Torts Outline Robert C. RecckiaDean Simons December 2007Basic Tort Law – Best Barnes 2nd Ed.

Torts

Intentional Torts

BATTERY

6 Elements of BatteryPITANOPerson – An entity that committed the act. Is a dog a person?Intent – Mindset of actor. Subjective.Touch – made contactAnother Person – recipient of the contact. Is a dog a person?No Consent – test for consent. Implied? Explicit?Offensive/Harmful – Objective test for Offensiveness

1) Intent to Contact w/o permission~~~ Must be intended, cannot be accidental or negligent (Waters v. Blackshear – Kid put firecracker in another kid’s shoe)~~~ Doesn’t have to be rational choice – Can be crazy/schizophrenic choice (Polmatier v Russ – Russ beat father-in-law w/ beer bottle – legally insane criminally and not able to make rational choice)

2) Intend Contact that is Harmful/Offensive~~~ Need not intend the actual harm that occurred (Nelson v. Carroll – Carroll poked Nelson w/ barrel of handgun, accidental discharge)~~~ Offensive means ‘disagreeable or nauseating or painful because of outrage to taste and sensibilities’. Offensive Contact is offensive to reasonable sense of personal dignity. (Leichtman v. WLW Jacor Communications, Inc. – Radio talk show host repeatedly blew cigar smoke in the face of a anti-smoking advocate guest)~~~ Offensive contact need not be harmful – intent to violate interests of another person sufficient. (Andrews v. Peters – Peters buckled Andrews’ knee – Andrews fell and injured herself because of it. Bodily contact offensive if it offends a reasonable sense of personal dignity.)Subjective Test for Intent – Defendant desired to contact the plaintiff OR was substantially certain that a contact would occur as a result o the defendant’s act.Objective Test for Offensiveness – Evaluate defendant’s conduct in terms of societal standards and a “reasonable sense of dignity”.

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~~~Must understand that the contact would be harmful/offensive – NOT sufficient just to intend contact, but also need not intend the specific harm that occurred. (White v. Muniz – Alzheimer/dementia’d old woman hit Muniz (caregiver nurse) in chin while changing diaper.)

Damages for Intentional TortsInjury – the invasion of any legally protected interest of another.Harm – the existence of loss or detriment in fact of any kind to a person.

~~~ An actual injury need not be shown to establish liability for battery. “De minimus non curat lex” – the law doesn’t involve itself in trifling invasions of other’s interests. Nominal damages for injury without harm. (Taylor v. Barwick – Prison guard (Barwick) poked/hit inmate (Taylor) in the butt with a stick.)

ASSAULT

Apprehension of imminent harmful or offensive contact. The injury caused by assault is the invasion of the plaintiff’s peace of mind by causing apprehension of imminent harmful or offensive contact. This is the injury that must be intended, not any other specific harm.

7 Elements of AssaultIPAAIOCIntentionalPlacingAnother PersonApprehension – aroused in the mind of a reasonable person. Words alone insufficient.Imminent – contact will occur without significant delay. ‘Almost at once…’Offensive/Harmful Contact

PJI “An assault is the intentional placing of another person in apprehension of imminent harmful or offensive contact. A defendant is liable for assault when (he, she) intentionally causes another person to become concerned that the defendant is about to cause a harmful or offensive bodily contact. In order to commit an assault, the defendant must have the real or apparent ability to bring about that harmful or offensive bodily contact.”

~~~ Any act that causes a reasonable person to be in apprehension of battery is an assault. Surrounding factors (group, gun) can create the apprehension of harm required for assault. (Cullison v. Medley – Medley family entered as a group into Cullison’s trailer at night, threatening him and shaking holstered gun at him for talking w/ 16 year old daughter. ‘Jump Astraddle’ him.)

~~~ The threat of the assault must be of immediate harm. Can’t be threat of future harm, even near future. (Brower v. Ackerley – threatening phone calls ‘I’m going to find out where you live and kick your ass’ NOT imminent.)

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Transfer of Intent Among People and Between Torts

Transfer of Intent between Torts – Plaintiff who suffers a harmful or offensive contact can recover for battery even if Defendant only intended assault. Alternately, Plaintiff who suffers apprehension of imminent harmful/offensive contact can recover for assault even if the Defendant only intended battery.

Transfer of Intent among People – Defendant that intends to commit assault and/or battery against one person that ends up committing assault and/or battery against another will be liable to that other as if they were the intended target.

~~~ Transfer of Intent among Torts and between People (Hall v. McBryde – Teenage McBryde fires handgun at car kids are riding in to scare them away, accidentally hits neighbor. Intent to commit assault on kids by shooting at car, treated as intent for battery to neighbor. By aiming and firing handgun at the car, Defendant intended to assault kids. This intent transferable to the intent requirement of battery on neighbor.)

DEFENSES to ASSAULT and BATTERY

1) Consent

2) Defense of Person

3) Defense of Property

A) Consent - Person voluntarily relinquishes their right to be free from harmful or offensive contact or the imminent apprehension of such contact. Consent can be either Express or Implied. Consent to Contact, not Consent to Harm. Once given, must clearly convey intent to revoke consent.

Elements of Consent

1) Knowing

2) Informed – If DEF conceals an important fact that would affect decision, not informed consent.

3) Voluntary

4) Either Express of Implied

~~~ Entering into a sport or game grants implied consent to physical contact consistent with the rules of the game. (McQuiggan v. Boy Scouts of America – McQuiggan hit in the eye with paperclip while playing with other scouts shooting paperclips. By joining into the game, he consented to getting shot with paperclips.)

~~~ Consent without knowledge of risks is equivalent to no consent. Requires informed consent. (Hogan v. Tavzel – Tavzel (husband) infected Hogan (wife) with genital warts

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while trying to reconcile marriage. Husband aware of infection, failed to warn Hogan or take any precautions. Consent to sex, not consent to being infected – Consent to Contact, not Consent to Harm.)

~~~ Voluntary participation in a fight is consent to incur blows, unless force in excess of that necessary is used and its use is not reasonably anticipated. (Richard v. Mangion – Richard suffered eye injury in fistfight w/Mangion. Leaving safety of house to go to rope swing where he knew Mangion was waiting to fight him was consent to fight.)

B) Defense of Self and Others

Proportionality is general determining factor for level of force usable in self-defense. Proportionality elements are

i) the interest the actor is protecting

ii) the injury or harm threatened by the other

Greater force allowable to protect self than car, greater force allowable to prevent being stabbed versus being slapped. Deadly force only to prevent serious bodily harm.

Serious Bodily Harm – Harm w/ risk of fatal consequences or loss of function of any important member or organ.

Objective Test for Deadly Force:

IF…

1) Actor actually fears serious bodily harm, AND

2) Reasonable person in the actor’s position would also fear serious bodily harm,

THEN actor may defend self with deadly force.

Extent of force used NOT measured by the harm suffered, but by the amount of harm the defendant intended or was likely to inflict.

~~~Generally, not allowable to use dangerous weapon in self-defense if attacker is not armed and only committing battery with his fists. Factors can influence this… (1)Reputation of attacker, (2) belligerence of attacker, (3) size and strength difference between parties, (4) overt act by attacker, (5) threats of serious bodily harm, (6) impossibility of peaceful retreat. (Slayton v. McDonald – McDonald retreated into home, Slayton followed him in knowing that McDonald had a loaded shotgun. McDonald warned Slayton away while on the phone with 911, Slayton kept coming, McDonald shot him in knee. Slayton met all 5 factors above, justified self-defense.)

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~~~ “Defense of family” defense prevents liability if defendant uses no more force than is reasonable and necessary AND there is an immediate need of such defense. Not valid for attacks made in the past or to prevent threats of the future. Priviledge to use force to defend self, not right of revenge or retaliation. (Young v. Warren – Young argued w/ Warren’s daughter – father comes over w/ shotgun, orders Young to leave. When Young stops on steps, Young prodded him in the back, shotgun went off.)

C) Defense of Land and Personal Property

“Defense of Self and Property” requires the need to feel threatened as a justification of self-defense.

Woodard v. Turnipseed – p 66~~~ A person has the right to defend himself and his property with as much force, but no more, as reasonably necessary to accomplish the task if the person is imperiled by another.

NY Defense Statutes

35.10 – Use of Force(1) Parent/Child under 21 – force for discipline or promote welfare. No deadly force.(2) Warden – force for order and discipline. No deadly force.(3) Common Carrier – force to maintain order. Deadly force to prevent death.(4) Anyone – force to stop suicide. No deadly force.(5) Doctor – force for medical treatment with consent or in emergency. No deadly force.(6) Anyone – force for self-defense, defense of another, defense of premises, prevent larceny or criminal mischief to property or to make arrest. (Deadly separate).

35.15 – Force in defense of person(1) Physical force in defense of self or another unless:

(a) DEF provoked attacker w/ intent to cause injury to another(b) DEF was the initial aggressor – unless DEF withdrew and conveyed and attacker continues(c) Physical force was product of agreed combat.

(2) No Deadly physical force UNLESS:(a) Other using or about to use deadly on you. Still no deadly if able to knowingly retreat in complete safety and may avoid need for deadly by retreating. No duty to retreat IF:

(i) in own home and not aggressor(ii) police officer(iii) kidnapping, robbery, rape, sodomy(iv) burglary – see 35.20(3)

35.20 Force in defense of premises and/or burglary(1) Anyone – force to prevent damage to premises. Deadly only for arson.

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(2) Owner/Authorize Person – force to prevent criminal trespass. Deadly only for arson/burglary – see (1) or (3).(3) Owner/Authorized Person – Deadly for burglary ONLY in dwelling or occupied building.

35.25 Force to prevent larceny or criminal mischiefAnyone – force to prevent larceny or criminal mischief to property other than premises. No deadly force.

218 Defense of lawful detentionFalse arrest, false imprisonment, unlawful detention, defamation of character, assault, trespass, invasion of civil rights.

(1) Detained in a reasonable manner(2) Not more than a reasonable amount of time to permit investigation

(a) Sufficient time to take a statement(b) Sufficient time necessary to examine employees & store records.

(3) Reasonable grounds to believe guilty(a) Concealed possession of unpurchased merchandise(b) Possession of item intended to defeat security system(c) Possession of recorder in movie theater.

(4) Does NOT authorize taking fingerprints

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

4 elements of I.I.E.D.~ extreme and outrageous conduct~ intent to cause, or disregard of a substantial probability of causing, severe emotional distress~ a causal connection between the conduct and the injury~ severe emotional distress

Requires that the conduct… 1) Outrageous~~~ Test for outrageousness is an objective test, based on a typical community member’s assessment of the conduct.

a) “Conduct otherwise permissible may become extreme and outrageous if it is an abuse by the actor of a position in which he has an actual or apparent authority over the other, or the power to affect the other’s interests.” (Zalnis v. Datsun Thoroughbred, p. 73 – saleperson keeps car – ‘French Whore’.)

b) “There is no liability where the PLA has suffered an exaggerated and unreasonable emotional distress unless it results from a particular susceptibility to such distress of which the actor has knowledge.” ~~~ To be outrageous, the conduct must be so extreme in degree as to go beyond all possible bounds of decency to be regarded as atrocious and utterly intolerable in a civilized community. “Exclaim Outrageous” test. (Strauss v. Cilek p. 75 – wife had affair w/ husband’s childhood friend – wrong, but not outrageous.)

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2) Severe emotional distress~~~In addition to establishing outrageous conduct, the PLA must show that he suffered severe emotional distress as a consequence of the conduct. Some reprehensible conduct may escape liability if the victim tolerates it without suffering harm. ~~~ Does NOT require expert testimony – can rely upon…

a) physical manifestations of distressb) subjective testimonyc) the flagrant and outrageous nature of the defendant’s conduct.

~~~ The jury is generally capable of determining whether a claimant has suffered a serious mental injury.(Drug-baby case – Dr. insisted mother used rugs, spread rumors in hospital despite negative tests – Miller v. Willbanks p.78) 3) Be intentional or reckless~ Recklessness is disregarding the substantial probability of a serious harm associated with a certain conduct.~ Does not require intent for the harm caused in the sense of desiring it, or being substantially certain it would occur, the defendant must have consciously disregarded the risk of the harm occurring.(Security cameras set up in women’s locker room for security reasons – disregard involuntary filming of undressed women. Trade and share tapes w/ others. Dana v. Oak Park Marina p. 82)(Green v. Chicago Tribune Co. p. 85 – photo’s of dying son over mom’s objections – must be present for transfer of intent – immediate family need not show bodily harm, others must.)

Intentional Infliction of Emotional Distress

“… so extreme in degree as to go beyond all possible bounds of decency to be regarded as atrocious and utterly intolerable in a civilized community”.

Where outrageous conduct directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress…(a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm; (b) to any other person who is present at the time if such distress results in bodily harm

NEGLIGENCE

Is Negligence an appropriate basis to determine who should bear the loss in a torts case?

Abnormally Dangerous Activity

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If an activity is deemed to be abnormally dangerous, liability is imposed on the defendant because the act is abnormally dangerous

4 Elements of Negligence

Duty – Def owed the Plaintiff a dutyBreach – Def breached that dutyCausation – Def’s conduct CAUSED some harm to the PlaintiffDamage – Plaintiff was HARMED by the Def’s conduct

Whether or not there is a duty is a LEGAL question that is determined by the Court as a matter of law.

Jury applies the “reasonable person” standard to determine the whether the behavior was reasonable. (Jury determines BREACH) (Generally a matter of fact)Whether Plaintiff’s damage was caused by that breach is a Matter of Fact.Whether the Plaintiff was damaged is a Matter of Fact.

The ‘Reasonable Person’ standard is a objective norm… one that people can determine independently.Standard of care is reasonable person – objective, not subjective – stupid person doesn’t catch a break. (Defectively built hayrick near neighbor’s land self-immolated and burned neighbor’s property – Vaughn v. Menlove p. 91)

“The measure of care against accident which one must take to avoid responsibility is that which a person of ordinary prudence and caution would use if his own interests were to be affected and the whole risk were his own…”(Unknowingly transporting box w/ nitroglycerin – nitro leaked, box exploded in warehouse damaging neighbor’s (PLA) building. Parrot v. Well’s Fargo p. 93)

Reasonable Conduct as balancing costs and benefits“Unreasonable conduct is merely the failure to take precautions that would generate greater benefits in avoiding accidents than the precautions would cost”Economics CAN be a measure of reasonable conduct - Hand Forumla B < P L (Financial Burden must cost less than the Probability of loss times the cost of the Loss. McCarty v. Pheasent Run, Inc. p. 95)

Especially Dangerous InstrumentalitiesOnly one standard of care – Reasonable care. What is reasonable varies depending on the danger. “The greater the danger, the greater the care which must be exercised…” (PLA helping repair gas tank – tank exploded – PLA attorney wants jury charge w/ ‘high degree of care’ – denied, only reasonable degree of care Stewart v. Motts p. 100)

Emergencies“Sudden Emergency” doctrine – NOT A DEFENSE, only a factor in determining reasonable care.

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Sudden Emergency, in absence of negligence, means that person confronted w/ a sudden emergency and no time to contemplate best reaction cannot be held to the same standard of care and choice as one who has time to deliberate.Split-second decision not as harshly critiqued as thought out decision.(Car coming towards driver, swerved to avoid, hit 3rd party. No time to look for better option. Myhaver v. Knutson p. 104)

Actor’s Knowledge and Skill

“The existence of knowledge, skill or intelligence superior to that of ordinary men will demand conduct consistent therewith.” (Truck driver had more skill, truck slided on icy road, should not have been passing PLA, held to higher standard than reasonable care because he had superior skills Cervelli v Graves p. 107)Should Court have instructed jury to consider the driver’s actual skills here? Maybe, but…Improper for judge to imply that Jury COULD NOT consider the driver’s superior skills.

Ruling doesn’t require judge to say that jury CAN consider driver’s skill, just that judge can’t imply that the jury CAN’T consider the driver’s skill.

Youth“When the activity a child engages in is inherently dangerous… the child should be held to an adult standard of care.” (13 year old kid driving a snowmobile, 11 year old passenger injured in accident. Robinson v Lindsay p. 111)

When Behavior is Inherently DangerousWhat standard is used for a child? Children get a standard that accords consideration to the child’s age, experience.Children are held to an adult standard when they are involved in adult activities that are inherently dangerous (like hunting)

The reasonable child is identical to the reasonable man WITH THE ADDITIONAL CONSIDERATIONS of Age, Intelligence and Experience. (7 year old sneaks into neighbors garage, lit gasoline can aflame, burned self. Question of contributory negligence in accident. Did child act with the care of a reasonable child of like age, intelligence and experience? Peterson v Taylor p. 114)

Contributory negligence question“Any negligence, however slight, on the part of the plaintiff, bars the plaintiff from any recovery.” Previously considered impossible for a jury to allocate percentage fault to the parties involved. Now, we use comparative negligence.

Physical and Mental Disabilities

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Physical disability – must act as a person with that disability. For mental disability, compare to someone without that disability. Tort law ignores the actor’s mental disability in evaluating the actor’s conduct and treats the actor as one with typical mental facilities.

“…a blind or otherwise handicapped person… using public ways must exercise for his own safety due care, or care consummate with the known or reasonably foreseeable dangers. Due care is such care as an ordinarily prudent person with the same disability would exercise under the same or similar conditions.” (Legally, but not completely, blind man not looking where he’s walking, fails to note missing bushes he used as reference, fell off elevated walkway. Poyner v. Loftus p. 119)

“…a person with mental disabilities is generally held to the same standard of care as that of a reasonable person under the same circumstances without regard to the alleged tortfeasor's capacity to control or understand the consequences of his or her actions.” (Patient w/ Alzheimer’s kicks attendant putting him to bed. Creasy v. Rusk p. 123)

RecklessnessA higher requirement than mere negligence.

Restate (third) of Torts, Sect. 2A person acts with recklessness if:

(a) the person knows of the risk of harm created by the conduct…, and(b) the precaution that would eliminate or reduce that risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk.

The probability that harm will result combined with the magnitude of the loss if the harm occurs makes up the risk.Requires knowledge on the part of the DEF – PLA must prove subjective knowledge of the risk on the part of the DEF of either the risk or of facts that would make a reasonable, prudent person aware of the risk.*Contrast* – for negligence, only must show DEF SHOULD have known of risk or of facts.

“Reckless failure to act involves an intentional or unreasonable disregard of a risk that presents a high degree of probability that substantial harm will result to another.” (Biker riding along bike path fell off bike in tunnel because of missing drain cover in dark section of tunnel. State aware of both broken lights and missing drain cover. However, risk not high enough - negligent, not reckless. Sandler v. Commonwealth p.128)

Good Samaritan lawSect. 3000-a. Emergency medical treatmentNot liable for damages/injuries/death unless provider shows gross negligence.Doesn’t apply to Doctors and nurses in hospital.Any person who voluntarily and without expectation of monetary compensation renders first aid or emergency treatment is not liable for any injury unless grossly negligent.

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PROVING BREACH

I. Statute involved – Negligence per se- If there is a statute that proscribes or forbids a specific action, failure to abide by the statute results in proving a breachII. Custom- Industry customIII. Res Ipsa Loquitor- the thing speaks for itself, inference of negligence from circumstantial evidence

I. Violation of a Statute

Negligence per se requires 3 elements:1) PLA must be a member of the protected class.2) Def must be in violation of the statute.3) Statute was intended to prevent the type of harm the PLA suffered.

Negligence per se generally fulfills the establishment of both Duty and Breach of Duty.

(2) Unexcused violation of a statute is negligence per se.“...unexcused omission of the statutory (requirement, here signals) is more than some evidence of negligence. It is negligence in itself.” (Buggy being driven at night missing required lights, hit by a car. Lights required by statute to guide and protect other travelers on the highway – creates a duty. Absence of lights is breach of that duty. Negligence was because of failure to abide by the statute. However, the negligence may not be the cause of the accident. Martin v. Herzog p.136)

(1,3) Must be a member of the protected class and the harm must be the type the statute is intended to prevent.“In order for the doctrine of negligence per se to apply, the plaintiff must show that he is a member of the class that the statute was designed to protect and that the harm he suffered was the type of harm which the statute was intended to prevent.” (Truck broken down in eastbound lane of the road missing statutorily required flares – PLA’s pick-up truck collided w/ truck – negligence per se for not having required flares to warn other drivers. Thomas v. McDonald p.139)

(~3) The statute must be designed to protect against the kind of harm which occurred.“The doctrine of negligence per se does not apply even though a statute has been violated if… the type of harm which occurred was not one which the statute was designed to prevent.” “The statute must be designed to protect against the kind of harm which occurred.” (15 year-old kid got cigarettes from a 17-year old kid, dropped lit cig between stacked telephone poles. Unable to extinguish, poles caught fire. 15 year old sued 17 year old for contribution to the fire by giving cigarettes to a minor – statutory violation. Statute had nothing to do with preventing fires. Wawanesa Mutual Insurance Co. v. Matlock p.143)

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(~3) Mere lack of a license is not negligence per se.“Failure to obtain a license as required by law gives rise to no remedy if it caused no injury.” (Patient paralyzed by chiropractor who, although learned and skilled, lacked a license to practice medicine. Lack of license not the cause of patient’s injury – no negligence per se. Brown v. Shyne p.7 Supp.)

II. Industry Custom

Industry standards, customs and practices – failure to comply with these may constitute negligence. Companies can adopt standards in excess of the required standards to prevent accidents. By having these higher standards, it reduces the number of accidents. This can counterbalance the risk of having these heightened standards admitted as evidence in negligence cases.

~~ Compliance with industry custom is usually treated as relevant, but not conclusive, in proving/disproving a breach of duty. (Tugboats not equipped with radio receivers never received warning of storms and sank. Some tugs had such receivers, others did not – no set industry custom. Court determined that not having them made the tugs less safe, their loss was a direct consequence of this unseaworthiness. The T.J. Hooper p.153)

~~ Failure to abide by self-set standards HIGHER than industry or statutorily-required standards is not a failure to exercise ordinary care. The standard of care is objective, not subjective.“…negligence is the failure to do what a reasonably careful and prudent person would do under the same or similar circumstances, or the doing of something that a reasonably careful and prudent person would not do under the same of similar circumstances…”“…you can set standards for yourself that exceed ordinary care and the fact that you’ve done that shouldn’t be used… as evidence tending to show the degree of care you believe is ordinary.”“…failure to follow a party’s precautionary steps or procedures is not necessarily failure to exercise ordinary care…” (PLA slipped on puddle in Wal-Mart and sued because Wal-Mart failed to follow their store procedures for puddles as described in a store manual. Care described in manual is exceptional care, beyond care exercised by a reasonably prudent person. Wal-Mart Stores, Inc. v. Wright p.157) III. Res Ipsa Loquitur

“The thing speaks for itself”.Circumstantial evidence infers the DEF’s negligence.Will allow jury to infer negligence if there is proximate cause and defendant has exclusive possession and control over the instrumentality of the cause of the accident.

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The question is whether this is the kind of incident that would not normally occur absent negligence on the part of the person who has control over the instrument that caused the injury.

4 Elements of Res Ipsa Loquitur:1) The type of injury was usually associated with negligence2) Defendant had exclusive control of whatever caused the injury3) Plaintiff had made no casual contribution to the harm4) Defendant’s access to information about the event was superior to the plaintiff’s.

(1 & 2 are the more significant elements of Res Ipsa Loquitur)

1) Inference of negligenceThe fact that an accident occurred CAN serve as prima facie evidence of negligence, even in the absence of direct evidence. (Barrel of flour fell out 2nd floor window of DEF’s shop and hit the PLA – Not something that would ordinarily happen without negligence on the part of the DEF. Byrne v. Boadle p.160)

2) Exclusive control of DEF, not necessarily actual possession. “It is not necessary that defendant be in control of the causative instrument at the moment of injury so long as defendant was the last person in control of the instrumentality under circumstances permitting an inference of negligence.”This type of accident usually happens because of someone in the DEF’s position. (Driver injured when dock plate malfunctioned and failed to stay fastened. This type of accident usually wouldn’t occur without negligence on the part of the person maintaining the dockplate. Shull v. B.F. Goodrich Co. p.161)

~~ Res Ipsa Loquitur NOT available to a PLA to establish negligence when the PLA has direct evidence of the cause of his injuries. Res Ipsa Loquitur cases are those in which the mere occurrence of the accident under particular circumstances raises the inference of negligence. When direct evidence of negligence is submitted, res ipsa is inapplicable. (PLA injured while entering an elevator that failed to level. Expert witness established that misleveling was due to DEF’s negligence in repairing the problem. Proven negligence, no inference of negligence – no res ipsa loquitur. Dover Elevator Co. v. Swann p.167)

LEGAL CAUSE: CAUSE-IN-FACT

Cause-in-Fact – the causal connection between the plaintiff’s harm and the defendant’s conduct. Proof that it is more likely than not (a preponderance of the evidence) that the defendant’s conduct was the cause of what happened to the plaintiff.

I. But-For Test

II. Alternatives to But-ForA. Multiple Sufficient Causes

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B. Concert of ActionC. Alternate LiabilityD. Market-Share LiabilityE. Liability for Lost Chance of Recovery or for Increased Risk of Eventual Harm

I. But-For TestWould the plaintiff have been free from harm ‘but for’ the defendant’s negligent conduct?

~~ The DEF’s Negligence MUST be the legal cause of the PLA’s injuries to meet the Causation element of negligence. (Driver pulled out in front of speeding van, was hit and killed. Van driver was negligent for speeding, but would have hit her even if not speeding. His negligence was not the cause of the injury. Lyons v. Midnight Sun Transportation Services, Inc. p.178)

II. A. Multiple Sufficient Causes- Multiple actors where the conduct of each actor might have been sufficient to cause the harm. Once the PLA demonstrates that each of the DEF’s acts would have been sufficient to cause the harm, each DEF must prove its act was not a substantial factor in producing the harm. Burden shifts to each defendant to avoid liability. (Two fires, one caused by railroad, other cause unknown, merge together and destroy PLA’s property. Railroad liable even thought cause for other fire unknown because their fire could have alone caused the harm. Kingston v. Chicago & Northwestern Railroad Co. p.181)

II. B. Concert of ActionPermits a plaintiff who is injured by a DEF’s tortuous conduct to impose liability on someone else in addition to that DEF.

Restatement (second) of Torts, Sect. 876 – Persons Acting in Concert.For harm resulting to a 3rd person from the tortuous conduct of another, one is subject to liability if he:

(a) does a tortuous act in concert with the other… (or)(b) knows that the other’s conduct is a breach of duty and gives substantial assistance or encouragement… (or)(c) gives substantial assistance to the other while his own conduct is a breach of duty to the 3rd person.

Five factors for “Substantial Assistance”:1) Nature of the wrongful act2) Kind and amount of assistance3) Relationship of the parties4) Presence or absence of the defendant5) Defendant’s state of mind

All 5 factors can be relevant t determining whether one party substantially assisted another.

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Purpose of Concert of Action theory is to deter anti-social or dangerous behavior likely to injure people.Non-acting person must give substantial aid to the tortfeasor – mere presence not enough.(DEF passenger in car w/ drunk driver, hits another car – sued for negligence in encouraging drunk driver to drive under concert of action (2). DEF not provide substantial encouragement Shinn v. Allen p.189)

II. C. Alternative Liability

1) The alternative liability theory exposes an actor to liability even where there is a possibility that the plaintiff’s harm was entirely caused by someone else. Alternative liability theory is based on the notion that it is fairer under some circumstances to require the negligent defendants rather than the innocent plaintiff to prove who caused the harm. Shifts burden of proof from PLA to DEF. (PLA hunting w/ two others, both discharged guns at quail near PLA. PLA struck in face, unknown by which shooter. Summers v. Tice p.193)

2) Alternative Liability theory requires 2 or more defendants committing tortuous acts and that the plaintiff was injured as a proximate result of the wrongdoing of one of them. Alt Liability does NOT apply when there is no proof that the conduct of more than 1 defendant has been tortious. (PLA struck by truck DEF riding in, alleging DEF stepped on accelerator pedal while climbing in back seat. Only 1 defendant possibly committing tortuous act – no Alternative Liability. Burke v. Schaffner p.197)

II. D. Market Share Liability~~ Market Share liability requires a substantial share of the manufacturers to be named defendants. Those unable to prove they didn’t cause the injury will be held liable for a portion of the damages equal to their market share. (national). (PLA daughters of mothers who took DES during pregnancy developed cancer. Records of which mother took which manufacturer’s DES unavailable, but formula virtually identical and able to determine market share of each manufacturer over the years. Apportion liability based off of market share to correspond with overall culpability of each DEF. Hymowitz v. Eli Lilly and Company p.201)

II. E. Liability for Lost Chance of Recovery or for Increased Risk of Eventual Harm

~~ The lost opportunity is in itself an injury for which the negligently injured person can recover.“The loss of a chance of achieving a favorable outcome or of avoiding an adverse consequence should be compensable and should be valued appropriately… When those preexisting conditions have not absolutely preordained an adverse outcome… the chance of avoiding it should be appropriately compensated, even if that chance is not better than even.” (PLA broke neck, DEF misdiagnosed it, didn’t immobilize neck or give steroids – failures caused PLA to not recover as well as she could have. Sued for lost chance of recovery. Lord v. Lovett p.213)

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LIMITS ON LIABILITY: Duty and PROXIMATE CAUSE

Proximate cause doctrine and certain duty doctrines seek to put some limits on an actor’s tort liability.

I. Duty

II. Proximate CauseA. DirectnessB. ForeseeabilityC. Substantial Factor TestD. Combining ApproachesE. Intervening and Superseding Forces

I. Duty“The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.” “The range of reasonable apprehension is at times a question for the court and at times… a question for the jury.” (PLA on platform when conductor helping passenger on train. Passenger drops package of fireworks, explodes, knocks over scale on PLA. PLA NOT in the reasonable range of apprehension – no duty. Palsgraf v. Long Island Railway Co. p.222)

~~ Negligence is a matter of some relation between the parties, some duty which could be found only on the foreseeability of some harm to the injured plaintiff. “… the creation of a legal duty requires more than a mere possibility of occurrence…” (PLA’s mother injured in car accident 18 months before PLA conceived. PLA’s growth compressed shunt in mother from accident, delivered early to avoid further harm to mom. Court ruled generally no duty to unconcieved as pregnancy not reasonably foreseeable, unless special circumstances like fertility clinic. Hegyes v. Unjian Enterprises, Inc. p.229)

~~ Social host not liable to 3rd party for serving alcohol to a guest who they know will later drive – liability remains solely with the tortfeasor. (Host served alcohol to guest who drove drunk and hit PLA. PLA sued host for serving alcohol, Court found no duty for host to control guests behavior or ability to determine how much guest drank, guest responsible for their own behavior. Graff v. Beard p.233)

”Dram Shop” laws impose duty upon licensee’s that they owe a duty to people injured by intoxicated patrons. They do not excuse the intoxicated person from liability, rather they make both the licensee and the intoxicated person potentially liable for injuries.

~~ Counselors have a common law duty of reasonable care to prevent suicides when they have evidence of suicidal intent because the consequences of the risk is so great that even a relatively remote possibility of a suicide may be enough to establish a duty. Confidentiality doesn’t bar duty nor does discretion create an absolute immunity. (PLA made comments to friends about committing suicide, comments relayed to school

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counselors. Counselors questioned PLA who denied comments. PLA killed self days later, Counselors never reported comments to parents. Court found counselors negligently breached duty of reasonable care to student by not informing parents. Eisel v. Board of Education of Montgomery County p.236)

II. Proximate Cause3 main approaches to proximate cause:

1) Directness – treats DEF’s conduct cause-in-fact conduct as proximate cause if no intervening forces2) Foreseeability – treats a cause-in-fact as proximate cause if PLA’s harm reasonably foreseeable3) Substantial Factor test – treats DEF’s conduct as proximate cause if conduct important enough compared to other causes for PLA’s injury.

Generally, proximate cause is a question of fact for the jury.

II. A. DirectnessAn act is considered a direct cause of the PLA’s harm in situations where all would agree that the connection between the DEF’s act and the PLA’s harm was so close that the DEF should be held liable. ~~ An act that is a cause-in-fact of an injury will be treated as a proximate cause of the injury if there is a direct connection between the act and the injury.

~~ Need not foresee the type of harm inflicted due to negligent conduct for liability when that negligent conduct is the cause-in-fact of the harm. “To determine whether an act is negligent, it is relevant to determine whether any reasonable person would foresee that the act would cause damage; if he would not, the act is not negligent. But if the act would or might cause damage, the fact that the damage it in fact causes is not the exact kind of damage one would expect is immaterial…” (stevedores unloading ship, leaking fuel containers, stevedores knock over plank that causes a spark, ship burns. Court ruled no need to foresee fire, foreseeable that SOME SORT of harm would occur by negligently knocking over the plank. Arbitration between Polemis and Furness, Withy & Co., LTD. p.243)

~~ An additional act subsequent to the DEF’s can break the chain of causation. (PLA boiled water for heat in unheated apartment. PLA accidentally banged pots, burnt self, sued landlord for negligence in not maintaining boiler w/ burns as harm caused by DEF. Court found that banging the pots together, not the lack of heat in the apartment, was the cause of her injuries. Intervening cause – not direct – no liability. Laureano v. Louzoun p.244)

II.B. ForeseeabilityForeseeability considers conduct a proximate cause of the harm if the possibility of that harm was within the range of risks that supported the original characterization of the DEF’s conduct as negligent.

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PJI: 2:12 Common Law Standard of Care – Foreseeability – Generally“Negligence requires both a reasonably foreseeable danger of injury to another

and conduct that is unreasonable in proportion to that danger. A person is only responsible for the results of his or her conduct if the risk of injury is reasonably foreseeable. The exact occurrence or exact injury does not have to be foreseeable; but injury as a result of negligent conduct must be not merely possible, but be probable.”

“There is negligence if a reasonably prudent person could foresee injury as a result of his or her conduct, and acted unreasonably in light of what could be foreseen. On the other hand, there is no negligence if a reasonably prudent person could not have foreseen any injury as a result of his or her conduct, or acted reasonably in the light of what could have been foreseen.”

~~ Only need to foresee the general type of accident, not the specifics.“It is not necessary… (to) foresee the exact sequence of events which led to the accident… only… that the general type of accident was within the scope of the danger created by the… negligence,”. “…it must be shown that the said general-type accident was a reasonably foreseeable consequence of the defendant’s negligence.” (Negligently built wall fell on girl pinned to it by runaway car. Court found that DEF need not foresee specifics of accident, like runaway car, just that someone would be hurt by a negligently built wall falling on them. Tieder v. Little p.247)

Eggshell Plaintiff Rule – Conduct that would ordinarily be negligent can create unforeseeably large damages if the victim had an unusual weakness or susceptibility. Rule applies to the extent of harm while foreseeability applies to the type of harm.

~~ Negligent actor bears the risk that liability will be greater because of a particular vulnerability of the victim. “The negligent defendant is liable for the resulting harm even though the harm is increased by the particular plaintiff’s condition at the time of the negligent conduct.” (Woman w/ bad knee hit by drunk driver – damage to knee worse because of its weakness. Court found that negligent actor liable for the injuries caused, even when the extent of the injuries are not foreseeable. Schafer v. Hoffman p.255)

~~ Foreseeability of degree of harm caused is not sufficient to relieve DEF of liability. “We see no reason why an actor engaging in conduct which entails a large risk of small damage and a small risk of other and greater damage, of the same general sort, from the same forces, and to the same class of persons, should be relieved of responsibility for the latter simply because the chance of its occurrence, if viewed alone, may not have been large enough to require the exercise of care.” (Barge negligently tied up breaks free, hits other boats, causes bridge to collapse and general flooding. Court held even though not readily foreseeable about bridge collapse and floods, foreseeable about ship breaking free and hitting something. Foreseeable that some harm caused, so liable for all harm caused. Petition of Kinsman Transit Co. p.260)

II. C. Substantial Factor Test

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The Substantial Factor test considers whether the contribution of a party’s act was relatively important compared with other but-for causes in producing the harm suffered by the plaintiff.

II. D. Combining Approaches~~ Can combine Directness, Foreseeability and/or Substantial Factor test in establishing proximate cause.

~~ The test to establish actual cause is a “but-for” test – but for the DEF’s conduct, the harm would not have occurred. Conduct is a proximate cause if the conduct is a ‘substantial factor’ in producing the harm. Foreseeability helps to determine the extent to which the law should impose liability. It is not necessary to foresee the extent of the harm or the manner it occurred to establish the essential connection, only the existence of some injury to someone. (65 yr old man w/ 90% coronary blockage ordered by city to mow weeds, has heart attack. Sues city for negligently causing his injuries – Court found error in lower court’s addition of ‘foreseeable’ to the substantial factors charge – substantial, foreseeable factors – different approaches to establishing proximate cause. Sumpter v. Moulton p.272)

II. E. Intervening and Superseding Forces

~~ A third party’s conduct coming after the defendant’s act in the chain of events leading to the plaintiff’s injury is referred to as an intervening act. If the intervening act was not reasonably foreseeable to the defendant, then it is characterized as superseding and will protect the defendant from liability. If the intervening act was foreseeable by the defendant, then it is not superseding and does not protect the defendant from liability.

~~ Tortious or criminal 3rd party conduct doesn’t sever the chain of proximate cause if that conduct is reasonably foreseeable. (PLA wearing oversized Bush mask has neck injured when pushed by patron. Sues manufacturer for negligent design for not including neck harness. Court found that push was intervening, but not superseding cause of injury – reasonably foreseeable costume wearer gets jostled. Price v. Blaine Kern Arista, Inc. p.278)

~~ Intervening criminal acts do not automatically break the chain of causation if they are foreseeable. (DEF left keys in ignition, car stolen by thief, police pursuit ends w/ collision w/ PLA’s wife. PLA sued DEF for negligently leaving the keys in the ignition – reasonably foreseeable that the car could be stolen and chase ensue – foreseeable means not superseding. McClenahan v. Cooley p.279)

~~ An intervening act is a normal (and foreseeable) consequence of the original tortfeasor’s negligence if it is normal to the situation which the tortfeasor created. Medical treatment is a normal consequence of injury - not superseding act to go to the doctor if injured. (PLA injured in store, treatment by doctor caused spinal meningitis. Foreseeable that PLA goes to Dr. after being injured, store liable for meningitis. Weems v. Hy-Vee Food Stores, Inc. p.284)

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DEFENSES

I. Plaintiff’s Contributory NegligenceA. Traditional Common Law Treatment of a Plaintiff’s NegligenceB. Modern Comparative Treatment of Plaintiff’s NegligenceC. Reckless Conduct

II. Assumption of RiskA. Express Assumption of RiskB. Implied Assumption of Risk

III. Mitigation and Avoidable ConsequencesIV. Immunities

A. Sovereign ImmunityB. Intrafamilial Immunity

V. Statutes of Limitation and Repose

DefensesSeveral defenses to protect a defendant from liability for negligence.- plaintiff’s negligence- assumption of risk- plaintiff’s failure too minimize consequences- plaintiff’s failure to protect against loss- governmental immunities- family immunities- statutes of limitations

I. Plaintiff’s Contributory FaultContributory negligence – complete bar to recoveryModified comparative negligence – plaintiff barred from recovering if more than 49% (or 50% in some states) liable.Pure comparative negligence – plaintiff only can recover portion of damages plaintiff not liable for (if PLA 30% liable, can only recover 70% of the damages)

I.A. Traditional Common Law Treatment of Plaintiff’s NegligenceTotal bar against plaintiff’s recovery.

~~ Under common law, and in certain states, contributory negligence is a complete bar against recovery. (Dump truck driver negligently pulled onto train tracks and was hit by train – sued for negligence because of poor crossing design but contributed by having radio too loud to hear train. No recovery because of driver’s contributory negligence. Wright v. Norfolk and Western Railway Co. p.294)

I.B. Modern Comparative Treatment of a Plaintiff’s Negligence

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~~ Modified comparative negligence comes in two forms – negligent plaintiff allowed to recover damages:(a) only if his negligence is less than that of the defendant, or (b) only if his negligence is less than or equal to that of the defendant.(PLA’s truck hit by DEF, both had been drinking. Trial court ruled under old contributory negligence, find equal liability for PLA and DEF – DEF won. Overruled by highest court adopting modified comparative negligence rule. McIntyre v. Balentine p.298)

~~ Strict products liability holds manufacturer liable to any person injured by defective product if:(a) using product as intended(b) person injured would not have discovered defect/danger by exercising reasonable care(c) by exercising reasonable care, the injured party would not have been injured.(PLA driving new care, steering suddenly pulls to left, across traffic, head-on collision. Suit against driver and against manufacturer – Court finds possibility of driver negligence in response to pull, even if steering defective. Court reserves question of contributory negligence policy changing to comparative negligence policy for the legislature – adopts Article 14-A. Coddling v. Paglia p.19 Supp.)

Article 14-A: Damage Actions, Effect of Contributory Negligence and Assumption of Risk(applicable for all actions accruing after 9/1/75)

Sect. 1411 – Damages recoverable when contributory negligence or assumption of risk is established~~~ In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which causes the damages.

Sect. 1412 – Burden of Pleading; Burden of Proof~~~ Culpable conduct claimed in diminution of damages, in accordance with Sect. 1411, shall be an affirmative defense to be pleaded and proved by the party asserting the defense.

I.C. Reckless ConductA negligent plaintiff can recover in a contributory negligence state if the defendant’s behavior is considered reckless (willful and wanton)… above and beyond ordinary negligence. Also, ‘Last Clear Chance’ doctrine allowed a negligent plaintiff to recover if injured in circumstances where the defendant’s failure to act carefully was especially egregious.

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Last Clear Chance:Car in puddle spun out on Rt 17.Defendant barreling over hill, hit Plaintiff.Defendant’s negligence more of a proximate cause for the accident than the plaintiff’s negligence.If plaintiff can show that the defendant had the last clear chance to avoid the accident but failed to take that chance, plaintiff CAN recover full damages even under contributory negligence (which would normally bar plaintiff’s recovery). Although not of relevance in cases of comparative negligence, sometimes used by torts lawyers to compare fault of plaintiff and defendant for jury. Use of the concept is valuable to argue proximate causality, that one party’s negligence is remote.

~~ Plaintiff’s contributory negligence IS a defense for defendant’s ‘willful and wanton conduct’ and allows the jury to consider the plaintiff’s comparative fault in determining relative apportionment of culpability. (PLA pit crew observed racer bicycling, car flipped near pit area, hit PLA while in area PLA should not have been in. PLA sued for DEF’s ‘willful and wanton conduct’ in not providing guard rails or flagging racer. Jury verdict for PLA reduced by proportion of PLA’s liability. Downing v. United Auto Racing Association. p.311)

II. Assumption of RiskPlaintiff can be denied recovery if they assume the risk of any damage caused by the defendant’s acts. Plaintiff must have known the risk and voluntarily assumed it. Assumption of risk may be either express or implied.

II. A. Express Assumption of RiskInvolves agreement by plaintiff to accept the risks created by the defendant’s actions. Almost always are written releases. Enforceability based on 2 questions:1) Does public policy permit releases in connection with the activity?2) If allowed by public policy, does the release merit enforcement?

~~Releases signed under conditions that do not provide the potential plaintiff with an informed, voluntary choice or that contain oppressive terms are unenforceable.“The law does not look with favor on contracts intended to exculpate a party from the liability of his or her own negligence, although, with some exceptions, they are enforceable.”“The wording of an exculpatory agreement should express as clearly and precisely as possible the extent to which a party intends to be absolved from liability. Failing that, we do not sanction broad, general ‘waiver of negligence’ provisions, and strictly construe them against the party asserting them as a defense.” (PLA on training dive gets bends due to instructor error. PLA had signed general ‘Express Assumption of Risk’ waiver, Court found unreasonable that student intended to waive his right to recover when instructor failed to follow basic safety standards. Turnbough v. Ladner p.322)

II. B. Implied Assumption of RiskImplied Assumption of Risk can be either:

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1) Primary or 2) Secondary.

1) Primary implied assumption of risk is not a true defense, but a challenge towards the initial determination of a duty. Can protect defendants from liability where risks can’t be eliminated or prohibitively expensive AND those risks are obvious to those that encounter them. EX: injured while watching softball game, student injured in collision during football drill.

Utility of Primary Assumption of Risk DoctrineBecause primary assumption of risk is not a defense (in contrast to secondary assumption of risk), even when a state ceases to recognize it as a formal doctrine, its underlying logic for proving duty and breach survives. In its primary sense, implied assumption of risk focuses not on the plaintiff’s conduct in assuming the risk, but on the defendant’s general duty of care. The doctrine of primary implied assumption of risk “technically is not a defense, but rather a legal theory which relieves a defendant of the duty which he might otherwise owe to the plaintiff with respect to particular risks”.

~~NOT a bar against recovery for negligence.(Skier hit by other skier jumping over crest. Skier sued ski resort for negligently designing the ski run and not removing the crest. Statute protects ski resort from injuries related to ‘inherent risks of skiing’ – Court found that getting hit by a jumping skier who jumped a negligently designed crest was NOT one of the inherent risks of skiing. Clover v. Snowbird Ski Resort p.560)

~~ Implied assumption of risk establishes ‘no duty’ to common, frequent and expected risks. Does not apply to duty to protect patrons from foreseeably dangerous conditions not inherent to the activity. (Woman at baseball game hit by ball while in concession area, away from field. Court found opening ball came through NOT inherent feature of spectator sport of watching baseball, not a common, frequent or expected risk. Jones v. Three Rivers Management Corp. p.567)

2) Secondary implied assumption of risk is a true defense. It arises when the PLA knowingly encounters a risk created by the DEF’s negligence. EX: PLA dashes into a fire the DEF negligently caused to save his hat.(Condo tenant aware that floodlights in stairwell (1 of 3) broken, continues to take shadowy stairs after reporting problem several times. Missed step, fell and injured self, sued Condo owner. PLA found to be more than 50% liable. Court found PLA voluntarily encountered the risk caused by the DEF’s negligence by continuing to use that stairway. Secondary implied assumption of risk – no recovery. Davenport v. Cotton Home Plantation Horizontal Property Regime p.330)

III. Mitigation and Avoidable ConsequencesPlaintiff’s actions before and after encountering the Defendant’s injurious conduct can affect the plaintiff’s recovery. Failure to mitigate precludes recovery of any additional damages caused by aggravation of the injury.

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~~ One must use ordinary care in taking reasonable actions to mitigate the harm caused by a negligent tortfeasor. (PLA’s car hit by DEF backing out of driveway. PLA injured, found 15% at fault and awarded PLA 85% of the damages – PLA did not attend doctor regularly - evidence shows that further medical treatments would have helped the PLA’s condition. Miller v. Eichhorn p. 335)

~~ Failure to use protective devices to avoid harmful consequences is a matter that juries can consider in apportioning damages due to fault. (PLA not wearing seatbelt, thrown from car, sued for injuries. DEF raises that failure to use seatbelts caused greater harm. Court found that nonuse of seatbelts could be considered by jury in determining damages. Law v. Superior Court p. 337)

IV. ImmunitiesSovereign and Interfamilial

IV. A. Sovereign ImmunityGenerally, Federal and State governments waive their immunity. Municipalities generally allow themselves to be sued for proprietary activities, but not governmental activities.

~~ Federal government can be sued for simple negligence, but not when the harm is caused by the exercise of a discretionary function of a government employee. (Weight machine in prison not inspected, cable tear injures prisoner, sues for negligence in maintaining the equipment. Court finds government not automatically exempt under Discretionary Function Exemption (DFE), jury could determine ordinary negligence and not discretionary function. Coulthurst v. United States p.344)

~~ Municipal immunities should be for adjudicative, legislative and regulatory issues, not general negligence. Immune when performing governmental functions, but not when exercising proprietary functions. “A function is considered governmental if it is the exercise of an entity’s political, discretionary, or legislative authority. If the function is a ministerial act, ‘assumed in consideration of the privileges conferred by… charter’, and involves no discretion, it is proprietary…” (Running a nursing home for the poor is exercising governmental powers for the general well-being of its citizens, and therefore a governmental, not proprietary, function. Carter v. Chesterfield County Health Commission p. 349)

Court of Claims, Sect. 8 – Waiver of immunity from liabilityNYS waives immunity from liabilityClaim must be brought in the Court of Claims – No jury, must file within 90 days.

Restatement (Second) of Torts, Sect. 895C(2) – Local government entities immune from tort liability only for acts “…constituting (a) the exercise of a legislative or judicial function, and (b) the exercise of an administrative function involving the determination of fundamental governmental policy.”

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IV. B. Intrafamilial ImmunityCommon law traditionally prevented suits by one member of a family against another member of the family. Much of this has been done away with due to insurance reasons. Similarly, Charitable Immunity is also mostly gone now, due to insurance. Donors contribute money to a charity not to pay tort claims but to further the goals of the charity.

~~ New York does not recognize “Negligent Supervision of a child” as a valid tort action. HOWEVER, where there is a breach of a recognized duty ordinarily owed apart from the family relationship, the law will not withhold liability merely because the parties are parent and child. (Divorced father sued custodial mom for personal injury of children when mom negligently caused car accident. Mother’s defense was parental immunity – Court found not applicable because driving a car negligently is not protected conduct under parental authority. Broadwell v. Holmes p.354)

Parental Immunity is limited to conduct that is…1) exercise of parental authority2) performance of parental supervision3) provision of parental care and custody

V. Statutes of Limitation and ReposeTwo types of time limits:1) Statute of Limitations – the time a PLA should have reasonably known that they had a claim and bars the claim if filed afterwards.2) Statute of Repose – relates to the time a DEF committed an act that is the basis for a PLA’s claim and bars the claim unless filed within a certain time, even if Statute of Limitations has not run out.

~~ Statute of Limitation begins running from the date the PLA discovered the injury or SHOULD HAVE discovered the injury. PLA required to be reasonably prudent in investigating cause of injury. (PLA security guard at bank, alarm rings at night, summons police who didn’t enter because no bank personnel present. PLA entered in morning, grabbed and injured by bank robbers inside. 10 years later, finds out that nobody from the bank responded to the alarm, sues bank for negligence. Court found that Statute of Limitations was 3 yrs from cause of action and that PLA could have discovered unanswered alarm if reasonably prudent. Hanley v. Citizens Bank of Massachusetts p.359)

~~ A Statute of Limitations can be tolled (stop the clock) when fraud prevents the injured party from becoming aware of the injury. (Dr. negligently exposed PLA to too many radiation treatments, then dodges question about side effects. PLA believed them normal until years later. Sued Dr. for negligence with radiation more than 3 years after action, Court found that Dr’s fraudulent concealment responsible for delay in discovering action. Kern v. St. Joseph’s Hospital p. 360)

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~~ A Statute of Repose can render an injury untimely if the time limit has run out, even if the Statute of Limitations has not run out. (PLA hurt when negligently made glass window broke, Statute of repose prevents actions more than 10 years after the installation of window, even when action for injury is timely. Sedar v. Knowlton Construction Company p.362)

CPLR Sect. 213 – 6 Year Statute of Limitations for Contracts and Fraud(8) For Fraud, greater of 6 years from date of cause of action or 2 years from when fraud discovered/should have been discovered.

CPLR Sect. 214 – 3 Year Statute of Limitations for non-intentional torts and malpractice (excluding medical malpractice)CPLR Sect. 214-a – 2 Year, 6 Month Statute of Limitations for medical, dental or podiatric malpractice.“An action for medical… malpractice must be commenced within two years and six months of the act… or last treatment where there is a continuous treatment for the same illness, injury or condition which gave rise to the said act…however… where the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier.”

Continuous treatment is not examinations at patient’s request to ascertain their condition.Foreign objects are things that are not supposed to be there – doesn’t include chemical compound, fixation device or prosthetic aid or device.

CPLR Sect. 215 – 1 Year Statute of Limitations for intentional torts

APPORTIONMENT OF DAMAGES

I. Apportioning Damages Among Liable DefendantsA. Joint and Several LiabilityB. Several LiabilityC. Allocating Responsibility to Absent or Immune ActorsD. Intentional Conduct in a Comparative SettingE. Allocating the Risk of Insolvency

II. Vicarious LiabilityA. Respondeat SuperiorB. Vicarious Liability for Vehicle Owners

I. Apportioning Damages Among Liable Defendants

When more than one defendant is a legal cause of a plaintiff’s injury, there are two methods of splitting the damages between defendants.

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Common law recognized a system known as ‘joint and several liability’, with doctrines of contribution and indemnity.Modern courts sometimes use this and sometimes rely on several liability.

I.A. Joint and Several LiabilityEach defendant treated as responsible for the entire judgment awarded to the plaintiff.

II.B. Several LiabilityEach tortfeasor is liable only for his apportioned fault or negligence.~~ When there is no direct evidence of which concurrent tortfeasor caused the harm, the wrongdoers should be left to work out between themselves any apportionment. (PLA driving, struck two escaped horses, sued owners for negligence – unsure which horse cause the injury, Court found for apportionment of damages to determine extent of liability to PLA. Roderick v. Lake p.382)

~~ “…Where a 3rd party is found to be responsible for a part, but not all, of the negligence for which a defendant is cast in damages, the responsibility for that part is recoverable by the prime defendant against the 3rd party. To reach that end, there must necessarily be an apportionment of responsibility in negligence between the parties.”- Eliminates the requirement that a plaintiff sue one party and then that party gets part of it back by suing a joint tortfeasor. (Dole went to clean out grain storage bin after fumigated by employer w/ Dow Chemical’s fumigant. Dole died, estate sued Dow, who sued employer for indemnification. Court found liability between manufacturer and employer, ruled apportionment of damages. Dole v. Dow Chemical Co. p.38 Supp.)

1401 rendered meaningless by Dole v Dow. Not overruled, but rendered irrelevant. Changed by legislature to allow tortfeasors to file a counterclaim (def to plaint), cross-claim (def to def) or 3rd party claim (against a joint tortfeasor that was not named by the plaintiff).Conditional claim – cause of action only accrues (occurs/arises) when defendant that is found liable is forced to pay MORE than his fair share to the plaintiff.

Section 1401 & 1402 – Allows joint tortfeasors to regain from each other the difference between what they had to pay to a plaintiff and what they proportionately for their culpability – Apportionment.

CPLR Sect. 1401 “…two or more persons who are subject to liability for damages for the same personal injury… may claim contribution among them whether or not an action has been brought… against the person from whom contribution is sought.”

CPLR Sect. 1402“The amount of contribution to which a person is entitled shall be the excess paid by him over and above his equitable share of the judgment recovered by the injured party; but no person shall be required to contribute an amount greater than his equitable share.

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The equitable shares shall be determined in accordance with the relative culpability of each person liable for contribution.”

CPLR Sect. 1403“A cause of action for contribution may be asserted in a separate action or by cross-claim, counterclaim or third-party claim in a pending action.”

II.C Allocating Responsibility to Absent or Immune ActorsDamages cannot be allocated to immune actors under Article 16

Joint Tortfeasors – Tortfeasors acting in concert, their activity would be held jointly liable. If P sues A & B for their joint action in harming P, P can collect 100% of his injuries from EITHER A or B. A has no common law right to sue B to recover part of the damages A was forced to pay.

Article 16 – p. 31Affecting how much of the plaintiff’s recoverable damages the plaintiff can recover from multiple tortfeasors. This time this limits the plaintiff’s ability to recover his non-economic loss (pain and suffering) from tortfeasors. If the tortfeasor is less than 50% liable, the plaintiff can only recover that percentage of his non-economic loss from that tortfeasor. Plaintiff can recover all damages is the tortfeasor is MORE than 50% liable, and can still recover his full economic damages (lost wages, etc…) from any tortfeasor.

Article 16

Section 1601 – Limited Liability of Persons Jointly Liable“…when a verdict… for personal injury… involving two or more tortfeasors jointly liable… and the liability of a defendant is found to be 50% or less of the total liability… the liability of such defendant… for non-economic loss shall not exceed that defendant’s equitable share.”“… the culpable conduct of any person not a party to the action shall not be considered if claimant proves that… he… was unable to obtain jurisdiction over such person…”“…further provided that the culpable conduct of any person shall not be considered… to the extent that action against such person is barred because… the worker’s compensation law.”

If tortfeasor is not more than 50% liable for a personal injury, cannot collect more than their share of non-economic losses from them. Can still collect 100% of economic losses from any of the joint tortfeasors.Tortfeasors the PLA can’t establish jurisdiction over, or protected by worker’s compensation law are not counted towards the ‘equitable share’ of damages.

Section 1602 - ApplicationThese limitations do not apply to:5) actions requiring proof of intent (intentional torts)6) any person held liable for his use of a motor vehicle

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7) any person liable for causing the injury by their acting with reckless disregard for the safety of othersSection 1603 – Burden of ProofAnyone seeking to avoid the limitations of Sect 1601 must prove they meet one of the exceptions of Sect. 1602.

II.D. Intentional Conduct in a Comparative SettingCases where plaintiff’s harm is caused by one actor’s negligence and another actor’s intentional tort. EX: Retailer fails to provide parking lot security and tortfeasor batters the plaintiff.Contributory negligence would be waived when defendant commits an intentional tort. Comparative negligence varies – some waive plaintiff’s negligence, others don’t.~~ Juries may apportion fault among joint tortfeasors even if some are merely negligent and others are intentionally tortious.

II.E. Allocating the Risk of InsolvencyWithout some special rules relating to insolvent defendants, if one defendant is insolvent, the plaintiff will be unable to collect that share. These uncollected shares are referred to as ‘orphan shares’.Rule 4533-b Proof of Payment by Joint TortfeasorIn a personal injury action, any proof offered by a Defendant regarding a payment or settlement by another joint tortfeasor in mitigation of damages shall be taken out of hearing of the jury.

Sect. 15-108“When a… covenant not to sue... is given to one… or more persons liable… in tort for the same injury… it does not discharge any of the other tortfeasors from liability for the injury… unless its terms expressly so provide, but it reduces the claim of the releaser against the other tortfeasors to the extent of any amount stipulated by the release… or in the amount of consideration paid for it, or in the amount of the released tortfeasor’s equitable share of the damages… whichever is greatest.”

III. Vicarious LiabilityDoctrine that makes an actor liable for someone else’s tortious conduct. Primarily arises with Respondeat Superior, but also arises in cases of vehicle owners.

III.A. Respondeat Superior A plaintiff injured by an employee may seek damages from the employer for two causes of action. 1) That employer is vicariously liable for the employees tortious conduct.2) That the employer is responsible for some other negligent conduct, such as negligent supervision or negligent hiring.

~~An employer will be liable for the torts of an employee committed within the scope of employment. “Under… respondeat superior, an employer may be held vicariously responsible for the tortious acts of an employee committed incidental to or during the scope of employment.” “An employer may be directly liable for damages resulting from

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the negligent supervision of its employee’s actions. The employer’s duty to exercise reasonable care to control its employee may extend to activities performed outside the scope of employment.” (Pick-up truck being driven by owner/mechanic/employee breaks free and hits PLA’s car. PLA sued employer for negligent supervision, Court found driver acting within scope of employment. Trahan-Laroche v. Lockheed Sanders, Inc. p.400)

~~ Special errands, outside the regular scope of employment, may be covered under employment when authorized by employer. (Employee worked late on special work project at management’s request. After work, went with co-workers to their home to talk shop and socialize. Driving home, hit motorcyclist, cyclist sued employer. Court found attendance at co-workers home could have been part of special errand, drive home from party not part of ordinary commute to and from work {coming and going rule} – not a departure from his work. O’Connor v. McDonald’s Restaurants of California, Inc. p. 402)~~ Test for complete abandonment pursuit of business errand1) Intent2) Nature, Time and Place of Conduct3) Work hired to do4) Employer’s reasonable expectations5) Employee’s freedom in performing duties6) Amount of time consumed in personal activity ~~Multi-factor test for whether someone is an employee or contractor:

~ A worker who must comply with another’s instructions about where/when and how is an employee~ Work for employer’s benefit or serve employee’s benefit?~ Jury more likely to find master-servant if work does not require services of someone highly skilled/educated.~ If employer provides employee tools, supplies and proscribes area or route.~ Duration of employment~ Method of payment – by job or by hour/week/etc…~ Relationship of work done to employer’s line of work~ Belief of the parties

(Newspaper delivery person hit motorcyclist while delivering papers, cyclist sued newspaper under respondeat superior. Paper claimed independent contractor, not employee. Court found that despite ‘Delivery Agent Agreement’ signed by driver indicating independent contractor, jury could find driver employee. Santiago v. Phoenix Newspapers, Inc. p.407)

~~ When independent contractor is performing work that is inherently dangerous (EX: demolitions), employer cannot claim protection from respondeat superior.

III.B. Vicarious Liability for Vehicle OwnersState statutes make vehicle owners vicariously liable for the tortious conduct of all users of their vehicles.

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~~ In absence of car owner, liability can be imposed when:1) death/ injury of person/property2) harm is result of operator’s negligence3) negligence arose from use/operation of the vehicle4) operator had owner’s permission to use“Use and operation” test1) accident arises from inherent nature of automobile;2) accident arises within the territorial limits of the car while being used/loaded/unloaded; and3) car must produce or be a proximate cause of the injury, not merely contributed.(PLA pedestrian blinded by egg thrown from moving car, sues car owner by vicarious liability for negligently allowing use of the car. Court found that being hit by an egg is not part of the use and operation of a car, cause was throwing the egg. Levitt v. Peluso p.412)

CPLR Sect. 1007 – When 3rd party practice allowed“After the service of his answer, a defendant may proceed against a person not a party who is or may be liable to that defendant for all or part of the plaintiff’s claim against that defendant, by filing… a third-party summons and complaint…”

CPLR Sect. 1008 – Answer of 3rd party defendant“The third-party defendant may assert against the plaintiff in his answer any defenses which the third-party plaintiff has to the plaintiff’s claim.”

CPLR Sect. 1009 – Claim by plaintiff against 3rd party defendant“… the plaintiff may amend his complaint… to assert against the third-party defendant any claim plaintiff has against the third-party defendant.”

CPLR Sect. 1010 – Dismissal or separate trial of 3rd party complaint“The court may dismiss a third-party complaint… order a separate trial of the third-party claim or any separate issue thereof….” “…court shall consider whether the controversy… will unduly delay the determination of the main action or prejudice the substantial rights of any party.”

CPLR Sect. 1011 – Successive 3rd party proceedings“A third-party defendant may proceed… against any person who is or may be liable to him for all or part of the third-party claim.”

PROFESSIONALS

I. Professional Standard’s Basic Definitions and RationaleII. Applying Professional Standards in Medical Cases

A. Geographic Scope of Professional StandardB. Common KnowledgeC. Informed ConsentD. Identifying the Defendant

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1. Who is a Profession?III. Legal Malpractice and the Professional Standard

I. Professional Standard’s Basic Definitions and RationaleCourts differ on whether the standard of care for professionals requires a jury to compare a professional’s conduct to his profession’s position on proper conduct or to the jury’s own conclusion about what conduct is reasonable.

~~ Professionals are not held to a ‘normal’ standard of care but instead to a professional standard of care – the standard that other professionals were acting at. “… professional prudence is defined by actual or accepted practice within a profession, rather than theories about what ‘should’ have been done…” (Child contracted AIDS virus while undergoing heart surgery. PLA alleges blood screening was negligent regarding concern about AIDS. Court found no blood bank in the country doing what PLA’s expert stated the standard of care should be, held that professional prudence is defined by actual or accepted practice. Osborn v. Irwin Memorial Blood Bank p.417)

~~ Specialist physicians required to use the degree of care, skill and judgment usually exercised by the average specialist practicing in that specialty. (PLA has eye surgery for detached retina, question about a test being performed, PLA blinded in that eye. Court found that Dr held to standard of care exercised by other specialist doctors in that specialty, regarding care, skill and judgment. Nowatske v. Osterloh p. 421)

II.A. Applying Professional Standards in Medical CasesShould a doctor be required to act as well as other doctors in his locality or should his conduct be measured against a national standard of care?

~~ Modified locality rule in disfavor against strict locality rule. Prefer ‘doctors in the same community’ over ‘doctors… in similar localities’. Modified locality rule “…permits a lowered standard of care to be exercised in small communities because other similar communities are likely to have the same care.” The strongest reason for holding everyone to the same standard is that “the world is shrinking”. Locality rules are still used, but sometimes are supplemental to standard of care. (PLA brought suit against Dr. for injuries to baby while being delivered, alleged DEF’s negligence. Jury charged with holding Dr to standard of care exercised by doctors in similar localities. Court found reason for ‘similar localities’ no longer applicable and that ‘same community’ should be standard, but not reversible error – no difference in result. Vegara v. Doan p.431)

~~ The phrase “in the community” is not determined by geographical boundaries, but by the standards of medical care in the community. What do the doctors in a particular community do? If doctors in a different town do things a different way, then they may be part of another community. If 5 doctors say it’s done a particular way, and the 6th says it is done differently, but he’s from the edge of the town, that might be a different community.

II.B. Common Knowledge

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In some medical malpractice, the alleged substandard care is non-technical in nature and is within the range of a layperson’s knowledge… and therefore can go to the jury without expert testimony about the professional standard.

~~ It is possible to have a medical malpractice case based on common knowledge or a negligence action against medical practitioner without being based on medical malpractice. “The standard of non-medical, administrative, ministerial or routine care in a hospital need not be established by expert testimony because the jury is competent… to determine and apply such a reasonable care standard.” (PLA sued hospital for negligence after being dropped by nurses. Court found that dropping PLA was not a complex medical management issue requiring expert testimony. McGraw v. St. Joseph’s Hospital p.434) EX: Doctor leaves broom in the way and somebody trips on it.

II.C. Informed ConsentDoctors must receive informed consent from patients before performing procedures on them. Should doctors reveal risks that doctors consider important or risks that patients consider important?

~~ “Prudent patient” standard of care – what a prudent person in the patient’s position would have decided if suitably informed of all perils bearing significance. Objective test, not reliant on subjective hindsight of the injured patient. (PLA consented to biopsy but not warned of small but serious risk of a complication. Court found that doctor need to disclose risks not based on professional standard but on what a reasonable patient should know. Largey v. Rothman p. 439)

Public Health Law Sect. 2805-d – Limitation of medical, dental or podiatric malpractice action based on lack of informed consent1. “Lack of informed consent means the failure of the person providing the professional treatment… to disclose to the patient… the reasonably foreseeable risks and benefits involved as a reasonable medical… practitioner under similar circumstances would… in a manner permitting the patient to make a knowledgeable evaluation.” 2. “… right of action to recover for medical… malpractice based on lack of consent is limited to… (a)non-emergency treatment… or (b) a diagnostic procedure which involved invasion… of the body.”3.”… it must be established that a reasonably prudent person in the patient’s position would not have undergone the treatment… if he had been fully informed and that the lack of informed consent is a proximate cause of the injury…”AFFIRMATIVE DEFENSE \/4. “It shall be a defense to any action for medical… malpractice based upon… (lack of) informed consent that:(a) the risk not disclosed is too commonly known to warrant disclosure; or(b) the patient assured the medical… practitioner he would undergo the treatment… regardless of the risks involved, or… he did not want to be informed... ; or(c) consent by… the patient was not reasonably possible; or

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(d) the medical… practitioner… used reasonable discretion… because he reasonably believed… the… extent of such disclosure could reasonably be expected to adversely and substantially affect the patient’s condition.”

II.D. Identifying the Defendant

~~ When a patient is injured in the course of treatment by numerous medical professionals, Res Ipsa Loquitur can shift the burden from the plaintiff to the potential tortfeasors. Accident occurs normally by someone’s negligence, caused by instrumentality within defendant’s control, no contributory action from plaintiff. (PLA being operated on for appendix suffered injury to shoulder/neck while unconscious. Court found that inability to precisely explain actual cause of the accident is not a bar against recovery because of Res Ipsa Loquitur. Ybarra v. Spangard p. 445)

II.D.1. Who is a Professional?

~~ Malpractice, whether grounded in negligence or contract, has a 3 year statute of limitations (CPLR 214(6)). CPLR 214(6) malpractice is for professionals. Test for professionals:

1) extensive formal learning2) license and regulation indicating a qualification to practice3) a code of conduct imposing standards beyond those accepted in the marketplace4) a system of discipline for violation of those standards.

“Additionally, a professional relationship is one of trust and confidence, carrying with it a duty to counsel and advise clients.” (Insurance brokers try to claim professional status for shorter statute of limitations than breach of contract in not attaining requested insurance coverage for PLA. Court found not professionals because no education, no standard of conduct or discipline, and no duty to advise. Chase Scientific Research v. NIA Group p.48 Supp.)

III. Legal Malpractice and the Professional Standard

~~ The community standards of the locality rule that attorneys must comply with is derived from the jurisdiction that they are licensed to practice in. The lawyers should not be less careful or less able in different towns because they all passed the same statewide bar exam. It is a minimum licensing standard. (Attorney failed to instruct his client to obtain a non-compete agreement, brother bought out of family paving business opened another paving business a few months later. DEF claimed that area community standards didn’t require NCA be suggested, Court found that standard is statewide, not town-based. Russo v. Griffin p.450)

~~ An attorney who had not held himself out as a specialist owes his client a duty to exercise the degree of care and skill of an average qualified practitioner. Violation of this duty makes the attorney liable for any reasonably foreseeable loss caused by it. An attorney that negligently causes a client to settle a claim for lesser amount is liable to that

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client for the difference between what they got and what they should have gotten. PLA must prove he would have attained a better result if attorney had used adequate skill and care. (Attorney negligently settled for $160k rather than $400k+ because attorney not thorough. Court found that attorney negligent for failure to exercise the degree of skill and care an average attorney would have used. Fishman v. Brooks p.453)

~~ Fraud needs no privity – liable for fraud to anyone exposed. Negligence requires foreseeability.(Accountants prepared balance sheet for corp. based on falsified books that would have been discovered if reasonably thorough. Asserted that books properly reviewed and info accurate. Accountants not actually examine thoroughly, creditor relied on balance sheets, lost money. Court found no privity because not foreseeable, but fraud. Ultramares Corp. v. Touche p.56 Supp.)

~~ Actual privity not required for negligence when a close relationship tantamount to privity exists between the parties. (PLA/Bank lent money to borrower based on info in balance sheet prepared for borrower by DEF. DEF aware of PLA’s usage/needs and worked closely with them entire time. Court found no actual privity between PLA and DEF, but relationship close enough because of knowledge of who and why. Credit Alliance Corp. v. Arthur Anderson & Co. p.68)

OWNERS AND OCCUPIERS OF LAND

I. Traditional RulesA. TrespassersB. Licensees and Invitees

1. Slip-and-Fall cases2. Open and Obvious Dangers3. Criminal Conduct by Third Parties

I.A. TrespassersAttractive Nuisance Doctrine – trespassing children can be treated differently than other trespassers. Traditionally, the child could recover by proving (1) attracted onto the land by an artificial, rather than natural, condition on the land AND (2) the possessor of the land failed to use reasonable care.~~ Restatement (Second) of Torts Sect. 339 – Attractive Nuisance doctrine Possessor of land liable for physical harm to trespassing child if:1) possessor knows that children likely to trespass2) possessor knows that condition on land involves unreasonable risk of death to children3) children not aware of condition/danger involved with land4) burden of removing danger or utility of maintaining it slight compared to risk to children, AND5) possessor fails to exercise reasonable care to eliminate the danger or otherwise protect children.

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(Child climbs into power substation to cook eel on exposed wires, burns self. Court found no liability because child aware of dangers. Merrill v. Central Maine Power Company p.460)

I.B. Licensees and InviteesDuty of reasonable care to an invitee, less care due to a licensee.

~~ Owner owes an invitee a duty to exercise ordinary care to protect him from risks of which the owner is actually or should be aware of. Duty to licensee is not to injure by ‘willful, wanton or grossly negligent conduct, and owner use ordinary care to warn licensee of, or to make reasonably safe, a dangerous condition the owner is aware of and the licensee not.’ (PLA died when cutting down tree on DEF’s property. PLA claims invitee, DEF claim licensee. PLA was a social guest, licensee under law. Court found no breach of duty, and that tree not dangerous ‘till PLA started cutting it down. Knorpp v. Hale p.467)

I.B.1. Slip-and-Fall CasesCases where PLA seeks damages for a fall at the DEF’s premises. Ideally, actual knowledge of danger by DEF. Law recognizes Constructive Notice and Mode of Operation. Constructive notice if proof that condition was present for a significant period of time. Mode of Operation if DEF operates enterprise in a way that makes it likely the dangerous condition will occur.

~~ Mode of operation doctrine can establish actual knowledge of the dangerous condition, shifting the burden to the defendant to prove they took reasonable and prudent steps to avoid the potential hazard. (PLA slips on grape on the floor in supermarket, supermarket maintained grapes in self-service area which allowed them to fall on the floor. Court found that allowing customers to handle loose items is a mode of operation likely to cause a dangerous condition to occur. Nisivoccia v. Glass Gardens, Inc. p.475)

I.B.2. Open and Obvious DangersCommon law doctrines have moderated the obligations of landowners where a hazard is open and obvious or is the result of natural accumulation.

~~No duty exists between a plaintiff and a defendant when there is an open-and-obvious-danger. Natural accumulations (like snow, ice, water, etc…) can be such dangers. (Heavy wind blows door out of PLA’s hand, knocking her down, sued DEF for negligence in providing a safe entryway to their establishment. Court found heavy wind no different than rain or ice and that PLA was in a better position to prevent injuries than the DEF. Valance v. VI-Doug, Inc. p.480)

I.B.3. Criminal Conduct by Third Parties

~~ Possessor of land open to the public for business is subject to liability for physical harm caused by the… intentionally harmful acts of third persons… and by the failure of

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the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give warning adequate to enable visitors to avoid the harm. Acts ‘likely to be done” are measured by a totality of the circumstances, of which ‘prior similar incidents’ are one factor in determining foreseeability. (PLA in underground parking lot shot by robber, alleges owner negligent in not providing any security {cameras, lighting, etc…}. Court finds that prior similar incidents, basis for summary judgment for DEF, was only a factor in determining the totality of the circumstances for foreseeability.New York Law

~~ Duty of care owed to plaintiff is now single standard of reasonable care derived from foreseeability. Status of ‘invitee’ or ‘licensee’ no longer determinative, only applicable to determining what is reasonable care or reasonably foreseeable. (PLA went to go help man who fell in ditch at a park. PLA snuck in as trespasser when turned away at gate, was licensee when not ejected when seen, then invitee when helping with rescue. When leaving, had motorcycle accident because of holes in the road. Court found that different degrees of duty no longer appropriate, enforced single standard of reasonable care Basso v. Miller p.81 Supp.)

There is only a single standard or care owed to someone whether a guest, trespasser or rescuer. The standard of care is to make the premises reasonably safe. Status of the injured goes to the foreseeability of the chance of that kind of person coming onto the property.

SPECIAL DUTY RULES

I. General No-Duty-to-Rescue RulesII. Mere Economic HarmIII. Wrongful Pregnancy, Wrongful Birth and Wrongful Life IV. Emotional Distress

I. General No-Duty-to-Rescue RulesTort law does not generally require one person to rescue another from harm, even if that rescue could be easily accomplished. There are exceptions to this ‘no-duty’ rule. When engaged in a voluntary rescue, rescuer must exercise reasonable care. Unreasonable conduct in assisting the person would be a basis for liability.

~~ Restatement (Second) of Torts, Sect. 314ACommon Carrier, innkeeper and possessor of land open to the public under duty to patrons to take reasonable action:

(a) to protect them against unreasonable risk of physical harm, and(b) to give them first aid after it knows/should know they’re injured/ill, and to care for them until they can be cared for by others.

~~ Restatement (Second) of Torts, Sect. 324

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“One who, being under no duty to do so, takes charge of another who is helpless… is subject to liability to the other for… (a) the failure of the actor to exercise reasonable care to secure the safety of the other while in the actor’s charge, or (b) the actor’s discontinuing his aid or protection, if by doing so he leaves he other in a worse position than when the actor took charge of him.”(PLA has heart attack at casino, alleges breach of duty to give first aid to patron because nurse didn’t bring intubation kit. Court found duty not extend to providing all medical care that the carrier or innkeeper could reasonably foresee might be needed by a patron. Lundy v. Adamar of New Jersey, Inc. p.506)~~ Rescuer injured during rescue attempt may hold tortfeasor responsible for creating the danger liable for injuries suffered by the rescuer. “The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.” “…there (is an) unbroken continuity between the commission of the wrong and the effort to avert its consequences.” (PLA’s cousin was thrown from train due to DEF’s negligence, fell from tracks. Defendant claims PLA’s action was deliberate and not liable. Court found unbroken continuity. Wagner v. International Railway Company p.92 Supp.)

II. Mere Economic HarmWhen a plaintiff claims that a defendant’s negligent conduct has caused the plaintiff to suffer purely economic harm, and that harm occurred in the absence of a physical connection between the plaintiff and the defendant, courts generally reject the claim because of the possibility of unlimited liability.

~~”economic loss” rule bars recovery in negligence for economic harm absent personal injury or property damage. (DEF negligent putting windows in building, cause partial collapse. PLA lost business because of collapse shutting down Madison Ave. –pedestrian traffic to store stopped. Suffered economic damages only – no personal injury, no property damage, no wrongful death. 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc. p.544)

III. Wrongful Pregnancy, Wrongful Birth and Wrongful Life.~ When ‘sterilized’ parent gets pregnant – Wrongful Pregnancy~ When error in genetic counseling results in a baby born w/ genetic defect (would have aborted) (action by parents) – Wrongful Birth~ When error in genetic counseling results in a baby born w/ genetic defect (action brought by child) – Wrongful Life

~~ Courts don’t recognize ‘wrongful life’ claim by child because of high value placed on life, but do recognize ‘wrongful birth’ claim by mother for damages. (PLA received negligent genetic counseling, gave birth to defective kid, allege physician’s negligence denied her the opportunity to abort. Court found no wrongful life, but DEF liable to mother for damages under wrongful birth – wrongful birth no different than medical malpractice. Greco v. United States p.553)

IV. Emotional Distress

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The emotional disturbance must be serious and verifiable.

~~ No duty to protect from emotional injury a bystander to whom there is otherwise owed no duty, and even as to a participant to whom a duty is owed, such injury is compensable only when a direct, rather than a consequential, result of the breach. (PLA delivered anesthesia machine to DEF to overhaul and adjust- DEF negligently mixed up nitrous oxide and oxygen stickers. PLA caused death of a patient by following stickers, now mentally unable to practice. PLA sues DEF for pecuniary loss. Court found duty between PLA and DEF for DEF to maintain the machine which they breached by negligently mislabeling the machine, ruled for pecuniary damages but not emotional harm damages. Kennedy v. McKesson Co. p.96 Supp.)

~~ Plaintiff’s in the zone of danger can collect for emotional distress when defendant’s negligent conduct creates an unreasonable risk of bodily harm to the plaintiff and that conduct is a substantial factor in bringing about injuries to the plaintiff in consequence of shock or fright resulting from his contemporaneous observation of serious physical injury or death inflicted by the defendant’s conduct on a member of the plaintiff’s immediate family in his presence. (PLA mother and daughter in station wagon, father leaning in tailgate, wagon hit by DEF. PLA mother/daughter sue for emotional distress caused by seeing father glitched. Court found DEF liable for negligently inflicting emotional distress. Bovsun v. Sanperi p.109 Supp.)

ESTATES, POWERS AND TRUST LAWPart 4 – Rights of members of family resulting from wrongful act, neglect or default causing death of decedent.

EPTL Sect. 5-4.1 – Action by personal representative…1) “The personal representative… of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act… which caused the decedent’s death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued. Such an action must be commenced within two years after the decedent’s death…”

EPTL Sect. 5-4.2 Trial and burden of proof of contributory negligence“…an action accruing before September 1st, 1975… the contributory negligence of the decedent shall be a(n affirmative) defense…”

EPTL Sect. 5-4.3 Amount of Recovery(a) “The damages awarded to the plaintiff may be such a sum as the…court… deems to be fair and just compensation for the pecuniary injuries resulting from the decedent’s death…” “In every such action, in addition… the reasonable expenses of medical aid, nursing and attention incident to the injury causing death and the reasonable funeral expenses… shall also be proper elements of damage.”(b) “… punitive damages may be awarded if such damages would have been recoverable had the decedent survived.”

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EPTL Sect. 5-4.4 Distribution of damages recovered(a) “The damages, as prescribed by 5-4.3… are exclusively for the benefit of the decedent’s distributees…”(1) “Such damages shall be distributed by the personal representative to the persons entitled thereto in proportion to the pecuniary injuries suffered by them…”

EPTL Article 11 - FiduciariesEPTL Sect. 11-3.2 Action for injury to person or property survives despite death of person in whose favor or against whom cause of action existed(A) – Action against personal representative for injury to person or property(1) “No cause of action for injury to person or property is lost because of the death of the person liable for the injury. For any injury, an action may be brought or continued against the personal representative of the decedent, but punitive damages shall not be awarded nor penalties adjudged in any such action brought to recover damages for personal injury. This section extends to a cause of action for wrongfully causing death and an action therefore may be brought or continued against the personal representative of the person liable therefore.”(2) “Where death or an injury to person or property, resulting from a wrongful act… occurs simultaneously with or after the death of a person who would have been liable… an action to recover damages may be maintained against the personal representative…”(B) – Action by personal representative for injury to person or property“No cause of action… is lost because of the death of the person in whose favor the cause of action existed. For any injury an action may be brought… by the personal representative of the decedent, but punitive damages shall not be awarded… where the death occurs on or before August 31st, 1982.”

EPTL Sect. 11-3.3 Limitations upon recovery where injury causes death(A) “Where an injury causes the death of a person the damages recoverable for such an injury are limited to those accruing before the death and shall not include damages for or by reason of death, except that the reasonable funeral expenses of the decedent… shall be recoverable….” “…damages… become part of the estate…” (B)(2) “Where an action to recover damages for personal injury has been brought, and the injured person dies, as a result of the injury, before verdict… his personal representative may enlarge the complaint in such action to include the cause of action for wrongful death under 5-4.1”(3) “When an action to recover damages… and a separate action for wrongful death… are pending… they may be consolidated on the motion of either party.”

WRONGFUL DEATHTortious conduct of the DEF must be the cause of death.On date of death, decedent must have had a valid cause of action for personal injuries against the defendant.Estate of the decedent is the owner of the personal injury claim. Damages go into the estate, distributed by the laws of estates.

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The wrongful death suit is maintained by the personal representative – person must have been liable to the decedent if his death had not ensued – act within 2 years of the decedent’s death.Damages from the wrongful death belong to the decedent’s distributee’s (his next of kin), not distributed per the will.

Wrongful Death Statutes~ Create a totally separate cause of action and claim for relief for a different group of recipients (next of kin, not necessarily heirs)1) Death caused by negligence of the defendant2) Claim has to be commenced within two (2) years of the date of death3) Only a valid and timely claim for wrongful death if at the time of death there was a valid and timely claim for personal injury.

CPLR Sect. 210 Death of claimant or person liable, cause of action accruing after death and before grant of letters(a) “Death of claimant. Where a person entitled to commence an action dies before the expiration (of statute of limitations)… an action may be commenced… within one year after his death.”(b) “Death of person liable. The period of eighteen months after the death (of the defendant)… is not pat of the time within which the action must be commenced…”

CPLR Sect. 4545 Admissibility of collateral source of payment(A) Action for medical, dental or podiatric malpractice“In any action for medical… malpractice where the plaintiff seeks to recover for the cost of medical care… or other economic loss, evidence shall be admissible… to establish that any such past or future cost was or will…be replaced… from any collateral source such as insurance… social security… worker’s compensation or employee benefit programs….” “If the court finds… such… it shall reduce the amount of the award by such finding….”(B) Ditto for public employers or public employees indemnified by their employer(C) Ditto actions for personal injury, injury to property or wrongful death.(D) Voluntary charitable contributions received by an injured party do not count as a collateral source.

CPLR Sect. 4546 Loss of earnings and impairment of earning ability…(1) Court will hear evidence about taxes PLA would have to pay away from jury.(2) Instruct jury not to lower award for taxes(3) Court will address tax issue after jury decides award.

PJI 2:278 Damages-Punitive“In addition to awarding damages to compensate the plaintiff for his injuries, you may, but are not required to, award plaintiff punitive damages if you find that the act of the defendant that caused the injury complained of was (wanton and reckless, malicious).

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The purposes of punitive damages is to punish the defendant for (wanton and reckless, malicious) acts and thereby to discourage the defendant and other (people, companies) from acting in a similar way in the future.”Wanton and reckless act – show conscious indifference and utter disregard of its effect upon the safety and rights of other.Malicious act – done deliberately with knowledge of plaintiff’s rights and the intent to interfere with those rights.Factors of punitive damages:1) Nature and reprehensibility of what the defendant did, including:

(a) whether DEF’s conduct demonstrated indifference to or reckless disregard of health/safety of others.(b) whether plaintiff financially vulnerable(c) duration of conduct(d) defendant’s awareness of harm caused(e) concealment or covering up of wrong-doing(f) frequency of similar acts in the past

2) Actual and potential harm caused by DEF – award must be reasonable and proportionate to actual/potential harm suffered as well as compensatory damages awarded.3) Defendant’s financial condition and the effect of the punitive damages.

Due Process considerations prohibits the imposition of grossly excessive or arbitrary punitive damage awards on a tortfeasor.

Worker’s CompensationFundamental purpose of worker’s comp law is to provide rapid payment to injured employees injured on the job. Irrespective of fault or negligence, but in return for that, the employer’s liability is limited to the employee.Employee then sues tool manufacturer, who sues the employer for indemnity.

Worker’s Compensation Sect. 11 Alternative remedy“The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever to such employee…”“An employer shall not be liable for contribution or indemnity to any 3rd person based upon liability for injuries sustained by an employee acting within the scope of his… employment for such employer unless such 3rd person proves competent medical evidence that such employee has sustained a grave injury…”(Generally protects the employer when employee sues a 3rd party and they go after the employer..)

No FaultBasic scheme – part of tort reform.

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No fault - in which covered persons involved in car accidents recover their basic economic loss (up to $50,000) irrespective of fault and without lawsuit. No claim for non-economic loss (pain and suffering) unless the PLA has suffered serious injury. To overcome no-fault, must have either a serious injury or basic economic loss over $50,000.

~~ Only a total loss of use is compensable under the “permanent loss of use” exception to NY No-Fault law. (PLA, dentist, in ambulance, hit in the arm by IV pump when ambulance hit curb, claims pain and cramping in arm limit his ability to practice dentistry. Court found that ‘permanent loss of use’ under ‘serious injury’ definition requires a total loss of use. Oberly v. Bangs Ambulance, Inc. p. 847)

Motor Vehicle Reparations – Article 51Sect. 5103(B) Insurer may exclude from coverage a person who::(1) intentionally caused own injury(2) injured while operating motor vehicle while intoxicated or on drugs(3) injured while (i)committing a felony or avoiding arrest (ii) racing (iii) driving known stolen vehicle (iv) driving without required insurance (v) pedestrian owner? or (vi) repairing car as line of work and injury happens at place of business.

Sect. 5104 Causes of action for personal injury (A) Regarding covered persons v. covered persons, any action for personal injuries arising out of negligence cannot recover non-economic loss, except in cases of serious injury, or basic economic loss.

Sect. 5108 – Limit on charges by providers of health services(A) Charges are determined/limited by schedule used for worker’s comp except when insurer or arbitrator determines unusual procedures justify higher charges.(C) No provider can require payment in addition to the charges authorized here.

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