torts negligence review oct 27

Substantial certainty

A way to show intent for intentional torts. D acts knowing with substantial certainty that P will suffer a harmful or offensive contact, even if D doesn't want it to happen.

Substantial certainty examples

(1) Hotel owner rents rooms knowing the beds have bedbugs; (2) Having sex with someone while knowing you have an STD.

Disjunctive intent

D throws a rock at A, B, and C and doesn't care which one gets hit. Intent is satisfied as to whoever is hit.

Four elements of negligence

(1) Duty; (2) Breach; (3) Causation; (4) Damages.

Who decides the elements

The judge decides whether there is a duty. The jury decides breach, causation, and damages.

Manufacturer's duty beyond the immediate purchaser

A manufacturer owes reasonable care to people beyond the buyer when (1) the product, if negligently made, is likely to create serious danger; (2) the manufacturer knows people other than the buyer will use it; and (3) it expects the product to reach those users without a new inspection.

Negligent entrustment

You can't give someone a dangerous thing if they can easily get hurt with it because like they are a kid or drunk or something (a canoe to a drunk person, a chainsaw to an 11 year old).

Three qualified duties of care

(1) Affirmative duty to protect or rescue; (2) Duty to prevent pure economic loss; (3) Premises liability.

General rule on duty to protect or rescue

There is no duty to protect or rescue others, even when it is easy or safe to do so, except in specific circumstances.

Rescue exception 1: creating the risk

If D had a hand in placing P at risk of harm, D may owe a duty to take reasonable steps to warn, protect, or rescue, even if D did nothing wrong. This is why you must pull over after a crash. Osterlind could sue on this.

Rescue exception 2: voluntary undertaking

If you voluntarily start to warn, protect, or rescue, you must do so with ordinary care. "No good deed goes unpunished."

Good Samaritan statutes

Laws that protect volunteer rescuers from liability for ordinary negligence, but not for gross negligence.

Rescue exception 3: special relationships

Common carrier and passenger, hotel and guest, business and customer, school and student, prison and prisoner, employer and employee, hospital and patient.

Special relationship when P is at fault

Even if the person is at fault for their own injury, a special relationship still creates a duty of care.

Pure economic loss general rule

There is no duty to take reasonable care to avoid pure economic loss. You can recover economic loss only if there is something else, like a physical injury.

exception to pure economic loss

If an accountant for example whose job is doing your taxes messes up and you owe penalties, you can win for pure economic loss.

People Express exception

The court MIGHT allow recovery for pure economic loss if (1) the injury was relatively foreseeable; (2) there are relatively few plaintiffs; and (3) D's conduct was relatively blameworthy or risky.

Premises liability covers

Conditions on land, not actions.

Traditional approach to premises liability

Mississippi, Leffler. About 30% of states.

Merged approach to premises liability

Vermont, Demag. About 50% of states.

Modern approach to premises liability

New York and California, Rowland. About 20% of states.

Invitee

On land for business (plumber, shopper at a store). Traditional, merged, and modern: keep it reasonably safe, find and fix issues.

Licensee

Friend at your house, using the bathroom at a coffee shop, church, shul. Traditional: warn of hidden dangers you know or should know about. Merged and modern: keep it reasonably safe, find and fix issues.

Trespasser

On someone else's property without permission. Traditional and merged: don't willfully or wantonly injure (no traps). Modern: keep it reasonably safe, find and fix issues.

Flagrant or felonious trespasser

Trespassing to do bad things. Traditional, merged, and modern: don't willfully or wantonly injure (no traps).

Constant trespasser exception

In traditional and merged states, you must warn about man made dangers to constant trespassers (people who often cut through your backyard).

Attractive nuisance

In traditional and merged states, if it's foreseeable that kids may come into your yard and get hurt, you must make it reasonably safe for kids (fence around the pool).

Natural conditions harming people off your land

Traditionally not liable (a tree branch falls on someone on the sidewalk). The trend in crowded states is shifting toward liability.

Artificial conditions harming people off your land

You are liable if an artificial condition (windmill, weather vane, sculpture) hurts someone off your land.

Landlord vs. tenant

The tenant is subject to premises liability. The landlord generally isn't once the property transfers, except for dangers the landlord knows or should know about that the tenant has no reason to know about.

Landlord duty when the property will be open to the public

If the landlord has reason to believe the tenant will open the place to the public (bar, restaurant), the landlord has an affirmative duty to inspect and repair before the lease starts.

Slip and fall proof

P must persuade the jury the store caused the danger (spilled it or stacked items negligently) or had constructive notice of it.

Constructive notice

The danger was there long enough that the owner should have known and cleaned it up. Grapes on the floor for 2.5 hours on camera is probably enough.

Two ways to proceed after death

(1) Survival action; (2) Wrongful death action. Both are negligence claims.

Survival action

The estate recovers for harms the decedent suffered between the time of the tort and death.

Wrongful death action

Surviving family members recover for the losses THEY suffered because of the death.

Reasonably prudent person considers

(1) Foreseeable risks of the conduct; (2) Potential injury; (3) Likelihood of injury; (4) Alternative courses of conduct.

Professional standard of care

For people with a high level of training and proficiency, like doctors and lawyers. They are held to the care ordinarily used by reasonably well qualified people in that field in similar circumstances.

Proving the professional standard

Expert testimony and other evidence of professional standards are the only sources the jury may use to decide what the standard requires and whether it was breached.

Proving ordinary care

Once it's the ordinary standard of care, the jury can use its own logic and reasoning to decide.

Expert's own practices

You CAN ask what an expert does in their own practice. It's evidence of the standard of care and can impeach the expert's opinion if their personal practice differs from the standard they testify to.

Extraordinary care for common carriers

Some states require common carriers to use extraordinary care (Pennsylvania did in Jones). Others like New York require only reasonable care, which is still a high standard for a common carrier.

Reasonable person standard: not state of mind

The standard is objective. The question is whether D's conduct was reasonably careful, not whether D wanted, tried, or believed to be careful. Intention doesn't matter.

Parents' liability for kids (McFall)

You can't sue parents vicariously for what the kid did, but you can sue the parents for negligence in not watching the kid properly.

Negligent supervision elements

(1) The parents were aware of specific prior conduct sufficient to put them on notice the act was likely to occur; and (2) the parents had the opportunity to control the child.

Tender years doctrine

A child under 7 is not liable for negligence.

Older rule for children

Illinois. Under 7: not liable. 7 to 14: a child of like age, intelligence, and experience. 14 and up: the adult standard.

Modern majority rule for children

Massachusetts. Eliminates the tender years doctrine. Under 14: a child of like age, intelligence, and experience. 14 and up: the adult standard.

Adult activities exception

In every state and at any age, a child doing an adult activity (chainsaw, snowmobile) is held to the adult standard.

Physical disability

YES, taken into account. Ask what a reasonable blind person would do here.

Mental challenges or insanity

NO, not taken into account.

Drunk

NO, not taken into account.

Special competence

YES, sometimes. A higher standard of care because of the training.

Old age, clumsy, foolish, right intentions

NO, not taken into account.

Sudden unexpected physical incapacity

YES if unexpected and unforeseeable. NO if the person knew the condition could come up.

Limits of custom

Usually what everyone does is reasonable, but not always, because a whole industry can fall behind. It has to be widespread; one or two companies isn't enough. Some customs become laws. not enough to win the case on its own. tends to show reasonable but doesn’t decide it.

B in the Hand formula

Burden: the cost of taking the precaution.

P in the Hand formula

Probability that the harm will occur.

L in the Hand formula

Loss: the cost of the harm.

B < P x L

A reasonable person would take the precaution, so not taking it is a breach.

B > P x L

A reasonable person wouldn't bother, so skipping the precaution is no breach.

Negligence per se

Showing D violated a statute meant for safe conduct can establish negligence. You don't need to find duty or breach, so there's no reasonably prudent person analysis. Just look at causation and damages.

Complying with a safety statute

D can comply and still be negligent, but compliance is evidence that D was not negligent.

Five conditions for negligence per se

(1) A statute sets a standard of safe conduct; (2) D violated it; (3) P is among those the legislature meant to protect; (4) the injury is the type the statute meant to prevent; (5) D has no excuse for the violation.

Five excuses for violating a statute

(1) Youth or physical incapacity of D; (2) D's reasonable efforts to comply; (3) D's justified ignorance of facts that make the statute apply; (4) the statute is vague or ambiguous; (5) complying would be more dangerous than not complying.

Agency rules and negligence per se

Some jurisdictions treat an agency rule the same as a statute. Others treat a violation as evidence only, not as strong as a statute violation.

Trade association standards

Negligence per se doesn't apply because they're private, not government. They can be useful as industry custom.

Actual causation

The but for cause. But for D's breach, would P have been injured? Take away D's negligence and ask whether the harm still would have happened.

Proving causation

P has to prove it more likely than not. D's breach doesn't have to be THE but for cause, just A but for cause.

Proximate cause

A policy judgment by the jury. D isn't liable if the injury is too remote, unforeseeable, or unexpected.

Parachuter example with actual but not proximate cause

You drive too fast and hit a man parachuting from the sky. You're the actual cause, but it's too random to be the proximate cause.

In mcdonald case, 2 cars were driving carelessly, they crash and hit a third person.

without either there wouldn’t be an accident so there are here multiple necessary causes. both are jointly and severally liable for upto 100% of the damages.

X is walking with a green light, Z is driving too fast and swerves and hits D. is there multiple necessary causes why or why not

While X may be an actual cause of Z swerving, X breached no duty, the duty was breached by Z and therefore only Z is at fault. No multiple necessary causes 

X may be an actual cause but breached no duty.

On Monday, a construction company carelessly leaves an open hole in the sidewalk with no barrier. On Friday, a jogger running carelessly crashes into P and knocks P into the hole.

• But for the open hole: P falls but doesn’t land in a hole.

• But for the jogger: P never falls in.

The two careless acts are days apart, but both were needed for the injury.

still multiple necessary causes even though weren’t simultaneously like mcdonald

A is driving normally, B is too fast. A and B crash and hit pedestrian C. A was driving normally so figured will drive away. A had a hand in the accident and therefore has a duty to rescue and protect and cannot just dip. C will sue B for damage from the crash, and also the damage from after the crash until the EMT was called, since delay because A left, C sues both A and B for the damage coming from the delay. This is multiple necessary causes also?

• A: had a hand in placing C at risk, so A had a duty to help under exception of protect and rescue. Driving away is a breach. But for A leaving, help would have come sooner, so A is a but for cause of the extra harm.

• B: but for B’s speeding, there’s no crash and no delay harm at all. So B is also a but for cause of the extra harm.

Both are necessary causes of the delay harm, so A and B are jointly and severally liable for that piece. B alone is liable for the crash piece.

two people drive past a motorcycle on either side, the horse gets scared and the rider is injured. But-for test is no good because either way get rid of one and still happens so neither is necessary.

while it is called the substantial factor test, the question the jury answers is each one an independent sufficient cause?

here the answer is yes and therefore both are jointly and severally liable for total of 100%

Summer's case, 2 guys shot at a bird at the same time, and a guy got shot, they don’t know who hit him.

the burden shifts. Each defendant has to prove he didn’t cause the injury. If neither can, both are jointly and severally liable.

elements required for an alternative causation case

1. Two or more Ds were negligent, but

2. Only one caused the injury, and

3. P, through no fault of his own, cannot know which actor did the injury, then

4. The burden of proof regarding causation shifts from P to D and the defendant must prove that his carelessness was NOT the cause of P’s injury

in a case of conspiracy / aiding and abetting what happened?

Agreement to commit, avert act, underlying battery shooting was furtherance of the plan, can recover against both defendants don't need to show which one shot him

joint and several liability

If there is a concert of action (2 people agree to drag race) both are liable even if only 1 crash.

Joint and several liability, even though 1 person wasn’t involved in the crash

Market share liability

whatever % of the market a specific entity is liable for, that % is what they are responsible for 

** what is rep ipsa Loquitur

is that the plaintiff can establish breach without producing evidence, the fact that the plaintiff is injured is enough to rely on and the burden of proof switches to the defendant and must be proven by a preponderance of evidence that he did not breach his duty to the plaintiff. Only in limited circumstances. 

test for proximate cause

Was the plaintiff’s injury a reasonably foreseeable consequence of the defendant’s breach, to a person situated as the defendant was, at the time the defendant acted?

What must be foreseen is the type of harm and the type of plaintiff, not the precise manner it happened.

what is superseding cause

what the 2nd actor does is totally unforeseeable. In this case the first actor says its not on them

2nd person was superseding and therefore no proximate cause for the 1st and therefore not on first just second

• Two defendants acting independently (2nd could be earthquake or volcano)

  • Both are actual cause 

• The wrongs are committed consecutively one after the other with some time in between

• In SOME not all, the courts will treat the action of the 2nd as superseding and cut liability from the first

Only use superseding cause if 2 different actors one after another (or 1 actor and event like a tornado) only the 1st defendant raises it toward the 2nd, saying what the 2nd done is something so crazy could’ve never foreseen