Torts

Torts, the goals of tort law and the theories of liability

-Tort- a civil wrong, other than breach of K, for which the law provides a remedy

-Tort law: evaluating conduct to determine if there is liability

-Damages- that which the P is seeking as a remedy; compensation for the value of the injury

-Goals of tort law:

  • Deter conduct that tends to put others at an unreasonable risk of injury
  • To compensate injuries
  • Encourage social responsibility; we want people to be responsible for their acts
  • Dispute resolution mechanism: provide a peaceful means for adjusting rights of people who might otherwise “take the law into their own hands”

-Burden of proof: (2 separate burdens in tort law)

  • Burden of argument: P must supply in complaint itself enough allegations from which it can be concluded that Pmeets the elements of the cause of action
  • Motion to dismiss: “P cannot meet this initial burden of proof”
  • Burden of proof: Eventually P has to prove his case to the jury
  • Brown v. Kendall (1850) – Chief Justice Shaw says the burden of proof is now on the P
  • Summary judgment- procedural mechanism that allows a party to say to the court, “We don’t need a trial.” The case can be decided w/o a trial. If the case can be judged summarily then there is no need for fact finding (no need for a jury)

-3 theories of tort liability:

  • 1) Theory of liability based on intent
  • 2) Theory of liability based on unintentional conduct
  • Negligence
  • Brown v. Kendall (1850) – 1st time tort liability was based on unintentional conduct
  • 3) Theory of liability based on strict liability
  • Strict liability- liability w/o the need to prove fault
  • Recognizing a cause of action even though the P cannot show intent or negligence (Spano v. Perini)
  • Abnormally dangerous activities
  • * Plus: the law of bad luck
  • When you’re out of luck; the law provides no remedy

Damages

-Nominal damages- Consist of a small sum of money awarded to P to vindicate rights, make the judgment available as a matter of record in order to prevent D from acquiring prescriptive rights, and carry a part of the costs of the action. Amount of award, so long as it is trivial, is unimportant.

-Compensatory damages- Intended to represent the closest possible financial equivalent of the loss or harm suffered by P, to make P whole again, to restore P to the position P was in before the tort occurred.

-Punitive damages- Additional sum, over and above the compensation of P, awarded in order to punish D, to make an example of D, and to deter D and others from engaging in similar tortuous conduct.

-“Special” vs. “general” damages: Lost earnings and medical and other expenses are treated as special damages subject to objective measurement of the economic loss, while pain and suffering and emotional distress are treated as general damages whose loss- although real- is fundamentally non-economic.

Intentional torts (liability for damages caused by intentional conduct)

-Intent:

  • Voluntary conduct w/ the purpose or desire to cause ‘x’…or:
  • Voluntary conduct w/ knowledge to substantial certainty that conduct would cause ‘x’ (Garratt v. Dailey)

-Transferred intent- If the P can prove that the D acted voluntarily w/ the purpose or desire to cause (battery, assault, false imprisonment, trespass to land, or trespass to chattels), but committed one of these 5 original trespass torts on someone else, then the element of intent may transfer (Talmage v. Smith)

-Vicarious liability- recognizes the possibility of someone being liable for the conduct of somebody else (i.e., employer being held liable for employee’s conduct occurring w/in scope of employment)

-Damages resulting from intentional harm:

  • Nominal damages may be awarded even if P cannot show actual harm
  • Punitive damages may be awarded if the D’s conduct was outrageous or malicious (never awarded for negligence)

Elements for intentional tort causes of action

-Intent, causation, and injury are elements of all intentional tort causes of action

-Battery- intentional harmful or offensive bodily contact

  • Injury may be emotional (Fischer), not necessarily physical
  • Contact may be w/ an object, if the object is so intimately connected w/ one’s body as to be universally regarded as part of the person (plate in Fischer)
  • D need not touch the P w/ his own body, but something under his control
  • P need not be aware of the contact at the time that it occurs

-Assault- intentional conduct that causes a well-founded (or reasonable) apprehension of an imminent battery, w/ the apparent ability to do it (from the P’s perspective)

  • The P’s apprehension of the battery must be reasonable (i.e., real potential for harm) (Western Union)
  • Intent to cause apprehension of a battery, not necessarily intent to harm
  • P must be aware of the threatened contact

-Intentional infliction of emotional distress- intentional or reckless conduct; conduct is extreme or outrageous; causation; emotional distress must be severe

  • Extreme or outrageous: i.e., whether the conduct is intolerable in civilized society
  • Causation: between the conduct and the (severe) emotional distress
  • There is no longer a requirement that there be a physical manifestation of the emotional distress

-False imprisonment- imprisonment; intent; causation; injury

  • Imprisonment- P must show he was confined; P was not free to leave; P did not have a reasonable avenue of escape
  • Injury- may be physical and/or emotional
  • If emotional- P must show consciousness of confinement (Parvi)

-False arrest- the D arrests the P w/ the claim of authority of law which they do not in fact have

  • It’s really just another type of false imprisonment claim
  • P is deprived of their liberty w/o justification
  • I.e., P being arrested for something else than what the P was convicted of (Engright)

-Trespass to chattels- the D intentionally intermeddles with a chattel which is in possession of the P; causes damages

  • Ways to prove damage (Restatement 2nd)
  • The chattel is impaired as to its condition, quality or value
  • The possessor is deprived of the use of the chattel for a substantial time
  • Bodily harm is thereby caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest
  • The P must be aware that the chattel is being used w/o their authorization
  • Important consideration- whether the chattel is returned and available to the P when the P goes to use it

-Conversion- the intentional exercise of dominion or control over a chattel which so seriously interferes with the right of the P to control it that the D may justly be required to pay the P the full value of the chattel.

  • Greater degree of interference with the property right than for trespass to chattels
  • Interference is of such a degree that the court will provide a greater remedy for it: full market value of the chattel at the time the chattel was converted
  • Not sentimental value or use value
  • Basically the D having to buy the P’s item

-Trespass to land

  • Intentional interference with the P’s property right; causation; injury
  • An injury is shown by merely showing that there was an interference
  • If there was an interference- then there is an injury
  • Any intentional, unauthorized entry on land would give rise to a cause of action for trespass to land.

Privileges in cases of intentional conduct

-Privilege- a defense that will be raised by the D in cases of intentional torts

  • Those arguments that can be made by the D in response to the P’s allegations, but that those arguments are not attacking the sufficiency of any of any of the elements of the cause of action
  • May or may not have the effect of getting a motion to dismiss

-Consent- the D claims they had the right to do that which the P is now complaining about, and this right comes from the P’s consent

  • Where the privilege of consent is successful, the D will win a motion to dismiss for an intentional tort
  • Can be either express or implied (implied by the P or implied by law)
  • Implied consent where a doctor must treat an unconscious patient during an emergency situation (Mohr)
  • Consent can expire; consent can be limited (i.e., by an expression of a time limit, or limited in scope)
  • Consent must be valid (De May v. Roberts- invalid consent to assistance during birth was obtained, based on false pretenses, misrepresentation, etc.)

-Self-defense- must be reasonable, and must be in response to an immediate threat

-Defense of property- there is a privilege to defend property, but the conduct must be reasonable

  • Can never be mortal force (Katko); cannot kill someone to defend property

-Necessity- privilege that allows the D to engage in conduct that results in injury to another’s property for the purpose of protecting another person’s property

  • If conduct involves protecting private property- private necessity
  • D can protect his property by causing damage to another’s property, but the D will have to pay compensation
  • If conduct involves protecting public property- public necessity
  • D will not have to pay for damages from their conduct

Negligence (liability for damages caused by unintentional conduct)

-Brown v. Kendall (1850 Massachusetts case) Chief Justice Shaw divides the tort law world into 2 theories of liability: intentional conduct and unintentional conduct

-The question of negligence is different from the question of liability

-Negligence- acting unlike a reasonable person would under the circumstances

-The jury evaluates the D’s conduct by comparing it to what a RPP would have done under the circumstances (Brown v. Kendall)

-5 elements of the cause of action for negligence: (1) duty, (2) breach of duty, (3) cause in fact, (4) proximate cause, (5) damages

Duty

-Duty- the obligation to act reasonably

  • “Reasonable” – how a RPP would act under similar circumstances
  • A RPP would never put another person at an unreasonable risk of injury.
  • If a certain conduct puts others at an unreasonable risk of harm, there should be a duty not to do it.

-Factors to consider when determining whether a duty should be imposed on the D to act in a certain way: (whether goals of tort law are advanced by doing so)

  • (1) Cost benefit analysis- cost of imposing a duty vs. benefit of not recognizing a duty
  • (2) Policy issues- any other values or concerns (societal consequences) that would be affected if we recognize a duty
  • (3) Fairness- whether it would be fair to recognize a duty (Cohen- court says it would be unfair to recognize a duty where the driver passed out but had no prior notice)

-Breach of duty- D’s conduct fails to meet that which is expected of the D under the circumstances (D fails to act as a RPP under the circumstances)

  • The standard of care is objective, not subjective (Vaughan v. Menlove)
  • The standard of care (usually) does not change from case to case. You must take into account the circumstances (Cordas v. Peerless Transportation Co.). But in certain cases the standard will be expressed differently.

The standard of care in special cases

-Physical disability

  • Courts typically take a physical disability into account, and express the standard of care differently than usual
  • I.e., “What the RPP would do if the RPP were blind” (Roberts v. Louisiana)

-Mental disability

  • Courts usually will not express the standard of care differently than usual in cases of mental disability
  • Courts usually express the standard as “What a RPP would do under the circumstances”
  • Exception- certain cases of mental disability which are analogous to those w/ sudden, unexpected physical disability (i.e., seizures)
  • “What the RPP would do if the RPP had a sudden attack of insanity”

-Children

  • Courts merely require a child to act as a RPP of the same age, intelligence, and experience
  • Exception- where a child engages in an inherently dangerous activity, he is held to the standard of an adult; a RPP under the circumstances (Robinson v. Lindsay, snowmobiles)

Arguing what the RPP would have done under the circumstances (sources of the standard of care)

-Rules of law

  • A court that rules over your jurisdiction has already decided the standard of conduct in a case w/ exactly the same circumstances to your case (very rarely available; courts rarely say that a certain conduct is always negligent/breach of duty; circumstances change)
  • Pokora- getting out of the car and looking for an oncoming train

-Common knowledge

  • A P can base his argument on what a RPP would have done under the circumstances (duty) on common knowledge
  • For a P to base this argument on common knowledge, the P must convince the jury that everybody should know
  • Delair v. McAdoo- P argued that everybody should know of the condition of their tires, and everybody should know that driving on worn out tires puts others at unreasonable risks of harm

-Custom

  • P can argue what the RPP would have done under the circumstances based on a custom, as long as it is a custom, the custom is reasonable, and the custom applies
  • Trimarco v. Kelin- P argued the D had a duty to act in accord w/ the custom among landlords, and it was customary practice for landlords to replace old glass w/ safer glass
  • Ways D can respond to P’s argument for duty based on a custom: (1) there is no custom, (2) there is a custom but it does not apply to the D’s conduct, (3) there is a different custom, (4) under these circumstances we should not allow the P to base his argument for recognizing a duty on custom because the costs of doing so outweigh the benefits

-Violation of a statute or regulation

  • In the vast majority of cases, the violation of a statute is not appropriate to show breach of duty (not every statute is appropriate to express a duty in tort law)
  • Factors that courts consider when deciding whether to base the standard of care (duty) on the text of a statute: (1) statute must relate to conduct, (2) statute has to relate to minimizing risks of injury, (3) whether P is among the category of people that the statute was designed to protect from injury, (4) whether P’s injury is of the kind the statute was intended to prevent, whether the statute clearly defines the required or prohibited conduct, (5) whether it would impose ruinous liability disproportionate to the seriousness of D’s conduct (fairness), (6) whether injury resulted directly or indirectly from violation of the statute
  • Ways the violation of a statute may be treated procedurally: negligence per se, negligence as a rebuttable presumption, evidence of negligence
  • The P must show, not only that D’s conduct violated the statute, but that it was an unreasonable violation of the statute
  • Sometimes, given the circumstances, violating the statute may be necessary to avoid unreasonable risks of harm.
  • Sometimes the RPP violates the law.

-Is there a (limited) duty to help others?

  • At common law there is generally no duty to help others.
  • Hypo: You walk down by Lake Michigan and see someone drowning, and do nothing to help. They suffer an injury because you failed to help. That person cannot sue you. No duty to help.
  • Exceptions to the doctrine of no duty to help:
  • Where the D was the cause of the injury
  • Hypo: conduct that creates the need for help by pushing someone into the lake (D has a duty to help), vs. conduct that creates the need for help by taunting someone to jump into the lake (D has no duty to help)
  • Whether the P had the choice to do it
  • If the P had the choice to do it, then D has no duty to help.
  • If P can make a case that he was reliant on D to make a decision (i.e., P is a young child), then taunting P is basically the same as pushing P in the lake.
  • Where the D starts to help someone and then stops helping
  • Once the D starts to help some, the D has imposed a duty upon himself to continue to help.
  • Hypo: A university puts a guard n duty to help women walk a dark area of campus at night. The university has imposed a duty upon itself to help the women walk in a manner that is not negligent.
  • Hypo: “I’m going to help you!...Ah, the hell w/ it.” You have imposed a duty upon yourself.
  • Hypo: Jumping in a lake, failing to rescue a drowning person, and then leaving the lake. D has a strong argument that he did not breach a duty (failed to rescue, but still tried to help to the best that he could)
  • Hypo: D assumes the duty to help but does so negligently. P can try to make a case for that.
  • Special relationships
  • In certain cases the parties may have a special relationship between them such that the law recognizes that the nature of the relationship imposes on the D a duty to help.
  • L.S. Ayres case- invitor-invitee relationship: the court held that a store has a duty to help customers who injure themselves while in the store and injured by an instrumentality under the D’s control (escalator).
  • When does the store-customer relationship begin? Does it extend to the parking lot? Does it occur if the customer doesn’t buy anything? (arguments to be made both ways)

The standard of care in cases of professionals

-In general

  • The standard of care may change in the case of a professional whose conduct occurs in the exercise of the profession (the standard will not change for an attorney driving a car)
  • But the standard must remain objective (Heath v. Swift Wings; court instructed jury to compare conduct of D to conduct of D; subjective standard)
  • A professional has specific training and education; possesses certain skills and knowledge; often a certification process

-Sources of the standard of care for cases of professionals

  • Custom- This is the source that will be most often relevant for duty in cases of professional conduct.
  • The standard comes from the profession itself; very unique that a group of potential D’s would be the source of the duty that should be applied to them
  • Procedural consequence of the standard of care for professionals being distinct from the standard of care for non-professionals: P will have to use expert testimony to testify to the professional standard of care.
  • Cannot use common knowledge. What the professional does is not common knowledge.
  • Exception: There may be certain circumstances where the jury can use common knowledge to determine whether a doctor was negligent (i.e., doctor leaves a pair of scissors or gauze inside the P’s body; everyone knows you shouldn’t do it)
  • Statutes- Nothing inherently objectionable to using a statute for the professional standard of care, but still very rarely will a statute work for this purpose
  • Licensing statute- a statute requiring that to be a certain professional you must be licensed
  • Licensing statutes cannot be used because they do not clearly define conduct that would be required under particular circumstances.
  • The fact that someone practices medicine (or drives a car) w/o a license does by itself create an unreasonable risk of harm.
  • Professional responsibility laws- to regulate the practice of the profession of law
  • Most states expressly say that rules of professional responsibility in statutes do not create duties in tort law, but courts ignore this. If the circumstances are such that a rule would apply to a case, courts in certain cases ignore the very text of the rules and use them as expressions of duty in tort law.
  • Many rules of professional conduct are not specific enough or phrased in a way that is based on discretion (lawyer “may do x” instead of lawyer “must do x”). This operates against using the rule as an expression of duty.
  • It’s not unusual in general for a court to recognize a duty which will then presumably have an effect on the conduct of those who are affected by that decision, but it’s not common in professional liability cases, particularly in the absence of expert evidence
  • Rare case: P saw an optometrist for an eye exam; doctor did not test for glaucoma; standard in field was to test people 40 yrs and older, P was 38; P got glaucoma and became blind. The court recognized a duty w/o expert evidence (easy test to administer, inexpensive test, cost-benefit analysis in favor of P)

-Cause of action for attorney malpractice