torts

Consent

“Willingness in fact for contact to occur

1. Highly contextual (recall vaccine case) 

2. Actual consent but can also be deemed to have consented (medical procedures) 

3. Rules of the “game” (activity under the circumstances matter) 

4. Doctors not liable for battery if they follow accepted medical practices under the circumstances 

5. Fraud (trickery) or duress undermines argument that P consented

Self-Defense

*Force must be reasonable under all circumstances

1. When it it OK to use deadly force in self-defense 

   1. OK to use deadly force/force likely to cause serious bodily harm if D reasonably believed opponent was about to do the same to you (subjective and objective belief – just a reasonable person) 

   2. Threat must be imminent 

   3. OK to use deadly force if in peril of death, serious bodily harm, or “ravishment” (sexual assault) 

   4. Duty to Retreat before use of deadly force/force likely to cause serious bodily harm 

      1. IF at home no duty to retreat if possible/safe for you to avoid use of deadly force UNLESS the person against whom you use force also lives there (domestic violence)

      2. IF not at home duty to retreat if possible/safe for you to avoid use of deadly force

2. When are you limited to non-deadly force in self-defense 

   1. When D to tort action reasonably believed other is about to use force that is NOT a threat to life or serious bodily harm 

   2. No duty to retreat before use of non-deadly force

Defense of Others

*Force must be reasonable under all the circumstances 

1. You can use the same force in defense of another person(s) that they would be permitted by law to use in defense of themselves 

2. Reasonably belief (subjective and objective), threat must be imminent 

3. No mistakes allowed – if turns out the rescuer got the facts wrong, they cannot use the “defense of others” defense to avoid tort liability 

Defense of Property

*Force must be reasonable under all the circumstances (defending theft or destruction)

1. Cannot use deadly force to defend “mere” property (use non-deadly force) 

2. Exception 

   1. If there is also a threat to persons it’s not merely a defense of property 

Necessity

1. Defense against trespass but D must pay for any damage cause by the necessary use of another’s property 

The requirement of actual causation

P must prove in all torts cases 

1. Actual and But-for causation 

2. Types: general and specific causation 

3. Must be more than mere conjecture to get to a jury 

4. Circumstantial evidence will suffice 

5. May need expert witness to testify as to actual causation (court applies Daubert to decide whether expert testimony will be admitted at trial) 

Types of Damages liability when you have more than one named D

1. “Joint and several” liability means the P can go after each D for 100% of the damages award 

2. “Several” liability means the P can go after each D for that D’s factional share of the damages award

Common Law EXCEPTIONS to actual causation

*know these 8 factual scenarios under which courts have found liability against a particular D even though the P could not prove THAT the particular D’s act was the “but for” cause of P’s harm 

1. “Concerted tortious action” liability 

   1. ONLY one of the Ds actually harmed the P but the other Ds were named in the lawsuit because they were doing the tortious activity together with the D who actually harmed the P. (Joint and Several liability) 

2. “Alternative” liability 

   1. Only one of the Ds actually harmed the P but we don’t know which one 

   2. The court will find all tortiously behaving possible harmers “joint and severally” liable unless one of them can prove which of the other Ds actually harmed the P (burden shifts to D – summers v. tice) 

3. “Market share” liability 

   1. Multiple factors 

   2. Several liability 

   3. Very hard to get past summary judgment bc the factors really narrow it down 

4. “Concurrent” or “Successive” liability 

   1. Two tortious actors harmed the P at the same time or would have harmed the p in quick succession 

   2. They cannot escape liability by arguing that neither one is technically the “but for” cause bc the other would have harmed the P by itself

5. “Respondeat Superior” liability

   1. You’re in charge of D who cause the harm 

   2. Employers 

      1. Liable if employee (not independent contractor) 

      2. And acting within scope of employment 

         1. Commuting to and from work is not within the scope or employment 

         2. Frolic and detour rule – whether purpose of trip is to serve master’s purpose, and if for master did the detour deviate significantly from the strictly necessary purpose 

   3. Parents 

      1. Might also be directly liable if the parents were negligent in supervising their child   

6. “Joint Enterprise” liability 

   1. You’re business partners (law, business, medical, usually) in a joint enterprise and one of you commits a tort acting in a business capacity 

7. “Family Purpose” Doctrine 

   1. Only for cars 

8. “Aiding and Encouraging” liability

   1. D “pumped up” the tortfeasor

Duty of Care

1. General duty of care is the kind and degree of care a prudent person would use to protect against harm to others 

2. Varies with circumstances NOT strict liability 

3. The finder of fact will decide the duty of care in a case by asking whether the cost of eliminating the risk of harm would outweigh (the likelihood of injury x the gravity of the harm) 

   1. Washington v. Louisiana Power & LIght (1990)

Duties of Law Enforcement Officers (LEO’s): 

• Although Leo’s owe the public a “general duty to preserve the peace and protect the public from harm inflicted by third persons or other independent sources” any breach of this duty is only “actionable via criminal or administrative actions” 

• If LEO injures a person by the “officers affirmative actions” the LEO “has a duty to exercise the same care that a reasonable officer with similar skill, training, and experience would under the same or similar circumstances 

Special Rules for Medical Malpractice 

• Professional custom = standard of care

  • DUTY to whom? Was it foreseeable to the care provider that the harmed person would rely on their advice and decisions (which turned out to be negligent and thus breach of a duty of care was owed). This is a Q for the finder of fact, not a legal Q. Warren v. Dinter (2019)

  • BREACH: in medical malpractice cases a majority of states treat professional custom as THE standard of care (NOTE: Helling v. Carey (1974) is a legal aberration) 

Rescue Rules 

• The default rule is there is no affirmative duty to rescue another person from peril. Special rules create a duty to rescue another person under particular factual circumstances. Special rules apply when: 

  • (1) The D created the risk of harm. 

  • (2) The P and D had a pre-existing relationship that the law deems will give rise to a duty to rescue 

  • (3) The D engaged in a voluntary safety practice known to the P then without warning failed to perform that safety practice 

  • (4) The D was a good Samaritan who failed to follow the rule that apply to good Samaritans 

• You can think of these as FOUR general exceptions to the baseline rule that there is no affirmative duty to rescue another person from peril 

  • (1) The D actually created the risk of harm to the P, creates a duty to act reasonably to perform a rescue (p271) 

  • (2) The P and D has a pre-existing relationship that the law deems will give rise to a duty to act reasonably to rescue (p271) 

    • Innkeepers, invitees, custodial relationships, social companions, drivers and passengers, “special relationship” (therapist of patient who makes threats to harm or kill another owes duty of care to (duty to warn) persons under threat) Also applies to universities/students 

  • (3) Voluntary Safety Practice designed to prevent harm to others. Elements: 

    • The is a non legally required practice inexistence whose purpose is to keep ppl safe (kind of one person/entity custom); AND 

    • The P in this case actually knew of the practice; AND 

    • The P relied on the existence of the practice to keep him/her/themselves safe.

  • In such cases the D has an affirmative duty to continue the practice or give reasonable warning that they have discontinued the practice so those acting with due care will not be harmed. 

  • If P provides evidence from which a jury could find all the above elements are met, D is not per se (automatically) negligent (that is, not negligent as a matter of law). Instead, this creates a presumption that D was negligent. The burden then shifts to the D to produce evidence to rebut the presumption. 

  • If no such evidence exists, burden shifting means P can get summary judgment on the negligence issue 

  • (4) special good samaritan rules 

    • If a person undertakes a rescue, they must act with due care in the course of the rescue 

    • If a person or entity offers a warning not required by law, that warning must be complete and correct 

    • An actor who undertakes a rescue or protection then discontinues it is subject to a duty of reasonable care to refrain from putting the person they began to rescue in a worse position than existed before the actor took charge of the other 

    • When an actor undertakes a rescue or protection and discontinues it, if the person they began to rescue is in imminent peril of serious bodily harm at the time they terminate the rescue, they must exercise reasonable care with regard to the peril before they terminate the rescue (they don’t have to be a hero, but they can’t do less than a reasonable person would do) (Drunk teen case p 274) (hospital holding the dangerous spouse p274) 

Custom 

• Custom is synonymous with common practice in a particular line of work or activity. Some variations on “everyone's doing it,” “no one’s doing it,” or “this is just kind how it’s done.” 

• A custom in a particular field is relevant but not dispositive in either direction 

• A P can prevail against a D who follows custom on a safety issue if that custom does not rise to the level of reasonable care under the circumstances. The T.J. Hooper (1932). A D who fails to follow custom can prevail if they acted with reasonable care under the circumstances

• The T.J. Hooper (1932) 

  • Radio would have saved everyone 

  • And even if custom spending tiny bit of money would have saved everyone 

Special Rules for Entrants on Land

• Duty that Possessors of Land have Re Entrants to Land – We have seen there are special rules that come into play when one person visits the land another person owns or possesses 

Three different rules focuses on status of the plaintiff/visitor to the land 

Invitees 

§ 332. Invitee Defined 

(1) An invitee is either a public invitee or a business visitor 

(2) A public invitee is a person who in invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public 

(3) a business visitor is a person who is invited to enter or remain on land for purpose directly or indirectly connected with business dealings with the possessory of the land 

• ** things like mailman, delivery person, etc. (if you’re with someone who is an invitee) 

Restatement § 343. Dangerous Conditions Known to or Discoverable by Possessor 

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he 

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and 

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and 

(c) Fails to exercise reasonable care to protect them against the danger 

Licensees 

§ 330. Licensee Defined 

A licensee is a person who is privileged to enter or remain on land only by virtue of the possessor’s consent. 

• Social guests, police officers, firefighters, door to door solicitors, etc.  

Restatement § 342. Dangerous condition known to possessor 

A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,

(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and

(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and

(c) the licensees do not know or have reason to know of the condition and risk involved.

Trespassers 

• In general, the duty of the possessor toward trespassers is to refrain from wanton and willful conduct 

• EXCEPTION – Attractive nuisance rule 

§ 339. Artificial conditions highly dangerous to trespassing children 

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children

Concealed trap rule – special duty to warn 

• When the D is an occupier of property 

• And another person is on the D’s property in any capacity 

• And the D was aware of a concealed condition 

• Which in the absence of precaution creates an unreasonable risk of harm to a person coming into contact with that condition 

• The trier of fact may reasonably conclude (not must, but may) that a failure to warn or to repair the condition constituted negligence

Common Carrier

• Duty Common Carriers have re: Passengers

  • What Are they? Businesses that transport persons or things from place to place for hire, and who holds himself out to the public as ready and willing to serve the public, indifferently, in the particular line in which he is engaged.

    • Definitely plane, train, bus, taxi, lyft, cruises etc.

    • Maybe ski lift, elevator, ambulance

    • Probably not whitewater raft, carriage rides for pleasure

• What’s the special duty of care?

  • Higher than reasonable care

  • “Highest,” “Extraordinary,” “Great Caution.”

Breach of Duty of Care

1. Whether Breach occurred depends on whether the foreseeable likelihood and severity of the P’s injuries warranted the additional precautions argued by the P

2. The finder of fact will find no breach when the cost of eliminating the risk of harm would outweigh the likelihood of injury x gravity of the harm. (Think BPL)

3. Statues 

4. Res Ipsa

   1. “Res ips loquitur” is a doctrine that applies when the factual circumstances surrounding the events that allegedly caused P’s injury are such that the P cannot obtain ordinary evidence 

   2. If it is possible for the P to prove negligence (duty and breach) by obtaining sufficient direct evidence through the discovery process

   3. To create an inference of negligence, the P must prove the preliminary elements by a preponderance of the evidence. Those elements are: 

      1. (1) the D had exclusive control of the thing that caused the injury AND

      2. (2) the accident is of such nature that it ordinarily would not occur in the absence of negligence by the D 

   4. A res ipsa “inference” is not dispositive of the case. In other words, it ordinarily will not allow judgment for the P as a matter of law. But it will allow the P’s claim to survive a D’s motion for summary judgment. It creates a rebuttable presumption of negligence. If the D fails to rebut the presumption, the jury will presume duty and breach and move on to the other elements of the claim 

   5. If the injury could have occurred without negligence by the D (that is, without the D having breached a duty of care), the court is not permitted to give a res ipsa loquitur instruction. City of Louisville v. Humphrey (1970) 

   6. If the only two persons or entities that had control over the instrumentality that caused the injury were the D and the P, the P CAN STILL obtain the res ipsa jury instruction, if P can provide evidence sufficient to show, by preponderance of the evidence, that 

      1. (1) the condition of the instrumentality that caused the injury did not change after it left D’s possession AND 

      2. The P exercised due care in handling the thing while it was in P’s possession. Escola v. Coca Cola Bottling Co. (1944) 

Example

A classic example of “res ipsa” case might be this: imagine the P brings evidence into trial that shows, by preponderance, that an airplane with a sterling maintenance record, that was fully fueled up and that was flying on a clear-sked day, crashed 

• Everyone on the plane died, the place was completely destroyed, and there were no witnesses on the ground who could attest to what happened, and there were no apparent mistakes made by anyone else (air traffic control) 

Actual Causation

1. But For

   1. “Cause in fact refers to those antecedent events, acts or omissions which have so far contributed to the result that without them it would not have occurred.” (p 312)

   2. Courts often frame “actual causation” as a question: Assuming the D acted negligently (duty/breach), “but for the defendant having acted at all, would the plaintiff nevertheless have suffered the same harm?” 

      1. Logic problem 

   3. If the P would have suffered the same harm even if the D had not taken the allegedly negligent action, the element of “but for” causation is not satisfied and the P cannot recover. Ford v. Trident Fisheries Co. (1919); Aegis Insurance Service, Inc. v. 7 world Trade Co. (2013)

   4. Cause in fact is normally a Q of FACT for the jury/finder of act as dissent in the Aegis points out 

2. Loss of Chance

   1. If a D’s negligent acts increased the risk of particular harm they can be held liable for the percentage of the P’s damages that correlate with the increase in risk. Cahoon v. Cummings (2000). This is referred to in the literature as the “loss of chance” theory  of actual causation

Proximate Causation

1. Foreseeable person to be harmed (Zone of Risk) 

   1. Rule: Proximate cause generally refers to foreseeable harm.

   2. Rule: Defendants are responsible for harms they could have foreseen and negligently failed to avoid, not harms that were unforeseeable when they acted negligently.

      1. Other ways foreseeability has been described: Is the harm of the sort one would normally anticipate resulting from the defendant’s negligent acts? Were the injured plaintiffs within the scope of the risks foreseeably created by the defendant’s conduct?

2. Foreseeable harm that happened (Nature of harm) 

   1. Rule: If the defendant could not have reasonably forseen the harm that befell the plaintiff, the proximate causation element is not satisfied. Palsgraf v. Long Island Railroad (1928).

   2. Rule: Foreseeability is ordinarily a question of fact for the trier of fact.

   3. Important distinction: If the nature of the injury the plaintiff sustained was foreseeable (within the zone of risk the defendant created), the defendant owns the entire extent of the injury, regardless of whether the extent of the injury was foreseeable.

      1. This is referred to as the “eggshell plaintiff” doctrine. (Recall the kid who was kicked in assembly only to have his leg disintegrate over time)

      2. If the defendant was negligent and actually and foreseeably caused the injury that occurred, the defendant owns the full extent of the injury. (You break it, you buy it.)

3. Intervening Conduct by a 3rd party 

   1. Subrule re: intervening conduct by a third party and proximate causation:

      1. If the facts in the record support such a finding, a jury is permitted to find proximate causation even when the defendant’s acts are not the immediate cause of the plaintiff’s injury.

         1.  There may be an intervening act by a third person

         2. There may be an intervening act by the plaintiff himself

         3. If the harm that occurred was (from the jury’s pov) a foreseeable downstream harm caused by the plaintiff’s negligence, the jury may find the defendant liable. Marshall v. Nugent (1955) (p. 327)

   2. Criminal or reckless?

4. Efficient Intervening Cause – cut the casual chain 

   1. An intervening intentional or criminal act, which the courts sometimes term an “efficient intervening cause” of the plaintiff’s harm, will ordinarily sever the liability of the original tort-feasor. Stahlecker v. Ford Motor Co.

      1. UNLESS the defendant has knowledge that rendered the intentional or criminal intervention of a third party or parties reasonably foreseeable to the defendant. (Rationale: In these cases the foreseeable risk Defendant created was the risk of an intentional tort or crime) Herrera v. Quality Pontiac (2003)

      2. OR UNLESS the defendant has a special relationship with the plaintiff giving rise to a special duty of care to protect the plaintiff from the crimes or torts of another. 

5. Statute

   1. When a defendant violated the statute, and the harm would have been prevented if the defendant had not violated the statute, the plaintiff can only use the statute the bolster his argument for proximate cause if the purpose of the statute was to prevent the harm that occurred.

   2. If the statute was enacted for a different purpose, in other words to prevent a different category of harm, it is irrelevant to the question of proximate cause. Gorris v. Scott (1874).

Harm 

1. Special Instances of Non-liability 

   1. Direct victim 

      1. If the plaintiff was a “direct victim” in the events and not just a bystander?

         1. Yes, if plaintiff was one of the people directly harmed both physically AND emotionally by the defendant’s negligence and seeks to recover for both types of injury; OR

         2. If the plaintiff was ONLY harmed emotionally but had an existing relationship with the defendant that gave rise to a duty to avoid foreseeable mental and emotional harm. (Burgess v. Sup. Ct. & notes pp. 370-73)

   2. Zone of danger (only some jxs recognize) 

      1. If Plaintiff was a “Mere” Bystander in the Events (With No Special Rules in the jurisdiction applying to their status or relationship to the events)?

         1. A plaintiff cannot recover from a defendant for mental and emotional upset merely because they witnessed the upsetting events defendant negligently caused (even extremely upsetting events). Waube v. Warrington (1935)

      2. If Plaintiff was a Bystander in the “Zone of Danger” in a jurisdiction that recognizes “Zone of Danger” liability?

         1. If the Jurisdiction recognizes “Zone of Danger” liability, a plaintiff can recover for mental and emotional harm if (1) the plaintiff was in the “zone of danger” when the negligent events took place; OR (2) under the circumstances the very risk of harm that defendant created was the risk of emotional harm. (restatement rule p. 353)

   3. Relaxed Bystander Liability (Majority Rule) 

      1. Relaxed Bystander Liability (majority rule) (Dillon v. Legg) (1968) FACTORS rather than elements – page 357.

   4. Narrow Bystander Liability (Minority Rule) 

      1. Narrow Bystander Liability (minority rule) (Thing v. La Chusa) (1989) MANDATORY ELEMENTS rather than factors – p. 362.

   5. Purely Consequential Economic Loss 

      1. “Purely consequential” economic loss is a financial injury that, while technically foreseeable to the defendant at the moment they behave negligently, is denied on policy grounds as too indirect or too remote for the court to permit recovery

      2. In the absence of a specific duty, no general duty exists to avoid negligently causing “purely economic” loss. Barber Lines v. Donau Maru (1985).

      3. The fact pattern to look for is: (1) no injury to person or property, merely economic injury, (2) the economic injury though foreseeable is so remote it may be impossible to administrate and/or disproportionate to the negligence, and (3) no recognized exceptions apply.

      4. When have courts found the presence of a “specific duty” and thus awarded damages for “purely

      5. economic” loss?

         1. (1) Intentional torts

         2. (2) Special Relationship Between Defendant and Plaintiff

            1. Plaintiff was an intended beneficiary of a particular transaction but was harmed by the defendant’s negligence in carrying it out. E.g., direct or third party beneficiary to a contract

         3. (3) Plaintiff was in the Zone of Risk of Defendant’s Activities

            1. Fisherman lost money as a result of an oil spill in the waters they fish. Union Oil Co. v. Oppen (9th Cir. 1974) (p. 401-02).

            2. Plaintiff paid a family member Plaintiff’s medical bills resulting from Defendant’s negligent conduct

2. Particular Immunities 

   1. (1) Governmental immunities: Defendant is a public entity or agent acting in their governmental capacity.

   2. (2) Intra-family immunities: Plaintiff and Defendant are Spouses or Parent and Child.

   3. (3) Statutory immunities: Congress or a state legislature has chosen to shield a class of defendants

Contributory Negligence

1. All or Nothing Approach Focused on Fault

   1. Rule: If Plaintiff’s own conduct fell below the standard of negligence being used to evaluate the Defendant’s conduct, which is reasonable care, and Plaintiff’s conduct was an “active and efficient” contributor to his/her/their own injuries, then Plaintiff’s negligence completely bars him/her/them from recovering from the Defendant. Butterfield v. Forrester (1809).

“Last Clear Chance” exception 

1. Exception: Unless the Defendant had the “last clear chance” to avoid the injury. Davies v. Mann (1842). Please know Restatement sections 479 and 480 (p. 414), they state the current majority rules on “last clear chance.”

Assumption of Risk

1. You Signed a Contract or Engaged in an Inherently Dangerous Sport

   1. If Plaintiff Signed a Contract: A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm. Stelluti v. Casapenn Enterprises LLP (2010). (Rationale: Respect for right to contract freely.)

   2. If Plaintiff Participated in an Inherently Dangerous Sport: A plaintiff who participates in an “unusually risky sport” assumes the risk of ordinary contact in that sport. A defendant will only be liable if he/she/they (1) intentionally injures another player or (2) engages in conduct that is “so reckless as to be totally outside the range of the ordinary activity involved in the sport.” Knight v. Jewett (1992).

Contrary to public policy exception

1. Exception: Unless the agreement is invalid as contrary to public policy. In such cases the Defendant’s duty is inviolate and non-waivable, usually due to the nature of their business.

   1. Examples: Residential Leases, Car Inspections, Common Carriers

Comparative Negligence (Majority Rule)

1. We Should Each Own Our Share of Fault

   1. Rule: A plaintiff’s recovery against any particular defendant may be reduced, but not necessarily eliminated, by the plaintiff’s own fault.

   2. This approach, rather than contributory negligence/last clear chance, is the approach most jurisdictions take today.

   3. Assumption of the risk is likely still be in play in a comparative negligence jurisdiction