Escolar Documentos
Profissional Documentos
Cultura Documentos
Historical Perspective
Trespass: purpose of remedy was first punishment of crime but later satisfaction of
injured partys claim for redress
i.
ii.
iii.
b.
Trespass on case: developed out of special writ; most modern tort and contract law
i.
ii.
iii.
II.
a.
b.
Rules/Doctrine/The Law
c.
III.
a.
Intentional torts
b.
i.
c.
i.
a.
b.
c.
d.
e.
II.
a.
Volitional act
b.
Intent
c.
d.
Causation
i.
Cause in fact
ii.
Extent of liability
e.
Damages
i.
Actual/compensatory
ii.
Punitive
iii.
f.
III.
a.
[Consent/Privilege]
Intent
Restatement (Second) of Torts 8(A): Intent requires
i.
ii.
Battaglia)
iii.
[Only need second if you dont have first; first implies second]
b.
Extent of liability: everything that results from conduct, if you can show it followed from
the conduct
c.
d.
e.
i.
Generally liable for infliction of intentional torts; may depend on age to some
extent (Garratt v. Dailey)
f.
i.
ii.
Policy considerations
1.
2.
Floodgates
iii.
g.
i.
ii.
iii.
Falls within the scope of the old action of trespass (one of the five)
iv.
If you invade one protect interest intending to invade another, you are still liable
v.
(Talmage v. Smith)
If you invade one persons right intending to invade anothers, you are liable
IV.
Battery
a.
i.
1.
2.
ii.
1.
2.
3.
An act which is not done with the intention stated in Subsection (1, a)
does not make the actor liable to the other for a mere offensive contact with the other's person although
the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the
risk threatened bodily harm.
4.
b.
Defendant still liable if injuries are more extensive than reasonable person might have
anticipated
c.
d.
Plaintiff does not have to know about the offensive/harmful touching when it occurs (ex:
transmission of STDs)
e.
Battery requires touching with body or instrument; extends to object closely and
intimately connected to the body (Cole v. Turner, Fisher v. Carrousel Motor Hotel Inc.)
f.
Implied consent: certain amounts of touching are expected in experiences of everyday life
(Wallace v. Rosen)
V.
a.
Assault
Restatement 21: An actor is liable if
i.
he acts intending to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such a contact, and
ii.
b.
c.
d.
e.
Civil v. Criminal
i.
Civil- apprehension required, not necessary that defendant have actual ability to
carry out threatened contact (Western Union Telegraph Co. v. Hill)
ii.
Criminal- apprehension unnecessary, occurs if defendant has intent and ability to
carry out threatened contact
VI.
False Imprisonment
a.
i.
the actor, and
he acts intending to confine the other or a third person within boundaries fixed by
ii.
his act directly or indirectly results in such a confinement of the other, and
iii.
b.
c.
d.
If one exit is locked but another reasonable means of escape is left open > no
imprisonment
i.
Unreasonable if it involves exposure of person, material harm to clothing, or
danger of substantial harm to another; also if plaintiff does not know of its existence & it is not apparent
e.
f.
g.
If only means of escape could cause physical danger to plaintiff and he could remain
safely imprisoned, he may not recover for injuries in making his escape
Cannot be imprisoned beyond consent (Big Town Nursing Home v. Newman)
Must be conscious of confinement at time it occurs, but not necessarily afterward (Parvi
v. City of Kingston)
VII.
a.
i.
Conduct is intentional or reckless (reckless is utter disregard for what would
occur from act; intent does not include transferred intent)
ii.
Conduct is extreme and outrageous (goes beyond all possible bounds of decency
in civilized society; who the plaintiff is makes a difference)
iii.
iv.
Emotional distress is severe (so severe that no reasonable person could be
expected to endure it; goes beyond mere insults/annoyances- Slocum v. Food Fair Stores of Florida) >
Actual damages (not nominal)
b.
i.
One who by extreme and outrageous conduct intentionally or recklessly causes
severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm
to the other results from it, for such bodily harm.
ii.
Where such conduct is directed at a third person, the actor is subject to liability if
he intentionally or recklessly causes severe emotional distress
1.
2.
to any other person who is present at the time, if such distress results in
bodily harm.
c.
Defendants are not liable for everything that stems from IIED (cut-off)
i.
d.
e.
VIII.
Generally IIED does not apply for eyewitnesses unless act was directed at plaintiff or
defendant knew extreme emotional distress was substantially certain to follow (Taylor v. Vallelunga)
Trespass to Land
a.
b.
Intentional even when defendant honestly & reasonably believes land is his
c.
d.
e.
f.
g.
IX.
a.
Trespass to Chattels
Freedom from intermeddling with inviolability of thing (CompuServe Inc. v. Cyber
Promotions; Glidden v. Szybiak)
b.
Restatement 218:
i.
ii.
iii.
c.
d.
X.
a.
Conversion
Comes from common law tort of trover
b.
c.
Money & negotiable instruments are not treated same as tangible chattel
d.
Forced sale: payment of chattels value by a converter effectuates a common law forced
sale of chattel and precludes owners further recovery for damages
e.
f.
i.
ii.
g.
Restatement 222(A)
i.
intentional exercise of dominion or control over chattel which so seriously
interferes with right of another to control it that the actor may justly be required to pay the other the full
value of the chattel
ii.
1.
2.
actor's intent
3.
4.
5.
harm to chattel
6.
iii.
1.
acquiring possession
2.
damaging or altering
3.
using
4.
receiving
5.
disposing
6.
misdelivering
7.
refusing to surrender
h.
In some states, there may be a separate act of conversion for initial taking of possession
and later refusal to return on demand (Restatement 229)
i.
i.
1.
2.
ii.
UCC provides bona fide purchaser to be protected in a sale by goods from a
merchant who deals in goods of that kind
XI.
Privileges
a.
Consent
i.
Two Types:
1.
Express
2.
ii.
Consent Privileges:
1.
Custom
2.
Certain relationships
iii.
Medical care providers may act in absence of express consent if: (Mohr v.
Williams)
1.
2.
3.
4.
iv.
Informed consent: requires physician or surgeon to disclose to the patient the
risks of proposed medical or surgical treatment; failure to do so began to be treated as negligence around
1960s
v.
Inc.)
vi.
b.
Self-Defense
i.
Existence of Privilege
1.
another
2.
3.
ii.
Retaliation
1.
2.
initially threatened
iii.
Reasonable belief
1.
Privilege exists when defendant reasonably believes force is necessary to
protect himself, even if there is in fact no necessity
2.
3.
4.
iv.
Provocation
1.
2.
3.
may be privileged to defend
4.
When accompanied by overt hostile act, oral abuse may amount to
challenge to fight and consent. 69
v.
1.
necessary for protection
Amount of Force
Privilege limited to use of force that is or reasonably appears to be
2.
3.
Deadly weapon only justified if defendant shows reasonable
apprehension of loss of life or great bodily injury
vi.
Retreat
1.
Disagreement over whether defendant must retreat if he can without
increasing his danger, rather than stand his ground and use deadly force
2.
All agree he may use force short of likely to cause serious injury
3.
4.
In determining whether doubt that retreat can be made is reasonable,
every allowance must be made for predicament.
vii.
Duty to retreat; if you cannot, then you can only use force up to
2.
Physical force: self-defense; you can be mistaken in your belief; just has
to be "reasonable" (subjective)
3.
Deadly physical force: can only be justified if the other person is using or
about to use deadly physical force; not if you can retreat; kidnapping/rape/sodomy or robbery (robbery is
person-to-person, physically taking something from someone else); burglary (dwelling; felony)
c.
i.
Defense of Others
Reasonable mistake
1.
Some courts hold that intervenor steps into shoes of person he is
defending and is privileged only when that person would be privileged to defend himself
2.
3.
Other courts hold that he is privileged even when he is mistaken in his
belief that intervention is necessary
d.
Defense of Property
i.
Privilege to defend one's land against an intruder is limited to unlawful
intrusions; there is no privilege to use deadly force to defend against those who are not authorized to enter
ii.
1.
Exception: if danger used prevent robbery/burglary is obvious, owner is
not liable for injury (ex: barbed wire fence)
iii.
iv.
There are limitations:
1.
2.
When invasion is peaceful and occurs in presence of possessor, no force
is reasonable unless request has been made to depart
3.
Request need not be made when conduct of intruder indicates that
request would be useless or unsafe
e.
Recovery of Property
i.
ii.
robbery
1.
Must be in fresh pursuit (prompt discovery and prompt & persistent
efforts to recover) 103 (Hodgeden v. Hubbard)
2.
Force not justified until demand has been made to return property
3.
Not reasonable to use force calculated to inflict serious bodily harm;
motivate by policy that there is higher value on taking of a life than property
4.
If wrongdoer resists, the owner may use any force reasonably required to
prevent property from being taken & defend his own person
5.
must resort to legal remedy)
iii.
iv.
1.
Shopkeepers Privilege
Reasonable grounds & reasonable times
2.
When investigating shoplifting, shopkeepers open themselves up to false
imprisonment charges. Privilege needed.
3.
f.
i.
Constitutional provisions against taking private property for public use without
due compensation do not apply to action under police power to protect the public against the spread of
contagious diseases or devastating fires and floods or other exigencies
ii.
Defendant is obligated to compensate plaintiff even though intentional entry onto
land was privileged and not tortious
iii.
iv.
35.05 (1): acts are justifiable if required or authorized by law or judicial decree,
or is performed by public servant in reasonable exercise of his official powers
v.
(Surocco v. Geary)
vi.
i.
Authority of Law
Arrest with Warrant
1.
2.
3.
face"
4.
Warrant protects officer only if he actually carries out order given to him
ii.
1.
Either for felony or breach of peace that is being committed or
reasonably appears about to be committed
2.
Officer if he has info that provides reasonable grounds that felony has
been committed and he has right person. Citizen if felony has been committed and he has reasonable
grounds to suspect person (and he takes full risk if there is no crime)
3.
For past breach of peace that is not felony > only if act committed in his
presence and he is in fresh pursuit
4.
if committed in his presence)
5.
h.
Discipline
i.
ii.
i.
Justification
i.
A lawful or sufficient reason for one's acts or omissions; any fact that prevents an
act from being wrongful
ii.
Purpose of preventing others from inflicting personal injuries or interfering with
or damaging real or personal property in one's lawful custody (Sindle v. NYC Transit Authority)
iii.
35.20 & 35.25 & General Business Law 218: citing penal statutes as source of
common law rule
Negligence
I.
Overview of Negligence
a.
b.
c.
No nominal damages
d.
e.
f.
g.
Conduct that falls below standard of care established by law for protection of others
against unreasonable risk of herm
h.
II.
a.
b.
Breach of duty
c.
Causation
i.
ii.
d.
III.
Damages
Restatement 281: Elements of Cause of Action for Negligence: Liable for invasion against
interest of another if:
a.
b.
c.
d.
the other has not so conducted himself as to disable himself from bringing an action for
such invasion.
IV.
Duty
a.
b.
c.
Limited duty: court defines duty and extent of it; civil statute defines standard of care)
d.
e.
i.
1.
act of third party or natural event that caused physical harm to plaintiff
that defendant has failed to take affirmative steps to prevent or ameliorate
2.
3.
negligent act causes losses in birth or conception where traditional
categorizations of personhood are incapable of bestowing cause of action
ii.
No Duty: Privilege
1.
Privilege: avoids liability for tortious conduct only under particular
circumstances that make it just and reasonable not to impose liability
2.
3.
4.
Third-party not in privity of contract (Winterbottom v. Wright; H.R.
Moch Co. v. Rensselaer Water Co.; Clagett v. Dacy)
a.
Privity of contract: Relationship bet. the parties to a contract,
allowing them to sue each other for personal injuries associated with breach of contract but preventing a
third party from doing so
i.
contract
ii.
Applies in malpractice cases: third party cannot recover
for malpractice affecting third party (Clagett v. Dacy)
iii.
Exceptions:
1.
Foreseeability outweighs cutting off of liability
> a duty may be imposed (Ex: When manufacturing automobile, it is foreseeable that plaintiff could be
harmed by manufacturer's negligence in failing to inspect the parts of the car. (MacPherson v. Buick
Motor Co.)
2.
Beneficiaries of will can recover without privity
of contract (beneficiaries are close to the contractual relation)
3.
get liability without privity of contract
5.
a.
Failure to act:
No duty to take action
b.
No affirmative duty to protect a third party who is in danger
(Hegel v. Langsam; Perry v. S.N. & S.N)
c.
d.
Exceptions:
i.
Assumption of Duty: defendant assumes responsibility
to act and such undertaking increases risk of such harm or is relied upon by plaintiff to her detriment;
springs from defendant's voluntary undertaking & plaintiff's detrimental reliance upon it
1.
May be protected by Public Health Law 3000a: Good Samaritan law (Designed to protect those who provide voluntary medical treatment in an
emergency > not liable for damages sustained while providing treatment unless they were caused by gross
negligence; If person has no training > reasonable person standard)
ii.
1.
Defendant stands in special relation to plaintiff
that requires him to exercise affirmative care to protect him against conduct of 3rd person OR
2.
Defendant stands in a special relation to third
person that gives him power of control over person's activities; required to use reasonable care to exercise
that control to prevent third person from injuring plaintiff (Restatement 319)
3.
Hicks)
4.
5.
6.
7.
duty to take reasonable affirmative action to aid him
8.
Defendant creates dangerous condition on
highway > duty to take reasonable precautions against injury to persons using it
9.
Special relationship giving rise
to particularized foreseeability: considerations warrant a standard of foreseeability that is based on
"particular knowledge" or "special reason to know" that a "particular plaintiff" or "identifiable class of
plaintiffs" would suffer a "particular type" of injury > duty might attach (J.S. and M.S. v. R.T.H.; Tarasoff
v. Regents of University of California)
6.
a.
Outside the Premises: Generally no duty upon landholder to
protect persons outside premises (Taylor v. Olsen)
i.
eliminated
ii.
Exceptions:
1.
Landowner is liable for negligence if he knows
or should have know that the tree is defective & fails to take reasonable precautions (foreseeability alone
is insufficient to show this)
2.
Factor balancing to determine whether owner of
land abutting a rural highway owes a duty (traffic patterns, land use, etc.)
3.
Restatement 840(2): A possessor of land who
knows or has reason to know that a public nuisance caused by natural conditions exists on his land near a
public highway, is subject to liability for failure to exercise reasonable care to prevent an unreasonable
risk of harm to persons using the highway.
4.
Abutting landowners may not so use land as to
interfere with rights of persons lawfully using the highways (Salevan v. Wilmington Park, Inc.)
5.
Once a landowner alters a condition of his land,
it becomes an artificial one for the purposes of tort law and owner must exercise reasonable care for the
protection of those outside of the premises
b.
On the Premises: 3 categories (NY & CA abolished the
distinctions but most states still retain them; Rowland v. Christian; Basso v. Miller)
i.
Trespassers: owner of land traditionally owes no duty to
trespasser (Sheehan v. St. Paul & Duluth Ry. Co.)
1.
Exceptions:
a.
discovered: limited duty arises at moment of discovery
b.
land: owner required to anticipate and take reasonable care
c.
Tolerated intruders: owners continued
toleration amounts to permission so that plaintiff becomes licensee
d.
ii.
Licensees: one who enter premises of owner by
permission, but for his own purposes (includes social guests); limited duty to warn of hidden dangers
(Barmore v. Elmore, Whelan v. Van Natta)
iii.
2.
Even though danger is know to plaintiff,
defendant may be found negligent if it is not too difficult to eliminate danger and he should reasonable
anticipate plaintiff might still be injured by it
3.
Restatement 332: discarded "invitees" and used
"business visitors" instead; duty of affirmative care to make premise safe is price occupier pays for
economy benefit to be derived from visitor's presence
iv.
Even in NY, plaintiff's status is still relevant as factor to
be considered in evaluating reasonableness of defendant's conduct; can also be considered for evaluating
foreseeability, gravity of harm, etc. (Quinlan v. Cecchini)
iii.
No Duty: Immunity
1.
Immunity: avoid liability in tort under all circumstances within limits of
immunity itself; conferred because of status/position/relationship of favored defendant; does not deny tort
but denies liability; protect of particular defendant or interests that defendant represents
2.
Immunities
a.
Charitable institutions: now abolished (Charitable Organizations:
Abernathy v. Sisters of St. Mary's); Restatement 895E
b.
i.
Immunity for activities that go to the nature of
interspousal relationship (sui generis to marital relationship)
ii.
relationship
iii.
iv.
After divorce or marital dissolution, spouses are
permitted claim for any tort that occurred prior to and (in some jurisdictions) during the marriage
v.
c.
i.
Parents have always had right to determine how much
independence, supervision, and control a child should have, and to best judge character and extent of
development of their child
ii.
Immunity for negligent supervision of child (avoid
interference with what is sui generis to parent-child relationship)
iii.
iv.
Exceptions to Immunity:
1.
No parent-child immunity when there is nothing
in the relationship that is sui generis to parent-child relationship
2.
intentionally or is willful or wanton
1
Relationship terminated before suit by death of parent or child or both (includes action for
wrongful death of child)
2
d.
Governmental (Sovereign) Immunity: Doctrine that government could not be sued
without its own consent was established when US was formed
i.
ii.
iii.
iv.
Many states & fed gov't have eliminated immunity for ministerial acts but
retained it for discretionary functions
1.
Discretionary: gov't acting to establish policy; court review of these
might interfere with democratic choices
2.
Ministerial: implement or effectuate policies; not manifestations of
public policy and therefore can subject gov't to liability if performed negligently
v.
Municipal corporations fall in between being subdivisions of the state and being
corporate bodies; generally not immune when engaging in private (proprietary) activities rather
than governmentalfunctions (Clarke v. Oregon Health Sciences University)
vi.
vii.
iv.
Limited Duty
1.
Pure Economic Loss: Situation where negligence to someones actions
results in foreseeable risks of harm that include economic loss (pecuniary loss not consequent upon injury
to his person or property); courts take more seriously claim that liability should be restricted (State of
Louisiana ex rel. Guste v. M/V Testbank)
2.
Particularized foreseeability: You can make good argument on policy
grounds for no duty at all; however, if in fact the foreseeability is so particularized, then a limited duty
will be imposed
3.
Unborn Children
a.
Child viable in utero if injured by tort allowed to sue when
born with physical injuries, even if child dies minutes after birth (Drobner v. Peters)
b.
Child viable in utero if injured by tort and stillborn may or may
not be able to recover for wrongful death (Majority of states now allow these actions; Endresz v.
Friedberg did not)
c.
1.
Parents Recovery:
Mother: her own emotional & physical injuries
2.
d.
Child cannot recover for wrongful life (born with serious
physical defects) (Becker v. Schwartz)
i.
1.
Extraordinary expenses for economic loss
related to childs condition up until child is 21 are recoverable
2.
(Becker v. Schwartz)
3.
distress associated with giving birth (not NY)
4.
Negligent Infliction of Emotional Harm- Observation of Family
Member Seriously Injured; Requirements for Recovery (All of which limit duty): (Bovsun v. Sanperi)
a.
Defendant is negligent
b.
injury or death (zone-of-danger)
c.
of serious physical injury or death
d.
to bring in testimony)
e.
f.
injury or death (cause-in-fact)
g.
[Elements only apply when the s negligence does not directly
cause the s emotional harm, but rather the s negligence causes injury to someone else and watching
that injury causes the emotional harm. A can recover when the s negligence act causes her emotional
harm. (Johnson v. State of NY)]
v.
1.
2.
3.
4.
Institutional stability
5.
Opening of floodgates
6.
Policy considerations
a.
# potential plaintiffs (enlargement of zone of duty to too many);
(Winterbottom v. Wright; H.R. Moch Co. v. Rensselaer Water Co.)
b.
c.
Availability of insurance
V.
a.
Negligence Formula
Hand Formula (United States v. Carroll Towing Co.)
i.
Probability of injury
ii.
iii.
iv.
[The first two are balanced against the third using standard of reasonable person
to determine whether the question should go before the jury.]
v.
vi.
Judge doesn't instruct jury on Hand Formula; just reasonableness (for all
negligence actions)
b.
i.
291: Where an act is one which a reasonable man would recognize as involving
a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude
as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.
ii.
292: In determining what the law regards as the utility of the actor's conduct for
the purpose of determining whether the actor is negligent, the following factors are important:
1.
the social value which the law attaches to the interest which is to be
advanced or protected by the conduct;
2.
the extent of the chance that this interest will be advanced or protected
by the particular course of conduct;
3.
the extent of the chance that such interest can be adequately advanced or
protected by another and less dangerous course of conduct.
iii.
293: In determining the magnitude of the risk for the purpose of determining
whether the actor is negligent, the following factors are important:
1.
imperiled;
the social value which the law attaches to the interests which are
2.
the extent of the chance that the actor's conduct will cause an invasion of
any interest of the other or of one of a class of which the other is a member;
3.
4.
takes effect in harm
the number of persons whose interests are likely to be invaded if the risk
Standard of Care
a.
i.
Objective standard
ii.
Subjective characteristics (such as mental deficiencies or level of intelligence) of
individual generally not taken into account (Vaughan v. Menlove)
iii.
iv.
1.
2.
3.
cause
Probative value: not conclusive; must still show breach was proximate
v.
Emergency situations: Standard care is that of reasonable person in emergency
situation (Cordas v. Peerless Transportation Co.)
1.
vi.
vii.
viii.
Child: generally held to standard of a reasonably careful child of the same age,
intelligence, maturity, training, & experience
1.
a.
b.
ix.
Exceptions
a.
b.
Institutionalized mentally disabled patients unable to control or
appreciate consequences of their conduct, which results in injury to a paid caretakers
c.
Contributory negligence of insane plaintiffs: generally more
flexibility if insanity prevented plaintiff from understanding danger & taking action
b.
v.
is applied
The Professional
Reasonable prudent person takes on profession of actor and an objective standard
vi.
Objective standard: knowledge, training, and skill (or ability and competence) of
an ordinary member of profession in good standing (Heath v. Swift Wings, Inc.)
vii.
viii.
ix.
Customary practice: must show defendant did not conform with standard of care
of an ordinary member of profession
x.
2.
Plaintiff-client must show that but for the attorneys negligence the client
would have been successful in prosecuting or defending the claim
3.
4.
a.
b.
c.
use of due care (steps that are mechanical rather than
discretionary; courts are more willing to find liability)
xi.
Medical Malpractice
1.
a.
member of medical professional,
b.
must have done something which recognized standard would
forbid (or not done something which it would require),
c.
d.
e.
f.
testimony of other physicians that they would have followed a
different course is not sufficient unless defendant did not follow standard
2.
a.
Strict locality rule: state standard of knowledge and skill
in terms of a practitioner in good standing in local community in which defendant practices
b.
Similar community in similar circumstances test: balance need
to avoid evaluating a general practitioner in a rural area by same standards as specialist in an
urban teaching hospital with need of plaintiff for access to expert testimony
c.
certification (Morrison v. McNamara)
3.
a.
i.
defendant physician failed to inform him adequately of a
material risk before securing his consent to proposed treatment
ii.
if reasonable patient had been informed of the risk she
would not have consented to the treatment (objective standard)
iii.
Defenses:
i.
ii.
iii.
iv.
himself (consent not possible)
c.
Doctrine of customary practice: courts held that question was whether the doctor
was negligent in failing to disclose the nature, consequences, risks, and alternatives of any proposed
treatment
d.
i.
ii.
Duty to inform patient of all reasonably foreseeable risks and benefits and
alternatives > allow patient to make knowledgeable evaluation
iii.
iv.
v.
VII.
a.
Rules of Law
Negligence per se
i.
Courts generally do not adopt rules of law as standards of care: too factsensitive (Pokora v. Wabash Ry. Co.)
ii.
However, in some circumstances, the plaintiff can try to establish standard of
care by convincing court to adopt penal statute as the standard of care
iii.
iv.
Plaintiff can take a shortcut to prove what a reasonable person would have done
v.
Shortcuts duty & breach of duty > still have to show causation & damages
vi.
1.
2.
Whether plaintiffs injury is of the type that the statute was designed to
prevent (Ney v. Yellow Cab Co.)
3.
4.
vii.
Defendant in most cases already owes plaintiff a pre-existing common law duty
to act as a reasonably prudent person, so that the statutes role is merely to define more precisely what
conduct breaches that duty
b.
In absence of standard, jury must determine whether defendant has acted as reasonably
prudent man would under ordinary circumstances; jury must decide what this standard means in addition
to facts
c.
When legislative body has generalized standard from experience of community and
prohibits conduct, the court applies formulated standards
d.
i.
Legislative intent
ii.
iii.
e.
Restatement: Court will not adopt standard of legislative enactment if its purpose
is exclusively
i.
ii.
iii.
iv.
to protect class of persons other than one whose interests are invaded
v.
vi.
vii.
to protect against any other hazards that that from which the harm has resulted
f.
Generally no duty to protect another from criminal acts of a third party to come to aid
of another in distress; burden is too high (Perry v. S.N. & S.N.)
g.
i.
1.
2.
3.
4.
confronted by emergency
5.
h.
i.
ii.
iii.
iv.
"Safe place" statutes (requiring lights and other protection in tenement houses or
premises open to public)
v.
i.
i.
ii.
prima facie (rebuttable presumption) negligence (issue goes to jury even when
no credible evidence of recognized excuse but merely evidence defendant acted with due care)
iii.
VIII.
Proof of Negligence
a.
i.
ii.
Burden of coming forward with enough evidence to avoid a directed verdict
against him: show reasonable jurors could find on a more-probable-than-not basis that plaintiffs
contention is correct
iii.
Burden of persuading trier of fact to find in his favor: persuade jury that
preponderance of evidence is in his favor
iv.
[Generally not susceptible to summary adjudication; must be resolved by jury
unless negligence per se]
b.
Proof
i.
Direct Evidence: based on personal knowledge or observation and that, if true,
proves a fact without inference or presumption
ii.
Circumstantial/inferential evidence: evidence based on inference and not on
personal knowledge or observation (Goddard v. Boston & Maine R.R. Co., Anjou v. Boston Elevated Ry.
Co.; Joye v. Great Atlantic & Pacific Tea Co.)
c.
Plaintiffs burden of proving dangerous condition existed for sufficient time to establish
constructive notice to store owner (Ortega v. Kmart Corp.; Gordon v. American Museum of Natural
History)
i.
ii.
iii.
d.
Must show conduct created an unreasonable risk (H.E. Butt Groc. Co. v. Resendez)
e.
Comparative Fault
i.
ii.
Jurors reduce amount you can recover based upon amount of fault
iii.
IX.
a.
b.
Res ipsa loquitur permits but does not compel inference of negligence under certain
circumstances
c.
Res ipsa loquitur provides plaintiff with inference of negligence where direct proof of
negligence is wanting, providing certain elements consistent with negligent behavior are present. Injured
plaintiff must establish that: (Byrne v. Boadie)
i.
instrumentality causing injury was under exclusive control of defendant and
(Larson v. St. Francis Hotel)
ii.
that accident is one that would not, in ordinary course of event, have occurred
without negligence on part of one in control
iii.
d.
Doctrine allows you to convince judge that case can go to the jury on inferences (It
warrants the inference of negligence that the jury may draw, or not, as its judgment dictates.)
e.
Purpose is to "smoke out" evidence defendant has or can get that plaintiff cannot
f.
Expert testimony not necessary when within common experience (McDougald v. Perry)
i.
Basis of past experience which reasonably permits conclusion that such events do
not ordinarily occur unless someone has been negligent, and
ii.
expert testimony, etc.
g.
i.
Can bring suit against any of defendants who may have had control over
instrumentality that caused injury that wouldn't have occurred unless someone had been negligent (Ybarra
v. Spangard)
ii.
Its an exception because you cant show exactly whose control the
instrumentality was under
iii.
Burden shifts to defendants to show that something other than their conduct was
the cause
iv.
rendered unconscious
h.
i.
When you have multiple defendants, each defendants is individually liable for
full amount of the damages
ii.
Liability that may be apportioned either among two or more parties or to only
one or a few select members of the group, at the adversary's discretion. Thus, each liable party is
individually responsible for the entire obligation, but a paying party may have a right of contribution and
indemnity from nonpaying parties
iii.
i.
Negligence as a matter of law would be an exceptional case requiring evidence for a
strong inference (Sullivan v. Crabtree)
j.
i.
ii.
warrants presumption of negligence if defendant does not produce sufficient
evidence to rebut, and
iii.
k.
i.
ii.
may take advantage of it to extent that inference of negligence to be drawn
supports specific allegations
iii.
iv.
v.
X.
a.
Intentional Torts
i.
ii.
protected interest)
b.
1.
Substantial Factor Test: defendants tortious conduct is a cause in fact
if it was a substantial factor in bringing about plaintiffs injury
a.
find it probably caused the injury
b.
c.
d.
occurred
e.
Ranch, Inc.
2.
But For Test (sine qua non): But for defendants negligence, the injury
would not have occurred (Perkins v. Texas & New Orleans R. Co.)
a.
States applying the but for test typically use it first & then turn
to substantial factor test if but for cannot be applied
b.
negligence
c.
i.
ii.
(b) there is no rule of law relieving the actor from liability because of the manner
in which his negligence has resulted in the harm.
d.
Joint and several liability: Multiple defendants bear percentage under comparative fault;
apportioning causation
e.
i.
Cause-in-fact problem
ii.
Need to show
1.
2.
iii.
f.
Malpractice leading to Decrease in Survival for Patient (Herskovits v. Group Health
Cooperative of Puget Sound)
i.
But for & substantial factor tests dont work > the patient was dying
ii.
for the death)
Court allows action for the decrease in chances of survival (not the full amount
g.
Concurrent Causation
i.
ii.
iii.
iv.
Restatement 432: Actors negligent conduct is not a substantial factor in
bringing about harm to another if the harm would have been sustained even if the actor had not been
negligent.
1.
Exception: If two forces are actively operating, one because of the actor's
negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring
about harm to another, the actor's negligence may be found to be a substantial factor in bringing it about
(Anderson v. Minneapolis, St. P. & S. St. M. Ry. Co.)
v.
Restatement 433: The following considerations are important in determining
whether the actor's conduct is a substantial factor in bringing about harm to another:
1.
the number of other factors which contribute in producing the harm and
the extent of the effect which they have in producing it;
2.
whether the actor's conduct has created a force or series of forces which
are in continuous and active operation up to the time of the harm, or has created a situation harmless
unless acted upon by other forces for which the actor is not responsible;
3.
h.
lapse of time.
i.
Multiple defendants can be held liable for negligence even though it is unclear
which caused the actual harm; Holding otherwise would mean exonerating both and having plaintiff go
remediless (Summers v. Tice)
ii.
injury
Burden of proof shifts to defendants to prove he was not the one who caused the
iii.
iv.
v.
Acting in Concert: If two or more negligent s are acting jointly in concert, but
only one actually causes the injury. They are both liable for the injury because they both were acting
negligently and they were acting in concert. (Bierczynski v. Rogers)
vi.
DES Cases
1.
amounts of damages
2.
a.
Statute of limitation
b.
Plaintiffs unable who manufactured the particular DES that
they/their mothers ingested (Cause-in-fact problem)
c.
[Obstacles arose due to latency period between when drug was
ingested and when symptoms were manifested]
3.
a.
b.
Alternative liability (Summers v. Tice) does not apply: cant
bring whole universe (or close to) of possible defendants to court
c.
d.
under concerted action
e.
Apply a national market share theory of liability for
apportionment of damages (provide relief & rationally distribute)
f.
Defendants cannot exculpate themselves unless they show that
they did not participate in market producing DES for pregnancy use
g.
Liability is several only & should not be inflated; defendants
liability is only its fair share of responsibility (based on % market share)
h.
realistic avenue of relief for plaintiffs
i.
4.
a.
Plaintiff must bring substantial share of defendants before court
(Modified version of alternative liability)
i.
75% of market
b.
sold the DES that injured plaintiff
i.
liable according to "market share
ii.
iii.
5.
a.
then implead other if it chooses
Plaintiff only required to file suit against one defendant, who can
b.
sold the DES that injured plaintiff
c.
d.
presumed
Defendant can try to show its market share was less than
i.
are inflated so plaintiff can still receive 100%
ii.
6.
a.
then implead other if it chooses
Plaintiff only required to file suit against one defendant, who can
b.
sold the DES that injured plaintiff
c.
Jury uses comparative negligence assigns remaining defendants
shares of liability based on amount of risk they contributed rather than market share
d.
e.
Held that all defendants were all jointly and severally liable
f.
Inflate to 100%
7.
a.
Mississippi Approach
Alternative Liability
b.
If plaintiff can join all possible manufacturers, burden shifts to
defendant to prove it did not make DES that injured plaintiff
c.
vii.
XI.
Asbestos
2.
Delcon Shield
3.
Cigarettes
4.
Agent Orange
Proximate Cause: Ds wrongful act is cause of Ps injuries but law may decline to trace series of
events beyond a certain point
a.
i.
Where does this problem fit into cause of action for negligence? (Duty? Breach?
Cause in fact? Proximate cause?)
b.
i.
If a trial court decides as a matter of law the defendants conduct was not a
proximate cause of the plaintiffs injury, the court will dismiss the complaint, grant summary judgment, or
direct a verdict
c.
i.
ii.
iii.
iv.
d.
i.
Cardozo: Orbit of risk to define duty > foreseeability (P can recover only if risk
of injury to her could be foreseen
ii.
Andrews: Proximate cause (D owes a duty of care to anyone who suffers injuries
as a proximate result of breach) > foreseeability is just one factor
e.
i.
ii.
f.
Foreseeability Test: consequences were foreseeable at time of negligent conduct if
consequences are direct & damage is of same general sort that was risked (Kinsman Transit Co.)
i.
Doctrine of proximate cause may cut off liability even though there is cause-infact in cases involving other acts that intervene in causal link between defendants act and plaintiffs
injury
ii.
Foreseeable relates the particular harmful result (it doesnt matter if the manner
in which the injury occurred or the timing was unusual)
g.
i.
severed
Intervening Causes
Where acts of a third person intervene, the causal connection is not automatically
ii.
Intervening Cause Test: Liability turns on whether intervening act is normal or
foreseeable consequence of situation created by defendants negligence (Derdiarian v. Felix Contracting
Corp.)
iii.
iv.
Intervening act may not serve as superseding cause where risk of intervening act
occurring is the very same risk which renders actor negligent
v.
Restatement 422: Factors to determine whether an intervening force is a
superseding cause of harm to another:
1.
(a) the fact that its intervention brings about harm different in kind from
that which would otherwise have resulted from the actor's negligence;
2.
(b) the fact that its operation or the consequences thereof appear after the
event to be extraordinary rather than normal in view of the circumstances existing at the time of its
operation;
3.
(c) the fact that the intervening force is operating independently of any
situation created by the actor's negligence, or, on the other hand, is or is not a normal result of such a
situation;
4.
(d) the fact that the operation of the intervening force is due to a third
person's act or to his failure to act;
5.
(e) the fact that the intervening force is due to an act of a third person
which is wrongful toward the other and as such subjects the third person to liability to him;
6.
(f) the degree of culpability of a wrongful act of a third person which sets
the intervening force in motion.
h.
Act of God
i.
Restatement 450: The extraordinary operation of a force of nature, which merely
increases or accelerates harm to another which would otherwise have resulted from the actor's negligent
conduct, does not prevent the actor from being liable for such harm.
ii.
Restatement 451: An intervening operation of a force of nature without which the
other's harm would not have resulted from the actor's negligent conduct prevents the actor from being
liable for the harm, if
1.
2.
the harm resulting from it is of a kind different from that the likelihood
of which made the actor's conduct negligent.
i.
i.
ii.
Criminal conduct does not automatically interrupt causal link but is more likely
to be considered independent
iii.
j.
i.
rescue
Allows an injured rescuer to sue the party which caused the danger requiring the
ii.
Informs a tortfeasor that it is foreseeable a rescuer will come and negates the
presumption that the rescuer assumed the risk of injury
iii.
Rescuer Status
1.
peril or appearance of peril,
2.
3.
appearance existed, and
4.
iv.
Even if wrongdoer did not foresee rescuer, he is still accountable as if he did
(Wagner v. Intl Ry. Co.)
v.
k.
i.
1.
probability & gravity)
2.
3.
ii.
1.
a.
b.
Ex: For fire cases in NY, there is liability for damage only to
property to which fire is directly communicated (aka the first adjoined house to original fire) (Ryan v.
New York Central R.R. Co.)
c.
Ex: Cause of action does not lie for child for injuries suffered as
a result of a preconception tort against the mother (Albala v. City of NY)
d.
victims (Enright v. Eli Lilly & Co.)
e.
outcomes
f.
g.
beyond manageable bounds
h.
i.
Insurance considerations
j.
2.
a.
Limited duty: Social host who enable adult guest to drink may be
liable for injuries inflicted upon third party, if the host knows that the guest is intoxicated & will be
driving (Kelly v. Gwinnell); NY does not impose this duty but NJ imposes a limited duty
b.
XII.
Joint Tortfeasors
a.
Vicarious Liability
i.
Non-fault doctrine
ii.
1.
Without exonerating actual wrongdoer, liability is imposed upon both
wrongdoer and another who stands in relation to wrongdoer that it is not unreasonable to make
responsibility his
iii.
Justification:
1.
2.
iv.
Two Dimensions
1.
Employer-employee relationship
2.
a.
i.
extend to commute to and from work
ii.
Frolic (abandonment of employers business)
v. Detour (slight deviation for personal reasons); (OShea v. Welch)
b.
Foreseeable consequence
i.
Foreseeability: in context of a particular enterprise, an
employees conduct is not so unusual or startling that it would seem unfair to include the loss resulting
from it among other costs of employers business (Bussard v. Minimed, Inc.)
v.
Restatement 909: principal is liable for punitive damages only if principal
authorized or ratified the act, was reckless in employing or retaining the agent, or the agent was employed
in a managerial capacity and was acting in scope of employment
vi.
Employer may also be held liable for intentional torts of employee when they are
reasonably connected with employment
vii.
Independent Contractors
Employers generally are not liable for torts of independent
b.
Right to Control Test: determine whether or not employee is free
from control and direction of his employer in all matters connected with performance of service except to
result
c.
Independent contractors perform service according to own
methods & manners and have the right to control physical details of work; he does work on his own time,
in his own way, and under no ones direction but his own
d.
2.
Exceptions to the Exception: Where Independent Contractor will not
insulate employer from liability
a.
Non-delegable Duties
i.
remains with owner
ii.
Restatement 423: one who carries out an activity that
threatens a grave risk unless the instrumentalities are carefully maintained, and who employs an
independent contractor to maintain them, is subject to same liability for harm caused by negligence of
independent contractor (Maloney v. Ruth)
b.
Apparent Authority: one who expressly or impliedly represents
that another party is his servant or agent may be held vicariously liable to extent of that representation;
allows injured party who reasonably relies on representation to hold the party who made the
misrepresentation liable
c.
Inherently Dangerous Activiites: not limited to activities that
involve extraordinarily high degree of danger; applicable when activity involves a peculiar risk of harm
that calls for more than ordinary precaution
i.
Exception does not apply when independent contractor's
negligence is deemed collateral to inherent risk of activity (not recognizable in advance as particularly
likely or calling for special precaution)
d.
Illegal Activities: one who contracts for performance of illegal
act is vicariously liable for damage even if it is an independent contractor
e.
Negligence in selection of contractor: If company is negligent in
selecting contractor or in giving improper directions or equipment or in failing to stop any unreasonably
dangerous practice that comes to its attention, the company will be held liable for its own negligence
(ordinary concurrent negligence)
XIII.
a.
i.
Each of several tortfeasors is liable jointly with others for amount of judgment
against them, and each is also individually liable for the full amount; plaintiff can collect from any one or
any group of them
ii.
iii.
iv.
1.
alone
v.
amount)
vi.
1.
2.
3.
b.
Several Liability
i.
ii.
c.
d.
i.
ii.
Joint-and-several liability does not apply in comparative negligence case when
there is a concurrent unknown tortfeasors (Bartlett v. New Mexico Welding Supply, Inc.)
iii.
a.
b.
culpable conduct
c.
d.
[Eliminates contributory negligence and assumption of risk-contracts assuming risk might be upheld but they have to be very specific & not involve large groups of
people; primary assumption of risk option where risk is assumed 100% for participation in sports; but
generally its eliminated]
1
2
1007: Third-party practice allowed: Defendant may proceed against nonparty who ma be liable
to defendant for all or part of plaintiff's claim against defendant (Defendant becomes third-party plaintiff
and person being served becomes third-party defendant.)
3
1404: Rights of persons entitled to damages not affected: Affirmation of joint-and-several
liability (procedural)
4
a.
equitable share
b.
share
c.
Hypo: is awarded $10 million. She sues 1. 1 is 50%
liable. 2 and 3 are each 25% liable, but 3 can not be found. 2 can not be liable for more than 25%.
However, the can recover the full amount even if all the are not present. 1 must contribute 75% now.
iv.
1.
2.
3.
a.
Liability of defendant is 50% or less, liability of defendant for
non-economic loss shall not exceed defendant's equitable share determined in accordance with relative
culpability of each person causing or contributing to total liability for non-economic loss
b.
Hypo: suffers 12 million dollars in non-economic losses. 1 is
40% liable, 2 is 30% liable, and 3 is 30% liable. 3 is not present. The can not 9recover more than
40% from the 1. The can note recover more than 30% from 2.
4.
a.
b.
c.
d.
v.
1.
2.
vi.
a.
b.
c.
d.
Whichever is greatest
3.
Hypo: The judgment is $500,000. 1 settles for $100,000. It is
determined 1 and 2 are 50/50 at fault. 2s settlement can either by reduced by $100,000 (1s
settlement) or 250,000 (1s share). It is reduced by 250,000 since it is greater.2 pays $250,000.
XIV.
Joinder
a.
Joinder permitted when plaintiff's claims arise from "same transaction, occurrence, or
series of transactions or occurrences" and "any question of law or fact common to all defendants will arise
in the action
b.
Defendant can enforce right to contribution or indemnity may have against another
potential defendant by impleading that other party or by brining a separate lawsuit for contribution or
indemnity against the other party
Damages
I.
Overview
a.
i.
Nominal: small sum; in order to vindicate rights, make judgment available as
matter of record, and carry part of costs of action; no nominal damages for negligence
ii.
non-economic
iii.
b.
c.
d.
i.
contrary to law
ii.
Judge must then decide whether to set aside verdict and grant new trial or allow
liability port of verdict to stand and grant new trial on damages alone
iii.
e.
f.
II.
Remittur: motion for new trial conditioned upon refusal of plaintiff to accept
lesser amount; held not to violate guaranty of jury trial in federal & state constitutions
Special/economic damages: lost earnings, medical & other expenses; subject to objective
measurement of economic loss
General/non-economic: pain & suffering and emotional distress
Compensatory Damages
a.
Maximum amount test: directs judge to determine whether verdict of jury exceeds
maximum amount which jury could reasonably find; if it does, the judge may then reduce verdict to
highest amount jury could have properly awarded (Anderson v. Sears, Roebuck & Co.)
b.
i.
ii.
iii.
III.
Punitive Damages
a.
b.
Punitive damages are add-on damages that the state chooses to allow
c.
d.
e.
NY: punitive damages for "wanton, willful, & malicious behavior"; criminal indifference
to civil obligations; purpose is punishment, not compensation
f.
i.
ii.
iii.
g.
Excessiveness
i.
Court can knock down punitive damages for deprivation of due process of law
(BMW of North America, Inc. v. Gore; State Farm Mutual Automobile Ins. Co. v. Campbell);
Considerations include:
1.
2.
3.
ii.
Court may consider ratio of compensatory damages to punitive damages for
certain types of cases (ex: maritime law in Exxon Shipping Co. v. Baker)
IV.
Proof of Damages
a.
demonstrative evidence: tangible items (bring home to jury the extent of injury)
b.
V.
a.
b.
Economic Losses
Medical Expenses: (past & future expenses) bills for hospitals, doctors, physical
therapists, nurses, medication, x-rays, crutches, travel to different climate, etc; past expenses are proved
by bills presented at trial; future expenses require expert testimony; recover as long as costs were not
related to tortuous injury, unnecessary, or excessively high
Lost Wages (past & future; future requires proof)
c.
d.
Damage Calculation: Present Value: lump sum of what plaintiff would have earned or
will need; in NY, lump sum must be reduced to its "present value"; jury is instructed to award money in a
lump that will produce for the plaintiff the amount the plaintiff would have earned or will need for a
future operation
e.
Computed by formula or reference to tables once it has been determined at what interest
rate to assume plaintiff will be able to invest the lump sum (principal)
f.
Restatement 913A: The measure of a lump-sum award for future pecuniary losses arising
from a tort is the present worth of the full amount of the loss of what would have been received at the
later time.
g.
Expert witnesses brought in to determine interest rates & then reduce to present value
h.
Present value: "dollar today is worth more than in the future" bc you can invest it
i.
Federal Income Tax: plaintiff's award for personal injuries is not subject to federal
income tax; punitive damages are though; problem occurs when loss is one that would have been subject
to income tax (ex: lost wages)
VI.
Non-economic Losses
a.
b.
c.
Physical Pain & Suffering, Mental Anguish: general or non-economic damages; include
suffering prior and reasonably certain to result from injury in the future; no fixed standard to measure
them; general damages consist of physical pain (present & future), plaintiff must be conscious to recover
d.
e.
f.
g.
Per-diem Argument: breaking physical and mental suffering into days/hr/minutes &
settign value; controversial
h.
i.
Tort Reform: big question is whether to cap damages recoverable for pain & suffering
VII.
Collateral Source
a.
b.
c.
i.
Collateral Source Offset: Four personal injury actions in NY where amount of
damages will be reduced if all of part of amount will be replaced or indemnified from collateral sources
ii.
iii.
iv.
Where plaintiff seeks to recover economic loss, evidence is admissible to show
that collateral source will cover the loss in whole or part
v.
Court will reduce amount of award, minus an amount equal to premiums paid by
plaintiff for such benefits for the two-year period immediately preceding the accrual of such action and
minus an amount equal to the projected future cost to plaintiff of maintaining such benefits
vi.
d.
C.P.L.R. 4546: Loss of earnings and impairment of earning ability in actions for medical
or dental malpractice
i.
medical/dental malpractice in action to recover for loss of earnings or impairment
of earning ability: evidence admissible to establish federal, state, and local personal income taxes which
plaintiff would have been obligated to pay
ii.
iii.
court will reduce award for loss of earnings or impairment of earning ability by
taxes that plaintiff would have been obligated by law to pay
iv.
Additional offset of potential income tax for medical/dental malpractice (not
other forms of malpractice or personal injury)
VIII.
a.
Statute of Limitations in NY
213: Contracts (6 years) >> longer than torts because there are documents (rather than
just relying on people's memories)
b.
c.
d.
e.
IX.
a.
Survival statute: action for personal injury survives death of plaintiff or defendant
i.
ii.
Estates, Powers and Trusts Law 11-3.2(a) Defendant's death: claim may be
brought against defendant's estate
1.
2.
3.
iii.
CPLR 210(b): Period of eighteen months after the death of a person against
whom a cause of action exists is not part of the time within which the action must be commenced against
his executor or administrator
1.
2.
3.
Statute of limitations stops at the point when the defendant dies and then
resumes after eighteen months
iv.
Estates, Powers and Trusts Law 11-3.2(b) If plaintiff dies, look first to action
brought by representative of estate
1.
Punitive damages now allowed (for deaths after Aug. 31, 1982)
v.
CPLR 210(a): Where person entitled to commence an action dies before
expiration of time within which action must be commenced, an action may be commenced by his
representative within one year of his death
1.
2.
b.
Wrongful death statute: new cause of action created by death of someone due to a tort
i.
ii.
Distinct from survival action although the two sometimes arise at the same time
iii.
Estates, Powers and Trusts Law 1-2.5: Distributee (person entitled to take or
share in property of decedent under statutes governing descent & distribution)
iv.
action
v.
Estates, Powers and Trusts Law 5-4.1: Personal representative (duly
appointed) may maintain action to recover damages for a wrongful act/neglect/default which caused
decedent's death against person who would have been liable to decedent by reason of such wrongful
conduct if death had not ensued
1.
2.
When distributes do not participate in administration of decedent's estate
under a will appointing an executor who refuses to bring such an action, the distributes are entitled to
have an administrator appointed to prosecute the action
vi.
vii.
viii.
1.
Medical/dental malpractice: evidence of federal, state, and local personal
income taxes that decedent would have been obligated to pay is admissible
2.
Court shall instruct jury to consider taxes that decedent would have been
obligated to pay (Different from survival statute where jury was instructed not to consider taxes)
3.
been obligated to pay
ix.
Without a jury, court shall consider which taxes the decedent would have
Estates, Powers and Trusts Law 5-4.4: Damages exclusively for benefit of
distributes
c.
Estates, Powers and Trusts Law 11-3.3(b): Allows for coordination of actions (survival
action & wrongful death action); allows the court to combine and treat as one
d.
Major limitation in wrongful death actions: only lost wages that would have gone to
support distributees (not so for survival statute?) > Better to have lived 15 minutes than just died...?
Compensation Systems as Substitutes for Tort Law
I.
a.
Workers Compensation
Employers had advantage in negligence system because of defenses:
i.
Contributory negligence
ii.
Assumption of risk
iii.
b.
Emergence of Workers Compensation takes work-related injuries out of tort system &
into statutory system
c.
d.
e.
f.
Typical Features
i.
Coverage Formula: employee is automatically entitled to certain benefits
whenever he suffers a personal injury by accident arising out of and in the course of employment
ii.
Negligence and Fault are largely immaterial (contributory negligence does not
lessen employee's rights & employer's freedom from fault does not lessen his liability)
iii.
iv.
Benefits to employee include cash-wage benefits (1/2 - 2/3 his weekly wage) and
hospital & medical expenses; in death cases, benefits for dependents are provided; arbitrary maximum
and minimum limits are ordinarily imposed; damages are capped at first instance at certain amount
depending on jurisdiction (limited economic losses); no recovery for non-economic losses (no recovery
for pain & suffering); some statutes will allow for disfigurement but that's it
v.
Employee and his dependents give up common-law right to sue employer for
damages for any injury covered by the act; trade-off: employers can't be sued but they have to pay
employees who suffer disabling injuries during course of employment a limited amount regardless of fault
vi.
Right to sue third persons whose negligence caused the injury remains with the
proceeds usually being applied first to reimbursement of employer for compensation outlay and the
balance or most of it going to the employee
vii.
viii.
ix.
g.
Advantages
i.
ii.
Insurance Companies: can anticipate cost of insurance & pass on to the consumer
iii.
Employees: don't have to worry about employers' defenses (better than getting
nothing)
h.
i.
Third-party tortfeasor who is not an employer can be sued in tort (comes up in
products liability); no cap and pain & suffering is back in the picture
ii.
Comparative fault applies in contribution actions; employer can be sued for only
so much; third-party tortfeasor can sue employer in some cases
iii.
II.
a.
b.
c.
In no state does insured surrender right to sue in tort for pain and suffering in exchange
for coverage of an economic loss
d.
Modified no-fault: coverage in which benefits are awarded regardless of fault & the right
to sue for pain and suffering is permitted only after satisfying a statutory threshold
e.
Choice no-fault: type of modified no-fault in which a driver may choose to be included in
the modified no-fault system or the tort system (NJ, PA, KY)
f.
"Add-on" insurance: expanded first party coverage that has first party, no-fault benefits
for medical expenses and lost wages but does not restrict lawsuits for pain & suffering
g.
i.
Motor Vehicles Reparation System is a Bifurcated System: No-fault system on
one side & Tort system on the other side
1.
2.
Tort: can recover for large pain & suffering cases (limited to these cases;
smaller cases are taken out of the court system to lower costs)
ii.
No compulsory first-party collision insurance: collision insurance covers damage
to your car (either caused by you or someone else), first-party, expensive
iii.
Collision liability insurance: property damage caused to someone's else car, put a
maximum amount on it
iv.
required
1.
Every owner's policy of liability insurance issued on a motor vehicles,
shall also provide for the payment of first party benefits to:
a.
persons, other than occupants of other motor vehicle/motor
cycle, for loss arising out of use or operation in this state of such motor vehicle (No mention of fault;
insurance policy has to provide for first-party benefits; compulsory contract)
i.
"First-party benefits": payments to reimburse person for
basic economic loss on account of personal injury arising out of use/operation of motor vehicle
1.
2.
minus amounts recoverable under state/federal
laws providing social security disability benefits, workers' compensation benefits, disability benefits,
medicare benefits
3.
insurance policy
ii.
"Basic economic loss": up to $50,000 per person of
following combined items (except for caps for medical losses under Workers' Compensation)
1.
2.
medical, psychiatric, professional health
services: no limitation to time as long as it is ascertainable within one year that further expenses may be
incurred
3.
loss of earning from work which person would
have performed if not injured, and reasonable and necessary expenses incurred by such person in
obtaining services in lieu of those that the would have performed for income up to $2,000 per month for
not more than 3 years; first-party benefits offset if employee is receiving other types of
disability/monetary benefits
4.
incidental costs: all other reasonable &
necessary expenses, not more than $25 per day for not more than one year
5.
(except for small funeral benefit)
6.
additional option to purchases, for an additional
premium, up to an additional $25,000 of coverage which insured may specify will be applied to loss of
earnings from work and or therapy after initial $50,000 of basic economic loss has been exhausted
v.
1.
Action by or on behalf of covered person against another covered person
for personal injuries arising out of negligence in use of motor vehicle, there shall be no right of recovery
for non-economic loss, except in case of a serious injury, or for basic economic loss
2.
a.
you suffered that was capped)
b.
i.
ii.
"Serious injury": death, dismemberment, significant
disfigurement, fracture, loss of fetus, permanent loss of use of organ/member/function/system, permanent
consequential limitation of use of organ, significant limitation of use of body function or system,
medically determined injury which prevents injured person from performing substantially all of material
acts which constitute such person's usual and customary daily activities for not less than 90 days during
180 days immediately following occurrence of injury
Strict Liability
I.
Types of Liability
a.
b.
For negligence
c.
II.
a.
i.
After Rylands in the United States: little attention given to House of Lords'
decision; treated as holding that the defendant is absolutely liable whenever anything whatever escapes
from his control and causes damage > misstated & rejected in several jurisdictions
b.
c.
d.
e.
i.
other (Hand)
existence of high degree of risk of some harm to the person, land, or chattels of
ii.
iii.
iv.
v.
vi.
f.
i.
ii.
iii.
g.
Strict liability founded upon policy of law that imposes upon anyone who for his own
purposes creates an abnormal risk of harm to his neighbors the responsibility of relieving against that
harm when it does in fact occur. Defendant's enterprise is required to pay its way by compensating for the
harm it causes because of its special, abnormal, and dangerous character
h.
Liability is applicable to an activity that is carried on with all reasonable care, and that is
of such utility that the risk involved in it cannot be regarded as so great or so unreasonable as to make it
negligence merely to carry it on
i.
Decision of whether activity is subject to strict liability is decided by court (not jury)
j.
Liability is analogous to negligence per se but is not negligence; court makes judgment
that value to community is sufficiently great that mere participation in the activity is not to be stigmatized
as wrongdoing in the negligence sense
k.
i.
Allocative: Emphasis is on picking liability regime that will control particular
class of accident most effectively
ii.
l.
i.
One thing to say that a dangerous enterprise must pay its way within reasonable
limits and another to say that it must bear responsibility for every extreme of harm it may cause. There is
a practical necessity to restrict liability to reasonable bounds (like with proximate cause); (Foster v.
Preston Mill Co.)
ii.
iii.
1.
Act of God is defense (if owner has no reason to anticipate); (Golden v. Amory)
Under abnormally dangerous activities, the plaintiff's activities may fall under
comparative fault; Apply comparative fault after Article XIV (not strict liability); (Sandy v. Bushey)
However, in order for plaintiff to be at fault, something more than slight
negligence or want of due care must be shown
iv.
Owners of domestic animals are not answerable for injury done by them in place
where they have a right to be, unless the animals are in fact, and to the owner's knowledge, vicious.
1.
III.
Products Liability
a.
b.
c.
d.
i.
1.
2.
Negligence in Manufacturing
a.
b.
Design defect (manufacturer will argue it was designed as a
reasonable manufacturer would have designed it)
c.
d.
packaging)
3.
a.
b.
Sale to minor
c.
[No burden to inspect, unless there is an obvious problem which
creates notice of reasonable risk of harm beyond privity of contract)
4.
a.
was foreseeable
ii.
1.
2.
warranties to third parties
3.
Warranties gradually came to be regarded as express or implied terms of
contract of sale; action on contract became usual remedy for breach
4.
5.
a.
Express warranty: promissory assertion of fact that seller makes
as part of sales transaction (Baxter v. Ford Motor Co.)
i.
Policy: unjust to permit manufacturers to create a
demand by representing goods with qualities they do not possess and then deny the right of recovery for
lack of privity; effect would be that manufacturer could express whatever they wanted even if untrue
b.
Implied Warranty for Merchantability: product is fit for general
purpose for which it was manufactured & sold (Mazetti v. Armour & Co; Henningsen v. Ford Motor Co.)
i.
Implied warranty trumps contract if contracts attempts to
restrict right to sue (waiver of warranties) and such a restriction would be unconscionable (contract of
adhesion, no ability to negotiate or seek other seller)
c.
Implied Warranty for Fitness for Particular Purpose: buyer
makes known to seller the particular purpose for which the article was purchased and he relies on seller's
skill or judgment
6.
a.
Consequential damages may be limited or excluded unless the
limitation or exclusion is unconscionable
b.
Limitation of consequential damages for injury to the person in
the case of consumer goods is prima facie unconscionable (no disclaimers for personal injuries)
c.
7.
a.
Buyer must within a reasonable time after he discovers or should
have discovered the breach of warranty notify the seller or be barred from any remedy
iii.
2.
3.
Manufacturer is strictly liable in tort when an article he places on the
market knowing that it is to be used without inspection for defects, proves to have a defect that causes
injury to a human being
4.
5.
the user or consumer
6.
Restatement 402A: Special Liability (Above Negligence) of Seller of
Product for Physical Harm to User or Consumer
a.
b.
In a defective condition
c.
property
d.
is subject to liability for physical harm thereby caused to the
ultimate user or consumer, or to his property, if
e.
and
f.
it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold.
g.
7.
a.
b.
c.
as a result of a defect in design and manufacture (defect was
present in product at time of sale; Friedman v. General Motors Corp.)
d.
e.
e.
i.
1.
2.
ii.
iii.
f.
i.
ii.
One engaged in the business of selling or otherwise distributing products who
sells or distributes a defective product is subject to liability for harm to persons or property caused by the
defect
iii.
Manufacturing defect: product departs from its intended design even though all
possible care was exercised in the preparation and marketing of the product
iv.
Defective in design: foreseeable risks of harm posed by the product could have
been reduced or avoided by the adoption of a reasonable alternative design by the seller or other
distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative
design renders the product not reasonably safe
v.
Inadequate instructions or warnings: foreseeable risks of harm posed by the
product could have been reduced or avoided by the provision of reasonable instructions or
warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and
the omission of the instructions or warnings renders the product not reasonably safe
g.
i.
1.
Product injures a person because there is a flaw that is not in the general
product line; failure in quality control (Greenman)
2.
Main problems in factual proof: Product is not in condition manufacturer
intended at time it left his control
3.
(Rix v. General Motors Corp.)
4.
ii.
Design defect
1.
2.
a.
b.
i.
when
ii.
iii.
iv.
plaintiff's injury (cause-in-fact)
c.
"Not reasonably safe": whether it is a product which, if the
design defect were known at the time of manufacture, a reasonable person would conclude that the utility
of the product did not outweigh the risk inherent in marketing a product designed in that manner
d.
i.
product as designed was not reasonably safe because
there was a substantial likelihood of harm (probability & gravity), and
ii.
it was feasible (doesn't undermine utility) to design the
product in a safer manner (to prevent the danger)
e.
i.
ii.
reduced to greatest extent possible
iii.
Factors to be Weighed
i.
individual user
ii.
cause injury
iii.
iv.
potential for designing and manufacturing the product so
that it is safer but remains functional and reasonably priced
v.
use of the product
vi.
vii.
h.
Manufacturer's own knowledge was not necessary; just design of
product in light of state of the art at the time of production
i.
industry at the time of manufacture
i.
liability
j.
No difference for design defect in negligence and in strict
liability in tort in New York (Denny v. Ford Motor Co.)
i.
Strict liability is negligence-inspired approach
(manufacturer's choices & judgment about manufacturer's judgment)
ii.
manufacturer's conduct
iii.
i.
Implied warranty: inquiry only into whether product in
question was fit for ordinary purposes fro which such goods are used; showing that product was not
minimally safe for its expected purpose (without regard for feasibility of alternative designs or
manufacturer's reasonableness)
ii.
weighing of risk & utility
iii.
Defective packaging
2.
No difference for failure to warn in negligence & in strict liability in
tort (Denny v. Ford Motor Co.; Liriano applies to both)
3.
Manufacturer has duty to warn against latent dangers resulting from
foreseeable uses of its product of which it knew or should have known
4.
foreseeable
5.
Duty to warn is limited: focusing on foreseeability of risk
& adequacy and effectiveness of warning
6.
May have duty to warn after product has been sold: where a defect or
danger is revealed by user operation and brought to attention of manufacturer (fact-specific; Cover v.
Cohen)
7.
Obvious hazard: Where injured party was fully aware of hazard through
general knowledge/observation/common sense, or participated in removal of a safety device whose
purpose is obvious, lack of warning about that danger may well obviate the failure to warn (discharge
duty)
a.
8.
party's actual knowledge
a.
Limited class of hazards need not be warned because they are
patently dangerous or pose open & obvious risks
b.
Where danger is readily apparently or where warning would
have added nothing to user's appreciate of the danger, there is no duty to warn
c.
Requiring too many warnings trivializes and undermines the
purpose of the rule, neutralizing its effectiveness
9.
Knowledge/knowability is a component of strict liability for failure to
warn (Anderson v. Owens-Corning Fiberglass Corp.)
a.
Manufacturer is liable if it failed to give warnings of dangers that
were known to scientific community at the time
b.
User of product must be given option to refrain from use or to
use in way that minimizes degree of danger
10.
a.
b.
drawn (matter of law, court)
h.
i.
1.
2.
in a defective condition
3.
injury results
4.
5.
ii.
1.
So likely to be harmful
2.
3.
4.
5.
iii.
1.
2.
iv.
1.
v.
Manufacturing Defect
Not necessary to show defendant knew or should have known
Design Defect
1.
Reasonable person
2.
3.
4.
Of alternative designs
5.
that condition
Would have concluded that the product should not have been marketed in
6.
a.
b.
product the defendant did market
7.
vi.
1.
2.
3.
4.
5.
6.
vii.
2.
contributed to her injuries
a.
Matthews)
b.
reasonable care
c.
3.
i.
i.
ii.
Chevrolet Co.)
Usually does not extend to sellers of used products (Peterson v. Lou Bachrodt
iii.