Torts Outline – Fall 2009 Prof. Hunter
Table of Contents
I.
General purposes of torts ......................................................................................................... 1
a.
Deterrence ................................................................................................................................ 1
b.
Compensation for victims ........................................................................................................ 1
c.
Shaping positive behavior in society ....................................................................................... 1
d.
Through balancing of plaintiff’s and defendant’s interests ..................................................... 1
II.
Intentional Torts ................................................................................................................... 1
a.
General elements .................................................................................................................. 1
b.
Battery .................................................................................................................................. 1
c.
Assault.................................................................................................................................. 1
d.
False Imprisonment – ........................................................................................................... 2
e.
Intentional Infliction of Emotional Distress ........................................................................ 2
f.
Privileges.............................................................................................................................. 3
i.
Consent ............................................................................................................................. 3
ii.
Self-Defense ..................................................................................................................... 3
iii. Necessity .......................................................................................................................... 4
III.
Negligence ........................................................................................................................... 4
a.
Duty...................................................................................................................................... 4
i.
Reasonableness of risk ..................................................................................................... 4
ii.
Duty of Care ..................................................................................................................... 4
iii. Effect of individual characteristics on reasonableness ..................................................... 5
1.
Age................................................................................................................................ 5
2.
Physical impairment ..................................................................................................... 5
3.
Physical/mental health .................................................................................................. 6
iv. Expertise ........................................................................................................................... 6
d.
v.
Doctors.......................................................................................................................... 7
Industry standard .............................................................................................................. 7
vi. Legal standard (negligence per se) ................................................................................... 7
1.
Existence of Duty ......................................................................................................... 7
2.
Defenses........................................................................................................................ 8
vii.
Analysis of specific duties ............................................................................................ 9
viii.
General exceptions to the reasonable man standard ..................................................... 9
i
1.
b.
Emergency doctrine ...................................................................................................... 9
Breach of Duty ................................................................................................................... 10
i.
Informed consent ............................................................................................................ 10
2.
Conflict of interest .......................................................................................................... 10
ii.
Res Ipsa Loquitur ........................................................................................................... 10
iii. Constructive notice of breach ......................................................................................... 11
iv. Failure to Act .................................................................................................................. 12
c.
Cause in Fact ...................................................................................................................... 12
i.
“But for” principle .......................................................................................................... 13
ii.
Substantial Factor ........................................................................................................... 13
1.
Lost Chance Doctrine – .............................................................................................. 13
iii. Expert testimony regarding cause .................................................................................. 13
iv. Concurrent Causes.......................................................................................................... 14
v.
d.
Multiple potential causes ................................................................................................ 14
Proximate Cause ................................................................................................................ 14
i.
Generally ........................................................................................................................ 14
ii.
Foreseeability of risk ...................................................................................................... 14
iii. Public Policy considerations .......................................................................................... 15
iv. Rescue Doctrine ............................................................................................................. 15
v.
Intervening Causes ......................................................................................................... 16
vi. Superceding cause – ....................................................................................................... 16
e.
Damages ............................................................................................................................. 17
i.
Public policy concerns ................................................................................................... 17
ii.
Extent of liability............................................................................................................ 17
iii. Emotional Distress ......................................................................................................... 17
f.
Defenses ............................................................................................................................. 17
i.
Plaintiff’s Conduct ......................................................................................................... 17
ii.
Assumption of Risk ........................................................................................................ 18
IV.
Strict Liability .................................................................................................................... 18
a.
Products Liability ............................................................................................................... 18
i.
Generally – ..................................................................................................................... 18
ii
ii.
Manufacturing Defect .................................................................................................... 19
iii. Design Defect ................................................................................................................. 20
iv. Warning Defect .............................................................................................................. 20
b.
Dangerous Activities .......................................................................................................... 20
c.
Wild Animals ..................................................................................................................... 21
V.
Joint and Several Liability ................................................................................................. 21
a.
Allows for multiple defendants to each bear full liability for injuries when: .................... 21
i.
Defendants acting in concert – ....................................................................................... 21
ii.
Defendants fail to perform a common duty to the plaintiff –......................................... 22
iii. Defendants acted independently but caused an indivisible harm – ................................ 22
b.
Contribution ....................................................................................................................... 22
VI.
Vicarious Liability (Respondeat Superior) ........................................................................ 23
a.
Respondeat Superior .......................................................................................................... 23
b.
Independent Contractors .................................................................................................... 24
c.
Joint Enterprise .................................................................................................................. 24
VII.
Remedies ............................................................................................................................ 24
a.
Nominal Damages .............................................................................................................. 24
b.
Compensatory Damages .................................................................................................... 25
i.
Calculation ..................................................................................................................... 25
ii.
Unique Circumstances.................................................................................................... 25
iii. Collateral-Source Rule ................................................................................................... 25
iv. Standard for Review ....................................................................................................... 26
c.
Punitive Damages .............................................................................................................. 26
d.
Satisfaction and Release .................................................................................................... 26
iii
Torts Outline – Fall 2009 Prof. Hunter
I.
General purposes of torts
a. Deterrence
b. Compensation for victims
c. Shaping positive behavior in society
d. Through balancing of plaintiff’s and defendant’s interests
II.
Intentional Torts
a. General elements
i. Action which led to injury must have been intentional (not the effect), and
1. Child could have intentional committed tort. See Garrat v. Dailey
(pulled a chair out from under an old woman).
2. Mentally ill person can also intentionally commit a tort. See
McGuire v. Almy (nurse hit by mentally ill girl when she attempted
to take away a chair leg from her).
ii. The person must have known or should have known with substantial
certainty that his action would cause the type of injury that resulted.
iii. Transfer of intent – intent of tortfeasor can be transferred within a
particular writ or between the historic ones (trespass to property, trespass
to chattels, battery, assault, conversion, etc.)
1. Mistake in fact does not negate intentional tort liability. See
Ranson v. Kitner (man shot dog instead of wolf);
2. Attempt to batter one person which leads to another person’s
battery still allows for liability. See Talmage v. Smith (man threw
stick at one boy playing on his shed and accidentally hit another
one).
iv. No actual damages need be proven as the injury is the commission of the
tort itself.
b. Battery
i. Definition - Act must be a harmful touch of another done in anger. See
Cole v. Turner;
1. Defendant must have intended to cause the type of harm that
resulted. Spivey v. Battaglia (man who gave unsolicited hug to
coworker made an offensive, not a harmful touch where he
intended no injury).
2. A warning touch that is not “rude, insolent, or angry” does not rise
to a battery. See Wallace v. Rosen (parent of student tapped on
shoulder during fire alarm and at some point fell down stairs).
3. Touching items in someone’s hand amounts a touch of their
person, especially when accompanied with insult. See Fisher v.
Carousel Motor Hotel, Inc. (hotel employee grabbed plate from
back worker and said racial epithet).
c. Assault
i. Definition – unlawful attempt to commit battery which was incomplete by
reason of some intervening cause
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ii. Elements –
1. Create in the mind of the alleging party a well-founded fear (for a
reasonable person)of an imminent battery, (no assault where
plaintiff was not aware)
2. coupled with the apparent present ability of defendant (to a
reasonable person) to imminently effectuate the attempt.
3. See Western Union Telegraph Co. v. Hill (man attempted to reach
over the counter to touch female customer; jury q as to whether
defendant could have reached plaintiff).
iii. No actual injury need be incurred by the plaintiff. See I de S et ux. v. W de
S (woman avoided swung hatchet by drunken man).
d. False Imprisonment –
i. Elements
1. Intent to confine
a. Confinement need not be an actual jail cell but can be any
material limitation of freedom. See Whittaker v. Sanford
(woman not allowed off of yacht without supervision and
unable to get to shore without smaller boat).
2. Consciousness of confinement
a. See Parvi (can use circumstantial evidence to present
consciousness even if have no current recollection of the
event).
3. Lack of consent
a. False imprisonment cannot occur where the detainee was
free to leave and voluntarily would have remained to clear
herself of allegations. See Hardy v. La Belle’s Distributing
Co. (employee went to security office to clear herself of
theft accusation).
4. Not privileged
a. Typically a bonafied arrest will not give rise to a false
imprisonment claim unless the arrest was had nothing to
actually do with the criminal conviction. See Enright v.
Groves (woman arrested for leashless dog claim though
actually was because she refused to show driver’s license).
e. Intentional Infliction of Emotional Distress
i. Elements
1. The conduct must be intentional or reckless
2. Conduct must be extreme or outrageous
3. There must be a causal connection between the wrongful conduct
and the emotional distress
4. The emotional distress must be severe.
5. See Harris v. Jones (man with stutter persistently made fun of at
work).
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ii. Mere vulgarity will not rise to the severe level of inflicting emotional
distress. See Slocum v. Food Fair Stores of Florida (woman insulted,
“you stink,” in store when she asked the price).
iii. Used when assault cannot be claimed because threat not imminent. See
State Rubbish Collector’s Ass’n v. Siliznoff (association threatened
plaintiff for encroaching on their “territory” but without clear threat of
imminent harm).
iv. Normal standards of sensitivity of a reasonable person used in determining
severity of the infliction. See Harris v. Jones (stuttering man made fun of
at work was not IIED as matter of law).
v. Cannot transfer intent because not one of the historic writs of trespass and
therefore the inflictor must be aware that the injured party in particular
would be affected. See Taylor v. Vallelunga (woman could not claim
IIED because people who beat her father didn’t know she was present).
f. Privileges
i. Consent
1. Silent consent normally not allowed but is acceptable when
objective manifestation makes it obvious that plaintiff took steps to
be touched and was aware of situation. See O’Brien v. Cunard S.S.
Co. (woman on immigration ship got in line to be inoculated).
2. Cannot normally assume the risk of an intentional tort and
therefore even violent activities are consider within rules and
customs of the activity. See Hackbart v. Cincinnati Bengals (jury
could find that illegal blow in football created liability).
3. Consent is interpreted narrowly and therefore unless generally laid
out cannot allow for similar actions. See Mohr v. Williams
(woman did not consent to operation on her right ear when she was
put under anesthesia for treatment on the left one).
4. Consent cannot be delegated to a third party unless done so
explicitly. See Mohr v. Williams (woman did not give family
physician permission to consent to operation for her).
5. Consent is invalidated if it was obtained under fraud or through
misrepresentations. See De May v. Roberts (woman giving birth
only allowed man into the room with the doctor under the belief
that he was a professional assistant).
ii. Self-Defense
1. Entitled to use reasonable force to defend oneself against the threat
of force of another
2. Retaliation not allowed under self-defense
3. Reasonable belief of harm analyzed under reasonable person
standard under the circumstances
4. Verbal threats are not typically enough to permit self-defense
5. Retreat - individual must retreat if they can rather than injure the
attacking party (question as to how much)
3
6. Force that could cause serious bodily harm or death can only be
used in cases of imminent threat of substantial bodily harm to the
user and not to defend property. See Katko v. Birney (springloaded shotgun in bedroom of abandoned home unreasonable).
iii. Necessity
1. May commit a trespass of property or chattels in order to serve a
public interest.
2. When committing a trespass to serve a private interest in avoiding
harm from act of God, including self-interest, generally liable for
damages caused (i.e. for ship that tied itself to dock during storm).
III.
Negligence
a. Duty
i. Reasonableness of risk
1. Ordinary care is determined by the circumstances and generally
involves the prudent and cautious care men would use in the
situation to guard against probable danger.
2. Ordinary care includes taking steps to prevent risks even if they are
less than 50% likely to cause harm. Risk assessment is based on
both on probability and potential magnitude of harm. See Gulf
Refining Co. v. Williams (oil supplier’s failure to fix faulty cap
which caused injurious explosion liable even if danger unlikely).
3. Question is not the balancing of probabilities but the existence of
some possibility of sufficient moment. See Tullgren v. Amoskeag
Mfg
4. There is no difference in analysis between the ordinary care needed
for necessary v. permissible acts. See Brown v. Kendall (man
accidentally hit other in the eye with a stick when attempting to
separate fighting dogs).
5. Balancing test may be used to weigh the risk of harm presented
and the cost of preventing it. See Chicago B & Q R. v. Krayenbuhl
(train liable for girl’s lost leg when caused by turntable that was
not locked up).
6. Judge Learned Hand proposed the formula of Burden<Probability
of Risk*magnitude of the injury in finding liability (law and
economics approach. See Carroll Towing v. US (barge drifted).
7. Public interest considerations may be used in calculation at times
though the availability of technology to mitigate risks is also
considered. See Davison v. Snohomish County (state not liable for
not putting stronger railings on bridge that car ran off of).
ii. Duty of Care
1. Duty to refrain from behaving unreasonably is typically owed to
everyone, but there is no general duty to protect everyone outside
the zone of risk as a matter of law. See Palsgraf v. Long Island RR
4
2.
3.
4.
5.
Co. (woman injured by falling scales was owed no duty by the
worker who pushed the passenger).
CL historically did not allow duty to be imposed on a vendor if the
injured individual was not privy to the contract. See Winterbottom
v. Wright (driver of coach unable to collect from defendant for
injuries when vehicle broke down even though his employer had a
maintenance contract with the defendant).
Duty, however, now extended to ultimate consumer if risk of
product sold is foreseeable and reasonably anticipated. See
MacPherson v. Buick Motor Co. (wooden wheel of car bought by
plaintiff broke causing injury and suit against manufacturer
allowed for failing to perform simple inspection of car before sale).
However, liability not passed through agreement if the act leading
to injury is one of omission. See H.R. Moch v. Rensselear Water
Co. (plaintiff’s warehouse burnt down after fire hydrant that
defendant had a city contract to maintain failed. No liability
especially because of indefiniteness of duty).
Individual cannot owe a duty to another when precluded from
considering their interests by rule or statute. See Clagett v. Dacy
(attorneys who messed up auction paperwork twice owed no duty
of good performance to bidder due to conflict of interest
limitations; exception if their work was intended to serve a thirdparty’s interest (wills)).
iii. Effect of individual characteristics on reasonableness
1. Age
a. Children held to age-specific standard based on age,
intellect, maturity and experience in most cases with some
states imposing statutory or CL limits on the minimum age
for negligence to exist. See Robinson v. Lindsay (13-yr-old
held to higher standard because of adult activity but other
standard expressed).
b. Minors are held to an adult standard of care when they are
engaged in “adult activities” such as the operation of a
motor vehicle. See Robinson v. Lindsay (13-year-old who
had been driving snowmobile for 2 years held to adult
standard for injury to 11-year-old playmate).
c.
2. Physical impairment
a. jury should analyze liability using the reasonable person
standard taking into consideration the physical limitations
of the defendant. See Roberts v. State of Louisiana (man
injured after being bumped by blind state employee
working at post office and walking to the bathroom without
his cane).
5
3. Physical/mental health
a. Objective standard based on “reasonable man,” which does
not take into account mental condition/intellect of the
particular individual. See Vaughan v. Menlove (man built
hay rick improperly despite fire warnings and
unsuccessfully attempted to argue infirmity).
b. Insanity is not an acceptable defense in tort because:
i. Where one of two innocent persons must suffer the
loss, it should be borne by the one that occasioned
it.
ii. Induce those interested in the estate of the insane
person to restrain and control him
iii. Fear an insanity defense would lead to false claims
to avoid liability. See Breunig v. American Family
Ins. Co (woman who believed that she could fly car
like batman held liable for damages).
c. A person suddenly stricken by an unforeseeable illness
(physical or mental) while driving an automobile is not
chargeable with negligence. See Cohen v. Petty (man
without history of fainting fainted at the wheel leading to
injuries).
iv. Expertise
a. Reasonably prudent person expected to know the condition
of the machines they operate such as cars without being
experts (including wearing of tires). See Delair v. McAdoo
(accident caused by man who had blowout while driving
extremely worn tires).
b. While specialists are held to a higher standard, no one
should be held to a lower standard than that for others
undertaking such an act (including flying). See Heath v.
Swift Wings (man crashed small plane after takeoff killing
family because he did not properly use the flaps).
c. Attorneys not liable for unsuccessful litigation if they:
i. Possess the requisite degree of learning, skill and
ability necessary to the practice of his profession
and 2
ii. Exert their best judgment and
iii. Exercise reasonable and ordinary care and diligence
in use of skill (good faith). See Hodges v. Carter
(attorneys lost on appeal over form of service which
led to a statute of limitations prevention of refilling
suit for client).
iv. Note: Especially different to recover for malpractice
because of difficulty in proving that you would have
won and therefore are entitled to damages.
6
d. Doctors
i. Malpractice is when one does not possess the
requisite skill and learning or does not apply it,
which standard must be established through expert
testimony unless grossly apparent. See Boyce v.
Brown (doctor not liable for failing to recognize that
bolt needed to be removed, despite testimony of
expert that he would have done otherwise).
ii. Expert testimony rule - Need an expert witness to
testify as to profession’s standard of care (must be
affirmatively proven) unless, the negligence is so
grossly apparent that a layperson can determine it.
See Boyce v. Brown (doctor not liable for failing to
recognize that bolt needed to be removed, despite
testimony of expert that he would have done
otherwise).
iii. Given the national certification of medical
professionals and facilities, a national standard
(similarly situated doctors/labs) should be used by
juries in determining negligence instead of
traditional locality rule while still taking into
consideration the limitations of the circumstances.
See Morrison v. MacNamara (holding that practice
of lab of performing urinary tract test created
liability because it broke national standard despite
being a local custom).
v. Industry standard
1. While industry standards may be indicative of what is reasonable
under the circumstances, they are not determinative in themselves
and are still subject to the reasonable man standard. See Trimarco
v. Klein (use of non-tempered glass in shower was unreasonable,
especially given longstanding custom to not use it which went
beyond what was required by law).
2. Bargee expected to be on boat during normal business hours to
prevent accidental drifting. See Carroll Towing (bargee was off
ship drinking and boat drifted into another one after ropes
accidentally cut).
vi. Legal standard (negligence per se)
1. Existence of Duty
a. Criminal statutes may be used as indicators of reasonable
standards but do not necessarily give rise to private causes
of action as negligence per se. See Osborne v. McMasters
(woman died after poison was put in the bottle she bought
instead of her medication).
7
b. However, criminal statutes may not simply be brushed
aside as merely cautionary by a jury, especially if it could
have led to contributory negligence. See Martin v. Herzog
(plaintiff died in crash when his buggy without headlights
was hit by a car which crossed the centerline on curve).
c. Failure to follow a regulation can give rise to negligence
per se if:
i. the person injured was one of the class intended to
be protected by the statute,
ii. the injury caused was the one meant to be
prevented, and
iii. the statute is appropriate for civil litigation
iv. See Stachniewicz v. Mar-Cam Corp. (bar held liable
for brawl after allowing visibly intoxicated people
to remain on premises (violated regulation).
However, not found liable under regulation for
serving intoxicated people because statute would
not have prevented intoxication in the first place
which caused brawl).
v. Where violation is of a municipal regulation and not
a statute then violation will be evidence of
negligence but not normally as a matter of law.
2. Defenses
a. The law creates a rebuttable presumption in most
jurisdictions with the individual who violated it able to
offer evidence of a reasonable exception. See Zeni v.
Anderson (woman hit while walking on customary
snowpath on side of the road after several injuries of others
walking on icy sidewalk).
b. Other jurisdictions use strict liability when statute is
accepted as relevant or evidence of a presumption for
defendant.
i. Excuses provided under R2.S288A: Violation of
statute for which excuse is not barred is excused
when:
1. Violation is reasonable because of the
actor’s incapacity
2. He neither knows nor should know of the
occasion for compliance
3. He is unable after reasonable diligence or
care to comply
4. He is confronted by an emergency not due to
his own misconduct.
5. Compliance would involve a greater risk of
harm to the actor or to others,
6. Others as appropriate.
8
c. Generally inaction, even if action is required by criminal
statute, will not give rise to a negligence per se claim.
(Duty to obey criminal law is not same as a tort duty). See
Perry v. SN and SN (three people failed to report child
abuse they were aware of despite criminal statute. Court
found the “knowing” requirement of the statute to be too
ambiguous for tort liability).
vii. Analysis of specific duties
1. Parents do not have a duty to remove every object from their yard
that could be potentially used to cause harm if not thought of as
ordinarily dangerous. See Lubitz v. Wells (father of child who hit
playmate with golf club laying in the yard not liable for injuries).
2. Individuals do not have an obligation to look under their cars every
time they begin to drive them. See Williams v. Jordan (man
accidentally ran over 13-month-old child who crawled under his
vehicle while he ran inside on an errand).
3. There is no duty to predict abnormal weather conditions in the
construction of something. See Blyth v. Birmingham (25-year-old
pipes burst after city experienced the coldest winter ever).
4. Courts now attempt to avoid strict rules in favor of reasonable man
standard. I.e. drivers not required to get out of car to look at
railroad crossing. See Pokora v. Wabash Railway (court found no
duty to get out of car but merely to stop and listen when view is
obstructed).
5. University not required to protect moral well-being of students but
are required to safeguard them from known physical dangers. See
Stockwell v. Board of Trustees of Leland Stanford Junior
University (school aware of BB gun problem on campus but did
not act to protect students including plaintiff who was hit in eye).
viii. General exceptions to the reasonable man standard
1. Emergency doctrine
a. Applicable where the individual had a reasonable belief
that an actual emergency existed and they did not cause it
to occur.
b. Emergency circumstance gives a person leave from
reasonableness standard. Correct standard would be a
reasonable person under emergency situation (not a hero).
See Cordas v. Peerless Transportation Co (taxi driver not
responsible for girl/mother hit by cab that he jumped out of
after being held up at gunpoint).
c. Typically no duty to rescue another individual, even for
experts with particular ability to help. However, where
laws require some action be taken based on safety
standards, liability may exist. See Kirincich v. Standard
9
Dredging Co. (crew member on boat fell overboard and
other crew through lines but did not use required life
preservers which were statutorily mandated).
b. Breach of Duty
i. Informed consent
1. Doctors liable out of negligence if:
a. Defendant physician failed to inform adequately of material
risks.
i. Material risk is one that is likely to change the
patient's decision and must include information
about alternatives; measured from perspective of the
patient rather than that of the doctor (standard of
care).
b. Plaintiff would not have consented to the treatment if
informed. (based on specific individual in facts but not
solely based on patient’s statement)
c. The adverse consequences that were not made known did
occur and injury occurred.
d. See Scott v. Branford (woman who had hysterectomy had
complication of leaking bladder that she was not informed
of beforehand)
e. Exceptions to this rule in emergency circumstances such as
imminent risk of harm, unconsciousness, or belief that
patient intends to cause himself harm/not able to make
rational choice.
2. Conflict of interest
a. Doctors required to disclose to patient any educational or
financial research issues that could have a material bearing
on their decisions for treatment. See Moore v. The Regents
of the University of California (doctor continued to require
man to come back for procedures in order to harvest very
useful leukemia cells without telling him).
ii. Res Ipsa Loquitur
a. Used as a shortcut to show breach of a duty when injury
results from what must have been a breach but unclear of
exact details. See Byrne v. Boadle (man hit by barrel which
fell from warehouse though not clear why it fell;
unexpected injury if warehouse maintained in a safe
manner).
b. The plaintiff is not required to eliminate all other possible
inferences when citing this principle. See McDougal v.
Perry (spare tire came suddenly loose striking car behind).
c. Test
10
i. Thing that caused the accident was in the exclusive
control of the defendant, See Larson v. St. Francis
Hotel (person on street hit when chair thrown from
hotel window. Impossible for hotel to prevent
without guards at every window).
ii. You can infer that without negligence the accident
would not have occurred.
iii. See McDougal v. Perry for test above
d. Doctrine may be defeated if evidence presented that
provides alternative explanation.
e. Doctrine may be invoked to prevent a group of individuals,
one of whom is a tortfeasor under the rule, from avoiding
liability through group silence. (exception to the
exclusivity principle through idea of common enterprise).
See Ybarra v. Spangard (patient who underwent
appendectomy lost use of arm though no doctor/nurse
would accept liability).
f. Doctrine may only be used to create inference for jury of
breach of duty and shift burden to defendant but cannot be
used to direct verdict. (cannot create strict negligence per
se). See Sullivan v. Crabtree (plaintiff injured when
defendant’s vehicle went off the road but unclear as to
whether caused by negligence, gravel etc.)
iii. Constructive notice of breach
a. Banana peel cases
i. If no indication of the age of the banana or actual
notice, then company will not have a liability. See
Goddard v. Boston and Maine RR (banana could
have been dropped a moment earlier); Joye v. Great
Atlantic and Pacific Tea Co. (no indication that
store put banana on ground or was aware of it or
how long it was there).
ii. If age is obvious and especially if an employee is
tasked with safety concerns at the time, then
liability will adhere. See Anjou v. Boston Elevated
(plaintiff fell on an old banana while following RR
employee).
iii. Reasonableness of the maintenance of an
establishment is a question for the jury for which
they may infer constructive notice if no indication
of inspection. See Ortega v. Kmart Corp. (man
slipped on puddle of chocolate milk and no logs of
aisle inspections existed).
iv. If store knew of dangerous condition, even if they
took some steps to mitigate it, they remain liable.
11
See Jasko v. F.W. Woolsworth Co. (store served
pizza on wax paper which led to very slippery
floors that they unsuccessfully attempted to keep
clean).
v. If store takes reasonable steps to eliminate known
risk, then it will not be held liable if that risk
unforeseeably still occurs. See H.E. Butt Gorc. Co.
v. Resendez (grape display set up in safe way with
railing and level bowl but slip on grape still
occurred).
iv. Failure to Act
1. CL rule of no duty to rescue to prevent imposition of moral
obligation as law.
2. Duty to refrain from behaving unreasonably is typically owed to
everyone, but there is no general duty to protect everyone outside
the zone of risk as a matter of law. See Palsgraf v. Long Island RR
Co. (woman injured by falling scales was owed no duty by the
worker who pushed the passenger).
3. University owes no duty to students to regulate their private lives
and prevent them from moral deterioration. See Hegel v. Langsam
(student at university became addicted to drugs and associated with
criminals).
4. Even if no duty exits for protecting individual from original injury,
liability for the aggravation of the injuries exist if an
instrumentality under the defendant’s control injures an invitee.
See L.S. Ayres v. Hicks (small boy injured by store escalator which
was further exacerbated by stores negligence in failing to turn it off
in a timely fashion).
5. If an individual has "particular knowledge" or "reason to know"
that a "particular plaintiff" would suffer a "particular type" of
injury from a tortfeasor’s actions which were foreseeable, then
liability will exist.
a. Spouses tend to have a particular position of knowledge or
control if their spouse is a tortfeasor. See J.S. and M.S. v.
R.T.H. (woman knew of husband’s past sexual deviance
when he molested two young girls at their home for period
of over a year; had duty to warn parents or watch husband).
b. Psychiatrists have a special duty of confidentiality to their
patient but this may be overcome by a duty to protect a
particular victim against a particular threat. See Tarasoff v.
Regents of University of California (psychiatrist detained
and released patient who talked of killing unrequited lover;
duty found to inform potential victim).
c. Cause in Fact
12
i. “But for” principle
1. Plaintiff must prove “but for” cause to jury based on more likely
than not standard. See Kramer Service Inc. v. Wilkins (man who
received cut on head from falling glass later developed skin cancer
there but no proof of causal link).
2. Negligence in the air is not actionable and therefore it must have
actually led to the injury. See Perkins v. Texas and New Orleans
Ry. Co. (speeding train that hit negligently driven truck at crossing
would have still hit it even if it had been going the proper speed).
3. Even if the injury could have resulted without the negligence of the
other party, if their negligence increased the risk, then the jury may
find liability. See Reynolds v. Texas and Pacific Ry. Co. (woman
fell down unlit stairwell on way to platform).
4. Failure to maintain cause must include proof that it, rather then
some other factor led to the injury. See Gentry v. Douglas
Hereford Ranch (man accidentally shot friend with gun when he
fell nearby poorly maintained steps but no indication as to why he
fell).
ii. Substantial Factor
1. Lost Chance Doctrine –
a. Even if an individual would have died without the
negligence of the other party, the negligence will yield
liability if the injured party’s chance of survival was
diminished (even if it was always less than 50%). See
Herskovits v. Group Health Cooperative of Puget Sound
(hospital negligently failed to diagnose lung cancer which
decreased chance of surviving by 14%. Chances were
always below 50%).
2. In cases of toxic torts, increased statistical risk of the alleged
injury/disease must be doubled compared to control population
(makes it more likely then not that the injured party was actually
hurt by defendant). See Daubert v. Merrel Dow (plaintiff could
not prove liability because increased risk of disease was less than
2x normal)
.
iii. Expert testimony regarding cause
1. Test
a. Peer review of proposed evidence
b. Lab work outside of litigation on the topic
c. Place in the field of the scientist
d. Other scientists recreating the work
e. Relied upon the scientific method
f. Helpful to the analysis of the actual case (fit test)
13
g. See Daubert v. Merrel Dow (plaintiff’s experts’ testimonies
not allowed because they seemed entirely done for the
litigation with no review from scientific community).
iv. Concurrent Causes
1. The court is not precluded from finding multiple causes that led to
one injury. See Hill v. Edmonds (woman who was negligently
driving her car was involved in accident when she swerved to
avoid negligently parked, unlighted truck in the road).
2. If two causes lead to the injury alleged and each could have caused
the injury on its own, then jury to decide whether the defendant’s
actions were a substantial factor to the injury. See Anderson v.
Minneapolis St. RR (fire caused by railroad combined with another
fire which collectively destroyed plaintiff’s house).
v. Multiple potential causes
1. If there are two negligent actions that may have been the cause and
it is not knowable which is the actual cause, both will be held
liable. See Summers v. Tice (plaintiff shot in the eye by one of his
two hunting partners who both fired negligently).
2. Where drug manufacturers all produce the same product but
unclear which made the allegedly dangerous pill, court will allow
for apportionment of liability based on market share (enterprise
liability) unless the manufacturer can prove that its pill was not the
one used. See Sindell v. Abbott (woman claimed injuries from pill
taken by mother during pregnancy but no way of knowing which
company produced the generic pill actually used).
d. Proximate Cause
i. Generally
1. Tool used by the court to limit liability to a reasonable degree of
foreseeability and at times draw arbitrary lines to cut off liability
for public policy reasons. Typically a jury question unless cut off
as a matter of law.
2. Also shifts the burden of liability to those who can insure against
them. See fire cases in Ryan v. New York Central RR (person who
negligently starts fire only liable for first structure that it spreads
to, in part because of inability to ensure property in which no
personal interest exists).
3. Generally liable for all of the reasonably foreseeable consequences
of the negligent conduct.
ii. Foreseeability of risk
1. An object that could cause harm if used improperly by a child but
not commonly thought of as dangerous does not yield liability to
14
2.
3.
4.
5.
6.
parents. See Lubitz v. Wells (father of child who hit playmate with
golf club laying in the yard not liable for injuries).
Defendant must take the plaintiff as they found him even if preexisting condition made him more susceptible or more greatly
impacted by negligent injury. (some jurisdictions limit to only preexisting physical conditions). See Bartolone v. Jackovich (eggshell skull case where plaintiff developed schizophrenia after car
crash).
Tortfeasor needs not to have been able to foresee the particular
damage caused but only that there was some risk of danger,
especially when there is a direct causal link between the negligent
action and the damage though to some extent understates difficulty
(remote in time or place rule). See Polemis v. Furness Withy &
Co. (In unloading the ship, a board is dropped into the cargo hold
which causes a spark causing the petrol vapors to explode,
unexpectedly destroying the ship and cargo).
Even if the magnitude of the damage far exceeds what would
ordinarily be expected, liability for damages will exist if nothing is
done to address the foreseeable risk. See Wagon Mound No. 2
(ship dropped oil into harbor which was lit on fire by dock
worker).
Common sense used as a guide for proximate cause with liability
only existing when the injury is seen as natural and probable if the
action is unintentional. See Palsgraf v. Long Island RR (woman
hit by falling scales).
Economic damages generally viewed as unforeseeable. Only
property damage is recoverable. See Kinsman Transit Co.
(collision of boat with bridge blocked up-river traffic, halting
commerce); State of Louisiana ex Rel. Guste v. M/V Testbank (boat
accident that caused chemical spill led to embargo that hurt
business).
iii. Public Policy considerations
1. While CL has not historically imposed liability on social guests,
several states have changed their policy either by case law or
statute in the interest of public policy. See Kelly v. Gwinnell
(Social hosts held liable for driving accident of friend who they
served several drinks to before sending him home).
2. Courts have chosen to only allow the next generation to recover
damages for drug products liability in order to encourage research.
See Enright v. Eli Lilly & Co. (baby hurt by defective uterus
caused by grandmother’s taking of DES; court worried that
continued string of multi-generational defects would limit drug
production/development).
iv. Rescue Doctrine
15
1. Courts have held that danger invites rescue and therefore liability
for injury will include injury to rescuers who are attempting to
prevent injury to others from the original risk.
2. Rescue doctrine applies to product liability and extends duty of
manufacturer to cover rescuers as a foreseeable consequence. See
McCoy v. American Suzuki Motor (plaintiff hit by a hit-and-run
driver while assisting police officer in helping a crash victim
whose accident was caused by a product defect).
v. Intervening Causes
1. If the intervening cause was foreseeable by the statute and
therefore part of its purpose, then negligence per se will still apply.
See Ney v. Yellow Cab Co. (taxi owner who left cab unattended,
running, and unlocked responsible for accident caused by thief
who stole it.
2. Where the magnitude of damage is substantially multiplied and of
an unexpected type by another negligent act, the liability for the
original liability is cut off if it cannot be reasonably foreseen. See
Wagon Mound No. 1 (ship negligently spilt oil into harbor which
was then lit on fire by negligent dropping of molten metal into
water).
3. Liability not cut off when the injury results from the foreseeable
risk even if the particular intervening cause was unexpected. See
Derdiarian v. Felix Contracting Corp. (worker injured by boiling
oil that was hit by a driver who entered the worksite when he had a
seizure. The worksite did not have the proper barriers to protect
workers).
4. Where acts of god are common and usual, liability will not be cut
off (i.e. small earthquakes in California, floods in Florida).
5. If the injured party later commits suicide while acting upon
“irresistible impulses” brought about by the initial injury, the
original tortfeasor will be liable for the death. See Fuller v. Preis
(after long-term health problems relating from car accident with
Preis, Fuller committed suicide).
vi. Superceding cause –
a. If the intervening cause changes the type of risk that the
original negligence caused then liability will typically be
cut off. See Yun v. Ford Motor Co. (where risk from a
loose spare tire is an accident, not being hit while trying to
retrieve it from other side of the highway).
b. Liability cut off as a matter of law when an intervening act
is done maliciously which leads to the injury. Question
goes to the jury if the intervening act is only negligent. See
Watson v. Kentucky & Indiana Bridge RR (gasoline that
16
was negligently spilled by RR was set on fire by another
individual, possibly with the intent to cause harm).
e. Damages
i. Public policy concerns
1. Not able to collect on profits from organ/tissue extraction because
of similarity to organ selling. See Moore v. The Regents of the
University of California (man’s spleen and tissues used for
lucrative research without his knowledge).
2.
ii. Extent of liability
1. “But for” analysis used in determining liability for particular
damages. See Dillon v. Twin State Gas & Electric (boy who
grabbed electrical wire on way down during fall from bridge would
have died anyway and therefore damages caused by electrocution
death minimal).
iii. Emotional Distress
1. Traditional rule that emotional distress only inflicted where there is
also a physical injury – parasitic damages.
2. New rule is that plaintiff must prove that the illness or injury is a
natural result of fright proximately caused by defendant and that a
normal individual would be affected under the circumstances. See
Daley v. La Croix (woman scared by car that flew off of road and
hit electrical pole causing explosion).
3. If not directly injured by the tortious act then liability exists if:
a. Plaintiff is closely related to the injury victim (family
member)
b. Is 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 and
c. As a result suffers serious emotional distress- a reaction
beyond that which would be anticipated in a disinterested
witness and which is not an abnormal response to the
circumstances.
d. See Thing v. La Chusa (woman could not sue defendant for
emotional distress after she arrived at scene to find her son
was seriously injured by negligent defendant’s accident).
f. Defenses
i. Plaintiff’s Conduct
1. Under contributory negligence, where the plaintiff could have
avoided the injury through the exercise of ordinary/reasonable
care, liability for the defendant's negligence will not stand. See
Butterfield v. Forrester (man was riding fast and as a result hit a
pole negligently laid in the road by defendant; no liability).
17
2. Last clear chance doctrine - if the defendant could have easily
avoided injury to the plaintiff through ordinary, proper care, then
the plaintiff's minor negligence will not bar recovery. See Davies
v Mann (man who fettered donkey to the side of the road had it hit
by another man negligently driving his horses).
3. Old standard of contributory negligence abolished in most states
either by statute or judicial action because of unfairness and
established one of three comparative systems. See McIntyre v.
Balentine (abolishing contributory negligence in Tennessee)
a. Pure comparative negligence - party can recover for the
percentage of liability of the other party, i.e. if plaintiff
90% liable, they can still recover 10% of damages
b. Modified - plaintiff "does not exceed 50%" of the liability
c. Modified (alt.) - plaintiff is "less than 50%" liable for
injuries
d. Important because 50-50 is an easier decision for the jury.
ii. Assumption of Risk
1. Through contract, assumption of risk clauses allowed to stand
when they are:
a. unequivocal and do not violate public
b. Not part of an adhesion contract involving grossly unequal
bargaining power,
c. Not involving a transaction of public interest or
d. The injury resulted from intentional harm
e. See Seigneur v. National Fitness Institute (exculpatory
clause in membership agreement at fitness center
enforceable)
2. In order to implicitly assume a risk, an individual must have a
voluntary choice and be aware of the existence and the magnitude
of the risk undertaken. See Rush v. Commercial Realty Co.
(woman had to use the restroom whose floor she fell through).
3. Analyzed on an individual, subjective level rather than
hypothetical reasonable person standard. See Rush v. Commercial
Realty Co. (woman fell through hole in floor while going to shared
bathroom).
4. Under comparative negligence, some states have merged the
defenses of contributory negligence and some of the assumption of
risk doctrines (taking an unreasonable risk). See Blackburn v.
Dorta
IV.
Strict Liability
a. Products Liability
i. Generally –
1. Courts allow liability, originally through the notion of an express
or implied warranty of merchantability when:
18
a.
b.
c.
d.
2.
3.
4.
5.
6.
7.
8.
Product used in the way that it was intended,
Mistake of material fact exists, and
Lack of claimed quality must not be easily detectable
See Baxter v. Ford Motor Co. (allowing liability of Ford for
windshield which shattered despite opposite assurances).
Rule then shifted to general defect standard of:
a. Plaintiff must prove that product was defective,
b. That the product was used for the correct purpose,
c. The defect was not obvious or known, and
d. There was an alternative design that could have been used.
e. See Greenman v. Yuba Power Products, Inc. (power tool
shot wood at plaintiff’s head allegedly due to loose screws).
Explicit warranties must be known and relied upon by consumer in
order to give rise to a cause of action.
Manufacturer not able to limit implied warranty of merchantability
easily through a shorter express warranty. See Henningsen v.
Bloomfield Motors, Inc. (attempt to place a 90 day warranty on
defects not upheld when crash resulted from faulty steering
system; exception for items intended to be unsafe).
Product liability and implied warranty are still typically considered
as separate causes of action even though they share the same
elements of proof. See Prentis v. Yale Mfg. Co.
Defects may be proved by circumstantial evidence where a
preponderance of that evidence establishes that the accident was
caused by a defect and not other possibilities, although not all other
possibilities need be eliminated. Jury should be allowed to weigh
the evidence rather than the judge. See Friedman v. General
Motors Corp. (plaintiff allowed to use circumstantial evidence to
show car was started while in drive and lurched forward).
Comparative negligence able to be used as a defense in product
liability cases even though no fault is being placed on
manufacturer. See Daly v. General Motors Corp. (Plaintiff was
injured when he fell out of vehicle door though GM claimed that
he was negligent in not locking the door).
A showing of comparative fault does not bar liability for
manufacturer because duty exists to protect user from even
negligent use of product if it is foreseeable (jury Q). See Ford
Motor Co. v. Matthews (Matthews killed by tractor which started
in gear and liability allowed even if he was negligent in not
checking gears).
ii. Manufacturing Defect
1. Shown by comparison of allegedly faulty product with others of
same manufacturer or product schematics.
2. Sometimes combined with argument of design defect as alternative
theory, especially in the case of proposing redundant systems. See
19
Rix v. General Motors Corp. (alleging weakened braking tube and
importance of dual system).
iii. Design Defect
1. Must show that design was unreasonable given alternative designs
as analyzed through a risk-utility test also considering whether not
producing the product would be better. See Prentis v. Yale Mfg.
Co. (seated design of forklift was not such a risk reduction so as to
preclude cheaper walking version).
2. If a product is designed/marketed to children, then cost/benefit
analysis conducted based on reasonable use by/ social benefit to a
child. See Moning v. Alfono (jury allowed to decide whether
manufacturer of children’s slingshot liable for injury to playmate).
3. State of the art evidence may be used as an indicator by either side
to show whether the allegedly faulty product met it. However, jury
may find that no alternative design is good enough. See O’Brien v.
Muskin Corp. (uninvited guest injured when diving into pool;
claimed that vinyl lining too unsafe even if only option).
iv. Warning Defect
1. Manufacturer must warn of risks that they know or should have
known exist with their products that are not obvious and can harm
a substantial number or people or are particularly high in
magnitude.
2. Scientific information of the time can be introduced as evidence
that a warning should have been provided by the manufacturer
even if they didn't believe it because strict liability evaluates the
product and not the reasonableness of the actor. See Anderson v.
Owens-Corning Fiberglas Corp. (court allowed use of scientific
research as basis for failure to warn claim).
3. Informed intermediary rule - Most courts have found that
prescription warnings should be provided to the physician rather
than directly to the patient, though somewhat outdated based on
new marketing directly to consumers.
b. Dangerous Activities
i. Used to assign strict liability for activities that can cause harm even when
undertaken with the utmost care in order to pass the costs of damage onto
those best suited to carry them.
ii. Deliberate, intentional action of bringing some nonnatural, dangerous
(now usual v. unusual) thing onto your property makes you liable if it
escapes. See Rylands v. Fletcher (construction of reservoir made builder
liable for flooding of mineshaft from water escaping, even if construction
was not negligent).
iii. Test for naturalness of thing:
20
iv.
v.
vi.
vii.
1. Existence of a high degree of risk of harm to the person, land, or
chattels of others
2. Likelihood that the harm that results from it will be great
3. Inability to eliminate the risk by the exercise of reasonable care
4. Extent to which the activity is not a matter of common usage
5. Inappropriateness of the activity to the place where it is carried on
6. Extent to which its value to the community is outweighed by its
dangerous attributes
7. Restatement § 520. See Miller v. Civil Constructors, Inc. (finding
that shooting range was natural because of commonness and ability
to mitigate risk).
Blasting has the potential to cause substantial damage to the area directly
or indirectly and this risk is assumed by those undertaking the operation
rather than the unwary neighbor even if undertaken with utmost care and
damage is indirect (i.e. waves). See Spano v. Perini (blasting damaged car
and parking garage several miles away).
Strict liability for blasting does not require that defendant must take preexisting mental condition of animals as they find them. See Foster v.
Preston Mill Co. (blaster not responsible for mink mother eating her
kittens as a result of anxiety).
No strict liability exists for shippers of hazardous materials because the
essential act is shipping not the substance that is being moved. See
Indiana Harbor Belt RR v. American Cyanamid Co. (refusing to hold
shipper of hazardous material strictly liable by applying social utility
analysis in light of the fact that railways are already fixed).
Contributory negligence not an available defense for strict liability, only
assumption of risk. See Sandy v. Bushey (owner of vicious colt
responsible for injury to plaintiff who was tending to his mare on
defendant’s property).
c. Wild Animals
i. Under British CL, owner responsible for roaming animals but modified in
the US because of circumstances of the West.
ii. Strict liability enforced for injuries caused by the keeping of a wild
animal.
iii. No strict liability generally for domesticated animals unless the animal is
not in a place that it is supposed to be or the owner had reason to know
that it was vicious.
1. Viciousness normally must be alleged based on past actions and
cannot be based solely on the breed of animal (i.e. pitbull).
iv. Assumption of risk can still be used as a defense (i.e. inciting a tiger)
V.
Joint and Several Liability
a. Allows for multiple defendants to each bear full liability for injuries when:
i. Defendants acting in concert –
21
1. Defendants may be found jointly and severally liable even if one of
them did not actually cause any injuries. See Bierczynski v. Rogers
(defendants were street-racing when one of the two hit another car
but both found liable).
2. Nedgligence by multiple parties results in injury to the plaintiff
where it is impossible to determine which negligence was the
actual cause. See Summers v. Tice (two hunters negligently shot at
bird and one of their shots hit the plaintiff in the eye. Rule
prevents the lack of proof of which negligence caused harm from
barring recovery).
3. Enterprise theory of liability. See also Ybarra v. Spangard (where
enterprise of doctors and nurses all held liable for mysterious
problem after surgery where no indication as to who liable).
ii. Defendants fail to perform a common duty to the plaintiff –
1. Typically based on some notion of vicarious liability such as
employer employee.
iii. Defendants acted independently but caused an indivisible harm –
1. Simultaneous negligent acts –
a. Burden is on defendant to prove that harm is divisible and
therefore that joint and several liability should not apply.
See Michie v. Great Lakes Steel Division (court allowed
pollution case to go forward based on joint and several
liability because difficult to allocate injuries between
multiple sources of original pollution).
2. Successive negligent acts –
a. Plaintiff cannot collect from the first tortfeasor for injuries
caused by a second negligent act, even if indivisible. See
Bruckman v. Pena (man injured in one car accident had
injuries aggravated by second accident not allowed to claim
aggravation of injuries against first tortfeasor because of
lack of proximate cause).
iv. Applies in cases of both comparative negligence and product liability
though some courts have not allowed it under comparative negligence.
See Coney v. JLG Industries (worker died while operating a hydraulic lift
and estate allowed to bring suit against both his employer and the
product’s manufacturer). But See Bartlett v. New Mexico Welding Supply
(allowing damages to only be collected according to apportionment of
liability which shifts risk of non-collection to the plaintiff).
b. Contribution
i. Allows a one of the parties that was jointly and severally liable to collect
money from the other parties also responsible after the plaintiff enforces
judgment.
ii. Contribution enforced when there are concurrent negligent tortfeasors and
the plaintiff chooses to only sue one of them. See Knell v. Feltman (taxi
22
cab owner found liable for accident and sought contribution from Knell
who was found negligent but not a named defendant).
iii. Where a tort claim would ordinarily not be allowed, contribution cannot
be claimed against a joint tortfeasor. See Yellow Cab Co. v. Dreslin
(taxicab caused injuries to Dreslin’s wife in accident that he was also
found negligent in. However, because no tort claim can exist between
husband and wife, contribution not allowed).
iv. Contribution cannot be claimed from joint tortfeasor who was released by
a good faith settlement agreement that represented their portion of the
damages. See Slocum v. Donahue (Donahue ran over plaintiff’s child and
could not collect contribution from Ford for floormat issue because
released earlier by settlement even though their payment was relatively
low).
VI.
Vicarious Liability (Respondeat Superior)
a. Respondeat Superior
i. Masters generally held jointly and severally liable for the torts committed
by their servants/employees, both negligent and intentional (when
reasonably within scope of employment though punitives not appropriate
in later case unless they were ratified by master.
ii. Going-and-coming rule – employer generally not liable for actions of
employees on their way to or from work except when actions during that
travel were not unusual or startling and were foreseeably attributable to an
enterprise. See Bussard v. Minimed, Inc. (employer responsible when
woman was in car accident after leaving work because of pesticide fume
exposure; similarly employer would be liable if worker was provided
alcohol at work-related party).
iii. Employee must generally be working within the scope of their
employment and for the furtherance of the employer’s interest.
iv. Respondeat superior is not mitigated by the employer’s use of ordinary car
in mitigating risk because it is a burden shifting mechanism. See Bussard
v. Minimed, Inc. (employer asking if employee felt ok driving home does
not excuse it from vicarious liability from resulting car accident).
v. Slight deviation rule - Employer still bears liability even if employee made
a slight deviation from a business-related trip but liability cut off for
substantial trip based on:
1. Employee’s intent
2. The nature, time, and place of the deviation,
3. The time consumed in the deviation,
4. The work for which the employee was hired,
5. The incidental acts reasonably expected by the employer, and
6. The freedom allowed the employee in performing his job
responsibilities.
7. See O’Shea v. Welch (liability could still be proven in case where
manager involved in car accident when attempting to pull into
service station while on “business trip” and used car often for
23
work; “acts necessary to the comfort, convenience, health and
welfare of the employee while at work are not outside the scope of
employment if not a substantial deviation”).
vi. Employers may not insulate themselves from liability simply by imposing
safety rules or instructing employees to proceed carefully.
b. Independent Contractors
i. Independent contractor defined as one who performs a certain service for
another according to his own methods and manner, free from control and
direction of his employer in all matters connected with the performance of
the service except as to the result thereof. See Murrell v. Goertz
(newspaper deliveryman/collector was independent contractor for
distributing company and not an agent of publisher).
ii. Masters typically not responsible for the negligent actions of independent
contractors that they employ unless the duty is nondelegable based on
public policy concerns (i.e. when duty imposed by statute or regulation to
provide specified safeguards for the safety of others R2.S424). See
Maloney v. Rath (holding that motorist still liable for brake failure under
California law requiring maintenance even if they contracted with a
mechanic to inspect them; financial burden of indemnification should not
rest with plaintiff).
iii. If an injured party reasonably relies on a representation of agency between
independent contractor and parent company, then estoppel will prevent
parent from avoiding vicarious liability. (i.e. independent hospital
departments within a hospital).
iv. Employer of contractor always responsible for liability when contracting
for performance of an illegal activity.
c. Joint Enterprise
i. All members of a joint enterprise liable for the torts of others as mutual
agents when:
1. An agreement, express or implied, exists among the members of
the group,
2. A common purpose to be carried out by the group exists
3. A community of pecuniary interest in that purpose is shared by the
members, and
4. an equal right to a voice in the direction of the enterprise, which
gives an equal right of control exists.
5. R2.S491; See Popejoy v. Steinle (husband and wife not construed
as joint enterprise because of the importance of interpreting these
requirements in a commercial light; no profit motive was found
because intended purchase of cattle was for daughter).
VII.
Remedies
a. Nominal Damages
24
i. Most commonly awarded in the case of intentional torts where there are no
actual damages but need basis for declaratory relief and punitive damages.
b. Compensatory Damages
i. Calculation
1. Five elements of recoverable damages: past physical and mental
pain, future physical and mental pain, future medical expenses,
loss of earning capacity and permanent disability and
disfigurement. See Anderson v. Sears, Roebuck & Co. (child
burned by faulty appliance).
2. Award is based on calculation of future value of money based on
expected discount rate so that windfall can’t be had through
investment. See Richardson v. Chapman (judge allowed jury to
use an estimate of the difference between interest and inflation
rates).
3. Only property damages generally recoverable, not economic loss.
See Kinsman Transit Co. (boat collided with bridge, blocking upriver traffic and flooding property); State of Louisiana ex Rel.
Guste v. M/V Testbank (boat accident that caused chemical spill
led to embargo that hurt business).
ii. Unique Circumstances
1. Eggshell skull doctrine - Defendant must take the plaintiff as they
found him even if pre-existing condition made him more
susceptible or more greatly impacted by negligent injury. (some
jurisdictions limit to only pre-existing physical conditions). See
Bartolone v. Jackovich (egg-shell skull case where plaintiff
developed schizophrenia after car crash); But see Foster v. Preston
Mill Co. (does not apply to mink’s mental condition).
2. Mitigation doctrine – Plaintiff typically required to mitigate
damages including through surgery where such steps would be
expected of a reasonable person under the circumstances. See
Zimmerman v. Ausland (jury able to consider plaintiff’s choice to
not undergo surgery to fix knee in considering future pain and
suffering; not contributory negligence claim because post-injury).
iii. Collateral-Source Rule
1. Judgment must normally be offset by any amount paid by another
tortfeasor.
2. However, when plaintiff obtains discount or payment for her
injuries on her own, the value of those offsets are not considered in
determining damages. See Montgomery Ward & Co. v. Anderson
(plaintiff obtained a 50% discount on medical expenses from
injury but allowed to present full bill in suit against defendants.
3. Insurance payments not counted as collateral-source, however,
company typically requires it be paid back from any judgments.
25
iv. Standard for Review
1. Judge applies the “maximum recovery rule” in evaluating whether
jury award was appropriate. See Anderson v. Sears, Roebucks &
Co. (judge took all inferences in favor of plaintiff in finding jury
award within bounds and victim’s presence not prejudicial because
of disfigurement as an element of award).
2. Jury allowed to award damages above those proved by plaintiff’s
expert witness but should be adjusted when they “shock the
conscience.” See Richardson v. Chapman (jury award exceeded
expert’s estimate by $1.5 million for $11 million total award).
c. Punitive Damages
i. Used by jury to punish/deter tortfeasor, especially when compensatory
damages are too small to accomplish this purpose.
ii. Plaintiff’s have no right to punitive damages which are levied at the
discretion of the jury and may be taken in party by the state. See
Cheatham v. Pohle (court upheld statute which allocated 75% of punitive
damage awards to state fund).
iii. Punitive damages are not reduced through comparative fault because they
are already assessed based on the malice or gross negligence of the
defendant.
iv. For most cases, single-digit ratios of punitive to compensatory damages
are appropriate, except in maritime cases where a 1:1 ratio is more
appropriate because of large size of awards. See State Farm Mutual v.
Campbell (single individual sued over fraudulent insurance practice to
minimize claim payments); Exxon Valdez case.
v. Punitives must reflect the actions by the defendant in the present case or at
least within the state, not punish a national company for its policy
everywhere. See State Farm Mutual v. Campbell (jury awarded punitives
based on allegations of systematic policy with many victims nationwide);
Philip Morris case (punitives were originally viewed as for nationwide
action but later interpreted as only relating to actual plaintiffs).
d. Satisfaction and Release
i. Plaintiff may only receive one satisfaction for their injuries and therefore
any settlement lowers the total amount that they can recover in litigation
against other defendants. See Bundt v. Embro (state paid for entire
damages under a separate statutory cause of action but in doing so
prevented plaintiff from bringing separate suit against defendant).
ii. CL historically prevented plaintiff from releasing one tortfeasor without
releasing them all but now allowed through “covenant not to sue.” See
Cox v. Pearl Investment Co. (Cox settled with one tenant for slipping
injury and was still allowed to sue other tenant because of structure of the
settlement agreement clearly not releasing all tortfeasors).
iii. Mary Carter agreements –
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1. settlement agreements which require that at least one defendant
remain in case but advocate for plaintiff in finding liability against
the remaining defendant in order to receive a reduction in the
settlement price.
2. Most states have found them as a violation of public policy though
some states still allow them while implementing procedural
changes to mitigate their impact. See Elbaor v. Smith (Smith
settled with two of three doctors on malpractice claim and had
them remain as defendants in suit; court didn’t allow).
iv. In order to release a joint tortfeasor, the settlement must represent a good
faith estimate of their portion of the liability. See Slocum v. Donahue
(Ford released for floormat issue in case of defendant running over child).
e. Indemnification
i. Used to collect from someone as an operation of law who was not
negligent.
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