INTENTIONAL TORTS
Elements of Intentional Torts
1. Intent
2. Voluntary Act
3. Causation
4. Damages
Affirmative Defenses
1. Consent
2. Necessity
Special meaning of “intent”
1. Remember – you don’t need intent to harm
2. Intent to harm OR intending to do something objectively inappropriate
3. If you intend an contact, intent can be extended to any other contact you knew “with
substantial certainty” would occur
Employers are not held liable for the intentional torts of their employees
1. As a matter of fairness, we are less likely to think that employers should be held
responsible for the intentional torts of the employees
a. The intentional tort was probably not part of their job
b. From a deterrence perspective, it’s much harder for employers to deter intentional
torts than for them to reduce negligent behavior
c. When you don’t bear the cost of the risk, you are more likely to engage in risky
behavior (if people know their employers will have to pay for any damages, they
may be more likely to commit harmful acts)
Battery
Elements of battery: Intended act + act is objectively inappropriate + contact was harmful
1. Intent to harm NOT necessary
Easy elements to prove:
1. Intended contact
2. Voluntary act
3. Contact was harmful
Hard elements to prove:
1. Conduct was wrong or inappropriate
2. There was really an imminent threat
3. There was no consent for the contact
Intent: Contact must have been intended OR the person must have known with substantial
certainty that contact would occur
1. You can cause a battery without touching the plaintiff
Damages: A plaintiff is entitled for all damages from a harmful contact, whether foreseeable or not
Voluntariness
1. The act must be voluntary
2. Convulsions are NOT voluntary
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3. Acts done under extreme duress are NOT voluntary
a. Acts toward self-preservation are involuntary and therefore could not be deterred
4. Insanity does not void voluntariness
a. Not a valid defense because we want to ensure effective guardianship
Transferred intent between contacts
1. The intended contact doesn’t have to be the harmful contact that injured plaintiff
2. If you intend a harmful contact, and harm results even indirectly, you’re liable
3. See Knight v. Jewett
Transfer of intent between torts
1. Intent for assault can satisfy the intent for battery if contact results
a. Initial act must be tortious in order for the tortious intent to transfer
b. See Keel v. Hainline; Bennight v. Western
Notion of “appropriateness” and goals of tort law
1. Corrective justice perspective
a. Moral injustice when one person harms another; the law rights the wrong
b. The wrong should be righted even when there was no intent to harm
c. Once you intend an act, the burden is on you not to harm
2. Deterrence/economic analysis
a. Law deters costly and undesirable conduct
b. Appropriateness standard helps us balance between deterrence and chilling effect
Vosburg v. Putney: LIABILITY for kick in a classroom even though he didn’t intend to harm
White v. University of Idaho: LIABILITY for tapping on students’ shoulders (supposedly offensive)
Garret v. Daly: LIABILITY for young boy who pulled a chair out from under the woman
Polmatier v. Russ: LIABILITY for a shooting because insanity does not void voluntariness
Laidlaw: NO LIABILITY for man who used his secretary as a human shield due to extreme duress
Knight v. Jewett: NO LIABILITY in football case because the first contact (a push) wasn’t harmful
Keel v. Hainline: LIABILITY for students throwing erasers because conduct was dangerous
Assault
Elements of assault:
1. Intent to cause harmful/offensive contact
a. OR give rise to imminent apprehension of the same
i. AND imminent apprehension subjectively but reasonably results
Assault can exist even in the absence of injury
1. Fear is not a necessary element either
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2. Need not believe the contact will occur
3. But, threat must actually be imminent
There does NOT have to be actual danger, as long as there is apprehension of harm
1. Apprehension must be SUBJECTIVELY APPRECIATED and OBJECTIVELY REASONABLE
You can’t be the victim of an assault in your sleep or when unconscious.
1. You must EXPERIENCE the apprehension
Brower v. Ackerly: NO LIABILITY for threatening phone calls; threat wasn’t sufficiently imminent
Bennight v. Western Auto: LIABILITY for manager who placed employee in fear of bat attack
Langford v. Shu: LIABILITY in jack-in-the-box case; no actual danger but reasonable apprehension
Tuberville v. Savage: NO LIABILITY for a threat because he said he wouldn’t actually do it
Consent
What counts as consent?
2. Express consent in words
3. Actions or other manifestations of intent
4. Failure to state lack of consent (sometimes)
5. Guardians can consent on behalf of minors
6. Consent may be implied
Consent is determined by an OBJECTIVE standard
Implied consent in medicine:
1. Emergency situations
2. Immediately life-threatening condition is discovered during surgery
Intoxication
1. Intoxication renders consent invalid
2. Intoxication does NOT render intent invalid
Consent to an unlawful act
1. Majority rule: Plaintiff’s consent is not a defense
a. If the plaintiff consents to an unlawful act, defendant can still be held liable
b. Rationale = Deterrence, we want to discourage unlawful acts
2. Minority rule: No liability if defendant can show plaintiff’s consent
a. Rationale = We shouldn’t reward π with damages for engaging in unlawful conduct
When does fraud vitiate consent?
1. Having sex without disclosing an STD
2. Misrepresenting sex as a medical procedure
3. Posing as a doctor’s assistant to see a delivery
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When does fraud NOT vitiate consent?
1. Paying a prostitute with a counterfeit bill
2. Rendering dental services without disclosing STD
3. Misrepresenting sex as love
4. Posing as a customer to review a restaurant
Factors to help determine if consent was invalidated:
1. Bodily integrity v. dignitary harm
2. Physical harm
3. Inviolability of the body
4. Level of invasion
5. Social norms
6. Unlawfulness of the act
Mohr v. Williams: LIABILITY because there was no implied consent for an alternative surgery
Grabowski: LIABILITY when a different doctor operated on a patient
Cohen: LIABILITY when the doctor was man after plaintiff requested woman for religious reasons
Brzoska: NO LIABILITY for dentist with AIDS because plaintiff’s fear was objectively unreasonable
Werth: NO LIABILITY when doctor gave blood transfusion despite refusal because life was at stake
Neal v. Neal: LIABILITY for battery following sex while husband was having affair (outlier case)
Trespass
Elements of trespass
1. Intent to enter
a. Not necessarily intent to trespass
2. Entry
a. Entering, remaining, or failing to remove from property
3. Causation
4. Social Value
a. Was the trespass justified?
Mistakes are trespasses, but accidents are not (accidents are unintentional)
A trespass may occur if a defendant goes outside of the scope of consent
1. For instance, if they had consent to be on the property, but not to leave anything behind
(see Van Alstyne)
Desnick v. ABC: NO LIABILITY for reporters posing as patients to investigate doctor’s office
Pegg v. Gray: LIABILITY for letting dogs out, knowing they would go on neighbor’s property
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Malouf v. Dallas Athletic Club: NO LIABILITY because defendant didn’t intend golf balls to hit car
Van Alstyne: LIABILITY for telephone company that left lead droppings behind in a home
Intentional Infliction of Emotional Distress
Elements
1. Intentional/reckless conduct
2. Extreme/outrageous conduct
3. Causation
4. Severe emotional distress resulted
Special sensitivities are taken into account only if defendant knew about them
Bystanders can recover only if they are (1) family members or (2) physically harmed
Evaluating liability
1. Relationship between parties
2. Social Value
3. Context
Rationale for the “extreme and outrageous” standard
1. Standard needs to be ambiguous because if we set strict standards people would come as
close as possible to the line without crossing it
2. We should accept a certain amount of incivility in society
3. We want to make sure emotional harm is significant before getting the court involved
Roberts v. Saylor: NO LIABILITY for a doctor who hurt the feelings of someone not his patient
Greer v. Medders: LIABILITY for doc who severely insulted vulnerable plaintiff; physical symptoms
Muratore: LIABILITY for cruise ship employees who constantly harassed plaintiff, ruining vacation
Pemberton v. Bethlehem Steel: NO LIABILITY for reporting affair (info was true, π not vulnerable)
Murray v. Schlosser: LIABILITY for insulting bride; intent to injure + context + no social value
Feltmeier: LIABILITY for extreme spousal abuse; conduct extreme even within marriage
Private Necessity
Necessity for trespass
1. Trespasser is entitled to be on the property in cases of necessity
2. If the landowner ejects him, landowner is liable for harm
3. Trespasser is responsible for damages caused during use of land
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To minimize overall losses and maximize economic efficiency, we follow an “always pay” rule
1. Person who causes harm due to private necessity always pays
Coase Theorem:
1. When transaction costs are low, parties can bargain easily and will reach efficient outcome
2. When transaction costs are high, law helps us reach the efficient outcome
a. Necessity produces high transaction costs and unequal bargaining power
b. Law tries to reach the outcome the parties would have agreed to if they could have
bargained themselves
Ploof v. Putnam: NO LIABILITY for mooring a sloop in a storm; necessity is a defense to trespass
Vincent v. Lake Erie: LIABILITY for damage to plaintiff’s dock when used to save defendant’s ship
Borough of Southwark v. Williams: NO LIABILITY for denying necessity privilege to homeless man
Public Necessity
No liability in cases of public necessity
1. Deterrence rationale:
a. We don’t want to deter people from saving lives or property
2. Collective justice
a. Acting on behalf of the collective is justifiable
We use the “never pay” rule for public necessity, because we don’t want people to hesitate before
taking action to save life or property
Private necessity: Sparing your own property at the expense of someone else’s
Public necessity: Sparing public property/many people’s property at the expense of someone elses
Mouse’s Case: NO LIABILITY when a casket was thrown out of a boat to prevent it from sinking
Surroco v. Geary: NO LIABILITY for mayor who ordered homes destroyed to stop spread of fire
Struve v. Droge: LIABILITY when defendant was mistaken in his belief that there was a fire
NEGLIGENCE
Negligence v. Strict Liability
Strict Liability = Person who caused harm is liable regardless of fault
Negligence = Fault-based liability
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Strict liability depends on…
1. Activity level/care level
a. If due care won’t reduce accidents, we must change the activity level
2. Recipocity
a. We don’t impost strict liability for activities with broad social value
3. Administrability
a. Strict liability results in more lawsuits but those cases are easier to resolve
Elements of Negligence
1. Duty of care
2. Breach of standard of care
3. Causation
4. Damages
When do we alter the standard of care?
1. Mental deficiencies
2. Physical deficiencies
3. Age
How do we determine if standard of care is met?
1. Hand Formula
2. Reasonableness
3. Custom
4. Negligence per se
5. Criminal statutes
Brown v. Kendall: NO LIABILITY when the defendant exercised due care and was not at fault
Rylands v. Fletcher: LIABILITY for defendant who built reservoir that flooded neighbor’s property
The Reasonable Person
Standard for Negligence = Reasonable person standard
1. To avoid negligence, you must act as a reasonable person would in the same circumstances
When mentally deficient people cause harm we are more likely to hold them liable than when they
are harmed
Distinct Defect = A defect of a pronounced type that is manifestly debilitating
1. Only defects that meet this standard excuse a defendant from liability
Mental deficiencies and idiosyncratic beliefs only defeat liability in exceptional cases
1. Religious beliefs are generally respected
Standard for Professionals
1. Professionals are held to the standard of others trained in your profession
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2. Specialists are held to a higher standard of care than general practitioners
A person with superior abilities have the responsibility to use them when necessary
Physical infirmities
1. Standard = Reasonable person with the same disability
2. Must take reasonable precautions to account for the infirmity
Why different standard for mental and physical deficiencies?
1. Physical deficiencies more easily known to others
2. Physical deficiencies easier to prove than mental ones
3. Easier to correct mental deficiencies than physical ones (outdated?)
Standard of Care for Minors
1. Minors are only held to an adult standard of care if the activity is…
a. Dangerous to others
b. Normally engaged in only by adults
c. Includes operating vehicles (see Dellwo)
Standard of Care for the Elderly
1. Elderly people have a duty to know and correct for their infirmities (see Roberts)
When are minors capable of negligence? (Minority rule)
1. Under 7 = Incapable of negligence
2. 7-14 = Rebuttable presumption that they’re incapable of negligence
3. Over 14 = Presumed capable of negligence; burden on minor to prove incapacity
Majority rule = Minors must follow the standard of a reasonable child of the same age, with the
same circumstances and experience
OVERALL:
1. Mental deficiency = Liability
2. Physical deficiency = Must act reasonably given disability
3. Minors = Liability for adult activities, otherwise the burden is on the plaintiff
Williams v. Hays: NO LIABILITY for captain who went insane as a result of trying to save his ship
Vaughan v. Menlove: LIABILITY for accidental fire caused by Δ with less-than-average intelligence
Lynch v. Rosenthal: LIABILITY for not warning a mentally disabled person about danger
Weir v. Jones County: NO LIABILITY for injury to plaintiff who couldn’t read English warning sign
Friedman: NO LIABILITY for a girl who jumped off a ski lift to avoid spending the night with a man
Fredericks v. Castora: NO LIABILITY for truck driver; all drivers meet one basic standard of care
Kerr: LIABILITY for deaf man hit by train because he didn’t take reasonable precautions
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Davis: NO LIABILITY for blind man who fell into an open cellar, because he was using a cane
Purtle v. Shelton: NO LIABILITY for 17 year old who shot his hunting companion, due to age
Roberts v. Ring: LIABILITY for old man who hit a young boy while driving
Dellwo v. Pearson: LIABILITY for boy driving a boat; operating vehicles = adult standard of care
Dunn v. Teti: NO LIABILITY for a six year old who hit another child with a stick
Central Michigan Railroad: Women are NOT held to a lower standard of care across the board
Briese v. Maechtle: NO LIABILITY for child who injured another while playing tag (lawful activity)
Risks and Precautions
Hand Formula: Burden < Probability x Loss
1. The burden of the precaution should be less than the probability of the loss times the
magnitude of the loss
a. Even is loss is high, there may be no negligence in cases where P is very low
b. It isn’t always necessary to take the maximum precaution, if the cost is high
No negligence IF:
1. Decreased risk to rescuee > Increased risk to rescuer (Hand formula)
a. “Efficient rescuer”
2. Decreased risk to rescuee > Increased risk to rescuer (Rash or Reckless test)
a. Increased risk to rescuer doesn’t matter
b. “Martyr”
3. Decreased risk to rescuee () > Increased risk to rescuer (Eckert test)
a. You must SIGNIFICANTLY decrease the risk to the rescue in order for the rescue to
be worthwhile
b. “Sensible martyr”
Compliance Error: Courts DO NOT excuse momentary lapses in standard of care
US v. Carroll: LIABILITY for failing to have a bargee present, because cost of precaution was low
Adams v. Bullock: NO LIABILITY for electrocution; probability of accident is low, precaution costly
Bolton v. Stone: NO LIABILITY after woman hit by cricket ball; probability of injury was so low
Eckert: NO LIABILITY for man who rushed onto railroad tracks to save a child (modified Hand)
Margharita: NO LIABILITY in case of injury at sea, because burden of re-routing the ship too high
Davis v. Consolidated Rail: LIABILITY for injury to train inspector; train should’ve blown horn
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Custom and Medical Malpractice
Why rely on custom to determine appropriate standard of care?
1. Administrability
a. Easier to defer to custom than to individually assess negligence in each case
b. Companies/individuals know what is expected of them
We DON’T always rely on custom for very dangerous activities
We tend to rely on custom when…
1. There is a contractual relationship between the parties
a. Companies customs reflect market determination of how best to avoid accidents
Custom in Medical Malpractice
1. Custom isn’t just evidence for a breach of care, it’s conclusive
2. Majority rule = National standard (see Brune)
a. Some allowances for different resources in different communities
b. Minority rule = Local standards (see Gambill)
TJ Hooper: LIABILITY for tugs not having working radios; important even though not customary
Ellis: NO LIABILITY for not giving employee mask (not customary); minority rule (TJ = majority)
MacDougall v. PP&L: LIABILITY for putting a fuse box near a roof, although custom was followed
Rodi Yachts: CUSTOM is the determining factor for liability
Brune v. Belikoff: LIABILITY for doctor who didn’t follow national standard of medical care
Gambill v. Stroud: NO LIABILITY for doctor held to standard of care used in similar communities
Johnson v. Wills Mem. Hospital: NO LIABILITY for hospital for allowing patient escape; locality rule
Negligence Per Se
Negligence per se: Standard of care was breached as a matter of law (doesn’t go to jury)
Contributory negligence: Breach of care + breach was the cause of the harm
Requirement of negligence per se
1. Violation of standard of care set forth in a criminal statute
2. Type of injury must be relevant to the statute (see Tingle)
3. Must be a duty to the person/thing harmed (see Segler)
4. May be exceptions if violation is reasonable (see Tedla)
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When is there an exception to a statutory standard of care?
1. The reasonable approach is in conflict with what is required by statute
2. The statute involves balancing which options would be safer
3. The statute must have to do with the injury that occurred
If you exercise due care but still violate a statute due to ignorance, you can be let off the hook
Rules for establishing negligence per se
1. Is the conduct specified by the rule ALWAYS better than the alternative?
2. Does the conduct correspond with custom/common experience?
Seatbelts
1. Majority of states say failure to wear a seatbelt is NOT negligence per se
2. 15 states say it IS negligence per se; allow damages to be reduced
Martin v. Herzog: LIABILITY for car accident because driving without a light is negligence per se
Tedla v. Ellman: NO LIABILITY for plaintiffs walking on right side of road despite violating statute
Tingle v. Chicago: NO LIABILITY for train that ran over cow; illegally driving on Sunday irrelevant
Segler v. Steven Bros: NO LIABILITY for store that didn’t clean up dog poop in violation of statute
Sparkman v. Maxwell: NO NEGLIGENCE PER SE for a woman that ran a confusing red light
Vesley v. Sager: LIABILITY for bartender for serving alcohol to a drunken man who caused accident
Ross v. Hartman: LIABILITY for driver who left his truck unlocked in violation of statute
Baltimore & Ohio RR: LIABILITY for plaintiff who failed to “stop, look, listen” at train tracks
Pokora v. Wabash: NO NEGLIGENCE PER SE for π who didn’t “stop, look, listen”… rule is too strict
Res Ipsa Loquitor
“The thing speaks for itself”… We can assume negligence even without evidence
Requirements
1. This type of accident usually only occurs through negligence
2. Whatever caused the injury was in the defendant’s control
3. Defendant CAN rebut claims of negligence
When an activity is legal, we assume that due care will prevent accidents, so when an accident
occurs it was probably the result of negligence
If neither defendant nor plaintiff can prove cause of accident, plaintiff normally wins
1. Helps avoid “pockets of immunity”
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a. Without res ipsa, if plaintiff couldn’t access evidence, defendant would always win
Importance of technology
1. The more safety technology = the more likely an accident resulted from negligence
a. Planes are very unlikely to crash without negligence due to safety features
b. Boats may sink with or without negligence, accidents at sea often unavoidable
“Information-Forcing”/Multiple Defendants
1. Res ipsa can apply even if there are multiple defendants and cause of injury unknown
a. May cause defendants to release information about the others’ activities, rather than
creating an incentive for them to stay silent to protect each other
Byrne v. Boadle: LIABILITY because negligence must have caused barrel to fall out of window
Combustion Engineering: NO LIABILITY because tools often drop even if Δ exercises due care
Larson v. St Francis: NO LIABILITY for hotel when guest threw couch out window; not preventable
Connolly v. Nicollet Hotel: LIABILITY for hotel that didn’t control guest’s wild party (knew about it)
Brauner v. Peterson: NO LIABILITY for cow on highway; cows often escape without negligence
Guthrie v. Powell: LIABILITY for cow that fell through ceiling; dangerous to keep cows there
Wilson v. Stillwell: NO LIABILITY for infection after operation; could occur even with due care
Judson v. Giant Powder: LIABILITY for explosion, all witnesses died, explosions normally negligent
Haasman v. Pacific Alaska Air: LIABILITY after plane crash even though neither side had evidence
Archibeque v. Homrich: LIABILITY for hitchhiker who was probably driving car when it crashed
Ybarra v. Spangard: LIABILITY for medical malpractice despite there being several defendants
Wolf v. American Tract Society: NO LIABILITY when a brick fell at construction site, 19 possible Δs
Bond v. Otis Elevator: LIABILITY for elevator company and building; hopes to force information
Ingrid v. Central RR: NO LIABILITY after explosion; evidence destroyed so D can’t offer rebuttal
DUTY
Sources of duty
1. Affirmative acts
2. Special relationships
3. Occupation of land
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Affirmative Acts
When is an action enough to trigger a duty?
1. Goading
2. Earlier act increases risk
a. Conduct
b. Undertaking
c. Rescue attempt
3. Blocking
There is more likely to be a duty when…
1. The situation takes place in public (see Saldano)
2. There is no imminent harm to the rescuer
There is NO general duty to rescue
1. Arguments for duty
a. Why not rescue, if minimally inconvenient/no risk to rescuer?
2. Arguments against duty
a. Problem of incompetent rescuers
b. Protecting individual autonomy
c. Administrability… how do we know if rescue would have been safe?
Negligence for rescuers
1. If the victim was worse off than before the rescue, the rescuer can be held liable
There may be a duty if an undertaking induces reliance
Yania v. Bigan: NO LIABILITY for encouraging plaintiff to jump into deep water (plaintiff drowned)
Weirum: LIABILITY for DJs who “created a risk” with their contest that caused speeding/accident
Globe v. New York RR: LIABILITY for a railroad car that didn’t get out of the way of fire trucks
Saldano v. O’Daniels: LIABILITY for Δ who refused to allow use of phone to stop deadly assault
Stangle v. Fireman’s Fund: NO LIABILITY for Δ who didn’t allow use of phone to find stolen ring
Hurley v. Eddingfield: NO LIABILITY for a doctor to provide care for seriously ill patient (not his)
O’Neill: LIABILITY for doctor who told man having heart attack to go home; can’t abandon patients
Erie RR v. Stewart: LIABILITY for railroad when guard didn’t warn passenger of approaching train
Special Relationships
Types of special relationships
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1.
2.
3.
4.
5.
6.
School/student
Parent/child
Babysitter/child
Common carrier/passenger
Prison/inmate
Police/citizen
No duty to control the conduct of others
1. EXCEPT if there is a special relationship between defendant and other person
a. Example, doctor/patient
b. Doctor also has a duty to patient’s potential victims
c. See Tarasoff
There is NO duty owed by public rescue services to any particular person (see Riss)
1. UNLESS a special relationship can be established (see Schuster)
Example 1: Man calls 911 with headache, dispatcher tells him to take aspirin, he dies of a stroke
1. NO duty owed, because man shouldn’t have relied on dispatcher for medical advice
Example 2: Man calls 911 about a burglar, dispatcher says the police will be there, doesn’t dispatch
1. There WAS a duty owed, because the dispatcher promised action, reasonable to rely
Trans-Packing Fishing & Packing: LIABILITY because there was a duty between ship-owner/crew
US v. Lawter: NO LIABILITY for Coast Guard’s botched rescue, because it was better than no rescue
Charles v. Seigfried: NO LIABILITY for host when teenager drank at a party then crashed car
Kelly v. Gwinnel: LIABILITY for host when drunken guest caused death of 3rd party in car crash
Tarasoff v. Univ. of CA: LIABILITY for psychologists for not warning woman of homicidal patient
Kline v. 1500 Mass Ave: LIABILITY for a landlord for not protecting tenants from intruders
Riss v. City of NY: NO LIABILITY for police for failing to protect plaintiff from her ex boyfriend
Schuster v. City of NY: LIABILITY for police for failing to protect an informant they solicited
Duties of Land Owners/Occupiers
Trespasser: Someone who enters or remains on land without permission to do so
Duty towards trespassers
1. Landowner must know trespasser is there
2. The hazard must be an artificial condition
3. The hazard must not be obvious to the trespasser
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Licensee: Social guests; someone invited into a private home
Duty towards licensees (see RST 341, p. 263)
1. Landowner has a duty only if they know/should know about the hazard
a. No duty to inspect
2. Or, if the landowner engages in activity that puts the licensee at risk
3. The condition must not be obvious to the licensee
Invitee: Business visitors; someone who attends an event or place open to the public, or engages in
a mutually beneficial economic exchange
Duty towards invitees
1. The landowner has a duty to make sure his premises are safe
2. The hazard must not be obvious to the invitee
Why have different standards?
1. Predictability (can’t predict trespassers)
2. Moral judgments (less of a duty to protect wrongdoer)
3. Consequences to community (if there’s always a duty we discourage socializing)
Why get rid of the distinctions? (see Rowland)
1. General standard would offer better protection
2. People aren’t more or less worthy of protection based on their reason for being somewhere
Herrick v. Wixom: LIABILITY for circus when trespasser injured (they “knew” he was in audience)
Davies v. McDowell: NO LIABILITY for carbon monoxide poisoning of licensees; owner didn’t know
Lordi v. Spiotta: LIABILITY because Δ‘s failure to shut off gas was an affirmative act/dangerous
Boca Raton v. Mattef: NO LIABILITY because Mattef was a volunteer when he painted watertower
Jacobsma v. Goldberg’s: LIABILITY because Jacobsma was an invitee, was asked to help get thief
Rowland v. Christian: LIABILITY when guest injured hand on a faucet host knew was broken
LIMITATIONS
Pure Economic Loss
Economic Loss Doctrine
1. No recovery for economic losses unless accompanied by bodily injury or property damage
2. The more foreseeable the loss, the more likely the recovery
a. Foreseeability alone not enough, must be particular foreseeability
b. Example: Commercial fishermen entitled for purely economic losses, because these
damages are particularly foreseeable
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Rationale for recovery
1. Foreseeable
2. Few plaintiffs
3. Blameworthy
Rationale
1. Administrability
a. Hard to draw lines about who should recover
b. Would result in many more claims
2. Alternative = First party insurance
a. But, this shifts loss away from negligent party
b. Less comprehensive coverage than tort system
Counterarguments
1. Unfair to let nobody recover
2. If damages were foreseeable, defendant should be held responsible
Robins Dry Dock v. Flint: NO LIABILITY because property damage occurred to boat owners, not π
Madison Ave Foods v. Finlandia: NO LIABILITY because deli incurred only economic losses
People Express Airlines: LIABILITY for economic loss because defendant knew π would be harmed
Emotional Harm: Negligent Infliction of Emotional Distress
A defendant can have a claim for negligent infliction of emotional distress, especially (and
sometimes only) if she suffers physical symptoms
Recovery for bystanders
1. Majority rule now allows bystanders to recover even outside the zone of danger
2. Split on whether you have to see the accident or just have a close relationship to victim
Recovery for mistaken bystanders?
1. Mistake as to extent of injuries might allow recovery
2. Mistaken identity (jumping to conclusions) probably doesn’t allow recovery
Robb v. Penn RR: LIABILITY for fear of impending death by train, despite there not being an impact
Marzolf v. Stone: LIABILITY when father sees his son injured in an accident right after it happened
Gain v. Carroll Mill: NO LIABILITY when father saw an accident involving his son on TV
Barnhill v. Davis: LIABILITY (possibly) for son who mistakenly thought mom was hurt in accident
Barnes v. Geiger: NO LIABILITY for mom who feared her son might’ve been the victim of accident
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CAUSATION: CAUSE IN FACT
But-For Causation
But-For Causation
1. Traditional standard: “More likely than not”
a. Is it more likely than not that the injury could’ve been prevented by the precaution?
NY Central RR v. Grimstad: NO LIABILITY; lack of life preservers didn’t necessarily cause death
Gardner v. Nat’l Bulk Carriers: LIABILITY; crew member overboard likely could have been saved
Haft v. Lone Palm: LIABILITY for hotel after guests drowned in a pool with no sign
Bernard v. Char: LIABILITY for dentist who didn’t properly inform patient of risk of procedure
Zalazar v. Vecimak: NO LIABILITY for doc when π suffered injuries after face lift (she chose risk)
Lost Chance and Statistical Evidence
Plaintiff may recover if a doctor’s mistake reduced his chance of survival
1. In these cases damages are often reduced to be proportional to lost chance
2. Helps avoid pockets of immunity
a. Under the traditional rule, if a plaintiff starts off with a greater than 50% chance of
having the injury anyway, he can never win a negligence claim
b. It is statistically impossible for the defendant to increase the chance of injury by
more than 50% (as required by “more likely than not” standard)
Hypothetical: What if a doctor’s negligence makes a patient’s chance of death go from 40% to
60%? Does the traditional view of causation apply?
1. The defendant only caused 1/3 of the risk of death (20/60)
a. It was NOT more likely than not that defendant caused the death
b. 1/3 < 50%
Damages proportional to chance plaintiff died due to negligence
1. If a woman dies, and there was a 20% chance that she died due to negligence, and she
would have earned $1,000,000 over the course of her lifetime, then her damages would be
$200,000 (20% of $1,000,000)
Benefits of “loss of a chance” rule
1. Fairer distribution
2. Grants at least some relief to those who deserve it
3. Prevents pockets of immunity
Can only use “loss of a chance” rule if there is solid statistical evidence available
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Herskovitz v. Group Health: LIABILITY for misdiagnosed lung cancer; “loss of a chance”
Dumas v. Cooney: NO LIABILITY, if actions didn’t actually cause injury, why recover?
Multiple Causes/Joint Liability
If we don’t know which defendant caused the injury, both can be held liable
1. Both must have breached the duty of care
2. Avoids pocket of immunity
Market Share Rule
1. Defendants are liable for an amount proportional to their market share
2. Defendants sued must make up a substantial portion of the market
3. Defendants sometimes allowed to prove they DIDN’T cause the harm
Arguments against the “market share” rule
1. Fairness
a. Plaintiffs in market share cases are better off than those that file suit against
judgment-proof defendants
b. It isn’t fair to hold defendants liable without showing cause
2. Maybe this is more of a regulatory issue?
3. Over-deterrence for small businesses?
“Concert of Action” Liability
1. If plaintiffs act together, they can all be held jointly liable
Factual causation
1. But for causation
a. More likely than not (Grimstad)
i. Exceptions for pockets of immunity or recurring misses (Gardner/Haft)
b. Lost chance (Herskovits)
2. Alternative liability – HAS to be a special circumstance where court feels confident that
BOTH defendants were breaching
a. Two breaching defendants, one cause (Summers – extraordinary case)
b. Concurrent causes (Kingston)
c. Market share (Sindell – rarely applied)
Summers v. Tice: LIABILITY in quail hunting case for two Δs, although only one caused injury
Sindell v. Abbot Labs: LIABILITY for manufacturers of harmful drug; applies “market share” rule
CAUSATION: PROXIMATE CAUSE
Remoteness and Foreseeability
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Proximate causation
1. Directness (Polemis)
a. Defendant liable for all harm caused by negligence, even if not foreseeable
b. Overruled
2. Foreseeability (Kinsman/Wagon Mound)
a. Defendant liable only for damages of the same type that was foreseeable
3. Damage
4. Forces (Doughty)
a. The cause of the damage must have been due to foreseeable forces
5. NOT exact developments
a. Even though the developments in Kinsman were crazy, there was still liability
“Eggshell Skull” Rule: A negligent defendant takes the plaintiff as he finds him
Deterrence argument for foreseeability standard
1. If the harm is foreseeable, it can be prevented in advance
2. Defendant more culpable for foreseeable harm
In re Polemis: LIABILITY for falling plank (due to negligence) that sparked an explosion
Wagon Mound: NO LIABILITY for harm from oil spill; explosion was not foreseeable
Petition of Kinsman Transit: LIABILITY for huge amount of damage after ship was unmoored
Doughty v. Turner: NO LIABILITY for a lid slipping into a vat and exploding (different forces)
Colonial Inn Motor Lodge: LIABILITY for man who backed car into heating unit, causing explosion
Central GA RR v. Price: NO LIABILITY for woman injured in hotel after being let off at wrong stop
Intervening Causes
Harm may be foreseeable despite intervening cause
1. Sometimes the intervening cause itself is foreseeable
2. May depend on the intervening actor’s state of mind
Brauer v. NY Central RR: LIABILITY when train collided with π’s wagon and his stuff was stolen
Watson v. Kentucky & Indiana Bridge: NO LIABILITY for railroad gas spill, someone else lit fire
Village of Carterville v. Cook: LIABILITY when pedestrian was jostled off sidewalk with no railing
Alexander v. New Castle: NO LIABILITY for failing to enclose pit when Δ was thrown in on purpose
Scott v. Shepherd: LIABILITY for first firecracker-thrower although it was tossed around by many
Roman Prince: NO LIABILITY for owner when woman tripped after delaying exit of sinking barge
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Thompson v. White: LIABILITY for gas station when clown’s performance distracted a driver
Limitation of Duty
Majority Rule: Liability is based on duty
1. Duty is based on foreseeability of harm to the plaintiff
a. We owe duties to those who are foreseeably within the zone of risk
2. Minority rule: Liability is based on proximate cause
a. Possible trend towards this view
Palsgraf v. Long Island RR: NO LIABILITY because woman on tracks was “unforeseeable plaintiff
DAMAGES
Types of damages
1. Compensatory damages
a. Compensates people for damages actually suffered
b. Property damage/personal injury
2. Nominal damages
a. Granted to recognize that a right has been violated
b. Usually only for intentional torts
3. Punitive damages
a. Granted to punish bad behavior
Assessing property damages
1. Market value of lost item
2. Compensation for loss of use
3. Normally no damages for sentimental value
Assessing personal injury damages
1. Economic damages
a. Lost earnings (based on market value)
b. Not affected by remarriages
c. For children, you can get whatever you can prove
2. Non-economic damages
a. Largely discretionary, must be “fair and reasonable”
b. Include loss of society, pain and suffering, and hedonic damages
Hedonic Damages
1. Hedonic damages = Compensation for not being able to enjoy an activity anymore
2. How to calculate?
a. Courts skeptical of per-diem calculations
b. Also skeptical of “golden rule” arguments (how much jurors value this thing)
Pain and Suffering
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1. Pre-impact fright (see Beynon)
2. Humiliation (see Douglas, Weller)
Pros and cons of fixed compensation schedules
1. Administrability
a. Giving everyone the same amount is much more administrable, especially in the
aftermath of large-scale disasters such as this… you don’t even need lawyers
2. Courts tend to give higher awards
a. Compensation schedules present a trade off: high certainly of recovery, but lower
damages
3. No distinction between cases
a. What if there was a pregnant victim, or a person who suffered more, or a child who
lost their parents?
US v. Hatahey: Damages for horses taken by gov’t = market value, loss of use and mental anguish
Pescatore v. Pan Am: $9 mil lost wages/$5 mil lost society after young BP exec killed in plane crash
Landers v. Ghosh: $400,000 for lost wages/society after death of young, unemployed carpenter
Haddigan v. Harkins: $65k for lost services of a housewife killed in car accident
Louisville & Nashville Ry. v. Creighton: $10k for lost earnings given for death of four year old child
Olin Corp v. Smith: $6 million in damages for 16 year old who lost his leg in a hunting accident
Williams v. US: $500k in damages for inmate who lost his leg after misdiagnosed infection
Beynon v. Mongomery Cablevision: $1 mil verdict for pre-impact fright in car crash case
Douglas v. Hustler: No damages for woman whose Playboy photos were published in Hustler
Weller v. American Broadcasting: $2 mil verdict for antique dealer’s reputation damage/suffering
Daugherty v. Erie Ry.: $5,000 verdict too low for severe disfigurement, loss of taste and smell
Hogan: No damages for very talented violinist who lost ability to play the violin (overruled)
9/11 Fund: Victim’s families all given $250k for non-economic damages; lost wages = market value
DEFENSES
Contributory/Comparative Negligence
Contributory Negligence: If the plaintiff were negligent, it would bar him from recovering
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1. “Pure” Rule = No recovery, no matter how small plaintiff’s negligence
2. Modified Rule = Recovery allowed if Δ’s negligence was more than 50% responsible
Comparative Negligence: Damages proportional to amount of negligence
McIntyre v. Balrentine: Comparative negligence in car crash case; Δ was drunk but π was speeding
Assumption of Risk
“Valenti non fit injuria” – “To the consenting no injury is done”
“Tunkl Test” to assess enforceability of releases
1. Does it involve a public service?
a. If so, no exculpatory clauses allowed
2. Is this a contract of adhesion?
3. Was there a disparity in bargaining power?
Express assumption of risk
1. No liability for defendant if risk was expressly assumed
2. Assumption of risk must be clear
3. Contract must be sufficiently clear/specific
4. If you don’t know about the risk, you can’t assume it
5. Plaintiff more likely to have assumed risk if risk is inherent in activity
Tunkl v. University of CA: LIABILITY for hospital malpractice despite plaintiff signing a release
Murphy v. Steeplechase: NO LIABILITY for “Flopper” ride because risk of falling was obvious
Woodall v. Wayne: LIABILITY when stunt man was injured due to an unexpectedly bad stunt driver
Hackbart v. Bengals: NO LIABILITY when NFL player was injured in a game; risk was inherent
STRICT LIABILITY
Elements of strict liability
1. Certain acts
a. High degree of risk
b. Potential for great harm
c. Reasonable care is inadequate
d. Not a common activity/reciprocity of risk
e. Inappropriate activities
f. Value of activity < Damage
2. Causation
3. Damages
For strict liability, defendant doesn't need to be at fault
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Activity levels
1. If due care won’t help reduce accidents, we have to reduce the activity
2. Must be balanced with social value of activity
Reciprocal Risk
1. Activities with non-reciprocal are more likely to have strict liability
2. If something is common, loss should be spread throughout community
3. How to define “common?
a. Does a mass of the community engage in the activity? (RST 2nd)
b. Something that is not strange/unusual and provides common benefits (RST 3rd)
c. Location matters… is the activity common in this particular place?
Loss spreading – We want to put the loss on the party who is more able to absorb/spread the loss
Respondeat Superior: Employers are strictly liable for the torts of their employees
1. Employee must have been acting in the scope of employment
2. Must have been an intentional tort
3. Must have been an employee, not just an independent contractor
4. Risk must have been characteristic of the enterprise
5. Employers NOT held liable for the “frolic and detours” of their employees
Rationale for respondeat superior
1. Fairness – Employer should bear costs of its activities
2. Loss spreading – Employer more able to spread the loss
3. Compensation for victims – Employer probably isn’t judgment proof
Are the risks characteristic of the enterprise?
1. When/where did the tort occur?
2. Was the risk foreseeable?
3. Were defendant’s actions motivated by the employer?
4. Is this the kind of activity the employer normally engaged in?
5. Was the employer in control?
6. Did the activity benefit the employer?
Rylands v. Fletcher: STRICT LIABILITY for Δ who built reservoir that flooded neighbor’s property
Losee v. Buchanan: NO STRICT LIABILITY when boiler exploded and pieces flew onto π’s property
Lubin v. Iowa City: STRICT LIABILITY for damage from ruptured pipes that hadn’t been checked
Indiana Harbor Belt v. American Cyanamid: NO STRICT LIABILITY for chemical spilling out of train
Ira Bushey v. US: LIABILITY for Coast Guard when sailor returns to his post drunk, damages dock
Miller v. Reiman-Wuerth: NO LIABILITY because the harm occurred on defendant’s personal time
Forster v. Red Top: LIABILITY when a bus driver fought with other drivers for “making him late”
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Reina v. Metropolitan Dade: NO LIABILITY when a bus driver fought π after π gave him the finger
PRODUCTS LIABILITY
Types of defects
1. Manufacturing defect (strict liability)
2. Design defects (negligence standard)
3. Warning defects (negligence standard)
Causation
1. Was the product/defect introduced before it was in buyer’s possession?
2. Was there justifiable reliance on the product?
3. Was there a factual misrepresentation?
4. Was the injury foreseeable?
Design defects/failure to warn
1. Standards = Reasonableness, foreseeability
2. Risk-utility calculus (Hand Formula)
a. Could the injury have easily been prevented with a better design/warning?
“Heeding Presumption”: We assume that defendants would have heeded the warning
1. This presumption is rebuttable (see Graves)
Escola v. Coca Cola: LIABILITY for manufacturer of bottle that exploded in π’s hand (res ipsa)
American Tobacco v. Grinnell: LIABILITY for tobacco company for not warning about addiction
Graves v. Church & Dwight: NO LIABILITY for failure to warn if defendant wouldn’t heed warnings
Brown v. McDonalds: LIABILITY because McDonalds failed to warn about fish in veggie burger
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