Torts Class Notes 9/16/03


Practice exam tomorrow – it’s open book.


Free printing tomorrow!  Hooray!


Last time, we talked about necessity.


Private necessity


This is a complete defense to trespass.  The rule is that you pay for the harm you cause.  You can take advantage of someone else’s property to protect your own property, but you must pay for the harm caused.  This rule forces people to make an economically efficient decision.  Actors will balance the value of their own property that they are protecting with the harm that will be caused to another person’s private property.




This comes up in education law, but generally it doesn’t appear too frequently elsewhere.


What kind of force can you use in an educational setting?  You must use reasonable force (“surprise, surprise”).  In the old days, the teacher would stand in loco parentis (in place of the parents), and thus you could use the same force parents can use.  Nowadays, we look at teachers as agents of the state who must do what is educationally reasonable.


Also, in the old days, there was parent-child immunity, whereas nowadays children can sue their parents.


Most people today believe that teachers have less of a privilege to discipline children than parents do.




There are very few cases that cite justification as a defense.  Don’t use this as a defense unless you’re really sure it fits the parameters of the case.


This defense pops up when no other defense to the tort will work but for some reason we don’t think it would be fair to hold the defendant liable.


Sindle v. New York City Transit Authority


The plaintiff was trying to crawl out the window of the bus to escape when the bus driver was taking the bus to the police station because the passengers were vandalizing the bus.


What’s the rule here?  What is the bus driver protecting?  He is protecting public property.  The court seems to be interested in the fact that the bus driver does not have a private interest at stake except for the safety of his person.  You can’t protect the bus at the expense of the children.  However, you can reasonably weigh harm to public property with inconvenience to persons.


The New York Court of Appeals finds that the merits of the justification defense ought to have been considered by the jury.


What factors are relevant in determining whether the bus driver was justified in his actions?


·        What is the manner and place of occurrence?

·        Are other courses of action feasible?  Intentional torts should be your last resort.

·        Was the defendant acting in the public interest, protecting persons and property?

·        Did the defendant have the duty to aid in the apprehension of a wrongdoer?

·        Was the defendant’s conduct acceptable and reasonable under the circumstances?


If there is no serious harm to the public, the defendant is not justified.


Punitive damages


These are sums of money that are awarded in addition to any compensatory damages.  These damages are available for intentional torts, but not for negligence.  In order to get punitive damages, you must show intentional or reckless behavior.  The judge decides whether the jury gets to consider punitive damages.


Statutes by state are limiting or eliminating punitive damages.  States also adopt different standards of proof in awarding punitive damages.  Not very many states use the “preponderance of the evidence” standard of proof for punitive damages, but rather use “clear and convincing evidence” which falls between “preponderance” and “beyond a reasonable doubt”.


Purposes for punitive damages:


·        We want to deter morally reprehensible behavior of a particular defendant and discourage others from doing the same in the future.

·        It’s like a criminal punishment or fine.

·        It is an incentive for a plaintiff to bring a suit and an incentive for lawyers to take the case.  It can also help finance socially beneficial litigation that a plaintiff might not otherwise be able to afford.

·        It is alleged that compensatory damages are systematically insufficient.  Money is merely a benchmark for what the harm is.


What’s bad about punitive damages?


·        We think awards should be proportionate for fairness reasons.

·        When you punish a wealthy defendant, the plaintiff gets a windfall and the plaintiff gets the benefit of the defendant’s wealth.  This windfall may harm other plaintiffs who have claims against the defendant.

·        If you’re punishing the company, there are probably better places for the money to go than the plaintiff’s pocket.

·        We impose what amounts to a criminal sanction without the protections of the criminal law.

·        The jury has no firm guidance as to the determination of punitive damage awards.

·        Punitive damages are often so large that while they may not cause a company to go bankrupt, they may discourage companies from acting at all.

·        There may be a constitutional Due Process problem of notice.


Gryc v. Dayton-Hudson Corp.


A child’s pajamas caught on fire.  The plaintiff sued the manufacturer in a product liability suit.


Focus on “the extent to which the defendants are subject to federal safety regulation”.  What were the federal standards at the time?  It turns out that the product met the standards; however, that doesn’t make you immune from suit.  You can’t totally trust the government to tell you what to do.  It’s not sufficient to be in compliance with federal standards.


BMW v. Gore


Gore’s car has been devalued by $4,000, and he gets those compensatory damages plus punitive damages for the other thousand cars it is estimated were affected.


This is a failure to disclose information case.


The Supreme Court of Alabama reduced the punitive damage award to $2,000,000 from $4,000,000.


Did this punitive damage award violate constitutional due process?  What factors does the Supreme Court consider?


Is BMW’s conduct really reprehensible?  Not really.  How come?  It wasn’t done maliciously.  It did not cause any physical harm to anyone.  It didn’t affect the safety or performance of their cars.


If you can only prove economic harm, you will not get as big of a punitive damage award as if there were other types of harm.


The court also said that there should be a reasonable ratio between compensatory damages and punitive damages.  They say 500 to 1 is too much, but they refuse to say just where they would draw the line.  That is intentional.


Finally, the court compares the criminal and civil punishments for similar behavior to the punitive damages awarded in the case at hand.  This isn’t necessarily an acid test, especially because criminal and civil fines are usually quite low in every case.


Ultimately, the punitive damage award is reduced to $50,000, which is much more in line with the compensatory damages.


Also, different states have different judgments about the appropriateness of activities that cause economic harm.


Punitive damages have an intent requirement.


Price v. Hartford Accident and Indemnity Co.


Two guys were drag racing.  One got hurt and sued the other.  Price’s insurance company refused to pay a related claim.  Price tried to sue to get them to pay.


What’s a declaratory judgment?  It declares the rights of the parties.  It’s sort of like an advisory opinion that resolves a dispute.  If the parties fail to act according to the declaratory judgment, the court will enforce it.


The issue is whether or not the insurance company should cover punitive damages.  Why should punitive damages be excluded from insurance coverage?


·        The costs of punitive damages should not be passed along to the general public.

·        The punishment effect of punitive damages should not be diluted by being able to pass them along to your insurer.


Why should we allow punitive damages to be covered by insurance?


·        We should not impede the right of private individuals to collect the benefit of the bargain from existing contracts with insurance companies.


How would Gardner feel about this case?  He may not get full recovery if the insurance company is found not to cover punitive damages.


Back to Class Notes