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Torts

Spring 1999

Outline

Christopher S. Lee

I. Is there a Duty to Exercise Due Care?

A person generally has no duty to assist another, even where he could easily do so.

A D has a duty of behaving towards a P with the degree of care that a reasonable person would exercise in like circumstances.

A. The Misfeasance - Nonfeasance Dichotomy

Misfeasance - An affirmative act which harms or endangers the P

Nonfeasance - A mere passive failure to take action.

1. Only major question regarding misfeasance is whether P within foreseeable risk

a. See Palsgraf and Weirum.

No Other Problem with Misfeasance.

See Coggs v. Bernard

2. Sources of Duty in cases of Nonfeasance

B. Compare Duty in Tort & Contract

Where a K exists, there has been a tort if the D was guilty of MISFEASANCE rather than merely NONFEASANCE.

Once the D starts to perform his promise, if he fails to complete it, the P has a much better chance of being able to sue in tort.

1. R2d Contracts 90

Promissory Estoppel

An unspecified promise, if relied upon, may cause promisee grief.

Carrying out unsupported promise can have suit in tort.

Consideration is not necessary for Tort/Negligence

Today - Better to use Promissory Estoppel

2. Seavey's Theory of Misrepresentation

Torts of Deceit

Misrepresentation

Financial Loss of Money

Must Prove Intent

Difficult to Prove. Easier to Prove Promissory Estoppel

3. Tort v. Promissory Estoppel

Factors in Erie ---> Tort Theory

Implied Promise; Not Express Promise

Personal Injury; Not Financial Loss

Factors in Thorne v. Deas ---> Contract Promissory Estoppel Theory

Express Promise

Financial Loss

C. Parallel Problem of Privity in Products Liability Cases

D. Owner-Occupier Liability

4 Main Duties

1) Failure to Rescue

2) Land Owner/Land Occupier Duty

3) Duty to Follow Through on Gratuitous Promise

4) Duty to Assist Close Relations

1. Traditional Approach

Invitee - Persons invited onto land to conduct business with the owner; and those who are invited as members of the public for purposes for which the land is held open to the public.

The Owner has an affirmative duty of care to an invitee to inspect the premises for hidden dangers, and to make the premises reasonably safe.

Licensee - Social Guest; A person who has the owner's consent to be on the property, but who does not have a business purpose for being there.

The Owner has no affirmative duty to make the premises safe for the licensee, including no duty to inspect for hidden dangers

Trespassers - A person who is not invited by the owner of the property to be on the property.

The Owner has NO DUTY TO A TRESPASSER to make the land save, to warn of dangers, or to protest the trespasser in any other way.

EXCEPTION: If the Owner has knowledge of the trespasser's presence, the Owner is required to use reasonable care for the trespasser's safety. Usually a warning of danger to the trespasser is sufficient, but a "NO TRESPASSING" sign is not sufficient.

Children Trespassers - The Owner owes a duty of reasonable care to a trespassing child if certain conditions are met.

2. Modern Approaches

The Owner owes a duty of reasonable care to prevent an unreasonable risk of harm.

If the Jurisdiction has abolished the distinctions between trespasser, licensee, and invitee, it probably imposes a single standard of "reasonableness under all circumstances". In any event, we must consider the foreseeability of P's presence on the premises and the foreseeability of danger to him.

Would the Owner be found liable or not?

Owners can be held liable for conditions which pose an unreasonable risk to persons outside of it.

Natural Hazards - Owner has no duty to remove or guard against natural hazards, even if it poses an unreasonable danger of harm.

Unnatural Hazards - Owner has a general duty to prevent an unreasonable risk of harm to persons outside the premises.

Trespassers - If the owner has a reason to know that a limited portion of his land is frequently used by various trespassers, he must use reasonable care to make the premises safe, or at least warn of dangers.

EXCEPTIONS:

Natural Conditions

P's Willful & Wanton disregard of safety warning.

Sufficiency of Warning; Trespasser's duty to Avoid Harm

Children Trespassers -

Restrictions

a. Artificial Condition of the Land

b. Only when owner has knowledge of previous trespassing

c. Child is old enough to understand risk; barred from recovery

Auto Guest Passenger - Generally held to be bound by the same rules as a Licensee.

Tenant - Liable for those areas which he is in actual possession of.

Landlord - Liable for common areas such as stairways, elevators, outside grounds, snow and ice removal, other natural conditions. Once possession is transferred, possessor is liable.

Duty to use reasonable care to protect its tenants from "foreseeable criminal acts committed by 3rd parties."

Escape Devices

1) Reckless, Wanton Misconduct

2) Categorize Individual as Licensee instead of Trespassor

Implied Trespassor - Owner knows of frequent trespassing; does little to stop it.

3) Non-Owner owes Duty of Due Care

i.e. - Power Co. line falls on Chicken Wire fence.

4) Protection of Children

Attractive Nuisance Doctrine

Kids Drawn to Man-Mad items - Pools, Lights

Children - Innocent Trespassers - Duty Owed

Attractive Nuisance Doctrine

R2d Torts §339 - Artificial Conditions Highly Dangerous to Trespassing Children

1) Owner knows or has reason to know children likely to trespass; and

2) Owner knows condition of location will involve unreasonable risk of death or injury; and

3) Children of Tender Age do not understand the risk; and

4) Owner's burden of eliminating risk slight; and

5) Owner fails to exercise reasonable care to eliminate danger.

Public Officials - Police, Fire, Rescue

Since no financial benefit, difficult to classify.

Rowland v. Christian

CA - Host sued for liability

CA SC changes Trespass laws

"Middle of the Road Approach"

Treat Licensees & Invitees as the same - Some duty of due care owed to everyone; must maintain premises in reasonable manner.

Treat Trespassers with no duty owed - no foreseeablility, therefore no duty.

Burglary is Foreseeable - Therefore must maintain premises for burglar.

Majority of ST CT's reject CA Roland decision

3. Professor Leon Green on Duty in Negligence Cases

1) Administrative Factors - Administration of Justice

2) Ethical or Moral Factor - D conduct blameworthy

3) Economic Factor - Machine, Factories Protection

4) Prophylactic Factor - Finding duty in certain classes may help deter other classes

5) Justice Factor - Position of respective parties, who can best bear costs; least important factor.

4. Public Policy

Society making judgment that persons should be afforded protection in certain classes and types of classes.

Rulings create entirely new types of laws and cases that create additional work for the Judiciary.

In 1920's - 1930's - CT's began to find liability for you caused harm without specific wrongdoing.

If you injure others through your negligence, then a duty to rescue is created, even if you imperil yourself.

5. Escape Devices for Trespass

II. Has the Existing Duty been Breached?

Duty - Requirement of D to conduct himself to certain standards.

Duty of Care - The duty of behaving towards the P with the degree of care that a reasonable person would exercise in like circumstances.

A. Need for Foreseeable Risk; If Foreseeable then

What does a Reasonable Person Know?

Without Knowledge, a Reasonable Person cannot foresee risk.

Without foresight, one cannot be negligent.

Reasonable person knows everything the alleged negligent person knows that is relevant.

Subjective - Reasonable Person knows he doesn't know.

Reasonable Person may know more than Negligent Party.

Reasonable Person has "Common Knowledge"

If common knowledge core, Reasonable Person will be charged with Knowing OBJECTIVE KNOWLEDGE.

OBJECTIVE - REASONABLE PERSON SHOULD KNOW

SUBJECTIVE - REASONABLE PERSON KNOWS

Knowledge - Mostly Subjective; Partly Objective

Once the Risk is foreseeable, is the Risk Reasonable or Unreasonable?

Intuitive Approach - Cricket Case; No negligence, small risk

Calculus of Risk

Cost

Burden

Size

To Avoid Risk

B. Calculate Risk (The Common Law Approach)

1. Hand's Formula

Burden > Probability of Injury * L(Injury)

2. Terry's Formula

Negligence from Foresight

3. The Proper Point of View in Calculating

(The Reasonable Person Test)

a. Characteristics of "Reasonable Person"

Objective v. Subjective

C. Other Ways in Determining Specific Standard and its Breach

1. Judge as Determiner: Holmes's View and Its Rejection

2. Custom Today Generally not Considered, but maybe some Evidence.

Custom can be used to show the presence or absence of reasonable care, but not conclusive.

a. EXCEPTION: Medical Malpractice

3. Criminal Statutes as a Source of Specific Standard

a. Legislative Purpose

Defines reasonable conduct in a certain kind of way

b. Violation as Negligence Per Se

Requirements

P must be a member of the class of persons whom the statute is designed to protect.

Statute must be intended to protect against a particular kind of harm.

Under the negligence per se doctrine, violation of a statute by itself establishes a lack of due care if:

1) the statute clearly defines a standard of conduct which D did not conform;

2) the statute was intended to prevent the type of harm which in fact occurred; and

3) P was within the class the statute sought to protect.

Was the type of harm that occurred the type of harm the statute was designed to prevent?

D can be excused from non-compliance if:

1) he couldn't avoid the violation even though he was careful; or

2) he chose to violate the statute as the lesser of two evils.

c. Violation as Prima Facie Negligence

Some Evidence of Negl.------ Prima Facie ------ Negligence Per Se

d. Violation as some Evidence of Negligence

D. Establishing Breach when Conduct and/or Defendant Unclear or Unknown

1. Expert Testimony

2. The Res Ipsa Loquitur Inferences

There is no direct evidence as to whether the D was negligent.

a. Requisites of, If Any

Negligence & Identity

Double Helix Example

Judge - Reasonable persons could draw inferences more likely than not.

P has burden of proof

Inference must be strong enough to go to jury.

RIL = Inferential Reasoning

RIL <> Legal Doctrine

Creates Rebuttable assumption of Negligence.

Zuckman - No requirements for RIL

ONLY needs INFERENTIAL REASONING

2 Requirements for RIL * * * KNOW * * *

D must have been in exclusive control of instrumentality at time of injury.

P cannot be responsible in any way.

COMPARE RIL v. ACTS OF GOD

RIL - Device to Get Around

Conspiracy of Silence

Hearsay Rule

Informed Consent

Limited to selected situations

Function of RIL - Allows case to get to jury to determine the verdict. Gives P chance to get to jury.

P has BOP

Inference must be strong enough to go to jury.

Requires Inferential Reasoning.

RIL = Inferential Reasoning

RIL ≠ Legal Doctrine

Each element must be established by a preponderance of the evidence. Lose one element and the case gets dismissed.

ACTS OF GOD & RIL

Small plane more likely to crash than large plane.

Large vessels less likely to suffer an Act of God.

Vagaries of Nature.

Directed Verdicts in RIL

Common

Rare to have Circumstance of Overwhelming Negligence

b. Jury either Draws Inference or it Doesn't;

But No Calculus of Risk in these Cases

III. If a Breach of Duty Established, is it Cause In Fact of P's Injury?

1. Cause in Fact - P must show D's conduct was the cause in fact of the injury.

But For - the negligence of the D, the injury would not have happened.

Causation in Fact - Inferential Link for Jury to decide; therefore one cannot testify to causation; Jury must decide if link exists.

Given - D was Negligent

Issue - Did D's action contribute to injury?

Casual link between act and incident.

D should not be held liable to P unless D contributed to P's harm.

Did D's conduct contribute to P's injury? If YES, then Causual Link.

Prosser

Causation is an inference in fact that A is necessarily antecedent of B the injury.

A does not always precede B

i.e. - Skies darken before storm. Not always true.

Logic - After it, therefore because of it.

Link

Common Sense

Scientific Knowledge

Statistical Correlation

Most CT's will relieve D of liability if injury would have occurred regardless of actions.

Would injury have occurred in the absence of antecedent negligence?

YES - NO CAUSATION

NO - CAUSATION

2. Two tests for cause in fact

a. Usual Test - "But for"

"BUT FOR" Test of Causation

BUT FOR - Effective in Eliminating Causal Test

Inference must be more likely than not for a Preponderance of the Evidence.

Judge Hand - Judicial Restraintist - preferred not to apply Causation.

Undermines Safety Regulations.

Tobacco

Causation - Proved by Corporate Memos.

Today - AOR in Secondary Sense - Smoking causes illness, P assumes the risk when they smoke.

AOR - Upsets Juries.

b. Unusual Test - "Substantial Factor" - used primarily in two fires type sit.

Also used in Herskovits to avoid injustice.

If Under Inclusive - No "BUT FOR" Clause; find another test.

"Substantial Factor Test" - I know it when I see it.

Applied in Kingston v. Chicago Ry. - If there are two human agents that are negligent, they can be treated as if they were joint tortfeasors, therefore each can be held liable for the entire loss.

If not Causation, then Proximate Cause.

3. Problems of establishing inference - Grmistad, Reynolds, Kramer

4. Problems of identifying D - Summers v. Tice

5. Problems of identifying exact injury caused - McAllister v. Pa RR

a. Finessed if multiple tortfeasors can be joined and treated as jointly and severally liable.

IV. Proximate Cause - P must show injury is sufficiently closely related to D's conduct that liability should be attached. The injury must be reasonably foreseeable and not bizarre or extraordinary from the result of the D's negligence.

Negligence ----------Proximate Cause ---------- Causation ----------Injury

Can Assume

P has duty of due care

Conduct deemed unreasonable

Conduct cause of harm

Affirmative Defenses not available

Any other reason for not holding D liable?

Approximately 95% - No reason not to hold D Liable.

Often confused with Causation in Fact.

Proximate Cause ≠ Causation in Fact

Is there an analytic predictability?

Percustian Bed - Fit problem to limited size.

Policy Issues

Is there overriding policy that limits awarding Damages?

Corporations have limited liability.

CT - Massive Potential for Liability

Insurance

Subrogation

Infant Industry

Loss of Taxes

Loss of Employment

A. Nature

1. Always a Policy Question Where to Cut off Liability

See Ryan v. N.Y. Central RR

Destruction of Ryan's woodshed caused by RR negligent operation of locomotive. Held that destruction of woodshed was "ordinary and natural result"; and to place liability on RR would be too broad leading to limitless liability.

Some States have rejected the Ryan Decision

The One House Rule - D liable for the immediate next house burned.

If P won, all other homeowners would collect.

CT decided to protect infant industry and told homeowners to get insurance.

You can't sue God.

B. Basic Approaches

1. Direct Causation from Negligence

In re Polemis

Justice Andrews Dissent in Palsgraf

Direct Causation - D is liable for ALL consequences of his negligent act, no matter how unforeseeable or unlikely it may have been. Contrast with foreseeability/scope of risk.

Formulation - What a man may reasonably anticipate...is not decisive in determining whether that act is the proximate cause of the injury which ensues...Consequences which flow in unbroken sequence, without an intervening efficient cause, from the original negligent act, are natural and proximate...and the original wrongdoer is responsible regardless if he could have foreseen the particular results which followed.

Foreseeability or "Scope of Risk" - limits D liability to those results that are a generally foreseeable nature, but as to kind of injury and person injured.

Polemis - Direct Causation Case

D acted negligently in dropping plank on barrels, causing explosion and fire. Fire was the direct result of D's negligent act; therefore D liable. Damage directly traceable to the negligent act, and no independent causes.

CT in Polemis - Negligence caused harm to P

"We Don't Care" What Else Happened.

Must accept what happens, even beyond reasonable foresight.

"To Hell With Tortfeasors" attitude.

Direct Causation cut off at Intervening Cause

Substantial Intervening Cause will cut off Proximate Cause liability.

US CT's - Substantial Intervening Cause, foreseeable, human agency, Then Proximate Cause remains.

Substantial Intervening Cause (SIC)

Difficult to Determine

a.k.a. - Superseding Cause

What is Substantial?

If substantial, then must determine foreseeability

Direct Causation Model, followed by majority of states; AND if foreseeable, then proximate cause.

Policy - "To Hell with Tortfeasors"

If you are Negligent, Then you are Liable.

If SIC not foreseeable

P -----SIC-----I ?????

Risk = Harms foreseeable + Class of Persons

If harm is unforeseeable, then it is outside the risk; AND NO Proximate Cause

Foreseeable Risk measures Proximate Cause.

Risk Analysis Model - See notes p. 50; diagram

Harms + Person ≈ Legislative Purpose Doctrine ---> Negligence Per Se.

Polemis overruled in Wagonmound No. 1; nearly reinstated in Wagonmound No. 2.

Palsgraf - Judge Andrews Dissent

Similar to Direct Causation.

D bears burden of due care, to protect society from unnecessary danger.

Recognizes need to cut off D's liability at some point using nebulous test.

Factors -

• Natural and Continuous Sequence between cause and effect;

• Direct connection between events;

• Whether result was too remote from the cause;

• Remoteness in time and space

Measure of Proximate Cause = Harm + Person

Risk Analysis Approach - Used in NY & CA

Cardozo uses Risk Analysis

Policy - Should not place burden on people who cannot foresee risk of harm.

Duty over Proximate Cause - If you cannot foresee the potential harm, you do not owe a duty of due care.

Cardozo - If he decided Polemis, would say person is unforeseeable, therefore no duty owed.

English CT - if decided Palsgraf

RR Negligent

Doesn't matter that they couldn't foresee farm

Complications - SIC - Stampede - May cut off liability

Andrews - Dissent

D's conduct creating risk to everyone.

D owes everyone a duty of due care.

Proximate Cause - Know it When I see it

3 Streams Analogy - When facts muddy water, Proximate cause disappears.

CPA Hypothetical

CPA Negligently certifies balance sheet of bad corp.

Bank lends corp. money

Is CPA negligent? Yes

Did negligence cause loss to P Yes

Was bank loan foreseeable? Yes

Is harm foreseeable Yes

Was there a financial loss? Yes

Proximate Cause - Cardozo's Risk Analysis would find CPA Liable

BUT - CARDOZO found FOR the CPA. Why?

Competing Policy

CPA baby industry; didn't want to destroy it.

Could create massive liability

Professional Malpractice Insurance not yet Available

Cardozo - Reasonable Risk ---> No duty of due care.

Andrews - Duty owed to anyone with foreseeable risk.

Adopts Polemis

Eclectic Approach

Freakish Cases

3 Streams Analogy

"I Know it when I see it" Approach

2. Risk Analysis of Cardozo in Palsgraf

Proximate Cause - whether the harm was foreseeable; and if the harm was not brought about by an extraordinary or unforeseeable sequence of events.

R2d - D's conduct will not be the proximate cause of P's harm if, looking back from the harm to the conduct, it appears to the court "highly extraordinary" that the conduct should have brought about the harm.

a. Persons Within the Risk

If P is a member of a class to which there was a general foreseeability of harm makes foreseeability irrelevant.

b. Harms Within the Risk

See Wagon Mound I & II

Wagon Mound 1 - Dock Owners Sue

TC - Not reasonably foreseeable to D that fire could start.

AC - D not liable, rejects Direct Causation rule

CT adopts Risk Analysis - Unfair to hold someone responsible for something they could not foresee.

Wagon Mound 2 - Ship Owners Sue

D liable. Act foreseeable.

CT - Still uses Risk Analysis; BUT

P doesn't have to argue unforeseeability because no Contributory Negligence.

British CT's - Last Wrongdoer Rules; cuts off negligence.

U.S. CT''s

SIC, foreseeable, proximate cause doesn't cut off

Rejects Last Wrongdoer Rule

See Brower Case

3. Visceral or Eclectic Approach of Street, Green, Prosser, Andrews

4. Eggshell Skull Case Hypo

D injures P with eggshell soft head.

D claims unforeseeability

Risk Analysis

Harm to Person

Foreseeable due to situation

YOU TAKE THE VICTIM AS YOU FIND HIM

Foreseeability of harm doesn't matter.

Must Prove Negligence, Causation in Fact

But harm doesn't have to be foreseeable.

Risk Analysis- Problematic based on Foreseeability of Risk

Professor Morris Risk Analysis

1) Can foresee Risk

2) Freak Accidents - beyond foresight, not required for liability

3) Inbetween Foreseeable & Freak Accidents

Negligent - Proximate Cause

Results Foreseeable

Details Unusual

CA - Follows Risk Analysis

Most states follow direct causation with exception of SIC, Proximate Cause not cut off.

Palsgraf - Unforeseeable Persons

Wagon Mound - Unforeseeable harms - No Liability

Polemis - Unforeseeable Harms - Finds Liability

C. Recurring Cases

1. Danger Invites Escape See Tuttle

Escape will not be a superseding cause so long as it was not completely irrational or bizarre; and it was a normal consequence of the D's conduct, whether foreseeable or not.

Includes

• Attempted escape from harm

• Rescue

• Attempted medical treatment

• Actions under emotional disturbance (suicide)

2. Danger Invites Rescue See Wagner

Rescue will not be an intervening cause unless it is done in a grossly careless manner.

But possible Contributory Negligence may be involved.

D. Related Issues

Brower v. NY RR

RR hits cart. 2 RR detectives protect RR goods, but not cart's goods.

Intervening criminal conduct on 3rd parties.

Proximate Cause will not be cut off.

CT - Foreseeable risk of theft.

Intervening Cause Foreseeable - doesn't cut off liability

Human

Wild Animal

Forces of Nature

V. Actual Harm to Plaintiff?

A. Proof of Injury - In Negligence action, P must show he suffered some PHYSICAL harm; can't recover on mental harm alone. Nominal damages are not available. Once physical harm established, can recover for mental and other harms.

The existence of an actual injury is required.

B. Measure of Damages

Elements of Damage

• Economic loss - direct out of pocket expenses; medical, earnings

• Physical Pain - suffering from injury and future suffering

• Mental Distress - fright and shock, humiliation, hedonistic damages, anxiety

• Loss of Consortium - loses some aspect of companionship

• Wrongful Death - recover loss of money, recovery for grief

Collateral Source Rule - Don't discount award for reimbursements from insurance or others. D still liable for complete percentage of award. May be joined with Comparative Negligence or Joint & Several Liability issue. "Assuming jurisdiction uses collateral source rule, P's recovery will NOT be reduced."

Duty to Mitigate Damages - P should seek prompt medical attention after injury, or should use preventative measures such as seat belts.

Punitive Damages - Only where D was reckless or willful in conduct. D disregarded the potential substantial risk of injury to others.

VI. Any Affirmative Defenses?

Central Fact: Will P be barred in whole or in part from relief?

A. Contributory Negligence - A P who is negligent, and who's negligence is a proximate cause of his injuries, is totally barred from recovery.

1. Effective of Contributory Negligence is to Bar Recovery Completely

See Butterfield v. Forrester - D blocked road with pole; P riding fast horse, hit pole, gets injured. Held P could have avoided injury if he used reasonable care. All or Nothing Rule.

Professor James

1) P Contributory Negligence will affect recovery.

2) Affect will become complete bar to recovery.

D must specifically plead Contributory Negligence as defense. Defendant bears burden of proof.

1) Negligence

2) Cause in Fact of Injuries; see Martin v. Herzog.

3) Proximate Cause

4) Injury

NOTE: D is not required to have a duty of due care.

P held to same standard of care as D - The care of a reasonable person under the circumstances.

Children - Subjective standard; reasonable child with similar age, intelligence, and experience.

Reasonable Care - Left to Jury to decide.

P negligence must contribute proximately to injuries for Contributory Negligence Defense. P's negligence must be a cause in fact of the harm. "But for the P's actions, injury would not have happened." Or P's actions must be a substantial factor.

Slightest Contribution Rule - P is negligent if he departs from a reasonable standard of care in even the slightest respect.

Contributory Negligence Defense cannot be used with Intentional Torts claim.

Did the P behave with reasonable care?

• P should have noticed danger and didn't;

• P noticed the danger and unreasonably proceeded. Also could be Assumption of Risk.

If jurisdiction has common law contributory negligence, then P will get no recover because...

If jurisdiction has comparative negligence, the P's claim will be reduced by the proportion of his fault...

Negligence Per Se - Contributory Negl. can be defense where liability is based upon statutory violation.

Contributory Negligent actions of one cannot be imputed onto another. i.e. Parent is not Contributory Negl. for child's actions.

Contributory Negligence IS NOT A DEFENSE:

• Defendant is Intentional Tortfeasor

• Defendant's negligence is wanton or reckless

• Defendant is Strictly Liable

2. Analysis

a. Calculation of Risk;

Cause in Fact

Contribution to P own Injury

Proximate Cause

3. Limitations on Contributory Negligence

a. Supposed Jury Leniency

b. Willful, Wanton Exception - bars Contributory Negligence

Contributory Negligence is not a defense to deliberate Reckless Wanton Misconduct (RWM).

|---------------------|-----------------------------------------|

Intentional Reckless Wanton Negligence

Tort Misconduct

Extremely rare.

Most cases are Negligence Cases.

BUT CT's may label negligence case RWM to get around Contributory Negligence defense.

c. Violation of Paternalistic Criminal Statutes

e.g. Child Labor Laws or DRAM Shop Act

Child Labor Law

Employee Negligent Per Se for hiring minor.

Minor is Contributory Negligent Per Se for operating machine.

Legislative Purpose at odds with protection statutes.

See Hudson v. Craft; boxing case.

See Gyerman v. USLCO; OSHA Longshoreman Case

CT won't allow Contributory. Negligence if P violates protection statutes.

P can escape Contributory Negligence limits if he is within the class of persons to be protected.

ONLY APPLIES TO PATERNALISTIC STATUTES

Look at Legislation

Determine Legislative Purpose

4 Corners

Preamble

Legislative History

Committee Debates

Committee Report

Floor Debates

d. Last Clear Chance Negates Defense of Contributory Negligence If Established - acts to limit Contributory Negligence Defense. If, just before the accident, D had an opportunity to prevent the harm, the existence of this LCC wipes out the P's Contributory Negligence.

LCC is ALWAYS ASSERTED BY PLAINTIFFs.

1. Subsequent Neg. of D in not avoiding injury to trapped or oblivious P when D can do so with safety to himself

2. Four True Cases of B.C.C.

3. One False Case of B.C.C.

Process

Notice Pleading

D denies P's complaint

D states P Contributory Negligent

P denies Contributory Negligence

P accuses D of failing to grasp LCC to avoid injury.

LCC - Only species of Negligence that eliminates Contributory Negligence. See Fuller v. Illinois RR

LCC - Must have a real physical opportunity to keep injury from happening.

4. Substitute for Contributory Negligence

a. Comparative Negligence in its Various Forms - Divides the liability between P and D in proportion to their relative degrees of fault. P's recovery is reduced by a proportion equal to the ratio between his own negligence and the total negligence contributing to the accident.

Originally applied in Admiralty.

Federal Employer's Liability Act (FELA)

46 States adopted Comparative Negligence

Maryland, Virginia, North Carolina, Alabama Don't

1. Pure Form

P allowed to recover, even if fault greater than D.

Followed in 33 states.

Multiple Parties - Combine all Defendants percentage of Negligence, equaling P's award.

2. Modified or 50% Form

P allowed to recover if fault is less than or no greater than D's fault.

Followed in 13 states. WVa

California - Dumps: Joint & Several Liability, Last Clear Chance

Adopts PURE Approach of Comparative Negligence.

Wanted to allocate Negligence in Percentages.

Prosser - All or Nothing Position; Conflicts with Comparative Negl.

CA dumps Prosser approach and uses James's approach.

All Pure Approach states use the James Method.

Multiple Parties

RWM - Reckless Wanton Misconduct

WWM - Willful Wanton Misconduct

CT's chose to allow RWM; Therefore Juries likely to find 80-90% negligence.

Other State Approaches to Contributory Negligence

Aggregation Assume Contributory Negligence aggregated

P 40% Negligent

A 30% Negligent

B 30% Negligent

UT - Aggregation Allowed

Allows P to recover if P's Negligence < 50%

P 40% is Compared to A 30% + B 30%

P 40% > A+B 60%

Wisconsin - NO Aggregation Allowed

P 40% is compared to A 30%

P 40% is compared to B 30%

P gets 0 because P < A; P < B

Most states bar P claim as soon as his negligence is as great as D's Some bar recover when P negligence greater than D.

Intentional Tort - Comparative Negligence won't apply.

Negligence Per Se - Normally Contributory Negligence applies. But if statute made to protect a certain class, most CT's say Contributory Negligence will not apply.

Negligence Per Se & Comparative Negligence - Most CT's allow apportionment of award, but some don't.

Seat Belt Defense in Contributory Negligence

• Complete Bar - Very Few States

• Apportionment - Small Number

• No Apportionment - Majority refuse to allow use of Seat Belt Defense

Seat Belt Defense in Comparative Negligence

• Defense Rejected - Very Few States

• Casual Apportionment - D liable for all injuries that would have occurred, but not injuries that would have been avoided.

• Comparative Fault without Casual Apportionment - Defendant liable for Defendant's damages minus Plaintiff's liability.

• Comparative Fault after Casual Apportionment - D liable for all injuries, but recovery reduced for injuries that could have been avoided.

Car Accidents Usually have 2 Collisions (NY)

1) Initial Trauma - Vehicle hits object.

2) Additional Trauma - Driver/Passenger hits dashboard or windshield because not using seat belt.

B < P L

B. Assumption of Risk - P assumes the risk of certain harm if he has voluntarily consented to take his chances that the harm will occur. When AOR is shown, P is completely barred from recovery.

California - After Li Case, if the P consciously decides to a certain risk, this will be a complete defense; but if the AOR consists of P's negligent and careless exposure of himself to the danger, this is the same as Contributory Negligence.

Most CT's using Comparative Negligence say AOR cannot be used as an absolute defense. Some states refuse to allow AOR as a separate doctrine from Comparative Negligence.

Express AOR - P explicitly agrees with D in advance of any harm that P will not hold D liable for certain harm.

Implied AOR - P assumes risk by her conduct. D must show P's actions demonstrate she knew of the risk and voluntarily consented to bear the risk.

Automobile Guests - Held to assume the risks of unknown defects in car.

Workers Compensation - Employee my recover a statutorily specified amount, regardless of fault. If no Workers Comp. in Jurisdiction, CT's normally apply AOR.

When P assumes risk, conduct will also constitute Contributory Negligence

Contributory Negligence - Objective "Reasonable Person" Standard

AOR - Subjective Standard, D must show P knew the risks

D bears burden of proof for AOR and Contrib. Negl.

Subjective Test - Did P actually know of the risk? Irrelevant whether P should have known. P must actually know of risk for AOR. P's knowledge must also be specific.

1. Primary Sense - D is never under any duty to P; or didn't breach duty owed. i.e. fan at ball game.

NO DUTY

KNOWN RISKS

Destroys Normal Duty of Due Care

FELA rules out AOR.

Survives as a separate doctrine.

P in contractual or social relationship with D as to elimination of duty of care; Known or Unknown Risks.

EXAMPLE: D negligently maintains power tool (mower). Loans mower to P - Gratuitous Bailment. Blade breaks and injures P. Gratuitous Bailment excuses duty to others to maintain mower. Therefore NO duty owed to P; P can't recover as long as D doesn't know of danger.

EXAMPLE: Gailbreth v. Busch. Guest Statute - Free Ride. Destroys normal duty of care. Normal duty of care not owed. P has Prima Facie Case; no duty owed.

EXAMPLES:

Titus v. RR

NYPANO Box Cars

Fireworks at Amusement Park.

2. Secondary Sense - There would normally be a duty which D breached, but P's AOR waives duty.

Most states with Comparative Negl. have removed implied AOR in the Secondary Sense. CA, WI, FA Merged into partial defense of Contributory Negligence. Basically, no more AOR in the Secondary Sense for states with Comparative Negligence

No Voluntary Relationship, or Extremely weak relationship.

Therefore, Normal Duty of Due Care applies to make a Prima Facie case.

If P can show duty that D violated, then P has established prima facie case .

Requires: Preponderance of the Evidence

P - Must Establish Prima Facie Case

D - Must Establish Affirmative Defense.

EXAMPLES:

P Chooses to place self in risk.

P rides with obviously intoxicated driver.

P runs into a burning building and gets burned.

Sounds like Contributory Negligence.

Requirements to Establish Secondary AOR

1) Actual Knowledge of the Specific Risk

2) P freely chooses to Assume Risk

Professor James

No such thing as AOR - Affirmative Defense

Another species of Contributory Negligence

AOR Duplicative of other Defenses - Lack of Duty/ Breach of Duty

Goes to Prima Facie Case

Really Same As Contributory Negligence

3 Steps Required

1) Voluntary Confrontation

2) Known Risk

3) P Acting Unreasonably

See Majority in Eckert v. LI R&R

Harder to prove, because must establish unreasonableness.

Must Show P was negligent.

Zuckman leans towards James.

Most CT's moving towards James

R2d hasn't moved towards James.

Prosser

Real Defense

R2d Torts §469A-G

Whether Knowledge & Free Choice

Establishes an Affirmative Defense to harm

Sufficient Defense

1) Voluntary Confrontation of a:

2) Known Risk

If so, the P barred from Recovery.

See Dissent in Eckert v. LI R&R

Easier

Prosser & James

Agree on Primary and Tertiary AOR

Disagree on Secondary AOR

In sports, if danger is inherent, treated as Primary Sense, and acts as a complete bar to liability. But if danger is NOT inherent, and injury results from D's negligent or intentional tort, AOR Secondary Sense, and issue is whether P was reasonable or unreasonable in tolerating danger.

Knight v. Jewett - touch football game. In sports, ordinary carelessness is inherent. Injured participants may only recover when the injury was intentional, or so reckless as to be totally outside the range of ordinary activity in the sport. CT found AOR in the Primary Sense; therefore D owed no duty to P; and absolute bar to recovery.

CA CT rejects Prosser view and adopts James's view.

James

1) Voluntary Confrontation of

2) A Known Risk

3) P Acting Unreasonably

Foreseeable

Reasonable to foresee injury.

Therefore this is Primary AOR - No Duty Owed

Secondary AOR eliminated by CA SC

Social Settings - No duty of due care owed; only duty to avoid reckless or intentional harm.

CA SC Dissent - Implied Consent, Secondary Sense, Contributory Negligence.

P's reasonableness depends on Primary v. Secondary Sense.

If AOR is Primary, it doesn't matter whether P is unreasonable, as long as D's negligence isn't responsible for P's initial situation, P assumes the risk and can't recover.

If AOR is Secondary, P assumes the risk only if decision to encounter was unreasonable.

Comparative Negl. has no effect on AOR in the Primary Sense.

Secondary AOR disappears as independent defense in Comparative Negl.

3. Terciary Sense - Contracts. Has nothing to do with Torts.

AOR by Contract

Economically Superior party imposes will upon economically inferior.

i.e. - Airline fine print waiving baggage damage.

Contracts - Designed to Assign Risks

Unconscionability UCC 2-206 or 2-306

Construction of K

4. Query: Is it a Real or an Illusory Defense?

Class Notes

Intentional Torts

Elements

Intent - to do the act, Voluntary Muscle Contraction

Contact - with another person's body, Harmful or Offensive

Tort requires lack of consent

Liability - Legal harm on basis of invasion of the protect interest in bodily security.

Assault & Battery similar to Ham & Eggs; can be separate or together.

Assault - Doing of an act that will raise a reasonable apprehension of committing battery in another (that will give rise to imminent battery).

Black's - The threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact.

Battery - Intentional and offensive touching of another.

One is entitled to defend against attack, but must convince jury of reasonable belief attack was about to occur.

Self Defense

Reasonable Apprehension

Unprovoked attack creates right to self defense.

If circumstances create situation where reasonable person feels he is about to be attacked, then self defense permitted.

Defense of 3rd persons - In some instances, a 3rd person may exercise force to protect another.

Majority Rule - Other party must first be in danger; discourages assisting

Minority Rule - 3rd party must have reasonable belief of attack encourages assisting

Reasonable - Actions of D; Emminent Attack

Thin Blue Line

If person is about to be harmed, privilege of self defense triggered.

Provocation of a non-physical type cannot create privilege of self defense; aka "sticks and stones may break my bones, but names never hurt me"

Defense of Property

Not authorized to use deadly force to protect property.

Molitor Manus - Laying of gentle hands. Owner must first gently ask trespasser to leave. If trespasser doesn't leave, owner may use actual force. Owner cannot use deadly or wounding force to protect property.

Molitor Manus must be plead and proven by D

Deadly Devices cannot be used without warning. With proper warning, you may set traps. But with sign, trespasser may be illiterate; or may not see sign.

Motive is not part of a prima facie case, but is part of privilege to defend property.

Katko v. Briney, Iowa 1971 - D uses a spring trigger shotgun to defend property. Shotgun injures P.

Majority - may use reasonable force, but may not use bodily harm or injury.

Minority - P needs to show deadly intent to kill or maim

Punitive damages award wrongdoer, punishes property owner.

Protection of Property from Trespassers

1) No civil liability as a matter of law

2) Liability as a matter of law

3) Reasonableness under the circumstances

ALI - One may threaten wounding or deadly force to protect property.

CTs - One may not use threatening or deadly force to protect property.

6 Elements to Recapture Property - All Must be Proven

1) Wrongful taking of Property/Color of Right; thin claim

2) Must be taken from person who can recapture

3) Legal right to regain

4) Recapture must be affected promptly; "Fresh Pursuit after Taking"

5) Molitor Manus Analogy - Must ask for return prior to using force

6) Use only reasonable force in recapture of chattel

Can you sacrifice one life to save others? NO

U.S. v. Alexander Holmes - shipwreck, Lifecraft; humans jettisoned

Regina v. Hicks - 3 survivors, 1 cabin boy and 2 sailors

General Average Contribution - Cargo can be jettisoned, but survivors must share cost of property

Interests Protected by Necessity

1) Preservation of Life

2) Use to save more valuable property; Avoidance of Economic Waste

Vincent v. Lake Erie

Between 2 innocent parties, the party causing the loss has to pay for the damages. If ship accidentally smashes into dock, shipowner not liable.

Sound Policy - It would be unfair to use anther's property under privilege of necessity; damage property, then not pay. Unjust Enrichment.

Dissent - No Intentional Tort or Negligence. Wharf contract implies usage risk on owner. K allocates risk.

Brown v. Kendall

Strict Liability.

Imposes liability where there is no fault.

Extraordinary Case - shifts blame to person who causes damage.

Civil Justice costs money, but prevents unwanted behavior.

Therefore society bores frictional cost for lost shifting.

Intentional Infliction of Emotional Distress

Wilkinson v. Downtown

D tells P her husband is in carriage accident. P becomes mentally ill & sues.

Parasitic Damages - recognizes as independent tort of intentional infliction/deceit

D claims no Precedent. Weak argument.

Chapter 2 - Strict Liability & Negligence - Inadvertent Harm

Brown v. Kendall - Unified Theory of Liability Emerges

2 Dogs fighting. D accidentally strikes P in eye with stick.

TC - D must show extraordinary care

Judge Shaw; AC - Reverses and orders new trial

Judge Shaw - Major Changes after Brown v. Kendall

1) Reasonable Person's actions under Circumstances

2) P required to show burden of proof, negligence

3) P must prove fault in form of negligence; Can't have liability w/o fault.

Judge Shaw eliminates writ of Trespass in inadvertent harm & requires fault and negligence.

Fletcher v. Rylands

Removal of Coal leads to flooding of Property.

1st Case - No direct harm, trespass, strict liability - D wins

2nd Case - Finds liability; imposed on landowners for first time

Initially U.S. CT's rejected Fletcher v. Rylands

Today 30 States accept Fletcher v. Rylands

Another species of strict liability

Holmes, The Common Law, p. 140

Theories for Inadvertent Harm

1) Fault Based Theory - Criminal Law

2) Direct Opposition to Fault - Strict Liability

Fault Theory favored by Holmes. Normally - Don't shift loss.

Rationale to move to Fault Based System

People must move; flex muscles

Action is Good

No good reason to impose strict liability for inadvertent harm

Let fault lie where injury is to allow for industrialization

Fault-based inadvertent harm

Stone v. Bolton

Stone struck by cricket ball.

TC rules for P

AC - Reverses on Negligence

Foreseeability ≈ Fault

Cricket Club Foreseeable Accident; therefore liable

Strict Liability for fault; no Strict Liability for Inadvertent Injury

House of Lords Reverses on No Negligence Found

Foreseeable risk so small, reasonable person wouldn't take notice.

Size of risk so small, no negligence

KEY - Size of Risk

Must consider societal rights & costs involved.

Negligence - Limits fault shifting

Negligence v. Strict Liability

Encouragement of Enterprise, minimizing loss shifting

Holmes - Leave loss unless proven otherwise

Chapter 3 - The Negligence Issue

Negligent Harm is a cause of action

Negligence alone is NOT a cause of action

Leads to a lot of near misses with occasional big hits

Negligence DOES NOT REQUIRE Criminal Intent

Negligence only requires creating an unreasonable risk to others by affirmative act or omission.

Risk - Probability of Harm to others.

Probability

Foreseeability

Negligence v. Intentional Tort - Mutually Exclusive

Negligence

Inadvertent Harm

Act for own purposes

Society's standards & due care Failed

Limit on Liability

Limiting Concept on Loss Shifting

Limiting Liability encourages Industry

Judge Green

Negligence under given circumstances

Judge ---> Jury ---> Decision

Process

Elements of the Prima Facie Case

1) Duty

Duty of Due Care to one injured

Purely Legal; Threshold issue

CT must decide if there is Duty

2) Breach of Duty - Has there been Negligence?

3) Causation in Fact - Pursuit of link between D conduct & P injury. Seeking nexus between the two.

4) Legal or Proximate Cause

5) Damages - Must show harm

Holmes - The Reasonable Person

Artificial construct

Midpoint/average behavior

Reasonable (not possible) foresight

Reasonable conduct to measure reasonable foresight

Determine risk

Was risk unreasonable to a reasonable person?

External standard

Balancing

risks v. burdens

cost v. benefit

Daniels v. Evans

Minor dies in motorcycle accident.

TC - Age, experience and skill considered

D - Adult standard of care should prevail when engaging in adult activity

SC - Objective Standard

Every person driving with license must meet standard

All people held at same liability

If child engaging in childhood pursuits; no liability

If child engaging in adult activities; possible liability

Breuing v. AFI

Auto accident from sudden delusional state.

Issue - Did mental incapacity destroy requirement of duty?

1. Must prove no forewarning of onset for mental incapacity

2. The MI involved must be such to destroy D's duty of due care OR

MI destroys ability to exercise due care.

Reasons for Mental Incapacity Strict Standards

1) Reduces Liability

2) Loss shifted back

3) Guardian may watch MI more closely

Rule - Insanity is defensible to negligently inflicted harm where person is overcome without advance warning of mental disability prevents him from performing his conduct to that of a reasonable person under circumstances.

Special v. Common Knowledge

1) Actual knowledge of defendant; including knowledge of not knowing; are factored into reasonable persons standard

2) Lack of special knowledge of defendant may exonerate him if no risk is foreseeably by reasonable person BUT if reasonable person in defendant's shoes acts with such knowledge, then person is held having that knowledge.

3) Commonly held general knowledge will be charged to defendant even if he doesn't possess it. i.e. International traffic symbols, Skull & Cross bones

Knowledge for reasonable person is a hybrid between objective and subjective

Calculus of Risk

Cost

Burden

Size

To avoid Risk

Burden < Probability x Liability = Negligence

Burden > Probability x Liability = No Negligence

Rinaldo v. McGovern

Golfer's ball strikes window.

Similar to Bolton v. Stone decision; Cricket ball hitting woman

No liability found by CT.

CT Analysis

1. Sound warning to others "Fore"

2. Quit playing golf completely

CT Weighs Alternatives & Risks

Stopping play not acceptable or feasible

Sound warning not feasible or practical

Cost outweighs small risks

Calculus of Risk Approach

Burden outweighs small risk involved

Terry on Negligence p. 194

1) Magnitude ≈ Probability

2) Principal Objects ≈ life, ships, bridges ≈ liability

3) Collateral Object - Reason for leaving barge

4&5) Elements of Burden

Reason for creating risk

Necessity of risk

Congruent with Hand formula

Hand formula, rough idea; Terry formula - more sophisticated

Balance cost of avoiding risk with risk itself

Reasonable Foresight does not have to be specific

Reasonable Foresight = General Foresight

Custom

19th Century

Industry Standard represented the Reasonable Man objective std

There can be no liability or negligence if company conformed to industry standards; even if it is unreasonable.

Custom - 90% of industry subscribes; near universal

CT - Conformity - Unbending standard of due care

Jury Responsibility

1) Is there a custom?

2) Did the D conform to the custom?

If yes on both Jury bound to find NO Negligence.

Policy Problem

Discourages Safety Innovation

Pure Economics - No benefit to Safety Costs for employee

Unrestrained Capitalism

Fellow-Servant Doctrine - Injury from fellow worker requires suit against worker, not employer.

20th Century

The T.J. Hooper

Radios were not custom, but many tugs used them.

Holding - There was negligence

CT's no longer defer to industry customs as unbending standard of due care

CT's will intervene in market to achieve justice

Custom Exception in Medical Malpractice

Brune v. Belinkoff

Medical Profession Exception from Custom - No reasonable person standard to determine negligence

Did the Dr. perform or not perform to the medical industry standards?

Prior Holdings

Doctors must follow standards in locality

Hence expert witnesses outside locality not permitted

Led to Conspiracy of Silence - nobody would testify against colleague.

New Holding - Doctors must follow industry and National Standards

Today, any expert witness in industry permitted

Is it sound policy to allow medical field to set their own standards?

Exception to the Reasonable Person Standard

Professor Morris - Judges & Juries may not be competent to judge medical profession.

Plaintiff Strikes

1) Medical Profession sets own standards

2) Rebuttable Presumption that Dr. acted properly - P will need expert testimony to defeat that presumption.

Canterbury v. Spence

Alleged malpractice by Dr. who failed to provide sufficient information to patient.

CT - Customary Standard v. Reasonable Dr. Person Std.

Uses Reasonable Dr. Standard - information patient would want to know.

AC - Rejects Reasonable Dr. Standard

Materiality of Risk - Don't have to disclose all risks if minute possibility

Blood banks governed by Reasonable Person Standard.

Criminal Statutes - Negligence Per Se

Most torts involve crime.

Many crimes are tortious acts.

If relevance of Criminal Statute

Then affect of violation of criminal statute

Large percentage of torts involve criminal action

Legislatures create civil cause of action for criminal statutes.

Specific statutes borrowed; set out from criminal statutes

Murder ≈ Intentional Wrongful Death

Beyond Doubt v. Preponderance of Evidence

Reasonable man standard fuzzy in criminal cases.

Thayer - Public Wrong

i.e. - Horse on the loose hypothesis; fine citizen for loose horse.

Legislative standard in criminal statute, relevant to case, should not let jury determine reasonable or unreasonable

Jury should be bound by criminal statute and civil standards

Absolutist Approach - No exceptions

Thayer puts Cart before Horse.

Jury shouldn't decide standard of care regarding criminal statute.

But Legislatures can't foresee every possibility. Too strict an approach.

How do Criminal Statutes become Sources of Private Rights?

Not always the case.

Some Crime. Statutes have section that allows violated person to sue violator

Very Rare < 3-5% of cases

Creates a specific "Standard of Care"

Common law cause of action

If civil common law action relevant to criminal statute then criminal statute can be borrowed.

May also be able to borrow the standard of care.

Issues

1) Is criminal statute violated relevant to tort action?

2) Assuming relevant, what is the affect on the issue of negligence; relevant stat.?

Osborne v. McMasters

Pharmacist failed to properly label medicine.

CT - Only required to show breach of legal duty to act with due care.

Statute establishes fixed standard where negligence may be determined.

CT does not enforce criminal action

Reasonable Person standard binding on Jury.

Can P take advantage of standard in criminal statute that is not officially passed into law? YES - Legislators' will is clear; bill has been voted for and waiting activation

Legislative Purpose Doctrine

1) Was the criminal statute designed to protect class of persons satisfied: AND

2) Is the injury generally in this legislation was trying to prevent?

If yes to both, then P can borrow criminal statute.

Determining Relevance of Statute

1) Read the Statute - 4 Corners

2) Read the Preamble

3) Review the Legislative History

Committee Reports

Floor Debates

Committee Members

Authors

Leadership

Committee Hearings

"Cannons of Construction" of Legislation

Strict Interpretation

Liberal Interpretation

Imperi Materia - Parallel Legislation

Parallels Bicycle theft to vehicle theft

Complaint in Negligence Per Se Requires 2 Counts

1) Common Law

2) Criminal Negligence Statute

Martin v. Herzog

Horse & Buggy driver killed by Automobile

If statute relevant, what affect on negligence issue; and how does it affect jury?

D - absence of lights prima facie evidence

TC - Only some evidence of negligence

Jury - P, not Contributory Negligent

AC - Reverses; violation of relevant crim. stat. is Negligence Per Se; directed verdict.

SC - Affirms

Negligence Per Se - Violation of criminal statute is absolute Negligence

Some Evidence of Negligence - Jury entitled to know criminal statute and use reasonable person standard to decide; but puts Jury above legislature.

Negligence Per Se with Caveat - If you can show person violated statute but was within the spirit of the statute, the you have excusable neglect; OTHERWISE; Absolute Negligence

Criminal Negligence Statute ---> Negligence BUT Rebuttable Presumption of Negl.

P can rebut Negligence Per Se

i.e. wife in labor; P runs traffic light; reasonable excuse will be determined by Jury using Reasonable Person standard.

If P makes no excuse or poor excuse, then doesn't go to jury & Judge/Jury bound to find Negligence Per Se.

Some Evidence of Negligence ----- Prima Facie ----- Negligence Per Se

Brown v. Shyne

Patient injured by Chiropractor

TC sends case to Jury on 2 Theories

1) Dr. failed to meet normal medical standards

2) Lack of medical license same as Negligence

Jury awards P

D appeals

AC Majority - 1) Jury theory OK; 2) incorrect. Lack of medical license not relevant in this case. Patient was injured. Lack of license not relevant in negligence.

Good, logical Argument

Lousy Public Policy

AC Dissent - Statutory regulations are designed to protect innocent from harm.

Better public policy

Prof. James - Injured should be protected - sides with dissent

Judge & Jury

1) Jury without limits may inject biases & prejudices.

2) Distributive Justice - like cases decided alike; People treated same

2 Ways to Control the Jury

1) Instructions - Only the Evidence

2) Take issues away from Jury

Judge is Similar to Traffic Cob

Decides what is admissible based on whether reasonable persons can differ

Negligent v. Not Negligent

Differing Opinions ---> Jury Decides

Jury Functions on Negligence

1) Fact Finding

2) Determine Standard - Reasonable Person

3) Apply standard to facts to reach conclusion

Similar to Syllogism

Standard Major Premise

Fact Minor Premise

Conclusion Conclusion

Jury bound by stipulation of facts. If jury goes beyond stipulation of acts, Judge will direct verdict or MSJ.

Holmes

Judge decides specific standard of care; if not already fixed elsewhere

Judges

1) Uniformity of Decisions - Specific Standard of Care

2) Known Standard of Behavior set by Judge - with exception for medical profession and other technical professions.

Holmes prefers fixed rule instead of Reasonable Person Standard

Weakness - Doesn't allow for variation

Holmes Disliked the Reasonable Person Rule

Substantive Rule of Negligence Law - Standard/Rule -

Leaves noting for the Reasonable Person

Wilkerson v. McCarthy

Railroad employee injured when he tried to move a wheelbarrow up a ramp.

CT - Directed verdict for D; found no negligence evidence for jury to review.

AC & UT SC affirm

US SC reverses - Issue sufficient to go to Jury; Fault as basis for liability.

Why is this case here?

What is the fundamental conflict?

What was done?

What assumption was made? Even though denied.

Should Tort Actions be Left to Jury?

Positives

1) Sense of Community

2) Check on System

Negatives

1) Expensive

2) Subject to Prejudice

3) May lack technical expertise

Expert Testimony - for Jurors to decide.

Negligence

Causation

Damages

Cannot testify on Ultimate Issue - On determining/conclusion of negligence.

Would cause mistrial.

"The Ultimate Question"

Jury Must Evaluate

Danger

Discern Danger

Safer Alternatives and Burden of Safer alternatives.

Res Ipsa Loquitur

There is no direct evidence as to whether the D was negligent.

Requisites of, If Any

Negligence & Identity

Double Helix Example

2 Requirements for RIL * * * KNOW * * *

D must have been in exclusive control of instrumentality at time of injury.

P cannot be responsible in any way.

Joint & Several Liability

Joint Tortfeasors

Common Law - 1 tortfeasor could be responsible for all loss

Modern Law - Loss equally distributed; Contribution statute.

P must establish Prima Facie Case against ALL Tortfeasors

Duty

Breach of Duty

Causation in Fact

Proximate Cause

Injury

P doesn't have to show apportionment.

Vicarious Liability

Someone who didn't commit toritous act is held liable for it.

If employee is held negligent in the scope of employment, then employer is also liable.

CT's tend to view relationship broadly.

Example

Messenger dispatched to office; plays with paper clips, hits eye. Messenger can claim Workers Compensation; Can't sue employer.

Independent Contractor - Generally requires no Vicarious Liability

EXCEPTIONS

Independent Contractor hired to work on own premises, then liable to injuries.

Known risk creates injury; employer liable.

Affirmative Duty

Blood Relationships

Relationships by Marriage

R2d §315 - Duty to restrain from harming 3rd person in special relationship

Duty may be found to warn if you know harm may happen.

Chapter 8 Strict Liability

Theory of Liability for Inadvertent Harm

Types

ADA - Abnormally Dangerous Activities

SPL - Strict Products Liability

R v. F - Rylands v. Fletcher

WA - Wild Animals

Aviation

Miscellaneous

Intentional Tort - Advertent Harm

Negligence - Inadvertent Harm

May be times when both apply

CT - Some activities in society are legal and acceptable. But if Activity causes harm, person in activity will be strictly liable.

Can't injure without paying

See Rylands v. Fletcher; Vincent v. Lake Erie; Brown v. Kendall

Animals

Animals showing vicious tendencies in past ---> Strict Liability for personal injuries

MUST be wild animal; or Domestic animal with vicious tendencies.

Colorado decided Strict Liability with Animals doesn't apply to public zoos; would increase cost to taxpayers.

See Assumption of Risk; Contributory Negligence.

Abnormally Dangerous Activities

B > P * L

2 Theories of Inadvertent Harm

Negligence

Strict Liability

R2d Torts §519

Risk Analysis

Proximate Cause

R2d§520 - Determining Abnormally Dangerous Activities

Falls to CT to decide

§520 lists factors - Judge Decides

Compare to Automobile - similar dangers; Auto is negligence, not strict liability

Community Values - Live by the Sword, Die by the Sword

Grouping of Factors, No one factor determinative.

R2d§522

Still Strict Liability even if unexpected situations

Provides Compensation for Loss

In Broad Proximate Cause, CT's undercuts Strict Liability

Most US CT's ignore this section

If act is unforeseeable, there is no strict liability or Negligence

R2d§523 - Assumption of Risk

AOR bars recover on Strict Liability

R2d§524 - Contributory Negligence

Contributory Negligence not a defense except if P knowingly and unreasonably subject himself to the risk.

See James AOR

To Assume Risk - One must know what risks are.

R2d§524A - Blasting causes expensive measuring equipment to be knocked out of calibration ---> NO Strict Liability because Abnormally Sensitive Activity is excused from liability

R2d§520A Ground damage from aircraft

During R1d; Aircraft were Ultra Hazardous Activities

During R2d; Aircraft became more reliable; Proposal to move to Negligence Theory

Applies to GROUND damage ONLY.

Decision to maintain airplane is Strict Liability; easier to recover from Strictly Liability rather than Negligence or RIL

Elements Necessary for Recovery

Assent of Aircraft

Damage on the Ground

Drafters - If you choose to go up, you must show fault; probably RIL; 10% chance of recovery.

Exam Review Notes

20 Questions

All Multiple Choice

Similar to Old Exams

7 Choices

4 Substantial Choices

Some of the Above

All of the Above

None of the Above

MUST PUT LETTER CHOICE IN Blue Book

WILL NOT READ BEYOND 1 PAGE. - CAN USE EVERY OTHER LINE; FRONT & BACK

Each Question = 5 Points

9 Minutes Per Question

Give Straight-Forward Defense of Choice

Process of Elimination OK, but timely

Objective Questions - Subjective Response

Strict Liability

Rylands v. Fletcher

Abnormally Dangerous Activities

D on land

Non-Natural Substance

CT - Injury to Property ---> Strict Liability v. Negligence Liability

Strict Liability - Is there some unifying principle connecting Rylands with ADA?

YES - If you damage/endanger person then you are at fault.

Analytical Framework for Strict Liability

1) Is conduct an activity in Pie Chart?

2) Is activity cause in fact of harm?

3) Assuming cause in fact are there any policy reasons D should not be liable?

i.e. Proximate Cause without Duty & Breach of Duty

4) Are there any Affirmative Defenses?

5) After analysis and no Strict Liability, should you ask any other Questions?

Was there Negligence/Due Care?

See Indiana Bell Harbor RR - Negligence; not Economic Harm Case.

Hudson v. Craft

Majority - In mutual combat neither party can consent to breach of peace.

Minority - In mutual combat consent possible EXCEPT if there is a paternalistic statute violated. Consent CAN'T BE WAIVED.

Knight v. Jewitt

In touch football, no duty of due care owed.

Only duty is no willful, wanton misconduct

AOR in the Primary Sense

Since no duty, case dismissed, no defense, no prima facie case

Prosser on AOR

Primary Sense

1. Voluntary Confrontation

2. Known Risk

Bars P recovery

See Eckert v. Long Island RR

Minority - Voluntary Confrontation of Known Risk

Majority - Contributory Negligence

1) Voluntary Confrontation

2) Known Risk

3) Unreasonable Act

All or Nothing Defense

When CA adopted Contributory Negligence

Tossed out Prosser's AOR in Primary Sense.

Adopted James's view of AOR in Secondary Sense

James on AOR Secondary Sense

Form of Contributory Negligence

Requires Unreasonableness

Compare P & D Negligence

James would argue for Strict Liability and increase costs across board.

Recapture of Chattels

Object reduced to control/possession

Bike locked in rack "in control"

Fresh Pursuit - When Bike Taken

Restrictive View on Chattels - Not worth Breaching Peach

Narrow Requirements

Risk Analysis

Foresight - What you can reasonably foresee

Harm

Risk

Hindsight - What actually happened

99% of harm foreseeable.

NO PROXIMATE CAUSE IF

Harm is not Foreseeable

Person is not Foreseeable

Policy - No imposition of liability for consequences of actions unforeseeable to protect enterprise.

See Dissent in Polemis

Negligence Per Se

Must Show Causation in Fact & Link to Injury

Relieves P's burden to show negligence.

Relevance - Foreseen by legislature creating statute for class & harm

But still MUST show Cause in Fact & Proximate Cause

Negligence Per Se with Caveat

Use the Legislative Purpose Doctrine

Is it Relevant?

Has it been violated?

Judge won't allow excuse/violation; will Direct Verdict on Issue

Exception

Violating Spirit of Statute because safer to violate than to follow.

CA follows Prima Facie Negligence

Rebuttable Presumption of Negligence if Statute Violated

If rebuttable argument credible, jury decides using Reasonable Person Standard.

Molitor Manus

Laying of Gentle Hands

Asking Trespasser to leave;

If Trespasser doesn't leave, may use reasonable force to remove from property

May Not Use Wounding or Unreasonable Force.

Wounding or Deadly Force

Requires Intent to harm & Weapon; such as gun or knife.

Can use Wounding or Deadly Force in home.

Hitting Hemophiliac who later bleeds to death is NOT wounding or deadly force.

Palsgraf

RR acting Affirmatively & Negligently

BUT Mrs. Palsgraf is unforeseeable; Therefore No Duty Required

Usually Affirmative Conduct Requires Duty owed

Watch for AFFIRMATIVE CONDUCT - Requires Duty

Polemis

Negligence if you can foresee an unreasonable risk.

Direct Causation & Liability if

Negligent Conduct

Unforeseeable Risk

No Substantial Intervening Cause

Substantial Intervening Cause - Cuts Off Causation

Common Law - Substantial Intervening Cause did not cut of Proximate Cause

Modern - Proximate Cause possible if SIC reasonably foreseeable.

Hypothetical

2 Cars driven on country road.

One driver stoned.

Other driver lighting cigarette

Cars collide

Both Negligent Per Se

Cause in Fact - Both are BUT FOR causes; because if you remove one driver, the accident won't happen.

Holmes on Strict Liability

Opposed

Retards Movements such as muscle contractions.

Restricts Movement and Future Growth

Increases Frictional Costs to Society

Fault Theory Limits Liability - Replaces Strict Liability in Brown v. Kendall

Limiting Liability

Engaged couples are Legal Strangers - No benefit of duty Owed.

Custom

19th Century

Unbending standard of Due Case.

Due Care Follows Customs

If Corp. followed industry custom, Due Care shown

See NYPANO Railcar Case - RR excused because followed customs

BAD POLICY - Allows Industry to set low safety standards

20th Century with TJ Hooper

CT's decide what is reasonable.

Custom no longer unbending standard of due care.

D could provide evidence of custom and Jury decides on evidence.

POLICY - Forces Industry to Follow Higher Safety Standards

Medical Malpractice Exception

Physicians governed by customary standards of profession.

If physician can show conformation then No Negligence

CUSTOMARY STANDARD ≠ LEGAL STANDARD

Majority of ST's follow Locality Customary Standards

Growing Minority of ST's follow National Standards

Attractive Nuisance Doctrine

Requires all 5 elements be met

Child MUST BE OF TENDER Age

Mental Incompetents DON'T benefit

Reasonable Person

Foresee Risk - If No RISK; No Negligence

What is the Probability of Harm?

Exam Review