TORTS
Professor J. Turley, Spring 2002
Alt + B = blue text (material from Glannon)
Alt + L = black text (material from Epstein casebook)
Alt + R = red text (material from Turley’s classes)
GENERAL ECONOMIC CONCEPTS
The Hand Test – U.S. v. Carroll Towing Co.
Calabresi/Hirschoff Test (1972) – the Cheapest Cost Avoider Test – for a version of strict liability – P. 196. The court should reject the Hand test and adopt this: court should decide which of the parties in a case/accident is in the best position to make the cost-benefit analysis (between accident costs and accident avoidance costs) and to act on that decision once it is made. Benefits: this test implies a lesser amount of govt intervention than the hand test, because the court does not itself make the cost-benefit analysis; it simply decides which party was best positioned to make it. Also, authors suggest it is easier to apply in practice than the Hand test.
Calabresi “cheapest cost-avoider” test: see Union Oil case.
Calabresi – loves strict liability – he doesn’t like contrib. Neg JDs b/c they mean that sometimes the cost is misplaced.
EFFICIENCY – always ask people how they are defining “efficiency” – 2 big approaches:
Pareto Efficiency: that which benefits at least one person, but harms nobody. As you tweak a model to produce more winners, you are making pareto improvements – and the point where you benefit most people while harming nobody is pareto optimal or pareto efficient.
Kaldor-Hicks Efficiency: asks why is it bad to make some losers as you maximize the winners? It’s efficient as long as there is a net win.
Pigou: says you should let market forces control, as long as they meet desirable goals – beyond that, where they fail, use legislation or judicial regulation. So judges may decide to create doctrines to guide the market forces.
Rational Actor: always seeks to externalize its costs, impose them on other people.
Externalities: anything you do to externalize costs (?).
Turley’s Factory: Turley has a lead factory polluting nearby air and water.
- If he makes $1000 profit from lead, but it costs town a lump sum of $1 million damage, result will be that Turley will stop production; town will pay him up to $999,999 to stop production.
- If it costs 1 million residents of town $1 damage each, result will be that Turley will continue production; transactional costs will bar individual victims from banding together to pool resources.
Tragedy of the commons: rational actors keep adding cows to the common – nobody backs off – and it spirals out of control and gets ruined. But if each person has a private plot, they now have incentive to care; result will be better use of finite resources.
Free riders: people who avoid action b/c others will do it for them.
Mansur Olson: theory that small, concentrated groups (where free riders are rare) will defeat rival large, distributed groups (where free riders are common) in political decision-making
Soft variables: intangible, non-quantifiable variables. The problem with Law & Econ approach is that it seeks to quantify everything, but you can’t quantify soft variables. E.g. how do you measure pollution’s effect on environment?
- Posner rebuts: of course you can quantify – just ask you much you’re willing to pay to protect the environment, or your wife or dog, or your favorite photo.
Market failure: if you let market run its course, you’ll eventually get result nobody wants – tragedy of commons.
- Negligence Standard as a Subsidy Policy – many scholars today believe that negligence standard (e.g., in Brown v. Kendall) arose as a way to give a subsidy to nascent industries and economic enterprises – it was easier for society to provide “subsidies” through court system than through tax system, which would create more political conflict. Leading proponents of the theory are Gregory (1950s) and Morton Horwitz (1977).
- Increasing Costs of Injury Prevention – (Turley’s comments during discussion of Stone v. Bolton cricket case): initially, the changes that you make (putting up nets to prevent stray balls, etc.) will be cheaper relative to the costs of the injuries. As you make more substantial changes, the changes get more expensive compared to the savings in damages due to injuries. Once changes become more expensive than the savings, rational actor stops making changes.
- Expanding & Shrinking the Universe – focusing the Ct’s attention on wider effects of the decision in your case, or urging Ct to consider a narrower issue. E.g. in Boomer, D’s atty should expand universe by pointing to the larger economic effects of shutting down the cement factory – job losses, income to county, etc.
GENERAL LEGAL APPROACHES
Normative Approach:
Formalism: school of thought that sought to add stability/predictability to tort law. Developed “canons of construction” – hierarchy for deciding X action produces Y result. Why? Economy and society flourish when we all know the consequences for specified actions. Designed with an anti-bias system.
Legal Realism: Karl Llewellyn’s attack on formalism – he personally read all tort cases and distilled them into canons to see if they were really applied in practice. Found that each canon had an opposite counterpart that courts used – the canons themselves are unbiased, but it depends all on which one the court decides to apply. This was “legal realism.” Immediately law schools tried to reject this, but failed. Within a generation the whole field changed – formalism died and all schools/judges became realists. Judges began to explain why they were doing things. Law became alive.
Lockean – Locke’s cohesive theory of law – called the labor theory – in the beginning, all things were owned communally. Then God put humans on Earth and humans used their sweat and labor to make it individual private property. Conservatives love this b/c it provides a divine basis for their pursuit of private property. Not just moral, but divine.
Neo- Lockians – believe there are limits to how much you can take people’s private property.
Locke’s Proviso – says you have a divine foundation of property as long as you have enough that’s good enough for others.
- John Rawls followed up on this, saying Locke can be read to mean that at some point, redistribution is okay.
Hegel – says the meaning/value of an object can only be measured in relation to its owner; an object often has much greater intangible value for me as an individual than it does on the market.
Utilitarianism- Jeremy Bentham was founding father. Function of law is to further the greatest good for the greatest number – contrasts with laissez-faire view, which produced massive poverty and social ills. Bentham: we should maximize wealth for society, and redistribute it appropriately.
Law and Economics: 75% of Fed judges today subscribe to some extent (?).
- Optimal basis for law is efficiency, not morality. Why: there are too many ideas of what “moral” is, so let’s not treat that; let’s instead just use law to find what maximized wealth.
Coase Theorem (Ronald Coase got Nobel prize) – extremely influential. Flourished during first Reagan Administration. Wrote on “social costs.” His theorem had two parts:
1. a legal dispute is result of conflicting uses; law should/will support the more valuable use (to the community).
- E.g. farmer wants to raise crops, excluding cows; rancher wants to have cows, which would trample crops. Which use of the land should prevail? Not a moral question – just say, which is more valuable to community?
- In a perfect market it doesn’t matter what the law does; market will create same result no matter what.
2. BUT: there’s no such thing as a perfect market – because of transactional costs. These are costs you incur just to make the deal. Transactional costs can actually lead to the worst possible outcome.
- Coase 1: in a perfect market, more valuable use will prevail.
- Coase 2: But you never get perfect market because transactional costs, free riders and externalities interfere.
- Shooting down Law & Econ arguments: when you see a Coase 1 argument, ask if they have factored in transactional costs.
Feminism: focused on paternalistic aspect of torts. One main question: did the fact that men alone created the law have a distortive effect and create some really deeply biased laws? Feminists say yes – the very heart of the system, the adversarial system, is based on an inherently male pattern of behavior – settle disputes with violence of confrontation; lots of evidence that modern trials descended from trial by combat.
- Fems criticized the law system as “jurispathic” – involving “judicial death” – they argue for “jurisgenerative” approach, e.g. in nuisance area of torts.
- Fems criticize, e.g. the common law rule of no duty to rescue – other countries do have such rules.
Critical Legal Studies – began in 1977 at a Harvard conference; asks why? What is law’s role in preserving the status quo of rich and poor in our society. Duncan Kennedy (still at Harvard) – big guru – reviewed Blackstone’s work and tried to deconstruct the canons – takes a class orientation.
I. INTENTIONAL TORTS
A. Physical Harms
1. Battery and Consent
A. Elements of battery:
Intentional infliction of harmful or offensive nonconsentual contact
1. D’s act must be intentional
- Intention: various definitions of what constitutes intention. Rest (3) § 1: D intentionally causes harm if he brings about that harm either intentionally (acts with desire to bring about the harm) or knowingly (acts knowing that harm is substantially certain to occur).
- Other types of intent – supplied by courts:
- Transferred Intent: if D means to hit 3rd party but hits P, D is still liable. Rationale: law should punish the evil intent even if it victimizes the wrong person. BUT transferred intent usually applies only within short time after intended injury; later than that, atty should use Neg theory.
- Substantial certainty: even if D did not really mean to, he had intent if there was a substantial certainty that his act would cause the injury.
- intent to violate a rule: Violation of ANY rule MAY count as intent..
- Vosberg v. Putney – D kicked P lightly w/o intent to harm; activated latent injury that seriously hurt P; Ct held D liable b/c of eggshell thin skull rule and fact that D kicked during class when there was no “implied license of playground” – breaking school rule = liable.
- Hockey case – P hurt during hockey game consented to rules of game, not “informal” rules that say players may fight during game.
- D must not only act intionally – must act for the purpose of inflicting harmful/offensive contact. If D fails to look to side as she walks through door and walks into P, that’s not intentional. The harm must be intended or substantially certain to result. Either can satisfy the test: if D throws stone at P thinking it won’t reach her but it does hit her, intention is still satisfied (substantially certain, no; intended, yes).
2. D’s act must be without consent.
- Illustration: Mohr v. Williams (Minn. 1905) – D doctor does medically sound operation on P’s ear to remove disease; P had consented to operation on right ear, but it turned out after operation that left ear really needed operation; with approval of P’s doctor, D doctor operated on other ear w/o waking her to confirm; P sued for battery and loss of hearing. Court sustained verdict for P.
- Implied Consent: Cts have developed ways to “invent” consent – implied consent (O’Brien – immigrant in line for vaccination gave implied consent to receive it), substitute consent.
- Some things cannot be consented to: Hudson boxing case – youth entered boxing match and sued promotor for his injuries; Ct said he was unable to consent legally b/c the match was barred by criminal code.
Restatement/Minority view: where it’s a crime to harm a member of a statutorily protected class, harm to a member of the class is not excused if he has consented to the harm.
- STD cases: majority rule = hold carrier liable if he/she transmits w/o warning partner.
- Eggshell-thin skull rule: take victim as you find him; doesn’t matter if D didn’t know P was hypersensitive.
4 common elements (and Rest elements):
1. D must act
2. D’s act must be intentional
3. D’s act must cause contact with the victim emergency – swerve over center line to avoid hitting kid
4. the intended contact must be either harmful of offensive to the victim
- Negligent rescue cases may give rise to battery claims; 1951 roller skating case – employee of D roller skating rink attempted to set broken arm of P as P was telling him not to; D was liable for battery as well as Neg. Good motives are no excuse.
B. Intent to Harm in Trespass to Real Property: requires only showing that D entered P’s land on, above or below the surface without permission. Does not require showing any harm.
- Trespass ABOVE the land – e.g. flying planes overhead, tree hanging over property.
C. Innocent Conversion of property: if D digs up P’s land, although P and D both think it’s D’s land and P gave D permission, but they later learn there was gold in that land, P can recover value of the gold. Mistake is no defense.
2. Nonconsensual Defenses
a. Insanity – NOT A DEFENSE generally. Majority Rule: Insane person who by his act does intentional damage to person/property of another is liable for that damage if sane person in same circumstances would be liable. We hold insane people to same standard as normal people despite their lack of true intent; policy = encourage family to take care of them. McGuire v. Almy (Mass. 1937) – nurse injured by insane patient – Ct sustained verdict for plaintiff.