Torts – Spring 2023
a.
i.
ii.
iii.
b.
i.
I.
Intentional Torts
General Principles
Torts: Definition
1.
Physical or dignitary harms to a person, property, or economic interests
Intent
1.
Rule
a.
A person acts with intent if 1) the person acts with purpose of producing that
consequence, or 2) the person acts knowing that the consequence is substantially
certain to result. Restatement (Third) Section 1.
Recklessness
1.
Rule
a.
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, or 2) the precaution that would
eliminate the risk involves burdens so slight in relation to the amount of risk as to make
the person’s failure to take the precaution a sign of indifference. Restatement (Third)
Section 2.
2.
A person acts recklessly if:
a.
The person knows of the risk of harm created by the conduct or knows facts that make
the risk obvious
b.
The precaution that would eliminate/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
Types of Intentional Torts
Physical
1.
Battery
a.
Rule
i.
To make a claim for battery, one must prove that a person 1) acted intending to
cause a harmful offensive contact with the person of the other, or an imminent
apprehension of contact, and 2) offensive contact directly or indirectly resulted.
Restatement (Third) §18.
b.
Elements
i.
Intent?
1.
Rule
a.
A person acts with intent to produce a consequence if either the person acts
with purpose of producing the consequence or the person acts knowing the
consequence will likely result. Restatement (Third) §1.
2.
Person acts with the purpose of producing the consequence; or
a.
Single intent: causing contact, where that intended contact ends up being
harmful or offensive to the P, or
i.
Intent for battery requires the intent to cause contact with the person or
the other, regardless of whether the person intended to cause harm or
offense. Restatement (Third) §102
ii.
Price v. Short - cookies
b.
Dual intent: causing contact that D intends to be harmful or offensive
i.
In a dual intent jurisdiction, a tortfeasor must both intentionally contact
another person and intend that the contact be harmful or offensive to be
liable for battery. White v. Muniz, 999 P.2d 814 (2000).
ii.
White v. Muniz
3.
The person acts knowing that the consequence is substantially certain to result
ii.
Contact?
1.
To establish contact for a battery claim, an actor must have intended to cause
the other to directly or indirectly come into contact with a foreign substance; it is
not necessary he bring any part of his body in contact with another person.
Restatement (Third) Section 18(c).
2.
Contact does not need to be direct physical contact between plaintiff and
defendant, and does not have to cause medical injury. Reynolds v. MacFarlane.
a.
Ex. smoke – has to be intentionally directed at someone
3.
Cases
a.
Reynolds v. MacFarlane
i.
Proof of injury not necessary
b.
Garratt v. Dailey
i.
Five-year-old may be held liable for battery
c.
Fisher v. Carrousel Motor Hotel
i.
Touching anything connected to plaintiff counts as contact
iii.
Harmful or offensive?
1.
Bodily contact is defined as harm if it causes a person’s physical impairment,
physical pain, or illness. Restatement (Second) Section 15.
2.
As for offensive, bodily contact is considered offensive if it offends a reasonable
person’s sense of dignity. Restatement (Second) §19.
3.
Cases
a.
Balas v. Huntington Ingalls Industries - cookies
b.
Fuerschbach v. SW Airlines
c.
Cohen v. Smith – male doctor touches her against orders
c.
Quiz
i.
Joey throws a rock in the direction of his neighbor, Johnny. Johnny is so far away
that Joey doesn’t think there is any chance that the rock will actually hit Johnny, but
Joey hates Johnny and the rock will hit and injure Johnny. Surprisingly, the rock hits
Johnny, causing injury. Can Johnny establish the requisite intent on Joey’s part in
order to establish a prima facie case of battery?
ii.
Yes, because it was Joey’s purpose or desire to cause the harmful contact.
d.
Quiz
i.
Loretta is eight years old. As a joke, she took her plastic fork and stabbed her aunt,
Tammy, in the leg, thinking Tammy would find it funny and not realizing that the
fork would actually break the skin. As it turned out, the fork actually broke the skin
of Tammy's leg. Tammy ended up needing stitches from the incident. Could Tammy
recover from Loretta on a battery claim?
ii.
The answer depends on whether the jurisdiction utilizes a single-intent or dualintent approach.
2.
Assault
a.
Rule
i.
A person is liable for assault if he acts intending to cause either harmful or offensive
contact or immediate apprehension and immediate apprehension resulted.
Restatement (Second) §21.
ii.
The person intended to cause either harmful/offensive contact or immediate
apprehension by…
iii.
The person caused immediate apprehension by…
b.
Cases
i.
Cullison v. Medley
1.
Circumstances
ii.
Brower v. Ackerley
1.
Threats by phone
c.
Quiz
i.
Joey throws a rock in the direction of his neighbor, Johnny, as he shouts, “Look out,
Johnny!” Joey’s intent is to scare Johnny with the rock. Johnny never saw Joey throw
the rock, nor did he see the rock or hear Joey’s shout. Instead of hitting Johnny, the
rock winds up hitting Johnny’s friend Dee Dee in the back of his head. Which of the
following legal theories is most likely to produce a victory for the plaintiff in
question?
ii.
Dee Dee sues Joey for battery.
d.
Quiz
i.
Defendant is certifiably insane and looks disheveled. One night while Plaintiff is
walking home alone on the unlit streets of downtown, Defendant jumps out of the
alley in front of Plaintiff waving a toy (but realistic-looking) gun and shouts, "stop or
I'll shoot!" Plaintiff passes out from fear and, upon waking, sues Defendant. Which
of the following states is the most accurate?
ii.
Defendant has committed the tort of assault.
e.
Quiz
i.
Loretta and Tammy had a sharp disagreement while Loretta was visiting Tammy's
house. Tammy shouted at Loretta, "Loretta, you get out of my house, right now, or
I'll shoot you dead!" Loretta knew that Tammy's gun was on the kitchen table a few
feet away and that Tammy was a good shot. Loretta quickly fled the house as a
result of the threat. Could Loretta establish a prima facie case of assault?
ii.
Yes, because all of the elements of an assault claim are satisfied.
3.
False Imprisonment
a.
Rule
i.
A person is liable for false imprisonment if 1) he acts contending to confine the other
within boundaries, 2) his act results in confinement, 3) the other is aware or harmed
by the confinement. Restatement (Second) §35.
b.
Elements
i.
Intent to confine
1.
Intent to confine
2.
No malice or hostility needed
3.
Transferred intent can apply
ii.
Confinement
1.
To be liable for false imprisonment, an actor must completely confine the person
within specific boundaries. Restatement (Third) Section 36(1). It does not matter
whether there is means of escape unless the person knows of it. Restatement
(Third) Section 36(2). Intentionally preventing a person from going in a specific
direction is not considered false imprisonment on its own. Restatement (Second)
Section 36(3).
2.
Physical barriers – if plaintiff can escape with only “slight inconvenience”, it’s not
confinement. A means of escape is not reasonable if it’s dangerous or presents a
serious risk of embarrassment or discomfort
3.
Overpowering physical force
4.
Threats
5.
6.
Asserted legal authority
Does not require showing that plaintiff tried to resist or any minimum time of
confinement
iii.
Awareness or harm
1.
The person confined must be aware they are confined or harmed by the
confinement. Restatement (Second) Section 42.
2.
Need not be indoors
3.
Could be not able to leave a city
4.
Could also be not literal confinement (i.e. taking away crutches)
5.
Must be aware OR injured
c.
Cases
i.
Dupler v. Seubert
d.
Quiz
i.
In preparation for a massage by a trained professional, Loretta completely disrobes.
As a practical joke, Tammy, the trained professional, removes all of Loretta’s clothes
from the room and places them outside the room. Loretta has nothing else with
which to cover herself The door to the room is unlocked. The lobby to the
establishment is directly outside the room and is currently filled with people of both
sexes. After a few minutes, Loretta discovers her predicament. Tammy returns the
clothes a few minutes later, laughing hysterically.
ii.
Tammy is liable for false imprisonment.
4.
IIED
a.
Rule
i.
To make a claim for intentional infliction of emotional distress, a plaintiff must prove
that the defendant 1) had extreme or outrageous conduct, 2) had the intent to
cause severe emotional distress, or held reckless disregard for the possibility of such
distress, and 3) caused the plaintiff to suffer from severe emotional distress as a
result. Restatement (Third) §46.
b.
Elements
i.
Extreme or outrageous conduct
1.
To be considered “extreme or outrageous”, conduct must go beyond the bounds
of human decency such that it would be regarded as intolerable in a civilized
community. Restatement (Third) Section 46(c).
2.
Cases
a.
McDaniel v. Gile
i.
Gile sued for McDaniel hitting on her. Court determined yes IIED. Power
dynamic (note: *workplace harassment* is not necessarily IIED)
b.
Costello v. Mitchell School District
i.
Teacher belittled student. Not considered IIED by the court
ii.
Intent to cause severe emotional distress (or with reckless disregard for likelihood of
such distress)
1.
A person acts with intent if 1) the person acts with purpose of producing that
consequence, or 2) the person acts knowing that the consequence is
substantially certain to result. Restatement (Third) Section 1.
2.
Cases
a.
Agis v. Howard Johnson
i.
A cause of action for IIED exists in Massachusetts even if the plaintiff did
not suffer bodily injury. Agis v. Howard Johnson.
b.
ii.
Kazatsky v. King David Memorial Park
i.
A plaintiff cannot establish the injury element of IIED without presenting
expert medical evidence substantiating that the plaintiff actually suffered
the alleged emotional distress. Kazatsky v. King David Memorial Park.
iii.
Suffers severe emotional distress as a result (damages)
1.
In order to make a valid claim for emotional distress, a defendant must endure
such substantial quantity or enduring quality that no reasonable person in a
civilized society should be expected to endure it. Restatement (Third) Section
46(j).
2.
Physical manifestations of distress no longer required in most jurisdictions, but,
some evidence is required
c.
Quiz
i.
In which of the following situations is Tammy's conduct toward Loretta most likely to
be deemed extreme and outrageous for purposes of an IIED claim?
ii.
Tammy is Loretta's pastor and tells others a secret Loretta has told Tammy in
confidence as her pastor.
d.
Quiz
i.
Which of the following elements is not required in order to establish a prima facie
case of intentional infliction of emotional distress?
ii.
Malice
Property
1.
Real Property
a.
Trespass
i.
Rule
1.
An actor is subject to liability for trespass if he 1) enters land in the possession of
the other, or causes a thing or third person to do so, 2) remains on the land, or 3)
fails to remove something he is supposed to. Restatement (Second) Section 158.
ii.
Intentional interference with the owner’s right of exclusive ownership of land
iii.
Elements
1.
Enters land in possession of the other, or causes a thing or third person to do so
2.
Remains on the land
3.
Fails to remove a thing which he is under duty to remove
4.
**no intent to enter private land necessary
iv.
Damages
1.
Nominal damages – symbolic (no compensable injury)
2.
Compensatory damages - To make the plaintiff whole
b.
Quiz
i.
Which of the following is required to establish a claim of trespass to land?
ii.
The defendant must enter or cause an entry onto the plaintiff's land.
c.
Quiz
i.
Alex, Bob, and Carol are neighbors. Alex was clearing out his backyard just a few feet
from the boundary between his property and Bob's property. Alex picked up a rock
from his yard and threw it over Bob's property and toward the woods on Carol's
property, which abuts Bob's property. The rock lands in Carol's property.
ii.
Yes, to Bob and Carol. Bob could probably make out a prima facie case because a
trespass may result from an entry above a party’s land.
d.
Nuisance
i.
Rule
1.
ii.
Intentional interference with the owner’s right to use or enjoy the property
iii.
Nuisance defense - “coming to the nuisance”
2.
Personal Property
a.
Conversion
i.
Rule
1.
Conversion requires an intentional exercise of control over a person’s personal
property which seriously interferes with the person’s right to control it.
Restatement (Second) Section 222A(1). Factors considered when assessing
conversion are 1) the extent and duration of the person’s exercise of control, 2)
the person’s intent to assert a right inconsistent to the owner’s right of control,
3) the person’s good faith, 4) the extent and duration of interference with the
owner’s right, 5) harm to the property, 6) inconvenience and expense to the
owner. Restatement (Second) Section 222A(2).
ii.
Definition
1.
Serious interference; requires payment of full value
iii.
Factors (Section 222A)
1.
Extent and duration of D’s control
2.
D’s intent to assert a right inconsistent with the plaintiff’s right
3.
Defendant’s good faith
4.
Extent and duration of interference with plaintiff’s right
5.
Harm to the chattel
6.
Inconvenience and expense to P
b.
Trespass to Chattels
i.
Rule
1.
A person may be liable for trespass to chattels if he intermeddles with or
dispossesses plaintiff’s personal property. Restatement (Second) Section 217.
ii.
Definition
1.
Defendant may be liable if he intermeddles with or dispossesses Plaintiff’s
personal property
iii.
Elements
1.
A person intermeddles with property if the person intentionally brings physical
contact with the property. Restatement (Second) Section 217, comment E.
2.
A person dispossesses with property if the person 1) takes it without consent, 2)
obtains it by fraud or duress, 3) bars access to it, 4) destroys it while in another’s
possession, or 5) takes it into custody of the law. Restatement (Second) Section
221.
3.
Intermeddles with
a.
Impairs condition
b.
Deprives plaintiff of use for substantial time
c.
Harm’s P’s person/interest
4.
Dispossession
a.
Liability always
iv.
Issues
1.
Does not matter if it was a mistake
v.
Cases
1.
Pearson v. Dodd
i.
A conversion is an intentional exercise of control over a chattel which so
seriously interferes with the right of another to control it that the actor
may justly be required to pay the other the full value of the chattel.
c.
i.
ii.
d.
i.
ii.
c.
i.
ii.
Quiz
Which of the following statements regarding conversion and trespass to chattels is
most accurate?
Without permission, Donna takes Barry's Chevy Camaro and drives it for a year.
This is a conversion.
Quiz
Conversions consists of an intentional exercise of dominion or control over a chattel
that ______.
so seriously interferes with the rights of another to control it that the actor may
justly be required to pay the other the full value of the chattel.
Defenses
In General
1.
Prima facie case – if the plaintiff’s complaint alleges all the elements of an intentional tort
Physical
1.
Rule
a.
Consent is defined as willingness in fact for conduct to occur, and it does not necessarily
need to be communicated by the person. Restatement (Second) Section 892(1).
b.
If a person’s words or conduct can be reasonably understood by the other to be
intended as consent, it constitutes apparent consent. Restatement (Second) Section
892(2).
2.
Consent
a.
Issues
1.
Capacity
2.
Consent via duress
3.
Exceeding scope of consent
4.
Consent under mistake of fact
5.
Fraud
6.
Misrepresentation
b.
Cases
i.
O’Brien v. Cunard
1.
Apparent consent. Person got vaccinated against her will
ii.
Madrigal v. Quilligan
1.
Apparent consent. People were sterilized against their will
iii.
Mohr v. Williams
1.
Exceeded scope of consent
iv.
Kennedy v. Parrott
1.
Exceeded scope of consent
v.
Perna v. Pirozzi
1.
Exceeded scope of consent
vi.
Ashcraft v. King
1.
Exceeded scope of consent
vii.
Neal v. Neal
1.
Wife sued because her husband had relations with her when he was having
affair. Consent defense, so Neal was not liable
3.
Self-Defense
a.
Rule
i.
An actor may use “reasonable” non-deadly force to defend himself against battery
he reasonably believes is expected to occur. Restatement (Third) §63(1). Force in self
defense is permitted even if the actor reasonably believes he can avoid the battery
by retreating or complying. Restatement (Second) §63(2).
b.
Cases
i.
Hagopian v. Fuchs
1.
Self-defense is an affirmative defense to a claim for assault and battery that a
defendant must prove by a preponderance of the evidence. Hagopian v. Fuchs,
169 A.2d 172 (1961).
c.
Quiz
i.
Consider the following jury instruction: “When it is apparent that the person is
threatened with a battery, the person has the right to determine from appearances
and the circumstances the necessity of resorting to force to repel any apparent,
threatened battery, and the person has the right to do what seems reasonably
necessary to protect himself or herself against any such apparent, threatened
attack, whether it is real or not, provided the person believes it to be real.” Which of
the following is a proper objection to the instruction?
ii.
The instruction improperly suggests a subjective standard regarding the right to
engage in self-defense.
d.
Quiz
i.
Paul sneaks over onto Doug's property in order to steal some lovely petunias on
Doug's property. While Paul is leaning down to pull the petunias, Doug sneaks over
from behind and whacks Paul over the head with a shovel, causing serious injury.
Paul sues Doug for battery. Which of the following statements is most accurate?
ii.
Doug will be unable to successfully assert the privilege of defense of property
because his use of force was not reasonably necessary to terminate Paul's
intrusion.
e.
Quiz
i.
Devon is chased by a group of thieves. In an attempt to escape, he climbs over the
wall to Patty's house. As Devon lands, he lands on the downspout connected to the
house's guttering system. The downspout is destroyed as a result. Devon sees an axe
near Patty's woodpile, which he takes in order to protect himself. Eventually, Devon
decides the coast is clear and leaves Patty's property, taking the axe with him just in
case he sees the thieves on his way home. Devon then tosses the axe into the trash
as he enters his home. Patty never recovers the axe.
ii.
Yes, on a conversion theory.
iii.
Assume under the same facts, Patty sues Devon on a trespass to land theory for the
loss of the downspout. Which of the following best describes the likely outcome?
iv.
Patty will recover.
4.
Shopkeeper’s Privilege
a.
Elements
i.
Reasonable manner
ii.
Reasonable length of time
iii.
Purpose of recovering stolen merchandise and/or investigating whether there was
theft
b.
Cases
i.
Barkley v. McKeever
1.
A merchant’s privilege to detain a suspected shoplifter protects merchants from
claims of battery if the detention is carried out in a reasonable manner and for a
reasonable time for the purpose of determining whether there was a wrongful
iii.
taking, recovering the property, and summoning the police to initiate criminal
proceedings. Barkley v. McKeever.
5.
Other Not Addressed
a.
Discipline
b.
Qualified privilege
c.
Truth (for defamation)
Property
1.
Reasonable Force
a.
Permits use of reasonable force to defend one’s property against an immediate threat
i.
What is reasonable force? – Cannot be deadly
ii.
Does it matter if you’re there in person?
1.
Katko v. Briney
a.
A person, in protecting his property, may not use force calculated to cause
death or serious bodily injury, except where there is also a threat to personal
safety that justifies self‑defense. Katko v. Briney.
iii.
What if you are mistaken about the degree of force needed?
2.
Necessity
a.
Private
i.
2nd Restatement – 201
1.
An entry on land in the possession of another by a possessor of neighboring land
is privileged if the entry is made
a.
for the purpose of abating a structure or other condition on the land, which
constitutes a private nuisance to the actor's possessory interest in the other
land, and
b.
at a reasonable time and in a reasonable manner, and
c.
after the possessor upon demand has failed to abate the nuisance, or
without such demand if the actor reasonably believes it to be impractical or
useless.
2.
The privilege stated in Subsection (1) is also available to owners of easements
and of non-possessory estates in land which are detrimentally affected by the
nuisance.
ii.
Incomplete defense – “trespassing” D’s conduct is privileged, but D may be liable for
damages
iii.
Ploof v. Putnam
a.
Necessity caused by an “act of God” or other disaster resulting in an inability
to control movements justifies entries upon land and interferences with
personal property that would otherwise have been trespasses.
iv.
Vincent v. Lake Eerie
a.
A party who damages the property of another while acting out of private
necessity must compensate the property owner for the resulting damage
b.
Public
i.
A complete defense; D has no liability for damages
ii.
If it is reasonably believed to be necessary to avoid an imminent public disaster
II.
a.
i.
Negligence
Definition
Restatement 3d Section 3
1.
A person acts with negligence if the person does not exercise reasonable care under the
circumstances.
2.
ii.
b.
i.
ii.
Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable
care are the foreseeable likelihood that it will result in harm, the foreseeable severity of the
harm that may ensue, and the burden of precautions to eliminate or reduce the risk of
harm.
Rule
a.
A person is liable for negligence if the person does not exercise reasonable care under
the circumstances. Restatement (Third) Section 3. One must consider the likelihood of
harm, the foreseeable level of severity of the harm, and the burden of preventing or
reducing the risk of harm. Restatement (Third) Section 3.
Duty
Generally
1.
A person generally has a duty to exercise reasonable care when conduct creates a risk of
harm. Restatement (Third) Section 7.
2.
Does the law recognize a relationship between the parties such that D owes P a duty of
care?
Standard of care
1.
Who is the reasonable person?
a.
A reasonably prudent person would exercise under like circumstances
b.
Must recognize the risks a reasonable person would foresee and act
c.
Objective standard
d.
Minors – depends on age, whether or not they are engaging in “adult activities”
2.
Superior Skills and Abilities
a.
Rule
i.
Under the “reasonable person” standard, a person’s special skills and qualities
should be taken into consideration. Restatement (Third) Section 12.
b.
Restatement 2d Section 298(d)
i.
The actor must utilize with reasonable attention and caution not only those qualities
and facilities which as a reasonable man he is required to have, but also those
superior qualities and facilities which he himself has.
c.
Restatement 3d Section 12
i.
If an actor has skills or knowledge that exceed those possessed by most others,
these skills or knowledge are circumstances to be taken into account in determining
whether the actor has behaved as a reasonably careful person.
3.
Children
a.
Possibilities
i.
Child of like age, intelligence, and experience
1.
Schomp
ii.
Under age X, no liability; above age X, treated as a reasonable child of like age
experience
1.
Restatement 3d Section 10 Under 5 Rule
iii.
Under age X, no liability; above age X, various rebuttal presumptions
1.
Rule of sevens
b.
Adult Activities - Restatement 3d Section 10
i.
“The Adult standard of care applies “when the child is engaging in a dangerous
activity that is characteristically undertaken by adults.”
4.
Physical Impairments
a.
Restatement 3d Section 11(a)
i.
“The conduct of an actor with a physical disability is negligent only if the conduct
does not conform to that of a reasonably careful person with the same disability.”
5.
iii.
Mental and Emotional Impairments
a.
Restatement 3d Section 11(c)
i.
“An actor’s mental or emotional disability is not considered in determining whether
the conduct is negligent, unless the actor is a child.”
b.
Lynch v. Rosenthal
i.
P Lynch has a developmental disability, very low IQ; lives and works on D’s farm.
1.
While walking next to the corn picker, P falls into it and injures his arm.
a.
P sues D for not warning him not to stand too close to the picker.
b.
D argues that P was contributorily negligent in walking too close to the
picker.
2.
When faced with a mentally impaired individual, one must exercise care by
warning impaired person of dangers
c.
Comparative Negligence
i.
Was the D obliged to take precautions based on their knowledge of P’s mental
impairment? Speaks to P’s prima facie case for negligence; D’s standard of care.
ii.
Did the P fail to act reasonably to protect themselves? Speaks to D’s defense; P’s
standard of care.
d.
Quiz
i.
The common test for determining whether a risk apparent to one in the position of
the actor is unreasonable involves a consideration of which of the following factors?
ii.
The probability of injury. The gravity or seriousness of the injury, if it occurs. The
burden of adequate precautions. All of the above.
iii.
In which of the following situations is a minor most likely to be held liable to the
standard of a reasonable adult?
iv.
A twelve-year-old drives a motorboat in the presence of her parents. A child who
is engaging in a dangerous activity that is characteristically undertaken by adults is
held to the standard of a reasonable adult under the circumstances. Restatement
(Third) of Torts § 10(a) (2005).
v.
A child is typically held to which of the following standards of care?
vi.
A reasonable child of similar age, judgment, and experience.
vii.
A reasonable person does not engage in conduct that results in _____.
viii.
An unreasonable risk of harm.
Special Duties
1.
In General
a.
An affirmative duty to act/protect may arise if the D has a special relationship with the P
(or with the dangerous instrumentality that causes P harm).
i.
Innkeeper/Guest
ii.
Business/Customer
iii.
Parent/Child
iv.
Common Carrier/Passenger
v.
Doctor/Patient
vi.
Employer/Employee
vii.
School/Student
b.
Restatement 3d Section 40, comment h
i.
“No algorithm exists to provide clear guidance about which policies in which
proportions justify the imposition of an affirmative duty based on a relationship.“
c.
Quiz
i.
Which of the following is likely to be required before a court recognizes an
affirmative obligation on the part of an individual to warn about a possible danger
posed by another individual as part of a duty of reasonable care?
ii.
A special relationship between two of the parties. A serious threat of potential harm.
A readily identifiable victim or victims of such harm. All of the above.
iii.
While shopping at a retail clothing store, Solomon trips over his untied shoelaces
and falls. As he falls, he hits his head on the corner of a display table. Solomon falls
unconscious to the floor with blood running out of a cut on his forehead.
iv.
If the relevant jurisdiction follows the reasoning in Drew v. Lejay's, the store will
fulfill its duty to Solomon by summoning medical assistance within a reasonable
time.
v.
Three teenage boys watch for several minutes as a man drowns in a nearby lake. The
boys could have easily saved the man from drowning without any significant risk to
themselves. The family members of the man bring a wrongful death action against
the boys, alleging they were negligent in not rescuing the man.
vi.
The boys will be deemed to have breached a duty if they had a special relationship
with the man.
2.
Innkeeper/Guest
a.
Restatement 3d Section 40
i.
Rest. 3d § 40: Duty Based on Special Relationship With Another
1.
(a) An actor in a special relationship with another owes the other a duty of
reasonable care with regard to risks that arise within the scope of the
relationship.
2.
(b) Special relationships giving rise to the duty provided in Subsection (a) include:
a.
… (2) an innkeeper with its guests
b.
Gress v. Lakahani Hospitality, Inc.
i.
Claims against:
1.
General landowner liability (premises liability):
a.
Duty of reasonable care with respect to activities and conditions on the
property
b.
No duty to protect against criminal acts of third parties - unless there’s a
“special relationship”
2.
Negligent hiring and retention
3.
Negligent training and supervision
4.
Vicarious liability?
ii.
A hotel has an affirmative duty arising out of the special relationship between a
hotel and a guest to protect the guest against third-party criminal attacks.
3.
Mental Health Professionals
a.
Tarasoff v. Regents
i.
When a therapist learns from his patient about intent to do harm to a third party,
the therapist has a duty to take reasonable precautions given the circumstances to
warn the potential victim of danger.
ii.
History
1.
History: In a criminal trial, Poddar was convicted of 2nd degree murder. A retrial
was ordered, but the state let him move to India.
2.
After the criminal trial, the Tarasoff family brought a civil suit against the
University, therapists, and police.
3.
Trial court dismissed complaint against all Ds.
4.
Court of Appeals affirmed.
iii.
Victim Identifiability
1.
After Tarasoff, CA legislature granted immunity for failure to warn except where
there is a reasonably identifiable victim
2.
Majority of courts require a reasonably identifiable victim for a duty to warn
4.
Landowners
a.
Varies on type of plaintiff:
i.
Trespasser (and type of trespasser)
1.
Regular
2.
Known
3.
Foreseeable/constant
4.
Child
5.
Flagrant
b.
And type of injury:
i.
Dangerous Activity
ii.
Dangerous Condition
1.
Open and obvious, or hidden
2.
Artificial or natural
c.
Flagrant Trespassers
i.
Alexander v. Medical Association Clinic
1.
A landowner does not owe a trespasser a duty of reasonable care under the
circumstances.
ii.
Flagrant Trespassers - Restatement 3d Section 52
1.
The only duty owed to “flagrant” trespassers is to avoid acting in an intentional,
willful, or wanton manner causing physical harm.
2.
But, must exercise reasonable care for flagrant trespassers who reasonably
appear to be imperiled and (1) helpless, or (2) unable to protect themselves.
d.
Children
i.
Bennett v. Stanley
1.
A possessor of land is liable for harm to a child trespasser caused by an artificial
condition if the possessor knows or has reason to know that children are likely to
trespass near the condition, the possessor knows or has reason to know that the
condition causes an unreasonable risk of serious injury to child trespassers, the
children because of their youth do not discover the condition or recognize the
risk involved, the utility of the condition to the possessor and the cost of
eliminating the danger are slight compared to the risk to child trespassers, and
the possessor fails to exercise reasonable care in eliminating the danger or in
protecting the child trespassers.
ii.
Restatement 2d Section 339Rest. 2d §339 (Attractive Nuisance Doctrine)
1.
Landowner must exercise reasonable care to trespassing children if:
a.
D knows or has reason to know that children are likely to trespass;
b.
D knows or has reason to know of a dangerous artificial condition on his
property that involves an unreasonable risk of death or bodily harm;
c.
Children do not know the condition or its risk;
d.
Utility of the condition to D is low; burden of prevention is low compared to
the risk.
e.
Licensee v. Invitee
i.
Licensee
1.
Social guest (enters the property with the owner’s express or implied consent).
2.
Warn of known, hidden, dangerous conditions
ii.
iii.
iv.
f.
i.
ii.
iii.
iv.
v.
Invitee
1.
Business guest (enters the property for purposes connected to the owner’s
business); or public invitee.
2.
Duty: inspect and warn/correct for hidden dangers
Cases
1.
Sitt v. Holland Abundant Life
a.
A visitor must show that a landowner’s premises were held open for a
commercial purpose in order to establish invitee status for a premisesliability claim.
2.
Dos Santos v. Coleta
a.
Even if a landowner has no duty to warn of an open and obvious danger on
his property, the landowner has a duty to remedy a danger he created and
maintained knowing that visitors would choose to encounter it despite the
obvious risk.
Abandoning the Common Law Approach
1.
Many states merge the invitee/licensee category and impose on those
landowners a single duty of reasonable care
2.
Rowland v. Christian
a.
“A man’s life or limb does not become less worthy of protection by the law
nor a loss less worthy of compensation under the law because he has come
upon the land of another without permission or with permission but without
a business purpose.”
3.
Restatement 3d Section 51 General Duty of Land Posessors
i.
A land possessor owes a duty of reasonable care to entrants on the land
with regard to:
ii.
conduct that creates risks;
iii.
artificial conditions that pose risks;
iv.
natural conditions that pose risks; and
v.
other risks, when other affirmative duties (special relationships) apply
4.
Texas: Premises Liability
a.
Maintains traditional status distinctions
Quiz
Which of the following individuals would not be classified as an invitee in a
jurisdiction that retains the traditional landowner/occupier distinctions?
The salesperson who knocks on the door of an individual's residence with the hope
of selling a product and slips and falls on the front porch.
A hiker sustained a head injury when he was struck by a limb that fell from a tree. At
the time of his injury, the hiker was walking through a forest on a private property
without the property owner's knowledge or permission. It was determined that the
limb fell because the tree was dying and the limb was rotten. In an action by the
hiker against the property owner to recover for his head injury, will the hiker be
likely to prevail in a jurisdiction that retains the traditional landowner/occupier
distinctions?
No, because the property owner breached no duty to the hiker, who was a
trespasser.
Paulie is a five-year-old boy. His next-door neighbor, Dolores, owns a dog that she
knows that Paulie sometimes likes to come play with in Dolores' backyard. Dolores
has also installed a barbed-wire fence around her garden in the yard in order to keep
out the dog and other animals. One day, Paulie entered the yard without Dolores'
permission to go play with the dog. Due to his lack of dexterity as a five-year-old,
Paulie accidentally trips and lands on the barbed-wire fence. Paulie suffers injury as
a result. What duty of care Dolores owe to Paulie in a jurisdiction that retains the
traditional landowner/occupier distinctions?
vi.
Reasonable care. However, under the attractive nuisance doctrine, a possessor of
land may owe a duty of reasonable care to trespassing children if, inter alia, the
possessor has reason to know that an artificial condition exists on the land where
children are likely to trespass and that poses an unreasonable risk of harm to such
children due to their youth. Here, Dolores knew or should have known that Paulie
would enter the land and that, due to his youth, the fence posed a serious risk of
injury. As such, she owed Paulie a duty of reasonable care.
5.
Public Actors
a.
History
i.
Background
1.
Sovereign immunity protects the state from tort liability
2.
Today, absolute sovereign immunity has been mostly abolished by statute, via
Federal Tort Claims Acts and state TCAs
ii.
Federal Tort Claims Act
1.
Allows injured parties to bring common law tort claims against the federal
government, with some limitations
2.
Procedural restrictions
a.
P must first submit claim to appropriate claim to appropriate agency
b.
Claim must be brought in federal court
c.
Must be a bench trial
3.
U.S. retains immunity for:
a.
Government activities (military, mail, etc.)
b.
Discretionary functions (policy decisions, allocating funds)
c.
Claims arising out of many intentional torts
i.
Except: U.S. can be liable for intentional torts committed by
“investigative or law enforcement officers” (1974)
b.
42 USC Section 1983
i.
FTCA allows injured parties to bring common law tort claims against the federal
government, with some limitations. But government actors may also be subject to
statutory tort claims: 42 USC §1983 civil rights claims
1.
A person acting “under color of law” will be liable, but only if their conduct
violates “clearly established statutory or constitutional rights of which a
reasonable person should have known.”
a.
Very narrow interpretation of “clearly established”
2.
§1983 permits suits against individual actors, but not against government
employers unless there’s an “official policy”
c.
Discretionary Functions
i.
Anderson v. State
1.
No liability for the exercise of discretionary functions
2.
A governmental decision is subject to discretionary-function immunity if it
involves the exercise of judgment and is supported by social, economic, or
political policies.
d.
Public Duty to Who?
i.
Riss v. NY
1.
Duty to everybody means a duty to nobody
2.
e.
i.
f.
i.
Absent legislation creating liability, a municipality is not liable in tort for a
government service’s failure to protect the public from criminal activity.
Special Relationship
Cuffy v. City of NY
1.
Factors
a.
City assumes an affirmative duty to act
b.
City knows that inaction will lead to harm
c.
Direct contact between the city agents and the injured P
d.
P justifiably relies on city’s promise
2.
A municipality may not be held liable for injuries caused by a negligent failure to
provide police protection, unless a special relationship existed between the
municipality and the injured party.
Coleman v. East Joliet Fire Protection
A series of problems after Coretta Coleman calls 911 to report difficulty breathing
1.
Transfer of phone calls between Will County and Orland County police dispatch
2.
EMTs can’t get into Coleman’s house
ii.
iii.
iv.
v.
vi.
1.
2.
vii.
1.
2.
3.
4.
c.
i.
ii.
Services and Telephone Systems Act provides statutory immunity for 911 and EMS,
unless there is “willful or wanton misconduct.”
Trial court grants D’s MTD on negligence claims
Then, trial court grants D’s MSJ on willful/wanton claims, finding that under public
duty doctrine, there was no duty owed to P.
Appeals court affirms.
IL Supreme Court reverses and remands:
The question of whether a duty is owed is separate from the question of
whether there is immunity.
But it’s time to abandon public duty doctrine!
Why abandon public duty doctrine?
Illinois jurisprudence has been “muddled and inconsistent”
Public duty rule is “incompatible with the legislature’s grant of limited immunity
in cases of willful and wanton misconduct”
It’s up to the legislature to set public policy; statutory immunity has “rendered
the public duty rule obsolete”
“[T]he underlying purposes of the public duty rule are better served by
application of conventional tort principles and the immunity protection afforded
by statutes than by a rule that precludes a finding of a duty on the basis of the
defendant's status as a public entity.”
Breach
Generally
1.
Did D breach a duty to P by violating the standard of care?
Learned Hand Formula
1.
Negligence = B < PL
2.
D is negligent if the Burden [cost, inconvenience, infringement on personal freedom,
societal value of the activity] of preventing a foreseeable harm was less than the Probability
of Loss/injury occurring. Or more precisely (see The Margherita), Negligence = B < Δ PL
3.
Carroll Towing
a.
History: At trial, judge found that:
i.
Grace Line (employer of harbor master) and Carroll Towing (owner of tug) were
negligent in adjusting the Anna C’s lines;
4.
5.
6.
iii.
1.
2.
3.
ii.
But Conners (owner of barge) was not negligent in failing to have a bargee on board.
iii.
Everyone appeals
Indiana Consolidated Insurance v. Mathew
a.
In a negligence action, a person is held to the ‘reasonable person in like circumstances’
standard, which values human life over property and applies even in the face of a
sudden emergency not of the person’s own making.
Fresca v. Prudential-Grace Lines
a.
A defendant does not breach his duty of reasonable care to guard against foreseeable
risks if a risk is obvious and known to the plaintiff and if it is not reasonably foreseeable
to a reasonably prudent man in the defendant’s position that the plaintiff would not
take steps to protect himself against the known risk of harm.
Quiz
i.
Which of the following statements most accurately describes the relevant rule
regarding industry custom and breach of duty?
ii.
A defendant's failure to conform its conduct to a relevant industry custom is
strong evidence of breach of duty.
iii.
A state statute requires that all motorized vehicles have their headlights on at least
20 minutes before sundown. Don did not have his headlights turned on after
sundown when he collided with Pam's car, injuring Pam. If the court determines that
the negligence per se rules apply, which of the following statements is most
accurate?
iv.
Don's violation of the statute establishes a breach of duty.
Negligence Per Se
Rule
a.
A person is negligent per se if 1) the person violates a statute that allows for an action to
occur and 2) the type of action is one that the statute is designed to prevent.
Restatement (Third) Section 14.
b.
In order for a person to be found liable for negligence per se, he must not only be
violating a statute, but also the resulting action must be the type of action the statute is
designed to prevent. Restatement (Third) Section 14.
c.
Most states that apply negligence per se apply it to both administrative regulations as
well as statutes. Restatement (Third) Section 14, comment a.
Definition
a.
Negligence per se permits an issue that ordinarily would be decided by a jury (standard
of care/breach) to be taken away from the jury
b.
Majority: violation conclusively establishes negligence as a matter of law
Elements
a.
Violation (no excuse)
i.
Rest. 3d §15: An actor's violation of a statute is excused and not negligent if:
1.
the violation is reasonable in light of the actor's childhood, physical disability, or
physical incapacitation;
2.
the actor exercises reasonable care in attempting to comply with the statute;
3.
the actor neither knows nor should know of the factual circumstances that
render the statute applicable;
4.
the actor's violation of the statute is due to the confusing way in which the
requirements of the statute are presented to the public; or
5.
the actor's compliance with the statute would involve a greater risk of physical
harm to the actor or to others than noncompliance.
ii.
Winger v. CM Holdings
1.
iv.
If violation of a municipal ordinance is not legally excused, injuries resulting from
violation of the ordinance are actionable as negligence per se.
b.
Statutory Intent – protecting this class of persons from this kind of harm
i.
Rest. 3d §14: An actor is negligent if, without excuse, the actor violates a statute that
is designed to
1.
protect against the type of accident the actor’s conduct causes, and if the
accident victim is within
2.
the class of persons the statute is designed to protect.
3.
Lots of variability in assessing statutory intent
4.
Consider Rest 3d §14, Illustration 3 (p. 91)
5.
Consider “Male animals running at large” statute (L&B p. 119)
c.
Causation – causal link between violation and injury
i.
Cause in Fact: Would complying with the statute have actually prevented this
injury?
ii.
Proximate Cause: Is this injury within the scope of risks that might foreseeably arise
from a violation of that statute?
4.
Licensing
a.
Many, but not all jurisdictions reject the idea that you can be NPS just by failing to have
a license
Custom & Professional Practices
1.
Custom as the Standard of Care
a.
Custom Can Be Used:
i.
By Plaintiff, as a sword, defendant’s deviation from custom as evidence of lack of
due care
ii.
By defendant, as shield, compliance with custom as a defense, as evidence of due
care
b.
Cruz v. NYC Transit Authority
i.
Evidence of a departure from a generally accepted industry practice, custom, or
usage is admissible to prove negligence.
c.
The TJ Hooper
i.
A business may be liable for failing to adopt new technology, even if the industry has
not widely adopted it, if the use of the technology constitutes reasonable prudence.
d.
Wal-Mart Stores v. Wright
i.
In a negligence action, the appropriate standard to be applied to a defendant’s
conduct is whether he objectively exhibited ordinary care that a reasonably prudent
person would have exercised under like circumstances, rather than a subjective
standard held by the particular defendant.
2.
Professional Negligence: Medical Custom
a.
Generally
i.
Did the health care professional exercise the degree of judgment and skill that a
reasonable professional would exercise?
1.
Compliance with medical custom is typically dispositive
2.
Very rare exceptions to the rule that medical custom is dispositive in medicine
3.
And even then, juries still must rely on expert testimony
b.
Expert Testimony
i.
Federal Rule of Evidence 702: An expert with appropriate education and experience
may testify as to issues that will assist the trier of fact.
ii.
Expert testimony must be both relevant and reliable. (Daubert, 1993)
1.
Reliable means:
c.
i.
d.
i.
e.
i.
ii.
iii.
iv.
f.
i.
ii.
iii.
iv.
a.
Based on supporting facts or data
b.
The product of scientifically valid principles and methods
Sheeley v Memorial Hospital
A physician has a duty to practice with the same degree of skill and diligence as
other members of the profession in the same type of practice.
Variations in Practice Standards
Most jurisdictions consider standards like the following:
1.
Respectable minority
2.
Two schools of thought
3.
Honest error in judgment
Informed Consent
Standard of Care/Breach: Varying standards of care re: disclosure, depending on
jurisdiction (MD standard vs. patient standard)
Decision Causation: A reasonable patient, if provided with full disclosure, would
have declined the procedure (similar to causation in fact)
Injury Causation: The patient’s injury was actually caused by the undisclosed risk
(similar to proximate causation)
Exceptions
1.
Emergency/lack of consciousness/incapacity
2.
Public health emergency (rare)
3.
Patient waiver
4.
“Therapeutic privilege” (extremely rare)
a.
Burden rests on MD to show the privilege exists.
Scope of Disclosure
In General
1.
Requires information about:
a.
Diagnosis and prognosis
b.
Proposed treatment, incl. risks and benefits
c.
Alternate treatments, incl. risks and benefits
d.
Consequences of no treatment or “watchful waiting”
Two Standards
1.
Professional: What would the reasonable MD disclose?
a.
Criticism: If the purpose of informed consent law is to ensure a patient’s
ability to make an autonomous decision, why leave scope of disclosure to the
MD?
2.
Prudent (objective) patient: What would the reasonable patient need/expect?
a.
Criticism: Negligence typically looks to the conduct of the reasonable actor,
not the expectations of the victim!
Materiality
1.
Cost of treatment?
2.
Availability of social support resources?
3.
Legal implications of treatment?
4.
Social and ethical implications of treatment?
5.
MD’s health or disability status?
6.
MD’s history of substance abuse?
7.
MD’s malpractice or disciplinary history?
8.
MD’s financial conflicts of interest?
9.
MD’s conscientious objections?
st
1 Amendment
1.
v.
To what extent may state legislatures compel or restrict physician speech? See:
a.
Abortion informed consent laws
b.
Risks of suicide, breast cancer, infertility
c.
Fetus as a “unique living human being”
d.
Description and display of ultrasound images
e.
Access to governmental resources
f.
Medical marijuana
g.
Aid-in-dying
h.
Gun ownership
i.
Sexual orientation change efforts
No Breach - Res Ipsa Loquitor
a.
Defined
i.
Permits cases that normally might not reach a jury (because there’s no evidence of
breach) to be sent to the jury anyway
ii.
If P is unable, due to lack of information or access to evidence, to identify the
specific circumstances surrounding the D’s breach of duty
iii.
P must show by the preponderance of the evidence:
a.
An accident occurred that does not usually occur absent negligence
b.
The instrument of the accident is under d’s exclusive management and
control
iv.
Used by desperate plaintiffs when they don’t know what the breach was
b.
Consequences
c.
If P satisfies these elements, D’s MTD/MSJ will be dismissed
d.
The case goes to the jury, and the jury can infer negligence
e.
Then, burden of proof is shifted to D to disprove negligence
f.
“Doesn’t ordinarily occur without negligence”
i.
Eversole v. Woods
a.
It’s unusual for a recently repaired car to light on fire in the absence of
negligence
b.
To establish negligence based on res ipsa loquitur, a plaintiff must prove
facts from which it can be concluded that, more often than not, an
occurrence of the type that caused the plaintiff’s harm results from a failure
to exercise reasonable care by the party in control of the instrumentality that
caused the harm.
ii.
Deciutiis v. Six Flags
a.
If the source of the accident is too complex (requiring expert testimony
about engineering, for example), a jury can’t make this assessment
b.
A plaintiff may not rely on res ipsa loquitur to establish negligence if: (1) the
plaintiff fails to pursue direct evidence of negligence; (2) the incident
involved complex machinery, the design and operation of which is beyond
jurors’ common knowledge; or (3) the plaintiff fails to show the defendant’s
exclusive control over the injury-causing instrumentality.
iii.
Options
a.
If due care was used, it’s unlikely the injury would have occurred
b.
This kind of injury becomes more likely as a result of negligence than as a
result of due care
c.
This kind of injury usually results from negligence
iv.
Formula – see powerpoint
g.
Ybarra
i.
ii.
iii.
iv.
v.
d.
i.
ii.
The traditional RIL doctrine relieves the P of the obligation to identify the negligent
conduct
Usually, Plaintiff must still identify the negligent defendant
But in Ybarra, P was relieved of the obligation to identify the negligent defendant
*Note – Ybarra has been widely criticized
Where a plaintiff receives unusual injuries while unconscious and in the course of
medical treatment, all those defendants who had any control over his body or the
instrumentalities that might have caused the injuries may be held liable in an action
based on res ipsa loquitur.
Cause
Rule
1.
An action is a factual cause of harm when the harm would not have occurred without the
action. Restatement (Third) Section 26.
a.
Quiz
i.
Which of the following is sufficient to establish "harm" for purposes of a negligence
claim?
ii.
Loss or detriment. Owens-Illinois v. Armstrong makes clear that a mere change or
alteration is insufficient to qualify as “harm.” The plaintiff must suffer a loss or
detriment—“functional impairment”—as a result of the defendant’s negligence.
Causation in Fact
1.
“But-for” causation
a.
Defined
i.
Would D’s untaken precaution have more likely than not prevented P’s injury?
b.
Quiz
i.
Conduct is a factual cause of harm when ______.
ii.
The harm would not have occurred absent the conduct. (Jordan, Salinetro,
Restatement (Third) of Torts Section 26).
c.
Test
i.
Identify P’s injury
ii.
Identify D’s wrongful conduct
iii.
Correct for D’s wrongful conduct
iv.
Determine if P’s injury would still, more likely than not, have occur
d.
Cases
i.
Jordan v. Jordan
1.
A defendant’s negligent conduct does not constitute actionable negligence if the
injury to the plaintiff would have occurred even if the defendant had exercised
reasonable care.
2.
D didn’t look in the rearview mirror
ii.
Salinetro v. Nystrom
1.
A plaintiff must show causation in fact to succeed on a negligence claim, by
proving that the harm would not have occurred but for the defendant’s
negligence.
2.
D diidn’t ask P if she was pregnant
iii.
Dillon v. Twin State Gas & Electric
1.
Someone who causes a dangerous condition has a duty to reasonably protect
people likely to be exposed to the condition and not reasonably in fault for the
exposure.
2.
Not having exposed electric wires would have prevented P’s injury
2.
Multiple Defendants
a.
i.
ii.
iii.
iv.
b.
i.
ii.
Loss of chance
Exception to Causation in fact
Lord v. Lovett
1.
3 approaches
a.
Minority approach – preponderance of the evidence. If P proves that P was
deprived of at least a 51% chance of recovery to begin with would never be
able to prove causation. All or nothing result.
b.
Relaxed causation approach – if P proves that D’s negligence more likely than
not increased the harm or destroyed a substantial possibility of a favorable
outcome, P recovers full damages
c.
Lost chance standard – if P proves that D’s negligence more likely than not
increased the harm or destroyed a substantial possibility of a favorable
outcome, P recovers those damages actually attributable to D’s negligence
i.
In a medical malpractice case, a plaintiff may recover for loss of
opportunity when the defendant’s negligence deprives the plaintiff of a
substantially better result, even if the chances of a better result were fifty
percent or less.
Pure loss of chance doctrine:
1.
The injury we compensate for is not death; the injury is simply a loss of chance of
survival.
2.
This satisfies traditional causation principles; the P’s burden of proof on
causation is unchanged.
3.
P must show “to a reasonable degree of medical certainty, [that the D’s
malpractice] caused the increased risk of harm or lost chance of recovery.”
Holton v. Memorial Hospital (IL 1997).
Holton v. Memorial Hospital
1.
“Disallowing tort recovery in medical malpractice actions on the theory that a
patient was already too ill to survive or recover may operate as a disincentive on
the part of health care providers to administer quality medical care to critically ill
or injured patients.”
2.
Criticism of Lost Chance
a.
Produces Inaccurate results in every case
b.
Under lost chance,
i.
The 25 patients who would have otherwise lived get only a fraction of
their damages
ii.
The 75 patients who would have died anyway are overcompensated
Substantial Factor Test
Exception to Causation in fact
Multiple Sufficient Causes
1.
If multiple acts occur that would each have been the sufficient cause of the
harm, each cause is a factual cause of the harm. Restatement (Third) Section 27.
2.
When it seems like neither defendant is the cause
3.
Anderson v. Minneapolis
a.
Someone who negligently starts a fire may be liable if the fire damages a
property in combination with a fire of unknown origin, and either fire would
have damaged the property independently of the other, if the negligently
started fire was a material factor in the destruction.
4.
5.
6.
7.
a.
b.
c.
8.
a.
b.
9.
c.
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
If two defendants are both at fault, and the harm would not have occurred
without the actions of both defendants, then both defendants are liable.
Anderson vs. Minnesota.
If two defendants are at fault, and the harm would have occurred regardless of if
either defendant used due care, then both defendants are liable. Ford v.
Boomer.
Damages are apportioned in proportion to fault
Necessary/Additive Causes
Apply but for test: if D1 had acted with due care, would the harm still have
occurred? If no, then both defendants are at fault. The harm required a
combination of factors.
In other words, defendant 1
Example: two polluters
Sufficient/Duplicative/Redundant Causes
Apply but for test: if D1 had acted with due care, would the harm still have
occurred? Yes, because D2 would have caused harm instead
Example: multiple fires
Exception
Multiple negligent defendants, each would be sufficient to cause P’s loss
a.
Quiz
Dante drives his car in a negligent fashion. Denise drives her car in a slightly more
negligent fashion. The two cars collide, spin out of control, and crash into Polly, a
nearby pedestrian. Had they not collided, both cars would have passed Polly without
incident. Polly suffers $100,000 in damages. Which of the following statements best
describes the negligence of Dante and Denise?
Both were necessary causes of Polly's injuries and are causes in fact.
Plaintiff sues two defendants. The jury finds Defendant 1 to have been 70% at fault
for Plaintiff's injuries and Defendant 2 to have been 30% at fault. Plaintiff's damages
are $100,000. Which of the following statements concerning Plaintiff's right to
recover most accurately describes Plaintiff's right in a traditional joint and several
liability jurisdiction?
Plaintiff could recover $100,000 from Defendant 1 but Defendant 1 would have a
right of contribution in the amount of $30,000 from Defendant 2.
Plaintiff sues 2 defendants. The jury finds Defendant 1 to have been 70% at fault for
Plaintiff's injuries and Defendant 2 to have been 30% at fault. Plaintiff's damages are
$100,000. Which of the following statements regarding Plaintiff's right to recover
most accurately describe Plaintiff's right in a pure several liability jurisdiction?
Plaintiff could only recover $70,000 from Defendant 1.
Alice is diagnosed with cancer. Her physician attributes the cancer to Alice's
exposure to radioactive substances associated with uranium. There are two uranium
mines near Alice's house, both of which negligently released radioactive substances
associated with uranium. Alice was exposed to these substances from both sources
during the relevant time period. Both defendants released uranium in quantities
that, standing alone, would have been sufficient to cause cancer. Can Alice satisfy
the causation in fact requirement with respect to both defendants?
Yes, because the negligence of each defendant was a sufficient cause of (or a
substantial factor in causing) her injuries. Answer (B) accurately summarizes the
multiple sufficient cause test from Boomer and the Restatement (Third) that is
used in cases with multiple causes. As stated in Boomer, “If multiple acts occur,
ix.
x.
xi.
xii.
xiii.
xiv.
d.
i.
ii.
iii.
iv.
v.
each of which alone would have been a factual cause of the physical harm at the
same time in the absence of the other act(s), each is regarded as a factual cause of
the harm.”
Alice was playing golf when she was struck in the head by a golf ball. Evidence
establishes that the ball came from the driving range adjacent to the hole Alice was
playing. In order for a ball to have hit her, the person hitting the shot had to have
failed to exercise reasonable care in terms of where the individual was aimed.
Evidence also establishes that there were only three golfers on the driving range at
the relevant time, but this is the only evidence as to what happened. Alice is unable
to identify which golfer hit the ball that hit her head, but she sues all three for
negligence. Can Alice satisfy the causation in fact requirement with respect to each
defendant?
At first glance, this sounds like an alternative liability/Summers v. Tice type of
case. This test applies when each of a small number of defendants was negligent
and the negligence of one of them caused the plaintiff’s injuries, but the plaintiff is
unable to identify which defendant actually caused the harm. If that is the case,
the burden shifts to each defendant to establish that he was not the cause. That
sounds like Summers v. Tice. But unlike in Summers v. Tice where both defendants
failed to exercise reasonable care, there is no evidence here that all three golfers
were negligent. It may have been only one. Therefore, the alternative liability rule
should not apply. And since Plaintiff cannot establish that it was any more likely
that it was Defendant 1’s negligence who caused the injury than it was the
negligence of Defendant 2 or Defendant 3, Plaintiff is unlikely to be able to satisfy
the causation in fact requirement with respect to any of the defendants
Alice sought treatment for cancer, caused by her exposure to radioactive substances
associated with uranium. When she first sought treatment from her doctor, she had
only a 35% chance of recovery with proper treatment. The doctor was negligent in
her treatment of Alice's cancer, and Alice died soon thereafter. Alice's estate brings
a wrongful death action against Alice's doctor. Could the estate satisfy the causation
in fact requirement?
Yes, on a loss of opportunity (or loss of chance) theory.
Dante drives his car in a negligent fashion. Denise drives her car in a slightly more
negligent fashion. The two cars collide, spin out of control, and crash into Polly, a
nearby pedestrian. Had they not collided, the two cars would have passed Polly
without incident. Polly suffers $100,000 in damages. Could Polly establish that the
negligent acts of Dante and Denise were causes in fact of Polly's harm?
The negligence of both actors was necessary to cause the harm. With the
negligence of either, there would have been no harm to Polly.
Alternative Liability
If multiple acts occur and it is impossible to know which defendant cause the harm,
each defendant can contend that it is the other defendant’s fault. Restatement
(Third) Section 27, comment E.
Exception to Causation in fact
Only one D is the cause (both are negligent), but it’s impossible to know which one
Where P is injured by one of two negligent Ds, but can’t prove which one, the
burden shifts to each D to prove that they were not the cause in fact of P’s injury. If
neither D is able to disprove causation, each is jointly and severally liable for the
full amount of damages.
Summers v. Tice
1.
When two defendants may be responsible for the harm, but it is impossible to
know which one, the burden shifts to the defendants to prove that they were
not the cause in fact of the plaintiff’s injury. Summers v. Tice.
2.
Multiple negligent defendants, only one of whom is the but-for cause, but we
don’t know which one
3.
Burden shifts to defendants to disprove causation
4.
Under the doctrine of alternative liability, two independent tortfeasors may be
held jointly liable if it is impossible to tell which one caused the plaintiff's
injuries, and the burden of proof will shift to the defendants to either absolve
themselves of liability or apportion the damages between them.
vi.
Byrne v. Boadle
1.
I can identify the D who breached a duty, but I can’t identify the specific breach
that caused injury.
2.
If injury of a type that does not typically occur without negligence does occur,
negligence is presumed from the mere fact of the occurrence.
e.
In Practice
i.
Where P has established duty/breach for two or more Ds, the burden shifts to each
D to prove he wasn’t the cause (like substantial factor test for multiple sufficient
causes)
ii.
All responsible parties must be joined (unlike substantial factor test for multiple
sufficient causes)
iii.
If neither D can disprove causation, liability is apportioned:
1.
Via joint liability if it’s a single harm/injury
2.
Via several liability if it’s a divisible harm
f.
Exception
i.
Multiple negligent defendants, only one is the but-for cause
3.
Market Share Liability
a.
Exception to Causation in fact (variant on alternative liability)
b.
Where P is injured by one of several negligent manufacturers of a fungible product, but
can’t prove which one:
i.
P may sue a substantial share of the negligent D’s
ii.
The burden shifts to each D to disprove causation
iii.
Otherwise, liability/damages are apportioned by market share
c.
Appropriate only when:
i.
Fungible product
ii.
P is unable to identify the source
iii.
Substantial passage of time
d.
Sindell v. Abbott Labs
i.
P must sue a “substantial share” of manufacturer Ds (Ds may implead others).
1.
Burden then shifts to each D to disprove causation
2.
Liability apportioned by way of market share, and P gets only that share of
damages
e.
Martin v. Abbott Labs
i.
P may sue just one manufacturer D (D may implead others).
1.
Burden then shifts to each D to disprove causation
2.
Liability apportioned equally (unless a D can rebut this presumption), and P gets
100% of Damages
f.
See PowerPoint for other cases
g.
Exception
iii.
i.
Multiple negligent manufacturers of fungible products, only one is the but-for cause
4.
Apportionment of Damages
a.
Applicable only to indivisible harms
b.
Types of Apportionment
i.
Joint and Several Liability
1.
Each D is responsible for the full damage award (but P only collects once).
Allocates risk to the negligent D’s, not the plaintiff.
ii.
Several Liability
1.
Each D is only responsible for their share of damages
2.
example
c.
Key Terms
i.
Satisfaction
1.
When P recovers the full amount of damages, P may not recover beyond that
ii.
Contribution
1.
A defendant who pays more than their share of damages can bring a claim
against other defendants to recover
iii.
Set-Off
1.
Reduction in judgment if P has already received a settlement from one
Defendant
iv.
Indemnification
1.
Shifting the loss among defendants so that the one who actually caused the
damage pays
d.
Texas
i.
Section 33.013 of the Texas Civil Practice and Remedies Code:
1.
All liable defendants are jointly and severally liable when:
2.
“the percentage of responsibility attributed to the defendant with respect to a
cause of action is greater than 50 percent.”
3.
If the defendant acted in concert with another person (with the specific intent to
do harm) to engage in conduct that is described in certain provisions of the penal
code
4.
TEX also has Contribution: if a D pays more than his pro rata share, he can seek
contribution
ii.
Steps
1.
Apportioning fault among tortfeasors for the purpose of calculating plaintiff’s
comparative fault. If plaintiff’s fault > 50%, no recovery
2.
Apportioning fault among tortfeasors for the purpose of calculating defendants’
comparative fault
3.
Apportioning damages among defendants (based on the apportionment of fault
in Step 2) using joint and several liability rules
e.
Considerations
i.
P, if comparatively negligent
ii.
Ds currently before the court
iii.
Former Ds who have settled
iv.
Parties who can’t be sued (i.e., due to immunity)
v.
Parties who weren’t sued for other reasons (strategic)
Proximate Cause
1.
In General
a.
Restatement 3d Section 29
i.
ii.
b.
i.
ii.
iii.
c.
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
A person’s liability for negligence is limited to harms that could have been
reasonably foreseeable by the risk taken. Restatement (Third) Section 29.
“An actor’s liability is limited to those harms that result from the risks that made the
actor’s conduct tortious.”
How to Approach
Identify the breach of duty
Come up with a list of injurious outcomes that could reasonably be foreseen as a
result of that breach
That’s the scope of proximate cause!
Quiz
Which of the following statements best describes the court's conclusion in Hughes v.
Lord Advocate regarding the proximate cause requirement of a negligence claim?
The element was satisfied because the general kind of harm that occurred was the
kind of harm foreseeably risked by the defendant's negligence, even though the
manner of occurrence was unforeseeable.
Austin drove his car in a negligent manner and collided with a car driven by Betty.
When Austin's car collided with Betty's car, the airbag in Betty's car went off. Betty is
82 years old. She wound up suffering a concussion, a broken wrist, and a dislocated
shoulder. Due to her advanced age and the blood thinners she had been taking prior
to the accident, Betty suffered symptoms from the concussion -- including increased
sensitivity to light and sound, impairment of speech, difficulty concentrating, and
sleep disturbances -- for several months. She still occasionally experiences these
symptoms. Was Austin's negligence a proximate cause of Betty's injuries?
Yes, because Austin's conduct was a substantial factor in bringing about Betty's
injuries. This scenario is an illustration of the so-called eggshell plaintiff rule, which
imposes liability for the full extent of injuries caused, not merely those that were
foreseeable to the defendant. The severity of Betty’s injuries may not have been
foreseeable, but this does not prevent Austin’s negligence from being the
proximate cause of those injuries.
Which of the following best describes the approach in the Restatement (Third) of
Torts to the issue of proximate cause?
An actor's liability is limited to those physical harms that results from the risks that
made the actor's conduct tortious.
Pascual was shopping at the Meatland Grocery Store when he slipped and fell on the
contents of a bottle of ranch dressing that had fallen on the floor and that Meatland
had negligently failed to clean up. Pascual knew that his wife Anita was in the next
aisle over, so he called out, "Anita, come here!" Anita began walking quickly to see
what Pascual wanted when another customer, pushing a cart, negligently collided
with Anita as she rounded the corner of the aisle. Anita now seeks to hold Meatland
liable for the injury she suffered when she attempted to reach Pascual. Was
Meatland's negligence a proximate cause of Anita's injuries?
No, because Anita was not within the class of people foreseeably put at risk by
Meatland's negligence.
Paul was in possession of a large sum of money, which he wanted to deposit at the
bank. But he was worried about the possibility of being mugged, since his bank was
in a high-crime area known for having a high rate of muggings. So, Paul's friend
Dexter volunteered to give Paul a ride. About halfway to the bank, Dexter changed
his mind and negligently kicked Paul out of the car while at a stoplight in the heart of
the high crime area. Noticing Paul's expensive clothes, two young ruffians physically
attacked Paul and stole his money. Was Dexter's negligence a proximate cause of
Paul's physical injuries?
x.
Yes, because the kind of harm that Dexter foreseeably risked through his
negligence was the kind of harm that occurred.
xi.
Meatland is a local grocery store. As a result of Meatland's negligent failure to clean
up a spill on one of its aisles, Pascual slips and falls. Pascual is not injured. At the
same time Pascual is still on the ground, a couple of drunk college students are
playing "football" with a big can of stewed tomatoes. One of the students throws
the can to the other. But due to the student's intoxication, he overthrows his
intended receiver and hits Pascual in the head, causing injury. Was Meatland's
negligence a proximate cause of Pascual's head injury?
xii.
No, because the negligence of the college students was a superseding cause of
Pascual's injury that breaks the chain of causation.
xiii.
A defendant is liable for all _______ by his negligent conduct and the class of
persons he put at risk by that conduct.
xiv.
General kinds of harms the defendant foreseeably risked.
2.
Foreseeability
a.
Thompson v. Kaczinski
1.
In 2009, the Iowa Supreme Court ruled that landowners do not owe a duty to
prevent trampolines from blowing onto public roads and injuring motorists. The
court found that the risk of a trampoline blowing onto a road is not foreseeable,
so landowners do not have to take steps to prevent it.
b.
Hughes v. Lord Advocate
1.
In 1963, the House of Lords ruled that the Post Office was liable for the injuries
of a 12-year-old boy who fell into an uncovered manhole. The court held that the
Post Office owed a duty of care to children who might be attracted to the
manhole, and that the Post Office's failure to cover the manhole was a breach of
that duty. The court also held that the boy's injuries were foreseeable, even
though the precise manner in which he was injured was not.
c.
Williams v. Stewart
1.
The Arizona Court of Appeals held that a landowner can be held liable for injuries
sustained by a person who was cleaning the landowner's pool if the landowner
was negligent in allowing the pool to become dirty. The case illustrates that
landowners owe a duty of care to people who are invited onto their property.
3.
Limiting Duty
a.
Palsgraf v. Long Island Railroad Co
1.
Palsgraf v. LIRR was a case in which the New York Court of Appeals held that the
Long Island Railroad was not liable for the injuries of a woman who was struck by
a scale that was dislodged when a man dropped a package containing fireworks.
The court found that the railroad's employees were not negligent in dropping
the package, and that the woman's injuries were not foreseeable.
2.
Cardozo’s View:
a.
Duty: Determines scope of liability; duty is limited to a defined class of
persons within a zone of foreseeable risk.
3.
Andrew’s View:
a.
Duty to avoid acts that unreasonably threaten the safety of others; this duty
extends to everyone.
4.
Modern Views:
a.
Shows how imperfect the proximate cause analysis. Courts use proximate
cause when they have misgivings about liability.
b.
Palsgraf only speaks to unforeseeable plaintiffs, not necessarily
unforeseeable outcomes.
c.
Palsgraf is irrelevant. Cardozo’s view is the minority view.
4.
Intervening Acts
a.
Rule
i.
An intervening force that is sufficient to prevent a person’s liability is a “superseding
cause”. Restatement (Third) Section 34.
ii.
When intervening acts are unforeseeable, unusual, or highly culpable, the risk is one
that exists independently of the person’s negligence and the original negligent
person is not held liable. Restatement (Third) Section 34, comment e.
b.
Watson v. Kentucky & Indiana Bridge & Rail
i.
Watson v. Kentucky & Indiana Bridge & Rail is a negligence case in which the
Kentucky Court of Appeals held that a railroad company was not liable for the
injuries of a bystander who was injured in an explosion caused by the railroad's
negligence. The court found that the railroad company was not liable because the
explosion was caused by the act of a third person, and that the railroad could not
have foreseen that the gasoline would be ignited by a lighted match.
ii.
Railroad company was not held liable by acts of an intervening third party if those
acts would not have been foreseeable given their negligence.
iii.
For example, in Watson v. Kentucky & Indiana Bridge & R. Co., the court found that a
railroad was not liable for negligence when an explosion occurred near their tracks.
The explosion was caused by a third party purposefully lighting a match and starting
a fire, so it was not a reasonably foreseeable outcome. Watson v. Kentucky &
Indiana Bridge & R. Co., 137 Ky. 619, 126 S.W. 146 (1910).
c.
Britton v. Wooten
i.
Britton v. Wooten, 817 S.W.2d 443 (Ky. 1991), was a case in which the Kentucky
Supreme Court held that a lessee could be held liable for the negligent conduct of its
employees, even if the lease agreement contained an exculpatory clause.
ii.
The court also held that Wooten was liable for the fire even though the fire was
caused by the negligence of its employees. The court reasoned that Wooten was in
control of the premises and that it had a duty to exercise reasonable care to prevent
fires. The court found that Wooten breached this duty by allowing its employees to
use a propane torch in a careless manner.
iii.
In Britton v. Wooten, a lessee was held liable for the negligent conduct of its
employees because it was in control of the premises and breached a duty by
allowing its employees to act negligently. Britton v. Wooten, 817 S.W.2d 443 (Ky.
1991).
d.
Fast Eddie’s v. Hall
i.
In Fast Eddie's v. Hall, the Indiana Court of Appeals held that a bar did not owe a
duty to protect a customer from the criminal acts of a third party, unless the bar
knew or should have known that the third party was dangerous.
e.
Criminal Acts in General
i.
If the criminal act is unforeseeable, proximate causation is usually cut off (but not
always)
ii.
But if the reason D1’s act was careless was because it increased the likelihood of
criminal harm by D2, proximate cause always extends
f.
Eggshell Plaintiffs
i.
g.
i.
ii.
h.
i.
ii.
iii.
e.
Benn v. Thomas
1.
Iowa Supreme Court held that a defendant is liable for the full extent of a
plaintiff's injuries, even if the plaintiff had a pre-existing condition that made
them more susceptible to injury.
Injured Rescuers
Rule
1.
If a rescuer is harmed while trying to provide aid to a negligent party, the
negligent party will be liable so long as the harm relates to the risk involved in
rescuing. Restatement (Third) Section 32
McCarter v. Davis
1.
Under the rescue doctrine, the original negligent party is not liable for injuries
sustained by a person who avoids placing himself at risk of danger and whose
purpose is to investigate whether assistance has been summoned.
Zokhrabov v. Park
Zokhrabov was injured when she was struck by a part of Hiroyuki Joho's body that
was propelled into the air after he was struck and killed by an Amtrak train.
Zokhrabov sued Joho's estate, alleging that Joho owed her a duty of care and
breached that duty by failing to keep a proper lookout for approaching trains.
The trial court granted summary judgment for Joho's estate, finding that Joho owed
Zokhrabov no duty of care because he was already dead when his body struck her.
The appellate court reversed, holding that Joho owed Zokhrabov a duty of care
because it was reasonably foreseeable that his body would be propelled into the air
and strike her.
The court reasoned that Joho's actions were "reckless and wanton," and that he
"acted without due regard for his own person and self-preservation." The court also
found that it was "reasonably foreseeable that the train would strike, kill, and fling
his body down tracks and onto platform where Plaintiff was awaiting next train."
Defenses
a.
Quiz
i.
Draymond drove his car in a negligent manner, resulting in an injury to Paolo, the
driver of another vehicle. Paolo was legally intoxicated at the time of the accident
and his intoxication contributed to the accident. The jury apportions 50% of the fault
to Paolo. The jury assesses Paolo's damages at $100,000. How much could Paolo
recover from Raymond in a negligence action in a jurisdiction that utilizes the
50%/"not as great as" approach?
ii.
0
iii.
Draymond drove his car in a negligent manner, resulting in an injury to Paolo, the
driver of another vehicle. Paolo was legally intoxicated at the time of the accident
and his intoxication contributed to the accident. The jury apportions 40% of the fault
to Draymond and 60% to Paolo. The jury assesses Paolo's damages at $100,000. How
much could Paolo recover from Raymond in a negligence action in a jurisdiction that
utilizes the pure form of comparative fault?
iv.
40k
v.
Which of the following statements concerning the traditional defense of express
assumption of the risk is most accurate?
vi.
The defense bars a plaintiff's recovery where a release agreement satisfies
contractual requirements and is not contrary to public policy.
vii.
Alice, a spectator at a golf tournament, is injured when a drive hit by Phil, a
professional golfer playing in the tournament, goes awry (despite Phil's best efforts)
i.
ii.
and hits Alice in the head. In a comparative negligence jurisdiction, which of the
following statements is most accurate?
viii.
The tournament organizers are not liable because they did not breach a duty of
care owed to Alice.
ix.
Which of the following statements concerning the traditional defense of implied
secondary assumption of the risk is most accurate?
x.
The concept is no longer treated as an all-or-nothing affirmative defense in
jurisdictions that adopted a form of comparative fault and instead may serve to
reduce a plaintiff's recovery in proportion to the plaintiff's fault.
xi.
Which of the following statements concerning the traditional defense of implied
primary assumption of the risk is most accurate?
xii.
The concept is no longer treated as an all-or-nothing affirmative defense in
jurisdictions that adopted a form of comparative fault and is instead analyzed as
an issue of duty or breach of duty.
xiii.
Draymond drove his car in a negligent manner, resulting in an injury to Paolo, the
driver of another vehicle. Paolo was legally intoxicated at the time of the accident
and his intoxication contributed to the accident. The jury apportions 90% of the fault
to Draymond and 10% to Paolo. The jury assesses Paolo's damages at $100,000. How
much could Paolo recover from Raymond in a negligence action in a jurisdiction in a
traditional contributory negligence jurisdiction?
xiv.
0
xv.
Draymond drove his car in a negligent manner, resulting in an injury to Paolo, the
driver of another vehicle. Paolo was legally intoxicated at the time of the accident
and his intoxication contributed to the accident. The jury apportions 50% of the fault
to Paolo and 50% to Draymond. The jury assesses Paolo's damages at $100,000. How
much could Paolo recover from Raymond in a negligence action in a jurisdiction that
utilizes the 51%/"not greater than" modified approach?
xvi.
50k
xvii.
Draymond drove his car in a negligent manner, resulting in an injury to Paolo, the
driver of another vehicle. Paolo was legally intoxicated at the time of the accident
and his intoxication contributed to the accident. The jury apportions 90% of the fault
to Draymond and 10% to Paolo. The jury assesses Paolo's damages at $100,000. How
much could Paolo recover from Raymond in a negligence action in a jurisdiction that
has adopted comparative fault principles?
xviii.
In a comparative fault jurisdiction, the fact that a plaintiff was at fault is not
automatically a bar to recovery. The questions that follow flesh out the different
forms of comparative fault in more detail. But in general, a plaintiff’s own
negligence reduces, but does not automatically prevent, the plaintiff’s recovery.
Privilege-Based Defenses
1.
Defendant engaged in tortious conduct, but their conduct was not blameworthy because it
was justified and thus should be excused:
a.
Self-defense
b.
Defense of property
c.
Necessity
True Defenses
1.
Defendant engaged in tortious and blameworthy conduct, but there are policy reasons not
to hold them liable:
a.
Plaintiff’s conduct: contributory/comparative negligence, assumption of risk
b.
Statute of limitations
iii.
1.
2.
3.
4.
5.
iv.
1.
c.
Immunities: spousal, governmental, etc.
Contributory, Comparative Negligence
Plaintiff’s conduct fell below the standard of care, and Plaintiff’s breach is both the cause in
fact and the proximate cause of the accident resulting in the injury
a.
Breach:
i.
Plaintiff knew or should have known of the foreseeable risk, and acted
unreasonably in light of the risk by failing to exercise due care
b.
Cause in fact:
i.
Is it more likely than not that the incident could have been avoided if the plaintiff
had used due care?
Butterfield vs. Forrester
a.
At common law, a negligent plaintiff sued defendant for negligence could not recover at
all for injuries
McIntyre vs. Balantine
a.
Today, a negligent P suing D for negligence can recover for injuries, but recovery will be
reduced by P’s share of fault.
Types of Comparative Negligence
a.
Pure
i.
Plaintiff can recover something no matter how negligent they were
b.
Modified
i.
Plaintiff recovers only if they were as negligent or less negligent than defendant
1.
Up to and including 50% rule: “P’s fault does not exceed D’s”, “P’s fault was not
greater than D’s”
2.
Up to 50% rule: “P’s fault was not as great as D’s”; “P’s fault was less than D’s”
Examples
a.
Policy exception to comparative negligence: for example, if person is hurt in drunk
driving accident and then is hurt by negligent doctor (medical malpractice), the doctor
will still be liable for negligence
Assumption of Risk
Express
a.
Definition
i.
Plaintiff voluntarily consented to encounter a risk that they were aware of
ii.
Plaintiff assumed the risk of harm by formal agreement (waiver of liability)
iii.
Still valid, treated as a matter of contract
b.
Waivers/Release of Liability
i.
Questions
1.
Is it visually conspicuous?
2.
Does it use clear and precise language?
3.
Was it voluntarily agreed to?
4.
Does it violate public policy?
ii.
Conspicuousness
1.
Restatement 2d Section 496 B(c) – coat check receipt with fine print on the back
is not enforceable
2.
Restatement 3d Section 2(c) – conspicuousness (including print size) matters
iii.
Specificity
1.
Restatement 2d Section 496B – must release D from the particular risk that led
to plaintiff’s injury (“negligence”) – general language not enough. Must be clear
that P understood she was assuming the risk of particular conduct by D
2.
Restatement 3d Section 2 – must use clear, definite, and unambiguous language.
No magic words required.
3.
Always: waiver strictly construed against the D
iv.
Voluntariness
1.
Restatement 2d Section 496(B)
a.
Must be “freely and fairly made”
b.
Plaintiff must give his “assent” – the terms must “in fact [be] brought home
to him and understood by him
c.
No significant disparity in bargaining power
2.
Under restatement 3d Section 2 – treated like a traditional contract. You sign it
you’re bound by it. Consider only duress, fraud
v.
Public Policy
1.
“Tunkl” factors for determining whether a contract affects the public interest:
a.
if it’s a service suitable for public regulation,
b.
service of great importance or practical necessity
c.
service available to everyone,
d.
D has a bargaining advantage,
e.
standardized contract, can’t buy more protection,
f.
P is placed under D’s control
2.
Real-word translation: Are the activities/services offered by the D so essential or
widespread that allowing Ds to free themselves from liability would be unfair or
harmful to many Ps?
a.
Common carriers
b.
Public utilities
c.
Employer obligations to employees
d.
Intentional, reckless, grossly negligent conduct
3.
Thompson v. Hi Tech
4.
Waivers, Public Policy, and Children
a.
Most jurisdictions hold that parents cannot waive a D’s liability for injuries to
their children.
i.
Variation: Such releases are unenforceable against commercial actors,
but not non-profits or schools
ii.
Variation: In some states, statutory allowances for certain activities
(Vermont, skiing; Utah, horseback riding)
2.
Implied, primary
a.
Plaintiff chose to undertake an inherently risky activity
b.
Full defense
c.
Treated as no-duty or no-breach scenario (though some courts still use the terminology
of primary assumption of risk)
d.
Texas: no affirmative defense
e.
Cases
1.
Murphy v. Steeplechase
a.
One who voluntarily participates in a sport accepts the inherent dangers in it
so far as they are obvious and necessary to participation.
2.
Coomer v. Kansas City Royals
a.
If an injury results from a risk attendant to, but not inherent in, a particular
activity, the defendant can be liable for causing the injury.
3.
Implied, secondary
a.
Plaintiff chose to encounter a risk negligently created by Defendant
b.
c.
d.
e.
i.
Partial defense
Some jurisdictions now reject secondary Assumption of Risk and treat these cases as
comparative negligence
Other jurisdictions still use secondary assumption of risk
Cases
Morgan State University v. Walker
1.
A plaintiff’s assumption of risk is an affirmative defense to negligence that
precludes recovery unless the plaintiff was forced to confront the risk of danger
against his will.
Negligent P
Negligent D
Non-Negligent D (inherently risky
activities undertaken with due care)
v.
i.
ii.
iii.
1° Implied Assumption of Risk
2° Implied
Assumption of Risk
1° Implied
Assumption of Risk
Other Defenses
Common law immunities
Statutes of limitations
a.
In Texas, 2 years for injuries and 4 years for contracts
Negligent Infliction of Emotional Distress
Rule
1.
An actor whose negligent conduct directly causes emotional harm to another person is
liable if 1) the conduct places the other in danger of immediate bodily harm and the
emotional harm directly results from the danger or 2) the conduct occurs in the course of
activities in which negligent conduct is likely to cause emotional harm. Restatement (Third)
Section 47
Generally
1.
Intentional Tort, only injury is IIED: yes, can recover
2.
Negligence, only injury is IIED: sometimes, under certain circumstances
Direct Victim Recovery: Near Miss/Zone of Danger
1.
Defendant acts negligently towards Plaintiff, causing Plaintiff emotional distress
2.
Types
a.
Near-misses, zone of danger (Restatement 3d Section 47(a))
b.
Special duties and touchy subjects (Restatement 3d Section 47(b))
3.
Historical Impact Rule
a.
Can recover for emotional distress only if it arises from contemporaneous physical
impact or injury
b.
Mitchell
i.
A plaintiff may not recover damages for injuries caused by fright induced by a
defendant’s conduct.
c.
Dowty
i.
A plaintiff may not recover for emotional distress caused by negligence without
having suffered a physical injury.
d.
Gilliam
1.
2.
b.
Comparative Negligence
2° Implied Assumption of Risk
Non-Negligent P
i.
4.
5.
6.
iv.
1.
2.
A plaintiff who suffers physical harm as a result of emotional distress induced by a
defendant’s negligent conduct may not recover for his injury in the absence of
physical impact. Gilliam v. Stewart. 291 So. 2d 593 (1974).
Modern Rule
a.
Can recover for emotional distress that arises from being in the zone of danger
b.
Most jurisdiction require plaintiff show physical manifestations of emotional distress
Daley v. LaCroix
1.
Where a physical injury results from negligently induced emotional distress, the
plaintiff may recover damages even if no physical impact occurred at the time of
the negligence. Daley v. LaCroix, 179 N.W.2d 390 (Mich. 1970).
Special Cases
a.
Restatement 3d Section 47: An actor whose negligent conduct causes serious emotional
harm to another is subject to liability to the other if the conduct
i.
Places the other in danger to immediate bodily harm and the emotional harm results
from the danger
ii.
Occurs in the course of specified categories of activities, undertakings, or
relationships in which negligent conduct is especially likely to cause serious
emotional harm
b.
Most often seen in:
i.
Death: mishandling of dead bodies; wrongful reporting of death
ii.
Birth: babies switched at the hospital; injury to fetus; implanting wrong embryos
iii.
Other: fear of disease, disclosure of confidential information
Bystander Recovery
Plaintiff’s emotional distress arises from Defendant’s negligence act towards someone close
to plaintiff (Restatement 3d Section 48)
Questions to consider:
a.
Does it need to be a “sudden” event?
b.
What does it mean to “perceive the event contemporaneously”?
c.
Who counts as a “close family member”?
d.
What if the witness is mistaken about the situation?
II.
a.
Strict Liability
In general
a.
Quiz
i.
Which of the following is not cited as a basis for imposing strict liability in Rylands v.
Fletcher?
ii.
When the defendant fails to take steps to protect his neighbor against the risks
posed by the defendant's dangerous activities.
iii.
An actor is subject to strict liability for carrying on ______ that results in physical
harm.
iv.
An abnormally dangerous activity.
v.
Defendant stores explosives in a remote area as part of its mining operations. A thief
breaks into the storage facility where the explosives are kept. The thief then takes
the explosives back to his home 50 miles away and uses the explosives to construct a
bomb. The thief detonates the bomb in a public place as an act of terrorism, injuring
multiple people. The victims sue the defendant on a strict liability theory. Is the
defendant strictly liable for engaging in an abnormally dangerous activity through its
storage of explosives?
vi.
b.
a.
i.
No, because the kind of harm that occurred was not of the kind that made the
defendant's activity abnormally dangerous.
vii.
In which of the following situations is a court least likely to apply strict liability
principles?
viii.
Defendant is burning leaves in his suburban backyard when an unexpected gust of
wind causes the fire to spread onto his neighbor's property, causing damage.
1.
Contexts
a.
Abnormally dangerous activities
i.
An activity is not abnormally dangerous unless it creates a significant risk even when
reasonable care is exercised by all actors. So if dangers can be minimized by P taking
care, strict liability is inappropriate!
b.
Dangerous animals
c.
Vicarious liability
d.
Some types of products liability
2.
Defenses
a.
Rest 3d §25: If the plaintiff has been contributorily negligent in failing to take reasonable
precautions, the plaintiff’s recovery in a strict liability claim … is reduced in accordance
with the share of comparative responsibility assigned to the plaintiff.
3.
Cases
a.
Foster v. Preston Mills
i.
example
Abnormally Dangerous Activities
1.
Restatement Factors
a.
Restatement 2d Section 520
i.
High risk of harm
ii.
Likelihood that harm will be great
iii.
Impossible to eliminate risk, even with exercise of due care
iv.
Activity is not a matter of common usage
v.
Activity is locationally inappropriate
vi.
Comparison of activity’s value to community with its danger
b.
Restatement 3d Section 20
i.
An actor who carries on an abnormally dangerous activity is subject to liability for
physical harm resulting from the activity.
ii.
An activity is abnormally dangerous if:
1.
the activity creates a foreseeable and highly significant risk of physical harm even
when reasonable care is exercised by all actors; and
2.
the activity is not one of common usage
2.
Cases
a.
Indiana Harbor v. American Cyamid
i.
Is putting acrylonitrile in a rail shipment through the Chicago metro area an
abnormally dangerous activity?
3.
Typical Examples
a.
Explosives
b.
Toxic chemicals
c.
Nuclear energy
II.
Other Considerations
Vicarious Liability
Respondeat Superior
1.
Definition
a.
Employers are strictly liable for employees acting within the scope of employment
i.
Generally, no liability for acts of independent contractors, except when engaged in
nondelegable duties or abnormally dangerous activities
2.
Scope of Employment
a.
Restatement 2d Section 220
i.
To determine whether someone is acting as an employee or as an independent
contractor, consider:
1.
Master’s control over details of the work;
2.
Is it a distinct occupation or business;
3.
Work usually done under direction of employer;
4.
Skill required;
5.
Who supplies the instrumentalities, tools, conditions of work;
6.
Time of employment
b.
Restatement 2d Section 265 / Restatement 3d Section 7.03
i.
A principal is subject to vicarious liability if agent commits a tort when acting with
apparent authority in dealing with a third party on or purportedly on behalf of the
principal
c.
Restatement 2d Section 228 and 229
i.
Conduct is of the general kind the employee is hired to perform
ii.
It occurs substantially within the authorized time/space of employment
iii.
It is motivated, at least in part, by a purpose to serve the employer
d.
Frolics take you outside the scope of employment, mere detours don’t
3.
Cases
a.
Mangual v. Berezinsky
i.
example
b.
Christensen v Swenson
i.
Security guard at a steel plant, car accident coming back from lunch break
c.
Carter v. Reynolds
i.
Part-time accounting employee, car accident coming back from a client’s
d.
GT Management v. Gonzales
i.
Bouncers at a club intentionally batter a patron
e.
LeBrane v. Lewis
i.
Hotel supervisor stabs terminated employee who refuses to leave
f.
Lisa M v. May Newhall Memorial Hospital
i.
Ultrasound technician sexually assaults a patient
III.
a.
i.
ii.
Damages
Types of Damages
Nominal
1.
Symbolic
Compensatory
1.
To make the plaintiff whole
2.
Types
a.
Pecuniary losses
i.
Diminished market value, lost earnings, medical expenses, or other easily
quantifiable economic losses
ii.
Calculating
1.
Collateral source rule, impact of insurance
a.
b.
Evidence: prohibits admission of evidence regarding Plaintiff’s compensation
from collateral sources (i.e. insurance)
b.
Damages: post-verdict, P’s recovery cannot be reduced just because plaintiff
has received compensation from collateral sources
c.
Note: not double recovery because subrogation clauses (insurer proceeds
against D) and lien clauses (insurer proceeds against P)
d.
Also note: some states have limited collateral source rule, most often in
medical malpractice cases
i.
ex. D can introduce evidence of collateral sources but P can introduce
evidence of cost of insurance; or
ii.
ex. Evidentiary collateral source rule is maintained, but judge has postverdict discretion (or sometimes, obligation) to reduce damages
e.
Medical expenses and “illusory damages”
i.
Full amount billed (majority)
ii.
“Benefit of the bargain”: full amount billed, but only if plaintiff paid for
the insurance benefits (minority)
iii.
Actual costs paid on or on behalf of plaintiff (minority)
2.
Plaintiff’s duty to mitigate damages
a.
Restatement 2d Section 918
i.
Plaintiff may not recover for damages that they could have avoided or
minimized through the exercise of reasonable care
ii.
Note: plaintiff can recover from defendant any reasonable expenditures
incurred in an effort to minimize future harm
iii.
Exception: P’s damages won’t be reduced for failure to mitigate where
the defendant commits an intentional tort or acts recklessly, unless
plaintiff has acted intentionally or heedlessly
b.
Not the same as comparative negligence. Simply reduces damages
3.
Systemic bias in calculating lost earnings
a.
Calva-Cerqueira v. US
i.
Look up
b.
McMillian v. New York
i.
Calculating life expectancy of African-American man with spinal cord
injury
ii.
Court refused to admit statistical evidence that African-Americans are
likely to survive for fewer years than whites with similar injuries
c.
GMM v. Kimpson
i.
Calculating earning capacity of Hispanic child with lead poisoning
ii.
Ds argue: “[B]ecause the child was ‘Hispanic,’ his likelihood of obtaining a
Bachelor, Master, or Doctoral degree, and any corresponding elevated
income, was improbable.”
iii.
Trial court instructed jury to look at P’s family characteristics, rather than
ethnicity, in predicting education.
iv.
“The use of race- [or ethnicity-] based statistics to obtain a reduced
damage award … violates due process because it creates arbitrary and
irrational state action, and equal protection, because it subjects the
claimant to a ‘disadvantageous estimate’ of damages ‘solely on the basis’
of ethnic classification.”
Non-pecuniary losses
i.
iii.
1.
2.
3.
4.
5.
6.
iv.
1.
Pain and suffering, mental distress, disfigurement, loss of enjoyment of activities,
loss of society, or other hard-to-quantify losses
ii.
Quantifying
1.
Anchoring effects often guide juror’s decisions
a.
Non-pecuniary damages anchored to pecuniary damages
b.
Non-pecuniary damages awarded anchored to P’s requested amount
Punitive
To punish the defendant
Discretionary damages, for acts done with malice or reckless disregard.
a.
Must be more than mere negligence
b.
Most often awarded in intentional torts, gross negligence, or mass torts
Strict liability?
a.
Abnormally dangerous activities - sometimes
b.
Respondeat superior - sometimes
i.
Restatement 2d Section 909 allows punitive damages where the tortfeasoremployee was acting in a managerial capacity
Generally awarded to the plaintiff, but not always
a.
Dardinger v. Anthem Blue Cross Blue Shield (OH 2002)
i.
Court exercised its common law power to order an alternative distribution of a
punitive damage award)
Reprehensibility – activity is more reprehensible if it
a.
Causes physical harm
b.
Shows indifference or reckless disregard for health and safety
c.
Preys on a financially vulnerable victim
d.
Is repeated
e.
Constitutes intentional malice, trickery, or deceit
Cases
a.
Bolsta v. Johnson
i.
No punitive damages recoverable
b.
Taylor v. Superior Court
i.
P can request punitive damages
c.
BMW v. Gore
i.
Plaintiff’s new care was damaged, but painted over. Plaintiff got $4k in
compensatory damages
ii.
Due process should consider: reprehensibility of D's conduct, disparity between
compensatory and punitive awards, comparable civil penalties
iii.
Single digit ration (4 to 1) as a guidepost
d.
State Farm Mutual v Campbell
i.
State Farm acted in bad faith. P got $1 million in compensatory damages.
ii.
$145 million in punitive damages is excessive
iii.
Due process prohibits grossly excessive or arbitrary punishments; these serve no
legitimate purpose
iv.
Can’t use Campbell’s experience in Utah to punish State Farm for business practices
nationwide
Procedure: Bifurcation of Trial
FRCP 42(b)
a.
For convenience, to avoid prejudice, or to expedite and economize, the court may order
a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or
third-party claims.
2.
b.
i.
ii.
iii.
Impact
a.
May save legal fees
b.
Can change strategy, motivate settlement
c.
In close cases, jury may be less likely to find liability
Tort Reform
Limits on Access to civil justice
1.
Mandatory arbitration
2.
Federal preemption (for example, pharmaceutical and health insurance industries)
3.
Governmental immunity
4.
Pleading standards (civil procedure)
5.
Expert certification in medical malpractice cases
6.
Limits on class action suits
7.
Damages caps in 30+ states
Damage Caps in Texas
1.
Economic: No limits.
2.
Non-Economic: In medical malpractice cases: $250K limit on non-economic damages/doctor
and $250K limit on non-economic damages/provider; $750K maximum non-economic
damages
3.
Punitive: Punitive damages are generally permitted
Damage Caps in Texas
1.
No-fault compensation (sometimes with fixed schedules of damage awards) (ex. State
worker’s compensation, Special victim compensation, National Vaccine Injury
Compensation Fund)
2.
ADR: Arbitration, via statute or contract
3.
ADR: Mediation