Professor Wendel

Torts

Spring 2009

  1. Rules v. Standards
  2. Should legal norms be in the form of rules or standards?
  3. Law should treat like cases alike
  4. Emphasizes substance or standards
  5. Bright line tests end up treating Ps in the same positions in a disparate manner
  6. Applications of legal norms must be predictable and stable
  7. Emphasizes form or rules
  8. Need a line, but where must we draw it?
  9. Rules? Over-inclusive and under-inclusive w/ respect to justification
  10. Standards? Less clear, but more tailored to justification
  11. Can include things that would not fit into the rule but fit the same purpose
  12. Introduction to Tort Liability
  13. P’s “theory of the case” is the factual and legal argument that P should win
  14. When should unintended injury result in liability?
  15. Hammontree
  16. 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.
  17. P argues that D fell behind some standard of care, which is a breach of his duty and thus P should win.
  18. P could argue that D should not have driven at all (negligence)
  19. 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
  20. P could argue that D should always have a passenger w/ him and did not so was negligent
  21. 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
  22. Person who buys car (D) is more likely to buy insurance
  23. Cheaper for D to insure (maybe)
  24. D has better knowledge of the risk so in better position to prevent the risk—least cost avoider
  25. 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
  26. Put the costs on the party with the least expensive precaution
  27. Cost of better medication might be cheaper than reinforcing the wall
  28. Could P have avoided the harm?
  29. Reinforced the wall, put a fence, etc.
  30. Seems like a wasteful precaution since possibility is so low
  31. P argues that the court committed prejudicial error (instructional error) in refusing to give jury instructions on strict liability
  32. 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)
  33. PP
  34. Punish blameworthy conduct?
  35. May be unintended consequences in the aggregate, like what will happen if the D is always liable in these cases?
  36. What if D had seizures more often, once a week?
  37. Then it would be foreseeable and he might be found liable
  38. Two Perspectives in Torts
  39. Internal—doctrinal structure of torts, the overall framework that there is a continuum b/t SL and negligence
  40. External—looking at end goals and policies, values, and ordinary considerations
  41. Want to see how this influences the internal
  42. What is the torts system about?
  43. Deter certain behavior
  44. Encourage safety and accident prevention
  45. Compensate or remedy to bring person back to status quo
  46. Respond to wrongdoing by expressing societal disapproval
  47. 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
  48. The Parties and Vicarious Liability
  49. Christensen
  50. 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.
  51. Respondeat Superior—employers are vicariously liable for torts committed by employees while acting w/in the scope of their employment
  52. Criteria
  53. E’s conduct must be of the general kind the E is hired to perform
  54. Must occur substantially w/in the hours and ordinary spatial boundaries
  55. Conduct must be motivated in part by the purpose of serving the employer’s interest
  56. Vicarious liability is SL (do not have to show fault on part of employer)
  57. Want to fit into the above categories, so ask relevant questions during the deposition
  58. Do they wear uniform on break?
  59. Are they employees even when not on grounds?
  60. Is going to get lunch serving the employer’s interest?
  61. Did they know about menus?
  62. Did they punish them for going to buy food?
  63. Told to not get food?
  64. Did anyone from the company see them there?
  65. Menus show that employer permitted them to get take-out
  66. Show that they were not stopped from going
  67. Notion of security around the plant, so want them to be in character when outside the plant?
  68. Do they need to be w/in temporal AND spatial proximity of the plant?
  69. Time limit on break shows that there is a scope of radius that the employees can venture out to
  70. Why restrict plant boundaries to just the land they own but instead compare to the spatial boundaries of the trip
  71. Don’t want to argue for too far of a spatial boundary b/c then will look ridiculous
  72. Show that employer could have avoided the risks of rushing employees
  73. Have a longer unpaid break
  74. Café on the premises
  75. Food delivery truck
  76. On summary judgment, P wants to show that a reasonable juror could conclude otherwise (that D was not w/in scope of employment)
  77. PP
  78. Will imposing vicarious liability make drivers safer?
  79. Will give incentives for people to take precautions?
  80. Justify putting risk on the employer
  81. Loss spreading
  82. The employer has more money so can insure better
  83. Has better access to insurance market
  84. If all we care about is loss spreading, then employer should be liable even if employer sneaks off for something other than lunch?
  85. Doesn’t seem right, we want to impose loss spreading for corrective justice
  86. 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
  87. Roessler
  88. 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
  89. 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
  90. Test 1
  91. Representation tolerated or permitted by the principal
  92. Express or grant of authority
  93. Reliance on that representation by a 3rd party
  94. Change in position by the 3rd party in reliance
  95. 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
  96. Test 2
  97. Restatement § 409
  98. 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
  99. Both tests show that the P reasonably believed that hospital is supposed to provide quality service
  100. D hires ICs so that they will avoid liability
  101. Should we impose liability on the hospital regardless of the formally structure of the ICs?
  102. Require D to take certain precautions, but this may drive up the costs for patients since hospital has to assume more liability
  103. D or the IC might be in better position to prevent the harm to minimize social costs of insurance, accidents, and liability
  104. Don’t want to just make P eat the cost by not shifting it to D
  105. But hospital might not be able to control the actions of IC
  106. Should we use a case-by-case standard or rules?
  107. Case-by-case might be bad b/c then D doesn’t know how to act or when they are liable
  108. Expensive transaction costs of how to work this through (discovery)
  109. Bright lines make settling easier and easier to get to summary judgment/dismissal
  110. Why should we treat doctors like ICs?
  111. Allow doctors freedom over their practice
  112. Hospital might try to micromanage doctors so they will end up using some procedures less often
  113. P could argue that there is a misrepresentation issues b/c the hospital made it seems like the doctor/subcontractor was an employee
  114. Negligence
  115. Definitions
  116. Create unreasonable risk of harm
  117. Fail to take precaution that reasonable person would take is necessary to prevent foreseeable risk
  118. Failure to use care in light of all of the circumstances
  119. Historical Development of Fault Liability
  120. Brown v. Kendall (see again)
  121. D was trying to break up dog fight w/ a stick and hit P by mistake
  122. Common Law: D had the burden of proving non-negligence
  123. Affirmative defense
  124. Trespass action (direct interference w/ another’s bodily security)
  125. Strict liability
  126. D can escape liability only in limited cases
  127. Like accident was inevitable
  128. Trespass on the case (indirect interference w/ another’s bodily security)
  129. D can escape liability under some circumstances
  130. If he showed he acted w/out fault
  131. 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)
  132. Care more about fault
  133. Directness  intentional or unintentional
  134. Intentional  SL
  135. Unintentional  fault or no fault?
  136. Fault/negligence  Liable
  137. No fault  no liability
  138. What about P not using reasonable care?
  139. Contributory negligence—no recovery at common law
  140. MODERN law: comparative fault, so look at faults of each
  141. Burden of proof
  142. Shift from D to P
  143. Before: D had burden of showing that he used extraordinary care
  144. Now: P must show that D the was at fault
  145. Modern Law
  146. P must show fault by D to recover for personal injuries
  147. Prima facie elements
  148. Duty
  149. Does D owe a duty to P?
  150. If so, how high is the standard
  151. Reasonable person?
  152. Reasonable professional?
  153. Refrain from willful and wanton conduct?
  154. Breach
  155. Did D’s action fall below the applicable standard of care?
  156. Causation
  157. Factual
  158. Legal/Proximate Causation
  159. Damages
  160. USUALLY P must satisfy each element on a preponderance of the evidence standard (i.e. if equal, then D wins)
  161. The Basic Negligence Standard
  162. Ordinary care
  163. 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
  164. Hard to decide ex ante (before the fact)
  165. Seems arbitrary
  166. Forces people to measure up to a normative level of competence that may be too high for them
  167. Some precautions that a person doesn’t have to take
  168. Also negligence if you willingly act in a way that creates an unreasonable risk of harm
  169. 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
  170. RP must care about self and about others’ safety
  171. Must make sure people do not overspend (deter useful activities) for safety but also that they do under-invest in safety
  172. Adams
  173. P walks along a bridge with a wire and it hits the streetcar line and he is electrocuted
  174. P’s theory of the case: D should have provided adequate protection
  175. Should have used signs
  176. Best to argue, since most affordable
  177. But might not have worked here, want something that is affordable but effective
  178. Kids may not or will not be able to read it
  179. Fence
  180. More expensive than sign, but more effective
  181. But it’s ugly!
  182. Need to consider monetary and aesthetic costs
  183. Put the wires under ground
  184. Effective but expensive
  185. Want to ask for a reasonable precaution, not to prevent all accidents
  186. So maybe not bury the wires, but just more than D did
  187. But also want to only prevent accidents that they could have predicted
  188. D needs to be on notice
  189. Not just forseeability, but probability
  190. Reasonablyforeseeable!
  191. But harms that are COSTLESS (e.g. sign) make the harm NEEDLESS
  192. Very easy to avoid the harm at very low cost
  193. D’s argument
  194. Wires were under the bridge, so someone would have to do something bizarre to be hurt by them
  195. SO IS THE COST JUSTIFIED IN THE AGGREGATE?
  196. Probability of the accident is low, only unusual accidents at risk
  197. So P will probably lose
  198. Bolton v. Stone (pg 48)
  199. P lives near a cricket field and a stray ball hits her
  200. Was D negligent?
  201. Need D to be on notice
  202. 6 prior occurrences in 25 years
  203. but using Adamsnotice isn’t enough to prove that they were negligent
  204. not just about forseeability but about if the precaution is REASONABLE
  205. Ordinary caution probably would not involve taking this into account
  206. 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
  207. ALSO: consider societal costs of overprotection and wasted expenditures on precautions that aren’t needed
  208. Harm is also very low (compared to death, burns, etc.)
  209. Should this be about rights?
  210. The club owner has the right to use the land for cricket as long as it doesn’t interfere w/ the rights of others
  211. “competing rights”—assign liability to the person who incurs the smallest cost
  212. Explicit Cost/Benefit Analysis
  213. Carroll Towing
  214. Barge sank in NY harbor and case to determine if the owners of the boat were at fault for not having the bargee present
  215. If the bargee was there, he might have been able to prevent further damage
  216. You can purchase safety—so do we want D to purchase a particular amount of safety?
  217. 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)
  218. With every precaution taken, accident cost is lowered
  219. Want to achieve the point where the marginal cost of each precaution exceeds the benefit so that we can maximize social welfare
  220. Posner—negligence is the rule that increases the aggregate well being of everyone at the harbor
  221. Don’t use the Hand Formula analytically, just consider cost-benefit analysis and realize that at some point not worth taking extra precautions
  222. Want REASONABLE investments in safety and consider the TRADE-OFFS and the AGGREGATE
  223. Braun (41)
  224. 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.
  225. 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
  226. Would a reasonable person in light of the circumstances would think it was okay to leave the barge
  227. Ct said during the working hours
  228. Busy during working hours
  229. Don’t want to imprison bargee in the barge
  230. Learned Hand Formula
  231. B<PL (cost-benefit analysis)
  232. B = burden; P = probability; L = loss
  233. 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
  234. Focus on the effect of an untaken precaution—if precaution would have avoided the accident, the cost of the accident, and expected accident costs
  235. Somehow need to monetize the harms
  236. Reasonable Person Standard
  237. Objective standard—don’t look at the subjective state of the actor
  238. They are still negligent even if they had the best intentions (good faith) if they failed to conform to some external normative standard (RP)
  239. Need to construct in terms of decision/conduct rule
  240. Must create incentives for people
  241. Don’t want to use a decision rule otherwise too vague and not obvious to the actor if they are liable
  242. Consider the standards at work and what detriments they have
  243. Bethel v. NYC Transit Authority
  244. P was injured on D’s bus when the wheelchair seat collapsed under him
  245. P’s theory of the case
  246. D had notice and should have done something more
  247. Does not matter that they did not actually know of problem
  248. Should have inspected the bus post-repair
  249. Not have to check it every day or week, but after every repair
  250. Jury instruction
  251. Was wrong, were told that must use “utmost care” instead of “reasonable care”
  252. Otherwise too much like SL
  253. Instead, should be “reasonable care under the circumstances”
  254. Must be contextualized—might be less predictable b/c of the circumstances
  255. PLAY AROUND WITH “REASONABLE” AND “CONTEXT”
  256. Reasonable care?
  257. Higher duty since they are better able to prevent harms
  258. Know when the bus is repaired
  259. Know how the bus works
  260. Force bus to choose if it wants to invest in safety or eat the costs
  261. Differences in People?
  262. For certain characteristics, we still need to use an objective standard
  263. Even if you are clumsy, stupid, awkward
  264. But do give some leeway for disabilities (use objective or subjective element?)
  265. blindness
  266. Easier to prove that you are blind
  267. GENERALLY easier to prove objective standards than subjective (e.g. clumsy)
  268. Also people then cannot lie
  269. Easier for jurors to make an objective determination
  270. Also, others can work around a person who is blind and take appropriate precautions
  271. But other people cannot tell if a person’s subjective faults (e.g. if they are clumsy)
  272. Mental disabilities
  273. Bashi (pg 57)
  274. Problems of proof caution courts not to contextualized according to mental disabilities since it is hard to draw lines
  275. Evidentiary considerations
  276. Gender
  277. Risk perceived in walking home alone at night
  278. Should we distinguish b/t reasonable man and woman?
  279. Consider cost of increased violence against women that you might want to prevent
  280. Roles of Judge and Jury and Application of Negligence Standard
  281. Overview
  282. Whether the burden, probability of harm, and gravity of loss are considered in the aggregate or individual case
  283. Goodman
  284. P was run over by a train at a grade crossing.