American Tort Law
University of Insubria, Como, Italy
Ann C. McGinley
William S. Boyd School of Law
University of Nevada, Las Vegas
Class 1
The Court System; Branches of
Government
Intentional Torts
Three Branches of Government
• The Courts (state and federal)
• The Legislature (state and federal—Congress)
• The Executive (The President and
Administrative Agencies; in states – the
Governors and Administrative Agencies)
The United States’ Federal Court of
Appeals
AMY E. SLOAN, BASIC LEGAL RESEARCH: TOOLS AND STRATEGIES 7 (4th ed. 2009).
AMY E. SLOAN, BASIC LEGAL RESEARCH: TOOLS AND STRATEGIES 7 (4th ed. 2009).
AMY E. SLOAN, BASIC LEGAL RESEARCH:
TOOLS AND STRATEGIES 201 (4th ed. 2009).
Lexis-Nexis Congressional Universe,
How Does a Bill Become Law?
American Tort Law
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State law
Common Law system
Sometimes codified in statutes
Common law vs Code law?
The Restatement of Torts
Tort cases in federal court
• Some federal laws governing torts
• Diversity jurisdiction – citizens are of different
states (or of a state and a foreign country)
• Federal courts apply the law of the state
whose law applies (usually where the injury
occurred)
Importance of Facts
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How do courts decide cases?
Importance of facts
Binding or Persuasive Precedent
If Binding and it goes against you – Distinguish
the Facts; If it goes with you, Analogize the
Facts
• Argue policy
Importance of Procedure
• Due Process – Constitutional Guarantee –
“Fairness” “Opportunity to be Heard”
• Jury Trials
• Role of Judge (determines applicable law)
• Role of Jury (finds facts and applies law)
• Motions to Dismiss; Summary Judgment
Appellate Courts
• Did lower court err in law?
• May not revisit the facts unless the lower
court is the fact finder and the fact finding is
clearly erroneous
• Will not usually overturn the jury’s fact finding
but may find that the judge’s jury instructions
were erroneous - case may be tried again
Standards of Review - Appellate Courts
• Questions of law -- look at the issue “de novo”
• Questions of fact -- overturn a court’s finding
of facts only if “clearly erroneous”
• Appellate courts do not take testimony – fact
finders had opportunity to see the witnesses
testify – more qualified to decide the facts
Supreme Court (federal) or (state)
• Binding precedent
• Stare decisis
Lawyers’ Fees in Tort Cases
• Contingency Fees
What are torts?
Types of Torts
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Intentional
Negligence
Strict Liability
Products Liability
Personal and Emotional Harms
– Defamation
– Privacy
– Intentional Infliction of Emotional Distress
Intentional Torts
– Assault
– Battery
– False Imprisonment
– Intentional Infliction of Emotional Distress
– Trespass
– Conversion
What does “intent” mean?
• Acting with purpose to bring about the result
• Acting with knowledge that result is a
substantial certainty
Cohen v. Smith
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Battery
Intentional Infliction of Emotional Distress
Facts?
Procedure?
What court decided this case?
Issue?
Holding?
Definition of Battery
• The Restatement (Second) of Torts:
• "(a) he acts intending to cause a harmful or
offensive contact with the person of the other or
a third person, or an imminent apprehension of
such a contact, and
• (b) a harmful contact with the person of the
other directly or indirectly results.”)
• Liability for battery = plaintiff's lack of consent to
the touching. "Offensive contact“ occurs when
the contact "offends a reasonable sense of
personal dignity.“
Battery -- Elements
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A voluntary act
Touching
Harm or Offense
Intent to touch
Intent to cause harm or offense (or knowledge
to a substantial certainty that harm or offense
will occur)
Definition of Intentional Infliction of
Emotional Distress
• (1) extreme and outrageous conduct
• (2) intent to cause, or reckless disregard of
probability of causing emotional distress
• (3) severe or extreme emotional distress; and
• (4) an actual proximate causation of
emotional distress by the defendant's
outrageous conduct
Practice Problems
• Cohen v. Smith – What if the plaintiff had not
told the doctors that she did not want to be
viewed naked or touched by a male doctor?
Would there still be a battery? Why? Why
not?
• Consent can be a defense to battery. How
would a defendant attempt to make out this
defense in a case similar to this case?
Problems
• Cohen v. Smith – What is the difference
between battery and intentional infliction of
emotional distress?
• If you were a member of the jury, would you
vote for the plaintiff in a) the battery case; b)
the intentional infliction of emotional distress
case?
Assault – Raess v. Doescher
Jury Instruction 10C -- Assault
• To establish assault, Mr. Doescher [the
plaintiff] must prove, by a preponderance of
the evidence, that Dr. Raess acted in such a
manner that Mr. Doescher was in reasonable
fear of imminent harm at the time when Dr.
Raess had the ability to inflict harm. No
physical contact had to occur so long as Mr.
Doescher was reasonably afraid that such
contact would occur.
Definition of Assault
• one acts intending to cause an imminent
apprehension of a harmful or offensive
contact with another person.
• Issue here– Did Dr. Raess intend to cause an
imminent apprehension of a harmful or
offensive contact?
• What is the evidence of intent?
Assault -- Elements
• Voluntary Act
• Creates a fear or apprehension of imminent
harmful or offensive contact
• Intent to create fear or apprehension of
imminent harmful or offensive contact
Practice Problem
• Raess v. Doescher – Should the doctor be
liable for this behavior? Isn’t this ordinary
behavior in workplaces, especially stressful
workplaces?
• Did the defendant in this case have a purpose
to bring about Raess’ distress? If not, how can
Raess prove intent?
False Imprisonment -- Fuerschbach v.
Southwest Airlines Co.
Elements of False Imprisonment
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Confinement of another
Within bounds
Against their will or consent
For an appreciable time, however short
Victim is aware of the confinement or harmed
by the contact
What was the defense here?
• Did it work?
• Why? Why not?
Practice Problem
• Fuerschback v. Southwest Airlines – The
defendants in this case were playing a prank
on the plaintiff. How, then, can the plaintiff
prove intent in this case? Does the intent
have to be to harm the plaintiff or in a false
imprisonment case, to confine the plaintiff
against her will?
Trespass
• Voluntary entry upon the land of another
• Without consent
Conversion
• Treating another’s personal property as one’s
own. Converting that property to one’s
personal use.
eg. – finding a watch and keeping it
eg. – borrowing a car and never returning it
eg. – stealing a person’s diamond ring
Conversion Problem
• I borrow my brother’s tie and do not return it.
I begin to wear it regularly. Is this a
conversion? What if I take my friend’s car on a
“joy ride”?
Trespass Problem
• Cat howling on the wall between my
neighbor’s and my property. I throw a shoe at
the cat and the shoe goes into my neighbor’s
yard. Is this a trespass?
Image: Francesco Marino/ FreeDigitalPhotos.net
Key Terminology
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Liability
Battery
Consent
Privacy
Personal integrity
Damages
Complaint
Intentional Infliction
of Emotional Distress
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Attorney
State a claim
Allegation
Reversed and
remanded
Jury verdict
Assault
Affirm the judgment
Trial court
Key Terminology continued
• Court of
appeals/appellate court
• Compensatory damages
• Punitive damages
• Plaintiff
• Defendant
• Evidence
• Intent
• Burden of proof
• Preponderance of the
evidence
• Substantial evidence
• Motion for summary
judgment
• False imprisonment
• Good faith and
reasonable belief
• Trespass
• Conversion
Negligence
CLASS 2
Negligence -- Elements
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Duty
Breach of duty
Causation (actual and proximate)
Harm
What Duty is Owed?
• Reasonable care – care
that an ordinarily
prudent person would
take under the
circumstances
• Would an ordinarily
prudent person drop a
banana peel on the
sidewalk?
Was it a breach of duty to not have a
handrail?
Magic Johnson
Photo by Rafael Amado
Doe v. Johnson
• Facts?
• Who determines what the duty is here?
How court determines duty
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Balancing of the following:
(1) Foreseeability of harm to plaintiff;
(2) degree of certainty that plaintiff suffered injury;
(3) closeness of connection between defendant's conduct and
injury suffered;
(4) moral blame attached to defendant's conduct;
(5) policy of preventing future harm;
(6) extent of burden to defendant and the consequences to the
community of imposing a duty to exercise care with resulting
liability for the breach; and (
7) availability, costs, and prevalence of insurance for the risk
involved.
What is the issue here?
• What does the court decide?
• What happens procedurally in this case?
Guido Calabresi
Causation – Actual Cause
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Zuchowicz v. United States
Facts?
Issue?
Importance of the expert witnesses?
Why was it difficult to prove cause?
Proximate Cause
• Concept of limitation of liability
• Where do we cut the chain of causation?
• In Walsh v. Miller example – would it make
sense to hold Dr. Miller liable?
Palsgraf v. The Long Island Railroad
Co.
Image: Tom Curtis / FreeDigitalPhotos.net
Palsgraf
• Cardozo – majority• foreseeability
• Anderson – dissent
(which is closer to
today’s law)
• Accident does not have
to act exactly as would
be foreseen
• Look at distance in time
and place
• How remote is the
injury from the act?
Key Terminology
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Negligence
Duty
Breach of Duty
Motion to Dismiss
Breaches a legal duty
Cause of action
Knew or should have known
Balancing factors
Actual knowledge
Foreseeable
Duty to act as a reasonable
person under the circumstances
• Duty to inform
• Actual cause
• Bench trial
• Stipulate
• A reasonable medical
certainty/A reasonable
degree of scientific certainty
• But for cause
• Circumstantial evidence
• Proximate cause
• Economic damages
• Non-economic damages
Class 3
Medical Malpractice and Health Care
Reform
Purpose of Medical Malpractice Claims
• Compensate victims
• Deter negligence and encourage systems that
avoid negligent medical behavior
• Approximately 100,000 people die every year
in hospitals in the US because of malpractice
(hospitals, doctors, nurses, etc)
Proving Medical Malpractice =
Negligence
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Duty
Breach
Causation (actual and proximate
Harm
What’s Different from Ordinary
Negligence?
• Proving duty and breach requires establishing
standard of care
• Expert testimony ordinarily needed to
establish standard of care and causation
• What standard of care to use?
- locality
- modified locality
- national standard
Expert Testimony in Med Mal Cases
• Who can testify?
- expert in the field – in same specialty
e.g. – a cardiologist will testify about what a
reasonable cardiologist would do under
similar circumstances
Res ipsa loquitur
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“The thing speaks for itself”
no expert testimony needed
If very obvious
Some states – regulated by statute – see NRS
41A.100
Concetta Tomasone
Concetta Tomasone
• What happened?
• Does the statute NRS 41A.100 affect the proof
in this case?
• Explain
Image: jscreationzs / FreeDigitalPhotos.net
Informed Consent – Smith v. Cotter
• Bodily Autonomy
• Can be held liable if Dr. failed to get the
patient’s consent and the patient suffers a
side effect
Smith v. Cotter
• Facts?
• What does the plaintiff have to prove?
– Lack of information and consent (What
information does the doctor have to give?
– Causation – Plaintiff would not have undergone
the procedure if she had known of the risk and a
reasonable person would not have undergone the
procedure
Debates over Health Care Reform and
Malpractice Reform
• Does malpractice law fulfill its purpose?
– Compensate victims
– Deter negligence of medical professionals?
– Encourage better systems to avoid negligence?
– Many doctors say that the law leads to excessive
tests and expenses – limit needed
– Some states – statutes limiting damages- NRS.
41A. 035 – limits non-economic damages
NRS 41A.035
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Limits non-economic damages
What are non-economic damages?
What are economic damages?
Who is harmed from the limitation?
Image: jscreationzs / FreeDigitalPhotos.net
Image: Carlos Porto / FreeDigitalPhotos.net
Federal Health Care Reform
• Does not limit medical malpractice damages
• Some say without the limit, costs will spiral –
Newt Gingrich
• Others argue that medical malpractice suits do
not contribute to rise in cost of health care –
Black, Silver, Hyman and Sage
Key Terminology
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Standard of care
Medical malpractice
Res ipsa loquitur
Rebuttable presumption
Compensate victims
Deter negligent behavior
District court
Informed consent
Conflicting evidence
Credible evidence
Vicarious Liability, Strict Liability, Products Liability
CLASS 4
Vicarious Liability
• Respondeat Superior
Employers liable for torts committed by
employees within the scope of their
employment
• Issue: What does “within the scope of
employment mean”
Strict Liability
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Certain activities – extremely dangerous
Eg.- blasting with dynamite, etc.
Toxic torts – environmental degradation
Nuisance
Common carriers (airplanes, trains)
Products Liability
• Originally – contract principles – breach of
warranty, etc.
• Strict products liability – expanded concept to
manufacturer and seller liability for defects in:
– Manufacturing
– Design
– Warning
Restatement (Second) of Torts, 1965
Restatement (Second) of Torts, Section
402A
• § 402A Special Liability of Seller of Product for Physical Harm to User or
Consumer
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• (1) Seller of product in a defective condition unreasonably dangerous to
the user or consumer liable for physical harm caused to the ultimate user
or consumer, or to his property, if
• (a) seller is engaged in the business of selling such a product, and
• (b) it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold.
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• (2) The rule stated in Subsection (1) applies although
• (a) the seller has exercised all possible care in the preparation and sale of
his product, and
• (b) the user or consumer has not bought the product from or entered into
any contractual relation with the seller.
Restatement (Third) of Products
Liability (1998)
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§ 2 Categories of Product Defect
A product is defective when, at the time of sale or distribution, it contains a
manufacturing defect, is defective in design, or is defective because of inadequate
instructions or warnings. A product:
(a) contains a manufacturing defect when the product departs from its intended
design even though all possible care was exercised in the preparation and
marketing of the product;
(b) is defective in design when the foreseeable risks of harm posed by the product
could have been reduced or avoided by the adoption of a reasonable alternative
design by the seller or other distributor, or a predecessor in the commercial chain
of distribution, and the omission of the alternative design renders the product not
reasonably safe;
(c) is defective because of inadequate instructions or warnings when the
foreseeable risks of harm posed by the product could have been reduced or
avoided by the provision of reasonable instructions or warnings by the seller or
other distributor, or a predecessor in the commercial chain of distribution, and the
omission of the instructions or warnings renders the product not reasonably safe.
Comparison of Restatements (Second)
and (Third) – Design Defect
• (Second) is more consumer-friendly
• (Third) is more business-friendly
• Some states favor the second and others the
third
Is there a design defect?
• Restatement (Second) – consumer
expectations test
• Restatement (Third) -- risk/utility test. The
plaintiff has the burden of proving that the
risk of harm was foreseeable and that it could
have been avoided by a reasonable alternative
design. This proof often requires expensive
expert testimony.
• Compare Leichtamer and Honda
Leichtamer - 1976 Jeep Model CJ7
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Facts
Issue
Holding
Reasoning
Honda Civic – 4 doors 1991
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Image Source: Honda Motor Co. Ltd.
Passive Restraint Seat Belts
Honda
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Facts
Issue
Holding
Reasoning
Defective Warnings
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Liriano
Facts
Issue
Holding
Reasoning
Why not sue his employer? Workers’
Compensation
Guido Calabresi
Liriano
• Two types of messages conveyed by a
warning?
• Why is not the obviousness of the danger
sufficient to make a warning not necessary?
• Why didn’t the employee sue the employer?
Image Source: www.hobartcorp.com
HEPATITUS C CASES
Transmission Hep C
LAS VEGAS SUN, Oct. 13, 2009, at 1.
LAS VEGAS SUN, Oct. 13, 2009, at 2.
LAS VEGAS REVIEW-JOURNAL, Apr. 27, 2010, at 1A.
LAS VEGAS REVIEW-JOURNAL, May 7, 2010, at 1A.
Key Terminology
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Vicarious liability
Respondeat superior
Strict liability
Nuisance
Unreasonably
Dangerous Activities
• Products liability
• Manufacturing defects
• Design defects
• Legally or factually
insufficient evidence
• Court abused its
discretion
• Contributory negligence
• Motion for Remittitur
• Technological feasibility
• Economic feasibility
• Warning defects
Class 5
Insurance, Damages – Compensatory
and Punitive
Liebeck v. McDonald’s
Image: Roadsidepictures / flickr.com
http://www.flickr.com/photos/roadsidepictures/236614443/
Liebeck v. McDonald’s Restaurants
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What happened?
What did she ask for before she got a lawyer?
How much did the jury award her?
How much was the damage award eventually
reduced to?
• How was it covered in the press?
LAS VEGAS REVIEW-JOURNAL, May 8, 2010, at 1A.
LAS VEGAS REVIEW-JOURNAL, May 8, 2010, at 6A.
LAS VEGAS REVIEW-JOURNAL, May 6, 2010, at 1A.
LAS VEGAS REVIEW-JOURNAL, May 9, 2010, at 2B.
LAS VEGAS REVIEW-JOURNAL, May 8, 2010, at 1A.
Punitive Damages
• Permits a Verdict Winner to
Recover Additional
“Exemplary” or “Punitive”
damages in addition to
compensatory damages
Purposes and Rationale of Punitive
Damages
• To Punish the Defendant/Tortfeasor for bad conduct
beyond mere negligence
• To Deter the Defendant/Tortfeasor from similar bad
conduct in the future
• To Deter Others from similar bad conduct in the
future
• (Implicitly) to allow victim to be made more “whole”
than would otherwise be the case because of special
circumstances
– Sub-silentio Recovery of Counsel Fees/Expense?
How Bad Must the Conduct Be?e?
• Controlled by State Law
– No Federal Law (except for Constitutional Limits)
• Standard Varies With Each State
• But all require more than mere negligence
• A few states permit if conduct is grossly
negligent
• Most require that conduct be intentionally in
disregard of victim’s rights.
– Reckless disregard may be sufficient
The U.S. Supreme Court Enters the
Punitive Damages Arena
• Until 1980s, Punitive Damages considered
issue of state law only
• U.S. Supreme Court, responding to business
defendant concerns, begins to examine
whether large punitive damages are:
– Excessive punishment in violation of Eighth
Amendment to Constitution;
– Violation of defendant right to Due Process of law
(guaranteed in Fourteenth Amendment)
21st Century Supreme Court Cases
• Campbell v. State Farm Insurance (2004)
– $145 million punitive award, $1 million compensatory
damages for insurer bad faith
– Court vacates award because jury was allowed to consider
bad insurer acts in other states, with other product lines
– Court states general rule: where compensatory award
significant, 9:1 is maximum punitive damages ratio
although “reprehensibility” of defendant conduct most
important factor overall
– On remand, Utah Supreme Court enters $9 million punitive
judgment; U.S. Supreme Court declines to review
Key Terminology
Comparative negligence
Anecdotal evidence
Tort reform proposals
Statutory caps
Non-economic damages
Contingency fees
Statutes of limitation
Bad faith