BACKGROUND

  1. Elements of a tort
  2. Duty – does the def owe the pltf a duty to conform his conduct to a standard necessary to avoid an unreasonable risk?
  3. Breach – did the def’s conduct fall below the applicable standard of care?
  4. Causation – was this failure to meet the standard of care causally connected to plaintiffs harm
  5. Harm/damages – did the plaintiff suffer harm? Basic tort rule, no harm no foul
  6. Tort Causes of Action
  7. Intentional torts: behavior that is intentional in some way, causes injury
  8. Negligent torts: behavior that unreasonably risks personal/property injury
  9. Strict Liabilty: behavior that is tortuous because it causes damage to another or property, regardless of fault or reasonableness
  10. 5 Functions of Tort Law
  11. Corrective Justice: correction of the wrong (through money)
  12. Optimal detterence: certain losses is not worth what it would take to deter them
  13. Loss Distribution: prefer large number of people bearing the loss than single person bear large one
  14. Compensation
  15. Redress of Social Grievances: especially against large impersonal institutions

INTENTIONAL TORTS

  1. Requirements to commit a battery
  2. Is there intent?
  3. Vosburg court: tort of battery occurs when there is intentional touching that leads to harm with an unlawful act, don’t need intent to harm
  4. Implied license: the unlawful act defined by the situation in which it occurs. Intentional touching can occur in certain settings, i.e. sports games or a play ground. Look to see if some i.l.
  5. Restatement: tort of battery occurs when there is intentional touching that leads to harm with an intent to touch offensively with an unlawful act.
  6. 3ed: if person brings about harm either purposefully or knowingly
  7. Is their consent?Even if no offensive touching still intentional tort if not consent. University of Idaho v. White:Piano player.
  8. Consent must be explicit unless an emergency. Information forcing rule, people are their own best decision makers.
  9. Okay consent if:
  10. incapable of givingconsent,
  11. immediate action is necessary to save the person’s life
  12. there is no indication thatthe person would not consent if he were able to,
  13. a reasonable person would consent.
  14. Transferred consent, implied consent, and a helpful intention don’t cut it.
  15. Sports Torts: special battery rule for certain activities. What is consent and offensive touching within sports?
  16. Within (1) culture of the game, (2) rules of the game, (3) outerbounds of the game – reasonable expectations (4) or just no liability on the court?
  17. Defenses to battery - con neg is not one.
  18. Insanity(McGuire – nurse enters room to help insane woman to prevent harm herself and insane woman hits her) – an excuse on the basis of mental health conditions
  19. To be liable for an intentional tort, must have been capable of entertaining the level of intent required by a normal person, and must have in fact entertained that intent.
  20. Court splits the difference of a pro plaintiff and pro defendant rule. Insane person can still get off the hook.
  21. For the jury to decide if pltf has ability to entertain intent
  22. Self defense (Courvoisier – man shoots police officer thinking he was one of the robbers) – a justification for your actions
  23. Self defense is a defense to battery where the defendant reasonably believed in the necessity of self defense
  24. Court splits the difference. Not enough to honestly believe (totally subjective – pro defendant), and reality is not the determining facto (totally objective pro pltf) more of a subjective rule
  25. Subjective – what as D’s state of mind, objective – what would a reasonable person due in that state of mind.
  26. Necessity – (Ploof - hermit living on island doesn’t let boat dock and harm to folks on board and Vincent- )
  27. Ploof: Necessity gives a privilege to trespass
  28. Vincent: imperfect privilege. You are excused from the tort of trespass, but not paying for the tort of trespass.
  29. this conduct rule does not answer who has to pay: here boat no trespass, but must pay.
  30. Vincent rule: imperfect privilege, anti-vincent rule: loss lies where it falls if you take reasonable care (negligence)
  31. GAME THEORY QUESTIONS:Lead to better efficient outcomes? Loss spreading? Transaction costs?
  32. When ought this rule be invoked? (1) risk to life and no risk to from docking (2) risk to property (3) no other possibilities (4) any danger (as opposed to serious danger)risk to property greater than the risk to the trespass (5) other personal risk (6) when you pay a fee (7) only when the dock owner agree

STRICT LIABILITY V. NEG

  1. Key thought: Negligence doesn’t account for the negative externalities caused by non-negligent people (e.g., drivers will inevitably cause some accidents, even if they drive non-negligently always).
  2. Now a days, not a replacement for negligence, just an addition for certain non-negligent accidents.
  3. History:
  4. Strict Liability
  5. The Thorns Case – act at your peril, intent or amount of care does not matter
  6. idea that engaging in risky activities is okay, but you have to compensate your victims.
  7. Super Negligence – even an inefficient accident needs to be prevented.
  8. Weaver v. Ward – inevitable accident doctrine. 2 soldiers practice fighting with loaded muskets: not just that a person acted reasonably, but must act unbelievably careful
  9. Involuntary: someone takes your hand and hits someone else
  10. Plaintiff causation: plaintiff ran into path of firing gun
  11. Inevitable action – court would have found in weaver if he pleaded this, but not enough to say it was against my will.
  12. Negligence
  13. Brown v. Kendall (Shaw) – man injured while friend separating fighting dogs. Big friend to industry (big shift from SL), rejects act at your peril idea.
  14. pure accident rule:When there is a pure accident, no liability. Even if the accident causes injury. D could not have avoided by use of due care
  15. This means if no liability for a pure accident must be liability for a negligent accident.
  16. Rylands (Blackburn) – Having SL, but cabining it somehow. Only rule about escapance on land. SL for non natural uses of land. Rejected by most courts… so talk about with grain of salt.
  17. American reception: at first rejected out right, but later found SL for oil wells, explosives, unusual amounts of water held on land. “Ultrahazardous activities”

STANDARD OF REASONABLE CARE

  1. Who is the reasonable man?
  2. Rest: unless you are a kid, exercise care of a reasonable man (§238)
  3. Physical disability: need to take more than ordinary care, take all necessary precautions
  4. Fletcher v. City of Aberdeen – П only has obligation to proceed as reasonable blind person. A categorized objective standard
  5. Sudden incapacity: if you don’t foresee it, you are off the hook.
  6. Stupid person – objective standard. Not a defense, negligence is failure to act as prudent man
  7. Vaughan v. Menlove - stupid stacking of haystacks
  8. Old people – objective. held to ordinary care standard
  9. Roberts v. Ring – old man who can’ see or hear driving badly
  10. Children: subjective standard. reasonable care that a boy of his same age and maturity would take.
  11. Exception - Daniels v. Evans: when kids doing adult activities like driving car held to adult standard
  12. Insanity:
  13. Rest: in primary negligence you have to act like reasonable man not res crazy man (addresses mental retardation and not illness for con neg.)
  14. no address of issue
  15. Bruenig (batwoman): No negligence where illness undermines understanding of care or ability to exercise it and no forewarning).
  16. Woman: reasonable man, reasonable woman, or reasonable person. 19th century held to a higher or lower standard, no longer anymore.
  17. Drunkenness: ordinary people get drunk, so city must take enough care for even drunks (Robinson - sidewalk issue). Today would not come out the same way… subjective then not any more.
  18. Objective pros: No moral hazard, administrability, fraud, incentive to take care (even if it’s very difficult or even impossible for some people)
  19. Subjective pros:Fairness/justice (do the best you can and extra-agile people: exceed an objective standard of care); making it objective won’t change anyone’s behavior anyway; not much harder to administer (we do it all the time in crim), efficiency: if your B is so high that it exceeds pL, we don’t want you taking that precaution
  20. Standard of negligence – calculus of risk
  21. Two standards
  22. Blythe-reasonable precaution sunder circumstances. Neg – omission of doing something that some one would do under circumstances or doing something that a reasonable man woud not do.
  23. Eckert (saving child on train tracks) – ex ante analysis not negligent if it is not rash or reckless, case somewhat different because saving life.
  24. Cooley: extra care is too much to ask.
  25. Possibilities
  26. Strict liability
  27. Any foreseeable injury: liability results from foreseeable injury
  28. Osborne v. Montgomery (1931): Kid on a bike gets doored.
  29. No consideration of cost, no cost/benefit analysis about whether harm is ok
  30. “Utmost care” standard: Deft is obligated to prevent even the smallest risk of injury in the practical operation of business
  31. Andrews v. United Airlines (1994): Beware, overhead luggage may fall on you
  32. The Learned Hand Test: B<PL. Efficient operation of a torts standard. (US v. Carrol Towing)
  33. Defendant is negligent if the cost of burden (B) is less than the probability of loss (P) times the magnitude of loss (L)
  34. B – expected value of preventative measure includes cost of prevention (including info costs), value of preventative measure (likelihood of success and magnitude) and alternative risks imposed by prevention (PL)
  35. Problems with Hand:
  36. Economic efficiency may not be a goal preferred over others (p. 64)
  37. Variable can’t always be reduced to monetary values and some times variables are incomparable– judges and juries must intuit a number rather than calculate
  38. Juries not comfortable applying rule, can’t apply rule to human life (GM issue)
  39. Some more risk averse than others.
  40. If you are big business with deep pockets, people are more likely to sue…so invest more in safety, can loss spread easier
  41. ex-ante might not know which measures are worth taking
  42. Custom
  43. Custom tends to show reasonableness, and not following shows negligence.
  44. Three standards
  45. Customis the standard. Reasonable care is ordinary practice. Too hard.Titus v. Bradford (1890): RR worker falls off tippy car and dies.
  46. Custom doesn’t matter: Defendant is held to standard of reasonable behavior according to the jury. Too soft.Mayhew v. Sullivan Mining (1884): Miner falls down ladder hole.
  47. Custom is instructive but not dispositive. This is the rule!!!
  48. Learned Hand rule: we’re interested in custom, but not bound by it.
  49. T.J. Hooper (1931): No radio on boat = no warning of storm
  50. Defenses
  51. Complying was dangerous under the circumstances
  52. Reasonably believe he precautions are superior
  53. Medmal exception: instead of instructive here, custom is dispositive.
  54. Usual rule:custom is the floor and the ceiling.
  55. Lamas: back problems, surgery, infection. Infection may have been prevented with ordinary care
  56. Locality issue: doctors held to a national standard not a local one.
  57. Brune: patient drugged for 11 hours after surgery, doc can’t way we give more anesthesia in our town.
  58. Informed consent: custom does not control. Duty to reveal any material risk. Shift from what doc thinks is material to what reasonable person thinks is material (still a judge question) Court trusts patient to make rational decision.
  59. Cantebury v. Spence: kid has back surgery and is paralyzed though not warned of that risk. Doctor is liable.
  60. Two-step: Breach (judge) and causation (jury). Was breach but for cause of the harm (jury) and was breach of duty (judge). Only liability if failure was but for cause
  61. reality is that most patients follow advice of doctor, but this protects the idiosyntractic patient who does not have he same values as most, and this is an info forcing rule to get info to the patients who would follow docs advice with or without information.
  62. Cost benefit analysis: going beyond scope of custom, ordinary care sometimes expected.
  63. Helling v. Carey: doctor should have given glaucoma test because so cheap even though not custom. Instance where law changed custom, do we need more of that?
  64. Statutes:statutory causes of action, or defo of negligence
  65. Effect of violation
  66. Unexcused violation of statute which is adopted by court as the standard is negligence itself
  67. Unexcused violation of statute with not adopted by the court as the standard relevant evidence
  68. Excused violations: excused violation is not negligent. Not fully adopted, so take with grain of salt.
  69. Violation reasonable because of actors incapacity
  70. Actor has not reason to know of occasion for compliance
  71. Unable after reasonable diligence or care to comply
  72. Confronted with an emergency not due to his own conduct
  73. Compliance would involve greater risk of harm to actor or others
  74. Statutory violations as Negligence per se: someone sues in negligence and says in violation of a statue (usually criminal whose enforcement not available to the parties). To meet prima facie case:
  75. Rest. § 14: Actor is negligent if w/o excuse, the actor violates a statute that is (1) designed to protect against the type of harm the accident causes and (2)accident victim is within the class of persons the statute intended to protect (3) causation
  76. asking: is this the kind of statute that is trying to effect safety? Is this a statute that is protecting against this harm? Judge decides what legal status of statute is.
  77. Gorris v. Scott: sheep go overboard in storm. II can not recover, even though violate statute of penning diseased animals in, because not harm statute designed to protect
  78. Why statutes matter? Democracy, reliance by others, information advantage of legislature, cheaper to have rule, performance for rules over standard.
  79. Inferences are 5 ways that litigation process structures the statute influence on negligence:
  80. Impermissible inference: irrelevant, inadmissible if possible.
  81. Gorris v. Scott: not the right harm covered.
  82. Brown v. Shyne:violation of statute requiring license of doctor not the direct cause of injury therefore irrelevant.
  83. Relevant (some) evidence: needs more for an inference, on its face will not support a jury verdict.
  84. Brown v. Shyne (trl. court)
  85. Permissive inference (prima facie case): meets the burden of production and gets to the jury. Supports a jury verdict.
  86. Rebuttable presumption, mandatory inference: meets burden of persuasion, unless met with permissible rebuttal. The jury must conclude that there was negligence, without a rebuttal.
  87. Martin v. Herzog - the fact that buggy had no light and that a statute required such, provides a mandatory inference of negligence
  88. Telda: deaf girl walking on wrong side of road against statute. Has excuse… heavy traffic. Statute taken into consideration but does not bar recover
  89. Irrebuttable presumption, mandatory inference: meets the burden of persuasion and jury must find negligence, without opportunity for rebuttal.
  90. Osborne v. McMasters (or could be rebuttable inference) – employee pharmacist failed to label substance poison according to statute and kills lady

WHO DECIDES NEGLIGENCE

  1. Judges v. Juries
  2. Burden of production (pltf) – judge decides… could a rational trier of fact think that the conduct was negligent? Inference of negligence must be permissible, jury not required to find negligence though
  3. Burden of proof (pltf) – jury decides… what the conduct negligent? Jury fines negligence only if P persuaded them by a preponderance of the evidence (more probably than not), if tie P fails (equipoise)
  4. Res Ipsa Liquitor- some accidents just don’t happen without somebody being at fault. Case of factual uncertainty but negligence anyways. Either prima facie case or rebuttable inference (usually prima facie – so not a sure thing, but absent compelling arguments good to go). Byrne v. Boadle: falling flour barrel
  5. Reminder: must be very careful to apply, does not apply to all cases with circumstantial evidence or no evidence of negligence. Sometimes it is just that P has not met burden of production, analyze this first.
  6. Requirements: (prosser) (1) must be kind of event that does not normally occur in the absence of negligence (2) must be caused by some agent w/i exclusive control of the defendant (3)no voluntary or contributory negligence on plaintiffs part.
  7. Rest: same no. 1, but no 2 and 3. Just other responsible causes have been eliminated by the evidence.
  8. Use Res Ipsa when defs are talking, this usually smokes out evidence from the defendants (usually days before discovery)
  9. MedMal: generally don’t find res ipsa in medmal cases, but narrow set of facts where you do. Kambat – 18” pad left in abdomen
  10. Defs acting in concert:Once plaintiff meets burden of production, defs must prove non-neligence. Defs must have reason to know what happened and plaintiff does not, it is incumbent on the defs to come forward and disprove charges
  11. to meet burden of persuasion, jury will ask: is it more likely than not that 1 of defs was negligent.
  12. Defenses to res ipsa: def can show he did not do anything negligent. Imig: def showed he properly hitched car and was freak accident when car loose and went across lanes.
  13. Non negligence
  14. Alternative explanation – Kambat try to some up with some other explanation.

PLAINTIFFS CONDUCT

  1. Contributory Negligence
  2. Standard: conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection
  3. breach of a duty to exercise ordinary care
  4. causation= “but for” the p’s action, there wouldn’t have been harm.
  5. Contrib negligence by the P is a complete defense to D’s liability for negligence. One person acting neg doesn’t mean another is excused from taking ordinary care.
  6. Butterfield v. Forrester: drunk guy riding hose from bar gallops across pole in road. Can’t sue pltf for pole because he was totally negligent in his riding.
  7. Contrib. neg. bars liability only if it was a causal factor in the accident.
  8. Geyerman v US lines: fishmeal sacks
  9. Ordinarily, D bears the burden of pleading, production, and proof as to contributory negligence.
  10. Question of con neg is usually for the trier of fact.
  11. Last clear chance
  12. In accidents that unfold over time, when d can see p being careless, we don’t want d to also be careless.
  13. So last clear chance gives the d a reason to take care because it is all about when the d can see what is happening to the p.
  14. It is an exception to a defense. Rebuts the plea of contrib. negligence. (eg)D says “contrib. negl.” P then says “last clear chance! You, d, had the last clear chance to stop and not to hurt me!” A d will never say last clear chance.
  15. Fuller: P says you hit me on the railroad tracks, D says you were con neg for being there, P says you had a lcc to stop.
  16. Comparative Fault:started in 1970s and now all states adopted it
  17. Liability apportioned according to responsibility.
  18. Pure: apportions liability in direct proportion to fault in all cases. Party 10% responsible, they pay 10% of damages
  19. Impure: Apportions liability in proportion to fault up to the point at which the p’s negligence is equal to or greater than the d’s; at that point, p may not recover. P can’t recover if the p is half or more at fault.
  20. Pro Comp Fault
  21. Liability should follow fault, full appreciate for joint causation, skepticism about incentives, pro(ish) injure
  22. Consequences: Last clear chance and assumption of risk out the window, they merge with ordinary principles of comp. fault
  23. Assumption of Risk
  24. Defo: If you knowingly do something risky, you bear the loss if harm occurs (tippy ax rack case – Lamson v. American Axe – contributorily negligent.) Bringing into torts a contract idea.
  25. Three theories:
  26. No negligence with assumption of risk
  27. Strict contract theory – is there a contract, was there duress, what does contract say?
  28. should ask yourself is this the kind of thing that people should be able to contract out? What about mandatory safety benefits?
  29. Mandated safety benefits can solve market failures, distibutional problems or effectuate moral values
  30. But only helps workers if they get something for nothing, prefer safety to wages, or are better off with safety regardless of preference.
  31. Contributory negligence
  32. Exceptions to assumption of risk (Cardoza in the Flopper case (Murphy v. American Steeplechase)
  33. No fair warning
  34. Not hazard invited or foreseen (must have had actual knowledge)
  35. Excessive danger
  36. trap for the unwary-beyond the risk you had any reason to foresee
  37. too perilous to be endured – public safety theory
  38. Latent defect: Problem in equipment, not obvious or known
  39. Endowment effect: people value higher the things they own. People don’t tend to follow grass is greener theory, people require more money than they already have.

CAUSATION IN FACT