Cornell Law School, Spring 2009

1

TORTS

Cornell Law School, Spring 2009

Professor Henderson

Contents

Harmful and Offensive Battery

Intent

Assault

Privileges

Consent

Self-Defense

Defense of Property

Necessity

“Outrageous and Extreme” Intentional Infliction of Severe Emotional Distress

Actual Causation

Specific and General Causation

Joint and Several Liability

Alternative and Successive Causes

Master-Servant Liability

Joint Enterprise Doctrine

Family Purpose Doctrine

NEGLIGENCE

Duty and Breach

B < PL

Violation of Statutes

Industry Custom

Res Ipsa Loquitur

Special Duties to Entrants on Land

Rescue

Proximate Cause

But-For Proximate Cause

Persons and Results within the Risk

Bystander Liability/Fright Without Impact

Direct Victims/Third Party Liability

Direct Victims/Loss of Consortium

Wrongful Death and Wrongful Birth

Wrongful Life

Purely Consequential Economic Loss

Contributory Fault

Contributory Negligence

Assumption of the Risk

Comparative Negligence

Immunities

Nuisance

Strict Liability

Custody of Animals

Abnormally Dangerous Activities

Products Liability

Harmful and Offensive Battery

Basic formula for Harmful and Offensive Battery

Intent to commit harmful contact resulting in offensive contact suffices; intent to commit offensive contact resulting in harmful contact also suffices, as does harmful-harmful and offensive-offensive.

Intent

Vosburg v. Putney(Kid kicking kid in school case)

a)The actual harm need not be intended—merely the act itself. With any intentional tort like this, one “signs up for the cruise” and is liable for all the harm caused by one’s intentional actions.

b)Intent is also satisfied by desire or substantial certainty/knowledge. It must always be accompanied by an act in order to result in tort liability.

Garratt v. Daley(Kid pulling the chair out from under an aunt)

a)Substantial certainty that harmful or offensive contact will result is enough to show intent. However, without intent, an action is not tortuous.

b)It does not matter if the intended contact results in contact to the intended person—thus we have a built-in “transferred intent” doctrine.

Knowing something is highly likely to occur does not by itself satisfy substantial certainty. However, a desire that something happen coupled with such knowledge is sufficient.

Fisher v. Carousel Motel(racist manager case)

a)Intentional contact with things closely associated with a person—their property, their clothing, etc—can serve as the basis for an intentional battery claim.

b)Offensive contact need not actually offend the person complaining of battery. All it need do is offend a reasonable person under the social usages of the time.

Leichtman v. WLW Jacor Communications(smoke in the face case)

a)The triviality of contact does not matter in an offensive contact case—only intentionality and something that would offend a reasonable person under the social usages of the time.

b)Nonetheless, a person may not erect a “glass cage” that is different from standard social usage and sue for battery based on that standard of harmful or offensive contact.

One of the policies of tort is to place incentives on the most efficient cost minimize—the would-be tortfeasor—to stop committing things that would be torts. Another policy goal is to do justice to victims, of course. Thus, even if a victim does not realize he has been battered at the time, a later discovery will suffice for tort liability, taking into account the statute of limitations.

Assault

Basic formula for Assault

Here apprehension only means to make someone aware of the imminent possibility. The same combination rules apply as in battery—the intent could be for apprehension of harmful contact resulting in apprehension of offensive contact, and an assault has still been committed.

Read v. Coker(investor threatened by workmen)

a)Words alone are not a sufficient basis for assault. Words plus threatening circumstances, however, are enough.

Beach v. Hancock(threat with an unloaded gun)

a)Even if the means chosen to create apprehension of harm are actually impossible of causing such harm, the actiosn suffice for assault if they would put a reasonable person in apprehension of such harm.

Generally, people cannot go around threatening harm and defend themselves against an assault suit by saying the harm was impossible. This would result in significant harm to social cohesion.

Privileges

The above outlines of intentional torts—battery and assault—are incomplete. There is a final, fourth step that must be overcome—the defendant must have acted without a privilege.

Consent

Barton v. Bee Line, Inc.(bus driver has sex with a 14 year old)

a)Nonage establishes an absolute bar to consent.

O’Brien v. Cunard Steamship(immunization of immigrants on the boat)

a)Batteries must always be thought of as discrete units of harm done to discrete individuals. Courts have trouble with and do not like talking about aggregate probabilities in the area of intentional tort.

b)Consent is judged by outward manifestations and acts that a reasonable person would take as consent. Once P “consents” in this way, failure to manifest withdrawal of consent, or the presence of some private lack of consent all along, does not vitiate consent, and the case for battery will fail on step four, as consent is a privilege for contact.

c)Secret consent in contradiction to outward lack of consent is a defense if proved in court.

Bang v. Charles T. Miller Hospital(unauthorized operation—severing spermatic cords)

a)If general consent is given to a procedure, that consent does not extend to do other procedures that are beneficial but not consented to, unless the situation is an emergency. In non-emergency situations, a doctor commits a tort of battery, because the second procedure was not privileged.

Kennedy v. Parrot(extension of authorization—another surgery case)

a)Where consent is given, and the principles of good surgery (or any other profession) demand that action be taken beyond that consent, such actions are not grounds for liability in battery. The privilege of consent is extended to them. Liability in negligence may still result.

b)In emergency situations, consent may be implied.

c)Side-effects are dealt with in negligence, not in intentional tort.

Hackbart v. Cincinnati Bengals(football injury from a foul)

a)When consent to contact is given, or assumed according to a set of rules, contact going beyond that consent, even if it is of the same general kind, is grounds for a battery claim. Actions that go beyond the implied consent of participation are not privileged.

State Farm v. SS & GW(herpes transfer case)

a)If there is an honestly held subjective belief that it is impossible to transfer an STD, but the STD actually is transferred, there is no intent, either of the obvious kind or of the substantial certainty kind, and thus no intentional tort.

Insurance effectively runs the tort system, because it is not worth it to go after the uninsured. Insurers have a duty to effectively represent their insured—they must always be willing to tender settlement within the limits of the policy. Some argue that this disincentivizes the desire to avoid torts, but it probably does not because insurance is not cheap. What it really does is allow potential defendants to displace risk into a pool, the total risks of which are determined in aggregate, and let them get stay afloat when hit with a big claim, and let the insurance companies make some money on the side by investments.

First-party (plaintiff’s) insurers require subrogation—that is, if P recovers from D’s insurance, he may not also keep the recovery he received from his own. Life insurance does not subrogate.

Self-Defense

Restatement of Torts, Sections 63 and 65

a)Self-defense is an example of a non-consensual privilege. The use of non-deadly force does not require retreat (when it is safe to do so) or compliance with a demand, but the use of deadly force does require both.

Courvoisier v. Raymond(mistaken assault case)

a)If D honestly believes that he needs to use force, and if that force is both reasonable under the circumstances and in the mode of employment, he may have a privilege to use that force. This is an issue for the jury to decide.

Saunders v. Petrangelo(made up case—used to show the point of jury instructions)

a)This is merely a case to show us that the need to use self-defense is not always obvious.

Defense of Property

Restatement of Torts, Sections 77 and 79

a)Non-deadly force is allowable if it is the only way to prevent the intrusion, and if D demands desistance. Deadly force is allowable iff D reasonably believes that the intruder is likely to cause death or serious bodily injury.

Katko v. Briney(spring-gun case against people stealing bottles)

a)Use of deadly or severe force in defense of property may only be used where the trespasser is committing a crime punishable with such force. Use of such force is also allowable if the trespasser is endangering human life with his actions, and is more likely to be found if there are children in the house.

b)The dissent argues that this case is incorrectly decided because it elides the issue of intent. The majority counters that the use of such devices implies intent to use deadly or severe force.

Necessity

Ploof v. Putnam(unmooring the boat in a storm case)

a)Necessity may create a privilege where there otherwise is not one. Thus, when D’s servant threw P’s boat out into a storm after P had docked on D’s island, he committed an arguably intentional tort because P’s use of the dock was privileged by necessity.

Vincent v. Lake Erie Transport(boat damaging peer case)

a)Where D is originally privileged by contract to be on the property, he may stay there if leaving is dangerous to his own property, but is liable for damages caused to P’s property. Thus D will leave when he thinks the damage he will cause in this way are greater than those he will suffer, and will stay if he believes the opposite. P would force D off if he believed D would cause greater harm by remaining than P would be liable for in forcing D off.

“Outrageous and Extreme” Intentional Infliction of Severe Emotional Distress

Restatement of Torts, Section 46

a)If P intentionally or recklessly causes severe emotional distress by outrageous and extreme conduct, he is liable for emotional distress and bodily harm resulting therefrom.

b)If P’s actions similarly cause harm in a family member of the victim, P is liable for those harms as well. P is also liable for harms to bystanders, but only for bodily harm.

Where there is no pattern of past abuse, no imbalance of power, and no specific knowledge of a unique vulnerability in the plaintiff, a court will usually not let this sort of tort claim past the pleading stage.

State Rubbish Collectors v. Siliznoff(trash hauler threatened by collectors’ group)

a)Where there is outrageous conduct amounting to an unprivileged threat of harm without the immediate means to carry it out that falls short of assault resulting in severe emotional fright, a cause of action may lie for intentional infliction of emotional distress.

b)The conduct must be truly outrageous and extreme. A mere breach of social decorum is not sufficient for a claim of intentional infliction of emotional distress.

Brandon v. County of Richardson(Boys Don’t Cry case—sheriff abused the witness emotionally)

a)“Outrageous and extreme” is a term to be looked at under all the circumstances on an objective standard. Thus, if the particular alleged tortfeasor does not think he is committing a tort, it may still be the case that he is.

Ford v. Revlon, Inc(incidents of sexual harassment reported, and employee given the run around)

a)An employer may be held liable for extreme and outrageous inflinction of emotional distress on recklessness grounds. Even if the employee is not guilty of the tort, the actions of the corporation in response to a complaint of harassment may be so egregious as to amount to an independent tort.

b)Severe emotional distress must actually occur. Without it, there is no basis for the tort.

Actual Causation

In all tort cases, remember that bankruptcy discharges all except intentional tort damages

Specific and General Causation

General causation requires that the alleged cause is theoretically capable of causing the alleged harm. It is usually proved by expert testimony, and in toxic exposure cases, is typically the whole case. Think of Erin Brokovich.

Specific causation is proved by circumstantial and direct evidence. Both sorts of causation are required in tort law.

Hoyt v. Jeffers(spark from a mill allegedly caused a nearby building to catch fire)

a)Juries must believe in the truth of the cause-in-fact/specific cause based on the preponderance of the evidence. This is a different standard than merely believing it more likely than not that the alleged cause was the cause-in-fact, but the boundary line is not clear.

b)Circumstantial evidence may be used to prove cause-in-fact/specific cause.

Under the so-called Housley Presumption, if P can show that she was in good health before the accident, and had injuries after the accident, the prima facie case of causation is made.

Smith v. Rapid Transit(bus accident case, without evidence of whose bus it was)

a)Mathematical evidence of probabilities is not sufficient to establish cause-in-fact/specific causation. We have this rule to stop plaintiffs’ lawyers from bringing frivolous cases, and because probabilities and the way in which they are gathered and reported are easily subject to abuse and misunderstanding by the jury.

Note 6 on General Causation and Scientific Evidence

a)Courts have “Daubert” hearings to determine whether or not to admit scientific evidence for general causation. There are two standards used for this: Frye and Daubert.

1. Frye Standard: if the evidence would be accepted in the relevant scientific community, allow it in.
2. Daubery Standard: allow the judge to determine, based on several factors, whether to admit the evidence. Part of this standard is looking to general scientific acceptance, but it allows the judge, rather than scientific experts alone, determine whether evidence should be allowed.

b)Under either standard, evidence must be credible. Expert status is not enough—the expert must also show good science.

c)P must show that the risk of the alleged harm is at least doubled by the alleged general cause. If this is not so, it is still not more likely than not that the alleged general cause resulted in the alleged harm.

Joint and Several Liability

There are two situations in which joint and several liability may arise. First, defendants may be acting in concert resulting in harm; second, defendants may be acting separately but give rise to a single, indivisible harm. We create joint and several liability because we want to put the onus on tortfeasors to work out amongst themselves through actions for contribution which D caused what, and not put that burden on the victim.

Summers v. Tice(hunting accident, impossible to tell which person caused which injury)

a)Where the injury is divisible but could be caused by one of two actors, and it is impossible to tell which one, Ds must figure out amongst themselves which one actually caused the injury; P need not do so.

b)This doctrine of alternative liability is essentially joint and several liability where it is in fact impossible to determine actual cause.

Ybarra v. Spangard(injury resulting from surgery, inability to show which person caused the harm)

a)Where P can show harm resulting from a team/concerted action, he need not show which member of the team caused the injury in fact. That burden is shifted to the Ds. If it is not clear on the facts which one or ones did it, the entire team is jointly and severeally liable.

Alternative and Successive Causes

Dillon v. Twin State Gas & Electric (boy playing on bridge, touched an electrified wire to stop himself from falling to certain death and died from electrocution)

a)If P would have died nearly instantly from another cause if the alleged cause not been there, the alleged cause is not the cause in fact.

b)If P would have been injured by one cause, and the second cause results in more injury, D of the second cause is liable only for the difference. This liability will increase as the difference between the two types of injury increases.

c)This case is important for negligence because we get an idea of B < PL here. D will not be negligent in failing to guard the wires if the burden of doing so is higher than the probability of injury multiplied by the degree/severity thereof.

Kingston v. Chicago & NW RR(two fires potentially could have caused the harm)

a)In most courts, if two causes, one of indeterminate origin and one of human origin, could have caused the harm P suffered, the burden of proof is on D to show that the indeterminate cause was a natural one. If D can show this, D is not liable for the harm caused to P, because he is in a sense not an “actual” cause of P’s harm.

b)If the human cause would’ve created greater harm, but both the human and the natural cause are present, the person causing the human harm is only liable for that above and beyond the natural harm.

Master-Servant Liability

A master is one who can control or who has the right to control the servant within the scope of employment. Generally speaking, the employer-employee relationship is only a subset of master-servant.

Employers are not liable for the torts of independent contractors, unless they are negligent in hiring, or the duty in question is non-delegable. Liability for ultrahazardous risks are non-delegable. Thus an employer may still require a bond from the independent contractor, so as to cover risk. Someone is an independent contractor if his actions are not directly under the control of the employer.

Masters are strictly, vicariously liable for the torts of their servants. Although strict liability will not increase expenditures on care beyond the optimal level, it raises costs over a mere negligence system because D will be potentially liable for more harm. Thus, strict liability is a device to create less of an activity overall, rather than to lower the riskiness thereof, even though mere negligence in hiring would create an alternative basis for recovery. Alternatively, it will make actors buy more insurance, which is good for plaintiffs.