Torts-Noah

Spring 2003

I. Introduction

  1. Primary concern is compensating those harmed by another.
  2. Unintended injuries resulting in liability:
  3. The court has declined to impose absolute liability on drivers, only negligence. Hammontree v. Jenner(epileptic seizure while driving car, crashed through a shop)
  4. Manufacturers are strictly liable in tort when an article they place on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury.
  5. Absolute liability does not matter if you knew or did not know. It has all but died. Strict liability is knowing or should have known that your conduct presents danger to others.
  6. Standards for liability: Absolute liability>Strict liability>Negligence>intentional tort>Criminal sanction
  7. Plaintiffs usually have burden of proof to a preponderance of the evidence standard: 51%.
  8. 3 broad categories of Torts: intentional, negligence, strict liability
  9. An intentional tortfeasor is liable for a wider range of unexpected consequences than is a negligent tortfeasor, and thus more likely to pay a wider range of damages.
  10. Exam approach: Look for

1. Prima facie case: Say whether a prima facie case for that tort has been made.

  1. Defenses: Analyze what defenses and justifications, if any, D may be able to raise.

3. Damages: Pay special attention to: (1) punitive damages; (2) damages for emotional distress; (3) damages for loss of companionship of another person; (4) damages for unlikely and far-reaching consequences; and (5) damages for economic loss where there has been no personal injury or property damage.

II. Vicarious Liability

  1. Survival statutes allow estates to bring any suit that the decedent could have filed for.
  2. Under the doctrine of respondeat superior, employers are held vicariously liable for torts committed by employees acting within the scope of their employment. Christensen v. Swenson et al(employer sued because employee hit someone while going to get lunch on lunch break)

1.Acts falling within the scope are those acts which are so closely connected with what servant employed to do, that they may be regarded as methods of carrying out employment. Scope of employment is a question of fact usually left to the jury.

2. Tests for scope of employment:

  1. must be about employers business and not personal endeavor
  2. must occur within hours and spatial boundaries of employment.
  3. Employees conduct must be motivated, in part at least, by serving employers interest.
  1. Vicarious is strict liability. Even if employees were told not to do something, employers may be held liable.
  2. V.L. gives employers incentive to choose employees wisely, and to discipline those employees who commit acts of negligence, as well as to consider alternative employee efforts (mechanization, etc.)
  3. A hospital is not ordinarily liable for the negligence of a physician who is an independent contractor. On the other hand, a hospital may be held vicariously liable for the medical malpractice of independent contractor physicians when the plaintiff can establish the elements of ostensible agency (. Baptist Memorial v. Sampson(woman sued hospital where she was negligently treated for a spider bite by a doctor who was not an agent or employee of the hospital
  4. Party asserting ostensible agency must demonstrate that (all 3)
  5. The principal by its conduct
  6. Caused him/her to reasonably believe that the putative agent was an employee or agent of the principal and
  7. That he/she justifiably relied on the appearance of agency.

E. Apart from statutes holding parents VL for mischief created by their kids up to a modest amount, parents are rarely VL.

III. Negligence

  1. Standards of care
  2. The plaintiff must come prepared with evidence to show either that the intention was unlawful, or that the def. was at fault. Brown v. Kendall ( D tried to break up two fighting dogs with a stick and accidentally hit P in the eye)
  3. If the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable.
  4. This case is landmark opinion in establishing fault principle.
  5. Essential elements of a negligence claim:
Duty+ Breach + Causation + Damages= Liability
  1. Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent would do, under circumstances similar to those shown by the evidence.
  2. It is the failure to use ordinary care.
  3. Ordinary caution does not involve the forethought of extraordinary peril. Adams v. Bullock (kid electrocuted when wire he was swinging over the side of the bridge hit the trolley wire running below.)
  4. Ordinary or reasonable care is care in which an ordinary person would use to avoid injury to themselves or others, under the circumstances.
  1. BPL vs. RPS
  2. Absent a reasonable excuse, a barge owner’s failure to take reasonable steps to prevent an unreasonable risk of the barge breaking away in the harbor by manning the barge is negligence. US v. Carrol Towing
  3. The duty of a vessels owner depends upon the probability that the vessel will break free (P), the gravity of the resulting injury if she does break free (L), and the burden of adequate precautions to prevent her from breaking free or mitigating damages if she does break free (B).
  4. If B<PL, liability will attach under the appropriate circumstances. [The Hand formula]. Liability is dependent on if Burden [of taking precautions] (B) is less than the injury [seriousness of injury] (L) multiplied by the probability [of injury](P). If B > PL, then not taking the precaution is not negligent. If B<PL, then not taking the precaution is negligent. The greater the extent of the injury, the less probable the injury.
  5. This is a wonderful theory, but ordinarily the parties do not give the jury the information required to quantify the variables that the Hand formula necessitates, forcing them to make rough conclusions. As long as thedecision is reasonable, a judge cannot set it aside.
  6. When the cost of accidents is less than the cost of prevention, a rational profit-maximizing enterprise will pay tort damages to victims rather than incur the larger cost of avoiding liability.
  7. The Reasonable Person
  8. The objective RPS in basic traditional negligence theory necessarily takes into account the circumstances with which the actor was actually confronted when the accident occurred, including the reasonably perceivable risk and gravity of harm to others and any special relationship of dependency between the victim and actor. Bethel v. NYC Transit
  9. Exceptions for limitations:
  10. Physical impairments? No, reasonable people take their physical limitations into account. What would a reasonable blind man do?
  11. Mental limitations? Not unless obvious. It poses greater responsibilities on guardians as caretakers. Includes insanity excluded unless it is proven that the insane person is not aware of circumstancesand voluntary intoxication is excluded.
  12. Special abilities? NO, exceptional people are not held to higher than average standards. EXCEPT: Professional people in the course of their profession (doctors, truck drivers, etc..).
  13. Age? Yes. Traditionally, children are held to standard of conduct for persons of their actual age, intelligence and experience.
  14. When operating car, boat, or plane, a child is held to an adult standard.
  15. Age classifications or RPS:
  16. conclusively non-negligent
  17. presumptively non-negligence (rebuttable)
  18. age adjusted RPS (unless adult activity)
  19. adult standard

65+elderly are aware of their capabilities

Note: a child can be held liable for an intentional tort

e. Limitations have to be relatively open and obvious to all, so that they may prepare their actions accordingly.

  1. Forseeability is also a factor in determining if someone reacted reasonably. (IE someone who had to act immediately vs. someone who had time to prepare).

a. Distractions

1. A reasonable man can be distracted & this will eliminate liability

2. Adequacy of distraction is for a jury to determine

b. Emergency

1. Factor that would allow the jury to find conduct reasonable when under normal circumstances would be unreasonable.

2. Limitations:

i. Emergency must not be of the D's own making

ii. Actions still must be reasonable in light of the emergency, honest exercise of judgment.

  1. Judge vs. Jury
  2. Generally
  3. Although what constitutes reasonable care under the circumstances ordinarily is a question for the jury, not every case is. If there is not genuine dispute of fact often there will be a judgment as a matter of law.
  4. Contributory negligence is also a jury question.
  5. If a jury could make a rational decision either way on the record presented, summary judgment is inappropriate. Andrews v. United Airlines(brief case fell from OHD storage compartment, was it preventable is up to jury to decide)
  6. Summary Judgment- no issue of fact
  7. Directed verdict- no issue of law
  8. JNOV-no reasonable jury could find liability
  9. The role of customs and statutes
  10. Customs
  11. When proof of a customary practice is coupled with a showing that it was ignored and that this departure was a proximate cause of the accident, it may serve to establish liability. Trimarco v. Klein (man hurt when he fell through non-shatterproof glass when shatterproof was the custom)
  12. When proof of an accepted practice is accompanied by evidence that the defendant conformed to it, this may establish due care.
  13. A jury may yet decide that the custom itself is unreasonable, thus siding for the P even if the D complied with the industry custom.
  14. A plaintiff can prove a custom is reasonable by simply proving that others in the industry, although not establishing a custom, have developed safer techniques than did the defendant.
  15. 3 factors for asserting custom: forseeability, feasibility, affordability.
  16. Statutes
  17. The unexcused omission of statutory signals is more than just some evidence of negligence; it is negligence in itself. The statute is the law. If they violate it, it is negligence. Martin v. Herzog (P driving buggy without lights at night when they were struck by D car, which was traveling on the wrong side of the road).
  18. Statutory violations are normally negligence per se.
  19. Questions to ask in Analysis
  20. Did the D violate the statute?
  21. Was the P in the class of people intended to be protected by the statute?
  22. Is the accident the kind of risk that the statute was designed to protect against?
  23. Is there a causal connection between the violation and the injury?

In most jurisdictions, establishing 14 will cause a judge to deem negligence as a matter of law.

2. Common mistakes:

a. Negligence per se does not mean liability per se

1. D might have some defenses or excuses

2. All it deals with is the breach element

b. Just because P can't establish 14 (neg per se) does not preclude "plain vanilla negligence”

1. Conduct can still be deemed unreasonable under normal standard

  1. Automobile guest statutes-generally driver is not liable for non-paying passengers, unless driver is grossly negligent
  2. Strict observance of statutes under unusual circumstances is not always necessary to avoid negligence, if there is a good reason to depart from the statute. Compliance may be an excuse when it would bring more danger.Tedla v. Ellman(pedestrian hit from behind by car while walking on the wrong side of the road)
  3. General duty is established by statutes, and deviation from it without a good cause is wrong and the wrongdoer is responsible for all subsequent damages. It must be special circumstances. (An emergency) Ignorance is no exception.
  4. Licensing statutes have generally not been used to set standards of care (i.e. drivers license expired). The purpose of such statutes is to protect public from unskilled persons. If that is the case, P must prove def. lacked skill required.
  1. Proof of negligence
  2. Plaintiff has burden of proving defendant’s negligence was below standard of reasonable care.
  3. If the plaintiff has made out a prima facie case, it would be error for the court to dismiss the compliant. Negri v. Stop and Shop, Inc. (P slipped and fell in store where store owners failed to pick up broken jars.)
  4. To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendants employees to discover and fix it. Gordon v. AmericanMuseum of Natural History (man hurt when he fell on a piece of paper he claimed D had constructive notice of).
  5. Historical evidence has to be relevant to current situation.
  6. Business practice is held to a constructive notice; they are in the business and know industry standards.
  1. Res Ipsa Loquitor- the thing speaks for itself
  2. If a person passing along the road is injured by something falling upon him, the accident alone is prima facie evidence of negligence, and if there is any state of facts to rebut the presumption of negligence, the defendant must prove them. Bryne v. Broadle
  3. Res ipsa mostly shifts the burden to the defendant. Through rebuttal, it is up to the def. to show there was no negligence because the P does not have access to inside information.

2. Res ipsa provides an inference of negligence when the accident is the type that does not occur without negligence and the defendant is in control of the circumstances. McDougald v. Perry( D spare tire on tractor trailer became dislodged and hit P car)

3. Where a plaintiff receives unusual injuries while unconscious and in the course of med. Treatment, all of those defendants who had any control over his body or the instruments which might have caused the injury may be properly called upon to meet the inference of negligence by giving an explanation of their conduct. Ybarra v. Spangard(patient went in for appendectomy and came out with permanent shoulder damage, all involved deny blame)

4. A res ipsa instruction is especially necessary in medical malpractice cases in order to allow a plaintiff with no ability to show actual negligence the opportunity to prove negligence through inference, since the unconscious plaintiff is in no position to be able to testify about what happened in her surgery. Conners v. University Associates OBGYN (woman lost use of her leg after surgery to increase her fertility)

  1. Expert testimony can be used in res ipsa, in order to properly educate the jury.

5. 4 general requirements for Res Ipsa

a. No direct evidence of D’s conduct

  1. Harm seldom occurs without negligence
  2. Exclusive control of instrument causing neg. by defendant
  3. Neg. was not due to plaintiff
  1. Medical Malpractice
  2. Often requires expert testimony, unless lack of defendants. Standard of care is obvious to layman. There are limited cases where medical res ipsa applies. (Harm to different part of the body operated on (Ybarra), Leaving foreign objects inside the body, Unexplained burns)
  3. A physician is under a duty to use the degree of care and skill that is expected of a reasonably competent practitioner in the same class to which he or she belongs, acting in the same similar circumstances. Sheely v. MemorialHospital
  4. Even in jurisdictions which have not adopted a national standard for all malpractice issues, if a physician holds himself out as a specialist, he is held to the general standard of care required of all physicians in the same specialty.
  5. Hospitals themselves may be negligent for failing to select and retrain only competent physicians.
  6. In informed consent analysis, the decisive factor is not whether a treatment alternative is invasive or noninvasive, but whether the physician adequately presents the material facts so that the patient can make an informed decision.
  7. Professional rule- degree of appropriate warning is decided by experts
  8. Patient rule- degree of warning is decided by what the reasonable patient would need to make a decision. (Exceptions: emergency or therapeutic reasons)
  9. Like deviation of standard of care, failure to obtain informed consent=malpractice.
  10. To obtain a patients informed consent to one of several alternative courses of treatment, the physician should explain medically reasonable invasive and noninvasive alternatives, including the risks and likely outcomes of those alternatives, even when the chosen course in non-invasive. Matthies v. Mastromonaco (patient was prescribed bed rest, will never walk again, alternative treatment would have prevented harm)
  11. Withdrawing consent puts the parties back in the original position. A substantial change in the circumstances requires a new informed consent discussion.

IV. Special Duty Rules

A. Duties to others

1. Failure to establish special relationship that gives no rise to duty is often fatal to a claim for liability.

2. A duty may arise from:

a. Special relationship

  1. Common carriers
  2. Innkeepers
  3. Possessors of land who hold it open to the public
  4. Persons who have custody of others so that they cannot protect themselves.
  5. Promise to assist and invitation to rely.
  6. Beginning voluntary assistance.
  7. Good Samaritan statutes may partially immunize from liability.
  8. Must leave victim in better or at least no worse condition than before vol. assistance began.
  9. Can’t interfere with another’s rescue.
  10. You caused the dangerous situation.

3. No duty rules:

a. bystanders- freedom of choice

b. Intergenerational torts

c. 3rd party beneficiaries

4.Should the law impose duty to assist another individual who is in a dangerous situation?

  1. Duty to report child abuse: Every state has some type of statute requiring it.
  2. Duty to report crime:
  3. Several states have statutes that penalize.
  4. Cal. has a misdemeanor for failure to report murder or rape of child under 14.

B. Obligations to control others or protect 3rd party

  1. Avoidance of foreseeable harm requires you to control the behavior of another or to warn of such behavior when:
  2. There is a special relationship between you and the actor.
  3. “””””””””””””””’’ you and the victim.
  4. Special relationships that justify a duty to take control of a 3rd person are usually custodial.
  5. Parents/Children
  6. Jailer/Prisoner
  7. Landlord/Tenant
  8. Employer/Employee
  9. Doctor/Patient
  10. Common carries/ passenger
  11. Shop owner/shopper

3. An element of control (ie the keys to the car or keys to gun cabinet) is required to hold defendant liable for behavior of another. Other examples:

a. Once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. Tarasoff v. Regents of UC (murdered woman’s parents sued D because therapists employed failed to warn their daughter of death threats made to her by patient).