An Approach to Torts

An Approach to Torts

Torts, Fall 2011, BYU Law, Prof. Nunez

This outline is a somewhat complete representation of the course, but generally does not mention cases and is light on policy. It will differ very little from outlines of the same class taught before Fall 2011 by Prof. Nunez.

~crb

Contents

I. Background of Torts 4

II. Intentional Torts 4

A. Intent 4

1. Intent Transfers 4

B. Battery 4

C. Assault 4

D. False Imprisonment 4

E. Intentional Infliction of Emotional Distress 5

F. Trespass to Land 5

G. Defenses 5

III. Torts of Negligence 5

A. Reasonable Prudent Person 5

B. Reasonable Prudent Professional 5

1. Attorneys 6

2. Doctors 6

3. Informed Consent 6

C. Calculating Reasonable Risk 6

D. Bright Line Rules of Law 6

E. Setting the Statute as a Standard of Care 6

1. Should it be set? 6

2. Effect of Setting Statute 6

F. Proof of Negligence Precipitant 7

1. Slip and Fall (Circumstantial v. Direct Evidence) 7

2. Res Ipsa Loquitur (The Thing Speaks for Itself) 7

G. Causation 7

1. But For test. 7

2. Substantial Factor 7

3. Proof of Causation (Daubert) 7

4. Concurrent Causes 8

H. Proximate Cause 8

1. Intervening/Superseding Causes 8

I. Instances of Limited Duty 9

1. Failure to Act 9

2. Duty to Rescue 9

3. Duty to Control Others or Warn Potential Victims 9

4. Pure Economic Loss 9

5. Negligent Emotional Distress 9

6. Negligent Emotional Distress for Bystanders. 10

7. Duties of Owners and Occupiers of Land 10

J. Damages 11

1. Punitive Damages 11

2. Compensatory Damages 11

K. Defenses to Negligence 12

1. Contributory Negligence 12

2. Comparative Negligence 12

3. Assumption of Risk 12

4. Governmental Immunity 12

IV. No Fault Liability and Other Ways to Recover Moola 13

A. Respondeat Superior 13

1. Frolic v. Detour 13

B. Animals 13

1. Strict Liability 13

2. Fence In, Fence Out 13

3. Wild Animals—Strict Liability 13

C. Abnormally Dangerous, Ultra-Hazardous Activities (Strict Liability!) 13

1. Historic Dangerous Activity 14

D. Limits on Strict Liability 14

V. Products Liability 14

A. Negligence 14

B. Warranty 14

1. Express 14

2. Implied 14

C. Strict Liability 15

D. Defenses to Product Liability 15

I.  Background of Torts

The plaintiff will assert that the defendant had a duty to act differently. Tort law exists to provide restitution, encourage responsible behavior and deter wrongful conduct, allow for peaceful adjudication, and to restore/vindicate rights.

The writ of trespass evolved into intentional torts while the writ of case developed into negligence (requiring plaintiff to show damage and some theory of why the defendant is responsible

Hulle: strict liability; Weaver: contemplates extreme exceptions; Brown: P must prove unlawful or negligent conduct absent contributory negligence; Cohen: foreseeability matters; Spano: strict liability for some situations and activites.

II.  Intentional Torts

A.  Intent

A person acts with intent to make something happen, or acts with substantial certainty that something will happen.

·  The minor is liable if he/she could form intent.

·  The insane person is liable, except for perhaps maliciousness

1.  Intent Transfers

·  Intent to hurt Person A transfer to Person B

·  Intent to commit Tort A transfers to Tort B

B.  Battery

Intentional, harmful or offensive contact with defendant (that actually occurred). Defendant acted with purpose or subst. certainty that HOC or apprehension thereof would occur. HOC with objects on plaintiff’s person counts. Offensive based on ordinary person in prevailing situation. Damages not required. The majority looks to the intent to cause the contact, damages following. The minority can quibble and call a battery negligence if the intended contact wasn’t supposed to be harmful.

C.  Assault

Intentional causation of reasonable, conscious apprehension of imminent harm, backed by apparent, present ability. Plaintiff must have been aware. Words generally insufficient.

D.  False Imprisonment

Intentionally, unlawfully restrains/confines plaintiff against plaintiff’s will (must be conscious or unconscious and harmed) where there is not safe remedy. Confinement is a physical barrier keeping plaintiff in. Unobvious exit doesn’t count as means of escape. A credible threat of imminent harm is sufficient in absence of physical barrier.

E.  Intentional Infliction of Emotional Distress

Intentional, outrageous conduct that causes severe emotional distress. (The four elements.)

F.  Trespass to Land

Unauthorized entry or continued presence onto the land or reasonable air space of another.

G.  Defenses

·  Consent (Implied in fact or law, must be informed and within scope. Person must have capacity to consent. Deception invalidates consent.)

·  Self-Defense (in face of real threat, proportionate force, but not retaliation. Retreat not obligatory in majority view. Minority allows deadly force when put to wall (or unsafe to retreat).

·  Defense of Others (In other person’s shoe test).

·  Defense of Property (Reasonable, proportionate. Residence status heightens your options. Mechanical devices can’t do much more than you would.)

·  Necessity (Public: Act was necessary to prevent disaster and property was toast anyways. Private: If act was necessary, then it is fine, but you must pay compensation and ultimately you will weigh cost/benefit.)

·  Justification (reasonable protection of stuff under custody)

III.  Torts of Negligence

A negligence action is based on duty, breach of that duty, causation (fact and proximate), and actual damages that are relevant. Duty +Breach are the standard of care.

A.  Reasonable Prudent Person

What would the RPP have done? Stupidity irrelevant—facts that adults should know are the standard. (Check tire.) Higher knowledge is relevant. The RPP isn’t a hero—emergency situations alter standard somewhat. Physical disabilities are weighed. Childhood is weighed except for when child is doing an inherently dangerous or adult activity. Permanent insanity is not a defense, but completely temporary and unexpected insanity/incapacitation is a defense.

B.  Reasonable Prudent Professional

The higher degree of knowledge, skill, or experience makes one accountable. The standard is still objective and looks at the training of an ordinary member of the profession. Such accountability must be established by expert testimony and the “average” is a bad measurement. Negligence of a professional is termed malpractice.

1.  Attorneys

Should possess requisite learning, skill, and ability. Must exert best judgment. A small error is insufficient. Must exercise reasonable and ordinary care and diligence.

2.  Doctors

Malpractice must be affirmatively proven with expert testimony. A testimony that other Dr. would have done differently not sufficient. Gross negligence (like a sponge in person) doesn’t require experts. Measured against ordinary standard of practice. Rules: locality, similar locality, national standard.

3.  Informed Consent

Duty: Doctor must adequately disclose the material risks and alternatives to treatment. It’s material if it is likely to affect person’s decision. (Moore v. Regents). Three standards: Particular patient would want to know, reasonable person would want to know (majority), reasonable physician (tradition). Exceptions: common knowledge, emergency, disclosure detrimental. Causation: Patient wouldn’t have consented with knowledge. Damages must exist.

C.  Calculating Reasonable Risk

·  Damage must be foreseeable. (Frozen fire hydrants)

·  Courts consider the burden of preventing the harm.

·  Burden < or> than Probability x Damages

D.  Bright Line Rules of Law

U.S. Supreme Court rule for train crossings. Is it always wise?

E.  Setting the Statute as a Standard of Care

1.  Should it be set?

Person harmed is member of class statute was to protect. Hazard as one the legislature intended to prevent. Is it appropriate to use statute? (Overall effect, whether it meshes with common law, how far damages and liability spread.)

2.  Effect of Setting Statute

·  Negligence Per Se (Majority) (Reasonable excuse can get defendant off of the hook.)

·  Rebuttable presumption (Some)

·  Mere evidence of possible negligence.

F.  Proof of Negligence Precipitant

1.  Slip and Fall (Circumstantial v. Direct Evidence)

Looking at the circumstances and drawing inferences. Was the banana there a long time? Should the defendant expect that spills would be frequent?

2.  Res Ipsa Loquitur (The Thing Speaks for Itself)

a)  To apply it:

·  No direct evidence of D’s conduct.

·  Harm doesn’t happen without negligence—general knowledge or expert testimony.

·  Situation in exclusive control of D. (Also an unconscious patient on operating table.)

·  Not the result of P’s conduct. (A contributory negligence thing.

b)  Effect:

·  Warrants inference of negligence.

·  Presumption of negligence (D must shove it back to 50%)

·  Presumption and burden shift. (D must prove with preponderance that he didn’t do it.)

G.  Causation

1.  But For test.

2.  Substantial Factor

An alternative test the court may use where there is some damage, but the But For test doesn’t seem useful. If the defendant’s behavior was a substantial factor in the end result, then there is some liability for that. Now used in conjunction with But For—it is an “either or” situation.

3.  Proof of Causation (Daubert)

·  Reliability of expert testimony: derived from scientific method, accepted by community, peer review, can and has been tested, potential error doesn’t invalidate, conclusions based on independent and pre-existing research.

·  Fit or Relevance: the testimony actually says something the court cares about.

4.  Concurrent Causes

There are joint and several liabilities in events where two separate acts of negligence combine to create a result whether the actors were in concert or acting independently. The substantial factor test would be useful here.

·  Joint and several: The car crashing into tractor trailer leaves either/or trucker or driver responsible.

·  Joint and several: The two hunters, negligently shooting are both responsible.

·  Market share liability: The drug industry with multiple manufacturers can be nailed under a sort of enterprise theory, but only proportionally, and only if they can’t prove definitively that their product could not have been responsible.

H.  Proximate Cause

Proximate cause is a policy-driven determination that limits the defendant from liability for far-reaching and improbable results. The defendant is generally liable for consequences which were reasonably foreseeable or stem from the consequences that were reasonably foreseeable.

·  Egg-shell plaintiff: If the defendant causes the car accident from negligence, he/she liable for all injuries that stem from that. (The body-builder that went nuts).

·  Palsgraf: Cardozo’s opinion v. Andrew’s opinion. Cardozo argues that the defendant is liable only for actions that rise from a breach of duty to the same person. Andrews wanted broader liability—a car accident driver is responsible for what comes out of that accident, even if the results are strange. Cardozo says that you must have the duty to that person.

1.  Intervening/Superseding Causes

If defendant should have seen the possibility of the type of intervening cause, or type of harm that could come, the defendant still has proximate cause. With the gasoline train, they should foresee that gas spilling through a town could get lit, but not foresee some delinquent deliberately lighting it up. But if the train was also carrying convicted arsonists.

The superseding cause is the kind that isn’t foreseeable, is independent, and far removed from defendant’s conduct. One isn’t bound to usually foresee someone’s criminal act.

I.  Instances of Limited Duty

1.  Failure to Act

Generally, a person is not liable for failing to act. For example, universities have not duty to regulate the lives of their students.

2.  Duty to Rescue

Generally, a person has no duty to rescue.

a)  Exceptions

·  Business: must furnish warning and assistance to business visitors. (The escalator)

·  Person involved in causing injury. If person caused injury or was an instrument under person’s control, they have a duty to rescue.

·  Person assumes duty and victim relies on that.

·  Special relationships—innkeepers, boat captains, employers, common carriers, etc.

3.  Duty to Control Others or Warn Potential Victims

This happens if there is a special relationship—a doctor, person holding custody, police officer, prison guard, etc. Factors that impose:

·  Foreseeability and severity

·  Ability to exercise care and prevent

·  Interest and relationship between parties

·  Considerations of public policy.

Duty to warn others is like the Tarasoff murder where the psychiatrists knew.

4.  Pure Economic Loss

There must be a physical impact before the person can begin suing for economic loss.

5.  Negligent Emotional Distress

There is no duty with regard to pure emotional disturbance.

a)  Physical Impact or Parasitic Rule

If D causes an actual physical impact, D is liable for emotional or mental suffering that flows naturally from it.

b)  Physical Manifestation Rule

·  D physically endangers P

·  Does not result in physical impact

·  But does cause emotional distress that has physical consequences. Generally, there must be actual physical symptoms.

6.  Negligent Emotional Distress for Bystanders.

a)  Zone of danger rule

Physical consequences + zone of danger.

b)  Dillon rule

Balancing test that abandons physical consequences.

·  Physical proximity

·  Temporal proximity

·  Relational proximity

·  Seriousness of injury

c)  Thing rule

Closely related to the victim, present at the scene, result is serious emotional distress beyond that of normal distress.

7.  Duties of Owners and Occupiers of Land

a)  Trespassers

Generally, a landowner owes no duty to a trespasser to make land safe, to warn of danger, or to protect trespasser aside from refraining from willfully injuring them, and attempting to warn or prevent once they’ve discovered the presence of the trespasser or have reason to believe that the trespasser is around.

(1)  Attractive Nuisance

The original rule dealt with attracting kids onto the property with the attractive nuisance. Now, there are more demanding conditions and it is called artificial conditions especially hazardous to children.

·  Know children are likely to trespass

·  Know thing poses unreasonable risk of death or bodily harm.

·  Children won’t appreciate the risk.

·  B < PL

·  After the above four which are duty, failure to exercise reasonable care.

b)  Licensee

Has the owner’s consent but does not have a business purpose with the owner. (social guest, etc.) The owner should warn of known dangerous conditions, especially latent defects. Also should refrain from causing problems.