Rg Torts

Front 1

Goals of tort damages

Back 1

 Compensation for injured persons
 To put the plaintiff back in the position he would have been had the tort not occurred, to the extent we can with money
 Deterrence of anti-social conduct
 Both specific and general

Front 2

Compensatory damages

Back 2

 Medical expenses
 Lost wages and lost earning capacity
 Pain and suffering
 Any special, particular, legally-allowed damages

Front 3

Motion to Dismiss (Demurrer)

Back 3

 Moving party argues that the Complaint, assuming factual allegations to be true, fails to state a valid legal claim
 Facts extraneous to the Complaint are not considered – the motion focuses on “the four corners of the Complaint”

Front 4

Motion for Directed Verdict

Back 4

Literally asks the judge to “direct” the jury to render a verdict for the moving party
 comes after the plaintiff has produced all his evidence at trial
 moving party is arguing that the plaintiff has failed to prove the elements of any legal claim

Front 5

Motion for Summary Judgment

Back 5

 Moving party must show: (a) that there are no material facts in dispute and (b) on those undisputed facts, the moving party is entitled to judgment as a matter of law
 All facts gleaned in the course of discovery may be considered (depositions, documents, etc.)

Front 6

Intentional Torts

Back 6

Prima facie defined: “At first look” – a claim “good on the face of it”
The “fault” requirement
Van Camp v. McAfoos:
Plaintiff’s complaint fails to state a claim if it does not contain an allegation of fault – an allegation that the defendant acted either intentionally or negligently.

Front 7

Battery

Back 7

Battery requires that the defendant act voluntarily, “intending to cause a harmful or offensive contact,” and that “a harmful [or offensive] contact results.”
--Snyder v. Turk
-Cohen v. Smith
Elements of Battery
1. Defendant must act volitionally
2. Defendant must intend to contact P or third person – and causes a harmful or offensive touching of the plaintiff
3. Contact with or touching of the plaintiff (or something closely connect/third person)
4. Plaintiff must be either harmed or offended (against a sense of personal dignity) by the touching (note causal link)
Proving Intent: What does “intent” mean?
 Either of the following:
 Acting with the purpose to achieve the invasive result,
                   OR
 Acting with knowledge that the invasive result is substantially certain to occur

Front 8

Transferred Intent

Back 8

D intends to commit a tort on A
But commits that tort on B instead.
Transferred intent victims
But commits a different tort on A
Transfer intentional torts

Front 9

Liability of Children & Parents, Mental Infirmities & Minority dual intent (battery)

Back 9

Children: May be held liable for intentional torts, as long as they form the requisite intent and the other elements are proved
Parents: Are not liable for torts of their children, unless (1) the parents themselves are at fault and primarily liable, OR (2) a statute makes them liable.
Liability of the mentally infirm - yes
and the “fault” issue
Polmatier & White v. Muniz
General rule:  Mental infirmity is not a blanket defense.  The issue is whether the defendant formed the required “intent.”
“Dual intent” (minority) for battery: (majority is only the intent to contact).
White v. Muniz
Defendant must intend to touch the plaintiff AND must intend to harm or offend the plaintiff.

Front 10

Assault

Back 10

The Prima Facie Case
Elements of Assault
 Defendant must act volitionally
 With the intent to cause a harmful or offensive contact with the plaintiff, OR to place the plaintiff in imminent  reasonable apprehension (awareness) of such contact, and
 The plaintiff must be aware of the [apparently-] imminent contact, and such awareness must be reasonable

Front 11

False Imprisonment Elements

Back 11

 Defendant must act volitionally
 Intending to confine – bounded area
 Resulting in plaintiff’s confinement, and
 Plaintiff is aware of confinement, or physically harmed by it
 With no reasonable means of escape.

Front 12

Intentional Infliction of Enotional Distress

Back 12

Elements:
(1) Intent to cause extreme emotional distress, or recklessness (definition: conscious disregard of a high degree of probability that mental distress will follow)
(2) extreme and outrageous conduct
(3) resulting severe emotional distress
Intentional infliction:
 Common fact-patterns
 Repeated, harassing misconduct
 Abuse of power, especially where D knows of P’s vulnerability (vulnerable P and powerful D)

Front 13

Third Party Recovery - Intentional Infliction of Enotional Distress

Back 13

“Third party” IIED recoveries: When D directs conduct towards someone other than P - Defendant who directs an “outrageous” act towards A can be liable for severe emotional distress to B if, but only if:
 B is present at the time, and
 B is a member of A’s family, OR B suffers physical (bodily) harm as a result of the emotional distress caused by D’s outrageous conduct.

Front 14

Torts to Property

Back 14

 Trespass to Land
 Conversion
 Trespass to Chattels

Front 15

Trespass to Land

Back 15

Trespass to Land – no harm needed – protecting possessory interest – D intentionally enters land in possession of another (directly or indirectly); remain on land; or fails to remove from land which he is under duty to remove.
 Defendant must intentionally enter property of another directly or indirectly
This tort protects the plaintiff’s right to exclusive possession of land
Damages are presumed to flow from the invasion of the interest in land.

Front 16

Conversion of Chattels & Usual Remedy

Back 16

 Defendant must intend to exert substantial dominion and control over plaintiff’s personal property (chattel)
Usual remedy: Damages measured by fair market value of chattel at time of conversion

Front 17

Trespass to Chattels

Back 17

Trespass to Chattels
 Defendant intends to exercise dominion over plaintiff’s personal property, but to a lesser degree than with conversion
Plaintiff must suffer loss of use of chattel for some amount of time

Front 18

Defenses (Privileges) to Intentional Torts

Back 18

Defenses (Privileges) to Intentional Torts
 Self-defense
 Defense of third persons
 Arrest and detention (shopkeepers)
 Defense and recapture of property
 Discipline
 Consent (in part, not a defense at all but attacks prima facie case)
 Public necessity
 Private necessity

Front 19

Self-Defense & Defense of Third Persons

Back 19

Self-Defense
A person may use a reasonable amount of force to defend himself, where he honestly and reasonably believes that self-defense is necessary. – imminent/proportional
Defense of Third Persons
You may defend a third person on the same basis as you defend yourself.
Caveat:  Some courts say if you are mistaken about the need for defense, you lose the privilege

Front 20

Arrest and Detention
SHOPKEEPERS PRIVELEDGE
DOCTRINE OF ROUGH EQUIVALENCE
Discipline

Back 20

Arrest and Detention:
Shopkeeper’s Privilege to Detain
“Restatement 120A: D must prove:
(1) D reasonably believed that P had taken goods or services w/o paying, and
(2) manner and duration of detention must be reasonable (necessary to conduct a reasonable investigation)
Defense and repossession of property (non-shopkeepers)
Defendant may use reasonable force to defend property, based on the reasonable belief that such force is needed.  Deadly force is never allowed to protect property.
DOCTRINE OF ROUGH EQUIVALENCE – to protecting property.
Discipline
Certain people are given a right to discipline others
D must reasonably believe discipline is necessary, and the manner of discipline must be reasonable

Front 21

Arrest and Detention - Shopkeeper's Privilege to Detain

Back 21

“Restatement 120A: D must prove:
(1) D reasonably believed that P had taken goods or services w/o paying, and
(2) manner and duration of detention must be reasonable (necessary to conduct a reasonable investigation)

Front 22

Defense and repossion of property
Doctrine of Rough Equivalence

Back 22

Defendant may use reasonable force to defend property, based on the reasonable belief that such force is needed. Deadly force is never allowed to protect property.

Front 23

CONSENT

Back 23

“To he who consents, no wrong is done.” Must be voluntary (invalid if fraud or duress etc.) must understand what consenting to and have capacity to consent – can be express or implied from circumstances.
Two key issues:
 Apparent existence of consent
 Apparent scope of consent

Front 24

THE NECESSITY DEFENSE - PUBLIC NECESSITY

Back 24

THE NECESSITY DEFENSE – lesser evil.
N e c e s s i t y
Public necessity
 Absolute privilege to inflict harm to plaintiff’s property, if
 D believed reasonably that harm was necessary to avert an “imminent public disaster,” and
 manner and extent of harm were reasonable
OR an unconstitutional taking?
 Takings analysis is an alternative to tort analysis, where D is the government.
 Government cannot take private property for public purposes without “just compensation”

Front 25

THE NECESSITY DEFENSE - PRIVATE NECESSITY

Back 25

A limited privilege
 Private necessity protects the defendant from liability for a “technical trespass,” i.e, one that causes no actual damage.
 But if damage occurs, the private necessity defense does NOT protect the defendant from being not liable for trespass but are liable for paying for that damage. Therefore limited.

Front 26

Negligence
Elements of Negligence

Back 26

Negligence
Elements of Negligence
• Duty (owed by D to P)
• Standard of Care
• Breach of Duty (i.e., unreasonable conduct)
• Actual Cause (cause-in-fact)
• Proximate Cause (legal cause - scope of risk and foreseeable P)
• Damages - Actual Harm (legally-cognizable harm)

Front 27

D u t y:

Back 27

The general duty of “reasonable care”
The duty to exercise the care of a reasonable and prudent person under the same or similar circumstances [as the actor was actually in at the time of the incident]
Does the standard of care change as the risk of harm increases?
“Reasonable care is the care a reasonably prudent person would use under the circumstances. . . . What constitutes reasonable care varies according to the particular circumstances and conditions existing then and there. The amount of care required by law must be in keeping with the degree of danger involved. . . .”
-- Stewart v. Motts,

Front 28

What “circumstances” are taken into account in the “reasonable and prudent person” standard?

Back 28

What “circumstances” are taken into account in the “reasonable and prudent person” standard?
• External circumstances (including the existence of an “emergency” situation)?
• Age? The child standard of care
• Mental infirmities or disabilities – a reasonable person.
• Superior training or knowledge – must utilize their superior knowledge or training
• Physical infirmities or disabilities – a reasonable blind person, a reasonable person in a wheel chair.

Front 29

The “child” standard of care

Back 29

The “child” standard of care
A child alleged to have been negligent is held to the standard of care of :
A REASONABLE CHILD OF THE SAME AGE, INTELLIGENCE AND EXPERIENCE
Exception: If child is engaged in an “adult activity” or an “inherently dangerous activity,” the “adult” RPP standard applies

Front 30

Negligence Per Se “as a matter of law”
• Duties specified by judges

Back 30

Judges sometimes rule that specific conduct is needed to satisfy the duty of care, holding an actor negligent “as a matter of law”
This is DISFAVORED because it usurps the jury’s function.

Front 31

Negligence Per Se “as a matter of law”
2. Negligence per se
.

Back 31

When a relevant non-tort statute (such as a criminal statute) sets the standard of care, making an unexcused violation of the statute “negligence per se”
This is recognized in all states.

Front 32

Negligence per se

Back 32

The unexcused violation of a non-tort (usually criminal) statute may be negligence per se -- negligent conduct in and of itself.
In order for a statute to come into the case at all, (1) the plaintiff must be in a class of persons the statute was designed to protect, and (2) the plaintiff’s injury must be a type of harm that the statute was designed to prevent. - causation portion of analysis the violation of the statute must be a causal connection.
Possible excuses include: (1) Incapacity; (2) Factual ignorance; (3) Impossibility; (4) Emergency not of own making; (5) Greater risk of harm to comply with statute

Front 33

LIMITING OR EXPANDING THE DUTY OF CARE ACCORDING TO CONTEXT OR RELATIONSHIP
Carriers, Host-Drivers and Landowners
Limiting duties according to class or status of parties

Back 33

LIMITING OR EXPANDING THE DUTY OF CARE ACCORDING TO CONTEXT OR RELATIONSHIP
Carriers, Host-Drivers and Landowners
Limiting duties according to class or status of parties

Front 34

• Carriers and Host-Drivers

Back 34

• Carriers and Host-Drivers
 Common carriers sometimes said to owe a “higher duty of care” to passengers
 Host-drivers: “guest statutes” said a non-paying guest passenger was owed a lower standard of care than paying passengers

Front 35

• Landowners and Occupiers See large outline page.: 18 for details…

Back 35

• Landowners and Occupiers See large outline page.: 18 for details…
 Common law classification draws distinctions among entrants onto land
 CLASSIFICATIONS OF ENTRANTS ONTO LAND – Common Law Duties owed:
 Trespasser (no permission to enter) no duty except to refrain from more negligence (reckless/intentional harm)
 Licensee (limited permission -- “license” -- to enter)
 Invitee (entrant with “business purpose” that will bring pecuniary benefit to LO – business invitee- pecuniary benefit and public invitee – open to the public [restroom]}

Front 36

Duty owed to trespassers and licensees

Back 36

• Basic duty: Not to intentionally, willfully, wantonly or recklessly injure.
 means that mere negligence towards a trespasser or licensee will NOT lead to liability of Landowner (“LO”).
1. But the “dual knowledge” rule: If LO knows (1)that entrants are present or likely to be present, AND (2) of a hidden, dangerous condition on the land, then LO may owe a duty of reasonable care, or may be “wanton” in not warning of the danger No duty to discover hidden dangers/inspect.
2. Duty to refrain from reckless or wanton conduct which is likely to injure licensee (use ordinary care to avoid injuring a licensee).
 Duty to warn known trespassers or licensees of or make safe from dangers known to the landowner.

Duty owed to invitees
 Duty of reasonable care (RPP under SSC) is owed to:
 business invitees – for the benefit of the LO AND public invitees” – open to public and present for that purpose
3. exercise reasonable care to:
4. Inspect and discover the existence of any dangerous natural or artificial conditions or activities and to protect the invitee from that danger
5. Warn of the danger OR make the premises safe

Front 37

Duty owed to trespassing children (“tender years”)

Back 37

Duty owed to trespassing children (“tender years”)
 LO owes duty of reasonable care to young children if:
 trespass by children is reasonably foreseeable
 LO knows or has reason to know of a danger
 and LO should know that child cannot protect himself from the danger – usually applies to children of tender years – those who cannot appreciate the risk.

Front 38

 So in summary . . .
With respect to conditions on the land,

Back 38

 Duty of reasonable care is owed only to invitees
 A lesser duty -- a duty not to injure intentionally, willfully, wantonly or recklessly -- is owed to trespassers and licensees
 But if LO knows of presence of T or L, and knows of danger, usually owes duty to warn of the dangerous condition.

Front 39

 Special rule for child trespassers --

Back 39

 Special rule for child trespassers -- the “attractive nuisance” doctrine -- applies only to very young children
 Duty of reasonable care is owed under certain conditions

Front 40

With respect to activities on the land (as opposed to conditions), a duty of due care is generally owed to

Back 40

With respect to activities on the land (as opposed to conditions), a duty of due care is generally owed to invitees and licensees . . .

 Thus a landowner/occupier is usually liable for negligently harming an invitee OR a licensee by his activities on the land, as opposed to conditions on the land

Front 41

So in summary . . .
With respect to conditions on the land

Back 41

So in summary . . .
With respect to conditions on the land,
 Duty of reasonable care is owed only to invitees
 A lesser duty -- a duty not to injure intentionally, willfully or wantonly -- is owed to trespassers and licensees
 But if LO knows (or should know) of presence of T or L, and knows of danger, usually owes duty to warn of the dangerous condition.
Remember: the open and obvious danger rule – no duty unless reasonable foreseeable the harm.

Front 42

The Firefighter’s Rule

Back 42

The Firefighter’s Rule
 “Professional rescuers” – c/l Licensees -- firefighters, police officers, emergency medical personnel, and the like cannot sue the landowner/occupier for negligently causing the very problem that brought the rescuer to the scene.
 The duty owed is only not to willfully or wantonly harm the “professional rescuer”
 Rowland v. Christian
69 Cal.2d 108 (1968)

Front 43

California Standard For ALL Entrants & New York Approach

Back 43

California rejects all categories and adopts a “reasonable person” standard for all entrants
New York approach: Scurti
• RPP duty owed to all entrants (like Rowland) but -- one of the “circumstances” to be considered is that the plaintiff was a trespasser

Front 44

Duties owed to entrants:
the main options

Back 44

• Traditional categories with traditional duties (half of the states) – tripartite system.
• Abolish all categories/ RPP duty owed to all (Calif.)
– Abolish all categories but explicitly take trespasser status into account (N.Y.)
• Change duty owed to licensees to RPP, leaving trespassers to lesser duty
Recreational use statutes
 In most states, a landowner who holds land open to non-paying recreational users will not be liable for harms caused by the LO’s mere negligence in maintaining the property

Front 45

Nonfeasance:
Duties based on relationships or their absence The nonfeasance rule and its exceptions

Back 45

The “No duty to assist” rule
•A defendant owes no duty to assist or rescue a plaintiff who needs such assistance
The allegation in such a case is “nonfeasance” as opposed to “misfeasance” (doing something badly)
 BUT THERE ARE EXCEPTIONS!

Front 46

Basic rule: No duty to assist
Four major exceptions (sometimes overlapping):
SCRAP

Back 46

Basic rule: No duty to assist
Four major exceptions (sometimes overlapping):
 Where D creates the risk of harm to P, or where D harms P and does not assist and/or further harm is risked
 Where a statute creates a duty to assist
 Where D begins to assist (or “takes charge”)
 Where D has a “special relationship” with P
 Where there is a duty by K

Front 47

Duty to Protect from Third Persons

Back 47

General rule: No duty – unless one of the exception above apply.
 Rationales: Nonfeasance;
Posecai’s “foreseeability” analysis
Posecai court (and some others) focus on the foreseeability of the harm in determining whether a particularized duty exists. Four approaches are identified:
• Specific harm test
• Prior similar incidents test
• Totality of circumstances test
• Balancing test

Front 48

A duty to control children?

Back 48

Would fit within the “special relationship with source of harm” exception
Remember: Parents not vicariously liable for torts of children, so this is a “primary liability theory”

General rule: Parents liable only where they fail to control some specific dangerous tendency that they know or should know about their children.

Front 49

Tarasoff

Back 49

Tarasoff
Holding: Psychologist owes duty to take reasonable action to prevent attack by patient one known plaintiff
California’s “duty” test: A duty generally exists (by statute) when a party acts at all. But court may find an “exception” (no duty) by balancing factors: (1) foreseeability of harm to P; (2) degree of certainty that P suffered injury; (3) closeness of connection between D’s act and P’s harm; (4) moral blame attached to D’s conduct; (5) policy of preventing future harm; (6) extent of burden on D and consequences to community of imposing a duty; (7) availability, cost and prevalence of insurance for the risk involved.

Front 50

Negligent entrustment

Back 50

 A duty of reasonable care may exist to not entrust chattels (esp. cars and weapons) to people who are likely to use them in dangerous ways
 For this duty to exist, D must have the right to control the chattel, and the risk of harm by the third party must be reasonably foreseeable

Front 51

Duties of providers of alcohol
• Sellers of alcohol:
• Social hosts:

Back 51

Duties of providers of alcohol
• Sellers of alcohol:
Newer rule: duty to exercise reasonable care to avoid foreseeable harms
Traditional rule: Drinker’s act a superseding cause, or no duty owed to protect P
• Social hosts:
Most courts impose no duty; a few have done so in some circumstances

Front 52

Limiting Duties to Protect Against Special Types of Harm:
Emotional Harm

Back 52

(Intentional and Negligent Infliction)

Front 53

Negligent Infliction of Emotional Distress (NIED)

Back 53

• Fright or shock from risks of physical harm: the original claim of NIED
-- Once allowed only where D’s negligence caused physical harm (impact rule), which then caused emotional distress
-- That rule now modified
NIED: “Impact” and “physical manifestation” rules: variations
 D’s negligence causes “impact” (or “physical harm”) which causes emotional distress
 D’s negligence causes emotional distress, which causes “physical manifestations” (or a “physical injury”)
 D’s negligence causes emotional distress, with neither impact nor physical manifestations

Front 54

NIED: when emotional harm results from injury to another – Third Party Recovery for NIED

Back 54

• Many states do not recognize such a claim at all, unless P is in the “zone of danger” and fears for his own safety
• Dillon v. Legg: multi-factor test may allow recovery by bystander. (1) P near scene; (2) suffers direct emotional impact from contemporaneous observance; and (3) close relationship between P and victim
• Thing v. LaChusa: bystander must meet all special elements. (1) P present at scene, then aware that victim is injured; (2) suffers “serious” emotional distress: and (3) P closely related to victim [exclusive list]

Front 55

NIED: California divides NIED cases into two Plaintiff categories

Back 55

NIED: California divides NIED cases into two Plaintiff categories: “bystanders” and “direct victims”
 Bystanders must meet Thing v. LaChusa special elements (as well as any remaining “regular” negligence elements) to recover anything at all
 Direct victims need not meet any special elements (just “regular” negligence elements) to recover
– Burgess enlarges “direct” category to include Ps to whom D owes a “preexisting duty”
– Non-bystanders are “direct victims” (Court of Appeal holdings -- some split in districts)

Front 56

Emotional harm where there is no physical risk to anyone:

Back 56

Washington v. Rhines (zone of danger)
Heiner & Hartwig: negligent misdiagnosis
Boyles v. Kerr

Sacco : What are the elements?
 D owes P a duty to protect from emotional harm
 D breaches that duty (acts unreasonably)
 Cause in fact (negligence must be an actual cause of the emotional distress)
 Proximate cause (“serious or severe emotional distress” must be a foreseeable type of harm; P foreseeable also)
 Damages - Actual harm (“serious” or “severe” emotional distress)

Front 57

Current NIED approaches:
an imperfect summary

Back 57

 Neg. elements, plus P must suffer “impact” before emotional harm
 Neg. elements, plus P must have “physical manifestations” of emotional harm
 Neg. elements, and P must be in “zone of danger” (fearful for own safety)
 Split cases into “bystander” and “direct” and use Dillon for former
 Split cases into “bystander” and “direct” and use Thing for former
 No special rules for any plaintiff who suffers “severe” or “serious” distress (reg. neg. case); expert testimony, maybe
 FEAR OF FUTURE HARM
What if there is no “present physical injury?” (look to Potter)
What if there is? ( look to Hartwig)

Front 58

.Negligence Elements

Back 58

Duty
Standard of Care
Breach of duty (negligent conduct/unreasonable conduct)
Cause-in-fact
Proximate cause / Scope of risk
Damages - Actual harm

Front 59

Judging negligent conduct

Back 59

Negligent conduct is conduct that is unreasonably risky – conduct that a RPP under SSC would not engage in because of foreseeable risks of harm.
Learned Hand Formula: Balance foreseeable risks with foreseeable burden of avoiding the harm - Balance foreseeable risks with the social benefits of the activity engaged in Carroll Towing’s formula
Negligence = B (U) < P x L – U= social utility.

Front 60

Conduct is negligent when

Back 60

when the Burden of avoiding the harm is less than the Probability of the harm occurring times the foreseeable Liability (extent of the harm), and the actor fails to act to avoid the harm.

Front 61

Assessing responsibility when more than one person is negligent

Back 61

• Jury fixes percentages of fault (or responsibility)
• Two major allocation options, depending on jurisdiction:
– (1) Joint and several liability with contribution
– (2) Several liability only, with comparative fault (or “comparative responsibility”) apportionment

Front 62

Evidence of Custom

Back 62

• Used by the plaintiff: admissible to prove that the defendant’s conduct was negligent
– Custom may help establish what “ordinary care” is in a particular situation
– Custom indicates that particular alternative conduct is feasible
• Used by the defendant: admissible to prove that defendant’s conduct was reasonable
– But what is “customary” does not always set the standard of what is “reasonable”

Front 63

Res ipsa loquitur

Back 63

(“The thing speaks for itself”)
A rule concerning permissible inferences that may be drawn from a small amount of circumstantial evidence when there is no direct evidence to D negligence.

Front 64

Res Ipsa Loquitur Elements

Back 64

 No direct evidence of D negligence
 Event of kind ordinary does not occur absent negligence
 Injury producing instrumentality was in exclusive control of D
 P did not contribute to injury or in creating the risk.

Front 65

When res ipsa loquitur may be used:

Back 65

Restatement and “traditional” tests
Restatement (2d):
It may be inferred that P’s harm is caused by D’s negligence when:
 Event is of a kind which ordinarily does not occur w/o negligence;
 Other responsible causes are sufficiently eliminated by the evidence; and
 Indicated negligence is w/in scope of D’s duty
 “Traditional” requirements:
 Same as (1) in Restatement
 Instrumentality which caused the accident was under the defendant’s “exclusive control”; and
 The injury-causing event was not caused or contributed to by any act or neglect on the part of the injured person.
 Procedural effects of res ipsa – establishes

Front 66

When res ipsa loquitur may be used: Majority

Back 66

If judge determines that res ipsa requirements are met, the jury is allowed to decide the case either way (for P or D)

Front 67

When res ipsa loquitur may be used: Minority

Back 67

: If judge determines that res ipsa requirements are met, a rebuttable presumption arises and the jury must find for P unless D comes forward with sufficient evidence to rebut the inference

Front 68

Scope of Risk (proximate cause)

Back 68

• Scope of Risk (proximate cause)
[Negligent conduct must cause actual harm, which is of a type risked by the negligent conduct foreseeable harm – and no superseding intervening events.)

Front 69

Actual Harm

Back 69

Proof that the D’s negligence caused legally-cognizable injury is required to award P any damages at all – there’s no “presumed damages” in negligence cases.
Contrast this negligence rule with the “presumed damages” scheme in trespassory (intentional) torts such as battery, assault, false imprisonment and trespass.
Cause-in-Fact (“Actual Cause”)
In most situations, a “but for” test is used: Can we say that “but for the actor’s negligence, the injury would not have happened?”
(If the injury would have happened even without the actor’s negligence, then the negligence is not a cause-in-fact of the injury.)

Front 70

Where more than one independently sufficient cause of harm is present

Back 70

most courts use a “substantial factor” test
Proof: What was caused?
General rule: A party should be liable only for the harms he actually causes.
Thus the jury must determine in each case what the defendant’s negligence actually caused.
Summers v. Tice
Two hunters (Tice and Simonson) fire in Summers’ direction. One shot hits Summers.
Summers cannot prove which one shot him proof shifts to defendants to prove who caused injury.

Front 71

Summers v. Tice

Back 71

Two hunters (Tice and Simonson) fire in Summers’ direction. One shot hits Summers.
Summers cannot prove which one shot him proof shifts to defendants to prove who caused injury.

Front 72

Recovery of a “loss of chance” of a better medical outcome

Back 72

3 Different approaches:
1. P must prove that D’s negligence deprived P of at least at 50+% chance of a better outcome
2. P must prove that D’s negligence increased P’s harm, or destroyed a “substantial possibility” of a better outcome
3. P must prove that but for D’s negligence, P would have had a greater chance of a better outcome

Front 73

Should we allow tort recovery without proof of causation?

Back 73

A theoretical possibility for a rule of liability:
P proves:
 That D acted negligently
 D’s negligence created an identifiable risk
 P was a person subjected to that risk
 P suffered harm of the type risked by D’s conduct

 Core idea: A person is legally responsible only for those harms that are within the scope of the risks created by his unreasonable conduct
Therefore a person is not liable if the harm caused to the injured person is not within the scope of the risks negligently created.

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Proximate Cause:
Two crucial components

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• Type of harm
Is the type of harm that occurred a type of harm that a RPP/SSC would have foreseen as resulting from his negligent conduct?
If not, proximate cause element NOT met
• Class of persons
Is the injured person (usually the plaintiff) within a class of persons that a RPP/SSC would have foreseen as being placed at risk by his negligent conduct?
If not, proximate cause element NOT met
Manner and Extent of Harm:
Foreseeability Not Required
If the type of harm is reasonably foreseeable, the precise manner of harm need not be, in order to hold the defendant liable

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Compare Hughes and Doughty: “Type” and “Manner”

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Compare Hughes and Doughty: “Type” and “Manner” are both malleable labels!
The extent of the harm need not be foreseeable, as long as the type of harm is
Intervening Causes
D-1 --------------- D-2------------ P
• Is D-2’s intervening act reasonably foreseeable to an RPP in D’s position?
• Did D-1’s negligence place P in a position of danger (from which D-2 could harm P)
• Were the risks created by D-1’s negligence “terminated” at the time D-2 caused the harm?

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Negligence:
Affirmative Defenses

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• Contributory and Comparative Fault (Ch. 9)
• Assumption of the Risk (Ch. 10)
• Statute of Limitations (Ch. 11, §1)
• Preemption, and Defendant’s Compliance with Statute (Ch. 11, §2)

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Contributory Negligence

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P owes reasonable care for self protection.
• Common law rule (Butterfield): If P was negligent and a cause of his own harm, he recovers nothing from a negligent defendant who also caused his harm
• Last Clear Chance only P can raise as defense to contributory if D had least clear chance to avoid the accident/injury.

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Comparative Negligence

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Comparative Negligence
• Comparative Negligence schemes: “pure” and “modified”
Comparative Negligence
a/k/a Comparative Fault
or Comparative Responsibility
“Pure” form
P’s negligence will reduce recovery in the amount of negligence/ fault/ responsibility found by jury
“Modified” form
Same reduction as “pure,” but P will be barred from all recovery if amount of P’s negligence/ fault/ responsibility is greater than [or equal to] D’s.
Hypothetical:
A and B, each driving a car, collide head on. Each is injured.
Jury finds: A’s damages = $100K
B’s damages = $50 K
Jury also finds: A is 60% responsible; B 40%.

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Hypo in Note 5, p. 277
P is injured in multiple-car accident; D’s are A, B & C. Only P is injured. D’s defend on ground that P was contributorily negligent.
Jury finds P’s damages are $100K
Jury finds P 5% at fault, A 10%, B 40%, C 45%

Factors for assigning shares of responsibility (Rest.(3d) § 8)
Factors for assigning percentages of responsibility include:

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• The nature of the person’s risk-creating conduct, including any awareness or indifference of risks, and any intent with respect to the harm; and
• The strength of the causal connection between the person’s risk-creating conduct and the harm.
Wassell v. Adams

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When a P may be barred from all recovery even after the adoption of comparative fault

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 In modified jurisdictions, where P’s fault % is too high (equal to or greater than D’s)
 In some states, where P has acted illegally
 Where P fails to establish a prima facie case against D, such as on actual cause or scope of risk grounds (§ 4.a, p. 289)

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Assumption of the Risk (“A/R”)
Two types:

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Assumption of the Risk (“A/R”)
Two types:
• Contractual assumption of risk (a/k/a “express” assumption of risk)
• Implied assumption of risk

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Contractual Assumption of Risk

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Contractual Assumption of Risk
General rule: Contractual disclaimers of liability are generally valid, and completely bar a plaintiff’s claim.
Exception: Where the service is essential to members of the public, and the plaintiff faces compulsion to agree to the disclaimer “despite his economic inability to do so,” and the plaintiff is “completely dependent” upon the defendant’s responsibility, the disclaimer is void as against public policy (Tunkl)

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Implied Assumption of Risk

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Implied Assumption of Risk
When contributory negligence was a complete bar to recovery, and so was implied A/R, these two defenses were “consistent.”
But after the widespread adoption of comparative fault/responsibility, should A/R remain a complete bar? Isn’t this “inconsistent?”
Evolution of the Defense of Implied Assumption of Risk
 Traditional approach: Completely bars claim if P assumes the risk, with special “elements” of A/R (example: Crews)
 Followed in only a few states today
 “Fracture” of A/R. Defense not “unified” any more, after comparative negligence.
– Conceptually, divide any A/R case into one of the following: (1) contractual A/R; (2) no duty of due care owed to P; OR (3) P’s comparative negligence

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Traditional Implied A/R:
Crews v. Hollenbach

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Traditional Implied A/R:
Crews v. Hollenbach
Elements of “traditional” A/R:
1. P actually, subjectively, knows of the existence of a specific risk, AND
2. P actually, subjectively, appreciates the nature of that risk, AND
3. P “voluntarily assumes” that risk, i.e., chooses to encounter the risk.

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One Modern Approach Retaining Implied Assumption of Risk

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One Modern Approach Retaining Implied Assumption of Risk
ALL A/R cases are divided into either:
1. Cases where D owes no duty of due care to P, or breaches no duty (because P impliedly “consented” to relieve D of that duty: PRIMARY A/R
2. Cases where P is negligent; case treated under state comparative fault rules: SECONDARY A/R
Implied A/R: today’s approaches: three alternatives

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Implied A/R: today’s approaches: three alternatives

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Implied A/R: today’s approaches: three alternatives
• Traditional (A/R as separate single defense, bars claim entirely -- e.g. Crews)
• Divide A/R into two defenses, retaining labels “primary A/R” (no duty) and “secondary A/R” (P’s contrib/comparative negligence, treated as such under state rules)
• Eliminate A/R entirely as a defense
– rationale: not needed after it is “divided” into already-existing categories

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Suits by participants in sports: two approaches

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Older cases (and some now): Allow P to sue for negligence, but allow D to defend on grounds of implied A/R, by focusing on whether the risk was “inherent in the sport”
Turcotte & Bjork cases
Newer approach used by a majority of states: Person injured in a sports event by another participant must prove more than negligence (i.e., recklessness) to recover. A/R irrelevant.
Gauvin case.

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Statutes of Limitation
When does a claim accrue?

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 When the injury occurs?
 When the plaintiff discovered or should have discovered the injury and its cause?
 At end of “continuous treatment” or “continuous representation?”

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Tolling the statute of limitations:
(“stopping the clock”)

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 Tolling for disability of the plaintiff:
 Minority (statute tolled until plaintiff reaches age of majority, usually 18)
 Mental disability (statute tolled until plaintiff regains mental ability – but tolling limited)
 Equitable estoppel:
 Defendant induces P not to take legal action, and
 P relies to his detriment, by failing to seek redress

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Statute of Limitations
“Discovery Rule”

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Basic Rule: Claim accrues (i.e., limitations period begins to run) when P knows or should know of (1) her injury and (2) its likely cause (or D’s role in causing her injury).

There are many specific variants in case law and legislation.
“Pre-accrual bar” statute: example
Claims for personal injury “shall not accrue until bodily harm to the claimant . . . becomes apparent or ought reasonably to have become apparent . . . Provided that no cause of action shall accrue more than ten years from the last act or omission of the defendant giving rise to the cause of

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Defendant’s compliance with statute - defense

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Rule: This is relevant, but not determinative, of the reasonableness of defendant’s conduct.
 Not a “complete defense” but may be very persuasive.
 Watch out for federal preemption!

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Strict liability:
Liability without proof of fault
Vicarious liability

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Idea: One person (or entity) is legally responsible for the torts of another person, because of the relationship between the two of them. Fault of the “higher up” is NOT required for liability.

Most common example: An employer is vicariously liable for the torts of its employees, committed within the scope of employment.

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Rationales for vicarious liability

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 Reduce accidents
 Cost-spreading (employer to community)
 Employer has “control”
 Employer’s work is being done, so it is fair to make employer pay
 Employee may not have assets; employer is the “deep pocket” that can provide compensation
 Losses caused by employees are expenses of the business

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Vicarious liability

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Idea: One person (or entity) is legally responsible for the torts of another person, because of the relationship between the two of them. Fault of the “higher up” is NOT required for liability.
Most common example: An employer is vicariously liable for the torts of its employees, committed within the scope of employment.

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Frolic and detour

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Frolic and detour
 Frolic: Employer is NOT vicariously liable -- it is a substantial departure from the employer’s business, in space and time.
 Detour: Employer remains vicariously liable-- it is just a brief “side trip” from the employer’s business
 When employee commits an intentionally wrongful act
 Question remains whether the employee’s tort was “within the scope of employment”
 Test most often used is whether there is a “causal nexus” between the job and the tort
 Often courts say the test is whether the tort was a “reasonably foreseeable consequence” of the job
– Argue “motivating emotions” behind the tort must be “fairly attributable” to the job

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Employee or “independent contractor”?

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Employee or “independent contractor”?
 If the person who commits the tort is an “independent contractor,” the employer is NOT vicariously liable. But the label alone is not determinative!
 Where an employer exercises significant control over the details of work, the “independent contractor” may be deemed an employee for vicarious liability purposes

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The development of common-law strict liability
The case of “ultrahazardous” or “abnormally dangerous” activities

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The development of common-law strict liability
The case of “ultrahazardous” or “abnormally dangerous” activities

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The evolution of strict liability

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Trespass writ: No fault required for liability for “direct” harms
Trespass on the case writ: Fault required for “indirect” harms
Change in mid-19th century: Some courts began to say fault required for ALL torts
But pockets of strict liability still remain
Strict liability: Rylands

Blackburn: “The person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, is prima facie answerable for all the damage which is the natural consequence of its escape.”
Cairns (H.L.): Liability without fault if the defendant made a “non-natural use” of his land

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“Abnormally dangerous activities” ADA
 Compare Sullivan and Exner: when will liability without fault be imposed?
 factors are key in determining “abnormal danger”:

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Factors: Activity involves high degree of risk; likelihood of serious harm; cannot be eliminated by reasonable care; activity is “not a matter of common usage”; danger outweighs the value of activity to community.
 Limitations on s/l ADA– scope of risk s/l for damage resulting from kind of risk that made activity abnormally dangerous & similarly abnormally sensitive activity no s/l mink example
 Defenses: Cont Neg – no defense; AOR – If P knows of risk, appreciates it and voluntary exposes self to risk this is a defense whether reasonable or unreasonable.

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Worker’s Compensation Statutes

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Worker’s Compensation Statutes: – employer s/l for any on-the-job injury but the exclusive remedy is WC (giving up right to sue in tort & no pain & suffering recovery) – Intentional wrongs – employee may pursue c/l action. (not deemed intentional is willfully disregarding safety regulations or keeping equipment is good repair generally does not escape WC as remedy.) Third Party – employee may sue third party (manufacture of equipment under product liability).

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Animals – trespass – s/l for damages caused by trespassing animals

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Animals – trespass – s/l for damages caused by trespassing animals even though utmost care taken to avoid; non-trespass – s/l for any dangerous animal. Wild animals s/l if damages result from “dangerous propensity common to species. Domestic animals – (cat, dog, cow, pig etc) not s/l unless owner knows (reason to know dangerous propensity – one bite rule.

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Products Liability
Why strict products liability?
Defective Product COA brought under Negligence,

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Defective Product COA brought under Negligence, Breach of Warranty and SPL. – Must be defective when left D control.

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Negligence PL (Products Liability)

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product seller liable if acts (or failure to act) creating unreasonable risk of harm to foreseeable plaintiffs who are exposed to risk while product used in intended or foreseeable manner.(c/l needed privity; modernly all states rejected privity requirement.) One who negligently manufactures a product is liable for any person injuries proximately caused by his negligence.

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D – manufacturers:

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 D – manufacturers: carelessly designed (include warnings), manufactured, failure of reasonable inspection/tests, package and ship reasonable safe manner, failed to obtain quality component parts from reliable source. Retailers: usually not liable in negligence, has no duty to inspect, suit normally brought against retailer on warranty or s/l theory. Other suppliers: bailors (rental co.), sellers & lessor real estate and suppliers product related services (hospital blood transfusion) may all be sued on negligence theory.