Torts I Outline
Levmore 2002
I.Vital phrases
1.The rule does not matter
a)Means that the world will look the same – same behavior – whether there’s a negligence rule or a strict liability rule on this issue.
b)Source: Vincent v. Lake Erie: under either rule, the boat owner will only use the dock when the boat is worth more than the dock. That’s because the negligence standard incorporates a judgment about costs and benefits.
2.Moral hazard problem
a)When our compensation rules somehow encourage the harm we’re trying to fix
b)Example: average compensation rule, which gives victims the average amount for the type of damage they’ve experienced. If we include freak accidents with extremely high costs in our calculation, the average will be higher that the typical damage, so people might be willing to experience the harm expecting it to be overcompensated.
3.Information-forcing rule
a)When the rule appropriately places the burden of liability on the party who has an opportunity to avoid or minimize the harm by disclosing certain information to the other party.
4.Win-win situations
a)When both parties agree that the rule should go a particular way
b)Like Vincent v. Lake Erie: under either rule, the behavior is the same. But in the long run, under a wrongdoer pays (negligence) rule, the docks will go out of business, because docks don’t get compensated when boats reasonably use the dock and destroy it. That would hurt boat owners too, so both parties would prefer a causer-pays (strict liability) rule; then, docks would be compensated for their damage and everyone would stay in business.
5.Rylands list
a)Special situations when, though the general rule is wrongdoer pays, we need a causer pays rule.
b)Justifications for causer pays in special situations
(1)Win-win situations
(2)Evidentiary problems: when we can’t tell who’s a wrongdoer, we make causers pay
(3)Res ipsa loquitur: when the problem would never happen without negligence
6.Mohr cross-claim
a)When person A confers an unambiguous benefit on person B, person B will compensate A for the benefit received
7.Outcome system vs. Up-front system
a)Outcome system: hold people liable for harms they cause after they cause them. The tort system.
b)Up-front system: charge people for the risks they create before they create them. The regulatory system.
8.Otherwise-caught
9.Error minimizing
II.Basic rules
A.Intentional harms – four possible rules for damages
1.Pay all actual damages
a)Vosburg v. Putney rule: take the victim as you find him. When plaintiff had a particularly vulnerable knee, defendant had to pay for the actual harm instead of the expected harm of the kick, even though the actual harm was much greater than intended.
b)Results: more litigation because higher damages, longer trials because damages must be individually assessed.
c)No need for information-forcing rules for intentional torts: what’s Putney going to do, ask around and find a non-pussy knee to kick?
d)Intent to harm is not required for tort liability. Benevolent intent doesn’t reduce damages. Mohr v. Williams.
2.Pay average cost of your harmful behavior. Two types:
a)Actual average, including freak accidents.
(1)Moral hazard problem
b)Typical/median damages
(1)Hadley v. Baxendale: expectancy damages in contract cases
(2)Information-forcing: when A has a lot at stake, he has an incentive to provide this information to B to increase expectancy damages. Then B has the opportunity to take special care, charge extra, or avoid the situation. The burden is on the party who has the information.
(3)Good for contracts, when each party is making precise calculations seeking profits.
3.Pay lesser of 1 and 2
4.Pay greater of 1 and 2
B.Consent
1.Consent to benefits: Conferring party gets compensated when
a)The benefit is unambiguous: Mohr v. Williams. Even though the doctor didn’t have implied consent to operate on that ear, P’s damages were reduced by the amount of the benefit received. P chose the doctor, so arguably approved of the care provider.
(1)Standard: step into the shoes of the person benefited. Market-mimicking, because we do what the recipient would do.
b)Emergency situations: consent is implied from emergency situations. Allore v. Flower Hospital, p. 14.
(1)Fire extinguisher example: when someone’s car is on fire, and you deplete your fire extinguisher saving the car, you get paid.
c)There’s actual consent. Duh.
(1)Scope of consent to surgery extends to unforeseen problems in the general area of the original surgery. Kennedy v. Parrott.
d)Implied consent: when P’s overt acts manifest consent, consent is implied in fact. When a person waited in line for vaccination inspection, and raised her arm for the vaccination, consent was implied. O’Brien v. Cunard Steamship, p. 16.
2.No compensation for benefits conferred when
a)Benefit is conferred without careful consideration. Barry v. Barbour: when a tree crashed on a house while the family was away, the neighbor got the roof fixed. But the neighbor didn’t get paid because he didn’t seek out a good deal, qualified roofer, etc.
(1)Windshield example: when your friend’s car’s windshield gets smashed while friend is away for a long time, you might get paid for fixing the windshield. But in order to get paid, you should shop around or find out where your friend goes for windshields. If you put in a shitty windshield, your friend will be pissed.
b)There’s no actual benefit conferred: Stupid Samaritan: if you put a tarp over your friend’s windshield-less car, and the tarp is destroyed and the car gets rained on anyway, you get no money for your worthless tarp.
c)Benefit is ambiguous: especially services. When it’s not obvious that the recipient needs or wants the service, the conferring party can’t collect.
(1)Stuffing books into backpacks and billing for them: no recovery. The recipient might need the book, but might want to buy it from a particular vendor, or might want to shop around.
3.Consent to harm: harming party pays despite consent when
a)Public policy says hold D liable. Hudson v. Craft: when kids consented to a non-complying boxing match, then got hurt and sued, the promoter was liable because the policy is to discourage non-complying boxing and to protect kids. The promoter is easier to influence than kids.
C.Elements of Intentional Torts
1.Threats
a)Not actionable
b)Unless against specific targets like the president etc.
2.Assault
a)Elements: intent plus attempt
b)Actionable, because we don’t like attempts, they scare us
c)Runs counter to the notion of our outcome system; penalizes for a risk instead of a consummated harm
d)Cases
(1)I. de S. and Wife v. W. de S., 1348: striking with a hatchet to scare someone is an assault.
(2)Tuberville v. Savage (p62): “If it were not assize-time, I would not take some language from you” held not to be an actionable assault.
3.Battery
a)Elements: intent plus contact
b)Worth penalizing
c)Cases
(1)Alcorn v. Mitchell (p65): Deliberate spitting in face of appellee held to be an offensive battery.
4.False imprisonment
a)Elements: wrongful capture with deprivation of liberty
b)Negligence standard is built in: may make reasonable imprisonments but not unreasonable ones.
(1)Reasonable: Tiffany’s diamond store realizes someone in the store has stolen a $1mil diamond. They lock the store and keep all the customers there unless they agree to be searched. That’s reasonable.
(a)You can imprison your adult child when it’s necessary to deprogram them from a cult’s evil clutches. Peterson v. Sorlien, p. 75.
(2)Unreasonable: Target realizes someone stole a discount stereo. Lockdown over a cheap-ass boom box isn’t reasonable.
(a)Reasonability follows an objective standard, and applies to manner, length of time, and grounds. When D didn’t identify himself as a store guard, didn’t disclose his grounds, and physically restrained P in a public place, that was unreasonable. Coblyn v. Kennedy’s, p. 71.
c)Cases
(1)Partial obstruction – blocking a road – isn’t imprisonment. Bird v. Jones, p. 67.
5.Intentional Infliction of Emotional Distress
a)Elements: R2T § 46
(1)One who by extreme and outrageous conduct intentionally or recklessly causes sever emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
(2)Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress
(a)To a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or
(b)To any other person who is present at the time, if such distress results in bodily harm.
b)Outrageous conduct:
(1)Test: when hearing about D’s conduct, would you exclaim, “Outrageous!” p. 79.
(2)When D as a practical joke told P that her husband was in a terrible accident, and P started vomiting and went into shock, D was liable for IIED. Wilkinson v. Downtown, p. 76.
(3)When the Rubbish Collectors Association threatened to beat up a renegade garbage man unless he paid dues, without any present intent to assault, D was liable for IIED. State Rubbish Collectors Association, p. 80.
III.Negligence and Strict Liability
A.Negligence
1.Wrongdoer pays: we penalize people who make bad decisions. If someone makes a good decision, they don’t pay, even though they cause harm.
2.General default rule of tort liability is negligence
3.Necessity: not negligent, no liability
a)Ploof v. Putnam: when a tempest made P need to dock his boat at D’s dock, and D refused, D was liable for messing with P during a time of necessity.
4.Self defense
a)Courvoisier v. Raymond: when D shot a cop whom D thought was a robber, no liability.
5.Mutually beneficial activities
a)Brown v. Kendall: man is separating fighting dogs, accidentally hits the other owner with a stick. Man is not liable, because we want him to break up fights.
b)Levmore says that the man might have collected if he was injured while separating the dogs, citing Mohr for a benefit conferred on the other owner.
6.Negligence is unexcused, non-reciprocal risk taking, measured against a background of the risks inherent in shared activities. George Fletcher.
a)When we’re all driving, there are risks but they’re reciprocal. So we only hold people liable for careless driving, which is unexcused and non-reciprocal.
B.Strict Liability
1.Justifications for causer pays in special situations
a)Win-win situations
b)Evidentiary problems: when we can’t tell who’s a wrongdoer, we make causers pay
c)Res ipsa loquitur: when the problem would never happen without negligence
2.Strict liability is liability for unexcused, non-reciprocal risk-taking, measured against a background of innocuous risks inherent to the community. George Fletcher.
a)Extra-hazardous activities create non-reciprocal risks even when you’re as careful as possible.
3.Win-win situations
a)Grazing cattle: Exodus 22:5. When cattle eat crops, the cattle owner has to pay despite lack of wrongdoing, because both parties want the other to continue with their respective activities – growing crops and raising cattle. SL to avoid the tragedy of the commons.
b)Vincent – boats and docks, both want to encourage each other’s activity
c)Government Takings: the government wants to pay when they take your property.
(1)Activity level effect: Less incentive to undertake productive activity – building planes or growing crops – if the government can swipe it whenever it likes. The government wants the products to be available for the swiping, so it wants to pay when it swipes. Plus, we want the government to win whatever war it’s fighting (theoretically at least).
(2)Government won’t pay for people it drafts: you’re not going to stop making people or being a person just because you might get drafted without salary compensation. Supply is ensured, so the government doesn’t need to pay extra to ensure supply.
(3)Symmetry: government doesn’t pay when a regulation merely diminishes the value of your land, because it’s not symmetrical. There’s no way for the government to charge people who benefit from its regulations or policies (or you’d have to pay every time the cops helped you out), so we don’t let people recover when their interests are hurt.
4.Information-forcing situations
a)Rylands itself – information-forcing
b)Contracts: breacher pays to restore the breachee regardless of efficiency of breach. Non-wrongdoing breachers pay expectancy damages. Information-forcing system. We want strict liability because we want people to make efficient breaches, but we want people to bargain without fear of losing their expected profits in the event of a breach. If a contract is more important to one party than the other could expect, the party with high stakes must inform the other of the stakes.
5.Evidentiary problem situations
a)Fires in old England: the fire consumes the evidence of how it started
(1)Wrongfully started fire: both rules impose liability
(2)Non-wrongfully-caused: can’t prove that. So if we allowed that excuse, we’d let all the wrongdoers off too. So our rule has to be causer-pays if we want to discourage wrongdoing. When we can’t distinguish between wrongdoers and cautious people, we impose liability on everyone. Not in effect now; we can tell how fires began now.
(3)Incidentally, Exodus 22:6 also imposes strict liability for fires.
b)Common carriers of goods – no witnesses except the carrier itself.
c)Blasters – just like the old fires rule; can’t tell if there was wrongdoing because the evidence exploded.
6.Res ipsa loquitur situations
a)Wild or habitually mean animals – causer pays. The animal can’t escape without some negligence on the part of the keeper.
7.Itinerant victims
a)Innkeepers – theft of goods in an inn gets causer-pays. Guests are travelers. They can’t stay around for an investigation. Insurance is going to compensate either way, but if the causer pays, the innkeeper will have a better incentive to prevent theft at his inn. And he’s in a position to do that.
b)Doesn’t apply to theft of personal goods at a store. That situation deals with locals.
8.Vicarious liability
9.Established rules of conduct: sneaking strict liability into negligence rules with jury instructions
a)When the standard of care is settled by many cases, a judge can write a detailed jury instruction to avoid inconsistent results. Baltimore and Ohio RR v. Goodman, p. 270. See also Jewell v. CSX Transportation, p. 273.
b)In new situations, where manyvariables may be relevant, the standard of conduct must be left to the jury. Pokora v. Wabash Ry., p. 271.
c)Advantages of juries
(1)Reflect community senses
(2)Check domination of government bureaucracy
(3)Legitimacy of judgments
d)Disadvantages of juries
(1)Expensive
(2)Passionate and prejudiced
(3)Jury duty sucks
(4)Can’t understand complex issues
C.Anti-Rylands Situations
1.When the causer doesn’t pay even though the causer was a wrongdoer
a)When we want to encourage an activity that a negligence rule might discourage
(1)Fireman’s injury in a negligent fire: we want people to call 911 to prevent fires from spreading, so we don’t want them to be too afraid of liability when they accidentally start a fire. So we don’t hold negligent firestarters liable for fireman’s injuries. Also, the danger is in their job descriptions – the firemen are already compensated for the risk of injury through their inflated salaries.
(2)Negligent Ambulance – you call 911 and ambulance doesn't come – the City does NOT pay, b/c we want ambulance and 911 to try to improve the system and not be burdened with liability and litigation.
b)When we want to protect fledgling enterprises that will eventually be very socially useful
(1)When a facility has a new high-tech medical device that’s negligently maintained, no liability because it was such a bonus that they even had it.
c)When the tort was caused by political forces rather than incentive structures
(1)Snowplow Rule – If you wake up in the morning to go to school and the City has not plowed the streets and it is considered wrongful, the City does NOT pay – b/c politics can control snowplows (lost votes/campaign contributions, etc)
(a)note: If the plow hits you b/c it was going too fast, then the City would pay, b/c that is a driver issue (Torts control snowplow drivers)
(2)Agent Orange – Negligent of gov't to start a war, but they don't pay for the negligent war, b/c it should be left to politics to control bad wars, not tort. VOTERS take care of bad gov't, not JURIES. (Agent Orange – may have to pay for that b/c it is a specific tort on a person or group of persons)
D.General Average Contribution (admiralty)
1.Situation: When a non-negligent person causes harm and we need to apportion damages
2.Scenario: when a ship might sink and the captain must jettison baggage to stay afloat
3.Outcome under negligence rule: no recovery, because jettison out of necessity. If the captain won’t be liable at all he’ll throw away everyone else’s stuff first. No incentive to prioritize