I.
Torts Basics
A. Definition of Tort – a wrong for which the law provides a remedy
1. Goals and Aims of Tort Law
a. Tort law aims at vindicating individual rights and redressing private
harms
b. Achieving justice, promoting social good, providing compensation to the
harmed, distribution of risk, deterrence
B. When reading:
1. How would you demonstrate what plaintiff’s burden in proving case was,
and if plaintiff met that burden?
a. Causation is an element of plaintiff’s burden of proof
2. What is the interest being protected?
a. Ex. Battery > bodily integrity, the right not to be touched without our
consent
b. Ex. Infliction of emotional distress > emotions are valued, the right to
not be damaged emotionally
c. Ex. False imprisonment > freedom of action
d. More tort ex: reputation, defamation, theft of property, fraud,
professional misconduct
C. Tortfeasor – someone who has done the wrong, invaded the interest
D. Liability – liability arising from torts is independent of any previous consent by wrongdoer to bear loss occasioned by his act
1. Primary – refers to obligation for which party is directly responsible
2. Secondary/Vicarious – refers to obligation that is responsibility of another
party if that party is directly responsible fails to satisfy the obligation
E. Damages – remedies that may be awarded once all elements of a tort case are proved by
a preponderance of evidence
F. Harm – requirement for recovery in tort litigation (harm to physical being, reputation,
emotional state, or property)
1. No matter how irresponsible the conduct, if no one suffers the consequence
that the law of tort describes as a harm, there is no cause of action
G. Cause of action – based upon harm resulting from “wrongs recognized by law as grounds
for a lawsuit”
H. Bases of Tort Liability
1. Strict Liability – liability without proof of fault
a. Rylands v Fletcher – Blyth v Birmingham Waterworks Co., used property
in such a way that damaged another property
2. Intent – liability for action to produce a consequence
a. Person acts with intent to produce consequence if:
i.
Person acts with the purpose of producing that consequence;
or
ii.
Person acts knowing the consequence is substantially certain to
result
3. Negligence – Liability for failure to act as a reasonable and prudent person
would act
a. Omission to do something which a reasonable man, guided upon those
consideration which ordinarily regulate the conduct of human affairs,
would do or doing something which a prudent and reasonable person
would not do.
b. Blyth v Birmingham Waterworks Co.
I. Sources of Tort Law
1. Natural Law – principles of fairness, justice, ethics
2. Statutory Law – statutes, codes, regulations
3. Common law (case law)
a. Judgment and decrees of the courts
b. Authority derived from usages and customs
J. Historical Origins of Tort Law
1. Writ System
a. Derived from English law
b. Content of writ had to fit within prescribed formula
c. Ex. Writ of trespass – lies where harm was directly inflicted
d. Ex. Writ of trespass on the case – injury inflicted indirectly or passively
2. Case Law, Precedent, and Common Law
a. Case reports
b. Stare decisis
i.
Courts apply precedent, distinguish it, or overrule it
K. Prima Facie Case
1. Van Camp v. McAfoos
a. Plaintiff must allege fault (negligence, intentionally wrongful action) in
pleading and in proof, in order to move forward,
b. Fault is an essential element of cause of action
L. Tort Law Remedies: Law and Equity
1. Injunction – court’s order to cease committing harm
2. Damages: Nominal, compensatory, and punitive
a. Anderson v. Zamir
i.
Court can only use the evidence that is admitted, verdict and
damages must bear reasonable relationship to injuries
established.
M. Damages
1. Compensatory damages
a. Special Damages – Medical (present and future), LOE
b. General Damages – Pain and Suffering
2. Measuring damages – function of the jury
3. Lost wages – reduced to present value
4. Attorney’s fees – “American Rule” and contingent fees
5. Reviewing damages – new trial, additur, remittitur, appellate review
II.
6. Punitive damages – aims: deterrence and punishment, awardable where
blameworthy conduct is intentional or malicious
a. Not available in Negligence cases
7. Nominal damages – role in Constitutional and dignitary torts
Intentional Torts (Harmful to persons)
A. Intent to Produce a Consequence
1. acting with a purpose of producing the consequence
2. acting knowing that the consequence is substantially certain to occur
B. Battery
1. Prima facie case: defendant acted to cause a harmful or offensive contact
with the person of the other … and … a harmful contact [sec 13] offensive
contact [sec 18] with the person of the other directly or indirectly resulted
[Restatement II]
a. harmful contact: physical impairment of the condition of the other’s
body; pain or illness
b. offensive contact: bodily contact offending a reasonable sense of
personal dignity
2. McElhaney v Thomas
a. Intent to injure in civil battery claims can also be an intent to cause
offensive contact, i.e. damaging someone's personal dignity
3. Brown v. Kendall
a. plaintiff must come prepared with evidence to show either that the
intention was unlawful or that the defendant was in fault
4. White v. Muniz
a. Dual Intent (intend contact, intend for contact to cause harm) (requires
more looking into mind)
i.
Defendant had to understand the offensiveness of her conduct
5. Wagner v. State
a. Single Intent (only have to intend to make contact)
i.
only the intent to make contact is necessary … plaintiff need not
prove intended harm or offensiveness
ii.
Dual intent unworkable because there is a lot of inference
6. Polmatier v Russ
a. Mentally ill can be held liable, reason being that there has to be
accountability for actions (otherwise why would you want to be a
caregiver)
7. Garratt v Dailey
a. Jury needed to decide if Dailey (6 y.o.) knew the consequences of his
actions
b. Only need to know the consequence of your action (not that it will cause
harm)
8. Eichenwald v Rivello
a. Intent has physical consequence, does not matter if physically touched,
does not matter if harm was intended
9. Fisher v Carrousel Motor Hotel
a.
10. Damages for Battery
a. The Trespassory Torts: where physical force has been used to invade an
interest of another (battery, assault, false imprisonment, trespass to
property). – The tort is harmful in and of itself – all damages therefore
available:
b. Nominal Damages: “A battery is actionable even if the damages are $1.”
[n2, 55]
c. Economic Damages: Compensation for the harm inflicted is not limited
to the immediate aftermath: see Hough v McKiernan n3, 55 and
consider Vosburg v Putney (Wis. 1891) – the “eggshell skull” principle.
d. Damages for pain and suffering and emotional
distress may be available – they are compensatory
e. Punitive Damages: “intentional torts may be
the paradigm case for punitive damages.”
11. Baska v Scherzer
a. Transferred Intent”: the actor intends to produce such an effect upon
some other person [therefore] his act so intended is the legal cause of a
contact to another.”
i.
Does not have to be specific to the individual
C. Child Liability: with limited exceptions, children are liable for their torts; age, by itself,
does not provide escape from tort liability. Age may simply be one of the circumstances
to evaluate in assessing the factual scenario.
1. Some states still observe the “rule of sevens” and others hold that very young
children are incapable of forming “intent” as defined by law n2, 50-51
D. Parental Liability p51: Parents are not, simply by the fact of their parentage, vicariously
liable for the torts of their children.
1. State statutes may impose vicarious liability on parents for wanton and willful
misconduct by the child that results in harm, usually under a “negligent
parenting” philosophy
E. Assault
1. Reason for the Tort: It is the right to be free from the apprehension of a
battery which is protected by the tort action which we call assault. Cullison, 60
2. An assault constitutes ‘a touching of the mind, if not the body.’ Kline
a. “Assault” is term of art in tort law – distinguish popular use of a & b.
3. The apprehension requirement nn3, 4, 61. “Apprehension” here means
awareness, a reasonable anticipation of an imminent [n8, 62] battery.
4. Words and Threats: Consider the “words alone” issue n5, the “words
negating intent” issue n6, and words offering a choice n7
5. The role of statute: anti-stalking laws and free speech protections like the
FACE Act may provide additional or alternate remedies
6. Cullison v Medley
a. Assault requires the person act with intention to harm or offensive
contact with another, or acts while intending to produce a reasonable
apprehension or an imminent battery, causing mental/emotional
damages
F. False Imprisonment (confinement can be physical, under duress, threats, preventing
people from moving)
1. McCann v Wal-Mart Stores
a. Imprisonment can also include a false claim of lawful authority to
restrain
2. Prima Facie Case: n1, 65: Confinement of another intentionally and without
lawful privilege within boundaries fixed by the actor (or within a limited area),
against his consent, for any appreciable time, however short. Majority require
as well that plaintiff is aware of the confinement and/or has sustained actual
harm
a. Confinement Meaning Limited range of movement; reasonable means
of escape? n3, 66
b. Confinement by Threats or Duress n4, 66
c. Liability for Instigating Confinement n5, 66
d. Damages: False Imprisonment as a Trespassory Tort) n6, 66
e. Relationship to the Tort of False Arrest (Sec. 1983 action) n7, 66-7
G. Intentional Infliction of Emotional Distress
1. Four elements of IIED (that you need to prove)
a. Extreme and outrageous conduct
b. intent to cause or disregard of a substantial probability of causing,
severe emotional distress
c. a causal connection between the conduct and injury
d. severe emotional distress
2. Mitchell v Rochester Railway
3. Chanko v American Broadcasting Companies, Inc
a. Declared that conduct did not reach “outrageousness” level
i.
Use precedent established in prior NY cases
4. GTE Southwest v Bruce
a. Severity and regularity of abuse and threats meets threshold of
outrageousness
5. Roth v Islamic Republic of Iran
H. Issues and Defenses
1. Exercising a legal right (regardless of emotional distress caused)
2. Causation – essential to prove cause in fact (without conduct, severe distress
would not have occurred)
3. Severity – depression and anxiety, provable by medical testimony and
evidence of medical treatment (expert testimony, ex. Physician); impairment
of life functions; jurisdiction may require proof of physical symptoms
4. Overlap – frequently pled along with other intentional torts
5. 1st amendment guarantees
I.
Civil Rights Interference
1. Ashby v White
a. Originally characterized as a political issue
b. If someone was prevented from voting, that is a violation of civil right
c. There should be a cause for action
2. Nixon v Herndon
a. Political action but it alleges and seeks to recover for private damage
3. Morningstar v Lafayette Hotel
a. Enforcing one’s right is a moral duty
4. Amendment XIV
a. Privileges and immunities of citizenship
b. Equal protection of the law by appropriate legislation
5. Section 1983
a. Any person that causes deprivation of any rights, privileges, and
immunities secured by the Constitution and laws
b. Action at law, suit in equity, or other proper proceeding for redress
c. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 6:42 pm
d. Is qualified immunity a valid defense?
i.
What do you have to demonstrate as a plaintiff’s lawyer?
ii.
Was there a right?
iii.
Was their right known/clearly established?
iv.
Should you have known?
6. Monroe v Pape
a. Remedy at law for 1983
7. “Every person”: who may be sued? individuals acting under color of law, but
also under rare circumstances, local government agencies. Monell v NYC
Dept. of Social Services 436 U.S. 658 (1978) & City of Canton v Harris 489 U.S.
378 (1989)
8. “Under color of state law”: conduct of a state official acting contrary to state
law, but also private individuals if their action is made possible because of
state support or acquiescence. Adickes v H.H. Kress 398 U.S. 144 (1970),
Brentwood v Tenn. SSAA 531 U.S. 288 (2001)
9. “Subjects another/causes another to be subjected to”: c/a exists only against
one who has been the actor in deprivation of rights. DeShaney v Winnebago
County DSS 489 U.S. 189 (1989) and Rizzo v Goode 423 U.S. 362 (1976)
10. “Citizens or others within the jurisdiction”: 1983 actions may be brought by
citizens, by corporations, and by resident aliens. But cf Paiute-Shoshone case
538 U.S. 879 (2003)
11. “Rights secured by the Constitution and Laws”: 1983 action lies for violations
of Bill of Rights guarantees unless statute does not create enforceable rights,
or Congress has explicitly foreclosed 1983 action in the statute itself. Gonzaga
University v Doe 536 U.S. 273 (2002) and Middlesex County Sewerage Auth. v
National Sea Clammers Assn. 496 U.S. 498 (1981)
III.
12. n1(c) 78 The federal rights protected under Sec. 1983 include: (1) 4th
Amendment protection against unreasonable searches and seizures, (2) 8th
Amendment prohibition of cruel and unusual punishments, and (3) 14th
Amendment’s guarantees of due process of law and equal protection of the
laws.
13. n2 79: Relation to Tort Law: the act that constitutes the violation of one of
these rights often occurs when a state actor commits a common law tort (e.g.
battery)
14. The Constitutional Tests (a) 4th Amendment cases: Test is whether the
officers’ actions were “objectively reasonable” in light of the facts and
circumstances surrounding them—without regard to underlying intent or
motivation p16
15. 8th Amendment: the acts must be “objectively wrong, but also “subjective
elements relevant: was the punishment applied “wantonly, in bad faith,
sadistically, maliciously” p80
16. 14th Amendment: test is whether the acts “shock the conscience of the
court”—that the actor had subjective intent to injure or deprive of rights. p80
17. Damages: are the normal tort remedies: nominal, compensatory, and, where
the conduct shows reckless, callous or wanton and wilfull disregard to the
rights of others, even punitive damages n4, 81
18. Municipal Liability: A government entity is NOT ordinarily liable for S 1983
violations of its officers under a respondeat superior theory. A municipality
may be liable where a plaintiff is able to prove that it was a policy or custom of
the municipality that was the cause of the rights violation. The municipality is
liable for its own violations. Monell v Dept. of Social Services 436 U.S. 658
(1978) p81
19. In proving causation, plaintiff must demonstrate that the policy or custom
asserted to be the bass of the violation demonstrates the municipality’s fault;
that the action of the municipality (in adopting the policy or permitting the
custom) was the moving force behond the violation of rights
20. Indemnification by the municipality to the officer is usual practice
J. Intentional Torts to Property
1. Briggs v. Southwest Energy Production
a. Exclusivity of your land ownership
2. Reif v. Nagy - When is conversion?
Defenses
A. Self-defense
B. Defense to Trespass
C. Shopkeeper’s Privilege (Gortarez)
D. Parent’s discipline
E. Assumption of the Risk (awareness of risk of activity)
1. No consent included, only in negligence cases
F. Consent (consenting to an invasion of your interest)
1. Single Intent (have to establish intent to commit action, not necessarily harm)
IV.
2. Silence can qualify as consent if there is prior similar contact (even if no harm
arises from this)
3. Can always revoke, once it has been then no means no
4. Conditional Consent
5. Informed Consent
6. Causal Link
7. Consent to procedure:
a. But not to certain changes
b. Different doctor
c. Not aware of particular purpose
8. Emergency Exception
a. If acting tortiously, no liability if done to prevent or reduce a risk to life
or health
9. Incapacity to consent
10. Substituted Consent
11. Advanced Directives
G. Public Necessity
1. Destruction of property is justified for the greater good
2. Need to have reasonable belief that action was needed
3. Action taken was a reasonable response to the need
H. Private Necessity
1. Value of life outweighs property
2. But you are liable for damage you cause to property
Negligence
A. Not defined by naming specific forbidden acts
B. May be any conduct that creates an unreasonable risk of harm to others
C. Actionable as a tort when that risk comes to fruition and causes actual harm of a
foreseeable
D. Doing of something that which a reasonable person would not do
E. Legal Elements of a Negligence Action
1. Defendant owed the plaintiffs a legal duty
2. Defendant, by behaving negligently, breached that duty
3. Plaintiff suffered actual damage
4. Defendant’s negligence was a factual cause if this damage (but for this fact)
5. Defendant’s negligence was a “proximate cause” of this damage; that is the
damage is within the “scope of liability” of defendant
F. General Duty of Care
1. Duty – an obligation
G. Nonfeasance, Misfeasance, malfeasance
1. Nonfeasance – omission of an act which a person ought to do
2. Misfeasance – is the improper doing of a n act which a person might lawfully do
3. Malfeasance – doing of an act which a person ought not to do
H. Basis for establishing duty
I.
J.
1. Protective statute may be used by court to establish a common-law duty
- Brock v Watts Realty Co. (Ala. 1991) city ordinance requiring landlords to install
locks as safety measure to protect tenants from intruders.
2. Prior conduct by an actor that has caused harm imposes duty to render aid
–
South v Natl. Rwy. Co. (N.D. 1980) RR has duty to aid one struck by train
3. Prior conduct by actor that creates continuing risk of harm may impose duty to
act to eliminate or minimize risk – Pacht v Morris (AZ 1971) horse left on
highway
4. Defendant had a “special relationship” with either the plaintiff or the tortfeasor
5. Actor “takes charge” or begins to assist another in peril
6. The fact that the actor realizes or should realize that action on his part is
necessary for another’s aid does not of itself impose a duty to take such action.
7. reasonable and prudent adult and performed an act which he knew or should
have known, was perilous
8. Individuals should be responsible for their own actions and should not be liable
for others’ independent misconduct
9. Undertaking of providing care creates a duty to provide that care reasonably
a. Cannot do so in a negligent manner
10. An actor who undertakes to render services to another…has a duty to use
reasonable care in rendering those services if the failure to exercise care would
increase the risk to the other
11. Rendering another vulnerable: Actor knows or should know that their conduct
may render another vulnerable to harm
12. By acting unreasonably, has left the victim in a worse position than existed
before the defendant took charge
13. Foreseeability does not alone establish duty
Examples of parties that have duty arising from special relationships:
1. Common carrier-passenger; innkeeper-guest; landowner-entrant on land;
employer-employee; school-student; landlord-tenant; custodian-ward
2. Ad-hoc relationships (companions in a social venture; going out and drinking
story, Farwell v. Keaton)
3. Judicial balancing + facts of the case = sufficient relationship to defendant
a. Podias v. Mairs
b. Nonfeasant
c. **Sufficient only to not dismiss by summary judgment (still needs to be
presented to triers of fact)
General Duty of Care
1. Duty – obligation to which law recognizes
a. One creates, maintains, continues risk of harm = duty
2. Standard of care – ordinarily reasonable care under the circumstances
a. What would reasonable and prudent person do under same
circumstances?
b. One standard of care, not “higher care” needed when especially
dangerous circumstances
3. Sudden Emergency Doctrine
a. Sudden, unexpected, and unforeseen circumstances that caused for
circumstances, cannot be held liable for negligence
i.
Cannot be created by defendant
4. Reasonable Person Standard Issues of Application
a. Blind person running over elderly man scenario
b. “How would reasonable blind person have acted?”
c. Alzheimer's case Creasy v Rusk
i.
Person’s mental and emotional state does not determine for
negligence
d. Superior knowledge and experience, special training, and applicability of
“expertise”***********************************8:05 pm 9/20/23
e. Adult standard when doing adult activity (driving)
i.
Rule of sevens – some states use to determine if kids are eligible
to be sued for negligence
5. Sudden Incapacitation Defense
a. Unforeseeable sudden, physical incapacitation = not liable
K. Negligence Per Se
1. Certain violations of standards set by statutes or rules
2. Four-part test for replacing common law duty with statutory one:
a. Required conduct clearly defined by the statute
b. Statute’s goal to address the type of harm defendant caused
c. Plaintiff w/I class of persons sought to be protected
d. Statutory violation was proximate cause of plaintiff’s injury
3. Difference between cause and proximate cause
a. Cause – what action directly led to cause
b. Proximate cause – Violation of statute that indirectly caused incident
(basis for being liable for negligence?)
L. Non-Tort Statute Approaches (violation of criminal law, using as standard to instruct
jury for tort case)
1. Unexcused violation is negligence per se: Effect of Court’s adoption of the
statute is that the statute supplants the usual common law standard of care;
“violation of the statute establishes the element of duty and guides the
element of breach.”
2. Unexcused violation is some evidence of negligence that may be considered
by jury, but jury is not bound by it.
3. Unexcused violation creates a presumption of breach of duty, shifts the
burden of rebuttal to violator.
M. Tort-Specific Statutes
1. Where a statute provides for civil liability, creating a private right of action, the
court must simply apply it.
2. Conversely, where legislature has foreclosed a civil cause of action, court
unlikely to apply statute as evidence in tort case
V.
3. Examples: legislative enactment, municipal ordinance, administrative
regulation
N. Applying Statutes: Type of Harm
1. Goldstein, Garber & Salama, LLC
a. Statute was not intended to protect against remote chance of sexual
assault
O. Excusing a Statutory Violation
1. In certain emergencies, violation may be excused
2. “Sudden Emergency Doctrine”
3. List of excusable statute violations
a. Violation is reasonable in light of actor’s childhood, physical disability or
physical incapacitation
b. The actor exercises reasonable care in attempting to comply with the
statute
c. Actor neither knows nor should know of the factual circumstances that
render statue applicable
d. 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
e. The actor’s compliance with the statue would involve a greater risk of
physical harm to the actor or to other s than would noncompliance
Negligence: Breach of Duty
A. Foreseeability – core to establishing breach
1. Fact-intensive inquiry (up for jury to decide)
B. Duty exists where foreseeability of consequence can/should occur
C. Foreseeable harm needs to be probably enough to require precaution
D. Judge determines whether a duty exists, jury determines whether it was breached
E. Determine what standard of care is for these (breach is when action falls below standard
of care)
F. Weighing risk of behavior vs cost of harm
G. Alternative conduct, what in hindsight is reasonable?
H. Bernier v. Boston Edison Co.
1. In highly trafficked area, more than probable that there would be an accident
2. Reasonable alternative design – argument made by plaintiff, could have used
another model to have prevented incident
I. B < PL ____Burden < Probability x Injury
1. Probability is P; the injury, L; and the burden, B; liability depends upon
whether B is less than L multiplied by P
2. Burden is what you do to prevent harm
3. Burden is the only one that is quantifiable
J. Adams v. Bullock
1. Not foreseeable that safety measures would not be adequate
K. Jury has to infer from the parties what happened (Santiago v. First Student, Inc.)
1. Accomplished through providing evidence that a, frigging, negligent act
occurred, cannot be speculation
L.
M.
N.
O.
P.
Q.
R.
2. Have to establish fact that has a reasonable chance (preponderance of
evidence)
Upchurch v. Rotenberry
1. Three Types of Evidence: Direct evidence, testimonial evidence, circumstantial
a. Circumstantial – often the only evidence we have in torts case
b. Have to reconstruct what happened
Theories of Liability in Slip and Fall Cases
1. Defendant directly creates risk and fails to abate or mitigate it;
2. “Constructive notice” of a condition created by others;
a. How long has banana been laying on floor
3. “Business operations” theory (foreseeability issue)
a. I hate grapes
Use of Standards (RIII view)
1. Evidence of the entity’s own standards may be relevant to foreseeability, or
feasibility of precautions, but still “does not set a higher standard of care for
the actor.”
T.J. Hooper
1. Business violates duty of care if it does not use new technology that is
widespread across other businesses (widespread meaning almost universal, it
was estimated 90% in this case)
a. But…industry common standard does not necessarily set the standard,
rather…the standard is reasonable prudence
Industry standard does not necessarily constitute reasonable care
1. Conformance to industry standards is probative but not dispositive
on the issue of negligence
Res Ipsa Loquitur - “the thing speaks for itself”
1. Doctrine for which court can directly infer negligence due to nature of
incident, and in the absence of direct evidence
2. Applied in the absence of substantial, significant, and probable explanation
3. Control over an injury-causing instrumentality is merely a factor that may
influence a finding that the defendant’s negligence was more likely than not
the cause of the plaintiff’s injury
4. Some states hold that you cannot have contributed to your injury, others like
PA can include this element as a part of liability comparison
5. Multiple actors can be sued when plaintiff is in care of another, not just one
defendant
a. But not applicable
How to Make RIL argument
1. Invoke the doctrine P must show
a. the accident that harmed P does not happen in the absence of some
negligence,
b. the instrumentality of harm was under D’s exclusive control at the time
of the accident,
c. P did not cause or contribute to causing the harm.
VI.
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3. If making argument on exam, use one of first two arguments
Negligent Infliction of Emotional Distress (NIED)
A. Zone of Danger Rule
1. Immediate Risk of personal injury (at very specific time and place)
2. Plaintiff’s reaction to that risk was fright and shock
B. Catron v. Lewis
1. Whenever you get a case like this, go back to “what was negligent act?”
2. A claim for negligent infliction of emotional distress must show that the
plaintiff was a direct victim of the defendant’s negligence because the plaintiff
was within the zone of danger created by the negligence.
C. Bystander Rule
1. Death or serious physical injury of another by D’s negligence,
2. Marital or intimate family relationship between P and the injured person;
3. Observation of the death or injury at the scene of the accident,
4. Result is severe emotional distress.
D. Bystander cont…
1. Contemporaneous Sensory Perception: Thing v La Chusa (Cal. 1989) holding
that that the plaintiff must be “present at the scene of the injury-producing
event at the time it occurs and is then aware that it is causing injury to the
victim. [n2, 654]
a. “What are the policy reasons for allowing/not allowing this?”
2. Virtual Awareness: Technology may allow meeting the contemporaneous
physical perception requirement, even if not at the scene. See Ko v Maxim
Healthcare (Cal. App. 2021) [n4, 655] Recall Roth v Iran [p 645] [IIED context]
3. Delayed Perception: Some courts have allowed recovery for observing an
immediate aftermath (rather than the event itself. Gates v Richardson (Wyo.
1986) [n4, 655]
4. Close Relationship: “Immediate and extended family” was the traditional
rule, more recent cases have included fiancée, cohabitant, unrelated person
treated as family, etc. Key seems to be foreseeability of harm where there are
“strong emotional bonds.” See Graves v Estabrook (N.H. 2003) [n7, 656]. So
far not extended to co-workers, rescuers, etc. [n7, 656]
5. Direct Victim or Bystander: Consider state-created rules, n10, 657.
E. Loss of Consortium (loss, love, companionship, and support)
1. Loss of consortium is strictly a derivative claim – it accompanies a claim by the
injured party on behalf of the spouse. If the predicate claim is extinguished,
the loss of consortium claim is also extinguished. [n5, 661]
2. Claims by children. Majority rule allows loss of consortium claims by minor
children for death or serious injury to parent proximately caused by
defendant. [n5, 493] Some courts now allow the claim by adult children for
loss of parental support, etc., but not the converse, as seen in Boucher v Dixie
Medical Center
F. Duty of Care to Protect Emotional Well-Being
1. Burgess v Superior Court
a. Baby would have claim on his own
b. Bystander Rule is too strict
c. Dillon Rule does not apply for mothers
d. A mother may recover damages for negligently inflicted emotional
distress against a physician who entered into a doctor-patient
relationship with her for care during labor and delivery if her child is
injured during the course of the delivery because she is a “direct victim”
of the physician’s negligent acts.
G. General Notes and Issues
1. Duty by Undertaking: Burgess and Toney are examples of finding duties in
undertakings, even implicit ones. Consider what the rationale is for duty in
such cases, what it entails. and how far it should extend.
2. Trend is toward broader recognition a general duty of care to avoid inflicting
emotional distress. n2, 663. Restatement III would broaden NIED liability to
anyone whose negligent conduct causes serious emotional harm as a result of
(a) D’s placing P in danger, or (b) negligent act in the course of “activities,
undertakings, or relationships in which negligent conduct is likely to cause
serous emotional harm,” e.g. “death notice” cases, or mishandling of a corpse
[n4, 664, n2, 665].
3. But absent undertaking or special relationship, there is still not broad
recognition of a general duty to avoid inflicting NIED [n5, 664]. See Boyles v
Kerr [666]. Invasion of privacy may be an alternative c/a – see n2, 666. To be
discussed in Torts II
4. Allowing an ordinary negligence theory to support an NIED claim? See Camper
v Minor [667], and consider Murphy v Lord Thompson’s Manor (Conn App,
2008) n1. 667
H. Fear of Future Harm
1. Camper v Minor
a. A plaintiff may recover damages for serious or severe emotional injuries
if the plaintiff can satisfy the elements of general negligence.
b. Even if proximate cause is, arguably, not met in suit
2. Potter v Firestone Tire and Rubber
a. A plaintiff may recover damages for fear of cancer alone if the plaintiff
proves that the defendant’s negligence exposed the plaintiff to a
carcinogen and the plaintiff’s fear stems from a knowledge that it is
more likely than not that the carcinogen will cause the plaintiff to
develop cancer in the future, however, a plaintiff need not meet the
“more than likely” threshold if the plaintiff proves that the defendant’s
conduct was oppressive, fraudulent, or malicious.
b. Flood gates, medical issue, exhausting remedies (3 things court was
worried about should they allow all of these types of claims) (fear of
future harm)
3. Civil Action Movie
VII.
a. John Travolta
4. (1) genuine and serious fear [n1], (2) actual exposure [nn 3,4], and the
rationale for pleading (and proving) physical injury [n2]
Negligence: Actual Harm and Factual Cause
A. Have to show actual harm, cannot be “technical harm”
B. Harm and Damages
1. Physical Harm … can mean either the physical impairment of the human body,
or of real property, or tangible personal property – any detrimental change in
the physical condition of a person’s body or property counts as physical
impairment. [RIII, 240]
2. Damages recoverable in a negligence case [nn 1-5, 239-240]:
3. [Nominal Damages]: damages in name only--not available in negligence cases
[n5, 240]
4. Compensatory Damages: past & future medical expenses, lost wages, loss of
earning capacity, pain and suffering (including emotional harm). [n2, 239]
5. Punitive Damages: generally not recoverable in a negligence case. [Although
possibly where there is proof of recklessness or ‘wanton and willful
misconduct.’] [n2, 239-240]
6. Economic Loss: negligence law normally does not protect plaintiffs against the
risk of “pure” economic loss (loss of business opportunities, lost contracts, lost
profits) where the plaintiff does not also suffer physical harm.
a. If damage is to third party, that otherwise was not involved in incident,
tortfeasor is not liable for damages to that third party
b. Kinsman Transit case – Buffalo bridge flood, not
c. Exceptions to rule
i.
If tortfeasor has a specific duty to third party, and the injury
suffered is clearly foreseeable
ii.
Physical injury present as well as the economic loss
iii.
Professional malpractice (lawyer not writing will correctly,
causing economic loss
7. Factual Cause
a. Causation - provides the central negligence element that links the
defendant’s wrong to the plaintiff’s harm
b. But-for Test
i.
Hypothetical Test: Need to imagine an alternative scenario that
never happened, that is, to imagine what would have happened
without the defendant’s negligence
ii.
Ziniti v New England Central Railroad
1. “No indication that the presence of additional sign
would have prevented the incident”
iii.
Issues with But for Test
1. Negligent and non-negligent causes
c. Inevitable Event
i.
VIII.
Even some cases factual cause is not established because even
extra precautions would not have averted the harm
d. Post Hoc Fallacy
i.
Example given: cancer from sight of lesion of where negligent
act was ruled to have occurred
e. Cause in Fact
i.
Focus is on the occurrence, the “happening” of the defendant’s
action, not the reasons why the act was negligent
f. Joint and Several Liability
i.
Xxxxxxxxxxxxxxxxxxxxxx8:45 pm 10/11/23xxxxxxxxxxxxxxxxxxxxx
g. Problems with But-For Best ooooooooo start of 10/18/23 class ooooooo
i.
Landers case, saltwater killing shrubbery, unclear which party
ultimately caused the killing
h. Alternatives to But-For Test
i.
Substantial Factor Test
1. Lasley v Combined
a) intoxication is irrelevant to causation
2. Not splitting up 50, 50
ii.
The Increased Risk Issue
1. [T]hey stated that: if (a) a negligent act was deemed
wrongful because that act increased the chances that
a particular type of accident would occur, and (b) a
mishap of that very sort did happen, this was enough
to support a finding by the trier of fact that the
negligent behavior caused the harm. Where such a
strong causal link exists, it is up to the negligent party
to bring in evidence denying but for cause and
suggesting that in the actual case the wrongful
conduct had not been a substantial factor.
iii.
Lost Chance (percentage)
1. Mohr v. Grantham – hypoglycemic lady, medical
malpractice on behalf of doctor/hospital
a) Had she been properly treated, she could have
had a better result/outcome
2. Highly controversial, putting a percentage on chance
of something that has not happened
Negligence: Scope of Liability (Proximate Cause) (Legal Cause)
A. Proximate Cause – addresses logic, fairness, policy, and practicality
B. Thompson v. Kaczinski
1. Scope of liability is strictly a jury issue, foreseeability included in this
C. Palsgraf v. Long Island Railroad
1. Duty Analysis or Proximate Cause
a. Cardozo believed that railroad employee did not owe duty to Ms.
Palsgraf, therefore not even making it to proximate cause
IX.
b. Andrews believed that but-for test should have been utilized, and that
negligent act of railroad employee pushing the passenger into the train,
direct chain of causation between push and explosion
D. Ruiz v. Victory Properties
1. Harm is of same nature as negligent act
2. Manner and type of harm are foreseeable
3. Manner and extent of the harm
E. Intervening causes
1. The proximate cause of an injury is that which, in a natural and continuous
sequence, unbroken by any efficient intervening cause, produces an injury,
and without which the injury would not have occurred
F. Superseding cause
1. Suicide traditionally seen this way, with 2 exceptions:
a. (1) D’s tortious conduct brings about a mental illness or an
“uncontrollable impulse” to commit suicide. – Precedent of long
standing permits negligent tort-feasors to be held liable for the suicide
of persons, who, as a result of their negligence suffer mental
disturbance destroying the will to survive. (2) A “special relationship”
existed that included D’s knowledge of P’s risk of suicide. – (for example,
a counselor-client relationship)
2. Where the original risk has been terminated
3. Or where there is an unanticipated efficient intervening
4. Not superseding: Defendant who causes harm also
liable for “enhanced harm” from subsequent provision
of aid, including negligent medical treatment.
G. Marcus v. Staubs
1. Original cause – providing alcohol to children
2. Intervening causes – stealing car, driving drunk, driving into a ditch, etc.
3. Summary judgment improper because judge made decision that intervening
act was proximate cause, and thus a question for the jury
4. an intervening act breaks the chain of causation] does not apply where the
very negligence alleged consists of exposing the injured party to the act
causing the injury.
H. Derdarian v. Felix Contracting Corp.
1. Roadworker that was burnt
I. Torres v. JAI Dining Services
1. Reasonableness, a reasonable owner should have known that patron would
attempt to drive home, JAI Dining Services is at fault for proximate cause
J. Marshall v Nugent
1. Car accident, ice
Defenses to Negligence: Fault of the Plaintiff
A. Contributory Negligence
1. Traditional Rule (absolute bar) – If plaintiff contributed even 1% to injury,
cannot win
B. Comparative Fault
1. “Pure” Comparative Fault: New York [323] “Culpable conduct attributable to
the claimant or to the decedent, including contributory negligence or
assumption of risk shall not bar recovery, but the amount of damages
otherwise recoverable shall be diminished in the proportion which the
culpable conduct bears to the culpable conduct which cause the damages.
2. Modified [Type 1]: Wisc. [323] and Pa.: “Contributory negligence does not bar
recovery … if that negligence was not greater than the negligence of the
person against whom recovery is sought, but any damages shall be diminished
in proportion to the amount of negligence attributed to the person recovering.
3. Modified [Type 2]: Colorado: Plaintiff’s recovery is reduced by the percentage
of fault attributable to the plaintiff so long as the plaintiff’s fault is not as great
as the defendant’s. If the plaintiff’s fault is equal to or greater than the
defendant’s, the plaintiff is barred from recovery.
C. Issues with Comparative Fault
1. Jury’s Role: So long as the evidence permits reasonable people to differ,
determining fault percentages is a question of fact, not a matter of law. [n5,
324-5]
2. Multiple defendants: Aggregation or individual comparison? [n4, 324]
a. Aggregation – Can we aggregate defendant’s percentages of fault to
determine if greater than plaintiff’s?
3. Inform the jury (of the potential effect of its verdict)? “Blindfold rule” vs full
jury instructions.
4. Keep or abolish Joint & Several Liability?
5. “Empty Chair” issue: Can liability be assigned to a nonparty?
6. Does P’s negligence per se bar recovery? Maj: No, still entitled to
comparison.
7. What is compared? Negligence with negligence? Negligence with assumption
of the risk? Negligence with intentional conduct? Negligence with
recklessness?
8. Are the “amelioration” doctrines [see below, secs. 4-6] retained?
D. Pohl v County of Furnas
1. If on test, would need to establish each party’s negligent act (for comparative
fault case), make case on both sides
E. Factors for assigning shares of responsibility
1. the nature of the person’s risk-creating conduct, including awareness or
indifference with respect to the risks created by his conduct and any intent
with respect to the harm created by the conduct; and
2. the strength of the causal connection between the person’s risk creating
conduct and the harm.
3. Law is trending in this direction, but not every state accepts restatements as
law ^^^^^^^^^
4. List includes: the nature of the person’s risk-creating conduct, including
awareness or indifference with respect to the risks created by his conduct and
any intent with respect to the harm created by the conduct; and the strength
of the causal connection between the person’s risk creating conduct and the
harm
F. All-or-Nothing Judgments After Comparative Fault
1. Even in states that have adopted a comparative fault regime, some
circumstances will not result in a comparison:
2. Plaintiff not negligent, or conduct not a factual or proximate cause of injury
[nn1-3, p 335]
3. Defendant not negligent or no causation (prima facie case must be made)
[n4,335]
4. Plaintiff’s fault a superseding cause of the harm [n7, 336]
5. Separate injuries, independent causation [n8, 336]
G. Defendant Fully Liable: Policy Reasons
1. Comparative fault not assigned where
“the interests of justice dictate that
contributory negligence be unavailable
as a defense” Bexiga v Havir Mfr. [338-9]
2. D’s breach renders P’s antecedent negligence
legally irrelevant. Mercer (n3, 340)
3. Statutory protection for vulnerable plaintiff
may deny D’s ability to raise comparative fault [nn4,5]
4. “Nonreciprocal risks”/”known disability” [n6, 341-2]
H. Christensen v. Royal
1. 3 Resolutions
a. Public Policy to protect children
b. Xxxxxxxxxxxxxx7:32 pm 10/25/23xxxxxxxxxxxxx
c. Children do not have a duty to protect themselves from sexual abuse by
teachers
I. Comparative Fault “No Duty” Rules
1. Restatement III, Sec. 3 (d): Because of principle or policy, plaintiffs may owe
no duty; therefore cannot breach a duty, and therefore cannot be charged
with comparative fault. n1, 345 Example – landowners to trespassers.
2. Example: No duty for Children in regard to sexual abuse by an adult [nn2,3,
346]: rationales: (1) child safety—put responsibility where it belongs, on the
adult; (2) strong public interest in protection of children; (3) inability of child
to recognize long-term consequences; (4) limited ability to judge
circumstances, based on youth and inexperience
3. No duty to use own property to guard against negligence of another [n5, 3467]
4. No comparative fault in failure to cooperate with criminal act, no duty [n7,
347] bec
5. Consider the effects of… failing to fasten seat belt?
failure to use infant seat properly? or at all?
X.
declining to wear motorcycle helmet and leathers?
wearing five inch heels? [n9, 348]
J. Traditional Exceptions to the Contributory Negligence Bar
1. (A) The Rescue Doctrine [p 349]: Rescuer could not be charged with
contributory negligence. Oulette v Carde [R.I., 1992]. Under a comparative
fault regime, courts may leave the allocation of fault to the jury.
2. (B) Last Clear Chance/Discovered Peril [p 349]: P’s full recovery where P left
in a helpless position (even when due to P’s own negligence), if D had the “last
clear chance” to avoid the injury, but negligently inflicted it. Davies v Mann
[Exch. 1842] Under comparative fault, this doctrine has been abandoned as a
formal rule, but last clear chance arguments are common.
3. (C) Defendant’s Misconduct is Intentional or Reckless [p 350]: P allowed full
recovery where D’s conduct found to be intentional or to exhibit “utter
indifference to or conscious disregard for the safety of others.”
K. Illegal Acts Doctrine
1. Definition: If the Unlawful Acts Doctrine applied, a victim in a personal injury
claim was completely barred from any recovery for injuries if the defendant
could show that the plaintiff was engaged in an illegal act at the time of the
injury, and that the unlawful act caused the injuries.
2. Note that some states retain the doctrine, even where comparative fault has
been adopted. [n1, 354] Greenwald v Van Handel (Conn. 2014)
3. Should the “seriousness” of the illegal activity be considered?
Compare Winschel v Brown (Alaska 2009] w/
Price v Purdue Pharma Co. (Miss. 2006) n2, 354.
4. Statutory Bar: Legislatures may have barred availability of an action or a
defense for policy reasons, e.g. uninsured motorist claims, as in Aronberg V
Tolbert (N.J. 2011) [n3, 354-5]
More Defenses to Negligence: Assumption of the Risk
A. Express Assumption of the Risk
1. As an affirmative defense may also be thought of as a denial that the plaintiff
has presented a prima facie case, based on failing to meet the duty
requirement. As we know, volenti non fit injuria. As in the case below, where
Express AOR is pled and proved, summary judgment follows. (ex. Scarehouse)
2. Stelluti v Casapenn Enterprises (N.J. 2010) [357] Alleged negligence based on
club’s failure to properly maintain a spin bike, and failing to instruct P in its
use.
3. Held: Summary judgment granted and upheld. P had signed a waiver and
release that expressly stated that she agreed to discharge all claims against
the club “from any and all causes of action.” [which would include ordinary
negligence]
4. Express assumption of the risk sounds in contract and occurs when the parties
agree beforehand, either in writing or orally, that the plaintiff will relieve the
defendant of his or her legal duty toward the plaintiff. [Davenport, 333 SC 71,
1998)
5. Because express AOR sounds in contract,
the principles that govern enforceability
of contracts are relevant, especially those
relating to contracts of adhesion, especially
enforcement of exculpatory clauses.
6. Tunkl v Regents of the Univ. of Cali
a. The public policy of this state has been to posit the risk of negligence
upon the actor
7. Six Factors that determine whether contract related to public interest:
a. Contract concerns a business suitable for public regulation
b. Party seeking exculpation performs a service of great importance to the
public; often a practical necessity for some members of the public
c. Party offers to perform this service to any member of the public
d. Because of the essential nature of the service and economic factors, the
party seeking exculpation has a decisive advantage in bargaining
strength
e. A standard adhesion contract of exculpation is presented,
with no provision for the purchaser to contract for protection
against negligence
f. The person or property of the purchaser is placed under
control of the seller, subject to risk of carelessness by the
seller or his agents
8. Express A.O.R. – Notes and Issues
a. Exculpatory clauses in employment agreements offend public policy and
are generally therefore unenforceable n3, 359
b. Releases for participation in recreational activities are generally
enforceable so long as they do not violate the Tunkl factors n4, 359 or
clarity principles n2, 364
c. Majority rule is that parents cannot release minor’s prospective claims
for negligence n7, 361
d. Waivers of liability for recklessness or for intentional torts are
unenforceable as against public policy n8, 361
e. Drafting an exculpatory clause: to be enforceable, release must: (1) be
written in clear terms, free from legal jargon; (2) not be inordinately
long or complicated; (3) specifically address the risk that caused the
plaintiff’s injury; (4) highlight the importance of the information the
clause contains; and (5) [take account of] whether the plaintiff was
experienced in the activity. See Hamric n1, 364
9. Moore v Hartley Motors (Alaska 2001) [361] [What is the: 1. Clarity of waiver,
2. Scope of waiver]
a. Inherent risks
b. Consent form does not release defendant from inherent risks
B. Primary Implied Assumption of the Risk
1. Primary Implied AOR is raised at the pleadings stage, and is part of the basic
negligence analysis. It is maintainable where the plaintiff has knowingly and
willingly participated in an activity with known and appreciated risk. Consent
is implied from the plaintiff’s conduct. The implied consent acts to relieve the
defendant of a duty in regard to specific risks: it is a “no-duty” rule.
2. Murphy v Steeplechase Amusement (NY 1929) Amusement park accident.
Plaintiff watched others trying to negotiate “The Flopper,” stepped on, fell and
was injured. In reversing a judgment for the plaintiff, Cardozo, J. noted: The
risk [of the ride] was a fall. This was the very hazard that was invited and
foreseen. Volenti non fit injuria: One who takes part in such a sport accepts
the dangers that inhere in it, so far as they are obvious. It is a different case if
the dangers are obscure or unobserved.
3. Baseball Rule
a. Definition: requires stadium owners and operators to provide screened
seats for as many spectators as may be reasonably expected to call for
them on any ordinary occasion
b. No recovery for injury that “results from inherent risks of sports”
c. You are assuming the inherent risks by attending game
4. Primary Implied Assumption of the Risk: Sports
a. Sport Spectators: The inherent risk concept is applied as a limited duty
rule – that there are risks that will remain even after a proprietor has
taken precautions and exercised due care for spectator safety. nn2-3,
368-9 *** But exposure to liability will be greater where proprietor has
increased the natural risks. n4, 369
b. Sport Participants: co-participants impliedly assume the inherent risks
of the sport by their participation-may even include behavior outside
the rules. nn1-2, 369-370 *** But participants do not assume the risk of
recklessness, intentional, and/or wanton & willful misconduct n3, 371
Hackbart v Cincinnati Bengals (10th Cir, 1979]
5. Secondary Implied Assumption of the Risk
a. Def. - knowingly encounters a risk and voluntarily exposes himself to it
b. Comparative fault replaces A.O.R.
i.
Compares conduct of employer with conduct of employee
c. Secondary Implied Assumption of the Risk arises when the plaintiff
knowingly encounters a risk and voluntarily exposes himself to it. It is a
true affirmative defense because it is asserted only if plaintiff establishes
a prima facie case. Further, the cases establish that secondary aor may
involve either reasonable or unreasonable conduct on the part of the
plaintiff.
d. Comparative Fault: The majority rule is that secondary implied
assumption of risk is compatible with a comparative fault system, and
therefore is not a complete bar to recovery. The defendant’s fault in an
accident is not diminished solely because the plaintiff knowingly assumes
a risk…In a comparative fault system, it would be incongruous to absolve
XI.
the defendant of all liability based only on whether the plaintiff assumed
the risk of injury. Davenport v Cotton Hope Plantation (S.C. 1998) (& see
n4, 374]
e. Abolishing the implied assumption of risk defense: Restatement (Third),
Sec 3: “When a plaintiff unreasonably confronts a known risk, plaintiff’s
negligence in so doing should operate to reduce the recovery of
damages.” n3, 374
f. Summary: four categories of assumption of risk:
i.
Express assumption of the risk (sounds in contract)
ii.
Primary implied assumption of the risk (implied consent
doctrine)
iii.
Secondary implied reasonable assumption of the risk
(encounter risk created by D’s negligence, act reasonably)
iv.
Secondary implied unreasonable assumption of the risk
(encounter risk created by D’s negligence, act unreasonably)
Defenses not on the Merits
A. Statute of Limitation - set a time period within which a plaintiff must bring a cause of
action. In torts, the time period is generally 1, 2, or 3 years (and may vary with the type
of tort). The goal is to obviate the necessity of defending stale, vexatious, or fraudulent
claims.
1. Statute of Limitations is an affirmative defense, requiring pleading and proof
by a defendant wishing to invoke the defense.
2. Failure to file a cause of action within the applicable statute of limitation
serves as a complete bar to the plaintiff’s action, and will result in the
dismissal of an untimely-filed suit, without consideration or adjudication on
the merits.
3. The “date of injury” rule: Crumpton v Humana, Inc. (N.M. 1983) [378] “the
statute commences running from the date of injury or the date of the alleged
malpractice.”
4. The discovery rule: “to postpone the accrual of a cause of action for the
infliction of bodily injury that does not manifest itself until a point subsequent
to the defendant’s alleged misconduct.” [382]
the date on which the plaintiff is informed by competent medical authority
that he has been injured, OR
5. – the date on which, by the exercise of reasonable diligence, he should have
become aware that he had been injured,
- whichever comes first
6. The “Continuous Treatment rule: for professional malpractice cases, and some
continuing abuse cases, the statute does not begin to run until the treatment
for which the patient consulted a physician/attorney/counselor or other
authority) has been concluded [n2, 379]
7. Continuous Tort” Rule: Statute may be tolled where P has been subjected to a
series of wrongful acts over time by the defendant; the statute will not begin
to run until the last incident of wrongdoing. [n3, 378]
8. “Discovery” of the Harm [n1, 383] Variations among jurisdictions:
[a] claim accrues “upon discovery of the injury”
[b] statute begins to run when P knows or reasonably should know of the
injury, and D proximately caused the injury
[c] claim accrues “when all elements of the claim or cause exist”: (1) P knows
they have been injured, (2) identity of the tortfeasor, its duty and breach, is
known, and (3) the causal link from the breach to the injury can be identified
9. Unknown Defendant: possibility of a “Doe” complaint [n2, 384]
10. Diligence: many Discovery Rule States impose a “duty to investigate,”
requiring plaintiff to be “reasonably diligent” in investigating the injury and its
claimed cause [n3, 384]
11. Role of the Jury: “should have discovered,” and “reasonable diligence” are
jury question--if there are facts on which reasonable minds may differ [n4,
384-5]
12. Role of statute in creating specialized dates of accrual – see n5, 385
13. Statute of Limitations may be “tolled” (its running paused) where justice
requires—usually until some impediment to litigation has been removed [n1,
388]
14. Minority Status: most state laws toll the limitations statute until a child (who
meets the other conditions for a claim) reaches the age of majority [n2, 388]
Note the importance of this in repressed memory cases. [n4, 389]
15. Unsound Mind: statute may be tolled if the potential plaintiff is in a condition
that prevents their ability to comprehend their legal rights and liabilities, or
they are unable to manage their day-to-day lives [n3, 388-9]
16. Legitimate Unavailability: Plaintiff is in military service; or is incarcerated; or is
awaiting certification of a class action. [n5, 389]
17. Grace Period: by statute, state may extend statute of limitations period [n6,
389-90]
18. n1, 390: A defendant may be estopped from raising a statute of limitations
defense where plaintiff’s delay in filing (1) was induced by the defendant; (2)
defendant misled the plaintiff; and (3) plaintiff acted in good faith, relying on
the information or inducement by the defendant and therefore failed to file in
a timely manner.
19. cf Dasha v Maine Medical Center 665 A. 2d 993 (Maine, 1995) [pp 390] Note
the application of the requirements, in particular the nature of the
misrepresentation.
20. n2, 391: If defendant prevents plaintiff’s timely filing due to threats or
physical force, defendant will be estopped from raising a statute of limitations
defense.
21. n3, 391: Fraudulent Concealment: statute will be tolled if D (1) knew of its
wrongful action and acted to conceal it from P, and (2) P did not know, or
could not, in the exercise of due diligence know, of the cause of action.
22. n4 391-2: Equitable Tolling: Litigant prevented, through no fault of its own,
from pursuing a claim (unable to obtain necessary evidence, e.g.).
XII.
B. Statutes of Repose
1. While Statutes of Limitation are procedural rules, Statutes of Repose are
substantive, as they set an outer limit of years beyond which a defendant will
no longer bear legal responsibility for a completed action: e.g.: a medical
procedure, putting a product in the stream of commerce, architectural design,
construction of a structure, e.g.
2. Statutes of repose “effect a legislative judgment that a defendant should be
free from liability after the legislatively determined time. Like a discharge in
bankruptcy, a statute of repose can be said to provide a fresh start or freedom
from liability.” CTS Corp. v Waldburger 573 U.S. 1 (2014).
3. The time limit is measured from the date on which the “last culpable act or
omission” occurred (Waldburger) [n1, 393]
4. Equitable tolling is not available. [n3, 394]
5. Consider Durre v Wilkinson Development (Neb. 2013) [p 392]:
10-year Statute of Repose for construction projects barred
P’s claim for injuries from pole structure falling on them.
Sign erected May 1999, sign collapse April 2009,
suit filed November 2009.
C. Federal Preemption
1. Once federal government has acted directly or indirectly thru one of its
agencies and preempted state law, conflicting state law or regulations cannot
be enforced
2. Effect of preemption: Where Congressional intent to preempt is found,
conflicting state causes of action, whether based on statute or common law,
are extinguished. Determining legislative intent is therefore critical.
3. Congressional intent made clear by:
a. an express statutory provision [Hazardous Material Transportation Act];
b. enacting a comprehensive regulatory scheme that leaves no room for
contrary state law [n5, 400 Marshall v Burlington Northern];
enacting legislation that directly conflicts with state law [Medical Device
Amendments Act].
Tort Damages
A. Constitutional Torts: Where there is physical or property harm from a constitutional
violation, normal damage rules apply. Even absent such harm, the Supreme Court has
held that nominal damages are available. [913] (Ashburn v. Wright)
B. Property Torts: Damages are measured by the loss or diminution of value of the
property, and may include repair costs, inconvenience, and loss of use. [914]
C. Injunction: Where the goal is to stop or prevent behavior that invades/will invade
plaintiff’s interests, the injunctive remedy provides necessary relief. [915]
D. Personal Injury Torts: Where plaintiff has succeeded in establishing liability under at
least one theory (intentional conduct, negligence, or strict liability), compensatory
damage awards seek “to make the plaintiff whole for the injury,” “to restore the injured
party, to the extent possible, to the position that would have been occupied had the
wrong not occurred.” McDougald v Garber (NY 1989) [915]. Punitive damages may be
E.
F.
G.
H.
awarded where the defendant’s conduct goes beyond mere negligence, for example, is
intentional, malicious, wanton, or willful.
Compensatory Damages
1. Basis—that D has wrongfully reduced the plaintiff’s net assets, tangible and
intangible, and should be required to restore them—that is, to restore the
plaintiff to the condition the plaintiff was in before the tort. . . [n1, p 14]
2. Medical expenses: physicians, other medical professionals, nursing care,
medications, etc. resulting from the tort. These may include special costs, e.g.
travel, medical devices), and future medical expenses (including continuing
care, psychiatric/psychological treatment) see n1, p 14
3. Lost wages and lost earning capacity [n4, pp 14-15]
4. Pain and suffering, current and future, including mental suffering [n3, p 14]
5. Medical monitoring [NOTE, pp 925-926]
6. Physical Impairment/Disfigurement/Permanency [n2, 922]
7. “Hedonic Damages” [n3, 923]
8. Loss of enjoyment of Life [p 921]
9. Martin v United States - Reduction to present value (the single judgment rule)
[n1, 919]: Award adjusted upward for inflation, then downward to adjust for
anticipated return on investment. These calculations (as well as type of
employment and duration of career and life) require expert testimony.
10. Taxability: Compensatory Damages are not “income” – so they are excluded
from gross income calculation for federal (and most state) income taxes;
punitive damages not so
11. Pain and Suffering [nn 4, 5, 920]: Includes the negative emotional reactions to
pain as well as the pain itself. See n3, p 14. N.B. the “awareness” issue: [n4,
924]
12. Argumentation: “per diem” and “unit of time” arguments [n6 – 920]
a. Per Diem – “$6 per day for rest of life” – no bueno
b. Unit of Time – “day in the life video”
13. Variation and Comparability: role of judge and jury [n7, 924]
Loss of Enjoyment of Life
1. Pain and Suffering includes: xxxxxxxxxxxxxxx11/8/23xxxxxxxxxxxxxxxxxx
Medical Monitoring Damages
1. Majority: Award of medical monitoring damages may be possible where
plaintiff(s) have been exposed to toxic substances that have resulted in
physical harm, but also have increased risk of future harm
2. Minority: May allow such an award even where no present physical injury.
See Burns v Jaquays Mining Corp. (AZ, 1987) – p925 – long-term exposure to
asbestos.
Controls on Damages
1. Judicial Control, Trial or Appellate: Court has the ability to set aside a
damages award if it appears to have been the product of passion or prejudice,
or where the evidence cannot in the Court’s opinion, justify the verdict.
I.
J.
2. Remittitur: A means by which a court can control an excessive jury award. A
remittitur is an order providing a plaintiff with an option: to accept a damage
award smaller than that awarded by the jury or else a new trial will be
ordered.
3. Additur: (Increscitur): An order to address an insufficient jury award in order
to avoid a new trial. n.b.: Additur has been held unconstitutional in Federal
Courts as a violation of the guarantee of a jury trial in the Seventh
Amendment.
4. The Avoidable Consequences Doctrine or Mitigation of Damages Doctrine:
prevents a plaintiff from claiming permanency if the permanency could have
been avoided by submitting to treatment when a reasonable person would
have done so, or damages may be reduced or plaintiff may not recover for
damages that could have been avoided by reasonable treatment. See n9, 337,
p 926
Avoidable Consequences or Mintigation of Damages Rule
1. Mitigation of damages may be required, and recovery reduced or denied
where plaintiff failed to take reasonable steps to reduce the impact of the
injury caused by defendant. Elements of the defense of failure to mitigate
damages:
a. plaintiff’s conduct exacerbated their original injury, and/or
b. plaintiff failed to take reasonable action to lessen the damages
c. plaintiff’s failure caused need for further medical costs
Collateral Source Rule
1. Excludes payments from other sources to plaintiffs from being used to reduce
damage awards imposed upon culpable defendants – denying the tortfeasor
any offset or credit against the injured party’s damages.
a. Even though these collateral sources mitigate the injured party’s loss,
they do not reduce the tortfeasor’s liability.
2. The law is clear that a tort victim who has incurred medical expenses, suffered
lost wages, or experienced other compensable loss, may sue the tortfeasor
for the entire amount of the victim’s injuries even if those losses have been
neutralized by the victim’s relatives, by the victim’s employer, or through the
kindness of strangers.
3. The collateral source rule is both a rule of evidence and a rule of damages.
4. “As a rule of evidence, the rule precludes the defendant in a personal injury
or wrongful death case from introducing evidence that some of the plaintiff’s
damages have been paid by a collateral source, because the likelihood of
misuse by the jury clearly outweighs the probative value of the evidence.”
5. “As a rule of damages, the collateral source rule precludes the defendant
from offsetting the judgment against any receipt of collateral sources by the
plaintiff. The party at fault should not be able to minimize his damages by
offsetting payments received by the injured party through his own
independent arrangements.” Ketchum, J. in Kenney v Liston op cit.
6. Examples of what is inadmissible in states that follow the rule: life, health, or
accident insurance benefits, workers’ comp, sick pay and voluntary wage
continuation, gratuitous nursing, veterans’ and military benefits. Query:
voluntary discounting of medical bills?
K. Tort Reform and Compensatory Damages
1. Abolishing or Limiting the Collateral Source Rule n6, 929
a. About half the states have abolished or limited the Collateral Source
Rule, mainly in medical malpractice cases or suits against public entities
2. Restoring lost immunities (governmental or charitable) n4(b), 931
3. Imposing Damage Caps
a. limits or ratios for noneconomic damages
b. Caps for certain types of cases/defendants
4. Constitutionality: caps have been challenged and some overturned on the
basis of denial of U.S. and/or state Constitutional rights: trial by jury; due
process; denial of equal protection (n8, 932); for discrimination against
protected groups [n11, 933]; see “themes” n9, 932
5. Challenged also for claimed violation of specific protective statutes (ADA,
Elder Abuse Act, Seaman’s Relief Act, e.g.)
L. Punitive Damages
1. Rules and Goals: from Dobbs, The Law of Remedies 934-935
a. Awarded only upon proof of misconduct coupled with malice,
recklessness, etc. Prima facie cause of action, including harm, must first
be established
b. Purposes: punishment, deterrence, financing useful litigation
c. Judge and jury: Court decides whether facts support allowing evidence
on defendant’s conduct, (and giving punitive damage instruction); jury
decides [a] whether the dual burden is met and [b] how much to award.
Extreme awards may violate due process (see cases below)
d. A “clear and convincing evidence” standard of proof may be required
e. Evidence of defendant’s wealth is normally admissible on this issue
f. Vicariously liable defendants may be charged with punitive damages,
especially if they directed, participated in, encouraged or ratified the
tortious conduct
g. Insurers may be liable if no reservation (immunity from damages) in the
policy
h. Harms to multiple parties may result in multiple punitive damage
awards
i. There is a growing trend, supported by Supreme Court jurisprudence,
toward proportionality (damages should fit injury done)
2. State of Mind/Deterrence:
a. Owens-Corning v Ballard (Fla 1999) [936]:
30-year record of concealment, “intentional and knowing”
misrepresentation, continuing to market a known carcinogenic product,
XIII.
was ample evidence of wanton and willful misconduct
to justify punitive damages of $31M.
3. “Measurement” of Punitive Damages: traditional factors:
- reprehensibility of defendant’s misconduct
- defendant’s wealth (as related to the misconduct);
- “ratio” between compensatory and punitive damages
4. The “Excessiveness” Issue: In BMW of North America v Gore (U.S. 1996) the
Court established guidelines for evaluating whether a punitive damage award
is “excessive”:
a. degree of reprehensibility of defendant’s conduct,
b. disparity between the actual damages and the punitive award–the Ratio
issue and
c. relationship to other legal sanctions for comparable misconduct.
5. Limited Punitive Damage Awards
a. Bifurcation of trials [n2, 938]: Separating fault from damages clarifies a
jury’s finding in both areas, and helps to avoid “assigning fault based on
wealth.”
b. Ratios: Several states have either followed the Supremes’ advice (a
single-digit relationship) or established some other method of
establishing proportionality, for example, comparing the award to
potential actual harm
c. Proof Standards: Requiring proof of reprehensibility by “clear and
convincing evidence,” e.g., or to prove “specific malice.” [n3, 939] or
requiring proof of malice as threshold issue [n5, 939]
d. Statutes redirecting a portion of the award: To respond to the “windfall”
argument, some state redirect a portion of a punitive damage award
(usually above a certain multiple) to the state or to a designated
beneficiary (a victim’s fund, for example) [n6, 939]
e. Statutory ratio caps: Ohio 2X compensatories; Utah 3:1 ratio; Georgia
flat cap
f. Mathias v. Accor Economy Lodging
i.
Insert
ii.
3 Takeaways
iii.
Here xxxxxxxxxxxxxxxxxxxxxxxxx6:40 pm, 11/15/23xxxxxxxxxxxx
g. Philip Morris USA v Williams (U.S. 2007) Award is limited to the harm of
the litigant; “a punitive damages award based in part on the jury’s desire
to punish a defendant for harming nonparties violates ujdue process.”
BUT harm to nonparties may be used as evidence of reprehensibility.
Wrongful Death and Survival Actions
A. Wrongful Death Statute: Provides a cause of action on behalf of those who were
dependent on the deceased person for their own injuries caused by the wrongful death
of that person.
1. Think of this as negligence, only the injury suffered is the death
B. Survival Statute: Allows an action brought by the estate of an injured person who dies
before receiving judgment to continue on her/his behalf. –AND-- allows a cause of
action to survive the death of a defendant against whom judgment had not yet been
rendered.
C. Survival Action: [691] NDCC 28-01-26.1. No action … except for breach of promise,
alienation of affections, libel and slander, abates by the death of a party or of a person
who might have been a party had such death not occurred …
1. [p 691]: Survival statutes are remedial in nature and are intended to permit
recovery by the representatives of the deceased for damages the deceased
could have recovered had he lived … A survival action merely continues in
existence an injured person’s claim after death as an asset of his estate.
D. Wrongful Death Action: [p 691] Contemporary wrongful death statutes tend to address
a broader scope of injuries, including those considered non-pecuniary. … Wrongful death
statutes are intended to compensate the survivors of the deceased for the losses they
have sustained as a result of a wrongful killing. … Losses recoverable … include the
prospective loss of earnings and contribution; prospective expenses; loss of services; loss
of companionship, comfort and consortium; and mental anguish and grief.
1. NDCC 32-21: Whenever the death of a person shall be caused by a wrongful
act, neglect or default, and the act … is such as would have entitled the party
injured, if death had not ensued, to maintain an action and recover damages
in respect thereof then [the entity] which would have been liable if death had
not ensued, shall be liable to an action for damages
E. Survival Actions: Overview
1. A Survival action is a claim that the decedent initiated, or could have brought
had she/he lived. Plaintiff is the personal representative of the decedent’s
estate. n1, 693
2. Plaintiff’s Death: Tort victim initiates suit but dies before judgment. The claim
is “revived,” but the plaintiff is now the personal representative of the
decedent’s estate. Or plaintiff has a cause of action but has not yet brought
suit. The action in that case is initiated by the personal representative. n3,
694, n10, 698
3. Defendant’s Death: under most statutes c/a survives the defendant’s death
n10, 698
4. Survival Damages: Any recovery becomes a debt owed to the estate, and will
be treated as an asset of the estate. The estate is administered in the normal
way: decedent’s debts and the costs of administration are first paid, and only
then will there be sums paid to the heirs or beneficiaries if assets remain.
n3,694
5. Damage Categories: Medical expenses until death, lost wages before death,
pain and suffering. Majority: Punitive damages if supported by the facts.
6. Actions that do not survive: “dignitary torts”: defamation & invasions of
privacy
F. Wrongful Death Actions: Overview
1. Wrongful Death Action: This is an ordinary tort claim, under any theory of
recovery, that the culpable actions of the defendant proximately caused the
death of an individual and thereby harmed her/his survivors by depriving
them of financial and other support n1, 693
2. The plaintiff is a survivor or survivors of the decedent, or a trustee on behalf
of all survivors, or the personal representative of the estate of the decedent.
n2, 693
3. Damage Recovery: Recovery in a wrongful death action is paid directly to the
survivors. Goal of the damage award is to “replace pecuniary losses that
would be suffered by others because of the decedent’s death. nn 2-5, 697.
4. Damage Categories: (1) Loss of support to dependents. n2, 697, (2) Future
losses n8, 698 (3) Non-pecuniary damages, including punitive damages,
survivors’ mental anguish or grief, loss of consortium, loss of guidance n7, 698
(4) loss of consortium n7, 698
5. Statutory Exclusions: e.g.: In any wrongful death action, there shall be no
recovery for loss of enjoyment of life caused by death … {and the Code] bars
hedonic damages… Laney v Vance p 695, Miss. Code Sec. 11-1-69(2). n.b,
Minority of states allow.
G. Beneficiaries
1. Distribution: Distribution is a matter for the Court; statutes may place
restrictions on division of proceeds or eligible beneficiaries—look first to the
statute; see Chavez v Carpenter (Cal. App 2001) p 703 for discussion of who
may recover
2. Calculation: as an example of how damages may be calculated, see excerpt
from Final Report of the Special Master for the September 11th Victim
Compensation Fund of 2001 (pp 699-702)
H. Defenses
1. Contributory Negligence/Assumption of Risk by Decedent: n1, 705
a. Wrongful Death Action: Derivative Action “Rule”: D may introduce
these defenses if the action is deemed to be “derivative” of the
deceased person’s claim, but may not be available if the heirs’ claim is
deemed to be “independent” of it.
b. Survival Action: Majority rule is that these defenses are available, since
they could have been asserted in a suit filed before death
2. Contributory Negligence by Beneficiary n2, 705-6
a. Survival Claims: Since the suit is by the estate and is the decedent’s own
claim, contributory fault by an heir while technically irrelevant to the
cause of action, may result in a set-off based on the degree of fault on
the part of the heir
b. Wrongful Death Claims: Comparative fault allows for reduction of
damages or contribution from culpable beneficiaries to reduce
defendant’s damage liability
3. Statutes of Limitations n3, 706-7
a. Majority view is statute does not start running until death, even if it
would have barred the action by decedent during life. Some, however,
hold to the view that a wrongful death action that would have been
barred during decedent’s life is barred after death.
Negligence - Duty, breach, causation, harm
Final Exam Setup
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All essay, no MC, all about analysis. Sample question format: 1. encounter a fact pattern, 2.
evaluate the plaintiff’s burden in proving this case, 3. defendant has moved for summary
judgment, why or why not?
Do NOT have to remember the names of the cases, helpful sometimes to remember the
reasoning
Test of your tolerance of ambiguity, understand principles and philosophy
Case Briefing
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Facts: a summary of evidentiary findings at the trial court level as adopted by the appellate
court (cases = reading a portion of appellate opinion)
o What did appellate court see as the important facts of the case?
Procedural Posture – assignments of error by appellant (and/or cross-appeals by the
appellee) are based on claimed failures in process- admission of evidence, grant/denial of a
motion (to dismiss/demurrer, motion for directed verdict, for summary judgment, summary
judgment, motions in limine, etc.)
o I believe the court did something wrong, judge did something wrong, (ex. Judge did
not instruct jury correctly, permitted evidence to be introduced that was prejudicial)
Issue – The substantive question on which the appellate court must rule (triggered by the
procedural point of appeal)
o How do we phrase the question that the appellate court had
o Was there error on the part of the trial court?
Holding – Appellate court’s disposition
Reasoning – How do they explain it
Application – How does this relate to prior cases? How might this issue apply to other
scenarios
Evaluation – How does the case contribute to understanding tort law?
Key Process for Civil Courts
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Pleadings: Motion to Dismiss/Demurrer (some states call it demurrer)
Motion for Summary Judgment (court’s construction of the facts)
Motions in Limine (to exclude evidence from being presented to jury)
Plaintiff’s Case: objections
Motion for a Directed Verdict (def.)/ Judgment as a Matter of Law (plaintiff)
Defendant’s Case: objections
Proposed Jury Instructions, Jury Instructions, Objections
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Motion JNOV (judgment non obstante veredicto)
Motion for a New Trial (error or justice)
Continuum of Culpability (overview of future Torts topics)
4. “Intent”: intent to produce a consequence [includes either]: (1) acting with a
purpose of producing the consequence OR (2) acting knowing that the
consequence is substantially certain to occur n3, 49 RIII Sec. 1
5. “Reckless, willful, and wanton conduct”: when a person’s conduct creates a
known risk that can be reduced by relatively modest precautions. RIII Sec ;
Recklessness requires a conscious choice of a course of action either with
knowledge of the serious danger to others involved in it OR with knowledge of
facts that would disclose this danger to any reasonable man, and the actor
must recognize that his conduct involves a risk substantially greater than that
which is necessary to make his conduct negligent. Doe v Hartford R.C. Diocese
n5, p50 (known pedophile was transferred from parish to parish, diocese is
negligent)
6. Negligence: Negligence commonly refers to conduct that breaches the
standard of reasonable care … [Its elements are] existence of a legal duty,
breach of that duty, factual cause, scope of liability, and legally cognizable
harm. Franklin, et al. Tort Law and Alternatives 11th ed.