Escolar Documentos
Profissional Documentos
Cultura Documentos
law provides a remedy. Three Major Classes of Torts (1) Intentional/Fault: ie. Battery, Assault, Conversion, Trespass (2) Negligence/Fault: Acting unreasonably in a breach of duty. (3) Strict Liability/No fault: Liable only for causing harm, doesnt matter if care is proper or behavior was reasonable. ii) Sources of Duties Under Tort Law/Theories of Duty Corrective Justice: Righting a wrong which is, in most instances, morally faulty, intentional or unreasonably risky. Holding accountable to . Distributive Justice: Justice owed by a community to its members, including the fair allocation of common advantages and sharing of common burdens. Note: Justification for strict liability torts. Deterrence: Promotes people being more careful; affects fault-based torts only Process: Creating workable court rules Rules v. Standards Rules: Specific and inflexible. Usually provide bright lines that define acceptable conduct Ie. Speed Limits, one can never go above 40mph Standards: These define general behavioral schemes, but leave some room for interpretation based on the fact pattern. Ie. Reasonable Man Standard Sources of Tort Law: Common Law: This is how courts have defined different standards in different scenarios and torts. Like criminal law, jurisdictions vary in places, but some general standards have been set. Secondary Sources (Treatises and Restatements): These attempt to codify the already established common law into general guidelines. Who Decides Tort Law? Judge: if reasonable person could not find otherwise, judge rules as a matter of law Jury: if reasonable persons could differ (matter of fact) Policy Considerations of Tort Law -Critics contend: 1) Liability insurance costs too much; 2) Insurance has or will become unavailable for some; and 3) Tort liability is driving some products out of the markets (e.g. vaccines) -Response is that data shows a lot of people are being injured and seriously so. Compensation on tort claims is not that egregious considering estimated damages. Number of repeat offenders shows theres a need, too. 9 Problems w/ Torts: 1) Under-compensation - many claimants not adequately compensated 2) Overcompensation - some claimants are grossly overcompensated 3) Misuse of limited resources - too much goes to pain and suffering not enough to economic damages 4) Inefficiency of tort-liability insurance system - too much doesnt go to actual compensation 5) Delay in payment under tort system - claimant cant recover when needs the money most 6) Failure to deter or compensate - neither of the goals being met stuck in middle 7) Participation in the insurance fund-lack of reciprocity - some w/ no insurance can recover a lot but cannot be recovered against for a lot 8) Tort system lottery - can hit it big when you shouldnt, can lose when you shouldnt (all by chance), lawyers can press with litigation when they shouldnt w/ hopes of winning big $$ 9) Are lump-sum award and pain and suffering compensation justifiable? Money can be wasted, too much money paid for non economic damage.
INTENTIONAL TORTS
Single vs. Dual intent: Rule A (Single Intent): D intents to touch and it turns out harmful or offensive Rule B (Dual Intent): D intends to touch, and appreciates or intends harm or offense
Transferred Intent Two Forms: (a) A tortfeasor intends a tort on one person, but commits a tort on another. (b) Tortfeasor intends one tort, but accomplishes another. (c) Applies to all intentional torts except for conversion of chattels b/c of historical roots. Battery:
RS 18: Battery - Offensive Contact - need requisite intent RS 19: What Constitutes Offensive Contact - if it offends a reasonable sense of personal dignity)
must demonstrate both intent and action/result elements (Element 1) Intent: must: (a) intend to cause (b) contact that is harmful or offensive to or a third party (transferred intent) (a) Intent to cause contact is satisfied if either: (i) desires to cause the contact; or (ii) Knows w/ substantial certainty that the contact will occur; or (iii) As a result of transferred intent from assault: 1. desires to cause imminent apprehension of such a contact; or 2. Knows w/ substantial certainty that the apprehension will result. (b) Intent to cause harmful or offensive contact, satisfied if either: (i) desires harmful or offensive contact, or; (ii) is substantially certain the contact will harm or offend the Note: Single/Dual - Some jurisdictions require only single intent, some require dual. Single Intent: Intent to cause contact only Dual Intent: Intent to cause contact and harm Note: Desire/Substantial Certainty Distinction: Desire: desires the consequences of their acts, which constitute a tort. Substantial Certainty When the is substantially certain that her acts will cause the elements of the tort to occur. Sub-note: Not to be confused w/ recklessness, then tort would go under negligence. Recklessness is when they just dont care what consequences occur.
(Element 2) Action/Result: must actually: (a) either directly or indirectly, cause the (b) contact(with s body or items closely associated with) to result; and (c) this contact must be harmful or offensive (see below), Note: Contact must be tangible, as in the Smoke in the Face Case (Leichtman); however, this case only received nominal damages. (b) (i) Contact is harmful if it is a physical impairment of the condition of s body, or physical pain or illness. (b) (ii) Contact is offensive if it would offend a reasonable sense of personal dignity. It must be one which would offend the ordinary person, not a person unduly sensitive to their own personal dignity. May be something a reasonable person would find nauseating or disgusting. Note: Even if the contact would not offend a reasonable persons sense of personal dignity, but the is aware of s hypersensitivity, the contact is offensive.
Trespass to Land (1) Intentional entry to land or unintentional entry and refusal to leave. (2) Transferred Intent applies if someone intends to trespass and commits other tort, etc. Trespass to Chattels - Intermeddling w/ the chattel of another, at times even dispossession, but not complete conversion. Liability based on actual damage, rather than total value of chattel. Tangible? Doesnt have to be anymore, now clogging email works. (a) Ways to commit trespass to chattels (i) A trespass to chattel may be committed by intentionally: 1. Dispossessing another of the chattel, or; 2. Using or intermeddling with a chattel in the possession of another (b) Liability to Person in Possession (i) One who commits a trespass to a chattel is subject to liability to the possessor of the chattel, if, but only if: 1. He dispossess the other of the chattel, or; 2. The chattel is impaired as to its condition, quality, or value, or; 3. The possessor is deprived of the use of the chattel for a substantial time, or; 4. Bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest. must show (a) some type of cognizable harm, or (b) some type of dispossession Note: Intentional Tort: not dual intent type, dont have to know what youre doing is wrong, so long as you have intent to dispossess or intermeddle. Conversion of Chattels must intend to exercise substantial dominion over another persons property (chattel). Restatement (a) What constitutes a conversion? Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes w/ the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. (b) In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important: 1) s intent to assert a right to the property; 2) Extent and duration of control; 3) s good faith (this factors relevance has been wondered aloud by Sup Ct.); 4) The harm done; and 5) Expense or inconvenience caused Intangible Property: (a) Used to have to be tangible, now stock and such can be considered property capable of conversion. (b) Pearson v. Dodd put docs back before anyone noticed. could have sued for defamation. (c) Kreman v. Cohan and Network Solutions sex.com. Intangible but converted nonetheless. Damage Remedies b/w conversion of chattels and trespass to chattels: (a) Book worth $100. If I spill ink on the first 20 pages Ive lowered the value of the book. Now its worth $80. I owe you $20 for trespass to chattels. (b) Book worth $100. If I spill ink and the entire book is ruined, I owe the whole $100.
Transferred Intent in Self-Defense: Is an assault privileged by self-defense a battery if transferred intent? Other Defense of Third Persons: same basis as one can defend themselves. Defense and Repossession of Property; etc.: (1) Defense of Property: (a) Can use force to defend property, but it must be reasonable amount of force, incapable of causing death/serious bodily harm. (b) No booby trap guns (2) Recapture of Chattels: (a) One can regain possession of chattels of s/t right after it was converted or in hot pursuit. After that, one cannot recapture it by force, one has to invoke criminal process. (3) Repossession of land: some courts allow force, if reasonable. (4) Value human life over property every time
Necessity:
Defined - the justification of an otherwise tortious act because of emergency/act of God/whatever Rule: Individuals are privileged to damage or destroy private property when public necessity demands it. Typically the actor needs to have a reasonable belief that some action was needed and the course of action must also be reasonable. Common Law: If you take it for public necessity, the injured party doesnt have to be compensated Note: Gets complicated when actor that is destroying the property is a private person. Defense to Battery: It would need to be a public necessity; there is no defense under private necessity. Private v. Public Necessity: Public Necessity May require the taking of private property for public purposes; but compensation must be made. Example: Police dept messes up property based on necessity. Court says it was a justified taking but still should be compensated b/c the act was for the public good. Wegner v. Milwaukee Mutual Ins. Co. Private Necessity - Cant kick someone off your land if they truly have a private necessity. Note: Not a complete defense. 1. If you harm the other person you may have to pay damages. Just ensures that you wont be removed from land. 2. Private necessity is never a defense for negligence
Necessity Cases
Surocco v. Geary -A fire was raging so he ordered Pascal Suroccos house torn down to prevent further conflagration. The house was torn down before all the property could be removed, and even when it was destroyed, the fire continued to burn. Surocco sued for the tort of trespass the land. -Surocco won a jury trial. The SC of CA reversed the decision. -The right to destroy property to prevent a conflagration has been traced to the highest law of necessitythe individual rights of property give way to the higher laws of impending necessity, there was clearly necessity in this case. The legislature possesses the power to regulate this issue better
Wegner v. Milwaukee Mutual Ins. Co -Police stormed Wegners house to get a suspected drug dealer, house was trashed -Harriet sued the city of Minneapolis and the Milwaukee Mutual Ins. Co., which was Harriets homeowner insurance (cities dont carry insurance because they just tax to make up) a) The insurance company probably excluded Harriets claim based on acts of war, civil insurrection, something along those lines -The district court granted Milwaukees motion for summary judgment and found for them. The appeals court affirmed. The MN SC reversed the lower courts and remanded for the issue of damages. -MNs constitution provides that private party shall not be taken, destroyed, or damaged for public use without just compensation, first paid or secured. The court found the police action to be a public use (unlike may other states) and therefore a taking occurred and therefore Harriet deserved compensation. -Where an innocent 3rd partys property is damaged by the police in the course of apprehending a suspect that property is considered a taking. If you apply the doctrine of public necessity (which privileges Minneapolis to destroy property to avert disaster RS 196) there could be no taking or else there would be a contradiction. -individuals should not be forced to bear public burdens alone -One difference is in Surocco an individual was sued for damages whereas in Wegner the city was sued (individual v. communal liability) -No matter what Suroccos house was going to get torched, while Wegners house wouldnt have been destroyed if it werent for the police Ploof v. Putnam -P was justified in mooring his sloop on the dock of the D. You can trespass out of necessity and the D had no right to unmoore the sloop, which was a trespass against it, because of the storm. -Under RS 197, to seek shelter and protect goods you are allowed to trespass Vincent v. Lake Erie Transportation Co. -Ds steamship moored on Vincents dock. Unloading finished but there was a heavy storm. The steamship remained dock because of the poor weather conditions. The ship caused $500 worth of damage to the dock, which Vincent wants to recover -Public necessity may require the taking of private property for public purposes; but compensation must be made, especially since the D availed himself to Vincents property. -Issue in this case is Private Necessity -In an emergency you can trespass to protect yourself and goods, but if you damage the land you trespass on, youre obligated to pay for it -In the world of public necessity, an actor who destroys for the greater good isnt liable -In the world of private necessity, an actor has a privilege to trespass for refuge but you must pay for damage you inflict -Say the boat is worth $200 and the dock is $500 a) Efficient outcome let boat be destroyed b) Externality: Cost you impose on somebody else (pollution from a steel plant that it doesnt have to pay for); flower garden is a positive externality 1) The boat owner is imposing a cost on the dock owner -To take care of an externality, you need to internalize it, make the boat owner pay for the damage the boat does -In the end, all the boat owners who visit the dock will pay more, no matter if the boat owner or dock owner has to pay; seems like the law creates a rational world either way -In an emergency can you hurt someone? Case where the captain of a lifeboat threw 6 people overboard to keep the boat from sinking? Does the necessity doctrine apply to the situation? RS 196-197 only speak to property; the privilege is not about this kind of fact pattern. In the actual case, convicted of homicide but only sentenced to 2 years.
Negligence
Plaintiff bears the burden of proof on the following elements of the prima-facie case. 1. Duty 2. Breach 3. Legally Cognizable Harm 4. Cause In Fact 5. Proximate Cause (Scope of the Risk) I. Duty The issues of whether a (1) duty exists; if so, what is the (2) applicable standard or duty of care 1) Whether owes a legal duty to ; this is a binary issue, yes or no. a) Always yes, unless a special no-duty rule says otherwise. 2) What standard of care the law prescribes: Generally, to act as a reasonable and prudent person would under the same or similar circumstances to avoid or minimize a risk of harm. Note: Sometimes this standard is modifiedmore or less. Other times the standard is not modified but the evidence which may be admitted on breach, infra II, to satisfy the standard is broadened. Sometimes the standard is prescribed by statute or regulation, i.e., negligence per se. II. Breach - Breach issues are for the fact finder (the jury, in a jury trial), unless there is no triable issue of fact. Ex. Summary Judgment or JMOL. Once the judge decides on the proper standard of care for the case (see supra I.[2]), the fact finder must determine whether the has failed to conform to the applicable standard of care. That is, was the negligent? or has breached their duty of care? For example: has created an unreasonable risk of harm in light of the applicable standard; or, In a negligence per se case, has violated the applicable statute or regulation (without a legally recognized excuse) III. Legally Cognizable Harm Harm is a mixed question of fact and law: Whether the has actually suffered any harm is an issue for the fact finder, unless there is no triable issue of fact. But whether the harm suffered is legally cognizablethat is to say one the law will recognizeis an issue for the judge only. 1) Traditionally, the must suffer actual injury, harm, or damage to self or property. Note: Some exceptions exist where the rule is relaxed and other harms become cognizable. IV. Cause in Fact Actual cause issues are for the fact finder, unless there is no triable issue of fact. 1) In the vast majority of cases, the must show that but for s breach, would not have been harmed. That is, if the had done what a reasonable person would have done under the circumstances, the would not have been harmed. 2) In some limited circumstances or jurisdictions, the may instead show that s breach [i.e., negligence] was a substantial factor in causing s harm. V. Proximate Cause (Scope of Risk) Scope of risk issues below are for the fact finder, unless there is no triable issue of fact: 1) Type of harm suffered by must fall within the scope of the risk the negligently created i.e., a reasonable person would have foreseen harm of the same general type; and, 2) must fall within the class of persons risked by s negligence i.e., a reasonable person would have foreseen harm of the same general type to a class of persons to which belong. Note: An intervening act or force (even an intentional or criminal one) can fall within the scope of the risk the negligently created if it is foreseeable. Note: The precise manner in which the harm occurs nor the extent of the harm suffered by need be foreseeable.
I.
Duty
Note: Duty issues are legal determinations for the judge only owes a duty to . Always yes, unless a special no-duty rule says otherwise. No Duty Rules: (a) No duty if is involuntarily committed (b) No duty to protect people from open and obvious dangers. (c) No duty of mother for prenatal harm (doctors do have duty) (d) No duty to protect people from acts of third persons, Except when: 1. Statutorily imposed duty 2. Undertakings (ie, promise) to do so 3. Special relationships (implicit control component) a) Between and 3rd person b) Landlord-tenant w/ right to control c) Employer-employee w/ facilitation i. Implicit right to control ii. Negligent hiring iii. (employer) owes duty to prevent harm caused by employee when employment facilitates employees ability to cause harm d) Custodian-ward Strict custody not required (policy call) e) Parent-dependant Child must be a minor f) Therapist-patient; with actual or constructive knowledge g) Providers of Alcohol Negligent Entrustment When someone ends up providing instrumentality to someone knowing they suffer from an incapacity (youth, mental or physical handicap, intoxication, etc.)
Stewart v. Motts -To start and move the car without its gas tank, Stewart suggested and then proceeded to pour gas in the carburetor. Motts was suppose to turn the car on at a certain time (the sequence of what happened is contested), the car backfired, an explosion happened, and Stewart suffered horrible burns on his upper body. -Is there a higher standard of care when using dangerous instrumentalities? No, only one standard of care, that of the reasonable man, but what a reasonable man would do varies depending on the circumstances -Some courts have departed from this orthodox view, and require a higher standard of care under more dangerous circumstances Wilson v. Sibert -The car in front of Sibert started to backup toward him. He, without looking or any type of consideration, threw his car into reverse and hit Wilsons car behind him -Did the TC court err in giving a special emergency instruction (D won case)? The court found that you dont have to give an additional sudden emergency instruction because the general negligence instruction is sufficient, but to give one is not prejudicial -This is no longer the case; the emergency instruction is now not given as its a useless appendage of the law/serves no positive action
3) Children have a modified standard of care, unless involved in an activity that is: (1) inherently dangerous, and (2) meant for adults.
Robinson v. Lindsay -13 yr old was allowed to drive a snow mobile, Robinson as passenger lost use of her thumb b/c of it -Issue in this case was whether the jury should hear the child standard of care (the care of a hypothetical child of similar age, experience, intelligence, and maturity acting under the circumstances) or the reasonable adult person standard -Because the boy was operating a powerful motorized vehicle, the standard of care should be that of a reasonable adult (such a rule discourages immature individuals from engaging in inherently dangerous activities) In Hudson-Connor v. Putney s conduct in crashing golf cart was to be considered under child standard because it was not an adult activity -We give kids a wide berth when we see them doing adult activities. But if kids are doing an adult activity (e.g. driving a car), you may not know theyre kids doing an adult activity and wont give them/wont be able to give them a wide berth -Rule of Sevens: a few courts still say that minors over 14 are capable of negligence, 7-14 incapable of it, and under 7 are incapable of it as a matter of law
In some cases, Standard is not modified per se, but evidence may be admitted to affect standard/jury inst.
Negligence Per Se Legislature can do two things by creating a statute: 1) Civil cause of action; legal duty Statute outlines what can do if their right has been violated 2) Penal Statute Courts create legal duties; can sue on the statutes and then the court decides. Failure to Exercise Due Care - is negligent as a matter of law if: 1) Without excuse, the actor violates a statute, ordinance, or regulation of a public entity: 2) The violation proximately caused death or injury to person or property; 3) That is designed to protect against the type of accident that the actors conduct causes, and; 4) If the accident victim is w/in the class of persons the statute is designed to protect. Rains v. Bend of the River Wright v. Brown -D sold ammunition to handgun to a normal appearing 18 yr old. -D was to suppose quarantine dog for 14 days by The Ps son then killed himself. Its against federal law to sell statute; didnt do it and the dog bit Wright ammo to someone under 21. -D alleged that P was not class of persons that the -Negligence per se doesnt equate to liability to per se -Two threshold questions (other questions do follow): 1) Does P statute intended to protect(alleged it was only for belong to the class of persons the statute was designed to protect those bitten by diseased dogs). Court disagreed and and 2) Is the Ps injury the type the statute was designed to said that the statute was intended to protect the prevent? public at large. P case was allowed to proceed. -The courts belief that act wasnt likely to cover this scenario is
weak because then you could never borrow a statute -The court assumes that D was negligent per se with its sale but that the Ds violation was not the legal cause of Ps sons death
Duties Owed to Passengers - Common Carriers Usually, apply reasonable standard of care Note: Some states have a heightened standard of care, OR, WA & CA Host Drivers Reduced standard of care (guest statutes) Note: Some states lower it to normal standard of care: OR, WA & CA Almost all jurisdictions have followed this approach Misc. Special Duty Cases
Tarasoff v. Regents of UC -P was killed. Ds psychologist treated murderer and thought he posed credible threat to P. Campus security detained murderer but let him go because he seemed rational, then he killed P. -Cant really control here like in the previous relationships but can warn here, and thats the alleged breach -Concern that you would be violating doctor-patient relationship. But public interest in safety from assault greater than confidentiality in medicine. -Based on foreseeability of threat, Ds owed duty to warn P of murderers threat Posecai v. Wal-Mart (p.524) -P robbed by guy hiding under. Sues D for AUC of failure to provide security guards in the parking lot -Question is if D had a duty, matter of foreseeability here -Four basic approaches: 1) Specific Harm - only owe a duty if landowner knows of specific harm to P 2) Prior Similar Incident Test - Look at foreseeability based on evidence of previous crimes son or near the premises 3) Totality of Circumstances (most common) - looks at everything, priors, condition, Criticized for being too broad 4) Balancing Test - balances foreseeability of harm against the burden of imposing a duty to protect against criminal acts of 3rd person. Court likes this test the best -Businesses are generally not responsible for the endemic crime -Greater the foreseeability and gravity of harm, the greater the duty Farewell v. Keaton -P&D were hitting on some chicks when the girls told their friends who beat the crap out of P while D escaped. -D found P, took care of him (ice, drove around and got food). P then blacked out and later died. -Every person has duty to not take affirmative act to make situation worse. When voluntarily assume duty, must use reasonable care. Here, court finds special ad hoc relationship from the boys common undertaking, and that D shouldve gotten medial aid.
Brigance v. Velvet Dove -Minor gets wasted at D bar. Drives home and injures P. -AUC was letting kid get drunk and then drive home -Dram Shop Laws should apply; in light of todays automotive society, wrong to hold barkeep immune (duty of reasonable care to person bartender knows or should know is already intoxicated) (RS 308 and 390) P must show connection between sale of booze and foreseeable ensuing injury
Landowners/Possessors; Duties owed to persons on land Note: Does NOT APPLY TO LESSORS Common Law Status Approach ex. OR or WA 1. Trespassers a. Undiscovered Trespassers Reduced Standard of Care b. Discovered or Frequent Trespassers Ordinary, Reasonable Standard of Care. Discovered - knows or should have known was there; and, knows or should have known that was at risk of harm. Frequent - knows or should have known that their land is trespassed frequently; and, knows or should have known that was at risk of harm. c. Child Trespassers - Attractive Nuisance doctrine may apply depending on jurisdiction. Attractive Nuisance is a special duty where: (a) Kids are likely to trespass; and, (b) the owner knows of the unreasonable risk to children; and, (c) children dont know of the risk naturally; and, (d) the owner fails to address danger. 2. Licensees a. Undiscovered Licensees Conditions of Home/Apt Reduced Standard of Care. Activities Ordinary, Reasonable Standard of Care b. Discovered/Frequent Licensees Ordinary, Reasonable Standard of Care Discovered: (1) knows or should have known that was there; and, (2) knows or should have known that was at risk of harm. Frequent: (1) knows that an area is frequently used by licensees; and, (2) knows that a licensee could encounter risk of harm there. Child Licensee Ordinary, reasonable standard of care. 3. Invitees Majority have adopted a reasonable std. of care approach Note: Trespassers continue to be treated differently in many places. Lessors (Duties Owed to Tenants and Guests) Traditionally - Lessors owe no duty under negligence to their own tenants and the tenants guest Exceptions that impose a duty to act w/ reasonable care: a. If the landlord has contracted to repair defects, and knows or should have known about the defect b. If the landlord knows that a defect exists at the time the tenant takes possession; c. If premises are specifically leased for public use; d. If the premises are retained in the landlords control; e. If the landlord undertakes to make a repair Adopting the Ordinary, Reasonable Standard of Care 1. For all persons regardless of entrant status 2. Trespassers continue to be treated differently in many places Contractual Duties: Tort duties can be created, modified and limited by contracts, informal undertakings and mutual and reasonable expectations between the parties. Direct Contract No reliance needs to be shown; contracts will be strictly construed If A, by contract or other understanding, shifts duties they have to C to another, B; then: C is entitled to the same care from B that it would be owed by A B now has a duty A may or may (or may not) be relieved of the duty A owed prior to the K Increased Risk - Reliance If conduct has gone forward to such a state that inaction would commonly result in an injury, then there is a duty. Ex. If a greater danger is created by partys action than if nothing had been done. Action as a Promise or Undertaking For example: where inspection occurs, this could indicate that inspector has assumed a duty Question: Is there reasonable reliance upon either a promise, a K, or b/c of actions already taken by A?
Static Condition
Generally No Duty. Sometimes phrased as a duty to protect only from willful (i.e., intentional) or wanton (i.e., reckless) injury. For children of tender years, duty or reasonable care to protect from artificial conditions if trespassing can be anticipated and children cannot appreciate danger for themselves
Attractive Nuisance
Bennett v. Stanley - had an unprotected pool that they let turn into a pond pretty much. Ds knew next door neighbors had young children. s son and wife drowned. Breach: was negligent; pool created an unreasonable risk of harm to children who would not realize the danger -Court adopts RS 339 for Ohio, children entitled to greater level of protectionthe key element should be whether there is foreseeable, unreasonable risk of death or serious bodily harm to children; court also found mom assumed status of child in attempting rescue
Duty to Invitees
Rowland v. Christian Facts: P was guest of D. Handle in bathroom broke and damaged Ps hand. D knew of the problem but gave no warning to him. -Reasonable people do not ordinarily vary their conduct depending upon such matters and do not focus upon the status of injured partycategories of people obscure rather than help; duty is just that of reasonable care, regardless of the status of the injured person (Modern of Approach) -Mans life or limb doesnt become less worthy of protection because of how he comes on anothers land (life worth more than property)
Asif Tufal
DEFINITION - 1 The breach of a legal duty to take care, resulting in damage to the claimant which was not desired by the defendant: L.B. Curzon, Dictionary of Law.
DEFINITION - 2 Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Per Alderson B., Blyth v Birmingham Waterworks Co. (1856)
1. DUTY OF CARE
A duty of care was originally established by applying Lord Atkins Neighbour Test from: Donoghue v Stevenson (1932). The modern three-stage test was laid down by the HL in: Caparo Industries v Dickman (1990). The court must now consider:
(A) Whether the consequences of the defendants act were reasonably foreseeable. For example, damage or harm was held to be reasonably foreseeable in: Kent v Griffiths (2000); and Jolley v Sutton LBC (2000). But not in: Bourhill v Young (1943); or Topp v London Country Bus Ltd (1993)
(B) Whether there is a relationship of proximity between the parties, ie a legal relationship or physical closeness. For example, there was proximity in: Home Office v Dorset Yacht Club (1970). But not in: Caparo v Dickman (1990).
(C) Whether in all the circumstances it would be fair, just and reasonable that the law should impose a duty. It was held not to be fair, just and reasonable to impose a duty on the police in: Hill v C.C. of W. Yorkshire (1988). However, a duty was imposed on the fire brigade in: Capital v Hampshire County Council (1997).
1 www.lawteacher.net
Note: Almost all breach questions are issues for jury unless no triable issue of fact (summary judg.) Once judge decides proper standard of care for case, jury must determine whether has failed to conform to applicable standard. Each duty breach must be outlined separately! Unreasonable Risk: has created an unreasonable risk of harm in light of the applicable standard. Burden of Proof Must be persuaded by evidence that claim or affirmative defense is more probably true than not. Preponderance of the Evidence; at least 51% likely. bears the burden of proving facts or elements that show prima facie case has to prove by a preponderance of the evidence that he has an affirmative defense. Standard of Proof: Usually, a Preponderance of the Evidence; meaning, more likely than not Evidence, Generally - Sworn testimony of witness, exhibits received in evidence, stipulated facts. Note: No distinction is made direct and circumstantial evidence to the jury; its up to the jury to decide how evidence is weighed. Direct Evidence: Proof of fact, testimony of witness about what they personally saw or did. Circumstantial Evidence: Proof of one or more facts from which you could find another fact. Evidence for Limited Purpose: some evidence may only be considered for a limited purpose. Witnesses and Credibility - Jury may consider how they know what they are testifying to, memory, manner, interest in outcome of case, evidentiary contradictions w/ testimony, reasonableness, any other factors in determining believability.
Indiana Consolidated Ins. Co. v. Matthew -Ds brother was out of town, so he was going to mow his lawn. D started mower in brothers garage, fire started, D tried to put it out, D left and called 911 but the whole garage was burnt down. -Alleged unreasonable conduct in Matthews case by the : 1) D either overfilled tank or spilled gas on floor 2) D started the mower inside the garage 3) D did not push flaming mower outside -Court found that D was not negligent in filling gas tank, was not negligent in starting mower inside (AC found it reasonable, people start vehicles in garages all the time. Reasonable people ignore remote risks and conform to customary practice), and under emergency doctrine (emergency not of his own making), he acted like a prudent person as we value safety over property. Stinnett v. Buchele -Buchele hires Stinnett to repair his barns roof. Stinnett fell and argues that Bucheles AUC was negligent in not providing safety equipment (no workers comp in agriculture) -Stinnett was an experienced painter, didnt ask for safety equipment without Bucheles knowledge, no evidence of negligence - General Rule: Reasonable people dont take precautions to protect people who can protect themselves, but will take more precautions to protect those who cannot protect themselves (e.g. the mentally disabled and children) -The obviousness of a risk may make the likelihood of it materializing so slight that there is no need to try to eliminate it
Common Knowledge - When expert testimony, etc. is not needed b/c unreasonable risk is obvious. duh Of course kids will stick their fingers in small holes on a slide in a playground s Own Rules of Conduct: such as manuals, or company standards Can be entered into evidence but do not replace standard prescribed by law. Industry Custom Whatever is considered reasonable conduct within that industry. Note: Industry may be behind the times; reasonability may not be industry standard, so an industry standard does not replace reasonable standard Note: Proof of a general custom is admissible b/c it tends to establish standard by which ordinary care may be judged, like if industry custom exceeds minimum safety requirements by law. Parties may show that industry norm is unreasonable if industry standard is lagging.
Thoma v. Cracker Barrel (p.178-80) -Thoma slipped and fell on floor at Cracker Barrel. Thoma claims that for 30min the area she slipped in was not attended to. -The breach was that it was unreasonable in failing to clean up a spill within 30 minutes -For slip n fall, P must show owner either created a dangerous condition or had knowledge of a dangerous condition. Notice may be established by circumstantial evidence, such as substance was on floor for sufficient length of time that in the exercise of reasonable care, the condition should have become known to the premise owner. Wal-Mart v. Wright -Wright slipped on water in outdoor lawn center. Alleged breach was negligent in maintenance, care, and inspection of premises, and company violated its own policy manual. Wrights argument is that reasonable people follow their own rules. -A s belief that it should perform at a higher standard than objective reasonable is irrelevant
Note: Complying w/ statute does not mean reasonable/not negligent! Superior Knowledge (i) Actor is required to exercise superior qualities that the actor has in a manner reasonable under the circumstances. (ii) Doesnt change standard but is relevant on breach.
RS 289: Recognizing the Existence of Risk - Standard becomes reasonable man with such superior attributes
Cervelli v. Graves -Graves was a class A truck driver who tried to pass Cervellis swerving pickup on icy roads in WY. -Under RS 289 Jury should not have been instructed to disregard Graves skill and experience but jury should not have been instructed to hold Graves to a higher standard
Breach of Duty, continued: Negligence Per Se: has violated the applicable statute or regulation w/o a legally recognized excuse.
( bears burden of proof for any excuse, shift burden) Negligent as a matter of law. Instruction to jury. IF held to standard in statute (see duty/standard of care) Did the actually breach the standard of care set forth in the statute? Excused (not negligent per se) if: 1. The person acted as would be expected of a reasonable person who desired to comply w/ the law.
Note: Dont forget adult standard for children doing adult activities
2. The violation is reasonable in light of the actors childhood, disability, or physical incapacitation; 3. The actor exercises reasonable care in attempting to comply w/ the statute; 4. The actor neither knows nor should know of the factual circumstances that render the statute applicable; 5. The actors violation of the statute is due to the confusing way in which requirements of the statute are presented to the public; or 6. The actors compliance w/ the statute would involve greater risk of physical harm to the actor or to others than noncompliance. Getting a Negligence Per Se Instruction to the Jury: Judge decides through legislative history: a. Does the statute have a c/a specified w/in it? (if it does, this is the remedy) b. Statute must specify conduct which is prohibited c. Statute must protect against the type of harm in this case d. Statute must protect class of persons to which the victim belongs Judge also decides if the jury gets to hear legally cognizable excuses and which ones. Jury Decides: a. Given the instruction, has to decide if the statute was violated, and if so, find the defendant negligent b. If the jury is given excuses, they have to decide whether the act was excused by the statute. c. Court will (if asked for by the ) give the jury an alternative, usually the common law default standard of due care. Note: If the is not found to be in violation of the statute, they can still be liable, just more work for the RS 288A: Excused Violations Negligence per se (violations) can be excused for incapacity, unaware and shouldnt be aware, unable to after reasonable diligence, emergency, compliance would pose a greater risk of harm) Impson v. Structural Metals, Inc. -D tried to pass P within 100ft of intersection. The P made a left and collided with Ds truck. -D offered excuses such as: forgetting the existence of the intersection, intersection sign was small, no lines to indicate it was a no passing zone, and was watching the car ahead drift right. -None of these fit the excusable reasons offered by the RS
Breach of Duty, continued: Res Ipsa Loquitur: the thing speaks for itself
When the facts of the case alone prove negligence Test for Res Ipsa Loquitur: 1) The occurrence must be one which ordinarily doesnt happen without negligence. Facts as we know them, combined with common knowledge and experience, and sometimes expert testimony, give rise to an inference that someone must have been negligent. 2) Other possible responsible causes, such as or third persons, have been sufficiently ruled out. Note: Does not require that other potential causes be completely ruled out; think of discussion on comparative negligence. What we want to know is whether the or a third persons contributions lessen the probability that the negligence was likely that of the . Exclusive control by the is one way to strengthen the inference, but under the modern, and more correct trend, such control is not required. Note on Control: is under a duty he cannot delegate to another, must be found negligent if there is negligence found, even when there is contributory negligence. See Giles v New Haven beloew 3) The must demonstrate that obtaining specific evidence/proof was not possible. Note: Res Ipsa can satisfy s burden of proof but does not shift burden of proof to . Most courts agree.
Giles v. City of New Haven (p.193-96) Facts: Elevator user (P) injured when elevator crashed and she had to jump out. D contends that the only way for the elevator to crash like it did is for P to have been negligent in using it. -The Ps use of the instrument does not necessarily bar a res ipsa loquitur claim -Despite D not have exclusive control of instrumentality, court finds P entitled to have jury hear RIL claim Persinger v. Step by Step Facts: Infant broke his left femur at daycare, alleges twisted in crib slat or fall from great height Elements: (1) kind of injury happens when negligent, (2) exclusive instrumentality, (3) no P contribution) Alleged breach - allowed him to climb up high and fall from great heights / left the child unattended in a crib; didnt see him get foot caught in slat Possible explanation - the kid fell by himself and it was bad luck Expert witness reasoned backward from the accident, and said explanation was very unlikely Widmyer v. SE Skyways, Inc. -Plane crash killed Ps. P expert says that it was pilot error, D contends it was bad weather. -Ps shouldnt be barred from using RIL even though they offered another explanation (pilot error) -The D lacked superior knowledge but not reason to bar RIL -RIL allowed because with todays aviation crashes usually dont just happen, even in bad weather -Theres weak evidence of pilot error (flying too low, stalling the plane), but its not a complete explanation In Alaska you can send the case to the jury on 2 issues. You can conclude from the limited evidence that there was pilot error or you could find RIL and conclude there was negligence -Does the P have to show the Ds superior knowledge to allow for RIL? In Alaska, no -The more access to RIL the more power given to the jury
Warren v. Jeffries Facts: Boy crushed and killed when he jumped out of Ds moving car. Car was parked but when kids piled in, it started rolling. Breach: failure to set hand brake, failure to engage transmission, and failure to maintain brakes -When you have no evidence, fuck it: RIL Possible explanations: Unknown Mechanical defect -Under RIL you need to be able to make inferences that the accident more probable than not occurred from negligence - Seems like it is more probable than not that the D parked the car negligently but whats missing is any type of investigation The more non-negligent explanations you can rule out increases your chances to win.
Two Approaches; varying by jurisdiction 1. Permissible inference of negligence: Jury can still say no negligence even if provides no evidence or explanation whatsoever 2. Presumption of negligence: Jury has to find that theres negligence unless the offers some explanation or evidence that theyre not negligent
The Standard Expected Negligence is falling below the standard of the ordinary reasonable person. Specific rules apply if the defendant is a child, a learner or a professional: * For children, see: Mullin v Richards (1998); * For experts: Bolam v Friern Barnet Hospital (1957); * For learners: Nettleship v Weston (1971), and Wilsher v Essex Health Authority (1986). In all other cases, the court will consider the following four factors in deciding if there has been a breach of duty:
(A) The degree of risk involved. Here the court will consider the likelihood of harm occurring. There was either no known risk or a low risk in: Roe v Minister of Health (1954) Bolton v Stone (1951). There was a known risk in: Haley v London Electricity Board (1964).
(C) The seriousness of harm. Sometimes, the risk of harm may be low but this will be counter-balanced by the gravity of harm to a particularly vulnerable claimant. See, for example: Paris v Stepney Borough Council (1951).
(B) The practicability of taking precautions. The courts expect people to take only reasonable precautions in guarding against harm to others. See, for example: Latimer v AEC Ltd (1952).
(D) The social importance of the risky activity. If the defendants actions served a socially useful purpose then he may have been justified in taking greater risks. See, for example: Watt v Hertfordshire County Council (1954).
PROOF OF BREACH The claimant must produce evidence which infers a lack of reasonable care on the part of the defendant. However, if no such evidence can be found, the necessary inference may be raised by using the maxim res ipsa loquitur, ie the thing speaks for itself. See: Scott v London & St Katherine Dock Co (1865)
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Traditional Rule
If victim died before recovering for tort the claim died as well. No one could step in as If suing and dies, claim is over Relatives couldnt bring claims on account of what they suffered from the death
If dies, then estate becomes the and suit continues. Separate cause of action that certain types of beneficiaries can bring. Typically children and spouses, maybe parents.
Survival Statutes: Dead s estate vs. Preserves to decedents estate any cause of action decedent would have had if shed survived Settlement goes first to pay debts and liabilities of estate, then to kids If all elements of tort are met but cant prove damages, well give them to you. Just need nominal to get punitive. Wrongful Death Statutes: Deads beneficiaries (s) v. Damages to provide replacement for what decedent would likely have provided but no more Money goes right to kids, no filter of estate Limited to pecuniary damages, no punitives
Affirmative Defenses for Wrongful Death Causes of Action: can raise any defense that they ordinarily would be able to based on victims own negligent contribution to the risk. See below section.
Tests for Showing Cause in Fact But-For Test: Used in a vast majority of cases The must show that but for s breach [i.e. negligence], would not have been harmed in the manner complained of by . If you can satisfy this, there is causation. Generally: The event/harm would not have occurred w/out s conduct. 1. Causation is satisfied if passes but-for test 2. Would the untaken precaution have prevented the harm from occurring? Substantial Factors Test Multi But-For Causes Independently Sufficient Causes If two or more s are the cause of the damage: a. If the damages are divisible, the s will pay for their part of the damage. b. When there is an indivisible injury, joint and several liability doctrine applies. Extending a Finding of Cause in Fact to Others Conspiracy/Concert of Action: two actors doing something together for a common purpose; example, drag racing Partners in a company Respondeat Superior: if x commits negligence tort and x is an employee of y, then y is responsible Proof of Causation Preponderance of the Evidence 51%, more likely than not that they were cause of the harm Remember: evidence may be direct or circumstantial; see above. Causation may be inferred from (1) the common knowledge of the jury; (2) experts; (3) Res Ipsa Alternative Causes and the Shifted Burden of Proof Redefining the harm: to permit recovery when adherence to regular tests would fail the claim. (a) must prove that s negligence more likely than not caused the s injury or condition (b) must prove that s negligence more likely than not decreased the chance for a better outcome. Notes: Doesnt limit damages; usually requires expert testimony (c) must prove that s negligence substantially increases the chance of harm. A can only recover damages for lost opportunity. Example: If injury for death is 100k and shows that negligent doctor reduced chances of survival from 40% to 10%, then can only recover 30k. Other possibilities to shift causation: Loss of an already endangered life Apportionment of Fault (1) Joint and Several Liability; or (2) Proportionate Share Liability
Asif Tufal
(A) Causation in Fact The claimant must prove that harm would not have occurred but for the negligence of the defendant. This test is best illustrated by: Barnett v Chelsea & Kensington Hospital (1968).
(B) Multiple Causes Where there are a number of possible causes of injury, the claimant must prove that the defendants breach of duty caused the harm or was a material contribution. See: Wilsher v Essex AHA (1988).
(C) Remoteness of Damage The opinion of the Privy Council was that a person is responsible only for consequences that could reasonably have been anticipated: The Wagon Mound (1961). The defendant will be responsible for the harm caused to a claimant with a weakness or predisposition to a particular injury or illness. See: Smith v Leech Brain & Co (1961). If harm is foreseeable but occurs in an unforeseeable way there may still be liability. See: Hughes v Lord Advocate (1963). However, there are two cases which go against this decision: Doughty v Turner Manufacturing (1964); and Crossley v Rawlinson (1981).
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Rescue Doctrine: Cryptic Cardozo opinion. Rescue is not always foreseeable, just use reasonableness. Suicide: There used to be no liability for suicides. Example: Jailor forgetting a belt in cell not liable. Now there are some exceptions for special relationships. Medical Malpractice Always foreseeable! Note: If injures and then is injured additionally by malpractice, is also liable for malpractice damages.
Metcalf Foreseeable Risk
Medcalf v. Washington Heights Condo -Condo buzzer system didnt work, P was then attacked before her friend could come down and let her in -Was the harm which occurred of the same general nature as the foreseeable risk created by the Ds negligence? If so, proximate cause is established. -The AUC is not maintaining a working buzzer when they say that they will (reasonable people keep their promises) BUT, the type of risk associated with not fixing the buzzer is not a mugging (not in the scope of risk) -Have to look at the breach and what risk it creates
Doughty v. Turner Manufacturing Facts: Worker knocked lid into vat of liquid. Nothing happened at first (no splash). 2 minutes later lids chemical makeup reacted and exploded causing the P to get burned. Breach: Knocking the lid into the boiling vat
Intervening/Superseding Causes: Intervening: If there are two tortfeasors and the second ones action is a more direct cause of the harm, does not always mean there is no proximate cause for first tortfeasor. Superseding: When a second action is enough to break the proximate cause of the first action Example: If 1 is negligent and 2 commits intentional tort, 2s tort rises to level of superseding cause. Note: If your conduct creates or increases risk of the second action (a criminal act for instance), you may still be liable. Can use B<PL to decide if intervening or superseding. Most courts just use foreseeability.
Foreseeable Where
Derdiarian v. Felix Contracting Corp. Facts: P was burned by vat of hot sealing liquid when D insisted he setup his operation on a part of the highway facing traffic and the D afforded him little protection from that traffic; Dickens suffered an epileptic seizure crashed through Felixs barricade and P was burned by liquid -P must show that Ds negligence was a substantial cause of the events which produced the injury (RS 435) -Dickens was not a superseding cause because a car improperly entering the worksite was the risk Felix had a duty to protect against and it didnt (should have had truck in the way)(risk=worker hit by negligent driver) -Workers Comp is an exclusive remedy, if you accept it you cant sue your boss -Evidence of what other companies would have done is custom, good evidence as what a reasonable person would have done Sheehan v. City of NY -Sheehan did not pull his bus over to the curb. Instead just stopped in land and let passengers off, violating traffic regulations. Then a sanitation truck smashed into the bus, claime the brakes failed. -Court finds that bus would have been there if it had first pulled over and let people off or did as it did in real life. Bus had a right to be in travel lane. So sanitation truck was sole proximate cause of injuries, in addition if the bus was viewed as a proximate cause of the accident, the trucks brake failure would be an independent supervening cause. -Alleged breach was not pulling into the bus lane to let people off This case is distinguished from Derdiarian because the risk created by the AUC is not the one realized in the accident (its unreasonable to not pull to the curb because passengers could get hurt alighting/the bus would congest traffic); could be argued there was no breach
Foreseeable When
Marshall v. Nugent -Truck driver pushes Ps car off road. Trucker stopped and went to help P get back on road, thus blocking the road which caused another car to swerve to miss truck and then strike P D drives on the wrong side Nugent swerves Marshall hit Holding: Nugent is not negligent here, behaved as a reasonably prudent person (arguable emergency doctrine), truck driver is negligent though -The risk here was present until the cars were back to normal driving Pittsburg Reduction Co. v. Horton -The risk here was that an unsupervised child would find the caps and be injured; that risk was terminated once the mother found out about them; so guy who left caps out in beginning would not be liable (termination of risk) -RS 451: D can escape liability if harm done is different from the harm that was risked by the Ds conduct in the first place (Intervening forces of nature, p.267) -No litmus test to determine when a risk ends, dont have firm statements to give to the jury -Who What How When and Where all important in figuring this all out
Other notes in Proximate Cause Thin Skull Cases RS 461 Harm Increased in Extent by Others Unforeseeable Physical Condition Amount of harm is something youre responsible for no matter how minor the initial harm you inflicted (knocking someone over who has osteoporosis) RS 435(1) Liability is not avoided because harm extended beyond foreseeability.
Affirmative Defenses for Negligence I. Contributory Negligence II. Comparative Negligence III. Assumption of the Risk
I. Contributory Negligence Not really used much anymore; most courts adopt Comparative Neg.
cannot recover at all if they are contributorily negligent in a traditional jurisdiction. Its an all or nothing defense, so if is contributorily negligent, they get nada. has to show their own prima-facie case for negligence i) Duty: owed duty to himself; default standard of reasonableness ii) Breach of that duty iii) Legally cognizable harm and, did reduce his own chances for better outcome? iv) Cause in fact: was contributory negligence a but-for or substantial factor of s harm? v) Proximate Cause: is harm that befell w/in scope of risk that he created? Exceptions to Complete Bar on Claim 1) Last Clear Chance Doctrine: a) must negligently place her/himself in peril b) Peril must be something from which the cannot reasonably escape c) was aware of, or should have been aware of s peril d) s negligent act, follows s negligence e) could have reasonably avoided the negligence. 2) Recklessness If s mental state was worse than negligent; ie. reckless 3) Intentional Tort - s contributory negligence is irrelevant.
Butterfield v. Forrester Facts: P riding horse violently crashed into Ds pole on the road, causing him to fall from his horse -Gives birth to traditional CL rule that P must exercise reasonable prudence for his own safety; back then, contributory negligence was a complete bar to recovery -Some US jurisdictions still do not acknowledge comparative negligence (complete bar to recovery) -The conceptual failure before comparative fault was that the law was a zero sum game Sollin v. Wagner -Wagner was loading bale of straw when it dropped on Sollin. Sollin sued, Wagner alleged contributory negligence because Sollin was working on grinder while the machine was operating -TC should give an ultimate outcome instruction in a comparative fault case if requested. In ND, P who is 50% at fault gets nothing, and jury here found that Wagner should pay half of Sollins damages but assigned 50-50 responsibility, so no recovery
II. Comparative Negligence Adopted by a vast majority over contributory neg; 46 states
In a comparative fault jurisdiction, s recovery may be lowered by the percentage that they are found to be negligent. Exceptions from Contributory Negligence: 1) Most jurisdictions wont consider s negligence if commits an intentional tort. 2) Recklessness is just factored in when apportioning damages 3) No doctrine of last clear chance Pure Comparative Negligence - may recover damages minus their negligence Example: If they are 20% negligent, they can only recover 80% of damages Modified Comparative Negligence Sometimes, is barred from recovery if:
2) Suicide in state hospital. No contributory neg. when s duty of care includes preventing selfdestructive acts. Probably a scope of the risk problem; use B < P x L test. 3) Personal Use of Property Negligent burning hay on side of train tracks, causes big fuckfest. Railroad is still held liable b/c s property interest.
III. Assumption of Risk Two main types: (1) Contractual (or, Express); and (2) Implied
(1) Contractual/Express Assumption of Risk (CAoR) - agreed with for no liability Survives as a separate, complete defense everywhere K must be expressed in writing, orally, or by conduct; standard contract shit. RSAL 2: Contractual Limitations on Liability - Contracts can be complete bars to liability CAoR completely bars s claim unless: 1) The harm is outside the scope of the contract Example: K says no liability for one kind of risk; is injured in some other way. 2) Contract is voided as a matter of policy. Factors to consider: i) Is the business of a type generally suitable for public regulation? ii) s service is of great importance to the public, and perhaps a practical necessity. iii) is holding itself out as performing the service generally for the public. iv) The need for the service and the economic setting gives the decisive advantage of bargaining strength to avoid liability. (2) Implied Assumption of the Risk (IAoR) - is aware of the risk before participation. Note: Decide this with subjective test; see Crews case IAoR occurs when voluntarily exposed themselves to the risk; ex. Dangerous job In a contributory negligence jurisdiction, IAoR is a separate and complete defense Note: Unless its against some public policy In most comparative negligence jurisdictions, IAoR is NOT a defense. (See Betts) Note: IAoR still relevant in determining both 1) The duty/standard of care for the ; see Siragusa. 2) Whether has imposed an unreasonable risk of harm. Agreement to Accept Responsibility for s negligence or as Comparative Fault In a comparative negligence jurisdiction, there is no consideration given to s assumption of the risk when raised as a defense to an established breach of duty. Assumed risk is just incorporated into the comparative negligence test.
I. Multiple Tortfeasors
a) Joint and Several Liability If multiple tortfeasors are held jointly and severally liable for a s harm, then: Each tortfeasor alone is liable for the entire injury; and, can collect all her damages from just one of them. Example: She can sue one of them for all damages; or, both of them for a portion of damages from each. Indemnity and Contribution: If either of the above scenarios happens, and a thinks that they have paid more than her fair share of the damages, the law will sometimes allow them to recoup some of the money from the other through indemnity/contribution. This can happen in several ways, most commonly: 1) sues 1 or 1 and 2; then, 1 files third-party claim impleading 2; OR, (b) After losing to , 1 can file a separate lawsuit against 2 for contribution. b) Proportionate Share Liability A jury assigns a percentage amount of fault to each , BUT if one is broke and cant pay, cant get that share from another .
Damages
I. II. III. Compensatory Damages Adjustments in Damages Punitive Damages
Damages, Generally Damages are the result of a successful cause of action; they are either pecuniary (the costs incurred or to be incurred by the ), or punitive (damages intended to deter further tortfeasance). Note: Damage amounts are almost always selected by the jury. Nominal Damages are given when the jury finds the liable but there is no real harm done.
I. Compensatory Damages
a. Pecuniary/Economic These are damages that are easily quantified/tangible. These damages can be either past damages or future damages. Past Pecuniary Damages Damages incurred before and up to trial; Usually includes: 1) Reasonable medical expenses 2) Lost wages 3) Cost of Medical Monitoring Future Pecuniary Damages Damages likely to be incurred even after judgment; Future damages usually include: 1) Cost of continued medical care 2) Future lost wages 3) Any other reasonable costs that stem from the s tortfeasance. Because future damages are inherently speculative, they are controversial. Notes: The further into the future, the more speculative; Future damage speculation usually requires expert testimony Solutions? Some courts periodically revisit cases to ensure that damages were correctly allocated. b. Non-Pecuniary/Non-Economic These are damages that are subjective and qualitative. Non-pecuniary damages are inherently difficult to quantify: They usually include: 1) Pain and Suffering 2) Loss of Enjoyment of Life 3) Loss of Consortium (see Infliction of Emotional Distress above) Note: Pain and suffering is sometimes held distinct from Loss of Enjoyment of Life on the grounds that you have to be conscious and aware of your pain and suffering. For example, a comatose patient cannot collect for pain and suffering, but may be able to claim damages for loss of enjoyment of life. Note: Some courts have held that the two should be aggregated because they dont trust the jury. Because they are retards usually.
Damages, continued:
II. Adjustments in Damages
In some cases, even when liability is found and the cause of action succeeds, damages can be mitigated by several factors; they are mostly based on the s behavior. Avoidable Consequences Rule This rule serves to deny recovery to the extent that damages should have been, but were not, reasonably minimized or avoided by the . Note: This is distinct from contributory negligence because it is after s initial harm, and only impacts damages, not the negligence analysis. Contributory negligence is a factor before or during s negligent behavior. Example of difference: was not wearing a seatbelt and was hit by . Contributory negligence is either not liable, or less liable, by s behavior Avoidable Consequences - is still liable, but damages are lessened by s behavior Three Part Test: 1) Always look for a clear case of causal apportionment; 2) If theres no causal apportionment, reduce the amount of divisible items of injury; 3) If 1 or 2 doesnt work, then fuck it; comparative fault, split by percentage. Collateral Source Rule The other sources which cover expenses, such as insurance, are not deducted from damages paid by defendant. The should be held liable for all damages he caused. Criticism It could be a windfall, if is getting everything paid by insurance that they originally paid for, and then they get damages on top of that. Double recovery! Subrogation Insurance can get money from s insurance, or just . They can recoup some of the money they had to pay out to NOTE: Almost half of the states have abolished this rule.
II. Punitive Damages Punitive damages are those that are added on top of compensatory.
Note: They arent based on actual damages. Why have punitive damages? 1) Deterrence Specific Deterrence We want to deter from doing this again General Deterrence We want to deter society from being like . 2) Punishment We want to suffer for being such a douche about things. 3) To Fund Litigation So that can pay their attorneys fees; fewer suits will be dropped due to lacking financial resources Punitive Damages are usually decided by Jury and the instructions they receive Some courts hold that wanton/reckless behavior is required for punies. Others only require malice. Note: ordinary negligence is never enough, but sometimes gross negligence is. They are determined by the following factors: 1) Reprehensibility of s conduct 2) s wealth 3) Profitability of the misconduct. 4) s actual or potential harm Example State Farm case. Compare punitive w/ civil penalty amount and the ratio between comp damages and punitive damages; there shouldnt be more than single digit multiplication. Procedure: (1) Some jurisdictions require permission from judge before asking for punitive (2) Pleading requirements (cant ask for punitive damages unless judge allows you to amend complaint) Policy interest in trying to scare s away from asking for them. Cant find out how much they are worth in discovery.