Escolar Documentos
Profissional Documentos
Cultura Documentos
Spring 2010
Purpose of torts law
To punish wrongdoing (Retributive Justice) To correct/compensate for past wrongs (Corrective Justice) To deter future wrongdoing (Utilitarian)
Intentional Torts
PF for Intentional torts standard of proof: preponderance of evidence Act: Some voluntarily tortuous act Mens Rea: Some wrongful intent Damage: Harmful consequences Causation: consequence has to be connected with the act. often liable for unexpected consequences, but still subject to proximate cause Affirmative defense (even P establishes all the elements, she still cannot win) (Burden on Def) The other way would be attached to the prima facie case Consent (playing football) Self-defense Responses and Rejoinders: P can response to affirmative defense
Battery
PF case
Intent
Intent or knowledge or substantial certainty that the contact is going to happen also enough or intent to cause imminent apprehension of h/o contact
substantial certainty: subjective. no need to intent the consequence, only the act.
Vosburg v. Putney (boy kick on the shin, intent the kick), Garratt v. Dailey (boy removed the chair, substantial certainty, mere careless, reasonable possibility) Restatement view
different kind of contact is ok. no need to have tortious intent no need to have specific victim transferred intent Have to be able identify an identifiable person or a discrete group of people that you are in fact intending to hurt.
second-hand smoke is not, only general knowledge.
Exception: normally intent is not transitive. justification for transferred intent rule:
Youve engaged in bad behavior. someones hurt and needs to be compensated
If subjective approach, then no consent is suffice to indicate a wrongful intent White v. University of Idaho (piano teacher)
Damage
Nominal damages presumed
Causation
Operator can also be sued under accomplice liability
Offensive Battery
PF case
objective standard (reasonable person in the community): as baseline. but if D knows this particular P is especially sensitive, then still offensive even not reasonable. unlike assault, which uses subjective test to protect emotional integrity. Here to structure and create incentive for people's behavior --> objective. Consent is defense.
Assault
PF case
Intent: to cause h/o contact or apprehension of contact or intent to batteries but failed
waive unloaded gun, thereat that could be assault but you dont intent to carry out. P should know about the contact (kiss while asleep is not)
Damages
Damage presumed (like all intentional torts) Other harms can flow from the torts, add to compensation. take the plaintiff as he finds her.
Causation
Defense:
Restatement: Can use force as self-defense or defense other (third party stops the starter) to prevent h/o contact or bodily harm.
Justification
Deter Liberty: shouldnt have to always defense yourself, protect mental peace. False Imprisonment
PF case
Damages
all the consequence: loss of time, physical discomfort, inconvenience, mental suffering, humiliation...
Causation
Defense:
Shopkeepers privilege
Merchant (or agent) may detain persons on or in the immediate vicinity of her premises when there are reasonable grounds to believe the person was committing or attempting to steal goods, so long as the person is detained in a
reasonable manner and for not more than a reasonable length of time objective standard
As Self-defense:
Restatement, can use confinement as self-defense or defense other (third party stops the starter) to prevent h/o contact.
Act:D engages in extreme and outrageous conduct cause severe emotional distress
Objective standard Exception: If do know a particular person is particularly sensitive, and act on that knowledge special relationship: more outrageous for employer to mock employee. common carrier and passenger. mere insult could be enough Celebrity, higher standard. Assume the exposure. tell a woman that her husband has been badly injured. Wilkinson v. Downton
Damage:
P has to prove that she suffers severe emotional distress. physical harm is not required. Third party recovery
present during the outrageous conduct close related to victim D knew P's presence, and knew that distress to T was substantially certain to result from D's conduct
parasitic damage once you commit the crime, you get parasitic damage for emotional distress. Anguish and fright caused by trespass, deceit. Wilkinson
Intent
Intent to be where he is, voluntary act is enough. close to Strict liability or know with substantial certainty that he is entering no mistake as defense
Damages
Liable for all the damages that flow from the trespass. (Children light a match while trespassing. Even if they are careful, still liable.) Tangible Trespass Nominal damages presumed for tangible invasions, Dougherty v. Stepp (survey on other's land) intangible invasions damage must be proved Email server is real property, send unauthorized email is intangible trespass. Intel Corp v. Hamidi (no damage unless physical harm to the function of the server) can also be treated as trespass to Chattels, result is the same. Put burden of proof on P to restrict litigation
P either possessed the chattel or had the immediate right to possess it (not future right).
Act: Voluntary interference with possession of personal property Intent to make use of the chattel
to do the act that turns out to intefere with the possession is enough
no mistake as defense.
Damages
the amount of the use or damage.
Harmful to the possessors materially valuable interest in the physical condition, quality, or value of the chattel, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest is affected Intel v. Hamidi (also restatement)
less harsh than real property harm cannot merely flow from the interference of the chattel, but the chattel itself. Hamidi
limit the capacity of the server is sufficient, not just interfere.
Exception: personal property that share similar character as real property, such as gas meter (unmovable), no material harm is required. Blondell v. Consolidated Gas
Causation
Conversion
A conversion is the exercising of an unjustifiable and unwarranted dominion and control over anothers property which causes injury to the owner of the property. A party can have a conversion claim if either (a) she is in possession; or (b) she has a right to immediate possession of the article. PF Case
Intent
Intent to do the act exercising dominion or control is enough no need to intent "others" property
Damages
conversion itself is damage, nominal damage presumed. lost measured by the owner. corrective justice (if good faith): pay back what the P has lost. Put P back in where he was. Maye v. Tappan deterrence (if bad faith): pay back the full value if youre intentional (even if the price is higher than P can sell). Force sale.
maximize incentive to act carefully
Causation For novel circumstances try to explain what is the exercising of unwarranted interference with dominion Moore v. Regents (blood sample for commercial use), possible justification
Continuing property: the conversion happened when they did something on the blood that exceeds the permission. Property ends when extracted from P: conversion happened when fraudulently extract the blood. Consent is Ds affirmative defense. P can response fraud (Yes, but claim).
Difference b/w trespass to chattels / conversion
Ownership: possession needs not be the owner/ need to be the owner Damage: need to show material valuable interest in the physical property / conversion itself is damage
Trespass to chattels: the reduction of value of the chattel Conversion traditional view: full price, force sale now:
innocent converter can return. Some jurisdiction: allow D to choose Give back and pay the diminished value. Keep it and pay full value.
Scope of consent It was a contact to which the plaintiff consented; OR It was a contact of a substantially similar nature
no need to consent to the consequences
construe the consent in the context Types of consent Expressed consent Implied consent
means to an end consent to surgery = consent to incision. manifestation of behavior
stand in line waiting for vaccine= consent to vaccine. Obrien v. Cunard Steamship Co.
Oral statement, any surgery that is necessary Statements/waivers Participating activities with knowledge of the rule Hackbart
if it's part of the rule, then you should know it as a consequence. (except intentional attack) Substitute consent
Incapacitated person: under age, incompetent to give consent Affirmative giving over authority to make decision (attorney) Family members consent for patient limited: the reason why we care about consent is we value peoples anatomy.
Intentional act that violate rule is outside the scope. negligent or reckless break the rule is hard to recover. Hackbart agree to operate an right ear, operate on the left instead.
Illegal act
Majority view: illegal consent is no consent at all. Can sue each other for battery. Paternalistic. Minority view: Consent stands even its illegal activity. the willing suffer no injury Exception: the activity is illegal b/c of protection a certain class of people in which the plaintiff belongs to.
Hudson v. Craft (illegal boxing)
(2) D knew or should have known that P made a mistake, AND (3) D knows or should have known that P would not have consented to the contact had the mistake not been made.
Duress
Imminent threat of physical harm. Consent kicking you in the leg or Ill fail you. NOT duress. Threat of Physical harm to others Close relatives. But in that sense, its just emotional harm, so very limited
Incapacity
Self - defense
the privilege to use reasonable force to prevent threatened harmful or offensive contact or confinement
the act is no longer tortious
When
One is privileged to use force when she actually and reasonably believes she is in imminent danger of bodily harm
Believe is enough, not have to be real. Justification: cost of refrain acting is huge, possibility of imminent danger. Dont have to consider things you have to overturn the threat. Even sword v. gun. He can pull his gun out. (Indiana Jones) Can plead self-defense even mistakenly (but reasonably) thought hes under attack. Courvoisier v. Raymond
Only against Physical invasion: Things that are battery to you. initial aggressor cannot respond to other's self-defense.
Hybrid rule: you can use proportionate, unless something less is sufficient to repel the aggressor. Duty to retreat (Restatement) : If you can escape, then no need to use proportional force. (Necessity rule) You can use the same amount of force without retreating. No retreat. (Proportionality) If too much force, negligence. . Brown v. Robishaw
Minority rule: you have liability for any injury to an innocent third party. You bear the risk of missing.
can't intentionally harm a 3rd party in self-defense, battery.
Defense of others
Reasonable believe that she is in serious bodily harm. Depends on jurisdiction. Proportionality rule or necessity rule. majority rule: no mistake. if the ostensible victim isn't entitle to self-defense, then you are liable. minority and restatement rule: reasonable mistake is allowed.
Defense of Property
Not enter by force:
Request them to leave first. Then use force.
Restatement (minority rule)/ Castle doctrine: no deadly force unless entering dwelling
you're entitled to use deadly force if someone is breaking and entering a dwelling
Cannot be malice: wasnt intent to deter, but to make injury. Lack of notice contribute to the courts determination of malice. NO take the victim as you find him
Recapture of property
One is privileged to use (non-deadly) force to recapture property that was (1)not voluntarily relinquished when (2)in hot pursuit of the trespasser and when (3)claims to ownership are not contestable. (1) timing: reasonable amount of time (2) Wrongful taking or conversion
if under a claim of right, no recapture. Kirby v. Foster Except Fraud, treated as taken from you involuntarily.
Necessity-partial defense(excuse)
Interference with anothers property is excused when the interference is necessary to prevent harm of greater magnitude than it causes. Ploof
Constraint necessity to the use of necessity to ones property remove defense of property
Damage Pay only actual damage: When one, out of genuine necessity, deliberately transfers a loss to another to prevent a greater loss to herself (private gain). (proxy to unjust enrichment)
liable because affirmative measures were taken to secure the boat, unjust enrichment. Vincent
Public necessity: benefit others. no damage at all. Justification Utilitarian: What action will generate least cost and most benefit? Deontological:it's wrongful to kill, no matter what the consequence is.
when there is no right outcome, deontological not very useful. Moral catastrophe. Difference b/w act and omission. (kill people v. let people die) Difference b/w knowledge and purpose
Economic justification of necessity: prevent hold out problem, minimize the lost.
Rationale Even not culpable, still impose a cost on somebody else. (balancing fault theory with public good) Incentivize the guardian to be careful. Non-reciprocal risk theory cannot explain insanity and necessity. History of Negligence Causal fault theory: even equal in terms of culpability, the person who cause it should pay for it. Incentive: take care of your action for the rule internalize all the cause of your action. Or foregone the activity all together. Strict liability: dont care why you caused it. General principle of common law: loss must lie where it falls. Act is sufficient. Require act /c require D to make a choice in order to be liable. Defense: didnt act or the act is involuntary.
admit the act, then raise defense like consent, self-defense. The Thorn case, Strict liability Inevitable accident Weaver v. Ward, (mistakenly shot another soldier while skirmish the gun) open up inevitable accident Lack of fault act as defense. Narrowly interpreted, limit to cases where P cannot be fairly descript as the cause of the result. Duress is not evitable accident, but "not my act". Smith v. stone. animal is passive instrument, if you bolt the horse, then you still did the act. Gibbons v. Pepper Forms of action (nothing to do with intent) Trespass
Direct and immediately force
Scott v. Shepherd directness test on Trespass: natural and probable consequence of D's act. (transferred liability) free voluntary intervening actor break the causal chain. middle person act under self-defense, not at fault Brown v. Kendall Need evidence of fault in all cases, two forms collapsed. Direct harm can be brought in case if its negligence. No need to differentiate direct/indirect harm. Plaintiff had to prove
Voluntary act by defendant; For which defendant was at fault (intentionally or negligently) Which caused (directly or indirectly) Harm to the plaintiff
Two theories for unintentional harm (Holmes) Criminalist Penalty for disobedience Liability lies only to be based upon personal fault A man acts at his peril (Voluntarily act + harm) strict liability As long the act was voluntary, the mental state of the actor is immaterial. Defense: didnt do it. Ds body is only a passive instrument of an external force. Cons: inconsistency
Ryland SL pocket
voluntary act by D not have to be on purpose
Ryland, building the reservoir is voluntary, not its breaking is not.
on Ds own land P didnt expose himself to the risk. D is in complete control. Sole beneficiary amounted to (a) Non-natural use of land
Not necessary to bring some new things on your land. Digging mine.
(b) To importing something not naturally there (c) To keeping a thing likely to do mischief if it escapes
Prototype: fire, digging mine is not. Horse escape and cause damage is not.
Give court discretion to decide. Either satisfy from a) to c), or explain Ryland to be only about a) Done for personal benefit Proxy for unjust enrichment. Non-reciprocal risk related. Caused harm to P even non-natural use, still have to satisfy proximate cause, the injury is not foreseeable. Cambridge Water Co.(toxic escaped and disspate in water)
Flip side: scare people from making new process, not economic efficient. Defense Plaintiffs fault caused the harm Act of God or coincidence altogether out of defendants control Plaintiffs assumption of risk in public places, e.g., traffic
Con SL: SL will only tell what is cheaper, but not require the train to pay the cheaper one. Act in a way that is efficient, dont have to pay anything?! Pro Negligence: act reasonably, no moral wrong; balancing cost-benefit, try to minimize the cost.
farmers to move the stack: we want to keep the training even they cannot completely avoid the risk. Society benefit is high enough.
Comparing the cost to fix out the risk and the harm train may cause put the cost on least cost avoider.
Modern negligence
a negligence standard to a property owner (Cricket, Golf) The risk has to be reasonable foreseeable. Corrective justice:
rectification or redress for an invasion of legal right, usually physical invasion, concern about fairness, no consideration of long term incentive effects.
Economics theory
Economical efficiency NG Gaining popularity in modern times Industrial revolution. More dangerous, more crowded.
seizure and lost consciousness while driving. Apply negligence standard, only liable if the seizure is foreseeable and he took no special actions to prevent it. Hammontree otherwise over chilling driving..
Raise of insurance
Allows you to insurant against your own loses.
subjective test: cling to personal fault, better in terms of morality. create too many rules, unfair result. no incentive to take care, no consistent prediction.
Justification
Provide a baseline. Incentive for people to improve their performance. corrective justice: pay only when act unreasonably. The standard is more efficient to admin. Don't have to determine what is a particular Ds capacity and what types of character should be considered. Reciprocal risk perspective: when people start deviating SL, posing different kind of risk to others, even not morally wrong.
Youth
lower standard: reasonable X year-old kid under similar circumstance. lack cognitive capacity, experience, give them time to learn. Example: is an 8 year girl reasonable to run for ice cream even when she is asked not to. Exception: adult activity, use objective standard. Adult activity: Risk, license/education involves, minimum age standard (motorcycle, driving )
license is not dispositve Minor beginning skier enjoy lower standard of care, for no license is needed for ski. Goss v. Allen No license needed for speed board, still held to the adult standard of care. Dellwo v. Pearson
non-adult activcity: Not only adult involving. Have precaution. Culture. Justification
non-reciprocal risk to other people incentive to be careful in a dangerous acticity
Agedness/Blindness
objective standard consider one's own condition before engaging in risky activity. (driving, Walking stick, blind dog) act as a reasonable elder/blind would act. Old man drive and struck on a kid after failing to stop. Roberts v. Ring
not alert enough as a reasonable person. irrespective of age.
Insanity
No Notice: Defense b/c cannot take precaution. Sudden delusion and hit you, no negligence but battery, unless you are aiming to squash a coconut. Notice: You have a duty to act reasonable under the condition Breuning the same as agedness and blindness, have to curtail or exercise particular self-restraint in order to avoid liability, take precaution.
If it's too dangerous for you, then don't do it. Exception: institutionalized patient injury the paid caregiver. No negligence.
Assumption of risk
Drunkenness
no exception. If you not sure about your alcohol sensibility, then take precaution not to drink that much. narrow exception: involuntary intoxication (not at fault)
Special Skills
Exception when the person expressly hold out. Otherwise only ordinary level of reasonable person. Has to be representation that people reasonable understand.
otherwise hard to draw the line, destroy uniformity of the standard of care
Exception when engage in certain kind of activity that reasonable requires higher standard Comparing with the other people who are reasonable engaged in the same activity.
How to draw the circle. How do you find the universe of people that you compare it. Apply reasonable person in the special activities when court can define with special specificity that who is engaged in this activity. Lawyers, doctors that have licensing system (not dispositive, but allow the court to find the discrete group easily.) Climbing guide, even no license, you can still see who is engaged in this activity.
Pros: protect people that being hurt Cons: discourage learner to attempt Restatement: Different standard of care only when inexperienced v. driving instructor, not v. pedestrian Calculus of Risk Terrys Calculus of Risk
The magnitude of the risk The value of the thing risked The anticipated benefit from the risky activity The probability that the risky activity will result in the benefit The probability that the benefit will not be attained without the risk activity
Blyth (pipe frozen) Burden: cost of lying the pipe deeper, not remove the ice, P: probability that harm will result in a lower ground. L: damage it will do. Since P is sufficiently low b/c of statistic likelihood, PL<B, not negligent Carrol Towing Co. P: probability of barge breaking away L: the gravity of resulting injury: sinking, lost.... B: have bargee on boat at nigh, burden is too high, not negligent. But on daytime negligent to fail to have bargee. compare the result of different precautions
keep the wire away from telephone line v. hanging it on top of pedestrian. The later pose more harm, so not negligent. Cooley v. Public Service Co. PL?B is about multiple precautions and probabilities. Without Bargee only affect the risk of sinking, but still other harms like lost. Carroll Towing Co.
Sometimes cannot identify the precautions, effective in different magnitude. D has to weigh different precautions. Calculus all the PL and sum them. A court will not do it. Only identify one or two of the most possible precautions and calculate it. (usually Ps job.) Pros create economical incentive, promote efficiency Cons
Polycentric problem:
Evaluation of a particular Ds conduct may require an unusually complex technical analysisvariables appear to be independent, but then turns out to be interacting with each other too much discretion, and court is not suitable for that--> use proxy.
As long as due care, dont consider the level of the activity. Never ask should they engaging the activity at all or what level could they do?
Strict Liability: consider both the level of care and the level of activity. The only way to encourage the actor to consider the magnitude of their activity. Internalize the cost of their behavior.
Risk averse: overvalue $10 than 10% to get $100. Insurance. So over investment in safety.
Additional precautions should be tested at the margin:
when marginal precaution yields zero benefit, stop. Even the total precaution is lower than total benefit.
Discontinuity,
small error in level of care have great differences in the outcome, Induce higher level of care than SL. SL: indifference to improvement
Epstein: contractual case use negligence; Stranger, use SL, b/c cannot negotiate beforehand. Maybe the market is sufficient to allocate of the risk. People are engaging in risky behavior but they will get paid higher.
If a given custom goes against negligence, then allow industry to exculpate themselves. Disincentive to develop new safety devices. If market is not efficient, then dont want custom to be dispositive. But on the other hand, custom implies the feasibility of the precaution. In house regulation: consider give people incentive to set high safety standard (w/o incur liability), as well as customer's reliance on their higher standard. At trial jury still use ordinary reasonable person standard
For medical malpractice: compliance with custom is practically conclusive evidence of non-negligence. (As a defense)
P still entitles to response it. But P has to rebut the presumptuous of conclusiveness: unless P demonstrates that the custom is unreasonable under reasonable person test, juror should rule conclusively under the custom. Is there a custom, what is custom, whether Ds act comply to the custom? The evidence of custom is still presented to the jury, Practical conclusive =/ completely conclusive.
Glaucoma test under age of 40. reject the custom standard b/c the test is so imperative for this particular patient.
Helling v. Carey
P use custom as a sword (deviation from the custom): no longer practice conclusive even in medical cases.
Defense: assumption of risk. Waiver. But in medical care cases, doctor is far more knowledgeable than the patients.
Rationale:
jury are ill-suited to decide technical questions. A lot of negligence in medical practice will be disruptive to the system. People interact with doctors more frequently, more cases coming out.
Standard of care:
same standard for all practitioner. a doctor must use that degree of skill and learning which is normally possessed and used by doctors in good standing in a similar practice in similar communities and under like circumstances.
Error in judgment:
measure whether someone is negligence at the time they made the decision. Avoid using hindsight bias. It's hard for jury to forget bad things.
Limitation of use
P uses as sword. If D use as shield, not enough, not per se non-negligent. statutes are often minimum standard. Plaintiff must be within the class of persons sought to be protected by the statute Plaintiffs harm must be within the class of harms sought to be prevented by the statute if look at the statute as hand formula calculation, you have to make sure that the kind of case is the cases that the legislature have considered about. Otherwise the cost is very different, should give to the jury. But this rule is a little bit fuzzy to the negligence per se rule. counter-argument: predictability. Other people rely on the standard set forward by the statute. the statute is targeted to prevent the spread of disease, not sheep falling overbroad. Not the group of people, not the kind of harm that the statute is intended to protect. Gorris v. Scott
Shyne (a practicing chiropractor cause patient paralyzed) even have license, still liable. Unless it's lack of training that leads to no license. Administrative requirement that a given device be approved by the FDA is only a tool to facilitate administration of the underlying regulatory scheme, not to impose a standard of care. Exception Restatement: violations of statutes may be excused when compliance would involve a greater risk of physical harm to the actor or to others than noncompliance. Also have the excuses of necessity, emergency, incapacity, lack of knowledge of the need to complyn, Negligence standard for violation of statute, can argue that exercised reasonable care.
Read into exception to statute Limit the claim to the targeted group of people Water down a little bit
Ross v. Hartman
Judicial Per Se Rules Claim created by the statute: all conditions are in the statute, no need to look at elsewhere, not as evidence of negligence (common law claim) Implied Federal cause of action
Does the statute create a unique federal right in favor of the plaintiff (is plaintiff one of the class for whose special benefit the statute was created)? Is there any indication of legislative intent to create (or deny) such a new cause of action? Is it consistent with the underlying purposes of the legislative scheme to imply such a cause of action for the plaintiff? Is the cause of action one traditionally relegated to state law, in an area basically the concern of the states, so that it would be inappropriate to infer a cause of action based solely on federal law? a) Implied in the state statute. b) Federalism.
Federal law that prohibit corporation from giving donation to presidential election. On the face no private cause of action. If the purpose of the statute is to protect the integrity of the political process, then the shareholder is not the targeted group of people. Cort v. Ash
Counterargument: to prevent individual shareholders money being used against their use. controlled by state corporation law. But this issue is
The statute provides for the creation of administrative remedies and regulations. Furthermore the statute specifies that the school district shall not suffer any liability in connection with the tests. So no private civil action for school failing to examine students for scoliosis. Uhr
Judge and Jury Rule/standard argument Rule: Predictability, clarity. Easy to settle.
Normally the question of due care is left to the finder of fact but when the standard of conduct is clear it should be laid by the courts. stop, look and listen is rule of law. Goodman (Holmes) But many of negligent case is dependent upon circumstance, a certain rule of law is not suitable, sometimes the result is bizarre and is costly to modify Judge set the standard, juror are more experienced with the fact. But when a state of facts repeated in practice, the court will have the experience to say whether its blameworthy or not, with the exception when the standard is rapidly changing. Even when fact appearing with some variation, judge will gradually acquire a fund of experience which enable him to represent the common sense of the community in ordinary instances far better than average jury. Jury is only needed when there is ambiguity, and help to create rule.
Judicial control
Instruction: error or prejudice Keep certain questions of fact from the jury
Judge decide what evidence can infer negligence, jurors have to say whether negligence ought to be inferred.
Summary judgment and direct verdict: not going to the jury at all.
No genuine issue of material facts and entitled judgment as a matter of law Direct verdict: no reasonable jury could find against the party
Rationale:
Fear that jury may abuse its unlimited power against the established principle of law the principle of distributive justice: like cases should be treated alike. Passion and prejudice. Deep pocket problem. Hindsight bias counterargument: bring the sense of community to estimate reasonable care. A check against officials and professional people.
jury decides whether the accident was more probably the result of negligence. Justification
P lack of access to information. D is in a much better position to know what happened here. Sort of flipping the ordinary presumption here.
Requirement
Accident is of a kind that ordinarily would not happen absent someones negligence
ordinarily would not occur is not enough. Boat disappear at sea. No Res ipsa loquitur even when the condition of the boat is good, b/c the sea itself contains many hazards. Walson v. Lambersten
whether the probability that D was negligent, given the occurrence of the injury, is greater than 50 percent.
Highly number reliance. escalator handrail suddenly stopped. the probability that it's b/c negligence is much higher than other reasons. Colmenares Vivas Car could swerve by malfunction instead of driver's negligence. no res ipsa. Galbraith v. Busch
Pfaffenback
Guest on a car: use res ipsa only when establish gross negligence. Galbraith v. Busch assume more risk, in a better position to observe whether D use reasonable care.
Accident caused by an instrumentality within the exclusive control of the defendant; Hotel owners
hotel is not in complete control of their guests behavior, cannot use res ipsa. Larson D was well-informed that their guests are dangerous, given the notice, the power that the hotel has control is whether to rent the room. At that point they had exclusive control. since identified the negligent act, don't have to rely on res ipsa. Connolly v. Nicollet Hotel
Exclusive control doesnt have to be physical. Legally exclusive control is enough. (Duty)
A D has nondelegable duty of care to maintain the escalator in a safe condition, no need to be in exclusive possession. Unless the duty is delegable, the doctrine is not defeated if D had shifted physical control to an agent or contracted with another to carry out its responsibilities. Colmenares Vivas if everyone can press the button to stop the elevator, no res ipsa. For D to protect themselves: by contract. Indemnify.
Accident must not have been due to any voluntary action or contribution by the plaintiff
Trial
Satisfy the three requirements only suffice to establish a PF case. Then shift the burden to D. D can rebut the inference by showing facts that are inconsistent with the inference. Car brake problem: D can defend that he only got the car for two weeks, don't have a chance to check it. D used all possible care
D till has defense that P is contributory negligent (negligence not in the res ipsa test, other kind of negligence).
negligent in later behavior that further injuries oneself
Restatement: didn't say "exclusive control", but "other responsible causes are sufficiently eliminated by the evidence"
Causation
Cause in Fact
But-for Test: Had D not so conducted, P's injury would not have resulted. Concurrent cause: (substitute for but-for causation)
Category I: the conditions are individually necessary but only jointly sufficient.
But-for test applies
Category II: Multiple sufficient causes acting concurrently. Alternative one: Look for Culpability
Two fire at the same time, one by man, one by nature. Kingston
if both by man, joint tortfeasers. the first fire shouldn't liable for all the damage, but can argue lost of opportunity. if the other is natural fire, then the house will burn out anyway. Nobody is at fault.
Alternative Two: specify the but-for test, limit the harm to when and how
Drop down the bridge, touch a bare wire and die. Dillon But for the wire being un-insolate, the boy wont die this way at this time. the other cause will also be sufficient to injure, but never came into operation. The first cause is still the but-for cause. But for fire A, the house wont burn when and how it did. (two subsequent fires, first man made, second nature.) Damage: compensate the amount of time that wire could the boy to lose. 20 seconds.
bump into water from a barge and drown, no life preserver. Grimstad
The reason we want life preservers on broad is to substantially lower the risk of drawing Overdoes and the patient died. Zuchowicz Overdose is prohibitied is to avoid side effects that lead the P's death.
misdiagnose cancer, reduce the survival rate by 14%. 39% --> 25% Herskovits
But for the Ds failure to diagnose the cancer, there are still 61% (100-39) chance that he would die. Damages: If chance of survival > than 51%, full compensation. Otherwise .limited to the amount of money lost due to early death, proportional. problem: overcompensate in cases that P would die anyway, and undercompensate in cases where delayed diagnosis caused death. systematically overtaxed. Hesitate to compensate increased future risk. require injury to establish the PF case, otherwise too much administrative hassle Culpable Cause of Ignorance
Liable for created a lack of information. Don't have the information to answer the but for causation, the reason of which is resulted from some negligent evidence. (but if the hotel put up a sign, still no information)
Several Liability (Modern law): Each joint tortfeasor is liable only for her individual contributions Joint and Several Liability: each joint tortfeasor is liable for the totality of the Ps harm, though others may be responsible to an individual D for part of the damages.
P can sue one alone and recover all damage. D can then partial indemnify other Ds. Equitable indemnity / Contribution: D who made more than his pro rata share can seek a partial reimbursement from other joint tortfeasors.
Alternative Cause D has to be part of close class of persons one of whose cause the harm.
Nobody outside the lawsuit could be the cause.
P cannot determine reasonably which it was. One of the two shot P, but dont know which one it was. Summers v. Tice
based on culpability negligent in standing in triangle and shot, both defendants committed the same negligent act.
Culpable Knowers Res ipsa doctrine applies to medical negligence case when P received unusual injuries while unconscious and in the course of medical treatment. Ybarra v. Spangard
shift the burden of prove. not closed class, not all negligent. Use joint liability as a tool to get information. Each D get off the hook by they are not liable or others are liable. problem: conspiracy of silence based on information asymmetry Cannot identify whos in exclusive control: no res ipsa Drown in a swimming pool when there is no lifeguard or sign, Liable for created a lack of information. Haft v. Lone Palm Hotel
Market Share Liability who contribute to the creation of a general risk of injury, avoid but-for cause. identical and share the same defective qualities (Fungible, identical product.), join limited time span of manufacturer, and assign liability based on the market share. Each is only severally liable for its share.
don't know who make this specific drug, but all of you made this defective drug, you all can be liable for someone. If you think about the time frame, and put liable for every manufacturer that were in the market at that time frame, and assign liability based on the market share. Sindel Lead paint is not fungible product. They have different formula and different amount of lead, different amount of harm, cannot include manufacturer that wasn't in the market. Skipworth Compare with joint liability Similar: both identify a group of people without establishing the particular causation. Difference: limit responsibility to the percentage rather than responsible of the whole amount once found liable. Presumption: Market share is a good proxy of the plaintiffs of such kind of products.
Assume in a wide range of cases, manufactures turn out to pay the harm from their product according to their market share. Some overcompensate, some under-compensate. The only time court allows to use marker share theory is that they think there are a lot of cases of this kind. So Try to put more parties in. based liability on risk creation. No close class requirement: Ds make up 90%, still okay. But encourage to bring more or most parties in. (vast majority preferred.) if not marketing in that period of time, not liable. No exculpation evidence could be allowed in individual case, recovery in proportion to national market share. Hymowitz the fortuity in no way diminish the culpability of a defendant for marketing the product
Justification:
reduce the likelihood that the real D will escape liability Diminish Ps burden to prove Apportion damage
Problem: violate traditional causation rule. inculpate someone who didn't cause harm to the plaintiff.
Proximate Causation
Arbitrary Space- Time Test
too remote in space and time to establish proximate cause trains spread spark and burn a house 130 feet away. Ryan damage incurred are not the immediate result of the negligence of D, not the necessary furtherance of the fire. Problem: no way to draw a clear line.
Harm Within the Risk Test the restatement approach X is the proximate cause of Y if Y is among the class of harms whose risk made it negligent to do X.
statute requires to pen the sheep b/c of disease, not drown. its not the kind of risk that the statute is trying to prevent. So its not negligent per se..Gorris v. Scott: (can still be negligent.) then P has to prove negligence: use hand formula. Being hit by a falling tree is not within the risk that makes driving too fast negligent, not the proximate cause. Berry v. Sugar Notch Borough The risk of leaving Nitroglycerin on a table is the possible explosion. If a soup, not negligent to leave it on the table. The harm materialized is the bottle hit a child, not proximate cause. The risk of putting unlabeled poison is that someone will eat it by accident. But if putting the poison near a stove and its explode, the label is no longer the concern. Should figure out how possible poison will explode, how close, how much heat. Then Run PL ?B test, list all the potential dangerous. Entrust Loaded a gun to a child, child drops it and hurt her toe. Its doesnt matter whether the gun is loaded. If handing an unloaded gun to a child, not negligent. So the risk we are concerned is loaded guns risk, not dropping. But if argue that even give a unloaded gun to a child is still negligent, then can argue that the gun is too heavy, harm within the risk. Third party negligence: Last wrong doer exception (rescuer) The risk that someone will be subject to medical mistreatment is within the risk of why making driving carelessly negligent in the first place. The risk is not only you hurt them, but make them subject to further injuries. Atherton v. Devine P couldnt stop at her station due to Ds negligence. Then P was arranged in a hotel, where the lamp explodes and injured him. Central of Georgia Ry. v. Price: The injury resulted is not within the risk of failure to stop at her station. different with the Atherton case b/c describe the risk in a different way. D cut into corner and P bumped into it. Then was hurt while warning other cars for the collision. Marshall v. Nugent when counting why D's cutting into corner is negligent, the risk includes subsequent injury (b/c negligent is still ongoing) Third party intentional wrongdoing when Ds negligence consists of exposing the injured party to the act causing the injury, then still liable. P couldn't stop at her station due to D's negligence, and on the way walking back, got raped by a soldier. Hines both railway and the soldier are the proximate cause, joint tortfeasor. Justification: secondary economic loss too burdensome, available insurance. Policy reason.
Problem:
description. Matters a lot here what you describe the negligent in the first place.
collapse with the determination of negligence. Whether Failure to have a bargee is negligent? Identify particular harm that might flow from that. Run Hand formula. Whether failure to have a bargee is proximate cause? Whether that harm is something within the risk of the negligent. Look at the list of the Hand formula. generalize or specific. Ultimately the court has to choose the characterization.
Foreseeability Test X is the proximate cause of Y if Y was among the type of harms foreseeably caused by X, even if the extent of harm which Y represents or the manner in which Y came about was not foreseeable.
manner:
Oil on the dock: no matter by whale vomit or by human.
negligently discharged oil on the water and it caught fire b/c of smouldering cotton waster or rag falling from the wharf. Unforeseeable, not proximate cause. Wagon Mound
lamp explode after failure to stop at her station. Unforeseeable. Price got raped after failure to stop at her station and has to walk back, foreseeable. Hines Ambulance collision exaggerates the harm, foreseeable. Atherton leaving paraffin lamp outside: both burning and explosion are foreseeable, same type of harm from a known source of danger. Hughes counterargument: explosion is distinct from burning, two types of harms. Don't have to be likely to happen in order to be foreseeable.
Justification:
focus on culpability, create incentive people to take precaution (only can take precaution against the risk they can foresee. only select their act considering cost of people that they can foreseen. If the goal of torts is compensating innocent people, then not a good test. counter-argument: if acting negligently, sure theres some harm foreseeable. Don't make the D get off the hook just b/c hes lucky and the harm didnt fall within the foreseeable harm. hard to describe the events that led to the harm, i.e., whether a different harm or just different extent. Negligence in knocked a cement cover into a vat: splash some walk-by is foreseeable. But the explosion is a different harm and is not foreseeable. Doughty
X is the proximate cause of Y if X is a but-for cause of Y and there are no intervening causes (start from the premise that whatever but for cause is also the proximate cause. then identify voluntarily human act or abnormal conjunction events ) Intervening cause
Free voluntarily human act (intentional conduct)
Third party intentional wrongdoer always breaks the causal chain. (but not in Foreseeability test). if intervening person act maliciously, then free voluntarily intervening actor, broke the causal chain, original D is no longer proximate cause of the injury Watson v. Kentucky Exception: Free intervening actors act on the opportunity provided by D. collision b/c D's negligence, P's good scattered and was stolen. Brower
Not free intervening actor when the following non-negligent act is not causal contribution to the original negligence.
Longshoreman's decision to keep working is not a contribution that intervened the negligence of the mis-stacking, just acting on the negligence situation. Not an act that changes how the events will unfolding. (the bad will still fall on some other who work on it. Gyerman He knew its dangerous but act anyway. assumption of risk, not contributory negligent.
Involuntary act
Physically compulsion, reflection
Steamer negligently hit the ship. The captain's following act was out of necessity, not voluntarily act. City of Lincoln Jumping off the train out of reasonable apprehension of necessity, not free voluntarily act. Tuttle v. Atlantic City R.R. Rescue doctrine: if a tortfeasor creates a circumstance that places the tort victim in danger, the tortfeasor is liable not only for the harm caused to the victim, but also the harm caused to any person injured in an effort to rescue that victim. The rescuers act doesnt count as voluntarily act, something like necessity. The fact that he might be contributory negligent doesnt break the causal chain. Wagner If the rescuer acted unreasonably, then covered by comparative negligence Acting out of the ignorance of the circumstance of the likely consequence. A ask B to hand over a poisonous tea to C. If Bs ignorant, A is the proximate cause. But doesnt mean that B cannot be a proximate cause. Even if B should know. B is also negligent in handing C the tea. A and B are joint tortfeasors. But if A said to B hand the poison tea, B did. Then B is free intervening factor. Wagon Mount case could be argued this way. (spread oil on the water, burned the wharf) Negligence doesnt break the direct cause proximate causal chain.
Statistical unlikelihood. Wind in the forest is not an abnormal event. Conjoin As action (throwing cigarette) in a normal way. Tornado after the cigarette: abnormal event, As no longer the proximate the cause.
The conjunction of events is a cause-in-fact of harm Conjunction of events occurred without human contrivance
Is the statistical unlikelihood rise out of human plan? Somebody. is trying to make the conjunction event happen together.
Events which conjoin are independent of each other
If throw the cigarette while the tornado is blowing, no longer coincidence. You act on the condition, not the condition acts on you. Could not be a preexisting condition that. A hit B who falls on the ground stunned and bruised by the blow, then killed by a tree crashed to the ground. A is the cause of the bruise, not Bs death. (coincidence)
X is the proximate cause of Y when X is a substantial factor in producing the result Y Problem: Still have to decide what is substantial factors. Court typically by asking is it foreseeable or within the risk. Negligent Inflicted Emotional Distress (NIED)
NIED: physical injury resulted from the emotional injury. IIED: Seeking recovery specifically for emotional stress that is intentionally caused. Or as parasitic damages
Limitation
Zone of Danger rule:
if you are reasonable fearing for your personal safety, you can get damage even no physical injury. Limit the group of people whos available by drawing the zone of danger. pros: D owes bystanders a duty of care b/c they are within the area of risk created by his conduct, injury is foreseeable. cons: too arbitrary
Dillon Rule (Foreseeability Test: whether the emotional distress is foreseeable from the accident)
(1) whether P was located near the scene of the accident (2) whether the shock resulted from a direct emotional impact upon P from the sensory and contemporaneous observance of the accident or found out later. (3) whether P and the victim were closely related reject the Zone of Danger rule, majority rule (30 states), also restatement rule. Dillon v. Legg
mother can recover NIED for her son's death even she's outside the zone of danger.
Duty
Palsgraf rule: one has a duty to refrain from acting in a manner which could injure any foreseeable
plaintiff.
Question of whether the harm that materialized was within the class of harms that made the action negligent is a question of proximate cause, not duty
Affirmative duty to make it safe. Duty to inspect the premises for hidden dangers. Doesnt make you the absolute insurer. Cannot say its omission.
Licensee: who came on the land with the owner's consent, social guest. No mutual financial benefit.
dinner guest
No affirmative to make things safe, only to avoid dangerous or conceal dangerous that is apparent known or should be known to the occupier.
a warning is enough. Omission will in some case be treated differently. Yania, if come to visit for business purpose, invitee. If Neighbor come to visit, licensee. Since P was well-aware of the danger, not
concealed danger. Owner is not liable The invitation can be assumed to be the act. But in Yania, verbal act doesnt count as act. Mental rather than physical impact. Tension! Try to solve these cases as duty cases.
Trespassers:
who had no right to be on the land no duty to take reasonable care for his safety. No affirmative duties as Moch. Palsgraf also holds. Do have duty to doing things affirmatively hurt the trespasser. Only refrain from willful and wanton act. Now, more sympathetic to trespasser, maybe recklessness. Exception
Willful and wanton exception: construct the exception broadly. once the owner has knowledge that there is trespasser on the land, he has to act reasonably to his safety. Excelsior Wire Rope: if you know there are children here regularly but continued to run the machine w/o checking impute wantonly disregard (require knowledge that this child was there expand to children regularly here) knew that there is certain possibility that children is there, but not bother to check. Gould v. Debeve: Disregard of screen in light of statutory requirement--> treat as willful, although it's not the kind of risk contemplated in the statute. Attractive nuisance doctrine:
allows infant trespassers to recover when lured onto D's premises by some tempting condition created and maintained by D. Sometimes require affirmative duty to keep children to safe. No longer no duty b/c children are trespasser. Sioux City v. Stout: turntable attracts boy and he got stuck. This is the kind of thing you should have known that children will climb on. Possible defense: exercise reasonable care to make sure children dont get hurt. Limit to children: From Ds perspective, individualize the potential victim make the precaution hard to make. (adult but lack capacity). Highly categorized. Restatement limits the application to artificial condition swimming pools Natural conditions: trees, pond. Maalouf v. Swiss Confederation: wrong decision. A hill attracted the kid, a wire caused harm. The rule to focus on artificial condition that ATTRACTS the kid. (you have to have reason to know its gonna attract children to your property) Shouldnt be nuisance b/c what attracted him is natural.
No duty to be a good Samaritan. No duty to a trespasser when there is no affirmative act. Buch
Trace back to the last affirmative act, setting up the machine. No negligence, so no affirmative act. If invited, the act of the invitation is an act, everything that follows is the duty of the inviter.--> exception to Palsgraf rule if the machine is damaged by the boys hand stuck in that, can get damage. enticing someone to jump into the water is a negligent verbal act, but not the proximate cause since P is also a strip miner, his status is different than in Buch, free voluntarily actor.Yania If P didnt know the puddle, then D create the dangerous condition --> source of peril exception. Failure to come and operate on a patient. Treat as pure omission. Hurley v. Eddingfield
If by the time getting on the car he knew he will have seizure, then is acting negligently. By the time the train stopped, no fire yet and no need for fire fighter. the affirmative act is non-negligent.
Embedded omission: Whether a previous affirmative act created the dangerous condition.
Create a dangerous condition, even not negligently. The duty is only to act reasonably, not absolute to make everyone safe.
The line: Foreseeability of the peril
Example
Either warning or light is reasonable act when digging a manhole on the road. Newton Give a warning is reasonable act. Montgomery Restatement: a prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm.
Justification:
No obligation unless you create a danger. Not worry about best rescuer. They were the ones who create the danger. Reasonable place to draw a line. [Gratuitous] Undertakings
Negligent in stopping the aid, engender reliance and put them in a worse position. rather an act then omission, can also think in terms of embedded omission, lost chance doctrine in causation Restatement:
one who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking if his failure increases the risk of such harm, or the harm is suffered b/c of reliance upon such undertaking. even done wrong, if reasonable for him to do in the first place, not liable.
People get sick at store, store has no duty to come to help. But when take people to infirmary and fail to treat them, the duty. Zelenko v. Gimbel Bros.
Can be gratuious
Majority rule: Promise engender reliance made P is a worse position than w/o the promise. The willingness to impose liability on D is not willingness to impose liability on omission. Those cases are not pure omission. Involve failure to act in a series of complex act. Marsalis v. LaSalle (promised but failed to keep the cat to see whether it has rabid.) Voluntarily provide some service. they can fulfill their obligation either by continuing the practice or reasonably dispelling the expectation. Erie Railroad.(railroad canceled watchman who has been in the crossing for a long time)
The fact that the person had expectation made them worse off when the watchman failed to do his job.
Old treatment: Contract without consideration voluntarily held D to move casks of brandy from one cellar to another and split a lot of brandy. Coggs v. Bernard more like promissory estappol Bring in torts: promised but failed to secure the ship and caused damage Thorne v. Deas the torts doctrine that treats promise as undertaking vitiate the contract doctrine that promise w/o consideration is not enforceable. Has to do something affirmative to be an undertaking. counter-argument: But from a Ps perspective, doesnt matter whether they try to insure the ship, catch the cat, or just
Exception
Shield of liability statute: limit liability, limited in scope, only extant to health care providers.
When there are no better rescuers, want to give incentive for people to rescue. Special Relationships
Parent-child, spouses, siblings, lawyer-client, landlord-tenant, doctor-patient Rationale: more capable, know more and in better condition to rescue. Voluntarily assume the duty.
Counter-argument: legal duty doesnt matter. Only matters when people wont live up with it. Moch rule is to maximize liberty. If you voluntarily assume the duty, your liberty is not constraint.
special relation to control Perpetrator from hurting others Duty of confidentiality is not absolute. Need to have fairly specific information so that its believable that it will be carried out. Specificity matters a lot. Duty to warn: doctor-patient, attorney-client.
people in charge of mental patients or prisoners; parents to children. often in a unique position to control. Tarasoff: Psychologist has specific information that his patient want to kill P, so has a duty to inform.
Spouse has legal recognized shied, no any affirmative duty to control their spouse.
A fair number of court will hold relatives on duty if they have very specific knowledge under Tarasoff.
Affirmative Defense
Contributory Negligence
if P is negligent and his negligence contributes to his injury, its complete bar to recovery.
Duty on D to show contributory negligence. D put up a pole on the road. P ride a horse violently and fail to notice the obstruction and fell down, no recovery.
Butterfield v. Forrester
Justification
abosulutist moral view: D no longer solely culpable (Ps negligent kinda cancels out Ds negligent. Pick people specially responsible/culpable to assign the lost on them. If Ps also negligent, no reason to let D carry the whole damages. Duty to oneself greater than duty to strangers, so are more responsible, even if not more culpable. Efficient incentives to take care:
Problem:
In a con neg jurisdiction, when P would be liable for all his lost if not take precaution, D never gonna know whether P should take the precaution, so they also have to take precaution .--> over-incentivize precaution. (socially aggregate, would be a waste) Train spark burning Haystack: damage 100, railroad can fix it for 50, landowner can fix it for 25. For each party separately, PL <B, if not take precaution, then negligent. Neither know whether the other party will take the precaution, so they all have to do it. but only one is sufficient. --> over investment. PF case of contributory negligence
Negligence
statute against over speeding as a proxy for reasonable care. Butterfield v. Forrester Longshoreman continued to work after noticing the unsafe condition, but for cause of the injury, but not negligence b/c P acted reasonably in continuing to work. The cost for him to stop working is too high. Gyerman
right based approach: can do everything you want on your property. Even haystack get burned, don't have to move. Using his own property v. Invading law and economics analysis: If train operating reasonably, then shouldnt be liable. If you leave your haystack in a range that even a well managed train could throw spark, you are negligent. act negligently to a known danger, also AOR. Assign liability efficiently--Calebreisi Compare the farmers cost to the cost of the railroad
Calebreis: do a rough guess. Even give the entitlement to the wrong side, if transaction cost is low, can be reallocated by negotiation. In real world, assembly cost, administrative cost If farmer get together against railroad, collection problem Judges dont use this approach.
Cause in fact
Longshoreman is alleged contributory negligent in failure to report the unsafe condition to his supervisor. No cause in fact b/c cannot prove if he had reported things would happen differently. Gyerman
Proximate Causation
the harm occurred is not within the risk that make the Ds behavior negligent, not proximate cause. The reason of negligence is ignore the risk of slip, but P ended up injured when the ice house buckled. Smithwick Courts reluctant to apply contributory negligent. B/c the consequence is a complete bar on recovery. specify the risk: Over speeding and the extent of car accident not within the risk/foreseeable that someone hit you, you spin out, and damage severely. (lose control of your car) Mahoeny distinguish b/w before accident or contribute to the extent of harm: Failure to wear seatbelt Test: Is person contributing to outcome in a deliberate way? happened before the accident, only contribute to the extent of the injury, not the accident itself Derheim weak argument: When you making up PF case, you make up causation b/c conduct and injury. Not the conduct with the accident. the bargee case, negligent to the extent! (if there were bargee here, can save some lost.)
Alternative appraoch
Apportion damages. Shift to comparative damages. Spier Limitation-- Last Clear Chance
A plaintiffs claim is not barred by contributory negligence where a defendant has the last clear chance to avoid an accident with a negligent plaintiff because that plaintiff is helpless or is otherwise unable or unlikely to take further precautions against harm.
Requirement:
P can be just not paying attention.
P riding wagon, not paying attention when crossing the railroad track. Fuller v. Illinois Central R.R If P remains in a position to take care of himself, then no last clear chance.
Defendants negligence succeeds the plaintiffs in time (opportunity to avert danger) State of mind regarding plaintiffs peril (Restatement) Helpless Plaintiff:
(i) knows of the plaintiff's situation and realizes or has reason to realize the peril involved in it or (ii) would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance which it is then his duty to the plaintiff to exercise.
Inattentive Plaintiff:
knows of the plaintiff's situation and realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to discover his peril in time to avoid the harm
If D couldn't know that P is not paying attention, then no requirement of last clear chance.
D is not negligent in imposing a risk that is voluntarily assumed by P. --> no breach of duty and breach of care
employee knew the risk of the rack and informed employer. Not negligent to stop working, but assumption of risk.
Lamson v. American Axe & Tool Co
Rationale: Already compensated by his salary of the risk. Then allowing him to recovery equals double payment. So voluntarily assumption of risk.
no "reasonable" problem
Secondary assumption of risk
P was at fault (negligent) b/c P knew there was a risk and voluntarily assumed an unreasonable risk (could collapse into contributory negligence)
assumption of risk before incident
If think cases that ought to be barred for assumption of risk, think that plaintiff owns own risks & shouldn't get to recover. It could be reasonable for P to assume the risk given the burden faced (lose job). Don't collapse into contributory negligence. Still allow AOR if can say: a. Independent: AOR should be an independently valuable defense. If value independent liberty and P's right to choose risky behavior shouldn't get claim notwithstanding it doesn't collapse into any of the others. b. Primary: D did not breach their duty even though much cheaper to replace it.
Waiver of all claims for personal injury no waiver for injury due to negligence of the defendant A customer sees and understands the dangers of a ride in amusement park assumes the risk. Murphy AOR unless there is concealed risk.
express warning about the ride. But P suffered from abnormal occurrence. If unknown to the P, he cannot assume the risk. (harms within the ride test) Russo
Wild animal: so dangerous that you should not assume the risk strict liability, no way to make them risk. Inherently risk level is higher than people should assume. Justification Preventing unjust enrichment b/c P has already been compensated of the risk. D is less at fault Individual autonomy, freedom of choices
Like consent, not at fault when People consent to the risk. moral magic.
Comparative Negligence
divide liability b/w P and D in proportion to their relative degrees of fault.
Jury does a better job tracking fault then assign percentage. add in some more complicated decision making mechanisms that would impose administrative costs
pure comparative negligence Liability assigned purely in terms of relative fault Rationale: Does a better job in assigning on the basis of fault; threshold system Liability assigned in terms of fault, as long as the Ps fault doesnt exceed some threshold not as great as < not greater than
Problem: disparity in recovery
multiple parties
compare P's negligence to the combined negligence of the Ds or individual D, depends on jurisdiction. Partial indemnify: Apportion within Ds, depends on jurisdiction. cross-claim (both parties entitle some damage): if parties have insurance, then pay full amount. if not, then just pay the difference. Some Ds not in the lawsuit: whether P can recover the full amount of all Ds fault depends on jurisdiction. If true joint liability, then yes. rationale:whether P can recover the amount he deserves. What's the impact of insolvent party. Whether fair to D. AOR in Comparative Negligence system Most jurisdiction: fold into comparative fault. other jurisdiction Primary AOR: still bar recovery. like rebutal to duty and breach, affirmative defense. Secondary AOR folded into negligence determination. D cannot get summary judgment by establishing secondary AOR Last Clear Chance doctrine in Comparative Negligence system folded in negligence determination Settled Parties
McDermatt test: subtracting out the percentage fault of the settled party
more true to fault for the remaining Ds. Insolvent Party Several liability: P lost that part of damage Joint liability: apportion that amount among the remaining culpable parties (include P) XY not in the case, D3 insolvent, can only add D3s apportion in D1 D2