types of nuisance:

1. Private nuisance: protects possessor's interest in use and enjoyment of his or her land

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2. Public nuisance: protects interests common to the public such as the public's health, safety, comfort, and convenience

B. What P has to prove: 1. Invasion of the plaintiff's use and enjoyment of his or her property2. Defendant's conduct was the proximate cause of the invasion3. The invasion was either intentional and unreasonable, or unintentional and the defendant's conduct

was negligent or recklessC. Reasonableness: identified with respect to effect that D's conduct had on P's land - P has to persuade jury

that unreasonable1. Focus: Whether interference is beyond that which the plaintiff should bear, under all of the

circumstances of the particular case, without being compensated2. Balancing test – utility and reasonableness of conduct v. extent of harm inflicted and nature of

affected areaD. RST position on public nuisance:

1. Public nuisance: unreasonable interference with a right common to general public2. Circumstances that may = interference with public right is unreasonable include the following:

a. Significant interference with public health, safety, public peace, public comfort, or public convenience

b. Conduct proscribed by statute, ordinance, or administrative regulationc. Conduct is of a continuing nature or has produced a permanent or long lasting effect and as

the actor knows or has reason to know, has a significant effect upon the public right

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Intentional Torts

I. Battery: A. Four elements:

1. Act - has to be some kind of willful act2. Intent - how do you determine what someone is thinking?

a. If person said it out loudb. Juries may infer intent from circumstantial evidencec. Different definitions:

i. Person desired the outcomeii. CL: you intended something if it was substantially certain that the event would happen

(reasonable person)3. Act has to cause a contact

a. Intent to do a touching is what counts - doesn't matter if D intended only to touch lightly, if P suffers injuries - can collect

i. Can be direct or indirect 4. Contact has to be harmful or offensive - defined by society as general (not particular feelings of plaintiff)

B. Waters (pg. 16):1. If you intend to do a touching, doesn't matter what injuries are or whether foreseeable - can recover for all

injuries related2. Rule: intentional conduct cannot be negligent conduct, negligent conduct cannot be intentional conduct

C. Plaintiff’s characterization of facts and legal doctrines1. Legal theory: statement of the type of tort that P claims D committed

a. Determines what P must prove to obtain remedy she seeksb. P’s choice of legal theory determines what facts are relevant

2. Factual theory: statement of what caused the Plaintiff’s injury, including statement of what D did or did not do in the context of the significant circumstances related to the injury

II. Assault:A. Elements:

1. Act2. Intent - intending to cause a harmful or offensive contact

a. Plaintiff must prove intent to commit battery or intent to make the victim feel like a battery is about to happen (imminent apprehension - closely related and only anticipation of harmful contact)

3. Transferred intent: intent to inflict intentional tort on A counts when you screw up and inflict the intentional tort on B

4. Ex: C threatens A, B is next to A and also fears for his life - C is guilty of assault for both5. Complications in assault:

a. If long-distance call, plaintiff cannot reasonable believe imminent battery b. A means to hit B with a brick - A throws brick and misses = assault…unless B doesn't see and

then he can't claim assault because didn't know of imminent dangerB. Cullison (daddy’s little girl):

1. Rule: assault = touching of the mind, if not the body -> damages recoverable are damages for mental trauma and distress

2. Cliché: mere words are never an assault3. But what about mere words and brandishing a pistol? - THAT'S ENOUGH!

C. Brower v. Ackerly : (phone calls)1. Rule for imminence: immediate physical threat which is important, rather than the manner in which it is

conveyed – apprehension created must be one of imminent contact, as distinguished from any contact in the future

D. Objective test for apprehension:1. Jury must find that D’s conduct would normally arouse apprehension in the mind of a reasonable person2. Words alone are not enough to make an actor liable for assault “unless together with other acts or

circumstances, they put the other in reasonable apprehension of imminent harmful or offensive contact”E. Conditional threats:

1. Allowed to constitute an assault if the condition is a condition that the speaker is prohibited2. Ex: "If you don't give me your wallet I will kill you!" - threat to kill

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III. Intentional infliction of emotional distress:A. Elements:

1. Plaintiff has to prove intentional or reckless conduct2. Extreme or reckless conduct3. That cause P to suffer extreme distress4. Actual and proximate causation of the emotional distress by the defendant’s outrageous conduct

B. Test: conduct must be so extreme in degree as to go beyond all possible bounds of decency to be regarded as atrocious and utterly intolerable in a civilized community

C. Rule for outrageous conduct:1. Conduct, otherwise permissible, may become extreme and outrageous if it is an abuse by the actor of a

position in which he has actual or apparent authority over the other, or the power to affect the other’s interests

D. Specific frailty of P is something court will recognize if D knew about it

IV. Defenses to Intentional Torts:A. Self-defense - to protect against battery (proportional physical force)

1. As long as not using deadly force, you are free to fight back - there is no retreat obligation for proportional physical force

2. Most states reject retreat requirement for deadly force a. RST favors reasonable retreat prior to answering deadly force with deadly force (only if had

reasonable opportunity - very small)b. But if person coming at you with deadly force in your house - you should retreatc. Same rules for self-defense apply to defense of others

3. Reasonable mistakes can be accepted for defense of othersa. Consent prevents battery plaintiff from winning battery case

4. Consent must be clear, can be limited to withdrawn5. Only given effect to consents to LEGAL CONDUCT

a. Can defend property with force, but not that much force 6. Have right to expel trespasser from land - can push, pull, shove, or carry (that's it!)

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