Torts
Class Notes
Review
There
is no duty to take affirmative action unless:
·
The actor has, with or without fault, caused the
harm or the risk of harm.
·
The actor took affirmative steps to aid another.
·
The actor has a special relationship with the other
person.
We
talked about public policy considerations.
Tarasoff v. Regents of the
Poddar was under the care of a psychiatrist.
Poddar said that he was thinking of killing a
woman. They confined him for a while and
notified the campus police, then let him go and two months later he killed the
woman.
What
did the psychotherapist allegedly fail to do?
The psychotherapist had the duty to warn a third party of a possible
harm from another.
After
Tarasoff, how would a psychotherapist’s
behavior change? One of the alleged
risks of this case is the overprediction of
dangerousness in order to avoid liability.
But that might have other consequences.
Therapists said that they didn’t really want to be therapists if they
had to tattle all the time instead of help their clients. They say that confidentiality helps
therapists do their job. The goal is candor.
Is a
legal rule necessary to obligate therapists to warn? In this case, the therapist actually did tell
the police. Arguably, therapists will do
the right thing anyway, and the consequences of a legal rule are worse than if
they didn’t have it.
If
you are a therapist, and you find out that one of your patients might be
dangerous, what must you do to discharge your duty? You need to take reasonable steps to
avoid an identifiable risk.
What
if the client threatens the life of a woman and the therapist doesn’t do
anything, but the client doesn’t kill the woman, but instead the woman’s
son. Will the therapist be liable for breaching
his duty to warn? Should you only have
to warn identifiable victims?
One
more thing to think about: is there an implied duty to take affirmative action?
Contributory
negligence
·
Originally, contributory negligence was a complete defense
to negligence.
·
This is not a defense to intentional torts.
This
is the first appearance of the contributory negligence doctrine.
The
defendant was repairing his house and he had laid a pole across the
street. The plaintiff rode down that
street real fast. The plaintiff hit the
pole and fell off his horse. The plaintiff
sues for the damages caused by the accident.
The
jury found for the defendant on a contributory negligence theory.
What
did the judges say? Bailey said that if
the plaintiff had used ordinary care, he could have avoided the accident
entirely, and therefore, it is argued, the plaintiff is entirely at fault.
Some
judges think that if the plaintiff is the last actor and has the last choice,
they should be held fully responsible for their own injuries.
One
judge suggests that plaintiffs might cause themselves to be injured. If potential plaintiffs go looking for negligent
situations and throw themselves in to try to get money, you need a policy to
prevent that from happening. To prevent
this, we’ll adopt the contributory negligence doctrine. We want to discourage people from being
careless.
In
the old days, we didn’t think juries could apportion liability.
Courts
started having a problem with this doctrine.
In response, they developed the “last clear chance” doctrine.
Davies
v. Mann
A donkey got run over. The donkey was
unsupervised. The donkey is a “helpless plaintiff”. There’s a lot more sympathy because you can’t
do anything, and you have to depend on other people avoiding an accident. It’s more likely that the last clear chance
will be invoked when the plaintiff has put himself into a hopeless, helpless
position. Then the defendant has the
last chance to stop the accident. This
doctrine is a check on contributory negligence.
There
is jurisdictional variation on this doctrine.
Last
clear chance educates you on figuring out apportionment of liability. Who is the most at fault? Who is less at fault? This rule helps us understand.
Comparative
negligence – McIntyre v. Balentine
How
does the court rationalize the development of comparative negligence? The court says that contributory negligence
was a common law idea in the first place.
The
court says that they won’t abandon stare decisis. They want people to think that it’s a small
move. The court says that joint and
several liability is abolished under comparative
negligence. If you can apportion liability
but one of the defendants is insolvent, should the other defendants pick up the
tab?
Joint
and several liability has gotten a bad name due to
unfairness to defendants.