Topical Outline of Torts. Checklist; What to Show

TOPICAL OUTLINE OF TORTS. CHECKLIST; WHAT TO SHOW!!!!

1. Overview of Topics

a. Negligence

i. Duty-p says, d says

ii. Breach-p says, d says

iii. Cause-but for (p, d), proximate (p, d) remember Andrews Factors

iv. Damages-what kind? Compensatory, Punitive, Nominal? See sheet

Defenses-comp n, assumption of risk

b. Strict Liability

i. Abnormally dangerous activities-restatement

ii. Products Liability-Manufacture, Design, Warranty

iii. (Cause) i.e heeding presumption, but for, prox cause, etc (same as n)..

iv. (Damages)

Defenses-comp n

c. Intentional Torts

i. Assault/Battery

ii. False Imprisonment

iii. Intentional Infliction Emotional Distress

iv. (Cause)

v. (Damages)

Defenses-consent, self defense, protection of property

2. Negligence-based on fault, whereas SL is based on causation

Vicarious Liability

Christensen v. Swensen pg. –P works for D, does not get scheduled lunch breaks, but employees allowed to take 15 minutes to get food. P drives to get food, has a car accident, gets sued by 3rd party, impleads D, says that they are vicariously liable for her actions. D says she was not working at the time. Was P w/in the scope of her employment at the time of the crash?
Holding: Court uses Birkner test to determine whether p was in the scope of her employment, finds that b/c there is no clear answer, it is best for a jury to determine if she was using the test
Birkner TestWas someone w/in the scope of employment?
Doing conduct hired for
Conduct occurs primarily during working hours or space (hours/spatial boundary)
Motivated by the purpose of serving the employer
Court not clear on issue of whether all three are necessary or not to have scope of employment.
Policy behind Vicarious Liability
Incentives to train and supervise responsible, good people
Creating risks by the activity
Employer controls and benefits from your job
Incentives for people to work
Employer can bear the burden
Prevention of harm
Better chance of getting compensation
Spatial Boundaries: Frolic and Detour rule---a mere frolic and detour, your own time. A small deviation to do things related to work, debatable, but could be part of work.
What if you call someone for work on a phone while driving and they crash? VL or no? Not yet decided.
VL is hard to determine, hard to define what is the scope of employment even w/the test

B. Baptist Memorial Hospital v. Sampsonpg. 24- P and D agree that Dr was not an agent or employee of hospital, so Sampson has burden of raising fact issue on each element of her ostensible agency theory Was D (hospital) vicariously liable under the theory of ostensible agency for an emergency room physician’s N (fault + cxL).

a.Holding: Court finds no acts on the part of the d that would make the p reasonably believe that the dr. was an employee of the d under the ostensible agency theory.

Policy: Why should an employer not be liable for the work of an ic?
Control
Don’t do the hiring of each person involved necessarily, or don’t have the requisite expertise to do so
Benefits received are different
Can bear burden as well or better (IC company)
Employee v. independent contractor
Level of control
Employers have more control over employee than independent contractor
Payment
Regularity of payments from employer (ic company might get one lump sum, whereas employee could get paid every week.
Different businesses/level of expertise in field
Duration of relationship
Legal issue before court- Do facts satisfy rule of law to show OA?
Principal’s conduct
Caused reliable belief
Justifiable reliance
OA is the way you can get to the Employer/Principal of an IC. Have to prove N on the party who acted, and a connection to the other party you are suing. Same for Respondeat Superior. Can sue both the Employee/IC and the Employer, not an either or.

a. Breach

i. Historical Development of Fault:

A.Brown v Kendall pg. 27-Guy tries to separate two fighting dogs by hitting them with sticks. P walks into his stick while he is separating them, hurts his eye, and sues the d for action of trespass of assault and battery. Was D liable for the damages?

I.Holding: If you are exercising ordinary care, and an unintentional harm happens, you are not liable.

II.Jury instructions were that if you didn’t exercise extraordinary care you would be liable, which is only a bit better than strict liability.

III. D trying to change the law here to include fault, and it works.

IV.By creating negligence instead of strict liability, move towards a policy that encourages business and innovation, due to the high level of accidental injury during the industrial revolution. Judge chose a dog fighting case to make a new policy; sneaky.

ii. Factors and equations to assess reasonableness:

A.Adams v. Bullock pg 38 Boy swinging a wire that goes around a bridge and ends up electrocuting himself on a trolley car line. Should the trolley owner be liable for injuries suffered by the boy even though it seems that he was exercising reasonable care in protecting the exposed wires?

Holding: In exercising reasonable care, even in a dangerous field, a business should not be held liable for extraordinary incidents that stem from lacking outrageous care.
No N b/c the only way that a trolley can work is w/overhead wires and the value of the activity for a modernizing society far outweighs the damages that can happen from having an attractive nuisance.
Cost of curtailing the activity is too high: Cardozo finds that the d exercised reasonable care for the industry that he was in-other methods of protecting the wire would not be very feasible and might make having the trolley not worthwhile
Braun v. Buffalo-n 2, 40-case where exposed wires that injury someone 25 years later becomes a case for a jury, here Cardozo takes decision away from the jury
Greene v. Sibley-n 3, 40-Lady trips over a mechanic who crouches behind her. Jury verdict for her, affirmed on appeal, overturned by Cardozo. D in this case says foreseeability is small, value of activity, not very dangerous. P would argue that worker should have foreseen that lady might trip over him, prevention is very easy (just say watch out). D would say that it would be expensive to warn people about everything, costly, a waste of time.

B.US v. Carroll Towing pg 41-Workers negligently tie ships together, causing valuable cargo to fall into the water. Had the bargee of the d been in the boat, then he would have been able to mitigate the ensuing damages. Was it N for the bargee not to be on the boat, and as such, should the d be held vicariously liable?

Holding: Learned Hand comes up w/ B<PL theory. If the burden (cost of accident prevention) is less than the probability (foreseeability of the accident) times the liability (cost of injury) then it is N for one not to assume the burden of accident prevention. If B>PL then it is not N not to assume the cost of accident prevention, b.c it is not reasonable to pay more than you should.
Here, the cost of having the bargee on board, or hiring another one, is much less than the cost of damages and the FOS of boats bumping each other in crowded waters. Thus the d is liable for the damages.
In Greene the b is too high compared to the PL, so no N. In Adams, it also appears that B>Pl so there is no N (burden of not separating fighting dogs might be high in relation to social value).
Bolton v. Stone someone is hit by a cricket ball far away from the field, hasn’t happened before. Since B is so low, the court only looks at PL. Uses the Foreseeable Danger Rule-d should be liable if there is substantial risk created by the activity.
Hand equation is simple and says to treat others as you would expect to be treated, but there is the morality aspect of placing cost on life.

iii. Concept of Reasonable person:

A. Bethel v. NYCTA pg 47- P was hurt on city bus when a wheelchair accessible seat collapsed under him. Couldn’t prove that d knew of the defect, but a uses theory of constructive notice (construe that someone had knowledge based on the facts-should have known) to show repair record from 11 days prior to the accident shows that repairs were made to “lift wheelchair” which P claims refer to the defective seat. P says a proper inspection of seats would have revealed the defect. What is the duty of common carriers?

Holding: A common carrier is subject to the same duty of care as any other potential tortfeasor-reasonable care under all the circumstance of that casecommon carriers are no longer held to a higher standard in NY b/c the reasonable standard of care can accommodate the fact that they are a common carrier. .
Kelly case from 1889- Common carriers have the duty to “exercise the utmost care, so far as human skill and foresight can go” for the safety of their passengers in transit.
Community has an external and objective standard, that of reasonable care, while the prior standard was less objective because it asked for utmost care as far as human foresight can go, which is hard to imagine. To deal with this, courts make up the fictional “reasonable person”
Single reasonable person standard is sufficiently flexible by itself to permit courts and juries fully to take into account the ultrahazardous nature of a tortfeasors activity. If there is a high risk, the reasonable person standard just asks that the d spend more on B (Hand equation).
There was a special relationship b/w the common carriers and passengers.
Difference b/w reasonable standard (BPL) and highest standard of care, which adds an x to the equation, making it look like B>PL+X. If B is 100, and PL is 90, then under N you wouldn’t be liable. If x is 20 though, then you would be liable under Higher standard b/c PL+X=110 so B<PL
Reasonable standard of care says you are liable if you should, higher standard says you are reasonable if you can, which is a huge difference.

iv. Role of Judge and Jury in assessing N: LOOK AT REASONABLE PERSO POWER POINT

A.B & O RR v. Goodman pg. 58-P (names reversed on appeal) killed crossing the tracks of d train, couldn’t see when he was 12 feet away and going relatively slowly. Was p driving n, and if so, should d still be liable for his death?

Holding: Even though due care questions are generally left for the jury to decide, when the standard of conduct is clear, it should be laid down by the court. When a person driving is near a train track, they are responsible for checking to make sure that a train is not coming. P was n not to stop and not to get out and look.
Case doesn’t need to go the jury, as a matter of law the p was n.
Easier for the p to stop and look than for the d to stop
Here, the contributory n of the p got the case dismissed, would be different now.
Here, low B (daylight), P had knowledge of the are (FOS high) L is high too, thus the B<PL so p was n.

B.Pokora v. Wabash RR pg. 60-Case that is just like Goodman but gets to US SC 7 years later, and now Cardozo is there, not Holmes.

Holding: Question was for the jury whether reasonable caution forbade his going forward in reliance on the sense of hearing, unaided by that of sight.
In default of the guide of customary conduct, what is suitable for the traveler caught in a mesh where the ordinary safeguards fail him is for the judgment of the jury
Tries hard not to overturn Goodman but essentially doesthis case was at night, so getting out and looking wouldn’t have helped, but in general getting out to look means that you have to get back in your car eventually, train could come then. Definitely limits Goodman.
Policy question: Courts need to careful in establishing societal standards of care, since those standards change, better to leave those decisions to the jury, but the argument against this is that then you have to d othe evaluation on a case-by-case basis

C. Andrews v. United Airlines pg. 64-P has luggage fall on her head from overhead storage bins on a plane. Experts for both sides say either that it is cost effective to stop the bags from falling or that it is not. What is the standard of care? If it is for people to be careful, then p loses on summary judgment, if it is for the airline to protect her even more than they did, then the case should go to trial

Holding: Case should go to trial b/c Even a small risk of serious injury to passengers may form the basis of liability if that risk could be eliminated ‘consistent w/the character and mode of [airline travel] and the practical operation of [that] business’
This doesn’t mean that p will win, only that the case should go to court
Jurors, who have flown, will be well equipped to establish what the reasonable standard of care should be.
P says that P in BPL is high, D says that PL is low, judge says that no one has talked about B yet.
Difference b/w Andrews and Adams, why did one go to the juryplaintiff in Andrews was a passenger, in Adams, the plaintiff was a passerby. Common carrier relationship in this case, in Adams there was no such relationship, and here P is arguing for utmost standard of care, which the judge might agree withgives language applying the higher standard of care and also talks about practical operation of the business.
Is reasonableness a factual (jury) or legal (judge) question?
Judge-bright line rules, consistency, predictability, notice. Jury- more people, flexible, peer community, flexible in light of changing technology

v. Role of custom:

A.Trimarco v. Klein pg. 67- P falls through glass shower door. Looked like the glass was stronger than it was. P presented evidence that since the 1950’s, the practice of using shatterproof glass had come into effect. The accident happened in 1976. D’s managing agent said that it had been a custom to install new, safer glass for shower enclosures, either to replace broken ones or to comply w/a requestthe d says that they had to be put on notice, not denying that there was a custom though. What is the role of custom in establishing the standard of care?

Holding: Jury should decide the custom issue by looking at:

Feasibility

-Cost

-Effectiveness?

-Purpose of the custom as related to the effectiveness of the custom.

-Social value-not going to drive anyone out of business in this case (unlike the Adams case)

Foreseeability (P)

-How serious is the injury

b. Policy behind custom:

1)If an industry adheres to a way of doing things, then the court can be wary of a plaintiffs allegation that there is a safer way, and can insist that the plaintiff demonstrate the feasaility of this safer way.

2)If the p can show a feasible alternative, the fact that this alternative was not in use anywhere can show that it was not unreasonable for the d to be unaware of the possibility.

3)If a custom involves a high level of fixed costs, it can warn the court that the social impact of doing away with that custom would be great.

What if d says that over twenty years, glass has never shattered? D saying that it is not a foreseeable risk, thus not reasonable. P would say that just b/c it hasn’t happened for a while doesn’t mean that it wont; the fact that other people are doing it means that some people foresaw the injury-why the purpose matters.
What if the d says he has never heard of the custom? Helpful to the p if he can show that the d should have known
What if d says that he will go out of business by putting in shatterproof glass? Standard of care is measured by everyone, not just one person. What one can do is not how we set the standard of reasonable care; it is what one should do. It is an objective inquiry; d would be trying to make it subjective.
Can custom help a d? Note case where the d motel operator didn’t have to install lights in the hallway b/c no other motel had them.
If you had a choice b/w a house w/tempered glass or a house w/o tempered glass that was cheaper, which would you choose? (Landlord will charge more now that he has to put in better glass). Problem w/tort law and BPL standard is that it thinks everyone should act the same but doesn’t leave any room for an individual’s choice.

vi. Role of statutes:

A. Martin v. Herzog pg. 73- P driving and struck by D who was also driving. Husband was killed of p killed. D came around a corner, at night. Charged w/negligence for not keeping his car in his lane on the turn, which is against a driving statute. P trying to get damages for injuries resulting in death. P husband is also charged with negligence b/c he was driving w/o his lights on, which is against a driving statute too. No evidence that d was going too fast, only a question on his guilt in crossing lane on turn.

Holding: It is negligence per se when a statute that is meant to preserve life and limb is violated
Juries don’t have the power to decide when they can relax the duties that one highway traveler owes to another, and they should not be given that power by a judge who lets them determine the culpability of one who violates a statute in a contributory negligence case. The fact that he was not using his lights means he was negligent; this is not a question for a jury to decide on, it is a fact of this case.
To omit, willfully or heedlessly, the safeguards prescribed by law for the benefit of another that he may be preserved in life or limb, is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform.
Issue arises b/c what happens when the legislature doesn’t address tort law in the statute?
Prima facie-2 definitions
Has p offered enough of a claim to send the question to the jury
Rebuttable presumption-presuming that there is negligence unless rebutted by the plaintiff in this case. If there is a rebuttal, then the question is up to the discretion of the jury. If there is no rebuttal, then negligence has to be found b/c there has been no rebuttalno rebuttal=less discretion
What can a defendant do to avoid negligence per se? In this case, look to see that the statute is just about protecting other people, maybe the statute you violate isn’t about that (like an emission requirement or something).
Question of whether we use n.p.s is one related to judge v jurynps is a bright line rule, nice, tidy, but case may arise where it is unjust, less flexible. Some say that n.p.s. reflects legislative intent. Legislature told you that they want people to have lights on, but there might be other reasons for the statute that are not tort related.
Negligence means that you had a duty that you breached which caused damages
Negligence per se means that as a matter of law you have proved breach, and thus a duty.

B.Tedla v. Ellman pg. 76-P were walking in the road, in violation of a statute, b/c it was safer for them than walking in the meridian. Get hit by d, sue him, d tries to use Martin ruling as protection, saying that the p were violating a statute as well, so he cannot be liable.