Torts Outline
I. Possible goals of torts
A. corrective justice
B. public policy
1. deterrance
2. compensation
3. risk distribution
4. morality
5. institutional competence
6. transaction costs
7. distribution of wealth
8. justice
II. Negligence
A. prima facie case requires
1. duty
2. breach of that duty
3. proximate causation
4. actual harm
5. no contributory negligence (at common law)
6. comparative negligence (at modern law)
B. breach of duty
1. reasonable person standard
a. reasonable man v woman v child...
b. conforming to societal norms
c. decisions should be made by evaluating costs and benefits
d. judge against the acts of a typical person
e. very subjective even though considered an objective standard overall
f. normative standard--ignores people's particualr strenghts and weaknesses
2. Hand test
a. negligence exists when B<PL
(1) assumes costless info
(2) assumes reasonable parties
(3) externalities...
(4) level of care considered
(5) level of activity ignored
(6) assumed risk neutrality
(7) negligence will turn upon costs and benefits of action
(8) costs can be externbalized as long as greater social benefit is increased
(9) Net benefit test is morally bankrupt
(10) Adams v. Bullock
b. Calabresi-Hershaw test: whoever knows more about B<PL should be liable
(1) more real world
(2) compromise between negligence and strict liability standards
3. negligence-per-se
a. Goodman
b. Pokora
c. Cts don't like to use
d. method for judge to control jury
4. custom
a. defining custom is difficult
b. information difference-- there is liability only if the plaintiff is not sensitized to
the breach of custom.
c. the custom must have a causal relationship to the injury to be used
d. Trimarco
(1) custom changed after glass was installed.
(2) If rules change too much, then people can't follow.
(3) custom must exist to prevent injury, not for other reasons (e.g. aesthetic)
e. T.J. Hooper, Hand.
(1) radios are low transaction cost.
(2) custom is not absolute defense
(3) custom only goes to reasonableness
5. statutory evidence of standard of care
a. should courts use statutes to assign negligence liability?
b. four possible weight given to statutes
(1) negligence per se, Martin
(2) prima facie evidence
(3) evidence toward negligence
(4) no evidence, Brown
c. factors that determine what weight should be given
(1) correlation between violation of the statute and the injury
(2) legislative mandate more compelling than administrative ruling
(3) causation
(4) intent of legislature
d. interaction of common law and statutes
(1) Tedla v. Ellman
(a) statute is derrogation of common law
(b) statute supplants common law
(c) statute codifies common law
e. regulatory compliance as a defense to liability
III. Proving negligence
A. direct v circumstantial evidence
1. Negri v. Stop & Shop
a. constructive notice, store should have known of danger
b. dirty bottles showed that condition present for some time
2. Gordon v. American Meuseum
a. no constructive notice
b. might have just happened
c. little control over area, since outside
d. independent contractors responsible for vending
3. res ipsa loquitor (the thing speaks for itself)
a. Palintiff doesn't have enough info to prove
b. defendant is in best position to control accident
c. three elements
(1) injury doesn't normally occur in the absence of negligence
(2) agency in exclusive control of defendant
(3) no contributory negligence
d. theories of res ipsa loquitor
(1) substantive
(2) evidentiary
e. based on 19th century rules of restrictive discovery
f. close to but not strict liability in disguise
(1) if strict liability in disguise, then could not defend on proof of lack of
negligence, Ybarra.
g. Airplane accidents
(1) large yield res ipsa loquitor
(2) small yield negligence
h. procedural effects
(1) Is res ipsa loquitor a presumption(effectively shifts burden) or inference(just
evidence)?
i. multiple defendants
(1)
(2) potentially different legal standards for each defendant
(3) should all defednants have to be enjoined?
(4) too many defednants yields many false positives.
j. in medical malpractice
(1) particualrly appropriate
(2) too difficult to prove negligence directly
B. Burden of going foreward v burden of proof
1. going foreward directed at judge
2. proof directed at jury
3. prima facie case means enough to go foreward
C. Constructive v actual notice
1. constructive means legal fiction
2. actual means factual
D. Inference, presumption, established fact
1. Keech v. Krober
2. Inference
a. connection is in the mind of the observer
b. two conditions that may or may not be connected through direct evidence
3. presumption
a. connection between two conditions that is legally required
b. not necessarily permanent... can be changed with legal necessity
4. established fact
a. conclusory
b. stronger connection than either of others
E. ordinary v. opinion evidence
1. opinion means witness gives opinion about conclusions.
2. opinions must ahve standing, expert...
3. medical malpractice requires opinion evidence
F. medical malpractice
1. coverage no one would want
a. coverage for noneconomic loss
b. moral hazard
c. coverage for pain and suffering
d. over and above first party insurance
e. limited access to system for recovery
f. high administrative costs
g. damages skewed toward wealthy
2. organizational enterprise liability
a. hospitals
b. in best position to trade benefit/costs
c. control over doctor's conduct
d. can balance deterrence
e. best info gatherers
3. role of contracting
a. not allowed now
b. could exchange cheaper care for less liability
4. standard of care is defined by custom in the profession
a. geographical considerations, Henning
(1) locality
(a) difficult to find expert witnesses
(b) don't want to snitch
(2) state
(3) national
(a) technological differences between regions
b. which specialties of the profession
c. genius innovator v. charlatan
(1) respectable minority allowances
(2) approach must have been dicuseed
(3) some evidnece of propriety of use
d. second class medicine
e. exception, Helling v. Carey
(1) glaucoma case
(2) ct imposed standard of care above professional custom
(3) legislature overruled
5. special features
a. causation in fact is difficult to prove
b. technological factors
c. overdeterrence yields defensive medicine
6. informed consent
a. doctors have a duty to disclose relevant issues about risks inherent in treatment,
alternatives and likely results
b. must show but for cause, Paucher
c. four theories
(1) battery
(2) negligence
(3) breach of fiduciary duty
(4) breach of contract
d. standard of disclosure
(1) reasonable patient rule
(a) what would patient want to know?
(b) objective easier to deal with than a subjective patient rule
(c) Schuck's article
(2) physician rule
e. materiality related to causation
f. informed consent liability is expanding
(1) Moore
(a) violated informed conjsent by using body tissue for research
(2) Faya
(a) failure to notify patient of Dr's AIDS condition
7. crisis in tort and tort reform
a. nobody would buy insurance that tort system forces us to buy
b. contract solution
IV. Duty
A. to establish duty, must have:
1. standard of care
2. negligence
B. very conclusory. cts often don't give justification
1. historical perspective
a. individualism (lei se fare), Buck v. Emory
b. only special relationship will confer duty
c. Tarasoff, etc. economic damages, etc. requirement of damages. misfeasance
where acting creates duty
2. political theory
a. boundaries of moral and legal obligations
b. private v public coercion to act
c. boundaries between contract and tort
3. economic theory
a. involves incentives to create care
b. cost benefit analysis
4. doctrinal
a. legal principles by which obligations occur
(1) control
(2) foreseeability
(3) special relationships
(a) no obligation unless specially delineated
(b) nonfeasance as opposed to misfeasance(negligence in duty situations)
(c) Farwell v. Keaton
(d) pgs 129-141
C. non-feasance moving into misfeasance
1. Tarasoff
a. duty extended through extended relationship
b. doctor had no control
c. intervening relationship making connection less clear--causation problems
d. imposes liability on doctor/patient relationship
e. administrative difficulties in changing moral obligation to legal obligation
f. widely misunderstood case
(1) not duty to warn, but duty to reasonable care
(2) more committing of patients
(3) more emphasis on Dr record keeping
(4) docs decline potential violent patients
(5) docs breaching confidentiality
2. Kelly v Guinell
3. Vince v. Wilson
4. lack of general societal consensus on which moral duties are legal duties
5. when government intervenes, raises costs throught insurance
6. institutional competency is questionable
7. problems of proving causation in fact
V. Landowners and occupiers
A. categorical rule exemplified by Fitch v. Adler cencerning trespassers (unknown, known,
and children) licensees (business, social), invitees
1. tresspassers
a. person on property without knowledge or permission of owner
b. children are owed greater duty in case of attractive dangers
c. must warn of serious risks
2. licensees
a. on property through invitation but to no benefit of owner
b. must warn of any known risk
c. need not search out risks
3. invitees
a. present on land to benefit of owner
b. duty to search out and protect against dangers
4. Cts have fiddled with duty
a. attractive nuissance-children
b. technical tresspass-unmarked private land with higher duty than normal
c. constructive consent
d. Hines case, if would have occurred if other category, then duty to tresspasser as
well.
B. Rowland reasonableness rule
1. duty of reasonableness under the circumstances
2. views categorical rule as anachronism
3. relevant "circumstances"
a. status is relevant
b. foreseeability of harm
c. moral blameowrthiness
d. availability of insurance
C. Changes under Rowland,
1. more cases go to the jury, which is given less guidance;
2. fewer appeals and reverals;
3. landowners will need to insure against more risks;
4. only commercial landowners will be able to pass on these increased costs of
insurance;
5. Rowland is perversely generous to tresspassers and licensees.
VI. Coase theorem: Assuming no transaction costs, the parties to a dispute will efficiently
allocate risk regardless of where tort regime places liability
A. transaction costs
1. costs of organizing bargaining
2. identifying other parties
3. enforcing the bargaining, free riders
4. information costs
5. strategic behavior
6.
B. criticisms
1. unrealistic assumption of no transaction costs- prof thinks exists
a. Sprecher
(1) don't
2. assumes only interested in efficiency
3. psychological evidence shows we overvalue what we have and undervalue what we
don't have. Will warp reassignment of liabilties.
C. implications of Coase theorem
1. if inalianable right, want to redistribute freely
2. want low transaction costs
3. Coase is an invitation to judicial activism
a. Cts can look at reducing costs, etc. if don't care about common issues
VII. Governmantal liability
A. sovereign immunity
B. king can do no wrong
C. government can waive immunity
D. 11th Ammendment
1. can't sue under federal law
2. only damage actions, not injunctive relief
E. immunity waived for state officials/govs, municipal officials/govs, etc. S1983
F. '1983
G.
H.
I.
J.
VIII.
A.
1. must be common law tort
2. public official answers that acting in official capacity
3. plaintiff must claim either violated state law or that statw law violates federal law.
4. then can get into fed ct
limits to '1983
1. no respondeat superior
2. must show official policy or custom t bring gov into action
3. plaintiff must show standing-harm must exist to be redressed
4. no punative damages
5. De Shany case-must be misfeasance, can't be nonfeasance
6. immunities, afffirmative defenses
a. judicial or prosecutorial act
b. beuractratic, executive and administrative functions carried out in good faith that
acting in compliance with federal law
Article 3, US as a party is exclusive to fed cts
Federal Tort Claims Act, waived immunity for government, not officials
1. no jury
2. no punative dmaages
3. no fee shifting
4. limitations
a. us federal official must be a tortious act under state law
b. intentional torts extremely limited (only law enforcement)
c. no action allowed for only strict liability
5. affirmative defenses, Berkovitz
a. discretionary function is immune even if abuse
(1) expressely in discretion of function thart requires waiving of
(2) distinct from minstrial functions
6. exceptions to liability, ferris, stencil--no liability
a. intramilitary torts
b. government contractors
(1) must be produced by specs of gov
(2) product specs conform to gov specs
(3) contractor informed gov of any known risks
Federal tort claims against federal officials
1. Bivens case-Constitutional violations
a. certain constitutional violations yield to suit against fed officials
(1) 4th, 5th, 8th ammendments
b. officials have same common law immunities as under S1983
c. can get jury, punitive damages, presumed damages
d. results in enormous amounts of litigation. Easy to bring suit.
2. Common law torts
a. FTCA ammended to allow for ltigation against officials as well
Emotional harm
direct duty
1. evolution of duty
a. common law-no damages
b. impact test, but easy to manipulate
c. due care not to subject others to foreseeable risk of injury through the physical
impact that might foreseeably result in emotional distress Mollien
2. exposure phobia
a. unpredictable damages
b. requirements
(1) serious fear
(2) reasonable fear
(3) cause in fact
(a) some jurisdictions require
i) lesion
ii) only exposure
iii) manifestation of condition itself
c. often annexed to medial monitoring claim
(1) claim for monitoring of potential danger
d. can't sue twice for same injury-single judgement rule
(1) some jurisdictions allow for second action after disease manifests itself
e. how to ensure genuineness of claim?
(1) physical injury
(2) universality of traumatic response
(a) Gammon
(3) harm to property - usually not enough
(4) objective symptoms of trauma
(5) reasonableness of response is required-deviation from eggshell skull doctrine
(6) independant non-personal injury claim
(7) harm was intentional
f. medical monitoring
(1) generally recognized as a cause of action
(2) having been negligently exposed to a dangerous condition, plaintiff claims
right to medical monitoring for potential condition
g. proximate causation limits liability to foreseeability
B. indirect duty (bystander)
1. emotional distress is observing of injury, not claim over injury itself
2. evolution of duty
a. traditional rule-no recovery
b. Huggins v. Mollien - foreseeability rule
c. Tobin v. Grossman
(1) must be within zone of danger
(2) must have contemporaneous awareness
(3) harm must have been serious
(4) must be close relative
(5) must show serious emotional harm
d. Dillon v. Portee requirements
(1) closely related to injured
(2) physical proximity and contemporaneous observance
(a) what about:
i) imagined injury, screeching of tires
ii) how contenmporanoues
iii) seen on tv?
iv) on telphone?
v) is shock required?
(3) extraordinary emotional distress
C. hedonic damages McDougal v. Garber-loss of life's enjoyments
1. is awareness of loss required?
2. is expert economic testimony required to estimate loss?
3. offsets allowed? subtract for life's disappoitments
4. pain and suffering as well as hedonic loss? same thing?
IX. Wrongful life/birth/living
A. wrongful birth
1. action by parents who allege that they could have avoided conception or would have
aborted but for the negligence of the physician
2. how to distinguish between wanted and unwanted babies?
3. healthy v unhealthy?
4. distinguish between reasonas for not wanting baby?
a. Cts unsympathetic for healthy babies
b. unhealthy babies yield damages further into life
5. birth related expenses are usually recoverable
6. child rearing costs are usually not recoverable
7. parents often get emotional damages
B. wrongful life
1. suit by baby for negligently caused birth yielding painful life
2. offset values of life over no life?
3. possible defenses?
a. have to abort
b. child have to be adopted
c. child have to be put into state hospital
d. have to commit suicide in wrongful life
4. causation in fact
a. how to know if would have not had otherwise
b. reasonable parent standard?
5. cognate claims
6. child v parent? bad parenting suit? Statute of limitations?
7. force parents to euthenise nonviable babies?
C. wrongful living
1. suit for not allowing patient to die
2. offsets for pleasures in life?
3. cannot prevent suicide, so should hospital have defense that patient would suicide if
really didn't want to live?
4. extra hospital expenses are compensable
X. Economic harm
A. distinguishing factors between cases - plaintiff more likely to win if:
1. definite harm to plaintiff
2. small number of potential plaintiffs
3. defendant did not purposefully reduce reliance on product
4. plaintiff can control extent of liability exposure
5. defendant knew of reliance (can be inferred to be true through price)
6. plaintiff has paid for benefit of relying on defendant through chain of third party
7. fiduciary obligation Bohn v. Cody
B. tort v. contract
1. reasons to prefer contract
a. plaintiffs are good loss spreaders
b. deterrance is served through other means
(1) security laws
(2) reputation
(3) fraud laws
c. tort system is cumbersome, expensive and error-prone
d. contracts allocate risk well
2. when torts are better
a. when there is no plaintiff in privity with the defendant
b. if economic loss is massive
c. if litigation costs of letting remote victims sue are low
d. high transaction costs