Professional Documents
Culture Documents
What is a Tort?
1. Legally recognized
2. Wrongful injuring of another
3. Generates right of action against wrong doer
Two Primary Goals
1. Compensating victims (Corrective Justice/Civil Recourse)
2. Guiding conduct towards promotion of safety/protection (Deterrence)
Intentional Torts:
- Battery, Assault, False Imprisonment, IIED and Trespass to Property
- Cannot be committed by accident
- Problem with label, suggest each tort it covers employs the same notion of intent
Four Basic Features:
1. Common Law
2. Grounded in relational (typically bilateral) conduct between a (plaintiff-victim) and a
(defendant-tortfeasor)
3. Two primary goals:
1) Compensating victims for harms corrective justice / civil recourse for wrongs
2) Guiding private conduct towards the promotion of safety / and the protection of
human dignity deterrence
4. Begin from the premise that we let the loss lie where it falls (Holmes), unless there is a
good reason (i.e., a legal basis) for shifting it.
Purposes:
Compensatory rationale
o Designed to make the plaintiff whole
Have to assume correspondence between damages and injuries
Tort system may not be efficient, because it involves high transaction costs
Alternative compensatory systems are available, i.e. first-party insurance
Deterrence
o But not always clear that tort law is the most efficient way of deterring risks
behavior if damages arent foreseeable/predictable, actors might not be able to
take into account potential liability
Corrective justice
o Mechanism by which individuals can recover from the actors who caused their
wrongs
o Idea that tort involves a bilateral relationship between an individual and
wrongdoer, and tort allows the individual to sue the wrongdoer to restore the
original state of affairs
Preservation of the peace
ii. Right to live in society without being put in fear of personal harm but it
has to be a reasonable fear
3. Intent: same as battery
a. Single intent: intent to engage in the act
b. Dual intent: intent to act and cause reasonable contact
i. Subjective and objective elements
ii. Jurisdictions with DI apply it across the board
4. Fear OR Apprehension of imminent physical harm
a. Objective reasonable person standard
i. Social norms and present ability play a role here (i.e. in Booker the Ds
physical proximity made a difference)
ii. R3: subjective standard for apprehension
Says aligns best with interests protected by Assault
i.e. if rock is thrown by A at B, but to an outside observer would
never hit B, nonetheless B is unusually timid and fears he is going
to strike him, can A be held liable?
b. Words are not enough on their own
c. Can make out a PF case without fear, just apprehension
d. Brooker v. Sileverthorne (640, 1919): P was phone operation, and when she
could not connect someone, D said, if I were there, I would break your
goddamn neck
i. Objective standard:
A vain or idle threat does not suffice
Threat has to be of such a nature and made under such
circumstances as to affect the mind of a person of ordinary reason
and firmness, so as to influence his conduct,
OR it must be clear that the person threatened is particularly
vulnerable.
ii. Not reasonable fear in this case because
Lack of proximity
Conditional threat (if I were there
Stated when otherwise angry
e. Conditional threats: not assault unless condition deprives person of legal right
(e.g. If you dont sleep with me)
f. Vetter v. Morgan (P. 643, 1995): Car pulled up next to P at 1:30 am, and men
made threatening and obscene gestures and spat on her van. P swerved to avoid
Ds car and was injured.
i. For words to count as assault, need threat + menace of bodily harm
ii. Social norms play a role in determining
C. DEFENSES
1. Standard Affirmative Defenses
a. Tend to be justifications not excuses
i. Ds conduct meets the definition of a tort, but all things considered, was
not wrongful (self-defense)
b. Burden on D
c. Common affirmative defenses
i. Consent
ii. Self-Defense & Defense of Others
iii. Defense & Recapture of Property
iv. s fault not a defense (Comparative Fault)
2. Consent
a. All courts agree consent to intentional bodily contact can affect battery liability,
but disagree where within the analysis of a battery claim it should figure
i. Some say element of Ps PFC, P must prove non-consent to prevail (only
a handful of jurisdictions do this)
ii. Others treat consent as an affirmative defense to be pleaded and proved
by D
Stance taken by our book
iii. Majority fails to take a clear stance
b. Implied: based on Ps acts and circumstances
i. Objective reasonable person standard
b.
c.
d.
e.
A. Overview and Elements: A breach of a duty to avoid causing injury to another through
careless conduct
1. Injury
a. Physical damage, property damage (general, unqualified)
b. economic loss, emotional (limited, qualified)
2. Duty
3. Breach of Duty
4. Causation (Actual and Proximate)
B. Background:
1. Principal common law writs
a. Medieval England usage Trespass had a very broad meaning
b. Trespass vi et armis (with force and arms)
c. Trespass-on-the-case
i. Absent act of aggression
2. Brown v. Kendall (p. 806, 1850) D, breaking up a dog fight, inadvertently hit P in
the eye with a stick
a. Liability requires fault not strict liability
b. Liability under the old writ of trespass arguably was strict as to forcible and
directly caused injuries
c. D cannot be liable for the results of lawful and proper act taken under ordinary
care
d. Merged the two writs and required negligence for both, shifted burden to P
e. Establishment that accident based tort liability is and has always been faultbased rather than strict
f. Ordinary Care Standard: an accident victim cannot recover from a person
who played a role in bringing about the accident unless the person caused the
accident by failing to exercise ordinary care.
3. Harvey v. Dunlop: Fault or carelessness is required before tort liability will be
imposed on an actor who accidentally injures another
4. Holmes: The undertaking to redistribute losses simply on the ground that they
resulted from the defendants act would . . . offen[d] the sense of justice. Unless my
act is of a nature to threaten others, unless under the circumstances a prudent man
would have foreseen the possibility of harm
A. Duty
1. Definition: requires a negligence plaintiff to establish that the defendant owed her, or
a class of persons including her, an obligation to take care not to cause the type of
injury that she suffered
negative duty-duty to take care to avoid causing harms
4.
b.
c.
d.
e.
f.
g.
h.
i.
j.
Again, does not denote liability, just that will go to the jury
6. Professional Duties
a. Tarasoff v. The Regents of CA (p. 125, 1976): 1976)--Psychiatrist D treats
patient who said he was going to kill decedent P; psychiatrist tells police to
restrain patient which they do but they promptly release him, and no one ever
tells P or her family; she is killed upon her return from abroad.
i. Duty to warn or take reasonable steps, particularly based on
professional standards, since doctor knew or should have known of
credible threat to 3rd party.
ii. Need not be actually aware patient is contemplating attack, so long
as therapist reasonably should have known of the risk
iii. Court is clear this is not misfeasance
iv. Only an obligation to warn, not requiring perfect performance
v. Victim must be identifiable
vi. Aspects of Special Relationship:
a. Control
b. Knowledge
c. Custody
vii.
Favoring Duty concerns:
a. Protection of would-be victims
b. Manageable for MDs (only a duty to take steps to warn)
c. Less liberty-infringing for patients than confinement
viii.
Against Duty
a. Patients interest in confidentiality
b. Societys interest in not discouraging therapy
c. Ineffectual or generative of too many warnings (amici curae)
b. Scope of duty
i. Courts split on what I required for duty to attach
ii. CA recognizes person must be identifiable
c. Causation issues caused by Tarasoff
i. How do we know a warning would have worked?
a. Get to trial, jury to decide info would have made a difference
d. Declined to extend Tarasoff to clergy
i. Lack of training
ii. Policy reason of not intervening in the church
e. Duties to protect Third Parties from Physical Lapses
i. Some courts reject aTrasoff majority that says physician under duty to
warn patients with disorders such as epilepsy they may suddenly
become incapacitated while driving
f. Calebresi and the Cheapest Cost Avoider
i. Tort law should aspire to assign liability to the cheapest cost avoider:
the person or entity who can identify and adopt the most efficient
precaution more readily than anyone else
7. Pure Economic Loss: (no physical injury or personal property damage)
a. Can recover for economic loss when attached to any claims of property
damages or injury
i. Ex: when an explosion causes economic loss in an area, businesses hit
with debris can recover for damages and economic loss; businesses
not hit can recover for NOTHING
ii. Ignores misfesiance/nonfesiance focus on physical harm
b. Policy for no recover from PEL
i. Theres no net loss for society, just a transfer of where money is spent.
ii. Indeterminate and potentially limitless liability
iii. Businesses should buy own business interruption insurance (cheaper
for society overall, no litigation costs, least cost avoider); encouraging
this
iv. Law doesnt protect peoples wealth or right to generate income, alone
(no property right to have a business and no liability of other party for
putting company out of business)
v. Proof issue: maybe it was something other than this wrong that caused
economic loss (economy dropping, etclike in BP)
vi. How know that company wont/didnt regain sales upon re-opening?
c. Policy Against recovery for PEL
i. Under-deterring wrongdoer?
ii. Justice! Innocents shouldnt have to pay!
iii. Fortuitousness of businesses that suffer property damage too
(arbitrary)
iv. If law doesnt protect businesses, then why not let business doing the
harm suffer the consequences?!
d. Aikens v. Debow (P. 101, 2000)--Truck driver damages highway forcing closure
impeding business of P motel owner; hotel sues trucker for pure economic loss
i. P cannot recover because trucker had no special relationship or
knowledge leading to foreseeability of economic loss; despite
highways proximity to motel and existence as main entry (other ways
to get to motel)
ii. Rejects NJ minority approach: Peoples Express (p. 111-12, 1985)
Ds negligence caused a dangerous chemical to escape from a railway
tank car, resulting P being forced to evacuate its premises and suffer
interruption of business
e.
B. BREACH
1. Violation of established duty
2. Standard: Average reasonable Person/Person of Ordinary Prudence
a. Objective standard
b. Cant read minds so its easier to make everyone live up to one standard (more
accurate, less admin costs).
c. External conduct not internal attitude of concern
d. Encourages societal baseline (no societies of idiots).
e. Deters fraud in avoidance of negligence (just didnt know, etc.).
f. Incentivizes better judgment.
o Holmes rejects this in favor of reducing the general ordinary prudence standard to
specific rules of conduct
o Ripstein: the employment of a subjective standard would violate an entitlement of each
person to enjoy an equal degree of protection from others' risky conduct
3. Burden of Proof
a. Production: the requirement of providing to the court some evidence in support
of an alleged fact or set of facts that the party bearing the burden seeks to
establish
i. Often circumstantial
b. Persuasion: comes into play only after there is evidence before a judge or jury
upon which it must make a decision
4. Vaughan v. Menlove (p. 166, 1837): D stacked hay that posed a risk of igniting,
warned by P, disregarded warning, hay ignites and damages Ps cottages.
a. Instead of saying that the liability for negligence should be co-extensive with
the judgment of each individual . . . we ought rather to adhere to the rule
which requires [the degree of care that] a man of ordinary prudence would
observe.
b. Rejects argument that D particular sensibilities or weaknesses should be taken
into account
i. Not taken in to account (can apply as comparative fault
determination)
a. Clumsiness
b. Foolishness
c. Mental illness
d. Old age
ii. Taken into account:
a. Youth (Tender years Doctrine)
b. Physical disability (blind person compared to ordinary blind
person)
c. Expertise (higher standard R3)
i. Pro-skier has higher expectations
5. Appelhans v. McFall (p. 168, 2001): D carelessly riding a bike, and hits elderly
woman who breaks her hip, brings suit against child and parents
a. Tender Years Doctrine: children cannot recognize or appreciate risk and are
relieved of liability
i. Illinois (minority approach) (ages 1-7 TYD applies, 7-14 duty to act
prudently as a child of like age and experience, unless engaged in
adult activity
ii. Court recognizes ridiculous nature of 7 year cut off, but reasserts
because stare decises
6. Tender Years Doctrine:
a. Restatement (majority):
i. Child negligent if conduct does NOT conform to that of a reasonably
careful person of the same, age, intelligence and experience
UNLESS:
a. Under 5 yrs old = not capable of negligence
b. Engaging in a dangerous activity that is characteristically
undertaken by adults
b. Massachusetts Rule: child capable of...negligence if child failed to exercise a
degree of care that is reasonable for similarly situated children
c. POLICY reasons for holding young child liable:
i. Parents should pay b/c least cost avoider (but then why not hold
directly liable?)
ii. Old enough to start learning morals (deterrence)
iii. Compensation for victim (STRONGEST rationale)
a. Encourage parents to buy insurance
iv. BUT compensating one victim through money of another innocent
(like strict liability for parents; dont even have to be negligent
parents)
v. Is only being held to standard of like-aged kid, so only found liable if
truly extreme behavior (BUT how determine what is normal?)
vi. BUT really young children CANNOT understand deterrence (though
indirect deterrence through parents educating children on what not to
do)
vii.
BUT dont want to restrict kids lives to the point that they can
do nothing; should explore; is part of childhood.
7. Parental Liability:
a. Person injured by childs carelessness must establish some form of direct
negligence on part of parent to recover
i. Negligent Supervision: If parents know of minors tendency to
commit wrongful acts and also failed to exercise reasonable means to
restrain him, thereby enabling his toritus conduct
i. A doctor with a great history can have one moment and history
doesnt matter
13.Ordinary vs. Professional SoC?
a. Myers v. Heritage Enters (p 144, 2004): Should jury use professional standard
of care of ordinary care standard when injured using Hoyer lift
i. Professional negligence applies to situations of skilled medicare only
and not administrative or other hospital duties
14.Foreseeability
a. Adams v. Bullock (p. 158, 1919)(Cardozo): P injured when swinging a wire and
hit a trolley line below the bridge
i. Negligence should be applied only when the injury is fairly within the
area of ordinary prevision
a. No special danger at this bridge
b. No like accident had occurred before
c. No custom had been disregarded
d. Trolley wire cannot be insulated
15.Standard Jury Breach instruction
a. The jury is instructed that negligence (breach) means a failure to use
ordinary care.
b. Ordinary care is defined by reference to a reasonably careful person or a
reasonably prudent person, and occasionally by reference to a reasonable
person.
c. The instruction directs that the jury is to consider whether the defendant was
negligent in doing something OR in failing to do somethingthe jury is to think
both about what a defendant has done and about what the defendant has not
done.
d. The jury is required to consider the circumstances in which the defendant acted,
and whether the defendant acted with ordinary care given the circumstances.
16.Duty and Breach
a. Aikens: breach but no duty
b. Martin v. Evans: duty but issue over breach
17.Extrodinary Care
a. Common Carriers often held to greater-than-ordinary care
b. Many modern courts say use ordinary reasonable person
i. Bethel: since ordinary reasonable person takes into account all
relevant factors, no need for heightened standard
18.Recklessness
a. To prove recklessness P must prove there was a high probability that a person
would be seriously injured or killed
19.Emergencies
d. The TJ Hooper (p. 178, 1932): D operated a tugboat without radios, as was the
custom. The tugboat sank in a storm; cargo owner sued, alleging that loss would
have been prevented with radios
i. D was still liable even though he followed industry custom
ii. Rule: Compliance with custom is probative of ordinary care but not
dispositive
e. Johnson v. Riverdale Anesthesia (p.182, 2002)-- patient died from anesthesia
because she was not pre-oxygenated, P tries to impeach Ds expert witness by
asking what he would personally do in similar situation, though he stated
industry custom agreed with D;
i. court found that professional standard is not about what an individual
doctor would do, but rather what the society of doctors would do
ii. Anti TJ Hopper Rule: AMOL, no breach when D adheres to
professional custom
f. Condra v. Atlantic Medical Group (p. 185, 2009): Expert witnesses for D
introduced alternate opinions regarding treatment
i. Testimony on how they would have treated P is relevant
ii. Overrules Johnson
Sometimes customs may be modified, need to let new facts in
iii. P friendly, but under Johnson P might not even need to hire a witness
g. Minority rule- if a respectable minority of doctors are following a rule then
thats enough for custom
h. Locality rule: look at geographic standard of care
i. problem if a small town
ii. problem if we rely on area where doctors are colleagues
i. R3 treats conformity to custom and departure from custom symmetrically; both
may be used as evidence by the factfinder to ascertain whether there was a
breach of duty
j. Courts typically maintain that a practice must be "widespread
or "common" to count as a custom
k. In medical cases proof of compliance with professional custom often does
establish reasonable care as a doctor is required to exercise the same level of
care as is considered standard by members of the profession
l. Johnson notes unless the professional conduct at issue is so unrelated to
professional expertise that lay jurors can assess it based on their experience, the
plaintiff in a malpractice action must introduce expert testimony to establish
that the D failed to heed standard of care
22.Informed consent admits exceptions
a. No informed consent need be obtained to operate on an unconscious patient in
need of immediate surgery
23.Largey v Rothman (P. 188, 1988): P had mass in her breast and had to have a biopsy,
which led to arm problems that were rare but foreseeable by the doctor; doctor had not
warned of this potential risk; P says would not have had procedure if had known
NJ SCT
a. .MDs must provide info. that a rsble patient in s circumstances would deem
material to her decision
i. for informed-consent malpractice, return to the T.J. Hooper Rule
(custom probative, not dispositive)
b. Causation determined by objective standard: would a prudent patient in s
circumstances have declined the procedure given proper disclosure of the risks?
i. would a subjective standard be more consistent with concern for
patient self-determination?
c. Lack of informed consent
a. Prudent patient standard (Largey - below)-- a physician should
disclose material risks that a prudent/reasonable patient would
want to know (patients rights of self determination - autonomy)
b. Professional standard -- doctor should inform patients of what a
doctor would generally have said (doctor in the community v.
comparable communities v. national networks)
ii. Elements of a lack of informed consent case (duty assumed):
a. 1) Standard of care breached (one of the following):
i. Prudent patient standard
ii. Professional standard
b. 2) Proof injury occurred at all
c. 3) Causation-- injury was caused by the risks that were not
disclosed to P by doctor
i. Objective approach-NO reasonable patient would have
accepted the treatment if informed
ii. Subjective approach-- the patient personally would NOT
have accepted the treatment if informed
d. Should we switch to prudent patient standard?
i. Pros:
a. Autonomy theory (avoid paternalism)
b. Difficulty of patient getting experts (doctors protect own)
ii. Cons
a. Juries will still resort back to professional custom even if
instructed on prudent patient custom
b. Competition amongst doctors could cause high costs
k.
l.
m.
n.
o.
p.
i. Would bar RIL if expert was arguing specific precaution that could
have been taken
RIL invoked in other caes
i. Modern trend to let airplane passengers killed in airline crashed with
no evidence as a means of establishing pilot fault
Exclusivity prong
i. Modern trend dont read it as absolute control, but enough to show
that D likely to be the only one to have undertaken or omitted relevant
acts
RIL against Multiple D
i. Ybarra v Spangard (p. 224, 1945): P underwent appendectomy woke
up with shoulder paralysis. Theory was positioning during surgery
a. RIL allowed to establish carelessness on the part of several Ds
b. Duty applies to med mal with team communicating
c. Team was treated as single actor
i. Shifts burden to Dr. and forces them to come forward as to
who was acting negligently
d. LIMIT: rarely (if ever) applied outside of medical malpractice
(need formal relationship between the Ds)
ii. James v. Wormuth: res ipsa did not apply:
a. both because other medical personnel were involved in the process
of inserting the wire and transporting the patient (thus defeating the
attribution of exclusive control to the surgeon)
b. and because the alleged malpractice involved an intentional
decision to leave an object in a surgical patient rather than
inadvertance.
Plaintiff Participation
i. Arguably just an extension of control requirement
ii. If plaintiff played a role the likelihood of Ds role in bringing about
the injury sifnificantly decreases, baring jury from RIL presumption
iii. Some courts have explicitly dropped this requirement
Spoilation of Evidence:
i. If, after an accident, the defendant intentionally (or, in some states,
negligently) destroys evidence tending to establish its carelessness as
the cause of plaintiffs injury, the plaintiff may have a separate cause
of action against the defendant for spoliation of evidence.
Res Ipsa Scenarios
C. ACTUAL CAUSE
1. BASICS
i. Jury question; preponderance of the evidence (>50% likely that Ds
breach needed to happen for Ps injury to have occurred)
ii. Must be a tortious act, not something non-negligent
iii. Threshold tends to be very low for purposes to get to the jury
iv. Judge has gate keeping role (rigorous threshold)
a. Old Common law approach
i. Used as proxy
v. Ways of aiding fact finder
a. Substantial factor
i. Limited by R2 and R3
vi. Courts have found ways to put thumb on scale for P
a. Does not mean P automatically recovers but allows to move
forward
i. Statistical evidence and expert witnesses
ii. Relaxed causation
iii. Multiple unidentifiable tortfeasors
b. Policy Rationale
i. Corrective justice: ONLY wrongdoers should have to pay for harms
ii. NOT about deterrence (if this were point, why not have all speeders
pay for accidents, even if didnt cause)
iii. NOT really about compensating accident victims (many cant clearly
prove who did wrong/how it happened, so never compensated)
c. P must prove that Ds breach of duty probably functioned as an actual cause of
the Ps injury
d. But-for (sine qua non (without which not) or counterfactual test
i. Cause-in-fact or factual cause
ii. Asks: Did Ds carelessness play a role in bringing about Ps injury?
a. If no causation is established, if yes Ps claim fails test an no
causation
e.
f.
g.
h.
i.
j.
k.
l.
m.
a. Summers v. Tice (p 288, 1948): Three men hunting and P gets shot by one of the
Ds who negligently fired at the same time
i. Rule: When P cannot determine which of multiple negligent Ds
caused his injury, all Ds are liable, and it is up to each D to absolve
himself (Alternative Causation)
ii. Rationale:
1. Shifts burden to D
2. Wronged party should not be deprived of redress
3. Creates incentives to come forward and reveal evidence
4. Unknowable factor for P
iii. Applies in situation in which one of two or more negligent actors acts
independently of the other to cause injury to the plaintiff
b. Three other scenarios
i. Multiple Actual Causes: Independent careless conduct of two actors
each functions as an actual cause of Ps injury
a. Two careless acts, Summers was only one
ii. Conspiracy: Existence of plan working together to injure P
iii. Concert of Action: Treats tortfeasors as acting together, but dont
need plan.
a. i.e. Drag racing, one car hits someone, both are liable
5. MARKET SHARE LIABILITY
a. Basics
ONLY imposed in DES context
- Fordham Law student took concept from Calebresi
- In some ways collapses distinction between causation and apportionment
Key Factors:
i. (1) ALL identified Ds are potential tortfeasors
ii. (2) Product must be fungible
a. Usually involve latent risks that appear later
b. Each D had the same likelihood of causing the same amount of
harm through each pill (generic drug, same dosages)
c. Market share becomes a good proxy for overall harm by each
manufacturer.
iii. (3) P must have sued a substantial share of the market
iv. (4) P must not be able to identify which D is responsible through no
fault of Ps own
b. Policy Arguments FOR
i. Not joint and several liability
ii. Each manufacturer is liable for damages equal to their share of the
market
e.
f.
g.
h.
iii. In some states, Ds can avoid liability by showing they could NOT
have caused the injury to the P (due to not selling at the time, in the
state, etc)
Market Share Liability Outside CA
i. NY:
a. Hymowitz
i. "savings" statute revived claims that would otherwise have
been time-barred
ii. Creates an irrebuttable presumption on causation under
which each D is held liable to each DES P in proportion to
its market share even if a given D could show that its DES
could not have caused a particular Ps injury (unlike Sindell)
iii. Also market share is determined by national market not
geographic market
iv. Dont allow mfr to prove that their pill wasnt the ingested
one
v. MARKET SHARE IS SEVERAL LIABILTY
i. Cant recover 100% from one D
ii. Can be joint and several
ii. FL:
a. Conley: market share should be calculated at a geographically
narrow level
iii. WI:
a. Collins: D pharma companies are joint tortfeasors, market share is
deemed relevant to the jury's apportionment of responsibility
among them (Risk Contribution)
Intergenerational Market Share
i. Enright (Ny 1991): Court says manufacturers could not be charged
with a duty to be vigilant of the effects of its product on thirdgeneration victims
Beyond DES
i. MTBE: gas polluted groundwater
a. D.Ct determined that the substantive law of several of the other
jurisdictions would permit the claims to go forward on market
share theory
ii. Thomas: Child with mental disabilities resulting from lead paint
ingestion
a. Using Collins denied SJ motion by D
Where do we set bar for causation?
i. Corrective Justice (higher bar)
(1) Natural and ordinary consequences (ex: fire - one leap rule)
a. No longer used
b. Natural and ordinary for fire to travel from its source to one other structure, it is
neither natural nor ordinary to spread further
c. Remote consequence
(2) Directness tests- Ps injuries had to flow directly from Ds negligence
d. No longer used
e. Polemis (1921) -- workers dropped plank into ship causing explosion (liability
found, though not foreseeable, because direct result)
i. Fire not foreseeable but direct continuous effect flowing from
negligence
(3) Foreseeability test (dominant modern test)- Ps injures must be seen as
reasonably foreseeable ex ante at the time D acted; D should have foreseen those
injuries
f. Wagon Mound I- owner of neighboring dock sues a ship that pours oil into
harbor; it was seen as unforeseeable and no liability found
i. Rejects Polemis
g. Wagon Mound II-- another ship owner sues the ship that poured the oil; the
ship-owner had foreseen the fire (though assured by dock owner it wouldnt
catch fire); it was found foreseeable and liability was found
i. Different Ps, one was better positioned to develop foreseeability
evidence
(4) Risk-rule test (3rd restatement test) - was the injury to P within the scope of
risk(s) that made D's action negligence in the first place
h. A lot like neg per se
3. Union Pump Co. Allbritton (P 311, 1995): Woman slips on a pipe after putting out an
emergency fire and injures herself
a. Unusual in Texas, Proximate cause is a doctrinal issue
b. Proximate cause is Actual Cause + Foreseeability
c. Forces here had come to rests
d. Rationale: court seems to feel that Allbritton was contributorily negligent or
assumed the risk by walking over a pipe rack that was known to be dangerous.
i. Using proximate cause to draw a line where the judge thinks P is at
fault
ii. Dissent argues correctly that the issue of contributory negligence
should be considered separately
e. Issue of whether the emergency is over
i. Majority thinks the fire is ended, and liability only extends to injury in
the context of the emergency
6. Posner says most important lesson is that Palsgraf says that efforts to employ legal
concepts such as duty to resolve difficult cases are hopeless
7. Wagner: P and cousin were standing in a tram and cousin was thrown out and P
walked back along the track and fell
a. Cardozo: says doctrine of danger-invites-rescue applies to any rescue effort
this is carried out both reasonably and contemporaneously with the carelessly
created peril
i. Leaves it to jury where P was barred from suing under contributory
negligence
8. What is the source of the relationality requirement?
a. In tort, [a]ffront to personality is still the keynote of the wrong.
b. The victim does not sue derivatively . . . to vindicate an interest invaded in the
person of another. Thus to view his cause of action is to ignore the fundamental
difference between tort and crime. He sues for breach of a duty owing to
himself.
c. If duty is about defining relationships between the parties for purposes of fixing
responsibility, then proximate cause should not be a way of second guessing a
finding that duty existed.
d. Note that this also has implications for the analysis of breach. If the duty is
relational, then breach is not just a general wrong, but a wrong toward the
plaintiff.
i. I.e., the conductor could have acted wrongfully w/re: a passenger, by
aggressively pushing or pulling someone onto the train, but this is not
a wrong vis--vis Mrs. Palsgraf.
9. Androzo I:
a. Cardozo reaches right result for the right reason but misstates the doctrinal hook
for applying those reasons
b. Andrews properly framed the question but then reached the wrong result by
misunderstanding proximate cause to torn on inquiry concerning expedience
(instead of the narrower scope of the risk question)
c. This approach has been adopted by the R3
10.Androzo II
a. California and NY have melded Cardozo and Andrews another way
i. Andrews was right to say this question cannot be resolved by
employing a subtle understanding of how the elements of negligence
align with one another
a. Should take an all things considered approach as to whether
expedience or policy suggests that the defendant ought to be let
off the hook notwithstanding that is carelessness caused Ps injury
g.
h.
i.
j.
k.
l.
m.
e.
f.
g.
h.
i.
j. Appellate review
i. Standard for damages is did T.CT Abuse its discretion?
k. Collateral Source Rule: D cannot introduce evidence that victim has received,
or stands to receive compensation for her injuries from some other source
i. Rationale:
a. Tortfeasor should not benefit just because P had insurance
b. Others say to deduct for insurance proceeds would deny P benefit
she has secured from insurance
c. Other argues helps counteract the American rule denying
successful P attny fees as part of damages
ii. Modern trend: at least half the states have modified or abolished this
rule
l. Pain and Suffering Damages and Tort Reform
i. As courts, commentators, and interest groups, and legislatures have
become increasingly concerned about the size of jury verdicts,
legislatures have responded with various measures, including some
that directly address compensatory damages
a. VA limits total compensatory damages
b. Other states have enacted legislation placing a cap only on
noneconomic losses (CA Civ Code)
c. Others eschew caps in favor of more robust judicial review (NY
law)
ii. who bears the burden of this sort of cap?
a. the most traumatized s? s w/ minimal econ. losses (e.g.
retirees)?
4. PUNITIVE DAMAGES (exemplary/vindictive)
a. Basics: Willfulness/Wantonness/consicious disregard
i. Judge can have role in determining if damages are excessive
a. Common law standard: reasonable juror
b. Shocks conscious: appellate court very deferential to trial court
ii. Jury-Just because can award PD does not entitle P to them
automatically
a. Only if tort and willful, wanton, reckless actions
b. Lots of discretion as opposed to CD
c. Jurisdictions split on BURDEN OF PROOF
i. Many say P must present clear and convincing evidence
showing quite likely D acted with the requisite disposition
iii. Intentional Torts
a. Often, but not always available
e. Probability of detection
i. Argument that you need to make def pay more when its harder to
detect the wrongdoing, because def wont always be caught
a. So punish them when they are caught
b. Also works in terms of an incentive for victims to sue (see under
deterrence)
f. Substitute for private parties taking the law into their own hands
g. Release mechanism punitive damages are a means of extracting a form of
vengeance
5. When to Award
a. Instances when to award punitive damages:
i. 1. When compensatory damages are too low to deter wrongdoing b/c
it is easy for the wrongdoer to avoid detection (Mathias bedbug case)
- need a certain quantum of people suing to have effect OR punitive
damages.
ii. 2. When D is likely to turn a profit from wrongdoing. (Mathias again)
iii. 3. When violation is non-economic in nature and only leading to
nominal compensatory damages, so not enough deterrence (spitting in
face)
b. TEST FOR PUNITIVE DAMAGES (National Byproducts)
i. NEED AT LEAST RECKLESSNESS.
a. Gross negligence? Dunno.
b. Regular negligence does not hold up, naturally.
ii. Evidence indicates that the D acted WANTONLY in causing the injury
or with such CONSCIOUS INDIFFERENCE to the consequences that
MALICE may be inferred.
a. Malice = very likely to get punitive damages.
i. Distinct from intent, malice is a bad motive, acting out of
spite/ill will
b. Dissent emphasizes: Malice no longer needed: enough if D acted
recklessly or wantonly or with conscious indifference to the safety
of others.
iii. ***For reckless, willful, or wanton conduct***:
a. 1) Conduct has to create a high degree of risk of harm (P) OR
risk of very serious harm (L) AND
b. 2) D, when acting, must be conscious of the risk and must proceed
without concern for the safety of others. (Mental element beyond
regular negligence)
iv. Gross negligence is a situation with high P or L and no conscious
mental element.
a. Consciously careless
12.D wealth with PDs
a. Courts have uniformly deemed evidence of a Ds wealth to be relevant to the
jurys determination of the size of any punitive award
i. Not because deserve greater punishment but because the actors
wealth may have factored into its decision to behave as it did
b. To reduce bias courts, bifurcate trials into Compensatory damages and PF case
and then separate for PD at which evidence of wealth is introduced
c. Trifurcate in some instances 1. Liability 2. CDs 3. PDs
13.Mathias and Antisocial conduct
a. Posner: suggests PDs assist in deterring and punishing criminal conduct that
would otherwise escape sanction due to detection or victim lacks incentive in
light of psychic and economic costs (i.e. scorched earth defense tactics)
14.Who Pays?
a. Vicarious liability: an actor other than the tortfeasor is held liable for the
damages that the tortfeasor inflicted:
i. Respondeat superior: when holding employers responsible for the
actions/wrongs of their employees, when employer has not done
anything wrong
a. Directly liable: if employer has done something wrong (negligent
in hiring/supervision)
b. Vicarious liability on the basis of relationship between employer
and employee; employee has to have been acting within the scope
of his employment
i. Need managerial capacity or act of company condoning
behavior
c. Both direct and vicarious liability can be pursued simultaneously
(which P should probably do to be on the safe side)
15.Exxon
a. Allows for PDs through vicarious liability, but approved instruction allowing
the jury to reduce the amound of any punitive award agains Exxon if it found
that corporate policy makers did not actually participate in or ratify the
wrongful conduct
b. Different than Mathias
i. With Mathias people injured through period of time
ii. Enough incentive to sue Exxon already and less barriers to suit
16.Insurance
a. Courts split on whether insurer can issue liability insurance policies
i. Reason for barring such policies: against public policy to let
perpetrators of egregious wrongs escape punishment
F. COMPARATIVE FAULT
1. Contributory negligence traditionally meant that if plaintiff was found to be at all at
fault, he couldnt recover reflected the view that if plaintiff wasnt coming to court
with clean hands, he was barred from recovery
a. Law now allows for recovery even when plaintiff is found to have been
party at fault
b. Rule of contributory negligence does not extend to claims of recklessness or
intentional wrongdoing on the party of the D
i. Thus carelessness by the P is irrelevant in suits for battery of false
imprisonment
ii. Also reflects shift away from thinking about tort law as corrective
justice growing concern with deterrence, using tort law as a way of
regulating risk-taking behavior in society
2. History of Contributory Negligence
a. Allowing D to walk free because P behavior is seen as a superseding cause
1) A reasonable person would have acted differently under the same or
similar circumstances
o OR P did no comply with a statute enacted for her own protection
(per se)
2) Ps unreasonable conduct was a cause of Ps injury
b. Smith v. Smith (Mass. 1824)
i. s careless wood-stacking caused s injury,
a. but s careless driving also caused s injury
ii. Contributory Neg
a. when & are both at fault for s injury, loses
b. CN = complete defense to negligence (not I.T.s)
c. Courts find a way to relax this over time and allow cases to go forward even in
presence of contributory negligence
i. Jury nullification: make it equitable decision, jury had enormous
discretion a judge is authorized to grant either a motion for JNOV or
motion for a new trial
ii. Last Clear Chance: a negligent plaintiff can nonetheless recover if
he is able to show defendant had the last opportunity to avoid the
accident.
iii. Emergency Doctrine
3. Historically, contributory negligence was a complete bar to recovery
a. Exception: admiralty law divided damages equally, regardless of degrees of
fault
concert
b. Also regularly applied when two negligent actors, acting independently of each
other, caused a single indivisible harm to the plaintiff (i.e. Ravo)
c. Also applied in hazardous waste contexts
d. Under Several liability, each D is ONLY liable for the share of responsibility
which he is allocated
e. Under Joint and Several liability, any one of the Ds can be made to pay 100%
of the damages (if other insolvent, etc.); responsibility for liability is shared
f. Elements
i. 1) when Ds share responsibility due to vicarious liability (for
example, respondeat superior)
ii. 2) when Ds act in concert - toward a coordinated purpose (drag race)
iii. 3) in situation where injury is indivisible ex: Ravo v. Rogatnik
g. Allocation of FAULT allocation of liability for damages
h. CONCERN/PRACTICALITY: Does this mean one minor tortfeasor will have
to shoulder all the burden? NO: Start with allocating share of responsibility to
Ds, and P can recover from either, and THEN D can bring restitution action
for contribution to get reimbursed for share of damages other D should have
paid.
i. State efforts to cut back on joint/several liability
i. 14 states have abolished JSL;
ii. 28 others have limited JSL
Some jurisdictions have abolished altogether or for certain cases
Concern about use of joint/several to seek out deep pockets only marginally
involved (municipalities, etc.)
A dozen states have abolished
A dozen have abolished J&S where the D is less than a certain % (typically
50%) at fault
A few states retain J&S for economic damages (like medical expenses) but
not for non-economic damages (loss of consortium, pain and suffering)
A handful retain the doctrine only where the P is not at fault
A handful retain J&S but reallocate the % share of any insolvent D for other
parties in the case (according to shares of fault)
Tennessee:
If multiple defendants are found liable in a civil action governed by
comparative fault, each defendant is only liable for the percentage of
fault allocated.
No defendant will be held jointly liable for any damages; however, the
doctrine of joint and several liability will still apply in civil conspiracy
kneecaps; he had been watching the ride and knew what it was/did,
Flopper case
P had assumed the risk (open/obvious), no breach
Secondary - there is an actual implied assumption of risk (but isnt this just
comparative fault?); can be broken into reasonable and unreasonable
Folds decision into CF, not a complete bar
For courts that adopt Knight, Smollett defense would fall here
Q: has P voluntarily and knowingly encountered the risk
c. Smollet v. Skayting Dev. Corp (p. 463, 1986)
i. Issue: Virgin Islands have shifted towards comparative responsibility
does implied assumption of risk still exist as a doctrine?
a. Law doesnt explicitly state that it was replaced
b. Restatement 2nd 343A provides that a possessor of land isnt
liable to invitees for harm caused to them by any activity or
condition of the land whose danger is known or obvious to them
i. Requires plaintiffs implicit acquiescence to known or
obvious dangers
ii. Holding: implied assumption of risk is still a doctrine in VI up to
legislature to eliminate it
a. Says P can be seen to have impliedly assumed the risk because of
knowledge
iii. Assumption of risk can still be applied to non negligent conduct
which constitutes waiver or consent but which involved no negligence
a. Here the absolute bar still remains
iv. Keegan/Smollet sets up weird tension
a. Two tiered approach
i. P acting unreasonably
ii. Knowledge of risk merges to CF
i. Here P who is acting reasonable is punished more than an
unreasonable P
rd
v. 3 Restatement is at odds with the outcome says that when the
plaintiff has been negligent, those cases should be dealt with under the
comparative fault regime
a. Gets rid of implied assumption of risk but leaves a little room for
dealing with some cases that straddle the boundaries between
assumption of risk and comparative fault under the rubric of
express assumption of risk
d.
e.
f.
g.
H. STATUTES
1. Role of Statutes
a. creating new torts
c.
d.
e.
f.
g.
h.
i.
j.
k.
l.
m.
iv. Issues figuring out intent of regulators (unlike legislature), unless fed
level (have to publish reasons)
v. NOT all states make regs per se (NY, for example)
even w/ these preconditions met, NPS claims have elements comparable to
common law negligence
i. R2 Four Factors
a. is among those whom the legislature or agency
intended to protect by enacting the statute or regulation? (a+b)
b. was the accident of a type the legislature or agency
meant to discourage by enacting the statute or regulation? (c+d)
ii. Framing issue (type of harm and person meant to protect) is a matter
of law for the judge
Gorris v. Scott ship owner failed to erect pens for sheep, violating Contagious
Disease Act. Storm washes sheep over. D not liable because statute was not
intended to protect against type of injury
Victor v. Hedges (p 388, 1999): D parks car on sidewalk to show P his stereo
which is against CA vehicle code. P gets hit and sues tries to invoke NPS
i. P was among protected class of pedestrians
ii. BUT not the type of accident legislature was trying to prevent
Regulations
i. Compliance sets the floor but not the ceiling
a. Evidence of non-negligence but does not preclude a finding that
the actor is negligent
b. Could be other reasons for negligence
Used as a Defense?
i. Probably not, statute is one element but dont set standard for
reasonable care
ii. Statutes set floor
iii. NPS with compliance doesnt work in converse
a. Most court will allow this as evidence for jury
Judge and Jury
i. Judge:
a. Decides whether law is a safety statute
b. Jury instruction
i. Violation of statute is negligence if it is excused or not
ii. Jury:
a. Causation
i. Not only about violation but also if P contributed
b. Damages
CARDOZO Rationale for NPS
i. Legislative supremacy
ii. Constraining jury not judges
iii. Judge in fact deciding force of statute
n. Implied right of action
i. statute imposes a duty apart from the duty-not-toinjure-through-carelessness recognized by the tort of
negligence
ii. statute is silent as to whether violation gives rise to a
claim for damages by a person injured by a violation
iii. injured by s violation sues for breach of statutory duty
iv. Q: does the statute implicitly create a private right of action, such that
is entitled to redress from for s violation of the statute?
a. Courts hesitant to create COA here
EXCUSE
I. EMOTIONAL HARM
1. Negligent Infliction of Emotional Distress (NIED)
2. Wyman v. Leavitt (p 748, 1880) No Injury rule
a. Issue: rocks carelessly blasted onto Wymans property Mrs. Wyman alleges
she suffered anxiety as a result of the blasting, wants to recover
b. Holding: Mrs. Wyman cant recover
c. Court says her emotional distress claim isnt parasitic to the property damage
her husband owns the property (not her), and also reflects traditional reluctance
to allow recovery for emotional distress claims parasitic to claim for negligent
property damage
i. If damage to property had been intentional, or if she had owned the
property, may have been able to recover
d. Development of narrow rules allowing plaintiffs to recover for NIED,
independent of physical injury
i. Physical impact rule allowed recovery for mental distress if
plaintiff could show he had suffered a contemporaneous physical
impact
a. Watered down so the impact merely had to be slight or trivial, i.e.
dust touching his skin
3. Robb v. Pennsylvania RR (p 749, 1965): Zone of Danger (ZOD)
a. Issue: plaintiffs car was stuck in a rut negligently caused by def at a RR
crossing she jumped out right before the train hit and destroyed her car and
claimed NIED
b. Holding: plaintiff is allowed to recover for her mental distress suffered from
fearing for her physical safety
c. Court moves away from physical impact rule adopts zone of danger test
d. Takes approach that it is their duty to afford a remedy and redress for every
substantial wrong (echoed in Dillon) not concerned about unlimited liability
or trivial claims
e. Zone of danger test requires 3 elements for plaintiff to recover for mental
distress damages:
i. Plaintiff must be within the zone of physical danger from defs
carelessness (objectively determined, not subjectively/from
plaintiffs perspective)
ii. s contemporaneous awareness causes her to fear for her own
safety, and
a. i.e. cant be asleep
iii. Plaintiffs fear of being physically injured must be the cause of
her fright / emotional distress
a. Most jurisdictions dont even go here/dropped this requirement
f. ZOD Arbitrariness?
4. Under Either Rule Still Can Recover:
a. Intentional Torts
b. Distress is parasitic on physical harm
c. Special relationships
d. Bystander liability
5. R3:
a. places the other in immediate danger of bodily harm and the emotional
disturbance results from the danger; or
b. occurs in the course of specified categories of activities, undertakings, or
relationships in which negligent conduct is especially likely to cause serious
emotional disturbance.
6. Special Relationships
a. Just because contract provides sole COA to sue does not mean the P can recover
for ED
b. special-special relationships
i. Those who deal with issues surrounding death
a. Mortician duty to family to not mishandle bodies
ii. Passengers of Common Carriers
a. Duty with pure ED
iii. Employer-Employee must be special
a. Hedgepeth: Dr treating someone for HIV, says he is HIV positive
and he finds out 5 years later he is negative
d.
e.
f.
g.
h.
Fairness
Incentives/
Deterrence
Legal
Process
Negligence
Strict Liability
Strict liability = legal responsibility for damages or injury even if the D not at fault or
negligent
o ACTUAL/PROXIMATE CAUSATION is still an important factor (but NO need to
prove breach).
Ex: Blasting noise causes frightened mink mom kills babies see Foster v.
Preston Mill Co. (WA 1954).
Areas of Strict Liability
o 1. Abnormally dangerous activities: blasting, large reservoirs, gas/tanker trucks,
gathering/keeping things which are a nuisance if unleashed
o 2. Damages caused by wild animals
o 3. Some products liability
o 4. Respondeat superior
o RES IPSA LOQUITUR can be a way to basically impose strict liability.
Defenses to strict liability:
o Comparative negligence
o Assumption of risk (Ex: Indiana Harbor)
Justifications for strict liability
BUT strict liability doesnt encourage increased safety any more than
negligence
Ps will generally be compensated more than negligence, but may get less
(jury lacks moral blame, smaller pie)
BUT administrative compensation scheme may be more efficient
Justice/fairness
Problems of proof: P may not have evidence (often b/c it explodes)
High probability that accidents of this type caused by negligence
a.
b. Negligence
i. Holmes v Cardozo
a. CARDOZO wins, courts dont decide, the jury typically will be
defined as what is expected
c. Strict Liability doing something different
i. Legal analysis doesnt proceed on a case by case basis
ii. Once we decide one activity is strict liability activity is always
strictly liable
iii. Once strict liability is appropriate
a. Legal issue not for jury
i. Jury can still decide cause, damages
ii. Takes away case by case analysis
5. Abnormally Dangerous Activities
a. Draft Third Restatement (20): an activity is abnormally dangerous and
subject to strict liability if:
b.
c.
d.
e.
f.
g.
d. Greenman v. Yuba Power Products (p. 905, 1963) P bought power tool which
could be used in various ways, in using in one of its proper functions, small
screws fail to hold piece of wood properly and shoot it into Ps face. P sues
under negligence and breach of warranty
i. HELD: D is liable under strict products liability
a. Ds are putting products on the market knowing they will be used
without FURTHER inspection for defect.
b. NOT design defect; decided before distinctions for products
liability were in effect
e. Defect-Based
i. Traynor indicates liability should not extend to absolute
ii. Rather should turn on existence of a defect in the product
iii. SPL is not absolute
f. Restatement (Second) Section 402A
i. (1) One who sells any product in a defective condition unreasonably
dangerous to the user or consumer or to his property is subject to
liability for physical harm thereby caused to the ultimate user or
consumer, or to his property, if
a. (a) the seller is engaged in the business of selling such a product,
and
b. (b) it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold.
ii. (2) The rule stated in Subsection (1) applies although
a. (a) the seller has exercised all possible care in the preparation and
sale of his product, and
b. (b) the user or consumer has not bought the product from or
entered into any contractual relation with the seller.
g. R3 1. Liability of Commercial Seller or Distributor for Harm Caused by
Defective Products
i. One engaged in the business of selling or otherwise distributing
products who sells or distributes a defective product is subject to
liability for harm to persons or property caused by the defect.
h. What Counts as an Injury?
i. Generally for physical harm
ii. Courts hesitant in recognizing claims for things such as economic loss
iii. A particularly important question as to the injury element concerns
whether the owner of a product can invoke products liability law to
recover for a defect that causes damage to, or the destruction of, the
product itself.
iv. The general rule, subject to exceptions that vary by jurisdiction, is
that the owner cannot, and is instead left to the protections he was able
to obtain in the contract of sale via express or implied warranties. This
is sometimes dubbed the economic loss rule.
v. By Contrast: damage caused by a product defect to property other
than the product itself is ordinarily actionable in products liability
a. i.e. water heater burns down a house
i. What is a "Product"?
i. Services even when provided commercially are not products
ii. If the law were otherwise products liability could end up swallowing a
great deal of tort law
iii. Products:
a. foods and beverages, automobiles, and power tools but also to
large industrial machines, kitchen appliances, toys, recreational
and sports equipment, pharmaceuticals, chemicals sold for
commercial or residential use, certain medical devices, cosmetics
and toiletries, airplanes, boats, motorcycles, protective gear,
scientific equipment, packaging materials, farming equipment,
pesticides, chemical treatments, and so on.
iv. Note that the issue of whether something counts as a product may
come out differently if the question is being asked for some other
purpose or in some other area of the law.
v. Not Products:
a. Real property
i. i.e. land
b. Human Body parts
c. Live animals
i. Courts differ on this depending on the context in which the
injury caused by the animal comes about
ii. Dog biting a P not a product
iii. Dog sold with a disease is a product
vi. Textual material
a. i.e. encyclopedias, guides, or books
vii.
Intangibles
a. Reside at the margins
b. Generally not but occasionally yes
viii.
Used products
g.
h.
Scope
Decision
Mode
Duty
Decisionmaker
Burden of
proof
Negligence
based on fault
B>p*L?
case-by-case
duty is a
necessary
element
jury must
decide breach
Plaintiff
Classic Strict
Liability
imposes
liability even
where no party
is at fault
high risk and
conventional
use?
categorical
duty is not
required for
physical harm
judge
Decides
plaintiff
Products
Liability
Where product
defect, based
on risk/utility
balancing
Product
specific can
be categorical
No duty
required under
McPherson
can extend to
emotional
damages for
consumers
Jury
defendant but
only once
plaintiff has
established a
deviation
(MD), a RAD
(DD), no
warning for
product that is
not obviously
dangerous
(failure to
warn)