Beruflich Dokumente
Kultur Dokumente
Table of Contents
Whats a tort?........................................................................................................ 11
Whats a legal wrong?........................................................................................ 11
What is tort law?................................................................................................... 11
Why Shift Losses?............................................................................................... 11
When should Unintended Injury Result in Liability?...............................................12
Hammontree v. Jenner, 1-9................................................................................12
The Litigation Process, 9-17..................................................................................12
Restatements..................................................................................................... 13
The Structure of Tort Law................................................................................... 13
The Parties and Vicarious Liability.........................................................................14
Christensen v. Swenson, 17-24..........................................................................14
The Negligence Principle.......................................................................................... 15
A. Historical Development of Fault Liability...........................................................15
Brown v. Kendall, 30-39...................................................................................... 15
BOP (Burden of Proof/Persuasion)..........................................................................15
B. The Central Concept......................................................................................... 16
Prima Facie Claim of Negligence (and Defenses)..................................................16
1. The Standard of Care........................................................................................ 16
Adams v. Bullock, 39-43..................................................................................... 16
Braun v. Buffalo General Electric Co...................................................................17
United States v. Carroll Towing Co., 43-49..........................................................17
2. The Reasonable Person..................................................................................... 18
Bethel v. New York City Transit Authority, 49-60................................................18
Miscellaneous Rules.............................................................................................. 18
C. The Role of Judge and Jury................................................................................19
1. In General.......................................................................................................... 19
Baltimore & Ohio Railroad Co. v. Goodman, 60-61.............................................19
Pokora v. Wabash Railway Co., 62-65.................................................................19
1
Andrews v. United Airlines, 65-68: bridge b/w breach and role of custom..........20
2. The Role of Custom........................................................................................... 20
General Rules of Custom....................................................................................... 20
Trimarco v. Klein, 68-74...................................................................................... 21
3. The Role of Statutes.......................................................................................... 21
Martin v. Herzog, 74-77...................................................................................... 21
Whats per se negligence?..............................................................................21
Tedla v. Ellman, 77-83 (through n. 9).................................................................22
Only Relevant Safety Issues Count........................................................................22
Rushink v. Gerstheimer...................................................................................... 22
Breach and Negligence Per se...............................................................................23
D. Proof of Negligence.............................................................................................. 23
1.
2.
Circumstantial Evidence..................................................................................23
Constructive Notice............................................................................................ 24
b) Business Practice Rule:................................................................................ 24
Negri v. Stop and Shop, Inc., 85-86....................................................................24
Gordon v. American Museum of Natural History, 86-90.....................................25
Easy Cases......................................................................................................... 51
Technique: Downplay other causes....................................................................51
Basic Doctrine....................................................................................................... 51
Stubbs v. City of Rochester, 333-343.................................................................51
Zuchowicz v. United States, 343-355.................................................................53
Matsuyama v. Birnbaum, 355-364......................................................................54
Loss of Chance................................................................................................... 55
Multiple Defendants: Joint & Several and Proportionate Liability...........................55
Recall Stubbs...................................................................................................... 56
Multiple Causes.................................................................................................. 56
Multiple Defendants........................................................................................... 57
Introduction to Joint and Several Liability, 364-367............................................57
Summers v. Tice, 367-372..................................................................................57
Hymowitz v. Eli Lilly & Co., 372-384 (skip n. 7-8)...............................................58
Restmt 3rd (Allocation): Factors for Assigning Shares of Responsibility for
Indivisible Injuries.............................................................................................. 59
Proximate Cause................................................................................................... 60
Prima Facie Review............................................................................................. 60
Proximate Cause: The Basics.................................................................................60
Restatement (Third) 29: Limitations on Liability for Tortious Conduct..............60
1. Unexpected Harm............................................................................................. 61
Benn v. Thomas, 393-399................................................................................... 61
Silverstein v. United States................................................................................ 61
Polemis, 399-401................................................................................................ 61
The Wagon Mound, 402-408 (skip n. 10-11).......................................................62
2. Superseding/Intervening Causes......................................................................62
Doe v. Manheimer, 408-418............................................................................... 62
3. Unexpected Victim............................................................................................ 64
Palsgraf v. Long Island Railroad Co., 418-430.....................................................64
Proximate Cause Review....................................................................................... 64
NEGLIGENCE DEFENSES........................................................................................... 65
Prima Facie Overview............................................................................................ 65
The Plaintiffs Fault................................................................................................ 65
5
Whats a tort?
A tort is conduct that amounts to a legal wrong that causes
harm for which courts impose civil liability (as opposed to
criminal sanctions)
control of car, hit Hammontrees (Ps) shop striking Mrs. Hammontree. Ps sued
personal injury and property damage. Trial judge instructed jury on negligence
rather than strict liability.
Did lower court err when it refused to grant pffs motions for summary
judgment and direct verdict?
Did lower court err when it instructed the jury on the rule it should
apply?
How
The judge should have instructed the jury that the pff need not
demonstrate fault on the part of the def (fn. 1, p. 4); causation of harm
is all thats required
does the court rule on the appeal?
trial court was correct in rejecting pffs proposed jury instructions
Precedent: fault required
Rationale
Switch would slow things down
If we change the rule, it should be through legislative action
Negligence - Negligence is the failure to use ordinary or reasonable care; the doing
of something which a reasonably prudent person would not do, or the failure to do
something which a reasonably prudent person would do, under the circumstances
similar to those shown by the evidence.
1. Evolution of a Lawsuit
a) Pretrial Prior
We want to learn how to convince the court that our client wins given
the rule OR
that the rule should be changed (and that our client should win) OR
that the rule does not apply to our case (e.g., its a case of first
impression and our client should win)
13
Negligence
14
Conventional wisdom
trespass for direct harms (e.g., throwing log that hits pff)
action on the case for indirect harms (e.g., throwing log that
lands on road that later causes pff to trip and fall)
But see Schwartz: its difficult to know exactly what the trends were given the
nature of the documents
n. 2, p. 37-8: According to Shaw, how does the jury instruction misstate the
law?
Instruction says liability should be imposed unless def used
extraordinary care
Appellate court: the law requires only due care
Instruction places BOP on def
App ct: burden on pff
How might we state the rule established in Brown?
If an act is unintentional, the def is liable for harm only if he failed to
exercise ordinary care to guard against the danger
Pff has BOP
How do we determine whether the def exercised ordinary care?
What a prudent and cautious man would do
It depends on the circumstances
15
What if the jury decides the facts can be used equally well to show
def was negligent and to show he was not negligent?
Pff fails to prove negligence by preponderance of the evidence!
Richard Epstein, Intentional Harm [tension between negligence and strict liability]
Divergent treatment where D has taken reasonable (but unsuccessful) steps to
avoid harming P. Under negligence, D is not held liable. Question is who should bear
the costs for the injury. Strict liability says that D should not be allowed to force
others to bear his costs because prior to the accident he made a decision that was
rational in the case. As a matter of fairness, D should be required to treat the harms
which he has inflicted upon another as though they were inflicted upon himself.
16
Was there a less costly way to reduce the risk than burying the wires
underground??
Strategy: pff should lean toward relatively low cost ways a RP might
have reduced foreseeable risk (so court doesnt go down wrong road
with respect to possible precautions)
17
What does Hand say about what exactly gets taken into account when
considering each term?
Nothing!
Most jury instructions dont provide guidance on how to quantify the
terms (n. 5, p. 42)
Most judges accept that they cant be quantified
They merely are helpful in determining which factors to take into
account to roughly estimate the relationship between the variables
Miscellaneous Rules
1. In General
Baltimore & Ohio Railroad Co. v. Goodman, 60-61
19
Whats the general rule regarding the role of the jury in the breach
determination?
o Cardozo: The jury gets to decide what a RP would have done and
whether alleged wrongdoer acted reasonably
Pokora v. Wabash Railway Co., 62-65
Facts: P crossing railroad tracks no good view of tracks, no bells or whistles, struck
by train
Rejects Goodman statement that driver should get out and look as being
ridiculous (train arrive while getting back in car, no better off). Standards of
prudent conduct should be taken over from the facts of life (no one gets out
and looks).
Andrews v. United Airlines, 65-68: bridge b/w breach and role of custom
Facts: Briefcase fell from overhead compartment and seriously injured P. No one
knows what caused fall. P alleges only that the injury was foreseeable and the
airline didnt prevent it
United is a common carrier and owes both a duty of utmost care and the
vigilance of a very cautious person towards its passengers. Even so, it is not
an insurer of its passengers safety.
In 1987 the airline had received 135 reports of items falling from overhead
bins and as a result decided to add a warning to its arrival announcement
that passengers should use caution in opening bins as items might have
shifted during flight.
o Could have taken further measures.
Question is whether or not having only the warning was sufficient to protect
passengers
o No because United did not demonstrate that retrofitting bins with
netting would be prohibitively expensive or grossly interfere with the
convenience of its passengers. (at least one other airline has retrofitted
with netting.
o Summary judgment not appropriate here b/c jury could have found
either way.
20
21
22
When the legislature has spoken, the standard of care required is no longer
what the reasonably prudent man would do under the circumstances but
what the legislature has commanded.
Court tries to argue this isnt a safety statute but a rule of the road.
o A general rule of conduct and, specifically, a rule of the road may
accomplish its intended purpose under usual conditions, but, when the
unusual occurs, strict observances may defeat the purpose of the rule
and produce catastrophic results.
Court says they cannot assume reasonably that the legislature intended that
a statute enacted for the preservation of life and limb of pedestrians must be
observed when observance would subject them to more imminent danger.
What
Rushink v. Gerstheimer
Facts?
Car owner left keys in ignition and psychiatric patient drove off, got
into an accident and was killed
What statute does patient-victim use to try to establish breach?
Unlawful to leave keys in the ignition of an unattended car
The car owner clearly broke the law. So, she breached her duty, right?
No, court decides that the purpose of statute was to deter theft and
injury to others from operation of motor vehicles by unauthorized
persons, NOT to protect such unauthorized persons from the
consequences of their own actions
23
Q: Assume the court concludes that the statutes sole purpose was to deter
theft in an effort to reduce the price of auto insurance, does the car owner
win on the issue of breach?
No! The victim can argue car owner engaged in common law
negligence (i.e., car owner created an unreasonable risk, i.e. pL > B)
But, victim must prove that the car owner created an unreasonable
risk, which might be more difficult than showing violation of the statute
D. Proof of Negligence
1.
Circumstantial Evidence
24
i.
ii. Defect existed "for a sufficient length of time prior to the accident
to permit D's employees to discover and remedy it" (Gordon)
b)
25
Both courts require pff to prove constructive notice. Whats the constructive
notice rule?
Constructive notice shown if defect was visible and apparent and it
existed for a sufficient length of time prior to the accident to permit def
to discover and remedy it
Commonly used in slip-and-fall cases
Why require a showing of constructive notice in these types of cases?
Breach generally requires a showing of foreseeable risk
In Hand formula terms, if risk is unforeseeable p = 0 RP would
perceive that benefit of taking precaution (pL) = 0
Can probability of harm be positive in the mind of reasonable person even if
no actual or constructive notice of particular risk??
Yes, see Kelly (n. 7, p. 89): business practice rule (i.e., the practice,
itself, created an unreasonable risk)
No evidence in the case indicating how long the paper could have been on
the steps.
o This absence of evidence offers no way to determine whether Ds
employees should have had constructive notice of its presence.
In the absence of evidence on a material issue, a court should not submit the
case to the jury.
To constitute constructive notice a defect must be visible and apparent and it
must exist for a sufficient length of time prior to the accident to permit
defendants employees to discover and remedy it. (no constructive notice).
What if we knew that an employee of the museum dropped the paper on the
steps? Would this fact change the analysis?
o
Yes, but pff still must demonstrate a reasonable person would have
foreseen harm
26
Majority rule: can use res ipsa loquitur and specific negligence
simultaneously
*0 Often a framing question that boils down to frequency (i.e. cradled spares
rarely fall off tractor trailers, but chains fail all the time McDougald)
*1
Need not preclude other possible explanations
To show breach using the doctrine of RIL, the pff must show
that
A showing
The barrel was in the custody of the defendant, and who is responsible
for the acts of his servants who had control of it
Pff not required to produce evidence of specific conduct
if there are any facts inconsistent with negligence it is for the
defendant to prove them.
Comment b of 17 recognizes that some jurisdictions continue to use the 2prong test
Pff argues RIL. What are defs arguments about why pff failed to establish
[the] element of exclusive control?
1. Pff did not eliminate with certainty all other possible causes or
inferences
2. pff did not show that no direct evidence was available
Evidentiary standard according to the court?
28
1. Pff required to show only that its more likely than not the accident
would not have occurred in the absence of negligence
2. pff did not have access to sufficient evidence (unlike in Goodyear)
Truck manufactured in 1969 or before; accident occurred in 1990
Would the pff have had a harder time using RIL doctrine to demonstrate
breach if the accident happened six months after the truck was
manufactured?
1. Yes, it might be reasonable to infer that the manufacturers negligence
caused the accident
2. Might be able to bring a RIL claim against manufacturer, but
manufacturer liability is now grounded in products liability doctrine
29
Medical Malpractice
Prima Facie Claim of Evidence
Pff must show four elements
Duty of care (for now, assume a duty exists)
Breach of that duty of care
Def did not act as RP would have in SSC (e.g.,
pL>B)
Custom just some evidence
(except medical malpractice)
Constructive notice rule helps
injured party demonstrate that a
RP would have perceived risk in
cases in which proving actual
knowledge of risk is difficult
Negligence per se
Res ipsa loquitur (injury implies breach;
only when conduct is undiscoverable)
Jury gets to decide what a RP would have done
and whether the alleged wrongdoer did what a
RP would have done
Causation
Damages
30
Rule Progression
32
Therapeutic Waiver
Certainly some patients will turn down necessary treatment out of fear after
learning about all the material information related to risks? Should we build in
an exception if the doc knows something about the patients personality that
will lead him to reject necessary treatment?
Duty
Physical Injuries
Restmt (Third) of Torts: Liab for Physical Harm 7
The general rule: Ordinarily a duty to exercise reasonable care exists with
regard to causing physical harm
triggered if one creates risk (consider entire course of conduct)
duty issue is a question of law (i.e., judge decides with help from
jury on necessary factual determinations)
33
o
o
What
party
o
o
Duty Rule
35
36
39
Punting to Legislature
40
But, courts have created so many exceptions to this rule (see Vince, Tarasoff,
Hansen (cited in Reynolds)), that the exceptions might now be the general
rule
Causation
Damages
Traditional Scheme
1) Trespassers:
a) Definition: No permission to be on property
b) Landowner's Duty: Duty not to willfully or wantonly injure trespasser
2) Licensees:
a) Definition: Landowner gives permission to be on property, but permission
not extended to the public, not given with expectation of material benefit
b) Landowner's Duty: Duty to protect against known dangers
3) Invitees:
a) Definition: Landowner gives permission to be on property, extends the
permission to the public, and expects material benefit from the visit
c) Landowner's Duty: Duty to protect against known dangers and those that
would be revealed by a reasonable inspection
Carter v. Kinney, 188-194 (skip n. 8, 9)
Facts: Ds hosted bible study at house; snowfall; shoveled snow but unaware that ice
formed overnight; P slipped and broke leg
According to the court, what distinguishes licensees from invitees?
Licensees enter with permission of owner, but are not
invitees (most courts classify social guests as licensees)
Invitee entrance is coupled with material benefit for owner
or result of invitation extended to general public
What turns on the classification?
If licensee then def owes duty to make safe known dangers
If invitee then duty to exercise reasonable care to protect
against both known dangers and those that would be
revealed by inspection
How does the court categorize the pff?
Licensee, so what outcome?
No duty b/c def unaware of danger
Different result if court decided Carter was an invitee?
Duty of care for dangers he should have known aboutlikely
would have survived motion for summary judgment
An invite to visit does not make a visitor an invitee b/c invitation not
tendered w/ any material benefit motive and not extended to public in
general in such a way that would imply a warranty of safety.
Here gave permission to limited class of persons (church
members) and no material benefit.
Imagine that I invite you all over to my apartment for a party! Would you be
considered invitees or licensees?
Licensees!!
Implication with respect to dangerous conditions in my apartment?
No duty to inspect; I need only take reasonable steps to make
safe known dangers
Although business owners are not the insurers of their patrons safety, they
do have a duty to implement reasonable measures to protect their patrons
from criminal acts when those acts are foreseeable.
o However, there is generally no duty to protect others from the criminal
activities of third persons.
This duty only arises under limited circumstances, when the criminal act in
question was reasonably foreseeable to the owner of the business.
44
Intrafamily Duties
Broadbent v. Broadbent, 217-225 (skip n. 4, 8)
Facts: D left 2 yr-old son unattended in family pool, drowned, was ultimately
revived, suffering severe brain damage because of lack of oxygen
Exceptions to immunity: (1) if the parent is acting outside of his parental role
and within the scope of his employment; (2) if the parent acts willfully,
wantonly, or recklessly; (3) if the child is emancipated; (4) if the child or
parent dies; (5) if a third party is liable for the tort, then the immunity of the
parent does not protect the third party; (6) and if the tortfeasor is standing in
loco parentis, such as a grandparent, foster parent, or teacher, then the
immunity does not apply.
Public policy reasons in support of immunity:
Suing ones parents would disturb domestic tranquility.
Suing ones parents would create a danger of fraud and
collusion.
Awarding damages to the child would deplete family
resources.
Awarding damages to the child could benefit the parents
if the child dies before the parent and the parent inherits
the childs damages.
Suing ones parents would interfere with parental care,
discipline, and control.
Court believes all of these provide weak justification for
immunity.
Court rejects parental immunity saying parents always owe a duty to their
minor child. The issue of liability should revolve around whether parents have
breached this duty and, if so, whether their breach caused the injury.
45
Other Courts
Courts disagree on whether children can sue parents for negligence
Some jurisdictions protect parents against negligence claims by their
children
Others allow for parental immunity with exceptions (see list on p. 219)
Others, like Arizona, have abolished the traditional rule of immunity
and now allow children to sue their parents for negligence
Parental creation of risk can trigger duty
Special relationship can trigger affirmative duty when parent
does not create risk
Courts like Arizona, have abolished the traditional rule of immunity and now
allow children to sue their parents for negligence
Parental creation of risk can trigger duty
Special relationship can trigger affirmative duty when parent
does not create risk
Goller (NY; bottom p. 219): rejects parental duty where the parent is
exercising ordinary daily functions (e.g., preparing meals)
Holodook (NY; bottom p. 221): impossible to construct reasonable parent
given diverse cultures/backgrounds
o Given diverse cultures/backgrounds, is Arizona crazy for trying to
locate the reasonable parent??
Non-Physical Harms
Prima Facie Review
1. Pff must show four elements
1. Duty of care
1. FOR PHYSICAL HARMS
1. General rule: if risk created, duty to act as RP in
SSC
2. Corollary: If no risk created, no duty to act
affirmatively
3. Exceptions (special relationships, avoid future
harm, rescue)
4. Exception: no duty for policy reasons
5. Exception: special duties for some categories of
defendants (land owners, occupiers, family
members)
FOR NON-PHYSICAL HARMS
Emotional harm
Stand alone economic harm
Breach of that duty of care
46
Causation
Damages
Emotional Harm
Physical Injury + Emotional Harm
Courts allow pff to recover for emotional harm caused by defs negligence as
parasitic damages
General rule: once a tort resulting in physical injury is established,
all proximately caused damages are recoverable, including those
related to emotional harm
What happens if pff suffers only emotional harm?...
Emotional Harm
Most jurisdictions limit recovery for stand-alone emotional harm using various
thresholds
Most jurisdictions retained the impact rule until relatively recently
Impact Rule: recovery for emotional harm denied unless physical
impact occurred
Lower court granted SJ for def, holding that recovery for emotional
harm requires the showing of physical impact
What reasons does the court offer to support the traditional rule requiring
physical impact to recover for emotional harm?
Def responsible only for injuries that are the probable and natural
consequence of his negligent act. We do not expect physical harm
to flow from fright.
Dillon: mother recovered from negligent driver for emotional harm she
experienced from witnessing the driver hit her daughter
What are the factors the Dillon court used to establish a liability
threshold?
Pff located near scene
Pff contemporaneously observed accident
Pff and victim closely related
How does the Thing court change the Dillon rule (n 4, p. 285)?
Changes factors from guidelines into required elements
Does the Portee court adopt the Dillon/Thing factors?
Yes, but combines a couple and adds to the list (and turns
factors into requirements)
Portee rule: bystander can recover for ED if
defs negligence caused the death or serious physical
injury of another,
pff and injured person were in a marital or intimate
familial relationship
The pff directly observed the death or injury at the
scene (close proximity implied), and
The emotional harm suffered by pff was severe
Dillon: allowing recovery will not open floodgates. We need boundaries,
but we also need to match culpability with exposure to liability
Portee: liability should not be excessive; but the court must protect the
fundamental interests of potential victims (i.e., potential victims
emotional stability)
49
Introduction, 298-299
Is there a legal duty to protect from risk of pure economic harm? (e.g., economic
harm caused by bridge collapse, which led to lost profits of gas station
located near bridge)
Generally, courts limit legal duties owed when it comes to pure economic harm (i.e.,
no physical injury to person or property)
Sidenote: one exception
Some courts impose legal duty to use due care to acquire and
communicate information (i.e., negligent misrepresentation)
Generally, def is liable for limited measure of damages to a limited group
of plaintiffs if her negligent misrepresentation induces justifiable reliance
on the information that leads to economic loss
Some thresholds
Special relationship between pff and def (or some implicit
undertaking to exercise care, e.g., by a lawyer, accountant,
notary, etc.)
50
Issue?
o Did defs duty to keep their premises in reasonably safe condition
extend to all reasonably foreseeable victims of pure economic loss?
How does the court come out?
o No recovery for pure economic losses
Rationale?
o Court worries about unlimited liability and unpredictability (need to
draw line somewhere)
What if a business next door was physically damaged by falling debris.
o Under the 532 Madison Ave. rule, would the def be liable for economic
losses resulting from the necessary closing of the business for repairs?
Yes, see n. 1, p. 314
o Same rule as in emotional harm cases; pff can recover economic
losses that are the proximate result of physical injuries to
person or property (e.g., medical expenses, lost wages resulting
from physical injury, etc.)
Okback to facts of the case. The court discusses and then rejects the rule
set out in People Express (pp. 313-14). What does the People Express court
hold?
Def has duty to protect against pure econ loss if loss is particularly
foreseeable and predictable (e.g., not passersby)
51
but not wrongful life claims by children (very few jurisdictions allow)
Because its new, rules vary widely from jurisdiction to jurisdiction, especially
with respect to computation of damages
Claim gets in: Doc had duty to protect parents against losses from unwanted
child
Court decides on damages
How does court come out on emotional distress claim for birth of healthy
child?
No recovery (majority rule)
How does the court come out on claim for normal rearing costs?
No recovery
52
53
CAUSATION
Prima Facie Review
Pff must show four elements
Duty of care
1. FOR PHYSICAL HARMS
2. FOR NON-PHYSICAL HARMS
3. Emotional harm
4. Stand alone economic harm
Generally courts do not impose duties to protect against pure economic
losses
Exceptions:
1. Duty not to negligently misrepresent information
2. Duty to use due care to avoid wrongful
conception/birth
Breach of that duty of care
Causation
Actual cause (cause in fact or a but-for cause), AND
Proximate cause
Damages
Cause in Fact
Actual Cause: The Rule
Proving but-for causation requires a showing that the pff would not have
been injured had the def not breached his duty
i.e., breach was a necessary condition to trigger the injury
If def had not breached, then injury would not have occurred
Requires demonstration of a counter-factual (what would have happened
had def not breached his duty?)
Easy Cases
Breach was a but-for cause of harm
Def acted negligently, ran a red light and smashed into pffs
car
Breach was not a but-for cause of harm
Def negligently failed to carry a life buoy on his boat
(satisfying all other duties); the pff falls into the water and
immediately sinks below the surface and drowns
What if pff had bobbed up to the surface a few times before
drowning?
Question of fact for jury (had the def not
breached, its more likely than not that the harm
would not have occurred)
In many cases, jurors rely on their own
experiences and knowledge of how the world
works
54
Basic Doctrine
Stubbs v. City of Rochester, 333-343
Facts: The City of Rochester (D) supplied clean water for drinking, and water known
to be contaminated with sewage for fighting fires. The drinking water became
contaminated with the unclean water through Rochesters negligence. At the same
time the city saw an increase in cases of typhoid fever. Stubbs (P) contracted
typhoid fever and sued D for negligence. The trial court entered a nonsuit for D,
which was affirmed by the Appellate Division, and P appealed.
50
56
Why wasnt the pffs demonstration that Danocrine caused the injury
sufficient to show but-for causation??
Dr. Tackett offers only conjectural evidence, linking the two using
only a biologic mechanism theory (i.e., hormones caused dysfunction
and imbalance)
57
Had either party acted non-negligently, the house still would have
been destroyed!
Pff loses against both negligent defs, but only because there were two
of them
The majority of jurisdictions require showing only but-for cause and proximate
cause
More likely than not that negligence caused reduction of the chance of
a favorable outcome
Damages calculation?
o $875,000 (full wrongful death damages) x 37.5% (lost chance of
survival) = $328,125
The jury found Birnbaum negligent, and awarded Matsuyamas estate loss-ofchance damages. The jury calculated the damages as the percentage of full
wrongful death damages
corresponding to Matsuyamas chance of survival in 1995 (37.5 percent of
$875,000), along with damages for pain and suffering.
o
Loss of Chance
Duty of care
Causation
Proximate cause
Damages
Recall Stubbs
Even if the City of Rochester created an unreasonable risk of harm, if Stubbs had
contracted typhoid fever from house fliesso that even if the City had acted
reasonably, harm would have occurredStubbs loss would not be shifted to the
City.
Multiple Causes
1. Pffs house is burned down by two independent negligently-set fires that
arrive at the house at the same time
Multiple sufficient causes (both negligent). What happens when we
apply the but-for test?
But-for cause test doesnt work well
Courts resort to substantial factor test (i.e., if defs negligence
was a substantial factor in causing the pffs harm, then defs
negligence is considered an actual cause of the injury)
Iowa jury instruction: Substantial means the partys conduct
has such an effect in producing damages as to lead a reasonable
person to regard it as a cause
Damages allocated between tortfeasors (much more on this later)
2. Assume the same facts, except a lightening strike caused the second fire
Multiple sufficient causes with some non-negligent causes. What
happens when we apply the but-for test?
But-for cause test doesnt work well
Jurisdictions differ
Some impose liability on the negligent party despite failure to
show but-for causation (for policy reasons or substantial factor
test)
Others do not (pffs house would have been destroyed by the
non-negligently set fire in any event)
Normative inquiry: does imposing liability lead to efficient precautions?
60
House had no (or very little) value when it was destroyed by the first fire
Damages = loss of value of the house for the few minutes it would have
remained standing before the second fire destroyed it
Multiple Defendants
Introduction to Joint and Several Liability, 364-367
Summers v. Tice, 367-372
Facts: Ds hunting w/ P. Negligently shot in Ps direction, hitting him in eye w/shot.
Both shot at same time but only 1 person fired shot that hit; impossible to tell who
b/c same gauge shotgun and same size shot
61
63
Proximate Cause
Prima Facie Review
Pff must show four elements
Duty of care
Breach of that duty of care
Causation
Actual cause (cause in fact or a but-for cause), AND
64
The term proximate cause is a poor one to describe the rules limits
on the scope of liability
65
1. Unexpected Harm
Benn v. Thomas, 393-399
Facts: P was injured and died after Ds vehicle rear-ended the van in which decedent
was a passenger. P had a history of coronary disease and insulin-dependent
diabetes, and had previously suffered from a heart-attack and was considered at
risk of having another
Was any harm foreseeable by a reasonable person??
Yes, just not the full extent of the harm
THIN SKULL RULE (def takes his victims as he finds them): When an
actor's tortious conduct causes physical harm to a person that, because
of preexisting physical or mental condition or other characteristics of the
person, is of a greater magnitude or different type than might
reasonably be expected, the actor is nevertheless subject to
liability for all such harm to the person
Every jurisdiction has adopted this rule!
Some jurisdictions also apply in property damage cases
Two 9/11 hijackers took United flight from Portland to Boston, where
they connected to the AA flight that flew into 1 WTC
On proximate cause, the fed judge decided: It was not within Uniteds
range of apprehension that terrorists would slip through the security
screening checkpoint [in Portland], fly to Logan, proceed through another air
carriers security screening and board that air carriers flight, hijack the flight
and crash it into 1 World Trade Center, let alone that 1 World Trade Center
would therefore collapse and cause Tower 7 to collapse.
Polemis, 399-401
Facts: The owners of a vessel chartered its use to the Appellants for the purposes of
carrying, among other things, petrol to Casablanca. While unloading the cargo in
Casablanca, a wooden plank fell into the hold containing the petrol and caused an
explosion. The fire completely destroyed the vessel. The owners, charging the
chatterers with negligence, claimed the value of the vessel from the charterers. The
charterers responded that the fire was a remote consequence of their actions, so
they are not responsible. The case was referred to arbitration and the arbitrators
found that the fire was caused when the wooden plank hit metal and caused a
spark. The arbitrators agreed with the charterers that the spark was an unforeseen
66
consequence of the original negligence and therefore the destruction of the vessel
was a remote consequence. The only damage the charterers should be liable for is
the approximate damage done to the vessel by the falling wooden plank, not the
damage done by the fire. The owners sought review.
Issue: Whether the charterers negligence was a proximate cause of the fire.
Synopsis of Rule of Law. The exact way in which damage or injury results
need not be foreseen for liability to attach, the fact that the negligent act
caused the result is enough. Liability for unforeseeable harm, so long as
harm was direct consequence of defs negligence
Overturned by Wagon Mound
2. Superseding/Intervening Causes
Generally, unforeseeable intervening causes get the def off the hook
Court holds that the intervening factor (car hitting pole) does not
get the utility company off the hook (the intervening cause was
foreseeable!!)
67
Issue: Is D landowner liable for a rape that took place on his property behind
overgrowth that shielded the view from the street?
What happens at trial?
o Jury returns verdict for pff
o TC overturns
Duty (created risk by placing shrubsan active choice)
Breach (RP in SSC would not have positioned scrubs there)
o But for the breach, assault would not have occurred on defs property
(n. 2: does this demonstrate but-for causation??)
o BUT not proximate cause (perp caused injury; shrubs not substantial
factor)
What does the TC mean by substantial factor?
o Proximate cause! (harm within the risk)
Whats at issue on appeal?
o Did TC correctly decide no proximate cause as a matter of law?
What liability-limiting rule is adopted in this caseforeseeability or harmwithin-the-risk?
o Both! (different versions of same rule)
o Despite the presence of an intervening cause, the Doe court employs
the same proximate cause test the Wagon Mound court uses
role of the intervening actor is SIMPLY to frame the question of
whether the defs negligence included failing to take reasonable
care to protect against risk of assault by 3d party
i,e., was assault by 3d party within the scope of the risk created
by the negligent conduct?
How does the court come out on the issue of proximate cause?
o LC decided correctly on issue of proximate cause
o negligence was not proximate cause of injury
o Assault by 3d party is not within the scope of the risk created by failing
to maintain shrubs
What about expert testimony??
o They are not reasonable people!
o A RP with defs experience would NOT have foreseen
What about previous robbery and rape?
o A RP, knowing that they both happened indoors, would not envision a
crime happening outdoors behind his shrubs
68
3. Unexpected Victim
Palsgraf v. Long Island Railroad Co., 418-430
Facts: Mrs. Palsgraf (P) was standing on a Long Island Railroad (D) train platform
when two men ran to catch a train. The second man was carrying a small package
containing fireworks. He was helped aboard the train by one guard on the platform
and another on the train. The man dropped the package which exploded when it hit
the tracks. The shock of the explosion caused scales at the other end of the
platform many feet away to fall, striking and injuring Palsgraf. Palsgraf brought a
personal injury lawsuit against Long Island Railroad and the railroad appealed the
courts judgment in favor of Palsgraf. The judgment was affirmed on appeal and
Long Island Railroad appealed.
Cardozo v. Andrews
Views?
What factors does Andrews point to?
To recover under negligence principles, plaintiff must show that
1) the defendant was under a duty to act as a reasonable person
2) defendant failed in that duty
3) defendants conduct was the proximate cause of plaintiffs
injury.
Modern rules:
Andrews view on duty has prevailed (duty is not analyzed in
relation to the pff)
Cardozos emphasis on foreseeability of pffs injury wins when it
comes to proximate cause (the Andrews factors have faded into
the background)
Under modern tort law, the pff must show that she was a reasonably
foreseeable victim
How might these facts be analyzed under the harm-within-the-risk test?
The pffs harm is not one of the foreseeable saved harms that enters
the BpL calculus of the RP in SSC
NEGLIGENCE DEFENSES
Prima Facie Overview
70
Each def is required to pay only the portion of total damages related to
the share of his fault (or responsibility) (i.e., proportionate liability)
71
UCFA
Section 2(d): Ds share gets reallocated among A, B and C:
A = 50% = 40 / (40+30+10)
B and C portions calculated similarly
IOWA
Section 668.4: no J&S liability
B PAYS 12,000 AND C PAYS 4,000
A FACES FULL RISK OF INSOLVENCY
that some
pff is not
General rule: Recovery is reduced to the extent pff failed to exercise due care
to mitigate the harm caused by the defs breach
72
The hard part is figuring out how to apportion damages when the pff
breaches the duty to mitigate damages
73
def will be held solely liable for the cost of the ambulance and
the initial surgery
but costs related to extra care necessary due to pffs failure to
follow the prescribed physical therapy protocol are divided
between pff and def according to responsibility (unless the
factfinder determines there is a reasonable basis for
apportioning based on causation)
States do not agree on how to treat anticipatory avoidable consequences
Most states prohibit (by statute) reduction for negligent failure to wear
seat belts (or bike/motorcycle helmet); but some allow reduction of
damages
Some statutes exclude any evidence about whether seat belts
(or helmets) were worn
Possible rationale?
Legislatures are reacting to realitya substantial number of
people refuse to wear seatbeltsand lawmakers dont want to
lose the deterrent impact of negligence by releasing negligent
drivers from liability (or reducing awards against them)
Assumption of Risk
Prima Facie Overview
Basic Categories
Express assumption of risk
Triggered by exculpatory clause in contract (hold harmless
agreement)
Ubiquitous feature in rental agreements, hospital service
agreements, transactions involving recreational activities,
etc. until early 60s
Courts began invalidating them, finding them
contrary to public policy
Courts also will invalidate the clause if its
ambiguous, indefinite or unclear
Implied assumption of risk
No express agreement
1. Express Agreements
Definition: where parties agree in advance that D need not exercise due care for
the safety of plaintiff. Usually done through formal written contract, usually called
an exculpatory or hold-harmless agreement.
Hanks v. Powder Ridge Restaurant Corp., 458-470
Facts: Powder Ridge Restaurant Corp. (Powder Ridge) (defendant) operates a winter
sports facility. Hanks (plaintiff) was injured while snowtubing at Powder Ridge.
Powder Ridge is open to all members of the public over the age of six or taller than
44 inches. Before snowtubing, Hanks and all other patrons were required to sign an
agreement which purportedly released Powder Ridge from liability for any
negligence. The trial court dismissed Powder Ridge on summary judgment, finding
that by signing the agreement Hanks had expressly released Powder Ridge from
liability for its own negligence. Hanks appealed on the basis that the agreement did
not release Powder Ridge from liability, and that the agreement is unenforceable
because it violated public policy.
Court folds Tunkl factors (p. 463) into its totality-of-the-circumstances rule
Release absolved def-hospital from any and all liability for the
negligent or wrongful acts or omissions of its employees.
How might the Tunkl court have analyzed the circumstances in Hanks?
75
E.g., a court might purport to rule in favor of def under the affirmative
defense of implied assumption of risk, but effectively its arguing:
That def had no duty or did not breach duty (primary implied
assumption of risk), or
P clearly saw the dangers of the ride. No additional warnings were necessary,
since P could observe all risks. The whole point of ride was to fall down. There
had been no other bad injuries or broken bones ride not so dangerous as to
require that it be closed.
One who takes part in such a sport accepts the dangers that inhere in it so far
as they are obvious and necessary.
o Would be different case if the dangers inherent in the sport were
obscure or unobserved.
76
Whats at issue?
Whether assumption of risk bars recovery after change to comparative
negligence
Whats the difference between Murphy and Davenport in how the court
assesses the pffs negligence claims against the defendants?
Murphy: court decides def did not breach
Davenport: def breached, and breach caused harm
So, we dont have case of primary assumption of risk here
The court distinguishes primary assumption of risk from secondary
assumption of risk and holds that
Secondary assumption of risk will NOT completely bar recovery
Its best to fold assumption of risk into the comparative negligence
determination
If pffs degree of fault is greater than defs, no recovery
Note that court explicitly retains complete bar for express assumption of
risk and primary implied assumption of risk, but this is not surprising
Parties bound by contract terms (unless against public policy)
Def not liable if no duty or no breach
The traditional rule (still applied by some courts) denies recovery if:
Pff had specific knowledge of the risk posed by the defs
negligence,
Pff appreciated the nature of the risk, AND
Pff proceeded voluntarily to encounter the risk, nonetheless
Note that this is a subjective test!!
Modern Rule
Strict Liability
Overview
79
answerable for all the damage which is the natural consequence of its
escape.
Judge Bramwell favored SL, arguing that the issue is either trespass (as
opposed to trespass on the case) or nuisance, so fault not required to shift
loss
Losee v. Buchanan (n. 3, p. 513): rejects Rylands, arguing that injuries of this
sort are part of the price we pay for industrialization
Trespass
Nuisance
82
Generally, tort law shifts losses only when the def was at fault. Courts have
carved out exceptions for certain types of cases.
Rylands v. Fletcher provides historical background
Court draws rather fuzzy distinctions (e.g., natural v. non-natural uses
of land)
Eventually translated as ultrahazardous activities
Modern day doctrine carves out exceptions from general fault rule for
abnormally dangerous activities
An activity that creates a foreseeable and significant risk of
physical harm even when reasonable care is exercised, and
History
Prior to 20th century, no tort law for products liability. Injured partys recovery
limited to breach of contract claims.
Winterbottom (p. 555 and n. 1)
Winterbottom, an agent of Postmaster-General, injured by stagecoach
Wright, under contract with Postmaster, allegedly negligently
maintained the stagecoach
Recovery denied due to absence of privity
Injury not enough; breach of contract required
AND If contract did not specify buyers rights given injury, courts
followed caveat emptor (i.e., buyer beware)no recovery
Gradually, courts created exceptions to the privity requirement
E.g., Thomas v. Winchester (cited in MacPherson)
Label affixer druggist consumer; consumer sues label affixer (no
privity)
Privity not required when pffs injury was caused by imminently
dangerous product
Foreseeability of imminent danger triggers duty of care!
Rise of Warranty
86
Defects
Manufacturing Defects
Introduction, 569-571
Modern Products Liability Doctrine
Prima facie elements for products liability claims:
1. Defendant is seller
2. Product was defective when it left defs hands,
3. Defect was actual and proximate cause of pffs harm, and
4. Damages
Its sometimes difficult to prove the defect was the cause of the injury
Proof gets more difficult with passage of time
E.g., pff drives her car 78,000 miles over several years and is injured
when her brakes fail
Its also sometimes difficult for the pff to prove how the weakness was
created
Pff must show that defect was present at time the product was
purchased
If weakness was created after purchase (e.g., pff dropped peanut jar at
home), seller is not liable
Design Defects
Evolution of Design Defect Doctrine
Restmt (2d) 402A imposes liability for physical harm on one who sells
any defective product that is unreasonably dangerous to the user or
consumer or to his property
The exercise of all possible care on the part of the seller is
irrelevant (i.e., SL is applied)
Privity is not required
Cronin and Barker, 571-573
What the basis for the defs appeal?
87
Lower court erred when it charged the jury on strict liability by leaving
out the requirement of unreasonable dangerousness
What does the court decide?
Unreasonable dangerousness not required!
Rationale?
This element is too close to negligencemanufacturers should be held
SL for injuries caused by defective products
Eliminating this requirement does not create absolute liability b/c
pffs still must show that a defect existed and that the defect caused
the injury
A large number of states followed the Cronin court.
Aftermath of Cronin
Contrary to the Cronin courts interpretation of unreasonably dangerous,
comment i. of the Restmt (2d) defines unreasonably dangerous in terms of
consumer expectations:
The article sold must be dangerous to an extent beyond that which
would be contemplated by the ordinary consumer who purchases it,
with the ordinary knowledge common to the community as to its
characteristics.
Requiring unreasonable dangerousness ensures that risky products are not
automatically considered defective
e.g., knives are not defective just because they are sharp; guns are not
defective just because they propel projectiles
Most jurisdictions that apply 402a retain the unreasonable dangerousness
prong
not meant to import negligence thinking
merely meant to distinguish risky products from defective products
Barker v. Lull Engineering Co. p. 572
Facts: P hurt when operating loader. Design defect was loader did not have support
which caused it to overturn.
Court offers a general test and an alternate test for determining design
defect. What are these?
general test: design is defective if the product failed to meet
consumer expectations
alternative test (aka the risk/utility test): if consumers would
have no idea how safe the product could be made (i.e., no
expectations), the design is defective if the product created
excessive preventable dangers
Excessive: risks inherent in the design outweigh
its benefits, and
Preventable: the risk is avoidable through safer
alternative
88
NOTE: Baker holds def has BOP, but this is the minority rule
According to the court, is the R/U test the same as negligence?
NO!
Test focuses on condition of the product, NOT on the
manufacturers conduct
What rule did the lower court apply to determine whether the design was
defective?
Ordinary consumer expectations rule
Whats at issue in the appeal?
May a products design be found defective on the grounds that the
products performance fell below the safety expectation of the ordinary
consumer if the question of how safely the product should have
performed cannot be answered by the common experience of its
users?
How does the court come out?
consumer expectations are irrelevant
instead, the court should have applied the R/U test from Barker (i.e.,
excessive preventable danger?)
What sorts of factors are juries allowed to consider when applying the R/U
test (clue: see Barker)?
See list on bottom of p. 572
According to the court, when is the pff allowed to rely on consumer
expectations?
use CE if the circumstances of the products failure permit an
inference that the products design performed below the legitimate,
commonly accepted minimum safety assumptions of its ordinary
consumers
RULE: failed to perform as safely as an ordinary
consumer would expect when used in an intended or
reasonably foreseeable manner (consumer expectation
test),
Some have interpreted this to mean that consumer expectations test will be
used when the defect is obvious to everyone
E.g., in a 1956 Florida case re: finger severed by lawn chair
This is a slam dunkno one expects that a lawn chair will severe a
finger under these circumstances. Therefore, apply CE.
89
Commentators have argued that the test is overly broad: liability will
follow from almost all product injuries if the test means that any injury
consumers would not expect demonstrates a product defect
e.g., consumers have not been able to show that cigarettes are
defectively designed b/c the reasonable consumer does not
expect them to be safe
90
What makes open and obvious dangers so difficult to analyze under the
consumer expectations test?
If danger posed by product is open and obvious, def wins because
product users expect risk
Courts have reacted to this difficulty differently
a few courts throw out claims
most abandon CE in these types of cases and adopt other tests (e.g.,
R/U test)
Some legislatures have adopted R/U test for these cases
How does the court feel about the consumer expectations rule in this
context?
We should not provide seller a defense just because dangers
are open and obvious
How does dissent feel about the rule?
Consumer had choice and decided on obviously less safe
product
91
92
See e.g., Liriano v. Hobart Corp (p. 641) (seller should warn that
obviously dangerous meat grinders should be used only with safety
devices attached).well discuss in detail next time
Even if the danger is so obvious as to require no warning, the pff can bring a
defective design claim
Although obviousness works against the pff
might be difficult to show that a RAD would reduce or prevent
injury (seller reasonable in assuming users will take steps to
protect themselves)
difficult to show consumer expectations were not met
Non-obvious Dangers
As with design defects, the trend is a move from strict liability (402A, Restmt
2nd) for inadequate warning to a test that resembles negligence (2, Restmt
3rd)
402A, comment j
In order to prevent the product from being unreasonably dangerous,
the seller may be required to give directions or warning, on the
container, as to its use.
seller is required to give warning, if he has knowledge, or by the
application of reasonable, developed human skill and foresight should
have knowledge, of the presence ofthe danger.
not required to warnwhen the danger, or potentiality of danger, is
generally known and recognized.
Restmt (3d) requires warning if
Danger is reasonably foreseeable, AND
Warnings expected benefits exceed expected costs
Benefits: reduced probability and/or magnitude of harm
Costs: determining what info to provide, providing info
(designing labels, printing labels, etc.), cost of information
overload
93
A manufacturer may be held liable for placing a product on the market that bears
inadequate instructions and warnings or that is defective in design.
P wants more detailed warning label but must look at the social cost of
such a label proliferation of label detail threatens to undermine the
effectiveness of warning altogether.
Ds warnings were clear and unequivocal sufficient to appraise
ordinary consumer that unsafe to operate a guardless saw.
Would have prevented this accident if P had followed warnings. Vast
majority of consumers do not detach this critical safety feature before
using this type of saw.
Adequacy Rules
Content must be adequate
must contain facts necessary to permit reasonable person to
understand the specific nature and extent of the danger and in some
cases how to avoid it
some courts have developed criteria (e.g., n. 1, p. 603)
criticized for being too vague and subjective
Expression must be adequate
some courts have held that when non-English speaking consumers
are foreseeable, warnings must be provided in languages other than
English
if illiterate consumers are foreseeable, symbols might be required
(e.g., skull and crossbones)
Warning must be conspicuous (Johnson, n. 4 p. 605)
n. 1, p. 603: question of fact
3. Exceptions
State v. Karl, 610-620
What gives rise to the claim?
Pff died May 1999; drug voluntarily pulled from U.S. markets in 2000
What exception to the warning rules does the court consider?
No warning required if a learned intermediary (e.g., physician)
is adequately warned of dangers
Rationale behind this rule?
Does this exception get def off the hook?
No!
The rationale for the doctrine are outdated!
On what grounds does the dissenting judge base his objection to the
majoritys holding?
The majority was too quick in casting aside the rationales for the
learned intermediary exception
94
Some drugs are not heavily advertised and doc IS in the best position
to help patient wade through the information
BUT, why not warn patient too??
On the one hand, it couldnt hurt
On the other, warning to patient might not impact patients decision
(waste of resources) and might increase the doctors cost of informing
the patient of the material facts (recall informed consent rules)
A [brand name] prescription drug [or medical device] is not reasonably safe
due to inadequate instructions or warnings if reasonable instructions or
warnings regarding foreseeable risks of harm are not provided to:
(1) prescribing and other health-care providers who are in a position to
reduce the risks of harm in accordance with the instructions or warnings; or
(2) the patient when the manufacturer knows or has reason to know
that health-care providers will not be in a position to reduce the risks of harm
in accordance with the instructions or warnings
Vassallo v. Baxter Healthcare Corporation, 620-628
Facts: pff injured by silicone gel breast implants
Holding?
Normative Inquiry
Consider goals of compensation, deterrence, loss-spreading, fairness,
alleviating difficulties of proof, minimizing administrative costs, etc.
More Rules
If injury from defect was not foreseeable at the time of sale, seller generally
is not required by tort law to recall, repair or retrofit the product after
discovering the risk
DEFENSES
General Motors Corporation v. Sanchez, 628-635
Facts:
97
Disclaimers
Employee Exception
Courts that continue to apply traditional assumption of the risk doctrine have
carved out an exception for employees
Generally, these courts do not allow an A of R defense against employees
who are injured by products (usually big machines) that are obviously
dangerous
Rationale: EEs have little choice but to deal with the risky products and so
should not be completely barred from recovery even though they proceeded
in the face of known danger
Does that seem right??
Normative Inquiry
The court rejects liability even though the manufacturer knew that virtually
all of its customers were removing the safety guards
Court implies that fault actually rests on the employer for removing or
allowing removal of the guards
From a normative standpoint, should a design be considered defective if the
safety devices can be removed and the manufacturer knows employers
and/or employees commonly remove them?
Modifications to Products
General rule regarding modifications is akin to the rule on misusei.e., courts
sometimes consider modification when deciding:
Whether product was defective
Whether defect was a proximate cause of the injury
Whether pff was comparatively negligent
Jones reflects minority rule; majority of courts impose liability if modification
is foreseeable
But, need to check statutes
Liriano v. Hobart Corp., 641-651
Facts: Plaintiffs hand was caught in a meat grinder while he was working. He was
severely injured. He sued the manufacturer then brought a third-party action
against plaintiffs employer. At the time of sale, the machine came equipped with a
safety guard, but the guard was removed while in possession of Plaintiffs employer.
The apparatus carried no safety warning indicating that it should be operated only
with the safety guard attached. The issue that went before the jury was the failure
99
to warn claim. The jury found for Plaintiff, and liability was apportioned among all
three parties.
Issue: Does a reasonable manufacturer have a duty to warn even when the
danger at issue is an obvious one?
100
Heeding Presumption
101
INTENTIONAL HARM
Basic Doctrine
Prima Facie of Intentional Torts
1. Intent (to harm) OR substantial certainty that harm will result from the
act
subjective standard
1. Impact (changes from intentional tort to intentional tort)
2. Causation (see n. 5 and 6)
a. Actual cause similar to other torts
b. Proximate cause is more inclusive (i.e., foreseeability not required, but
courts have attempted to establish some boundariesbut standards
are vague)
3. Harm (including dignitary harm (aka offense))
1. Intent
Garrett v. Dailey, 897-904
Facts: Five year old Brian Dailey (D) pulled a chair out from under Ruth Garratt just
as she was about to sit causing her to fall and break her hip. Garratt brought suit for
personal injuries and alleged that Dailey had acted deliberately. The trial court
entered judgment for Dailey and found that he had not intended to injure Garratt.
The court nevertheless made a finding of $11,000 in damages in case the judgment
was overturned on appeal. Dailey appealed.
Relevant facts?
first (bench) trial version accepted by the court: Dailey picked up chair
and sat in it. When he noticed that Garrett was attempting to sit in the
same chair, he got up and tried to move the chair so she would not fall.
He was not able to get the chair under her in time. (Daileys version)
Trial outcome?
Dismissed
Dailey did not intend to cause a harmful or offensive contact;
therefore, no liability
Issue on appeal?
Did TC apply the correct rule to determine intent?
What intent rule does the appellate court apply?
Intent element satisfied if either
Defs purpose was to accomplish the invasive result (i.e., the
injurysee Restmt (3d) Liab for Physical Harm 1), or
Def was substantially certain that invasive result would follow
from the action (subjective test; focuses on immediate act at
particular time and place, not on-going activityn. 3)
Does the court hold that Dailey committed a battery?
No! They remand to lower court
102
They lay out rule lower court should apply: battery if, when Dailey
moved the chair, he knew with substantial certainty the pff would be
injured
RULE: substantial certainty that a harmful contact will result is
sufficient to satisfy the element of intent
Intent to do What?
Assault
1. INTENT (including substantial certainty)
2. IMPACT = APPREHENSION OF
IMMINENT HARMFUL BODILY CONTACT
a. objective (RP) standard AND subjective standard
b. fear is generally not required (although courts often talk in terms of fear)
3. CAUSATION
4. HARM
Picard v. Barry Pontiac-Buick, Inc., 904-907
Facts:
Court says even if the def never touched the pffs person, the act constitutes
a battery. How can this be if contact is required?!?
Contact can be with an extension of the person (e.g., a cane or a
camera)
103
What if the def never actually touched the pff, but she thought he was going
to touch her, and she ducked and injured her neck in the process?
She might claim assault. Would she win?
Must also show RP would have apprehended imminent harmful bodily
contact
And that he intended to put her in apprehension of imminent harmful
bodily contact (or was substantially certain)
FALSE IMPRISONMENT
Elements
1. INTENT (including substantial certainty)
2. IMPACT = CONFINEMENT
pff not allowed to go beyond the boundaries fixed by def
Objective and subjective std
3. CAUSATION
4. HARM
Basic Elements
What inferences might be drawn from the fact that defs agents closed door
and locked it with the little latch from the inside?
Pff: it was psychological coercion. Closing and locking door in
combination with other acts (sitting directly next to her, raising voice)
would cause RP to believe she was not free to leave (and pff believed)
Def: RP would have believed she could leave room (and pff believed
she could leave room)its just a little latch that can be undone from
inside
The court cites Marcus (p. 913). For what proposition does Marcus stand?
A present threat (as opposed to future threat) can constitute false
imprisonment
Does the court buy the argument?
Court decides no present threat
HYPO: Assume Lopez got up to leave and one of the men said, if you leave
this room, you should walk straight to the unemployment office, compelling
Lopez to sit down. Different outcome?
ii.
toward him. The jury awarded the plaintiff $45,000, but the trial court set aside the
verdict on the ground that no recovery could be had for emotional distress when no
physical injury was involved.
Recklessness
Restmt 3rd (PH) 2
A person acts recklessly in engaging in conduct if:
(a) the person knows of the risk of harm created by the conduct or knows
facts that make the risk obvious to another in the person's situation,
and
(b) the precaution that would eliminate or reduce the 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.
Outrageous Conduct
DEFENSES
TABLE
Hart v. Geysel, 945-949
Facts:
Demonstrating Consent
On what grounds does the def appeal the lower court decision?
LC did not properly instruct jury on the self-defense rule
According to the appellate court, what instruction should have been given?
If (1) the def had acted honestly in using force, (2) his fears were
reasonable under the circumstances, and (3) the means were
reasonable, then conduct is justified
Defense of Self-Defense
109
Defense of others follows the same analysis and now extends beyond family
members
Defense of Property
Ploof v. Putnam
Facts: pff and his family are caught on his sloop in a storm. Pff docks on the
defs island. The dock owner unmoored the sloop from the dock causing
damage to property and person.
Claim: sloop owner sued the dock owner for trespass to chattels (an
intentional tort we wont cover)
Dock owners theory: the trespass was privileged to defend his property by
using reasonable force to repel the trespassing sloop owner
110
Holding: privilege of reasonable defense of prop is lost in the face of the pffs
superior privilege of necessity
Coase Theorem
Relevance?
Take care when arguing about the deterrent impacts of the law
Public Necesity
Def not liable if the intentional tort was committed to protect the public good
In these cases compensation is not required
courts dont want to create incentive for potential defendants to
engage in time consuming cost/benefit analyses during emergencies
Thought to serve
a retributive function (i.e., eye for an eye), and
a deterrent function (but see n. 7)
Typically courts award punitive damages only when the defs conduct was
outrageous in some sense
Arguments often revolve around whether the defs conduct was
sufficiently egregious to warrant a punitive award
Some states, like CA, have established statutory triggers (e.g., oppression,
fraud, malice, evil motive, spite, willful or wanton conduct, etc.)
COMPENSATORY DAMAGES
Seffert v. LA Transit Lines, 710-728 (skip n. 4, 6, 9, 12)
Facts: On October 11, 1957 Seffert (plaintiff) was caught in the door of a bus run by
Los Angeles Transit Lines (L.A. Transit) (defendant), and dragged some distance
before being thrown to the ground. Before the accident Seffert was 42, healthy, and
had been supporting herself for 20 years. As a result of the accident Seffert suffered
severe, disabling, and permanent injuries, and will suffer pain for the rest of her life,
which was estimated to be 34.9 years from the time of the trial. The trial took place
in July and August 1959. After the accident Seffert underwent nine painful
operations and was hospitalized for months. Future operations may be necessary.
Seffert calculated her pecuniary losses as a total of doctor and hospital bills, drugs
and other medical expenses, loss of earning between the time of the accident and
the trial, future drug and other medical expenses, and possible future loss of
earnings, for a total of $53,903.75. Seffert also claimed $134,000 in nonpecuniary
damages including past and future pain and suffering, humiliation from being
disfigured and crippled, and anxiety from fear that her leg will need to be
112
amputated. The jury awarded Seffert all of her claimed damages, totaling
$187,903.75. The trial court denied L.A. Transits motion for a new trial based on its
claim that these damages are excessive as a matter of law. L.A. Transit appealed.
e.g., some allow only if pff does not suggest specific numbers to be
multiplied by number of periods, but simply suggests the method the
jury should apply
sometimes courts allow evidence about awards for similar injuries
The court notes wide variation and difficulty in finding sufficiently
similar cases
CA Jury Instructions
No definite standard, no expert witness required. Use calm and reasonable
judgment; damages must be just and reasonable in light of the evidence
Judging Awards
X
Y
McDougald v. Garber,
(skip n. 7)
(lo 728-736(hi
Facts: Plaintiff, 31 year-old Emma McDougald, entered a New York hospital to
w)section and gh
undergo a Caesarian
tubal ligation. In the course of the procedure she
suffered oxygen deprivation, resulting
) in severe brain damage and leaving her in a
permanent coma. McDougald and her husband brought an action claiming medical
malpractice. A jury awarded multiple damages, including damages for loss of
pleasures and pursuits of life. On appeal, the court modified the award and granted
a new trial on non-pecuniary damages on the basis that the trial court had erred in
its jury instructions
114
115
Whats Recoverable
In survival claims, any damages decedent could have claimed (up to the
point of death)
Traditionally wrongful death claims allowed only for recovery of pecuniary
losses (e.g., lost wages that would have gone to dependants of decedent)
Many states now allow damages in these actions for non-pecuniary
losses (including loss of consortium)
Is this a normatively appealing trend?
What Happens after Death of Defendant
Some survival statutes allow for claims against the tortfeasor even after the
tortfeasors death
In many jurisdictions, the victims estate is allowed to sue the estate of the
decedent-tortfeasor
Damages Overview
PUNITIVE DAMAGES
The Basics
Thought to serve
a retributive function (i.e., eye for an eye), and
a deterrent function (but see n. 7)
Typically courts award punitive damages only when the defs conduct was
outrageous in some sense
Arguments often revolve around whether the defs conduct was
sufficiently egregious to warrant a punitive award
Some states, like CA, have established statutory triggers (e.g., oppression,
fraud, malice, evil motive, spite, willful or wanton conduct, etc.)
Normative Inquiry
Commentators and judges have argued that courts have gone too far in
allowing punitive damages claims.
Do you think the majority went too far in this case? While the driver certainly
created risk, did he act with malice??
State Farm Mutual Automobile Ins. Co. v. Campbell, 760-776
Pro Posture
trial court awarded $2.6M in compensatory and $145M in
punitives
trial judge reduced to $1M in compensatory and $25M in
punitives
Utah supreme court reinstated $145M punitive award
Rationale for reinstatement?
PP&R policy was reprehensible
the firm had massive wealth
not all claimants would bring claims and harsh punishment in
this case makes up for this
punitives not excessive compared to what they might suffer if
various civil and criminal penalties were applied
Whats at issue?
Whether the Utah court was in error when it reinstated the
punitive award
Specifically, whether the $145M punitive award, coupled with the
$1M compensatory award violated defs 14th amendment
due process rights
Def argues that unpredictability violates notice requirement
Court reapplies Gores guideposts to determine reasonableness
degree of reprehensibility of the defs misconduct
disparity between actual or potential harm v. punitive award
disparity between punitive dmgs v. civil penalties authorized or
imposed in comparable cases (e.g., civil fines; but not criminal
penalties)
Court suggests a reasonable punitive-to-compensatory damages ratio
is likely something less than 10:1
Although they dont establish a firm upper bound
Holding: 145:1 is an excessive ratio (remanded)
Dissent: Scalia and Thomas (textualists) argue that the due process
clause says nothing about excessive or unreasonable damages awards
the court should not read this protection into the Constitution
118
INSURANCE
Introduction, 776-785
Damages
Compensatory damages
Economic damages
Non-economic damages
Punitive damages
Function: to punish and deter
Egregious conduct triggers award (sometimes trigger is specified by
statute)
Defs sometimes argue that large and highly variable awards violate
14th amendment due process rights
The Gore guideposts and suggested ratios are meant to reduce
variability, although its not clear when courts will apply different
ratios
Courts sometime worry that the jury is punishing for harm done
to non-litigants
Many states have capped or eliminated punitive awards
Basics of Insurance
Recall: Collateral source rule says pff can collect even if first-party insurer
covered losses
If insurance contract contains a subrogation clause, insurer can step into
the shoes of the pff for purposes of recovering indemnity payments made to
the pff
120
Ruling will determine who will end up pursuing and defending against
the claims
Whats at issue?
Whether liability will trigger any of the insurance policies related to the
claim
Which insurers are possible candidates?
Bankers & Shippers Insurance Co.
sold auto insurance policies to Maddock covering different autos
Insurance Company of North America
sold homeowners policy to Maddock
Liberty Mutual Insurance Co.
sold auto policy with an uninsured motorist endorsement to
Lalomia
What does the court decide with respect to Maddocks auto insurer?
Would not be triggered be/c motorized bike was not a private
passenger automobile
Court likely does not want to put the insurer on the hook for a risk it
did not intend to cover
Courts analysis often involves interpreting contract terms
These sorts of cases are also brought as simple breach of contract
claims after denial of coverage by the insurer
What about Lalomias auto insurance policy that included an uninsured
motorist endorsement?
court says its triggered
But, arent the losses from the accident insured??? (i.e., wont the home
owners policy cover the losses?)
The motorbike was uninsured
The home owner policy covering negligent entrustment does not count
as insurance for purposes of triggering Lalomias policy
What happens if the boy (but not the father) is found negligent?
Lalomias insurer must cover damages according to its policy
What happens if both the boy and the father are found negligent?
The court will ask the jury to allocate damages between them
injuries are likely indivisible (so no allocation based on
causation); therefore, allocate according to fault or responsibility
If joint and several liability, then the pff can recover from either
insurer (up to the limits) and the insurers settle up later
If several liability only, Lolamias auto insurer will cover the
damages allocated to the boy and the home owner insurer will
cover the damages allocated to the father
If the policies do not cover all damages, then the father might be on
the hook personally
Insurance Overview
123
A SURVEY OF ALTERNATIVES
Tort Reform, 820-829
Intended goal: to reduce premiums (often medical malpractice premiums)
Theory: if we reduce both size and variation of awards, price of medical
malpractice insurance will decrease
Other goals
Stabilize access to care
Docs might gravitate toward states with lower med mal
premiums and less litigation
Reduce practice of defensive medicine
Over-utilization of diagnostics, etc. to avoid med mal suit
Shifts away from high-risk areas (e.g., obstetrics)
Reduce the cost of medical care
If producing medical care costs docs less, then medical care
prices will decrease; health care insurance becomes more
affordable
Prior to the early 1900s, employees injured on the job were required to file a
tort claim to recover damages from employers
E.g., if the EE could show that the ER acted negligently, the court
might award damages
Often, however, the ER avoided liability by arguing that one or more
affirmative defenses apply. What were these?
Fellow servant rule: no recovery if another EE contributed to
the injury
Contributory negligence
Assumption of the risk of customary and observable dangers
State legislatures began to eliminate these defenses, but EE was still
required to show fault on the part of the ER
1910: NY passed first WC statute
After a couple court battles and an amendment to the state
constitution, the WC scheme replaced the tort system for worker injury
Since then, every state has enacted some form of WC
Mandatory for employers in most states
Some workers are excluded (e.g., domestic workers, agricultural
workers, employees of small employers, etc.)
ER benefits
1. Scheduled benefits,
limited in duration and
amount
2. No benefits for P&S
3. WC is exclusive remedy
against ER and coworkers (but EE can sue
3rd parties)
2. ER cant assert
defenses
3. Immediate
payment
126