Torts: Strict Liability and Misc.

Strict liability

Liability imposed without regard to a ∆’s intent or breach of the duty to use reasonable care.

Abnormally dangerous activities analysis:

(1) The activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors.

(2) The activity is not one of common usage.

Six factor test of abnormally dangerous:

(1) High probability of harm;

(2) Harm could be great if materialized;

(3) Risk is unavoidable even with due care;

(4) The activity is not common and thus not presumed to be highly valuable;

(5) The activity is inappropriate for the area;

(6) The activity is not sufficiently valuable to the public to offset the risk.

Defense that fails under strict liability

π’s contributory negligence.

Defense that survives strict liability

π’s assumption of the risk of harm from an abnormally dangerous activity.

Irvine rule

Contributory negligence and assumption of the risk are defenses to strict liability animal claims.

Wild animals analysis:

The animal injured anyone.

Domestic animals analysis:

(1) The animal injured someone;

(2) The owner knew or had reason to know the animal had a dangerous propensity abnormal for its class.

Some states have “dog bite” statutes applicable only to dogs which impose strict liability even without prior knowledge of dangerous characteristics.

Indiana Harbor rule

Strict liability is proper against a party engaged in an abnormally dangerous activity.

Three types of damages:

(1) Nominal damages;

(2) Punitive damages;

(3) Compensatory damages.

Nominal damages

Awarded when a tort has been committed against a π, but the π has suffered no substantial loss and injury.

Compensatory damages

The primary means by which tort law restores a π to pre-tort status by permitting the recovery of compensatory damages; typically comprising economic losses and non-economic losses.

Economic losses

Losses that are readily subject to objective measurement (special damages).

Non-economic losses

Compensate one for injuries not easily reduced to a dollar figure.

Lost earnings

Income that π was unable to earn in the past because of tortious injury.

Loss of impairment of future earning capcity

Income that π would have earned in the future if the π wasn’t tortiously injured.

Past and future medical expenses

Expense for medical treatment or healthcare.

Past and future physical pain and suffering

Physical pain and suffering about which the π is aware as a result of the π’s physical injuries.

Past and future mental pain

Emotional distress about which the π is consciously aware that was caused by the π’s injuries.

Permanent disability and disfigurement

Injuries that will indefinitely prevent a π from performing some or all of the duties that could be performed before the injury/physical disfigurement caused by tortious conduct.

Loss of enjoyment of life

Detrimental alterations of a person’s life or lifestyle or a person’s inability to participate in the activities or pleasures of life that were formerly enjoyed.

Loss of consortium

Deprivation of the benefits of a family relationship due to injuries caused by a tortfeasor.

McGee rule

Damages for loss of enjoyment of life are included in general damages for tort claims and may be separately listed on a jury verdict form.

Richardson rule

An award of damages is excessive if it falls outside the range of fair and reasonable compensation, or it results from passion or prejudice, or it is so large that it shocks the conscience of the court.

Collateral source rule

Prohibits the reduction of π’s damages by the amount of compensation received from independent sources.

Four exceptions to collateral source:

(1) To rebut π’s testimony that he or she was compelled to return to work prematurely due to financial need;

(2) To show π attributed his or her condition to another cause;

(3) To impeach the π;

(4) To show π had actually continued to work.

Montgomery rule

Evidence of gratuitous or discounted medical services for a π is to be excluded when asserting the damages due to π.

Doctrine of avoidable consequences

Requires π to take reasonable steps to mitigate or avoid further injury after the initial harm has occurred.

Zimmerman rule

π may not claim damages for permanent injury if the permanency could be avoided through medical treatment that a reasonable person under the same circumstances would have undertaken.

Punitive damages

Damages awarded above and beyond compensatory damages for the distinct purpose of punishing a ∆ for engaging in particularly egregious conduct.

State Farm rule

Awards of punitive damages by state courts that exceed a single-digit ratio between punitive and compensatory damages are usually “grossly excessive” and violate DPC of the 14th amendment.

Gore guidepost factors:

(1) Degree of reprehensibility of ∆’s conduct;

(2) Ratio between punitive and compensatory damages;

(3) Comparison of the punitive damages award to civil penalties in similar cases.

Wrongful death statutes

Enacted so that statutorily-defined beneficiaries of one tortiously killed could bring a tort action for injuries caused as a result.

Survival statutes

Enacted to permit a decedent’s estate to bring any actions that were previously extinguished by the decedent’s death.

Selders rule

The measure of damages for the wrongful death of a minor child should include the loss of the society, comfort, and companionship of the child.

Pecuniary losses

Losses that can be measured in monetary terms.

Murphy rule

A π may maintain a wrongful death action and a personal injury action concurrently even if the actions arise out of the same incident.

Concurrent negligence

Negligence of two or more persons acting independently.

Joint tortfeasor

Two or more persons whose collective negligence in a single accident or event causes damages to another person.

Joint and several liability

Liability that may be apportioned among two or more parties such that each liable ∆ is deemed responsible for the entirety of damages, subject to a potential right of contribution from the joint ∆s and a bar against π receiving more than 100% of the total damages awarded.

Bierczynski rule

Participation in a car race on a public highway is an act of concurrent negligence, and both racers may be held liable for injury to a nonracer resulting therefrom.

Coney rule

(1) Comparative fault is applicable to strict products liability actions;

(2) Comparative fault does not eliminate joint and several liability; AND

(3) Retention of joint and several liability does not deny ∆s equal protection of the laws.

Tortfeasor doctrine

Imposes liability for a victim’s subsequent injuries to the person who first injured the victim.

Banks rule

Comparative fault statutes generally do not eliminate the common law original-tortfeasor doctrine.

Contribution

A tortfeasor’s right to collect from other joint tortfeasors when and to the extent that the tortfeasor has paid more than his or her proportionate share to the injured party.

Indemnity

The right of a party to reimbursement or compensation from another party who is primarily liable for the injury caused to the π.

Slocum rule

To be indemnified, an individual must be completely without fault and be held derivatively or vicariously liable for the tort of another.

Immunity

A rule that exempts certain individuals or entities from liability.

Defense

A reason or argument used to deny liability.

Privilege

A legal right to act in a way that would otherwise be considered wrongful.

Ayala rule

πs may recover in tort from local government entities.

Riss rule

Absent litigation creating liability, a municipality is not liable in tort for a government service’s failure to protect the public from criminal activity when there was no relationship created with the π.

DeLong rule

When a relationship is created between the police and an individual which gives rise to a special duty, the municipality loses its government immunity and liability may result.

Rescue doctrine

A person who is injured while attempting to rescue another from danger can recover damages from the party whose negligence caused the danger, even if the rescuer was not the original target of the negligence.

Deuser rule

The US cannot be sued for the performance of a discretionary function or duty of a federal employee if the conduct is grounded in the social, economic, or political goals of the employee’s governing guidelines.

Discretionary function exception

A provision under the Federal Torts Claims Act that shields the government from liability for certain actions related to policy decisions and discretion.

How to determine if ∆ falls within DFE:

Evaluate whether the action judgment or policy decisions that are susceptible to discretion, and not purely operational or ministerial acts.