Professor Wendel
Torts
Spring 2009
- Rules v. Standards
- Should legal norms be in the form of rules or standards?
- Law should treat like cases alike
- Emphasizes substance or standards
- Bright line tests end up treating Ps in the same positions in a disparate manner
- Applications of legal norms must be predictable and stable
- Emphasizes form or rules
- Need a line, but where must we draw it?
- Rules? Over-inclusive and under-inclusive w/ respect to justification
- Standards? Less clear, but more tailored to justification
- Can include things that would not fit into the rule but fit the same purpose
- Introduction to Tort Liability
- P’s “theory of the case” is the factual and legal argument that P should win
- When should unintended injury result in liability?
- Hammontree
- Facts: D had a seizure while driving and lost consciousness and drove into a bicycle shop where P was working and P was injured. D was on medication and had visited the doctor but had no idea that he was going to have one.
- P argues that D fell behind some standard of care, which is a breach of his duty and thus P should win.
- P could argue that D should not have driven at all (negligence)
- But this is too radical, need to balance competing interests of accomplishing the goal w/out doing too much to deny other people’s rights
- P could argue that D should always have a passenger w/ him and did not so was negligent
- P could argue that she innocent and that D has insurance, which can spread the risk of financial harm so that no one person has to bear the risk
- Person who buys car (D) is more likely to buy insurance
- Cheaper for D to insure (maybe)
- D has better knowledge of the risk so in better position to prevent the risk—least cost avoider
- We can force D to bear the harm by putting the risk on him so that he will balance the harms (cost benefit analysis), so that we minimize costs overall
- Put the costs on the party with the least expensive precaution
- Cost of better medication might be cheaper than reinforcing the wall
- Could P have avoided the harm?
- Reinforced the wall, put a fence, etc.
- Seems like a wasteful precaution since possibility is so low
- P argues that the court committed prejudicial error (instructional error) in refusing to give jury instructions on strict liability
- Also tries to analogize to product manufacturers and say that D should bear risk since he is insured and in better position to insure against risk (like product manufacturers)
- PP
- Punish blameworthy conduct?
- May be unintended consequences in the aggregate, like what will happen if the D is always liable in these cases?
- What if D had seizures more often, once a week?
- Then it would be foreseeable and he might be found liable
- Two Perspectives in Torts
- Internal—doctrinal structure of torts, the overall framework that there is a continuum b/t SL and negligence
- External—looking at end goals and policies, values, and ordinary considerations
- Want to see how this influences the internal
- What is the torts system about?
- Deter certain behavior
- Encourage safety and accident prevention
- Compensate or remedy to bring person back to status quo
- Respond to wrongdoing by expressing societal disapproval
- Background risks that we all impose on one another and how we deal w/ some of those risks and say that people must take precautions against them
- The Parties and Vicarious Liability
- Christensen
- D was driving back from her lunch break from a store and she collided w/ P’s motorcycle. P sued D and D’s employer. Employer moved for summary judgment saying that D was not working w/in scope of her employment. TC granted because the accident was not on the property.
- Respondeat Superior—employers are vicariously liable for torts committed by employees while acting w/in the scope of their employment
- Criteria
- E’s conduct must be of the general kind the E is hired to perform
- Must occur substantially w/in the hours and ordinary spatial boundaries
- Conduct must be motivated in part by the purpose of serving the employer’s interest
- Vicarious liability is SL (do not have to show fault on part of employer)
- Want to fit into the above categories, so ask relevant questions during the deposition
- Do they wear uniform on break?
- Are they employees even when not on grounds?
- Is going to get lunch serving the employer’s interest?
- Did they know about menus?
- Did they punish them for going to buy food?
- Told to not get food?
- Did anyone from the company see them there?
- Menus show that employer permitted them to get take-out
- Show that they were not stopped from going
- Notion of security around the plant, so want them to be in character when outside the plant?
- Do they need to be w/in temporal AND spatial proximity of the plant?
- Time limit on break shows that there is a scope of radius that the employees can venture out to
- Why restrict plant boundaries to just the land they own but instead compare to the spatial boundaries of the trip
- Don’t want to argue for too far of a spatial boundary b/c then will look ridiculous
- Show that employer could have avoided the risks of rushing employees
- Have a longer unpaid break
- Café on the premises
- Food delivery truck
- On summary judgment, P wants to show that a reasonable juror could conclude otherwise (that D was not w/in scope of employment)
- PP
- Will imposing vicarious liability make drivers safer?
- Will give incentives for people to take precautions?
- Justify putting risk on the employer
- Loss spreading
- The employer has more money so can insure better
- Has better access to insurance market
- If all we care about is loss spreading, then employer should be liable even if employer sneaks off for something other than lunch?
- Doesn’t seem right, we want to impose loss spreading for corrective justice
- If employer is wrong, then want to point to something they could have done better, so the person who sneaks off could not have been deterred by the employer anyway
- Roessler
- P had surgery and suffered complications and he said that the doctor was negligent in reading his scans and he did so w/in scope of employment and so the hospital was vicariously liable. The hospital argued that he was an independent contractor
- A principal cannot deny the authority of an agent when the principal permitted an appearance of authority in the agent and so justified a 3rd party’s reliance upon that appearance of authority
- Test 1
- Representation tolerated or permitted by the principal
- Express or grant of authority
- Reliance on that representation by a 3rd party
- Change in position by the 3rd party in reliance
- OBJECTIVE tests, not based on 3rd party’s perception or agent’s appearance, but ONLY WHERE the agent creates the appearance of an agency relationship
- Test 2
- Restatement § 409
- Employer is not responsible for physical harm caused by the negligence of the IC UNLESS those services are accepted in the reasonablebelief that they are rendered by the employer or its servants
- Both tests show that the P reasonably believed that hospital is supposed to provide quality service
- D hires ICs so that they will avoid liability
- Should we impose liability on the hospital regardless of the formally structure of the ICs?
- Require D to take certain precautions, but this may drive up the costs for patients since hospital has to assume more liability
- D or the IC might be in better position to prevent the harm to minimize social costs of insurance, accidents, and liability
- Don’t want to just make P eat the cost by not shifting it to D
- But hospital might not be able to control the actions of IC
- Should we use a case-by-case standard or rules?
- Case-by-case might be bad b/c then D doesn’t know how to act or when they are liable
- Expensive transaction costs of how to work this through (discovery)
- Bright lines make settling easier and easier to get to summary judgment/dismissal
- Why should we treat doctors like ICs?
- Allow doctors freedom over their practice
- Hospital might try to micromanage doctors so they will end up using some procedures less often
- P could argue that there is a misrepresentation issues b/c the hospital made it seems like the doctor/subcontractor was an employee
- Negligence
- Definitions
- Create unreasonable risk of harm
- Fail to take precaution that reasonable person would take is necessary to prevent foreseeable risk
- Failure to use care in light of all of the circumstances
- Historical Development of Fault Liability
- Brown v. Kendall (see again)
- D was trying to break up dog fight w/ a stick and hit P by mistake
- Common Law: D had the burden of proving non-negligence
- Affirmative defense
- Trespass action (direct interference w/ another’s bodily security)
- Strict liability
- D can escape liability only in limited cases
- Like accident was inevitable
- Trespass on the case (indirect interference w/ another’s bodily security)
- D can escape liability under some circumstances
- If he showed he acted w/out fault
- Judge Shaw: Instead of common law, we should ask D’s act was intentional (SL) or unintentional (then ask if failed to use reasonable care liable)
- Care more about fault
- Directness intentional or unintentional
- Intentional SL
- Unintentional fault or no fault?
- Fault/negligence Liable
- No fault no liability
- What about P not using reasonable care?
- Contributory negligence—no recovery at common law
- MODERN law: comparative fault, so look at faults of each
- Burden of proof
- Shift from D to P
- Before: D had burden of showing that he used extraordinary care
- Now: P must show that D the was at fault
- Modern Law
- P must show fault by D to recover for personal injuries
- Prima facie elements
- Duty
- Does D owe a duty to P?
- If so, how high is the standard
- Reasonable person?
- Reasonable professional?
- Refrain from willful and wanton conduct?
- Breach
- Did D’s action fall below the applicable standard of care?
- Causation
- Factual
- Legal/Proximate Causation
- Damages
- USUALLY P must satisfy each element on a preponderance of the evidence standard (i.e. if equal, then D wins)
- The Basic Negligence Standard
- Ordinary care
- Care which prudent and caution men would use such as required by the exigency of the case and such that is necessary to hard against proper danger
- Hard to decide ex ante (before the fact)
- Seems arbitrary
- Forces people to measure up to a normative level of competence that may be too high for them
- Some precautions that a person doesn’t have to take
- Also negligence if you willingly act in a way that creates an unreasonable risk of harm
- Keep in mind reasonableness—if the risk of harm is insubstantial or the burden outweighs the expected cost of the benefit, then not reasonable to take the precaution
- RP must care about self and about others’ safety
- Must make sure people do not overspend (deter useful activities) for safety but also that they do under-invest in safety
- Adams
- P walks along a bridge with a wire and it hits the streetcar line and he is electrocuted
- P’s theory of the case: D should have provided adequate protection
- Should have used signs
- Best to argue, since most affordable
- But might not have worked here, want something that is affordable but effective
- Kids may not or will not be able to read it
- Fence
- More expensive than sign, but more effective
- But it’s ugly!
- Need to consider monetary and aesthetic costs
- Put the wires under ground
- Effective but expensive
- Want to ask for a reasonable precaution, not to prevent all accidents
- So maybe not bury the wires, but just more than D did
- But also want to only prevent accidents that they could have predicted
- D needs to be on notice
- Not just forseeability, but probability
- Reasonablyforeseeable!
- But harms that are COSTLESS (e.g. sign) make the harm NEEDLESS
- Very easy to avoid the harm at very low cost
- D’s argument
- Wires were under the bridge, so someone would have to do something bizarre to be hurt by them
- SO IS THE COST JUSTIFIED IN THE AGGREGATE?
- Probability of the accident is low, only unusual accidents at risk
- So P will probably lose
- Bolton v. Stone (pg 48)
- P lives near a cricket field and a stray ball hits her
- Was D negligent?
- Need D to be on notice
- 6 prior occurrences in 25 years
- but using Adamsnotice isn’t enough to prove that they were negligent
- not just about forseeability but about if the precaution is REASONABLE
- Ordinary caution probably would not involve taking this into account
- There was a remote chance of harm, so using cost-benefit analysis need to be reasonable and not take precautions against everything if it is too expensive in comparison to the cost of the risk
- ALSO: consider societal costs of overprotection and wasted expenditures on precautions that aren’t needed
- Harm is also very low (compared to death, burns, etc.)
- Should this be about rights?
- The club owner has the right to use the land for cricket as long as it doesn’t interfere w/ the rights of others
- “competing rights”—assign liability to the person who incurs the smallest cost
- Explicit Cost/Benefit Analysis
- Carroll Towing
- Barge sank in NY harbor and case to determine if the owners of the boat were at fault for not having the bargee present
- If the bargee was there, he might have been able to prevent further damage
- You can purchase safety—so do we want D to purchase a particular amount of safety?
- Determine by probability of the harm multiplied by the gravity of the resulting harm and see if it is more than the burden of the precaution (B < PL)
- With every precaution taken, accident cost is lowered
- Want to achieve the point where the marginal cost of each precaution exceeds the benefit so that we can maximize social welfare
- Posner—negligence is the rule that increases the aggregate well being of everyone at the harbor
- Don’t use the Hand Formula analytically, just consider cost-benefit analysis and realize that at some point not worth taking extra precautions
- Want REASONABLE investments in safety and consider the TRADE-OFFS and the AGGREGATE
- Braun (41)
- D strung electric wires 25 ft above a vacant lot in 1980 w/ insulation expected to last 3 years and 15 years later a building was being built there and it was easier to raise the wires to get from one side of the building to another. P came into contact and was electrocuted.
- Different than Carroll b/c not that expensive and reason to think that construction might go on and circumstances would change and people could get into contact w/ them
- Would a reasonable person in light of the circumstances would think it was okay to leave the barge
- Ct said during the working hours
- Busy during working hours
- Don’t want to imprison bargee in the barge
- Learned Hand Formula
- B<PL (cost-benefit analysis)
- B = burden; P = probability; L = loss
- Negligence inquiry can be formalized by comparing the burden on the D to take the precaution with the expected accident costs that can be attributed to the failure to take the precaution
- Focus on the effect of an untaken precaution—if precaution would have avoided the accident, the cost of the accident, and expected accident costs
- Somehow need to monetize the harms
- Reasonable Person Standard
- Objective standard—don’t look at the subjective state of the actor
- They are still negligent even if they had the best intentions (good faith) if they failed to conform to some external normative standard (RP)
- Need to construct in terms of decision/conduct rule
- Must create incentives for people
- Don’t want to use a decision rule otherwise too vague and not obvious to the actor if they are liable
- Consider the standards at work and what detriments they have
- Bethel v. NYC Transit Authority
- P was injured on D’s bus when the wheelchair seat collapsed under him
- P’s theory of the case
- D had notice and should have done something more
- Does not matter that they did not actually know of problem
- Should have inspected the bus post-repair
- Not have to check it every day or week, but after every repair
- Jury instruction
- Was wrong, were told that must use “utmost care” instead of “reasonable care”
- Otherwise too much like SL
- Instead, should be “reasonable care under the circumstances”
- Must be contextualized—might be less predictable b/c of the circumstances
- PLAY AROUND WITH “REASONABLE” AND “CONTEXT”
- Reasonable care?
- Higher duty since they are better able to prevent harms
- Know when the bus is repaired
- Know how the bus works
- Force bus to choose if it wants to invest in safety or eat the costs
- Differences in People?
- For certain characteristics, we still need to use an objective standard
- Even if you are clumsy, stupid, awkward
- But do give some leeway for disabilities (use objective or subjective element?)
- blindness
- Easier to prove that you are blind
- GENERALLY easier to prove objective standards than subjective (e.g. clumsy)
- Also people then cannot lie
- Easier for jurors to make an objective determination
- Also, others can work around a person who is blind and take appropriate precautions
- But other people cannot tell if a person’s subjective faults (e.g. if they are clumsy)
- Mental disabilities
- Bashi (pg 57)
- Problems of proof caution courts not to contextualized according to mental disabilities since it is hard to draw lines
- Evidentiary considerations
- Gender
- Risk perceived in walking home alone at night
- Should we distinguish b/t reasonable man and woman?
- Consider cost of increased violence against women that you might want to prevent
- Roles of Judge and Jury and Application of Negligence Standard
- Overview
- Whether the burden, probability of harm, and gravity of loss are considered in the aggregate or individual case
- Goodman
- P was run over by a train at a grade crossing.