Torts Negligence

NEGLIGENCE 

 Elements of a Cause of Action 

1. Duty – a duty to use reasonable care (rarer cause of action b/c typically assumed) 2. Breach/Standard – a breach of that duty; failure to conform to the required standard 3. Causation – causal connection between the conduct (breach) and the resulting injury (damages) 4. Damages – actual loss/damage resulting to the interests of another 

 Historical Background 

▪ Cases: 

• Hull v. Orynge (1466) 

♦ Rule: One may be held liable to another for negligently or inadvertently causing damage to  their property despite the lack of legal fault.  

• Weaver v. Ward (1616) 

♦ Rule: One may be held liable even for unintentional/accidental torts. 

 ∆ held the burden of proving himself “utterly without fault” – development of defenses  DUTY 

▪ Cases: 

• Brown v. Kendall (1850) 

♦ Rule: The negligence standard is the ordinary care of a prudent and cautious man.  Development of negligence as an independent cause in the U.S.

• Lubitz v. Wells (1955) 

♦ Rule: For the disregarding of an item to give rise to negligence, it must be obviously or  intrinsically dangerous. 

 Here, an individual was not be held liable for negligence for leaving an object (golf  club) on the ground in reach of others that was not inherently dangerous. 

• Blyth v. Birmingham Waterworks Co. (1856) 

♦ Rule: Ordinary care does NOT require the extraordinary care required to protect individuals  from unforeseen problems. 

• Piper v. Parsell (2007) 

♦ Rule: One may be liable for negligence when they failed to act with ordinary care to prevent  outcomes which were foreseeable. 

▪ General Rule: There is a duty of ordinary care of a prudent and cautious man. • For duty analysis, first figure out what TYPE of harm: 

♦ Physical Harm 

♦ Pure Economic Harm 

♦ Emotional Harm 

♦ Premises Liability 

• Physical Harm: 

♦ General Rule: There is a duty 

 Exception: No duty for nonfeasance (not acting/one does not have to save someone in  peril) 

♦ Exceptions to the Exception: 

 Special Relationship Exception: 

o Trigger: Non-Feasance (∏ claims they were hurt b/c ∆ failed to act) 

o Special Relationships: 

• Common Carrier/Passenger 

• Innkeeper/Guest 

• Employer/Employee 

• LL/Tenant 

• Business Owner/Invitee 

• Spouses* 

• Custodian/Charge 

• Physician/Patient 

• Psychotherapist/Patient 

o 3 Rowland Factors to Consider: 

1) Relationship of Parties 

♦ Does ∆ have the ability to control the situation? 

♦ The closer the relationship, the greater the responsibility to look out for ∏(s) 2) Foreseeability of the Harm (2 categories) 

a. Known or reasonably foreseeable probability of harm 

o Close Relationships = Innkeeper/guest; employer/employee; common  

carrier/passenger 

b. Imminent probability of harm 

o Distant Relationships = Business owner/invitee (ex.  

university/student); LL/tenant 

o Judge decides whether there was a duty 

▪ High level of knowledge; essentially know something is about  

to happen (ex. see a man walking up with a gun)

- General Rule: The closer the relationship is, the sooner/more one has a duty to  look out for the other. 

o Ex. Innkeeper must inform guest of reasonably foreseeable harm,  while LL must inform tenant only of imminent harm. 

3) Public Policy 

♦ Achieving some good or avoiding some evil in the world, separate from the  parties in the lawsuit 

♦ Best interest of society/effect on society; CA focuses on this 

o Cases: 

• Commonwealth v. Peterson (2013) 

♦ Rule: There is no duty to warn about the criminal acts of a third party, but  special relationships may impose a duty to warn if third party criminal acts are  known/foreseeable. 

• JS & MS v. RTH (1998) 

♦ Rule: In addition to between the ∏ and ∆ directly, special relationships may  be found between the ∆ and those close to them (i.e., spouse). 

• Tarasoff v. Regents of UC (1976) 

♦ Rule re Psychiatrist/Psychotherapists: Therapists must report to the  prospective victim patients who pose a danger of violence. (additional  reporting requirement added to Reasonable Physician Standard) 

o Policy Issues: 

▪ Difficult to determine the seriousness of a ∆’s threat of danger 

=> court imposed mandatory reporting statute (better safe than  

sorry) 

▪ Do not want to disincentivize people from reporting their  

confidential/dangerous information (like stating their intention  

to kill someone; interested in doctor-patient trust) – concern  

overridden by court in interest of public safety 

o Attorney/Client Confidentiality Rule: If you can provide confidential  information about a client that would save people from reasonably  

certain substantial bodily harm, you MAY reveal the information at  

your own discretion. (lesser reporting requirement than for therapists)  Causing the Peril Exception: 

o Rule: If ∆ caused the peril (even non-negligently), they then have a duty to rectify  the peril. 

• Ex. Michael Phelps pushes girl into pool, now must save her; B locks A in freezer  Undertakings and Reliance Exception: 

o § 42 Liability for Physical and Emotional Harm 

• An actor who undertakes to render services to another and who knows or  should know that the services will reduce the risk of physical harm to the other  has a duty of reasonable care to the other in conducting the undertaking if: (burden of starting the rescue) 

♦ The failure to exercise such care increases the risk of harm beyond that  which existed without the undertaking 

♦ The person to whom the services are rendered or another relies on the  actor exercising reasonable care in the undertaking 

o Ex. Michael Phelps began the rescue and then stopped before saving  the girl. People walking by do not bother to save her b/c Michael was  (reliance on Michael); C says they will check on A in freezer

• Pure Economic Harm: 

♦ General Rule: There is NO RECOVERY for negligently inflicted purely economic losses UNLESS there is a special relationship. 

 Ex. If attorney negligently gives a client the wrong advice (negligent  

misrepresentation) and the client experiences financial loss because of it, attorney is  liable for economic damages/∆ may recover 

o Ex. Attorney gives father negligent advice re his will and his intended beneficiaries  lose money, beneficiaries may recover 

 CA Specific Rules: confused what the difference is 

- There is a duty of care generally, but NOT for purely economic loss UNLESS there  is a special relationship. 

- If there is a special relationship, assume there is a duty UNLESS the Rowland  factors take it away. 

♦ Southern California Gas Leak Cases (2019) 

 Rule: ∏s may NOT recover for PURELY economic harm. 

- Reasoning: Line must be drawn & has been drawn at physical injuries in  

crushing liability cases. (easier to allocate liability b/c of apparent 

damages) Must show physical injuries to recover? 

• Negligent Infliction of Emotional Distress/Harm: 

♦ Must prove harm to an OBJECTIVE standard (hypersensitive ∏ does NOT recover) ♦ Elements: 

 Zone of Danger:  

o Emotional distress only recoverable if ∏ in ZoD 

o ZoD determined by jury 

• Ex. Changing flat tire on side of freeway and almost get hit by a car 

 Physical Manifestation: (majority of jdx require PM in addition to ZoD/Bystander Rule) o ∏’s emotional distress must have a PM to recover 

o PM determined by jury 

♦ Direct & Indirect Claims: 

 Direct: ∏ claims emotional distress because they, themselves, were almost injured o Tests: 

• ZoD & PM 

 Indirect: ∏ is a BYSTANDER who claims emotional distress in response to witnessing  someone else get hurt 

o Tests: 

• Bystander & PM 

o Bystander Emotional Distress Dillon 3 Factors: 

• ∏ must be: 

⇒ Closely related to injury victim (close-blood relation or marriage) 

⇒ Present at scene of injury-producing event at time it occurs and is then  

aware it is causing injury to victim (must be PHYSICALLY present;  

cannot recover for harm witnessed on TV, phone call, etc.) 

⇒ As a result, suffers serious emotional distress – a reaction beyond that  

which would be anticipated in a disinterested witness and which is not an  

abnormal response to the circumstances 

 Fact pattern for test: Parent runs after child about to get hit by car in street (direct =  child, indirect = parent) 

♦ Exceptions to ZoD/PM/Bystander Rules: (don’t have to honor rules to recover for following  situations)

 Negligent interference with dead bodies (must be closely related to ∏; need not actually  witness the body’s mishandling) 

 Death telegrams [modernly includes texts, emails, etc.] (minority of jdx) 

o Ex. tell a mother that her son died at war when he did not 

♦ ∏ may get emotional distress damages when: 

 Accompanied by physical injury, IIED, assault, NIED 

• Premises Liability: 

♦ TRIGGER: Happening of an event on one’s land/premises (“rent;” “tenant;” “landlord”) ♦ Jdx Distinctions (EXAM: mention jdx distinctions, but use status categories)  Half jdx use status categories (below) 

 Half jdx say ∏s should be viewed “reasonably” according to the circumstance  (circumstances could be trespassing, visiting, etc.) 

♦ CL General Rule: 

 There is NOT a duty to people off your land for natural conditions 

o Exception: Trees – if you have actual or constructive knowledge of a dead tree on  your property that may fall and injure someone, you have a duty to rectify it • CA – Duty for everything; Property owner is liable for all conditions on land ♦ Ex. ∏ liable to affected parties for mudslide 

 There IS a duty to people off your land for artificial conditions 

o Ex. If you build a batting cage on your property you are liable for damage caused by  fly balls 

♦ Status Categories: 

o ∏’s status as trespasser/licensee/invitee varies based on circumstance 

 Trespassers: enters land without owner’s permission 

o Rule: No duty owed to trespassers. 

♦ BUT owner may NOT willfully and wantonly injure the trespasser (Ex. May  not install a booby trap to hurt trespasser) 

• 3 Exceptions: 

♦ If owner has actual knowledge of trespasser, owner must assume a duty of reasonable care 

o Ex. R.R. Company knows of trespasser on tracks, must stop trains 

♦ If owner has constructive knowledge of trespasser who accesses a limited  area of the property, owner must assume a duty of reasonable care (RC =  inform trespasser of danger) 

o Ex. Well-worn path across my land that kids routinely use to cut across 

– owner must inform trespasser of danger in limited area 

• Attractive Nuisance Doctrine 

♦ Rule: Owner owes a duty of reasonable care to a trespassing child drawn to  an attractive nuisance 

♦ Attractive Nuisance = artificial conditions on the land 

o Need not be THE attraction which brought the child on the land in the  

first place, but the one that caused the harm 

▪ Ex. pools, trampolines, bouncy castles, RR turntable 

 Licensees: (epitome is a social guest) 

o Rule: Owner owes licensee a duty to warn of any known hidden dangers not  known to licensee (lesser duty than RC) 

• Policy: We do not want to make an owner make their premises safer for others  than they themselves are willing to tolerate 

♦ Ex. Be careful when you use the stairs, the 3^rdstair is loose

• Most jdx classify police officers/firefighters licensees 

 Invitees: Visits an owner’s property in furtherance of the owner’s business o 

Rule: Owner owes invitee a duty of reasonable care by keeping the premises  

reasonably safe from known dangers. 

• Ex. Patron at the grocery store 

o Most jdx classify mail carriers, health inspectors, meter readers, etc. invitees • Reasoning: premises may not operate as intended without above invitees ♦ 

Landlord/Tenant: 

 Traditional Rule: No liability, to either tenant or others entering land, for defective  conditions existing at the time of the lease, BUT liable for: 

o Undisclosed dangerous conditions known to LL and unknown to tenant 

o Conditions dangerous to persons outside premises 

o Premises leased for admission of the public 

o Parts of the land retained by LL to control that tenant is entitled to use 

o Where LL contract to repair 

o Negligence by LL in making repairs 

 Re 3^rd Party Criminal Attacks 

o General CL Rule: Criminal act not foreseeable = LL cannot be held liable… BUT… o Common Area Exception to Landlord Liability: Landlord has a duty to exercise  reasonable care to minimize the risk of tenants being harmed by foreseeable criminal acts by 3^rd parties. 

• Reasoning: 

♦ Foreseeability – Can LL foresee potential harm to ∏s? 

o Jdx Split: 

▪ Some keep foreseeability very local (within premises) 

▪ Others extend to surrounding area (Is this an area where crime  

is frequent?) 

♦ Control – LL’s ability to control common areas instills duty upon him 

 Jdx Distinctions: 

o About half jdx use Traditional Rule (and of those most retain Status Categories) o Other half jdx use general negligence analysis????? 

 BREACH/STANDARD 

• Must tie BREACH to DAMAGES 

▪ Facts and Circumstances 

• The extent of one’s actionable negligence is determined by the judge/jury by examining the facts  and circumstances of the case. 

• Cases: 

♦ Chicago B & GR v. Krayenbuhl (1902) 

 Rule: If one omits such precautions as a man of ordinary care and prudence, he is guilty  of negligence. In cases of inherently dangerous activities, the court/jury must analyze the  F&C to determine negligence. 

o Here, owner of train turntable was held liable because of failure to “use reasonable  care to make the premises safe” by locking the turntable to prevent kid from getting  his foot cut off. 

• Facts and Circumstances Analysis: B < P(L); B = cheap lock, P = high prob of kid  being injured on turntable at this time, L = injury is serious (loss of a limb) 

♦ Reasoning: The business of life is better carried forward by the use of  

dangerous machinery. (= we cannot just stop operation of dangerous 

machinery which benefits society) 

♦ Davison v. Snohomish County (1928) 

 Rule: Facts and circumstances determine the extent of ∆’s liability for negligence. o Here, the county was not held liable for negligently maintaining a bridge’s railing which allowed ∏’s car to break through. At the time it was not reasonable to expect the county to reinforce bridge railings to withstand the force of a car because the  

bridge was built with horses, not cars, in mind. 

• Another case, on all fours, came out 40 years later with opposite holding because,  given the passage of time and increased popularity of cars, it was now negligent  for the county to fail to adequately maintain the railing. 

• Customary Practices (*start analysis for breach here per Robinette) 

♦ Cases: 

 Trimarco v. Klein (1982) 

o Rule: Proof of a common practice aids in forming a jury’s understanding of the  standard of care given case-specific circumstances. A jury need not accept the  

evidence, though, as it is “relevant but not dispositive.” 

• Custom = many people in the same industry do something in a particular way • Custom practices may be used offensively (everyone does this) or defensively (no  one does this) 

♦ Here, ∏ was injured on shower-door glass and sued the building owner for  

negligently maintaining his unit. ∆ argued that ordinary care required that the  

glass be replaced as was customary for the industry. 

▪ The Hand Test (*use for breach on bar exam) 

• B < P(L) 

- B = Burden (cost) of adequate caution 

- P = Probability of accident 

- L = Seriousness of predicted injury 

- (One is negligent if the burden of the untaken precaution is less than the probability of the  accident times its predicted severity.) 

 For analysis: analyze P and L, then analyze B to weight the two 

• Case: 

- U.S. v. Carroll Towing (1947) 

 Rule: The Hand Test to be used to determine whether a breach of the duty of ordinary  care occurred (= negligence). 

▪ Here, ∆ held liable for contributory negligence for failing to have a bargee aboard the  barge at the time it sank. 

• Judge Learned Hand developed The Hand Test from this case 

▪ STANDARD 

• Default Standard = Objective Standard = Reasonable Person Under the Circumstances • § 3. Negligence. A person acts negligently if the person does not exercise reasonable care under all the circumstances. 

• Factors to consider in ascertaining whether the person’s conduct lacks reasonable care are (1) the  foreseeable likelihood that the person’s conduct will result in harm, (2) the foreseeable severity  of any harm that may ensue, and (3) the burden of precautions to eliminate or reduce the risk of  harm. 

• Cases: 

♦ Vaughan v. Menlove (1837) 

 Rule: The standard for negligence is an objective/reasonable prudent person’s standard.  o Case that established the objective standard, over the subjective standard (∆ did as 

good as they could); this standard means that there are people who are going to be held accountable who could not do any better 

• Rejects the argument that a ∆’s particular sensibilities or weaknesses should be  taken into account in evaluating negligence claims 

♦ Delair v. McAdoo (1936) 

 Rule: One may not escape liability simply because he says he does not know, if a  reasonable man would know, then he must know. 

o Here, ∆ negligently maintained his tires which led to an accident. ∆ was held liable  for negligently maintaining and operating his vehicle. 

• Departure from the Default Standard (Exceptions to the Standard) 

1. Verifiable Physical Disabilities 

 Trigger: Blind/deaf person => VPD Standard Analysis 

 Cases: 

o Roberts v. State of Louisiana (1981) 

• Majority Rule: If you have a verifiable, physical disability the court may use a  specific standard for that disability. 

♦ Here, a blind man was held liable for negligently bumping into ∏ while  

walking around without his cane. Court used a “reasonable blind person”  

standard in combination with custom – is it more for just professionals? 

Typical practices for blind people described by expert testimony. 

♦ Other disabilities that may count: no sense of smell, paralysis, epilepsy,  

deafness, short statute, etc. 

♦ Cuts both ways – reasonable blind person also does not get to drive a car  

(standard both restricts and protects) 

2. Children 

 Trigger: Kids 17 years old and below in fact pattern => Child Standard (discuss jdx  differences*) 

 Different jdx has different age restrictions for negligence claims: 

o Majority of states do NOT have a minimum-age requirement 

• Some jdx use R (3) – Must be at least 5 years old to be held liable for negligence  (4 and younger cannot be found negligent) 

• On essay: analyze both jdx possibilities 

 Cases: 

o Robinson v. Lindsay (1979) 

• Rule: The standard typically used for children is “a reasonably careful child of the  same age, intelligence, maturity, training, and experience would exercise under  the same or similar circumstances.” (Subjective standard; Did THAT child live up  to their own ability? Did THEY do the best they could?) 

♦ Courts determine a child’s ability by looking at: report cards, experiences,  skills, ask questions of ∆’s attorney, etc. 

• Policy: Courts want to preserve childhood and allow kids to be kids. 

• Exception to the Rule (exception to the exception): For adult activities (inherently  dangerous), we return to the basic standard (reasonable person under the  

circumstances). 

♦ Adult Activities: Operation of a motorized vehicle almost always falls under  the adult activities (cars, boats, motorcycles, golf (sometimes), rifle  

(depending on jdx), snowmobiles, etc.))  

3. Professional 

 Professional standard: Objective standard; What would the ordinary reasonable [insert 

professional here] do under the circumstances? 

 Applies to:  

o Physicians, lawyers, engineers, pharmacists, financial planners, architects, etc. – those whose work is not a matter of “common knowledge” 

• Does NOT apply to clergy, teachers (causation issue, no nationally defined  teaching standard) 

 Higher Professional/Specialist Standard 

o Specialties hold you to a higher standard – an expert in X 

o Medical Specialties 

• The standard for specialties is a reasonable professional of that specialty under the circumstances. 

 Cases: 

o Heath v. Swift Wings, Inc. (1979) 

• Rule: A professional standard is an objective standard predicated on the rules and  guidelines of the profession. (Ex. “Reasonable person pilot under the  circumstances”) 

♦ Here, a pilot was held to a “reasonable pilot” standard (as opposed to a RPS or  a subjective standard – ordinary prudent pilot with ∆’s level of training and  experience) because how to fly a plane is not “common knowledge.” o Hodges v. Carter (1954) 

• Rule: Attorneys are held to the professional standard of a “reasonable attorney under the circumstances” which requires the basic knowledge of a general  practitioner. 

♦ Jury Instruction: An attorney who acts in good faith an in an honest belief that  her advice and acts are well founded and in an honest belief that his advice  and acts are well founded and in the best interest of his client is not  answerable for a mere error of judgement or for a mistake in a point of law 

♦ An attorney is still liable for careless mistakes (N/A to the intricacies of anti trust law, unless one holds themselves out as a specialist) 

⇒ Policy/Reasoning: The standard here is that customs are RELEVANT  AND DISPOSITIVE – the attorney did what a substantial number of  other attorneys do and thus did not commit malpractice (Note: This  standard may discourage professionals from testing new methods out of  fear of liability). 

o Morrison v. MacNamara (1979) 

• Rule: Modernly we apply the national standard for medical professionals. (Standards based on location apply only to medical field) 

♦ Reasoning: National board certifications, doctors are standardized nationally =  we can standardize our care nationally 

♦ Historical Context: 

1) Local Standard: standard determined by other members of the medical  profession in the same locality/community [issues with finding members  of small communities to testify – ex. 1 doctor in whole town] 

2) Locality “Same or Similar” Standard: standard determined by other  members of the profession in similar communities [ex. LA & NY] 

1. Policy/Reasoning (for #1 & #2): It is unfair to hold a doctor with  less resources to the same standard of care as a doctor with more. 

3) National Standard: the degree of reasonable care and skill expected of  members of the medical profession under the same or similar 

circumstances 

2. Policy/Reasoning: Our doctors are standardized nationally  

(national board certifications), thus we can standardize our care  

nationally. 

 Medical Malpractice 

o Malpractice = Professional negligence (re treatment or the omission of treatment) • Causation difficult to prove; expensive; lengthy (about 5 years) 

o Rule: In suits with a professional ∆, an expert must be present to testify EXCEPT  in medical malpractice when: 

1. A doctor negligently leaves something in a patient (breach) 

2. A doctor operates on the wrong body part 

3. Something occurs that is not related to what one went in for in the first place;  must be a clear problem; ex. someone goes in for surgery and comes out with  a burn from an unrelated heating device 

o Informed Consent 

• IC = Negligence in providing information 

♦ Patient has the burden to prove (need to know for exam?): 

(1) ∆ doctor failed to adequately inform patient of a material risk before  securing consent to proposed treatment, 

(2) if patient had been informed of the risks they would not have  

consented to the treatment, AND/OR 

(3) the adverse consequences that were not made known did in fact occur  and patient was injured as a result of the treatment. 

• Rule re Physician’s Duty: A physician must inform their patient of the material  risks, benefits, and options/alternatives of the proposed treatment. 

• Two Standards (for what needs to be disclosed to patient for there to be IC) – 50/50 Jdx Split 

♦ Reasonable Physician Standard 

o What would a reasonable doctor tell a patient? 

o Easier for doctors – just need to tell patients what they NEED to know  (some patients better off not knowing everything) 

o Expert testimony required 

♦ Reasonable Patient Standard 

o What would a reasonable patient WANT to know about? 

o Easier for juries – no need for an expert b/c a juror is a “reasonable  patient” 

• Causation – but for (2 standards – jdx split) 

♦ Reasonable Patient Standard (majority jdx standard) 

o What a reasonable patient would have done (objective standard) 

1. But for the doctor giving X information, a REASONABLE  

PATIENT would not have consented 

♦ Subjective Standard (minority jdx standard) 

o What THIS patient would have done (subjective standard) 

1. But for the doctor giving X information, THIS patient would not  

have consented 

• Battery v. IC/Malpractice 

♦ Battery = no consent involved 

♦ IC = Doctor was negligent in telling patient everything they needed to know  to make an informed decision AND had the patient been told they would not 

have consented 

• Exceptions to IC (burden to prove falls on physician) 

♦ Risks that ought to be known by everyone or are already known to the patient ♦ Where full disclosure would be detrimental to a patient’s total care and best  interests a physician may withhold such a disclosure; ex. would alarm or upset an apprehensive patient 

♦ Emergency – patient cannot determine for themself 

o Cases: 

• Boyce v. Brown (1938) 

♦ Rule: When a professional is sued the standard must be affirmatively proven  by expert testimony (a jury may NOT speculate as to the required standard or  ∆’s departure as professional knowledge is not common knowledge) 

• Scott v. Bradford (1979) - IC 

♦ Rule: A physician must inform their patient of the material risks, benefits, and  alternatives to received informed consent. Disclosure requirements are  

jurisdictional (reasonable patient/physician standard). Causation standard is  jurisdictional (reasonable patient/subjective standard) 

4. Statutes (Negligence Per Se) 

 Re Exam: Statutes to be used on the exam will be provided on the exam. 

 Refers to statutes, regulations, ordinances 

 Allows ∏ a shortcut to prove what a reasonable person would have done by reference to  statute 

 Violation of the Statute: Negligence Per Se 

o ∏ seeks to replace the default standard with statutory language 

o Requires that there be an underlying duty at CL 

o Cases: 

• Osborne v. McMasters (1889) 

♦ Rule: One may be held civilly liable for damages caused by failure to uphold a duty imposed on them by a statute designed to prevent such injuries. 

o Here, a drug store clerk sold ∏ a deadly poison without labeling it as  

poison which led to ∏ consuming it and dying. 

o Reasoning/Policy: Sometimes the statute imposes a stricter standard (i.e.,  did they or did they not label the poison) which is thus easier for ∏ to  

prove. ∆ will try to argue for the default (RPUTC) standard. Court  

ultimately decides which standard to impose according to 3 (below)  

factors. 

• Stachniewicz v. Mar-Cam Corp. (1971) 

♦ Here, bar patron was injured in a brawl and sought to replace the RPS  

standard the statute or regulation. 

o Statute: bar must not give drunk people more alcohol; Regulation: bar  must kick people out when they are drunk 

♦ Test: Does the statute apply? – Court determines whether to replace the  standard with the statute/regulation/ordinance. (elements OR factors?) ⇒ The party seeking to prove the violation is a member of the class the 

legislature intended to protect. 

1. Here, the legislators intended to protect bar patrons (look to  

legislative history) 

⇒ The hazard that occurred is one the legislature intended to protect against.

2. Here, legislators intended to protect against injuries from bar fights  (look to legislative history) 

⇒ The statute/regulation/ordinance is appropriate for civil liability. 3. Appropriateness analysis: Can I make this work? Is there enough  

notice? Is it fair to put that much liability to the population  

(proportionality)? 

4. ∏ must prove causation 

5. Here, court accepted regulation and rejected statute 

• Reasoning: The statute is not adequate to prove causation  

b/c it cannot proven that the one additional drink is what  

caused ∏ to fall, but the regulation can be used to prove  

causation because if ∏ had been kicked out he would not  

have fallen and been lying there. (what if he fell 2 blocks  

away? Could they still be liable be they served him the 

alcohol? Why is the bar liable only because he fell on their 

property?) 

 Implied Right of Action (v. Negligence Per Se) 

o ∏ creates an entire cause of action in the absence of a supplemental statute o Cases: 

• Perry v. S.N. & S.N. (1998) – Applicability of Statute 

♦ Rule: McMasters Test? 

♦ Here, the court refused to apply a statute which requires people who have  contact with children on a regular basis with “have cause to believe” child  abuse is occurring to report. There is no CL duty to report here because the  statute only applies to those who “have contact with children on a regular  basis” and thus are presumably trained in the signs of child abuse. (ex.  doctors, teachers) 

o Reasoning: Court reasoned that applying the unreasonably high standard  set in the statute exposes too many people to liability. 

♦ Implied right of action because there is no CL negligence/tort action for  failure to report (as it only applies to certain people; statute must be  applicable). So, what is their claim? 

 Effect of the Statute 

o Court’s required adherence to statute is jurisdictional: 

1) Negligence Per Se: any unexcused violation of a statute is a breach; must be  excused by the judge (majority jdx) 

2) Rebuttable Presumption: created a prima facie case of breach, but can be excused  by a jury (minority jdx) 

3) Some evidence admissible, but a jury make a determination without a presumption (few jdx; relevant but not dispositive) 

o Case: 

• Martin v. Herzog (1920) 

♦ Majority Rule: An omission or failure to perform an affirmative act required by statute constitutes negligence per se. Negligence per se may constitute contributory negligence. 

o Here, trial court instructed the jury that they may consider the lack of  headlights but it is not required. Appellate reversed holding that the jury  must adhere to the negligence per se light rule (meaning all the jury has to  determine is causation and damages).

o Cardozo’s Reasoning: – Generally applicable laws were designed to 

protect human life, so when one fails to comply with those laws, their  

conduct falls short of what the law requires of everyone (= negligence).  

Here, Martin’s failure to use lights was negligent per se and the jury  

should not be permitted to discard it when analyzing his negligence. 

o Note re Contributory v. Comparative Negligence: 

1. contributory: ∏ barred from any recovery 

2. comparative: fault is fairly apportioned for mutual negligence (jdx  

dependent?) 

• Zeni v. Anderson (1976) – Excuse to Statute: Rebuttable Presumptions ♦ Minority Rule: In lieu of a negligence per se case, some courts adopt the  

approach that a statute violation constitutes prima facie evidence of  

negligence which may be rebutted by an adequate excuse (“rebuttable  

presumptions”) (minority jdx). 

♦ “Adequate excuse” to be determined by jury (jury has more power) 

o Here, the statue required that pedestrians use sidewalk, but ∏ did not as it  was made unsafe by snow. ∏’s presumption of contributory negligence  

was rebutted by the adequate safety excuse. 

5. Emergencies 

 Trigger: Gun to your head; car accident = unforeseen, sudden, reasonable person in an  emergency (depending on jdx) 

 Standard varies depending on jdx: 

o Some states use the Default Standard: What would an ordinary prudent person under  the circumstances? 

o Other states use Emergency Standard jury instructions: What would a reasonable  person do in an emergency? 

 Rule: One will NOT receive the emergency exception/instruction if they negligently  bring an emergency upon themselves. 

 Policy/Reasoning: Use of the word “emergency” affects the jury’s perception (= perceived as more imminent) 

 Cases: 

o Cordas v. Peerless Transportation Co. (1941) 

• Rule: Reasonable and prudent action is based on the set of circumstances under  which the actions took place (according to the jdx). 

• Sudden Emergency Doctrine: Sudden emergencies are unforeseen, sudden, and  unexpected. (In an Emergency Standard jdx, ∆ will argue that there was a sudden  emergency which warrants a jury instruction revising the standard.) 

♦ What constitutes a “sudden emergency” per SED? 

o Depends on F&C! (Ex. kid running in front of your car is not a sudden  emergency if you are in a school zone, behind a school bus, etc.) 

♦ Here, a robber jumped into a taxi and pointed a gun at the driver and told him  to go and the taxi driver responded by slamming the breaks and jumping out of the car. Car rolled onto the sidewalk and injured ∏. ∆ not held liable  

because of emergency circumstances. 

6. Custom (or use for breach) 

 Custom: what most people do in a given industry; relevant but not dispositive (for  standard) 

 Standard v. Breach 

o Could use for both

o Robinette thinks it makes more sense to talk about custom at beginning of breach  analysis (below) 

7. Mental Disabilities Standard 

 Majority Rule: We do NOT change the negligence standard for mental illnesses. o In the majority of states, sudden mental illness/episode does NOT get you out of  liability. 

▪ BREACH 

• Failure to meet the standard 

• Generally: 

- The Hand Test: If B < P(L) then ∆ is negligent. 

 B = Burden (cost) of adequate caution 

 P = Probability of accident 

 L = Seriousness of predicted injury 

- Custom: what most people do in a given industry 

• ∏’s Burden of Proof:  

- Burden of Pleading 

 ∏ has the problem, ∏ must get an attorney, ∏ must file a complaint that sets out factually  the claim & tie to legal cause of cation 

- Burden of Production 

 ∏ brings evidence into court to sustain cause of action; judge must decide there is enough  evidence to be presented to a jury 

- Burden of Persuasion 

 ∏ must persuade the finder of fact that your side is correct to a preponderance of the  evidence. 

*Note: Kentucky = only state to place the burden on ∆ to disprove after ∏ has proven; Reasoning: ∆ has better information to prove negligence  

• Types of Evidence: 

- Direct Evidence 

 Evidence which, if accepted as true, conclusively proves the matter for which it is offered (preferrable, but usually not available) 

▪ Ex. testimony; evidence that establishes a conclusion 

- Circumstantial Evidence 

 Evidence which, even if accepted as true, does not necessarily proof the matter for which  it is offered (not “bad/weaker” evidence; comprises most evidence at trial) 

▪ Ex. bank records; evidence that supports a conclusion 

• Slip-and-Fall Cases: Bananas, grapes, and milk, oh my! 

- Pin down: 

 Condition of the debris (ex. banana peel, milk) 

 Standard (ex. cleaning/walk-through procedure of grocery store) 

 Most S&F cases based on constructive notice 

- Cases: 

 Goddard v. Boston & Maine RR Co. (1901) 

▪ Rule: ∆ must breach their duty of care to be held liable. 

• Here, ∆ found not liable for negligence for PI received by ∏ slipping on a banana peel because ∏ did not breach a duty of care as peel could have just been  

dropped (no way of determining how long it had been there). 

 Anjou v. Boston Elevated Railway Co. (1911) 

▪ Rule: ∆ breaches its duty of care by not keeping areas free of debris which may cause  injury.

• Here, ∆ found liable for negligence for PI received by ∏ slipping on a black,  gritty banana peel because ∏ breached their duty of care by leaving the peel out  for an extended period of time. 

 Joye v. Great Atlantic & Pacific Tea Co. (1968) 

▪ Rule: ∆ may be held liable for negligence when they knew or should have known that  the premises was not reasonably safe. 

• Constructive notice = “Should have known” 

♦ Here, ∆ held not liable when grocery store not constructively notified of banana  on floor as they performed sweeps every 35 minutes & no way to determine how  the banana got there. 

 Ortega v. Kmart Corp. (2001) 

▪ Rule: A storeowner’s duty includes reasonable inspections of the premises to ensure safety of customers. (must remain constructively notified) 

• Inference of Negligence = (not switching the burden) Unless ∆ comes up with  evidence to the contrary, it sure looks like they’re liable (ex. ∏ shows inspections  did not occur & ∆ lacks evidence to rebut) how probative? 

♦ Kentucky Exception: places burden  

♦ Here, ∆ held not liable when ∏ injured from slipping on a puddle of spilled milk  at Kmart because  

♦ Is an inference of negligence constructive notice? 

 Jasko v. F.W. Woolworth Co. (1972) 

▪ Rule: ∆ is considered notified when their method of operation is inherently  dangerous, despite the non-occurrence of a previous harm. 

• Here, ∏ slipped on pizza being served on wax paper above slippery floors. ♦ Holding: ∆ was notified because of the inherent danger in their method of  

operation; ∆ need not be constructively notified when operation is inherently  dangerous 

 H.E. Butt Grocery Co. v. Resendez (1999) 

▪ Rule: If the method of operation IS dangerous = ∆ put on notice; If the method of  operation is NOT dangerous = ∆ not (yet) put on notice 

• Here, grocery store took several precautions to secure their grape display and was  found not liable when a customer slipped and fell on a rogue grape. 

• Res Ipsa Loquitor 

- “The thing speaks for itself.” 

 Negligence is presumed by the mere happening of an incident 

 Circumstantial evidence/minor adjustment to evidentiary law 

 Decided by a jury (RIL included in jury instructions when applicable) 

 Allows ∏ to evade a directed verdict and be heard by a jury despite insufficient evidence - 3 Effects of RIL Jury Instruction (without RIL instruction, ∏ loses per no evidence of  breach) 

 Judge decides which burden to apply by deciphering the strength of the  

inference/circumstantial evidence. 

1. It warrants an inference of negligence, which the jury may draw or not. (Vast  majority of cases) 

2. It raises a presumption of negligence, which requires the jury to find negligence if ∆  does not produce evidence sufficient to rebut the presumption. 

3. It not only raises a presumption, but also shifts the burden of proof to ∆ and  requires ∆ to prove by preponderance that injury was not caused by ∆’s 

negligence. (minority of cases)

♦ Ex. two trains crash into each other on the same track 

- Elements: 

(1) The event is of a kind that ordinarily does not happen without negligence (someone  messed up) 

▪ Ex. barrel flies out of building, elevator falls, trains collide/derail, single car crashes,  tire flies off of car 

(2) Other responsible causes, including the conduct of ∏ and third parties, are sufficiently  eliminated by the evidence 

▪ Rule out ∏ and 3^rd parties to point finger at who messed up and caused the harm - Cases: 

 Byrne v. Boadle (1863) 

▪ Rule: RIL 

• Here, ∏ was injured by a barrel of flour which flew out of a building and was able  to recover despite failure to meet burden of production. 

♦ No discovery at the time => ∏ unable to meet burden of production => court  

adjusts to allow ∏ to recover 

 Larson v. St. Francis Hotel (1948) 

▪ Rule: ∏ may not successfully argue RIL if there are third parties who may be  

responsible. 

 Cruz v. Daimler Chrysler Motors Corp. (2013) 

▪ Rule: ∏ may not successfully argue RIL if a significant time has passed in which time a third party may have caused the harm 

• Here, ∏ injured by faulty airbags was unable to sue car manufacturer because of  the passage of 3 years since ∏’s purchase. 

♦ Court reasoned that in the 3 years, other factors may have contributed to the  

cause 

 James v. Wormuth (2013) 

▪ Rule: In majority of jdx, RIL may be applied to medical malpractice cases with  expert testimony. Must supply the jury with information adequate to determine if  “the thing speaks for itself” in a medical context. 

♦ Reasoning: Because it was a medical decision to leave the wire in (something  that a normal juror could not evaluate), there MUST be an expert to advise. (It  

could have been a good decision to leave the wire in. Point: we do not know) 

 CAUSATION 

▪ Cause-in-Fact 

• Default Rule: 

♦ But for ∆’s breach, there would have been no harm. 

• Proof of Causation 

♦ Standard of Proof = Preponderance of the Evidence 

 50.0000000000001%; more likely than not 

♦ Cases: 

 Perkins v. Texas and New Orleans RR Co. (1962) 

o Default Rule: “But for” 

• Here, but for the train going 12 mph over the limit the ∏s would have died =  

breach of duty (speeding) not the “but for” cause of the harm. 

♦ Test: If you take away ∆’s wrong/breach and the ∏ is still injured, ∆ is not the  but for cause. 

 Reynolds v. Texas & Pac. Ry. Co. (1885) 

o Rule: When the negligence of ∆ greatly multiplies the chance of harm to ∏, the 

mere possibility that the harm “might” have occurred absent ∆’s negligence is not  sufficient to break the chain of cause and effect. 

• Reasoning: But for the lack of light and handrail (breach), ∆ would not have  fallen (harm); “might” not have fallen is below 50% preponderance standard.  Gentry v. Douglas Ranch (1998) 

o Rule: To establish “but for” causation, there must be a clear connection between the  lack of maintenance (breach) and the harm. 

• Here, ∆ testified that he thought the stair caused him to fall after repeatedly  stating he did not know what caused him to fall. 

 Kramer Service, Inc. v. Wilkins (1939) 

o Rule: ∏ must prove causation beyond 50%. 

• Here, one expert said no way and the other said 1/100 chance. 

♦ “Post hoc ergo propter hoc” – after this and therefore because of this 

 Concurrent Causes 

o Hill v. Edmonds (1966)  

• Rule: ∏ must prove ∆ was A cause-in-fact of the harm. ∏ does NOT have to  prove that ∆ was the SOLE cause-in-fact of an accident. 

• “Where separate acts of negligence combine to produce a single injury, each  tortfeasor is (potentially) responsible for the entire result, even though his act may  not have caused it.” (liability made proportional to fault/breach) 

• Here, but for the tractor in the road there would have been no accident, and but for  her negligent driving there would have been no accident. (but for applied to both  causes b/c BOTH are causes-in-fact) 

♦ Exceptions to Default “But For” Rule 

 Multiple, Sufficient Causes 

o Anderson v. Minneapolis St. Paul R.R. (1920) 

• Substantial Factor Test: Allow the jury to decide; “Is it a substantial factor?” ♦ Here, 2 fires merged and destroyed ∏’s property. If one fire were to be  extinguished, the other would still have been sufficient alone to cause the  harm. 

♦ Generally, there are multiple ∆s, but not always (ex. bog fire). 

• SF applied differently jurisdictionally: 

♦ CA – uses SF as default rule (used exactly like “but for”) 

 Determining Which Party Caused the Harm 

o Alternative Liability 

• Summers v. Tice (1948) 

♦ Rule: When 2+ ∆s breach and cause harm to a wholly innocent ∏, a court  may shift the burden to ∆ on cause (not breach). 

o Requires: 

1. 2+ breaching ∆s 

• ∆ pool must include/sue ALL possible ∆s (causes); must be a  

relatively small number of ∆s 

2. Wholly innocent ∏ 

♦ Here, 2 hunting ∆s both shot in the direction of ∏, causing ∏ to be struck by  one of the ∆’s pellet. Parties unsure whose pellet caused the harm. 

o Market Share Liability (Minority of jdx – about 6 states) 

• Majority’s rule = ∏ doesn’t recover 

• Sindell v. Abbott Laboratories (1980)

♦ Rule: When multiple manufacturers are ∆s who have breached and it cannot  be determined which caused the harm, manufacturers held liable based on  

their share of the market. 

♦ Requires: 

1. ∆s who breached 

2. ∏ joined a substantial amount of the market (substantial % of market  

represented in ∆ pool) 

3. Fungible product (ex. pills) 

4. Signature injury (not required but adds to ∏’s argument) 

o Here, ∏ with cancer sued top 5 manufacturers of cancer-causing drugs who  comprised 90% of the market. Court switched the burden, and ∆s who were  

unable to disprove fault were held liable proportionate to their share of the  

market. 

o Reasoning: Deterrence - If we put liability on these ∆ they are more likely to  be careful in the future. 

 Loss of Chance Exception (Medical Malpractice) 

o Med Mal Causation Conundrum: When people go to the doctor, they are typically  already sick to being with, so differentiating causes of issues becomes challenging. o Trigger: Misdiagnosis; below 50% chance of living at time patient does to doctor (if  50% not explicit, explain both) 

♦ 3 Approaches (Jurisdictional) 

1. Relaxed standard of proof 

♦ Damages unchanged 

2. Percentage change of chance of living lost is made proportional to the award amount ♦ Ex. you cost me 45% of my life, so now my heirs get 45% of the damages 

3. Traditional approach 

♦ 50.0000001% 

▪ Proximate Cause 

• For EXAM: Only deeply analyze PC when something strange happens (ex. unexpected) Step 1: Analyze Unexpected (go through ALL 4) 

Step 2: Analyze Intervening/Superseding 

Step 3: Analyze Public Policy (to specific fact patterns below) 

• Scope of Liability: ∆ are only held responsible for things that made the action negligent in the  first place 

♦ Ex. Car accident – driver only responsible for damage done to those around them (those they  are concerned with not injuring already), not someone several blocks away 

• Ryan v. NY Central R.R. (1866) 

♦ PC Reasoning: Courts must draw a line somewhere for various reasons. (i.e., insurance,  policy considerations) 

• Extent & Type of Harm 

♦ Rule: To be found liable, ∆ need not foresee the EXTENT of the harm as long as they can  foresee the TYPE of harm. 

 If ∆ CANNOT foresee the TYPE of harm, they are not liable. (Wagon Mound No. 2) o Once ∏ has proven foreseeability of the TYPE of harm, the EXTENT of their harm is FULLY RECOVERABLE. 

♦ Unexpected Extent of Harm (Eggshell ∏ Rule) 

 Eggshell ∏ always recovers! 

 Bartolone v. Jeckovich (1984) 

o Rule: Take your ∏ as you find them; the EXTENT of the harm need not be 

foreseeable for ∏ to recover. (ALL jdx*) 

• Eggshell Skull Rule: (followed by every jdx) 

♦ If the extent of a ∏’s harm goes beyond that of an ordinary person under the  circumstances, the ∆ is still held liable for the FULL EXTENT of the harm,  both physical AND mental. 

♦ *Eggshell Psyche Rule: Minority of states (~2) distinguish between physical  and mental harm for ESR. 

• ∏ must prove: 

1) ∆ breached the standard 

2) But for ∆’s breach, ∏’s harm would not have occurred 

♦ Unexpected Type of Harm (Split of Authority) 

 Polemis & Furness, Withy & Co. Arbitration (1921) 

o “Directly Traceable” Rule: If the negligent act would/might probably cause  damage, the fact that the damage it in fact caused is not the exact kind of damage  one would expect is immaterial so long as the damage is, in fact, directly 

traceable to the negligent act. 

• MINORITY jdx 

♦ For Exam: DT Rule same as cause-in-fact/but for. If ∆ is cause-in-fact, they  are also proximate under DT Rule. 

 Wagon Mound No. 1 (1961) & Wagon Mound No. 2 (1966) 

o Rule: The TYPE of harm must be foreseeable for ∏ to recover. No recovery for  unexpected type. 

• MAJORITY jdx 

• Unexpected Plaintiff 

♦ Palsgraf v. Long Island R.R. (1928) 

 Rule: The unexpected ∏ does NOT recover. (*as opposed to intentional torts transferred  intent) 

o Jdx Split: 

1. Duty (Cardozo) 

♦ ∆ not liable b/c they did not have a duty to ∏. ∆ had no reason to foresee ∏  being impacted by ∆’s actions, therefore no duty to ∏. 

2. Proximate Cause (Andrews) 

♦ ∆ not liable b/c they were not the proximate cause of ∏’s injuries. Must cut  off liability somewhere. ∆ has a duty of “due care” to everyone around them. • Intervening/Superseding Causes 

♦ When the acts of a 3^rd person/natural event break the causal chain between ∆’s breach and  ∏’s injury 

♦ Intervening v. Superseding: 

 Intervening: 

o Normal foreseeable interventions that do NOT break the causal chain (∆ still liable)  Superseding 

o Extraordinary unforeseeable and independent interventions that break the causal  chain (∆ NOT liable) 

♦ Fact Patterns: 

 ∏ sent to emergency room after car accident and ER doctor malpractices on them. =>  ∏ may recover for malpractice from party who caused initial car accident. 

o Original accident is proximate cause of malpractice; foreseeable that ER doc will  malpractice

 ∏ breaks leg in car accident 1, heals partially, then ∏ gets in car accident #2 and breaks  let in the exact same spot as #1. ∏ may sue the original ∆ for harm from accident #2.  (similar to Eggshell ∏) 

o Original accident is proximate cause of second break (b/c of pre-existing weakness) o The leg was weakened by original break and, because of that weakness, was injured  again in the same exact spot. 

♦ Cases: 

 Derdiarian v. Felix Contracting Corp. (1980) 

o Here, ∆ liable for negligence when they failed to take necessary precaution to protect  ∏ from traffic while working on the road. 

• Reasoning: This type of harm is the very harm we sought to prevent = harm  foreseeable => intervening cause 

 Watson v. Kentucky & Indiana Bridge & R.R. Co. (1910) 

o Rule Re Criminal Acts: Criminal acts are typically presumed to be 

SUPERSEDING and thus break the causal connection, BUT this may be overridden  if the criminality is foreseeable. 

• Here: 

♦ Superseding - If ∆ intended to start fire (criminal act), ∏ is NOT liable b/c  arson is unforeseeable 

♦ Intervening - If ∆ did NOT mean to start fire (mistake), ∏ IS liable b/c  

lighting a cigarette is foreseeable 

 Heinz v. Garratt 

o Here, R.R. let passenger off of train in area they knew (foreseeable) to be dangerous  and were found liable for ∏’s assaults. 

 Fuller v. Preis (1974) 

o Rule Re Suicide: JDX SPLIT 

(1) CL Rule: (Majority Jdx) Suicide by ∏ viewed as superseding cause which shuts  off liability to ∆. 

(2) “Irresistible Impulse” Rule: (Minority Jdx - CA, NY, etc.) Suicide is NOT a  superseding cause which shuts off liability to ∆ if it is a “irresistible impulse.” o Irresistible Impulse: ∏ simply cannot help but give into the urge; ∆ acts  

in a “rage or frenzy” 

▪ Here, just before committing suicide ∏ was reported muttering to  

himself, “I must do it.” 

o Suicide notes/other signs of preparation often suggest lack of  

“irresistible impulse” and thus liability to ∆ is cut off. 

 McCoy v. American Suzuki Motor Corp. (1998) 

o Rescue Doctrine: Allows an injured rescuer to sue the party that caused the danger in  the first place; “danger invites rescue” (Amateurs) 

• A rescuer is a foreseeable ∏. (Denounces “Assumption of the Risk” Defense) o Professional Rescuer Doctrine: (many jdx) Police officers and firefighters may NOT  recover from person who caused the peril the responder is called to. 

• Ex. Firefighter cannot sue negligent fire-starter for smoke inhalation while on the  job 

♦ Reasoning: Assumption of Risk 

• Unexpected Manner of Harm 

♦ Expected harm occurs, but in unexpected manner; unexpected manner of harm RECOVERS  Exact thing you are worried about happening happens, but in a bizarre way  Ex. Flaming Rat Case

• Public Policy 

♦ Expanding & Contracting Liability in Furtherance of the Public Good 

 For EXAM: only mention public policy re below fact patterns or clearly crushing  liability. 

♦ Dram Shop/Social Host Liability JDX SPLIT 

 Kelly v. Gwinnell (1984) 

o Majority Rule: (CA included) 

• DSL for minors & adults [greater liability b/c more experience, insurance, etc.]; • SHL restricted to minors (if ∆ serves alcohol to minors and they get hurt/hurt  

someone, ∆ may be held liable to injured party) 

♦ Here, expanding liability can reduce drunk driving. 

♦ Prescription Drugs 

 Enright v. Eli Lilly & Co. (1991) 

o Here, contracting liability can protect the availability of prescription drugs (refrain  from disincentivizing drug companies through excess legal restraints) 

♦ Crushing Liability 

 Crushing = this level of liability makes it unfeasible to continue production 

 DAMAGES 

• For EXAM: “There are damages b/c ∏ [inset harm here] (ex. broke her arm).” ▪ Compensatory Damages: 

♦ Purpose: Restore ∏ to her status before the harm; make ∏ whole 

• Specials (Economic Damages) 

♦ Medical Bills: 

 Past: 

o Medical bills, meds, treatments, etc. 

 Future: 

o Must have 2 experts testify 

• Doctor – to describe what kinds of treatment will likely be needed in the future • Economist – to explain how must the proposed treatments will cost in accordance  with inflation 

♦ Lost Wages: 

 Past: 

o Determine using past paychecks (ex. missed 2 months, compensated for 2 months) • If unclear (ex. waiter’s tips) – average out amounts from past 

 Future: 

o Establish the injury will inhibit ∏’s ability to collect income for a lengthy period of  time - How much of work life did ∏ loose? (more complicated for young people) o Typically given to jury to decide 

• Ex. difficult to determine future wages for high school student who claims to be  the next greatest NBA player (jury may look to specific characteristics of ∏) 

• CA – cannot factor race, gender, ethnicity into damages determination (starting to  spread to other jdx) 

♦ Property Damage 

 Market value at the time and place of the tort/cost to restore 

o Examples: 

• Car is totaled => ∏ gets market value at time of accident 

• Car needs repairs => ∏ gets recompensated for value of repair 

• Property is lost/unable to be used (rental prop unable to be rented) => ∏ gets 

market value for lost profits? 

• Heirlooms – some courts allow recovery beyond market value 

• Majority jdx have no emotional damages for pets (some states have legislation  that grants lumpsum for death of a pet) – just market value 

• Pain & Suffering (Non-Economic Damages) 

 Default/Traditional Informal Rule to calculate P&S award = 3x specials 

 Issues: 

o Vagueness – difficult to determine money amount proportionate to harm 

o Per Diem Argument – (disallowed by some states) attorney will argue for a particular  amount of harm damages per day then multiply to determine amount 

o Contingent Fees - ∏’s lawyers on contingency; P&S typically pays lawyers; usually  between 33-40% of total damages 

 Other considerations: 

o Judicial Control: 

• If damages amount “shocks the conscience” a judge may: 

♦ (1) remittitur/lower P&S damages 

♦ (2) additur/increase P&S damages [unconstitutional federally and in many  

states], OR 

♦ (3) remand for a new trial 

o Legislative Control: 

• Legislature may establish a cap on P&S damages 

♦ 6 states cap all damages 

♦ CA – only cap is on P&S for med mal 

o Collateral Source Rule: 

• If ∏ gets money from a source other than ∆, ∆ may NOT deduct amount from  collateral source from their own damages due 

♦ Ex. health insurance - ∆ does not get the benefit of ∏’s health insurance 

♦ Jdx – vast majority of states have done away with CSR 

▪ Punitive Damages: about 2% of cases 

♦ Purpose: punish & deter ∆; “Legal Spanking” 

♦ Must be INTENTIONAL OR RECKLESS CONDUCT (negligence does not get punies) • Standard of Proof 

♦ Clear and Convincing (as opposed to preponderance) ~66.6%; 2/3 

• Each state gets to decide their punie standards 

♦ 5 states without punies 

 Many states have a bifurcation rule: 

o Court must first determine if punies are applicable 

o Then at a second procedure they “let the wealth in” to determine punie amount • Split Recovery Statute: Mandates that a percentage of ∏’s punitive damages be paid to the state  Observed by ~8 or 9 states (50/50 or 75/25 split) 

 Majority of jdx allow ∏ to have all punies 

♦ Reasoning: Punies meant to deter, not compensate = 2w3q∏ NOT entitled to punies • General Notes/Rules: 

♦ Damages awarded ONCE 

 If the amount is wrong for any reason, too bad so sad 

♦ Never applicable to negligence, refers to INTENTIONAL or RECKLESS conduct • Constitutional Limits 

♦ Procedural Due Process

 Rules: 

o Must provide jury instructions explaining: 

• Purpose of punies 

• That jury may not use evidence of out-of-state conduct to punish ∆ 

• Need some process (jury instruction) to ensure no punishment for injuries to non 

parties 

• Trial court and appellate court review at a de novo standard 

♦ Substantive Due Process 

 Gore Factors: 

o Degree of reprehensibility of ∆’s conduct 

• 5 Reprehensibility Factors: (analysis) 

♦ Whether the ∆ inflicted bodily as opposed to merely economic injury 

♦ Whether ∆’s tortious conduct “evinced an indifference to or a reckless  

disregard of the health or safety of others” 

♦ Whether the “target of the conduct has financial vulnerability” 

♦ Whether the conduct “involved repeated actions or was an isolated incident” 

♦ Whether the harm was “the result of intentional malice, trickery, or deceit, or  

mere accident” 

o Ratio between harm or potential harm to ∏ and punies 

o Difference between punies and civil or criminal penalties imposed in similar cases  Rules: 

o ∆ may NOT be punished for conduct from out-of-state (may introduce evidence of it,  but not be punished – fuzzy jury instructions) 

o ∏ generally may not exceed a 9:1 ratio UNLESS court finds it reasonable to impose  a greater deterrent effect (ex. bed bug motel example; comps very low)