Torts Outline Fall 2005 Section 1

TORTS OUTLINE – FALL 2005 SECTION 1 Professor Percy

NEGLIGENCE
Elements
Duty and Breach
Standard of care
General
Physical disability
Mental disability
Children
Professional
Rules of law
Negligence as a matter of law
Res ipsa loquitor
Causation
Cusation if fact
Proximate cause
Damages
Defenses based on P’s conduct
Vicarious liability
Joint tortfeasors/ allocation of fault
Other defenses
Duty of care (failure to act/ pure economic loss)
Owners and occupiers of land/ premises liability

INTRODUCTION

Tort

-civil wrong

-not based on K

-for which the law provides remedy

Why recognize torts?

-Compensate victims

-Channel resentment

-Deter bad behavior

-Punish fault, tort is a type of corrective justice

Three general types of torts:

intentional torts
assault
battery
trespass
intentional infliction of emotional distress
Negligence
Strict Liability
Animals
Abnormally dangerous activity
Products deficient due to manufacturer’s fault

NEGLIGENCE

Elements – P must prove by preponderance of the evidence
Duty – to use reasonable care
Breach – failure to comply with the required std
Causation
Causation if fact &
Proximate cause
Damages

A Negligence Formula (Learned Hand’s Formula in U.S. v. Carroll Towing)

P = probability of loss

L = gravity of harm that will result if loss occurs

B = burden of prevention

P*L >B, then impose liability

P*L < B, then no liability

Criticism: almost does not show how the precautionary measure affects the utility of the product.

Objective v Subjective

Advantages of using and obj std:

-one consistent uniform std, so everybody knows what is required

-jury doesn’t have to consider D’s intellect or actual knowledge

-encourage people to conform to higher std

Disandvantages of using an obj std:

-holding people liable even though they were using their best judgment (fairness)

DUTY AND BREACH

Standard of care
General – RPP – duty to act (or refrain from acting) if there is an existence of some likelihood of injury great enough that a RPP would take precautions. E.g. driving with bad tires dangerous – knowledge imputed to D as a matter of law.
Forgetfulness? - generally held RPP does not forget what is known – no excuse, only if lapse of time or similar distraction.
Standard trade custom and usage – may be introduced as evidence in most cases, especially when industry custom, however, such evidence is not conclusive. Jury decides:
Customary std
Reasonableness of custom
Dangerous situation – jury decides what a RPP would do under normal circumstances vs. what a RPP would do under emergency circumstances.
Miss – no emergency instruction, but jury can consider the circumstances
Exception – when D himself caused the emergency – no emergency instruction.
People with disability – std of care of a RPP with that disability
Children
Majority – what is reasonably expected of children of like age, intelligence, experience.
If engaged in inherently dangerous (adult) activity – RP std
Miss – rule of 7
< 7 - he cannot be negligent.
7 - 14 – presumption the child cannot be negligent,
> 14 - presumption that the child can be negligent or contributory negligent.
Mental disability
Majority – RPP std – no defense
Policy
As b/w two innocent people, D should bear the loss
Encourage those who take care of D to take more care
Fear false claims
Minority – exception, if:
D is suddenly overcome w/o warning
Mental disability makes it impossible to confirm to RP std
Policy – unfair
If exception does not apply – alternative – argue that mental disability is a physical condition
Professionals
Generally – std of care of a RPP employed in that profession – objective
Argument for objective
disincentive from becoming a better professional
hard to quantify experience
hard to apply different std to each individual
argument for subjective
better professionals should be held to a higher std
incentive to become better professionals
Lawyers – std of care:
Possess requisite skill & knowledge
Exercise best judgment
Use reasonable/ ordinary care
For legal/ medical malpractice – proof that suit would have been won but for lawyer’s negligence/ would have recovered but for dr’s negligence (causation)
Doctors
To prove negligence P must prove that every RP doctor would have prescribed a different coarse of treatment (deviated from std of care – expert testimony)
Three possible stds:
National
Local
Similar community
Pros and cons: national
Incentive for higher std
Medical education std-ized
But: “professional” expert witnesses
But: fear of testifying against another doctor
Miss: national std – minimally competent physician in the same specialty or general field throughout the US, but who have available to them the same general facilities, services, equipment and options.
Lack of informed consent (cb charged w/ battery)
Duty – on the doctor to inform of all the material risks –
either what a reasonably prudent doctors would disclose
or what a reasonably prudent patient wants to know.
Breach –
expert testimony if reasonably prudent physician std,
mostly left for the jury to decide
Causation – P has to show that had she known of all the risks involved, she would refuse for the surgery be performed
Objective – reasonably prudent patient
Subjective – patient would have refused personally
Policy
For: self-determination theory – basis for the claim to begin with.
Against: doctors would totally depend on the P’s testimony
Against: there would be more suits every time there would be something wrong after the surgery
Against: false testimony
Premises Liability – owners owe a duty of reasonable care under the circumstances to people who are:
Outside the premises
Old rule: no duty owed with respect to natural hazards, duty to use reasonable care with respect to artificial conditions (e.g. removing dead trees – rule eroding)
Unless D’s conduct contributed to natural condition (slopes yard so that water drains on neighbors yard and creates dangerous patch of ice)
Exception with respect to trees
Rural vs. urban distinction (duty higher) – evaluate the risk b/c the traffic is heavier or lower depending on the area
Duty to use reasonable care
On the premises
Duty owed to trespassers
In general: before trespasser is discovered, D only has duty to refrain from willful or wanton injury. In general, D has no duty to make land safe or to warn.
Once trespasser is discovered, D has a heightened duty
What is the duty at the point of discovery?
To refrain from willful and wanton injury (some cts)
To avert injury to others by means which can be controlled (some cts)
Once trespasser is discovered, is it wanton to fail to use reasonable care? - trend
Active vs. passive conditions (some cts hold that once trespasser is discovered, D must use ordinary care to avoid injuring P by active operations) (e.g. operating train – active) – some cts
When passive conditions on D’s land pose risk to discovered trespasser, D had duty in many states to at least warn
Exceptions – duty to use reasonable care:
Implied license (tolerated intruders)
Constructive notice of frequent trespassers (reason to know)
Licensee – social guest
Duty to refrain from wanton injury, warn of hidden dangers unknown to guest but known to owner
Some states – also duty to use reasonable care when engaging in active operations – subjective std
Some states – duty to warn if should have known of hidden dangers (Rest) – objective std
Invitee – goes on ppty to further owner’s business. Scope of duty:
Duty to inspect? (slip and fall cases) how often, how expensive.
Duty to warn?
About open and obvious dangers?
Some jur-s – no
But duty to correct
About hidden dangers?
Yes
Duty to make to premises safe?
Is it sufficient to simply warn of dangerous conditions?
Some cts – yes
Some cts – no, but duty to correct
Some cts – no, if obvious
What about natural conditions (ice at entrance?)
Some cts – no
Some cts – yes
Duty to protect form criminal activity?
If foreseeable – dangerous neighborhood – proximate cause
But for causation – expert witness, compare criminal activity to when the security was there
Concerns – raising the cost for products (to compensate for paying security), passing the burden on to the buyers, who may not afford to buy more expensive products – argue that more negative effect imposing duty on D, than positive.
Who are invitees?
People who use a public restroom but make no purchase?
If area open to the public, typically yes
People who shop but end up buying nothing? Yes
People accompanying an invitee?
Yes, generally (invitees may bring tag-alongs with them)
People viewing holiday lights display?
Probably not, if no charge – licensee.
Person who slips at church?
Yes, open to the public, more like an invitee.
Person who goes into back room for box? (Exceeding the scope of the business invitation)?
Invitee turned into licensee (not a trespasser b/c permission)
P’s argument – still an invitee, D developing good will to make P a repeat customer – good for his business
Duty owed to children
Traditionally– attractive nuisance doctrine, D liable even if a child is a trespasser
Widely applied, then exceptions/ restrictions developed
early on, applied only if attraction lured child onto ppty
doesn’t apply to common hazards (fire, drowning)
doesn’t apply to hazards that arise in nature
Modern, liable for creating artificial condition (Rest.)
D knows or has reason to know that children are likely to trespass
D knows or has reason to know that the condition involves unreasonable risk of death or serious bodily harm to chidren
Children b/c of their youth do not discover the condition or realize the risk involved in intermeddling with it
Utility*probability < or > risk
D fails to exercise reasonable care to eliminate danger or otherwise protect children – no duty on D to become an absolute insurer of children’s safety
Firemen, police, etc
Licensees?
Assumption of risk?
Rejection of merging categories (Rowland v. Christian) – just use negligence std – about half of the states
Some states:
reasonable care to licensees/ invitees (no distinction)
less duty to trespassers
Some states: reasonable duty to everybody (but possible contributory negligence on the part of P)
Policy
Cons:
Archaic classifications – not applicable in modern world
If create new rules, there will be some period when litigation will be concentrated solely on the scope of the rule (but probably better in the long run)
Complicated/ uncertain
Too many exceptions (e.g. active/ passive)
Don’t take into account appropriate factors
Forseeability
Useful activity
Cheap prevent the damage
Doesn’t make sense to focus on status of P, should be focusing on D;s conduct
Avoid lots of wasteful litigation over classification
Pros:
Under classifications there is more protection to landowner
Established rules that we know how to apply/ predictability
Possible liability for D if trespasser – if no classifications – insurance premiums might go up
Duty of reasonable care in all cases might expand liability/ fear of jury abuse
Duty owed to lessees and others - duty to repair and warn of known defect?
Traditional c/l – no duty
Exceptions:
Undisclosed dangerous condition (some cts: should have known)
Conditions dangerous to persons outside the premises (non-delegable duty)
Premises leased for public admission
LL retains control over parts of ppty
LL has contractually agreed to repair (tort claim)
LL makes negligent repaires
Duty to TTs and their social invitees?
Pagelsdorf Ct: Yes, the duty of reasonable care
Miss. And others: implied warranty of habitability
If breached, TT can recover for cost of repair and personal injury
What if no law/ ordinance requiring fire detectors? – implied warranty of habitability, just b/c one complies with the law does not mean reasonableness per se.
Does LL owe a duty to protect from foreseeable criminal activity?
Traditionally – no
Modern, liability on LL
If foreseeable
If within LL’s control or LL is in better position
If burden of preventing was less than risk of harm
Concern: pass on the cost onto TTs, even those who are willing to take the risk but pay less
Special duty rules- Duty to rescue? When does a person have an affirmative duty to rescue?
c/l: no duty to rescue, but if you undertake rescue you must do so reasonably
Why no duty to rescue?
Hard to define duty
Imposing liability on persons who are not at fault
What incentives do these rules give rise to?
E.g. driving physicians would rather not stop and help, rather than stop and help and impose himself to liability
Good Samaritan laws – some people say those laws do not do any good
Exceptions to the “no duty” rule
when failure to act aggravates injury e.g. boy’s arm stuck at the escalator, store shuts down the escalator, aggravating boy’s injury – liability only for aggravating injury, not for the whole injury
when D is master/ invitor?
When P is injured by instrumentality in D’s control
Other special relationships?
Employer/employee (when employee acting within scope)
Innkeeper/ guest
Common carrier/ passenger
Temporary legal custodian (e.g. teacher)
Occupier of land e.g. department store
Parent/ child or husband/wife?? – most cts
When D’s negligence causes the danger to P
When D’s innocent conduct causes hazard in a road
If D undertakes responsibility and then acts negligently
If detrimentally relied? If P did not detrimentally relied – some cts do not impose liability
If undertaking increased risk?
JS and MS v. RTH (a husband molests neighbors’ daughters. Parents sue the husband and wife) Does wife have affirmative duty to prevent duty to a warn of the harm when she knows or should know her husband is likely to sexually abuse young girls?
nature of risk (foreseeability and severity)
ability to use care to prevent harm
public policy interests
tension in marriage vs. harm to kids
if duty is to exist, when is it triggered?
When wife knows of risk to particular person? (RP or actual knowledge)
When wife knows of risk to identifiable class of Ps?
When wife knows of general risk?
Scope of the duty?
Flexible std – take reasonable steps to prevent or warn
Court’s holding
Spouse
who has actual knowledge or special reason to know
her spouse is engaging in sexual abuse or is likely to
against a specific person or persons
has duty to prevent or warn
Tarasoff v. Regents of University of NC (Psychiatrist knew his patient was going to hurt Tatiana but failed to warn her of danger) Do therapists have a duty to warn?
Exception to the “no duty” rule when D is in special relationship with person who poses danger (Dr must warn of contagious disease)
What do the therapists argue?
Too hard to predict, will result in “false” warnings
Will harm doctor/ patient relationship
Is there a duty on a passenger who is in a car with drunk driver to warn another passenger the driver is drunk if the other passenger does not know the driver is drunk? Some cts say yes.
Rules of law
Drivers know driving with bad tires is dangerous
In Miss, can’t drive at rate of speed which makes it impossible to stop within the range of vision
Benefits of rules of law?
Potential problems with rules of law?
Still must prove violation of rule of law caused damages
Violation of Statute
Violation of statute is negligence per se – no question for the jury, judge decides:
Was the statute designed to protect a class of persons including P?
Was the statute designed to protect the type of injuries P sustained?
Is the std appropriate for the ct to adopt?
P still has to prove causation – violation caused damages.
Violation of regulation
Is P in the class of people the legislature intended to protect? – Legislative intent
Are P’s injuries the type the legislature intended to prevent?
Is this std appropriate for use in a civil trial?
Legislative Intent
Majority – jury can consider violation (leg-re meant to prevent this type of harm); reasonable jury could find proximate cause
Minority – jury cannot consider
Is the statute appropriate?
Does statute recognize duty whyich is not already imposed by c/l?
Does the statute clearly define the prohibited conduct? (what is cause to believe that abuse may be taking place?)
Would recognizing the violation of a statute in a civl case create liability w/o fault?
Would recognition of violation impose ruinous or disproportionate liability?
Did injury result directly or indirectly from the violation?
Effect of violation of statute on jury instructions
Negligence per se - majority (jury will be instructed that violation of statute is negligent conduct).
Violation of statute as rebutable presumption (jury will be instructed that they are not to presume that a D who violated the statute was negligent, unless the D introduces evidence which is sufficient to overcome the presumption)
Violation is prima facie evidence of negligence (enough to make a jury question)
Evidence the jury may consider (not necessarily enough to get to the jury
Proof of negligence
Circumstantial evidence (slip & fall cases)
Duty – exercise reasonable care to keep premises reasonably safe
Breach – P proves that
D had notice of defect – constructive notice
Defect posed an unreasonable danger
There was sufficient time to correct it. Possible shift to D the burden of proof that there was reasonable inspection
D failed to use reasonable care
No proof of notice if manner of operating business dangerous – foreseeable that harm may occur
Causation – some cts require
Res Ipsa Loquitor – the thing speaks for itself. If no evidence of negligence, but if
D has exclusive control over premises
Type of accident does not ordinarily occur when reasonable care is used
P’s conduct did not contribute to the accident (subsumed by contributory negligence in most jur)
Then evidence of negligence
Ybarra v. Spangard: P operated on stomach, woke up w/ injured shoulder, sued every nurse and doctor involved in operation b/c was unconscious. Ct: inference of negligence permitted, burden shifts to each D to explain conduct. Ds who do not absolve themselves – jointly and severally liable.
Effect of RIL on jury instructions
inference of negligence which jury may draw or not (prima facie negligence) – majority approach
presumption of negligence which requires jury to find negligence if D fails to produce evidence to rebut negligence.
presumption of negligence which D must overcome and shifts burden of proof to D to prove that damage wasn’t caused by his negligence
Types of accidents that could use RIL
D drives a car and has an accident. P is a passenger and got injured.
Doctor leaves a sponge in a patient. If doctor conducts an x-ray to check the patient, may be a different case.
Body falls on a work of art. The artis can invoke res ips.
P hits a cow on the highway. No proof of breach, but there is evidence of broken rotten fence. Can P sue the rancher? Some cts said yes, some said (in rural areas more likely).
Experienced skier falls and alleges that D did not maintain his skis properly. No b/c skiers can fall for many other reasons than negl. Of the person maintaining.

CAUSATION