Notes For First Termers: Torts I

Keep in mind that this was my first term in law school. The notes are primitive but thorough.


Class Notes Torts I 05/04/06

Week 1

Hornbook by Daubs. One request-do not bring supplements to class. Use any commercial outline you wish but make your own outline to enjoy perfect understanding.

When reading cases, be healthily skeptical. There’s a winner and a looser in every one of these cases. When reading the holding, allow room for, “how about the other guy?” Don’t be slave to the judges being brilliant legal scholars. They make mistakes like everyone else. I will point out some of these to you where the language is just wrong.

We make it hard for you, we say, “You’d better read and understand all of this and then we want to ask you to differentiate between what is accurate and what is inaccurate.

Look at the notes that follow the cases. The notes are designed so that you can play with the holding. Torts is the mother of all law courses. In terms of getting a handle on the way our society should work, the way we try and get some reasonable understanding of how to conduct ourselves is what tort law is. Torts are reflective of the work a day world.

If you do nothing else, if you can just get away from the way you thought of the world so far and just broaden and open your mind. Think about all sides.

Quiz questions from newspapers.

Tort is from a word that means twisted. Perform or pay-contracts. Civil wrong as opposed to criminal wrong. The law provides a remedy in damages.

Torts v. Contracts

A tort is directly against the other person where a contract is a consensual agreement

Definition: A tort is a civil wrong, other than a breach of contract that the law provides a remedy in the nature of damages.

How does this differ from property? Again a function of peoples understanding of a disposition of a property. It can be trespass-going on the property of another.

Why do we have tort law? Why is it so important? We do not want to encourage vengeance. We want you to use the judicial process. Promotes socially responsible behavior and at the same time it would deter conduct that we would find reprehensible.

Provide a mechanism for compensation. If somebody looses an arm, how are you going to make them whole? The mechanism for recovering money for personal injury is designed to get you back to where you were before but as much as they are able. It’s never going to get you back to where you were. If you suffer a terrible injury, you are never going to be “whole.” You get close to where you were prior.

Corrective Justice – to compensate the injured party.

An economic theory – What is the cost to society? Who should pay for certain damages whenever you have competing interests?

Ex.: Supreme Court Decision -private ownership of property for the public good. What do we mean by public benefit? The states can address this concern by defining what a public use is. I bring this case up so that you can see that interests are so divergent. It is very difficult to come to a conclusion that everybody is happy with.

Judicial Independence is something that is not far from any area of the law.

Look at torts in three different ways:

1. Consideration of the interests involved
2. Harms that occur whenever these interests are invaded
3. Remedies made available because these harms have occurred

THREE ASPECTS OF INTEREST

1. Person, or your persona. Your person has an entitlement of being left to its own devices. Your physical integrity should be intact. Nobody can touch you without your consent. Your feelings, your emotions, we have torts that address people who really act so egregiously that a tort will arise because there sensibilities have been [undecipherable]. The capacity to do things-you can’t have people limit your ability to do what you do. Your name, your reputation-that’s why they have actions in defamation. You can’t go around and state defamatory comments of others nor should you. Your likeness-If you’re a famous person, have to ask permission to endorse. Privacy-you have the right to privacy but we’ll talk about that in Torts II. It’s an interest where you have the right to keep information related to you privately unless you do things that put this in the public domain.

2. Property. What can you do with property? You can own it, which gives you the right to sell it. You can possess it, you don’t have to be an owner. So the interest that we are talking about here is possession, ownership and the enjoyment, the quiet use and enjoyment of the property. You can’t have a nuisance right next door. So you have every right to expect ownership, possession and use and enjoyment of the property to be [unassailed]. That’s something that we elevate to the point where we say the law ought to provide some degree of protection.

3. Relationships. You have every right to join a trade association of your choosing. Any business, employment, professional or community relationship. Your political connections. Whatever you want, you have a right to engage in.

Remedies exist to deal with the harms that have been suffered because of interests having been interfered with.

THEORIES OF LIABILITY

1. Intentional Torts. Intentional harm by the wrongdoer.
2. Negligence. Duty, breach, causation and injury for which damages will be awarded. How does one establish duty?
3. Strict Liability


Breach of duty of due care. Illusory

Causation-later discussion

Injury is the harm (damages) and money is the compensation .

Economic and non economic. Project future expenses.

Pain and suffering
Disfigurement
Loss of earnings

McDonald’s case.

If you can talk to the other side, good lawyering

Causation
Damages
Excuse

Utilitarian, serve the community.

Fault based cases.

Anonymous

If not completely without fault, you’ve got to pay

Weaver v. Ward

Recognized for the first time that someone could escape liability.

If you’re a lunatic, be prepared to answer.

Consent? You both consent to skirmish.

Give D the opportunity to argue if liable. Maybe there’s a better way to resolve this.

Brown v. Kendall

Negligence, ordinary care.

An action on Trespass
Trespass on the case is equivalent of negligence, not direct, not immediate. Some fault and some damage.

What was wrong with the jury instructions?

The first holding: Breach of a standard care is going to be a function of whether or not you exercise ordinary care.

Second holding: The burden of proof rests with the P and not the D

Unnecessary acts require extraordinary care.

Patient hypo*. Change burden to the D. Maybe there are times we need to think about that.

Cohen v. Petty

Issue: Directed verdict for D

Comparative fault?

An accident is an unforeseeable event that’s not preventable.

Rule: Strict Liability

Maybe the rule should be Strict Liability in this case.

Dr. hypo* school bus driver, mult. D’s. Who did what, who pays what?

Seizure hypo* 10 years no incident.

Spano v. Perini

When you engage in an enterprise that cannot be conducted without some degree of risk, you’re going to be found liable.

Two ways to look at this:

1. Ultra hazardous Activity; (Abnormally Dangerous) Cannot be performed without some degree of risk.
2. Not a matter of common usage.

If you can satisfy these two elements, then you can say this is an ultra hazardous activity
Elements:

1. Risk is high
2. Harm or Damage is great
3. It cannot be conducted safely
4. It’s not a matter of common usage
5. Inappropriate to the area or community
6. Community Value, beneficial

You do it you pay, P prove your case. Other blasters, We find it more important that the P be compensated.

Hypo*- 2.5 miles away mink farmer

Week 2 Lecture

Strict Liability-You do it, you pay.

1. P has burden in showing that there was a breach in the standard of care.
2. Ordinary Care-We expect everybody to exercise at all times. If you don’t, you’re going to be at risk.

Look for cases that defend claims.

Absolute Liability, use instead Strict Liability

LIABILITY BASED UPON FAULT

Mink Farmer hypo*

Not distance. The court said that the blasting did not cause this; it was the nervous dispossession of the moms. Phillips: I think that’s ludicrous. Without the blasting this never would’ve triggered it. You can’t isolate them. You’ve got to make a conscious choice here as to who’s enterprise you want to foster and who’s you want to challenge.

And what the court did here was to say, you know, it’s not that we love blasters, we want to give you some license to do what you do to make the world a better place but mink farmers, you should know that this is always going to be a risk. We have this other context of take the plaintiff as you find him. You take the mother mink as you find them and if the mother mink are of a nervous disposition, so be it, you have to pay because you’re the one who triggered this. That’s an argument for liability.

The court somewhat disingenuously said that the proximate cause here was the condition of the mother mink. They just made a policy judgment that we’re going to protect the blasters. You don’t have to account for this. The kind of harm that was suffered here (mothers eating their children) maybe that’s not the kind of harm that this liability was designed to address. The court found no liability.

Nuclear Plant hypo*

Heated water gave rise to shipworms. They spawned as a result of heated water and they went down the coast and ate up some wooden materials out in the ocean. Owners of wooden structures (wharfs) brought a claim against the power plant. Do you suppose liability should attach? The type of harm that occurred is not one that is normally associated with a power plant. Focus on the nature of the harm and whether or not that type of harm is one that you would anticipate would occur in the operation of a nuclear power plant. That seems to make a lot of sense. Again I caution you, don’t use that term absolute. Simply because you have an enterprise that can be categorized as strict liability or abnormally dangerous, you look to see exactly what is happening and also look to see what the benefit-is it appropriate to the area? Was it beneficial? Appropriate means what basically takes place in this area. Are they mostly mink farmers or are they mostly blasters? Is it beneficial? Is mink something that we want to take care of vs. blasting?


ELEMENT OF INTENT

Garratt v. Dailey

The battery is the woman striking the ground. To prove intent, what do we have to come forth with to be sure that he battered her?

The definition of battery in this case was not 100% accurate. It left out offensive. Focus on whether Brian knew that she was trying to seat herself. That’s the issue here.

If you knew with substantial certainty that she would suffer a harmful or offensive touching, then we can infer from that knowledge that you did indeed batter that woman. But is that what they really say?

It still does not allow for him not knowing that she was in the process of seating herself. It’s where she would’ve seated is a different question than did I know she was attempting to seat herself. That may seem like a picky distinction to make but it warrants some consideration. They should ask specifically what they want and I don’t think they asked the right question.

On remand he moved the chair when she was attempting to seat herself and he knew about it. He knew with substantial certainty that she was trying to seat herself. The appellate should have been bound by the fact finding of the trial court.

Does this help you understand this idea of intent where we can infer intent from knowledge but make sure that knowledge is specific that we can translate to act, and in this case, indirectly results in contact of this aged woman with the ground?

And the opportunity to satisfy the element of intent by saying we’re going to permit an inference of intent from KWSC that a certain conduct would lead to a result.

Synopsis: Infer intent from knowledge. Function of a desire or purpose. If it’s not clear to his subjective intent, we look to whether or not he kwsc that this harmful or offensive touching would take place.

Spivey v. Battaglia

Not a pattern of behavior or history of playing around. Facts of case are for a battery but statute ran.

WC would not come into play because of intentional conduct.

Two different ways to measure conduct:

1. An act. Has to be intentional. You intended this harmful or offensive touching to occur or maybe you should have known. If you have an act of an intentional variety, whether or not the defendant can appreciate the consequences of the act is another question. Is it the act or the consequences of the act that we want to focus on when we’re looking to prove the element of intent?
2. Consequences of the act.

Intent Negligence
KWSC (Reasonable Foreseeability)


Recklessness Gross Negligence
(Willful, Wanton Misconduct)


Intent to do an act, gives rise to different results based upon that actors appreciation for ultimately what was going to be the consequence of that act.
Insurance on son hypo*

Unintended result of an intentional act.

Push starting car hypo*

Rams car at 35 MPH. Insurance policy denies cause it’s an intentional act

Consequences of the act is what we are focusing on.

Foreigner hypo*

Kisses and brings an act on battery. Did he know consequences of his act? Perhaps negligent but didn’t intend.

Text: Liability for intentional torts is premised on the intent to bring about the consequences. For a battery a harmful or offensive touching.

He did not realize and acted out of ignorance. Look thru an objective framework. Acting with a purpose that these consequences occur. That’s what intent really is. Did you know with substantial certainty? Impose an objective community standard.

Intent is worse than negligence. You intended to bring about a result.

Note 5 on page 23:

Meat hook case: Court did not permit plaintiff to recover by “dressing up the substance” of a battery in the “garments” of negligence. P’s employer not liable for D or employee’s battery.

Synopsis: Harmful touching in the workplace-was it really a battery or was it negligence? I think the facts suggest it was clearly a battery and they tried to provide the injured P with a method of recovery because knowing that she was shy and that “friendly unsolicited hug”, to me would constitute nonconsensual touching that would be offensive that just happened to have lead to a serious, serious case of paralysis. Act and Consequence-think about the two together. The act is almost always going to be intentional and where we struggle is the definition here of did you intend to bring about a harmful and offensive touching. We can’t determine that unless we look at the facts and circumstances that run anywhere from a reasonable foreseeability to clear intent. That spectrum is what we want to value when we determine whether or not a battery was able to be satisfied from the text of that application. It is indeed a state of mind regarding the consequences that involve a person’s desire and beliefs as to what’s going to happen. It is subjective in nature but you’ll find that we will be using an objective timeline to make that connection.

Ranson v. Kitner

A good faith mistake is no defense and you will be held accountable. Possible considerations: Can’t get close enough to a wolf, chicken farmers appreciate it. What is that dog doing out there? Put on an orange coat.

Bar fight hypo*

Mortal enemies face each other, one reaches in pocket, the other pulls a gun and shoots him. I made a mistake; I thought he was going to shoot me. A dog vs. a human.

Mistake: Engage in conduct that turned out to be something other than desired.

Synopsis: Be careful to differentiate the nature of the interests and other facts and circumstances that might suggest there there’s a different way to resolve this matter.

McGuire v. Almy

RN and crazy lady case

Assumption of the risk: Subjectively know and appreciate the nature of the risk and you willingly subject yourself to it. You choose to put yourself in harm’s way.

The court attaches liability for two different reasons:

1. The innocent person is less blameworthy
2. Caregivers are going to watch more closely

A final reason why the court decides as it does: You did it, you may not have known exactly what you’ve done but you have to pay for it.

Text: As a rule no distinction is made between those torts which would ordinarily be classed as intentional and those which would ordinarily be classed as negligent.

The subjective appreciation for formulating the intent, the fact that you’re insane is going to have nothing to do with your responsibility.

It’s important that we have a mechanism for these people to recover; insanity is not going to serve as a defense.
Synopsis: This is not really a case of fault because this woman is insane. This court says fault is not a universal prerequisite for liability. Policy needs to be advanced as to why we want to hold the actor (insane person) responsible. We don’t want to get into the business here of separating out the gradations of mental capacity. We do think the charges ought to be cared for and people will be given greater incentive if they are going to be held accountable for the conduct of others. Between the two it appears as though the nurse deserves to be compensated.

Talmage v. Smith

Are the jury instructions acceptable?

1. Intended to frighten him, not accountable (Phillips takes issue with this)
2. If the throwing was reasonable and not excessive, not accountable
3. If you can conclude that the force was unreasonable, accountable.

This case goes to the doctrine of Transferred Intent.

Nothing transferred. In lawful conduct, nothing to transfer

Robbery Hypo*

Behind bush while in proximity to an ongoing robbery. Opportunity to transfer intent? The argument can be made to transfer false imprisonment. Not free to leave.

Synopsis: Transferred intent. Be sure the original conduct is indeed blameworthy in order to have it transferred

Cole v. Turner

Old timer and dated. Don’t need to have anger to have a battery (Phillips) Harmful and Offensive.

Wallace v. Rosen

What did the court say? In crowded places, no right to complain.

Snow White being kissed hypo*

Battery v. Assault-apprehension example, have to see an assault but not a battery

Fisher v. Carrousel

Personal indignity is the essence of an action for battery.

I de S et ux v. W de S

A touching of the mind. Apprehension.





Western Union v. Hill

Fear is the concern that you show. Phillips takes issue with every battery includes an assault. False.

Apprehension is the likelihood battery is going to take place. Fear is the concern you show because of that.

Phillips-D could’ve gone around counter. D acted out of his scope of employment.

Conditional threats: If I state a condition that you satisfy and then offer threat, no reason to be apprehensive (threatening a grey haired person)

Poison in chocolate hypo*

Offended by the idea that if I had selected the poisoned chocolate.

Words in themselves, no matter how threatening, do not constitute an assault.

Week 3

Week 3 Lecture May 18, 2006

Big Town Nursing Home

No court order to hold him. To make an example out of someone, Exemplary Damages. To punish someone, Punitive Damages.

False Imprisonment: The direct restraint of one person of the physical liberty of another without adequate legal justification.

Double parked hypo*: A property interest might be sufficiently related to the person that you might conclude that it is false imprisonment.

Garage keeping keys hypo*: Is a person allowed to restrict mobility by keeping my keys?

Strip naked hypo*: Free to go but choose not to.

Do we need boundaries for false imprisonment?

Exit sign hypo*: Reasonable means of escape

Parvi v. City of Kingston

Golf course too big of a place for false imprisonment, free to go anywhere he wants. Any evidence that he was aware of confinement?

Elements: Intent Did they mean to do it?
Physical Restraint Put in car
Against his will We don’t know that in this case
Awareness Never was possible because he was run over

The court said that his awareness never was possible because he failed to make out a prima facie case. He did not allege enough of the facts necessary to say that he was falsely imprisoned.

Clearly has to be an awareness and if not awareness a harm

Note 3: Activities by a doctor with a mentally ill patients. If you make a mistake, we’ll understand that because it’s an imperfect world. If you comply with the statutory requirement, there will be no false imprisonment.

Hardy v. LaBelle’s

Court said the two key elements are:

1. Against the will and;
2. Attempt to restrain unlawful
Court said was not against her will. She was trying to prove her innocence. Has to be a physical restraint. She may have stayed to preserve her employment-Economic Duress.

Car hypo*: Get out of car or state you are being falsely imprisoned.

Enright v. Groves

Officer had no right to

Recalcitrant

Whittaker v. Sanford

Tracking down a robber, you made me go where I didn’t want to go, you falsely imprisoned me. Trying to recover property that is legally hers and it takes three blocks to run down the robber and get purse back. The boundaries were set by wherever that thief thought to go. I’m entitled to what’s mine and the restraint in having to pursue the thief. The thief was dictating my whereabouts.

Handcuff example: No real boundary here but he has to go where he doesn’t want to go and it’s against his will.

Take ladder away example: Taking ladder away for just 20 minutes. Do you have to have damages? How about a slight delay?

Restaurant example: Waiting for bill. Maybe you didn’t intend it but you should have known that keeping people here for an hour, maybe you intended that. Interference with freedom.

Parking car hypo*: Parked illegally on property, disable car, person comes back. May have false imprisonment.

Senator on plane example: Wanted to get off plane. Senators are public servants and they work for us and get no preferential treatment.

Religious cult example: Brings case against parents for false imprisonment. 15 years of age is old enough to choose religion. It was false imprisonment.

12 min.

Prob. 3 page 50

IIED or the Tort of Outrage





State Rubbish Collectors Ass’n v. Siliznoff

A new tort. When you talk about extreme and outrageous conduct, where do you see that? The closest they get to that is to say, “You have a right to be free from serious intentional and unprivileged invasions of mental and emotional tranquility.” In this case do you need to prove severe mental distress? Siliznoff became ill and had to take time off of work. Why no assault? Something in the future was going to take place, not immediately. Why no false imprisonment? No physical restraint.

Elements of IIED:

1. Intent including reckless conduct (Neither negligence nor is it intentional but it’s something greater and lesser than the two).
2. Extreme and Outrageous Conduct
3. Severe Mental Distress
4. Causal Connection

You have to prove IIED by saying this is what happened to me. You don’t have to show physical injury. In fact the court specifically states, “Greater proof that mental suffering occurred is found in the defendant’s conduct designed to bring it about than in physical injury that may or may not have resulted therefrom.” It stated earlier that, “Physical injury is not required. We know this is going to take us down a slippery slope, too many frivolous lawsuits filed but that’s okay, we think it’s more important to protect the mental health of people from the extreme and outrageous conduct of others. It’s the conduct, not the result that is going to ultimately determine whether or not the claim is successful.

Note 4 page 54

Common carriers and inn keepers have to be especially polite. Using public transportation, you don’t really have a choice, there’s no other game in town. What they are trying to do is artificially elevate the standard of courtesy. You should be kind and not insulting and not extreme and outrageous.

Slocum v Food Fair Stores of Florida

The court said, “Liability only for conduct exceeding all bounds which could be tolerated by society.”

When we are invited to go into a store where they are selling us something, they have a special duty to make it safe and that includes the conduct of the people who work for them. Why don’t we protect invitees? Why don’t we say, this is how you are going to recover. This court didn’t buy that. Toughening of the hide is good.

Harris v. Jones

Potentially could have been a bad employee, a malingerer. Had been suspended a number of times so you have to look at that. Let’s look at what you had to prove, you had some prescriptions but that doesn’t qualify as severe. You didn’t satisfy all the elements of IIED. Phillips: Should have been taking on the hard issue and saying, when you do this, is that extreme and outrageous conduct? That’s where the focus should have been but they just didn’t want to do it in this particular case. And you will find when you read a lot of these cases that if there is a much narrower basis upon which to rest a holding like here, you failed to prove severity because it’s really hard to prove of disprove because we don’t have a real standard that makes sense to us. Much easier on that very narrow basis to say, you lose because it wasn’t severe enough in your proofs as opposed to saying, when people do this, the persons of supervisory capacity where they can abuse their power. Instead of saying, this conduct was so egregious, were going as in Siliznoff did, just sort of wink and say, you know what?, that was severe enough, therefore you will pay. They chose to not address the more difficult question of what does constitute and extreme and outrageous behavior in the workplace.

Taylor v. Vallelunga

Whether or not D has knowledge of the presence of his daughter as he beat up on the father. All the P had to do was to suggest that there was knowledge on the part of the D of the presence of the other. Put that in the pleading, would have given another result.

A sensory and contemporaneous appreciation of what’s going on, then we’ll say that I didn’t know about your presence. Destruction of property could constitute IIED. Does not transfer!

President being shot hypo*: If you were there and you saw it can you recover? If you are close yes because that person should have know there were other people there but must show injury. If you’re not related to the person, you may or may not recover. Relatives don’t have to show bodily injury.

9/11 hypo*: No cases for watching it on TV. 9/11 Fund has done away with litigation for IIED.

Dougherty v. Stepp

Exclusive possession. A good faith mistake is no defense. No harm in any of these torts, it’s the invasion we’re protecting-that is the harm itself.

Flying luggage hypo*: Negligent Trespass. Don’t use that terminology as I don’t believe there’s such an animal. You have to intend it to happen. I didn’t intend the luggage to fall. Duty, breach, causation. I am negligent but would I be able to recover?

Bradley v. American Smelting

Trespass: An intent to make an unlawful entry onto another’s property and exclusive possession.

Nuisance: An interference with the quiet use and enjoyment of a property.

Do you have to enter the airspace? Dogs barking for example.
We have to forge the two. What did the court ultimately do? We don’t have an invasion of exclusive possession. Forged the rule that says actual and substantial damage in order to be successful. That’s being borrowed from nuisance. They could not do that here. We need to have business and people have to enjoy their property.

Herrin v. Sutherland

Shooting waterfowl. Does this constitute a trespass? Uses nuisance language. In the airplane case, Evidence question couldn’t ID the airlines responsible.

Restatement II 159, Air travel is trespass only if it “enters into immediate reaches of the air space next to land and *** interferes substantially with the others’ use and enjoyment of the land.”

Two requirements:

1. Immediate reaches
2. Interferes substantially

Rogers v. Board

Continuing Trespass. How come no negligence? I feel that it was a failure to remove anchors at the appropriate time. Negligence is going to fail because of governmental immunity.

They didn’t intend to leave the anchor post there. They were acting pursuant to a license. The court called it a continuing trespass. The assumption is if it’s there after the time the license expired, you intended for it to be there. I wonder if that was a fair result to reach.

WEEK 4

Week 4 Torts I May 25, 2006

Trespass to Land

Intent to go on the property of another
Without consent Exclusive possession.
Don’t need to show damages Intangible nature

Chasing hypo*: Chase someone onto the property of another. My pursuit would be a trespass. If you bring a suit against the person actually trespassing on the land, what would she say? Privilege. Not really a trespass if you’re exercising a privilege.

Continuing Trespass-Rogers v. Board of Road Commissioners. That presumes that you were there initially with consent, but you failed to remove the posts, then it becomes an intentional tort. More appropriately deemed negligence.

Note 3C. Once you prove trespass, then all of the consequences stemming from that are going to be recoverable. The court doesn’t spend a lot of time requiring it to be a causal relationship between the two because they want to point out how important it is that you not trespass on somebody else’s property. So, here even though this person died and there is some question here as to whether or not it’s fair that we’re going to make these people responsible for somebody’s death simply because they trespassed on the land even though it was unforeseeable, this court here finds that these consequences will be answerable to the original trespasser. This is just a statement suggesting that you better not breach the rule of exclusive possession because if you do trespass and there’s anything that goes wrong that we can even barely connect to you, you shall be held accountable. Causation here is somewhat tenuous but at the same time the forseeabilty aspect of this doesn’t appear to be expressed but it was of the moment and the liability still did exist.

Glidden v. Szybiak

Court said that she was of such tender years as to be incapable of contributory negligence. What are the elements of Trespass to Chattels?

1. One who is not privileged
2. but intentionally
3. intermeddles (interfere) with a chattel
4. whose is another

Rules for Trespass to Chattel:

1. Must be impaired
2. Owner deprived of its use over time
3. Harm (consistent with use, I was harmed because I didn’t have my chattel)


Strict liability for dog bites. Your dog bites, you pay as long as you don’t antagonize him.

Intent
Dispossession
Damages

CompuServe v. Cyber promotions

Is cyberspace a chattel?

He did suffer unlike Glidden

Note 3 page 81

There are limits to what you can prevent in terms of using cyberspace. Denying people to communicate.

CONVERSION

The difference between TC and Conversion is the nature of the remedy made available. A forced sale. This also is the same kind of issue of interfering with personal property but the degree of interference here goes well beyond a dispossession. It becomes dominion and control over the property. So this is matter a degree and what does measure up to the exercise of dominion and control. It’s called the big brother of trespass to chattels and that is the significant distinction-the remedy made available.

Pearson v. Dodd

Two claims: Conversion and invasion of privacy. The court gave two reasons why this did not measure up to conversion:

1. The papers didn’t measure up to chattel and therefore incapable of being converted.
2. No substantial deprivation.

$5K watch hypo*: Good faith mistake is no defense

Dealership taking keys hypo*:

Page 85 body parts case: Mining and taking advantage. Generating money for organs, may have a claim for conversion. Court said no conversion-legislative matter and would discourage people from research and picked wrong tort, should be informed consent-failure to properly inform patient.

III. PRIVILEGES

Explanation or justification of why, even though the court was committed in a sense of the prima facie elements being satisfied, that you’re not going to recover because we have defense of others and a variety of circumstances.



1. CONSENT

O’Brien v. Cunard

This case is in every tort book. The vaccine was contaminated. She showed arm and that was implied consent.

Can’t give consent by just standing ground.

Hackbart v. Cincinnati Bengals

Rules of the game were violated. Engaged in a sport and you are trying not to get hurt, it has to be within the rules of the game. You don’t give consent to be hurt (basketball case, boxing, friendly game of softball hitting your cousin) Was consent obtained? Let the sport regulate itself to keep cases out of court.

Mohr v. Williams

When you exceed the boundaries of what you’re permitted to do. You control who touches your body and if you say one thing, and they exceed the boundaries then you have a claim for batter.

De May v. Roberts

Privacy v. Consent. It’s one thing to be able to require consent and it’s quite another to prevent. She may have been in a delirious state and would have asked who this guy was under normal circumstances.

In a contemporary setting a drug sales rep would have no place in being in the same room as a doctor during a breast examination.

STD should be strict liability? Abnormally dangerous activity? It can be conducted in a safe manner-that’s why it’s not strict liability.

Sex for counterfeit money example, consent?

Prize fight example: Can one bring a claim for battery? Providing a claim might prevent illegal fights. Consent is valid, sorry you agreed because we don’t want to reward a wrong doer but could deter further activity. Courts are split on the issue.

Let’s assume there’s a promoter in charge, could both fighters bring a claim? He statutorily did not provide the protective measures that the ring needed-one guy hits his head. Yes, you can bring a claim.

2. SELF DEFENSE

Do not have to retreat.

Injuring a third party, two different perspectives:

1. Allowed to use reasonable force and act reasonably
2. Other jurisdictions say you must “stand in the shoes” of the injured party and will be responsible.


Katko v. Briney

Indiscriminate deadly force. Were they present, what degree of force could they use?

“The only time when such conduct of setting a spring gun or a like dangerous device is justified would be when the trespasser was committing a felony of violence or a felony punishable by death, or where the trespasser was endangering human life by his act.”

…unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises.

WEEK 5

Week 5 Torts Lecture, June 1, 2006

The more the interest is capable of harming people the more justifiable it would be to use deadly force. Here we are talking about very insubstantial bottles. And the indiscriminant use to protect property, the court was unwilling to do.

The reason why I’m bothered by Katko case is that another way to look at this is to look at what actually happened. I know he’s not an innocent person, but if you do have a burglary or a B & E for malicious purpose, and that’s who you’re dealing with, if you were there you could use whatever force you were able to use were you present. I have difficulty separating out that if I’m there and someone is breaking in, I’m going to have every right to think that I’m at risk and when you’re at risk in your own home, it seems as though you ought to be able to use deadly force. You can justify the threat of deadly force.

When you put people on notice with no trespassing signs, you might be less sympathetic. Take the premises as you find it.

5. RECOVERY OF PROPERTY

Hodgeden v. Hubbard

Fresh pursuit: No unreasonable delay. Use force to recover stove. The recovery of property became self defense.

Car repo hypo* and note 6: Can it be done without breach of the peace?

Bonkowski v. Arlan’s Department Store

Slander: Damaging someone’s reputation verbally by notifying a third person.

Shopkeeper’s privilege

Must have reason to detain and must be reasonable and within a reasonable amount of time. Store policy-just let em go. Others are more aggressive.

6. NECESSITY

Surocco v. Geary

Public Necessity Champion of the public, he took one for the team.

Downtown fire hypo*: Fire stops just short of the three houses you just destroyed-but he acted in good faith.

Didn’t have legislation authorizing compensation. Do you think he should be reimbursed or compensated?

Fugitives using house hypo: House destroyed. Compensation when you avail yourself. Champions of the public should be compensated. House taken in the course of business.

Two things:

Conflict by imminent domain
General exercise of police power

Phillips: Everybody pay insurance premiums and responsible for own negligence.

Katrina hypo*: Damages to millions of people. Police officers commandeer Cadillacs. Are they going to have to pay the dealership? It was necessity. Some arrangement is going to be made. Public good, public necessity. It’s a troublesome thing. If you damage other people in the process, that’s why we have legislation

Vincent v. Lake Erie Transp. Co.

Private Necessity

What’s the principal in the case? If you exercise a private necessity privilege, and cause harm to the property interest that is making that privilege available to you, then you must pay. You can use the privilege but if you damage property in the process, you will pay. Fairly straightforward. Phillips: I have a problem with this. Should be the cost of doing business. Exercised prudent seamanship. This is going to happen and you should be prepared for it.

$500 vs. a $30,000 boat

The ropes become significant down the road. Would it matter who replaced the ropes as to who would be liable? For instance, if the dock owner owned the ropes and if you said, your ropes are wearing out and I’m going to have my men replace them. But if you had a super rope, we wouldn’t have this problem. If you had a better rope, there would have been some buffeting but that rope needed to be replaced and I had to stay there. There is a defense to that also-never had a storm like that.

Phillips: I have no problem with the application of the principal, if you exercise a private necessity and you cause damage in the process you pay. In this case I don’t think he really had opportunities to have alternative courses of action and the alternatives were so undesirable that he did all he could do. He exercised prudent seamanship in the process and I’m thinking it is just as viable, just as reasonable in explanation here to say:

1. it’s the cost of doing business; and
2. the agreements between the parties would spell out who’s responsibility it is.
It’s quite defensible that it’s the dock owner and not the ship owner’s responsibility.

The reason why this is a well decided case is because they’re the ones who benefited the most. The cost of the tug was well beyond $500. Originally $1000 but the parties split the costs.

Private necessity is a privilege you are entitled to but if you damage property in the process, you must pay. I can develop an interest that never existed before but the circumstances might make that very possible and if you interfere with it, you are going to be at risk.

If you interfere, you are going to be at risk. Ploof v. Putnam. Able to sue because trespassed on property (boat) and dock owner untied ship. Dock was a property interest and wasn’t allowed to do it. Dock owner interfered with right to dock. Ship owner’s interest is greater than dock owner’s interest. You have a right to be compensated but you don’t have a right to interfere with my property.

Theologians hold that a starving man may, without moral guilt, take what is necessary to sustain life; but it could hardly be said that the obligation would not be upon such person to pay the value of the property so taken when he became able to do so. And so public necessity, in times of war or peace, may require the taking of private property for public purposes; but under our system of jurisprudence compensation must be made.

CHAPTER IV NEGLIGENCE

Elements:

1. Show there was a Duty
Conduct (The negligent act)
2. that was Breached

3. that Caused

4. an Injury (Damages)

The essence of negligence is proving that there was a breach. The authors assume there was a duty and that’s wrong to think of it that way. There is a specific idea about owing somebody a duty. When you say there is a duty owed to somebody that means there is some sort of relationship here between the two of you that imposes on you an obligation to act without putting them at risk. There are number of different kinds of cases that can be categorized as duty questions. The reason this comes to be is if you can say that there is no duty owed at this stage, the first inquiry, you don’t have worry about any of the other elements. If you conclude however the case comes up that there is no duty owed, that’s the end of the inquiry. What kind of cases are we talking about?


They could include the following:

1 Privities of contract. Early on we had tort law sort of following contract where there’s no duty owed unless there’s a privity of contract between the parties.

2. The failure to act. Can you walk by someone writhing in pain? Yes, you can. If there’s no relationship, no obligation, no reason for you to act, to help them out, you are free to do so. That’s a duty issue.

3. Mental distress. We’ve talked about the intentional infliction of mental distress. Down the road we’ve got negligent infliction of mental distress. If there is negligence on the part of a driver here and there’s a collision and down the road and there is a family member who comes onto the scene and they are traumatized by witnessing this, and they bring a claim against the negligent driver, we have to ask this question-does the negligent driver owe a duty to somebody who was really removed from the site of the negligent conduct? Do you want to have a system of law that brings these kinds of people into the fold and lets them sue?

4. Economic loss. No physical damage. If you want to have a hard and fast rule that says you owe no duty to anybody when you commit a tort when only economic loss results. Economic loss, no duty.

5. Rights of the unborn. When does life begin and receive the law’s protection?

BREACH

We begin with a negligence formula. It’s some idea of what’s expected of us. The Reasonable Person of Ordinary Prudence. We can counter that with the law will never demand of you more than you can deliver. We might do things that are occasionally perilous to ourselves or others but what we are really shooting for is to act like a reasonable person of ordinary prudence.

Now that you’ve done something wrong, is it causally related to an injury? It has to be. If we cannot prove causation then despite the duty that was owed that was clearly breached, there will be no liability. Causation can be broken down into two facets:

1. Cause in fact
2. Proximate cause

The injury is the harm that must result and that translates to what kind of damages will be afforded. Pain and suffering, the loss of your income, the loss of your enjoyment of life-all of these elements are going to be examined.




Lubitz v. Wells

This case isn’t about Jimmy but his father. Did he breach a duty when he left the golf club in the back yard accessible to children? The court said no. It can be used to kill people but it’s not intrinsically dangerous.

A slingshot being put into the stream of commerce and therefore misused is intrinsically dangerous.

Can smoke cigarettes and drink Jim Beam everyday, will die very soon but you’re not breaking any laws.

Lawn darts are intrinsically dangerous. A baseball bat can kill somebody but that fact that something is misusable does not make it intrinsically dangerous.

Note 5, D ran over toddler and was not negligent. Reasonable persons cannot disagree about this. If you park in front of a day care or nursery, should you not take that into account? Don’t always take it as the rule because there may be a different fact pattern.

Blyth v. Birmingham Waterworks Co.

Forseeability of something bad happening and the Duty to protect against it.
Negligence involves the creation of an "unreasonable" risk, by act or omission, which a reasonable and prudent man would not create. It wasn’t foreseeable that in 25 years there would be a frost that would cause this damage. Phillips: They could have insulated the pipes but they chose not to. Do you think than an oil refinery should protect against lightning with lightning rods? Why would we impose that burden on them? Acts of God are going to happen. The kind of harm that could happen here is considerable. It’s not going to cost that much. If you don’t perhaps you could say they were negligent. The frost never happened before. Not negligence here on the part of the D to fail to accommodate the severe frost. No reason to anticipate that it would occur. Gulf Refining Co. v. Williams Bung cap was rusty and in disrepair. We are questioning the awareness of the P. The idea of foreseeability as it related to the term possibility and probability. Unless such a foreseeable consequence is one which is more likely to happen than not to happen there can be no liability. Legal sense:
Possibility: Might never happen but it is and can be a risk that you need to know about and protect against. There’s no number associated with it.

Probability: Measurable, it happened before, get an appreciation. Some means of calculating an occurrence.

Page 136 from the court:

The test as respects foreseeability is not the balance of probabilities, but the existence, in the situation in hand, of some real likelihood of some damage and the likelihood is of such appreciable weight and moment as to induce, or to which reasonably should induce, action to avoid it on the part of a person of a reasonably prudent mind.

What does that really mean? Some real likelihood of some damage. That’s an introduction to the idea of we’ve got to worry about what can happen and what are the chances it can happen.

The risk of harm and the likelihood of harm as the note suggests are the two factors we want to be concerned with. People are going to view differently the risks we are constantly exposed to and expose others to as well as a result of our own conduct.

Don’t ever use the word probability to mean more probable than not in this context. That’s way too high of a standard to prove. If you’re only going to permit recovery whenever you can come in and prove it’s more probable than not that this result will occur by virtue of this conduct, that’s going to be hard to prove.

So we are going to evaluate our conduct here based on, were you aware of a risk that there might be some harm to occur to people and property. We don’t know that it was going to be 1 in 10 or 1 in 100 but the fact that it was a possibility-might never have happened before, is of such an appreciable moment meaning, I think there’s enough bad that could happen here and the frequency of occurrence is enough that I need to know about that and protect against it. That’s what they’re trying to get us to realize with regard to foreseeability

You may not like the language that they used but they want to make it quite clear here that it is not the _ of probability, it is just the possibility that something might happen.

They mention assumption of the risk and contributory negligence. Why aren’t the looking to the guy with the chisel? And you brought this on yourself. They chose not to consider that defense. There was no assumption of the risk: Subjectively appreciating what happened and no contributory negligence. That means we’re going to punish you and that you should never put in the stream of commerce containers that are in this state of disrepair. We’re going to use the word probability and we’re going to try to guesstamate as best we can what the frequency of occurrence is. And if we find that it is sufficient, then we’re going to factor that into our formula whatever that happens to be and try to come up with some sort of calculation that will enable us to determine whether or not there was negligence.


Note 1 and 3

Chemistry set was mislabeled (water for kerosene). Is it negligence to not properly label the container?

All these notes suggest, what effort did you have to make in addition to what you did that could have prevented this? Because probability to include those circumstances that might occur. It’s going to be the frequency of occurrence. Probability is recognizing that it might not have happened before.

Chicago, B. & Q.R. Co. v. Krayenbuhl

Turntable doctrine.

A property owner who was found negligent because they didn’t protect trespassers that came onto their property. These trespassers were children. Do you need to be cognizant and provide more protection for children even though they are trespassers? Yes.

What should they have done but didn’t do? Put a padlock on the turntable. What does this tell us? Defendants, you can never rest. People will come on to your property. What could have they done? Put a fence up? Signs? Do not have to be lured. The D’s knew that children were playing on the turntables.

We’re balancing the cost of the padlock. It seems like such a simple and inexpensive way to eliminate the harm. Would it interfere with their efficient use of the turntable? Always look for the counter arguments. The business of life must go forward. What’s at risk? A person losing their foot. How important is that?

A turntable is a “dangerous contrivance.” And the burden of preventing this here and the protection of the public good demands it.

In the determination of negligence the factors to be considered are:

Character and location of the premises;

The purpose for which they are used;

The probability of injury therefrom;

The precautions necessary to prevent such injury; and

The relations such precautions bear to the beneficial use of the premises.
They could have, should have done more. Even though the trespassers are children, should have used a lock to eliminate the risk of harm. The cost of a padlock was eminently reasonable and should have done that despite the fact these children had no legal right to be there.

Davison v. Snohomish

The burden here would be too great. The railings that did not exist on the bridge for the passing motorists did not represent negligence. The absence of the railings was not something the D’s had to worry about because the alternative of closing down the road so you could protect these people who use the road because you don’t have railings is asking too much of the county. And it’s certainly intruding upon the convenient transportation that people have grown used to over the years so to deny them access to that road because you don’t have bridge railings would clearly suggest this was a burden to great to meet.

WEEK 6

Week 6 Torts I, June 8, 2006

Learned Hand Approach

Restatement II 39,

US v. Carroll Towing Co

US is one of the P’s, the other is the Connors Co. The Connors barge sunk as a result of the Connors’s attendant failed to shift the mooring lines. (He never was there-he lied in court). Phillips: He could have called his boss, but he didn’t do that. The burden of precaution. How much would it have cost to have a bargee there? What’s the probability that the barge would break loose with no one there?

What’s the extent of injury? It’s a very busy place, the weather’s not all that good. An interest forgone is a burden that’s going to have to be endured but the focus is not, what is it going to cost to eliminate the problem vs. what do I have to give up in order to do what I was supposed to do.

Is that any consolation to the United States and the other P? They still lost the cargo.

The only way you are going to be able to make those kinds of determinations is by considering this over time by gathering information and by looking at this a long, long period time which you simply do not have. If there’s information gathering that gives you a greater insight into the accuracy of the portrayal of these elements L and P, then that would be good but you just don’t have the luxury to make those determinations. This is really a guesstamate.

What if there were lives at stake instead of property? You have no way to estimate, if there are 15 people on board but there’s no fairness when you just put a number to people’s lives. The formula is not workable in all situations.

Ford Pinto example: 49 million dollars (lawsuits) vs. 142 million dollars (fixing the cars). 126 million in punitive damages.

What period of time would we be using to calculate this? What if he had a budget to pay for bargees?

The court said:

…That it was a fair requirement that the Connors Co. should have a bargee aboard (unless he had some excuse for his absence), during the working hours of daylight.




NEGLIGENCE

A reasonable man: He is an ideal AP Herbert

THE STANDARD OF CARE

Vaughan v. Menlove

RPOP

Under the same or similar circumstances. Cannot overlook. Cannot change standard-have one. It will be reasonable.

Working from information that’s valid. Have a lot to do.

Circumstances

BBQ, bad mushrooms hypo*

Jaywalk hypo*

WEEK 7

Week 7 Torts I Lecture June 15, 2006

Review:

Please don’t make the mistake of an emergency reducing our expectation of the conduct.

Roberts v. State of LA page 157
Rule of law: The Standard of Care — The Reasonable Prudent Person. The standard of care applicable to handicapped persons is that they must take those precautions that ordinary, reasonable persons would if they were similarly handicapped.

It’s the amount of care as opposed to the standard of care. You just can’t venture out on your own and expect people to identify and react to you and expect nothing bad will happen to you. The amount of care may change but the standard remains the same.

That doesn’t mean that every person without sight can just venture forth. They’ve got to take proper precautions.

Note 3 and 7 on page 160

Robinson v. Lindsay
Rule of Law: The Standard of Care — The Reasonable Prudent Person. A child will he held to an adult standard of care when he engages in an inherently dangerous activity, such as the operation of a powerful motor vehicle. (Robinson v. Lindsay)

There’s a negative…The court talks about different…adult activity but if its dangerous, we look at the activity.

Three different age options:

0-6 Years of age-Conclusively not found negligent

7-14 Years of age-There’s a rebuttable presumption that you are not negligent (tender years)

Over 14-There is a presumption one can be found negligent.

Subjective standard…What’s the problem with that?

Seven year old example:

If you say you are well above the norm

If you don’t know any better

Hunting in Arkansas

Should we take into account old age? Subjective standard just like children. Should not be menace.

Dual standard of care depends on the circumstances in which he finds himself….Recovery reduced. We want those injured parties to recover. If somebody were a child molester and seeking avoidance

Breunig v. American Family Ins. Co.

Issue: Is a sudden, unforeseen state of insanity a defense to liability for negligence? Yes.

Rule of Law: A person seized with a sudden mental disability for which he had no warning will be excused from the general rule of holding an insane person liable for his negligence.

Minority opinion. Let’s give her a break. Most jurisdictions say no, we have to protect the general public. Notes: Institutionalized, strike that person, not able to recover contrary to the rule.

Heath v. Swift Wings page 168

What case does this remind you of? Vaughn v. Menlove (hey rick case). Standard of care, reasonable prudent person. In this case: standard of care not tailored to the individual characteristics of the D.

The flaw: seeking a subjective standard, should be objective. We want you to act like any other ordinary pilot would have done under the same or similar circumstances.

Notes: 2-take out average and use ordinary. Average means half are above and half are below and that’s not good enough. Half could not meet the standard.

Clergy malpractice-gives marital counseling and takes up with wife and failure to refer to psychiatrist when threatened suicide during counseling.

Educational malpractice-failure to educate or assign correct program. (The courts have generally rejected the arguments however)






Hodges v. Carter

Issue: Is an attorney who acts in good faith and with an honest belief that his actions are in the best interest of his client liable for mistaken advice in an area of unsettled law? No.

Did not find legal malpractice, good faith and exercise of best judgment (Phillips takes issue with this)

How difficult is it to do what could have prevented the necessity for this lawsuit? The burden here was ever so slight. Could have served personally. You should go the extra mile. Should anticipate the change in law.

No alias summons within 60 days. The burden was ever so slight. Should’ve had some recognition. Mere error of judgment or …

Settlement strategy-client centered v. taking charge

Boyce v. Brown page 177

Dr. Kent didn’t know the state of the ankle in 1936. If you’re going to bring in an expert witness, you must address the issue of standard of care; tell what it is and why it wasn’t met.

Six Principles or Medical Malpractice: See page 178-too long!

Glaucoma test malpractice-Note 4 page 180-opthamologist held liable despite testimony on both sides-seriousness of potential risk v. cost of test.

è Phillips points out that in a lot of these cases the harm could have been prevented with little effort or by inexpensive means.

Conflict between judges/lawyers, doctors and insurance companies.

Morrison v. MacNamara

Locality Rule-Standard of care based on area of practice.

Shouldn’t be given a lesser standard of care because of location. Locality rule fosters substandard care.

Rule of Law: The standard of care applicable to board certified physicians, hospitals, medical laboratories, and other health care providers is measured by the national standard of care.



Scott v. Bradford

Doctrine of Informed Consent.

Is the doctrine of informed consent a professional standard care? Page 187: We decline to adopt a standard based on the professional standard. What kind of standard did they adopt?

This is not battery but negligence

In order to sue for malpractice under informed consent must prove:

1. Physician failed to inform of material risk
2. If patient had been informed, would not have consented to treatment
3. Adverse consequences not made known did in fact occur and was injured as a result of submitting to treatment.

If doctor can prove that patient would have gone forward with treatment despite consent, case will be dismissed. No causation.

Three Exceptions to the Rule of Informed Consent (Patient Bill of Rights)

1. Emergency.
2. Full disclosure would be detrimental to patient’s best interests (Therapeutic Waiver). Could argue that the doctor is greedy.
3. Common knowledge The person knows or should know the risks. Phillips: doctors must be cautious when using this-how is a patient to know?

Moore v. The Regents of the University of CA

Breach of fiduciary duty (function of trust) as well as informed consent (would I be inclined to continue treatment?)

Doctor mined cells for profit/breach of trust. Not conversion.

Doctor did not disclose the true aspect of why he was mining cells for a reason unrelated to treatment. Patient is at risk.

Rule of Law: A physician has a duty to disclose to a patient intended research connected to the patient's treatment.

WEEK 8

Week 8 Torts I, June 22, 2006

Can’t really classify on that basis unless…

What the courts normally do is…

Means Scrutiny Tests between the two. Doesn’t look for a compelling…Is there a rational relationship between the classification and the object and the object of the legislation. No rel because you can insure against…

They are talking about neither negligence

If you’re a nonpaying passenger. This middle ground

1. Rules of law: Precedents that have been decided

Pokora v. Wabash Ry. Co.

Cardozo: I think you overstate the case. One rule for each and every circumstance. Sometimes it’s even more dangerous to get out. Every single time…

We must exercise caution. Let’s move very cautiously…As a matter of law. It is clear to everybody…Courts do make the law, that’s what a precedent is all about.

In the defense…

RPOP/ Circumstances

On occasion, Learned Hand approach, B PxL

Is it a good idea to adopt…a statutory standard.

Which elements are effected:

ü Duty

ü Breach

The class of people or the type of harm you are trying to prevent

1. Violation of Statute

Osborne v. McMasters

Negligence per se. So clear that we’re not going to

One of three different choices with regard to this particular jurisdiction

1. Negligence per se

2. Presumption

3. Evidence

Matter of law: may involve a statute or…

(A) APPLICABILITY OF A STATUTE

Stachniewicz v. Mar-Cam Corp.

Cannot serve alcohol…courts rejected, too ambiguous.

When they talk here about this two pronged test, sometimes it is not spelled out.

Bartender, maybe he should be able..Patron is too narrowly drawn

Dram Shop Act, allow injured party to bring a claim against establishment

Classic example of a…standard of care within the est.

Notes:

Focus on the type of harm which is specific

Ney v. Yellow Cab Co.

A safety statute so says the majority

The purpose of the statute, legislative history. Call people as witness. If there’s a statute to keep animals separated

Perry v. S.N and S.N.

Focus on statue…for some reason, the court chooses not to do that

Most states require some background

The purpose shall be for the protection of the child.

The penalty is much, much less than the abuser



Ruinous liability could result. Did the injury…

No common law

Had first hand knowledge…common law duty Holding 220 Standard of care

Blue law hypo*

Fender bender hypo* No right to be here so you are in part responsible.

Martin v. Herzog

Sometimes you will find negligence.

Zeni v. Anderson

Which of these three does the court adopt? Presumption.

How does it differ?

When I refer to safety statute, take away the argument of contributory negligence. Finally, reasonable care per se

7. Proof of Negligence


(A) Court and Jury: Circumstantial Evidence

Goddard v. Boston & Maine R.R. Co.

Anjou v. Boston Elevated Railway

Circumstantial

Joye v. Great Atlantic and Pacific Tea Co.

Ortega v. Kmart Corp

Does not ordinarily happen in the absence of negligence. Exclusive control.

4. Superior knowledge


Common carrier pg 239




Larson v. St. Francis Hotel


Burden of precaution. Are you ok with the idea the P was unable to show exclusive


1. Inference
2. Presumption
3. D b/p

WEEK 9

Week 9 Torts I Lecture, June 29, 2006

Professor Henke Substituting
Lexis is all about causation:

Cause in fact,

And

Proximate cause.

Page 132 – Elements of Negligence. Cardozo: “If there is negligence in the air, so what?” If one of us does something tonight that falls below an accepted duty of care, if it doesn’t cause any harm – even though we have been negligent, our lack of care is not actionable because no one has been hurt.

We start to create a nexus or a connection between a breach of a duty and a subsequent injury. Causation is all about nexus. It’s all about connection. The two types of causation are:

1. Cause in fact
2. Proximate cause

How these are different:

Sterilization Hypo*: A person decided not to have children and sought out a physician for an operation. She was a V of malpractice and gets pregnant and gives birth to a child who grows up to become an alcoholic. One night as you are driving home from school, that person hits you. What would happen if you started a malpractice lawsuit against the physician who performed the surgery 21 years ago? Theoretically you could say that but for that malpractice 21 years ago, the alcoholic child would not have been born and he would not have grown up, get into an accident and hit you.

Technically you could say that a cause in fact of this accident was the botched surgery. What you will learn in weeks to come is we would never say that the malpractice was a proximate or legal cause of the accident. So it’s very important to keep in mind as you start this exploration of causation you must show BOTH types of causation. Often times, you will be able to show cause and fact. You will be able to show that something is a cause of something else in a very general way but then when you get to the second step of causation, is it a proximate cause? Is it a legal cause? You may answer, no and liability will not be found. This is an “and” thing. You need cause in fact AND you need proximate cause.








First aspect of causation:

CAUSE IN FACT

1. Vocabulary. The two typical articulations of cause in fact are:

- “but for” test. sometimes possible
- “substantial factor” test more realistic in modern context

But for the D’s negligence, the accident wouldn’t have occurred. We can say that sometimes. But many times, especially in modern tort law, you can’t say that. In virtually any toxic tort case, you can never say but for. In the Bendectin (Daubert) litigation, you cannot say but for Bendectin, these kids are born without birth defects. But maybe what you can say is that Bendectin was a substantial factor in bringing about those birth defects.

Smoking hypo: Smoker was exposed to asbestos and got cancer. Was it due to asbestos? Could it be causally related to both elements? But could we say that asbestos was a substantial factor? Maybe we could or an expert could testify to that.

You have to be mindful of these two different articulations of the basic principal.

Perkins p259, Anderson p283

Admittedly the conductor of the train is acting negligently – he’s exceeding the speed limit. They had a duty and they breached that duty. They have not acted reasonably. Fine, but now we get to the next step. Is there any connection of nexus between the negligent conduct and the accident? But for the speeding, would this accident not have occurred? The answer is it probably would have occurred anyway. Even if we use the more forgiving language, is the speeding a substantial factor in bringing about this accident? According to the facts and testimony, the answer once again is no. On page 260, you actually see this articulation of substantial factor:

“It is fundamental that negligence is not actionable unless it is a cause in fact of the harm…It need not be the sole cause. Negligence is a cause in fact of the harm to another if it was a substantial factor in bringing about the harm”.

The bottom line: The speeding was neither the “but for” cause nor a “substantial factor” in bringing about this accident.

Page 261: “conceivably” have more time to advert disaster. You all know at this point by studying tort law that civil lawsuits are all about showing that something is more likely than not. You have to prove a tort case by a preponderance of the evidence. What conceivably could or could not have occurred – that mere possibility of a different outcome is a far cry from showing a preponderance or more likely than not and the case falls apart.

Note 7, page 262. Warning Defect.


Warning Defect hypo: Uses Arm & Hammer Baking Soda for anti acid, Graves falls to the ground with a ruptured stomach. Graves waited over 4 years to file his lawsuit. SOL had run. Got past that argument and proceeded to trial in the merits. Graves asked for an evidentiary presumption that had there been a better warning, he would have read it, he would have heeded it and he would not have taken the Arm & Hammer.

During a deposition, he was asked if he was a smoker, he responded yes. Then admitted he was aware of the warnings but smokes anyway. Speeding tickets?

Jury said warning was defective. No warning regarding misuse of product. Was the inadequate warning a cause in fact of his accident? No, case dismissed. Arm & Hammer changed the warning label but Graves lost.

2. Proof of Causation

Reynolds v. Texas & Pac. Ry. Co.

Exact antithesis of the prior case. “But where the negligence if the D greatly multiplies the chances of accident (Henke: i.e. substantial factor). In the last case it was the merest possibility that the speeding train had any connection to the accident. This time we have the opposite result.

Gentry v. Douglas Hereford Ranch, Inc. page 263

Henke: This is a good case. Joint and several liability. If you have multiple tortfeasors, the jury is asked to apportion liability among the tortfeasors as to add up to 100%. The several liability of the defendant is the actual percentage share that the jury attributes to them. Joint liability is the notion that if the jury tags you with any liability, the P has the option of collecting the entire verdict against anyone of those tortfeasors. Several is the actual percentage share. Joint liability is the notion that you’re on the hook for the whole thing.

The trial judge was saying that a jury would be incapable of determining there was a factual dispute (summary judgment).

(a) BK issue The true tortfeasor in this case is in bankruptcy – he’s bulletproof
(b) Vicarious liability The ultimate deep pocket theory.

Kramer Services, Inc. v. Wilkins

The P is attempting to argue that a traumatic injury ultimately caused cancer a couple of years later. Will have to prove with expert testimony that it is more likely than not that this cancer was caused by this traumatic incident. No showing of a nexus between the negligence (glass) and the cancer.

Note 3, Cause in fact is a thematic issue in informed consent cases. Canterbury v. Spence.

Note 4, When the antisocial conduct manifests itself by going on a shooting spree, to what extent can the entity be sued for the resulting harm? A classic cause in fact issue. How do you show a nexus between sitting and watching mind numbing violence and then committing a violent act? Most of those arguments fall apart on causation. Courts will find that the commission of a violent act is too far flung from the viewing of the video or program. Note 4 introduces those concepts. Battling the first amendment because the courts will take into account the freedom of speech.

Herskovitz v. Group Health Cooperative of Puget Sound

Malpractice occurs and lessens your chances of recovery. What do we do with a case like this? It reduces your chances to survive however your original chance to survive was less than 50%. Should that be a compensable event? This particular court says yes. I think they do a wise thing. The real issue in this case is damages. How are we going to give the P a remedy on these bizarre facts? The court says “causing a reduction of the opportunity to recover (loss of chance) it does not necessitate a total recovery for all damages caused by the V’s death. Damages should be awarded to the injured party or his family based only on damages caused directly by premature death, such as lost earnings and additional medical expenses.

Henke: In a death case you have two components:

Wrongful death: Is brought by people who qualify as beneficiaries under a wrongful death statute. They are entitled to monetary income that went to the maintenance of the unit.

Survivorship: The claim of the decedent himself. We compensate his estate for his pain and suffering before he died. The value of his personal property. The income that he would have used for his own maintenance.

What the court is saying in this case is we’re going to allow recovery for this reduction of time. The additional lost earnings that he suffered – things of that nature.

Notes: 4 and 6 talk about this doctrine in other contexts. Note 4 is like the Detroit 911 call – a strong lost chance case. Note 6 – attorney malpractice, a case within a case.

2. Daubert: Key evidence case + modern example of substantial factor

(a) Litigation driver science
(b) Frye: general acceptance
(c) Underlying methodology – “gatekeeper”

3. Concurrent Causation: joint & several liability

(a) alternate liability
(b) concert of action
(c) enterprise liability
(d) market share (Sindell)




DES Litigation

Daubert v. Merrell Dow Pharmaceuticals, Inc. LANDMARK CASE

This is the 9th Circuit remand case. This case has led to a substantial body of law on the admissibility of novel scientific evidence in tort. But it goes beyond tort. A substantial factor case.

Before Daubert, this issue tended to be controlled by a 1923 DC circuit court of appeals case (Frye v. US). The Fry case was synonymous with the generally accepted in the scientific community standard. In 1993, The US Supreme Court reconsidered the Frye standard and they really changed the landscape.

The facts in Daubert were crummy facts from a P’s perspective. The science supporting a nexus between Bendectin and birth defects is bad science. It is what we often call litigation science. The scientists who testified for the P’s, did not do independent work. They basically picked apart the pre-existing science and the pre-existing science found no nexus between Bendectin and birth defects.

The science was sort of dubious, they kept it to themselves. Some courts of appeals allowed this evidence, some did not. The US Supreme Court chose this forum to clarify this issue. J. Blackman wrote the SC opinion in 1993. The evidentiary rules implicated by this case are 702 and 703 of the Federal Rules of Evidence. J. Blackman said 702 and 703 supplant the old Frye standard. Blackman said that instead of being bean counters, trial judges who are faced with novel scientific evidence should look to the underlying scientific methodology that gave rise to the conclusion. Is this the scientific methodology that is based upon good underlying data? Is it the kind of stuff reasonably relied upon by experts in the field or is it “junk science?” Blackman empowered trial judges to roll up their sleeves and become arm chair scientists. The ninth circuit takes it responsibility seriously. Page 277. It’s a movement away from a simple bean counting approach – eight people say this, two people say that – let it in. Now the focus is if that methodology was sound but it led you to a minority conclusion, ok maybe it’s admissible, let a jury take credibility into account. Daubert has become an empowering decision.

So many toxic tort cases fall apart because of this. Your expert is going to testify, you serve your report to your adversary and they are going to make a rule 104 motion to exclude your report because they are going to argue that there is no nexus between whatever your case is. If a judge agrees, you have no case. (Daubert Hearing)

Page 281. Judges as gatekeepers. Seventh Amendment right to a jury trial. If a judge grants a Daubert motion, the courthouse doors slam shut. Interesting philosophical debate.

3. Concurrent Causes

Hill v. Edmonds

Anderson v. Minn.

A combination of fires. One of which is of tortuous origin and one is not. Another classic example of the substantial factor articulation of cause in fact. Look at the jury instruction on page 283. We are fighting about whether or not the trial judge’s instruction to the jury was appropriate. This court finds that it was and Henke agrees. Here’s an important thing to keep in mind: both on cause in fact and proximate cause as a P, you really want to make sure that the judge in his or her jury instructions uses the word “a” instead of “the.” All that you have to show is “a” substantial factor, or “a” proximate cause of the injury. And that’s what concurrent causation is all about. It’s the recognition that a combination of factors may lead to a harm and it’s your burden of proof as a P to make out substantial factor.

That’s what this fire case is all about. As long as you show the tortuously caused fire was a substantial factor in bringing about this harm, you should get to a jury.

Note 5 page 284, note 6 page 285 – Model jury charge

4. Problems in Determining Which Party Caused the Harm

Summers v. Tice

The theory of alternate liability. If you have 2 D’s both of whom were negligent. One of whom may have been a substantial factor in bringing about the harm. The burden of proof shifts to the D’s to exculpate themselves. And if they are unable to exculpate themselves, then they are jointly and severally liable.

Sindell v. Abbott Laboratories LANDMARK

DES-antimiscarriage drug taken during pregnancy. DES caused a series of reproductive anomalies in the daughters of the moms who took DES. The daughters born to DES mothers were often born with badly defective reproductive systems and the children of DES mothers were subject to certain cancers including a rare clear cell carcinoma.

Signature disease: If you’ve been exposed to asbestos and you get mesothelioma, it is a signature disease of asbestos exposure. There is almost no other known cause of mesothelioma. DES was the same way. Strong causation.

DES gave rise to incredible body of tort law. DES cannot be distinguished from one batch to the next. Who knows who’s DES did your mother take? Was it Eli Lilly’s? Abbott’s?

Product identification gave rise to market share and liability.

Concert of action: page 361 (Torts II) Drag racing, one hits car and P sues both drivers – they were acting in concert. Both are jointly and severally liable.

Sindell: The court comes up with market share liability. The P must join a substantial share of the market in this lawsuit. Burden shift again. Abbott had to exculpate themselves or they had to pay the market share. The P didn’t have to identify the actual product that harmed them. This theory has rarely been extended beyond DES cases.

J. Traynor: “…for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business.”

DES had a strong causation, but questioning the tortfeasor. Bendectin we know identity of D but the nexus between the product and the injury is suspect.

WEEK 10

Week 10 Torts I, July 6, 2006

Concurrent Causation – but for does not work there. Get a new rule to fill in the gaps.

What’s wrong with market share? What is the market? What makes the most sense?

National market share – If my company is out of San Francisco and this P purchased DES in New York and we are litigating this case and the NY rule applies. I say I do have 14% of the market but I don’t market east of the Mississippi. But you know what, we don’t care, the national market applies. The good news is they are going to reject joint and several liability so if there are 5 or 6 of us and 4 of them are no longer in business and one of them has no money and I’m the only D, I’m limited to 18 or 20 percent.

PROXIMATE CAUSE

What to do about it: Unless the arrow penetrates or hits the bulls eye, there will be no recovery.

Others have a different name for proximate cause, they call it the scope of responsibility. This is a requirement that has to be satisfied every time.

PROXIMATE OR LEGAL CAUSE

Atlantic Coast Line R v. Daniels

Introduces us to the term proximate cause. Proximate means that it’s different from cause in fact. This is the legal cause, the result of which is foreseeable. All injuries are produced by a cause and effect from the natural chain of events but the law will only hold parties liable for those injuries that are the legal cause of the harm to another.

1. Unforeseeable Consequences

Ryan v. New York Central R.R. Co.

RULE OF LAW: Every person is liable in damages for the proximate results of his own acts, but not for remote damages.

LEGAL ANALYSIS: This case is poorly reasoned. A defendant should be liable for damages which are the natural and probable consequence of his acts. In no manner could these results be considered to be remote. This is particularly true from the facts in that there were really no independent forces acting upon this blaze. The reasoning used by this court is ill formed and incorrect.

Bartolone v. Jeckovich

RULE OF LAW: A defendant takes a plaintiff as he finds him and hence be liable for damages for aggravation of a preexisting illness.

LEGAL ANALYSIS: This is an example of the eggshell plaintiff. So we find that a party will be proximately liable for all but for damages caused to the personality or body of a defendant. This is known as acting on a set stage. Foreseeability is not an issue when damages to the human body are concerned. If some injury is foreseeable, the plaintiff will be liable for all injuries to a person that in fact does occur.

96 year old man hypo: Two weeks to live, worth a lot or not?

Don’t mistake this doctrine to prove what the D did or should have done. This is more of a damages question here (Note 4 page 299).

In re Arbitration Between Polemis and Furness, Withy & Co., Ltd.

RULE OF LAW: If a breach of duty constitutes negligence, any damages as a direct result
of that negligence are not too remote even if the extent of actual damages were not
foreseeable.

LEGAL ANALYSIS: If a tortious act is committed, the tortfeasor will be absolutely liable for all damages to property. The key statement is as follows: Where there is no direct evidence of negligence, the question what a reasonable man might foresee is of importance in considering the question whether there is evidence for the jury of negligence or not .... Modern law holds a tortfeasor liable only for foreseeable damages to property and only allows absolute recovery to the eggshell plaintiff. Under this case a party is negligent if his conduct could have been expected to cause damages. But once negligence has been established, a party is liable for all damages actually resulting from his initial negligence and the nature and extent of the harm and liability is not based on foreseeability. If some types of damages are foreseeable then it does not matter exactly what type of damages occur. Here it was not foreseeable that a falling board would cause a spark and start a fire but it was foreseeable a plank would fall and cause some type of damages. Thus D is liable for all the direct results of his negligent acts even if those results were unforeseeable. The extent, type and manner in which the damages occur need not be foreseeable.

Overseas Tankship v. Morts Dock “Wagon Mound 1”

RULE OF LAW: A tortfeasor is not liable in negligence for unforeseeable consequences
of his negligent conduct even if those results are a direct result of the defendant's conduct.

LEGAL ANALYSIS: A tortfeasor is responsible for the reasonably foreseeable or probable consequences of his negligent acts. However, this still does not account for why the thin skull plaintiff rule is still followed. Remember the Polemis case; it held that a party will be liable to the full extent of damages springing from a negligent act so long as some type of damages from the negligent act were foreseeable. Here, the court states that the injury must not only be foreseeable but the liability will only extend to the foreseeable damages from negligence. So damages too must be reasonably foreseeable. Thus the actual injury incurred must be reasonably foreseeable as well.

This fire was not reasonably foreseeable. Phillips: and I’m wondering how they could come to that conclusion? Oil is combustible so the chances are that oil can catch fire is always going to be a possibility. The sequence of events was timed perfectly. The focus is on the nature of the damage.

Overseas Tankship v. Miller Steamship Co., “Wagon Mound 2”

ISSUE: Would a reasonable man in the shoes of the ship's chief engineer know that there was a risk of fire from the oil spilled in the harbor? Is the foreseeability of the consequences of a defendant's actions dependent on the balancing of the likelihood or the risk and the magnitude of the damages therefrom?

RULE OF LAW: If a party has knowledge of a risk and has the ability to take measures to reasonably prevent that risk, and the magnitude of the risk exceeds the utility of the conduct from not preventing the risk he will be liable for the damages. The foreseeability of the consequences of a defendant's actions is dependent on the balancing of the likelihood or the risk and the magnitude of the damages therefrom.

The dock owner was contributorily negligent. What the court had to do is penalize the P because they contributed to their own harm by welding. The court did adopt a different test. You should be aware of risks.

Page 308: The findings show that he ought to have known that it is possible to ignite this kind of oil on water and that the ship’s engineer probably ought to have known that this had in fact happened before.

Palsgraf v. Long Island R.R. Co. LANDMARK

Cardozo: negligence is based on the foreseeability of the harm between the parties. Even if an act is negligent, there can be no liability for that act if there is no foreseeability of harm to the injured party. Cardozo is the majority view and is called the zone of danger view. Thus liability for negligence is limited to what was foreseeable and what duties were owed that was reasonably foreseeable prior to the negligent act. Thus to recover, a plaintiff must be a foreseeable plaintiff under Cardozo and be in the zone of danger.

General comments: To prevail on a negligence claim, a plaintiff must establish that the defendant’s conduct "legally caused" the injuries. The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct." The second component of "legal cause" is proximate cause, which we have defined as "'[a]n actual cause that is a substantial factor in the resulting harm. Remote or trivial [actual] causes are generally rejected because the determination of the responsibility for another's injury is much too important to be distracted by explorations for obscure consequences or inconsequential causes." Proximate cause is a matter of fair judgment and a rough sense of justice. The "test" of proximate cause is whether the defendant's conduct is a "substantial factor" in producing the plaintiff's injury. That negligent conduct is a "cause in fact," however, obviously does not mean that it is also a "substantial factor" for the purposes of a proximate cause inquiry. The "substantial factor" test, in truth, reflects the inquiry fundamental to all proximate cause questions; that is, "'whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence.'

Phillips: The zone of danger rule is fuzzy. Everyone wants to get in it.

Andrews: Each person owes an absolute duty of care; each person must refrain from acts (foreseeable or not) that unreasonably threaten the safety of others. After careful consideration the Andrews view is much better and easier to apply under all circumstances. Why the Cardozo view has prevailed all these years is anybody's guess.

Phillips: If you want the duty focus to predominate then you are risking taking cases away from a jury that should belong there. On the other hand those people who think we’ve gone crazy with recovery, then that’s a good thing to have judicial determination made early on to prevent these cases from going forward.

Rescuers: A foreseeable P who may recover. Peril invites rescue, and the defendant will not be relieved of liability for aggravation of injuries to the plaintiff or the rescuer in any reasonable rescue attempt or completion. Unreasonable efforts will make the rescuer liable for further harm to the plaintiff.

Note 7

Yun v. Ford Motor Co.

RULE OF LAW: The issue of proximate cause is not always a question for the jury. In certain instances when proximate cause is held to be so intertwined with issues of policy it will be treated as a matter of law for the court to determine.

Proximate Cause: Any cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the result complained of and without which the result would not have occurred.

Reasonably foreseeable (Cardozo) v. highly extraordinary (Andrews)

Yun was of course, a moron.

2. Intervening Causes

All subsequent occurrences here are intervening. You have the original negligent conduct and a number of subsequent activities. These are all intervening. Some of these may be superseding.

Superseding: So abnormal, so extraordinary, so powerful, so dominating that it really serves to absolve all of those who have gone before.

So you might have one or maybe more negligent actors followed by somebody who did something that was really, really egregious and was so reflective of where judgment should lie as to responsibility that these earlier wrongdoers are going to be absolved. That’s what we would call a superseding action.








Derdiarian v. Felix Contracting Corp.

Epileptic seizure.

Rule per Phillips: Whenever they had the requirement of the barrier being there, it was to protect the workplace. To protect from cars entering. What happened? A car entered the workplace. The very harm they were seeking to avoid, occurred. Where the result is within the risk created by the D’s conduct, liability will attach. This all depends on how we view the nature of the risk. It can be narrow or broad.

Chronology:

1. Negligent – absence of barrier
2. Driver enters the area
3. The injury

RULE OF LAW: If the acts of a third person intervene between a defendant's conduct and a plaintiff's injury, the causal connection is not automatically severed if the intervening act is a foreseeable consequence of the risk created by the defendant's negligent conduct.

Note 9 page 328 – Radio station held liable for wrongful death for encouraging people to speed to touch radio personality for money. Impressionable teenagers – should know your audience. More susceptible and they should have known better.

Plane to HI hypo*: Jet runs out of fuel, lands on island but all were killed by volcano. Once I landed the risks associated with inadequate fuel were terminated. Cannot be held liable for acts of God. P would argue that I wouldn’t have been there but for your negligence. Is it a proximate cause though? It certainly is. You had to get me there safely and not only the but for but the kind of harm you normally associate inadequate fuel is crashing into the ocean. But the type of harm, death by volcano, was something I really should not have anticipated and protected against. If we had gone in the drink that’s one thing but not this. It’s a different type of harm.

Watson v. Kentucky & Indiana Bridge & R.R. Co.

Issue: Was it negligent or intentional?

RULE OF LAW Rom Law: A malicious and intentional act is superseding if it could not reasonably be anticipated or guarded against. The question of proximate cause is a question for the jury.

CONCISE RULE OF LAW: The mere fact that an intervening act was unforeseen will not relieve the defendant guilty of primary negligence from liability unless the intervening act is something so unexpected or extraordinary as that it could not or ought not to be anticipated.




Chronology:

1. Negligently spilling gasoline
2. Lighted match entering gasoline
3. Injury

The nature of the risk is foreseeable – fire.

Note 4B page 332, 4H page 333, 5 page 334

Train passenger hypo*: Dropped off in hobo junction. Train operator knew she was going to be at risk but made her get off and subsequently was raped. Knowledge plays a big role in whether or not they are going to view these subsequent events as superseding or merely intervening.

Fuller v. Preis

Doctor who committed suicide was the plaintiff. P suffered head injuries from an accident.

Phillips: The concept of irresistible impulse (no time to reflect). If the organic brain damage did not permit him to have sound and reflective thoughts about what he was doing, he was incapable of resisting the urge to destroy himself.

CONCISE RULE OF LAW: As a matter of law, an act of suicide is not a superseding cause in negligence law precluding liability.

RULE OF LAW: An act of suicide is not a per se superseding cause in negligence law precluding liability.

McCoy v. American Suzuki Motor Corp.

Rescuer struck by car.

CONCISE RULE OF LAW: The rescue doctrine may be invoked in products liability cases, requiring the rescuer-plaintiff to prove that the defendant's conduct was the proximate cause of his injuries.

RULE OF LAW: The rescue doctrine does apply to product liability actions. The rescuer must show the defendant's wrongdoing proximately caused his injuries.

LEGAL ANALYSIS: Danger invites rescue (Cardozo) and rescue is a foreseeable dependent intervening act as a matter of law. But the rescuer must still act as a reasonably prudent person and the party being rescued can sue her if she does not act according to the standards imposed by negligence law. Rescue is not an independent act but a dependent act. There are requirements for invoking the rescue doctrine, which the court has clearly delineated, and the doctrine also applies in product liability actions. The rescuer must also prove proximate causation. Here, the court held that the jury must determine if the negligence of hit and run driver is attributable to D based on whether that was foreseeable. This is a bit more complicated than if the rescuer gets injured by say broken glass while pulling the driver of the car from danger. There would be very little debate about foreseeability for that scenario. These facts bring into the mix the acts of a fourth person and their negligence and whether in fact, based on the conditions at the time of the accident to P, whether D is still liable. That is what makes this case complicated and unusual. The court could only find two other instances where such a determination had to be made: one in California and the other in Georgia and both of those courts let the jury decide.

WEEK 11

Week 11 Torts I, July 13, 2006

Proximate cause – what’s the best way to resolve this case.

A fire is too remote.

Assemblance of rules:

Polemis case: direct consequence test or what is directly traceable back to the P. And if it is, liability will attach.

Proving a breach is a general determination. Limiting liability because you didn’t prove proximate cause.

Direct consequence

Wagon Mound 1. Type versus extent of harm enables us to appreciate that there are classes or risks associated with certain conduct. In this particular case it was the harm.

Classes of Risk:

1. What is the type of harm that can befall P?
2. Who is in that class of persons that’s going to be at risk?
3. The manner in which it occurs. Generally the manner doesn’t make a lot of difference but there can be cases where the manner is so peculiar, so incomprehensible as to proximate cause.

If you say the harm really wasn’t to be anticipated, that’s a good way to conclude that there is no proximate cause.

Class of persons:

Palsgraf: Were you in the zone of danger? Cardozo said you were not because you were not owed a duty. What you did try to do is piggy back on the duty owed to the Italian carrying the shoebox. Palsgraf was so far removed and the nature of the harm that was associated with the conduct of the D had nothing to do with what ultimately happened.

The employee who pushed the Italian was not appreciative of the danger. If there was a factual change (like labeling the box T.N.T.) can have a bearing on how you describe this zone of danger.

Cardozo (reasonable foreseeability): Duty really is a function of foreseeability. Phillips: I think he’s looking at the breach itself, what type of harm are we really thinking about here.

But he says – that duty is a function of foreseeability but whenever you say there’s a duty you are responsible for all damage. The duty question determined by the court can be done at an early stage in the litigation and can be more demonstrative in terms of forming a rule as a matter of law. That’s where I took issue with Cardozo. There’s a lot of things where a reasonable person could disagree on so why don’t you let them determine what’s fair and what’s just.

Andrews (direct consequence): Work backwards. It is or it isn’t highly extraordinary this thing that happened? What happened vs. what should have happened. Andrews recognizes the shortcomings of the term proximate but there is no reasonable substitute.

Intervening causes:

External, sometimes internal forces that have a lot to say about the result.

Derderian case:

When the resolve is within the risk it doesn’t really make any difference the nature of that intervening force. The result within the risk continues to attach liability.

Watson case – spilled gasoline. Don’t intend harm but are negligent. Intervening force that may or may not be superseding. If it’s intentional or criminal it’s going to be superseding. If it’s merely negligent then intervening.

Fuller v. Preis

Suicide can be function of a well thought out plan. Had a note and left a phone message. Competing negative things going on in his life that may compromise the case of is this all due to the negligent driver.

If you consider the fact of irresistible impulse because it’s directly connected to organic brain damage that the negligent party caused. Not an open and shut conclusion.

RESCUE DOCTRINE (Cardozo)

When somebody attempts to rescue a person in peril and they are harmed in the process, the original negligent party is responsible for the rescuers harm as well as the person he directly harmed.

The cry of distress is the summons to relief. Every rescuer is foreseeable.

Phillips: What if the rescuer acted with poor judgment? Is the D liable?

Preparing to rescue. Hopping in a helicopter 30 miles away example. Are they attempting to rescue? The court said no, too far removed and the D was not the proximate cause of the helicopter crash.

McCoy case:

1. Does the rescue doctrine apply to product liability? No reason why it shouldn’t.
2. Must the P show proximate cause under the rescue doctrine? Yes
3. Did Suzuki proximately cause the injury? They did.

Because they do expect the rescue attempted, you are within the zone of danger.

They did determine that it was a jury question.

Elements to prove rescue status Page 339:

1. The D was negligent to the person rescued and such negligence caused the peril or appearance of peril to the person rescued;

2. The peril or appearance of peril was imminent;

3. A reasonably prudent person would have concluded that such peril or appearance of peril existed; and

4. The rescuer acted with reasonable care in effectuating the rescue.

Doesn’t matter if there’s a statute or common law. Must show that the D proximately caused his injuries.

Firefighter Rule: Cannot be in the scope of your employment, be harmed in the process, get paid for it and then say, rescue doctrine. It would be double dipping.

A volunteer firefighter may be excluded because he is not getting all of the benefits of a professional firefighter.

Aggravation of an original injury:

If you hurt somebody and they’re on crutches, and they slip – that’s an intervening circumstance. Could be concurrent – both are liable.

Intervening v. superseding on exam: read the fact pattern.

Many of the questions you have for exam: superseding

Depending v. independent page 343

3. Public Policy

Kelly v. Gwinell

Host liability. Dissent: Most people don’t want host liability. Legislatively modified.

Social host extends only to third parties. The social host is not jointly and severally liable.

Enright v. Eli Lilly & Co.

Not denying that DES was the cause of the problem. They want a rule. What is it you have to prove in order to recover? As a policy decision, you have to be directly exposed to the drug – she was the granddaughter.

7:04 after break

Where to draw the line seems to be the problem in the public policy oriented cases. You can see different scenarios where they had to make tough judgments.

4. Shifting responsibility page 360

End of proximate cause

Chapter VIII DUTY OF CARE

1. Privity of Contract

If you have a privity of K a duty is owed.

Nonfeasance – You did nothing or didn’t act. Nothing done, no liability.

Misfeasance – I did act but I did so negligently. Conduct, but negligent conduct leading to liability.

Winterbottom v. Wright Page 406

D in charge of maintaining vehicles used by the Postmaster General. Winterbottom was an employee of the USPS. The mail truck was not maintained and P suffered injury. Was not successful in suit because of no privity of contract. The court suggested he be part of the K. Phillips: That’s ludicrous. Isn’t he a foreseeable plaintiff? He’s going to be at risk all the time.

Rule: No privity, no contract.

Hard cases make bad law.

MacPherson v. Buick Motor Co.

Wheel manufacturer sells to Buick and Buick sells to retailer who sells to MacPherson. The P brings a suit against Buick. Phillips: The premise – no privity of K, no recovery. This court (Cardozo) does provide for recovery.

Page 410. We hold that if the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.

This is not a contractual relation.




H.R. Moch Co. v. Rensselaer Water Co.

Cardozo. D provides water to the city and failed to provide water to P’s burning building. Cardozo says no contract, no recovery. Phillips: bad decision. Cardozo reverts back. Is this life and limb or a property interest?
The P is caught in the middle. Can’t sue the city and the only game in town is Rensselaer the D. The P relied upon the city to provide water.

Cardozo identified this case as one of nonfeasance. He doesn’t want endless liability.

Clagett v. Dacy

RULE OF LAW: The duties or obligations inherent in an attorney client relationship are presumed not to flow to a third party. A party must be in direct privity or have the status of a creditor third party beneficiary in order to sue an attorney for malpractice.

Conflict of interest. Attorney represented the seller and the buyer.

Will example: An attorney negligently drew up a will.

Phillips: Don’t adopt universal rules.

2. Failure to Act

Hegal v. Langsam

17 year old coed became associated with drug users and her father brings suit against the university. The court says no recovery because the university is neither a nursery school, a boarding school nor a prison. No one is required to attend. No requirement of the law.

It might be a different case if there is an expectation and an understanding (private school).

Note 1B Farwell v. Keaton, Friends don’t always have a duty to help other friends. Friend may have had a duty since he already put ice on his head (undertaking). The fact that he drove around for two hours worsened his condition. He also shifted the responsibility to P’s grandmother.

Duty to help is not waived by consent of the V. Taking him to a hospital would have been the prudent thing.

The court said that because of the relationship of two fellows out-on-the-town, mutual dependence gave rise to the duty.

Think about the reliance of the relationship for rescues.

L.S. Ayres & Co. v. Hicks

The possession of the instrumentality that aggravates injury. You will be held accountable for the aggravation of an injury – not the complete injury. If X would have occurred if you were timely and X occurred because you were not, then you are only responsible for the harm suffered that was a product of the aggravation.

LEGAL ANALYSIS: There is no general duty to rescue a party unless you have caused the negligent act or you are in some kind of special relationship with the injured party such as they are an invitee and you control the instrument by which they were injured.

J.S. and M.S. v. R.T.H.

64 year old molester of two children ages 12 and 15 which had gone on for about 1 year. The issue is whether or not the wife of molester had a duty to report as required by statute, the child molestation going on under her nose.

Page 429 statute: Duty to report is required of every citizen. The court said that there was a duty of the wife. Many states have struck down interspousal immunity. Particularized foreseeability – she was very aware of what was going on. The court uses the Andrews test – “It does not seem highly extraordinary that a wife’s failure to prevent or warn of her husband’s sexual abuse of his propensity for sexual abuse would result in the occurrence of the continuation of such abuse.” This is a looking backwards approach.

RULE: When a spouse has actual knowledge or special reason to know of the likelihood that his or her spouse is engaging in sexually abusive behavior against a particular person, the spouse has a duty of care to take reasonable steps to prevent or warn of the harm and a breach of that duty constitutes a proximate cause of the resultant sexual abuse of the victim.

Tarasoff v. Regents of University of California

Patient told a doctor that he intended to kill one Tatiana Tarasoff.

RULE: A doctor bears a duty to exercise reasonable care and warn potential victims about known violent tendencies or intentions of a patient.

When you have information that you think might create a problem for other persons putting them at risk and you are in a position to protect them, then we expect you to warn them that there are problems afoot.

What’s the problem socially with imposing an affirmative obligation on psychiatrists? We expect far too much from psychiatrists because they simply do not know when this is going to happen

The evidence code is an exception to the privilege.


Week 10 338-360 403-438
Week 11 435-479
Week 12 480-518
Week 13 586-614
Week 14

WEEK 12

Week 12, Torts I, July 20, 2006

Review from last week:

Tarasoff case – duty owed to a patient when he has information that might protect a third party. A duty to protect foreseeable victims.

3. Pure Economic Loss

State of Louisiana v. Testbank

The rule: No injury of any type, no recovery for economic loss. They didn’t own the shrimp in the water.

You can recover here if you suffer from particular damage comparable to the nuisance cases we’ve talked about. Have to suffer some harm different from everybody else who seeks recovery.

4. (Negligent Infliction of) Emotional Distress

If you can say that if you are seeking mental distress as a result of negligent conduct, do we have a bright line rule?

Daley v. La Croix

A negligent driver traveling 63 feet in the air, striking a utility pole. Unfortunately some distance away Estelle and Timothy Daley suffer harm because of an explosion in the kitchen. They are not really in the line of fire but what happened here was directly a result of the D’s conduct.

The D had no knowledge of their existence. The court talks about a physical injury to give some legitimacy to the claim. It looks like the bright line of demarcation is you have to have some physical injury in order for you to recover for your claim of emotional distress.

“Remorseless logic”

There was no impact. The wisdom of the impact rules comes into question.

RULE OF LAW: When a definite and objective physical injury is produced as a result of emotional distress proximately caused by defendant's negligent conduct, the plaintiff in a properly pleaded and proved action may recover in damages for such physical consequences to himself notwithstanding the absence of any physical impact upon plaintiff at the time of the mental shock.

Thing v. La Chusa

The mother arrived at an accident scene in which her son was involved. She was emotionally disturbed and brings the claim.

The Dillon Test: (Three prongs)

1. Whether the P was near the scene of an accident. Where were you when this happened?
2. Whether the shock resulted in direct emotional impact? Were you there at the time of the accident? Did you see it? Did you appreciate it? Or did you hear about it from someone else?
3. Whether the P and the V were closely related.

Was the V threatened with the same type of harm? You have to be in the zone of danger.

The Thing Test: (Three requirements)

1. P is closely related to the V;
2. P is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and
3. As a result suffers serious emotional distress – a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.

The difference: You must be there instead of near. Also must suffer serious emotional distress. The Thing test uses requirements as opposed to questions in the Dillon test. The Thing test is more refined and more difficult to prove.

1. Impact rule no longer with us

2. Zone of Danger. Where you threatened with the same type of harm.

3. Dillon Test. Too broad? Too sweeping?

4. Thing Test. About as definitive as we are going to get.

That’s why it’s in the duty area. We want certainty, we want a rule.

5. Unborn Children

Endresz v. Freiburg

The stillborn birth of two twins at seven months pregnant as the result of negligence of the D. Issue: Whether or not a wrongful death claim could be advanced successfully because of their deaths.

The court looks at the statute and the term decedent and concludes that you have to be born before you can die. When do you become a person? This court said you must be born alive. The parents would be getting a windfall – recovery for them and on behalf of their children.

Bright Line: You must be born alive. The law will not acknowledge your existence.

A D who does great harm to a pregnant woman causing a stillbirth is not responsible. A D who injures just enough to have complications but yet be born alive, then will have a juridical existence.

DISSENT: (Burke, J.) It is illogical and unreasonable to distinguish between injuries wrongfully inflicted upon a viable fetus which result in death just prior to separation. Every wrong must have a remedy; the wrong done to the unborn twins is without redress.

LEGAL ANALYSIS: Under common law, there is no duty to a fetus. However, under modern law there are duties owed to an unborn and viable (capable of surviving outside the womb without extraordinary medical care) fetus. The dissent has the better view; viability should be the standard.

Note 4, page 468: Wrong Rh-type transfusion at 13 years of age produced injury to her child born seven years later. The lawyers called this “A contingent perspective duty to a child not yet born.” The claim was permitted to go forward.

Procanik by Procanik v. Cillo

The idea of existence v. non-existence

The child brings a wrongful life claim. The parents could not bring a claim because the SOL had already run.

What are the damages? Pain and suffering and diminished childhood. The doctor’s negligence in misdiagnosing the child deprived the mother of the choice of aborting the child. He comes to term and is born in an impaired condition.

1. Normal child

2. Impaired

3. No existence

The difference between injured and nonexistence had the abortion taken place.

What’s wrong with looking at this as a measure of damages?

The court rejected recovery for pain and suffering and diminished childhood saying you’re lucky you are here because of the prospect of nonexistence is so bleak and incomprehensive. Phillips: Is that universally accepted?

The court does allow future medical damages (wrongful birth).

WRONGFUL BIRTH — A cause of action brought by the parents of a child born with severe birth defects against a doctor for negligent treatment or advice.

WRONGFUL LIFE — A medical malpractice action brought by the parents of a child born with severe birth defects against a doctor, claiming that but for the doctor's negligent treatment or advice they would not have given birth to the child.
WRONGFUL PREGNANCY – A cause of action for an unwanted pregnancy.

Pharmacist hypo: Gives vitamins instead of birth control pills. Is he on the hook? What if there are alternatives, i.e. abortion? Mitigate?

Bastard stigmatism hypo: In modern times, not so much an issue.

CHAPTER IX

OWNERS AND OCCUPIERS OF LAND

When you own property, you can do things to harm others. What are the duties owed to the people that come on the owner occupied property?

Three categories of persons:

1. Invitee:
(a) Business visitor: A person who comes on the property with the prospect of engaging in some financial transaction which benefits the owner-occupier. If the owner-occupier is going to benefit, then he’s got to do certain things to make sure you are not at risk when you come on the property.

(b) Public invitee: One who goes onto the property which is made open to the public and you must be there for the purpose for which it is open to the general public.

2. Licensee: Somebody on the premises with the consent of the owner-occupier. The duty owed is limited but must warn of danger. They take the premises as they find it


3. Trespasser: Did not get necessary consent. The duty owed to a known trespasser is like that of a licensee (must warn). Unknown trespassers – no real duty but cannot engage in willful, wanton misconduct.

Snowmobilers Hypo: Tired of snowmobilers on your property so from tree to tree you install barbed wire. One of the snowmobilers is beheaded and they bring a suit.

Mailbox bowling Ex.: Can’t set traps.

1. Outside the Premises
Taylor v. Olsen

A decayed tree from D’s land fell on the road and P’s car crashed into it.

In order to determine if it was a decaying tree, he would have needed to bore into the tree trunk and that would be more than we would expect.
No duty in a rural setting and “nature at work” however a modern view is that there is an agreement that the landowner is liable for negligence if he knows that the tree is defective and fails to take reasonable precautions.

Note 7 page 482: Some courts allow you to cut branches of trees intruding on your property.

Salevan v. Wilmington Park, Inc.

In a season, 170 balls leave the ballpark. While P was walking on the sidewalk he was struck with a baseball.

Rule: Landowners whose property is adjacent to public sidewalks or highways owe a duty of care to take reasonable precautions for the protection of the traveling public.

Utility pole example: Not a trap, in full view, on private property. Can’t set a trap on your property.

Telephone booth example: The telephone company exercised poor judgment in placing booth so close to road.

Most courts agree that a landowner owes a duty to a traveler who accidentally falls into excavations on land immediately adjoining the highway.

2. On the Premises

(A) TRESPASSERS

Sheehan v. St. Paul & Duluth Ry. Co.

What duty is owed to somebody who comes on to a railroad track where they are not entitled to be?

Rule: A landowner owes a duty of care to a trespasser only after he or she has discovered the presence of the trespasser.

Some exceptions are dangerous conditions obvious to an owner and frequent trespassers. A D is required to exercise reasonable care in his activities for their protection.

(B) LICENSEES

Barmore v. Elmore

Awareness of a mental condition of someone in the house. P comes over to D’s house to pay lodge dues and D’s 47 year old son attacks P with a knife claiming that he had been talking about him.

How do you translate control of other’s conduct in the context of owner-occupied liability? It has nothing to do with making sure someone doesn’t slip on something or be hurt, it’s control of a third party.
How was he supposed to conduct a reasonable inspection? D’s duty to P as a licensee was only to warn him of any hidden dangers on the premises of which D was aware. It cannot be said that he breached this duty as he did not know that his son would be prone to attacking anyone that night.

Door to door salesman: A licensee but it can be revoked.

Inviting boss over for raise: It’s for my economic advantage.




(C) INVITEES (Highest burden to protect guests)

W. Warn
I. Inspect
M. Make safe
P. Protect

Campbell v. Weathers

P, a regular customer stops at a cigar stand but doesn’t buy anything. He uses a public toilet and is injured by falling into a trap door. Even though he didn’t buy anything that day he was a regular customer and considered an invitee.

Whelan v. Van Natta

P bought cigarettes but was told by D to get a box in the back. P was injured when he fell down a stairwell (D warned him of it but the light burnt out). P’s status changed from invitee to licensee when he left the area of invitation (If he didn’t have permission to go in the back room he would have been a trespasser).

Phillips takes some issue with this because he may still be considered an invitee if he plans on doing business there in the future.

R2 page 496

Note on page 497: Bank robber example. No duty to comply.

(D) PERSONS OUTSIDE THE ESTABLISHED CATEGORIES

R 2nd “Artificial Conditions Highly Dangerous to Trespassing Children (usu. under 14 years of age)

Children do not appreciate the nature of the risks to which they are exposed.

Most courts view public employees as deserving invitee status.

(E) REJECTION OF MERGING CATEGORIES




Rowland v. Christian

Minority rule: The categories are too confusing. What’s wrong with RPOP? This court would rather consider factors (page 504).

RULE OF LAW: Ordinary principles of negligence may be used to determine the liability of a landowner to a person coming onto the property

3. Lessor and Lessee

Borders v. Roseberry

FACTS: Borders (P) was visiting a friend. Roseberry (D) was the landlord of P's friend. P slipped and fell on the front steps of the premises, and was injured because water had dripped from the roof onto the steps and had frozen. The trial court concluded that as a matter of law, a landlord of a single family house is under no obligation or duty to a social guest of his tenant to repair or remedy a known condition. The verdict was given to D and P appealed.

Phillips rule: No liability unless you can fall into one of the six exceptions:

Generally, there is no liability upon the landlord either to the tenant or to others entering upon the land for defective conditions existing at the time of the lease. There are six specific exceptions listed in the case. Landlords are liable when the following conditions exist at the time of a lease:

(1) Undisclosed dangerous conditions known to the lessor and unknown to lessee;
(2) Conditions dangerous to persons outside of the premises;
(3) Defects in the premises leased for admission of the public;
(4) Parts of the land retained in the lessor's control which the lessee is entitled to use;
(5) Where the lessor contracts to repair;
(6) Negligence by the lessor in making repairs.

Landlords have a duty to make the premises livable.

Pagelsdorf v. Safeco Ins. Co. of America

FACTS: Pagelsdorf (P) was assisting Mrs. Blattner move some furniture. P leaned against the railing of the second floor front balcony, and it collapsed on him. The railing had dry rot and should have been replaced. The trial court put the case to the jury in terms of P being a licensee of Mahnke (D) the landlord and found by special verdict that D had no knowledge of the defective condition of the railing. Judgment was entered on the verdict and the complaint dismissed. P appealed; D should have been held to a higher standard of care.

HOLDING AND DECISION: (Callow, J.) Is a landlord under a general duty of care to both his tenants and their invitees? Yes. The common law cloak of immunity enjoyed by landlords towards their tenants and visitors must be abolished. A landlord must exercise reasonable ordinary care toward both his tenants and their guests in the maintenance of the premises. This new concept is premised in recognition of a warranty of habitability implied in an apartment lease. Reversed and remanded.

LEGAL ANALYSIS: The modern trend is to hold a landowner to a regular standard of care.

Kline v. 1500 Mass. Ave. Apt. Corp.

Parties at risk due to a criminal element.

FACTS: Kline (P) was a lessee of Corp. (D). D had discontinued the posting of a doorman and had not installed any electronic security devices in the building. One evening at 10:15 P.M. P was criminally assaulted and robbed while she was in the common hallway of a large combination office-apartment building. The building had been the scene of several similar and an increasing number of crimes such as had happened to P. P filed a personal injury action against D. The district court dismissed the complaint and P appealed.

HOLDING AND DECISION: (Wilkey, C.J.) Is a landlord under a duty to protect tenants from foreseeable criminal acts committed by third parties? Yes. A landlord is under a duty to protect tenants from foreseeable criminal acts committed by third parties. Certain duties have always been assigned to the landlord because of his control of common hallways, lobbies, stairwells, etc., used by all tenants in multiple dwelling buildings. As between a tenant and a landlord the only one in a position to take the necessary acts is the landlord. We do not hold that the landlord is by any means an insurer of the safety of his tenants. He has a duty to take those measures which can be reasonably expected to mitigate the risk of robbery and assault. Reversed.

LEGAL ANALYSIS: This is the minority position.

Go back to 1959 and impose the same measures you had then. They are not to take the place of the police however

Lessor hypo: If there’s professional building that I own, and I lease to the State of Michigan where outpatients come to be treated. I also lease to doctors and lawyers. One day one of the outpatients terrorizes and knifes a legal secretary. Should I be responsible for that? What are the issues that you would want to address? The State of MI leases from me, they see outpatients as they come in. I’m saying you’re suing me because I didn’t protect my invitee (an employee of the law firm)?

There was a problem. Some of these people looked like they were dangerous so I said to my tenants, I want you to be careful. See if you can ride the elevators in twos. Well, she didn’t. Do you think I did enough? What should I do? Have a guard ride up and down the elevator? Or cameras? Or some strategically placed personnel?

Here’s my dilemma – I lease to the state of MI. They are supposed to properly determine who is and who is not a risk to themselves and others. The idea is basically that I’m going to be at risk because they didn’t determine that this person was indeed dangerous.

If you make me liable then I am no longer going to lease to psychiatrists. Maybe not even to lawyers who talk to people who are dangerous.

WEEK 13

Week 13, Torts I, July 27, 2006, Prof. Sutton

Contributory negligence on final

In terms of accidents we focus on D’s conduct.

For exam:

DEFENSES

(A) Contributory Negligence

Butterfield v. Forrester

BUTTERFIELD V. FORRESTER
King's Bench, 11 East 60 (1809).

NATURE OF THE CASE: This was an action on the case to recover damages for personal injury for obstructing a highway.

FACTS: Forrester (D) put up a pole across part of a road next to his house for the purpose of making repairs to the house. Butterfield (P) was riding very fast at about 8 o'clock at twilight and did not see the pole. He hit it and was injured when he fell off his horse. A witness proved that visibility was 100 yards at the time of the accident and P might have observed and avoided it if he had not been riding so violently. There was no evidence that P was intoxicated at the time. The jury was directed under contributory negligence. The verdict was given to D. P appealed.

ISSUE: If a plaintiff's conduct falls below the standard established by law for the protection of self against unreasonable risk of harm, can that plaintiff recover for injuries caused by a resulting accident?

RULE OF LAW: A plaintiff will not be able to recover for his injuries if he is contributorily negligent.

HOLDING AND DECISION: (Per Curiam) If a plaintiff's conduct falls below the standard established by law for the protection of self against unreasonable risk of harm, can that plaintiff recover for injuries caused by a resulting accident? No. A plaintiff will not be able to recover for his injuries if he is contributorily negligent. If P had used ordinary care he would have seen the obstruction. The accident appeared to happen entirely from his own fault. Rule refused.

(Lord Ellenborough C.J.) A man is under a duty to use common and ordinary caution for his own good. Even if a party is observed in the wrong say by riding on the wrong side of the road, a man or ordinary sense does not ride against them after seeing them in the wrong. One person being in fault will not dispense with another's using ordinary care for himself.

LEGAL ANALYSIS: Contributory negligence under common law was extraordinarily harsh. It was a complete defense to negligence.



If P causes his or her own injuries, they would have to take responsibility for that.

If P were contributory negligence he was barred from recovery. It was a complete defense at common law.

Affirmative defenses are for D’s to put P’s on notice of how they are going to defend.

Contributory Negligence is not a defense to an intentional tort. It is also not a defense to strict liability (products liability, abnormally dangerous activity, owning a wild animal, etc.) P does not have to prove negligence on the part of D. All he has to prove is that there was a status or relationship situation that gives rise to strict liability.

Certain situations – FELA Act . Generally contributory negligence has been barred

Davies v. Mann

RULE OF LAW: If a defendant has the last chance to avoid injuring a plaintiff, the plaintiff's contributory negligence will not bar the plaintiff's recovery.

HOLDING AND DECISION: (Lord Abinger, C.B.) If the negligence of another can be avoided by due care, is it negligent not to exercise that care? Yes. If a defendant has the last chance to avoid injuring a plaintiff, the plaintiff's contributory negligence will not bar the plaintiff's recovery. D was still bound to go along the road at such a pace as would be likely to prevent mischief. D could have avoided injuring the animal. This is true even if the ass was wrongfully there. Affirmed.

LEGAL ANALYSIS: The last clear chance doctrine is just one of the many judge made obstacles to avoid the harsh results of the contributory negligence doctrine.

Who has the last opportunity (in time) to avoid the accident? Last clear chance doctrine softens the contributory negligence rule. The D was negligent last and had a chance to avoid the accident.

(B) Comparative Negligence

McIntyre v. Balentine

Sup Ct of Tn., 833 S.W.2d 52 (1992).

NATURE OF THE CASE: This is an appeal from an unsuccessful claim for personal injury.

FACTS: McIntyre (P) was involved in an auto accident with Balentine (D) in the early morning darkness. Both men were intoxicated. P's blood alcohol level was .17. Testimony suggested that D was traveling in excess of the speed limit. P sued for personal injury. Both parties were found to be equally negligent. The jury was instructed on contributory negligence. Both parties were found to be equally at fault. Therefore the jury ruled in favor of D. P appealed.

ISSUE: Is contributory negligence a valid defense?

RULE OF LAW: Contributory negligence is not a defense.

HOLDING AND DECISION: (Drowota, J.) Is contributory negligence a valid defense? No. Contributory negligence is not a defense. P and D were equally at fault. The jury made a gratuitous apportionment of fault because they were without the benefit of proper instructions. The doctrine contributory has been abolished. A system of comparative fault is better. We reject the pure form of comparative fault and adopt the modified version. We do not agree that a party should necessarily be able to recover in tort even though they may be 80,90, or 95 percent at fault. Reversed and remanded.

LEGAL ANALYSIS: Contributory negligence as a defense is just about dead in almost all states.

If you have no legal argument, tell the judge that it’s not fair to have a complete bar.

Definitions:

I. TYPE


Contributory Negligence (common law): The conduct on the part of the P which falls below the standard of conduct to which he should conform for his own protection, which is a legally contributing cause cooperating with D’s conduct to bring about P’s harm. P had a duty, he breached the duty and proximately caused his own damages. A complete bar. It has to be a contributing cause.

Comparative Negligence (majority rule): Same definition as above but add – Which results in a partial recovery (reduced by his or her own percentage of negligence). P is going to recover something. More fair.

Under comparative negligence you spread the fault among actors. You reduce the D’s negligence by the percentage of P’s negligence.

Limited Comparative Negligence/Greater than rule (50% rule): If P’s negligence is greater than D’s, he is barred from recovery.

*Final Exam: It may look like P is contributory negligent (may be drunk but driving ok) but his negligence has to contribute to his damages. His actions may not be a proximate cause of his own injuries.

Also, if P is negligent but D has an intentional tort, contributory negligence is not a bar (date rape drug example).

Strict liability (wild animal example): You are responsible for damages so long as the damage is consistent with the wild animal. If you pet my alligator, you are contributory negligent as you have a duty not to pet an alligator but I’m going to be strictly liable for possessing that animal.

Products liability: If I’m driving a car with a defective design and it causes injury, and I was driving negligently, my negligence would not be a bar.

Pinto example: …

In a pure comparative negligence state, an alligator taking of someone’s hand may result in a 60%/40% negligent action.

Snake example: Massagua Rattler, friend stuck hand in and was bit. Under comparative negligence, it would have reduced D’s liability to P due to P’s own comparative negligence.

II. AGGREGATION

Statutory guidelines on how P’s can recover.

Non aggregation statute means that you look at each P individually. If it’s a 50% less than rule, P cannot recover against anybody.

For Final Exam: Look to see if it’s aggregation or non aggregation.

If one D is uncollectible, four separate approaches:

1. Several liability
2. Joint and Several liability
3. Reallocation
4. MI Tort Reform Act
(a) If P is not negligent, then joint and several liability.
(b) If P is negligent, then recovery from D is limited plus percentage of fault.

For Final Exam: Contributory Negligence is Common law – Comparative Negligence is the modern (majority) law.

(C) Assumption of the Risk (VERY POPULAR ON FINAL EXAMS)

At common law was a complete defense.

(1) Express (Written or oral is still a complete defense)

Modern Trend: An implied assumption of the risk has been assimilated into comparative negligence.






Return to Rattle Snake Example:

Under express or implied assumption of the risk:

1. You have to know what the risk is;
2. You have to know the seriousness or the magnitude of the risk; and
3. You have to voluntarily accept the risk

Seigneur v. National Fitness Institute, Inc.

RULE OF LAW: A contract of adhesion does not per se require a finding of grossly disparate bargaining power. To possess a decisive bargaining advantage over a customer, the service offered must usually be deemed essential in nature. The ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.

When she went in to sign this document, she knew she could potentially hurt herself.

This is an express assumption of the risk. She signed a document that said I know what can happen, I know that I’m at risk and I’m going to sign it anyway. This is an exculpatory provision.

You could argue public policy and K of adhesion.

Arguing K of adhesion isn’t enough. She had other choices. She could have gone to other places or worked out at home.

Public policy for hospitals not to have K’s of adhesion. If you are in need of an emergency room, you don’t have time to go looking around for other hospitals.

Daycare centers also cannot have people sign exculpatory clauses.

Express just for negligence.

Gross negligence is a higher standard. May still be able to sue for gross negligence or intentional conduct.

A parent can expressly assume the risk by signing for a child. If I take my child into Disneyworld, I am assuming the risk for my child.

(2) Implied Assumption of the Risk

Rush v. Commercial Realty Co.
Sup. Ct of N.J., 7 N.J.Misc. 337, 145 A. 476 (1929)

Outhouse case. Voluntary assumption of the risk.

NATURE OF THE CASE: This was an action to recover damages for personal injury.

FACTS: Rush (P) was a tenant of Commercial Realty Co. (D). P went to use the outhouse that D provided for its tenants and fell through a trap door in the floor and descended about nine feet into the accumulation at the bottom and had to be extricated by the sue of a ladder. P sued D. P testified that the floor was in bad condition. D appealed the denial of its motions for a non-suit and a directed verdict.

RULE OF LAW: Assumption of the risk does not apply to a situation where there are no reasonable alternatives.

HOLDING AND DECISION: (Per Curiam) Does assumption of the risk apply to a situation where there are no reasonable alternatives? No. Assumption of the risk does not apply to a situation where there are no reasonable alternatives. Without reasonable alternatives, a plaintiff's choice to assume the risk cannot be voluntary. P had no choice, when impelled by the calls of nature, but to use the facilities placed at her disposal by the landlord. Whether it was contributory negligence to step on that floor must be left to the jury. The judgment is affirmed.

LEGAL ANALYSIS: If no reasonable alternative exists there is no assumption of the risk. If there is no assumption of the risk presented by a fact patter do not forget to make the argument for contributory negligence.

Hypo*: Partying out in the middle of nowhere, you get in the car with your friend who is drunk. He hits a tree and you are injured. D argues assumption of the risk. He looses. You had no other choice.

Hypo*: Ask secretary, who is a known bad driver to drive you to the hospital. She crashes and we all get hurt. Assumption of the risk? No, it’s reasonable for me to get to the hospital to see my child. That is not a voluntary assumption of the risk. You didn’t have another choice.

Blackburn v. Dorta (Tricky Case! – Know it!)

Sup. Ct. Fla., 348 So.2d 287 (1977).

NATURE OF THE CASE: This case was an appeal from a negligence action.

FACTS: There were several appeals in Florida that had reached different decisions on the issue of whether the doctrine of assumption of the risk is still viable as an absolute bar to recovery subsequent to the adoption of the rule of comparative negligence.

ISSUE: Does implied assumption of risk have a distinct purpose apart from contributory negligence?

RULE OF LAW: The defense of implied assumption of the risk is merged into the defense of contributory negligence.

HOLDING AND DECISION: (Sundberg, J.) Does implied assumption of risk have a distinct purpose apart from contributory negligence? No. The defense of implied assumption of the risk is merged into the defense of contributory negligence. There are various categories of assumption of the risk: express and implied, primary and secondary, and strict and qualified. It is the secondary implied assumption of the risk has applied to tort law. It is this category of assumption of the risk which had caused persistent confusion in the law of torts because of the lack of analytic difference between it and contributory negligence. That version of assumption of the risk is indistinguishable from contributory negligence. There is no historical significance to the doctrine of secondary implied assumption of the risk. The implied assumption of the risk defense is merged into the defense of contributory negligence and the principles of comparative negligence shall apply. It is so ordered..

LEGAL ANALYSIS: Many courts do not like the effect of assumption of the risk.

Is the assumption of the risk viable now that you have comparative negligence? Implied assumption of the risk has been assimilated into comparative negligence. You do not need to argue both.

For Final Exam: Raise both defenses anyway.

KNOW BOTH DEFENSES

Primary Implied Assumption of the Risk: Assumption that is nothing more than a defense that says D doesn’t have a duty. You are assuming the risk of something I do not have a duty to protect you from. Sutton: That makes no sense.

Example: Baseball Park has no duty to protect you from a foul ball. That risk is so well known, there is no duty to breach because you know about it.

Secondary Implied Assumption of the Risk (There are 2):

Reasonable: House is on fire and your child is inside the house. You know you are going to get burned but it is reasonable to save child. Courts say that a reasonable person would assume that risk. That is a secondary reasonable assumption of the risk. It is unfair to punish P who was acting reasonably by allowing the D to use that as a defense.

Unreasonable: At a party, want to go to another party and jump, I in the car with a drunk person. The courts have said that is comparative negligence. In most jurisdictions, the modern trend is implied assumption of the risk is not a complete defense anymore. It becomes part of the comparative negligence. If P is 20% comparatively negligent, they may find P is assuming 20% of the risk.

Seat belt law: Not wearing a seat belt causes my injuries, states may impose a percentage of negligence.

WEEK 14

Week 14, Torts I, August 3, 2006

DEFENSES

Under contributory negligence, the P gets nothing if at fault. It’s too harsh.

Last clear chance doctrine: Most jurisdictions have adopted some version of comparative negligence. Last clear chance – has been eliminated

Aggregation helps P position himself where his negligence is less.

ASSUMPTION OF THE RISK (aware of the risk)

Two main issues:

1. Make sure the risk is within the terms of the agreement. Sometimes the nature of the harm is outside of that agreement.

2. Whether or not it violates public policy.

Express: Look to the nature and posture of the parties and necessity of whether or not there was a necessity involved.

Implied: Has to be an actual subjective appreciation of the risk and it must be voluntary.


REVIEW

For defense of others:

1. Step in the shoes of the other person or
2. Reasonable force.

In privileged conduct, there is nothing to transfer.

Can recover property if you do not breach the peace.

Aggravated negligence:

Guest passenger statute. Mean scrutiny test

As a matter of law leaves precious little room.

Two pronged test:

Class that is protected

Res Ipsa: more probable than not w/ test

CAUSATION

Cause in Fact and Proximate Cause – two different inquiries

Factually connect conduct.

Palsgraf: class of persons. The box didn’t represent a threat to anybody.

Last class of risk: the manner in which it occurred

Special thanks to: www.gotaccident.com