american tort law

American Tort Law

University of Insubria, Como, ItalyAnn C. McGinley

William S. Boyd School of LawUniversity of Nevada, Las Vegas

Class 1

The Court System; Branches of Government

Intentional Torts

Three Branches of Government

• The Courts (state and federal)• The Legislature (state and federal—Congress)• The Executive (The President and

Administrative Agencies; in states – the Governors and Administrative Agencies)

The United States’ Federal Court of Appeals

AMY E. SLOAN, BASIC LEGAL RESEARCH: TOOLS AND STRATEGIES 7 (4 th ed. 2009).

AMY E. SLOAN, BASIC LEGAL RESEARCH: TOOLS AND STRATEGIES 201 (4th ed. 2009).

Lexis-Nexis Congressional Universe, How Does a Bill Become Law?

American Tort Law

• State law• Common Law system• Sometimes codified in statutes• Common law vs Code law? • The Restatement of Torts

Tort cases in federal court

• Some federal laws governing torts• Diversity jurisdiction – citizens are of different

states (or of a state and a foreign country)• Federal courts apply the law of the state

whose law applies (usually where the injury occurred)

Importance of Facts

• How do courts decide cases?• Importance of facts• Binding or Persuasive Precedent• If Binding and it goes against you – Distinguish

the Facts; If it goes with you, Analogize the Facts

• Argue policy

Importance of Procedure

• Due Process – Constitutional Guarantee – “Fairness” “Opportunity to be Heard”

• Jury Trials• Role of Judge (determines applicable law) • Role of Jury (finds facts and applies law)• Motions to Dismiss; Summary Judgment

Appellate Courts

• Did lower court err in law?• May not revisit the facts unless the lower

court is the fact finder and the fact finding is clearly erroneous

• Will not usually overturn the jury’s fact finding but may find that the judge’s jury instructions were erroneous - case may be tried again

Standards of Review - Appellate Courts

• Questions of law -- look at the issue “de novo”• Questions of fact -- overturn a court’s finding

of facts only if “clearly erroneous”• Appellate courts do not take testimony – fact

finders had opportunity to see the witnesses testify – more qualified to decide the facts

Supreme Court (federal) or (state)

• Binding precedent• Stare decisis

Lawyers’ Fees in Tort Cases

• Contingency Fees

What are torts?

Types of Torts

• Intentional• Negligence• Strict Liability• Products Liability• Personal and Emotional Harms– Defamation– Privacy – Intentional Infliction of Emotional Distress

Intentional Torts

– Assault– Battery– False Imprisonment– Intentional Infliction of Emotional Distress– Trespass– Conversion

What does “intent” mean?

• Acting with purpose to bring about the result• Acting with knowledge that result is a

substantial certainty

Cohen v. Smith

• Battery• Intentional Infliction of Emotional Distress• Facts?• Procedure?• What court decided this case?• Issue?• Holding?

Definition of Battery• The Restatement (Second) of Torts: • "(a) he acts intending to cause a harmful or

offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

• (b) a harmful contact with the person of the other directly or indirectly results.”)

• Liability for battery = plaintiff's lack of consent to the touching. "Offensive contact“ occurs when the contact "offends a reasonable sense of personal dignity.“

Battery -- Elements

• A voluntary act• Touching• Harm or Offense• Intent to touch • Intent to cause harm or offense (or knowledge

to a substantial certainty that harm or offense will occur)

Definition of Intentional Infliction of Emotional Distress

• (1) extreme and outrageous conduct • (2) intent to cause, or reckless disregard of

probability of causing emotional distress • (3) severe or extreme emotional distress; and • (4) an actual proximate causation of

emotional distress by the defendant's outrageous conduct

Practice Problems

• Cohen v. Smith – What if the plaintiff had not told the doctors that she did not want to be viewed naked or touched by a male doctor? Would there still be a battery? Why? Why not?

• Consent can be a defense to battery. How would a defendant attempt to make out this defense in a case similar to this case?

Problems

• Cohen v. Smith – What is the difference between battery and intentional infliction of emotional distress?

• If you were a member of the jury, would you vote for the plaintiff in a) the battery case; b) the intentional infliction of emotional distress case?

Assault – Raess v. Doescher

Jury Instruction 10C -- Assault

• To establish assault, Mr. Doescher [the plaintiff] must prove, by a preponderance of the evidence, that Dr. Raess acted in such a manner that Mr. Doescher was in reasonable fear of imminent harm at the time when Dr. Raess had the ability to inflict harm. No physical contact had to occur so long as Mr. Doescher was reasonably afraid that such contact would occur.

Definition of Assault

• one acts intending to cause an imminent apprehension of a harmful or offensive contact with another person.

• Issue here– Did Dr. Raess intend to cause an imminent apprehension of a harmful or offensive contact?

• What is the evidence of intent?

Assault -- Elements

• Voluntary Act• Creates a fear or apprehension of imminent

harmful or offensive contact• Intent to create fear or apprehension of

imminent harmful or offensive contact

Practice Problem

• Raess v. Doescher – Should the doctor be liable for this behavior? Isn’t this ordinary behavior in workplaces, especially stressful workplaces?

• Did the defendant in this case have a purpose to bring about Raess’ distress? If not, how can Raess prove intent?

False Imprisonment -- Fuerschbach v. Southwest Airlines Co.

Elements of False Imprisonment

• Confinement of another• Within bounds• Against their will or consent• For an appreciable time, however short • Victim is aware of the confinement or harmed

by the contact

What was the defense here?

• Did it work?• Why? Why not?

Practice Problem

• Fuerschback v. Southwest Airlines – The defendants in this case were playing a prank on the plaintiff. How, then, can the plaintiff prove intent in this case? Does the intent have to be to harm the plaintiff or in a false imprisonment case, to confine the plaintiff against her will?

Trespass

• Voluntary entry upon the land of another• Without consent

Conversion

• Treating another’s personal property as one’s own. Converting that property to one’s personal use. eg. – finding a watch and keeping iteg. – borrowing a car and never returning iteg. – stealing a person’s diamond ring

Conversion Problem

• I borrow my brother’s tie and do not return it. I begin to wear it regularly. Is this a conversion? What if I take my friend’s car on a “joy ride”?

Trespass Problem

• Cat howling on the wall between my neighbor’s and my property. I throw a shoe at the cat and the shoe goes into my neighbor’s yard. Is this a trespass?

Image: Francesco Marino/ FreeDigitalPhotos.net

Key Terminology

• Liability• Battery• Consent• Privacy• Personal integrity• Damages• Complaint• Intentional Infliction of

Emotional Distress

• Attorney• State a claim• Allegation• Reversed and remanded• Jury verdict• Assault• Affirm the judgment• Trial court

Key Terminology continued

• Court of appeals/appellate court

• Compensatory damages• Punitive damages• Plaintiff• Defendant• Evidence• Intent• Burden of proof

• Preponderance of the evidence

• Substantial evidence• Motion for summary

judgment• False imprisonment• Good faith and

reasonable belief• Trespass• Conversion

CLASS 2Negligence

Negligence -- Elements

• Duty• Breach of duty• Causation (actual and proximate)• Harm

What Duty is Owed?

• Reasonable care – care that an ordinarily prudent person would take under the circumstances

• Would an ordinarily prudent person drop a banana peel on the sidewalk?

Was it a breach of duty to not have a handrail?

Magic Johnson

Photo by Rafael Amado

Doe v. Johnson

• Facts?• Who determines what the duty is here?

How court determines duty• Balancing of the following:• (1) Foreseeability of harm to plaintiff; • (2) degree of certainty that plaintiff suffered injury; • (3) closeness of connection between defendant's conduct and

injury suffered; • (4) moral blame attached to defendant's conduct; • (5) policy of preventing future harm; • (6) extent of burden to defendant and the consequences to the

community of imposing a duty to exercise care with resulting liability for the breach; and (

• 7) availability, costs, and prevalence of insurance for the risk involved.

What is the issue here?

• What does the court decide?• What happens procedurally in this case?

Guido Calabresi

Causation – Actual Cause

• Zuchowicz v. United States• Facts?• Issue?• Importance of the expert witnesses?• Why was it difficult to prove cause?

Proximate Cause

• Concept of limitation of liability• Where do we cut the chain of causation?• In Walsh v. Miller example – would it make

sense to hold Dr. Miller liable?

Palsgraf v. The Long Island Railroad Co.

Image: Tom Curtis / FreeDigitalPhotos.net

Palsgraf

• Cardozo – majority-• foreseeability

• Anderson – dissent (which is closer to today’s law)

• Accident does not have to act exactly as would be foreseen

• Look at distance in time and place

• How remote is the injury from the act?

Key Terminology• Negligence• Duty• Breach of Duty• Motion to Dismiss• Breaches a legal duty• Cause of action• Knew or should have known• Balancing factors• Actual knowledge• Foreseeable• Duty to act as a reasonable person

under the circumstances• Duty to inform• Actual cause

• Bench trial• Stipulate• A reasonable medical

certainty/A reasonable degree of scientific certainty

• But for cause• Circumstantial evidence• Proximate cause• Economic damages• Non-economic damages

Class 3

Medical Malpractice and Health Care Reform

Purpose of Medical Malpractice Claims

• Compensate victims• Deter negligence and encourage systems that

avoid negligent medical behavior• Approximately 100,000 people die every year

in hospitals in the US because of malpractice (hospitals, doctors, nurses, etc)

Proving Medical Malpractice = Negligence

• Duty• Breach• Causation (actual and proximate• Harm

What’s Different from Ordinary Negligence?

• Proving duty and breach requires establishing standard of care

• Expert testimony ordinarily needed to establish standard of care and causation

• What standard of care to use?- locality- modified locality- national standard

Expert Testimony in Med Mal Cases

• Who can testify?- expert in the field – in same specialtye.g. – a cardiologist will testify about what a reasonable cardiologist would do under similar circumstances

Res ipsa loquitur

• “The thing speaks for itself”• no expert testimony needed• If very obvious• Some states – regulated by statute – see NRS

41A.100

Concetta Tomasone

Concetta Tomasone

• What happened?• Does the statute NRS 41A.100 affect the proof

in this case?• Explain

Image: jscreationzs / FreeDigitalPhotos.net

Informed Consent – Smith v. Cotter

• Bodily Autonomy

• Can be held liable if Dr. failed to get the patient’s consent and the patient suffers a side effect

Smith v. Cotter

• Facts?• What does the plaintiff have to prove?– Lack of information and consent (What

information does the doctor have to give?– Causation – Plaintiff would not have undergone

the procedure if she had known of the risk and a reasonable person would not have undergone the procedure

Debates over Health Care Reform and Malpractice Reform

• Does malpractice law fulfill its purpose?– Compensate victims– Deter negligence of medical professionals?– Encourage better systems to avoid negligence?

– Many doctors say that the law leads to excessive tests and expenses – limit needed

– Some states – statutes limiting damages- NRS. 41A. 035 – limits non-economic damages

NRS 41A.035

• Limits non-economic damages• What are non-economic damages?• What are economic damages?• Who is harmed from the limitation?

Image: jscreationzs / FreeDigitalPhotos.net Image: Carlos Porto / FreeDigitalPhotos.net

Federal Health Care Reform

• Does not limit medical malpractice damages• Some say without the limit, costs will spiral –

Newt Gingrich• Others argue that medical malpractice suits

do not contribute to rise in cost of health care –Black, Silver, Hyman and Sage

Key Terminology

• Standard of care• Medical malpractice• Res ipsa loquitur• Rebuttable presumption• Compensate victims• Deter negligent behavior• District court• Informed consent• Conflicting evidence• Credible evidence

CLASS 4Vicarious Liability, Strict Liability, Products Liability

Vicarious Liability

• Respondeat SuperiorEmployers liable for torts committed by employees within the scope of their employment

• Issue: What does “within the scope of employment mean”

Strict Liability

• Certain activities – extremely dangerous• Eg.- blasting with dynamite, etc.• Toxic torts – environmental degradation• Nuisance• Common carriers (airplanes, trains)

Products Liability

• Originally – contract principles – breach of warranty, etc.

• Strict products liability – expanded concept to manufacturer and seller liability for defects in:– Manufacturing– Design– WarningRestatement (Second) of Torts, 1965

Restatement (Second) of Torts, Section 402A

• § 402A Special Liability of Seller of Product for Physical Harm to User or Consumer

• • (1) Seller of product in a defective condition unreasonably dangerous to

the user or consumer liable for physical harm caused to the ultimate user or consumer, or to his property, if

• (a) seller is engaged in the business of selling such a product, and• (b) it is expected to and does reach the user or consumer without

substantial change in the condition in which it is sold.• • (2) The rule stated in Subsection (1) applies although• (a) the seller has exercised all possible care in the preparation and sale of

his product, and• (b) the user or consumer has not bought the product from or entered into

any contractual relation with the seller.

Restatement (Third) of Products Liability (1998)

• § 2 Categories of Product Defect• • A product is defective when, at the time of sale or distribution, it contains a

manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:

• (a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;

• (b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;

• (c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

Comparison of Restatements (Second) and (Third) – Design Defect

• (Second) is more consumer-friendly• (Third) is more business-friendly• Some states favor the second and others the

third

Is there a design defect?

• Restatement (Second) – consumer expectations test

• Restatement (Third) -- risk/utility test. The plaintiff has the burden of proving that the risk of harm was foreseeable and that it could have been avoided by a reasonable alternative design. This proof often requires expensive expert testimony.

• Compare Leichtamer and Honda

Leichtamer - 1976 Jeep Model CJ7

• Facts• Issue• Holding• Reasoning

Honda Civic – 4 doors 1991

•

Image Source: Honda Motor Co. Ltd.

Passive Restraint Seat Belts

Honda

• Facts• Issue• Holding • Reasoning

Defective Warnings

• Liriano• Facts• Issue• Holding• Reasoning• Why not sue his employer? Workers’

Compensation

Guido Calabresi

Liriano

• Two types of messages conveyed by a warning?

• Why is not the obviousness of the danger sufficient to make a warning not necessary?

• Why didn’t the employee sue the employer?

Image Source: www.hobartcorp.com

HEPATITUS C CASES

Transmission Hep C

LAS VEGAS SUN, Oct. 13, 2009, at 1.

LAS VEGAS SUN, Oct. 13, 2009, at 2.

LAS VEGAS REVIEW-JOURNAL, Apr. 27, 2010, at 1A.

LAS VEGAS REVIEW-JOURNAL, May 7, 2010, at 1A.

Key Terminology

• Vicarious liability• Respondeat superior• Strict liability• Nuisance• Unreasonably

Dangerous Activities• Products liability• Manufacturing defects• Design defects

• Legally or factually insufficient evidence

• Court abused its discretion

• Contributory negligence• Motion for Remittitur• Technological feasibility• Economic feasibility• Warning defects

Class 5

Insurance, Damages – Compensatory and Punitive

Liebeck v. McDonald’s

Image: Roadsidepictures / flickr.comhttp://www.flickr.com/photos/roadsidepictures/236614443/

Liebeck v. McDonald’s Restaurants

• What happened?• What did she ask for before she got a lawyer?• How much did the jury award her?• How much was the damage award eventually

reduced to?• How was it covered in the press?

LAS VEGAS REVIEW-JOURNAL, May 9, 2010, at 2B.


Punitive Damages

• Permits a Verdict Winner to Recover Additional “Exemplary” or “Punitive” damages in addition to compensatory damages

Purposes and Rationale of Punitive Damages

• To Punish the Defendant/Tortfeasor for bad conduct beyond mere negligence

• To Deter the Defendant/Tortfeasor from similar bad conduct in the future

• To Deter Others from similar bad conduct in the future

• (Implicitly) to allow victim to be made more “whole” than would otherwise be the case because of special circumstances– Sub-silentio Recovery of Counsel Fees/Expense?

How Bad Must the Conduct Be?e?

• Controlled by State Law– No Federal Law (except for Constitutional Limits)

• Standard Varies With Each State• But all require more than mere negligence• A few states permit if conduct is grossly

negligent• Most require that conduct be intentionally in

disregard of victim’s rights. – Reckless disregard may be sufficient

The U.S. Supreme Court Enters the Punitive Damages Arena

• Until 1980s, Punitive Damages considered issue of state law only

• U.S. Supreme Court, responding to business defendant concerns, begins to examine whether large punitive damages are: – Excessive punishment in violation of Eighth

Amendment to Constitution;– Violation of defendant right to Due Process of law

(guaranteed in Fourteenth Amendment)

21st Century Supreme Court Cases

• Campbell v. State Farm Insurance (2004)– $145 million punitive award, $1 million compensatory

damages for insurer bad faith– Court vacates award because jury was allowed to consider

bad insurer acts in other states, with other product lines– Court states general rule: where compensatory award

significant, 9:1 is maximum punitive damages ratio although “reprehensibility” of defendant conduct most important factor overall

– On remand, Utah Supreme Court enters $9 million punitive judgment; U.S. Supreme Court declines to review

Key Terminology

Comparative negligence

Anecdotal evidence

Tort reform proposals

Statutory caps

Non-economic damages

Contingency fees

Statutes of limitationBad faith

american tort law

Documents