Professor Wendel

Torts

Spring 2009

Rules v. Standards
Should legal norms be in the form of rules or standards?
Law should treat like cases alike
Emphasizes substance or standards
Bright line tests end up treating Ps in the same positions in a disparate manner
Applications of legal norms must be predictable and stable
Emphasizes form or rules
Need a line, but where must we draw it?
Rules? Over-inclusive and under-inclusive w/ respect to justification
Standards? Less clear, but more tailored to justification
Can include things that would not fit into the rule but fit the same purpose
Introduction to Tort Liability
P’s “theory of the case” is the factual and legal argument that P should win
When should unintended injury result in liability?
Hammontree
Facts: D had a seizure while driving and lost consciousness and drove into a bicycle shop where P was working and P was injured. D was on medication and had visited the doctor but had no idea that he was going to have one.
P argues that D fell behind some standard of care, which is a breach of his duty and thus P should win.
P could argue that D should not have driven at all (negligence)
But this is too radical, need to balance competing interests of accomplishing the goal w/out doing too much to deny other people’s rights
P could argue that D should always have a passenger w/ him and did not so was negligent
P could argue that she innocent and that D has insurance, which can spread the risk of financial harm so that no one person has to bear the risk
Person who buys car (D) is more likely to buy insurance
Cheaper for D to insure (maybe)
D has better knowledge of the risk so in better position to prevent the risk—least cost avoider
We can force D to bear the harm by putting the risk on him so that he will balance the harms (cost benefit analysis), so that we minimize costs overall
Put the costs on the party with the least expensive precaution
Cost of better medication might be cheaper than reinforcing the wall
Could P have avoided the harm?
Reinforced the wall, put a fence, etc.
Seems like a wasteful precaution since possibility is so low
P argues that the court committed prejudicial error (instructional error) in refusing to give jury instructions on strict liability
Also tries to analogize to product manufacturers and say that D should bear risk since he is insured and in better position to insure against risk (like product manufacturers)
PP
Punish blameworthy conduct?
May be unintended consequences in the aggregate, like what will happen if the D is always liable in these cases?
What if D had seizures more often, once a week?
Then it would be foreseeable and he might be found liable
Two Perspectives in Torts
Internal—doctrinal structure of torts, the overall framework that there is a continuum b/t SL and negligence
External—looking at end goals and policies, values, and ordinary considerations
Want to see how this influences the internal
What is the torts system about?
Deter certain behavior
Encourage safety and accident prevention
Compensate or remedy to bring person back to status quo
Respond to wrongdoing by expressing societal disapproval
Background risks that we all impose on one another and how we deal w/ some of those risks and say that people must take precautions against them
The Parties and Vicarious Liability
Christensen
D was driving back from her lunch break from a store and she collided w/ P’s motorcycle. P sued D and D’s employer. Employer moved for summary judgment saying that D was not working w/in scope of her employment. TC granted because the accident was not on the property.
Respondeat Superior—employers are vicariously liable for torts committed by employees while acting w/in the scope of their employment
Criteria
E’s conduct must be of the general kind the E is hired to perform
Must occur substantially w/in the hours and ordinary spatial boundaries
Conduct must be motivated in part by the purpose of serving the employer’s interest
Vicarious liability is SL (do not have to show fault on part of employer)
Want to fit into the above categories, so ask relevant questions during the deposition
Do they wear uniform on break?
Are they employees even when not on grounds?
Is going to get lunch serving the employer’s interest?
Did they know about menus?
Did they punish them for going to buy food?
Told to not get food?
Did anyone from the company see them there?
Menus show that employer permitted them to get take-out
Show that they were not stopped from going
Notion of security around the plant, so want them to be in character when outside the plant?
Do they need to be w/in temporal AND spatial proximity of the plant?
Time limit on break shows that there is a scope of radius that the employees can venture out to
Why restrict plant boundaries to just the land they own but instead compare to the spatial boundaries of the trip
Don’t want to argue for too far of a spatial boundary b/c then will look ridiculous
Show that employer could have avoided the risks of rushing employees
Have a longer unpaid break
Café on the premises
Food delivery truck
On summary judgment, P wants to show that a reasonable juror could conclude otherwise (that D was not w/in scope of employment)
PP
Will imposing vicarious liability make drivers safer?
Will give incentives for people to take precautions?
Justify putting risk on the employer
Loss spreading
The employer has more money so can insure better
Has better access to insurance market
If all we care about is loss spreading, then employer should be liable even if employer sneaks off for something other than lunch?
Doesn’t seem right, we want to impose loss spreading for corrective justice
If employer is wrong, then want to point to something they could have done better, so the person who sneaks off could not have been deterred by the employer anyway
Roessler
P had surgery and suffered complications and he said that the doctor was negligent in reading his scans and he did so w/in scope of employment and so the hospital was vicariously liable. The hospital argued that he was an independent contractor
A principal cannot deny the authority of an agent when the principal permitted an appearance of authority in the agent and so justified a 3rd party’s reliance upon that appearance of authority
Test 1
Representation tolerated or permitted by the principal
Express or grant of authority
Reliance on that representation by a 3rd party
Change in position by the 3rd party in reliance
OBJECTIVE tests, not based on 3rd party’s perception or agent’s appearance, but ONLY WHERE the agent creates the appearance of an agency relationship
Test 2
Restatement § 409
Employer is not responsible for physical harm caused by the negligence of the IC UNLESS those services are accepted in the reasonablebelief that they are rendered by the employer or its servants
Both tests show that the P reasonably believed that hospital is supposed to provide quality service
D hires ICs so that they will avoid liability
Should we impose liability on the hospital regardless of the formally structure of the ICs?
Require D to take certain precautions, but this may drive up the costs for patients since hospital has to assume more liability
D or the IC might be in better position to prevent the harm to minimize social costs of insurance, accidents, and liability
Don’t want to just make P eat the cost by not shifting it to D
But hospital might not be able to control the actions of IC
Should we use a case-by-case standard or rules?
Case-by-case might be bad b/c then D doesn’t know how to act or when they are liable
Expensive transaction costs of how to work this through (discovery)
Bright lines make settling easier and easier to get to summary judgment/dismissal
Why should we treat doctors like ICs?
Allow doctors freedom over their practice
Hospital might try to micromanage doctors so they will end up using some procedures less often
P could argue that there is a misrepresentation issues b/c the hospital made it seems like the doctor/subcontractor was an employee
Negligence
Definitions
Create unreasonable risk of harm
Fail to take precaution that reasonable person would take is necessary to prevent foreseeable risk
Failure to use care in light of all of the circumstances
Historical Development of Fault Liability
Brown v. Kendall (see again)
D was trying to break up dog fight w/ a stick and hit P by mistake
Common Law: D had the burden of proving non-negligence
Affirmative defense
Trespass action (direct interference w/ another’s bodily security)
Strict liability
D can escape liability only in limited cases
Like accident was inevitable
Trespass on the case (indirect interference w/ another’s bodily security)
D can escape liability under some circumstances
If he showed he acted w/out fault
Judge Shaw: Instead of common law, we should ask D’s act was intentional (SL) or unintentional (then ask if failed to use reasonable care  liable)
Care more about fault
Directness  intentional or unintentional
Intentional  SL
Unintentional  fault or no fault?
Fault/negligence  Liable
No fault  no liability
What about P not using reasonable care?
Contributory negligence—no recovery at common law
MODERN law: comparative fault, so look at faults of each
Burden of proof
Shift from D to P
Before: D had burden of showing that he used extraordinary care
Now: P must show that D the was at fault
Modern Law
P must show fault by D to recover for personal injuries
Prima facie elements
Duty
Does D owe a duty to P?
If so, how high is the standard
Reasonable person?
Reasonable professional?
Refrain from willful and wanton conduct?
Breach
Did D’s action fall below the applicable standard of care?
Causation
Factual
Legal/Proximate Causation
Damages
USUALLY P must satisfy each element on a preponderance of the evidence standard (i.e. if equal, then D wins)
The Basic Negligence Standard
Ordinary care
Care which prudent and caution men would use such as required by the exigency of the case and such that is necessary to hard against proper danger
Hard to decide ex ante (before the fact)
Seems arbitrary
Forces people to measure up to a normative level of competence that may be too high for them
Some precautions that a person doesn’t have to take
Also negligence if you willingly act in a way that creates an unreasonable risk of harm
Keep in mind reasonableness—if the risk of harm is insubstantial or the burden outweighs the expected cost of the benefit, then not reasonable to take the precaution
RP must care about self and about others’ safety
Must make sure people do not overspend (deter useful activities) for safety but also that they do under-invest in safety
Adams
P walks along a bridge with a wire and it hits the streetcar line and he is electrocuted
P’s theory of the case: D should have provided adequate protection
Should have used signs
Best to argue, since most affordable
But might not have worked here, want something that is affordable but effective
Kids may not or will not be able to read it
Fence
More expensive than sign, but more effective
But it’s ugly!
Need to consider monetary and aesthetic costs
Put the wires under ground
Effective but expensive
Want to ask for a reasonable precaution, not to prevent all accidents
So maybe not bury the wires, but just more than D did
But also want to only prevent accidents that they could have predicted
D needs to be on notice
Not just forseeability, but probability
Reasonablyforeseeable!
But harms that are COSTLESS (e.g. sign) make the harm NEEDLESS
Very easy to avoid the harm at very low cost
D’s argument
Wires were under the bridge, so someone would have to do something bizarre to be hurt by them
SO IS THE COST JUSTIFIED IN THE AGGREGATE?
Probability of the accident is low, only unusual accidents at risk
So P will probably lose
Bolton v. Stone (pg 48)
P lives near a cricket field and a stray ball hits her
Was D negligent?
Need D to be on notice
6 prior occurrences in 25 years
but using Adamsnotice isn’t enough to prove that they were negligent
not just about forseeability but about if the precaution is REASONABLE
Ordinary caution probably would not involve taking this into account
There was a remote chance of harm, so using cost-benefit analysis need to be reasonable and not take precautions against everything if it is too expensive in comparison to the cost of the risk
ALSO: consider societal costs of overprotection and wasted expenditures on precautions that aren’t needed
Harm is also very low (compared to death, burns, etc.)
Should this be about rights?
The club owner has the right to use the land for cricket as long as it doesn’t interfere w/ the rights of others
“competing rights”—assign liability to the person who incurs the smallest cost
Explicit Cost/Benefit Analysis
Carroll Towing
Barge sank in NY harbor and case to determine if the owners of the boat were at fault for not having the bargee present
If the bargee was there, he might have been able to prevent further damage
You can purchase safety—so do we want D to purchase a particular amount of safety?
Determine by probability of the harm multiplied by the gravity of the resulting harm and see if it is more than the burden of the precaution (B < PL)
With every precaution taken, accident cost is lowered
Want to achieve the point where the marginal cost of each precaution exceeds the benefit so that we can maximize social welfare
Posner—negligence is the rule that increases the aggregate well being of everyone at the harbor
Don’t use the Hand Formula analytically, just consider cost-benefit analysis and realize that at some point not worth taking extra precautions
Want REASONABLE investments in safety and consider the TRADE-OFFS and the AGGREGATE
Braun (41)
D strung electric wires 25 ft above a vacant lot in 1980 w/ insulation expected to last 3 years and 15 years later a building was being built there and it was easier to raise the wires to get from one side of the building to another. P came into contact and was electrocuted.
Different than Carroll b/c not that expensive and reason to think that construction might go on and circumstances would change and people could get into contact w/ them
Would a reasonable person in light of the circumstances would think it was okay to leave the barge
Ct said during the working hours
Busy during working hours
Don’t want to imprison bargee in the barge
Learned Hand Formula
B<PL (cost-benefit analysis)
B = burden; P = probability; L = loss
Negligence inquiry can be formalized by comparing the burden on the D to take the precaution with the expected accident costs that can be attributed to the failure to take the precaution
Focus on the effect of an untaken precaution—if precaution would have avoided the accident, the cost of the accident, and expected accident costs
Somehow need to monetize the harms
Reasonable Person Standard
Objective standard—don’t look at the subjective state of the actor
They are still negligent even if they had the best intentions (good faith) if they failed to conform to some external normative standard (RP)
Need to construct in terms of decision/conduct rule
Must create incentives for people
Don’t want to use a decision rule otherwise too vague and not obvious to the actor if they are liable
Consider the standards at work and what detriments they have
Bethel v. NYC Transit Authority
P was injured on D’s bus when the wheelchair seat collapsed under him
P’s theory of the case
D had notice and should have done something more
Does not matter that they did not actually know of problem
Should have inspected the bus post-repair
Not have to check it every day or week, but after every repair
Jury instruction
Was wrong, were told that must use “utmost care” instead of “reasonable care”
Otherwise too much like SL
Instead, should be “reasonable care under the circumstances”
Must be contextualized—might be less predictable b/c of the circumstances
PLAY AROUND WITH “REASONABLE” AND “CONTEXT”
Reasonable care?
Higher duty since they are better able to prevent harms
Know when the bus is repaired
Know how the bus works
Force bus to choose if it wants to invest in safety or eat the costs
Differences in People?
For certain characteristics, we still need to use an objective standard
Even if you are clumsy, stupid, awkward
But do give some leeway for disabilities (use objective or subjective element?)
blindness
Easier to prove that you are blind
GENERALLY easier to prove objective standards than subjective (e.g. clumsy)
Also people then cannot lie
Easier for jurors to make an objective determination
Also, others can work around a person who is blind and take appropriate precautions
But other people cannot tell if a person’s subjective faults (e.g. if they are clumsy)
Mental disabilities
Bashi (pg 57)
Problems of proof caution courts not to contextualized according to mental disabilities since it is hard to draw lines
Evidentiary considerations
Gender
Risk perceived in walking home alone at night
Should we distinguish b/t reasonable man and woman?
Consider cost of increased violence against women that you might want to prevent
Roles of Judge and Jury and Application of Negligence Standard
Overview
Whether the burden, probability of harm, and gravity of loss are considered in the aggregate or individual case
Goodman
P was run over by a train at a grade crossing.