Torts
Class Notes
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.
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.
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.
“Fore!”
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
For
example, look at the flood in
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.
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
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.