Torts Outline so far.

PART 1: TORT LAW AND ITS GOALS

Torts: wrongs recognized by law as grounds for a lawsuit.

Tort Claims Require. an Act, with a Harm (recognized by law) and Causation (fault).

Liability on a claim. Are all of the elements of the claim met? If yes, defendant is liable.

Prima fascie: Satisfying each element on a case. A case that’s good “on its face.”

1. Tort Law: Aims, Approaches, and Processes

Aims.

Morality or Corrective Justice. Moral responsibility that the defendant has wronged the plaintiff and holds the defendant liable. Liability is imposed when it’s “right” to do so. 

Social Utility or Public Policy. “Good-for-all-of-us.” Provide a system of rules that work toward the good of society.

Goals: Justice, Policy and Process

·       Compensation: Make injured people “Whole.”

·       Risk: Distribute the costs of injury, so when someone is hurt, there is compensation.

·       Fault: The person at fault pays. (Negligence or Intent).

·       Deterrence: Deter others to avoid certain conduct.

2. Reading Torts Cases: Trial Procedures

PART 2: INTENTIONAL TORTS

3. Intentional Torts and Harms to Persons and Property

Intentional Tort: Harms to persons and harms to property.

·       Requires ( ACT ) and ( INTENT )

o   Intent: Individual intends the consequences of his conduct in his purpose of acting OR knows with substantial certainty of the consequences of his actions.

o   Harm isn’t enough for a tort claim. There must be a wrongful act. A wrong requires fault (Intent OR Negligence).                                   See Van Camp v. McAfoos.

A. Harms to the person, such as assault, battery, false imprisonment, and infliction of mental distress; and harms to property interests, such as trespass to land and chattels, and conversion.

B. Defenses to claims for physical harms.

            1. Consent

2. Privileges and immunities: protection of self and others; protection of property interests; parental discipline; protection of public interests; necessity; incomplete privilege.

a. Battery

i. Elements

            (1) An Act: A volitional (voluntary) movement of the defendant.

(2) With Intent: purpose is to bring about consequences with substantial certainty those consequences will occur.

·       Intent to cause harmful bodily contact (physical injury)

·       Intent to cause offensive bodily contact (invade another’s reasonable personal dignity).

            (3) Harmful OR Offensive

·       Offensive? Objective. “What would a reasonable person find offensive?”

            (4) Contact to the Plaintiff: physical touch

ii. Object and Levels of Intent

            Intent: Subjective.

·       Single: intent to touch

            White v. Muniz. Court ruled under Single Intent that because the mentally disabled     patient could NOT “intend to harm,” the patient’s actions were not battery.

·       Dual Intent: Intent to touch AND intent to Harm or Offend

            Wagner v. State. Court ruled under single intent jurisdiction.” Because the patient had                         intent to touch, their actions were considered battery.

iii. Contact

            Direct or Indirect.

·       Direct Contact. The actual physical touching of an individual.

·       Indirect Contact. Using something else to cause a means of harm. OR:

Eichenwald v. Rivello. Court ruled under indirect contact battery occurred. Because Rivello utilized a GIF, he met the qualifications for indirect content element of battery.

Rule. Physical contact need not be with the physical body of the plaintiff and need not be direct physical contact. “Contact is Broad.”

iv. Damages

            No need for physical harm in order for battery to occur. Damages include:

·       Nominal. Individual who suffers only trivial harm may be entitled to damages.

·       Economic. If the intentional contact causes economic damages, the damages are recoverable upon proof.

·       Pain and suffering and emotional distress. Damages may be recovered whether or not the plaintiff suffered physical harm.

·       Punitive. Damages against an individual who is guilty of malice or wanton misconduct.

v. Transferred Intent: The intent to commit one tort can be transferred to another tort or to the injured person for the purposes of establishing prima fascie.

·       Increases liability for battery.

·       “Meant to hit A, actually hit B.” Intent transfers to B. Example of person-to-person.

·       “Meant to hit A, but I missed them.” Intent of battery transfers to intent of assault.

·       The doctrine of transferred intent states that the tort of battery or assault and battery may be committed, although the person struck or hit by the defendant is not the one whom he intended to strike.

Baska v. Scherzer. Two defendants got into a fight, but Baska intervened and got hit. Baska sued both for the charge of battery and won. Under transferred intent, their action of battery transferred despite not having the intention to hit her. Applies Transferred Intent between person to person.

Rule. “It is enough that the actor intends to produce such an effect upon some person and his act so intended is the cause of harmful contact to the other. He should recognize his act, though directed to the third person, involves a risk of

causing bodily harm to the other.” – Restatement (Second) of Torts

b. Assault: Intentional creation by the defendant of a reasonable apprehension of immediate harmful or offensive contact to the plaintiff’s person.

Elements:

            1. Defendant under took an act

            2. With intent, effecting

            3. The imminent apprehension of

·       Apprehension = awareness (not fear)

·       Imminent = Conduct that would occur without significant delay; “right now.”

            4. A harmful or offensive

            5. Touching of, or contact with, the plaintiff

·       Reasonable apprehension is viewed objectively.

Cullison v. Medley. Cullison invited Sandy Medley (16 y.o. girl) to home for a coke. Her family arrived later and berated him. They intimidated him and threated to “jump astraddle.” Cullison suffered chest pains and feared a heart attack.

Rule. Assault is effectuated when one acts intending to cause a harmful or offensive contact with the person or an imminent apprehension of contact. Assault is the “touching of the mind” of a reasonable person.

·       Mere words don’t amount to an assault. Words can indicate the threat is really a threat about future action and that although harmful or offensive touching is threatened, the touching is not imminent.

c. False Imprisonment: An intentional act or omission by the defendant that causes the plaintiff to be confined or restrained to a bounded area and the plaintiff had awareness of the confinement.  

·       Elements:

o     Intentionally

o    Confined the plaintiff, and that the plaintiff

o    Was aware of (or harmed by) the confinement

·       Requires “awareness” unless a plaintiff sustains actual harm. If they’re not aware but suffer harm, recovery is permitted.

·       Lawful confinement can be excessive and turn into false imprisonment.

¨      Intent. intent to confine.

¨      Confinement. through different methods.

¨      Bounded. Limitation of movement without a reasonable escape.

McCann v. Wal-Mart

Facts.

·       McCann was shopping at Walmart with children. While leaving the store at 10:10 PM, defendant stepped in front of them and blocked the exit because they mistakenly believed the children were stealing. The defendant told the plaintiff McCann had to go with her, and she protested. The defendant refused to look at McCann’s ID. Security notified the defendant McCann’s child wasn’t the shoplifter, and the defendant let McCann out at 11:15 PM.

Issue.

·       Was McCann “confined” for false imprisonment?

Reasoning.

·       The direction to McCann, reference of the police, and continued presence was enough to induce a reasonable person to believe either they would be restrained physically if the person sought to leave, or that the store was claiming lawful authority to confine the person until the police arrived.

·       McCann was falsely imprisoned.

Rule. “Although nuances vary from state-to-state, the gist of the tort is conduct by the actor which is intended to, and does in fact, “confine” another “within boundaries fixed by the actor” where, in addition, the victim is either “conscious of the confinement or is harmed by it.”

Nationwide Mut. Ins. Co. v. Pasiak – Would the person confined be able to escape?

Employer was liable because the employee asked to leave and the employer said no in the presence of the third party who had just recently tied her hands, gagged her, and blindfolder her. The employer refused to call the police. Ask. Would the person confined be able to escape? If yes, there’s no confinement.

d. Torts to Property: If the defendant merely handles the chattel or moves it or perhaps even uses it, without harming or affecting it or impairing its usefulness, defendant has committed no tort. But any dispossession is a trespass for which at least nominal damages may be awarded.

i. Trespass to Land: An intentional act by the defendant that causes a physical intrusion or invasion of the real property.

Elements:

                                    (1) Intentionally

·       Must establish “intent to enter.” Intent exists if the defendant has knowledge entry is substantially certain.

·       Intangible intrusions don’t fall under intentional tort of trespass to land.

                                    (2) caused an intrusion, either by entry onto or failure to leave or remove from

                                    (3) plaintiff’s real property

¨      Intent to trespass is not required; merely intent to enter.

¨      The trespass must be against the party in possession or that owns the land.

¨      Physical invasion can be by different methods.

Briggs v. Southwest Energy Production Company. – The object of intent for trespass is trespass to enter.

                                    Facts.

Plaintiff owned real property that they refused to lease to the defendant. The real property was adjacent to real property leased by defendant. The defendant-maintained wells and implemented hydraulic fracturing to enhance recovery. The plaintiff claimed defendant obtained hydrocarbons under the plaintiff’s land.

Issue.

·       Does the rule of capture prevent liability for trespass to property for draining gas from nearby property where the well is drilled beneath the driller’s own property?

Reasoning.

·       Fracking allows developers to rely on pressure differentials to drain oil and gas from under another’s property.

·       Defendant did not physically intrude onto the plaintiff’s property.

·       The fissures in rock doesn’t establish a physical intrusion because a fissure may have connected with a pre-existing fissure across property lines.

Rule. “The rule of capture is a fundamental principle of oil-and-gas law holding there

is no liability for drainage of oil and gas from under the lands of another so long as there has been no trespass.”

ii. Conversion of Chattels: An intentional act by the defendant that causes a substantial interference with the plaintiff’s right of possession in a chattel as to warrant the remedy of a forced purchase.

            Elements:

            (1) Intentionally

            (2) Interfered with the

            (3) Plaintiff’s right of possession in a chattel

            (4) In so substantial a manner as to warrant the remedy of a forced purchase

            Reif v. Nagy – focuses on the valid claim of ownership.

Facts. The defendants purchased artworks previously owned by Grunbaum. Nazis forced Grunbaum to transfer artworks to his wife. The plaintiffs, Grunbaum’s heirs, sued for conversion.

Issue. Did the plaintiffs have a superior right to the artworks giving them the right to sue for conversion against the defendants for unauthorized possession?

Reasoning. Plaintiffs have an arguable claim of a superior right of possession to the artworks because there was never a voluntary transfer that would relinquish ownership.

Rule. Conversion requires the plaintiff to prove the property is in unauthorized possession of another who interfered with plaintiff’s rights by acting to exclude the plaintiff’s rights.

¨      The interference is so substantial that it warrants recovery of the full market value. Operates as a “forced sale.”

Factors that guide “substantial interference” analysis for conversion (matter of degree).

o    extent and duration of control

o    defendant’s intent to assert a right to the property

o    defendant’s good faith

o    harm done

o    inconvenience or expense caused

iii. Trespass to Chattels: An intentional act by the defendant that causes an interference with the plaintiff’s right of possession in a chattel, resulting in damages.

Liability is based on actual damage, either in the form of actual harm to the chattel itself or an interference with the plaintiff’s access or use. The damage is interference with the plaintiff’s access or actual harm.

            Elements:

            (1) Intentionally

            (2) Interfered with the

            (3) Plaintiff’s right of possession in a chattel

School of Visual Arts v. Kuprewicz – focuses on interference of chattel

Facts.An angry former employee “spammed” their employer.

Issue. Is interference with a computer system the type of personal property trespass to chattels is intended to address?

Reasoning. The damage to a plaintiff’s computer system could be an intentional interference for purposes of a claim for trespass to chattels.

¨      In both trespass to chattels and conversion, unpermitted touching or taking another’s property is central.

¨      For conversion, the interference must be so substantial it justifies conversion’s special remedy of the forced purchase.

¨      The plaintiff can sue on either claim or both.

¨      Requires actual harm to the chattel or an interference with the plaintiff’s access or use. Trespass to chattels does not require actual harm. It can be based on interference.

e. Forcible Harms as Federal Civil Rights Violations: § 1983. Every person (or municipality) shall be liable to the party injured under the following circumstances:

(1) When that person deprives the party of any rights, privileges, or immunities secured by the U.S. Constitution and federal laws, and

(2) does so under the color of state law.

Simplified… A claim exists if

(1) the defendant, a person or municipality

(2) acts under color of state law, and

(3) subjects the plaintiff to a deprivation of federal rights

Explained…

(2) Under the color of state law – the action must be related to the performance of the duties of the state office. Defendant is using state authority or the appearance of such authority.

(3) Federal rights – rights in the U.S. Constitution.

¨      If a case’s facts would allow for a common law tort, why bring a 1983 claim and not common law claim? A prevailing plaintiff is allowed to recover attorney’s fees, and the action can be heard in a federal forum.

¨      Damages are determined according to principles derived from the common law of torts.

¨      After a right has been violated, the plaintiff must prove the right was clearly established.

i. Qualified Immunity: Key Defense to 1983 claims. The state actor is immune from suit because his conduct did not violate “clearly established statuory or constitutional rights of which a reasonable person would have known.

o    First, establishing a violation of a right under 1983.

o    Second, establishing the violated right was clearly established.

Safford Unified School District v. Redding – A difference of opinion indicates rights were not “clearly established.”

Facts. The plaintiff was summoned to the principal’s office and then strip searched. Her mother sued for violation of her 4^th amendment rights.

Issue. Did qualified immunity apply because the search did not violate a clearly established right to be free from a search at school?

Reasoning. The rights were not “clearly established” because the differences in opinion expressed in lower courts meant the right wasn’t sufficiently clear.

Rivas v. Cortesluna – precedent must be existent for a clearly established right.

Facts. Plaintiff was threatening girlfriend and children with a chainsaw. Defendants arrived and asked plaintiff to step outside. The defendant saw a knife in the plaintiff’s pocket and instructed plaintiff not to put his hands down. The plaintiff didn’t keep his hands up, and the defendant shot the plaintiff with a beanbag round and pinned him with his knee for 8 seconds.

Issue. Were the officers on notice by existing law that the conduct constituted excessive force?

Reasoning. Qualified immunity attaches when an official’s conduct does not violate clearly established law. A right is clearly established when preexisting precedent placed the question in debate. The plaintiff didn’t identify any Supreme Court case that addresses facts like the ones at issue here.

¨      Qualified Immunity is a two-prong objective test: (1) whether the right was violated and (2) whether that right was clearly established.

¨      For the exam, you do not need to analyze whether qualified immunity applies. Sufficient to say “Bob the defendant was a government official and Bob may be able to raise qualified immunity as a defense.”

4. Defenses to Intentional Torts–Privileges

I. Privileges: protection of self and others; protection of property interests; protection of public interests; discipline; necessity.

·       General term applied to various defenses in which special circumstances justify conduct which would otherwise be tortious. (Attempting to justify conduct as a response to the apparent misconduct of plaintiff).

            II. Consent.     

·       Affirmative Defenses: Defendant has the burden of proving an applicable defense or privilege.

·       Justification or Excuse: Defenses do not challenge claim but advances some justification or excuse for claim.

A. Self-Defense and Defense of Others: A person is entitled to use reasonable force to prevent any reasonably believed threat of imminent battery or false imprisonment.

Grimes v. Saban – the defendant has a burden of proving self-defense by a preponderance of evidence. For self-defense, details drive the analysis.

Facts. Plaintiff and defendant were involved in a physical altercation upon returning from a night socializing at the bar.

Issue. Did the defendant act in self-defense?

Reasoning. The plaintiff’s testimony and defendant’s testimony conflicted; the fact-finder should decide the question of self-defense.

Rule. The defendant is justified in using physical force from what she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and the degree of force used is that which she reasonably believes necessary for the purpose.

¨      Provocation, insults, and arguments don’t justify physical force.

¨      Use, or imminent use, of physical force justifies the use of physical force. The force used must be reasonable in degree: the more punches, the less likely the force used was reasonable.

¨      Mistake: mistake of acting in self-defense must be based on reasonableness. (Reasonableness and degree are analyzed; facts should provide you with the flexibility to analyze reasonableness).

¨      Excessive force means force in excess of what reasonably appears to be necessary for defense. It can subject a defendant to liability for lack of valid defense.

¨      Self-defense conduct may take the form of an assault, battery, or false imprisonment.

¨      Deadly force cannot be used except to counter the reasonably apparent threat of deadly force. The deadly force can only go as far to serve as a defense.

o    Some jurisdictions require a showing that there was no safe way of retreat or escape.

¨      Defense of Others: An actor can defend others only if the actor has a reasonable belief that the person being aided would have the right of self-defense.

o    Most courts hold that the privilege may be claimed even if there is mistake. Some courts hold that a mistake, however reasonable, is irrelevant.

¨      Comparison of Self-Defense and Defense of Others.

o    They are the same except for “mistake” being taken into account. If a person makes a reasonable mistake about the need of force (including the danger to the third person) the defense of others defense is not forfeited.

B. Defense and Repossession of Property: A person is entitled to use reasonable force to prevent any reasonably believed commission of a tort against a person’s property.

¨      Defendant has a general privilege to defend his property by the use of reasonable force.

¨      The privilege applies only when defense appears reasonably necessary.

¨      The privilege belongs to the possessor of land, not merely the title holder.

Katko v. Briney – force to defend property must be reasonable. It is unreasonable to use lethal force to protect property.

Facts. The defendant inherited property that had numerous housebreakings. They set a shotgun trap with no warning of the gun. The court awarded $20,000 in damages and $10,000 in punitive damages to the plaintiff.

Issue. Whether an owner may protect personal property in an unoccupied farmhouse against trespassers and thieves by a spring gun capable of inflicting death or serious injury.

Rule. No privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises.

¨      It is implied that a defendant has a general privilege to defend property by reasonable force.

¨      The privilege applies on when the defense appears reasonably necessary. The privilege belongs to the possessor of land, not the holder of the title.

¨      Exception: Castle Doctrine. Retreat isn’t required if the actor, within his dwelling, reasonably believes he is in imminent danger of death or serious injury.

Brown v. Martinez – Privilege of protecting property ends when tort is complete (defendant is running away). A mere trespass doesn’t justify extreme force.

Facts. Three boys are stealing watermelons on the defendant’s property. The defendant accidentally shot in the direction of the third boy and struck him.

Issue. Was the use of the rifle to prevent trespass or theft reasonable?

Rule. There is no privilege to use any force calculated to cause death or serious bodily injury where only the property is threatened. The defendant may use the force reasonably necessary to expel an intrude, and if in the process his own safety is threatened, he may defend himself, and even kill if necessary.

Reasoning. Shooting the plaintiff was unreasonable because there was no proof the defendant felt his safety was threatened. The defendant was not privileged.

¨      The privilege of forcible recapture is limited to the tort. Once the person is complete in their tort, the privilege vanishes.

¨      Shopkeepers may have a privilege to reasonably detain individuals whom they reasonably believe to be in possession of “shoplifted” goods.

Shopkeeper’s Privilege: a shopkeeper or merchant has a limited privilege to detain such persons in a reasonable manner for a reasonable time to investigate, based on a reasonable cause or suspicion. A reasonable mistake is privileged as long as the amount of force is reasonable (some jurisdictions don’t allow mistakes).

            A merchant…

            (1) with reasonable cause

(2) may detain on the premises in a reasonable manner and for a reasonable time any person suspected of shoplifting

            (3) for a reasonable purpose (questioning or summoning a law enforcement officer)

Gortarez v. Smitty’s Super Valu, Inc. – Shopkeeper’s privilege.

Facts. The plaintiff and cousin were shopping when the plaintiff picked up a vaporizer. The store security guard held the plaintiff in a chokehold until realizing he made a mistake in detention.

Issue. Were the elements of shopkeeper’s privilege met?

Rule. Shopkeeper’s Privilege

Reasoning. It was unreasonable to hold the plaintiff in a chokehold over a $0.59 vaporizer. The suspicion must be reasonable, and the time & manner of detention must be reasonable.

¨      Suspicion must be reasonable and the time and manner of detention must be reasonable.

¨      Parents and child care workers are privileged to discipline children.

o    Discipline is discerned from brutality by force used and occasion of discipline.

o    Person disciplining may not use more force than is reasonably necessary to maintain the discipline.  (severity of misconduct, age, sex, motive).

B. Consent: when one is, in fact, willing for conduct to occur. Valid whether or not communicated to defendant.

·       In the social contract theory, it is the idea that individuals implicitly or explicitly agree to form a society and a government, giving up some freedoms in exchange for protection of their rights and the maintenance of social order.

·       A defendant is not liable for a tort if the plaintiff consented to the defendant’s act.

·       May be given expressly or apparent, implied from custom, conduct, words or by law.

·       Scope: If the plaintiff gives actual consent, the defendant will not be privileged if the defendant goes substantially beyond the scope of that consent.

·       Consent obtained by fraud, mistake induced by the defendant, or duress is not valid.

Two types: Express (Actual) and Implied (Apparent.

·       (Actual) Express. Consent is expressed through oral communications, writing or gestures.

·       (Apparent) Implied. Consent is implied through circumstances, custom, context, and culture creating the implication of consent.

What to look for?

o    Character of the relationship between parties

o    Was consent verbally extended, physically manifested, etc.

o    Power relationship/symmetry between parties

o    Incapacity to consent – minors, mentally inform adults.

Wulf v. Kunnath – apparent consent (silence can be construed as consent)

Facts. Wulf was a nurse at a hospital when Kunnath tapped her on the neck in a joking manner. She claims it was a substantial blow and caused injury. They had a history of this conduct and a “familial like” relationship. Wulf never protested to Kunnath’s “taps” before.

Issue. Had Wulf consented to the contact constituting a batter?

Rule. Battery is an actual infliction of an unconsented injury upon or unconsented contact with another. Consent negates a claim for battery. Consent is manifested by action or inaction and can be implied from the circumstances and relationship. Apparent consent – words or conduct reasonably understood to be intended as consent – is effective as consent. The time and place, and the circumstances under which the act is done, will affect its unpermitted character, and so will the relations between the parties.

¨      Consent works on an objective standard of reasonableness.

¨      In a dual-intent jurisdiction, consent is not an affirmative defense but rather serves as a piece of information in calculating or inferring intent. Consent negates the intent element. Can’t prove “intent to harm or offend.”

¨      In a single intent jurisdiction, consent negates liability. The question becomes whether the plaintiff consented. “You consent to contact.” Where intent to commit a battery requires only proof of an intent to touch, then consent functions as a true affirmative defense.

Robins v. Harris – Consent is not a defense with a “power imbalance.”

Facts. Plaintiff was an inmate; defendant was a corrections officer. Plaintiff gave defendant felatio and filed a suit alleging battery for the contact.

Issue. Is consent a defense to the tort action but not for the criminal action?

Rule. Consent is not an available defense in a civil action because of the relationship between the parties.

Reasoning. Affirmed except for the availability of consent as a defense in the tort action.

Dissent. The court should have taken this case as an opportunity to address the inapplicability of consent.

¨      The position of authority impacts “voluntary” as required for consent. (in the same way as duress or coercion).

¨      Even if there is “true consent,” it’s still not applicable.

Hunt v. Zuffa LLC. – Scope of consent

Facts. The plaintiff was an MMA fighter and was injured in a fight against a competitor, the defendant. The plaintiff brought a battery claim claiming the defendant’s use of performance-enhancing drugs was outside of his scope of defense. Plaintiff alleged his injury would have been avoided if not for the doping.

Rule. One who enters into a sport, game, or contest may be taken to consent to physical contacts consistent with the understood rules of the game.

Issue. Did the defendant exceed the scope of consent by allowing a fight with a person on performance-enhancing drugs?

Reasoning. The plaintiff implicitly consented to the defendant’s blows, and the conduct in the fight did not exceed the ordinary range of activity in an MMA fight. The court says the plaintiff doesn’t allege the defendant’s conduct was atypical and injuries exceed those typical of an MMA fight.

¨      Because the conduct of steroids aren’t out of “ordinary” range of activity, it’s within the scope of consent.

¨      Certain parties have an incapacity to consent: Minors, adults incapable of handling their own affairs (handicapped), and those mentally incapable of understanding the nature and character of the act (intoxicated).

Kaplan v. Mamelak – An incorrect operation exceeds the scope of consent

Facts. The plaintiff sued the doctor for battery because of an operation on the wrong herniated disk.

Issue. Is consent to an operation consent for that specific operation?

Rule. An incorrect “operation” exceeds the scope of consent.

Reasoning and Analysis. Reversed and remanded because the plaintiff didn’t consent to the substantially different operation. Scope of consent was exceeded.

¨      If the plaintiff gives actual consent, the defendant will not be privileged if the defendant goes substantially beyond the scope of that consent.

¨      Exceptions to consent:

o    Emergencies: a doctor may generally operate without consent (or beyond the scope of consent) in emergencies.

o    Substituted consent: others may be empowered to give consent on behalf of others.

o    Incapacity to consent: must understand the nature of the actions to have capacity to consent.

o    Revoking consent: consent can be revoked.

a. Protecting Against the Plaintiff's Apparent Misconduct

b. The Special Case of Consent

c. Public and Private Necessity.

Necessity: A person may interfere with the real or personal property of another where the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force and where the threatened injury is substantially more serious than the invasion that is undertaken to avert it.

o    Commonly associated with trespass to chattels.

Surocco v. Geary – Public Necessity.

Facts. During a raging fire, defendant – a city official acting in his public capacity – decided to destroy plaintiff’s building to stop progress of fire. Defendant believed it was necessity to destroy plaintiff’s home, or fire would spread.

Issue. Is the defendant liable for destroying the house?

Rule. A defendant’s tortious acts are privileged when the acts were necessary for the benefit of the public.

Reasoning. Because the defendant believed in good faith that fire would spread if he didn’t blow up the house, he is not liable. His acts were for the public good and to prevent subsequent destruction, fire intensifying, and people getting hurt.

¨      The public official, in an effort to prevent the spread of fire throughout the city of San Francisco, blew up the plaintiff’s house. The house would have burned in any event, but without the public officials’ intervention, the plaintiff could have saved his goods. As a matter of “natural law” the public officer must be permitted to act for public benefit without liability.

¨      Torts are privileged when necessary to benefit the public. The court asks, “Would a reasonable person do the same thing?”

Ploof v. Putnam – Private Necessity.

Facts. The defendant owned an island with a dock, and the plaintiff docked his boat there during a storm. The defendant undocked the boat, and its contents were destroyed.

Issue. Could the defendant remove the plaintiff’s boat?

Rule. Necessity justifies entry upon land that would otherwise be a trespass.

Reasoning. Necessity justifies entry upon land that would otherwise be a trespass. Sacrificing personal property of another to save life or the life of others is justified.

¨      Putnam trespassed, but because it was a necessity, he couldn’t be liable.

¨      The defendant had an obligation to sacrifice his property to save lives of fellows.

¨      The normal rule that gives the defendant a privilege to defend his property is suspended because of private necessity.

Vincent v. Lake Erie Transportation Co. – Private Necessity

Facts. The defendant moored his boat to the plaintiff’s dock. While unloading, a storm grew; the plaintiff argued it was imprudent for the defendant to tie the steamship to the exposed part of the dock. The winds caused the boat to damage the dock in the amount of $500.

Issue. Is the defendant, acting under the privilege of private necessity, liable for damages incurred to the plaintiff’s property?

Rule. Where the act is solely to prevent serious harm to a limited number of people, the defense is qualified, but the actor must pay for any injury he causes.

Reasoning. The fastening to the dock was reasonable because it would’ve been flung into the storm. It would have been unreasonable for the defendant to leave the dock, and its location was reasonable. The defendant is still liable for damages.

¨      Although the steamship was privileged because of the same necessity, the defendant is still liable for damages.

¨      Public Necessity:

o    Act of public official or a private citizen acting in public interest.

o    Trespass/damage to private property.

o    Under apparent necessity

o    Seeks to advance a public good/interest.

§  Not liable and doesn’t have to pay damages

¨      Private Necessity:

o    Act of private individual

o    Trespass/damage to private property

o    Under apparent necessity and

o    Seeks to protect private interest.

o    The defendant must pay for the damage.

§  Not liable, but pays damages

PART 3: THE PRIMA FACIE CASE FOR NEGLIGENCE

5. The Prima Facie Case for Negligence and the Element of Duty

Negligence: Harm caused by failure to exercise reasonable care.

a. Theory and Elements of Negligence.

            Elements:

(1) The defendant owed a duty of care to the plaintiff.

(2) The defendant’s conduct constituted a breach of that duty of care.

(3) There was actual harm or an injury to the plaintiff’s person or property.

(3) The defendant’s conduct was an actual cause of the plaintiff’s injury.

(4) The defendant’s conduct was a proximate cause of the plaintiff’s injury.

(duty) + (breach of duty) + (actual cause) + (proximate cause) + (injury)

(1) a breach of a duty of care owed to the plaintiff + (2) an injury that was caused thereby.

Duty of Care

·       Circumstances external to the actor.

o    Special Danger (Stewsrt v. Motts).

o    Emergency (Posas v. Horton).

·       Circumstances in the actor’s own characteristics

o    Physical limitations (Shepherd v. Gardner).

o    Mental capacity of the actor (Creasy v. Rusk; Hill v. Sparks) (Special ability, knowledge, experience).

o    The child standard of care (Stevens v. Veenstra).

Blyth v. Birmingham Water Works (1856)

Rule. Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something, which a prudent and reasonable man would not do.

b. The General Duty of Care: The Reasonable and Prudent Person ** see slide 19, Class 11.

·       The general standard is the reasonably prudent person under the same or similar circumstances.

o    An objective standard.

o    Legal fiction.

The reasonable and prudent person under the circumstances..

·       Circumstances external to the actor?

o    Special Danger (Stewart v. Motts)

§  The standard of care is constant even when danger is great.

o    Emergency (Posas v. Horton)

§  The existence of an emergency, presenting little time for reflection, may be considered as among the circumstances under which the defendant acted; he must act as the reasonably prudent person under the same emergency. The emergency may not be considered if it’s of the defendant’s own making.

·       Circumstances in the Actor’s Own Characteristics

o    Physical limitations (Shepherd v. Gardner)

§  Notwithstanding application of the objective standard, if physical characteristics are relevant to the claim, the “reasonable person” is considered to have the same physical characteristics as the defendant.

o    Mental capacity of the actor (Creasy v. Rusk; Hill v. Sparks (special ability, knowledge, experience)),

§  Defendant must act as would a person with average mental ability. Unlike the rule as to physical characteristics, individual mental disabilities are not considered. Mental infirmity is no excuse. Likewise, insanity is no defense, and the defendant is held to the standard of a reasonable person under the circumstances.

o    The child standard of care. (Stevens v. Veenstra)

§  A majority of courts take the view that a child is required to conform to the standard of care of a child of like age, intelligence, and experience.

§  Most courts, however, do not fix the age that a child can conform conduct to a standard of care.

§  Where a child engage is a potentially dangerous activity that is normally one that only adults engage in, most cases hold that he will be required to conform to the same standard of care as an adult in such an activity.

Stewart v. Motts – The RPP would use “more care” not a higher standard of care with dangerous items. (Duty of Care)

Facts. The plaintiff offered to help move the car with the gasoline tank unattached. The defendant turned the ignition key and an explosion occurred.

Issue. Did the defendant owe plaintiff a higher duty of care (“extraordinary care” because of the activity) than the reasonably prudent person standard?

Rule. The standard of care is always based on reasonableness, but the level of care expected depends on the risk involved. The greater the danger, the more care is required from the person acting.

Reasoning.

o    There is one standard: reasonable care under the circumstances. The amount of care changes in proportion to the activity.

¨      General view: standard of care remains the same, but the RPP must exercise a greater degree of care if the danger is greater.

¨      The minority view: if danger is greater, the standard itself is higher.

Differentiate duty & standard of care…

¨      When a defendant owes an obligation, it’s ordinarily the duty of reasonable care. The duty of reasonable care requires one to recognize risks or dangers a reasonable person would recognize and to act to minimize those risks in the way a RPP would act.

¨      To recognize a risk now is to foresee possible harm in the future, so the language of risk and the language of foreseeability deal with the same problem.

Posas v. Horton – An emergency may be considered, but the defendant must be acting as an RPP. (Duty of Care)

Facts. Posas was driving when a woman pushing a stroller crossed the street. Horton testified she was driving closely to Posas’ car and she rearended her.

Issue. Was the defendant exercising the care of a reasonably prudent person or was it of the defendant’s own making?

Rule. The existence of an emergency, presenting little time for reflection, may be considered among the “circumstances” under which the defendant acted. He must act as the reasonably prudent person would under the same emergency. The emergency may not be considered if it is of the defendant’s own making.

Reasoning. The defendant was following too close before the emergency, and they didn’t act like an RPP. This negates the “sudden emergency.”

¨      The standard of reasonable care “under the circumstances.”

¨      The emergency is one instance of “circumstances” in which an actor’s care is evaluated. The main idea is that everyone is ordinarily held to the same standard.

o    If the defendant does not use “due care,” the emergency doesn’t aid her.

¨      The standard is objective.

Emergency – Separate Instructions.

¨      If the emergency is merely one instance of “circumstances” in which an actor’s care is evaluated, then why have separate instructions?

o    Some courts are loose with the language.

o    Emergency instructions may be redundant, confusing, and prejudicial to plaintiffs because it can lead to a reduced duty of care.

¨      In a jurisdiction that allows emergency instructions, what constitutes an emergency becomes an issue.

o    It’s never an emergency if it’s a situation that is foreseeable or created by the party seeking the instruction.

Shepherd v. Gardner Wholesale, Inc. – The RPP takes physical disabilities of the actor into account, such as a plaintiff with the same disabilities. (Duty of Care)

Facts. Shepherd fell on a concrete slab. He had a vision impairment.

Rule. How an RPP with a similar infirmity would have behaved in the same or similar circumstances.

Positive effects of this Rule:

¨      One is not negligent merely because he is not physically up to any kind of average standard.

The Constraining effects of the rule:

¨      One is not free to disregard his disability; he must take it into account and avoid activities which, normal for most people, would be dangerous when performed by a person with such a disability.

NOTES.

¨      Old age: age is not taken into consideration, but physical limitations linked to age could be considered.

¨      Exceptional physical ability: superior physical abilities are presumably to be treated in the same way as disabilities: you must act reasonably and a reasonable person will act in the light of his own abilities taking into account extra precautions where that is required.

¨      Intoxication: the general rule is that an intoxicated person owes the same care as a sober person.

¨      Sudden incapacitation: one who unforeseeably loses consciousness and control while driving is not chargeable with negligence.

Creasy v. Rusk – The standard is objective even for individuals with diminished capacity. (Duty of Care)

Facts. Defendant was admitted into nursing home for Alzheimer’s and hit a nurse.

Issue. Does a defendant’s mental capacity factor into a duty of care?

Rule. In general, the standard of care for adults with mental disabilities is the same standard of reasonable care that governs adults without mental disabilities, with no allowance for their capacity to control or understand the consequences of their actions.

- Mental disability does not excuse a person from liability for conduct not conforming to ordinary care of a RPP under like circumstances.

                                    Reasoning.

·       Policy considerations exist to integrate persons with disabilities into the community.

·       People with mental disabilities are held to the same standard of care as a reasonable person under the same circumstances without regard to their capacity to control or understand the consequences of their actions.

·       The defendant isn’t liable because the plaintiff was employed to take care of patients known to be combative.

Hill v. Sparks – Special knowledge is considered when analyzing under the RPP. (Duty of Care)

Facts. Defendant was an experienced machine operator and instructed his sister to stand on the corner when he knew she should not.

Issue. Is the defendant’s special experience and knowledge considered under the RPP?

Rule. If the defendant has superior qualities, the defendant is required to exercise the superior qualities in a manner reasonable under the circumstances.

Reasoning. The defendant’s experience and knowledge is treated as a circumstance to be considered.

¨      Hill tells uis the actor’s special knowledge-experience can be considered in judging the sufficiency of the evidence.

¨      Here, his experience/knowledge is treated as a circumstance to be considered.

¨      The reasonable person will use all the knowledge and experience he has, not part of it.

¨      The court says that the jury can consider how a reasonable person would behave if he knew of the dangers known to the defendant.

Stevens v. Veenstra – “Learner” + Child standard of care. (Duty of Care)

Facts. The defendant was a 14-year old driver in a drivers education course. He struck the plaintiff.

Issue. Whether a minor operating a vehicle should be held to an adult standard of care or the standard of care for a reasonably careful minor.

Rule. A minor who engages in an adult activity that is dangerous, such as driving an automobile, is charged with the same standard of conduct as an adult.

Analysis.

·       The court rejects the argument that this was not really driving because it was an educational course.

·       Some activities are so dangerous that the risk must be borne by the beginner rather than innocent victims.

¨      The usual standard for children is that the child is held to the standard of care of a reasonably careful child of the same age, intelligence, and experience.

¨      Exception: RPP if the child is engaged in an inherently dangerous or adult activity.

¨      Examples of adult activities? Operating a snowmobile, a motor boat or firearms.

¨      The “rule of sevens”: the younger, the less likely they are capable of negligence.

c. Negligence Per Se: Using Safety-Related Rules for Duties

Rule – Negligence per se holds that an adult’s violation of a statute is negligence in and of itself if it causes harm of the kind the statute was intended to avoid and to a person within the class of persons the statute was intended to protect. In the absence of a valid excuse, the violation shows negligence.

·       Refers to the use of a statute or regulation to set the standard of care in negligence case.

(1) If a statute has been violated, and the negligence per se instruction has been granted, the standard of care becomes the regulation that was violated.

            (a) Martin v. Herzog – the statute sets for a specific and particular standard of conduct.

            (b) Smith v. Wells – negligence per se displaces the general standard of a reasonable person.

(2) Limitations on the use of safety-related rules in tort

(a) Limitations on use of the negligence per se rule class of persons and scope of risk rules (O’Guin v. Bingham County) Class of risk/class of persons test.

(b) What type of harm can be foreseen from breach of a statutory safety rule? (Goldstein, Garber & Salama, LLC v. J.B).

(c) Violation of some statutes may be excused where compliance would cause more danger than violation; or compliance would be beyond defendant’s control.

The standard of care. In a common law negligence case may be established with a statute. If this is done, a clearly stated specific duty imposed by the statute will replace the common law duty of due care. In proving the availability of the statutory standard, the plaintiff must show…

o    Plaintiff was within protected class.

o    Particular harm to be avoided.

Examined through…

            (1) Using safety-related rules from nontort contexts to speak to the tort negligence question.

                        (a) Legislative specification accepted as tort standard. (Martin v. Herzog).

                        (b) Negligence per se leading to a different outcome than negligence. (Smith v. Wells).

            (2) Limitations on the use of safety-related rules in tort.

                        (a) Limitations on use of the negligence per se rule class of persons and scope of risk                                        rules. (O’Guin v. Bingham County).

(b) What type of harm can be foreseen from breach of a statutory safety rule? (Goldstein, Garber & Salama, LLC v. J.B.).

(c) Limitations on use of the negligence per se rule – excuses. (Getchell v. Lodge).

                        Plaintiff must show…

                        (a) Plaintiff is in the class intended to be protected by the statute and

(b) Plaintiff must show the statute was designed to prevent the type of risks the plaintiff suffered.

Martin v. Herzog. – If defendant violates statute, it’s negligence per se.

Facts. The defendant was driving at night and crossed over the line and struck a buggy. The defendant was driving without lights.

Issue. Is the statute evidence of negligence or negligence itself?

Rule. The unexcused omission of the statutory signals is more than some evidence of negligence. It’s negligence in itself.

Analysis.

·       A statute serving as evidence of negligence allows the factfinder to disregard the evidence, which juries lack the power to do.

·       The underlying problem is to allocate decision-making power between judge and jury. The jury is to decide pure facts; it is also to make certain value judgments.

·       In contrast, the judge’s role is to declare the law and ensure decisions conform to that. Thus, judge and jury are institutional expressions of the conflict with which we began: rule of law versus adjudication of individual disputes.

·       When negligence per se is used, one effect is to limit the jury’s role; judges decide for themselves what the specific standard or duty requires.

Smith v. Wells.

Facts. The defendant was driving behind the plaintiff and rear ended the plaintiff’s car.

Issue. Was the standard of care established with the statute requiring drivers not to drive at a speed greater than a speed that would permit the driver to bring his vehicle to a stop within the assured clear distance?

Rule. Driving at a speed that prevents a driver from fully braking before striking a car, pedestrian, or other object violates the statute and gives rise to negligence per se.

Analysis.

·       The statute prohibits two forms of illegal driving; first, driving at any speed that’s unreasonable and imprudent, and second, drive at a speed that prevents a driver from fully braking before striking something.

·       The defendant drove at a speed that made it impossible for him to stop his vehicle within the assured clear distance ahead.

¨      Traffic accidents invariably include negligence per se.

¨      Smith shows what is at stake between negligence per se (lose) and the general standard (win under RPP).

¨      Some jurisdictions follow the rule that the statute is evidence of negligence, either generally or for particular statute violations.

o    Some jurisdictions: violation = evidence only.

o    Some jurisdictions: presumption of negligence (presumption can be rebutted).

¨      The type of statute are those that are non-tort statutes and silent with respect to liability.

¨      Where the statute in question provides for a civil remedy, plaintiff will sue directly under the statute (not common law negligence case).

¨      Where the statute provides for a civil remedy, plaintiff will sue directly under the statute (not a common law negligence case).

O’Guin v. Bingham County – Not every statute applies and it depends on the class-of-risk/class of persons

Facts. Children were walking home and they walked into an unlocked gate to get into a landfill. They were killed.

Issue. What was the duty or standard of care owed to plaintiff’s children established with negligence per se?

Rule. Negligence per se arises when statute is violated, the person injured by the violation is within the class of persons the statute was intended to protect, and the harm complained of was the harm the statute was intended to guard against.

Analysis.

·       In order to replace a common law duty of care with a duty of care from a statute or regulation, the following elements must be met:

o    The statute must clearly define required standard of conduct;

§  Defendant didn’t block the boundaries despite the rule requiring them to block access when an attendant isn’t on duty.

o    The statute must have intended to prevent type of harm defendant’s act or omission caused.

§  The statute ensured the protection of human health and human health includes safety from possible injury or death.

o    The plaintiff must be a member of the class of person’s the statute was designed to protect; and

§  The children were trespassers, but defendant had a responsibility to prevent access because the statute doesn’t differentiate between unauthorized and authorized persons. The required fencing to prevent access establishes the connection to protect unauthorized access.

o    The violation must have been the proximate cause of the injury.

§  Disputed Issue of fact whether violation caused death.

·       Held that the elements were satisfied and common law duty of care didn’t apply.

¨      Not every statute applies and it depends on the class of risk/class of persons.

¨      If the statute does not set the standard of care, the standard of care defaults back to the RPP.

Goldstein v. J.B. – The injury must be the kind of risk the statute was designed to address AND the plaintiff must be within the class of persons the statute was designed to protect.

Facts. The plaintiff visited for a dental procedure, but the independent contractor recorded himself molesting the plaintiff. The defendant didn’t have a permit to administer anesthesia.

Issue. Can you establish negligence per se related to sexual assaults based on violations of permitting requirements? Is the assault the type of harm the statute is intended to guard against?

Rule. Negligence per se arises when the person injured by the violation is (1) within the class of person the statute was intended to protect and (2) the harm complained of was the harm the statute was intended to guard against.

Reasoning.

·       The statute was to prevent harms that may arise in a dental setting from the improper use of anesthesia.

·       The court said the statute was to prevent medical injuries, not those suffered.

·       There was no evidence the defendant knew or should have known of this independent contractor’s prior assaults. So this hurt their argument for the standard duty of care of a reasonable person for a negligence claim.

Gretchell v. Lodge Violation of statutes may be excused a) where compliance would cause more danger than violation and b) where compliance would be beyond the defendant’s control.

Facts. The parties drove to work on the same highway. A moose stepped in front of the defendant’s car and caused it to spiral into the other lane, hitting the plaintiff’s car.

Issue. Did the defendant’s actions constitute negligence per se because they violated traffic rules prohibiting crossing the center lane into the opposite lane?

Rule. As in other cases of negligence, the violation of a traffic enactment or regulation will ordinarily be excused when the actor is confronted with an emergency that is not caused by her own misconduct.

·       A party can claim excuse if they acted reasonably.

Reasoning.

·       Defendant violated the statute that prohibited cross the midline of the highway.

·       The violation was excusable because defendant was confronted with an emergency when the moose crossed the highway.

·       Defendant only had about 3 seconds to decide; this means the defendant would have to perform at a higher level than the average driver.

¨      Violation of some statutes may be excused:

o    Where compliance would cause more danger than violation or

o    Where compliance would be beyond the defendant’s control.

¨      Even though the violation of an applicable statute may be negligence per se, compliance with it will not establish due care. Why? It may be found that there is negligence in not doing more than the statute requires.

¨      For defendants, compliance with a statute forms an incomplete argument.

¨      For plaintiffs, violation of a statute functions to end all arguments on the standard of care.

New Concept:

Class-of-Risk/Class-of-Person Test:

(1) Does the injury or accident being sued on represent the kind of risk that the statute or regulation was designed to address?

(2) Is the plaintiff within the class of persons the statute was designed to protect?

6. Breach of Duty

a. Determining Breach: Evidence may be offered to establish the standard by which defendant’s conduct is to be measured.

i. Intentional Torts

Brown v. Stiel. – Foreseeable risks. Cost/Benefit

Facts.

·       Stiel decided to build a building for its own use and chose a design with major steel structural components. Despite the forseeable risks, through statistics, Stiel chose steel over concrete because it was cheaper/quicker. There was a collapse of beams, injuring an employee and a delivery person.

Issue.

·       Did Stiel commit an intentional tort? Did Stiel take any unreasonable risks? Was Stiel negligent, considering the risks he took and the value of building such structures?

Reasoning.

·       Stiel built a building with knowledge the construction could injury people, but this is not an intentional tort. The certainty was statistical.

·       The limits to substantial certainty are “The applications of the substantial-certainty test should be limited to situations in which the defendant has knowledge to a substantial certainty that the conduct will bring about harm to a particular victim, or to someone within a small class of potential victims within a localized area.”

ii. Foreseeability of Harm as a Prerequisite to Breach

Pipher v. Parsell – Negligence is conduct that creates unreasonable risks, and one main component is whether a reasonable person would foresee that harm might result from his actions. If something has happened before, foreseeability is automatically an issue.

Facts.

The plaintiff, defendant and a friend were in the defendant’s truct when another passenger unexpectedly grabbed the steering wheel. After the friend’s first attempt to grab the steering wheel, he did it again and caused the truck to strike a tree.

Issue. Did the defendant breach the duty of care by not responding to a foreseeable danger?

Rule.

When the actions of a passenger that cause an accident are not foreseeable, there is no negligence attributable to the driver, but when the actions of a passenger that interfere with the driver’s safe operation of his vehicle are foreseeable, the failure to prevent such conduct may be a breach of the driver’s duty to other passengers or the public.

·       Where actions of a passenger that interfere with the driver’s safe operation of the motor vehicle are foreseeable, the failure to prevent such conduct may be a breach of the driver’s duty.

Reasoning.

The defendant could have prevented the friend from grabbing the steering wheel by warning the friend not to grab the wheel, pulling over and telling him to get in the back seat, or threatening to kick the friend out of the car.

·       The defendant was on notice after the friend grabbed the steering wheel the first time. The defendant breached the duty of care by not preventing him from grabbing the steering wheel.

¨      Foreseeability of harm is a prerequisite for breach. Foreseeability means probability, sufficiently high and severe enough that ordinary care would require precaution. If something has happened before, foreseeability is automatically an issue.

¨      A breach of duty is conduct which falls below the standard of care for the protection of others against unreasonable risks of harm.

¨      When is risk unreasonable? When the foreseeable probability and gravity of the harm outweigh the burden to the defendant of alternative conduct that would have prevented the harm.

iii. The Role of Judge and Jury: Reframing the question of duty creates problems deciding the breach question.

Limones v. School District of Lee County – The RPP looks at what resources are available.

Facts.

The plaintiff collapsed during a high school game, and the coach yelled for an AED after he stopped breathing. The AED was never brought, and emergency responders revived the plaintiff 26 minutes after the collapse.

Reasoning.

The defendant had a duty to diagnose the need for the AED and use the AED. He did not use it, so breach of duty was established. The question changed from reasonable care to duty to use the AED.

b. Unstructured Weighing of Risks and Costs

Indiana Consol. Ins. Co. v. Mathew- Weighing risks and utilities in determine the conduct of a reasonable and prudent person. (low risk, high utilities)

Facts. The defendant was going to mow his brother’s lawn and went to get the mower out of the garage. He filled the mower with gas and went home. He returned and started the mower, but noticed a flame in the engine and shut it off. He couldn’t put the fire out and called the fire department. The house burned down.

Issue. Did the defendant exercise the duty of care than a reasonable and prudent person would exercise under the same or similar circumstances?

-        Whether the defendant negligently filled the gas tank?

-        Whether the defendant negligently started the mower in the enclosed area consisting of the garage?

-        Whether the defendant was negligent when he failed to push the mower out of the garage?

Rule. The standard by which defendant’s conduct is to be measured is whether he exercised the duty to use due care in operating the mower that an ordinary prudent man would exercise under the same or similar circumstances.

Reasoning. This is not an emergency doctrine case because the actor made the right choice, given the harm that could have resulted if he pushed the lawnmower.

The defendant wasn’t negligent in filling the gas tank. (no proof any was spilled).

The defendant did not negligently start the lawn mower. (The garage was suited to starting mowers/cars. The fire was unforeseeable).

The defendant was not negligent when he failed to push it outside of the garage. (He was afraid for his safety in moving it; Pushing while on fire involved a risk of harm).

Stinnett v. Buchele – An employer can only eliminate the risks they’re aware of; by hiring someone, the risks of an activity shift to the agent and implies the employer did not want to take those risks. (low risk in light of plaintiff’s ability to protect himself).

Facts. The plaintiff was hired to repair a roof on the barn. The plaintiff fell and claimed the defendant was negligent for not providing safety nets or belts.

Issue. Was the defendant negligent in failing to keep the plaintiff safe during the repairs?

Rule. The standard is the care exercised by prudent employers in similar circumstances. An employer does not breach their duty when the employee’s knowledge of the dangers to be incurred is equal to that of the employer.

·       The standard is the care exercised by prudent employers in similar circumstances.

·       The liability of the employer rests upon the assumption that the employer has a better and more comprehensive knowledge than the employees, and ceases to be applicable where the employees’ means of knowledge of the dangers to be incurred is equal to that of the employer.

Reasoning. While an employer has a duty to provide a reasonable, safe work place, the duty doesn’t extend to the impossible duty of providing an absolutely safe workplace and tools. The plaintiff did not ask for safety devices before, and the defendant was not present and did not know the plaintiff was to repair the roof on that particular day. Did the defendant have reason to believe the plaintiff would protect himself? Yes, so breach was not an issue.

Bernier v. Boston Edison Co. (costs of safety in dollars and in other risks).

Facts. The plaintiffs left the icecream parlor, and the defendant attempted to take a right turn. The defendant lost control of the car and struck down a light pole, which then hit the plaintiffs.

Issue. Should Boston Edison be liable for negligently designing poles that could foreseeably fall and injure pedestrians in the event of a collision?

Rule. The burden to prevent the harm depends on the magnitude of the harm and the probability of harm.

·       Failure to take reasonable steps to prevent unreasonable risk of injury from reasonably foreseeable accidents is a breach of duty.

Reasoning. The risk of vehicles colliding was well known based on repairs. Defendant did not take precautions in the design to guard against the risk of injury through collapse on impact by a vehicle. Based on the injuries being serious, the likelihood of accidents can be low and still warrant safety features. Experts generally testified the poles lacked ability to absorb impact, and they created an unacceptable risk of grave injury to persons.

¨      The probability of harm: Boston Edison knew collisions were common. They had trucks to replaced thousands of knocked down poles.

¨      The severity of harm: serious injury to pedestrians and property when they fall.

¨      The burden to prevent the harm: the cost to have stronger or safer poles was %7.75 and $17.50 per pole.

c. Structured Weighing or Risks and Utility.

The risk-utility balance. (United States v. Carroll Towing Co.)

United States v. Carroll Towing Co. – When the burden of preventing harm is less than the probability of harm, it’s a breach of duty. B<PL.The risk-utility formula / Hand Rule.

Facts. The Anna C. was being tugged by Carroll Towing Co and was then carried away and sunk. There was no bargee on Anna C.

Issue. Was the absence of a bargee a breach of the duty of care?

Rule. Absence a reasonable excuse, the barge owner’s failure to take reasonable steps to prevent unreasonable risk of barge breaking away in busy wartime harbor by manning barge with bargee is a breach of duty.

·       If B<PL, and certain precaution is not taken, the duty of care is breached. Low probability of harms should not require substantial investments in precaution.

Reasoning. The circumstances can determine a breach. The bargee had been gone for 21 hours.

Duty is a function of the probability of harm, magnitude of harm and burden of adequate protection.

¨      B = Burden. Measured in dollars / how much the defendant must spend to undertake the precaution.

¨      P = Probability. 0-1. The likelihood that the preventable accident comes to pass.

¨      L = Loss (injury). Measured in dollars. How much the plaintiffs stand to lose if the preventable accident comes to pass.

¨      Multiplied together, the P & L represent the total amount of risk. If B is greater than PL, the defendant is not negligent.

¨      This formula is a cost-benefit analysis. It tightens how risk and utilities should be weighed against one another. It describes how factors are to be weighed.

¨      The RPP would always spend less money.

¨      Alternatives to the hand formula? When juries can intuitively identify what is negligence, but the rule provides a framework for juries to decide a breach of duty. Treating others as you would treat yourself. Custom or community standards.

¨      Unstructured and Structured Weighing of risks and costs.

o    Risk-Utility Balance. Low probability harms should not require substantial investments in precaution and high probability harms should require reasonable investments in precaution.

d. Assessing Responsibility when More than One Person is Negligent

Comparative Fault. (Plaintiff v. Defendant).

·       A plaintiff can recover damages reduced by their share of fault or loss.

Apportionment. (Defendant v. Defendant).

·       Each defendant pays their share.

Joint and Several Liability. (Defendant v. Defendant).

·       You can enforce the entire amount of the judgment against either defendant. The defendant can obtain contribution from co-defendant.

e. Proving and Evaluating Conduct.

·       Sufficiency of proof- the requirement of specific conduct. (Santiago v. First Student, Inc.).

·       Plaintiff must show the defendant’s specific conduct in order to compare the utility of defendant’s conduct with alternative safer conduct.

Santiago v. First Student, Inc. – The burden of establishing the elements (evidence) for a claim, to the preponderance of a doubt, is on the plaintiff.

Facts.    The plaintiff alleged the defendant drove a school bus into intersection and hit a car. The plaintiff could not remember any of the facts of the collision, and there were no police reports or bus damage to prove their claim.

Issue.    Did the plaintiff’s allegations permit a finding of negligence?

Reasoning.

·       The plaintiff had not met their burden of proof and could not establish a breach of duty for the bus driver.

·       With no evidence to determine the defendant was at fault, there could be no breach of duty. (Can’t decide what the driver should have done differently).

·       Injury alone does not establish a breach.

·       Would need to have witness testimonies, bus damage, and bus routes.

¨      A plaintiff bears the burden of proving defendant’s actions satisfied the elements of negligence claim.

¨      The trier of fact can’t determine whether a defendant breached a duty of care without any evidence.

¨      You need to show the defendant’s specific conduct. General fact don’t work. Specific conduct allows you to weigh whether the actions were reasonable. Specific conduct allows you to weigh whether the actions were reasonable.

Conflicting Testimony.

1. Difficulty in obtaining accurate statements of facts. Witnesses, parties and non-parties alike, frequently give contradictory versions of events. Sometimes they contradict themselves. Contradictions may occur even where all witnesses are honest; memory can be poor.

2. How the law handles contradictory testimony. When witnesses contradict each other, and even when one witness contradicts himself, the jury or other trier or fact determines which testimony to believe. This credibility is generally a jury question.

3. Uncontradicted evidence. Even if the plaintiff puts on uncontradicted evidence in her own favor, the jury might disbelieve her witness and return a verdict for a defendant. In rare cases, courts hold that the plaintiff’s uncontradicted evidence in a particular case is so overwhelming, consistent, and clear.

Facts can get muddled… The trier of fact (jury) determines what testimony is credible.

1. Exposure time

2. Frequency

3. Detail salience (tendency of some details to stand out in complex events, and the tendency of others to become submerged).

4. Type of fact (showing a constant tendency to overestimate time, a critical feature in legal reconstruction of a sudden event).

5. Violence of the even

f. Evaluating Conduct through Notice and Opportunity to Cure

Forsyth v. Joseph – Circumstantial Evidence

Facts. A person was sitting in a car that was hit by a truck. Physical facts, like skid marks and post-impact travel, allowed for the inference the defendant was speeding.

Direct Evidence: direct proof of a fact, such as the testimony of an eyewitness.

Circumstantial Evidence: proof of one or more facts from which you could find another fact.

g. Evaluation in light of notice of risk. (Renner v. Retzer Resources, Inc.)

·       Evaluating conduct through notice and opportunity to cure.

Renner v. Retzer Resources, Inc. – Actual Knowledge – Evaluation considering notice of risk.

Facts. The plaintiff fell over a high chair at a McDonalds. The plaintiff heard an employee ask what the highchair was doing there and asked to move it. According to a witness, the chairs were a “big hazard.”

Rule. A plaintiff must show that the defendant had actual knowledge of a dangerous condition and failed to warn the plaintiff.

In a trip-and-fall case, a plaintiff must show..

            1. Breach of duty that caused the plaintiff’s injury

2. The defendant had actual knowledge of a dangerous condition and failed to warn the plaintiff, or

3. The dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the defendant, in that the defendant should have known of the dangerous conditions.

Issue. Could the trier of fact determine a breach of duty based on the defendant’s failure to warn the plaintiff of the highchair despite defendant’s actual knowledge (or constructive knowledge) of the highchair?

Reasoning.

·       The plaintiff offered the testimony of the witness who testified the legs of the highchair protrude and are obscured from view behind the highwall.

·       Witness testified she alerted employees about the highchairs.

·       Witness testified she had seen customers bump into or kick the highchairs.

Evaluating conduct through notice and opportunity to cure.

¨      (a) The defendant negligently creates the dangerous condition or an unreasonable risk of it; as where a waiter spills sauce on the floor.

¨      (b) A condition of hazard is created by someone, by dropping a substance on the floor for example, and the defendant discovered or should have discovered the condition but failed to take reasonable steps to prevent injury from that condition; or

¨      (c) The defendant’s mode or method of business made it foreseeable that others would create a dangerous condition, and the defendant failed to take reasonable measures to discover and remove it

h. Violation of Private Standard or Common Custom

Private Standards:  defendant’s internal rules, procedures or past practices cannot generally be used as a shield for the defendant, those internal rules may be admitted on behalf of the plaintiff to show that the defendant who was under a duty to exercise reasonable care recognized the danger and that customary conduct represented a means of reducing it

Common Custom: Custom can help the jury determine whether, given a duty to use reasonable care, conduct counts as “negligence.”

i. The Actor’s Own Standard

·       Evidence assist evaluation: defendant’s own rules. (Wal-Mart Stores v. Wright)

Wal-Mart Stores, Inc. v. Wright – An RPP may do less/more than what a manual/private custom calls for.

Facts. A woman slipped in the garden section of a Walmart and used the Walmart employee manual as evidence for a breach of duty.

Rule. Failure to follow a party’s own policies, rules, or practices does not establish a breach of the duty of care.

·       Failure to follow a party’s precautionary steps or procedures is not necessarily failure to exercise ordinary care and it cannot establish a breach of the duty of care.

Issue. The trial court said plaintiff can use the Store Manual as evidence showing breach of duty. Trier of fact could decide negligence based on violations of its rules, policies, practices and procedures.

Reasoning.

·       The store manual may be linked to other considerations such as cleanliness and customer attraction.

·       An actor cannot set the duty or standard of care.

¨      Rules and policies can’t establish the standard of care, but the rules and policies can be used to determine if there was a breach of duty. We can compare the “general” rules and policies to those of similar practice to establish the standard of care.

¨      While the defendant’s internal rules, procedures or past practices can generally be used a shield for the defendant, those internal rules may be admitted on behalf of the plaintiff to show that the defendant who was under a duty to exercise reasonable care recognized the danger, and that customary conduct represented a means of reducing it.

¨      The defendant’s internal rules, such as a “store manual” may even be introduced as evidence of negligence because they bear on care that a reasonable person would provide.

¨      Such rules do not themselves ordinarily count as the standard of care.

ii. Custom

·       Evidence to assist evaluation: custom of the industry. (Duncan v. Corbetta)

·       Custom may be introduced to establish a breach of duty. However, customary methods of conduct don’t conclusively control the question of whether defendant breach the duty of care.

Duncan v. Corbetta – Custom may establish a standard/breach of duty.

Facts. A plaintiff was injured when he began to descend a wooden stairway.

Issue. May the trier of fact consider specific conduct established through custom that’s not required by an ordinance or statute?

Rule. A defendant who complies with all safety requirements of a statute or ordinance might still be negligent if he failed to follow a custom in the industry.

·       Evidence that defendant violated a custom of a specific industry or community is usually sufficient to get the plaintiff to the trier of facts.

Reasoning. Custom tends to establish what would be reasonable under the circumstances.

¨      Custom proves…

o    Harm was probable

o    Defendant should have known of the risk

o    The risk was unreasonable unless the customary precaution is taken

o    That a safety precaution was easy to implement

¨      When custom requires greater care than is required by statute, custom is presumably admissible on the issue of negligence because the statutory standard is usually a minimum, not a maximum. (Floor, not a ceiling).

The T.J. Hooper – Custom as a shield. Evidence to assist evaluation: custom of the industry.

Custom does not set the standard of care. Ignoring compliance with custom when the RPP would take safer precautions.

Rule.     Certain customs that disregard precautions do not establish that a party was not at fault and therefore not negligent for breach of duty.

o    Certain customs that disregard precautions do not establish that a party was not at fault and therefore not negligent for breach of duty.

Facts.    Barges were being towed, and the tugboats were lost in a windstorm. The tugboats did not have a radio that would have warned them about the weather.

Issue.    Does the absence of a custom negate a breach of duty?

Reasoning.

·       Courts will have the final say in what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.

·       The evidence that nobody used radios does not establish that there was not a breach of duty.

·       Had the tugs been properly equipped, they would have gotten reports about the weather and taken shelter.

·       Evidence of custom may be introduced but the jury is not bound to believe that the custom does not establish breach of duty.

·       Receiving sets could be purchased at a small cost and were “cheap.”

i. Compliance with Statute

Compliance with a statute does not show freedom of negligence. The statute is a minimum standard; it says nothing about whether the defendant should have exercise more care under the circumstances.

Effect of Compliance with statute.

·       By introducing evidence that several incidents had happened before, this may persuade a jury that due care was not held, even if the defendant presents the statute to argue the standard of the statute was met.

Miller v. Warren – The duty of care may exceed what is set in statute. The defendant may be required to exercise more care under the circumstances.

            Rule.     Compliance with a statute is evidence but not conclusive evidence of a breach of duty. A statute sets a floor not a ceiling.

            Facts.    Plaintiff was burned in their motel room. The fire code did not require smoke alarms, but the plaintiff alleged that they should have had smoke alarms.

            Issue.    Does compliance with a statute establish due care (duty)?

            Reasoning.

·       If the defendant knew or should have known about some risk that would be prevented by reasonable measures not required by a statute, ordinance, or regulation, they were negligent if they did not adopt the measures.

i. Unspecified Negligence: Res Ipsa Loquitur

“The thing speaks for itself.”

Question: When should the trier of fact be permitted to infer that a defendant was negligent, even without direct or circumstantial evidence of the nature of the negligence?

Rule.     The two general requirements are that the precursor to the accident was…

(1) Likely negligence (accident does not occur without negligence and a breach of the duty of care).

(2) Likely conduct of the defendant.

Comparison.

·       Santiago – need to show the defendant’s specific conduct to weigh whether the actions were reasonable.

·       Forsyth – physical facts permit an inference that the defendant was speeding.

i. Origins

Byrne v. Boadle – Introduction to Res Ipsa Loquitur – The mere fact of the accident occurring may be evidence of negligence. Presumption/Inference.

Rule.     The mere fact of the accident occurring may be evidence of negligence.

Facts.    A barrel of flour fell out of a warehouse onto the plaintiff.

Issue.    May a jury find that the defendant was negligent when there is no evidence or specific conduct about the way the defendant was negligent other than the accident?

Reasoning.

·       A barrel could not roll out without some negligence.

·       There is no reason to call witnesses from the warehouse.

·       There must be a rule that a presumption of negligence can arise from the fact of an accident because there is a duty that barrels in a warehouse should be taken care of to ensure that they do not roll out.

¨      Res Ipsa differs from circumstantial evidence because the plaintiff can get to the jury without identifying any conduct that should have been carried out safely.

¨      Res Ipsa cannot apply unless it can be said that negligence is more likely than not the explanation for the injury.

ii. Is Negligence More Probable than Not?

Koch & Cosgrove – Element (1) of Res Ipsa. How and when can you infer unspecified fault?

Attempting to estimate probability that negligence is a reasonably probable explanation when an electrical line falls and a fire follows. Res Ipsa is weak when there are multiple defendants.

Facts.    Electrical line falls and a fire follows. Koch. Plaintiff sues the electric company. Cosgrove. Plaintiff sues the electric and gas company.

Issue.    When does Res Ipsa apply?

Holding. In Koch, res ipsa applied. Power lines falling means power lines were negligently constructed or maintained. In Cosgrove, res ipsa does not apply to the electric company. The court agrees that power lines falling may be caused by other forces, besides negligence.

iii. Attributing Fault to the Defendant Rather than Others

Giles v. City of New Haven – Putative control rule. The defendant, and not others, was at fault. Attributing the fault to the defendant rather than others. The plaintiff must show (1) the plaintiff is excluded of her own fault and (2) the defendant was in exclusive control of the harm-causing instrumentality.

Rule.     The defendant’s negligence must be more probable than not the cause of the plaintiff’s injuries to provide the basis for an inference that defendant should be properly charged.

·       If the jury could find that defendant’s control was sufficient to warrant an inference that defendant was more likely responsible for the incident that someone else, then res ipsa applies.

Facts.    The plaintiff was in an elevator that was regularly maintained by the defendant. The defendant tried to argue at the time of the accident, they did not have exclusive control.

Issue.    Was the defendant in exclusive control of the elevator?

Analysis.

·       It is the “right or power of control, and the opportunity to exercise it” that is sufficient, and that plaintiff’s use of some instrumentality does not mean that it is outside of defendant’s “exclusive control.”

New Rules of Res Ipsa: *** ANALYSIS OF RES IPSA IN CLASS 17 POWERPOINT!

¨      (1) The plaintiff must exclude her own fault

¨      (2) the plaintiff must show the defendant was in exclusive control of the harm-causing instrumentality.

¨      Some jurisdictions require proof that the instrumentality was in the defendant’s exclusive control; most jurisdictions only require that it was likely the defendant’s conduct. Further, some jurisdictions don’t allow res ipsa if it’s a public instrumentality.

¨      Ultimate counterargument to Res Ipsa: “It wasn’t me.”

7. Actual Harm and Factual Cause

a. Actual Harm. You need an “actual” injury. Legally cognizable harm is the thing that must be caused in fact.

·       Damages for harm or injury is an essential element of plaintiff’s prima facie case for negligence.

·       There must be a connection between actual harm and factual cause.

·       Nominal damages are not available in negligence; some proof of harm must be offered.

What damages are recoverable? Compensatory damages components.

Upon proper proof, a plaintiff is entitled to compensation for…

(1) Lost wages and lost earning capacity

(2) Medical expenses

(3) Pain and suffering endured, including mental or emotional pain, and

(4) Any special or particularized damages that do not fit neatly within the other categories.

For a negligence claim, physical harm can mean either the physical impairment of the human body, or of real property, or tangible personal property.

Who determines physical harm? A Question of law or the judge, for determining whether the harm or injury constitutes a legally cognizable harm.

Right v. Breen – Proof of actual damages is required to support a negligence cause of action.

Rule.     Proof of actual harm (damages) is a necessary element for a negligence claim.

Facts.    While at a red light, the defendant struck the plaintiff’s vehicle. There was no injury. Trial court awarded the plaintiff $1 in nominal damages/attorney’s fees.

Issue.    Do nominal damages fulfill the requirement of actual harm for purposes of claim based on negligence?

Analysis.

·       Unlike intentional torts, a negligence claim cannot rely on nominal damages.

Berry v. City of Chicago. – A risk of harm does not uphold as “harm” required for a negligence claim.

Facts.    The city failed to warn residents of the risk of lead exposure, and the plaintiff argued that the increased risk of harm satisfied the actual harm element for a negligence claim.

Reasoning.

·       Actual harm supports compensation.

·       Risk does not result in actual harm, and mere risk can’t be an actionable tort.

·       If the risks taken end up being unreasonable and result in harm, risk taking can be good.

b. Factual Cause. Conduct must be a cause in fact of the injury.

There must be a connection between actual harm and factual cause.

·       The plaintiff must prove that they suffered both legally cognizable harm and the harm was factually caused by the defendant.

Terminology…

·       “Actual causation” – but-for causation, causation-in-fact, factual causation and direct causation.

·       But-For Test: An act is the cause in fact of an injury when the injury would not have occurred but for the act. “But for the defendant’s breach of the duty of care, would the injury have occurred?”

o    “But for defendant’s (BREACH), plaintiff wouldn’t have suffered (ACTUAL HARM).”

o    If the injury would have happened anyways, the plaintiff has failed the but for test.

i. The But-For Test of Causation

Ziniti v. New England Central Railroad, Inc. – The “But-For” test.

Rule.     But-for causation requires a showing that the harm would not have occurred but for the defendant’s conduct such that the tortious conduct was a necessary condition for the occurrence of the plaintiff’s harm. Evidence, not speculation, is needed for factual cause.

Facts.    The plaintiff was in his car and struck by a train. There was a crossbuck sign on the left side and no advanced warning on either side.

Issue.    Whether the defendant’s failure to have the right-side crossbuck and additional warning signs was a factual cause of his harm.

Analysis.

·       Having additional signs would not have prevented the harm. An advanced warning sign would not have provided additional notice of the railroad crossing.

·       The accident would have occurred anyways.

ii. Multiple Causes and Apportionment

Divisible and Indivisible Injuries.

·       Causal Apportionment: When two or more tortfeasors cause divisible harms to the plaintiff, most authorities agree that causal apportionment should be employed. May also be required when the plaintiff suffers a single injury rather than distinct harms but the single injury is capable of being apportioned in some rational way.

·       Fault Apportionment: When a plaintiff has suffered a single, indivisible injury at the hands of two or more tortfeasors and the loss can’t be reasonably allocated by causal measures between the two. Loss is allocated based on percentages of fault. Because both defendants are factual causes, a jury would be ask to apportion liability by assigning a percentage of fault or responsibility to each defendant.

iii. Problems with the But-For Test

Landers v. East Texas Salt Water Disposal Co. – Problems with the “But-For” test and an “indivisible injury.” Defendants who cause an indivisible injury are joint and severally liable.

Rule.     When two or more wrongdoers produce an indivisible injury, all of the wrongdoers will be held jointly and severally liable for the entire damage and injury.

Facts.    Defendant owned a lake and two defendants committed separate acts that killed the fish in the lake.

Reasoning.

·       The but-for rule makes it impossible to hold a specific wrongdoer possible if the action would’ve occurred another.

·       The court can’t ID which defendant is responsible for specific harms.

·       Would the plaintiff’s fish have been uninjured but for the actions of 1 defendant?

·       A strict application of the but-for test prohibits liability against either defendant because either negligent act alone could have killed the fish.

¨      Where each of multiple discrete events, not committed by the same actor, would have been sufficient each in itself to cause harm, then each act is deemed an actual cause, despite not being a but-for cause.

¨      A defendant should be able to introduce evidence to prove that the defendant did not factually cause all of the plaintiff’s harm.

¨      When two or more tortfeasors are but for causes of a single, indivisible injury, causal apportionment is impossible – that’s what it means to say the injury is indivisible. We have to use joint and several liability or proportionate fault liability.

¨      The defendant should not be liable for the full injuries, only for the aggravation of those injuries. Thus, if joint and several liability applied, the original tortfeasor would be liable for the entire harm; the doctor would be liable only for the aggravation – but liability for that latter portion would be joint.

¨      A company is liable for its employee’s actions.

¨      Twin Fires Doctrine: Where each of multiple events, not committed by the same actor, would have been sufficient each in itself to cause the harm, then each act is deemed an actual cause, despite not being a but-for cause.

iv. Alternatives to the But-For Test

Lasley v. Combined Transport, Inc. – Alternatives to the But-For Test: Substantial Factor Test

Rule.     Cause in fact can include determining whether someone would conclude that the faulty conduct or condition played a role in its occurrence.

Facts.    A pane of glass dropped on the highway. The plaintiff was hit and killed by a drunk driver in traffic. The truck with the glass was 22% at fault and the driver was 78% at fault.

Issue.    Does the substantial factor test permit the trier of fact to consider the degree of the driver’s conduct in causing the harm to relieve the truck of liability?

Analysis.          

·       The court rejected the first defendant’s argument that the substantial factor test is a relative test that relieves the defendant of liability because its conduct had an insignificant role comparatively.

·       Both defendants were substantial factors in contributing to the injury.

·       The defendant confused causation and negligence.

·       Intoxication evidence is relevant to apportionment but not causation.

·       All defendants who are substantial factors in the harm are factual causes.

¨      Substantial Factor Test: Where several causes commingle and bring about an injury – and any one alone would have been sufficient to cause the injury – it is sufficient if the defendantt’s conduct was a “substantial factor” in causing the injury.

¨      Was defendant’s breach a substantial factor causing the harm suffered? If it was, defendant will be held liable unless defendant raises sufficient defense.

v. Proof: What Harm Was Caused?

Summers v. Tice – Who Caused? What was Caused? Allows the plaintiff a presumption that each of the multiple actors is an actual cause; thus, the burden of proof is shifted, leaving it to the defendants to disprove causation on an individual basis. Burden Shifting doctrine when there are unascertainable causes.

Facts.    Two hunters shot the victim. Couldn’t tell which hunter caused the two pieces of harm.

Rule.     Where two or more defendants are negligent but only one could have caused the harm to an injured plaintiff, the defendants are jointly and severally liable even absent proof as to which one factually caused the injury.

o    If the plaintiff proves that harm has been caused to the plaintiff by the defendants, but there is uncertainty as to which defendant, the burden of proof shifts to the defendants, and each must show that defendant’s negligence is not the factual cause of the actual harm.

Issue.    Can two or more persons be liable if two or more persons have been negligent but uncertainty exists as to which one caused plaintiff’s injury?

Reasoning.

·       Each defendant should be liable for the resulting injury despite not knowing which defendant actually shot the plaintiff.

·       Both are in the wrong, so both should figure it out.

·       Joint and several liability applies if the defendants can’t figure out who caused the injury.

¨      A problem of causation exists where two or more persons have been negligence, but uncertainty exists as to which one caused the plaintiff’s injury.

¨      Under the unascertainable causes approach, plaintiff must prove that harm has been caused to him by one of them.

¨      The burden of proof then shifts to defendants, and each must show that his negligence is not the actual cause.

Concurrent causation

When a harm has two causes, either of which would have been sufficient to

cause the harm, unless defendants prove otherwise, the defendants are liable

(Landers/substantial factor test/twin-fires doctrine)

Successive or preemptive “causation” (not really causation)

In rare circumstances, courts may peer into a plaintiff’s alternate future to limit

defendant’s damages (Dillon, victim about to drink the poisoned tea in Dobbs 251

Note 5, & blowing up the house before the fire destroys the house)

Alternative “cause” (not really causation)

When the plaintiff cannot prove the liability between two (or more) independent

tortfeasors, burden shifts to the tortfeasors to prove that the actions were not

the factual cause of the harm (Summers v. Tice & Note 1 after Summers)

8. Scope of Liability (Proximate Cause)

a. The Principle: Scope of Risk

·       Liability is limited to the Type of Injury

The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts.

o    If one of the reasons that make a defendant’s act a breach of the duty of care is a greater risk of a particular harmful result occurring, and that harmful result does occur, defendant is generally liable. This has aspects of foreseeability.

o    Is the defendant not liable for practicality, policy, moral reasons, fairness, justice, etc.?

Thompson v. Kacinski – An actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious; a defendant is not liable for all harm factually caused by the actor’s conduct.

Facts.          Defendants took apart a trampoline and it flew into the road after a storm.

Issue.          Was the risk of trampoline parts flying from the yard onto the surface of the road foreseeable and thus a proximate cause of plaintiff’s injuries?

Rule.           The foreseeability or scope of risk rule means two different things. (a) You are not liable for harms that are not foreseeable in general; and (b) you are not liable for foreseeable harms that a reasonable person would not have taken precautions to avoid.

Analysis.    

·       Burden is on the plaintiff to prove cause in fact and legal cause.

·       Scope of liability is fact-intensive.

·       A hunter is not liable for a child’s broken toe when the hunter gives the child a shotgun and the child drops the gun on their foot and breaks their toe.

·       If the trial court is going to decide the question, the court must consider all of the harms risked by the conduct that a jury could find, and then compare the plaintiff’s harm within the range of harms risked by the defendant.

·       This type of rule is flexible and it appeals to, and incorporates, ideas of fairness.

Foreseeability in the duty and breach context is much broader—could some harm of some type to some person be foreseen

The foreseeability question in proximate cause is much narrower— could the type of harm that happened to this class of plaintiffs be foreseen

Whether the conduct foreseeably risks some type of harm v. whether the conduct foreseeably risked the type of harm that happened

• Risks v. risked

Abrams v. City of Chicago – The actor’s breach must result in the kind of harm that is foreseeable to satisfy proximate cause.

Facts.    Plaintiff sued the city for not sending an ambulance when in labor, resulting in her baby’s death from a drunk driver.

Issue.    Scope of Liability: what is the scope of risk? Was the risk that she would speed to the hospital because of the lack of an ambulance?

Analysis.

·       ID the risks: the core unreasonable risks would be medical risks of birth without medical attention.

·       The defendant couldn’t anticipate refusing to send an ambulance would result in a plaintiff’s harm caused by a driver speeding and crashing into the plaintiff while the plaintiff was the passenger in a vehicle that was crossing a redlight.

¨      An issue on the scope of liability is a question for the jury.

b. Assessing the Scope of the Risk

i. Is Harm Outside the Scope of the Risk Because of the Manner in Which it Occurs?

ii. Is Harm Outside the Scope of the Risk Because Its Extent Is Unforeseeable?

c. Intervening Causes

i. Intentional or Criminal Intervening Acts

ii. Negligent Intervening Acts

PART 4: DEFENSES TO THE NEGLIGENCE CASE

9. Fault of the Plaintiff

a. Contributory Negligence: The Common Law Rule

b. Adopting Comparative Fault Rules

c. Applying Comparative Fault Rules

i. Apportioning Fault

ii. Apportioning Responsibility

d. All-or-Nothing Judgments after Comparative Fault

e. Allocating Full Responsibility to the Defendant

f. Traditional Exceptions to the Contributory Negligence Bar

i. The Rescue Doctrine

ii. Last Clear Chance or Discovered Peril

iii. Defendant’s Illegal Activity

iv. Plaintiff’s Illegal Activity

10. Assumption of Risk×

a. Express Assumption of Risk (Contractual) ×

b. Primary Implied Assumption of Risk×

c. Secondary Implied Assumption of Risk×

11. Defenses Not on the Merits°

a. Statute of Limitations and Repose°

i. Statute of Limitations°

ii. Statute of Repose°

b. Federal Preemption°

PART 5: LIMITING OR EXPANDING THE DUTY OF CARE°

12. Carriers, Host-Drivers and Landowners°

a. Carriers and Host-Drivers°

b. Landowners’ Duties to Entrants°

c. Landowners’ Duties to Tenants°

d. The Firefighter’s Rule°

Important Sub-Topics.

Extended Liability Principle. The defendant who commits an intentional tort is liable for all damages caused, not merely those intended or foreseeable. “Take the plaintiff as is.”                See Transferred Intent. 08/27.

Civil Conspiracy. A case in which battery is conflicted through another person.           See Contact. 08/27.

Purposeful Infliction. Essentially battery without contact. The actor purposely causes bodily harm to the other by their conduct or failure to prevent bodily harm when it has a duty to prevent such harm, and the other doesn’t consent to the tortious conduct.                                                                        See Contact. 08/27.

Breach of duty

Conduct which falls below the standard of care for the protection of others against unreasonable risks of harm.

Foreseeability of harm is a prerequisite for a breach. Foreseeability means probability, sufficiently high and severe enough that ordinary care would require precaution. If something has happened before, forseeability is automatically an issue. Additionally, a breach of duty can occur when a person or entity fails to take action where there is a clear obligation to do so, leading to potential harm to others.

occurs when a party fails to meet the standard of care that a reasonable person would exercise in similar circumstances, leading to potential liability.

This can involve actions or omissions that cause harm to others, resulting in negligence claims being brought against the responsible party. In determining breach of duty, the courts often evaluate factors such as the foreseeability of harm, the severity of potential injuries, and the relationship between the parties involved. Additionally, the concept of breach of duty is often assessed through the lens of professional standards, especially in cases involving medical or legal professionals, where specific qualifications and practices are expected. The standard of care may vary depending on the context and the specific duties owed, highlighting the importance of understanding the nuances in each case. Moreover, establishing breach of duty requires a clear demonstration of how the conduct in question deviated from that expected in a given professional setting, which can ultimately influence the outcome of a trial.

Injury alone does not establish a breach, as there must also be evidence that the party's actions fell short of the standard of care owed to the injured individual.

Would need to have witness testimonies, etc.

A plaintiff bears the burden of proving defendants actions satisfied the elments of negligent claim, which include establishing that a duty was owed, a breach of that duty occurred, and that the breach directly caused the injury suffered.

You need to show thew defendants specific conduct. General fact doesnt work. Specific conduct allows you to weight whether the actions were reasonable. specific conduct allows you to weight whether the actions were reasonable.

A. Determining Breach:

    Evidence may be offered to establish the standard by which defendands conduct is to be measured.

i: Intentional torts

ii: Negligence

In cases of negligence, the plaintiff must show that the defendant failed to act with the level of care that a reasonable person would under similar circumstances, thereby breaching their duty to the affected party.

In contrast, for intentional torts, the plaintiff must demonstrate that the defendant acted with the intention to cause harm or with knowledge that such harm was substantially certain to occur, illustrating a clear violation of the duty owed to the victim.

iii: Strict liability

In strict liability cases, the defendant can be held responsible for harm caused by their actions regardless of intent or negligence, often related to inherently dangerous activities.

A breach of duty is defined as conduct that falls below the standard of care required for protecting others against unreasonable risks of harm. It occurs when a party fails to meet the standard of care that a reasonable person would exercise in similar circumstances, leading to potential liability. This can involve either actions or omissions that cause harm to others, often resulting in negligence claims against the responsible party. Furthermore, a breach can also arise when an entity or person fails to act despite a clear obligation to do so, potentially causing harm to others.

Foreseeability of harm is a crucial prerequisite for establishing a breach. Foreseeability implies a probability of harm sufficiently high and severe enough that ordinary care would necessitate a precaution. If a similar incident has occurred previously, foreseeability is automatically a pertinent issue. When determining a breach of duty, courts typically evaluate factors such as the foreseeability of the harm, the severity of potential injuries, and the relationship between the parties involved. The concept is also often assessed through professional standards, especially in situations involving medical or legal professionals, where specific qualifications and practices are expected. The required standard of care can vary depending on the context and the specific duties owed, emphasizing the need to understand the nuances of each case.

It is important to note that injury alone does not establish a breach; there must also be clear evidence that the party's actions fell short of the standard of care owed to the injured individual. Establishing a breach requires specific conduct from the defendant; general facts are insufficient. Specific conduct allows for an evaluation of whether the actions were reasonable, often necessitating witness testimonies. A plaintiff bears the burden of proving the elements of a negligent claim, which include establishing that a duty was owed, that a breach of that duty occurred, and that this breach directly caused the injury suffered.

Determining Breach:

Evidence can be presented to establish the standard by which the defendant's conduct is to be measured. In the context of tort law, a breach can be categorized into different types. For cases of negligence, the plaintiff must demonstrate that the defendant failed to act with the level of care that a reasonable person would under similar circumstances, thereby breaching their duty to the affected party.

In contrast, for intentional torts, the plaintiff must show that the defendant acted with the intention to cause harm or with the knowledge that such harm was substantially certain to occur, clearly illustrating a violation of the duty owed to the victim. Lastly