Torts Class Notes 9/22/03


The practice exam question was a bit long for 30 minutes.  She’ll take that into consideration when she’s writing the final.  It’s important to note that you’ll always have to manage time on exams and get as much in as you can in the time available.


Last time…we looked at defenses and punitive damages.


Getting started with negligence


Most tort practice these days involves personal injury and medical malpractice, which are negligence cases.  Usually, you work on a contingency fee.  The attorney will take 25%-33% of the recovery to the plaintiff.  This becomes relevant to the constitutionality of various damages.

Damages for negligence


1.     Lost wages

2.     Medical expenses

3.     Pain and suffering (amorphous, the target for tort reform)

4.     Future losses (not related to your inability to work or medical expenses)


Pain and suffering are the meat and potatoes of tort practice.


The typical lawyer on the defense side will be working for an insurance company defending torts based on negligence.


What is negligence?


1.     A duty to exercise reasonable care under the circumstances

2.     A breach of duty

3.     Causation (cause-in-fact/“but for” causation and proximate/legal cause) – the breach of duty caused damages

4.     Damages – the damages must be actual, not presumed from the fact of the tort


Each case we’ll cover raises a different aspect of these elements.  Usually, when you’ve figured out duty, you’ve also figured out breach of duty.


Lubitz v. Wells


What happened in this case?  The father left his golf club sitting around in the yard and his kid hit a girl in the face with the club.  Why are they suing the father?  He’s got the money!


What is the possible negligence of the father in this case?  Arguably, it’s negligent to leave a golf club lying in his backyard if you have a child.


The court finds that a golf club isn’t such an intrinsically dangerous object that it’s negligent to leave it lying around.


What if there was something else left lying around?  What about a rake?  Would that be dangerous?  What about a baseball bat?  Is that intrinsically dangerous?


What’s the point of this case?  Does it give us a black letter rule?


Does it make a difference whether or not there are a lot of children in the neighborhood?  That which is reasonable may change under the circumstances.


Perhaps what we can get out of this case is that you cannot be held liable if you leave a common object in your backyard.


You’ll rarely get good rules out of these cases because it’s hard to draw a clear line.  At the extremes, we know the answer.  In the middle ground, we will have to leave it to the jury and it will be tricky to predict.


Why isn’t there a battery count in the complaint?  The boy did not intent to cause harm to the girl.  Therefore, we lack the intent necessary for battery.  With the father, it’s not even within the realm of possibility.




Is it negligence to fail to yell “Fore!” before you hit a golf ball and the ball hits someone?  Do you assume a certain amount of risk when you go golfing?  The failure to call “Fore!” after you hit the ball when you think it might hit something could be seen as negligence.


In this case, custom might play into the judge’s decision whether or not to send the case to the jury.


The basic principle is that circumstances change, and therefore the actions of a reasonable person would change in different circumstances.


Blyth v. Birmingham Waterworks Co.


It’s an amazing frost!  Water damage!  Is there negligence?  The court says no because the frost was not foreseeable.


What is the rule from this case?  One may not be found liable for negligence unless you fail to do something a reasonable person would have done, or do something that no reasonable person would have done.


Should you have to build water mains that must withstand the most extreme temperatures that will ever come about in England for 100 years?  200 years?  You don’t build water mains to withstand a once in a lifetime event.  Your duty is to do what a reasonable person would do.


For example, look at the flood in Topeka in Note 1.  Nobody knew that it was possible, so it wasn’t foreseeable and you probably wouldn’t be found to be negligent.


Reasonableness is based on the circumstances


·        Foreseeability of harm

·        Feasibility of protecting against harm

·        Costs of precautions

·        Availability of alternatives


There’s a point at which taking a certain precaution is unreasonably expensive.


Should we find that it is negligent to build cars that can get into accidents?  We decide that the social utility of the activity exceeds the social cost.  In fact, social utility can outweigh a lot of other issues.


Davison v. Snohomish County


The plaintiffs were driving over a bridge and their car struck a guardrail and fell off the hill and flipped over.  The guardrail was not enough to withstand the momentum of the car.


In this case, you must weigh the cost of making roads 100% safe against the benefit of having any roads at all.


The guard rails were not properly maintained.  The court ends up concluding that we can’t expect communities to keep up guard rails.


On the other hand, you could argue that it’s not expensive to put up guard rails where they are truly needed.


Today, we would have a different result.  It would be unreasonable not to have a guard rail that can’t withstand some impact.


Davison is later rejected based on changes in engineering and financial aspects of building roads.


Reasonableness, expense, and foreseeability change over time.


It might be unreasonable to build the track mentioned in Note 2.  However, the jury might be persuaded that the railroad has a high social utility and that the railroad is not negligent.


United States v. Carroll Towing Co.


A tugboat is pulling a barge in a negligent manner.  The barge breaks away and runs into another barge.  The barge sinks, but it might not have if the bargee had been on board at the time of the accident.


The United States is suing the tugboat owner.  Conners Co. is the original plaintiff.


According to Hand, you must consider whether the burden of adequate precaution is less than the expectation value of the loss (probability of the loss times the actual value of the loss).


Was the probability of the barge being harmed high or low?  It was rather low.  The loss would be high.


The precaution that should have been taken is that there should have been someone aboard the barge.  The bargee was off the barge for 21 hours.  What if the bargee had only been gone for 30 minutes during the time that the barge hit the other barge?


Should someone have to be on board 24 hours a day?  How much of a burden is that?


It’s easy to say that there should have been a bargee on board.  What if there is a bargee on board “virtually” all of the time?


If these accidents are very rare, it would be too expensive to have someone on the barge all the time.


These things are really hard to quantify.


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