INDEX OF
TORT
PROFESSOR JOHN DONOHUE
Autumn Quarter 2011
Stanford Law School
Prepared by Hans Andersson
ISSUES
H
E
harm/injury/damage
distress
D
R
Z
I
V
duty
relationship
hazard/animal/danger
incapacity
vicariousness
U
X
custom/standards
emergency
C
G
chaining/foreseeability
God
N
Q
P
M
S
negligence
loquitur
products
malpractice
statute
K
nuisance
F
A
B
T
imprisonment
assault
battery
trespass
R
assumption of risk
FOREWORD
1
Plan of Attack ............................................................................................................................ 1
THE RÉGIME
1
Objectives .................................................................................................................................. 1
Allocating the Cost of the Harm
Equivalence Result
Theory........................................................................................................................................ 1
Concepts
Duty, Care, Negligence
Defense
Strict Liability
Historical Doctrine
Trespass / Case
Modern Calculus of Negligence
Learned Hand Formula
1
1
1
Reality ........................................................................................................................................ 1
Shortfalls
Undercompensation
Discrimination
Remedies
Equity
Juries
General & Special
Arbitration: Incentive toward Reasonableness
1
1
1
1
DUTIES & BREACH
1
Reasonable Care ........................................................................................................................ 1
Who?
The Intoxicated
The Young
Children in Activities Inherently Dangerous
The Handicapped
To Whom?
What For?
Emotions
Economics
How Much?
Hand Formula
The Overman (or, People of Heightened Ability)
1
1
1
1
Circumstances ........................................................................................................................... 1
Premises
Invitees
Licensees
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Trespassers
Children
Relationships
Plaintiff–Defendant: Entrusting Oneself to the Care of Another
Plaintiff–Victim: Student Suicide & A Counselor
Plaintiff–Perpetrator: Social Host & Drunk Driving
Emergencies
Always the Reasonable Person
Emergency is “Simply One of the Circumstances”
No Standard of “Extraordinary” Care
Customs & Standards
Industry Safety Codes as Evidence
Holding Oneself to a Higher Standard
& Enfin: Holding the Industry Liable
2
2
2
Supererogation .......................................................................................................................... 2
Acts of God and Fate
God is Liable for His Own Acts
Warning: Maybe Necessary, Not Always Sufficient
Notice / Suspicion
Creating/Enabling Risk
Gratuitous Services
2
2
2
CAUSATION
2
In Fact ........................................................................................................................................ 2
Necessary Condition: Sine Qua Non
Substantial Factor
Simultaneity & Sequentiality
Cause in Part is Cause Sufficient
Causes Multiple are Each Cause Sufficient
Alternative Tortfeasors
Alternative Causes
Failure to Join Alternative Feasors
Concert of Action
Action in the Auxiliary
2
2
2
2
In Law ........................................................................................................................................ 2
Proximity
Cause-in-Fact / Cause-in-Law
The Universal Basis of Liability
A. “Directness”
B. “Substantial Factor”
C. “Foreseeability”
D. “Scope of the Risk”
Chaining & Superseding
Reasonable Anticipation
Intervening Stupidity
Intervening Tort
Intervening Negligence
Intervening Malpractice
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SPECIAL ACTIONS
3
Res Ipsa Loquitur ...................................................................................................................... 3
Causal Specifics Unknown, or, Evidence Only Circumstantial
The Thing Speaks For Itself (and Must Speak for Itself)
Common Sense & Last Clear Chance
Malpractice
Defense
3
Trespasses .................................................................................................................................. 3
Strict Liability Even Absent Harm
Conversion
3
Nuisances................................................................................................................................... 3
Impeding Enjoyment of Property
Odor as Private Nuisance
Charity as Nuisances Both Public And Private
Remedies
Eminent Domain
Ongoing Damages
3
3
“Distresses” ................................................................................................................................ 3
Actionability of Emotional Harm
Impact Rule
Zone of Danger
Dillon Rule (California)
Fear of Future Injury
3
Assaults ...................................................................................................................................... 3
Intentional, Apprehended, Imminent
3
Imprisonments .......................................................................................................................... 3
Totally Confining, Consciously Apprehended, Intentionally Threatening
3
Batteries ..................................................................................................................................... 3
Contact Intentional & Offensive
Constituting the Offense
Incapacity
Negligence / Intention
Transfer
Smoking
3
Animals...................................................................................................................................... 3
Degrees of Strictness
Dangerousness & Knowledge Thereof
3
Hazards & Activities ................................................................................................................. 3
Determining Liability
Unusual Undertakings & Abnormal Hazards
3
Infractions ................................................................................................................................. 3
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Relevance a Priori
Varieties of Applicability
Apart from Strict Liability: A Causal Connection
Establishing “Negligence Per Se”
Negligence Per Se / Strict Liability
Excuse
4
4
4
PRODUCTS
4
Tort in Commerce .................................................................................................................... 4
Getting Compensation
Deep-Pocket Theory
Risk-Spreading Theory
Exclusion of Economic Losses
Warranty: Express & Implied
Unwaivable Warranty of Merchantability
4
4
Defect: Manufacture ................................................................................................................. 4
Liability: Straightforward & Strict
Defect: Design ........................................................................................................................... 4
Consumer Expectations
Ordinary Knowledge
Strict Liability: Product Condition
Defense of Regulatory Standards
Risk–Utility
Prominent Hazards & Excessive Preventable Risk
Constructive Knowledge & “A Better Alternative?”
Warning
4
4
4
Special Defenses ........................................................................................................................ 4
Contributory Negligence / Risk Assumption
Product Misuse
State-of-the-Art / Limits of Science
PROFESSIONS
4
Malpractice ................................................................................................................................ 4
Deviation from Best Practice
Majority Judgment
Respectable Minority
Expert Testimony
Finding the Fact
Holding the Industry Liable
4
Negligence ................................................................................................................................. 4
Failure to Obtain Informed Consent
“Informed Consent”
Reasonableness Standards: Patient & Practitioner
Patient Idiosyncrasies
Burdens of Proof
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Causation
DEFENSES
5
Due Process ............................................................................................................................... 5
Lack of Notice
5
Plaintiff Negligence ................................................................................................................... 5
Contributory Negligence (Generally Deprecated)
Comparing Blame
Comparative Negligence
Liability—Joint/Several—& Its Rules
Comparative Negligence Modified
Counter-Rebuttal: Last Clear Chance
Under Comparative Negligence
5
5
5
Risk Assumption ....................................................................................................................... 5
How & When
Risk Assumption / Contributory Negligence
Risk Assumption in Comparative Negligence
Unenforceability of Waiver
Express Assumption but Wanton Defendant
Protecting Oneself from One’s Own Negligence & Waiver Too General
Public Policy
5
5
Damages Mitigation .................................................................................................................. 5
Protecting Both Sides
Medical Treatment & Failure to Minimize Damages
Precaution & Seat Belts
5
DAMAGES
5
Compensation ........................................................................................................................... 5
Specific/General
Recapitulation of Damages
Interests of Others: Wrongful Death & Survival
Objective
Nature of the Injury
Predictions about the Future
“Golden Rule”
Computed
“Hedonic” Damages
“Per Diem” or Life, Day By Day
5
5
5
Punishment ............................................................................................................................... 5
Relation to the Harm
Compensation as Prerequisite
Aggravation
5
5
5
Apportionment ......................................................................................................................... 5
Liability Joint & Several
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Respondeat Superior
Relative Contribution
Negligence & Liability
One Firm Among Many in Products Liability
Awareness/Assumption of Risk
6
6
Modification .............................................................................................................................. 6
Additur & Remittitur
Subrogation & Collateral Sources
Caps in Constitution & Statute
Statutory Caps Constitutional
Statutory Caps Unconstitutional
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FOREWORD
Plan of Attack
1. Identify the parties—remember to include parties unnamed (e.g. groups) and implied (e.g.
partners in contract, products’ vendors, victims’ families, workers’ employers, renters’ landlords,
children’s parents, lunatics’ caretakers)
2. Identify the harms—insults (e.g. offensive touches), distresses (viz. to witnesses), injuries, losses
(viz. of consortium)
3. Trace causality backward from harms to tortfeasors
4. Check each step for relevant negligence or other grounds for liability
4. Raise weaknesses and defenses
5. Apportion damages
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THE RÉGIME
Objectives
- compensation;
- optimal deterrence;
Compensation and deterrence conflict: deterrence requires more than compensation. Over time,
we have seen a shift in focus from compensation to deterrence.
- loss distribution;
Some argue that torts function as insurance, spreading risk, and that tort law tends to expand in
periods of prosperity at the expense of business interests while contracting in periods of recession.
- corrective justice and civil redress;
- redress of social grievances (permits ordinary people to put authority on trial);
- admixture of the preceding.
A different viewpoint argues that tort law merely resolves disputes by addressing midlevel
violations of social norms. By this interpretation, tort law is important for its capacity to reinforce
the norms upon which society depends. Tort law addresses a sense of injustice that wronged
parties feel.
Allocating the Cost of the Harm
Someone always bears the cost of a harm—either the perpetrator or the victim. Strict liability
simply goes farther than negligence liability to impose liability even when avoidance costs outweigh
accident costs. Understand that a no-negligence regime is equivalent to a strict liability regime
holding victims strictly liable.
Ultimately, we want to create a least-cost (Calibraisian) incentive against harm.
Equivalence Result
“Assuming perfect compensation and each legal standard equal to the efficient level of care, every
form of the negligence rule gives the injurer and victim incentives for efficient precaution.”
But… “Under a negligence rule, the marginal risk of harm to others from more [activity] is
externalized”
Courts can find the efficient level of care through the Hand Formula either case-by-case or
legislatively.
“Small random errors in the legal standard imposed by a negligence rule cause potential injurers to
increase precaution.”
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Theory
CONCEPTS
Duty, Care, Negligence
Ordinarily one is under an obligation—that is, has a duty—to exercise reasonable care to avoid
causing foreseeable physical injury to other people or their property.
Reasonable care “under the circumstances” does not include the incapacities or limitations of the
person whose behavior is under evaluation. That the defendant did his best or acted in good faith
is no defense.
Negligence is the failure to exercise reasonable care to avoid injury or damage to another person or
property.
The plaintiff need only prove that in acting as he did, the defendant did not behave with
reasonable care.
In many cases the plaintiff goes farther than he or she is required to, and actually attempts to
prove that there was a particular precaution that the defendant should have taken, and that, more
probably than not, if this precaution had been taken the plaintiff would not have been harmed.
In many cases, the best way to show that the defendant did not exercise reasonable care is to
prove some less obvious precaution or safety measure that was available, inexpensive, and
potentially effective.
Defense
Historically, two tort defenses emerged: general defense to the facts of the case and special defense
to the element of negligence.
Emergency: when a danger arises without warning, this circumstance may be taken into account in
assessing the reasonableness of the behavior of the party faced with the danger
Foreseeability: a defendant is not negligent unless he knew or reasonably should have known that
his actions posed a risk of harm; a person cannot be negligent for failing to take precautions
against an unforeseeable risk of harm.
Strict Liability
Strict liability, under one theory, is allowed for those activities where one person imposes a “nonreciprocal risk” on others.
The best cost-avoider theory is a second explanation for denying strict liability for injuries
associated with roads. Most people are aware of the risks imposed by use of the highways.
Justifications for strict liability include:
A. Greater accuracy—Preemptively remove some cases from the hands of the jury.
B. Cost savings—Simplification of the regime may save costs of administration and enforcement.
C. Activity-level effects—Imposing strict liability can affect which activities people choose to
undertake and to what levels and in what degrees. (Potential injurers have incentives under
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strict liability to avoid risky activities altogether instead of simply abiding by standards of
negligence.)
D. Research incentives—Under strict liability, potential injurers gain more by avoiding liability, so
they have greater incentives to find out how to do so.
E. Loss distribution—Injurers are more likely than victims to have deep pockets, for which reason
strict liability can help to spread losses.
In American common law, understand that strict liability applies only to proximate causes, not to
mere causes in fact—strict liability is not absolute liability for engaging in a particular activity but
only for those consequences that this form of liability is designed to address.
The defendant is not strictly liable if the harm in question results from an Act of God, or the
unforeseeable intervention of a third party, or the plaintiff’s knowing and unreasonable
assumption of the risk of harm.
HISTORICAL DOCTRINE
Thorns Case: Trespass
Defendant at common law was liable simply for the fact of having trespassed.
Weaver v. Ward: Case
Defendant at common law was liable for having shot the other party by pure accident… “To avoid
liability, the court said, it would have been necessary for the defendant to plead and prove that the
plaintiff had run across the line of fire while the defendant was shooting, or otherwise to have
shown that the accident had been ‘inevitable, and that the defendant had committed no
negligence to give occasion to the fault.’” — standard of being “utterly without fault”
Trespass / Case
We went through a period of “trespass” vs “case”, in which the former was direct, the latter
indirect.
Brown v. Kendall
Disestablished the “trespass” / “case” distinction” in American common law:
- “But neither trespass nor case will lie […] unless the defendant has intended to injure the
plaintiff or had negligently injured him. [… T]he plaintiff has the burden of proving either intent
to injure or negligence, whether the action is brought in trespass or in case.” (52)
- “The plaintiff now had the burden of proving breach of standard.”
MODERN CALCULUS OF NEGLIGENCE
The probability that a particular act or omission will cause harm; the magnitude of that harm if it
occurs; and the value of the interest that must be foregone or sacrificed in order to reduce the risk
of harm
Should negligence law be designed to deter only those accidents that are worth avoiding?
Learned Hand Formula
When the cost of risking harm is greater than the cost of reducing or avoiding that risk, taking the
risky action is unreasonable.
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Eckert v. Long Island R.R.
The law has so high a regard for human life that it will not impute negligence to an offer to
preserve it, unless made under such circumstances as to constitute rashness in the judgment of
prudent persons.
Reality
SHORTFALLS
Undercompensation
In the field of torts, plaintiffs are relatively few given the number of wrongs. And awards undercompensate losses, on average.
People who have no assets and no insurance are said to be “judgment proof”, which means just
that they will be liable for no damages if sued on grounds of tort.
Discrimination
The tort system does provide for paying differential damages for injuring distinct individuals. If
you hit a doctor, you will be liable for greater damages than if you hit a transient.
In the system, the jury may assign a “damages cap” of some kind: the plaintiff may pursue any party
but not so that the total remedy exceeds the cap. The defendant with deeper pockets will tend to
pay greater damages than desert might otherwise imply.
REMEDIES
Equity
A court of equity can tailor writs to the wrongs they redress. For example: back pay, reinstatement
for the position.
Consider back pay: if you call it compensation, then it requires a trial at law; if you call it equity for
the position lost, then it can proceed through a trial in equity.
JURIES
The 1964 law protecting prospective employees from discrimination on the basis of race prevised
that, if the law allowed for monetary damages, then it would require a trial by jury, which would
have proved problematic in the South; therefore, the law provided for a remedy in equity.
Civil Rights Act 1991: Only juries can award punitive damages (damages that punish the
perpetrator), and if you award compensatory damages, that award will be greater than equity
damages (? apparently).
General & Special
Courts most often request of a jury only its general verdict, to award damages or not, but courts
may alternatively request a special verdict, which elaborates on each of the questions inherent in
consideration of a tort. Regardless, the court may issue judgment notwithstanding the verdict.
ARBITRATION: INCENTIVE TOWARD REASONABLENESS
Arbitration may lead to different dispute-resolution scenarios and different standards of evidence:
the arbiter might just choose the side that seems more reasonable, which gives both sides
incentives to seem reasonable.
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DUTIES & BREACH
Reasonable Care
WHO?
Every actor owes duty in action.
But see “Circumstances”, “Supererogation”, “Notice”, and “Risk Creation”.
The Intoxicated
If an injury victim was intoxicated at the time of injury, the fact of intoxication will not be a
defense to liability unless the defendant can establish that the conduct of the victim, considered
without regard to the intoxication, was not reasonable. […] “A drunken man is as much entitled
to a safe street as a sober one, and much more in need of it.” (casebook 125)
Graff v. Beard, 858 S.W.2d 918 (Tex. 1993)
As the common law has long recognized, the imbibe maintains the ultimate power and thus the
obligation to control his own behavior: to decide to drink or not to drink, to drive or not to drive.
The Young
Children below the age of about five can sustain no liability. The younger the child who has
caused injury to another person, the greater the likelihood that the victim will in fact have an
independent claim against the child’s parents or caretaker for negligent supervision.
The semi-objective children’s reasonableness standard has now been qualified in many
jurisdictions, by the proviso that when children engage in dangerous adult activities, they are held
to an adult standard of care.
A parent may be liable for a child’s malicious conduct.
Peterson v. Taylor 316 N.W.2d 869 (Iowa, 1982)
A particular child’s incapacity for negligence may be determined by the court as a matter of law
only if the child is so young or the evidence of incapacity so overwhelming that reasonable minds
could not differ on that issue.
Children in Activities Inherently Dangerous
Robinson v. Lindsay, 598 P.2d 392 (Wash., 1979)
When the activity a child engages in is inherently dangerous, as is the operation of powerful
mechanized vehicles, the child should be held to an adult standard of care. […] Such a rule protects
the need of children to be children but at the same time discourages immature individuals from
engaging in inherently dangerous activities.
The Handicapped
Mental handicaps are irrelevant to negligence; physical handicap tending to contribute to the
harm may not deflect liability from the defendant if the plaintiff had taken reasonable measures to
compensate for the physical disability. The main difference between physical and mental
infirmities is that physical disabilities are often visible, measurable, and verifiable. By contrast—
especially in the nineteenth century when these rules developed—mental infirmities are invisible,
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hard to measure, and incompletely verifiable. Typically, physical infirmities are taken into account
in judging the reasonableness of behavior but mental infirmities are not.
Poyner v. Loftus, 694 A.2d 69 (D.C. Ct. App., 1997)
A blind person is not bound to discover everything which a person of normal vision would. He is
bound to use due care under the circumstances. Due care for a blind person includes a
reasonable effort to compensate for his unfortunate affliction by use of artificial aids for discovery
of obstacles in his path.
When an effort in this direction is made, it will ordinarily be a jury question whether or not such
effort was a reasonable one. […] A blind man may not rely wholly upon his other senses to warn
him of danger but must use the devices usually employed, to compensate for his blindness.
TO WHOM?
Palsgraf v. Long Island Railway, 162 N.E. 99 (N.Y. 1928)
Negligence is not actionable unless it involves the invasion of a legally protected interest, the
violation of a right.
The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is
risk to another or to others within the range of apprehension.
If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least
to outward seeming, with reference to her, did not take to itself the quality of a tort because it
happened to be a wrong, though apparently not one involving the risk of bodily insecurity with
reference to some one else.
Dissent of Justice Andrews
[Who:] Every one owes
[To Whom:] to the world at large
[What:] the duty of refraining from those acts that may unreasonably threaten the safety of others.
Restatement (Third)
A negligent person has a duty to the whole world, except where public-policy concerns override.
WHAT FOR?
Common law concerns itself generally with only harms physical.
Emotions
Common law recognizes no independent duty to exercise reasonable care not to distress others.
But see “Insults” under “Special Causes”, infra.
Economics
Courts refuse to award damages for losses purely economic except in case of
- intent to harm or
- products liabilities.
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HOW MUCH?
Hand Formula
U.S. v. Carroll Towing (2d Cir. 1947)
[The negligence standard] involves determining whether the burden of precaution is less than the
magnitude of the accident, if it occurs, multiplied by the probability of occurrence.
McCarty v. Pheasant Run, 826 F.2d 1554 (7th Cir., 1987)
Unreasonable conduct is merely the failure to take precautions that would generate greater
benefits in avoiding accidents than the precautions would cost.
The Overman (or, People of Heightened Ability)
“In judging defendant’s conduct, defendant will be charged with what he actually knew and
observed, and also with those things which a reasonable person would have known and perceived.
And if defendant has superior intelligence, memory perception, knowledge, or judgment, he will
be held to that standard. But defendant’s deficiency in any of these attributes is ignored; he is still
held to the standard of the reasonable (i.e. normal) person.”
“If defendant chooses to engage in an activity requiring learned skills or certain knowledge, his
conduct is measured against the hypothetical person who is reasonably skilled and knowledgeable
in that activity.”
Cervelli v. Graves 661 P.2d 1032 (Wy., 1983)
In determining negligence the jury must be allowed to consider all of the circumstances
surrounding an occurrence, including the characteristics of the actors in reaching their decision.
Where, as here, there was evidence from which the jury could have concluded appellee [] was more
skillful than others as a result of his experience [], they should be allowed to consider that as one
of the circumstances [].
Circumstances
PREMISES
Invitees
Owners and occupiers of land owe a duty to exercise reasonable care to those whom they invite
(i.e. “invitees”) onto their property.
Licensees
In most states people who are social guests, though of course they have been invited onto the
property, are classified as “licensees”. Owners and occupiers owe such licensees a lesser duty of
care: the courts say that for a licensee the owner must make the premises as safe as he makes them
for himself.
Trespassers
To trespassers, the owner owes only a duty to refrain from wantonly and willfully causing injury.
Children
Where an owner has created an “attractive nuisance”, however, one that entices children to harm,
the owner will owe these children an affirmative duty of reasonable care.
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RELATIONSHIPS
Special relationships play an important role in determining whether certain [heightened] duty
exists between two parties. [Heightened d]uty is a question of law for the judge to decide.
If these prerequisites are met, then the defendant has a “duty” to the plaintiff:
(1) There is a preexisting relationship of some sort between the plaintiff and the defendant
proprietor. See also infra.
(2) There are circumstances that put the defendant proprietor on notice of the risk of harm to
the plaintiff from third parties. See also infra.
Plaintiff–Defendant: Entrusting Oneself to the Care of Another
Dykema v. Gus Macker Enterprises, 492 N.W.2d 472 (Mich. Ct. App. 1992)
The term “duty” has been defined as “essentially a question of whether the relationship between
the actor and the injured person gives rise to any legal obligation on the actor’s part for the benefit
of the injured person”. (Moning v. Alfono, 400 Mich. 425, 438–439 (1977))
The duty to protect is imposed upon the person in control because he is in the best position to
provide a place of safety.
This Court has held that it is necessary to balance
[1] the societal interests involved,
[2] the severity of the risk,
[3] the burden upon the defendant,
[4] the likelihood of occurrence, and
[5] the relationship between the parties.
Other factors which may give rise to a duty include
[1] the forgeability of the harm,
[2] the defendant’s ability to comply with the proposed duty,
[3] the victim’s inability to protect himself from the harm,
[4] the costs of providing protection, and
[5] whether the plaintiff had bestowed some economic benefit on the defendant.
Plaintiff–Victim: Student Suicide & A Counselor
Eisel v. County Board of Education, 569 A.2d 447 (Md. 1991)
The court employed a balancing test (see the foregoing), by which the court found the balance to tip
overwhelmingly in favor of school administrators’ duties to students.
Plaintiff–Perpetrator: Social Host & Drunk Driving
Graff v. Beard, 858 S.W.2d 918 (Tex. 1993)
- First, it is unlikely that a host can be expected to know how much alcohol, if any, a guest has
consumed before the guest arrives on the host’s premises.
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- Second, in many social settings, the total number of guests present may practically inhibit the
host from discovering a guest’s approaching intoxication.
- Third, the condition may be apparent in some people but certainly not in all.
Given
- the ultimate power of guests to control their own alcohol consumption and
- the absence of any legal right of the host to control the guest,
we find the arguments for shifting legal responsibility from the guest to the host, who merely
makes alcohol available at social gatherings, unconvincing. As the common law has long
recognized, the imbibe maintains the ultimate power and thus the obligation to control his own
behavior: to decide to drink or not to drink, to drive or not to drive.
In some cases, however, the plaintiff may have a duty to prevent the perpetrator from causing the harm.
Consider parents and children, caretakers and the unstable, &c.
EMERGENCIES
Always the Reasonable Person
Lyons v. Midnight Sun Transportation, 928 P.2d 1202 (1996)
The sudden emergency doctrine is a rule of law which states that a person confronted with a
sudden and unexpected peril, not resulting from that person's own negligence, is not expected to
exercise the same judgment and prudence the law requires of a person in calmer and more
deliberate moments. The person confronted with the imminent peril must, however, act as a
reasonable person would under the same conditions.
Emergency is “Simply One of the Circumstances”
Myhaver v. Knutson, 942 P.2d 445 (Ariz., 1997)
The emergency doctrine is not an independent rule. It is merely an application of the general
standard of reasonable care; the emergency is simply one of the circumstances faced.
The instruction should be confined to the case in which the emergency is not of the routine sort
produced by the impending accident but arises from event the driver could not be expected to
anticipate.
No Standard of “Extraordinary” Care
Stewart v. Motts, 539 Penn. 596 (1995)
The care required is always reasonable care. The standard never varies, but the care which it is
reasonable to require of the actor varies with the danger involved in his act and is proportionate to
it.
The greater the danger, the greater the care which must be exercised.
CUSTOMS & STANDARDS
If the practice in question does qualify as custom, then the party on whose behalf the evidence to
compliance was admitted is entitled to an instruction expressly permitting the jury to consider the
fact that there was compliance or noncompliance with that custom. Evidence that some others
take the precaution helps to prove that it is reasonable to take it, even if it is not so widespread as
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to be customary. Failing to prove that a practice is a custom may well be more disadvantageous for
a party contending that it followed a practice that does not qualify as a custom.
Industry Safety Codes as Evidence
Elledge v. Richland/Lexington School District Five, 534 S.E.2d 289 (S. Car., 2001)
[A safety] code is not introduced as substantive law, as proof of regulations or absolute standards
having the force of law or scientific truth. It is offered in connection with expert testimony which
identifies it as illustrative evidence of safety practices or rules generally prevailing in the
industry, and as such it provides support for the option of the expert concerning the proper
standard of care. (citing McComish v. DeSoi, 42 N.J. 274, 1964)
Evidence of industry standards, customs, and practices is ‘often highly probative when defining a
standard of care’.
Osborn v. Irwin Memorial Blood Bank, 7 Cal. Rptr. 2d 101 (Ct. App. Cal. 1992)
Custom and negligence are not controlling in cases, unlike ours, where a layperson can infer
negligence by a professional without any expert testimony.
This is a case of professional negligence, however, and we must assess the role of custom and
practice in that context.
The adequacy of a blood bank’s [precautions] is a question of […] fulfillment of a professional
standard of care.
Holding Oneself to a Higher Standard
Wal-Mart v. Wright, 774 N.E.2d 891 (Ind., 2002)
The law has long recognized that failure to follow a party’s precautionary steps or procedures is not
necessarily failure to exercise ordinary care. […] It is axiomatic that in a negligence action ‘[t]he
standard of conduct which the community demands must be external and objective one, rather
than the individual judgment, good or bad, of the particular actor.
A defendant’s belief that it is acting reasonably is no defense if its conduct falls below reasonable
care. Similarly, a defendant’s belief that it should perform at a higher standard than objective
reasonable care is equally irrelevant.
& Enfin: Holding the Industry Liable
The T J Hooper, 60 F.2d 737 (2d. Cir. 1932)
In most cases reasonable prudence is common prudence; but strictly it is never its measure; a
whole calling may have unduly lagged in the adoption of new and available devices. It may never
set its own tests, however persuasive its usages. […] Courts must in the end say what is required;
there are precautions so imperative that even universal disregard will not excuse omission.
Supererogation
ACTS OF GOD AND FATE
God is Liable for His Own Acts
Montgomery v. National Convoy & Trucking, 186 S.C. 167 (1938)
When a defendant pleads the act of God, he must prove that the act of God is the sole proximate
cause of the injury, and to do so, such defendant must of necessity prove that he is without
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negligence which contributed as a proximate cause. This defense creates a separate issue in which
the rule is different, in that a defendant has to prove himself without negligence in order to show
that the act of God is the sole proximate cause.
On the whole case, however, a plaintiff must prove by the preponderance or greater weight of the
evidence that a defendant is negligent in one of the particulars complained of before he can
recover.
As a matter of principle, the common law cares enough about individual liberty that typically it
does not ask people to do more than mind their own business.
Warning: Maybe Necessary, Not Always Sufficient
“It may be negligent to fail to warn or instruct another so that he can take proper precautions for
his own safety. Conversely, defendant’s exercise of reasonable care to give others an adequate
warning of a danger does not necessarily prevent defendant’s conduct (the subject of the warning)
from being negligent.” In other words, reasonable warning may fail to compensate for unreasonable risk.
NOTICE / SUSPICION
Tarasoff v. Regents of University of California, 17 Cal. 3d 425
In certain cases, mental health professionals such as psychiatrists have been held liable in negligence to persons
injured by their patients after the patient has communicated to the psychiatrist an intention to cause such
harm to the third person. The rule in Tarasoff appears to be limited to cases involving a specifically identified
third party whose safety is at risk.
CREATING/ENABLING RISK
A defendant who negligently supplies recreational drugs to a friend in violation of a statute has a duty to a
party with whom the friend shares the drugs.
The distinction is drawn between mere failure to rescue the plaintiff—“nonfeasance”—for which
liability ordinarily is not imposed, and negligently placing the plaintiff in danger—“misfeasance”—
which may give rise to liability for negligent failure to rescue.
Even mere “feasance”, in which an innocent and non-negligent defendant nevertheless
contributes to the arrangement of a situation the circumstances of which occasion harm to the
plaintiff, may render the defendant negligent in failing to compensate for the risk created.
Gratuitous Services
In conducting a rescue or offering other gratuitous services, the defendant is liable for negligence.
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CAUSATION
In Fact
NECESSARY CONDITION: SINE QUA NON
If the finder of fact believes that without the defendant’s negligent conduct the plaintiff’s injury
would not have happened, then the cause-in-fact element of the plaintiff’s case is satisfied.
The cause of the harm must be the negligence itself, not merely some action found collaterally negligent.
Cay v. Louisiana Dept. of Transport’n and Devel’t, 631 So. 2d 393 (La. 1994)
In a negligence action, the plaintiff has the burden of proving negligence and causation by a
preponderance of the evidence. Proof is sufficient to constitute a preponderance when the entirety
of the evidence, both direct and circumstantial, establishes that the fact or causation sought to be
proved is more probable than not.
The plaintiff must present evidence of circumstances surrounding the incident from which the
factfinder may reasonably conclude that the particular defendant’s negligence caused the
plaintiff’s injuries.
Cause-in-fact is usually a “but for” inquiry which tests whether the injury would not have
occurred but for the defendant’s substandard conduct.
SUBSTANTIAL FACTOR
An alternative to the “but-for” test is a test of whether the defendant’s action was a “substantial
factor” in producing the harm.
American Truck Leasing v. Thorne Equipment, 583 A.2d 1242 (Pa. Super. Ct. 1991)
The following considerations are in themselves or in combination with one another important in
determining whether the actor's conduct is a substantial factor in bringing about harm to another:
(a) the number of other factors which contribute in producing the harm and the extent of the
effect which they have in producing it;
(b) whether the actor’s conduct has created a force or series of forces which are in continuous and
active operation up to the time of the harm, or has created a situation harmless unless acted upon
by other forces for which the actor is not responsible;
(c) lapse of time.
Simultaneity & Sequentiality
- Simultaneous causes with both negligent: both liable
- Simultaneous causes with only one negligent: courts split on liability of negligent defendant
- Sequential causes with preemptive causation: only the causer of harm is held liable
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Cause in Part is Cause Sufficient
Brisboy v. Fiberboard Paper Products, 384 N.W.2d 39 (Mich. Ct. App. 1986)
There may be more than one proximate cause of an injury, and thus the mere fact that some other
cause concurs, contributes, or cooperates to produce an injury does not relieve any of the parties
whose negligent conduct was one of the causes of the plaintiff’s harm.
Causes Multiple are Each Cause Sufficient
Kingston v. Chicago & Northwestern Railway, 211 N.W. 913 (Wis. 1927)
Cook v. Minneapolis, St. Paul & Salut Ste. Marie R. Co., 98 Wis. 634, at 642, (1898): Where two
causes, each attributable to the negligence of a responsible person, concur in producing an injury
to another, either of which causes would produce it regardless of the other, … because, whether the
concurrence be intentional, actual, or constructive, each wrongdoer, in effect, adopts the conduct
of his co-actor, and for the further reason that it is impossible to apportion the damage or to say
that either perpetrated any distinct injury that can be separated from the whole. The whole loss
must necessarily be considered and treated as an entirety.
Remark that if one of the sufficient causes had been an Act of God, however, losses would have lay where they
fell—the key was that both fires appeared products of negligence, despite that plaintiff brought action against
only the one known party responsible.
ALTERNATIVE TORTFEASORS
Alternative Causes
Summers v. Tice, 199 P.2d 1 (Cal. 1948)
Alternative liability (Summers v. Tice): shifts the burden onto each defendant to prove he was not the one to
have caused the harm (most courts will limit alternative liability to two defendants, since the probability of
either one having committed the tort is 50%, while with more than two defendants, of course, the a priori
probability on any one of them is lower)
Where a group of persons are on a hunting party, or otherwise engaged in the use of firearms, and
two of them are negligent in firing in the direction of a third person who is injured thereby, both
of those so firing are liable for the injury suffered by the third person, although the negligence of
only one of them could have caused the injury.
The real reason for the rule that each joint tortfeasor is responsible for the whole damage is the
practical unfairness of denying the injured person redress simply because he cannot prove how
much damage each did, when it is certain that between them they did all; let them be the ones to
apportion it among themselves.
Ordinarily, defendants are in a far better position to offer evidence to determine which one
caused the injury.
Failure to Join Alternative Feasors
Burke v. Schaffner, 683 N.E.2d 861 (Ohio Ct. App. 1996)
The point of alternative liability is to “smoke out evidence” that some defendants may hold regarding which of
them is rightly liable. When the plaintiff fails to join the alternative defendants, the burden of proof cannot
shift among the defendants.
The trial court found alternative liability to be inappropriate based upon a narrow interpretation
of [precedent], limiting its application to cases involving multiple defendants, each of whom acted
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tortiously. [… T]here was no other named defendant to whom the burden could or should have
shifted.
CONCERT OF ACTION
This theory sometimes permits a plaintiff who is injured by a defendant’s tortious conduct to
impose liability on someone else in addition to that defendant (see Shinn v. Allen)
Action in the Auxiliary
Courts ask whether the type of intervening act and its consequences were foreseeable when the
defendant acted. Unforeseeable risks that do not support a finding of defendant negligence are
outside the scope of the risk.
For example, human fallibility of healthcare providers means that the risks associated with
receiving medical attention are within the scope of the risk created by the defendant’s negligence.
Shinn v. Allen, 984 S.W.2d 308 (Tex. Ct. App. 1998)
[The Restatement on Acting in Concert] lists five factors that can be relevant to whether the
defendant substantially assisted the wrongdoer. These include:
[1] the nature of the wrongful act
[2] the kind and amount of the assistance
[3] the relation of the defendant and the actor
[4] the presence or absence of the defendant at the occurrence of the wrongful act
[5] the defendant’s state of mind
In Law
PROXIMITY
Cause-in-Fact / Cause-in-Law
Chelcher v. Spider Staging, 892 F. Supp. 710 (D.V.I. 1995)
The first prong of causation plaintiffs must prove is […] cause-in-fact […]. The test is “but for”.
The second prong of the causation element is […] proximate or legal cause […]. See above.
The Universal Basis of Liability
“Proximate” means just that a defendant’s act satisfies whatever policy criteria a jurisdiction uses
to treat a harm a person causes as one the person must pay for, instead of as one that the person
may inflict for free. Usually, the question of proximate cause must go to the jury—only rarely can
the judge rule in either direction as a matter of law.
The proximate cause rule invites the jury to “step back” from mechanical reasoning on
negligence before issuing its final verdict on liability.
A. “Directness”
The “directness” test treats a defendant’s conduct that is a cause-in-fact of a plaintiff’s harm as a
proximate cause if there are no intervening forces between the defendant’s act and the plaintiff’s
harm. This standard is mostly deprecated.
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In Re Polemis, 3 K.B. 560 (Ct. App. 1921)
[Workers doing construction on a ship dropped a board that caused a spark that burned up the
ship. The court decided against the appellant, who contended that the harm was too remote or
improbable to be the subject of an action in negligence. The court upheld the verdict and award
for plaintiff.]
B. “Substantial Factor”
Some jurisdictions, including California, allow “substantial factor” to be an affirmative proof of
negligence. In other words, determination that a negligent act is a substantial factor in a harm is both
necessary and sufficient in California.
The “substantial factor” test treats a defendant’s conduct as a proximate cause of a plaintiff’s harm
if the conduct is important enough, compared to other causes of the harm, to justify liability.
C. “Foreseeability”
The “foreseeability” test treats a cause-in-fact as a proximate cause if the type of accident that
occurred was reasonably foreseeable. One court differentiated general and specific foreseeability:
for duty, one considers whether, in general, conduct like the defendant’s creates a foreseeable risk
of harm, a zone of risk. For proximate cause, foreseeability is concerned with the specific, narrow
factual details of the case rather than the broader zone of risk.
Generally, for proximate causality to obtain, the result must be foreseeable and lie within the risk
(the negligence must relate directly, not coincidentally, to the harm).
Hegyes v. Unjian Enterprises, 286 Cal. Rptr. 85 (Cal. Ct. App. 1992)
While the question of whether one owes a duty to another must be decided on a case by case basis,
very case is governed by the rule of general application that persons are required to use ordinary
care for the protection of those to whom harm can be reasonably foreseen.
Behrendt v. Gulf Underwriters Ins., 768 N.W.2d 568 (Wis. 2009)
Defendant had a duty to exercise ordinary care under the circumstances so that its policy
permitting side jobs did not create an unreasonable risk of injury. Defendant did take precautions by
restricting employee’s side activities.
It was not foreseeable that under defendant’s policy of allowing employees to do side projects, a
non-pressurized tank built as a side job would later be modified and pressurized and, years later,
explode and cause injury[; however,] we reiterate our prior holdings that every person is subject to
a duty to exercise ordinary care in all of his or her activities.
In this case, it is the lack of foreseeable risk that convinces us, as a matter of law, that defendant
cannot be said to have failed to exercise ordinary care with regard to its policy on side jobs
Thompson v. Kaczinski, 774 N.W.2d 829 (Iowa 2009)
The drafters [of the Third Restatement] acknowledge that courts have frequently used
foreseeability in no-duty determinations, but have now explicitly disapproved the practice […] and
limited no-duty rulings to “articulated policy or principle” in order to facilitate more transparent
explanations of the reasons for a no-duty ruling and to protect the traditional function of the jury
as factfinder.
In short, let the jury decide foreseeability.
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D. “Scope of the Risk”
Tied to foreseeability: The “risk standard” imposes liability only for injuries within the scope of the
risk that supported an initial finding of an actor’s negligence.
Tieder v. Little, 502 So. 2d 923 (Fla. Dist. Ct. App. 1987)
It is not necessary, however, that the defendant foresee the exact sequence of events which led to
the accident sued upon; it is only necessary that the general type of accident which has occurred
was within the scope of the danger created by the defendant’s negligence, or, stated differently, it
must be shown that the said general-type accident was a reasonably foreseeable consequence of the
defendant’s negligence.
CHAINING & SUPERSEDING
In multipart sequences of action, we must determine whether the links in the chain merely
intervene or substantially enable (the test is whether the middle actor’s link was foreseeable from
the beginning, even if the middle act is an intentional tort; otherwise, the middle act supersedes
the first).
Factors that break the chain of causal foreseeability are
(1) unforeseeable plaintiffs (Palgraff),
(2) unforeseeable types of harm (again, Palgraff, but courts may differ in application),
(3) unforeseeable extent of harm (thin-skull rule),
(4) unforeseeable manner of harm (the fourth factor, unlike the other three, does not break the
chain of causal foreseeability).
Taylor v. Jackson, 643 A.2d 771 (Comm. Ct. Pa. 1994)
Where it is evident that the influence of the actor’s negligence is still a substantial factor, mere
lapse of time, no matter how long it is, is not sufficient to prevent it from being the legal cause of
the other harm. (Restatement)
Reasonable Anticipation
McClenahan v. Cooley, 806 S.W.2d 767 (Tenn. 1991)
There is no requirement that a cause, to be regarded as the proximate cause of an injury, be the
sole cause, the last act, or the one nearest to the injury, provided it is a substantial factor in
producing the end result.
An intervening act will not exculpate the original wrongdoer unless it appears that the negligent
intervening act could not have been reasonably anticipated.
Intervening Stupidity
Laureano v. Louzoun, 560 N.Y.S.2d 337 (N.Y. App. Div. 1990)
While the defendants’ conduct gave rise to the plaintiff’s attempt to provide a substitute supply of
heat, the act of boiling water was not the direct cause of the injuries. Rather, the intervening act of
banging one pot against the other brought about the injuries sustained by the plaintiff.
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Intervening Tort
Price v. Blaine Kern Artista, 893 P.2d 367 (Nev. 1995)
While it is true that criminal or tortious third-party conduct typically severs the chain of proximate
causation between a plaintiff and a defendant, the chain remains unbroken when the third party’s
intervening intentional act is reasonably foreseeable.
Intervening Negligence
Corbett v. Weisband, 551 A.2d 1059 (Pa. Super. Ct. 1988)
An exception to the general rule that a tortfeasor is responsible for injuries arising from his or her
negligence may be provided by an intervening act, however, if it constitutes a superseding cause.
The fact that an intervening act of a third person is negligent in itself or is done in a negligent
manner does not make it a superseding cause of harm to another which the actor’s negligent
conduct is a substantial factor in bringing about [under certain conditions from the Second
Restatement].
Whether or not the intervening act of a third person is so highly extraordinary as to constitute a
superseding cause is a jury question. [For example, t]he issue is whether the medical malpractice
was “highly extraordinary”, a question about which reasonable minds could differ.
Intervening Malpractice
Weems v. Hy-Vee Food, 526 N.W.2d 571 (Iowa App. 1994)
The rule that a tortfeasor is responsible for injuries which result from his or her negligence is not
absolute. An exception exists when an intervening act turns into a superseding cause.
In order for an intervening act to become a superseding cause, it must not have been a normal
consequence of the original tortfeasor’s acts or must not have been reasonably foreseeable.
An intervening act is reasonably foreseeable, and will not break the causal connection between the
original negligence and the later injury, if the subsequent force or conduct is within the scope of
the original risk.
Generally, medical treatment sought by an injured person is considered a normal consequence
of the tortfeasor’s conduct. […] A defendant will be liable for the adverse results of medical
treatment unless the treatment is extraordinary or the harm is outside the risks incident to the
medical treatment.
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SPECIAL ACTIONS
Res Ipsa Loquitur
CAUSAL SPECIFICS UNKNOWN, OR, EVIDENCE ONLY CIRCUMSTANTIAL
Byrne v. Boadle
A court in the English courts system, established the doctrine when a barrel of wheat fell from unknown cause,
striking a passerby to the latter’s harm.
The Thing Speaks For Itself (and Must Speak for Itself)
- type of injury was usually associated with negligence (in modern Tort law, this factor is foremost)
- in particular, plaintiff has not caused the harm to himself/herself
- negligent party is probably the defendant (as when the defendant had exclusive control of
whatever caused the injury)
- defendant’s access to information about the event was superior to plaintiff’s
- Res ipsa loquitur can serve to “smoke out” evidence that the defendant would otherwise
conceal if the plaintiff had to bear the burden of production regarding specific causation.
Dover Elevator v. Swann, 334 Md. 231 (1994)
In cases which see plaintiffs offering proof of the details of happenings, the plaintiffs forgo
reliance on res ipsa loquitur.
The instant case also does not present a situation where “the principal evidence of the true cause
of the accident” was accessible only to the defendant and “inaccessible to the victim”. […] “All of
the facts with regard to the actual happening of the accident had been developed, and when
developed, they were held insufficient to establish negligence” on the part of Dover. […] The
plaintiff’s expert witness, Donald Moynihan, did purport to furnish a sufficiently complete
explanation of the specific causes of elevator number two’s misleveling, which would preclude
plaintiff’s reliance on res ipsa loquitur.
Common Sense & Last Clear Chance
Shull v. B. F. Goodrich, 477 N.E.2d 924 (Ind. Ct. App. 1985)
A plaintiff relying upon res ipsa loquitur may show that the event or occurrence was more
probably the result of negligence by simply relying upon the basis of common sense and
experience or he may present expert testimony to establish this proposition. […] All that is needed
is evidence from which reasonable men can say that on the whole it is more likely that there was
negligence associated with the cause.
It is not necessary that the defendant be in control of the causative instrumentality at the
moment of injury so long as defendant was the last person in control of the instrumentality under
circumstances permitting an inference of negligence.
Malpractice
In some medical cases, experts testify that the plaintiff’s injury was of type usually associated
with negligence. This kind of testimony necessarily involves some detailed proof about the
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injurious event, but it does not identify specific acts of negligence in the plaintiff’s case. Many
courts allow both this type of expert testimony and the res ipsa loquitur inference.
Defense
Usually, when the plaintiff has produced sufficient circumstantial evidence for a res ipsa loquitur
prima facie case, the defendant shall find the production of contradictory evidence a matter almost
of necessity.
Trespasses
STRICT LIABILITY EVEN ABSENT HARM
“If the trespass is intentional, the tort is complete without proof of any actual harm.”
The tort requires intent merely to enter upon the land, cause the entry, or remain, or reasonable
certainty that the entrance will occur. “Defendant commits a trespass to plaintiff’s chattel when
he intentionally interferes with it, either by physical contact or by dispossession.”
Honest, erroneous, and/or mistaken belief regarding right, title, consent, or privilege is no
defense.
Conversion
“Conversion is an intentional exercise of dominion or control over a chattel which so seriously
interferes with plaintiff’s right to control it that defendant may justly be required to pay plaintiff
its full value. It is a trespass to the chattel which is so serious, aggravated, or of such magnitude as
to justify forcing defendant to purchase it.”
Nuisances
IMPEDING ENJOYMENT OF PROPERTY
Nuisance claims derive from conduct that is intentional, negligent, reckless, or violative of statute
and that impedes upon a possessor’s interest in use and enjoyment of land.
Historically, the tort of trespass applied only to direct and immediate entries, walking on another’s
land, or throwing stones or water onto it. Nuisance applied to indirect or consequential entries,
such as that caused by the seepage of water or chemicals onto the land. In the modern law of
trespass and nuisance, the distinction between the two torts is based on the nature of the interest
affected by the tortfeasor’s conduct. Unlike trespass, nuisance requires consideration of the
substantiality and unreasonableness of the invasion of the other’s interest.
[Some statutes declare specific buildings and activities nuisances or non-nuisances per se.]
Odor as Private Nuisance
Pestey v. Cushman, 788 A.2d 496 (Conn. 2002)
A private nuisance is a nontrespassory invasion of another’s interest in the private use and
enjoyment of land. The law of private nuisance springs from the general principle that it is the
duty of every person to make a reasonable use of his own property so as to occasion no
unnecessary damage or annoyance to his neighbor.
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Determining unreasonableness is essentially a weighing process, involving a comparative
evaluation of conflicting interests. To prove a common-law private nuisance, a plaintiff must prove
that:
(1) there was an invasion of the plaintiff’s use and enjoyment of his or her property;
(2) the defendant’s conduct was the proximate cause of the invasion; and
(3) the invasion was either intentional and unreasonable, or unintentional and the defendant’s
conduct was negligent or reckless.
Under this test, showing unreasonableness is an essential element of a private nuisance cause of
action based on negligence or recklessness.
Charity as Nuisances Both Public And Private
Armory Park v. Episcopal Community Servs., 712 P.2d 914 (Ariz. 1985)
A private nuisance is strictly limited to an interference with a person’s interest in the enjoyment of
real property. A private nuisance is a nontrespassory invasion of another’s interest in the private
use and enjoyment of land.
A public nuisance, to the contrary, is not limited to an interference with the use and enjoyment
of the plaintiff’s land. It encompasses any unreasonable interference with a right common to the
general public.
A nuisance may be simultaneously public and private when a considerable number of people suffer
an interference with their use and enjoyment of land. The torts are not mutually exclusive.
The inquiry in a nuisance claim is not whether the activity allegedly constituting the nuisance is
lawful but whether it is reasonable under the circumstances. A criminal violation is only one
factor among others to be used in determining reasonableness. A public nuisance is an
unreasonable interference with a right common to the general public. Circumstances that may
sustain a holding that an interference with a public right is unreasonable include the following:
(a) Whether the conduct involves a significant interference with the public health, the public
safety, the public peace, the public comfort or the public convenience;
(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation; or
(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting
effect, and, as the actor knows or has reason to know, has a significant effect upon the public
right.
REMEDIES
A plaintiff suing for trespass or nuisance may seek an injunction (by a rule of “property”) or
damages (by a rule of “liability”). The court’s choice between these alternative remedies depends
on a balancing of the equities favoring each party as well as larger public policy issues. For
remedies are available:
(1) Enjoin defendant
(2) Refuse to enjoin defendant
(3) Assess damages to defendant in lieu of injunction
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(4) Enjoin defendant but require plaintiff to pay indemnification
Eminent Domain
Spur v. Webb Development, 494 P.2d 700 (Ariz. 1972)
In determining the question as to whether a lawful occupation is so conducted as to constitute a
nuisance as a matter of fact, the locality and surroundings are of the first importance. A business
which is not per se a public nuisance may become such by being carried on at a place where the
health, comfort, or convenience of a populous neighborhood is affected. What might amount to a
serious nuisance in one locality by reason of the density of the population, or character of the
neighborhood affected, may in another place and under different surroundings be deemed proper
and unobjectionable.
There was no indication in the instant case at the time Spur and its predecessors located in
western Maricopa County that a new city would spring up, full-blown, alongside the feeding
operation and that the developer of that city would ask the court to order Spur to move because of
the new city. Spur is required to move not because of any wrongdoing on the part of Spur, but
because of a proper and legitimate regard of the courts for the rights and interests of the public.
Ongoing Damages
Boomer v. Atlantic Cement Co., 309 N.Y.S.2d 312 (N.Y. 1970)
Where a nuisance is of such a permanent and unabatable character that a single recovery can be
had, including the whole damage past and future resulting therefrom, there can be but one
recovery. […] In the type of continuing and recurrent nuisance permanent damages are
appropriate.
Permanent damages are allowed where the loss recoverable would obviously be small as compared
with the cost of removal of the nuisance.
“Distresses”
ACTIONABILITY OF EMOTIONAL HARM
“When defendant, by extreme and outrageous conduct, intentionally or recklessly causes severe
emotional distress to plaintiff, defendant is subject to liability to plaintiff for that emotional
distress and for any resulting bodily harm.”
“Defendant’s conduct must be extreme, outrageous, intolerable, and not merely insulting,
profane, abusive, annoying, or even threatening. Unless defendant knows of some special
sensitivity of plaintiff, mere verbal abuse, namecalling, rudeness, insolence, and threats to do what
defendant has a legal right to do are generally not actionable, absent circumstances of aggravation.”
“Only severe emotional distress is actionable. Mere unhappiness, humiliation, or mild
despondency for a short time is not sufficient. However, most jurisdictions no longer require that
the mental suffering have a physical manifestation or result in bodily harm.”
“A common fact situation resulting in liability involves an abuse by defendant of some relation or
status which gives him actual or apparent power to damage plaintiff’s interests, where defendant’s
threats go beyond the ordinary demands or means of persuasion and become flagrant abuses of
power in the nature of extortion.”
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“Defendant’s distress-producing conduct directed at a third person is actionable by plaintiff if
defendant intentionally or recklessly causes severe emotional distress to plaintiff by such conduct,
provided either:
(1) plaintiff witnesses defendant’s conduct,
(2) third-party knows of plaintiff’s presence and third-party is a member of plaintiff’s immediate
family; or
(3) plaintiff’s severe emotional distress results in bodily harm.
In compelling cases, the presence requirement may be relaxed.”
Impact Rule
Permits recovery in negligence for pure emotional loss if the defendant’s conduct resulted in some
physical impact on the plaintiff’s body. Some courts require that the emotional distress manifest
itself physically.
Zone of Danger
Under the zone of danger rule the plaintiff could recover for negligently caused emotional loss
even if there was no impact, if the plaintiff was in the “zone” in which physical injury was
threatened, and feared for her own safety.
Dillon Rule (California)
Proximity + visibility + relationship = recoverability in tort for emotional distress
The issue in most of the cases is whether a defendant who negligently risked physical harm to one
party can be held liable for causing emotional harm to someone else. That is a far cry from holding
that there is liability in negligence for risking emotional harm even in the absence of a negligent
risk of physical harm.
Fear of Future Injury
The defendant has negligently exposed the plaintiff to the risk of suffering future injury, such as
cancer.
Assaults
INTENTIONAL, APPREHENDED, IMMINENT
“Assault is an act by defendant, done with the required intent, which arouses in plaintiff a
reasonable apprehension of an imminent battery. Defendant must have acted intending to cause
- a harmful or offensive contact with plaintiff (or another), or
- an imminent apprehension of such a contact.”
“Plaintiff must have been aware of defendant’s threatening act at the time, before it is
terminated. Apprehension is all that is required; plaintiff need not be afraid. If defendant’s assault
is directed against plaintiff, defendant is subject to liability even though plaintiff’s apprehension
is unreasonable.”
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“An assault may occur even when defendant’s act is directed against a third person, or when it is
apparent to plaintiff that defendant intended only an assault, provided plaintiff reasonably
perceives the threat of a battery to plaintiff.”
“The contact must be perceived as imminent. There must be an apparent intent and apparent
present ability to carry out the threat immediately.”
“Mere words, unaccompanied by a physical act, are not an assault. But words may give meaning to
movement. A conditional threat may be an assault, unless defendant is privileged to enforce the
condition.”
In other words, cause of action will lie in assault whenever
(a) the plaintiff intends the harmful or offensive contact or its apprehension and
(b) the plaintiff has the apparent present ability to translate this intent into action and
(c) the defendant so apprehends, regardless of the reasonableness or mistakenness of apprehension.
The defendant’s threat must be (1) immediate, (2) close, and (3) actual.
Imprisonments
TOTALLY CONFINING, CONSCIOUSLY APPREHENDED, INTENTIONALLY THREATENING
- “Total confinement rather than partial confinement is required;
- the plaintiff must have conscious awareness of the confinement; and
- the restraint on the plaintiff’s freedom must be intentional, but physical force is not necessary if
there is a threat of
• force,”
• humiliation, or
• loss of property.
Batteries
CONTACT INTENTIONAL & OFFENSIVE
Constituting the Offense
The point is that the tort of battery protects more than just physical wellbeing; it protects bodily
autonomy as well. The tort protects not only physical security, but also personal autonomy and
dignity. An offensive but not harmful contact is sufficient. Some jurisdictions require dual intent: both
intent to commit the act and intent that it offend.
There can be no battery without the requisite intent on the part of the defendant. But that intent
is not necessarily an intent to harm. The defendant must intend the contact against which the law
protects the plaintiff—to wit, a contact offensive to a reasonable person—but need not have a
malicious intent or even any understanding that what he is doing is wrongful. The defendant must
either desire to bring about the contact or act with substantial certainty that the contact will result.
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“Intent is the desire to cause certain immediate consequences; motive is the actor’s reason for
having that desire. Motive is usually irrelevant on the issue of liability.”
Although the defendant must intend a harmful or offensive contact with another person, the
individual who actually suffers the contact need not be the person whom the defendant intended
to harm or offend. This rule is known as the doctrine of transferred intent.
“For battery, the factfinder must conclude that the defendant desired to contact the plaintiff or
was substantially certain that a contact would occur as a result of the defendant’s act. This intent
test is called a subjective test because it focuses on what the individual defendant desired or knew.
The test for offensiveness requires the factfinder to evaluate a defendant’s conduct in terms of
societal standards and a ‘reasonable sense of dignity’. This offensiveness test is called an objective
test, because it focuses on a general societal consensus rather than on what the individual
defendant desired or knew.”
Incapacity
“Young children may be found capable of intentional torts even though too young to be capable of
negligence.”
“In most jurisdictions, a mentally incompetent or insane person is liable for his intentional torts,
even when incapable of forming a purpose or understanding the consequences of his conduct.”
White v. Muniz, 999 P.2d 814 (2000)
Colorado, in which this case takes place, is a dual-intent jurisdiction.
Colorado law requires a dual intent in an intentional tort, i.e., the jury must conclude that the
defendant both
- intended the contact and
- intended it to be harmful or offensive.
In the context of battery, although a child need not intend the resulting harm, the child must
understand that the contact may be harmful in order to be held liable. […] In the context of
battery, if a child makes the contact, the jury has to examine the objective evidence to determine if
the child actors intended their actions to be offensive or harmful.
A jury can, of course, find a mentally deficient person liable for an intentional tort, but in order to
do so, the jury must find that the actor intended offensive or harmful consequences. As a result,
insanity is not a defense to an intentional tort according to the ordinary use of that term, but is a
characteristic, like infancy, that may make it more difficult to prove the intent element of battery.
With regard to the intent element of the intentional torts of assault and battery, we hold that
regardless of the characteristics of the alleged tortfeasor, a plaintiff must prove that the actor
desired to cause offensive or harmful consequences by his act. The plaintiff need not prove,
however, that the actor intended the harm that actually results.
Once we establish the tort, the defendant will be liable for all resulting harm, even if outside the
scope of intention and foreseeability.
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Negligence / Intention
Polmatier v. Russ, 537 A.2d 468 (Conn. 1988)
All consequences which the actor desires to bring about are intended. Intent is not, however,
limited to consequences which are desired. If the actor knows that the consequences are certain,
or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he
had in fact desired to produce the result.
The first prong is whether the defendant intended the act that produced the injury.
The second prong is that the trial court erred in failing to determine whether the defendant
intended the resulting injury to the decedent.
Andrews v. Peters, 75 N.C. App. 252 (1985)
The intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to
do any harm. Rather it is an intent to bring about a result which will invade the interests of
another in a way that the law forbids. The defendant may be liable although
- intending nothing more than a good-natured practical joke, or
- honestly believing that the act would not injure the plaintiff, or
- even though seeking the plaintiff's own good.
A defendant’s liability extends, as in most other cases of intentional torts, to consequences which
the defendant did not intend, and could not reasonably have foreseen, upon the obvious basis that
it is better for unexpected losses to fall upon the intentional wrongdoer than upon the innocent
victim.
Waters v. Blackshear, 591 N.E.2d 184 (Mass. 1992)
Intentional conduct cannot be negligent conduct and negligent conduct cannot be intentional
conduct.
The intentional placing of the firecracker in [plaintiff’s] sneaker and the intentional lighting of the
firecracker brought about a harmful contact that the defendant intended. The defendant may not
have intended the cause the injuries that [plaintiff] sustained. The defendant may not have
understood the seriousness of his conduct and all the harm that might result from it. These facts
are not significant, however, in determining whether the defendant committed a battery.
Transfer
“Defendant’s intent to commit any one of the original trespass-based torts (assault, battery, false
imprisonment, trespass to land or chattels) automatically supplies the intent for any of the other
four. It also transfers from the intended victim to the plaintiff, defendant’s actual but unintended
victim.” The original action must, however, have proved actually tortious if completed per
intent.
Smoking
Leichtman v. WLW Jacor Communications, 92 Ohio App. 3d 232 (1994)
An actor is subject to liability to another for battery if he acts intending to cause a harmful or
offensive contact with the person of the other, and a harmful contact with the person of the other
directly or indirectly results; or an offensive contact with the person of the other directly or
indirectly results. In determining if a person is liable for a battery, the Ohio Supreme Court has
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adopted the rule that contact which is offensive to a reasonable sense of personal dignity is
offensive contact. It has defined “offensive” to mean “disagreeable or nauseating or painful
because of outrage to taste and sensibilities or affronting insultingness”. Furthermore, tobacco
smoke, as “particulate matter”, has the physical properties capable of making contact.
Animals
DEGREES OF STRICTNESS
An owner knowing his animal to be violent is subject to strict liability for harms the animal causes.
Under the second Restatement, the defendant may not defend on grounds of contributory
negligence.
Dangerousness & Knowledge Thereof
The common-parlance rule is, “The court allows the dog his first bite,” which we take to mean just
that the first bite serves as notification to the owner that the animal is vicious. Of course, the
standard is really just that the owner must know the animal is dangerous—the first bite will be the
liability of an owner who knows of the dangers the animal poses.
Clark v. Brings, 169 N.W.2d 407 (Minn. 1969)
Under the common law “scienter action” for an injury inflicted by an animal, a cat, though it may
be kept as a house pet, is a domestic animal, and a plaintiff must prove both the animal’s
dangerousness and its owner’s knowledge of the fact before he can recover.
Byram v. Main, 523 A.2d 1387 (Me. 1987)
Three classes of cases in which the owners of animals are liable for harm done by them to others
are as follows:
1. The owner of wild beasts, or beasts that are in their nature vicious, is, under all circumstances,
liable for injuries done by them.
2. If domestic animals, such as oxen and horses, injure any one, if they are rightfully in the place
where they do the mischief, the owner of such animals is not liable for such injury, unless he
knew that they were accustomed to do mischief.
3. The owner of domestic animals, if they are wrongfully in the place where they do any mischief,
is liable for it, though he had no notice that they had been accustomed to do so before.
An owner of a domestic animal not known to be abnormally dangerous is strictly liable only for
harms caused by that animal while trespassing; if the animal causes harm in a public place, no
liability is imposed upon the owner without a finding that the owner was at fault.
Except for animal trespass, one who possesses or harbors a domestic animal that he does not know
or have reason to know to be abnormally dangerous, is subject to liability for harm done if, but
only if,
(a) he intentionally causes the animal to do the harm, or
(b) he is negligent in failing to prevent the harm.
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Hazards & Activities
DETERMINING LIABILITY
Unusual Undertakings & Abnormal Hazards
Clark-Aiken Co. v. Cromwell-Wright Co., 367 Mass. 70 (1975)
[Note that the question of whether an activity qualifies as “ultrahazardous” is a question ONLY of
law, ONLY for the judge.]
Where a declaration in tort alleged that the failure of the defendant’s dam caused the plaintiff’s
land to flood and sought recovery for damages, not for negligence, but on the theory of strict
liability, a demurrer should not have been sustained as strict liability is available as a basis of
liability where the declaration could properly be viewed as portraying the plaintiff’s undertakings
as unusual or of such a dangerous nature that they must be performed at the sole risk of the
perpetrator.
One who carries on an abnormally dangerous activity is subject to liability for harm resulting
from the activity, although he has exercised the utmost care to prevent such harm. The factors to
be considered in determining whether the activity in question is to be considered “abnormally
dangerous” are
(a) whether the activity involves a high degree of risk of harm to the person, land or chattels of
others;
(b) whether the gravity of the harm which may result from it is likely to be great;
(c) whether the risk cannot be eliminated by the exercise of reasonable care;
(d) whether the activity is not a matter of common usage;
(e) whether the activity is inappropriate to the place where it is carried on; and
(f) the value of the activity to the community.
[The factors are merely factors—they constitute no precise formula.]
In general, abnormal dangers arise from activities which are in themselves unusual, or from
unusual risks created by more usual activities under particular circumstances. The essential
question is whether the risk created is so unusual, either because of its magnitude or because of
the circumstances surrounding it, as to justify the imposition of strict liability for the harm which
results from it, even though it is carried on with all reasonable care.
Klein v. Pyrodyne, 117 Wash. 2d 1 (1991)
[See also the six-part test, supra.]
Policy factors weighing in favor of imposing strict liability for damages caused by nonculpable but
abnormally dangerous activity include:
(1) allocating the loss to the party which conducts the activity rather than to an innocent party
which suffers a loss as the result of the activity and
(2) the severity of any problems of proof that the damaged party would encounter if another
standard of liability were applied.
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Infractions
RELEVANCE A PRIORI
Some states refuse to recognize a statutory violation when it involves a statute that fails to provide a
clear-cut statement of the conduct it requires: “Proving a violation of a statute imposing such a
standard of care usually requires proof that the party charged with the violation has failed to
exercise ordinary care.”
Many courts decline to treat violation of a licensing statute by a driver as relevant to determining
fault, sometimes on a theory that the lack of a license has no causal relationship to the harm.
Thomas v. McDonald, 667 So.2d 594 (Miss. 1995)
Where there is a statute, the statute will be the controlling law for the parties’ action or failure to
act. Violations of statutes generally constitute negligence per se. The plaintiff must show
[a] that he is a member of the class that the statute was designed to protect and
[b] that the harm he suffered was the type of harm which the statute was intended to prevent.
VARIETIES OF APPLICABILITY
Statue violation may, in summary, constitute
- some evidence [of something unspecified a priori] to be submitted to the jury [without specific
instruction regarding duty and breach]
- prima-facie evidence of duty and breach, [in some jurisdictions] entitling to reach the jury on
issues of duty and breach
- negligence per se, constituting conclusive evidence on the issues of an actor’s duty and breach
[different from jurisdictions finding only a prima-facie case, in which statutory violation does not
require a finding of negligence]
- prima-facie evidence or negligence per se, allowing for excuse, which itself generally stands on
the same basis for jury evaluation as does the original violation of the statute
- strict liability
Apart from Strict Liability: A Causal Connection
In cases other than strict liability, even when violation of a statute may support a finding of
unreasonable conduct, showing a causal connection between that conduct and a person’s harm
may be a separate question: a plaintiff must show that he is a member of the class that the statute
was designed to protect and that the harm he suffered was the type of harm which the statute was
intended to prevent.
Establishing “Negligence Per Se”
Osborne v. McMasters, Minnesota, 1889
Introduced the notion of negligence per se—the jury’s function is to determine whether a violation occurred,
different from the usual jury function of analyzing whether an actor’s conduct was reasonable.
In jurisdictions holding the doctrine of negligence per se, the violation of a statute resulting in a harm (the
statute was to prevent) to a party (the statute was to protect) constitutes negligence which, by law, begets
damages.
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Martin v. Herzog, 126 N.E. 814 (N.Y., 1920)
To omit, willfully or heedlessly, the safeguards prescribed by law for the benefit of another that he
may be preserved in life or limb, is to fall short of the standard of diligence to which those who
live in organized society are under a duty to conform.
We think the unexcused omission of the statutory signals is more than some evidence of
negligence. It is negligence in itself.
We must be on our guard, however, against confusing the question of negligence with that of the
causal connection between the negligence and the injury[: here, t]o say that conduct is negligence
is not to say that it is always contributory negligence.
Negligence Per Se / Strict Liability
Sikora v. Wenzel, 727 N.E.2d 1277 (Ohio, 2000)
Negligence per se and strict liability, however, are not synonyms. Courts view the evidentiary value
of the violation of statutes imposed for public safety in three ways:
- as creating strict liability,
Where a statute is interpreted as imposing strict liability, the defendant will be deemed liable per
se—that is, no defenses or excuses, including lack of notice, are applicable.
- as giving rise to negligence per se, or
Where a statute sets forth “a positive and definite standard of care … whereby a jury may
determine whether there has been a violation thereof by finding a single issue of fact”, a violation
of that statute constitutes negligence per se.
- as simply evidence of negligence.
Where a statute contains a general, abstract description of a duty, a plaintiff proving that the
defendant violated the statute must nevertheless prove each of the elements of negligence in order
to prevail.
Wawanesa Mutual Insurance v. Matlock, 60 Cal. App. 4th 583 (1997)
The doctrine of negligence per se does not apply even though a statute has been violated if
- the plaintiff was not in the class of persons designed to be protected or
- the type of harm which occurred was not the one which the statute was designed to prevent.
Just because a statute has been violated does not mean that the violator is necessarily liable for any
damage that might be ultimately traced back to the violation.
EXCUSE
Because the doctrine can have so much power, courts have given significant attention to defining
“unexcused” and to considering how to treat excuses when they are offered. Some courts have
required excuses deflecting liability to fit narrowly defined categories different from general proof
of reasonable conduct.
- incapacity (e.g. a minor unable to comply with the usual standard of care)
- ignorance (e.g. a driver unaware that his taillight has failed)
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- impossibility (e.g. a blizzard prevents a railroad from keeping its fences free from snow)
- emergency (e.g. a driver swerves to avoid a child in the street)
- inefficiency (e.g. a pedestrian walks with back to traffic due to unusually heavy traffic going the
other way)
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PRODUCTS
Tort in Commerce
GETTING COMPENSATION
Deep-Pocket Theory
…makes sense to place liability on the wealthier party, who has less need for the money at stake or
who gives less value to each dollar and so suffers a lesser subjective loss than the poorer plaintiff.
Risk-Spreading Theory
…makes sense to distribute the loss as widely as possible, so that many individuals a small loss
rather than one victim suffering a large loss.
Exclusion of Economic Losses
Manufacturers are liable not in tort but in contract for economic losses arising from products.
WARRANTY: EXPRESS & IMPLIED
Unwaivable Warranty of Merchantability
The Uniform Sales Act provided a universal warranty of “merchantability” in every contract for
the sale of goods. To be merchantable, goods must be of fair average quality; unmerchantable
goods became a strict liability, regardless of negligence. Food is an example of a good for which
impurities (unmerchantability) are a strict liability.
With Escola v. Cocoa Cola Bottling of Fresno, the Supreme Court of California was strictly liable
for product defects on grounds of deterrence from harm, availability of insurance, and access to
evidence. The opinion established that the implied warranty of merchantability may never be
subject to waiver.
Defect: Manufacture
In cases of manufacture defect, all vendors—even those downstream—are liable.
Liability: Straightforward & Strict
A product contains a manufacturing defect when, as produced, it does not conform to the
manufacturer’s own design. The plaintiff must prove
(1) that the product departed from the manufacturer’s design and
(2) that this departure caused the plaintiff harm.
Denny v. Ford Motor, 639 N.Y.S.2d 250 (N.Y. 1995)
In strict products liability cases involving manufacturing defects, the harm arises from the
product’s failure to perform in the intended manner due to some flaw in the fabrication process.
In the latter class of cases, the flaw alone is a sufficient basis to hold the manufacturer liable
without regard to fault.
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Defect: Design
Denny v. Ford Motor, 639 N.Y.S.2d 250 (N.Y. 1995)
In design defect cases, the alleged product flaw arises from an intentional decision by the
manufacturer to configure the product in a particular way.
It is the negligence-like risk/benefit component of the defect element that differentiates […]
products liability claims from Uniform Commercial Code (UCC)-based breach of implied
warranty claims in cases involving design defects.
CONSUMER EXPECTATIONS
Ordinary Knowledge
The product sold must be dangerous to an extent beyond that which would be contemplated by
the ordinary consumer who purchases it with the ordinary knowledge common to the community
as to its characteristic.
Denny v. Ford Motor, 639 N.Y.S.2d 250 (N.Y. 1995)
[T]he UCC’s concept of a “defective” product requires an inquiry only into whether the product
in question was fit for the ordinary purposes for which such goods are used. The […] inquiry
focuses on the expectations for the performance of the product when used in the customary,
usual and reasonably foreseeable manners.
Strict Liability: Product Condition
Malcolm v. Evenflo, 217 P.3d 514 (Mont. 2009)
The focus in [consumer-expectations] design defect cases shines on the condition of the product,
rather than the manufacturer’s conduct or knowledge. The strict duty mandated by the theory of
strict liability is warranted even though in some situations it may result in liability being imposed
upon careful manufacturers.
[Under the law of the State, a] person who sells a product in a defective condition is liable for the
physical harm caused by the defective product. A product is defective if it is dangerous to an extent
beyond that anticipated by the ordinary user.
Strict liability recognizes that a seller is in the best position to insure product safety.
Design defect strict liability may be imposed even if a seller has exercised all possible care, and
even though a product was faultlessly manufactured.
Evidence of a manufacturer’s good faith effort to comply with all government regulations is
evidence of conduct inconsistent with the mental state requisite for punitive damages.
Defense of Regulatory Standards
In some States, compliance with relevant safety regulations may constitute a complete defense to
an attack based in consumer expectations.
Morton v. Owens–Corning Fiberglas, 33 Cal. App. 4th 1529 (1995)
Evidence as to what the scientific community knew about the dangers and when they knew it is
not relevant to show what the ordinary consumer reasonably expected in terms of safety.
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RISK–UTILITY
Weighing risks and utilities involves looking to the product per se and neither to the
manufacturer’s intent nor to the consumer’s expectations. This test is one of negligence. For this
reason, consideration of risks often entails consideration of foreseeability (by plaintiff or
defendant, in affirmative or negative, depending on jurisdiction).
Prominent Hazards & Excessive Preventable Risk
Consider that a rigorous application of the consumer expectation test would protect many very
dangerous products from being characterized as defective so long as their dangers were apparent.
This result might encourage manufacturers to design products with obvious and prominent
hazards. Courts have avoided this result by focusing on the “excessive preventable risk” language.
Morton v. Owens–Corning Fiberglas, 33 Cal. App. 4th 1529 (1995)
A product may be found defective in design, even if it satisfies ordinary consumer expectations, if
through hindsight the jury determines that the product’s design embodies ‘excessive preventable
danger’, or, in other words, if the jury finds that the risk of danger inherent in the challenged
design outweighs the benefits of such design.
But the Court applies the test of consumer expectations, supra.
Denny v. Ford Motor, 639 N.Y.S.2d 250 (N.Y. 1995)
[The] concept of a product that is not “reasonably safe” requires a weighing of the product’s
dangers against its over-all advantages[.]
Constructive Knowledge & “A Better Alternative?”
We test not the manufacturer’s actual knowledge of alternatives but the constructive knowledge
thereof, and sometimes even in scientific hindsight.
Proof of a feasible alternative to a defendant’s design is a factor recognized in the risk–utility test
used by many states. A particularly controversial element in Restatement § 2 requires that a
plaintiff introduce proof of a feasible alternative instead of merely permitting that type of proof.
[Abraham criticizes this test, by comparison with the test of consumer expectations, on pages 205
and 206.]
General Motors v. Sanchez, 997 S.W.2d 584 (Tex. 1999)
A design defect renders a product unreasonably dangerous as designed, taking into consideration
the utility of the product and the risk involved in its use. A plaintiff must prove that there is a safer
alternative design in order to recover under a design defect theory. An alternative design must
substantially reduce the risk of injury and be both economically and technologically feasible.
A design need only prove capable of being developed. Qualified expert testimony on the issue
suffices, even though the expert has produced no prototype.
Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a
failure to discover the defect in the product, or to guard against the possibility of its existence.
WARNING
An adequate warning—one addressing foreseeable risks without excessive label clutter—can factor
into both design expectations. Where a jury finds a superior design by analysis of risk and utility,
however, merely affixing a warning label may not excuse the defendant.
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To show that failure to affix a warning constitutes a defect in design, the plaintiff must show that
the reasonable warning label, if properly affixed, would have changed the plaintiff’s course of
action away from the harmful event.
Absent such a showing, all venders—even those downstream—can be subject to strict liability.
Warner Fruehauf Trailer v. Boston, 654 A.2d 1272 (1995)
The plaintiff must show the risks, costs and benefits of the product in question and alternative
designs, and that the magnitude of the danger from the product outweighed the costs of avoiding
the danger.
A manufacturer or distributor is entitled to defend a strict liability claim based on defective design
by showing that a warning accompanied the product that reduced its dangers. However, while
the adequacy of a warning is relevant and may even tip the balance in the decision whether a
product is or is not defectively designed, it is not the sole consideration.
A warning is only one of a product’s many design attributes that weigh in the balance of dangers
against utility, but could be a pivotal design attribute in a particular case.
Special Defenses
Contributory Negligence / Risk Assumption
General Motors v. Sanchez, 997 S.W.2d 584 (Tex. 1999)
[T]he form of contributory negligence which consists in voluntarily and unreasonably proceeding
to encounter a known danger, and commonly passes under the name of assumption of risk, is a
defense under Restatement […] as in other cases of strict liability. If the user or consumer discovers
the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the
product and is injured by it, he is barred from recovery.
Even if risk assumption is reasonable, still then may it reduce defendant liability. The difference between
contributory negligence and risk assumption lies, of course, the mental state of the plaintiff—risk assumption
requires, beyond negligence, prior knowledge of the risk of harm.
Product Misuse
When a consumer misuses a product in an unforeseeable way, the defendant may raise that
misuse as a defense—liability for unforeseeable misuse should fall upon the injured party.
State-of-the-Art / Limits of Science
Jurisdictions render variable treatment concerning defendants’ ability to know of dangers.
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PROFESSIONS
Malpractice
DEVIATION FROM BEST PRACTICE
Majority Judgment
In contrast to the rules that apply in ordinary negligence cases, different rules govern the conduct
of professionals, including physicians, attorneys, and accountants. In cases involving professionals,
the rule is that compliance with custom insulates the defendant from liability, and failure to
comply with custom is malpractice.
The principal reason that evidence of custom is relevant is of course that it reflects the judgment
of a large number of those who engage in a risky activity about the best way to conduct the
activity.
Respectable Minority
In many jurisdictions, a “two schools of thought” or “respectable minority” rule obtains, under
which noncompliance with a standard rejected by much of the profession is not malpractice, as
long as the defendant complied with a school of thought or practice followed by a respectable
minority of practitioners.
Expert Testimony
Experts from each side may testify as to what they would have done in the defendant’s position.
The rule of “strict locality” used to stipulate that an expert witness would have to share the precise
specialty of the defendant; however, since practitioners of a single trade tended to band together in
a sort of professional cabal, that rule has fallen out of favor.
Finding the Fact
If the practice in question does qualify as a custom, then the party on whose behalf the evidence
of compliance or noncompliance was admitted is entitled to an instruction expressly permitting
the jury to consider the fact that there was compliance or noncompliance with that custom.
Evidence that some others take the precaution helps to prove that it is reasonable to take it, even if
it is not so widespread as to be customary.
Holding the Industry Liable
One of the reasons for admitting evidence of compliance with custom is to inform the jury that, if
it finds the party negligent, it is in effect finding an entire industry or community that follows the
custom to be negligent.
Negligence
FAILURE TO OBTAIN INFORMED CONSENT
“Informed Consent”
Informed consent protects the patient’s right to determine whether to take the risks associated
with any given form of medical treatment.
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The cause of action for failure to obtain informed consent would involve a finding of negligence;
this cause is distinct from malpractice. To illustrate, a defendant may be found liable for failing to
obtain informed consent for a procedure if the procedure results in harm to the patient and the
patient would have not undergone the procedure if properly informed, even if the procedure is
not otherwise malpractice by the test of professional custom.
Reasonableness Standards: Patient & Practitioner
Reasonable-patient and reasonable-physician are standards for judging whether a practitioner
obtained informed consent; the latter may encourage professional cabals. The two, however, seem
to converge in practice, since the reasonable physician wants to provide whatever information the
reasonable patient may wish to have.
Largey v. Rothman, 110 N.J. 204 (1988)
The strongest consideration that influences our decision in favor of the ‘prudent patient’ standard
lies in the notion that the physician’s duty of disclosure ‘arises from phenomena apart from
medical custom and practice’: the patient’s right of self-determination.
A risk would be deemed ‘material’ when a reasonable patient in what the physician knows or
should know to be the patient’s position, would be ‘likely to attach significance to the risk or
cluster of risks’ in deciding whether to forgo the proposed therapy or to submit to it.
Patient Idiosyncrasies
A patient with unusual interests or concerns is entitled to have those concerns addressed by his or
her practitioner, provided that the former informs the latter of said particularities.
- Under what might be called the fully-objective standard, the test is what an objectively reasonable
person without the plaintiff’s idiosyncrasies and particular preferences would have done if she had
been appropriately informed. This approach makes it unnecessary for the jury to sift through the
plaintiff’s contentions about her idiosyncrasies.
- Under what might be called the semi-objective standard, the test is whether a reasonable person
in the plaintiff’s position would have declined treatment if the requisite information on risks and
benefits had been disclosed. The plaintiff is permitted to testify, and her idiosyncrasies and
preferences are relevant, but her testimony is simply one piece of evidence for the jury about what
she would have done had her informed consent been properly sought.
BURDENS OF PROOF
- Under reasonable patient, the jury may find facts without the plaintiff bearing any burden of
production.
- Under reasonable physician, the plaintiff bears the burden of producing expert testimony as to
the thinking of a reasonable physician.
Causation
The plaintiff must prove that “but for” the defendant’s failure to disclose the requisite
information, the plaintiff would not have suffered the harm resulting from the treatment
provided; the plaintiff must prove that he or she would not have undergone the procedure if
properly informed.
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In determining causation (what the patient would have done if properly informed), the jury can
assess either what the patient testifies or what a prudent person would have done in the patient’s
position, given all the information necessary to obtain informed consent.
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DEFENSES
Due Process
LACK OF NOTICE
Sikora v. Wenzel, 727 N.E.2d 1277 (Ohio, 2000)
Lack of notice is among the legal excuses recognized by other jurisdictions and set forth in the
Restatement (Second) of Torts.
Plaintiff Negligence
CONTRIBUTORY NEGLIGENCE (GENERALLY DEPRECATED)
Contributory negligence bars all recovery by the plaintiff, except (in many jurisdictions) when the
plaintiff was negligent in violation of such a statute as the legislature designed specifically to
protect plaintiffs against that negligence.
In some jurisdictions, contributory negligence counterbalances strict liability.
Schroyer v. McNeal, 592 A.2d 1119 (Md. 1991)
Contributory negligence, of course, means negligence which contributes to cause a particular
accident which occurs, while assumption of risk of accident means voluntary incurring that of an
accident which may not occur, and which the person assuming the risk may be careful to avoid
after starting.
Wright v. Norfolk & Western Railway, 427 S.E.2d 724 (Va. 1993)
A truck driver who had driven onto a railroad crossing with his windows up, climatization and radio on,
without stopping to check for a train could recover nothing from the railroad for injuries resulting from a
collision.
Comparing Blame
The doctrine of “greater degree of blame” ensured that contributorily negligent plaintiffs would
not lose their ability to sue in response to reckless or intentional torts.
Coleman v. Hines, 515 S.E.2d 57 (N.C. Ct. App. 1999)
Both driver and passenger knew the risk of riding in a car driven by an intoxicated person.
The court also found that to the extent that the evidence established willful and wanton negligence on the part
of defendant, it also established a similarly high degree of contributory negligence on the part of decedent.
Accordingly, the court held as a matter of law that under the facts of this case, the actions of decedent rose to
the same level of negligence as that of the driver.
COMPARATIVE NEGLIGENCE
Pure comparative negligence permits plaintiffs to recover provided any negligence—however
infinitesimal—on the part of the defendant. By contrast, modified comparative negligence permits
plaintiffs to recover only when the defendant is either mostly negligent, overall, or at least more
negligent than the plaintiff.
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Liability—Joint/Several—& Its Rules
McIntyre v. Balentine introduced comparative negligence to Tennessee in 1992.
In cases of comparative negligence implicating multiple defendants, the Court can compare the
plaintiff’s negligence to that of the defendants either jointly (unit rule) or severally (Wisconsin
rule); courts have favored the former. As a separate matter, the court may hold the defendants
severally (each for own share) and/or jointly (each for all) liable.
Jensen v. Intermountain Health Care 679 P.2d 903 (Utah 1984)
Under […] the “unit” rule, the negligence of all defendants is taken together in making the
comparison; under the “Wisconsin” rule, the negligence of each defendant is compared against
the plaintiff’s negligence to determine whether a particular defendant is liable.
In this case, the court chose “unit” over “Wisconsin”.
Joint tortfeasors are liable for contribution without regard to their degree of negligence unless
there is such a disproportion of fault that it would be inequitable for there to be an equal
distribution by contribution among them of their common liability.
If the trial court makes a finding that contribution by equal distribution among the joint
tortfeasors (all of them) would be inequitable, then the relative degrees of fault of the joint
tortfeasors shall be considered in determining their pro rata shares; but that is solely for the
purpose of determining their rights of contribution among themselves, each remaining severally
liable to the injured person for the whole injury as at common law.
Comparative Negligence Modified
Davenport v. Cotton Hope Plantation, 508 S.E.2d 565 (S.C. 1998)
The court concluded that the absolute defense of assumption of risk was inconsistent with South Carolina’s
comparative negligence system.
A plaintiff is not barred from recovery by the doctrine of assumption of risk unless the degree of
fault arising therefrom is greater than the negligence of the defendant.
The court concluded that a plaintiff’s conduct in assuming a risk could be compared with the defendant’s
negligence and that a plaintiff’s conduct in assuming the risk could be made a part of the comparative fault
system. The court stated that even if the injured party assumed the risk of injury, he would not be barred from
recovery unless his negligence exceeded the defendant’s negligence. Therefore, a plaintiff was not barred from
recovery by the doctrine of assumption of risk unless the degree of fault arising therefrom was greater than the
negligence of the defendant.
COUNTER-REBUTTAL: LAST CLEAR CHANCE
“Last clear chance” is the doctrine holding that, even if the plaintiff contributed negligence, still
then if the defendant was the individual upon whom fell the last clear chance to prevent the
incident harm to the plaintiff, then the contributory negligence will not bar the plaintiff from
recovering damages.
The last clear chance doctrine is an all or nothing doctrine because, if the plaintiff asserts it
successfully, the plaintiff is allowed full recovery despite any contributory negligence.
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Under Comparative Negligence
Upon adoption of comparative negligence rules, many courts have formally abandoned the last
clear chance doctrine because comparative negligence is not an all or nothing doctrine and does
not need special rules designed to ameliorate the harshness of contributory negligence.
Risk Assumption
HOW & WHEN
- expressly or contractually (though public policy may nullify the contract)
- whenever the defendant had no duty of care (primary implied assumption of risk)
- by acting consciously or carelessly in a way that is unreasonable, reckless, or negligent
(contributory negligence; secondary unqualified implied assumption of risk)
- by choosing to face a risk (secondary implied assumption of risk) for some defensible reason
(fireman’s rule may still bar recovery—sometimes, the plaintiff is simply in a better position to
decide whether to risk harm from the defendant)
Some jurisdictions treat secondary unqualified implied assumption of risk as a partial or complete
defense; others treat it as comparative or contributory negligence. Some jurisdictions find that
secondary reasonable assumption of risk is a complete bar to recovery; others award plaintiffs full
recovery in the same circumstances.
Risk Assumption / Contributory Negligence
Schroyer v. McNeal, 592 A.2d 1119 (Md. 1991)
It is the willingness of the plaintiff to take an informed chance that distinguishes assumption of
the risk from contributory negligence. [S]he intentionally exposed herself to a known risk.
In reviewing the lower court’s order upholding a $50,000 jury verdict against the owners, the court found that
the injured party was barred from recovery by the doctrine of assumption of the risk. The court ruled that such
was the case since it was clear on the record that the injured party, fully aware of the ice and snow, voluntarily
chose to walk across the parking lot, thus indicating her willingness to relieve the owners of responsibility for
her safety.
Risk Assumption in Comparative Negligence
Davenport v. Cotton Hope Plantation, 508 S.E.2d 565 (S.C. 1998)
See above—risk assumption can comport with comparative negligence.
UNENFORCEABILITY OF WAIVER
Express Assumption but Wanton Defendant
Downing v. United Auto Racing, 570 N.E.2d 828 (Ill. App. Ct. 1991)
The court held that there was sufficient evidence to prove that racing association’s conduct was willful and
wanton. Racing association also contended that the trial court erred in denying its motion to pursue their
affirmative defense that they were not liable because injured party executed a release. The court held that an
express assumption of the risk was not a bar for injuries due to willful and wanton acts of a defendant.
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Protecting Oneself from One’s Own Negligence & Waiver Too General
Turnbough v. Ladner, 754 So. 2d 467 (Miss. 1999)
The law does not look with favor on contracts intended to exculpate a party from the liability of
his or her own negligence although, with some exceptions, they are enforceable. However, such
agreements are subject to close judicial scrutiny and are not upheld unless the intention of the
parties is expressed in clear and unmistakable language.
The wording of an exculpatory agreement should express as clearly and precisely as possible the
extent to which a party intends to be absolved from liability. Failing that, courts do not sanction
broad, general waiver of negligence provisions, and strictly construe them against the party
asserting them as a defense.
The court found that contracts intending to release a party from liability for negligence were to be strictly
construed against the party asserting the release as a defense, and such releases would not be enforced unless
the limitation was fairly negotiated and understood by both parties.
Public Policy
Wagenblast v. Odessa School District, 758 P.2d 968 (Wash. 1988)
There are instances where public policy reasons for preserving an obligation of care owed by one
person to another outweigh our traditional regard for the freedom to contract.
1. The agreement concerns an endeavor of a type generally thought suitable for public regulation.
2. The party seeking exculpation is engaged in performing a service of great importance to the
public, which is often a matter of practical necessity for some members of the public.
3. Such party holds itself out as willing to perform this service for any member of the public who
seeks it, or at least for any member coming within certain established standards.
4. Because of the essential nature of the service, in the economic setting of the transaction, the
party invoking exculpation possesses a decisive advantage of bargaining strength against any
member of the public who seeks the services.
5. In exercising a superior bargaining power, the party confronts the public with a standardized
adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional
reasonable fees and obtain protection against negligence.
6. The person or property of members of the public seeking such services must be placed under the
control of the furnisher of the services, subject to the risk of carelessness on the part of the
furnisher, its employees or agents.
Damages Mitigation
PROTECTING BOTH SIDES
Medical Treatment & Failure to Minimize Damages
Klanseck v. Anderson Sales & Service, 393 N.W.2d 356 (Mich. 1986)
An injured party has a duty to exercise reasonable care to minimize damages, including obtaining
proper medical or surgical treatment. […T]here was evidence that the buyer did not follow the
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recommendations of his doctor, and thus the trial court’s instruction on mitigation of damages
was proper.
Precaution & Seat Belts
Law v. Superior Court, 755 P.2d 1135 (Ariz. 1988)
Assuming this is ordinarily true, we believe the common law conceptualization of the doctrine of
avoidable consequences has been modified by our comparative negligence statute, which applies
that doctrine to pre-accident conduct. [A]s far as the calculation of damages is concerned, the
comparative negligence statutes apply the doctrine of avoidable consequences to pre-accident
conduct. Under the comparative fault statute, each person is under an obligation to act reasonably
to minimize foreseeable injuries and damages. If a person chooses not to use an available, simple
safety device, that person may be at “fault”.
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DAMAGES
Compensation
SPECIFIC/GENERAL
Gunn v. Robertson, 801 So. 2d 555 (La. Ct. App. 2001)
A tortfeasor is required to pay for medical treatment of his victim, even over treatment or
unnecessary treatment, unless such treatment was incurred by the victim in bad faith. A trier of
fact is in error for failing to award the full amount of medical expenses proven by the victim.
[Future medical costs:] Plaintiff must prove that these expenses will be necessary and inevitable.
Future medical expenses must be established with some degree of certainty and must be supported
with medical testimony and estimation of probable costs.
[Lost wages & earnings:] Plaintiff must prove the length of time missed from work due to the tort
and must prove past lost earnings. Past lost earnings are susceptible of mathematical calculation
from evidence offered at trial.
[Reduced income capacity:] Plaintiff must present medical evidence that indicates with reasonable
certainty that a residual disability causally related to the accident exists. Future loss of earnings,
which are inherently speculative, must be proven with a reasonable degree of certainty, and purely
conjectural or uncertain future loss of earnings will not be allowed.
[Loss of consortium:] A claim for loss of consortium encompasses seven elements:
- loss of love and affection;
- loss of society and companionship;
- impairment of sexual relations;
- loss of performance of material services; loss of financial support;
- loss of aid and assistance; and
- loss of felicity.
As with general damages, the trier of fact is given much discretion in its deliberations concerning
awards for loss of consortium.
Recapitulation of Damages
Whereas specific damages compensate for specific harms, general damages compensate for
- pain, suffering,
- inconvenience,
- mental anguish,
- disability, or disfigurement
incurred by the injured party,
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emotional distress, loss of society and companionship, loss of consortium, injury to reputation and
humiliation, and destruction of the parent–child relationship.
The court awards once for both present and future losses, discounting future awards to present
values. Inchoate and future losses—those that have not occurred—are not compensable, except the
costs of medical monitoring when the defendant has tortiously exposed the plaintiff or a group of
plaintiffs to the risk of suffering future injury.
Interests of Others: Wrongful Death & Survival
Wrongful death actions benefit survivors; survival actions benefit decedents’ estates.
Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593 (Tenn. 1999)
Damages under the Tennessee wrongful death statute can be delineated into two distinct
classifications. The first classification permits recovery for injuries sustained by the deceased from
the time of injury to the time of death [i.e. survival]. Damages under the first classification
include medical expenses, physical and mental pain and suffering, funeral expenses, lost wages,
and loss of earning capacity. The second classification of damages permits recovery of incidental
damages suffered by the decedent’s next of kin [i.e. wrongful death].
Tennessee Code preserves the right of action which the deceased himself would have had [and]
creates a cause of action that compensates survivors for their losses.
OBJECTIVE
Nature of the Injury
Klein v. W. Hodgman & Sons, 77 S.D. 64 (1957)
If the injury is objective, and it is plainly apparent, from the very nature of the injury, that the
injured person must of necessity undergo pain and suffering in the future, then most certainly the
plaintiff would not be required to prove a fact so plainly evident, and upon making proof of such
an objective injury the jury may infer pain and suffering in the future.
Predictions about the Future
Klein v. W. Hodgman & Sons, 77 S.D. 64 (1957)
Where the injury is subjective, and of such a nature that laymen cannot, with reasonable
certainty, know whether or not there will be future pain and suffering, then, in order to warrant
an instruction on that point, and to authorize a jury to return a verdict for future pain and
suffering, there must be offered evidence by expert witnesses, learned in human anatomy, who
can testify […] that the plaintiff, with reasonable certainty, may be expected to experience future
pain and suffering, as a result of the injury proven.
94 N.M. 507 (N.M. Ct. App. 1979)
Damages based on surmise, conjecture or speculation cannot be sustained. Damages must be
proved with reasonable certainty. There is no exception to the above rule for future damages. The
ultimate fact which the plaintiff has the burden of proving is future damages reasonably certain to
occur as a result of the original injury.
“Golden Rule”
These arguments ask members of the jury to place themselves in the position of the plaintiff and to
award such damages as they would “charge to undergo equivalent pain and suffering”.
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California: “The jury must impartially determine pain and suffering damages based upon evidence
specific to the plaintiff, as opposed to statistical data concerning the public at large. The only
person whose pain and suffering is relevant in calculating a general damage award is the plaintiff.
How others would feel if placed in the plaintiff’s position is irrelevant. It is improper, for example,
for an attorney to ask jurors how much they would charge to undergo equivalent pain and
suffering. This so-called ‘golden rule’ argument is impermissible.” (Loth, supra)
COMPUTED
“Hedonic” Damages
Four views: such damages are…
(1) not recoverable
(2) recoverable as apart of the damages for pain and suffering
(3) recoverable as an element of the permanency of injury
(4) recoverable as a separate element of damages
Loss of enjoyment of life […] is only one component of a general damage award for pain and
suffering—it is not calculated as a separate award. (Loth v. Truck-A-Way, 70 Cal. Rptr. 2d 571
(Cal. Ct. App. 1998))
“Per Diem” or Life, Day By Day
Giant Food v. Satterfield, 90 Md. App. 660 (1992)
[Admissibility of per diem arguments concerning the computation of damages vary by jurisdiction.]
Per diem arguments are permissible in Maryland. Upon request or when the trial judge sua sponte
deems it appropriate, the jury must be instructed that the per diem argument made by counsel is
not evidence but is merely a method suggested by a party for the purposes of calculating damages.
The jury must further be instructed that an award for pain and suffering is to be based upon the
jurors’ independent judgment.
Punishment
RELATION TO THE HARM
BMW of North America v. Gore, 517 U.S. 559 (1995)
Elementary notions of fairness enshrined in constitutional jurisprudence dictate that a person
receive fair notice not only of the conduct that will subject him to punishment, but also of the
severity of the penalty that a state may impose.
Three guideposts are used to determine whether a punitive damages award is grossly excessive:
(1) degree of reprehensibility of the nondisclosure;
(2) disparity between the harm or potential harm suffered and the punitive damages award; and
(3) difference between this remedy and civil penalties authorized or imposed in comparable cases.
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COMPENSATION AS PREREQUISITE
Shugar v. Guill, 283 S.E.2d 507 (N.C. 1981)
A civil action may not be maintained solely for the purpose of collecting punitive damages but may
only be awarded when a cause of action otherwise exists in which at least nominal damages are
recoverable by the plaintiff.
AGGRAVATION
John R. Thompson v. Vildibill, 100 So. 139 (Ala. 1924)
In civil actions for damages for an assault, punitive damages may be recovered whenever there is
averment and proof tending to show that the assault was wrongful and attended with an insult or
other circumstances of aggravation.
Courts in some other jurisdictions, however, will infer purpose, intent, or recklessness from the acts themselves.
Peete v. Blackwell, 504 So. 2d 222 (Ala. 1986)
Assault and battery will support an award of punitive damages whenever there is averment and
proof tending to show that the act charged was wrongful and attended with an insult or other
circumstances of aggravation. Particularized circumstances of aggravation or insult must appear
in cases of assault and battery if punitive damages are to be properly awarded.
Apportionment
LIABILITY JOINT & SEVERAL
Joint and several liability means that plaintiffs can recover full damages from any one of the
defendants; contribution helps to reestablish equilibrium after the judgment (see infra). Joint and
severable liability is imposed in three main cases:
- defendants are joint tortfeasors
- defendants are independent tortfeasors responsible for a theoretically indivisible harm
- defendants are independent tortfeasors responsible for a theoretically divisible but practically
indivisible harm
RESPONDEAT SUPERIOR
Employers can be joined as defendants in tort suits against employees acting in the course of
employment (i.e. to advance the interests of the employer). The employer is considered not a jointtortfeasor for purposes of contribution but still a co-defendant, one whom the court may hold
jointly and severally liable with the employee. An employer having paid a judgment it incurred
through respondeat superior may seek from the tortfeasor employee contribution toward full
indemnification; contrariwise, an employee having paid judgment may seek no contribution from
the co-defendant employer.
Employers are not usually liable via respondeat superior for harms their independent contractors
cause, but employers may be found negligent in their own right for hiring particular contractors.
Employers who hire contractors to perform work of such inherent danger that liability is nondelegable may be held liable via a vicarious liability akin to employer–employee respondeat
superior.
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RELATIVE CONTRIBUTION
Negligence & Liability
Today, a defendant assigned damages may sue a second defendant for apportionment, that is, for
contribution toward the judgment.
In states with contributory negligence, often negligence shares determine contribution shares.
Generally, naked statistics must show a greater than 50 percent chance of having caused the
particular harm.
- Industry-Wide Liability: applies the Summers v. Tice test to all the few manufacturers in an
industry
- Market-Share Liability (note the distinction between relative market share and absolute market
share)
- Loss of a Chance to Survive (decrease chance of survival)
One Firm Among Many in Products Liability
Hymowitz v. Eli Lilly & Co., 541 N.Y.S.2d 941 (1989)
In a products liability action, identification of the exact defendant whose product injured the
plaintiff is, of course, generally required.
A narrow basis for liability, tailored … closely to the varying culpableness of individual producers,
is the market share concept. […] In Sindell, the court synthesized the market share concept by
modifying the Summers v. Tice alternative liability rationale in two ways:
[1] loosened the requirement that all possible wrongdoers be before the court, and instead
made a “substantial share” sufficient
[2] held that each defendant who could not prove that it did not actually injure plaintiff
would be liable according to that manufacturer’s market share
Awareness/Assumption of Risk
Dobson v. Louisiana Power & Light, 567 So. 2d 569 (La. 1990)
Even though the tree trimmer had no actual notice or knowledge of the danger presented, he was legally obliged
to recognize that his work involved a risk of harm and that he had to take special precautions against the
extreme dangers presented. Under a risk benefit analysis, the cost of taking precautions was greater for the tree
trimmer than the power company. The tree trimmer was 40 percent at fault. Plaintiffs’ damage award was
apportioned pursuant to La. Code Civ. Proc. Ann. art. 2323.
Modification
ADDITUR & REMITTITUR
Remittitur (subtraction from award) is more common than additur (addition to award).
SUBROGATION & COLLATERAL SOURCES
Perreira v. Rediger, 778 A.2d 429 (N.J. 2001)
The common law collateral source rule allows an injured party to recover the value of medical
treatment from a culpable party, irrespective of payment of actual medical expenses by the
injured party’s insurance carrier. The purpose of the collateral source rule is to preserve an
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injured party’s right to seek tort recovery from a tortfeasor without jeopardizing his or her right to
receive insurance payments for medical care. The rule prohibits the tortfeasor from reducing
payment of a tort judgment by the amount of money received by an injured party from other
sources and bars the submission of evidence that the injured plaintiff received payment for any
part of his damages, including medical expenses, from other sources.
Subrogation substitutes the health insurer in place of the plaintiff insured to whose rights he or
she succeeds in relation to the debt and gives to the substitute all the rights, priorities, remedies,
liens, and securities of the person for whom he or she is substituted. Reimbursement, a contractual
undertaking, allows a health insurer to recover payments directly from its own insured upon its
insured's recovery of the loss from a third party.
The general rule is that an insurer is not subrogated to an insured’s rights or to the beneficiary’s
rights under contracts of personal insurance, at least in the absence of a policy provision so
providing.
CAPS IN CONSTITUTION & STATUTE
State Farm v. Campbell, 538 U.S. 408 (2003)
While states possess discretion over the imposition of punitive damages, it is well established that
there are procedural and substantive constitutional limitations on these awards. The Due Process
Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary
punishments on a tortfeasor.
Courts reviewing punitive damages must consider three guideposts:
(1) the degree of reprehensibility of the defendant’s misconduct;
(2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive
damages award; and
(3) the difference between the punitive damages awarded by the jury and the civil penalties
authorized or imposed in comparable cases.
Appellate courts must conduct de novo review of a trial court’s application of the relevant
guideposts for reviewing punitive damages to the jury's award.
The most important indicium of the reasonableness of a punitive damages award is the degree of
reprehensibility of the defendant’s conduct. Courts determine the reprehensibility of a defendant
by considering whether:
- the harm caused was physical as opposed to economic;
- the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of
others;
- the target of the conduct had financial vulnerability;
- the conduct involved repeated actions or was an isolated incident; and
- the harm was the result of intentional malice, trickery, or deceit, or mere accident.
Due process does not permit courts, in the calculation of punitive damages, to adjudicate the
merits of other parties’ hypothetical claims against a defendant under the guise of a
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reprehensibility analysis. Punishment on these bases creates the possibility of multiple punitive
damages awards for the same conduct, for in the usual case nonparties are not bound by the
judgment some other plaintiff obtains.
Few awards exceeding a single-digit ratio between punitive and compensatory damages, to a
significant degree, will satisfy due process.
Because there are no rigid benchmarks that a punitive damages award may not surpass, ratios
greater than those previously upheld may comport with due process where a particularly egregious
act has resulted in only a small amount of economic damages.
The wealth of a defendant cannot justify an otherwise unconstitutional punitive damages award.
Statutory Caps Constitutional
Etheridge v. Medical Center Hospitals, 376 S.E.2d 525 (Va. 1989)
The resolution of disputed facts continues to be a jury’s sole function. […] The jury’s fact-finding
function extends to the assessment of damages. Once the jury has ascertained the facts and
assessed the damages, however, the constitutional mandate is satisfied. Thereafter, it is the duty of
the court to apply the law to the facts.
Significantly, the common law has never recognized a right to a full recovery in tort. Thus,
although a party has the right to have a jury assess his damages, he has no right to have a jury
dictate through an award the legal consequences of its assessment.
Therefore, caps raise no concerns of substantive due process.
Statutory Caps Unconstitutional
Knowles v. United States, 544 N.W.2d 183 (S.D. 1996)
A medical malpractice damages cap is an infringement on the jury’s determination of the facts,
and, thus, is an infringement on the right to a jury trial.
The damages cap is unconstitutional because it limits the jury verdict “automatically and
absolutely” which makes the jury’s function “less than an advisory status”.
There is no quid pro quo or “commensurate benefit” here. […] “The statute operates to the
advantage not only of negligent health care providers over other tortfeasors, but of those health
care providers who are most irresponsible.”
“Therefore, SDCL 21-3-11 does not bear a ‘real and substantial relation to the objects sought to be
obtained’ and we hold that the damages cap violates due process.”
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