Torts outline
Intentional Torts
Intent: 1) acting for the purpose to bring about a consequence or 2) a substantial certainty of
consequences resulting from conduct
-determining intent of act AT THE TIME IT OCCURRED
-CONSEQUENCES of an action are assessed
-actions must be voluntary--even under duress, actions are still intentional if voluntary
(Ex. Someone holds gun to your head and makes you punch John, you committed the intentional
tort of battery…)
Not considerations: motive (why action was performed), mistake of fact (Ranson v.
Kitner-intent to shoot at animal mattered; not important that D was “certain” he
was shooting at wild animal ); if act performed in “good faith”; sanity of
defendant--McGuire v. Almy (court refused to look into mental faculties
when determining intent)
Talmage v. Smith (Can D be civilly liable for damages resulting from a battery when person
intended to be hit injured P instead?)
-Yes, D intended to hit somebody and inflict injury upon them, the fact that the injured
party was not the intended party is irrelevant…
-transferred intent--when intent can be proved; court will allow the harm threatened to
intended party to shift to injured party to recover for damages * the policy behind
this is to protect people from harm and hold tortfeasors accountable for
endangering others
Battery
1) intent
2) harmful OR offensive contact
-AND3) a harmful/offensive contact with the person of the other DIRECTLY or INDIRECTLY
results
-person must intend to bring about consequences that follow their action 1) acting with the
purpose to batter or 2) acting with substantial certainty that battery will follow
Contact can be direct or indirect:
-direct physical contact with a body part of another (punch, kick)
-shining of light in someone’s face
-blowing smoke in someone’s face
-shooting someone with gun, or hitting them with a projectile
-setting up a wire which person falls over a week after you placed it
-ordering a dog to attack
-an object “intimately connected with your person” (ex. Fisher v Carrousel when employee
yanked plate from man’s hand; court ruled battery b/c plate was intimately connected with his
person)
-must be in physical control of your person to count
Not all contacts count as battery:
-it is a crowded world, some physical contact is expected, in considering this, must look
at circumstances/venue/nature of touch
Offensive contact:
-if offends a reasonable sense of personal dignity
-if reasonable person in circumstances would be offended; depends on nature of
relationship; (ex. Two employees at work routinely wrestle or horse-around, thus contact
would be more acceptable between them)
-cultural norms are consideration as well--look to objective circumstances
Extent of damages responsible under battery:
-if A trips B trying to embarrass him, but B falls down flight of stairs as result of trip; A would
be liable for all of B’s injuries, even though A did not intend to cause those consequences…once
a battery is committed by A, A is liable for all the resulting harm…as long as A intended the
initial trip, he would be responsible for everything after that, even if some of the consequences
were not anticipated
Ex. Lambertson v United States-workers in meat packing plant, inspector jumped on his back and pulled
bag over his head, worker fell and hit head on hook; held liable for battery b/c reasonable person would
find jumping on another’s back to be offensive, thus inspector had committed battery, and was liable FOR
ALL RESULTING INJURY
-battery tort seeks to protect person’s personal autonomy and freedom from being touched
Assault
1) intent
2) unlawful offer to touch another in a rude or angry manner
3) so as to create a well founded fear of an imminent battery (apprehension)
4) apparent present ability to bring action about if not prevented
-person need not be able to carry out the threatened action; as long as threat is of imminent
battery--close enough to striking distance that threatened person could be reached almost at once
-words alone cannot constitute assault, they can be used in conjunction with action to qualify
what is threatened… “color ambiguous action”
Western Union v. Hill--man behind counter reached for woman, he couldn’t reach her over
counter, but she jumped back to avoid his touch…this is manifest that she anticipated an
imminent unlawful touch…
-fact he couldn’t reach her is irrelevant, so long as he created imminent apprehension and
had the present ability to perform unwanted touch
Not assault: “if you try out for the Olympic team next month, I’ll punch you in the lip”--not
imminent
False Imprisonment
1) intent
2) must confine someone (physical restraint or imminent threat)
3) reasonable means of escape are denied (denial of liberty)
* person must be aware of confinement/false imprisonment at time it is occurring
Reasonable means of escape--must not put person in risk of injury/must be apparent at time of
false imprisonment; cannot recover damages if injured making an unreasonable escape if no risk
of harm during imprisonment (Sindle v. NY City Transit--plaintiff jumped from window of
moving bus)
Confinement
-physical force, impediments to leaving (Whittaker v. Sandford--D refused lifeboats where P was
on island surrounded by water and no other means to escape), imminent threats to physical force,
imminent threat to third party (“I’ll kill your son if you try to leave.”)
-moral suasion is not enough/( Hardy v. LaBelle--P felt compelled to stay--not enough in absence
of physical restraint/imminent threat of force compelling her to stay)
Must you help someone who is false imprisoned? NO, you may be a moral monster, but you are
not a tortfeasor
-no duty unless part of job/title
-if factually responsible for confinement, a duty is created
Intentional Infliction of Emotional Distress
-standard to prove changes depending on court’s interpretation
State Rubbish Association v. Siliznoff--must show intentional “extreme and outrageous”
conduct which results in tangible emotional distress, D is liable for: 1) emotional distress 2)
resulting bodily harm
Harris v. Jones--P suffered speech impediment and was routinely mocked/humiliated @ work
resulting in worsening of nervous condition
Court used 4 prong test to determine if IIED:
1) conduct must be intentional
2) conduct must be extreme/outrageous
3) wrongful conduct must have caused emotional distress
4) emotional distress must be severe*
* severe--disabling emotional response
-determination of extreme and outrageous--depends on circumstances/venue/time/place/number
of occurrences/relationship between parties--beyond all bounds that society accepts
-determination of distress as severe--some jurisdictions require expert testimony/others listen to
P and D to determine--courts look at flagrance/nature of seriousness of D’s conduct
Courts are reluctant to allow IIED: flood gates (threat of mass litigation), courts want people to
be robust and “get over it”, hard to determine damages
-emotional distress does not need to result in physical symptoms
-mere insults can be enough depending on who you say them towards
-courts do not like to hear cases dealing with family issues
-bosses have a little bit of leeway because they need to be able to discipline employees
Trespass to land
1) intentional unauthorized entry onto property of another
2) ACTUAL and SUBSTANTIAL damages
-interference with possessor’s “exclusive possession of land”
Property--actual soil/land, ground below/air above (excluding air space)
-Herrin v Sutherland--D shot buckshot over P’s premises; court held “air space, at least
near the ground is as inviolable as the soil itself” D liable for
trespass resulting from buckshot
-particulate matter--invisible former solid substance transmitted through air; leaves
condensation/tangible effect…can be used as trespass to land where causes damage to property
Trespass to land can result from an object being left on land (put there with consent of land
owner) when that object causes “actual or substantial damage” after overstaying consent period:
Rogers v. Board of Kent County--fence post left on property, owner crashed into post which was
supposed to have been removed resulting in his death; post put with consent but remained on
property after consent was given; trespass can occur when person “overstays” their welcome and
causes injury
Nuisance--actionable invasion of possessor’s interest in the use and QUIET ENJOYMENT of
property
-equity action--harm caused by nuisance is balanced with social utility
Trespass to Chattel
Chattel- any kind of personal property that is not affixed to the land or building
1) intentional “physical intermeddling” must:
2) dispossess another of chattel OR
3) impair condition of chattel OR
4) deprive owner of use of chattel for a substantial time OR
5) cause bodily harm to possessor OR to some person in which possessor has legal interest
* damages must be substantial, no protection for NOMINAL DAMAGES *
-courts do not give remedy for harmless intermeddling
-trespass to chattels is a D’s intentional interference with use of a chattel resulting in damage to
that interest
-doesn’t matter if D mistakenly believed chattel to be someone elses
-D pays for damages in unlawfully depriving P use of chattel
Compuserve v. Cyber Promotions--D intentionally spammed P’s server with emails/junk mail
causing significant burden on equipment including storage capacity and network functioning; D
found liable for trespass to chattel because: the resources that were wasted as a result of greater
demand for disk space/drain on servers diminished the value of the equipment, even though not
physically damaging (third condition met); harm to reputation [slow servers] was significant too
Conversion
1) intent
2) exercise of dominion or control over a chattel
3) serious interference with the right of another to control that it may be required to pay full
value of chattel
In determining seriousness of interference:
a) extent and duration of actor’s exercise of dominion or control
b) the actor’s good faith (accidental, done without intent to cause loss of property, ignorance that
the property was anothers)
c) extent and duration of the resulting interference with the other’s right of control
d) harm done to chattel
To convert a chattel and make the actor pay full value the following are considered:
a) how was possession acquired? Stolen/ borrowed?
b) damage or alteration to chattel?
c) using it-a bailee wrongfully violating terms of bailment
d) receiving it--obtaining possession after purchase from a thief
e) disposing of it-a bailee wrongfully selling
f) misdelivering-delivery to wrong person so that chattel is lost
g) refusing to surrender it-bailee refuses to return chattel
What may be converted
-real property cannot be converted…real property is land or fixtures to land…however once
severance takes place (pulling a branch off a tree) P can maintain the good as a chattel and
recover in conversion…
-intangible rights, can be recovered for conversion if merged with an instrument, but can be
claimed if goods of the kind are customarily merged with an instrument
Ex. Of merging instruments: bill of lading, promissory note, check, or stock certificate
* * QUALITY OF INTEREFERENCE IS CENTRAL IN DETERMINING IF
CONVERSION/TRESPASS TO CHATTEL…
-amount of time property was misplaced
-amount of damage to property
-doesn’t matter if D thought chattel to be someone else’s as long as intent is there
Two cases where definitely conversion:
1) when chattel is completely destroyed
2) when chattel is interfered with, with intent to steal
-D pays for full value of item at time of conversion
* exception: if D converted property in good faith (not knowing it to be P’s) then courts
may allow return of property as damages…in this case D would only have to pay for loss of use
of chattel in amount of time it was away (similar to damages for tres to chatt)
Privileges
-essentially affirmative defenses
-can be exceeded by time, geography, or purpose
Consent
Express consent--prior to invasion, person agrees to allow something to happen
Problems: has person consented lawfully? (minor with fake ID)
-written, verbal, body language
Implied consent--reasonable person would consent; objective standard what would ORPP under
circumstances that D faced decide? Thus if reasonable to assume implied consent, then it exists
-burden is on D to show that their action was acceptable and they were privileged to act a certain
way
-consent is invalid if made under false pretenses…if D misrepresents something and P
consents, P’s consent might not be valid…P did not appreciate the true nature of the intended
contact; misrepresentation must be material (consent given under circumstances of fraud)
-must make sure that scope of consent has not been exceeded ex. Parties consent to slap box,
not okay for Hong to put on some brass knuckles and say “we were slap boxing, what?!”
-if implicit in something that is part of a community ritual or standard; can occur through
participation, at some point after participation is prolonged, implied consent manifests (Hackbart
v. Cin. Bengals--D found liable for battery for intentionally striking another player with fist;
court reasoned this action overstepped the “general customs” of the game and thus was not
protected by implied consent that each football player is part of normally)
-can occur by P’s words, gestures, or conduct (O’Brien v. Cunard--woman watched those in
front of her get shot, stuck her arm in the air as doctor walked by; the court found the doctor
“justified in his acts whatever her unexpressed feelings might have been; in determining consent,
doctor could only be guided by her overt acts”
Consent to medical treatment
-if doctor gets consent for surgery on right ear, but upon operation finds out it is the left ear and
operates there instead, he could be committing battery by not performing action patient
consented to (Mohr v. Williams)
-often times, doctors run into situations where upon surgery an unexpected situation arises, but it
is impossible/dangerous to stop and revive patient to get consent…often before surgery doctor
will have patient sign consent forms that include various predictable scenarios
-often family members can step in and make decision for a family member in surgery
“substituted consent” ; law recognizes this as legitimate
Emergency privilege
-imminent threat of loss of life
1) if reasonable person would consent
2) no reason to believe particular patient would not consent
3) delay would involve a risk of death or serious bodily harm
Self defense
-most courts hold there is some duty to flee if available
-in home, you can stand your ground [no need to flee]
-verbal threats generally not enough in absence of imminent threat
1) existence of privilege: anyone is privileged to use reasonable force to defend himself against a
threatened battery
-trial judge will make decision if self-defense was warranted
2) retaliation: when the battery is no longer threatened, the privilege terminates: and thereafter
the original victim becomes liable for battery
-even if person was initially an agressor,once he has retreated he has a right to self-defense
against the person he initially threatened
3) reasonable belief-privilege exists when the defendant reasonably believes that the force is
necessary to protect himself against battery, even if not necessary; reasonable belief is enough,
the court upholds this because: “self preservation is the first law of nature”
4) Provocation-insults, verbal threats, nasty language does not justify self-defense; depends on
the context of the dispute: if abusive words are accompanied with threat of violence reasonably
warranting immediate apprehension of bodily harm, the privilege to defend could exist
5) amount of force-the privilege is limited to use of force that is reasonable to be necessary for
protection against a threatened battery
-differences in sizes of people count; ie 5” woman v 6” 300 lb body builder
-to justify use of a deadly weapon: D must have a reasonable apprehension of loss of life
or great bodily injury
-D has burden of proof in proving use of force was necessary
6) retreat-big disagreement; must a D have retreated to avoid potential danger? D may stand his
ground and use any force short of that likely to cause serious injury
-in home--this is different, one is not required to retreat
7) injury to third party-privilege of self defense is carried over via “transferred intent”
negligence can be considered on part of D, in which case the emergency and necessity of defense
is considered…
Defense of Others
-courts not as interested in helping good samaritans or vigilantes who step in to protect another
person
1) Nature of privilege--a privilege similar to that of self-defense is recognized for the defense of
3rd persons
2) courts differ on the issue of reasonable mistake in third party “self’defense”
Some hold: the intervenor steps into the shoes of the person he is defending; gaining privilege
where that person would have been privileged to defend himself
Others: defendant is privileged to use reasonable force to defend another even when he is
mistaken in his belief that intervention is necessary, AS LONG AS MISTAKE WAS
REASONABLE
Defense of Property
-deadly force not allowed when privilege rests on property interest
-when protecting property, reasonable force is allowed, not deadly force
Katko v. Briney--D set up a shotgun trap to protect an abandoned house on his property from
trespassers; gun was set up and was not visible to P who broke in to steal some glasses; D was
not entitled to use deadly force (shotgun) to protect his property…if D had been living in that
house he would have been able to…
Recovery of Property
-when an owner is displaced of a chattel he is privileged to use force to retrieve it when there has
been a momentary interruption of possession
-fresh pursuit--limited to prompt discovery of dispossession and prompt and persistent efforts to
recover chattel
-if an undue lapse of time--the owner is no longer privileged to fight himself back into
possession, must resort to the law
-first a demand for return of property must be made before force can be used
-force limited to reasonable force under the circumstances; cannot use force to inflict serious
bodily harm
Shoplifting privilege
-request to stay must be made if applicable
-reasonable force
-tough situation because stores run the risk of false imprisonment if no theft; reasonable mistake
is allowed
-did D take too long to complete the investigation (into seeing if P actually shoplifted)--10
minutes is usually allowed
-does privilege extend beyond premises say into parking lot?
-most courts will say yes, because many times shoplifters are not uncovered until they
leave the store, either by security or buzzing alarms…it is reasonable to allow pursuit to parking
lot…no clear limit to exactly how far privilege of recovering property extends…
Interesting situation:
-when buyer purchases something on an installment plan he has possession of item…but if he
defaults payment on the object, what rights does the seller have? (the seller holds title but
relinquished possession)…not clear, courts differ…since seller voluntarily surrendered
possession, no privilege to recapture BY FORCE…(what constitutes force, does a skeleton key?)
Necessity
1) balancing test to determine the greatest good for the greatest amount of people (public
necessity)
Ex. Surocco v. Geary--D destroyed P’s building to prevent fire from spreading to adjacent
buildings; court ruled destruction of building was necessary in the interest of saving more
destruction
-common law is a utilitarian argument; statute can modify conduct
-action justified out of necessity when: imminent danger, real public necessity to perform a
course of action; look for necessity in an emergency situation
2) person can destroy someone’s private property in order to prevent injury to himself or
someone else must determine if injuring private property is the less damaging way of preventing
harm (private necessity)
-private necessity is a complete defense when P has suffered no actual substantial harm; Ex.
Mooring boat to dock to get out of dangerous storm, if D unties boat, P can use as complete
defense
-but where D causes actual damage to P, private necessity is only a limited privilege and D must
compensate P
Ex. Vincent v. Lake Erie Transport.--violent storm would have indefinitely wrecked and washed
away D’s boat if he did nothing and let storm run its course; D prudently intervened to make sure
his boat did not wash away; but by intervening and intentionally keeping boat to dock, D is liable
for the damages that resulted to the dock, even though the dock would have been damaged
anyway; D argued necessity to stay with his boat; court held that D had acted prudently, but in
intentionally holding boat to dock he “preserved the boat at the expense of the dock”; it did not
matter that the dock was going to get wrecked anyways…
Authority of law
Arrest:
-officer or citizen may arrest without a warrant to prevent a felony
-citizen takes full risk if he is wrong (false imprisonment)
-if not a felony, officer or citizen may only arrest if offense committed in their presence
and in fresh pursuit
Discipline
-a good example of this is privilege is that given to a parent to instill discipline in character of
child
Factors used to determine if conduct was within privilege of discipline:
-age, sex, and condition of child; nature of offense, apparent motive, influence of child’s conduct
as an example for other children in same family, if force is reasonable based on circumstances;
whether disprapportionate to the offense, unnecessarily degrading; likely to cause permanent
harm
-generally this privilege extends to care givers of children such as baby sitters, day care
providers, etc
Justification
-fudge privilege; very broad, D can try to fit in as an affirmative defense
-essentially points to a reason why an action or course of conduct was justified based on the
circumstances
Sindle v. NY City Transit--students on bus were destroying property of bus/vandalizing; driver
(D) warned kids to stop, when they didn’t he drove straight to the police station; P sued for false
imprisonment; D argued he was justified in doing what he did because he had a duty to: prevent
those in his care from 1) inflicting injury 2) interfering with or damaging property; D argued his
action was justified and reasonable based on the circumstances; court agrees that his defense
should be admitted;
ON TEST: as soon as you see an intentional tort, start thinking of defenses:
-look for consent (express or implied)
-common situations where consent might be applicable:
-if parties verbally consent to an action before engaging in it
-if P is injured but there is a posted warning sign that told him of risk
-when P is a suspected shoplifter, and security tells him “wait here” --when P does wait
he may have consented to stay there (no false imprisonment)
-P’s claim for conversion when D reasonably believed P was letting him have the goods
(ex. If P moves out of apartment and leaves furniture and D reasonably believes he left it
behind for him, and D sells it; might not be conversion)
Situations where someone is fighting: look to self-defense and see if it can apply
-remember even initial aggressor (tortfeasor) can use self-defense when other party escalates the
level of force (ex. A punches B in lip; B pulls out gun; if A pulls out gun and shoots B he can use
self-defense because B went beyond scope of self-defense and escalated threat)
-D can use self defense even if based on a mistake if his belief in the need for self-defense was
reasonable
Defense of others: if D comes onto scene after fight has already started and helps X not realizing
he was the initial aggressor, most courts hold that D “steps into the shoes” of X (the person he is
helping); but since X didn’t have right to use self-defense, either does D; even if D’s mistake is
“reasonable” it won’t matter
Negligence
1) Duty to use reasonable care--for protection of others against unreasonable risks
2) Breach of duty--when person fails to fulfill duty
-liable for injuries caused only if there was a duty
3) Causation--Causal connection between conduct and resulting injury
-two kinds: factual and legal; both must be proved; P must show that D was the cause in
fact “but for” or “substantial factor” and also that this was the “proximate cause” of
injury
4) Damage-must be provable; not easily done
-another way of thinking of negligence: conduct that falls below the standard of care established
by the law for the protection of others against the unreasonable risk of harm
-could be the doing of something OR the failure to do something
REASONABLE CARE UNDER THE CIRCUMSTANCES…
ORPP--Ordinary Reasonable Prudent Person [not all knowing, but acts reasonable based on
circumstances]
Courts can set policy decisions
In some cases, as a matter of law there is not negligence as a public policy decision even though
all elements may be present. Lubitz v. Wells – golf club left in backyard was not negligence as a
matter of law because there were a lot of golf courses nearby and it was to be expected; golf club
is not intrinsically dangerous, if a shotgun were left out, decision would have been different
Extraordinary Circumstances
defendant does not have to consider extraordinary circumstances that could not reasonably be
foreseen Blyth v. Birmingham – consider what reasonable pipe installer would expect to
happen…freak frost was not to be expected; D not liable for negligence results occurred out of
situation of extreme severity; Building a house in San Francisco an engineer would take
earthquakes into consideration, but in Philly it would be a freak circumstance precluding
liability.
Foreseeability of harm is enough to warrant action to avoid; even if low probability of
occurrence
If there is some probability of harm sufficiently serious that ORPP would take precautions to
avoid it, failure to do so is negligence; Gulf Refining v. Williams – drum of gas exploded b/c of
thread bare gas cap; The risk was improbable but possible, the court finds this sufficient to
maintain liability for resultant injury; when potential injury is great, more care is necessary
D has duty to reduce risk to a reasonable risk (as much as possible)
-can concede that injuries and loss of life is okay as long as the defendant reduces the risks to
reasonable risks. Make changes in your conduct or else you may pay. Chicago v. Krayenbuhl –
train turntable only 70 feet from walking path; If train would have used a locking device on the
turntable they may not have been negligent, but they were liable because they did not take
proper precautions to avoid serious injury
Probability, injury, and burden
– P--Probability of something occurring
-M-Magnitude of injury if it occurs
-B- Burden of adequate precautions
-if P x M > B then precautions should be taken
-if P x M < B then precautions should not be taken
Davison v. Snohomish – county not negligent as matter of law b/c the burden of new guard rail
would be too great. Bartlett case – overturns Davison in this jurisdiction and says it is not a
matter of law but a question of fact whether a guard rail should be built to withstand the crush of
a car; more cars on the road is another consideration, increases probability (P) of crash, Burden is
less…
U.S. v. Carroll Towing – bargee off ship, ship sinks; look at likelihood, magnitude of injury, and
cost of adequate precautions; holds that if Burden of fixing is less than P x M, negligence arises;
The Standard of Care
ORPP under the circumstances:
-constantly thinking of probability of harm
-sets objective standard
-some general knowledge of community he is in
* * * ALWAYS THE STANDARD * * *
-if in professional setting, has knowledge comparable to that of average person in field
-if ORPP doesn’t know something, he makes a reasonable inquiry to find answer in situations
where he does not understand
Vaughan v. Menlove – being stupid is not a defense, you must act as ORPP would under
circumstances, in those days fermented hay was known to catch fire. Defendant is not held
to the standard of the best of their ability but to that of ORPP under the circumstances.
Delair v. McAdoo – ORPP would know tires are a mess; some basic things people are
required to know, drivers should know reasonable things that pertain to safety of car
If a caveman is in NY crossing the street against traffic, and gets hit…the driver of the car would
not be liable because ORPP in NY would know how to cross the street--base ORPP from
location incident occurs (context/circumstances @ time incident occurred)
Custom
-probative but not determinative, court can find custom unreasonable; just because a lot of
people engage in an activity, does not suggest it is reasonable or reasonable under the
circumstances; (jaywalking/speeding)
To use a custom as a defense you must prove three things:
prove that ORPP under the circumstances would know about the custom
the custom is reasonable
in the particular case, is the custom reasonable? Issue is not compliance v.
noncompliance, but acting reasonably under the circumstances;
Trimarco v. Klein – broken glass in shower door, customs of landlords. Landlord was liable for
not installing shatter proof glass in tenant’s shower;
Emergency ORPP
– ALWAYS HELD TO STANDARD OF ORPP based on circumstances; when
circumstances change to an emergency, person must act as ORPP in emergency situation
mode
- Cordas v. Peerless – most emergencies do not require perfect judgment. In this case, cab driver
was not negligent to jump out of cab after being held at gunpoint
-EMERGENCY: event must be unforeseen and sudden/unexpected
-standard under emergency is less, but still conforms to ORPP in emergency situation
Ways may not qualify for emergency situation: 1) if action should have been anticipated but you
did not take reasonable notice: ie ball rolls across street and kids running after, you should slow
down, if you don’t and hit kid: negligence 2) emergency situation must already exist, not be of
your creation
Handicapped ORPP
-hold handicapped person to the standard of ORPP with that handicap
-Roberts v. Louisiana – blind man not liable for injuring man’s hip because he was acting
reasonably under his circumstances. Sometimes physical challenges like height may be taken
into consideration, like if you can’t see over your blown up hood to avoid hitting a car. Seizures
or heart attacks are treated either as emergencies or physical challenges
-the normal ORPP recognizes that handicapped people need extra help and are willing to work
with them…
Standard of care for children (objective test) – three ways to deal with kids:
majority of courts hold children to the standard of care of the reasonable child of the
same age, maturity, intelligence, and experience
some courts follow the rule of seven – age zero to seven no liability; age seven to
fourteen incapable, but it could be shown; age fourteen to seventeen presumed
capable but could be proven not liable.
Hold child to the adult standard of care when they engage in inherently dangerous
activities. Some courts hold differently when children are held to adult standards and
say when children engage in activities that normally only adults engage in. Robinson
v. Lindsay – child driving snowmobile is liable because driving is inherently
dangerous activity.
Some scholars suggest that when the child is a defendant you should always hold him to
the adult standard because he risks harm to others; but when he is the plaintiff and
exposes himself to harm, hold him to the child standard.
Standard of Care of insane people – General rule is that insanity is not a defense. Black letter
law is that you hold insane people to standard of ORPP under the circumstances. In a sudden
onset of insanity, you must prove two things:
it was a sudden onset or delusion
it affected your ability to understand your duty or standard of care. Breunig v. American
Family – woman seeing God suddenly properly left to the jury because if it can be
proven it was a sudden onset that impairs your ability to understand your duty,
liability might be cut off.
Retarded people – not many cases where retard people are sued for negligence. Lack of assets,
could sue their caretakers.
Lynch v. Rosenthal – said consider circumstances of retarded person.
Court overrules in different case saying this would be a slippery slope to consider
everyone’s mental capacity and not good for policy reasons.
Seizures – if you have sudden one, maybe not liable but if you know you have them you
will be help to the standard of ORPP under the circumstances.
Gould case – dealt with Alzheimer’s. Court ruled it was not a physical impairment but a
mental one.
THE STANDARD OF CARE FOR PROFESSIONALS
We hold professionals to the standard of a member of that profession under the
circumstances in good standing. Restricted to what courts actually consider a profession.
Heath v. Swift – pilot could be held to the standard of the ORPP pilot. Three ways a
professional can be negligent:
you must have necessary skill and training (even if falsely pretending to be a
member of that profession)
must exercise your skills with due care (use that skill)
3) must use discerning judgment to a reasonable degree of a professional in good
standing. Hodges v. Carter – lawyer serving process to insurance co. was not
negligent because he acted as ORPP lawyer under the circumstances; the floor standard is avg.
member in good standing
-expert testimony required to determine if professional acted negligently--jury needs facts
explained in layman’s terms
Legal malpractice – plaintiff must show that if the attorney wouldn’t have deviated they would
have won the case and show what damages would have been.
Must be a credible damage figure. Some courts say that even if judgment would have been for a
certain amount, the damages would have been uncollectible or only some of it would have been
collectible.
Legal malpractice in two circumstances: 1) blowing the statute of limitations; 2) cannot reject
settlement offers, because client has that right. Often times an expert witness will be needed to
prove what the reasonable lawyer would have done.
-a lawyer is not liable for a “mere error in judgment” or for a “mistake in a point of law which
has not been settled by the court of last resort and on which reasonable doubt may be
entertained”
Medical malpractice:
1) ORPP as average member of profession in good standing in community in which he practices
2) liable if did something medical community: a) forbids b) neglected something standard
requires
3) must prove standard of medical community (see below)
4) negligence is never assumed; must be proved--expert to prove--other doctors will testify
against each other (to make money and to uphold integrity of profession--create accountability)
5) negligence must be proved by expert testimony unless so grossly apparent that a layman
would recognize as negligent--when expert testimony: not enough to say “I would have done
differently” rather must show that conduct departed from all courses of conduct accepted by a
portion of the profession--to a “reasonable degree of medical certainty” is key phrase used by
experts
* a bad result is not enough *
Locality rule – traditional standards were to hold Doctor to ORPP doctor in that
locality under the circumstances. Led to conspiracy of silence and substandard care
in rural areas. Morrison v. McNamara – says hold doctors and medical professional to
a national standard of care.
- However, most courts say hold doctors to standard of care of a same or similar
community; not a national standard in all courts as of yet
-the standard used depends on the jurisdiction
Why use national standard? 1) medical education is standardized 2) improvements in
transportation narrow gap between rural/urban 3) locality serves as a disincentive to raise
standard of care
Customs evidence is given more weight in medical malpractice cases. Three cases
where court rejects customs of medical professions (more and more courts are starting to
let triers of fact question the reasonableness of customs):
-must ask about custom evidence:
-is it really a custom?
-if it is a custom, is it reasonable?
-is it reasonable in this case?
* custom is probative not determinative!!!
Helling v. Carey – 23 year old with glaucoma was not tested because standard
was not to test until 40 – court held negligence as a matter of law. Which
legislature later overturned.
U.S. v. Quantas – plaintiff received tainted blood, and was allowed to show that
customs were unreasonable.
Incolligno v. Ewing – custom of prescribing drugs over phone is unreasonable
Two Schools of thought doctrine – minority and majority approach. So long as
defendant shows evidence that his procedure was something a member of good
standing in that school of thought would follow, court should not question.
Defendant must be judged by the ORPP doctor that follows that same school of
thought. Judge them according to their area of profession such as acupuncture,
psychiatrist, etc.
Cause of action for lack of informed consent (very controversial):
doctor must tell you in clear language:
a) all material risks
b) all alternatives (including consequences of taking no medical action)
c) all risks to alternatives
d) risks and dangers of doing nothing
2) must be damages
3) you have to show you would have acted differently if you had been properly
advised.
-Exceptions to lack of informed consent cases:
a) if it is an emergency
b) if it is not in the best interests of the patient
c) when the patient should know
D) when patient cannot adequately make decision
Informed consent is very controversial:
-Georgia informed consent is only used in fraud cases
-Pennsylvania, informed consent can be tried as part of a battery case (unwanted touch)
-did you consent to touch or not?
Possible defenses to lack of informed consent:
-P knew of risks at time consent was signed
-full disclosure would have been detrimental to patient’s interests (Scott v. Bradford)
-emergency requiring prompt treatment and P in no condition to decide for himself
Scott v. Bradford – hysterectomy making her leak urine; court held that a doctor can withhold
full disclosure if it would be detrimental to a patient’s total care and best interests
A doctor has a duty to disclose to personal interests to his patients, such as possible
economic or research plans connected to patient’s treatment.
Moore v. Regent – informed consent – would patient consent to the procedure if they
knew an underlying motive existed? Doctor should have told patient he planned to do the
research because that may have affected plaintiff’s decision; more importantly it might have
either consciously or subconsciously affected doctor’s decision in treatment of patient
Negligence as a matter of law
Judgment as a matter of law says that ORPP would always or ORPP would never. Very difficult
to determine. When something is held as negligence as a matter of law, the judge can:
uphold it
overrule it – things may change
say we are not bound to follow it, it was only dictum.
Courts formulate rules to regulate standard of behavior, but they are sometimes too inflexible,
which is why they can be either upheld or overruled. Pokora v.Wabash – the rule to stop look
and listen was ridiculous, so it cannot be held as negligence as a matter of law.
Ways to determine standard of care:
matter of fact for the jury – most negligence cases follow here
Matter of law (rare)
legislature/statutes determine standard of care (statute)
negligence per se – legislature does not say this is what the standard of care should be,
but the court says that the statutes says what the standard of care should be. The
judge determines the intent of the statute. Judicial inquiry looks at two things:
a) was plaintiff in the class of persons that the statute was enacted to
protect?
b) Is this one of the risks that they had in mind when the statute was
enacted? Osborne v. McMasters – poison bottle violated statute and it is
negligence when statute imposes duty and the duty is breached
Negligence per se
-borrowing statute to determine standard of care
-violation of statute by itself establishes lack of due care when:
1) statute clearly defines a standard of care for which D did not conform
2) statute was intended to prevent the type of harm which occurred
3) P was within the class the statute sought to protect
-in most negligence per se cases D already owes P a pre-existing common law duty to act as
ORPP so the statute’s role is merely to define more precisely what conduct breaches the
duty
-court looks at the intent of the Legislature if type of action that was meant to be protected
against
-unexcused violations of statute are negligent per se; can be looked at as a prima facie case of
negligence
-along with prima facie case is a rebuttable presumption showing that a party was justified in
violating statute
* most jurisdictions say (when statute imposing negligence has been violated): 1) rebuttable
presumption and if not excusable -----> negligence results
Zeni v. Anderson-3 procedural uses of breach of statute:
1) evidence of negligence (one less thing for jury to have to find)
2) negligence per se (if 1 + 2 are satisfied)--results in strict liability most likely resulting in D
being found negligent
3) rebuttable presumption--D can argue reasonable based on circumstances (ex. Crossing over
yellow lines to avoid hitting a child)
Perry v. SN and SN--statute criminalizing the failure to report child abuse if you are made aware
of it; normally there is no duty to report a crime at common law; harder to find negligence from
nonfeasance; court held that recognizing a duty created by statute would have an extreme effect
upon common law theory of negligence; this duty is made even more difficult when resulting
from nonfeasance rather than malfeasance; court says people who watched and didn’t report may
be moral monsters but are not tortfeasors; court rejects notion that this was negligence per se
because the court does not want to impose a statutory duty for nonfeasance
Excuses to negligence per se
Violation is reasonable b/c of actor’s incapacity
Neither knows or should know of the occasion for compliance
Unable after reasonable diligence to comply
Emergency not due to own conduct
Compliance would have caused a greater risk of harm to actor or others.
Two types of statutes that do not allow for excuses and will always be negligence per se
(absolute duties):
child labor laws
2) pure food and drug act
Burdens on P bringing action
1) burden of pleading
2) burden of production--court needs to weigh evidence on both sides of case and see how a
“reasonable person” would understand evidence
3 types of evidence:
1) real evidence--picture, physical evidence; absolute
2) direct evidence--directly relates to object at issue; someone testifies
3) circumstantial evidence--fact A is in issue but B is presented b/c B will lead to
inference proving A
3) burden of persuasion--P must carry preponderance of the evidence on every element of their
negligence claim showing each part is satisfied (duty, breach, causation, damages)
Res Ipsa Loquitor
-type of circumstantial evidence (in a sense)
-helps P meet burden of production
-cannot be used against multiple parties
-up to judge’s discretion if he wants to allow
P must show:
1) when something happens, regardless of the number of occurrences, it is usually a result of
negligence
2) instrument that caused harm was under exclusive control of D--CANNOT be used against
multiple parties
-if P contributed to negligence, it does not matter for res ipsa; damages would be less
3 Procedural uses for R.I.L.
1) warrants inference on evidence (helps P meet burden of production)
2) can create rebuttable presumption (in some jurisdictions)
3) can shift burden onto D to show why NOT negligent (few jurisdictions)
Usually, you cannot use res ipsa loquitur against multiple defendants. Larson v. St. Francis
– chair flying out of hotel window, no negligence because you couldn’t prove the hotel was in
exclusive control of the chair, a guest could have thrown it out. Two situations where res ipsa
can be used against multiple defendants:
they are not multiple defendants, but rather agents from one entity. i.e. two drivers
employed by one company, collide and the debris hits someone, the employer could
be sued under res ipsa with both defendants acting as agents of that company.
The court concludes the two parties owed the plaintiff a joint duty
a) common law – i.e. a tenant and landlord both owe pedestrians the duty of
clearing snow and ice off of their sidewalks
b) contract – i.e. Corvettes case, department store and escalator company enter
into contract to maintain escalator, owe joint duty to patrons to keep escalator
safe.
- Ybarra v. Spangard – demonstrates a situation where the court creates an
exception and allows res ipsa against multiple defendants. Court holds all
defendants liable for injury to man who had appendix surgery because they court
says they all owed him a joint duty to care for him while unconscious. This was
controversial because it broke all the legal relationships that the hospital created
to avoid liability (independent contractors as surgeons).
Slip and Falls
Theories to sue upon:
1) D created condition by spilling item on floor
2) D was given notice of someone else spilling something on floor (assuming D had
responsibility to clean up someone else’s mess; ie when employer)
3) D should have known item dropped on floor (ORPP would have known)
-generally must establish time to determine how long on floor--
Causation in Fact asks question “What happened?”
Sine qua non – “but for test” in the vast majority of situations, the defendant’s conduct was the
cause of the plaintiff’s injuries, the plaintiff’s injuries would not have resulted “but for” the
defendant’s negligent actions
Perkins v. Texas – prime example of but for. Even at the proper speed limit there was no
evidence that the train still wouldn’t have hit the car crossing the tracks. The result would have
happened even without the negligence so it was not a cause in fact.
When the issue of causation is obscure, you will need to use expert testimony to prove your
case. The expert should say to a reasonable degree of medical certainty, the injury was
caused by the negligence. Lay people would have no knowledge and it is not obvious to an
ordinary member of the community.
- Kramer v. Wilkins – man hit with glass by transom, develops skin cancer after injury.
Medical expert could not prove that more likely than not the injury caused the cancer.
Loss of chance – if the defendant’s conduct cannot be shown to have necessarily caused a later
event to come about, but can be shown to have increased the risk that that later event would
happen, and the later event does in fact happen, doctors in some courts may be held liable even if
the patient may have died of the condition with the proper diagnosis. Loss of chance is used in
courts to determine with the help of an expert witness the amount of plaintiff’s life, and to figure
out a percentage of the deprived chances of survival. Multiply those two numbers, and award
those damages. Damages usually only available for lost wages and medical expenses.
Scientific evidence – what makes scientific evidence reliable? Must focus on methodology.
peer review/published
did it follow the scientific method?
Can defendant present their own evidence?
Evidence must show bendectin caused the defects
Relevancy to case – does it help establish causation?
Usually courts have a hands off approach to scientific evidence. They leave it to the opponent to
discredit testimony. Daubert v. Merrell Dow is important because it leaves some responsibility
to the court to examine if scientific testimony is accepted and if the testimony was acquired by
proper methodology that a scientist in good standing would use.
submit statistical evidence that establishes causation
does your jurisdiction accept such evidence?
2 R’s as standard for experts:
1) reliability
2) relevance
Concurrent causes
-where separate acts of negligence combine to produce a single injury, each tortfeasor is
responsible for the entire result even though his act alone might not have caused it and will be
held jointly and severally liable
-idea is that either one of the events would have been sufficient to cause substantially the
same harm without the other
-the injury must be indivisible
-If A and B run over one separate arm on plaintiff, they are not concurrent causes
because both arms represent separate injuries.
- Hill v. Edmonds – collision caused by both truck without flashers and car not
stopping in time. These were concurrent causes of the injury. When separate acts
of negligence combine to cause injury, they are both liable even though their act alone
might not have caused the injury.
Substantial factor – where each of the two events would have been sufficient by itself to
bring about the harm, the test for each event is often said to be whether it was a substantial factor
in bringing about the harm. If so, the harm is a cause in fact. It negates the need for the “but
for” test. The test is that the defendant’s negligence must be a substantial factor of plaintiff’s
injury.
Multiple Fault
-if P can show that each of 2 or more Ds were at fault, but only one could have caused the
injury, the burden shifts to each D to show that the other caused the harm
Multiple Sufficient Causation – all causes will be liable joint and severally even though
either one could have destroyed plaintiff’s property.
Anderson v. Minneapolis – two fires merged to destroy plaintiff’s property, both fires
caused the damage and defendant was held liable
Independent Alternative Causation (policy decision most jurisdictions accept):
all defendants are present
all defendants are negligent
plaintiff does not know which defendant’s negligence caused his injury (shifts burden of
proof onto defendant to prove it was not their negligence to avoid liability…with
either the use of expert testimony or other evidence)
if defendant cannot prove it wasn’t them that cause the injury, all defendants will be held
jointly and severally liable.
* idea is that P should be able to get redress, it is okay to shift burden onto D and make
them prove why its not them as cause of injury *
Under normal negligence rules, the plaintiff’s burden would not be met in these types of cases
but for policy reasons the courts wanted plaintiff’s to have remedy in these types of situations.
- Summers v. Tice – establishes this rule. Two men shoot friend, do not know which
bullet actually injured him. Both defendants held liable to plaintiff because they cannot
prove it WAS NOT their bullet that hit him
Market Share Liability Theory – if all defendants combined had a substantial share of the
market for the particular item in question, and all defendants were negligent, the burden is
shifted to the defendant to prove that more likely than not, they did not produce the drugs that
injured the plaintiff. If they cannot prove this, the court will divide up the share of the market
they had and they will be liable for that amount.
some courts reject
defendant may try to prove limited area of distribution, time frames, color of pills,
different instructions, etc.
what will the court consider a substantial share?
Sindell v. Abbott – DES case, woman could not prove that the DES her mother took was
from any certain company, but she got 90% of the market share of DES makers and
sued. They were held liable for their respective shares of the market.
Market is determined by either national market/local market/regional market
-seems that national standard is used most often
Rationale for placing burden on D:
-D in better position to bear the cost from the manufacture of a defective product
-best position to guard against defects
-provide incentive to manufacture safe products
Legal Causation asks question “What shall be done about
it?” (it = injuries factually caused)
PROXIMATE CAUSE CAN BE USED TO CUT OFF LIABILITY EVEN WHEN THERE
IS CAUSE IN FACT
Rule: no liability when damages are remote result of negligence; liability can be imposed for
damages resulting from immediate negligence
D only liable for proximate dmgs: actual, expected, ordinary, reasonably anticipated with
no superseding cause
-remote: unforeesable, unexpected
If defendant’s negligence is not a cause in fact of plaintiff’s injury, then it cannot possibly be the
legal cause. There are 4 types of cases where legal causation can come about:
1) unforeseeable consequences--look at distance in time/space
2) intervening causation--D’s liability is cut off when intervening act is superseding
3) public policy
4) shifting liability--vicarious liability
-Two things to think about: 1) distance in time; 2) distance in space (these two elements can help
cut off liability especially if combined with other factors).
Eggshell Plaintiff Rule – the rule of legal causation in personal injury cases is that the
defendant must take the plaintiff as he finds him. This was a big move because courts were
weary of emotional distress cases. This rule works in most jurisdictions where the plaintiff
had pre-existing physical conditions. Bartolone v. Jeckovich – man was in car accident and
after back surgery he was no longer able to work out and maintain fitness. Come to find out he
was psycho about working out because he feared doctors after his mother died of cancer. He
goes schizo and is permanently disabled. He was allowed to recover; court said the accident
caused by defendant was the legal cause of his reaction that triggered his pre-existing mental
condition.
Cahill case - Defendant cab driver is speeding, hits man who was a drunk. P gets
delirium tremens in the hospital and dies. State sues the defendant. Expert says the delirium
tremens would have come on eventually anyways and P didn’t have long to live. Defendant
argues that he should not be liable because P would die anyways. This is a slippery slope – we
all die eventually. The alcoholism was only relevant to limiting damages, not precluding liability
1) Unforeseeable consequences
Proximate v. Remote Rule – there is liability if the harm is proximate, but not if the harm is
remote. What is proximate harm? It is natural, ordinary, expected. Remote harm is
accidental circumstances that make the result uncontrolled by the defendant. There are
variables out of the defendant’s control.
- established by Ryan v. New York Central R.R. Railroad negligently allowed fire to start
on engine that started a woodshed on fire, which spread to plaintiff’s house. Defendant was not
negligent because only the first thing (woodshed) that caught fire was proximate and all other
harm was remote. The distance of the house was irrelevant. New York later modified this rule to
allow recovery of the first adjoining land owner that is not the defendant whose house caught
fire.
Foreseeability
(on exam compare Polemis approach w/ Wagon Mound)
-most courts hold that D is liable as a general rule, only for consequences of his negligence
which were reasonably foreseeable at the time he acted
Rule of Foreseeable Consequences (Wagon Mound 1) – if something came about that ORPP
would not reasonably foresee, there will be no liability. Defendant can only be held liable for
consequences that are foreseeable at the time of his negligent act.
- Overseas Tankship v. Morts “Wagon Mound 1” – Wagonmound ship moored and
docked and discharged oil into the water. The oil was ignited by molten metal dropped by
plaintiff’s workmen falling on cotton pieces in the water. In this case, there was no liability
because the oil and cotton catching fire while in the water was unforeseeable
-D’s like this rule because it says that D is not liable for unforeseen acts that result from his
negligence
Direct Consequences (Polemis) Rule – to establish liability, the plaintiff must prove:
defendant was negligent.
Defendant exposed plaintiff to a risk of harm, but an unforeseeable consequence came
about.
There was a direct link between defendant’s negligence and the unforeseeable risk.
For a direct consequences case, all factors of the rule must be in place at the time of the
defendant’s negligence. The defendant acts “in a set stage” and there is no intervening cause to
break the sequence.
-essentially D put P in position to be injured (by his negligence); unforeseeable risk
occurs, and injury comes about; Under Polemis Rule D would be liable
(P’s like this rule because it allows a D to be found liable even if an unforeseen consequence
comes about)
In re arbitration Between Polemis and Furness – plank falls where gas was leaking on
ship and causes an explosion, setting fire to ship and destroying it. Owner sues charterers for
value of the ship, charterers claim the damages were too remote. Defendant charterers were
held liable in that the damages were a direct result of the defendant’s negligence because
defendant’s negligence brought about the unforeseeable consequence (the spark).
Ex. D puts can of bug spray on shelf near stove in restaurant; earthquake knocks can of spray
into stove causing injuries to P; under Polemis--D would liable despite unforeseen cause
knocking can into burner; under Wagon Mound no liability on D
Cardozo Test – you owe a duty to those in the zone of danger. What is the orbit of danger?
ORPP would perceive the reasonable zone. The risk is reasonably perceived. Palsgraf v.
Long Island R.R. – two men with fireworks jump onto train and train employees help them get
on safely. One man loses his package and it explodes, supposedly causing a scale to knock over
and injure plaintiff. Cardozo says that the plaintiff failed to even show that there was a wrong
done to her in order to prove negligence
Dissent in Palsgraf:
-Hindsight Rule (Majority of jurisdictions prefer this over Cardozo Rule) – what is
important is NOT what risks ORPP were foreseeable prior to the negligence, but once the
negligence came to fruition was the plaintiff’s injury that she is seeking compensation for
extraordinary or expected?
-D will not be liable if after looking back from the harm to D’s negligent conduct it
appears highly extraordinary that that conduct would have brought about the harm
Kinsman Rule – the fact that an injury to a particular P was not especially foreseeable is
irrelevant as long as P is a member of the class as to which there was a general foreseeability of
harm
- Kinsman Transit Case – defendant dock owner negligently moors boat, ice forms,
breaking the boat free and it floats into another ship, and the two ships into a drawbridge before
it can be opened and floods a huge area. Defendant held liable for the damages under the
Kinsman Rule that was created
2) Intervening Causes
Intervening cause happens after defendant’s negligence, and contributes to that negligence in
producing plaintiff’s injury, but does not break the causal connection.
Four ways that the intervening cause can still hold defendant liable even if causal connection is
broken:
1)
if you are a bodyguard, your job is to protect, you will be liable for
negligence if that person is injured.
2)
If you defeat the protection of someone’s self. i.e. if you turn off
someone’s alarm system to install the cable, and don’t turn it back on
when you leave, their house gets robbed…cable company would be liable
for defeating the plaintiff’s method of self protection.
3)
If you are in charge of a criminal, and they escape, you are liable for their
actions after escape.
4)
Defendant brings into association with plaintiff a person whom he knows
or should know to be peculiarly likely to commit crime, under
circumstances creating a recognizable unreasonable risk that he will do so.
i.e. hiring security guard with violent record and he takes his keys to beat
the shit out of someone.
Superseding cause
-some but not all intervening causes are sufficient to prevent D’s negligence from being held as
proximate cause of injury
-These are superseding causes because they supersede or CANCEL defendant’s
liability
For superseding act to absolve D’s liability:
-must be extraordinary under circumstances
-must be unforeseeable
-be remote from D’s conduct
Dependent intervening force: stimulated by D’s negligence; less likely to be extraordinarily
unforeseeable
Independent intervening force: not stimulated by D’s negligence
Yun v. Ford Motor--guy ran across Parkway to get his tire that fell off back of van; court found
that this action was a superseding cause because it was extraordinary; thus driver that hit P was
not liable for his injuries; dissent disagreed with fact that running across highway to retrieve tire
was extraordinary
Fuller v Preis--P’s father was in car accident and suffered with epilepsy after accident; P’s father
killed himself b/c he couldn’t handle having constant seizures; was person he was in accident
with legal cause of his suicide? Court said if suicide resulted from “irrestistible impulse” caused
by the injury….in this case no because evidence that he had planned suicide…
Rescue Doctrine: a rescuer will be precluded from liability if:
defendant was negligent to the person rescued and such negligence caused the peril or the
appearance of peril
the peril of appearance of peril was imminent
ORPP would have concluded that such peril or appearance of peril existed.
4) The rescuer acted with reasonable care in effectuating the rescue.
Allows rescuer to recover from the party that caused danger requiring rescue in the first
place:
Good because:
1) allows recovery against original tortfeasor; when you injure a person, it is
foreseeable that a rescuer will come to the aid of the person imperiled;
tortfeasor owes duty to rescuer same as he did the person he imperiled
2) negates presumption that rescuer assumed risk of injury when he undertook
dangerous rescue; rescuer cannot act recklessly or rash
Fireman’s Rule – if a professional rescuer is on the scene, another rescuer will not be liable.
If you are a paid worker and you get injured, your salary covers the cost of injuries so you
cannot sue the person you rescued.
-often firefighter injured from rescue scene cannot sue person who he was saving because people
cannot choose if a firefighter enters property or helps during rescue; firefighters will
automatically be dispatched to scene
Shifting Liability
Defendant is negligent, but before fruition someone else took control. The responsibility for the
dangerous condition created in part by the defendant has passed to a third person, absolving the
defendant of responsibility. Can be done thru 1) contract; 2) on court’s initiative.
Respondeat Superior - let the master answer for his servant. There are two relationships:
employer/employee
independent contractors
Big test is ability to control. Employers control employees. In practice control is a continuum.
Employers are traditionally liable for the torts of their employees that are committed within the
scope of their employment.
-encourages employers to get insurance; basic rationale is that employers are doing the
work of their master’s and furthering their master’s goals, thus the master’s must accept
risk employees make
Employer liable for: torts of employee acting in scope of employment
How to determine if an employee or an independent contractor?
1) extent of control master is authorized to exercise over the details of the work
-the more supervisory authority that more likely it is an employee
2) actor engaged in a distinct occupation or business?
-nature of what act person is performing (handy man v. computer
technician (which is more specified))
3) whether work is customarily performed under employer’s supervision or by a
specialist
w/o supervision and the extent of the skill required
-if highly specialized more likely to be seen as a contractor
4) who supplies tools/place of work?
-if at employer’s house, might be considered employee, if work done
elsewhere could be contractor
5) length of time for which person is employed
-generally contractors hired for shorter periods of time because there is less
of a relationship and a greater likelihood of person being called in to do a
specific task
6) method of payment---hourly or by the job
-workers hired by hour or week tend to be viewed as employees,
contractors typically hired to accomplish a given end and result such
as building a house, bridge, etc. (contractors more likely paid per capita)
7) nature of work
-if employer owns jewelry store and hires X to cut diamonds, will
most likely be seen as an employee
-if hires X to build addition to store, most likely seen as a contractor
8) parties belief as to nature of relationship
cell
- originally driving to and from work was outside the scope of employment; now with
phones this rule sometimes fails.
will
1) were they furthering the employer’s interest? If it can be proven yes, the employer
be held vicariously liable.
2) pizza men usually acting in the scope of employment even if they are told not to drive
negligently or intentionally hit people.
Old Test – would employers business be furthered except for the tort?
New Larger Test – is this one of the risks the employer brought to the community? Since the
employer enjoys the benefits of the community, hold them liable for risks they bring to the
community.
- if employee is acting for personal means only, cut off liability
- frolic – deviating from job duties. Courts look at how long of a frolic it was, was the
employee on the way to a frolic (cut off liability) or coming back from a frolic (liability)?
Telling employees not to do things will not avoid liability. For example, telling your employees
not to conduct business in the car on cell phones will not avoid vicarious liability, but may avoid
the employer’s own negligence.
- Lundberg v. State – man driving back to worksite from holiday at home hits plaintiff
head on, killing plaintiff. The state (defendant’s employer) not held liable because he was not
acting in furtherance of his job duties. Court says driving to work not in the scope of
employment unless he is driving somewhere to further his duties to the employer.
- Fruit v. Schreiner – man on work conference where socializing was encouraged. He
drives to a bar, left, and hit someone’s car. Man brings suit against the guy’s employer. Court
said that whether the defendant was acting in the scope of his employment was a reasonable jury
question, and it was properly left to the jury to find liability.
Intentional torts and vicarious liability: generally employers are liable for the intentional
torts of their employers
How is this fair? This sense that tort was incidental to work environment holds up under
“motivation to serve” approach
Independent Contractors
Old fashioned rule – employer not liable for torts of independent contractor. There are now
some exceptions. Traditionally you would have to sue the employer for their own negligence to
go after them. Control of the employer is the main issue. The more control the employer can
assert over the contractor, it is a master and servant relationship. The less control they have over
the contractor, the more likely it will be held to the contractor standard of no vicarious liability.
3 factors to look at:
Three instances where employers will be held liable for the torts of their independent contractors:
(courts concerned that some plaintiffs would go uncompensated. They will overlook some issues
if the employer has deep pockets)
statutory duties that the employer cannot delegate away to the contractor, the employer
will be held vicariously liable for the tort of the contractor.
When the employer engages in an activity that has such a grave risk or danger of harm
that they cannot be left off the hook or a peculiar risk or something inherently
dangerous. For example, a skyscraper being built, window installers contracted.
They drop glass in the city, the building company would be liable to injured parties.
3)
If you hire an independent contractor for a criminal agenda, in which case the
employer will also be held liable for his own negligence.
Joint and Several Liability
Joint tortfeasors are two or more individuals who:
A) act in concert to commit a tort
-when person aids or encourages another in committing a tort
-it is sufficient that the encouragement or aid be a factor that had some impact on
B’s action, even if ultimately B would have acted the same way regardless
Ex. Biercynski v Rogers--Ds were racing, and one of the Ds ran into P
causing injury; court said both racers were joint/severally liable despite
one of them not being directly involved with the collision at all; doesn’t
matter if D would have acted the same way without being encouraged
B) act independently but cause a single indivisible tortious injury
-if A is driving negligent, B is driving negligent and their cars collide, injuring C
(assuming C’s injury attributed to collision); independent actions caused
indivisible injury
C) share responsibility for a tort because of vicarious liability
-respondeat superior
-each individual is fully liable to the P for the entire damage award
-if the P is unable to collect share of liability from one of the joint tortfeasors, P can collect full
amount from other tortfeasors
-result: “deep pocket” defendant who may only be partly responsible for P’s injury,
might end up paying all or a disproportionate share of damages
Under common law, plaintiff could get 100% liability from BOTH defendants. Then, once
defendant pays his share, up to D to seek contribution from the other defendant.
Partial Joint Tortfeasors:
X injures A’s leg – liable for all
Y injures other leg – liable for Y and Z
Z injures A’s arm – liable only for self
Comparative Negligence
$100,000
Comparative Negligence
Def. Gates
30%
Def. Ordinary Guy
20%
Def. Broke
50%
Most jurisdictions that use comparative negligence say that joint and several
liability still applies. So you can recover 100% damages from all defendants.
If the jurisdiction has abolished joint and several liability, the defendants are only liable
for their % of the negligence.
In some jurisdictions, if defendant is below a certain % of the negligence they can only
be held severally liable. This abolishes joint and several liability if below a statutory
percentage.
Plaintiffs are only entitled to one satisfaction of the judgment. Any damages paid to the
plaintiff must be credited to all the joint tortfeasors.
Collateral Source Rule – if money paid to the plaintiff is not on behalf of the joint tortfeasors,
the other defendants do not get credit for it. For example, money paid to the plaintiff by an
insurance company or workman’s comp. In medical malpractice cases the jury must be
instructed that defendants have not been credited because they can consider this when awarding
damages.
$100,000
Def. Gates
Def. Ordinary Guy
Def. Broke
Plaintiff and Defendant Ordinary make an agreement. Def. Ord. gets released for $10,000. If
joint and several liability survives, a release of one is a release of all. Now, there are three
different types of modifications in different jurisdictions:
1)
some jurisdictions say release of one is a release of one because it is like a
simple contract
2)
other jurisdictions say release of one is release of one as long as it is in the
contract and you can go after other defendants
3)
other jurisdictions call it a covenant not to sue – can go after other
defendants
in situation 1, Bill Gates would be liable for $90,000.
Bill Gates may feel he deserves contribution. He would seek 1/3 of $100,000 from Def. Ord.
Bill Gates loses if the broke defendant really is broke
Satisfaction--results in receipt of full compensation for an injury and extinguishes the claim
against all potential tortfeasors
Release--is a surrender of the P’s claim against only one or more of the tortfeasors; P still
reserves right to seek compensation from other tortfeasors for remaining liability
* release of one is a release of all--P’s avoid this by calling release “covenant not to sue”
thus keeping other tortfeasors on the hook
When a release is used by 1 defendant, what impact does release have on remaining tortfeasors?
2 approaches:
1) settling D’s payment is deducted from the final total damages owed to P
-thus remaining tortfeasors pay full damage amount minus the settling D’s
payment…even if it increases the % of the damages for which the
remaining Ds
were originally liable
-often the P taking a release that is less than what % of dmgs that D owed, is looked at
somewhat skeptically; P must settle in “good faith” not just to increase % of dmgs other
tortfeasors must pay
-* puts pressure on Ds to settle, because by P accepting a low settlement
(immediate compensation) while remaining right to full compensation from remaining Ds; Ds do
not want to be liable for remaining equitable share under joint and several liability
2) If A settles for $1000, B goes to trial….total damages are $10,000; A is 60 % liable, B
is 40 % liable……this second approach deducts the settling defendant’s liability from total
damages, leaving non-settling party to pay only his portion; in this case B would be liable for
$4000; and P would be screwed out of $5000 from A because he settled for $1000 before trial;
Contribution and Indemnity
Contribution –
from those joint tortfeasors
unless no legal limitations on the person you seek it from (i.e. you cannot seek
contribution from your spouse)
* defendant who pays more than his share when joint/severally liable can seek contribution from
other Ds *
Indemnity in 2 major scenarios:
master seeking indemnity for those torts in which he was found vicariously liable
when there is a contract (i.e. apartment leases indemnifying tenants for injuries happening
on the premises)
*indemnity is full payment, and is rare *
- Yellow Cab Co. of D.C. v. Dreslin – taxi collides with defendant. Defendant’s wife sues
cab co. Cab Co. pleads contributory negligence of defendant and cross claims against him for
damages to his taxi and for contribution of any sums recovered by the wife against the cab co.
Court ruled he could not be held liable for contribution because he cannot be held liable for a
tort committed against his wife.
Defenses
Contributory Negligence
Originally, if the plaintiff was also negligent, he could not recover anything from the defendant
for injuries. This doctrine was very harsh so eventually, as long as the plaintiff is negligent and
his negligence was a cause in fact of the injury, plaintiff could not recover. This is an affirmative
defense that the defendant must prove. The standard is ORPP under the circumstances. The
determination of whether or not the plaintiff is contributorily negligent is a question for the jury.
Sometimes the court makes more allowances for plaintiff’s conduct; i.e. children and the
mentally incompetent.
- Butterfield v. Forrester – plaintiff was riding his horse and got thrown when the horse
tripped over a pole defendant had negligently left in the road. Plaintiff was riding horse
too fast to the court did not allow recovery
Comparative Negligence Jurisdictions
Pure system – plaintiff is entitled to any damages she is not the cause in fact and legal
cause of.
Not as great as – plaintiff can recover the % of damages she is not liable for as long as
her negligence is not as great as the defendant. (50/50 no recovery)
Not greater than – plaintiff can recover the % of damages she is not liable for as long as
her negligence is not greater than the defendant. (50/50 plaintiff still recovers
50%...only difference from not as great as system)
Most jurisdictions joint and several liability still survives. Some jurisdictions modify and say it
does not survive for certain damages or certain defendants. In comparing the plaintiff’s
negligence versus that of multiple defendants, you collapse the negligence of all defendants and
compare that percentage to that of the plaintiff’s negligence.
-look at P’s FAULT
Assumption of the Risk
Express assumption of the risk: prior to defendant’s negligence, plaintiff has expressly agreed
to assume the risk. It is like a contract. Is there a public policy concern to give this assumption
full faith? Most circumstances using assumption of the risk 1) defendant was not under a
necessity to provide such service; 2) plaintiff not under compulsion to engage in that activity.
i.e. bungee jumping, skiing.
- if accepted, express assumption of the risk
1) bars recovery, and is a complete defense
2) is unaffected by changing to comparative negligence, still bars
recovery
-to challenge express assumption of the risk:
1) was the risk one of the risks plaintiff agreed to accept?
2) would public policy be violated if the assumption of risk is
accepted?
a) minors
b) service is so integral to the community that it is unfair
(medical)
C) bargaining power of respective parties, if D is much greater than P
might
Seigneur v. National Fitness Institute (NFI)--in order to hold gym employee liable under contract
of adhesion that P had signed, must show exculpatory clause of that contract was:
1) ambiguous
2) void against public policy
3 exceptions where public interest will render exculpatory clause unenforceable:
1) where party protected by clause harms or engages in acts of reckless/wanton/gross
negligence
-* sometimes may be enforceable if clearly spelled out in waiver
2) where bargaining power is so grossly unequal that it puts party at mercy of other’s
negligence
3) when transaction involves public interest
Implied Assumption of the Risk
-risk is implied through conduct
-D must show that P knew of risk and voluntarily consented to bear the risk herself
-P must have knowledge of the risk in order to have impliedly consented
-risk must have been known by P at time (not merely “should have been known”)
Primary implied assumption of risk:
-P voluntarily and knowlingly assumes unreasonable risk-P engages in an activity with risks and the risks come to fruition; some activities have inherent
risks that do not result from D’s negligence
-P’s injury arose from inherent dangerousness of activity not because of a breach in duty on D’s
part
- i.e. fans at baseball game, gets hit by ball hit on home run. Primary implied assumption of the
risk. The risk is inherent in the activity and the risk is reasonable, no negligence, recovery is
barred.
Secondary implied assumption of risk:
-D breaches a duty owed to P and exposes P to an unreasonable risk of harm; for some reason P
knowingly and voluntarily encounters the risk or remains in the zone of the risk; D uses as an
affirmative defense
a) plaintiff must encounter risk knowingly – children and mentally incapable
plaintiffs is relevant information.
b) must be voluntary. If the decision is NOT voluntary, the defendant MUST be
responsible for the plaintiff’s lack of choices in order for recovery.
c) in jurisdictions switching to comparative negligence, unreasonable assumptions of the
risk are looked at like unreasonable conduct. In this case you would treat it like the plaintiff is
also negligent and compare the plaintiff’s negligence to the defendant’s to determine recovery. a reasonable assumption of the risk usually bars recovery.
Anomaly:
-where P makes an unreasonable decision to encounter an unreasonable risk, P can use
comparative negligence and still hold D liable
However,
-where P reasonably assumes a risk--cannot use comparative negligence
-D will not be liable because P took the risk knowing there was an unreasonable risk
involved
-even if P chose to encounter the risk for good reason, the court still denied recovery on
the grounds that P made the choice (not on P’s fault)
-i.e. driving to Nordstroms on faulty breaks – could recover (unreasonable
to assume risk, compare to negligence of defendant)
Driving a choking child to the hospital on faulty breaks – could not
recover (reasonable to assume risk)
- Rush v. Commercial Realty – plaintiff lived in house owned by defendant with detached
bathroom. Plaintiff had to use the bathroom and assumed the risk of going over a faulty
plank to get there and falls. She was able to recover because defendant was responsible
for her lack of choices.
Anomaly described further:
Hypo:
-P knows that D’s warehouse does not have a sprinkler system; but P chooses to store her
goods there anyways because it is cheaper
-P’s decision can be seen as: 1) negligent (because P knew of risk) or 2) acceptance
of the risk
-at common law: either contributory negligence or assumption of the risk
barred recovery entirely; in a comparative negligence state P’s conduct if
treated as negligent, would reduce recovery not bar it all together
-assumption of the risk is based on consent to encounter a risk not on fault
What if assumption of risk was reasonable? (P knew D had no sprinklers but there was no where
else for 100 miles around?)
-some courts say: P’s decision was reasonable based on choices and recovery should not
be reduced, (recovery should only be reduced for negligence)
-comparative negligence statutes only address the effect of P’s fault, the rationale
for assumption of risk is consent to take a risk, not fault
-some courts say: reasonable secondary assumption should completely bar P’s recovery:
-hold that D’s should be allowed to use as affirmative defense; says there is no
connection to comparative negligence because comparative negligence deals with
“fault” and secondary assumption of risk deals with P’s consent
Anomaly: P who makes reasonable choice to assume a risk is barred from
recovery while making an unreasonable assumption allows recovery
YET under most comparative negligence regimes unreasonable assumption of risk
is treated as a form of P’s negligence, which reduces a P’s recovery rather than
barring it (this says there is no such thing as “reasonably” assuming an
unreasonable risk)
Express assumption of risk: remains a viable defense by D
Primary assumption of risk: if P injured as result of inherent risks, cannot win against D
because D would not be negligent;
Secondary assumption of risk: D negligently created risk, P realized there was a risk, but
continued to participate anyways
-some courts that use comparative negligence will treat this assumption of the risk as a
type of P’s fault; jury will assign a % of fault
-if court holds that P unreasonably chose unreasonable risk created by D then
recovery can be had under comparative negligence
Failure to take advanced precaution
i.e. failing to wear a seatbelt. In comparative negligence – compare plaintiff’s negligent seatbelt
failure. Finally courts said this did not make sense. Now comes up with failure to take
precaution to protect oneself. This might lead to a deduction in damages. It is unfair to take a %
away from the plaintiff.
Statute of Limitations
This is an affirmative defense. If you don’t raise it in the answer you cannot raise it. The time
period often starts when the plaintiff is aware or should be aware that there are damages. There
are also statutes of repose to help mitigate these time periods.
Duty
-is a policy decision; question of law; judge will consider many factors; how much will it cost,
what kind of benefits to avoid risk, what will public gain?
-in most cases duty arises from the duty to behave towards P with the degree of care that ORPP
would exercise in like circumstances
When is there a duty?
-generally no common law duty to act; courts prefer to deal with malfeasance than nonfeasance; this applies to
medical professionals as well (although there are ethical requirements that could be violated)
-generally courts have a hard time with nonfeasance; prefer to find negligence for malfeasance
-sometimes there is a duty based on a statute; ie hit and run statutes can impose a duty
1) pre-existing relationship--husband/wife, parent/child, innkeeper/guest, temporary legal custodian/person in
custody; duty on part of employers
2) Where D who was negligent for failure to act and had a relationship with the perpetrator
-Ex. JS and MS v. RTH--where wife was found negligent for not warning child’s parents that her husband
had the propensity to be a molester; court said it was foreseeable that he would molest them; found wife
proximate cause of husband’s action
-Ex. Child had a predeliction as a biter; parent would have to tell teacher this (if put teacher at risk)
3) if the D is factually involved with the event, even if not the legal cause of the injury (not negligent), court
may impose a duty (relation to the incident even if not negligent in bringing it about)
Ex. Hitting a person or a deer on the road; must get out and help person
-your car on top of child courts will probably require you to help D
4) if there is no duty to act, but you choose to act, must act reasonably; cannot imperil the injured person
worse; if you render aid and help a person, cannot turn around and change mind worsening situation again
-this can be modified by statute; ie good samaritan laws--saying a person who renders aid in good faith at
the scene of an emergency may not be liable for civil damages
Most jurisdictions say that a promise is not an action, so no liability. Two exceptions:
third parties promise aid causing others to forgo giving aid.
2) When plaintiff could help himself but didn’t because he was promised aid.
Exceptions to rule of “no duty to render assistance” : owner of business premises (P choking, D must attempt to
prevent P from choking); common carriers; if D’s conduct created danger (hitting deer); when D undertakes duty;
when D promises to render aid to P it can initiate a duty where P relies on assistance (others decline to help P where
they believe D is already helping)
Negligent Infliction of Emotional Distress
Negligent Infliction of Emotional Distress
Originally, impact was required for recovery in negligent infliction of emotional distress cases.
Often times impact became separate. The courts were even more wary of these cases than
intentional infliction of emotional distress. Now the courts have evolved.
Impact: some jurisdictions say any impact (physical consequences) is enough to allow P to
recovery for NIED
Zone of danger test. EMOTIONAL DISTRESS MUST BE SERIOUS! (majority rule – derived
from Restatement) – two prongs:
was the plaintiff within the zone of physical danger?
Did the danger manifest itself in physical consequences? In other words, did the plaintiff
have the requisite resulting physical symptoms?
- some jurisdictions very strict with what constitutes physical consequences,
some are much more lenient.
Two exceptions to the zone of danger test:
negligent telegram regarding notice of death
negligent mishandling of corpses.
- in these scenarios, no physical injury is required for recovery, there is a special
necessity for genuineness.
Percipient witnesses’ recovery for emotional distress – (3rd party emotional distress) most
jurisdictions treat these cases under the zone of danger test.
plaintiff must have been in the zone of danger
the fright must manifest itself in physical consequences
plaintiff must have a direct familial or close relationship with the victim
California used to focus more on forseeability but now has evolved.
California test:
percipient witness had to be present at the event and had to sensorily perceive the event
(see or hear it)
emotional distress must not be distress a disinterested observer would suffer; it must be
directly because of that sensory perception
there must be a close relationship to the victim (established in Thing v. LaChusa)
you must understand that you are witnessing an injury producing event
* sensory perception is satisfied if come upon someone where action immediately happened
sometimes (Ex. Person with fresh blood from rat bites/rats scurrying away as person comes in)
- Thing v. LaChusa – mother did not witness her child get hit by a car but was told by her
other child and ran around the corner. Sues for negligent infliction of emotional distress,
and is denied recovery because she did not sensorily perceive the accident.
Some jurisdictions require that the victim really be injured in order for a plaintiff to recover. i.e.
man avoids children and hits a bunch of trash cans instead. Parents have a heart attack thinking
their children are going to get hit. In these jurisdictions, the parents would not be able to recover
because the kids really weren’t injured.
- courts make restrictions like these in order to restrict the number of lawsuits in this
area
Toxic Torts cases- should victims be able to recover for emotional distress that they suffer after
being exposed and being worried they will come down with a disease?
some jurisdictions do not allow recovery until you actually get the disease (PA)
other jurisdictions – is the fear reasonable?
Other jurisdictions – if 51% or greater chance of getting the disease, you can recover for
the distress
Other jurisdictions – no damages for emotional distress but allow recovery for testing and
monitoring for the disease.
Injuries to the Unborn (underlying this is legal causation courts could find unforeseeable)
-every child has the right to start life without physical/mental impairment
Preconception torts – can you be liable to someone before they are even conceived? Originally
the courts said no liability. i.e. a car accident messes up a girl’s pelvis, she gets pregnant and the
baby is born a mess. Can the child sue the person who hit her mom? Originally the answer was
no.
- eventually moved to the standard that if there was a special relationship between the
defendant and the preconceived, there might be liability if the defendant is negligent. i.e. parents
consult a geneticist about sickle cell anemia, he negligently says there is no chance their baby
will get it if they get pregnant. Baby is born with sickle cell, geneticist might be liable to the
baby once the baby is born.
- can parents be liable to the baby if they used drugs or alcohol while pregnant? Maybe.
- is there a lawsuit against one who negligently fails to prevent a pregnancy? Vasectomy
doctor, negligent manufacture of condoms? Earlier cases started allowing cases like these when
children were born with handicaps.
- courts begin to allow recovery for costs of raising handicapped children against a
defendant who negligently fails to prevent pregnancy.
- Massachusetts – allowed recovery to parents of healthy baby to parents who could not
afford to raise another child against the vasectomy doctor who was negligent in preventing
pregnancy. Plaintiffs were not required to mitigate the damages by abortion or birth control.
Child injuries in utero – usually there can be recovery for harms the child suffered when
born, as well as damages to the parents.
Stillborn babies – most states recognize injury cause of actions. Some jurisdictions say there can
be recovery only if the fetus was viable (wrongful death actions). Some jurisdictions pick a
week of gestation to cut off liability. Some jurisdictions bar recovery for the reason that you
must have life to have death.
Endresz v. Friedberg--court held baby must be born alive before can recover for death; birth is
necessary because tangible, definitive event that creates acceptable boundary for courts
What if the doctor fails to take a test to show that the child will be born handicapped, does not
warn of the test, or negligently performs an abortion and the child is born…can there be
liability? What if parents did not have the opportunity to seek an abortion?
- the doctor might end up being liable for birth of this handicapped child. There is only
liability for medical expenses, NOT emotional distress.
1) wrongful birth actions – most jurisdictions accept. You can recover for pregnancy
expenses, extraordinary expenses of handicapped child if you never wanted to have a baby and
had one due to someone’s negligence. (see below)
2) wrongful life actions – child seeks damages because he was born. His parents were
denied the right to an abortion because of a negligent diagnosis or procedure. Courts will find
there can be determinable damages in these cases. Doctor botches abortion and child is born
alive; obstetrician fails to warn mother that her child will be retarded so mother did not abort
-child is saying “but for” your neligence “I would not exist”; very existence is damages
-some courts reject; other courts allow for wrongful birth; most of the time courts
allow, the child is very retarded but has normal life expectancy (damages
assessed at cost of medical bills - cost of normal living expenses…usually these
medical damages are astronomical)
-some retarded interest groups take offense b/c awarding damages
suggests that retarded people’s lives are less than desirable or not worth living
- Procranik by Procranik v. Cillo – child was born with birth defects
because his mother’s doctor negligently failed to diagnose her with
measles while she was pregnant. Child is allowed to recover for medical
expenses incurred during pregnancy because his parents were denied the
option of having an abortion to avoid raising a handicapped child.
-if vesectomy goes wrong and couple have child; courts may allow recovery if man had
vesectomy to prevent pregnancy because couple could not afford a child
-only Massachusetts has allowed to recover for damages incurred in normal costs of raising a
child (aside from medical bills of the severely handicapped)
-during pregnancy mother may not have a duty to act reasonably (ie not drinking/smoking) but
state can take child after it is born
-prenatal care is covered in insurance
Damages
Compensatory damages--intended to represent the closest possible financial equivalent of loss or
harm suffered by P to restore P to the position the P was in before tort occurred
Punitive damages--an additional sum, over and above the compensation of P awarded to punish
D, to make an example of D and to deter other would-be tortfeasors
-generally with intentional torts; however can also be applied to negligence
-generally must show “willful misconduct, wantonness, recklessness, or want of
care” “gross negligence” (higher degree of fault)
-punitive damages can be added even if D’s malicious conduct did not cause
compensable harm; if P can prove compensable harm in same suit, malicious conduct
need not cause compensable harm to still be added
-filed as income (taxable)
-jury has discretion to not award punitive damages
-P’s lawyers like punitives because very discretionary, based on what will deter
company;
if company has a high amount of profit, then punitives will be high
Nominal damages--small sum of $ awarded to P; amount of award is unimportant; damages
entered so D gets sense that action was wrong
-damages are itemized and totaled (summed) coming up with a total figure that the jury could
reach
-injured defendant is allowed to enter the court room so jury can see them (provided they act
appropriately)
evidence of damages: demonstrative evidence--charts, photographs, videos, models, and
computer simulations used to show extent of P’s injury; helps jury determine value
-not available for negligence claims (must show actual damages)
Compensatory / Actual Damages – two types: special damages and general damages.
Special Damages – must be specially pleaded and specially proven. Can be reduced to a certain
dollar amount. Two major types – medical expenses and special damages for lost wages.
- Medical Expenses. Past, present, and future medical expenses can be awarded. Under
the collateral source rule, payments made to a plaintiff from an insurance company are not
credited to defendants. Types of medical bills that can be compensated:
1) damages must be related to the accident
2) fair, reasonable, and necessary charges. Expert testimony for costs can help. Many
times defendant will just agree to costs, but if you demand the best surgeon on the
country you may not be able to get all expenses from defendant.
* get one shot to seek medical bill damages for past, present, future *
Difficult to determine future medical bills; expert testimony is needed to show amount
There are no do overs because more procedures were necessary than you anticipated, and
no do overs because fewer procedures were necessary and defendant overpaid; P’s
medical bills must be reasonable; cannot tack on plastic surgery, etc.; damages are
calculated to “present value” jury is instructed to award money in a lump sum that will
produce for P the amount the P would have earned or will need for a future operation
- Special damages for lost wages. Past wages are easily determined with pay stubs and
tax information. Future wages often require the use of an actuary or another expert to testify
how long you would have lived, how much longer you could have worked, what you would have
earned. These figures are difficult to determine. Factors of the economy such as inflation are
considered
-if P is not employed at time of injury becomes more difficult; if P was at home caring for two
small children at time, damages will probably be determined by replacement cost for care of two
children
Future earning capacity: jury must be persuaded that injury is permanent; then expert
testimony is needed to assist jury in estimating what P would have made during lifetime;
considerations are life expectancy, prior health, manner of living, individual characteristics;
Federal income tax: damages are not taxed pursuant to an IRS statute; punitive damages are
considered taxable (count as income); some jurisdictions hold that the tax free nature of the
award must be taken into consideration when determining amount of damages; most jurisdictions
do not because it would disrupt the “tax benefit” of damages; there is no way of telling what tax
rates will be in future, where P will fall in tax bracket thus most jurisdictions do not tell jury that
award will be tax free
- Sophomore at Villanova is crossing Rt. 30, gets hit by car. Brain matter oozing, gives
her neurological and physical impairment. She was planning on law school. What would she
have earned? Look at her grades, habits, projected LSAT scores, standardized test scores, what
would a medium sized firm lawyer make? What about time she may have taken off to have kids?
-actuary is going to put up a range (ranging from small-to large firms, different fields);
evidence of what her interests were will be included
- what about 12 year old boy that jumps on a trolley, falls and dies. You would need to
look at what high school graduates make, what college graduates make, what post graduates
make. What type of academic course was he on? What do his parents do? What are his
hobbies? How is his school performance?
General Damages – must not be specially pleaded or proven. These types of damages deal with
pain and suffering. How much is it worth? Take into consideration factors such as the fact that a
person’s tolerance for chronic pain increases over time. Sometimes pain and suffering, even if
held to a low standard, can outweigh the financial gains of special damages. Some judges will
tell juries if you’ve received a tax break and others are more charitable.
-would want to tell client to keep a diary of suffering
-perhaps show a “day in the life” video; shows the daily life of the injured party;
evokes sympathy in parties--really dramatize and personalize
Suppose we think D is a malingerer--might want to hire a private eye to follow D
-must be careful; if jury seems to like D, run risk of pissing off jury for vilifying him
Punitive Damages – serve two purposes: to punish the defendant and to deter others from
engaging in that activity. Usually not awarded in negligence actions. Usually for punitive
damages the defendant’s conduct needs to be reckless or intentional. These damages come from
the defendant, not the insurance company. How much is a company worth? Juries will consider
profits.
- problems with punitive damages
1) in criminal actions, defendant pays punitive damages only once. What
if there are multiple plaintiffs? If all are seeking punitive damages, should
the defendant be forced to pay over and over again?
2) multiple plaintiffs – at some point, the well runs dry. This may promote
a race to the courthouse. The first plaintiff to get his suit in court will get
the punitive damages, as the plaintiffs go down the line eventually there
will be no money left to compensate plaintiffs at all.
3) is being forced to pay more than once double jeopardy? Supreme Court
has been keeping a close eye on punitive damages. Some experts suggest
that punitive damages should go into a research and development fund for
companies to make better products.
Non-economic losses
Physical pain and suffering, mental anguish: include suffering after injury before trial and
suffering that will last into the future; no fixed standard, the court must control the jury and fix a
reasonable amount in compensation; when assessed for future injuries, do not need to be reduced
to present value
Loss of function: sight/taste/smell/insomnia/fear of injury to unborn child/scars/disfigurement
Emotional Distress: must be accompanied with physical injury
Loss of enjoyment of life: part of recovery for pain and suffering; sometimes called “hedonic
damages”
Per-diem argument: when P’s attorney breaks down physical/mental suffering into days, hours,
minutes and sets a value to each unit and multiplies by total number of units P will suffer
-a majority of jurisdictions permit the argument assuming the D’s counsel can point out any
flaws in the argument and that the jury will not be misled
Judicial control of amount received:
-judicial review of jury verdict amounts is limited; allowed if award is so high or low that it
“shocks the conscience”
-judge can set aside verdict or grant new trial; can let liability stand and hold trial on damages
alone; usually a whole new trial is granted; granting a hearing only on damages alone is
warranted if judge believes the jury acted inappropriately in setting amount of damages did not
taint liability verdict
Legislative control of amounts recovered:
-about half of state legislatures passed laws that in some way limit amount of damages
-statutes can cap amount of damages allowed for certain types of damages (malpractice, pain and
suffering, punitive damages, etc)
Expenses of litigation:
-P cannot recover expense of litigation except in Alaska; the award for pain and suffering may
have the effect of allowing the P to pay the attorney and still remain compensated
Physical harm to property
If property completely destroyed or converted:
-measure of damages is the entire value at the time and place of the tort
If property is damaged but not destroyed:
-damages measured by difference in value before and after the injury
-damage determined by looking at value before and after the wrong; amount to
is admissible as evidence
If property is deprived of use for some time:
-damages consist of value of the use for which P has been deprived
-measure of damages is the rental value--or what owner would have obtained in
market by renting out similar property
restore
the
Market value
- is used to determine what property would be worth at time of tort; determined by looking at
voluntary seller/buyer
-market is community where tort occurred
* stocks and bonds are dealt with a little differently; subsequent increases in value
are taken into consideration when determining value *
-if chattel has no market (family heirloom) then the recovery is based on value to the
owner as distinguished from value to others
Wrongful Death/Survival
* no separate tort of “wrongful death”; wrongful death statutes create a remedy for existing torts
when those torts lead to the death of the victim
Wrongful death--statute that allows damages for the losses suffered by surviving relatives, such
as the loss of economic support or society of the decedent; SOL starts on day person dies, so if
decedent had a cause of action but did not sue while alive, it will still probably be allowed to be
brought (depends on statutory language)
Survival--allows the estate of a decedent to enforce a tort claim for damages suffered by the
decedent before death, which dead person could have enforced personally had she lived
Hypo:
-A and B are at concert; speaker falls from ceiling killing A instantly; B is seriously injured and
remains in hospital for 7 months and then dies as a result of injuries sustained at concert
The action for wrongful death:
-A died instantly; his estate has no claim for predeath pain and suffering; sole injury is death
itself
-A’s representatives must prove the same elements as if it were any type of injury
Who gets compensated in wrongful death actions?
-those who were close to decedent for the economic or emotional losses they have suffered
-recovery does not go to pay decedent’s debts
What loses are compensated?
-tangible losses such as income/funeral expenses/ household services
-intangible: loss of cortium/loss of companionship/grief and mental anguish
-some jurisdictions allow only pecuniary damages
-others follow the loss-to-the-estate rule that formula that provides economic damages for money
that decedent would have earned ( - ) living expenses reducing figure to “present value”
Survival Statutes
* statute is a tool to allow decedents recover from D even though P has died before/during
litigation; can result from any type of tort, even if tort not related to P’s death
-going back to hypo, B also died as a result of speaker falling from ceiling, although not
immediately
-B’s decedents will be able to bring a wrongful death action as well as a survivor action
-B hung on for 7 months in hospital, unable to work, suffering mental distress, incurring medical
expenses
-survivor statutes: when P would have been able to bring claim for injuries but died before he
could file them or before judgment was determined on his claims; the causes of action “survive”
and can be continued by personal representative
-decedent does not benefit from the action, $ goes into decedent’s estate or to heirs
-decedents can take solace in knowing somebody was held liable
-survivor statutes apply to any tort; survival statutes do not apply only in cases where the
defendant’s negligence causes death
-also, if D dies before/during litigation; P’s claim is still good; D’s estate will pay usually in the
form of insurance covering
-some states say no survival action is allowed against a D that caused the death of decedent;
instead the wrongful death action will allow recovery for injuries resulting from death;
courts don’t want P’s to “double recover” from D
Defenses:
in a wrongful death action, defendant may assert any defense he would have been able to
use had the person survived: contrib., assumption of risk