main torts updated outline
TRANSCRIPT
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Everyone owes a duty to everyone
Exceptions: Creasy v. Rusk for public policy reasons, relationship between parties
(pub policy come into play when people have certain relationships)
General duty owed to everyone else based on circumstances. Some things may
trigger different level of duty. Court rejected it in dangerous instrumentalities and
emergency situations. Different duty owed by children, and by those with physical
disabilities. People with mental disabilities held to ordinary standard though. Also
takes away intoxication as a standard.
(1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person
injured; and (3) public policy considerations.
Reasonable Person Standard
RULE: WWRPD?
RP is objective (compare to everyone) not subjective (personal)
General RP: What is reasonable and prudent for general person to do. We tell people
to meet RPS and move yourself up, pay, or get out of business
CASE: Vaughn v. Menlove: Haystack fire, they elim best judgment rule and
set a minimum standard for a reasonable person
Golden rule, from Parrot case, putting yourself in persons shoes, moral formula.
Parrot established what it means to be reasonable.
CASE: Parrot v. Wells Fargo: Package blows up buildings, Golden rule is
used here. A reasonably prudent person would act in such a way that
potential loss would be your own.golden rule
B
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Rule: amount of care needs to be look at in context with
circumstances and danger involved
Emergencies ASK KIM!!!
CASE: Myhaver v. Knutson: Man swerves to avoid another car and hits
another.
Sudden emergency standard:
1. The emergency has to come about suddenly without warning
2. The party seeking had not been negligent prior to emergency
3. Reaction was spontaneous without time for reflection
An Actors Knowledge and Skill (Different level of care NOT different standard)
CASE: Cervelli v. Graves: Truck driver with years of experience tries to
drive around a car, fishtails, collides.
Rule: As a policy it makes sense to say RP is minimal standard, but
if you can do better, the law will hold you to it. What theyve done
is basically combined the best judgment with RP while setting a
floor. Superior skill of individual is a factor in determining whats
reasonable under circumstances.
Differing Standard level
Application to Children (Lower Standard of duty)
CASE: Robinson v. Lindsay: 13 year old crashes snowmobile and 11 year
old loses use of thumb
Rule: Care depends on capacity of child. rule lets kids be kids, but
discourages dangerous behavior. The operation of a snowmobile requires
adult care and competence. Since defendant had operated these for 2 years,
he should know the care required.
Some states use reasonable child others use under 7 rule (where not
negligent at all). In this case standard raised by inherently dangerous or
adult activity so held to adult standard
Physical/mental disabilities
Physical Disability:
CASE: Poyner v. Loftus: Blind man misses bush and falls
o He asks for reasonable blind man standard, doesnt get
one because contrib. negligent
o Lower standard of duty
Mental Disability:
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CASE: Creasy v. Rusk: Man with alzheimers is violent to
caregiver,
Rule: A persons mental capacity, whether that person is a child or
an adult, must not be factored into the determination of whether a
legal duty exists. Not lower standard for duty.
Recklessness
??????????????????
2. Breach
Failure to execute or live up to ones duty
1. General evidence, who what when where(most cases here can tell what happened and why it was
unreasonable)
2. Statute violation: negligence per se
An act is considered negligent because it violates a statute (or regulation). In order to prove
negligence per se, the plaintiff must show that (1) the defendant violated the statute, (2) the
statute is a safety statute, (3) the act caused the kind of harm the statute was designed to
prevent, and (4) the plaintiff was within the zone of risk. In some jurisdictions, negligence per
se creates merely a presumption of negligence.
Definitions within Jurisdictions
Negligence per se: definitely goes to jury
When stat violation in juris that treats it as neg per se, you must find duty
breach causation damages if no excuse. If excuse must find breach unless
excuse is valid. Basically when no excuse being offered jury loses
discretion
Prima facie: evidence of stat violation goes to jury
You dont even have to give any other evidence to meet RPS, if evidence of
stat violation than enough to go to jury and can, if it wants, find breach.
They retain discretion to not find breach even if stat violation
Some Evidence of breach: evidence of stat violation may not get to jury b/c may not
be sufficient for jury to find breach
Weakest effect given to stat violations. Were not sure if its enough for
jury to consider by itself for breach. You will have to show violation and
all evidence to show not reasonable.
CASE: Martin v. Herzog: Buggy with no light, P is killed in accident D is negligent.
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Rule: The unexcused violation of a statutory duty is negligence per se and a jury may not
relax the duty that one traveler owes under a statute to another. Negligent conduct is not
actionable by itself unless there is a showing that such conduct was the cause of the injuries
incurred. So must still show causation and damages even if negligent by statute. You have to
rely on leg. Reasoning
CASE: Thomas v. McDonald: Man crashes pickup into a gang truck broken down on road with no
signs.
General rule: When two cars traveling, duty of avoid in collision is placed on second driver
absent of unusual condition or emergency.
Negligence per se rule: When stat is violated the injured party is entitled to an instuction that
the party violating is guilty of negligence, and if neg proximately cause or contributed to
injury, then injured party entitled to recover
In order for doctrine of negligence to apply P must show he is member of class that
stat was designed to protet and that harm he suffered was type of harm which stat
was intended to prevent. He was part of class and no signs, so they reverse for him.
What happens when violation of a statute?
CASE: Wawansea: Boys buy cigarettes and one drops it lighting wood and and causing
damages.
Statute cited had to do with teen cigarette smoking so does not apply to type of harm
caused here. Has to be same harm that occurred in this case prop. Damage
Legitimate Excuses
CASE: Sikora v. Wenzel: Deck attached to condo collapses. Landlord didnt know not up to
code. Neg per se creates strict liability so doesnt matter if know or should have known but
here there was legit excuse.
Lack of notice: not knowing is not enough, needs to be one of two things
1. Actual Notice
Do they know based on fact (ex. City tells him about code, or tenants say
wobbly)
2. Constructive Notice
Is notice never actually given but assume they should know like records at
city hall. If info is available and reasonable p would have found it, then
even if didnt look it is constructive
Like claiming you dont know about statutes, here they had bad
record so no notice.
3. Custom
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Relevant evidence; not negligence per se, its just relevant and pretty persuasive depending on
case
High vs. Low, difference of wal mart and tj hooper
CASE: TJ Hooper: Tugboats crashed didnt have radios that could call out which was
standard
Cant use custom as a defense, a reasonable person would have had the radios. Do a
B
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Many difficult rules/confusing terminology. Make sure words are what we mean and when rules apply
along with substance of why rule and why it exists. Burden of causation always starts with P.
Actual Cause: Cause in Fact
Physical or historical cause of accident, what made it happen, linking breach of duty to damages
1. But for test (surest/most simple way of proving cause) Not about finding one and only cause but
about finding cause to look to. Burden on P not that high, doesnt have to be sufficient cause just a
cause
CASE: Cay v. Louisiana: Drunk man falls over side of traffic bridge.
Court had to prove accident and no other things to show fall was cause of death
based on height of wall. This case shows there can be multiple causes in fact
(darkness, walking on wring side, intoxicated which does indiciate contrib. neg.)
RULE: But for the Ds negligence, this would not have happened.
HYPO: Pam on cruise ship, Bob hits her, she falls in and drowns. He is cause in
fact.
Alternatives to But For
2. Multiple sufficient causes (shifting burden to D)
Looks at whether D is substantial factor, he has to prove hes not. Some states by stat decided
all P has to show is D substantial factor which is not the same as this exception to but for,
dont use this unless told.
Each cause would have to be sufficient alone to cause the harm.
CASE: Kingston v. Chicago: Fire from train and natural fire consumer mans house after
meeting up.
Ps burden is to prove that nw and ne fire sufficient to cause entire damage of
property. If P can show multiple sufficient causes for damage, then burden shifts to
D to show that they were not substantial factor to the cause. If they cannot prove
this, jury gets the case to prove whether actual causation.
Here as long as P proves MSC, D has burden to show not substantial factor.
Goes to jury to decide D substantial.
Wisco and other states have substantial factor rule, not but for, just show
this and as long as enough evidence, can go to jury. Exam start with But for
and work through it.
CASE: Brisboy v. Fibre: Man develops lung cancer, says it was from working for one comp
for a few months.
Dont have to show dominance, just have to show substantial factor of his lung
cancer.
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3. Concert of Action
Not enough for But For or MSC so move to concert of action
3 types of concerted action:
1.. common design, the one who designed this w/actor just as bad
2. knows the other is engaging in tortious behavior, Substantially Assist them you are
bad
3. Substantial Assistance and own tortious conduct, your own act is negligence in
and of itself
These are elements and not rules, dont have to prove all.
5 factors need to prove substantial assistance: dont need to list them just know they had a
relationship had to know the act was bad, didnt stop them. Its basically trying to make you
partially responsible for friends behaviors.
CASE: Shinn v. Allen: 2 buddies drinking, didnt eat, asks for ride home, kill her husband.
4. Alternative Liability
When P has to rely on this, P is generally required to show the parties hes bringing into court
acted negligently with similar risk, that they basically did the same thing so we can say well
probably it was one or the other. Some juries only allow with 2 ds, some dont allow this
at all.
CASE: Summers v. Tice (big case): Guys hunting, quail flies up, both men shoot and hit
summers in eye and mouth. Both of those so firing are liable for the injury suffered by the
third person although only one of them could have caused the injury.
For harm resulting to a third person from the tortious conduct of another, a person is liable if
1. He knows that the others conduct constitutes a breach of duty and gives substantial
assistance or encouragement
2. OR Gives substantial assistance to the other in accomplishing a tortious result and
his own conduct separately considered constitutes a breach of duty to the third
person
Alternative liability shifts burden to Ds to prove. Summers doesnt have to prove at
all in this situation. D has to prove causation since more than one cause. It is unjust
for summers not to be compensated. We know one of you did it but going to hold
both liable. This is possible with the thought that both of them are negligent bc
summers was innocent. Maybe only one hit him, but both were negligent, so
allowing to go forward without showing causation out of fairness. Up to tice and
simonson to prove the other is the soul cause. If cannot prove it, both liable. As a
matter of law both are treated as causes in fact, not because they both are, but bc both
engaged in negligent activity we dont want summers to be without compensation.
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Cant prove under but for because dont know who hit him. Not concerted
action bc didnt get together to plan this, didnt substantially assist, they
both independently wanted to shoot the quail, no common design. Two
different damages, so two different lawsuits. Bullets hit different things.
5. Market Share Liability
Mass torts like fertility drug ex. Merck 30%, Pfizer 10% etc. When Ps won the suits, each
had to pay percentage of market share. Really not popular and only available in jurisdictions
which liberally favor P.
6. Lost Chance of Recovery
Generally 3 approaches to lost chance
1. All or nothing: more traditional approaches a result of negligence, needed better than or
equal to 51% chance of better outcome
Suggest more likely than not, with this rule you get all the damages if prove since
you would have had a different life
2. Difference (most likely needs to be substantial), still all or nothing pay out, then we want to
make sure these cases created a substantial difference in the outcome of the case
3. Lost opportunity for a better outcome, difference substantial most likely, in percentage
attributable to doctor, with proper care she would have had 40% chance of walking, but her
chances dropped to 20% with negligence, so recovery would be 20% of value of walking.
This says basically doctor was a but-for cause in the 20%, the loss of the opportunity to walk.
CASE: Lord v. Lovett: Mistreated her spinal injuries, she sufferes slight paralysis, wants lost
chance of opportunity
Only in medical
CASE: Petriello v. Kalman: This case the bowel obstruction hadnt happened yet like lord
case where she couldnt walk.
If P can prove there exists a 51% chance that his injury is permanent or that future injury will
result, he may receive full compensation for that injury. If only 49 percent, recover nothing.
All or nothing standard. Here have to show increased risk of harm. Lord case was
already lost chance.
Proximate Cause (seen in limiting liability section)
Superseding Cause (See later)
Limiting Liability:
CASE: Palsgraf Case (most important cases in torts): Man tries to get on train, drops package of
fireworks causes chain where scales fall on woman.
Two different approaches to limiting liability based on duty or proximate cause
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Judge Cardozo talks about duty to foreseeable plaintiff, Palsgraf is not, limits on
level of duty. Foreseeability jurisdiction
Forseeable Ps are the only ones we can impose duty for, we care about
what can reasonably anticipate danger because it defines who our duties are
to and what our conduct should be. Who is in danger and what kind of
danger are we dealing with to decide actions. Have to be able to see at
moment of conduct the care that is needed to be able to indentify who the
duty is to.zone of danger Here limited to immediate people.
Duty should be restricted by forseeability
Judge Andrews: duty is to everyone; (foreseeability of harm) limits on level of
causation Directness jurisdiction
Duty isnt limited to foreseeable ps. You owe duty to the world, so guard
owed duty to palsgraf b/c negligence caused a chain of things. Any person
should be able to come back using causation principles to come back and
sue beginning negligent party.
Cardozo argues duty to the world with scare people from doing anything,
too big of a burden of liability. Andrews does say there is stopping point
somewhere by limiting causation
Look at directness of harm, substantial factor of causing harm,
remoteness of harm, foreseeability, continuous natural sequence
etc.
WISCO FOLLOWS ANDREWS!
Cardozo looks from moment before the push, Andrews looks from
explosion of package
We should look at moment before push bc in torts we want a duty
for actions we can control. They really should have come out with
same judgment with different views.
If it should have same outcome anyway, whats the point?
You need to look at what is foreseeable in each torts cause, the harm or the plaintiff.
Formal difference of limiting liability through different avenues
Duty is a question of law and prox cause is a question of fact. If there is a prob with
duty then palsgrafs cause is dismissed before a jury. A legal question decided by
judge related to forseeability of plaintiff. So no case. If we allow Andrews
perspective, and look through prox cause case does go forward and jury has the
chance to decided whether foreseeable harm through perspective of railroad guard.
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Philosophical issue: we owe duty to the world says Andrew, cardozo says only duty
to foreseeable p and not to the rest of the world. Big diff in world view. States
adopting the different views basically adopt a philosophical life view.
Both are active theories, P has to prove duty and proximate cause
Limiting Liability: Duty
CASE: Hegyes: Files suit for injuries to fetus that were cause by an old accident.
RULE: Persons are required to use ordinary care for the protection of those to whom
harm can be reasonably forseen. It establishes and limits the principle of negligence
liability.
Following Cardozos rule, looks at foreseeability of Ps. Could not reasonably
foresee harm to a fetus years from the accident. No duty to baby because never a
foreseeable P. Even though cause in fact of babys harm, not foreseeable.
CASE: Graff v. Beard: Party guest leaves drunk, hits motorcyclist.
Many pub policy considerations: Making something strict liability is bad, effects
everyday actions, assuming you can control a guest or recognize intoxication means
you patrol everyone and not fair to ask of them. There are exceptions based on
relationship like we talked about in blinka which could also cause concert in action,
but they are not related or anything.
Rule: In absence of a relationship b.w the parties giving rise to right of control, one
person is under no legal duty to control the conduct of another, even if there exists
practical ability to do so.
Limiting Liability: Proximate Cause (Andrews view)
Directness
CASE: In Re Polemis
Whether ds negligent act was continuous natural sequence to ps harm.
That is are there any intervening acts, acts that breack the chain of
causation, that resulted in the ps harm.
You can have superseding or intervening
Foreseeability: doesnt care about directness, looks at foreseeability of harm
Reasonably aware that damages to the p are possible based due to ds negligent
actions or omissions
Superseeding cause over rules it because the harm was not foreseeable
CASE: Tieder v. Little:
Eggshell w/foreseeability
CASE: Schafer/Hoffman:
Substantial Factor Test
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Know it exists, not tested on it
Intervening/Superseding Causes
4. Damages
END OF WHAT PLAINTIFF HAS TO PROVE
Defenses
Affirmative Defenses
Defenses basically say, yes P proved all elements of torts, but I should still have to pay less or be less
liabile to defeat Ps lawsuit in whole or in part. Not attacking substance, these are on the D to prove.
Contributory or Comparative Fault/Negligence Defense
Contributory Negligence
Only a small number if jurisdictions
CASE: Wright v. Norfolk: Dump truck and train collide. Contributory negligence
you get all or nothing.
Since the jury knows you get all or nothing, they may manipulate findings to
basically help out the victim and ignore his contribution out of sympathy.
This style lets the plaintiff pay for it all and the d pay for nothing when he
was also at fault
Comparative Negligence
Pure Comparative
Court says well if both are negligent the jury needs to decide their percentages and
the d pays the P the portion of damages attributable to him. Ex. D 45% negligent, P
55% responsible, the P gets 45% of damages in this type of jurisidiction.
As long as P can prove D is at least 1% responsible based on duty, breach,
etc., they get 1%. The only way a case gets dismissed is if P cant prove D
negligent at all
CASE: Dobson v. LA: Wrongful death suit by treetrimmers family/elec. Wire.
They do a B
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P can be no more than 49% responsible. Still gets percentage of damages the d
caused. Wisco is this type but modified?
CASE: McIntyre v. Ballentine: Two men drinking/driving collide.
RULE: So long as a pl negligence remains less than the dfs negligence the
pl may recover; in such a case, pls damages are to be reduced in proportion
to the percentage of the toal negligence attributable to the pl.
Trying to change the law from contributory to comparative. They end up
adopting 49%. Why this rule? Thought it was most compatible with fault-
based tort system. Important for them that if p will recover anything he
needs to be less at fault than the d. P cant be more than 49% responsible.
Have to retry when the jury decides they are equally at fault because before
it didnt really matter percentages.
A jury assigns percentage still!!!!
o Verdict: negligent by X percent, and negligent by Y
percent. They can still manipulate percentages because
they know the 1% difference can mean 0 money or some
money.
CASE: Jensen v. Intermountain???????
Recklessness:Higher level of negligence, gross negligence. Willful and wanton. You are aware of
risk but take no steps to avoid it. Because you have actual awareness, higher level of culpability and of
wrongness.
Contributory Jurisdiction
CASE: Coleman v. Hines: Drinking, boss offers to drive, still drinking accident and
death
This woman says she was negligent but driver was reckless/grossly negligent, wants
to be compared on different levels. They say no, they were both willful/wanton
She triesLast Clear Chance rule (which she fails)
1. p by own negligence placed herself in position of peril from
which she could not escape
2. d saw or by exercise of reasonable care should have seen and
understood the perilous position of the p
3. D had the time and the means to avoid the accident if d had seen
or discovered ps perilous position
4. D failed or refused to use every reasonable means at his
command to avoid impending injury to p
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5. P was injured as a result of ds failure or refusal to avoid
impending injury
LCC Doctine mostly for breaking ties in contrib. juris but also used in
comparative to allocate fault percentage.
Comparative Jurisdiction
CASE: Downing auto: Pit crew member pinned by car, use Burke/Mendenhall cases
to decide. Court chooses Mendenhall case. PURE JURIS
Mendenhall says sometimes recklessness looks like intent sometimes little
bit worse than negligent and it depends on facts of each specific case. And
if it is a factual decision and degree of badness is for jury to decided and to
allocate the percentages.
MENDHALL IS THE MAJORITY APPROACH UNDER
REASONING THAT IT IS CASE BY CASE DETRMINATION
AND COMPARATIVE FAULT IS MEANT TO ALLOW FOR
COMPARISONS AND NOT ALL OR NOTHING DECISIONS
ESPECIALLY IN A PURE JURIS LIKE THIS. MINORITY
JURIS USE BURKE LOGIC. Burke says jury cannot allocated
fault since at their core, recklessness and normal negligence are on
two different fault levels.
Assumption of Risk Defense
Primary Assumption of Risk
Clover ski case, no duty on part of d when p is held to have taken assumption of risk when
inherent in actions. This says no duty, so no breach can be there so cannot go forward
Secondary Assumption of Risk
It does not disturb the 4 elements, can still prove all but then say regardless of everything, I still
shouldnt have to pay
Express assumption of risk: Some party literally agreed to take on risk and release liability of
defendant, like a waiver, oral agreement, release
Here a court will look at type of assumption of risk to see if okay per public policy
and also if the release is defective by own purpose.
CASE: Turnbough v. Ladner: Scuba diving injury
Not a matter of public policy because of nature of activity
BUT this is a broad release which is bad because it lets them ut of gross
negligence and too broad of language
3 THINGS TO LOOK AT:
1. One of the problems is standard k
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No negotiation and mutual agreement between parties
2. Court here focuses on intent/language of K
Here negligence of instructor not listed specifically
3. Control is final factor
He had no control, relied on her and was hurt
Implied assumption of risk: no agreement explicitly made but actions of p show they
assumed the risk and should be held to own damages
Jurisdictions will treat this differently based on compara. or contrib.
3 elements
1. Awareness/know of risk
2. Appreciation for the risk
3. Voluntary acceptance of risk
Generally assumption of risk is a matter of fact not law and should got to jury. It is
also not really a duty issue but can have the effect of negating duty.
CASE: Schroyer v. MeNeal: Woman walking to room slips on ice and breaks ankle,
Contributory Juris.
Here we look at the 3 elements of assumption of risk because ct says lower
ct confused contrib. negligence with assumption of risk
CASE: Davenport v. Cotton: Falls when floodlight he reported being out is out in
stairwell 50% Negligence Juris.
Have to look again at the 3 factors
Ct says when they adopted compara they did basically did away with
assumption of risk (Wisconsin) and are deciding what to do with it
Rhode island says assumption of risk remains a valid defense, and
even when compara, the P gets barred from injury because when
you know the risk and voluntarily accept the risk you consent to
your injury basically. Has the same effect as express or implied in
other juris. Barred from recovery. Assumption of rish means yoou
get nothing, but if contributory, they will compare and you could
recover.
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West Virginia says what they used to call assumption of risk is just
another way to determine fault in negligence. And the whoel point
of comparative fault is to determine who did how much. Basically
you can still recover. Here they can find contrib. neg and/or
assumption of risk. Assumption is reasonable or unreasonable type
of fault contrib. is also a type of fault, both of these faults can be
compared against ds fault which is negeligence and we can
allocate percentage compared to that.
The problem with these differing views is the careful v. careless
person, in RI the woman who steps around spill pop and still falls
gets nothing because she took risk, could recover in WV for
something. Carelss person texting while driving doesnt know the
risk exists so they will recover in RI and not WV.
CASE: Wagenblast: School requiring a release to be signed before playing sports
Issue: Void for public policy?
Ct. lists 6 things that would make it void for public policy: what they are getting at
with the releases, what kind of business party engaged in, does public policy forbid
us from enforcing it
Major problems because publicly regulated activity, ct worried about unusual
bargaining power, control of duty, ct concrerned bc students under control of the
coaches who are not liable. Just factors, dont have to meet them all to void.
Mitigation Defenses do these apply to particular jurisdictions?
The law doesnt want you to sit at home and do nothing just to collect more from other people
Fault approach: Comparative jurisdictions
Here a D has to show they did everything reasonably possible to help injuries.
For this one you have to show unreasonable behavior and failure to mitigate.
This is breach and causation, an incation after the accident that causes further
damages
Based on causation, you have to show Ds actions caused further injuries or at least didnt
prevent them
Causation approach: contributory jurisdictions
This looks at how much failure to mitigate caused the further damages or injuries.
Ex. P owes 100k, his causation makes 30k, then they owe him 70k BUT subtract his
percent of negligence here
In contributory jurisdiction:
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Only gives P what D negligently cause. Just about reducing damages based
on the mitigation.
Seat belt doctrine
APPORTIONMENT OF DAMAGES
Joint and several liability rule
Common law rule
Both Ds responsible for the money (say 100k) and P has option to go to either one for it. The
law doesnt care who pays as long as innocent party gets the money.
BUT later, joint tortfeasors can sue another to get some money back
Pro Tanto: Contribution b/w two ds comes in here and can divide the
damages between them. Basically: D can sue another for half they owe
This was all based off contributory system where P was innocent and we want to protect the
innocent and let the guilty figure it out later
Several Liability Rule
Wisconsin Rule:
Limited to amount of negligence attributed to person
51% fault threshold rule, you are severally liable up to 50% but once your reach 51%
the judgement against you is for full amount of damages. You become jointly and
severally liable. If responsible by majority share, not unfair to make you pay for
whole amount. Allows to shift risk of insolvency to defendant.
In Wisconsin if jones 51%, Richardson 30@, piner 19%, 1mill reduced by
piner, and jones pays the rest with r paying like the rest, 300k or something.
VICARIOUS LIABILITY
Employer-employee relationship (Cant really sue for company both because they differ on who is
negligent?)
Respondeat Superior
P does not have to sue employee as well. BUT does have to prove ALL three elements
1. Negligence
2. Of employee
3. w/in scope of employment
This rule says the employee was negligent and the employer is liable for his
actions
It gets tricky in that if it is intentional negligence of employee then this
doesnt apply but if its someone like a bouncer and in scope of job and
benefits employer then its okay
ALL THREE ELEMENTS NEEDED FOR IT TO APPLY!
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Negligent Supervision (negligence of the employee)
This is not vicarious!!! You are suing employer directly
Here you say the company owed the person a duty to supervise their employees better and
they owe him.
1. Negligence
2. Of employer
Other issues:
Independent contractor:
Employers are not liable under Respondeat Superior for the actions of ICs, you
cant meet the employee prong
In the case we did in class, the IC met enough of the 8 factors to show he was more
near an employee so they counted him as such
Off the clock:
Not within the scope of employment
Coming and going rule:
Not within scope of employment when punch in and out. Commute is not part of the
benefit of employer.
Special errand:
Exception to coming and going rule to allow respondeat superior. Even if
off the clock, employee is still within scope of employement because
coming and going from special errand. Employer is benefiting from you,
and you are on the road per the employers request.
Complete departure:
If you make a complete departure from the errand, a frolic then
it is for your benefit and not the employers because they shouldnt
have to pay for your mistakes
If you engage in a detour, they are still responsible.
For these two you need to look at a few things like intent of employee, the
nature, time, and place of employees conduct, and the work the employee
was hired to do to determine whether it was a frolic or a detour
Employers in some jurisdictions can pullIndemnification
They pay it all now and expect it back 100%. Companies say, I didt do anything wrong an
legally I may have to pay for you now, but I want back what you really owe.
Theories of paymentwhat are these theories about? Do some juris use one or the other?
Deep Pocket Theory:
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most of the time an employee is probably unable to pay a p, so we allow p to get to the deeper
pocket of the employer. Maximize chances of p being able to recover. This is one way to
justify respondeat superior. Here it is about who has the money.
Indemnification would really apply under here so unless a jurisdiction is really
for DP, indemnification isnt really allowed
Risk spreading theory:
employer is better situated to get money to p. Here it is about who is able to spread the loss
better. Employee can only go to bank account but businesses can go to mulptiple ways to get
costs, like customers etc. Everyone pays a little bit and not as damaging as when one person
has to pay all. They also have insurance, premiums go up, proxy agent.
Enterprise risk theory:
paying for employees negligence is a cost of business basically. It is foreseeable that
employees may be negligent and you should guard against it. If you want employees who
give you benefits, you should have to pay if they do something.
Risk avoidance theory:
encourages employers to minimiize risk. Employer is in a better place of control, to exercise
control in reasonable manner. They have control over equipment, tasks, workplace, they
should get an incentive to try to minimize risk, which is created by saying you are responsible
for negligence of employees. Not directly responsible like negligent supervision but kind of.
PROFESSIONALS (MALPRACTICE SUITS AND STANDARDS APPLYING TO
PROFESSIONALS)
Professional standards are one of the big exceptions to reasonable person!!
Custom standard
D has to prove actions were custom for practice at the time. NOT REASONABLE
STANDARD!
In case, no other blood banks run those tests, what is custom for a blood bank to do?
When D can prove custom, they win on a matter of law
It seems like a lower standard but it fluxuates depending on what is customary in the area or
industry, generally a higher standard
We dont want to question in hindsight, the choices of the doctors
Can potentially use BPL of you want to show cost analysis.
3 types of standards for customs we looked at under this
Strict locality rule:
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In old says, this was the rule, custom is only standard of the doctors in that
locality. Think Little House on the Prairie or Baby Boom, only one doctor
who is also a vet, you can only compare to doctors around there b/c small
towns with limited resources.
This can be problematic if only 1 doctor SO!....(MOD LOCAL RULE)
Modified locality rule:
Look at other localities of similar size and economic makeup and compare
their activities to the small town doctor, youd have anoter doctor or expert
to explain those customs
Concern: maybe theyd get together to set small town standards low,
probably not though
National rule:
Courts then moved to this because technological advances so far along and
concern was still low standards that court decided to compare doctors in
similar practices on similar scale
Jurisdictions differ as to which they apply, some with small town doctors
still choose modified locality, BUT majority of the situations national rule
applies.
Wisconsin applied this one?
Reasonable Doctor standard
Wisconsin follow this, most follow custom
They operate on their own codes and laws that are higher than the reasonable person and these
customary. Follow what is reasonable for a doctor in this situation
Informed consent:
Two standards:
Prudent doctor standard
If done with custom standard, or prudent doctor standard (same thing), you would
look at what other doctors in this field customarily or actually do in these circs. Here
we look at materiality in what probability of risk to occur.
Risk focused
Prudent patient standard (wisco uses this)
Disclosing all material risks to patientand taking into account what best for
individual patient to make decision, focused more on patient. Take a look at patients
history to disclose which risks are likely, you need to disclose all the things of
materiality that may change their mind in either way, to give consent or not give
consent.
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So something that would be a risk that would allow them to choose either way.
Consent focused. Increasingly jurisdictions are looking at this.
This gives jury more discretion because more subjective by taking in circs of this
particular patient based on their medical, emotional, psychiatric. Would a person in
similar circs need to here these risks to make an informed decision?
Patient focused
Doctor subjectively decides what patient needs to now and juries will
objectively look at what a prudent patient under these circumstances needed
to know and would have consented to
Have to show causation? Would prudent patient have undergone with what
they knew or should have known?
Wisconsin disregards custom! Thats why we use reasonable doctor and prudent patient
How do custom/reasonable doctor match up with prudent standards?
LANDOWNER LIABILITY
Considers the status of the P - who was the person that was injured
2 standards fortrespassers
Mere trespassers = recklessness
Criminal trespassers = intentional harm
Rationale for different rule
Don't want to give trespassers an incentive
Implied Assumption: Burden of prevention is on the party who has more knowledge of the
area
Allows for 1) foreseeability and 2) a flexible RPS
Reasonable not to warn a trespasser when you don't know they're there.
The burden of foreseeing a trespasser is great
Exception to trespassers
Attractive Nuisance Doctrine = Child
Common law: Child is attracted to an artificial condition
Why different?
Children will be children
They can't protect themselves or appreciate risks in the same manner
HOWEVER, when a child appreciates the risk, the reason for the standard is gone,
he is now treated like an adult.
Restatement
Artificial condition that caused the harm, does not have to attract the child.
Animals - domesticated; more commonly artificial
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Presence is unusual
Foreseeably dangerous
Swimming pools
Not usually an attractive nuisance, unless painted to look shallow when it's no
Invitee:
Owed ordinary care
Who:
Public (land opened to the public)
business guest (people there for business transaction that benefits businessowner or land
owner)
Not subjective to simply what owner knows, its what the ownershould know.
You have a duty of inspection to discover conditions on your land
Licensee:
Owed duty that landowner will not recklessly harm them
Who: Social guest (anyone outside of first two conditions that you invited), you know them and they
have permission
Courts have said in addition to reckless notion, this says the landowner knows of dangerous condition
and owes licensee to reasonably warn licensee of dangerous condition known to landowner and not
licensee, or fix the problem.
Wisconsin approach:
They get rid of the categories basically, but there is enough of a distinction to leave trespassers etc. in
their own categories. They make a distinction between people with and without permission
Ordinary care?
Duties from the commodore case?
Rescuer duties
Firefighter rule
Not allowed to sue and recover for negligence for an act that they normally would be doing
during the job. In the line of duty
Rescuer doctrine
good Samaritan, if you go to help the person you are helping cant sue you unless you were
grossly negligent
the casino had the duty, owners of hotels etc., you are required to get help as fast as
possible for patrons that need medical attention, and the casino did.
NIED
NIED - Negligent Infliction of Emotional Distress
1. Traditional Rule: Physical harm that causes pain and suffering is all recoverable
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"Impact Rule"
Can't recover unless there is some sort of impact
Reasons for impact rule
Prevents fraudulent claims
Causation - how do you know it was caused by the negligent act of the D
Tradition - didn't allow people to collect money for fright
2. NIED: Emotional harm that led to physical damage
"Zone of danger rule" is adopted
Fright must be the proximate cause of the harm
P has to be in the immediate area of physical danger - could have suffered an impact
Physical manifestation - emotional harm must have led to some physical injury
Reasons for Zone of Danger Rule
Fraudulent claims - limits those allowed to recover for fright
Additions to Zone of Danger
Foreseeable Ps - foreseeable that close relationship causes more shock.
Several Factors for bystander recovery
Proximity to the scene (kind of close)
Direct observation
Familial relationship
Above are the Dillon rule (about foreseeability) and some jurisdictions add serious
injury or death AND no physical manifestation needed.
Economic Loss Rule
If your losses are merely economic, they are not recoverable
Rationale: About drawing the line (ex - cars stuck in traffic and late for job
interview)
Exception: If you can reasonably foresee the loss (ex - termite inspector)
Strict Liability
Two types of cases
1. Animals
3 ways SL applies to damage by animals
1. If wild animal
As long as your wild animal causes harm, you are strictly liable
2. Domestic animals with vicious tendencies
Owner knew about vicious tendencies and knew about them, if
they are there and known then there is strict liability
Ps burden to prove the D had notice of the tendencies
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3. Domesticated animal in wrongful place
Not where it is supposed to be and causes harm, the right place
being the pen or land etc.
She mentioned something about propensities of the animal?
2. Ultra hazardous activity
There are 6 factors according to the restatement (dont have to meet all to go
forward)
With this you dont have to prove fault, just show causation and harm and
that is sufficient
Why have strict liability?
1. Reciprocal risk theory
we impose SL because on party is imposing an unusual risk to others that that person
is not faced with himself, the other party is not imposing same kind or level of risk
Driving is reciprocal, we all impose same risks on each other
When ultrahazardous, this is rare, and uncommon risk we impose
strict liability because one person engaging in activity others do
not
2. Best cost avoider theory
who between the two parties is best cost avoider?
The person who engages in unusually risky activity is one who
knows about risk and can best guard against it. P typically has less
knowledge than one engaging in activity. One taking the risk is
best to avoid costs of injuries etc.
Generally in case of animals.
The negative though, people who act as carefully as possible and doing utmost
still liable
Defenses in SL
In comparative negligence
Most defenses dont work
In contributory negligence
Contributory defense doesnt work
Assumption of risk may
INTENTIONAL TORTS
Battery
2 required elements
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1. Intent to cause a harmful (usually physical) or offensive contact (imminent apprehension of
a harmful or offensive contact)
2. make contact OR make person think you are going to contact
A contact usually occurs that is harmful or offensive - still contact if touching a piece
of clothing that is touching the person's body
General intent crime, not specific
Any harm will do, don't need the specific kind of contact that ultimately results
Requirements
Some sort of intent to cause harmful or offensive contact
D is liable for unforeseeable unintended harm
**Diff from negligence - negligence is cut off at foreseeability
Focus of battery
Focus is on the intent
Want to get at the intentional wrongdoers
"Offensive contact"
Objective test - reasonable sense of personal dignity
Can consider subjective to say that they wouldn't be offended
Punitive damages are awarded when the court finds:
Some sort of malice
Depraved indifference
Court usually considers the size of company or individuals income
Extra knowledge about an individual may create offensive conduct
"Intent"
A minority of jurisdictions say there has to be a hostile intent. They have dual intent:
An intent to make contact
An intent for the contact to be harmful or offensive
+ still need contact to occur
The majority of jurisdictions (WI) has only one intent
Intent to make contact - does not need to be harmful or offensive contact
Contact causes harmful or offensive contact
Have to take into account the context of the contact.
Has he threatened other people before?
Has he done other things to make you scared?
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Number of people involved, time of day?
"contact"
With the body of a person or something attached or closely associated to the person's
body. Does not need actual awareness of the contact at the time that it occurs.
Assault
What is assault?
Imminent apprehension of a battery felt by the victim. You fear you will be harmed
basically.
You have to suffer emotional distress
You have to show intent: an intentional act to intimidate or cause apprehension of batter
An intentional act designed to cause fear and actually causing fear
2 required elements of assault
1. Intent
2. Injury: emotional distress
ED is determined by what is reasonable for someone to feel
Cant just be words alone
"Imminent apprehension"
Almost like you're flinching because it's about to happen
If there is a belief that you should be able to continue doing or not do something then
conditional language is no longer conditional.
Even with conditional language you must take context into account (words
are not enough).
"Intent"
Intent for battery and assault are the same.
Intent will transfer from victims
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Intent to commit an assault can transfer to satisfy intent to commit a battery
Basically just need an intent to do the action and then look at what happened
Ex) intent to hit Bob but he ducks - assault
Intent to scare him but you hit him - battery
Swing at bob but miss him and hit pam - battery to pam
Even with wrong victim or different intent you can still sue.
Swing at bob and miss him and he doesnt know - nothing
Defenses to intentional torts
Neccessity
Proportionality: self defense, defense of others, defense of property
Can never use deadly force defending property
Consent Defense
The defense of consent is determined by the objective test.
Look at the P's behavior from the D's point of view
The other person has to be able to rely on your consent
Express consent - say you consent
Implied consent - from his behavior it looks like he is consenting
Consent is only for those actions which are "within the rules of the game"
Determine what is objectively reasonable for that game.
Why is consent a defense?
Public policy concern - we may value the activity eg) sports
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Value trying to promote free will
If consent is present it takes away the intended harmful contact
Withdrawal of consent
Have to communicate the withdrawal; similar to how you have to communicate the
original consent
Scope of consent
Consent must be based on the nature of the activity that the P is being involved in.
Have to know what you're consenting to
Fraudulently obtained consent is equal to no consent at all
Only for those things within "the rules of the game"
Amount of force
Factors to consider
Peer pressure - may not be as voluntary anymore
"rules of the game" - what is usually expected in this situation
Relationship
Nature of the activity
Ds knowledge of the circumstance and concealing it from the P
Self Defense
2 main elements
Necessity - must be necessary to prevent or avoid the harm
You must believe that the other person is going to come back at you.
It's not about a past punch, it's about being hit again
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Proportionality - proportional to the harm towards you
Consider retreat, location, non-aggressor
Intentional Infliction of Emotional Distress
"Outrageous" Conduct Tort
It's not limited to fear of physical contact like assault, IIED is more general
Elements
Intent to cause severe emotional distress through extreme and outrageous conduct
Severe emotional distress occurs
"Outrageous conduct"
Unusual, extreme, beyond all possible bounds of decency in a civilized society, type of
behavior normal people wouldn't want to deal with.
Look at the totality of the circumstances
Power over the D; know of individual's susceptibility; length of time
What test?
Ordinary person with ordinary sensibilities
Ordinary person = someone who is similar to a member of the community
Objective standard localized to the community to which it applies.
"Severe Emotional Distress"
Some courts require an expert to come in and explain why the P has emotional distress
Prevents fraudulent claims - requirement is severe emotional distress
Other courts say expert testimony is not needed.
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12. Apportionment of Damages
13. Vicarious Liability
14. Professionals
15. Landowners
16. Duty to Rescue/Rescuers 17. NIED
C. STRICT LIABILITY 639-41, 648-51
D. INTENTIONAL TORTS
1. Battery15-17, 23-30
2. Assault 39-43, 46-49
3. Consent 49-52
4. IIED 72-85
E. TRESPASS & CONVERSION
Trespass to Land 729-31
Trespass to Chattel & Conversion 736-41
Necessity 742-45
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End of affirmative defense
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3 defenses
contributorty negligence: unreasoanbel behavior to p in casuing of
accident, in tradition contrib. juris p gets zero even if d negligent as well,
in comparative have to look at rules 49/50/pure to see if zero fo some
percent
Some rules: recklessness (reply to claim or can act as further
defense of ds recklessness, can come into calculation); last clear
chance (contribu neg juris, the p can still recover if d had last clear
chance. More of a concept rather than a doctrine to show d might
have been more negligent than p); also sometimes peoples
percentages Unit rule,
Assumption of risk
Secondary assumption of risk
Divides into express and implied
Express: language of release/waiver/oral
Implied: looking at assumption of risk based on
behavior of p, have to answer whether p knew of
risk, appreciated risk, and voluntarily accepted.
If contrib. and they assume, p gets zero. Compara
some say assumption of risk is basically consent like
express assumption so they get zero. Most treat it
simply as another aspect of fault to assign damages
o Wisco v. unit rule
o Fault v. consent
Mitigation
Causes increased damages after accident rather than before like
contrib. In comparative they may follow causation rule or fault
approach and treat it as another way to allocate percentage.
Contrib use it as a way to lower damages
Other rule: Seat belt defense, some treat it as mitigation
even though maybe not. Some juris may cap, some see it
as a duty.
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Big issue: We have to separate this from primary case of p. P sues a d and has
to show duty breach etc. If show all four, a d may defend by attacking one of
four elements or may bring up affirmative defenses to avoid or reduce amount of
damages. When resort to affirmative defense, they say even if you prove all
these things against me, I shouldnt have to pay or should pay less. After all of
this we apply our damages rules, 50/49/pure/contrib.
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