Torts

A tort is a civil wrong. The tort system of liability is central to

the American legal system.

Negligence

• The concept of negligence is central to the tort system of liability. The negligence concept is centered on the principle that every individual should exercise a minimum degree of ordinary care so as not to cause harm to others.

Who Is Responsible

• Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person. (Cal.Civ.Code § 1714(a).) "Negligence is not the act itself, but the fact which defines the character of the act, and makes it a legal wrong." (Stephenson v. Southern Pac. Co. (1894) 102 Cal. 143, 147.)

NEGLIGENCE AND ORDINARY CARE-DEFINITIONS

• Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under the same or similar circumstances. It is the failure to use ordinary or reasonable care. Ordinary or reasonable care is that care which persons of ordinary prudence would use.

NEGLIGENCE-ESSENTIAL ELEMENTS

• The elements of a cause of action in tort for negligence are: (1) a duty to use ordinary care; (2) breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury and (4) resulting damage. (Budd v. Nixen (1971) 6 Cal.3d 195, 200.)

In other words, the essential elements of a claim of negligence are:

• 1. The defendant was negligent;

• 2. Defendant's negligence was a cause of injury, damage, loss or harm to plaintiff.

A TEST FOR DETERMINING THE QUESTION OF NEGLIGENCE

• One test that is helpful in determining whether or not a person was negligent is to ask and answer the question whether or not, if a person of ordinary prudence had been in the same situation and possessed of the same knowledge, he or she would have foreseen or anticipated that someone might have been injured by or as a result of his or her action or inaction. If the answer to that question is "yes", and if the action or inaction reasonably could have been avoided, then not to avoid it would be negligence.

AMOUNT OF CAUTION VARIES

• The amount of caution required of a person in the exercise of ordinary care depends upon the conditions that are apparent or that should be apparent to a reasonably prudent person under the same or similar circumstances.

RIGHT TO ASSUME OTHERS' GOOD CONDUCT

• Every person who is exercising ordinary care, has a right to assume that every other person will perform his her duty and obey the law, and in the absence of reasonable cause for thinking otherwise, it is not negligence for such a person to fail to anticipate an accident which can occur only as a result of a violation of law or duty by another person.

RIGHT TO ASSUME OTHERS' NORMAL FACULTIES

• A person who is exercising ordinary care has a right to assume that other persons are ordinarily intelligent and possessed of normal sight and hearing, in the absence of reasonable cause for thinking otherwise.

DUTY TO ANTICIPATE CRIMINAL CONDUCT OF THIRD PERSON

• When the circumstances are such that the possibility of harm caused by the criminal conduct of a third person is, or in the exercise of due care should be, reasonably foreseeable, it is negligence to fail to use reasonable care to prevent such criminal act from causing injury or damage.

EVIDENCE OF CUSTOM IN RELATION TO ORDINARY CARE

• Evidence as to whether a person conformed or did not conform to a custom that had grown up in a given locality or business is relevant and ought to be considered, but is not necessarily controlling on the issue whether such person was negligent.

STANDARD OF CONDUCT FOR MINOR

• A minor is not held to the same standard of care as an adult. A minor is required to exercise the degree of care which ordinarily is exercised by minors of like maturity, intelligence and capacity under similar circumstances.

• Minor - n. someone under legal age, which is generally 18, except for certain purposes such as drinking alcoholic beverages.

IMPAIRED PHYSICAL FACULTIES-AMOUNT OF CAUTION

• The amount of caution required of a person whose physical faculties are impaired is the care which a person of ordinary prudence with similarly impaired faculties would use under the same or similar circumstances.

CARE REQUIRED FOR SAFETY OF MINOR

• Ordinarily it is necessary to exercise greater caution for the protection and safety of a young child than for an adult person who possesses normal physical and mental faculties. One dealing with children must anticipate their ordinary behavior. The fact that children usually do not exercise the same degree of prudence for their own safety as adults, or that they often are thoughtless and impulsive, imposes a duty to exercise a proportional vigilance and caution on those dealing with children, and from whose conduct injury to a child might result.

NEGLIGENCE PER SE--VIOLATION OF STATUTE, ORDINANCE, OR SAFETY

ORDER• The violation of a law or statute that results in injury to another

may constitute negligence per se. However, just because a statute has been violated does not mean that the violator is necessarily liable for any damage that might be ultimately traced back to the violation. "The doctrine of negligence per se does not apply even though a statute has been violated if the plaintiff was not in the class of persons designed to be protected or the type of harm which occurred was not one which the statute was designed to prevent." (Olsen v. McGillicuddy (1971) 15 Cal.App.3d 897, 902-903) Mere "but for" causation, is simply not enough. The statute must be designed to protect against the kind of harm which occurred.

CONTRIBUTORY NEGLIGENCE--DEFINITION

• Is negligence on the part of a plaintiff which, combining with the negligence of a defendant, contributes as a cause in bringing about the injury. "Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff's harm." (Rest. 2d Torts, § 463.)

Contributory Negligence

• Traditionally, any amount of contributory negligence on the part of a plaintiff, no matter how small, operated as a total bar to recovery. However, the modern rule of comparative negligence has softened the harsh effect of the traditional rule.

• The majority of states have now abrogated the "all-or-nothing" rule of contributory negligence and have enacted in its place general apportionment statutes calculated in one manner or another to assess liability in proportion to fault. Hence, in most jurisdictions, contributory negligence is no longer a total bar to plaintiff's recovery.

• Contributory negligence, if any, on the part of the plaintiff does not bar a recovery by the plaintiff against the defendant but the total amount of damages to which the plaintiff would otherwise be entitled shall be reduced in proportion to the amount of negligence attributable to the plaintiff. (Li v. Yellow Cab (1975) 13 Cal.3d 804) In California, the doctrine of last clear chance is abolished, and the defense of assumption of risk is also abolished to the extent that it is merely a variant of the former doctrine of contributory negligence.

Federal Sphere

• In the federal sphere, comparative negligence of the "pure" type has been the rule since 1908 in cases arising under the Federal Employers' Liability Act (see 45 U.S.C. § 53) and since 1920 in cases arising under the Jones Act (see 46 U.S.C. § 688) and the Death on the High Seas Act (see 46 U.S.C. § 766).

CONTRIBUTORY NEGLIGENCE--FORGETFULNESS OF KNOWN DANGER

• If a plaintiff voluntarily proceeds into a dangerous situation of which he or she had previous knowledge, but momentarily forgot the danger, such forgetfulness is not in itself contributory negligence unless under all the circumstances it shows an absence of ordinary care not to have kept the danger in mind.

RECOVERY FOR INTENTIONAL HARM NOT DIMINISHED BY CONTRIBUTORY

NEGLIGENCE

• Contributory negligence, if any, on the part of the plaintiff does not reduce any recovery by the plaintiff against the defendant for an injury caused by misconduct of the defendant, if the defendant intended to inflict harm upon the plaintiff.

CONTRIBUTORY NEGLIGENCE--MINORS

• In California, a minor under the age of five years is incapable of contributory negligence as a matter of law. Contributory negligence, if any, on the part of the minor over the age of five years does not bar a recovery against the defendant but the total amount of damages to which the minor would otherwise be entitled is reduced in proportion to the amount of negligence attributable to the minor. The negligence, if any, of the parents, or either of them, does not bar or reduce recovery of damages for injuries to the minor.

DUTY OF PASSENGER FOR OWN SAFETY

• One who is simply a passenger in a motor vehicle and has no right to the control or management of such vehicle nevertheless has the duty to exercise the same ordinary care for his or her own safety and protection as a person of ordinary prudence would take under the same or similar circumstances. The passenger has the duty of doing whatever a person of ordinary prudence in the same situation would do to inform or warn the driver in an effort to prevent an accident.

DUTY OF PASSENGER FOR OWN SAFETY

• Contributory negligence, if any, by the passenger does not bar recovery against the defendant but the total amount of damages to which the passenger would otherwise be entitled shall be reduced in proportion to the amount of negligence attributable to the passenger.

RES IPSA LOQUITUR -- NECESSARY CONDITIONS FOR APPLICATION

• Res ipsa loquitur is the name of a doctrine that permits a trier of fact to infer the existence of negligence in the absence of direct evidence of negligence. For the doctrine to apply it must be shown that:

RES IPSA LOQUITUR -- NECESSARY CONDITIONS FOR APPLICATION (Continued)

• First, that it is the kind of accident or injury which ordinarily does not happen unless someone is negligent;

• Second, that it was caused by an agency or instrumentality in the exclusive control of the defendant over which the defendant had the exclusive right of control originally, and which was not mishandled or its condition otherwise changed after defendant relinquished control; and

RES IPSA LOQUITUR -- NECESSARY CONDITIONS FOR APPLICATION (Continued)

• Third, that the accident or injury was not due to any voluntary action or contribution on the part of the plaintiff which was the responsible cause of plaintiff's injury.

RES IPSA LOQUITUR -- PRESUMPTION OF NEGLIGENCE

• If the foregoing circumstances are established, the trier of fact must find from the happening of the accident or incident involved that a cause of the occurrence was some negligent conduct on the part of the defendant.

Negligence - Duty

• Duty concerns whether a person has a legal obligation to act, and a corresponding legal liability for failing to act, in a particular circumstance. The existence of a duty is a question of law for the court. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 124.)

RISK IMPORTS RELATION

• The seminal case on duty is (Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339 [162 N.E. 99, 59 A.L.R. 1253]) While Mrs. Palsgraf stood on a platform of defendant's railroad, a man carrying a package of fireworks wrapped in a newspaper attempted to board a moving train. A railroad employee assisted him, and the package was dislodged, fell and exploded. The shock threw down platform scales many feet away, and these struck Mrs. Palsgraf. Palsgraf established that in analyzing questions regarding the scope of an individual actor's duty, the courts look to whether the relationship of the parties is such as to give rise to a duty of care and whether the plaintiff was within the zone of foreseeable harm. (Palsgraf v. Long Is. R.R. Co., supra.)

Palsgraf v. Long Island R. Co.

• "The damaged plaintiff must be able to point the finger of responsibility at a defendant owing, not a general duty to society, but a specific duty to him." (Johnson v. Jamaica Hosp., , 62 NY2d 523, 527.) "The risk reasonably to be perceived defines the duty to be obeyed." (Palsgraf v. Long Is. R.R. Co., supra.). In other words, foresee ability of risk defines the scope of duty.

THE SCOPE OF ANY DUTY OF CARE VARIES WITH THE FORESEEABILITY OF

THE POSSIBLE HARM.

• The kind and number of hazards encompassed within a particular duty depend on the nature of the duty. Where an individual breaches a legal duty and thereby causes an occurrence that is within the class of foreseeable hazards that the duty exists to prevent, the individual may be held liable, even though the harm may have been brought about in an unexpected way. Conduct is considered negligent when it tends to subject another to an unreasonable risk of harm arising from one or more particular foreseeable hazards (Rest.2d Torts § 281).

THE SCOPE OF ANY DUTY OF CARE VARIES WITH THE FORESEEABILITY OF THE

POSSIBLE HARM (CONTINUED)• When the person is harmed by an occurrence

resulting from one of those hazards, the negligent actor may be held liable. In contrast, where the harm was caused by an occurrence that was not part of the risk or recognized hazard involved in the actor's conduct, the actor is not liable. For example: A gives a loaded pistol to B, a boy of eight, to carry to C. In handing the pistol to C, the boy drops it, injuring the bare foot of D, his comrade. The fall discharges the pistol wounding C. A is subject to liability to C, but not to D. (Rest.2d Torts § 281 comment f)

THE SCOPE OF ANY DUTY OF CARE VARIES WITH THE FORESEEABILITY OF THE

POSSIBLE HARM (CONTINUED)• Under the common law, as a general rule, one

person owed no duty to control the conduct of another Rest.2d Torts (1965) § 315), nor to warn those endangered by such conduct (Rest.2d Torts, supra, § 314, com. c.; Prosser, Law of Torts (4th ed. 1971) § 56, p. 341) The courts have carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct (see Rest.2d Torts, supra, §§ 315-320).

THE SCOPE OF ANY DUTY OF CARE VARIES WITH THE FORESEEABILITY OF THE

POSSIBLE HARM (CONTINUED)

• As explained in section 315 of the Restatement Second of Torts, "a duty of care may arise from either (a) a special relation ... between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation ... between the actor and the other which gives to the other a right of protection." (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435)

DUTY OF ONE IN IMMINENT PERIL

• A person who, without negligence on his or her part, is suddenly and unexpectedly confronted with peril arising from either the actual presence of, or the appearance of, imminent danger to him or herself or to others, is not expected nor required to use the same judgment and prudence that is required in the exercise of ordinary care in calmer and more deliberate moments.

DUTY OF ONE IN IMMINENT PERIL(Continued)

• His or her duty is to exercise the care that an ordinarily prudent person would exercise in the same or similar circumstances. If at that moment he or she does what appears to him or her to be the best thing to do, and if his or her choice and manner of action are the same as might have been followed by any ordinarily prudent person under the same conditions, he or she does all the law requires of him or her. This is true even though in the light of after-events, it should appear that a different course would have been better and safer.

RESPONSIBILITY OF ONE CAUSING THE PERILOUS SITUATION

• When a situation of peril such as that described above is caused by someone's negligence, and the person in peril, acting under the impulse of fear, makes an instinctive and reasonable effort to escape and, in so doing, injures himself or herself or a third person, the negligence that caused the peril is deemed to be a cause of the injury. This is true even though it might have appeared, or after the event it may appear, from the viewpoint of another person, that the effort to escape was unwise or that the person in danger would not have been injured no one would have been injured if that effort had not been made or had been made differently.

VOLUNTARY UNDERTAKING--"GOOD

SAMARITAN" RULE

• A person who is under no duty to care for or render service to another but who voluntarily assumes such a duty, is liable to the other for injury caused by a failure to exercise ordinary or reasonable care in the performance of that assumed duty.

Good Samaritan Rule

n. from a Biblical story, if a volunteer comes to the aid of an injured or ill person who is a stranger, the person giving the aid owes the stranger a duty of being reasonably careful. In some circumstances negligence could result in a claim of negligent care if the injuries or illness were made worse by the volunteer's negligence. Thus, if Jack Goodguy sees a man lying by the road, a victim of a hit and run accident, and moves the injured man, resulting in a worsening of the injury or a new injury, instead of calling for an ambulance, Goodguy may find himself on the wrong end of a lawsuit for millions of dollars.

THE RESCUE DOCTRINE--LIABILITY TO RESCUER

• In general, there is no duty to come to the aid or rescue of a stranger unless, the rescuer negligently created the situation which put the stranger in peril and necessitated the rescue. The essential elements of the rescue doctrine are:

• 1. The defendant engaged in negligent conduct;

• 2. Such conduct threatened real and imminent serious harm to the person or property of another;

THE RESCUE DOCTRINE--LIABILITY TO RESCUER (Continued)

• 3. The plaintiff attempted to rescue the endangered person or property;

• 4. In attempting such rescue, the plaintiff suffered injury, damage, loss or harm; and

• 5. The defendant's negligence was a cause of the rescue attempt and of the injuries or damage sustained by plaintiff in the course of such rescue attempt.

Rescue Doctrine

n. The rule of law that if a rescuer of a person hurt or put in

peril due to the negligence or intentional wrongdoing of another (the tortfeasor) is injured in the process of the rescue, the original wrongdoer is responsible in damages for the rescuer's injury. Example: Sydney Sparetire speeds on a mountain highway, and skids in front of Victor Victim, running Victim's car off the bank, trapping Victim in the vehicle. Raymond Rightguy stops, ties a rope to the grill of his car, slides down and extricates Victim, but on the way up slips and breaks his arm, and then finds the grill is badly bent. The negligent Sparetire is liable to Rightguy for his broken arm (including medical expenses, loss of wages and general damages for pain and suffering) as well as the property damage to the car grill.

OTHER SITUATIONS GIVING RISE TO DUTY

• Restatement Second of Torts Section 388 outlines the requirements for imposing liability on one who supplies a chattel which is known to be dangerous for its intended use. No duty can exist under section 388 unless defendant supplies a chattel to defendant to use.

Chattel

• n. an item of personal property which is movable, as distinguished from real property (land and improvements).

OTHER SITUATIONS GIVING RISE TO DUTY (Continued)

• A travel agent has a duty to disclose reasonably obtainable material information to the traveler unless that information is so clearly obvious and apparent to the traveler that, as a matter of law, the travel agent would not be negligent in failing to disclose it. (McCollum v. Friendly Hills Travel Ctr. (1985) 172 Cal. App.3d 83, 945.)

DUTY OF CARE - OWNERS AND OCCUPIERS OF LAND

• The common law determined what duty of care an owner of land owed to those coming upon the land by classifying the plaintiff either as a trespasser, licensee, or invitee and then adopting special rules as to the duty owed by the possessor to each of the classifications. Generally speaking a trespasser is a person who enters or remains upon land of another without a privilege to do so; a licensee is a person like a social guest who is not an invitee and who is privileged to enter or remain upon land by virtue of the possessor's consent, and an invitee is a business visitor who is invited or permitted to enter or remain on the land for a purpose directly or indirectly connected with business dealings between them. (Oettinger v. Stewart, 24 Cal.2d 133, 136 [156 A.L.R. 1221].)

DUTY OF CARE - OWNERS AND OCCUPIERS OF LAND (Continued)

• Although the inviter owed the invitee a duty to exercise ordinary care to avoid injuring him (Oettinger v. Stewart, supra, 24 Cal.2d 133, 137; Hinds v. Wheadon, 19 Cal.2d 458, 460-461), the general rule was that a trespasser and licensee or social guest were obliged to take the premises as they find them insofar as any alleged defective condition thereon may exist, and that the possessor of the land owed them only the duty of refraining from wanton or willful injury. (Palmquist v. Mercer, 43 Cal.2d 92, 102; see Oettinger v. Stewart, supra, 24 Cal.2d 133, 137 et seq.) The ordinary justification for the general rule severely restricting the occupier's liability to social guests is based on the theory that the guest should not expect special precautions to be made on his account and that if the host does not inspect and maintain his property the guest should not expect this to be done on his account. Most courts have now rejected the rigid common law classifications and instead approach the issue of the duty of the occupier on the basis of ordinary principles of negligence.

Negligence - Causation In Fact - Proximate or Legal Cause

• CAUSE--SUBSTANTIAL FACTOR TEST– In tort law "cause" is a term of art. A legal

cause of injury, damage, loss or harm is something that is a substantial factor in bringing about an injury, damage, loss or harm. "An actor may be liable if his negligence is a substantial factor in causing an injury." (Vesely v. Sager 5 Cal.3d 153.)

CAUSE

from Latin causa 1) v. to make something happen. 2) n. the reason something happens. A cause implies what is called a "causal connection" as distinguished from events which may occur but do not have any effect on later events. Example: While driving his convertible, Johnny Youngblood begins to stare at pretty Sally Golightly, who is standing on the sidewalk. While so distracted he veers into a car parked at the curb. Johnny's inattention (negligence) is the cause of the accident, and neither Sally nor her beauty is the cause. 3) n. short for cause of action.

PROXIMATE CAUSE

• The question of legal responsibility is commonly considered in terms of "proximate cause," which is ordinarily concerned, not with the fact of causation, but with the various considerations of policy that limit an actor's responsibility for the consequences of his conduct. (See, Prosser, Torts, pp. 311-313.) A proximate cause of an injury is a cause which, in natural and continuous sequence, produces the injury, and without which the injury would not have occurred. "The concept of proximate causation has given courts and commentators consummate difficulty and has in truth defied precise definition." (State Compensation Ins. Fund v. Ind. Acc. Comm. 176 Cal.App.2d 10, 20.)

PROXIMATE CAUSE (Continued)

• In the Polemis Case (1921, 3 K. B. 560), defendant's worker carelessly allowed a plank to fall into the hold of the ship. The falling plank struck something and thereby caused a spark which in its turn ignited gasoline vapor in the hold. The vapor caused a fire which destroyed the whole ship. Held: The fire was not a reasonably foreseeable consequence of allowing the plank to fall. However, it was reasonably foreseeable that the falling plank would cause some form of damage to the vessel.

PROXIMATE CAUSE (Continued)

• Because of this, the court established defendant's negligence. Whether the particular damage caused by the fire was recoverable depended solely on it being a direct consequence of the negligent act. Although the damage by fire could not have reasonably been foreseen as a consequence of dropping the plank, Defendant was therefore liable for the loss of the ship by fire.

PROXIMATE CAUSE (Continued)

• In Wagon Mound 1 (Overseas Tankship (U.K.) Ltd. v. Morts Dock and Engineering Co. Ltd. [1961] 1 All E.R. 404; [1961] A.C. 388; [1961] 2 W.L.R. 126; (P.C.) and Wagon Mound 2 (Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty. (1966), [1966] 2 All E.R. 709; [1967] 1 A.C. 617; [1966] 3 W.L.R. 498 (P.C.) the wind and tide carried the oil beneath a wharf where welding operations were being carried on by employees. After being advised that they could safely weld, the employees continued their work. Some 55 to 60 hours after the original discharge, molten metal set some waste floating in the oil on fire. The flames quickly developed into a large fire which severely damaged the wharf.

Wagon Mound (Continued)

• Liability turned on the question of whether the risk of fire was foreseeable, since furnace oil has such a high boiling point it is unlikely to catch fire under normal circumstances. In Wagon Mound 1 and 2, the two sequential claimants argued the risks of fire in opposite ways. Each of these diametrically different presentations of the risk of fire was accepted by the very same court as equally true and valid facts. The upshot of the two Wagon Mound cases is that a defendant will only be liable for damage that is reasonably foreseeable as a consequence of the negligent act. Foreseeable damage being "real or very likely " - not far-fetched or fanciful."

CONCURRING CAUSES

• There may be more than one cause of an injury. When negligent or wrongful conduct of two or more persons or negligent or wrongful conduct and a defective product contributes concurrently as causes of an injury, the conduct of each is a cause of the injury regardless of the extent to which each contributes to the injury. A cause is concurrent if it was operative at the moment of injury and acted with another cause to produce the injury. It is no defense that the negligent wrongful conduct of a person not joined as a party was also a cause of the injury.