Fall 2019
Torts Outline
I.
Strict Liability
a. Even W/O negligence or intent defendant can be liable
b. Does not mean absolute liability (you need to prove cause-in-fact - physical injury to person or
property)
c. Liable under three (3) types of strict liability claims:
i. Animals: the owner and possessor of animals are strictly liable for harm caused by their
animal.
ii. Abnormally dangerous activities
1. If you bring something onto your land (unnatural) producing new perils, if it
escapes then you are liable. (i.e. storing dynamite, hazardous waste disposal,
escaping water)
2. Courts will look at magnitude of harm (1) high degree of risk that some harm
to people or property will result (2) harm serious in nature (3)
impossible/burden to eliminate risk of harm (4) not common usage (5) place
harm being carried is an inappropriate. (Rylands v. Fletcher case)
iii. Strict consumer product liability (defective product – Greenman case)
1. Restatement: One engaged in the business of selling and distributing products and
who sells/distributes a defective product is subject to strict liability for harm to
persons and property caused by defect.
2. Breach of express warranty: anything in the instruction book that says product
does X
3. Breach of implied warranty: it’s implied that product meets industry standard and
is safe for its intended use
II.
III.
Intentional Torts
a. Intent
1. Volitional act and
2. State of mind
a. With purpose of tortious consequence OR
b. With substantial certainty of tortious consequence
b. Single v. Dual intent
i. Single intent: the actor must intend to cause physical contact with the person of the
plaintiff
ii. Dual Intent: the actor must act with single intent, but also must intend, by contact either to
offend the other or cause bodily harm
c. Transferred intent
i. Intent to harm one person inadvertently causes a second person to be hurt instead, the
perpetrator is still responsible.
ii. In a case where contact occurred but the defendant intended only apprehension, the
defendant is still liable for battery. Similarly if defendant intended contact but caused only
apprehension, the defendant is liable for assault. These are examples of tort-to-tort
“transferred intent”.
Battery
1. Definition: D intended to cause a harmful or offensive contact, and the contact directly or
indirectly occurred. Protects personal autonomy. Don’t have to prove damages.
2. Prima facie elements:
c. Intent:
I. Volitional act and
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IV.
V.
II. State of mind (with purpose of tortious consequence OR with substantial certainty
of tortious consequence)
c. Contact :Harmful or offensive touching
i.
Rule: it is not necessary to touch plaintiff’s body or even his clothing; touching
something connected with his person is sufficient when done in an offensive
manner (Fisher v. Carrousel – racist snatches a plate)
c. Causal link
3. Other things of note:
a. Protects personal autonomy;
b. Don’t have to prove damages
Assault
1. Definition: An intentional tort. Plaintiff must prove that D intended to cause apprehension of
imminent harmful or offensive bodily contact or intended to actually cause harmful or
offensive bodily contact.
2. Prima facie elements:
a. Intent:
i. Volitional act AND
ii. State of mind (with purpose of tortious consequence OR with substantial
certainty of tortious consequence)
a. Reasonable apprehension of imminent threat
i.
Is there apparent ability?
ii.
Is it imminent?
iii.
Is the apprehension reasonable?
iv.
Rule: Threatening words coupled with action and an ability to do harm which
creates apprehension of bodily harm by a reasonable person constitutes an assault
(Vetter v. Morgan); does not require contact.
b. Causal link
3. Other things of note:
a. Don’t have to prove damages
b. Words PLUS overt actions
c. Fear has to be imminent
d. Apparent ability to carry out
e. Assault v. Battery
i. They are different in that Battery law compensates a plaintiff who suffers
actual harmful offensive bodily contact, whereas Assault law compensates a
plaintiff who suffers apprehension of such contact.
False Imprisonment
1. Definition: The intentional, unlawful, and unconsented restraint by one person of the physical
liberty of another.
2. Prima facie elements:
a. Intent:
i. Volitional act AND
ii. State of mind (with purpose of tortious consequence OR with substantial
certainty of tortious consequence)
b. Confinement
i. By force
ii. By threat of use of force
1. Rule: There must be the apparent intention and ability to apply force.
(Herbst v. Wuennenberg – republican vote checkers)
iii. By lawful authority
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VI.
VII.
c. Causal link
d. Awareness that you have been confined, and in a few cases if not awareness then
harm.
3. Other things of note:
a. Confinement must be w/in a boundary. Excluding someone from a place does not
constitute confinement.
b. A reasonable or reasonably discoverable alternative means of escape negates
confinement.
Intentional Infliction of Emotional Distress
Definition: The intentional infliction of SEVERE emotional distress through OUTRAGEOUS
conduct.
1. Prima facie elements:
a. Intent:
i. Volitional act AND
ii. State of mind (with purpose of tortious consequence OR with substantial
certainty of tortious consequence)
b. Outrageous conduct by defendant (extreme, not socially tolerated)
c. Intention to cause (a), or reckless disregard of the probability to cause emotional
distress
i. A person acts recklessly if:
1. 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
2. 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. (Third restatement) – Oak Park Marina case –
cameras in a locker room
d. Suffering of severe emotional distress
e. Causal link between D’s outrageous conduct and the severe emotional distress
2. Other things of note: you have to prove damages.
Trespass
1. Definition: Any intrusion which invades the possessor’s protected interest in exclusive
possession (Martin v. Reynolds)
2. To Land
a. Definition: A violation of P’s exclusive rights to land. Intentional interference with a
possessor’s right to exclusive possession of land.
b. Prima Facie elements:
i.
Intent: Volitional act AND state of mind (purpose of tortious consequence OR
substantial certainty)
a. Mistake is no defense for intent
ii.
An invasion of that land
iii.
A person with possession and interest in land (proof you own the land)
iv.
Causal link between D’s volitional act and the invasion.
3. Trespass v. Nuisance
a. Nuisance: A substantial and unreasonable interference with quiet use and enjoyment of
real property (i.e. smoke or bad odors passing onto a neighbor’s land constitutes nuisance)
b. For nuisance a P must prove that D caused substantial, unreasonable interference with P’s
use and enjoyment of real property.
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c. An actionable invasion of a possessor’s interest in the exclusive possession of land is
TRESPASS, an actionable invasion of a possessor’s interest in the use and enjoyment of
his land is NUISANCE.
4. Traditional v. Modern
a. Traditionally invasion had to be by a person or tangible object of some kind and not
mere smell, smoke, or pollution (i.e. Portland Meadows light pollution case drive-in
movie theater lost)
b. Modern: intentionally entered or caused a thing to enter land, intentionally remain on
land after permission is removed, failure to remove an item from land D was obligated
to remove. (Reynolds Metal Case “invisible particles to the human eye”)
5. Other things of note:
a. Trespass to land is an intentional tort. P must prove D intended that physical acts
constituting an entry would be a result of D’s actions. D, however, doesn’t need to
know that the entry is wrongful or even that it was an “entry”.
b. A violation of P’s exclusive rights to land. A physical intrusion of any kind constitutes
a trespass to land.
c. The intrusion must have caused actual damages. The size of the trespass doesn’t
matter (i.e. Reynolds)
6. To Chattels- personal property
a. Definition: an intentional act that interferes with the victim’s superior right to possess
personal property, but not serious enough to justify payment of the property’s full value.
b. Prima Facie elements:
i.
Intent: Volitional act AND state of mind (purpose of tortious consequence OR
substantial certainty)
a. Mistake is no defense
ii.
There needs to be a chattel
iii.
Interference with right of possession or damage to the possession (i.e there could
be an injury to chattel like kicking a dog or keying a car)
iv.
Causal link – must show actual harm as a result of the conduct (need to prove
damages)
c. Conversion v. Trespass to Chattels
a. Conversion Definition: D intentionally exercised dominion or control over the
personal property as to seriously interfere with P’s right or control of personal
property.
b. Trespass to Chattels involves a less substantial interference, the remedy is damages
for repairs, loss of use, and incidental damages; Conversion is more substantial
interference such as outright destruction or long-term interference with use,
remedy is fair market value for the chattel plus incidental damages.
c. For both, the P must prove that the D intended interference with the chattel.
d. The dividing line between Conversion and Trespass to Chattels often depends on
the court’s evaluation on the remedy (i.e. if a person whose car is stolen goes out
and buys a new car, returning the car and paying for damages for loss of use is not
a very effective remedy).
d. Other things of note:
a. Information is not treated as a chattel except:
i. where information is sold as commodity,
ii. where ideas are formulated by inventive genius, and
iii. where information is an instrument of fair and effective commercial
competition (Pearson v. Dodd)
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b. Damages equal the actual diminution in the property value caused by the
interference. (Pearson v. Dodd)
VIII. Defenses to Intentional Torts
A. Affirmative Defense
a. After answering P’s allegations D raises affirmative defense (bring in new info) i.e. statute
of limitations
b. Three parts of Affirmative Defense:
i. Plead
ii. Come forward with supporting evidence
iii. Persuade
B. Consent
1. Can be implicit or explicit
a. Implicit example: when playing a sport, one consents to the rules of the game (Kadella
hockey defense)
2. Determined by overt and objective manifestations (O’Brien vaccination)
3. Limited to consent of lawful acts
a. Example: one cannot bring action of battery if one consented to fist fight
4. Can be rendered ineffective if the party was incapacitated
a. By infancy
b. Mental incompetency
c. Intoxication
d. By coercion
e. By non-disclosure
5. Ask if there is something about the circumstances that could defeat consent?
a. Medical condition, age, intoxication, lack of capacity
b. Consent to illegal action
c. Consent by fraud of misrepresentation
d. Consent withdrawn
e. Exceeding the scope of consent (i.e. Kadella)
6. Analyzing a battery claim arising from a fight requires distinguishing 3 situations:
i. Fighting for sport
ii. Consensual fighting in anger (courts are divided; some argue consent is a void
since fight is a crime on the part of each participant)
iii. Self Defense Privilege: unconsented attack met with self defense
7. Nature of Invasion v. Collateral Matter (review that HPV case)
a. Not all deceit impairs consent, it must be a “substantial mistake concerning the nature
of the invasion or the extent of the harm”
b. The theory is that some invited mistakes go to the essential nature of the invasion
while others are merely collateral
i. Was it non-disclosure of the essence of the issue? P wins
1. i.e. spouse knew he had STD and didn’t disclose it to wife
ii. Was it non-disclosure of the collateral fact? D wins
1. i.e. spouse had an affair and didn’t disclose it to wife
C. Self-Defense
1. Elements that must be established to justify
a. Defendant reasonably believes (even if mistaken) that it was necessary for him to use
force to protect himself against an actual or apparent threatened harmful contact AND
b. Defendant used no more force than a reasonably prudent person would have
i.
Amount of force
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ii.
Duration of use of force
D. Defense of Others
1. There is a privilege to use force to protect others from attack
2. Formerly limited to defense of family members, but now no such limits
3. Some courts require that the person’s belief that force is necessary be correct, not just
reasonable, but MOST courts say reasonable belief is okay
E. Defense of Property
1. One may use reasonable force in the protection of his property BUT
2. One may not use such means of force as will take human life or inflict great bodily injury
(Katko v. Briney) unless you are being attacked
F. Necessity as Defense
1. Doctrine of Necessity and Trespass
a. Necessity and/or an inability to control movements inaugurated in the proper exercise of a
strict right, will justify entries upon land and interferences with personal property that
would otherwise have been trespasses. (Ploof v. Putnam)
i.
Example: if a traveler finds no other way to pass than upon someone’s land, then it
is justified
b. Doctrine applies with special force when human life is at stake
i.
Example: one can pass on another’s land when fleeing for their life
2. Exception
a. When another person’s property is damaged in lieu of preserving one’s own property, then
compensation is required. (Vincent v. Lake Eerie)
IX.
Negligence
A. What is Negligence?
a. The creation of unreasonable and foreseeable risks of injury to others
b. Restatement: a person acts negligently if the person does not exercise reasonable care
under all the circumstances. Primary factors to consider in ascertaining whether the
person’s conduct will result in harm, the foreseeable severity of any harm that may ensue,
and the burden of precautions to eliminate or reduce the risk of harm.
c. Prima facie elements:
a. Duty (usually “ordinary” or “reasonable” care)
b. Breach of Duty
1. Facts
2. Normative Questions (WWRPD?)
c. Cause-in-fact: did the breach cause the claim of injury?
d. Proximate Cause (limits liability)
e. Legal Cognizable Injury (usually physical injury to persons or property – P must
prove actual damages)
B. DUTY
1. General (Default Rule): To exercise “ordinary” or “reasonable” care.
a. Heaven v. Pender: each of us owes a duty of care to others to go about our business in
a manner that does not impose unreasonable risks or physical harm to others.
2. Limited Duty Doctrines
a. No Privity
i.
Privity of Contract: Legally recognized relationship between two parties
a. Often in service contracts, no longer works for products
b. Before: Privity of contract insulated manufacturers of defective products from
responsibility to consumers who didn’t buy the product directly
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ii.
Acceptance Rule (may be dying): A contractor has no duty to a third party, but
there are exceptions:
A. Humanitarian Rule exception: If the contractor’s work is…
1. Dangerously defective
a. If the work is turned over in a condition that has a propensity for
causing physical harm to foreseeable 3rd parties in reasonably expected
ways
2. Inherently dangerous
a. Activities like blasting, not conditions
3. Imminently dangerous
a. If it is reasonably certain to place life or limb in peril
iii.
Physician-non patient cases
a. Privity concept helps to account for the significant number of cases insulating
physicians from liability for negligence in facilitating or failing to prevent
patients infecting or otherwise harming others
b. No Duty to Act: think is nonfeasance or misfeasance? If nonfeasance, then see if any
exceptions apply
i.
Basic Rule: Nonfeasance (passive inaction)
A. Persons do not ordinarily have a duty to act to protect others from dangers or
risks except for those that they themselves have created
B. Nonfeasance: passive inaction or failure to take steps to protect someone from
harm; feels amoral but focuses on liberty; people aren’t forced to intervene
C. Misfeasance: active misconduct working positive injury to others
ii.
Exceptions to No Duty Doctrine (when inaction becomes misfeasance)
A. Prior Conduct
a. When prior conduct (tortious or not) creates a continuing risk of
physical harm the actor has a duty to exercise reasonable care to
prevent or minimize the harm
B. Special Relationships
1. To the Perpetrator
a. Is a duty if a special relation exists between the actor and the third
person which imposes a duty upon the actor to control the third
person’s conduct
i.
One must have control and custody over the third person in
order to establish special relationship
b. Restatement: An actor in a special relationship with another owes a
duty of reasonable care to third persons with regard to risks posed by
the other that arise within the scope of the relationship
i. Parents/dependent children, employer/employees, mental health
providers/patients
2. To the Victim
a. Exists between the actor and the other which gives the other a right to
protection
b. Restatement: An actor in a special relationship with another owes the
other duty of reasonable care with regard to risks that arise within the
scope of the relationship.
i.
Identifies certain special relationships (innkeeper: guests,
employer: employees, school: students, landlord: tenants, etc.)
c. Maj. of Cts. don’t establish SR beyond Restatement
C. Control Instrumentality
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1. Was D in exclusive control of the instrument of harm?
D. Voluntary Undertaking
1. Duty to warn or protect against danger if one has voluntarily assumed that
duty to a specific individual
1. Good Samaritan rule: There is no duty to rescue, but there is a duty to act
with reasonable care once rescue begins so that the victim is not left worse
off than they would have been.
2. Duty to not worsen victim’s situation; some courts say you also must avoid
“reckless and wanton” conduct; must consider whether your rescue efforts
are indicating to others that they need your help – then you may be liable if
your leave
c. NIED Emotional Harm absent Physical Harm
i.
NIED: personal injury claim against a person whose negligence caused the
claimant to suffer severe emotional anguish
a. 3 old arguments against: medical science (difficulty proving causation), fake
injuries, flood of litigation
b. Physical manifestation requirement: a physical ailment consequent to NIED
(could be depression, nightmares, insomnia) – many jdxns have gotten rid of
this – it would be nice to have a doc but its not necessary – this is more like a
minimum requirement
c. Courts are still reluctant to grant damages
ii.
Impact Rule: permitted recovery for emotional suffering only if it was
“accompanied by physical injury or impact” – does not insist that the physical
injury impact cause the harm.
A. However, physical injuries caused by emotional stress did not qualify
B. Reasoning: Impact is a measure of a bona fide complaint
C. Majority rule
iii.
Zone of Danger test: if P was in personal danger of physical impact or P actually
feared the physical impact
A. Reasoning: If within the zone of danger, it is likely that the injuries were
reasonably foreseeable by the D
B. Must be a one-time incident, not exposure over time
iv.
Bystander exception: When it is reasonably foreseeable that a particular P’s
emotional injuries are likely, and P meets the ‘nearness, nowness, closeness’
standard, then P can recover even w/o physical injury
A. P must be located near the scene of the accident
B. P’s distress must be the direct result of witnessing the accident; can’t learn
about it after the fact
C. P must be closely related to victim
D. Reasoning: A,B,C will determine the degree of the D’s foreseeability
E. Less than half of states have adopted
v.
Pre-existing duty of care – if a contractual relationship between parties exists (i.e.
doctor/patient)
vi.
Exceptions:
a. Fear of disease – most courts deny recovery
b. Fear of toxic substance – most courts deny recovery
c. Eggshell skull – doesn’t apply unless D knew of P’s fragile state
d. Economic Loss Doctrine
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i.
GR: no recovery for pure economic loss absent physical injury, but there are
exceptions (maritime, contract situations, and professional malpractice)
A. Some courts require the damage to have a direct link to econ loss
B. Usually courts are against recovery because
a. Negligence law has a bias against awarding remote damages
b. P could likely receive a remedy contractually
C. Reasoning: Without the rule, there could be unlimited liability; sometimes
contracts are better for this type of loss
ii.
Exceptions
A. Mass Tort (Maritime: Exxon Valdez, BP oil spills)
1. Ex: BP oil spill, workers allowed to recover lost wages
2. But LIMITS! Not everyone affected can recover -controversial
3. A proprietary interest in tangible property must be proved to recover
financial losses (exception: fishermen)
B. Professional Duty
1. Professionals are subject to liability for economic losses (like lost wages or
maybe lost business) for malpractice
2. Commonly applied to attorneys
C. Contracts (though most go through the contract system rather than tort)
e. Occupiers of Land
i.
Who is occupier?
a. Anyone who occupies land with the intent to control it (lessee, construction
company, bank that has foreclosed on property)
ii.
Duties to those coming ON the land - Classic Common Law Trichotomy
A. Invitee
1. One who goes on another’s property in response to an invite & does so for
the mutual benefit of both the owner & self; usually there’s an economic
benefit (businesses and public spaces)
2. Ex: a store customer & employee
3. Duty: Reasonable care. Duty to use ordinary care to keep property
reasonably safe and to warn of hidden perils or unsafe conditions that could
be discoverable by reasonable inspection & supervision
B. Licensee
1. Only privilege to be on the premises to be on the premises is the
possessor’s consent
2. Ex: Dinner guest
3. Duty: Much less protection than invitees, but generally reasonable care
with warnings about known hazards; duty to refrain from doing the licensee
willful injury and from wantonly and recklessly exposing him to danger
C. Trespasser
1. One who comes onto land w/o permission
2. Duty: NO DUTY other than avoiding intentional or reckless injury;
occupier has no duty to discover, remedy or even warn trespasser of danger
on property
iii.
Trend to partial or total abrogation
A. Total abrogation = getting rid of all categories
B. Partial abrogation = getting rid of some – often combining invitees & licensees
C. New duty: to exercise reasonable care in the maintenance of their premises for
the protection of lawful visitors
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iv.
Heightened Duty
a. Possessor may have a heightened duty to habitual trespassers
v.
Recreation Use Statutes
a. If you give permission to someone to come onto your land for recreational use,
this limits landowner’s liability rather than imposing a more lenient duty such
as to avoid willful or malicious injury
vi.
Attractive Nuisance Doctrine
a. Imposes liability on landowners whose land contains dangerous conditions that
attract child trespassers
i. Subject to liability if:
1. Know or reason to know that kids are likely to trespass
2. Know or reason to realize an unreasonable risk of death or
serious bodily harm
3. The kids, b/c of their youth, do not discover or realize the risk
(don’t appreciate the risk)
4. Maintaining the condition and the burden of eliminating the
danger are slight as compared to the risk of children involved
5. Possessor fails to exercise reasonable care to eliminate the
danger or otherwise to protect the children
b. Ex: pool cases, railroad roundtables, toxic pool case
vii.
Possessors’ liability for injuries OFF land
A. Responsible for injuries off your land if activities or artificial conditions on
your land caused the injuries
a. Ex: gun shots on property hit person off property
B. Traditionally: injuries caused by natural conditions on the land were excluded
from the possessor’s responsibility
C. Restatement: For natural conditions on the land that pose a risk of physical
harm to persons or property not on the land, the possessor of land
a. Has a duty of care if the land is commercial; otherwise
b. Has a duty of reasonable care only if possessor knows of the risk or if
the risk is obvious
c. Examples: maintaining trees, removing snow
3. Special Duty Doctrines
a. Heightened duties
a. Applies to carriers (railroads & airlines), innkeepers, public utilities
b. Professional duties
a. Applies to doctors, lawyers, clergyman, accountants
i.
Duty/ Standard of Care
A. Skill & Knowledge
B. Exercise Skill & Knowledge w/ reasonable care
C. Act in good faith / best interest of client/patient
ii.
Other key points
a. Doctors (the medical profession) set their own standard of care
b. Experts
i. Can be from a different school of med as long as they know the
standard required, but generally courts like substantially similar doctors
from same school of medicine
ii. To qualify as an expert:
1. Credentials
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2. Basis for expert opinion (have they reviewed the medical
records? Examined P?)
3. Experts need to testify to
a. Standard care
b. Breach standard of care
c. Breach is cause P’s injury
iii. Medical records are key
iii.
Duty of Disclosure (medical doctors)
A. Informed consent
a. negligence doctrine, must disclose risk of treatment and give alternative
options if they exist
b. Gives P a way to establish breach w/o showing that physician violated
professional standard. Still have to prove causation.
c. To prevail on an informed consent cause of action P must show the
undisclosed risk materialized, and that she – as well as a reasonable
person – would have acted on the info.
B. Lack of informed consent = negligence
C. NO consent = battery
a. If life is at risk doctor can proceed w/o consent, but generally not over
the patient’s objections
b. Also, battery when doctor misrepresents material matters because
consent obtained by misrepresentation is ineffective
D. Traditional v. Modern View
a. Traditional: Doctors should tell their patients what other doctors would
tell the patient
b. Modern: Would the patient have made a different decision based on
what would have been disclosed? (special cause-in-fact)
E. To determine if there is a breach:
1. There must be a sufficiently close relationship
2. The doc must know or should know the info that ought to be disclosed
3. The info should be such that the doc should reasonably recognize that it is
material to the patient’s decision
4. The doc must fail to disclose this info
4. Creating New No Duty Rules
a. What does it mean in court?
i. When a court rules “no duty” in a particular case, it is saying that there are
legal reasons for concluding that breach, cause-in-fact, prox cause, and
damages do not suffice to support liability
b. Second and Third Restatement Agenda
i. Courts should depart from the Heaven principle only “in exceptional cases
when an articulated countervailing principle or policy warrants denying or
limiting liability in a particular class of cases”
ii. A lack of foreseeability is NOT a no-duty determination, it may be the basis for
a no-breach determination but it’s not a duty element
c. Four (4) Criteria for legitimate judicial creation of a new no duty rule:
i. Process should be approached with caution;
ii. The new rule should cover a category of situations (i.e. particular class of
cases)
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iii. The judge should exhibit some candor; she should not claim to have found the
no-new duty rule existing in jurisprudence or statutory law if the rule is brand
new;
iv. The articulated countervailing principle or policy should at least have a
modicum of credibility
d. Three (3) factors should be considered in determining whether a duty to exercise
reasonable care exists:
i. The relationship between the parties;
ii. Reasonable foreseeability of harm to the person who is injured; and
iii. Public policy considerations
5. Dutification
a. The easiest most common way for courts to create new no duty rules is simply to
rephrase breach or proximate cause in no-duty terms
b. When legal cause is limited based on the absence of a duty to a particular plaintiff
(minority of courts & cases). Palsgraf case. Remember duty is an issue for the judge to
decide.
c. Palsgrafian dutification foreseeability issue – Cardozo made this a duty issue instead
of a proximate cause issue so Judge could decide
C. BREACH AKA Negligence
1. Definition
a. A failure to exercise reasonable care
i.
Breach questions include:
a. Questions of fact (i.e. was the light red or green at the time of the auto
accident); and
b. Normative questions (what would the reasonable person have done?)
i. Foreseeable
ii. Hand formula B<PL (see pg 13)
iii. Compliance with statutes and regs
iv. Custom: evidence of reasonable care but not conclusive (TJ Hooper:
Tug boat radios)
v. Emergency: the evaluation of the reasonable behavior of a person who
is confronted w/ an unexpected crisis requiring quick response. Calls
jury’s attention to the emergency of the circumstance.
2. Determination (of Breach)
a. The Reasonable Person Test (See Normative Analysis below)
i.
General Standard
A. An objective test of reasonable care
B. Whether the actor acted within the general standards of a reasonably prudent
person?
ii.
Children
A. Held to the “age, intelligence, and experience” standard EXCEPT
B. If the child is engaged in adult activity, general standard is applied.
C. Third Restatement: Children under 5 are incapable of negligence
iii.
Physically Disabled
A. Held to a modified general standard
1. Standard of a reasonable person with the same disability (i.e. a blind person
held to the standard of a reasonably prudent blind person (Roberts v. State
of Louisiana)
iv.
Inferior Abilities
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A. Held to General Standard (Vaughan v. Menlove)
B. Do not take into account idiosyncrasies like clumsiness, stupidity, or low
mental ability
iv.
Insanity
c. Most courts do not take this into account (because can’t apply evenly)
d. Some courts do when insanity causes a break from reality or precludes D from
conforming his conduct (UNLESS it was a foreseeable episode)
v.
Superior abilities
a. Courts say actor’s special skills or experiences are to be considered
vi.
Intoxication
a. Self-imposed intoxication is not forgiven for negligence
b. Factual analysis (what did the D do?) AND EITHER
c. Normative analysis (was it reasonable under the circumstances?) OR
i.
Was there a foreseeable risk?
ii.
What was the magnitude of the harm?
iii.
What were the benefits of the activity?
iv.
What were the burdens of precaution?
v.
What was the probability of the risk eventuating?
d. Simplified Normative analysis
i.
The Hand Formula B<PL
A. Are the burdens of precaution less than the probability of an injury?
B. B= burdens of precaution
C. P=probability of
D. L=loss, injury, or liability
E. P+L= Foreseeable risk
3. Negligence Per Se
a. Traditionally it was conclusive if person violated the statute
b. Modern approach treat the violation of the statute as a piece of evidence, not conclusive
(many states have adopted like OR)
c. 5 questions to address negligence per se:
1. Is there an excuse that would justify violating statute? (Tedla – it was safer
to violate statute)
2. Is the statute specific enough?
3. Is statute designed to address the type of harm that’s been suffered?
4. Was the statute designed to protect certain class of people which P is a
part? (Children in glue huffing case)
5. Was the statute designed to protect the specific person? (i.e. a child where
comparative negligence could not be used against them)
d. Third Restatement recognizes the following excuses for Negligence Per Se
a. If compliance would cause more harm than non-compliance
b. That actor exercises reasonable care in attempting to comply with the statute (i.e.
brake failure despite regular maintenance)
c. Infancy (i.e. child standard of care)
4. Types of Evidence (of Breach)
a. Physical evidence “Direct Evidence”: expert testimony, eyewitness (most common in
torts)
b. Res Ipsa Loquitur “the thing speaks for itself” permits jury to draw the inference of
negligence
i.
Type of circumstantial evidence
ii.
3 prongs to satisfy to warrant jury consideration
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A. Accident must be of kind that only occurs from negligence
B. D must have had exclusive control of causation (i.e. escalator had to be in
exclusive control of the airport – it was non-delegable duty)
C. Cannot be due to P’s voluntary actions
D. CAUSE IN FACT (Actual causation)
a. Did breach cause P’s injury? (the “why” element)
1. The But-For Test
a. The D’s conduct is the cause of the event if the event would not have occurred but for that
conduct.
b. Only really works when there is one possible causation, but see “causal sets” below
2. Substantial Factor Test
a. Where either one of two causes would have produced the identical harm, thus making it
impossible for P to prove the ‘but for’ test
b. Then, each was a substantial factor in the event and ought to bear responsibility
c. Applied to Toxic Torts
i.
Was there an exposure?
ii.
Can general causation be established?
iii.
Was there a specific exposure that did cause the damage?
iv.
Who is responsible? (if can’t determine, then theory of indeterminate D)
d. Three (3) phases
a. Narrow use (i.e. 2 concurrent causes each sufficient to cause the harm like two
fires converging)
b. Broader use (i.e. toxic tort cases where there are many exposures so difficult to
prove with ‘but for’ test)
c. Back to narrow use (i.e. only use substantial factor test in the first kind of example
– the fires – Third Restatement now says use “but for” test for toxic tort cases – not
binding some states still use substantial factor for toxic torts)
3. Causal Sets
a. Causal set hypo: D1 exposed P to asbestos for 1 yr, D2 for 2 yrs, and D3 for 10yrs.
1. Can’t prove which D caused disease so if you treat them as a set then the
set is the “but for” cause of the disease.
2. You can have multiple causal sets and you can break a causal set apart.
3. At first, third restatement seemed like a problem for toxic tort cases, but
causal set could be beneficial
4. Another example: If A, B, and C push car off cliff, but B and C were strong
enough to do it on their own, A is not liable.
4. Limited Purpose Substitutes for “But For” Approach
a.
Alternative Liability (or alternative causation)
i. Appropriate test for causation when 2 or more parties commit tortious acts, but injury to P
was caused by ONLY ONE of the tortious actors.
a. Burden of proof shirt to tortfeasors (Ds) to prove that he has not caused the
harms (i.e. little piggy case – 1 bad wire 2 wire companies)
b. All D’s must be named and if burden not met by any, then all are liable
b. Concerted Action
i. If two or more parties are unlawfully and negligently acting in concert, they can be held
jointly and severally liable, even if one party does not cause the harm.
a. P must show tacit agreement existed among Ds to perform tortious act.
Behaving alike is not enough (parallel conduct). Needs to be a common
plan / additional evidence.
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b. Ex: drag racing; NOT Ex: drug companies acting with parallel conduct
c.
Market Share
i. When it cannot be found out which party is ultimately liable for the damages, the major
players in the industry can share responsibility based on how much of the market they held
or hold.
ii. Burden is on D to show that its product was not the cause
iii. Example: DES daughters (note: many courts don’t apply outside of this context)
d. Lost Opportunity Doctrine
a. When D’s conduct deprives P of a substantial, more likely than not (over 50%), chance of
a better outcome had due care been exercised
b. Almost universally limited to med mal
c. P should still be compensated for the extent to which D’s negligence reduced the victim’s
likelihood of achieving a better outcome, notwithstanding the fact that the likelihood may
have been reduced by less than 51%
d. Not all states have accepted this doctrine
e. Example: If Dr. tested for B, then P would likely not have disease
e.
Apportionment of Harm
a. When P can show that D’s tortious conduct was a factual cause of some significant part
(but probably not all) of an inextricable tangle of injuries – how do and should courts
respond?
1. Single Indivisible Injury Rule
a. When multiple tortfeasors injure a P, but it is impossible to determine the
extent of harm attributable to each, each D may be held jointly and
severally liable for entire injury (causal knot)
b. D bears burden of figuring out causal knot - % of fault is how to determine
how much each D owes (comparative fault)
c. Note: instead of joint and several liability, many states are doing
comparative fault
2. Eggshell Skull Rule
a. D’s liability is not limited by P’s unforeseeable susceptibility or condition
resulting in greater injury than ordinarily expected
b. Victim’s pre-accident vulnerability, however extreme, gives tortfeasor no
excuse. Same goes for if P is exceptionally strong.
c. “take him as you find him”
3. Preexisting Condition Rule
a. Policy idea: Tortfeasor should not be held accountable for the
consequences that would have befallen the victim regardless of the
tortfeasor’s wrongful conduct
b. Courts are more reluctant to put blame on D when pre-existing condition
exists, thus P must prove how much they were harmed by D.
E. PROXIMATE CAUSE (Legal Cause, Scope of Liability)
1. Defined: Scope of liability; Limits liability even where D’s breach of legal duty caused legal
injury for reasons of policy, remoteness, foreseeability, and according to “rules of thumb” or
widely followed conventions.
2. Purpose: many cases establish cause in fact but may not be fair. Thus, limitations.
3. HOW TO ATTACK
a. Look at policy
b. Then look at intervening/superseding causes
c. Then see if there is a rule of thumb
d. Finally look at unforeseen consequences to determine
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4. Policy Based Limitations (of Legal Cause)
a. Scope of liability limited if undue burden exists
i.
Ex: DES daughters can recover, but not granddaughters as this would unduly
burden the companies if several generations could recover
ii.
19th century RR fire case: court argued that it would be unfair to make RR liable
for all the houses that were burned b/c their insurance premiums would be greatly
affected for remote possibilities of harm
b. Policy/Economic Argument
i.
Liability in such circumstance would serve no deterrent, no regulatory purpose
ii.
Would not alter behavior / increase safety
iii.
Nothing would be gained by imposing liability in such a case but compensation,
and compensation can be obtained more cheaply (i.e. through insurance)
5. Direct or Foreseeable harm?
a. Polemis (kind of harm does NOT matter)
a. If the damage is the direct result of the negligent act, then proximate cause
b. If there were unforeseen consequences it didn’t really matter, if the harm came
about remotely liability is cut off but if it came about directly then liability is
possible (old common law, Polemis case)
b. MAJ. RULE: Wagon Mound (kind of harm matters)
a. D is not responsible if harm was unforeseeable
b. ASK: Was harm foreseeable?
6. Foreseeability Tests (Unforeseen categories)
a. General
i.
Was the injury that befell the P among the array of foreseeable risks the existence
of which called upon the D to alter her conduct?
b. Type of Harm
i.
Not liable if the type of damage was not foreseeable
A. Ex: Wagon Mound- oil in the water and the use of torches lit the water on fire
causing damage that no one could have anticipated
c. Manner of Harm (Mechanism rule)
i.
Damages occur due to unforeseen method, but if the damage was foreseeable, then
the method of which the damage was brought about does not necessarily have to
be foreseen
d. Extent of Harm (Eggshell skull rule)
i.
A tortfeasor takes her victim as she finds him
ii.
Generally, if the extent of harm is the only unforeseeable consequence, then still
liable
e. Plaintiff (Palsgraff)
i.
Was the P a foreseeable P?
ii.
Cardozo-Palsgraff approach: Duty only to those foreseeably at risk Becomes a
question of duty: Did D have a duty to P?= Dutification
iii.
Andrews/Dissent: more broadly defines foreseeability and that D’s negligence was
a direct cause of harm and therefore should be liable
iv.
Third Restatement: Agrees with Cardozo that P must be foreseeably at risk in order
to recover, but agrees with Andrews/Dissent that foreseeability is an issue for the
jury to decide.
v.
Another Ex: Honeywell: Did Honeywell’s duty extend to the fireman?
7. Other Rules of Thumb
a. Subsequent Medical Injuries
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i. D who is liable for negligently causing personal injury will generally be held
liable for subsequent injuries done by rescue and medical personnel responding
b. Rescuers
i. Negligent party is liable for rescuer’s injuries because foreseeable
ii. Exception: Firefighter rule – professionals (firefighters/police) cannot invoke
rescue doctrine in most states
8. Intervening Acts & Superseding Causes
a. Serious misconduct by D2 might “intervene” between D1’s negligent conduct and P’s
injury in such a way that it becomes a superseding cause making D1 not liable
b. Intervening:
i.
An additional negligent action that contributes to P’s harm
ii.
Foreseeable forces do not break the causal chain and do not relieve D of liability
iii.
Can still use comparative negligence
iv.
Ex. Meyering case – rock through sunroof – Criminal acts do not necessarily cut
off D’s liability for foreseeable dangers. The juveniles intervening criminal act did
not relieve GMC of liability in designing a sunroof that did not anticipate possible
injury from heavy falling objects.
c. Superseding:
i.
The subsequent act is more culpable or leads more directly (either b/c it is
intentional or is a criminal act or otherwise)
ii.
Outcome: The liability of the first actor is limited.
iii.
Rule: If D1’s act increased the risk of D2’s act, then NOT superseding (most
courts)
i.
Meyering: kids act was intervening, but the inadequate construction of the sunroof
increased the risk of their act, so kids act not superseding
iv.
Rule: If D2’s act is intentional, it is more likely (but not necessarily) going to be
found as a superseding act
v.
Ex: Daycare doesn’t perform background check; criminal hired & abuses a kid.
The criminal’s abuse was intentional, but the Daycare does not escape liability.
d. Old v. New Views
a. Old: If D2s actions are intentional, criminal, malicious then D2 liable, cutting off
D1’s liability
b. New: Ask if D1s negligence contributed (or increased the risk of) D2’s criminal
action? (see day care example)
F. LEGALLY COGNIZABLE INJURY / DAMAGES
a. Injury that law recognizes as being worthy of compensation in the tort system (physical
injury to property or person or NIED)
b. HOW TO ATTACK
I. Should D have to pay anything? (if no damages/injury then no negl. case)
II. How much should they pay and for what?
III. What kinds of proof?
IV. Tort reform – is this system rational? (should it be changed, abolished, or capped)
c. Damages (3 types)
I. Nominal: a trivial sum of money awarded to a litigant who established as a cause
of action but has not established entitlement to compensatory)
II. Compensatory: restores P to his preinjury condition, to the extent money can do
that, also promotes deterrence (awarded as a right)
a. Economic / Special
i. Medical (past and future)
ii. Loss earnings (past and future)
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iii. Care costs (past and future)
b. Noneconomic / General
i. Physical and emotional pain and suffering
ii. Hedonic (loss of enjoyment of life; most courts agree you can
recover but some deny for P’s vegetative state since they’re
unaware of their situation; courts disagree as to whether this should
be a separate category)
iii. Loss of Consortium: deprivation of the benefits of a family
relationship (i.e. sex) due to the injuries caused by a tortfeasor
c. Single Judgment Rule
i. Damages include an estimate of future loss b/c there needs to be
finality to the dispute
III. Punitive: to punish D to teach them to never do it again, and to remind the rest of
us never to do it either (never awarded as a right, unlike compensatory).
a. Only applies if there is an elevated fault (willful or wanton conduct;
recklessness; conscious disregard; gross negligence; reprehensible risk)
b. Taxable
c. Limits to Punitive Damages
i. Some states do not allow (WA)
ii. Some do not allow for certain kinds of cases (OR/defamation)
iii. Higher standard of culpability (must show malice, intent, or outrageous
conduct)
iv. Higher standard of proof (clear & convincing – more than
preponderance)
v. Juries often deny
vi. Appellate ct. looks at amount if award is excessive (“shocks the
conscience”)
vii. Trial ct can also look at this
viii. Some states limit, some have a ratio, flat caps, or limits based on income
ix. Some states put a percentage of award into public fund
d. Federal Due Process Limits
A. Language in 14th amendment: “No state shall deprive any person of life, liberty, property,
w/o due process of law (created in 1868, in 1990s they started applying it punitive
damages – some judges disagree that this has anything to do with punitive damages)
B. Violation of due process is determined from 3 factors
a. Reprehensibility of conduct
b. Ratio of compensatory to punitive (single digit preferable, but not binding;
if comps are substantial 1:1 may be enough)
c. The difference between punitive damages awarded by the jury and the civil
penalties authorized or imposed in comparable cases (look at fines under
state law)
e. Procedural limits (State Farm)
i. Can’t be awarded for out-of-state conduct
ii. Can’t punish conduct towards non-parties, only punish conduct that affect parties in the suit
(but you can consider conduct towards nonparties for reprehensibility)
I. Ways the Appellate Court can Mitigate excessive awards
a. New trial
b. New trial on damage issue alone
c. Remittitur: Court sets a new amount & gives choice to take it or new trial
d. Note: Most awards are minimal, excessive awards are a minority
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f. Collateral Source Rule
I.
What is it?
a. A tortfeasor may not benefit, and an injured P’s tort recovery may not be
reduced, because of monies received by the P from sources independent of the
tortfeasor’s procuration or contribution
b. Payments are collateral because they were made by third parties and not on
behalf of D - so they’re none of D’s business.
II. Summary: D still has to pay even if someone else paid P’s bills (i.e. grandma or insurance
company)
III. Reasoning: The wrongdoer cannot reap the benefit of a contract for which the wrongdoer
paid no compensation; Gift intended for P not D; better a potential windfall for P than for
liable tortfeasors
IV. Windfall problem: some claim that the rule supports the P from getting a double dip in
recovery. If P’s insurance pays and the D pays, then P gets double the recovery.
i.
D argues: double dipping, and could cause P windfall
ii.
P argues: D should not benefit from P having insurance which they pay for;
subrogation means no double dipping it will ultimately go back to the insurance
co, family gifts should not benefit D.
V. Subrogation
i.
P’s insurance pays for P’s medical cost up until the case is tried or settled, but then
insurance carriers get what they paid back from D after the suit.
ii.
Insurers almost always have subrogation agreements in contract
VI. Other things of note
i.
Medicaid payments – D should reimburse but doesn’t always work this way
ii.
If bill is lower because of pressure from P’s atty then D doesn’t have to pay
(Hoffman)
g. Present Value (award - compounding interest = present value)
a. Award is reduced to account for gains the $ can make in interest over time
b. Only economic damages are reduced to present value
c. What sum of money today will equal the total amount in X amount of years?
h. Interest
i. Courts have been inclined to award prejudgment interest on the theory that the tortfeasor’s
obligation to make the victim whole arises when the injury occurs, or at the latest when
the suit is filed.
i. Taxation
i. Compensatory damages not taxable
ii. Punitive damages are taxable
j. Lump Sum Judgments & Structured Settlements
i. Lump sum: Awards for pecuniary losses are usually reduced to present value on the theory
that P can use the award to make more money by investing it.
a. A weakness in this system is that P may not invest it and instead “fritter away the
money”
ii. Structured settlements: you get a certain amt up front then you get the rest in scheduled
payments over time. Helps D’s plan for expenses, P has continuous flow of money.
k. Attorney Fees
i.
Old English rule: you lose, you pay attys fees
ii.
American Standard: You pay your own attorney’s fees, UNLESS
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l.
X.
a. Statute provides for attys fees
b. Contract
iii.
Attys fees v. costs
a. They are separate
b. Costs are things like service of process & filing fees
c. Attys cannot legally pay costs, they can advance them but client has to pay
d. If party wins the other side often reimburses for costs
iv.
Contingency
a. Often atty’s fees are contingent. If you win, split with atty; lose neither of you
get anything (often 1/3 recovery but depends on agreement)
v.
Tort reform argument: Loser pays system would minimize frivolous claims BUT
would limit the everyday person’s access to the system
Caps on Damages
I.
In more than half the states, legislatures have imposed ceilings on compensatory damages
(including OR)
II.
Pro: simple way of reducing costs of tort liability and therefore insurance premiums.
Doesn’t allow for excessive awards that would need further litigation/ruling from ct
III.
Con: makes most seriously injured Ps bear cost of tortious conduct; D knows what the
most they’d have to pay so lower settlement offers
IV.
Both sides agree that caps affect far more cases than those in which recovery is actually
reduced to conform to the cap, because the existence of the cap reduces the settlement
value of the cases by giving D a ceiling on their potential losses if they refuse to settle.
Survival Claims & Wrongful Death
A. Survival Claim
a. Suit on behalf of the victim’s estate seeking to recover for victim’s own injuries, those that
he would have sued for if he had not died.
b. Usually you can recover only up to the point of death (i.e. loss of income until death – or pain & suffering until death)
B. Wrongful Death
a. Victim’s family members seek recovery for their losses stemming from a tortious death
b. Three (3) questions to ask:
i. Was it a wrongful death?
1. Arguable act of negligence by someone and a death
ii. Who can sue?
1. Look at statute
2. Usually limited to family members and dependents
iii. What damages can be got?
1. Can sue for pecuniary (economic) loss – traditionally the idea was that one
spouse is breadwinner so if spouse is killed then the other is deprived of
support.
2. Limited, but gradually most wrongful death statutes have been amended to
include noneconomic damages (i.e. loss to society and grief) - majority rule
now
3. Fault of decedent is imputed on the surviving claimants who are suing
XI.
Vicarious Liability
A. General
a. When A is liable for B’s action because the relationship between A and B justifies holding
A responsible
B. Direct Negligence (always think of this first!)
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a. Was the employer negligent in some way?
i. Negligent hiring
ii. Negligent training
iii. Negligent retention
C. Respondeat Superior (example of vicarious relationship)
1. General Rule
a. An employer is responsible for the tort of an employee who is acting within the scope of
the employment;
b. Acts as an incentive for employees not to be negligent
a. HOWEVER, Employers NOT responsible for employees’ intentional torts AND
b. NOT responsible for independent contractors, UNLESS:
a. Nondelegable duty (escalator case)
i. i.e. Affirmative duties imposed on employer by statute, contract, franchise,
charter or common law
b. Inherently dangerous activity (bar bouncer case)
i. 2nd Restatement: for work to be inherently dangerous it is necessary for the
work involve risk, recognizable in advance, of physical harm to others
inherent in the work itself, or normally to be expected in the ordinary
course of the usual way of doing it, or that the employer have special
reason to contemplate such risk under the particular circumstances under
which the work is being done.
2. Employee or an Independent Contractor?
a. Employee: If the employer exercises or has the right to exercise control over the
physical conduct (manner & means) of the work
b. Independent contractor: employer directs only the result and the contractor determines
the manner & means
c. Factors to determine:
i. Extent of control the principal may exercise over details of the work
ii. Whether the agent is engaged in a distinct occupation or business
iii. Is type of work done usually w/ or w/o supervision
iv. Skill required
v. Who is supplying tools / location?
vi. Length of time
vii. Whether they are paid by the job or how much time they worked
viii. Is the work part of the principal’s regular business?
ix. Is there a belief they are creating an employment relationship?
1.
Scope of Employment
a. OR Four (4) Part Test:
i. Place of employment
ii. Time of employment (needs to be w/in time & place of employment
iii. Act hired to perform
iv. Purpose to serve employer (motivated, at least partially by a purpose to
serve employer)
D. Other Vicarious Relationships
1. Parental Liability
a. Under common law NOT vicariously liable
b. Many jdxns impose limited vicariously liability, typically:
i.
Liability is capped
ii.
Only applies to kids of certain age range
iii.
Usually only applies to malicious acts (i.e. vandalism)
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2. Car owner and people driving
a. Liable by statute in some states even when w/ owner’s permission.
3. Partnerships & Joint Enterprises
XII.
Affirmative Defenses
A. General
1. If the elements of Negligence are met, then there will be recovery unless D raises and
establishes an affirmative defense.
2. Can reduce or eliminate liability
B. Defenses Based on P’s Conduct
1. Contributory Negligence
a. Rule: Any legally relevant negligence of the P, no matter how slight, bars recovery
completely (all or nothing – this has pretty much been abolished).
b. Replaced by Comparative Negligence (pure & modified) in all but 5 juris
c. Exceptions
i.
Last Clear Chance Doctrine
A. When P is contributory negligent, but D has the last clear chance to avoid the
situation, then P can still recover
B. Used to escape liability for contributory negligence
C. Used in jdxns that have NOT adopted comparative fault; but unnecessary if
they have
ii.
Willful or Wanton
A. If act was willful or wanton, then P still recovers even if contributory
B. Contributory negligence is NOT a defense to intentional torts
2. Comparative Negligence
a. Pure: P’s damages are reduced in proportion to the percentage negligence attributed to P
a. Ex: If P is 90% at fault they can still collect 10%
b. Modified Greater Than (P friendly) – “not greater than”
a. Allows recovery when P’s negligence does not exceed D’s negligence; the
contributory negligence barrier remains in effect if P is responsible for >50% of
injury. P would still collect if they are 50% at fault.
c. Modified Less Than (D friendly) – “not as great”
a. Allows recovery only when P’s negligence is less than D’s negligence;
contributory negligence remains in effect if P is responsible for 50% or more of the
negligence; OR does this.
d. Aggregation – more than one D?
i.
Majority rule: Fault of Ds get aggregated & P recovers if less than total
ii.
Minority rule: P must be less than the D which recovery is sought from
e. Settlements – more than one D?
a. If there is a settling D, the settlement settle’s D’s percentage share of damages. D
could have settled too high or too low but it stands. Goes off percentage not money
amt!
3. Failure to Mitigate Damages
a. After injury, there is a duty to take reasonable steps to mitigate the damages.
b. Restatement: P’s negligent failure to mitigate damages is penalized by a percentage-faultbased reduction of the damages caused by the failure to mitigate rather that a fullreduction
a. Ex: if you’re in a car accident and break your leg you need to seek medical care,
can’t just build up damages in a lawsuit; OR not looking for a job
4. Failure to Take Advance Precautions (aka Avoidable Consequences)
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a. There is a duty to take advance precautions.
b. Pre-accident conduct that didn’t cause the accident, but may have caused some of the
damages
c. Some courts call for total reduction approach. BUT Restatement: calls for percentagefault-based reduction approach
a. Ex: the amt of damages awarded the plaintiff for injuries he sustained must be
reduced by the amt of injury he would have avoided by use of a helmet
d. Ex: Since most states have seatbelt laws, wearing one has become a reasonable precaution
to take and not wearing one is evidence (in some states) of not taking advance precautions.
e. Oregon: evidence of failure to wear seatbelt will only reduce damage by 5%
5. Assumption of Risk (3 types)
1) Express
a. “I will assume the risk of this activity” (i.e. by signing a document)
b. Four (4) Key Questions:
i. What is the scope of the release language? (does it even cover the
situation?)
ii. Was the release voluntarily signed? (w/o duress, unconscionability, or
misrepresentation)
iii. Did the person who signed release have the capacity to do so? (i.e. not
incapacitated)
iv. Assuming the release is valid, is it void for public policy?
1. Tunkl factors
a. Concerns a business of a type generally though suitable for
public regulation
b. The party seeking exculpation is performing service of great
importance to the public (often a matter of practical
necessity)
c. The party seeking exculpation holds himself out as willing
to perform this service for the public
d. Party seeking exculpation possesses superior bargaining
power
e. In exercising superior bargaining power the party has a
standard adhesion contract and makes no provision whereby
a purchaser may pay additional reasonable fees and obtain
protection against negligence
f. As a result of the transaction the person or property of the
purchaser is placed in the control of the seller, subject to risk
of carelessness by the seller
2. Three (3) Other Guidelines re: Public Policy
a. Is the business commercial/recreational or public service?
b. No release for products liability (i.e. defective car)
c. A contractual term exempting a party from liability of harm
caused intentionally or recklessly is unenforceable on
grounds of public policy
2) Implied PRIMARY Assumption of Risk (really a “limited duty” doctrine)
i.
P assumes the risk that is reasonably inherent in an activity
a. No duty to guard against or warn of risks inherent in the activity
ii.
P also assumes the duty to protect against those risks (P liable)
iii.
Inherent risks
A. Must be objectively reasonable to know of the risk
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B. Risks permitted by the rules, customs, & mores of the activity
iv.
Applicable to recreational activities
A. Ex: getting hit w/ foul ball, P assumes such risk at game; midnight skiing
3) Implied SECONDARY Assumption of Risk (aka Voluntary Assumption of Risk)
i.
Two 2 Prongs (Traditional approach/phase) – all or nothing – bars recovery
a. Voluntarily encountered &
b. Knowingly appreciated (subjective knowledge)
ii.
Only applicable in contributory negligence jurisdictions; NOT comparative
iii.
Some jdxns have kept (only 10) – Why?
a. P could be non-negligent but at the time knowingly and voluntarily assumed
risk, so it would be unfair to hold D liable.
6. Imputed Contributory Fault (P carries fault of another actor)
a. Both ways rule
i.
Restatement: The negligence of another person is imputed to a P whenever the
negligence of the other person would have been imputed if P had been D
a. Ex: I am your full time chauffer. Driving you to the bank I fail to heed a fourway stop sign and collide with another car that is process of violating the sign.
The other and you are injured. When driver sues you, my negligence will be
treated as yours, making you vicariously liable for my tort. When you sue the
other driver, my negligence will again be treated as yours, defeating your
lawsuit in some jdxns and imposing a percentage fault penalty in others.
b. Exception: when the negligence would only be imputed b/c of the ownership
of a vehicle or permission for its use
b. Derivative Claims
a. P’s claims are inherently tied to the negligence of another person
b. P’s recovery is reduced by the by the person they are tied to negligence
c. Ex: Spouse’s claim for loss of consortium, wrongful death, survival actions,
bystander situation
C. Affirmative Defenses Based on Time
1. Statute of Limitations
a. Justifications for SOL
i.
Encourages people to bring suit to change the law which fosters growth and
prevents legal stagnation
ii.
Serves as punishment for slow Ps & protects Ds from stale litigation which would
be difficult to defend after a long time
iii.
If none, then there would be virtually unlimited litigation every time precedent
changed
b. Four (4) Key Questions
a. What statute applies (varies between states and types of claims)
b. When does clock start to run?
c. Is there any toll? (i.e. when person is a minor or incapacitated)
d. When has the lawsuit been commenced for SOL purposes?
c. What is the applicable SOL?
i.
Varies between tort and jdxn
ii.
More limited if the D is the State
d. When does the clock start running?
i.
Determined by statute
ii.
Majority interpretation: Once all the elements have been satisfied (ACCRUAL);
usually the date of the injury
iii.
Equitable exceptions
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A. Discovery Rule
1. Clock starts when there is discovery of either the injury, the cause of injury,
or that someone wrongfully caused the injury
2. What must be discovered?
a. Injury itself?
b. The cause of the injury?
c. Existence of a viable claim?
d. Reasonable suspicion?
B. Continuing Tort Rule
1. Where a tort involves a continuing or repeated injury, the limitations period
does not begin until the date of the last injury or when the tortious acts
cease (also used in medical malpractice).
2. Most applicable to IIED claims
C. Incapacitation
1. Judge may prevent SOL from running while P is mentally or legally
incapacitated
D. Concealment
1. D’s fraudulent concealment of facts that would reveal P’s injury or her
rights can provide independent grounds for equitable tolling of SOL or can
be viewed as merely an appealing instance for treating the claim as
accruing upon discovery
e. When is SOL satisfied?
i.
Determined by statute
ii.
Federal Court: when filed in the court
iii.
Oregon: must be filed and served
2. Statutes of Repose (absolute deadline)
a. Certain claims are barred after a certain time period no matter when the injury is
discovered (discovery & continuing tort rule are NO good here)
b. Not related to an accrual of any cause of action
c. Generally, time starts when the wrongful act occurred
d. Limits the time within which an action may be brought
e. Ex: med mal and defective products
D. Federal Preemption
1. Power of federal government to displace a state law in favor of federal law; can be a sword or
shield
2. Advantages:
a. Uniformity, efficiency, fairness
3. Disadvantages:
a. Lose ability for local reps/courts to shape the rules for local conditions (what is a an
appropriate rule for FL may not be for OR);
b. Lose experimentation (states allowed to experiment – see what works and what
doesn’t)
c. Lose autonomy;
d. Lose power sharing idea imbedded in the constitution (loses diving of power between
fed and state govs)
4. Vertical Preemption
a. Higher level of govt preempting lower level (can be state or federal)
b. Power congress has under commerce clause to regulate and displace state law if
needed
5. Horizontal Preemption
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Fall 2019
a. Sometimes at same level of government tort claims are preempted
i. Ex: worker’s comps laws
6. Express Preemption:
a. This statute expressly preempts ____
7. Savings Clause (when congress does not want to preempt state law)
a. This statute does not preempt _____
8. Implied Conflict Preemption
a. Not stated explicitly, but often it’s not possible to comply with both federal and state
law simultaneously
b. When state regulation stands as an obstacle to the full accomplishment of federal
purposes and objectives (judge decides)
i. Ex: airbags (they wanted to bring them in gradually)
E. Immunities
1. What?
a. Protects certain Ds from some or all types of tort liability
b. Depend on D’s identity, not P’s conduct
c. Immunities are often raised as an affirmative defense, but can also be used in motions
to dismiss
d. Have been gradually reduced by state and judicial decision
2. Workers Comp exclusivity
a. Bars employee from going to court for the negligence of the employer
b. The exclusive remedy is workers comp system for work place injuries
c. Employers are generally immune from suit from their employees with some exceptions
3. Charitable
a. Abolished in most states, but remnants remain (i.e. capping liability for charity hospitals)
4. Governmental Immunities (playing field is not level against gov)
a. STATE
i. Most states of at least partially abolished their sovereign immunity (but
substantial amts remain)
ii. Once immunity is gone new duty issues emerge
1. Sometimes courts invoke special no duty rules to absolve state or local
governmental entities from liability when general no duty principles
would have subjected them to liability (varies from state to state)
iii. State tort claim statutes often place dollar limits on the amt of recovery against
a gov entity or limit the recovery to the gov’s insurance policy; often punitive
damages are not allowed
iv. Many states proprietary functions were NOT immune, whereas governmental
functions were (proprietary: running a bus line; governmental: police &
schools)
v. Judges and state officials can’t be sued for actions taken in official capacity
vi. Law Enforcement discretion:
1. Courts don’t want to be involved in supervising police procedures
(protect law enforcement discretion);
2. Police are often immune for public policy reasons as they are allocating
scarce resources
b. LOCAL
i. Common law had a doctrine that would allow you to sue; difference between
proprietary and governmental duties – can cause a difference in what cities are
liable for
1. Can sue for proprietary, NOT governmental
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Fall 2019
c. FEDERAL
i. US sovereign immunity is the default assumption; immunity is intact except as
waived by Congress
ii. Federal tort immunity is “jurisdictional” in nature; courts are free to invoke sua
sponte
iii. Federal Tort Claims Act
1. Dist cts have exclusive jdxn of civil action on claims against the US
2. A tort claim against the US shall be forever barred UNLESS
a. It is presented in writing to the appropriate federal agency w/in
2 years after such claim accrues; OR
b. Action is begun w/in 6 months after the date of mailing of
notice of final denial of claim by the agency to which it is
presented
3. Tried w/o a jury
4. “Federal Agency” does not include any contractor with the US
a. Except the Supreme Ct created an exception for military
contractors.- they are not liable in tort for designs and defects in
military equipment
b. Justified by federal interest in making sure gov gets good and
services it wants at prices that are not inflated by the
contractor’s risk for tort liability (this can be expanded to
civilian contexts too)
5. The US shall be liable in the same manner and to the same extent as a
private individual under like circumstances, but shall NOT liable for:
a. Prejudgment interest; or
b. Punitive damages
6. Exceptions (where you can’t bring suit at all)
a. Can’t sue government for executing the law
b. Intentional torts (i.e. assault and battery are excluded), but you
can sue federal law enforcement (FBI)
c. Combatant activities at time of war
d. Discretionary functions
i. Says gov cannot be sued for any claim based on the
“exercise or performance or failure to exercise or
perform a discretionary function or duty on the party of
a federal agency or employee of the gov, whether or not
the discretion involved be abused”
ii. Marks boundary between Congress’ willingness to
impose tort liability on the US and its desire to protect
certain gov activities from exposure to suit by private
individuals
iii. 2 part test to determine if it applies (Gaubert inquiry)
1. Is there any choice involved? (can’t be sued for
just following the law)
2. Is it a choice susceptible to public policy
analysis?
7. Two (2) Judicially Created Immunity Doctrines:
a. Feres Doctrine: Servicemen can’t sue government for injuries
that arise out of or are in the course of activity incident to
service; family can’t sue either
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Fall 2019
b. Government contractor immunity for defense products
5. Family Immunities
a. Spousal
i.
Most states have totally abrogated immunity
ii.
Abrogation began thru a series of exceptions & the Married Women Act
A. Gave wives rights to own & dispose of land, to contract
B. Could sue in light of these rights
iii.
The leftover doctrine of interspousal immunity (though now its abolished in most
states) found support in:
a. Considerations of marital harmony; and
b. Collusive lawsuits
b. Parental
i.
Traditionally: parental immunity doctrine operated as a nearly absolute bar to suite
by a child for personal injuries caused by a parent, no matter how wrongful the
parent’s conduct.
a. Trilogy of cases established the doctrine in early 1900’s
i. Hewlett: child can’t sue for false imprisonment when committed to
asylum
ii. MdKelvey: cannot sue for cruel and inhuman treatment from stepparent
iii. Roller: cannot sue father for rape!
ii.
More Modern: Parent is not liable for ordinary negligence in the performance of
parental responsibilities.
a. Restatement: Disallows negligent supervision claims based on the concept of
parental privilege/family autonomy
b. Policy reason: parents should be free to determine how the physical, moral,
emotional, and intellectual growth of their children can be promoted
iii.
Reasonable parent standard (CA & a minority of other states adopted this): Did
they act as a reasonable parent? Allows children to sue parents for negligent
supervision
iv.
When a parent not immune:
a. When acting outside of his parental capacity
i. Ex: when operating a business or driving a car, a parent owes a child
the same duty of reasonable care applicable to the world at large
b. When engaging in willful or wanton misconduct
v.
Loco Parentis (stand in parent) when providing financial and emotional support
XIII. Joint & Several Liability
A. Common Law J&S
1. Originated in common law – concert, common control (i.e. landlord and tenant both in control
of stairwell that causes injury)
2. If judgment against one of several tortfeasors, then that one responsible for all of the damage
3. Leads to problem of D being responsible for all of a phantom or turnips share
a. One answer is reallocation – taking turnip/phantom’s share and dividing it according
to the fault of the parties remaining – OR has a version of this.
4. When J&S usually still applies
a. Actions in Concert: Still leads to J&S since each party is responsible for the whole
b. Common Duties: Still J&S b/c breach of shared duty leads to shared culpability
c. Vicarious Liability
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d. J&S is retained in many states for intentional torts
B. Contribution & Indemnity
1. Indemnity: Dollar for Dollar reimbursement when there is a relationship (contractual,
doctrinal, or statutory) that makes D1 liable for D2’s actions
a. Contribution not needed where comparative fault b/c D1 will only be held liable for its
portion of fault
2. Two methods of calculating contribution
a. Pro rata: old way which equally splits the share of liability
b. By fault: % is assigned to the culpable conduct
3. Employers have a right to seek indemnity from employees but this is mostly never done
because HR problems, shallow pockets
C. Comparative Negligence on J&S
1. Comparative Responsibility/Fault
a. If negligence can be compared b/w P & D, then why not between Ds?
b. Often negligence will be assigned to non-parties (most states allow)
c. Leads to the P being responsible for turnips & phantoms
i.
Solution: OR adopts a compromise that allows the P to later file if there is a turnip
and then the portion is shared b/w P and D
D. Complexities Raised by Substituting Comparative Responsibility for J&S
1. Non Party Fault (Brown v. Keil)
a. Most states w/ comparative fault have adopted the defense of non party fault – can
shift the blame onto the non party; OR is a minority and doesn’t allow it
b. Usually D has a choice to make a nonparty
c. But, if nonparty has already settled can’t bring him back in
2. Immune Non Party - Workers / Third Party Claims
a. Employer is immune from tort claims from employees
b. Employees can bring suit against third parties (ie contractors)
c. Third parties cannot bring contribution claim from employer (would defeat the purpose of
workers comp)
d. Problem: Worker never recovers full damages (b/c of comparative fault)
e. BUT: would be problem for third party if J&S since it couldn’t recover
3. Impact of elimination of J&S causation (cause-in-fact) doctrines
a. Doesn’t abolish J&S when parties act in concert – they still caused all the harm, just
apportioning liability is different
b. Successive Indivisible Injury
i. 2 or more independent acts cause injuries that can’t be allocated b/c of close
proximity (time & place)
ii. Problem: How to apportion fault with such injuries consistent w/ comparative
fault
iii. Solution: Allow the jury to make fault determination
iv. Novel argument w/ J&S outcome: All the Ds are responsible for the whole
4. Impact of elimination of J&S on proximate cause (Exxon case)
a. Exxon’s capt’s negligence was superseding cause of harm
b. Exxon argues that there is no need for the superseding cause doctrine anymore because
with comparative fault we can just compare the fault of the parties.
c. US supreme ct rejected this – they hold that it is still logical that sometimes D2s
negligence is so extreme that it should cut off the responsibility of the party.
5. General Outcome of Change to Comparative Responsibility
a. Liability relationships still exist, but they are used when determining the portion of fault.
b. Moral: there are limits to comparing the fault of the parties
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Set offs: when verdict awards dmgs the ct may saet off the verdicts and enter one net judgment. Not a good idea
when it benefits liability insurers at the expense of parties because it can alter the parties ultimate financial
positions.
XIV. POLICY
a. Med Mal / General – Caps on noneconomic damages
i. Goals of Med Mal:
1. Deter unsafe practice
2. Compensate persons injured
3. Exact corrective justice
ii. Pro Cap:
1. Predictability for insurance companies
2. Keeps drs in practice
3. Improves patient care by reducing “defensive medicine” (medical practice
performed to limit the risk of lawsuits) Consequences:
a. Unproductive, not cost effective, harmful (unnecessary procedures)
b. Moves focus away from best interest of patient towards best interest of doc
(damages physician patient relationship)
4. Drs losing patients, reputation, is enough incentive
iii. Anti Cap
1. Attys may have less incentive to take cases – med mal is difficult to try
2. Many states have already adopted caps
3. Doesn’t acct for catastrophic case (i.e. quadriplegic)
4. Unfairly harm poor and minorities who generally get poor care and may have
trouble proving damages
iv. Alternative Dispute Resolution
1. Generally includes mediation or arbitration
2. Benefits to Drs: promotes honesty and ethical behavior
3. Benefits to Pts: provides honest accounting of what happened, statement of regret,
and possibly an offer of compensation; maintain good dr patient relationship
b. Arbitration
i. Not everyone agrees that an arbitration clause is merely a choice of forum
ii. Drafter usually chooses the jdxn who law will control
iii. Discovery may be limited; No right to jury trial; generally not appealable
iv. Positives: faster, informal, cheaper; general trend toward enforcement
c. Tort System
i. Purposes:
1. Compensation for injury
2. Deterrence/accountability
3. Rules for business – level playing field
4. Cost internalization
5. Dispute Resolution
ii. Pros:
1. Makes whole those who are injured
2. Protects people as individual and consumers
iii. Anti:
1. Expensive and burdens the judicial system
2. Undermines liberty to an extent
3. High damage
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