Torts

What is the question of a duty

Did I owe the plaintiff a duty of care, and if so, what duty did I owe?

What establishes a duty?

scope, nature, and breach

What is the scope of a duty?

to whom if anyone does the defendant owe a duty

What is the nature of a duty?

what is the standard of care to which I’ll be held

the default is negligence

relies on scope to determine

What is breach of duty?

how do we establish breach?

custom can help to prove failure to exercise reasonable care

Causation

but-for (factual - was harm caused?)

proximate (legal - was your action and the victims harm close enough for it to be the cause?)

What are the kinds of damages?

• compensatory

  • pecuniary

  • non-pecuniary

• punitive

defenses

• traditional contributory negligence

  • contributory negligence

  • assumption of risk

• comparative fault

types of liability

• negligence

• vicarious

• absolute

• strict

Compensatory Damages under Common Law

no recovery available when the injured party died

What are the theories of compensatory damages?

Survival and Wrongful Death

compensatory damages under survival

• theory: action as though victim had lived (fiction) - goes through victim’s estate

• pecuniary damages: medical expenses before death and future lost wages projected out to support survivors

• non-pecuniary damages: pain and suffering before death

compensatory damages under wrongful death

• theory: injuries suffered by dependents due to death (not pretending that the victim lived)

• pecuniary damages: loss of future support (what percentage of your income would have gone towards your dependents or spouse)

• non-pecuniary damages: loss of companionship and affection (based on quality of relationship)

what kind of compensatory damages statutes do most states have?

both survival and wrongful death

What determines if an action was done in the scope of employment (making the employee vicariously liable)?

the Birkener Test

Birkener Test

1. employee’s conduct is of the general type that employee is hired to perform (foreseeability to employer)

2. employee’s conduct substantially within hours and spatial boundaries of employment (foreseeability to employer)

3. employee’s conduct motivated at least in part by serving employer’s interests (subjective motivation of employee)

employees vs. independent contractors

general rule: employers are not generally liable for the acts of an independent contractor (the employees duty is delegable)

the key difference is the level of control

How does California define an independent contractor?

1. person independent of employer in performance of work

2. person does work outside employer’s line of business

3. person does work part of an independent occupation/business

what are delegable and non-delegable duties?

delegable - employer is not liable

non-delegable - employer is held liable under specific circumstances

circumstances that trigger a non-delegable duty

• duty to the public at large (public franchise or public place)

• risky activities

  • abnormally dangerous that cannot be reduced through exercise of reasonable care

  • peculiar risk that can be mitigated by reasonable care but cannot be appreciated by members of the community

  • activities done with dangerous instrumentalities

• legislatively or administratively prescribed duty

what two tests can establish apparent ostensible agency

three part novak test

tort approach

apparent ostensible agency under the three-part Novak test

1. representation by a purported principle - employer makes it appear that the independent contractor is an employee

2. justifiable reliance - you believed you could rely on representation by 3rd party (in emergencies you do not make a calculated choice)

3. detrimental reliance - change in position by third party in reliance on representation (victim suffers harm) 

it is on the victim to understand the provider they choose;

very narrow for what can predicate a change in behavior;

absent representation, you don’t have a way to establish;

victim must have a choice to establish

apparent ostensible agency under the tort approach

1. reasonable belief by victim - that the purported principal or their employees are providing the services

2. justifiable reliance - on the representation in accepting services

3. detrimental reliance - victim suffers harm due to purported agent’s negligence

the hospital must dispel the belief, and reasonable belief is enough if it changes your conduct

more patient friendly but not used by many jurisdictions

Torts under English law

trespass and case

What is trespass

• some form of harm caused by the direct application of force

• standard of care: strict liability

• defense: inevitable accident

What is case

• anything that is indirect or delayed in time or space

• catch-all for victims of inadvertence

• standard of care: negligence

• defense: exercise of reasonable care

What were the limitations to trespass and case?

horizontal inequity - people affected by the same circumstances are treated differently

Justice Shaw - Unifying the Standard of Care

• resolved horizontal inequity created by trespass and case

• substantive: necessary acts trigger a duty of ordinary care

• procedure: the plaintiff bears the burden of proof for necessary acts, while the defendant bears the burden of proof for unnecessary acts

• levels everything down to a negligence standard

• burden of proof rests on plaintiff

How is reasonable care determined?

cost benefit analysis or community norms

Economic Analysis of Negligence: Judge Hand’s Formula

• if the burden of taking precautions is less than the cost of possible injuries multiplied by the probability of accident occurring, the party is negligent

  • the burden must be less than the marginal cost - the difference when the product with precautions is subtracted from the product without precautions

• a party is negligent if B < P x L

• concerned with deterrence

Criticism of Hand’s Formula

• criticized because it is very difficult to value certain factors and this isn’t how people think or behave - we cannot think of every single risk

  • availability heuristic causes people to miss certain factors

  • bounded willpower means we cannot always do what we think is best for ourselves

  • bounded self-interest

Degrees of negligence

• duty of utmost care

• negligence

• grossly negligent, unwilful, wanton

duty of utmost care

• typically judge-made

• fiduciary relationships: high levels of dependency and trust rooted in contract (common carrier-passenger, innkeeper-guest)

• compensation: become partial insurers because they are better able to distribute costs

  • it is sometimes cheaper for carriers to just meet the reasonable standard of care and pay for the damages, they pass off a percentage of those damages through dependents (passengers’ tickets), making them partial insurers

negligence

reasonable steps that an average, reasonable member of society would take

grossly negligent, unwilful, wanton

• statutorily recognized: Good Samaritan Laws, Recreational Landowner Statutes, etc.

• compensation: do not have to unrealistically internalize accident costs

• moral fairness: you get what you pay for, the provider of a free resource cannot be expected to pay accident losses

types of notice

• actual

• constructive

actual notice

they had actual knowledge of the problem

constructive notice

they should have known

Reasonable Person Test

• objective test of conduct

• hard to police the authenticity of the state of mind, we need a uniform system

Modifications to the reasonable person standard

• physical disability

• children

• superior skills or intelligence

Standards for Youth

• Jurisdictional Approaches

  • Categorical Presumptions

  • Reasonable Child

  • Child Engaged in Adult Activity

• The Restatement’s Approach

Standards for Youth: Categorical Presumptions

• 0-7: presumptively incapable of negligence - irrebuttable presumption

• 7-14: presumptively incapable of negligence - rebuttable presumption (experienced or intellectually gifted child)

• 14-21: presumptively capable of negligence - rebuttable presumption (lack of perspicacity or experience)

Standards for Youth: Reasonable Child

how would a reasonable child of that age, intelligence, and experience behave

Standards for Youth: Child Engaged in Adult Activity

have you chosen to subject yourself to an adult standard of care by engaging in adult activity?

Standards for Youth: the restatement’s approach

• requires children to conform to the standard of a “reasonably careful person of the same age, intelligence, and experience” except that

  • a child under the age of 5 is incapable of negligence

  • a child engaging in a dangerous adult activity is held to a general standard of reasonable care. no accommodation for youth is made in these circumstances

How do the judge and jury work together in tort cases?

• matters of law and fact

  • judges instruct the jury on the law, but the jury must determine the facts and then apply the law to them

  • only if a verdict is wrong as a matter of law can a judge reject it; otherwise, they can accept it, or order a new trial

• tort law relies on flexible standards and juries therefore enjoy substantial discretion to apply the standards

• restatement:

  • when reasonable minds can differ as to the facts relating to the actor’s conduct or as to whether the conduct lacks reasonable care, it is the function of the jury to make the determination

custom for professionals

establishes the nature of duty (obligation of care) because they are more knowledgeable to establish standards in their fields than juries

custom for nonprofessionals

not decisive, just helps or hurts the case

can be used by the plaintiff to prove that a defendant’s conduct fell short or by the defendant to show they exercised reasonable care

what two things define custom?

scope and frequency

scope for custom

is the custom one that is used in the same calling or business as the defendant’s?

frequency for custom

how common is the practice? substantial minority rule - does not have to be used in the majority of cases, just a substantial minority

policy implications of custom

reliance on it hinders innovation by incentivizing parties to follow custom practices

Negligence Per Se

in Martin a statute designed to promote safety could be used to define the standard of reasonable care

• evidence of non-compliance with the statute us negligence per se and a jury is bound to find a breach of duty unless the failure to comply is excused

  • only excuse: unavoidable accident

• restatement says that an actor is negligent if they violate a statute designed to protect against the kind of accident they cause

does not create the duty - just helps to define reasonable care

what are the standards for negligence per se under the restatement?

• the statute is relevant if the accident involves the class of victim intended to be protected and:

  • the type of interest (bodily integrity)

  • the type of harm (traumatic impact)

  • and the type of hazard the legislature envisioned (highway collisions)

What ways have the courts found to evade the strict requirements set in the doctrine in Martin

Tedla approach - instead of mandating additional safeguards, the statute codifies “rules of the road” to manage pedestrians’ and drivers’ expectations of one another

plaintiffs could deviate from requirements when strict observance may defeat the purpose

the expansion of excuse under negligence per se

• reasonable considering actor’s childhood disability or incapacitation

• reasonable in attempting to comply

• neither knows nor should know of the factual circumstances that render the statute applicable

• violation is due to confusing requirements presented

• compliance poses a greater risk of physical harm than noncompliance

What are the types of proof of negligence?

documentary or real evidence (camera footage)

direct evidence (witness testimony)

circumstantial evidence (tells you the circumstances but not exactly what happened)

Jurisdictional Approaches to Proof of Negligence

Requirement of Notice

Business practice/mode of operation rule

what are the kinds of notice?

actual notice - they had actual knowledge of the problem

constructive notice - they should have known

“Business Practice”/”mode of operation” rule

• there are certain risks you should be able to anticipate using a self-service mode of operation

• there is no notice requirement

• foreseeable and inherent in the nature of the operation

• policy goals:

  • deterrence: helps businesses anticipate the general risk and prevent danger

  • compensation: helps victims get compensated

  • moral fairness: risks foreseeable and ongoing to establishments who choose self service

Res Ipsa Loquitur

• the mere fact that the accident occurred is proof of negligence

• may stimulate the defendant to explain what he knows - the plaintiff cannot be nonsuited by him staying silent but may still lose

• the plaintiff has very little access to evidence

• in some jurisdictions you can enter both a count of negligence with evidence introduced and a count of negligence under res ipsa

What is the test for Res Ipsa Loquitur?

• two-part test

  • accidents like this one typically happen due to negligence

  • the instrumentality is in the sole custody of the defendant

  • third element used by some jurisdictions: the plaintiff did not have access to the instrumentality

policy considerations when res ipsa does not generate evidence

• deterrence - underdetterrence without res ipsa and overdetterrence with res ipsa

• compensation - under compensation without res ipsa and overcompensation with res ipsa

• moral fairness - not morally fair either way - without res ipsa its unfair for the victims and with res ipsa its unfair for the defendants

• you get it right more than you get it wrong

What are the three jurisdictional approaches to res ipsa loquitur?

inference

weak presumption

presumption

Jurisdictional Differences under res ipsa: inference

• neither the burden of production nor persuasion shift

• advantage to plaintiff - they get to the jury on their issue, but the jury still gets to determine if there’s negligence

• plaintiff must show more probably than not, there was negligence

jurisdictional differences under res ipsa: weak presumption

• burden of production shifts to the defendant to produce evidence but burden of persuasion does not

• plaintiff still must show more probably than not, there was negligence

jurisdictional differences under res ipsa: presumption

• both burden of production and persuasion shift

• if the defendant does not speak on the issue and show more probably than not  they exercised reasonable care, they lose

what are the prevailing res ipsa methods?

inference and weak presumption

res ipsa loquitur and medical malpractice

• Ybarra - plaintiff can show exclusive control because the medical team is held responsible as a group

• “conspiracy of silence” stops plaintiffs from being able to get information from the medical team

policy goals when everyone stays silent in medical malpractice res ipsa loquitur cases

• the group is deterred but not the individual

• the plaintiff gets the right level of compensation

• the plaintiff is made whole but some people are labelled tortfeasors who are not

• if everyone tells what they know, the correct level of deterrence, compensation, and moral fairness results

Res ipsa loquitur in medical malpractice in Texas

Texas legislature has limited it to doctrinal applications including

• misusing mechanical instruments

• operating on wrong body parts

• leaving sponges and instruments in the body

the use of res ipsa loquitur must be based on

common knowledge

Questions that arise about the scope of a custom in medical malpractice

• geographic scope

  • same locality

  • same or similar locality (preferred today)

  • national (preferred today)

• scope of the calling or profession

how often are medical malpractice cases successful?

they do not often succeed

Approaches to Informed Consent

• reasonable patient

• reasonable physician

• alternative approaches

  • subjective reasonable patient

  • hybrid of reasonable patient

  • rules-based approach

Informed Consent - Reasonable Patient

• more autonomy promoting; doctor must disclose:

  • alternative treatment

  • treatment risks and benefits

  • disclosure can be forgone in emergency or for incompetent patients

  • common knowledge/non-material risks do not have to be disclosed

Informed Consent - reasonable physician

what is customary for a physician to disclose

informed consent - subjective reasonable patient

• takes patient’s particular goals into account

• requires doctor to investigate

informed consent - hybrid reasonable patient

what is material to a reasonable patient with specific traits the doctor already knows

informed consent - rules-based approach

list of procedures - bright line rules about disclosure

bureaucratization of consent

because of the possibility of liability for failure to obtain informed consent, doctors often use written forms with relevant risks

ways to establish a duty

• special relationship

  • fiduciary

  • familial

  • Michigan - companions on a social venture

• enhancement of risk

  • negligent

  • non-negligent

• voluntary assumption of risk

rejection of duty of easy rescue

components of a fiduciary relationship

• dependency

• trust

• contracts aren’t the best - imbalance of power between the parties

enhancement of risk

if defendant knows or has reason to know their conduct, tortious or innocent, caused the harm, they have a duty to exercise reasonable care to prevent further harm

can be negligent or non-negligent

non-negligent creation of risk

when prior conduct creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm

Dalkon Shield case

voluntary assumption of duty - restatement 2d vs 3d

restatement 2d: one who takes charge of another who is helpless to aid is subject to liability for any bodily harm caused by:

• failure of the actor to exercise reasonable care to secure the safety of the other within the actor’s charge

• actor’s discontinuing of aid or protection leaves the other in a worse position (encourages you not to get involved if you don’t actually know how to help)

restatement 3d: does not want you to second guess yourself before getting involved

• exercise of reasonable care in rescue attempt and in discontinuing of aid

What 3rd parties are owed a duty under the restatement?

one who negligently gives false information is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results

• to the other

• to such third persons as the actor should reasonably expect to be put in peril by the action taken

Rowland factors

scope of duty absent a special relationship considers

• foreseeability of harm

• degree of certainty of injury

• closeness of connection between defendant’s conduct and injury

• moral blame attached to defendant’s conduct

• policy of preventing future harm

• extent of burden to defendant and consequences to the community of imposing duty

• availability, cost, and prevalence of insurance/alternative courses of conduct

Randi W Test for duty to a third party

• special relationship triggers duty to third party who is foreseeably endangered (undertaking/ reliance created)

• two steps

  • foreseeably enhance danger (risk)

  • special relationship between a & b

    • way it is managed foreseeably enhances risk of physical harm to 3rd party

  • Tarasoff adds - the victim must be identified or identifiable

Impact of Randi W.

every child succeeds act

Texas pass the trash law

Private Rights of Action/Statutory Right of Action

• about scope - express or implied

• discouraged by the restatement

• statute is the basis for lawsuit and determines the defendant’s obligations

• hard to enforce when only implied

What test determines if there is an implied right of action?

Uhr Test

1. members of class to be protected

2. promote legislative purpose

3. consistent with the legislative scheme

Undertakings

critical elements

• promise you will do something

• reliance on the promise

When does an undertaking give rise to a duty in tort to the other party? under restatement section 42

• when a party fails to exercise reasonable care and that increases the risk of harm beyond that which existed without the undertaking

• the person to whom the services are rendered or another relies on the actor’s exercising reasonable care in the undertaking

When does an undertaking give risk to a duty in tort to a third party? under restatement section 43

• the failure to exercise reasonable care increases the risk of harm beyond that which existed without the undertaking

• the actor has undertaken to perform a duty owed by the other to the third party

• the person to whom the services are rendered, the third party, or another relies on the actor’s exercising reasonable care in the undertaking

Undertakings in Moch

• the New York court of appeals concluded that the plaintiff’s claim should be dismissed

  • the number of parties could create crushing liability and make distributive fairness an issue

• defined scope very narrowly

Scope of Duty - spectrum

most narrow

• privity (contract)

• tantamount to privity

• intended third party beneficiary

• foreseeable victim (tort)

least narrow

How do undertakings complicate the scope of a duty?

• makes the scope closer to reasonable foreseeability

• tort is much more willing to protect people because there is no initial agreement so we are more interested in doing what is right as a public policy matter

Why are commercial vendors more suited for liability?

compensation - commercial vendors can spread costs, they are harder for social hosts to absorb

deterrence - commercial vendors have more expertise and focus to evaluate customers and are better able to intervene and ration the supply

moral fairness - it is not fair to impose that responsibility on social hosts but commercial vendors already have an expectation of reasonable conduct

Social Host Liability under Restatement 3d of Torts

• a duty to exercise reasonable care can be countermanded based on countervailing policy or principle

• “general social norms of responsibility” may temper the scope of duty