TORTS OUTLINE Torts Three Liability Theories 1

TORTS OUTLINE
Torts
Three Liability Theories
1. Negligence: the failure to exercise reasonable care under the circumstances. Negligence is conduct, which falls
below the standard established by law for the protection of others against unreasonable risk of harm;
2. Strict Liability: liability without fault; and
3. Intentional tort: Intending the consequences gives rise to intentional tort.
a. Desires to deter, deliberately creating consequences that could hurt other people. Let other people
know of the dangers.
b. Physical integrity: deter people, punish.
Negligence
Prima Facie Case: duty; breach; causation; and damages:
It is a reasonably foreseeable risk. The risk is likely, but not always certain. If unforeseeable, may not
be able to recover.
a. Subjective standard: What the reasonably prudent person would do.
b. Objective standard: Look at group of people and compare individuals to that group.
Reasonable care in light of the risk.
Causation: Defendant must have caused plaintiff’s injury;
Damages: Physical or psychological.
Proof of Negligence
1. Real evidence (documentary)
2. Direct evidence (eye witnesses)
3. Circumstantial evidence (create inference of what happened usually b/c there is an
evidentiary problem).
General Rule: All persons are under a duty to conduct themselves in all of their diverse activities so as not to create
unreasonable risk of physical harm to others.
In negligence, the actor does not desire the injurious consequences of his conduct; he does not know that they are
substantially certain to occur, nor believe that they will. There is a merely a risk of such consequences, unlike
intentional torts.
Defenses to Negligence
1. Contributory negligence;
2. Comparative negligence;
3. Multiple parties (fault compared to others);
4. Assumption of risk (express or implied).
a. Implied assumption of risk – the conduct must manifest consent, and the risk must be encountered;
voluntarily; and with full knowledge and appreciation of the danger (Note: a pedestrian who dashes out into
path of speeding car, fully aware of risk, does not manifest his consent to relieve driver of his obligation to
exercise reasonable care for pedestrians safety, nor of his liability for failure to do so. Actor demands that
care be taken for his safety. He may be contributory negligent, but does not assume the risk).
Contributory Negligence
Behavior on the part of an injured P falling below the standard of ordinary care that contributes to the defendant’s
negligence, resulting in P’s injury, which completely bars P’s recovery. Reasons for this: administerability, judicial
expediency, avoids necessary of apportionment. Contributory negligence will lessen or reduce plaintiff’s damages and
may even defeat claim entirely. Contributory negligence is an affirmative defense. The defendant has the burden of
showing evidence. The old rule was contributory negligence was a complete bar to recovery.
Prima facie case
1. D has to show that P created reasonable foreseeable risk to himself;
2. P failed to take reasonable care; and
3. P failure to take reasonable care was a cause in fact and proximate cause of the injury.
Butterfield v. Forrester p.308 (Plaintiff rides horse negligently through town at dusk). Hits obstruction created by
defendant. Plaintiff doesn't see it, his negligence constitutes contributory negligence and is intervening cause. He can't
recover.
Gyerman v. United States p. 313 (Plaintiff hurt performing dangerous task at work.) Employer alleges cont. neg. by
saying plaintiff negligently did not get himself excused by complaining to boss. Defendant didn't show that it would
have made much of a difference if plaintiff had complained; boss may have told plaintiff to keep working. Defendant
failed to show plaintiff's behavior was substantial contributing factor to the injury.
Exceptions to complete bar (even if the P was negligent)
1. D has a mental disability and doesn’t know consequences of actions
2. D was more reckless than P in conduct
3. D had the “Last Clear Chance” to avoid the injury (see page 19 of outline for definition).
4. If P broke a statute b/c it was safer to do so (Tedla v. Ellman).
Defenses
1. Comparative Negligence;
2. Modified Comparative Negligence;
3. Pure Comparative Negligence;
4. Assumption of Risk;
Comparative Negligence
A great majority of jurisdictions have adopted some form of comparative negligence in an attempt to abolish
the doctrine for a complete bar to recovery. P is allowed to recover damages, which are reduced by the percentage of
negligence attributed to P. However, it is often difficult to calculate apportionment, could be pure or modified (jury
decides).
(a) Comparative Negligence: P is allowed to recover his or her damages reduced by the percentage of
negligence attributed to the plaintiff (ex. if recovery is $50,000 and P 20% at fault, recovery is reduced to by 20%, i.e.,
$40,000).
(b) Pure Comparative Negligence, when P who is 75% at fault, P recovers only 25% damages from D who is 25%
at fault. However, this approach leads to a lot of litigation.
(c) Modified Comparative Negligence: P who is guilty of contributory negligence, may recover under modified
approach, so long as negligence was not as great as D, then P can recover. That is, P must be at 49% at fault or less;
If P is 49% at fault, recovers 51% from D. P’s negligence must not be equal to or greater than Ds, or else total bar. With
this approach, both parties recover (no offset) b/c it is unfair to leave an injured party without “compensation.”
i. Arguments against modified: Party more at fault must bear his loss and others. Chaos if multiple
parties where P is greater than D1 but less than D2; P who is at fault may recover under last chance rule.
(d) Assumption of Risk: It must be shown that P failed to exercise reasonable care, and that such lack of due
care contributed proximately to P’s injury. This requires proof that the P knowingly entered into, or stayed in, a position
of danger. This defense prevails despite the fact that the P’s entering into a position of danger, or staying in a place
which has become dangerous, was reasonable under the circumstances. This differs from negligence in that it is
subjective and requires knowledge of the danger/risk, and that P reasonably assumes risk, i.e., amusement park rides.
Murphy v. Steeplechase Amusement Co. (Injured on Flopper). P was aware of the nature of ride and the risk/consequences
involved and thus, assumed the risk. However, if P assumes the risk even if he does not know the risks, but should have
known, i.e. baseball parks. See Davidoff v. The Mets (P sat behind 1st base dugout and got hit with a foul ball). It is
common knowledge that foul balls might be hit in that direction. It is not practical to put up a screen all the way around.
Note: To end your discussion of assumption of risk mention that assumption of risk does not preclude recovery and
mention that in CA they merged Contributory Negligence with Assumption of Risk into comparative negligence. See
Gonzalez v. Garcia.
Arguments AGAINST assumption of risk-not good for people to give up all rights they otherwise have. One goal of Tort
law is to prevent accidents, assumption of risk goes against this.
Hammontree v. Jenner (Seizure while driving) An accident caused by a force outside one’s control will not lead to
liability if the D had seizures but exercised his due care by taking medicine. However, if the D knew or should have
known that due care was required and didn’t do anything, then he is liable
Avoidable Consequences
Even if the accident was D fault, P’s recovery might be reduced by a failure to exercise due care to mitigate the
harm done (in other words, if P took steps to mitigate damages, then P not negligent).
Violation of Statute - Negligence Per Se
Prima Facie case of negligence per se:
Violation of safety statute, which exists to protect others (applicable to someone in the position of
defendant’s class);
Statute must have safety purpose (to protect other people);
Statute was meant to protect a class of people (injured person must fall within class that was meant to
protect);
Injury was the type the statute meant to protect;
The violation was the proximate cause of the plaintiff’s injury.
Example: If keys are left in ignition outside school and someone steals the car and hits third person, the owner of car
who left keys in car can be held liable under negligence per se. However, if the car was in a suburban driveway, the
Court might try hard to say that the risk was minimal.
Example: If blood alcohol was substantially above legal limit; not wearing seatbelt.
If you were doing what you were supposed to do, there is no fault and the plaintiff loses. If found negligent, the
defendant pays loss.
Rule: The breach of a statutory duty to a member of the protected class is negligence per se.
Telda v. Ellman pg. 251 P walks on wrong side of road, according to statute, and is hit by speeder. Example of court
inventing an implied exception to a statute to relieve the plaintiff of a charge of contributory negligence per se. Court
rules that common law says that if traffic is heavier in the oncoming lanes, the statute can be violated and one can walk
with the traffic. Today, no such tricks of the law would be necessary because there is comparative negligence.
Comparative fault: Some states reduce P’s recovery in strict liability cases by an amount distinguishing those injuries
caused in part by P’s own carelessness. This is where the jury determines who was most at fault and then decides
damages based on who was more negligent. Even though the peddlers were negligent per se. See page 2 of Outline.
Ross v. Hartman pg 257 Truck driver leaves his keys in truck, truck is stolen and an innocent party is injured
Note: Courts can also find subsidiary victims as well. (If a third party is harmed by a party who violates a statutory
regulation.) Osborne v. McMasters pg. 245 druggist who sells mislabeled poison; Stimpson v. Wellington pg 247 Truck
driver without permit damages underground pipes. Court finds subsidiary purpose in permit statute that was meant to
protect roads in order to establish negligence per se. Sometimes the court finds subsidiary victims, as in a case where
a driver doesn't get car inspected and hits people in a building; statute only mentions protecting pedestrians, but driver
liable to injuries for people in building.
Defenses (subsidiary escape clauses):
1. Statute wasn't designed to protect this kind of victim.
2. Statute wasn't meant to prevent this kind of injury/damage.
3. Some states write into the statute that it can't be used to establish negligence per se.
Martin v. Herzog p. 250: P’s failure not to have lights on is negligence per se as it violated an existing statute.
Cordoza held that this is not evidence (like custom), it is negligence. Rule: unexcused failure to perform a statutory
duty is negligence per se.
Osbourne v. McMasters p. 245 (poison without label): Rule: The breach of a statutory duty to a member of the protected
class is negligence per se.
Stimpson v. Wellington Service Corp. p. 247 Heavy trucks should not be allowed to drive on the streets in order to
protect the streets from the weight of the trucks. There was a secondary purpose to protect the pipes under the streets
and the adjacent homes. As an attorney, we can look at the general safety purpose and find the subsidiary purpose that
may be covered.
Ross v. Hartman p. 257 Truck driver leaves his keys in truck, truck is stolen and an innocent party is injured. The Court
held “that the conduct of defendant or his agent was negligent precisely because it created a risk that a third person
would act improperly.”
Negligence Per Se – Minority View
Violation of statute is only evidence of negligence. Therefore, it is up to jury to decide, but there are two exceptions:
a. You may violate a statute, if it’s safer for you to violate it. Tedla v. Ellman p. 251 The peddlers violated the
statute by walking against traffic, but the driver was driving too fast and swerved hitting them (negligence per se). The
Court held implied exception: When the traffic is going with you is heavy, then you should walk facing them so that you
can see the oncoming cars. This was not in the statute. The court reached to get this decision so that they would not
hurt the innocent party injured.
b. Statutory purpose does not cover the harm that occurred. De Haen v. Rockwood Sprinkler (Man killed by
falling radiator in a elevator shaft); P says violated statute for placing bars around the shaft, but the Court said that
statute intended to protect people from falling down it, not radiators.
Foreseeability - Social policy: promote entrepreneurship v. preventing unintentional victims
Stone v. Bolton (woman hit on head by cricket ball): Risk must be reasonably foreseeable, not just conceivable. If the
risk wasn't reasonably foreseeable, then the p must bear the risk, and the case ends. If the risk is reasonably foreseeable,
then we must ask if reasonable care was taken. Court holds that the risk that Stone would be hit was so slight that it
wasn't reasonably foreseeable and that the park was not negligent in failing to protect against such a risk.
Hammontree v. Jenner (Epileptic has seizure while driving and drives car into store and injures Jenner and damages
shop.) Last seizure was 20 years before, so risk was not reasonably foreseeable.
Scott v. Shepherd: (Squib case) (1773) Argued on basis of "trespass" v. "trespass on the case," but today could be
argued as negligence, intentional tort, or strict liability, but most likely would be argued as a negligence case.
Reasonable Care
RPP standard of care (Reasonably Prudent Person) In general, we hold people to a general RPP standard, which is an
objective standard. Under RPP, we look at a group of regular people and ask what they would normally do under similar
circumstances. We never use subjective standards (where the reasonableness of a person's behavior is judged in terms
of what is reasonable for him in light of his ability) because of administerability, consistency, and predictability issues.
(TJ Hooper).
Blythe v. Birmingham: Water pipes burst during rare severe winter. Defendant town was not found negligent because
reasonable care was taken. To prove negligence, there has to be unreasonable care. We don't eliminate risks, even
if they are foreseeable, as it would be prohibitively expensive for many.
Eckert v. Long Island RR: Good Samaritan case where plaintiff gets hit by train trying to rescue boy he thinks is in
danger. Great risks can be reasonable if benefits warrant the risk.
Cooley v. Public Service Co: Plaintiff is injured while talking on the phone when a severe storm downs one of PS's
lines. It is OK to leave a risk to an activity to avoid a greater risk.
United States v. Carroll Towing Co: Barge attendant abandons barge for 21 hours. In the interim, barge broke loose
and struck and sunk plaintiff's barge. First time reasonable care formula is expressed in algebraic terms, i.e.,
"expected loss formula." Person will be found liable if the cost of prevention was less than the cost of the accident,
where the cost of the accident is calculated by multiplying the "probability of loss" by the "severity of loss." B<P x L.
Or vice versa. This is also a contributory negligence case.
(Hand formula - B<PxL)
Burden < Probability x Loss / severity. If this is the case, then there is negligence.
Burden > Probability x Loss Then there is no negligence.
(If cost of avoiding accident is less than probability of an accident occurring, multiplied by magnitude of loss, D
should take precautions to avoid accident B<PL; If cost of avoiding accident is more than probability of accident
occurring multiplied by cost of accident, D should not pay cost of taking precautions to avoid that accident B>PL).
Rule: the risk of injury is so low and the cost of an alternative method is high, D conduct is considered reasonable.
Andrews v. United Airlines: Plaintiff injured when luggage fell from overhead bin. Common carriers (warehouses,
airlines, etc., bailees of things and people) are held to a higher standard of care. Almost as high as strict liability,
except plaintiff has to point out something that wasn't done or could have been done.
Brown v. Kendall: Parties attempt to separate two fighting dogs with a stick and accidentally hits someone. Case
illustrates principle that people have just as much responsibility to exercise care for themselves. This case marks the
transition from directness (historical trespass approach/strict liability) to modern negligence approach.
RPBP--Reasonably Prudent Blind Person
Court creates separate standard for blind and handicapped people for many of the same reasons as they do for children,
fairness, administerability, deterrence, etc.
Lyons v. Midnight Sun Transportation Services: Truck driver swerves to avoid accident but instead exacerbates
situation. Court relieves him of liability under Sudden Emergency Doctrine, which says that people will only be expected
to act as others would in similar emergencies. RPP standard has made this doctrine redundant.
Reasonable Care by Experts
Quintal v. Laurel Grove Hospital: Kid is a vegetable after going into hospital for eye operation. Heart and breathing
stopped. Majority makes mistake of finding general negligence. Traynor concurring opinion and Latin say that a specific
behavior has to be found negligent, for example, failure to have an emergency plan. Case also shows the need for expert
testimony to judge another expert's behavior.
Lucy Webb Hayes National Training School v. Perotti Plaintiff jumps through glass window of mental hospital and dies.
Court rules that hospital failed to meet their own standards. If no standard, you need expert testimony to see what the
standard is.
Custom
A defense that professionals can use to shield themselves from charges of negligence. Used to illustrate reasonable care
for professionals in their industries, such as doctors. "Reasonable care" means what is widely used in that industry, not
what is good. If the custom is common knowledge or widely used, expert testimony is not allowed. Custom was binding
in all industries in the past. If there are no customs, then experts will argue as to what should have been done (expert
testimony). A custom is only evidence of a practice, it is not conclusive.
1. Shield - by defendants (binding) and
2. Sword - by plaintiff (admissible but not binding)
Treatment of Custom:
Inadmissible: Cannot bring in what people in industry normally do.
Admissible but not binding: Custom not good enough, must bring in expert testimony as well.