Torts Outline Mk. II
Table of Contents
Intentional
infliction of mental distress
Professional
standards of care
Burden
of proof in res ipsa loquitur
Intervening and superceding causes
Primary
versus secondary assumption of risk
Liability
for subsequent injuries
Artificial
versus natural conditions
Categories
of entrants onto land
Abnormally dangerous activities
Introduction
A tort is a civil wrong or injury caused by a breach
of duty that arises by operation of law rather than agreement. What is a civil wrong? A wrong that courts or legislatures have determined
are actionable. What is a breach of
duty? When someone
has a legal duty towards you (other than in a contract) that they breach.
Initially, you had to have a writ from the King in order to
have a claim in court. There were two
writs – trespass and case. Trespass was
actionable due to direct harm; a
preview of intentional torts. Case lets
you recover on something that isn’t immediate; sort of the precursor to modern
negligence.
Now we have a fault view of the law. The law of intentional torts doesn’t change
over time as much. Reasons for the fault
concept: (1) We want to protect the growth of industry.
(2) We want to be fair to defendants –
we no longer think it’s fair to hold people liable in the absence of
fault. (3) We also want to be fair to
plaintiffs – they don’t need to depend on selecting the correct writ or that
their harm is direct to be able to recover.
(4) We want to promote economic efficiency – this comes up again and
again and again. We want to create
incentives for companies to invest in the optimal amount of safety. For example, most prescription drugs help
people while a few drugs harm people. We
don’t want to let harmful drugs on the market, but then again, we don’t want to
keep all drugs off the market.
Prima Facie Case – proving “the face of it”…the
burden of proof in almost all tort cases is “the preponderance of the
evidence”…that is, greater than 50%. The
jury will be told that “the plaintiff has to prove that it’s more likely than
not the thing happened rather than didn’t”.
To prove a prima facie case, the plaintiff must prove that: (1) an act
occurred, (2) the defendant intended to do the act, and (3) the act caused
damages. We protect against dignitary
harms in intentional torts.
Tips from Mr. Gilbert: (1) Identify all the possible intentional torts. (2) Consider the prima facie case of each tort and see if all the elements are present. (3) If a defendant has committed a particular tort, consider whether the defendant has some privilege or defense that might limit or eliminate their liability. (If they don’t have any possible defense or privilege, they’ve been a bad person!)
We don’t hold people liable for intentional torts when they don’t have intent. A person acts with the intent to produce a consequence if: (1) The person has the purpose of producing that consequence, or (2) the person knows to a substantial certainty that the consequence will ensue from the person’s conduct. The defendant’s motive is immaterial.
The test of whether a defendant had a certain purpose or
knew the likelihood of a result to a substantial certainty is a subjective test. The question isn’t what a reasonable person
would have desired or believed, but what this particular defendant desired or
believed.
“Egg shell” or “thin skull” rule – if you intend to cause
harm to somebody, and the harm is greater than you expected it to be, you’re
responsible for the full consequences of your actions. How do we justify this rule? It’s easy to administer and helps ensure full
compensation for accident victims.
Finally, the law places a high value on human life.
Intent can be transferred among the five torts that derive
from the original writ of trespass: battery, assault, false imprisonment,
trespass to land and trespass to chattels.
If the tort that was intended or the one that was accomplished is not
one of the five, transferred intent does not apply. The court finds that the intent of assault
transfers to the battery that actually occurs.
Transferred intent can only be transferred among a certain
group of torts: assault, battery, false imprisonment, trespass to land and
trespass to chattels. Neither conversion
nor intentional infliction of emotional distress is covered.
What if the defendant had accidentally hit someone on the
plaintiff’s land while firing at ducks? The
defendant would be liable for battery. The
plaintiff gets to the defendant by using the doctrine of transferred
intent. If the defendant intended to
trespass on the plaintiff’s land, but ended up committing battery, then the
intent properly transfers between the two torts.
Ranson v. Kitner – Are the defendants
liable for trespass to chattels if they intended to harm a fox and not a dog? A person
is liable for damages caused by a mistake, even if it is made in good faith. The defense is that they did not intent to
harm a dog, they intended to harm a wolf. The court says the defendants are liable
because even though it was in good faith, you’re still liable.
Why would we have a rule like this? We might fear fraudulent claims of
mistake. We also want to see the harmed
person recover. If you have intent to
harm, but harm someone or something else, you’re still liable. We want defendants to bear the risks of their
own mistakes. Therefore, mistake
does not negate intent.
Are insane people liable for their torts? Yes, because you do the tort, you do the
time. We favor the injured person over
the injurer. What other justifications
exist for holding an insane person liable?
If you’re capable of forming the intent to cause harm, even if the
intent is totally divorced from the reality of the situation, you’ll be liable.
But why hold someone who has been committed to a mental
institution liable? The intentional tort
issue exists apart from negligence. Are
relatives going to try to restraint the insane person? The court suggests we want the relatives to
be responsible for keeping the person from hurting others.
This is a practical, utilitarian compensation rule. We don’t want to get into fault here, and we
don’t want courts to get too deep into the question of insanity. As long as you have the intent to do harm,
even if you think you’re Napoleon harming an enemy, you’ll be liable. The law doesn’t care what delusion the insane
person is under when he commits the battery.
Assault is an act (volitional
movement) intended to cause apprehension of an imminent harmful or offensive contact, which directly or indirectly
causes reasonable apprehension of
such contact.
You can’t create an assault with just words. However, if you say “look out, there’s a
rattlesnake behind you!” and there’s no rattlesnake behind you and your intent
is being mean, many jurisdictions and the Restatement would find that it’s an
assault because the impact of the
words may create a sufficient apprehension of contact as to constitute assault. Some jurisdictions might find that it isn’t
the threat of imminent harmful or
offensive touching because no touching is actually going to take place.
Apprehension – the sense that a harmful or offensive
touching is about to happen. The plaintiff
must be aware of the threat at the
time it was made. That’s different than
the rule for battery. Why does it matter
if your apprehension is reasonable or not?
You might be an extra super sensitive plaintiff. It depends on the jurisdiction. Apprehension doesn’t mean fear…it means the
sense of about to be touched. Most of the time, the damages for assault will involve offense
rather than harm. Apprehension is
necessary for assault. Contact is
not. Once you get contact, you move to
battery. But not all batteries
include assault.
Intent – the defendant must have the intent to cause
apprehension of harmful or offensive contact or actually cause that contact (although that’s more a transferred
intent issue). Intent is broader than “I
want to do this”; it could also be “I’m doing something that’s likely to create
a certain harm.”
Why is there an
assault tort? Courts have decided that
psychological injury without any accompanying physical injury is
compensable. We also want the legal
system to protect “mental tranquility”.
We do not want actors to use threats of force to get economic gain. Finally, the assault tort must be applied in
order to be consistent with the battery tort.
Defendant must intend to cause harmful or offensive contact
with the person of another which actually
does cause harmful or offensive contact.
It’s battery to touch someone who doesn’t want to be touched, once
you know they don’t want to be touched, even if you’re trying to help. We
make an exception for doctors treating unconscious people.
The touching has to be things connected to you. This is called the extended personality
doctrine. We’re looking for an intimate
association with your body to find liability.
Fisher v. Carrousel Motor Hotel, Inc. – Can a
plaintiff have a cause of action for battery if he or
she was neither touched nor in apprehension of physical injury? How far does your “person” extend? The basis of an action for battery is the “unpermitted and intentional invasion of the plaintiff’s person
and not the actual harm done to the plaintiff’s body”.
Why do we have a battery
tort? We want to protect people’s dignity. We also believe that a person’s body deserves
protection from invasion. We want to
deter socially undesirable conduct.
The elements of false imprisonment are (1) intent to confine, (2) bounded area, and (3) awareness of confinement by the plaintiff.
Confinement – There
must be a specific area in which the plaintiff is completely confined without a reasonable means of escape. You must be actually confined; moral
persuasion is insufficient for false imprisonment.
Force – Only force
or threats of force constitute false imprisonment. The possible methods of confinement include threats of physical force, actual
force, duress of goods, and threats to your family members. The law values your property very
highly. It’s more important than we might
have imagined before. This comes from
common law notions about how important land and possessions are to people. This is called duress of goods.
Awareness – Do you
have to be aware of your confinement at the time of trial in order to collect
damages? No, but you must have been
aware of the confinement at the time it happened. The Restatement of Torts says that to
recover for false imprisonment, you must be aware of the imprisonment, or you
must be harmed by it.
Damages – What
kinds of injuries must you suffer to be able to recover for false
imprisonment? You need to have physical,
mental, or economic damages. You could
even make a claim for nominal damages, but you probably wouldn’t want to
bother.
We have false imprisonment claims because we want to ensure
personal freedom and dignity, and we want to deter abuse by authority
figures. We put limitations on the tort
because we want to protect property rights and allow public officers to make
appropriate decisions.
Enright v.
Intentional
infliction of mental distress
It must be intentional or reckless. There must be severe emotional
distress. The defendant’s conduct must
be extreme and outrageous.
The plaintiff must suffer actual damages. There is no transferred intent with
intentional infliction of mental distress.
Intentional infliction of mental distress has a higher standard of proof
than other intentional torts.
Extreme and outrageous
– To determine whether conduct is really beyond the pale, courts will look at
the “totality of the circumstances” rather than a single incident in isolation. Insult by itself is not a tort because it is
not entirely beyond the pale of acceptability.
Severe emotional
distress – One way to prove severe emotional distress is to show physical
signs of emotional harm. You can also
show emotional harm that was treated by a psychiatrist or psychologist. You must prove, for example, that you
were unable to work due to significant stress stemming from the claimed injury.
Things that make intentional infliction of mental distress
more likely to lie: (1) Repetitive, continued conduct, (2) unequal power or
abuse thereof, (3) exploitation of known sensitivities or picking on immutable
characteristics, (4) use of a racial epithet, (5) the defendant is a common
carrier, or (6) the plaintiff is a woman, especially a pregnant woman.
Why is it a good idea to have an intentional infliction of
mental distress claim? (1) We want
people to be free of severe emotional distress.
(2) A mental or emotional injury is a real injury. (3) The defendant’s behavior has no social
utility and thus there is no reason to protect it. (4) We award damages for mental suffering in
other torts.
On the other hand, why do others think it’s a bad idea to
recognize this tort? (1) It’s hard to
quantify damages. (2) It’s hard to prove
damages. (3) Juries aren’t qualified to
assess the damages from mental and emotional suffering. (4) You may open the floodgates to many
potentially fraudulent or weak claims.
(5) There is no basis in the common law for intentional infliction of
mental distress. It wasn’t recognized
under the trespass writ.
Liability to
bystanders and the “presence” rule – Is the presence of a bystander necessary
for intentional infliction of mental distress to lie with respect to that bystander? The benefit of the “presence” rule is that it
gives you a bright line; it’s predictable. The presence requirement is proof that
you intended to cause emotional distress.
The Restatement requires presence, but not all jurisdictions require
it. The “presence” rule cuts off certain
people we might be better off covering. If
a member of your family is present at the time you are harmed, and the
defendant knows that some third party is there, the third party need not show
physical harm to show damages. If it’s a
friend instead, they would have to show physical consequences. We figure if you intend to inflict emotional
distress on someone, they have to be here.
This is trespass with
the intent to enter the property of another. It’s not an intent
to cause harm or anything else. Every
authorized entry onto the land of another is trespass. When we say “land of another”, we mean land which
the plaintiff possesses or to which the plaintiff is entitled to immediate
possession.
What if the defendant tripped and fell onto the plaintiff’s
property? Mistake does not negate
intent, except when you can’t stop yourself from doing something because you’re
tripping. It’s a “technical
trespass”. It’s of such minor importance
that we won’t allow a suit. Tripping
counts as a voluntary act. The only
thing that doesn’t count as a voluntary act is when somebody pushes you onto
someone else’s property.
Bradley v. American Smelting and Refining Co. – Can trespass lie when it does not
involve anything visible to the naked eye? Even the slightest bit of harm,
including “by the vibration of the soil or by the concussion of the air”
constitutes trespass.
Herrin v. Sutherland – If you physically invade the air above someone’s land, is it
trespass? The air space near the
ground over your land is as much your property as the land itself. Everything that’s directly under my place
is also part of my place. You own a
“reasonable space” above and below your property.
Chattels are personal property. Trespass to chattels is the “intermeddling”
with your stuff. With trespass to
chattels, you must show actual damages.
We care more about you being hurt than your stuff being hurt. As far as damages go, you look at the amount
of damages to the good.
Glidden v. Szybiak – Someone cannot be held liable for
trespass to chattels unless some harm comes to the chattel. There must be actual damages, which are
construed to include taking stuff away if you put it back later.
CompuServe Inc. v. Cyber Promotions, Inc. – Trespass
to chattels occurs when the defendant intrudes upon the plaintiff’s chattel such
that damage results. The standard set
down in this case is that trespass to chattels may lie for sending unwanted
e-mails if the value of the computer equipment involved is diminished and the plaintiff
can show actual damages. In this case, the
plaintiff shows that they have lost business because of the spam. Note that trespass to chattels typically
involved tangible property. This is a
clever use of the tort to apply to intangible property.
In order for conversion to occur, some property must be
interfered with in a “complete or very substantial” way. The difference between conversion and
trespass to chattels is that conversion means you recover the market price of
the item converted, but you don’t get the item itself back. So if you use a chattel in a way you weren’t
authorized to and you mess it up badly, you could be liable for the entire
replacement cost of that chattel. So watch
out!
Conversion of a chattel is the forced sale of that
chattel. It gets sold, and then you get
the proceeds from the sale. When a piece
of property gets converted, you get damages, but you don’t get the thing
back. If you want to keep the chattel,
you must go for an action of trespass to chattels.
Conversion is an inefficient way to get your goods back
because you force the sale of the goods.
Generally, the further away goods move, the more likely a jury will call
it conversion. The question is: at what
point is it so inconvenient that the plaintiff can sue for conversion? An alternative action to conversion is to
replevin the goods, which means to get the stuff back rather than forcing it
resold. If somebody took a lottery
ticket or a special pet, the situation would suggest using an action for
replevin instead of an action for conversion.
How does the defense part of a torts case work? The plaintiff has the burden to establish the
prima facie case. If the plaintiff fails
to do so, the defendant can file a motion for a directed verdict. If this motion fails, then the defendant has
the burden to prove one of the defenses or disprove an element of the prima
facie case. Then it’s up to the jury to
make factual determinations.
Consent is a defendant to intentional torts based on the plaintiff’s conduct. The defendant will argue (and has the burden of proof to show) that a reasonable person would have taken the plaintiff’s actions as consent to the defendant’s act. Consent can be determined from: (1) The circumstances of the act, (2) implied acts or words, (3) a prior course of conduct between the parties, (4) custom, (5) whether a reasonable person would believe that the plaintiff consented, and (6) whether the defendant exceeded the scope of the consent given.
When there are words that indicate consent or lack thereof,
you have an easier case to decide than if you consider the circumstances in
general. An unlawful or unreasonable
demand that is made of a plaintiff will not lead us to conclude that their
silent constitutes consent.
O’Brien v. Cunard S.S. Co. – If the plaintiff’s behavior
indicated that she consented, then the physician’s act was justified. How would a reasonable person view what the
plaintiff did? She mentioned in passing
that she had already been vaccinated, and did not protest when he said that he
didn’t see a mark.
Custom and circumstances weigh heavily in determining
whether someone has consented to a particular action. If the circumstances indicate implied
consent, the plaintiff needs to explicitly withdraw consent. Otherwise, the plaintiff is responsible for
her own protection, for example, through insurance. You can infer consent from the existence of a
relationship through action or words. You
can also imply consent from a course of dealing that the parties have had in
the past. Finally, conduct that is
normally accepted in society will not be called battery.
Hackbart v. Cincinnati Bengals, Inc. –
Can there be a tort action for an injury from an intentional blow in a
pro football game? If there are rules in
the game to prevent the infliction of serious injuries, then the plaintiff
cannot be construed to have given up his rights by playing. If the injury happened outside the course of
playing the game itself, it’s not governed by the rules of the game and you can
be held liable for battery. It’s
presumed that players consent to conduct that’s within the rules, but not
conduct that’s outside the rules of play.
In football, you may have an intentional tort in conduct that is outside
the rules or normal customs of the game.
Mohr v. Williams – In medicine, you consent to the
procedure you consented to when you were capable of doing so. In other words, you have to wake a patient up
and make sure that they’re okay with the new, different thing you’re planning
to do. If you don’t, you may be found liable
for “technical battery”. Consent may be
implied if a procedure is necessary to preserve life or limb and the person is
unable to give express intent.
De May v. Roberts – Is the plaintiff’s consent valid
if she was misled about one of the defendants being a doctor? The plaintiff had a legal right to
privacy. Consent which is obtained
through fraud is not valid consent.
Hart v. Geysel – Can an
action for wrongful death be brought when both parties consented to the fight
even though it was unlawful? There are
two views. The majority view says that
both parties are liable to each other, while the minority view says neither can
collect because they were both engaged in an illegal act. A plaintiff’s consent to an illegal act is
not valid if the statute against the act exists to protect him.
The minority rule tends to discourage illegal activity
more. However, the majority rule might
create an incentive for the winning fighter to pull back instead of risking a
lawsuit for beating his opponent up too much.
The incentives are not a whole lot different between the two rules under
consideration in Hart. At best,
we can say there are two principles: (1) We discourage
illegal activity. (2) We do not reward
wrongdoers for their wrong conduct.
If the person participating in the unlawful behavior is a
person who is protected by statute, we won’t hold consent against them if they
engaged in that behavior. License
requirements for boxers are meant to protect the boxers. If they participate in illegal boxing, they
can still sue because the statute was written to protect them.
You can use reasonable force in amount and duration based
on the circumstances to protect your person. The force you use must be proportional
in some sense. There must be an immediate
threat of harm to trigger the self-defense privilege. Transferred intent does not hold in
self-defense situations. You must have a
reasonable belief that force is necessary, but you can be mistaken. Words are insufficient provocation to trigger
the privilege of self-defense because language doesn’t constitute assault.
Self-defense rules:
(1) You can only use deadly force to counter
deadly force. Circumstances will vary:
“Detached reflection cannot be demanded in the presence of an uplifted
knife.” Juries will take into account
that your behavior came about during an emergency and will judge you
accordingly. (2) If you are in your own
home, you have no obligation to retreat from deadly force in any
jurisdiction. In some jurisdictions,
there are so-called “make my day” laws that let you use deadly force against
burglars and other trespassers. (3) There
is no obligation to retreat if there is non-deadly force; you may use
non-deadly force in response. (4) There
is an obligation to retreat if you’re confronted with deadly force outside your
home, but the circumstances may vary.
In a defense of others situation, there are two different
standards. One approach is that you stand in the shoes of the person who is
attacked, and thus you will be treated like that person insofar as you have
exactly the same privilege as that person.
If you defend someone under attack, you have privilege, while if you
defend the aggressor, you have no privilege. Some
jurisdictions will allow a reasonable mistake under the circumstances. If you tried to help the aggressor thinking
that he was under attack, you may maintain
the privilege.
Which rule is better?
Is it a good policy to encourage people to get involved and stop a
fight? You may not want to encourage
vigilantism, and you want people to call the police. We generally want to discourage violence,
especially against an adversary who is behaving peacefully.
When you defend property, what methods may you use? (1) You may use reasonable force under the
circumstances. (2) You cannot use a
spring gun unless that is reasonable force.
This is legally risky in a non-dwelling house. (3) A balance must be maintained between
protecting innocent persons and minimizing harm from dangerous interactions.
Katko v. Briney – You do not have the privilege to use force that may cause death or serious injury against trespassers unless the trespass itself threatens death or serious injury. So mistake does negate the privilege of defense of property. The force involved is limited in particular by the requirement that the peaceful trespasser first be asked to depart, except when the intruder is acting in such a way that a reasonable person would find that such a request is useless or can’t be made in time. Most states have outlawed the use of spring guns and the like.
What if you give fair warning of the spring gun? Does that make it more legal? No, the warning that there is deadly force on
the premises is not sufficient if the deadly force is unreasonable. It may help you legally to give notice if you
have a vicious dog. What about barbed
wire or spiked railings? They may be
considered fair warning in and of itself.
When can deadly or serious force be used to defend property? Such force can be used when your personal safety or that of your family is threatened. Such force can be used to prevent a crime. The more serious the crime, the greater the force that may be used.
You can’t eject a trespasser if doing so would put that
person in unreasonable physical danger.
This might apply to making a drunken guest get in their car if the
person is too drunk to resist. If
personal safety is at risk, ejection is a more absolute right. There may be policy problems, however, if you
apply this to a case where someone is ill with a contagious disease.
People can’t do indirectly what they’re not allowed
to do directly. Thus, spring guns
and the like are illegal, or more properly, if someone is hurt by one you
will be liable. The problem is that
machines do not have discretion like people do.
The goal is to have safe ways to protect your property that provide
notice of their danger, for example, barbed wire.
If you’re privileged to use deadly force in your home, reasonable
mistake is a defense to shooting the wrong person.
One who is wrongfully dispossessed of a chattel by force or
fraud has the privilege to repossess that chattel with reasonable force through
fresh or hot pursuit. This is a
circumstantial decision made case-by-case by a defendant and judged
case-by-case by a jury. Deadly force
will probably never be justified to recover property.
If you wait an hour or a couple of days before pursuing
someone, it’s no longer hot pursuit and you must resort to the legal system to
regain your property instead. If you
voluntarily relinquished your goods to someone else, you have no right to take
them back by force.
Can a repo man use force to take
back your stuff? We want to discourage
them from being violent and instead have them go to court. In general, we don’t want to increase the
number of violent interactions that take place in society. We want to generally discourage
“self-help”. Repo
men must be peaceable.
A shopkeeper can reasonably detain someone who they
reasonably believe stole an item from the shopkeeper. What’s reasonable is by and large a question
for the jury. But what constitutes
reasonable detention? The place
where you are arrested should matter.
The farther away from the store you are, the less likely we are to view
the detention as reasonable. The
amount of force used would also affect the reasonableness of the
detention. We also consider what the
plaintiff said, the value of the item, whether an alarm went off, whether the
person started running, and other relevant facts. We have the shopkeepers’ privilege because of
the problem of shoplifting. If you find
out someone took something several days later, you can’t go after them
yourself. You must use the legal system.
Public necessity kicks in when there exists a great danger
that affects a whole community. The
action taken in public necessity must be reasonable and done to protect the
public. If the government takes your
stuff, you must be compensated, unless you were the one doing the wrong that
caused the “taking”.
A private citizen will be put into this position very
rarely. Public necessity is not a
privilege only for public officials.
Public necessity justifies any act that is necessary for the public good
whether performed by a public or private official. Private citizens may
not be so quick to act because they insure.
Surocco v. Geary – If you destroy someone’s house in good faith and out of
necessity, can you be held liable for damages?
The common law says that when it is necessary to give up one house in
the interests of society (public necessity), the person whose house is
sacrificed can’t sue. Government
officials often have immunity. Why do we
hold private citizens to a higher standard of liability? We generally don’t want citizens to take the
law into their own hands. We also don’t
want to punish public officials for doing their job.
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. The rule is that you mustn’t
harm someone else’s property just to gain for yourself. If a public highway is blocked, you can cut
through adjacent land to get around the obstruction.
Vincent v. Lake Eric Transp.
Co. – Does the defendant have the privilege by necessity to moor the ship
such that the defendant is not liable?
The defendant has a partial privilege to protect its private
property from serious harm. The defendant
will be subject to liability to anyone who is injured.
What kind of force can you use in an educational
setting? You must use reasonable
force. 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.
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. If there is no
serious harm to the public, the defendant is not justified.
Sindle v.
What factors are relevant in determining whether the bus
driver was justified in his actions? (1)
What is the manner and place of occurrence?
(2) Are other courses of action feasible? Intentional torts should be your last resort. (3) Was the defendant acting in the public
interest, protecting persons and property?
(4) Did the defendant have the duty to aid in the apprehension of a
wrongdoer? (5) Was the defendant’s
conduct acceptable and reasonable under the circumstances?
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. – 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 – 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.
Price v. Hartford
Accident and Indemnity Co. – Price’s insurance company refused to pay
a claim. Price tried to sue to get them
to pay.
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.
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) –
evidence that the breach of duty caused damages, and (4) the damages
themselves, which must be actual, not presumed from the fact of the
tort.
Damages for negligence: (1) Lost wages, (2) medical expenses,
(3) pain and suffering (amorphous, the target for tort reform), and (4) future
losses (not related to your inability to work or medical expenses). Pain and suffering are the meat and potatoes
of tort practice.
Blyth v. Birmingham
Water Works Co. – The
defendants are negligent only if they fail to do what a reasonable person would
have done or do something a reasonable person would not have done. It’s an amazing frost! Is there negligence? The court says no because the frost was not
foreseeable. 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. You don’t build water mains to withstand a
once in a lifetime event.
Duty is what a reasonable person does under the
circumstances. Reasonableness is based on the circumstances: (1) Foreseeability
of harm, (2) feasibility of protecting against harm, (3) costs of precautions,
and (4) availability of alternatives. The
Hand formula provides another way to think about reasonableness: is a certain
precaution efficient under the circumstances?
If the probability of a certain harm is very
low, it may not be economically efficient to take precautions, even if after
the fact we know it would have been good to prepare for that harm.
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). Scholars say that the only truly quantifiable term in this equation is the cost of the precautions. The plaintiff must prove that there is a solution that would have prevented the harm. There are a lot of different ways to prevent harm. The formula is just guidance to help us decide whether conduct was reasonable under the circumstances. It’s not a hard and fast rule.
United States v. Carroll Towing Co. – If no one is
working on a barge and the barge causes injuries to others, is the owner of the
barge liable? Learned Hand says that the
owner’s duty depends on three variables: (1) How
likely is it that the barge will break away from its moorings? (2) How big an injury did it cause? (3) How expensive would precautions be? If the expense of precautions is less the
expectation value of the injury, then the court will conclude that the owner
had a duty that was breached.
How does foreseeability play into reasonableness? Reasonable people foresee harm. Reasonable people only take precautions
against harms that are foreseeable. You
can only take precautions against foreseeable harms. If we know someone is negligent, we hold them
responsible for all the foreseeable harms from that negligence.
Davison v.
A reasonable person takes precautions against foreseeable
harm. The first question, therefore,
is: ex ante, was there foreseeable harm?
Even if there was foreseeable harm, there still may be a finding of no
negligence. If we feel that it’s not
feasible to take the precaution and thus protect against the harm, we may let
you off the hook. This is both a cost
question and a technology question.
What a reasonable person does is weigh the costs and
benefits of a particular action.
Reasonableness requires preparations for normal circumstances. The reasonable person considers the
alternatives available to prevent harm. Reasonable
people adhere to community norms. Being
reasonable is relative to the community in which you live. That means that we do not start with a blank slate. There are matters of common knowledge we
expect reasonable people to know and hazards we expect reasonable people to
take into account.
The reasonable person standard is an objective rather than a subjective standard. An objective standard is clearer and better defined. It creates an incentive for people to discover what the fixed standard of care is. An objective standard provides precedent for future cases. On the other hand, an objective standard is more demanding of the defendant.
On the other hand, if the standard is subjective, there’s a
problem of notice because it’s impossible to find out just what is expected of
you in particular. If you use a
subjective standard, each case is basically a whole new case that can be
decided any way you want.
Custom is not dispositive of what reasonable behavior
is. It can be evidence of negligence or the lack thereof, but it’s not the end of
the story. It may be that compliance
with custom is sufficient, but if the court thinks the custom itself isn’t
reasonable, you can still lose.
Trimarco v. Klein – An
“accepted practice” can be shown to be a “legal duty”. Does the
custom require the landlord to replace the glass? The custom seems to be that “when it breaks,
you fix it”. What do we learn about
custom from this case? (1) The custom
must show evidence of negligence. (2) The
custom must be directly on point. (3) Sometimes
we may use custom, while other times we will use B < pL.
Custom can cut both ways: the judge will decide whether
custom evidence comes in. If it gets in,
it will usually resolve the case against the defendant if it shows that the
defendant did not comply with custom. If
the defendant did comply with custom, the defendant may not get off the
hook if the custom itself is negligent. Custom
does not set the standard of care.
If there is a custom, we shall assume it is relatively easy
and cheap to comply with; that is, we assume that customs don’t arise unless
there are substantial dangers to be avoided.
Physical impairments are treated differently than mental
impairments.
Roberts v. State
of
What if the plaintiff is intoxicated and is harmed? That’s a decision that you make. You may be negligent if you don’t adhere to
the reasonable person standard while drunk.
We don’t want to encourage people to argue intoxication, and some would
argue that we think drinking to get drunk is an anti-social behavior.
Generally, children are judged against other children of
like age. The only time we don’t follow
that rule is when a child engages in an adult activity. Some courts will hold children engaged in an
adult activity must satisfy the standard of care of a reasonable adult. Other courts find that children only must
satisfy this standard when they participate in an inherently dangerous
activity.
Why a different standard than adults?
Robinson v.
Lindsay – Billy Anderson was riding a snowmobile and he was pulling
a girl on an innertube. The girl lost her thumb and she sues the
owner of the snowmobile. Should a child
be held to an adult standard of care?
The trial court in Robinson said no. The appeals court says that children must be
held to an adult standard when they are doing something inherently dangerous.
When children act like children, they should be judged as
children. But when they act like adults,
you should hold them to an adult standard of care. Or, when they engage in inherently dangerous
activities, the court may hold a child to an adult standard of care.
Can I, as an adult, adapt my behavior so that a child doing
an adult activity won’t harm me? In
other words, can you tell who is engaged in the activity?
For example, if a nine-year-old drives a car and gets into
an accident, to what standard shall we hold him to? You may argue that driving is an inherently
dangerous activity because we can’t tell who is driving the car. You also may argue that the child should be
held to a child’s standard.
What’s the standard for people with mental
disabilities? It’s the reasonable person
under the circumstances standard. We
want to compensate plaintiffs. Also it’s
hard to prove whether someone is insane or not.
Also, potential plaintiffs may have trouble telling just who is insane
or not insane. Mental capacities are not
treated as exempting circumstances. You
will always be held to the reasonable
person standard. In general, the
insane do not get very good treatment if they commit a tort.
There is no jurisdiction that would rule that if you know
you’re insane, and you get on the road, you’re not liable. How is this
different from heart attacks, strokes, and so on? Well, you can’t prove that you had a sudden
bout of insanity, and we don’t want to have to sort out the truth of insanity
pleas. We leave that to the criminal
courts. It’s hard to distinguish true
incapacity from mere poor judgment.
Is it fair to treat people with mental impairments one way
and people with physical impairments differently? This is a practical decision derived from the
fear of false claims. The court does not
want to get into the business of distinguishing real from fake mental
impairments. On the other hand, we will
bend over backwards not to interfere with the independence of a person with a
physical disability. We’re not too concerned, however, that someone with a mental disability is
liable every time.
Professional
standards of care
The objective standard is “the typical reasonable person
under the circumstances”. The
professional standard is different than that.
The standard of care used in cases involving professionals is acting
with the knowledge, training, and skill of an ordinary member of the profession
in good standing. The standard for
doctors is not what a “reasonable doctor” would do. Professionals get a different standard of
care: it’s what an ordinary member of the profession in good standing would do.
Heath v. Swift
Wings, Inc. – The issue was whether the jury instruction was correct
in this negligence case. The controversy
was whether the pilot, Heath, should have been held to the standard of a
reasonable pilot in general or a reasonable pilot similar to Heath.
Hodges v. Carter
– Attorney malpractice claims have been more successful than teacher
malpractice claims, but they are still tough.
We don’t want to tie the hands of attorneys against making any
decisions. But what are the
requirements? (1) You must act with the
knowledge and skill of an ordinary person in your profession. (2) You mustn’t fail to use reasonable care and
diligence. (3) You mustn’t fail to
exercise your best judgment in attending to your work.
Boyce v. Brown
– Basically, this is a case where it appears the cure was worse than the
sickness. But is it negligence? Custom is important to the determination of a
medical malpractice case. It’s almost
dispositive in such cases. In most
areas, custom alone is not evidence, but in medical malpractice, it is feared
that juries don’t know enough to decide if malpractice happened. We’re not sure if this is a fair result. Outside of the medical profession, custom is
not controlling or necessarily even admissible.
Is it logical to think that doctors get a slightly better
standard for themselves because they have professional obligations that prevent
them from setting a lower standard to serve other interests? Do doctors have an incentive to collectively
lower their standards to keep from being liable? In other professions, we do not allow their
own custom to state the standard. Why
don’t we do that with doctors? Should
doctors be given more freedom?
Morrison v. MacNamara – Should the defendant be subject to
the local standard of care or the national standard of care? The defendant must exercise the “degree of
reasonable care and skill expected of members of the medical profession under
the same or similar circumstances”. The
locality rule says that doctors should only be measured against other doctors
in their community. This court abandons
the locality rule for the first time in this jurisdiction. The court rules that nationally certified
medical professionals should be held to the national standard of care.
Informed consent has three different standards: (1) The reasonable doctor standard (the majority standard), (2) the reasonable patient standard, and (3) the subjective patient standard (small minority).
In a “reasonable doctor” jurisdiction, a doctor testifies as
to what doctors would do. In a
“reasonable patient” jurisdiction, it’s a little trickier because it’s hard to
contemplate such a thing as a “patient expert”.
In this case, you use a “reasonable man” or “reasonable person”
standard. The so-called “subjective
patient standard” says that the patient can say what they would have said and
it’s up to the jury to consider the credibility of the plaintiff.
Only material risks must be divulged. But how can you judge this? Do you judge material risks by the subjective
view of the patient? The patient might
say that “this would have been a material risk to me”. Or, on the other hand, we may set an
objective standard and ask what would constitute a material risk for a
reasonable patient or doctor. So the
questions are: (1) Is this a material risk? (2) Would the patient have agreed to go
through with the procedure if this risk had been disclosed? The material risk must be something that
really matters to the health of the patient.
Can we quantify “material risks”?
In determining materiality, it matters both the probability of the risk
and the gravity of the possible harm (think of pL in the Hand formula). The doctor must provide information about
alternative treatments as well as the risks of non-treatment.
The strict locality rule has been largely abandoned. Some jurisdictions use a rule that says
doctors can be judged against doctors in a similar community under similar
circumstances. Other jurisdictions use a
national standard of care, especially when the doctor in question is nationally
certified.
Exceptions to informed
consent: (1) You don’t need to tell the patient
anything the patient knows or should know.
(2) You don’t need to disclose information that would be detrimental to
the overall best interests of the patient.
(3) You don’t need to disclose in
an emergency situation where consent is impossible to obtain.
There used to be legislation that prevented private
passengers (i.e. not cab fares) from suing drivers in an accident. The theory was that this was necessary to
prevent insurance fraud. Ultimately,
these statutes were found unconstitutional because they treated some people differently
than others. The importance of these
statutes is a demonstration of “negligence plus”, “aggravated negligence” or
“gross negligence”.
If you drive negligently and you get into an accident, no
punitive damages will be allowed.
However, if you drive negligently and are drunk, this could be
“negligence plus”, and you could be subject to punitive damages.
Automobile guest statutes – Guest statutes are where
legislation prohibited passengers from suing drivers of the vehicles in which
they were guests. The thinking was that
guests and drivers would likely conspire to bilk insurance companies for
money. Guests couldn’t sue drivers for
negligence, but could sue for negligence plus.
These statutes are unconstitutional, but these statutes helped define
extreme negligence or willful or wanton misconduct, which could get you
punitive damages.
A classic example is where you’re driving carelessly and you’re drunk. That would be an example of “negligence plus”
and could amount to “wanton or willful misconduct”.
Pokora v. Wasbash Ry. Co. – Did the plaintiff meet the legal
standard of duty when he approached the railroad crossing? The existing rule was that a driver must
stop, look, and listen, as well as get out of his car and look around if
necessary. This Court limits the rule by
saying that this plaintiff had no such duty unless he could have safely stopped
such that he could have gotten out and looked around. The Supreme Court suggests that
questions like this should go to the jury.
The Court is willing to hear evidence of what is customary, and
that’s good information, but it is not dispositive to the case. The jury will hear evidence in cases like
this of whether the rule was right in a given case or if it doesn’t really
apply correctly.
Negligence per se sets up two elements of the negligence cause of action: duty, and breach of duty. The judge makes the determination of whether a particular statute applies based on what harm the statute was designed to prevent and who it was designed to protect.
Negligence per se satisfies the “negligence” part of the
negligence formula. You still need to
prove causation and damages in order to win.
To test for negligence per se, you must find out what injury a criminal statute
is intended to prevent and who you’re trying to protect from that injury. If the plaintiff is actually the person you
were protecting and suffered the injury you were trying to prevent by the
statute, then you’ll have negligence per se.
On an exam, make sure to put these questions down and answer them.
You must convince the judge to adopt the statute to set the
standard of care. The judge must
consider whether the statute describes behavior that is what a reasonable
person would do under the circumstances.
Then you just have to show causation and damages. If the statute applies, you may consider as
the defendant whether there are any excuses from the Restatement you can use. If the statute doesn’t apply, that doesn’t
mean the claim will automatically be dismissed.
The majority rule is that an unexcused violation of statute
is negligence per se. This is the
majority rule. Other jurisdictions may argue that an unexcused violation of
statute is a rebuttable presumption of
negligence. This is the minority
rule. This will likely include the
Restatement excuses. Very few jurisdictions merely accept
violation of statute as evidence of negligence. Evidence of negligence means that it is
evidence; it is some information to the jury that the defendant was
negligent. But it is not the whole
story; rather, it is just evidence for the jury to weigh.
Factors to consider
for negligence per se: (1) Does a common law duty prohibit this
conduct? (2) Does a statute clearly
define the prohibited conduct? (3) Does
application of negligence per se yield strict liability? (4) Will liability result in financial ruin
that is disproportionate to the seriousness of the defendant’s conduct? (5) Did the injury result directly or
indirectly from violation of the statute?
The Restatement excuses: (1) The
violation is reasonable because of the actor’s incapacity. (2) The actor neither knows nor should know
of the occasion for compliance. (3) The
actor is unable to comply after reasonable diligence (impossibility defense). (4) The actor is confronted by an emergency
not due to his own misconduct. (5) If
the actor complied, greater risk of harm would result.
Is it negligence per se when a child violates a statute? Say the child jaywalks. Should the child be judged as an adult? The child may be able to make the argument
that the child doesn’t have the capacity to know. The child would also be judged on a child’s
standard rather than an adult standard.
The child’s standard would be lower than the adult standard.
Why have negligence per se? (1) It would be weird for a court to approve
conduct as reasonable if it violates a criminal statute. (2) If the legislature sets the standard of
care, you don’t need the jury to say what behavior is reasonable. In other words, there is better evidence of
society’s views on what behavior is reasonable and unreasonable. (3) Negligence per se also deals well with
cases of recurring conduct. If certain
statutes will be treated as the standard of care, society will be on notice of
how they have to act in order to be considered reasonable.
Should the absence of a required license, by way of
negligence per se, automatically make you liable for any harm you cause? Courts won’t accept the absence of a license
as negligence per se, but it can be used as evidence. It’s dangerous to say that the licensing
statute sets the standard of care, because the license may not have anything to
do with how good the person is at their profession. Legislatures can circumvent this presumption.
Ney v. Yellow Cab Co. – What was the intent of the
statute? Did the violation of the
statute cause the injury, or did the act of the thief intervene such that the
violation was not the proximate cause? A
standard of conduct established by statute will be adopted when, among other
things, it is designed to protect against the harm that actually resulted. Note that you won’t be held responsible
for a tort if an intervening criminal act actually causes the harm except
when the criminal act is foreseeable.
Perry v. S.N. and S.N. – The absence of an equivalent common law duty should be
considered when decided whether negligence per se applies to the statute in
question. Beyond this, there are a
variety of factors a court may consider in deciding whether to create a new
legal duty.
Res ipsa
loquitur is a doctrine that applies to cases when
there is little doubt that the defendant is at fault. For example, barrels don’t just fall by
themselves in the absence of negligence.
Res ipsa loquitur shifts the burden of proof to the defendant by
saying “this doesn’t happen unless there’s negligence”. Res ipsa loquitur is intended to cure
the unfairness of the defendant’s superior knowledge. However, it’s a double-edged sword and it
could result in actually creating unfairness. Res ipsa loquitur is a last resort claim. Only rare cases trigger res
ipsa loquitur. If you have direct evidence in regard
to the alleged negligence, you don’t need and won’t get res
ipsa loquitur.
Three factors for res
ipsa loquitur: (1) The accident does not happen in
the absence of negligence. (2) The
defendant had exclusive control of the instrumentality that caused the
injury. (3) The plaintiff has done
nothing to contribute to his or her injuries.
Note that all three of the elements must be present in order to use a res ipsa loquitur
theory at trial.
Ybarra v. Spangard – Usually, you can’t do res ipsa loquitur
when there are multiple defendants.
However, we are sympathetic to Mr. Ybarra because it seems there is no
other way for him to recover and because the defendants have such superior
knowledge. What’s the problem with
multiple defendants in a res ipsa
loquitur case?
You can’t prove which particular person was negligent. What other problem do you have? You can’t prove which instrumentality
caused the injury. The plaintiff has no
information at all.
These are the defenses: (1) There
are lots of defendants. (2) There are
lots of instrumentalities. (3) The
control of the instrumentality that caused harm is uncertain. Therefore, as a consequence of having many
defendants, it is hard to prove the element of exclusive control.
The real justification is that we feel that the
defendants have superior knowledge and we want to use res
ipsa loquitur to “smoke
out” the defendants and make them testify.
Burden
of proof in res ipsa loquitur
Res ipsa
loquitur – three views of burden of proof: (1) Res ipsa loquitur
creates a permissible inference of
negligence: the jury can say “we agree with you and find for you” or “we
disagree with you and find against you”.
(2) Res ipsa loquitur creates a rebuttable
inference of negligence that the jury can reject: the defendant must
affirmatively rebut the inference. (3) Res ipsa loquitur
shifts the burden of proof to the defendant: the defendant has to prove that
they didn’t do it.
Actual or but-for
causation asks the question: Did the defendant’s negligent conduct
cause the plaintiff’s harm? But for the
negligent conduct of the defendant, the plaintiff’s harm would not have
occurred. We don’t want defendants to be
negligent; however, we won’t hold them liable if the harm would have happened
either way. If the accident would have
happened even in the absence of the defendant’s negligence, then the defendant
is off the hook. In some sense,
the defendant caused the accident, but it’s not their negligence
that caused the accident. Just because
someone caused something doesn’t mean that it’s their fault. On the other hand, we may hold some
defendants liable if their negligence significantly increases a risk.
Perkins v. Texas and New Orleans Ry.
Co. – Was the train’s
excessive speed the actual cause (cause-in-fact) of the
collision? You can’t sue for negligence
unless such negligence was an actual cause of the harm. Negligence is an actual cause if it was a substantial
factor in bringing about the harm.
Gentry v. Douglas Hereford Ranch, Inc. – Were the defendants negligent as a
matter of law? There must be
proof of causation in order for a negligence action to lie. Furthermore, mere speculation or suspicion is
not enough to “sustain an action or to defeat a motion for summary judgment”. There may well be faulty stairs in this
case, but were they the actual cause of the accident?
Reynolds v. Texas & Pac. Ry.
Co. – “[W]here the
negligence of the defendant greatly multiplies the chances of accident to the
plaintiff, and is of a character naturally leading to its occurrence, the mere
possibility that it might have happened without the negligence is not
sufficient to break the chain of cause and effect between the negligence and
the injury.” How much is the likelihood
of falling increased by no lights and no handrails? This is the operative question for the
jury. They find that this increase
is significant. The jury finds that,
more likely than not, the lack of lights and railing caused the accident rather
than the weight of the plaintiff.
Kramer Service, Inc. v. Wilkins – Was the hotel’s negligence the
actual cause of the skin cancer? The
plaintiff must prove as an element of the negligence cause of action that the
defendant’s negligence was the actual cause of the harm done to the plaintiff. How is this case different than Reynolds
(the fat lady falling down the steps)?
It could be argued that not lighting the stairs is far more likely to
cause a fall than a cut could cause cancer.
There is an expert testimony issue here: the plaintiff’s expert says
that there may be causation, while the defendant’s expert says there is no
causation.
Wilder v. Eberhart – The plaintiff had her stomach
stapled. Her esophagus was injured. She sued for medical malpractice. The
plaintiff’s experts said that the injury could have only been caused one
way. The defendant’s experts were going
to say that there may be other possible explanations. The court did not allow the latter testimony,
focusing on the idea that the explanations are only possible. You
can’t let the plaintiff control the case by having an expert who is willing to
say that “this is the way it happened” and thus short-circuiting the
defendant’s opportunity to explain alternative causes. The explanation does have to add up to a
rebuttal of the plaintiff’s case.
You can recover for increased risk of harm. If you can establish by expert testimony that
your risk of some harm is increased by a certain percentage, you can recover
for that. It’s really hard to prove,
though. You can either show that (1) the
harm was more likely than not, or (2) there was a loss
of the chance that the harm would be avoided (less than 50%).
Under the traditional rule, you must show at least a 50%
loss of likelihood of life. Under the
rule of Herskovits, you can partially recover
for a less than 50% loss of likelihood. In
order to sue under the “loss of chance” theory, the “loss of chance” must be
substantial: it can’t be 1% and probably can’t be 5%.
How do you calculate the damages? You could multiply the “loss of chance” times
the full damages. In some jurisdictions,
on the other hand, it’s up to the jury.
Still other jurisdictions say that the chance lost is precisely the loss
that should be awarded.
Daubert v.
Merrell Dow Pharmaceuticals, Inc. – This case deals with what expert
testimony we will allow in negligence suits.
This case supercedes an older rule that came from Frye: Expert
testimony must be based on scientific principles that are generally accepted in
the scientific community. Under the new Daubert rule, the trial judge must be
satisfied that the scientific knowledge is (1) helpful to the jury and (2)
derived from a decent scientific method (based on “good grounds”). This is a pretty broad standard. A trial court judge is the gatekeeper. If he or she doesn’t let in the scientific
evidence that the plaintiff or defendant want to present, it will have an
impact on proof of causation.
The Supreme Court also gives some factors to be taken into
account: (1) whether the theory or technique is generally accepted, (2) whether
the theory has been subject to peer review, (3) whether the theory can be
tested, and (4) whether the error rate is acceptable.
The biggest problem with but-for causation is having two
causes acting at the same time. When two
negligent forces act at the same time, how do you figure out liability? How do you establish that either one
is the but-for cause?
When separate acts of negligence
combine to produce a single injury, each tortfeasor is liable even though
neither act alone would have caused the injury.
If you have two forces acting at the same time and both
forces are the possible cause, you just sue both and sort it out later. When two separate acts of negligence combine
to produce a single injury, each tortfeasor is liable even though neither act
alone would have caused the injury.
The “but for” test doesn’t work when two actors are
negligent and act at the same time. When
you have two negligent actors or one negligent actor and one “innocent force”,
you must use the substantial factor test to figure out who is at fault. In cases like this, the “but for” test fails. What constitutes a material or substantial
factor? What do we mean by material or
substantial?
Anderson v.
Minneapolis St. P. & S. St. M. R.R. Co. – Say there is a negligent actor and an innocent actor. A fire that was started negligently by the
defendant combined with a fire of unknown origin. Is the railroad liable? Is the defendant’s fire a “but for” cause of
the plaintiff’s injury? Clearly no. We don’t
know which fire did it, so how do we decide who to hold responsible? In this case, the defendant is found 100%
responsible.
There are some alternatives to charging the defendant with
the full liability. The Restatement
allows apportionment between the defendant and the innocent cause. The defendant can argue that he should be, at
most, 50% liable for example.
Summers v. Tice – Can both defendants be held liable when only one was in fact
responsible? Both defendants may
be held liable if both were negligent. This
is a very important case that is followed throughout the country. Summers is a
theory of alternative liability. The
burden of proof shifts to the defendant if: (1) Each defendant is shown to be
negligent, (2) the actual wrongdoer is one of the defendants, and (3) the
nature of the accident makes it impossible to prove negligence either way. The Summers
theory is universally accepted.
How can the plaintiff win in a case like this? The court decides to shift the burden of
proof to the defendants. How does the
court justify this? If they don’t shift
the burden of proof, the plaintiff will be without a remedy. Compare this situation to the one in Ybarra,
where there was asymmetric information between the plaintiff and defendants. However, you can distinguish this case from Ybarra
because the two hunters aren’t working as a team. There’s more reason to shift the burden when
the defendants are acting in concert.
If we force the defendants to fight each other, they might come
forward with information they would otherwise be unwilling to provide. There are several reasons to shift the burden
of proof to the defendants. The view is
that, as in res ipsa loquitur, defendants have better access to information and
they will be better able to establish, for example, which bullet hurt the
plaintiff. We know these defendants were
both negligent. We know that the
defendant who didn’t hit the plaintiff is still culpable in some sense because
they were responsible for obscuring the evidence.
Sindell v. Abbott
Laboratories – The
plaintiff alleges that DES caused her to get cancer. The plaintiff sued five drug companies that
represented 90% of the market, but the plaintiff can’t prove which manufacturer
made the particular DES that the plaintiff’s mother took. The trial court dismisses the action and the
plaintiff appeals.
There are several possible theories: (1) The Summers
theory shifts the burden to the defendants if all the defendants are found to
be negligent. (2) The companies worked
together in a conspiracy to sell a dangerous drug. (3) The theory of enterprise liability says
that if the plaintiff can show by the preponderance of the evidence that all
the defendants are before the court and that one of the defendants manufactured
the DES then the court will shift the burden of proof to the defendants. (4) The theory of market share liability says
that all the manufacturers would be held liable, but only in proportion to
their market share in the drug.
In this particular case, not all of the defendants
are before the court, so we can’t use enterprise liability.
Why should there be liability in Sindell,
according to the court? (1) We shouldn’t
let wrongdoers off the hook and leave the innocent without relief. (2) The court claims that defendants are
better situated to bear the cost or risk of harm. (Cole thinks this is a little bogus.) (3) We should deter other companies from
selling dangerous drugs by raising the specter of liability down the road.
In DES cases, the theory of market share liability is
used. All the manufacturers of a
substantial share of DES are brought before the court. Each defendant is liable for the portion of
the judgment that is proportional to their market share unless the defendant
can rebut the connection between their particular drug and the harm done. How is market share liability different from Summers? In
market share liability, you don’t have all of the defendants in front of you.
Actual causation is usually very easy to prove, but we’re
not going to hold defendants liable solely on this basis. We only want to hold defendants liable when
we think they could have foreseen or prevented the harm they
caused in some sense.
The rationale for proximate cause is that we’re trying to change
defendants’ behavior. We should only
hold defendants responsible for harm that they could reasonably foresee, with
some exceptions and limitations. What kinds of harm might I reasonably expect
to occur if I am negligent in a particular way? The goal of the law is to keep individuals
from acting unreasonably. However,
people can’t change their behavior to avoid freak occurrences.
Ryan v. New York Central R.R. Co. – Is the owner of a burning building liable to the owners of adjacent buildings? Everyone is liable for the proximate (immediate) results of their own acts.
Proximate cause sometimes limits liability basically on the
basis that the defendant could not possibly pay for all the damages. The theory is that it doesn’t really benefit
anyone for companies to go bankrupt.
This doctrine is surely open to criticism, but it is one that is applied
frequently.
Bartolone v. Jeckovich – Can
the defendant be held liable for aggravating the plaintiff’s pre-existing
psychological condition through his negligence?
A defendant must “take a plaintiff as he finds him” meaning that the
defendant is responsible for any harm resulting from the aggravation of a
pre-existing illness. This is similar to
the “eggshell skull” or “thin skull” rule of intentional torts. How do we justify the “eggshell skull” rule? (1) It’s easier to administer than a
foreseeability scheme. (2) The accident
victim can get full compensation. (3) The
law places a very high value on life.
Proximate causation asks whether liability should be limited
to foreseeable consequences of negligence.
If a physical injury is foreseeable, the defendant is liable even if the
consequences of the physical injury are out of line with one’s expectations. This is known as the “thin skull” or
“eggshell skull” rule. This gives the
defendant extra incentive to act reasonably under the circumstances.
In re Arbitration Between Polemis
and Furness, Withy & Co., Ltd. –
The
defendants will only be held responsible for the proximate (i.e. not too
remote) results of their negligence. If the breach of duty and
damage to the plaintiff is the direct result of defendant’s negligence, then
the defendant will be liable. It doesn’t
matter what is foreseeable as long as
something is foreseeable. If the defendant is negligent, he will be
liable for any harm that is directly linked to his negligence. Under this case, you have liability no matter
how remote the consequences of one’s negligence are. The rule of this case is tough on two actors
acting very close in time.
The Polemis test is:
(1) Was the defendant negligent? (2) Was the defendant’s negligence a direct
cause of the damages? This is no longer
the current test, but it is important to know.
It is an alternative to the foreseeability analysis of Wagon Mound
and Palsgraf. What can be said
for this rule? It’s easy for a judge to
apply and it’s easy to predict what will happen in court.
Wagon Mound No. 1
–
The new rule is that there is no liability for unforeseeable consequences,
even if the defendant actually caused them. The defendant wins! Note the difference from the old rule: under
the direct causation theory, if the plaintiff is not negligent, then the
defendant must be liable.
Economic harm is treated differently from ordinary damages. Sometimes we won’t hold someone liable if it
would be impractical. Generally
speaking, we won’t hold a defendant liable for the pure economic harm of their
negligence unless that harm is very closely related to the negligence. Instead, the court adopted a new test: Ex
ante, before the accident happens, what would a reasonable person foresee as
the kinds of harms that might occur stemming from that negligent conduct? An explosion due to a negligently carried
plank is not foreseeable harm.
Thus, by the rule of Wagon Mound No. 1, Polemis
would have gone the other way.
Wagon Mound No. 2
– This case, according to Cole, is driven by what the engineer should have
known about the risk of oil on water catching on fire. What’s different about this case is the
lawyering. The lawyer brings forth
evidence that something like this has happened before, and thus the engineer
should have been aware that this was a possibility. Another difference between the cases is that
the plaintiffs will not be barred from recovery by their own negligence. This case makes it very difficult for a
defendant to avoid liability. The
defendant loses. Compare this case to Carroll Towing.
In Wagon Mound No. 1, you can look at the
circumstances surrounding the accident to find out if the risk was really
foreseeable. Wagon Mound No. 2
comes out a different way based on different lawyering.
Typically, you would think that the risk of spilling oil
would be fouling the dock, but not burning it.
You have to draw the line somewhere.
But if all you have to claim is economic harm, you’re very unlikely to recover
under foreseeability analysis.
If you say that one of the foreseeable risks of doing
X is Y and Y actually somehow occurs, then you’ll have liability. It doesn’t matter how it happens as long as
we could foresee that it would happen.
Palsgraf v. Long Island R.R. Co. – Cardozo finds that the defendant
has no duty to the plaintiff related to falling scales. Cardozo says that she is an “unforeseeable
plaintiff”. Andrews gets more into the
causation issue. This case introduced
the concept of the “zone of danger”. If
you’re within the “zone of danger” created by the defendant’s negligent
conduct, then the defendant will be liable for your harm. Andrews would like to see liability for the
natural consequences of the defendant’s negligence. The Andrews view is not the dominant
view. Many people are concerned that
there are many potential plaintiffs who are not allowed to recover under the
majority rule that ought to be able to recover.
Proper incentives are created if the defendant is found
not liable in this case because there’s
no way to get the railroad to change their behavior with respect to people they
can’t foresee. Reasonable people will
try to foresee the risks of their activities and avoid risks that may harm
foreseeable plaintiffs.
Kinsman – A ship was set
adrift by a current, which was a foreseeable intervening force. The ship was carried downstream, where it
struck and collapsed a bridge. The
collapse caused the river to flood, damaging the plaintiff’s factory on the
riverbank, which was an unforeseeable result.
The foreseeable damage to the plaintiff’s factory was having it
get hit by the runaway ship. It turns
out, however, that the defendant was liable for the flooding. The defendant doesn’t have to pay damages to
all of the people who suffered purely economic losses due to the bridge being
out. This is a matter of public policy.
Intervening and superceding causes
Yun v. Ford Motor Co. – Did the defendants’ negligence
constitute the proximate cause of the harm to Chang? The defendant shall not be found liable
when a superseding cause other than the defendant’s negligence is responsible
for the harm. Chang was negligent
in deciding to risk his life to recover a tire.
He had plenty of viable alternatives, such as calling the police to help
them retrieve the tire.
Derdiarian v. Felix
Contracting Corp. – Was the conduct of the construction company the
proximate cause of the plaintiff’s harm?
The defendant will not be held liable if the intervening act of the
third party is not a foreseeable consequence of the defendant’s negligence.
Why is Derdiarian suing the
contractor? He wasn’t an employee of the
contractor, but rather a subcontractor.
Why doesn’t he sue the subcontractor instead of the general contractor? You can’t sue the subcontractor because you
can’t sue your own employer under worker’s compensation statutes.
What risks are created by the failure to make the workplace
safe? There is no barrier, so there is a
risk that a car might come into the workplace.
That in fact happened. It does
not matter that it happened due to an epileptic seizure. The precise manner in which an event occurs
need not be anticipated, so long as the harm is the harm which we expected.
The car entering the work site is a foreseeable intervening
cause. A reasonable person would put a
barrier up at the work site to prevent this foreseeable act.
Watson v.
Kentucky & Indiana Bridge & R.R. Co. – What risks were created by the
negligent spilling of the oil? There
might be the risk that someone will slip on oil. Someone might negligently drop a match on the
ground. However, intervening criminal
acts of a third party are seen as unforeseeable. The exception to the rule is when you foresee
that criminal activity might happen. In
that case, the criminal act is not a superseding cause, but a foreseeable
intervening act.
Intervening forces are foreseeable by a negligent
person. Superceding forces are not
foreseeable by a negligent person. This
is just a matter of labels (like “penalty” versus “liquidated damages”). If you could have foreseen an intervening
force, you’ll be liable for it, even if the manner in which it comes about in
an unexpected way. Sometimes, we’ll cut
off liability because the intervening force is so unforeseeable that we
actually call it a superceding force.
Fuller v. Preis – It is argued that traumatic organic brain
damage created the irresistible impulse for
Lewis to commit suicide. Basically, the
plaintiff argues that Lewis went insane because of the car accident. Does suicide break the chain of proximate
causation? In a minority of jurisdictions,
it does unless you prove that it was an irresistible impulse. In other jurisdictions, suicide is always a
superceding cause that breaks the chain of causation.
If a defendant owes a duty to someone, they usually also owe
a duty to any other person who comes to the rescue of the person in
danger. “Danger invites rescue.” It’s foreseeable that rescuers will come
along when you create a danger. As a
matter of policy, a rescuer can take some risk in conducting a rescue.
McCoy v. American
Suzuki Motor Corp. – McCoy stopped to help somebody who crashed
in a Suzuki. He got hit by another
car. He sues the manufacturer of the car
that crashed. The allegation is that a
defect in the Suzuki Samurai caused it to crash which caused him to stop and
rescue the driver which caused him to get hit by a car on the highway.
Rescuers are well-treated by courts because public policy
encourages them. However, rescuers must
still prove proximate cause. Rescue is
highly valued by the law. Courts will
work hard to get cases brought by rescuers to a jury. Even people who rescue people from suicide
can bring suit against the person who attempted suicide. Part of the deal with rescue is public
policy. We want to encourage rescue. You can rescue property as well as people.
Enright v.
Eli Lilly & Co. – This is a DES case. The grandmother took the drug, the mother had
reproductive problems, and the daughter had birth defects. Is that foreseeable? What if we know that the daughters of
pregnant women who take DES will have reproductive problems?
Is there proximate cause here? The court decides as a matter of policy not
to look at multi-generational effects.
So this question isn’t resolved in the case, but it could be important. Cole is not convinced that there is
necessarily a connection between DES and the granddaughter’s cerebral palsy.
Why does the court cut off liability at the second
generation? The court doesn’t want
liability to get out of hand. The court
talks about the FDA as an alternative way to encourage drug safety. The court seems to say that if the FDA says a
drug is OK, the court will not step in as much.
The court is also concerned with over-deterrence. Drugs have a greater value to society than
other goods, but they also inherently carry risks. We want to favor the development of new
drugs, even though this creates risks for the people that take them.
What are the arguments in favor of social host
liability? It forces social hosts to be
responsible when they’re serving guests in their own homes. It may prevent drunk driving. We want social hosts to recognize when guests
are intoxicated and shouldn’t be given any additional alcohol. We want to make sure that victims are
compensated. A drunk driver might not
have enough money to compensate the people they injure. With social host liability, you have another
pocket to pick to get money for the victim.
We want to deter drunk driving.
Also, social hosts are already liable for serving alcohol to
minors. Licensees are also liable under
the Dram Shop Act. The court suggests
that they have “surrounded” the social gathering situation with liability, and
so it’s not such a big step to, in effect, “fill in
the gap”.
What are reasons not to
have social host liability? Well, how
can a social host know what a visibly intoxicated person looks like? It puts a burden on social hosts that they
may not be in a position to bear. On the
other hand, a bartender has enough experience to know when to stop giving
people drinks. On the other hand,
there’s a possibility that you could serve someone who is drunk more alcohol
and become 100% liable for the harm they cause (under joint and several
liability) if the drunk person doesn’t have any money. Some would say that fault should lie with the
drunk driver. Also, sometimes a social
host is drinking, unlike a bartender. A
social host also will have difficulty in preventing a guest from departing. Commercial establishments are more likely to
have insurance to cover liability than private people. In that way, the businesses can spread the
costs of potential liability to their customers by raising prices. We also don’t want to inhibit social
gatherings! The dissent says that those
are important! We say that there is a
public policy in favor of gathering together.
It’s hard to know when you’re a social host what lengths you should go
to in order to stop a drunken guest.
There is no duty to take affirmative action unless: (1) The actor has, with or without fault, caused the harm or the
risk of harm. (2) The actor took
affirmative steps to aid another. (3)
The actor has a special relationship with the other person.
Hegel v. Langsam – Does a
university have a duty to keep its students out of trouble? A university must maintain law and order on
campus, and no one may contribute to the delinquency of a child. Why, on the other hand, was the university
held liable for a rape in one of its dorms?
This is sort of like landlord liability.
There is a difference when the university asserts control over an
area. The cases can be reconciled
because the students can’t take care of themselves, but the university can take
steps to protect them.
L.S. Ayres & Co. v. Hicks – Did the defendant
have an obligation to rescue the plaintiff?
When an injury to an invitee results from the use of something under the
invitor’s control, the invitor
has a duty to assist the invitee, or else the invitor
will be liable for any aggravation of the injury resulting from their failure
to intervene.
Tarasoff v.
Regents of the
Originally, contributory negligence was a complete defense
to negligence. This is not a defense to
intentional torts. 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.
Butterfield v.
Forrester – This is the first appearance of the contributory
negligence doctrine. The jury found for
the defendant on a contributory negligence theory. One judge 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.
If a helpless plaintiff meets a negligent defendant, and you
can show that the defendant had a chance to prevent an accident, then the
plaintiff will not be barred from recovery.
This is a limitation on the harsh contributory negligence doctrine. Contributory negligence will bar the
plaintiff’s recovery unless the
jurisdiction adopts the doctrine of last clear chance. This doctrine is kind of like a band-aid on
contributory negligence, as opposed to comparative negligence, which is major
surgery to contributory negligence.
Davies v. Mann
– A “helpless plaintiff” garners 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.
What’s the role of last clear chance in a comparative negligence jurisdiction? It doesn’t have any real effect. However, you would argue to the jury if you were a plaintiff that the plaintiff wasn’t negligent because the defendant had the last clear chance to prevent the accident and that therefore the jury should apportion the damages more heavily to the defendant rather than the plaintiff. Last clear chance educates you on figuring out apportionment of liability.
If the plaintiff is inattentive, the plaintiff doesn’t
recover under last clear chance when the defendant is also inattentive. If the plaintiff is inattentive and the
defendant discovers the plaintiff’s peril, the plaintiff can recover.
Under this doctrine, the defendant is only liable for the
portion of the harm the defendant actually causes.
There are three kinds of comparative negligence
jurisdictions: (1) Pure
comparative negligence: a plaintiff can always recover; they will just have
their recovery reduced based on what percentage of the negligence they are
responsible for. (2) Modified, 50%
jurisdiction: The plaintiff can recover if the plaintiff was 50% responsible or
less for the accident. In other words,
the plaintiff’s negligence must be equal or less than the defendant’s
negligence. (3) Modified, 49%
jurisdiction: The plaintiff can recover if the plaintiff was 49% responsible or
less. In other words, the plaintiff’s
negligence must be less than the defendant’s negligence.
This doctrine says that if a person is actually aware of a
risk and knowingly decides to encounter it, then that person accepts
responsibility for taking that risk. If
you’ve ever participated in a dangerous physical activity, you probably signed
a release, like if you bungee jumped.
The proprietor of the bungee jump wants you to sign a release so he
doesn’t get sued. “This is a more a
contract law thing than a tort thing in a sense.” The rationale behind this is that people
should have the freedom to do dangerous and stupid things if they want to.
In some jurisdictions, assumption of risk has been
abandoned, but it can be used as a method of apportionment of damages. Another way of explain assumption of risk is
by saying there was no duty between this defendant and this plaintiff. We can either say that the plaintiff has
assumed the risk of the defendant’s negligence, or else the defendant had no duty
to that plaintiff.
Winterstein v. Wilcom – Is
the agreement by the plaintiff to assume the risk enforceable? Parties are permitted to contract out of
duty of care as long as the bargaining is “free and open” and the agreement
doesn’t affect the “public interest”. Courts
don’t like exculpation clauses, but they will enforce them.
There is an exception to express assumption of risk. If there is no alternative to the plaintiff,
or if it’s an essential service, then we’ll grant an exception. There is a way out of express clauses, but
it’s a high obstacle to overcome.
The defendant has the burden of proof to show that the
plaintiff had actual knowledge of a particular risk. This is a subjective test: did this
particular plaintiff know of this particular risk? The defendant also must prove that the
plaintiff appreciated the magnitude of the risk and that the plaintiff
voluntarily encountered the risk. Even
when this has been subsumed into comparative negligence, courts will still use
this doctrine.
Rush v.
Commercial Realty Co. – The rule of this case is that the plaintiff
does not voluntarily assume a risk if the defendant is providing a necessary
function and there are no reasonable alternatives.
Primary
versus secondary assumption of risk
The only true assumption of risk is secondary assumption of
risk. Primary assumption of risk is not
a defense. Primary assumption of risk is
a situation where the plaintiff didn’t properly prove duty, but somehow it got
to the defendant anyway. With secondary
assumption of risk, the defendant breaches a duty to the plaintiff, but then
the plaintiff, perceiving the risk, proceeds anyway. The key for understanding assumption of risk is understanding the specificity of the risk you’re
assuming. Part of assumption of risk is
a cost-benefit analysis.
Bierczynski
v.
Joint and several liability
Joint and several liability has
historically been the way to hold joint tortfeasors liable. In general, courts have either kept joint and
several liability or abandoned it after adopting
comparative negligence.
Why do we have joint and several liability? We want to plaintiff to be fully
compensated. Also, we think that
injuries are indivisible and we don’t know how to apportion liability among the
defendants. We also worry about the
financially insolvent defendant. We also
think the defendant is more at fault than the plaintiff.
Why not have joint liability? Why should we make one defendant be the
insurer of another defendant? Why should
one defendant pay just because he’s unlucky that he’s the only solvent
defendant? We also may be over-deterring
behavior: we will make defendants take excessive care. A solvent defendant, having very little
responsibility for the harm (like 1% liability) may have to pay the entire
judgment.
Joint and several liability is a
target for tort reform. It is claimed
that it punishes defendants too heavily for their negligence. A conservative viewpoint would be to
eliminate joint and several liability while personal
injury lawyers and trial lawyers want it.
There will continue to be a lot of changes made by legislatures in the
future.
No contribution is allowed between intentional wrongdoers. Contribution
exists between defendants who are jointly liable.
Knell v. Feltman – There doesn’t need to be a joint judgment against two people who are negligent in order to enforce contribution.
Yellow Cab Co. of D.C., Inc. v. Dreslin
– May there be joint
liability between Mr. Dreslin and the cab company as
to Mrs. Dreslin?
Non-immune defendants can’t seek contribution from immune defendants. Dreslin is found
not to have to contribute to Mrs. Dreslin’s judgment
because she’s his wife. Dreslin isn’t liable to his wife because he has spousal
immunity. What is the issue? Immunities have been abrogated by most
jurisdictions. The case turns on the
fact that the Dreslins can’t sue each other. You can’t recover from your spouse. There used to be other kinds of immunities
too.
What happens if one tortfeasor settles and the other one
doesn’t? Someone who is liable for only
a little percentage of the harm could be hit up for a lot more if one of the
other defendants settles or is insolvent.
This encourages settlement. The alternative
view is that you just pay for your share.
The risk of a low settlement goes to the plaintiff instead of the
non-settling defendant.
Liability
for subsequent injuries
Bruckman v.
Pena – Defendant #1 is not liable for damages from an accident caused
by defendant #2 where defendant #2 is a distinct cause. If the injury is indivisible, all defendants
are liable. If the plaintiff was already
injured, the second defendant is liable for the harm caused (mitigated by the
plaintiff’s condition). The plaintiff’s
condition is a jury question.
Michie v.
Dillon v. Twin
State Gas & Electric Co. – Everyone agrees that the boy was
negligent and that the electric company was also negligent. But how should we allocate liability?
Damages can be reduced in situations where someone already
has some existing condition. If you kill
someone with cancer, they’re already likely to die, and so their damages are
likely to be reduced. The value of
someone’s life is to be measured by their anticipated future earnings and other
factors.
Why have a statute of
limitations? There’s a possibility of
lost evidence and witnesses forgetting.
The statute of limitations for intentional torts is typically two years,
and for negligence it’s three years. The
idea is that you should know what happened to you and be able to articulate a
case for damages shortly thereafter.
But there’s just some point at which you just can’t sue
anymore. It lets defendants get on with
their lives. The statute of limitations
doesn’t mean a trial has to start at any particular time.
Teeters v. Currey – The issue is when the statute of
limitations clock starts to run.
Usually, the clock starts with the injury. The old rule was that the clock starts
running from the time of the injury. On
the other hand, the new rule is that the clock starts running when you find out
about the injury. Also, the statute of
limitations doesn’t start running until you become an adult. This is part of the discovery rule.
What if you discover an injury but not who caused it?
The test of when the clock starts ticking is when you know
or when you should know, but how should we decide when someone should know?
Statutes of repose cut off discovery rule filings beyond a
certain point.
To what extent are you liable to people off your property
for things that happen off your property?
You should check the trees in your yard every once in a while. There’s a different duty in an urban area
than in a rural area. There is no liability for natural conditions, or there is
a duty of reasonable care.
Artificial
versus natural conditions
The court places a lower duty of reasonable care with
respect to static artificial conditions than with respect to moving artificial
conditions.
The more active the conduct and the creation of the risk the
more likely it is that the court will make you responsible for it.
Generally, people can use property the way they like.
Categories
of entrants onto land
There are three categories of entrants onto land that we’ll
deal with: (1) trespassers, (2) licensees, and (3) invitees.
We’ve talked about invitees the most. Trespassers are entrants who have no right to
be on property. Usually, there is little
or no duty to them. Once a trespasser is
known, you have a duty to inform them about dangerous conditions on your
property that wouldn’t otherwise be obvious.
Licensees are like social guests. Generally, you only have a duty to warn them
of dangerous conditions they are unlikely to discover on their own.
Invitees are people who come into a business or another
place that’s open to the public. The
highest duty of a landowner is to an invitee.
The general rule for trespassers is that there’s no duty to
an undiscovered trespasser. Notice how
this is reminiscent of the “last clear chance” rule.
This is a “rule-oriented” part of the course. Your duty to licensees and trespassers is
less than the ordinary standard of care.
However, the standard of care that you are due invitees is precisely the
ordinary reasonable standard of care.
Why should landowners have to duty to protect wrongdoers who
are committing a tort against them?
Sheehan v. St. Paul
& Duluth Ry. Co. – You mustn’t
wantonly and willfully harm a trespasser, even though there is no duty to an undiscovered trespasser. Trespassers don’t get the benefit of last
clear chance because they’re there wrongfully.
You do have a duty to warn known trespassers of artificial
conditions that involve a risk of death or serious injury.
A licensee is one who enters land with the landowner’s
permission, but for her own purpose or business rather than for the landowner’s
benefit. There is a duty to warn a
licensee of dangerous conditions known to the landowner where he knows it
creates an unreasonable risk of harm to the licensee, the licensee is unaware
of the condition, and the licensee is unlikely to discover it.
The presumption that someone comes to your house for social
reasons is a strong presumption. Though
there is a business aspect to this relationship, the social aspect seems to
overwhelm the business aspect. Courts
will declare pretty much anything that happens at a house a licensee situation
at best. Homeowners shouldn’t have the
burden of preparing for business visitors.
A landowner owes invitees the duty to use due care to inspect and discover the presence of any dangerous natural or artificial conditions as well as warn invitees of those dangers. If by warning invitees you can make the condition safe, then you’ve fulfilled your duty. However, if it’s still dangerous, your duty is not merely to warn, but to fix the problem.
You can within someone’s premises change from an invitee to
a licensee or a trespasser. If the
plaintiff had just been a licensee instead of an invitee, the defendant may
have still been liable.
Whelan v. Van Natta – The plaintiff is an invitee who turns
into a licensee. Your classification may
change depending on what you’re doing and whether you’ve exceeded the scope of
your invitation. You might go from
invitee to trespasser, even. Some states
reject these classifications.
Wilk v.
Georges – The defendants knew that the floor was slippery and dangerous
and put up signs to warn, but the plaintiff didn’t see the signs and slipped
and fell. The plaintiff is
unquestionably an invitee. The warning
says that the floor is slippery. Why
doesn’t the plaintiff just recover, given that she’s an invitee? It turns out that because there was an
unreasonable risk of harm, the signs were not sufficient.
Rowland v. Christian – This case rejects the traditional categories of entrants to land. Is it better to have clear rules that people are aware of and can condition their behavior on, or shall we determine this on a case-by-case basis? This court decided to use your basic duty of reasonable care and the Learned Hand formula. The rule of this case is that the landowner must use reasonable care regardless of the type of person who enters onto their land.
If you have something on your property that’s dangerous but
likely to attract children to come and play, you must make it safe. It used to be that the child had to be
attracted by the thing that hurt him (“attractive nuisance doctrine”). If it’s foreseeable that children will
trespass and encounter a dangerous condition, you must make the condition safe
or you’ll be liable.
Firefighter rule
If rescuing is part of your job, the view is that you’re
already compensated for the risk you take.
Therefore, you cannot additionally recover from the defendant unless the
situation is unusual. This is the
“firefighters’ rule”.
We don’t know exactly what risks firefighters will
encounter, so they’re licensees. It’s
too burdensome to have to have a landowner pay for the injuries of emergency
folks. Also, emergency people are, at
least in theory, paid extra to compensate them for the extra risk.
With strict liability, all you have to show is
causation. If the defendant caused the
plaintiff’s damages, then that’s it. If
the harm is not foreseeable from the defendant’s highly dangerous conduct, then
the plaintiff won’t be able to recover.
For animals, there is generally not strict liability for
domestic animals but there is for wild animals.
What justifies the different rules?
It’s another cost-benefit analysis situation. Wild animals are risky to keep around because
they may cause harm. Taking extra
precautions doesn’t really make much difference. They will be dangerous no matter how many
precautions you take.
What if a domestic animal shows a dangerous propensity? Then there may be strict liability if that
animal hurts someone. One you know, you
can’t really take precautions to prevent it unless you lock up the animal. This is a matter of what the owner of the
animal knows. The “one-bite” rule
doesn’t exist per se, but basically what it means is that after they bite once,
you’ll be liable for any injury that follows.
With strict liability for animals, the whole notion of
treating domestic animals differently than wild animals forces the owner to
consider whether it is reasonable or smart to keep wild animals at all.
Is this just negligence in disguise? We have an activity with low value relative
to the risk it creates and the harm caused if that risk came to fruition. Keeping a dangerous domestic animal is not a
valuable activity to society, while it is has a high risk of a great harm. That’s why we’ll just shorthand it in some
sense and make it an activity for which we impose strict liability.
Abnormally dangerous activities
Abnormally dangerous activities are unusual and usually
involve great danger. There are
three factors that restate the B < pL
test. Is it really dangerous? It is unjustifiably dangerous? Is it common to the area? Is it being done in the wrong place? Does the activity has
value to the community?
Rylands v.
Fletcher – This is the origin of the “ultrahazardous
activities” rule. A guy built a water
reservoir that ended up flooding his neighbor’s coal mine. Prior to building the reservoir, what did he
do? Did he do anything in
preparation? They’re building a
reservoir and fail to notify the defendant that there’s a problem. They continue to dig the reservoir. Water leaked slowly into the mine and
eventually flooded the mine. Why does it
matter that water seeped into the mine rather than rushing into the mine? Was this direct harm?
What does non-natural use mean? It means something you don’t normally use the property for. It means some unusual use of the land that
society doesn’t find valuable.
Non-natural means “it shouldn’t be happening here”. It’s a hard activity to do safely.
Bridges
v. The Kentucky
Stone Co., Inc. – Is storing dynamite so dangerous that the company
should be per se liable? The court says
we have to judge on a case-by-case basis.
Does this case look like a strict liability case? What would the rule be in
Some factors that go towards labeling activities abnormally
dangerous: There is a high degree of risk of harm. There is a high likelihood that the resulting
harm will be great. It’s impossible to
eliminate the risk by using due care.
Some factors that go towards determining strict
liability: Was it common, customary, or
appropriate to engage in this activity at this location? Was the value of the activity to the
community outweighed by its dangerousness?
Indiana Harbor
Belt R.R. Co. v. American Cyanamid Co. – American Cyanamid hired a
transporter to ship a dangerous chemical through
Could the courts just say that shipping chemicals through a
populated area is negligent? It would
probably result in less shipping of that kind of liquid. These factors are characterized as a version
of cost-benefit analysis.
When you think about strict liability, think about what the
risks are that are anticipated. The
result must be within the risk anticipated.
It’s sort of a foreseeability thing.
Strict liability in torts is rather limited. There are certain activities that will
require a factor analysis.
Sometimes one person can be held responsible for the
activity of another. Sometimes people
are concerted tortfeasors. Sometimes A
creates a risk that B will negligently cause an injury.
There are a few factors that may be considered when you’re
figuring out whether an employer should be vicariously liable for the employee’s
conduct: (1) It is of the kind he is employed to
perform. (2) It occurs substantially
within the authorized time and space limits.
(3) It is actuated, at least in part, by a purpose to serve the
employer. (4) If force is intentionally
used by the servant, the use of force is not unexpected by the master. That is, intentional torts are typically not
covered.
Why do we have vicarious liability for employers? Employers might reduce the number of
accidents if held liable. We want to
spread the costs of the plaintiff’s harm through the community. The employer has control of the employee and
arguably should be liable for the tort.
Also, the employer has deeper pockets than the employee. If the employee does not act within the scope
of his employment, then the employer can’t be held responsible for the employee’s
acts.
Why vicarious liability?
There’s a “deep pocket” rationale: employees don’t have a lot of money,
but employers do. Cole doesn’t like this
rationale. It doesn’t seem fair to go
after an entity which didn’t do anything wrong in itself. Also, the employer is benefiting from the
activities of the employee. Therefore,
it is argued, the employer should bear some responsibility for the employee’s
actions. The employer can buy insurance and spread the cost by raising
prices. The employer also has control of
the employee. These are some rationales
for imposing vicarious liability on the employer.
Lundberg v. State – Should an employer be held responsible for its employee’s
negligence? An employer will be
liable for the negligence of an employee if the employee was acting under the
scope of his employment, that is, when the employee is doing something under
the control of the employer and in furtherance of his duties to
that employer. Generally, however,
driving one’s car to and from work is not considered under the control of the
employer.
The biggest issue is scope of employment. Sandilands is an
employee of the state of
Normally, there is no liability for traveling to and from
work. However, there are exceptions
where such travel is within the scope of employment: when they have to go a
long distance or when the travel has a dual purpose (like when you stop to eat
lunch in a postal vehicle). If you can
come up with a reason that the travel benefits the employer, it is easier to
avoid the coming and going rule.
Fruit v. Schreiner – What’s within the scope of employment? If the employer tells the employee to do
something safely and fails to do so, but it’s in the scope of employment, the
employer may be held liable. It’s a
factual question for a jury.
What about intentional torts on the job? Unless the intentional tort is within the
scope of that individual’s employment (a bouncer or security guard), the
employer isn’t responsible. These torts
are not seen as furthering the interests of the employer.
We also won’t impose vicarious liability in the situation
where an employee abuses his power as conferred by the employer. It depends on how far outside the scope of
employment the employee goes. Some
courts will say that if the employer created the power that is abused by the
employee, the employer may be responsible.
So there’s a split.
Independent contractors are different from employees. It is favorable to get your employees
described as independent contractors for various reasons. Vicarious liability only applies to employees
and not independent contractors. How do
you know who’s an independent contractor?
It’s a factored test. You look at
the Restatement factors and weigh whether, on balance, the person is more like
an independent contractor or more like an employee. The main factor is control: how much
control does the employer have over the person?
The more control they have, the more likely we’ll find that the person
is an employee.
Here are the rules: (1) How much control does the employer
have over the details of the work? (2) Is
the actor engaged in a distinct occupation or business? (3) Does the employer have to supervise? (4) Who supplies the tools and place of work? (5) How long is the person employed? (6) Are they paid by the hour or to do a
particular job until complete? (7) How
do the parties understand the relationship?
Murrell v. Goertz – Goertz
was making collections for newspaper delivery and had an altercation with the
plaintiff, eventually hitting her. She
sued him as well as the publishing company that published the newspaper. She won against Goertz,
but the trial court gave summary judgment to the publishing company on the
basis that Goertz was employed by an independent
contractor, and thus the employer wasn’t responsible.
Is the newspaper responsible for the injury caused to
Murrell? What degree of control does the
newspaper have over Goertz? The publishing company doesn’t even know Goertz works for them.
They appear not to have much control over Goertz.
When a duty is imposed by law on the basis of concern for
public safety, the defendant cannot avoid liability by delegating duty to an
independent contractor. Some categories
of nondelegable duties include: work which involves
inherent danger or which requires special precautions, activities that are
highly dangerous, and duties established by statute to provide special
protection to a particular class of persons.
Examples of nondelegable duties include crop
dusting, poisons, explosives, fireworks, and high voltage lines in public areas. Landowners are liable under the nondelegable duty doctrine for the work of contractors.
Maloney v. Rath – When you take your car to the mechanic
and they don’t fix your brakes right, how come you are liable? The court says that the duty to keep up your
car is non-delegable.