NEGLIGENCE

a. Elementsi. DUTY

a. Affirmative Obligations to Actb. Policy Bases for Invoking No Dutyc. Duties of Landowners, Occupiers, and Family Membersd. Emotional Harme. Stand-Alone Economic Harmf. Wrongful Birth and Life

ii. BREACHa. Historical Development and the Central Conceptb. The Roles of Judge and Jury, Custom, and Statutec. Proof of Negligence and Res Ipsa Loquiturd. Medical Malpractice

iii. CAUSATION1. ACTUAL CAUSE

a. Cause-in-Fact: Basic Doctrineb. Multiple Defendants

i. Joint & Several Liabilityii. Proportionate Liability

2. PROXIMATE CAUSEiv. DAMAGES

b. Defensesi. The Plaintiff’s Fault

ii. Assumption of RiskII. STRICT LIABILITY

a. Strict Liabilityb. Defective Products

i. Contract vs. Tort for Product Accidentsii. Manufacturing Defects

iii. Design Defectsiv. Information Defects

1. Safety Instructions and Warningsc. Defenses

i. Work-Related Injuriesii. Misuse

III. INTENTIONAL HARMa. Basic Doctrineb. Assault & Batteryc. False Imprisonmentd. Intentional Infliction of Emotional Distress

i. DefensesIV. DAMAGES & INSURANCE

a. Compensatory Damagesb. Punitive Damagesc. Insurance

I. Fault: Negligencea. --If an act is unintentional, (D) is liable for harm only if he failed to exercise ordinary care to guard

against the danger.i. (P) has burden of proof, by a preponderance of the evidence:

1. (1) It is more likely than not that (D) owed (P) a duty2. (2) It is more likely than not that (D) breached that duty3. (3) It is more likely than not that (D)’s breach caused (P)’s injury4. (4) It is more likely than not that the injury caused (P) damages

ii. (D) has burden to prove any defenses to (P)’s action.iii. PROOF OF NEGLIGENCE: Evidence

1. Direct – An eyewitness2. Circumstantial – Evidence of one fact permits an inference of another fact

a. PROOF OF NEGLIGENCE: Noticei. Constructive notice: when there is NO DIRECT EVIDENCE OF NOTICE, use

constructive notice doctrine to support an inference that the defendant KNEW or SHOULD HAVE KNOWN about the danger. Can exist if danger was there for a long time/was apparent/etc., proven by circumstantial evidence.

b. Business Practice Rule: business practice created risk. 3. Evidence usually centers on the defendant’s conduct.

iv. Defendant can defend by 1. Showing absence/invalidity of one of the 4 elements or 2. Using an affirmative defense (e.g. contributory negligence)

v. CARROLL TOWING: Learned Hand Formula PL > B1. Reasonable Person Standard

a. Always objectiveb. State of mind/mental state not importantc. Physical impairments (not mental) are the only exceptions.

b. Roles of Judge, Jury, Custom, and Statutei. GENERAL RULE: Determining breach of duty = question for the jury.

1. However, if the appropriate conduct is clear (i.e., in the judge’s mind, no reasonable person could conclude otherwise), judge decides.

ii. B&O RR v. Goodman : The judge can take the breach question away from the jury when a P does not act in accordance with the standard of care.

iii. Pokora v. Wabash Railway : Cardozo opinion overturns B&O RR by saying that the ‘reasonableness’ of getting out of a car to check for a train is a question for the jury.

iv. Rules versus Standards1. Rules: predetermined by triggering facts; determine in advance whether conduct is

permitted/prohibited/whether it constituted due care, etc.a. Rules=whether the facts establish the conduct.

2. Standards: use guiding principles but consider context. More leeway.c. Res Ipsa Loquitur

i. “The thing speaks for itself”—accident that caused the injury would not have occurred in the absence of negligence on the part of Defendant. The accident itself allows us to infer that D breached his duty of care.

1. To est. RIL, P must show:a. D’s negligence can be inferred FROM THE ACCIDENTb. AND D had EXCLUSIVE CONTROL over the instrumentality of harm

2. McDougald v. Perry : Evidentiary Standard = P must show that it’s more likely than not that the accident would not have occurred in the absence of negligence.

ii. Fault is still required under RIL.

iii. RIL’s effect on evidentiary burdens (jurisdictions differ b/t a) and b))(a) Inference: jury allowed to draw inference of negligence from event. Plaintiff will get

to the jury (no SJ), but has burdens of production and persuasion; no need for defendant to produce evidence (although defendant usually does).

(b) Presumption (minority rule): Once plaintiff establishes res ipsa, defendant bears burden of  producing evidence to show that the injury could have happened in the absence of negligence or that def was not negligent; burden of  persuasion stays with Plaintiff.

iv. Ybarra : why allow RIL?1. To break the conspiracy of silence (“without the aid of the doctrine, a patient…would be

entirely unable to recover unless the doctors and nurses…voluntarily chose to disclose….”)

2. This expansion of the doctrine allows the plaintiff to implicate the group even though he is unable to show exclusive control by a particular defendant.  Focus is on team aspect

3. Information forcing device. Encourages defendants to reveal information to get themselves off the hook

4. HOLDING HAS BEEN INTERPRETED NARROWLY: USUALLY APPLIES ONLY IN MEDICAL MALPRACTICE CASES!)

d. Medical Malpractice/Informed Consenti. Medical Malpractice General Rules

1. P MUST ANSWER: 1. DID D BREACH? 2. IS THE EXPERT QUALIFIED TO TESTIFY?

2. To demonstrate breach, P must show:a. Customary practices used by physicians in same/similar circumstances; ANDb. That the physician departed from the customary practice

3. Majority Rule: Custom establishes the standardii. Expert Testimony:

1. Required in medical malpractice cases, unless facts are sufficiently straightforward that a layperson could readily appraise D’s conduct—ex, doctor negligently amputated a healthy leg.a. Expert must testify as to the customary practice in the medical community

2. Minority of jurisdictions: moving toward permitting more flexibility for juries to evaluate the standard to be applied—ex, whether “custom” has kept up with medical knowledge.

3. Rulesa. Traditional Rules:

i. Strict Locality Rule1. Expert must practice in the same field and the same community.

ii. Modified Locality Rule1. Expert must practice in the same field and the same or similar

communityb. Modern Rule:

i. National Rule1. Expert must be qualified to testify about what a reasonable doctor (RD)

in (D)’s class would have done in same or similar circumstances.2. Same Class means that the expert has sufficient knowledge, skill

experience, training, and education related to (D)’s field to know what a reasonable doctor in (D)’s same or similar circumstances would have done.

3. No need to be currently practicing in the same field and in same or similar locality.

c. Conflicting Testimony i. Creates a question for the jury

ii. Multiple Schools of Thought Rule1. No breach occurs if the procedure used is recognized by reputable and

respected, considerable number of medical experts in the field, even if a minority.

2. Allows standard to adjust to advances in medicine.4. Exceptions to the Expert Testimony Requirement

a. Use of Treatises if the treatise is the definitive work in the field.i. Traditionally excluded because of hearsay rule.

b. Admissions Against Self-Interesti. If someone hears the physician say they screwed up, that can be admitted. Not

common because med schools teach law.c. Res Ipsa Loquiturd. Injury Not Related to Treatment Area

i. Ex: Nose breaks during kidney surgery.e. Common Knowledge

iii. Consent1. Implied Consent: Arises where unexpected complications or injuries arise. Courts will

say that a surgeon can extend the treatment beyond the original circumstances to which the patient consented. The law assumes that someone would want assistance under the circumstances.

2. Informed Consent: Physicians must obtain informed consent before commencing treatment. Objective Standard: Doctor must present facts about medically reasonable treatments that would be material to a reasonable patient in the same or similar circumstances.a. Requirements

i. Recommended treatment; Alternative treatments; Risks and expected outcomes of treatments

ii. Generally, doctor must inform of risks of death, bodily harm, and recuperation problems.

iii. Does not need to inform (P) of obvious or remote risks.b. Keys: Materiality & Causation

i. Materiality – Not every risk must be disclosed. The physician must use reasonable care to disclose information that would provide the relevant risks that would be important to that patient.

ii. Causation – Subjective Test: Would the patient have opted to not consent if the information had been disclosed to them?

1. Not all courts use the subjective test. Objective Test: What would a reasonable patient have done?

c. Standard of Care: Jurisdiction Spliti. Majority Rule: Patient Standard

1. Duty to disclose is measured by what a reasonable patient would want in order to make an informed and intelligent decision about consent. Experts are not required to establish this standard.

ii. Minority Rule (16 States): Professional Standard1. Duty to disclose danger of which doctor has knowledge and of which a

reasonable doctor would determine (P) should be informed in order to make a decision about consent.

2. Expert testimony is required to educate the jury about what a reasonable doctor would disclose under same or similar circumstances.

d. (P) has burden of proof. Must show:i. Existence of a risk unknown to (P)

ii. Failure to disclose that riskiii. Disclosure would have led a reasonable patient in (P)’s position to reject the

medical procedure or choose a different course of treatment1. If a reasonable (P) would say no to a procedure even if properly

informed, but this (P) would have said yes even if she knew the risks, then (D) can argue no causation because breach did not cause the injury.

e. Possible Defensesi. (P) would have turned down necessary treatment if fully informed. – Generally

not recognized as defense.ii. Therapeutic Waiver – (P) doesn’t want to know of risks. Courts have not

decided whether doctor can use this as a defense.II. Duty:

-A duty to exercise reasonable care exists in physical harm casesi. This duty is triggered if one creates a riskii. The duty issue is a question of law

iii. For reasons of principle/policy, courts have carved out exceptions

a. Affirmative Duty to Acti. Rule: Duty is triggered if Defendant creates a risk. If Defendant did not create risk, there is no

duty to act affirmatively.ii. Exceptions:

1. Special relationship b/w P and D: Harper v. Herman, Farwell v. Keaton2. Avoid further harm3. Duty to exercise reasonable care if you have undertaken the care of another4. Special relationship between Third Party (e.g., Doctor) and Injurer

b. Policy Bases for Invoking No Dutyi. Imposing “unlimited” liability might financially crush defendant, causing widespread negative

social consequencesii. Potential defendants are ill-equipped to prevent harm

iii. Issue is best left in the hands of the legislature (“judiciary is ill-equipped to impose liability”)iv. Courts have generally held that we do not owe duties to protect others against the actions of

third parties1. Exceptions to this: Vince, Tarasoff, Hansen, Reynolds

c. Duties of Landowners, Occupiers, and Family Membersi. Landowners

1. Trespasser: no duty

a. Exception: Landowners owe a duty of reasonable care to foreseeable child trespassers.

2. Licensee: enters w/ permission, owner has no material interest in the visit; thus limited duty, must make safe known dangers

3. Invitee: enters w/ with permission, owner receives material benefit OR is result of public invitation; larger duty, must make safe known dangers AND those that would reveal themselves by inspection

4. Policy reasons for why the law developed this way: predictability/consistency, landowner protection.

ii. Heins v. Webster County1. Overturns the “licensee/invitee” distinction. It leads to absurd results. Court eliminates

this approach and instead elevates the policy goal of prevention above others, and role of jury over judge

2. Keeps “flagrant trespasser” exception in Restatement §51-52.3. Adopted in about half of states

iii. Family Members iv. Policy reasons for parental immunity

1. Not wanting to disturb domestic tranquility2. The danger of fraud and collusion in such suits3. Awarding damages to children will deplete family resources4. If the child predeceases the parents, the parents could inherit the damage award anyway5. Not wanting to interfere with parental discipline and control

a. Exceptions to Parental Immunityi. Parent acting outside of parental role within scope of employment

ii. Parent acting willfully, wantonly, or recklesslyiii. Child is emancipatediv. Child/parent diesv. No immunity for 3rd party

vi. No immunity for guardiansb. Wisconsin approach: rejects parental immunity EXCEPT FOR when alleged act

involves an exercise of parental authority or normal parental discretion (e.g., providing food)

c. NY approach: impossible to construct ‘reasonable parent’ given diverse cultures, therefore no duty when exercising ordinary daily functions of care and supervision

d. CA/AZ approach: duty to act as ‘reasonable parent.’i. Broadbent v. Broadbent standard.

ii. Concurring opinion: parents have duty to avoid only “palpably reasonable conduct”

d. Emotional Harm (Negligent)i. Negligently Inflicted Emotional Harm

1. Thresholds: a. Most jurisdictions limit recovery for stand-alone emotional harm using various

thresholds2. Impact rule:

a. You can’t recover for emotional harm unless physical impact occurred. b. Metro-North v. Buckley: “Physical impact” doesn’t mean any kind of physical

contact or exposure”; must be an impact that would cause immediate traumatic harm.

c. Most jurisdictions retained this until recently; now not popular anymore.3. Zone of Danger:

a. Plaintiff must reasonably believe s/he would be hurt—fear of injury to another not sufficient. Must be immediate risk of physical harm in order to recover for emotional distress.

b. Metro-North v. Buckley: Zone of danger includes physical impact or immediate risk of physical harm.

4. Bystander Casesa. Portee v. Jaffee: requirements for bystander cases:

i. Defendant’s negligence caused the death or serious physicial injury of anotherii. Plaintiff and injured person were in a marital or intimate familial relationship

iii. The plaintiff directly observed the death or injury at the scene (close proximity implied), and

iv. The emotional harm suffered by P was severee. Stand-Alone Economic Harm

i. General Rule: if economic harm accompanies physical injury or property damages, courts will award damages for both physical and economic harm

ii. Generally, courts limit legal duties owed when it comes to pure economic harmiii. ONE: NEGLIGENCE IN PROVIDING A SERVICE: Nycal Corp v. KPMG

1. Foreseeability test: D is liable for economic loss to any person he could have reasonably foreseen would rely on a service

2. Near privity test: D liable beyond those to whom he directly provided service only if there is a direct link between the parties that demonstrates D’s knowledge of third-party reliance

3. Restatement §552 Test: limits potential liability to noncontractual third parties who can demonstrate that the defendant KNEW they might be using the information later, this knowledge must be had at the moment the report is published.

iv. TWO: NEGLIGENCE CREATES DANGEROUS CONDITION: 532 Madison v. Finlandia1. If negligence creates a dangerous condition, and the condition is so pervasive as to

affect a large number of people, duty of D is limited to those who have suffered physical injury too, since there’s no way to satisfactorily distinguish between those who have suffered purely economic loss.

2. Policy/Economic Justifications for Limits on Dutya. If duty is imposed, liability could be enormous and unpredictableb. Deterrence is diminished, but D still faces liability for physical harms, so you don’t

lose the full deterrent impactc. There is no overall loss to society; private losses may occur, but if, for example in

Madison case, customers can’t shop at these stores they will shop somewhere else (yikes)

f. Wrongful Birth and Lifei. Majority of jurisdictions recognize a cause of action for “wrongful birth” and “wrongful

conception” but not “wrongful life”ii. Wrongful Conception

1. Emerson v. Magendantza. There is a cause of action for negligent performance of a sterilization procedure.b. Limits recovery of damages:

i. No recovery for emotional distress OR costs of raising healthy childii. Recovery permitted for special costs of raising child with congenital defects

(minus offsets), and for emotional distress in case of unhealthy child1. If Dr. was or should’ve been on notice about the risk of genetic defect,

he would be responsible for all costs associate with raising the childc. Dissent: Court should have allowed damages for birth of an unwanted healthy child,

mitigated by proven benefits from the birth of the child. Case-by-case analysis.

2. Some courts have a bright line rule that plaintiffs may recover damages for birth of child, with no offsets permitted for psychic benefits of raising child

iii. Wrongful Birth1. Typically involve claim that, but for D’s negligence in testing or counseling, plaintiff

would have terminated a pregnancy to avoid birth of a child with genetic defects.2. Most states recognize these claims and allow damages for emotional distress.

iv. Wrongful Life1. Asserted by a child suffering from birth defects; not a claim that the doctor caused the

defects, claim is that physician negligently allowed child to be born when s/he should not have. Claims damages for suffering caused by being born.

2. Vast majority of courts have rejected these wrongful life claims, unwilling to say that life itself is ‘harm’

III. CausationPrima Facie Claim of Negligence

A. Duty of care1. FOR PHYSICAL HARMS2. FOR NON-PHYSICAL HARMS

• Emotional harm• Stand alone economic harm

-Generally courts do not impose duties to protect against pure economic losses-Exception: Duty not to negligently misrepresent information in providing a service; Questions arise about to what groups or individuals defendant owes this duty

• Wrongful conception/birth-Most courts recognize a duty to use due care to avoid wrongful conception/birth, but courts differ on whether duty extends to child rearing costs, emotional distress-No court has recognized a child’s cause of action for wrongful life

B. Breach of that duty of careC. Causation

1. Actual cause (“cause in fact” or “a but-for cause”), AND2. Proximate cause

a. Cause-in-Facti. AKA “but-for” causation: requires P to show that if defendant had not beached a duty, P’s

injury would not have occurred (i.e., breaching was a necessary condition to triggering the injury). Does not have to be the only but-for cause to be the actual cause.

1. Stubbs v. Rochester: Plaintiff does not have to eliminate every conceivable alternative explanation in order to prove cause-in-fact.

ii. Two Approaches to Recovery for Future Harm:1. Exception to single-judgment rule2. Recovery for enhanced risk at time of judgment if it is “more likely than not” or there is

a “reasonable medical probability.”a. Zuchowicz v. US: If (a) a negligent act was deemed wrong because the act increase

the chances that a particular type of accident would occur; and (b) a mishap of that very sort did happen, this is enough to support a finding by a tier of fact that the negligent behavior caused the harm.

b. Daubert: affects these cases because scientific evidence is admissible only if the expert testimony rests on a reliable foundation

i. Factors: theory = scientific method; peer reviewed/publication; confident of its conclusions; generally accepted.

ii. Court in Zuchowicz admits scientific evidence because this is a case where it’s not possible to get traditional scientific evidence (you can’t overdose people to see what happens).

iii. Loss of Chance of life1. Different than wrongful death—the injury of losing a chance to survive.2. Matsuyama v. Birnbaum:

a. P may recover for a showing that because of D’s negligence, decedent lost a % chance to survive.

i. Meets preponderance of evidence standard if shown to be more likely than not.1. P may not recover for a showing that decedent died because of D’s

negligence with a % probability.2. Does not meet preponderance of evidence.

ii. Damages are percentage chance of recovery lost X full damagesiii. Some courts allow 100% recovery if loss of chance was greater than 50%.iv. Some just discount based on the difference between chances.v. Restricted to medical malpractice cases

b. Most jurisdictions only allow if patient died.c. Plaintiff must show more likely than not that negligence caused reduction of the

chance of a favorable outcome.b. Multiple Defendants: Joint & Several

i. Substantial Factor Test1. Correct Use:

a. In cases with multiple sufficient causes of injury, the but-for test results in unfairness.

b. Substantial Factor Test permits recovery against more than one (D) if their actions were each substantial factors in (P)’s harm.

c. Generally understood to mean that one harm was sufficient to cause the injury by itself. Damages allocated between tortfeasors.

2. Disfavored Use:a. Cases with only one negligent factor involvedb. To encompass but-for cause and proximate causec. As a higher standard than the but-for testd. Majority of jurisdictions require showing only but-for cause and proximate cause

ii. Difficult Cases (where but-fort test disadvantages (P))1. Multiple simultaneous sufficient causes (substantial factor test)

a. With all actors negligent – each will be considered a substantial factorb. With only one negligent actor – only the negligent defendant would be liable

2. Multiple sequential sufficient causes (first to damage is liable)a. First cause is often referred to as a preemptive causeb. Subsequent causes are let off the hook if they would have done the same damage.c. First actor might argue no (or almost no) damages on the theory that the second

actor would have caused the injury moments later.3. Multiple sufficient causes with some non-negligent causes

a. Jurisdictions Differ:i. Some impose liability on the negligent party despite failure to show but-for

causation (using substantial factor test). Others do not.iii. Indeterminate causes (Summers v. Tice; alternative liability or alternative cause)

1. Multiple (Ds) could each be the actual cause of (P)’s injuries. Shifts the burden of proof to (Ds) to show why they should not be held responsible.

iv. Market Share Liability (Hymowitz)1. Factors

a. (1) (Ds) in court must constitute substantially all of the market, though not all potential (Ds) need be in court.

b. (2) (Ds) product must be fungiblec. (3) (Ds) must have been in the market at the time of (P)’s injuryd. (4) (P)’s inability to point to a particular (D) must not be (P)’s fault.

2. Jurisdictionsa. Some jurisdictions permit (Ds) to present exculpatory evidence.b. Some, like NY, hold all (Ds) liable, regardless of exculpatory evidence, on the

grounds that doing so would undermine the purpose of market share liabilityc. Multiple Defendants: Proportionate Liability

c. Proximate Causei. QUESTION OF FACT (FOR JURY). Modern rule formulated in one of two ways:

1. Foreseeability test: plaintiff’s harm was a reasonably foreseeable result of the negligent behavior

2. Type of Harm (or “harm-within-the-risk”) test: plaintiff’s harm is one of the risks that characterize the defendant’s behavior as negligent

ii. Restatement (3rd) §29:1. An actor's liability is limited to those physical harms that result from the risks that made

the actor's conduct tortious2. The term “proximate cause” is a poor one to describe the rule’s limits on the scope of

liabilitya. Employing the term “proximate cause” implies that there is but one cause—the

cause nearest in time or geography to the plaintiff's harm—and that factual causation bears on the issue of “scope of liability”

3. The term “causation” should not be employed when explaining this concept to a juryiii. Traditional Rule: Polemis: liability even for unforeseeable harm if it was a DIRECT

CONSEQUENCE of D’s negligence.iv. Modern rule: an actor’s liability is limited to those physical harms that result from the risks

that made the actor’s conduct tortious1. More specifically, a reasonable person in the defendant’s position must have been able

to foresee at the time of the negligent act that harm of the sort suffered by plaintiff could result from the negligent act (focus on risks created, not just resultant harm)

2. Foreseeability: (P) and type of harm must be foreseeablea. (P) must show that he was a reasonably foreseeable victimb. A reasonable person in (D)’s position must have been able to foresee at the time of

the negligent act that harm of the sort suffered by (P) could result from the negligent act.

c. Full extent of harm need not be foreseeablei. Eggshell Skull Rule – (D) must take his victim as he finds him

1. When (D)’s tortious conduct causes physical harm to (P) that, because of a preexisting physical or mental condition or other characteristic about (P), is of a greater magnitude or different type than might reasonably be expected, (D) is subject to liability for all such harm to (P).

a. Every jurisdiction has adopted this rule.b. Some even apply it in property damage cases.

3. Intervening causes require same analysisa. Was the intervening cause foreseeable to a reasonable person?

i. (D)’s negligence created special risks that (P) would not otherwise have faced.

b. Superseding Causei. Unforeseeable intervening causes usually mean no liability for (D).

IV. Negligence Defensesa. Affirmative Defenses:

Generally, once (P) establishes prima facie claim, (D) can raise affirmative defensesi. Plaintiff’s Fault: Contributory/Comparative

1. Contributory Negligence:a. If (D) can show a prima facie claim of negligence against (P), then (P) cannot

recover. Most states have abandoned this.b. Only DC, VA, AL, NC, and MD still use it (IN for med mal cases only):

i. Though these jurisdictions often employ work-arounds1. (P)’s negligence is irrelevant if case involves a statute meant to protect

the victim against his own predicted negligence2. (P)’s negligence is irrelevant if (D) was reckless3. (P) may recover despite negligence if (D) had the last clear chance to

prevent the harm4. Refusal to impute negligence of others to (P). No vicarious liability.

ii. Or juries reduce damages instead of denying recovery.2. Comparative Fault (Negligence):

a. If (D) can show a prima facie claim of negligence against (P), the jury is asked to allocate damages between them. (D) has burden of proof.

b. Various versions:i. Pure

1. (P)’s award is reduced by the % of the damages attributed to (P)’s fault.2. Jury calculates damages first, then calculates % of fault second.3. About a dozen states still use this.

ii. Modified I1. If (P)’s % of fault is equal to or greater than (D)’s % of fault (50% or

greater) – then (P) is completely barred from recovering.2. Otherwise, award is reduced by the % of injury attributed to (P)’s fault.

iii. Modified II1. If (P)’s % of fault is greater than (D)’s % of fault (51% or greater) –

then (P) is completely barred from recovering.2. Otherwise, award is reduced by the % of injury attributed to (P)’s fault.

3. Damages allocation rules vary by jurisdictiona. Set-Offs

i. Insurance companies prefer set-offs, otherwise they would have to pay the full amount owed.

b. Pro Tanto Rulei. (P) can settle with (D1) and then sue (D2) for the remaining balance. In effect,

(P) enjoys the benefits of joint and several liability if he settles with (D1). Encourages settlements and creates no need to determine (D1)’s liability.

4. (P) has a duty to mitigate damagesa. Avoidable Consequences:

i. (P)’s failure, after (D)’s breach, to mitigate causes a portion of harm

ii. Recovery is reduced to the extend (P) failed to exercise due care to mitigate the harm caused by (D)’s breach.

1. Difficult to apportion damages.2. Applied when (P)’s failure to mitigate was considered the sole cause of

a portion of the damages.b. Anticipated Avoidable Consequences:

i. (P)’s behavior prior to (D)’s breach, enhances harm (but does not cause the event that lead to the harm)

1. Not a complete bar to recovery.c. Traditional Rule:

i. If (P)’s breach was sole cause of a portion of damages, (P) cannot recover for that portion.

1. Anticipated avoidable consequences did not reduce (P)’s recovery.d. Modern Rule:

i. For avoidable consequences, use standard apportionment rules1. If injuries are divisible, apportion based on causation

a. Avoidable Consequences approach2. If not, apportion based on fault

a. Comparative Negligence approachii. States are mixed on how to treat anticipated avoidable consequences

1. Most states prohibit (by statute) reduction for negligent failure to wear seat belts or helmets, but some allow reduction of damages.

a. Rationale: Legislatures do not want to lose the deterrent impact of negligence by releasing negligent drivers from liability.

e. Exception:i. Fritts v. McKinne – Doctors should have a duty (and incentive) to provide

good care even to negligent patients. 1. Some courts have extended this exception to other services, like car

repairs.ii. Assumption of the Risk

1. Express Assumption:a. Hold Harmless Agreements are upheld, barring (P)’s recovery, unless they are

against public policy or are ambiguous, indefinite or unclear2. Implied Assumption:

a. Traditional Rule (still applied in some courts)i. Recovery fully denied if:

1. (1) (P) had specific knowledge of the risk caused by (D)’s negligence;2. (2) (P) appreciated the nature of the risk; and3. (3) (P) proceeded voluntarily to encounter the risk

b. Modern Rulei. Primary Implied Assumption of Risk

1. (D) had no duty or did not breach duty2. (P) assumes inherent risks of a known danger. 3. (P) is barred from recovery because (D) is not negligent

ii. Secondary Implied Assumption of Risk

1. Folded into Comparative Negligence determination2. (D) was negligent, but (P)’s voluntary action was unreasonable and

therefore (P) was negligent as well3. Not a complete bar for recovery

a. If (P)’s degree of fault is greater than (D)’s, then no recoveryiii. Professional Rescuer Recovery

1. Traditional Rulea. Applies to landowner-defendants only – duty not to injure willfully or wantonly

i. Rationale:1. Reasonable expectations of landowners2. (P) voluntarily assume risk3. Avoids double taxation by property tax and workers comp.

b. Professional Rescuer is considered a licensee.2. Modern Trend

a. Toward no liability for injury to professional rescuer when negligence triggers call to duty, no matter whether (D) was a landowner.

b. Exceptions:i. Active or Subsequent negligence unrelated to the risks creating the need for the

call to dutyii. Violation of a safety statute meant to protect professional rescuers

V. Strict Liabilitya. Rules

i. Traditional Rules1. Trespass

a. Writ of Trespass – Brought when (D) applied direct physical forcei. Strict Liability

b. Trespass on the Case – Brought when (D) indirectly harmed (P)2. Nuisance

a. Unlawful and continual interference with the use and enjoyment of one’s land3. Rylands v. Fletcher (1866)

a. Blackburn’s Test: One is strictly liable if he brings onto his land anything likely to do mischief if it escapes – if when it escapes it causes harm.

b. Cairn’s Test: Landowner liable for harm caused by non-natural uses of land.i. Rylands was not widely followed in the U.S.

ii. Modern Doctrine1. Carves out exceptions from general fault rule for abnormally dangerous activities

a. An activity that creates a foreseeable and significant risk of physical harm even when reasonable care is exercised, and

b. Is not a matter of common usage (the activity is unusual or not normally practiced)c. Usually involve cases involving explosives and highly toxic substances

i. Also applies strict liability for harm caused by wild animals and, in some states, for harm caused by trespassing livestock

2. Restatementsa. First Restatement

i. Found strict liability for ultrahazardous activity

b. Second Restatementi. Revised to include abnormally dangerous activities including these factors:

1. (1) High degree of risk2. (2) Likelihood that harm will be great3. (3) Inability to eliminate the risk with reasonable care4. (4) Extent to which activity is not common5. (5) Inappropriateness of activity in that place6. (6) Extent to which value is outweighed by danger

c. Third Restatementi. Eliminates the 6-factor test but retains the abnormally dangerous language

ii. A (D) who carries on an abnormally dangerous activity is subject to strict liability for physical harm caused by the activity.

1. Activity is abnormally dangerous if:a. (1) It creates a foreseeable and significant risk of physical harm

even when reasonable care is exercised; andb. (2) It is not a matter of common usage

2. Risk can be significant either because the probability of harm is great or the magnitude of the harm will be great if it occurs

b. Economic Analysis – Strict Liability v. Negligencei. Both create incentives to take efficient precautions

ii. But only strict liability can also create incentives for efficient activity levelsVI. Products Liability

a. Prima Facie Elementsi. (1) Defendant is a Seller

ii. (2) Product was defective when it left (D)’s hands:1. Defects

a. Manufacturing Defecti. The Product departs from its intended design

1. Liability even though all possible care was taken, no need to show negligence

a. Express Disclaimers are invalid2. Victim may sue any seller along the distribution chain

a. Merchants and Sellersi. Processors and Manufacturers of materials

ii. Manufacturers of component partsiii. Manufacturers of final goodsiv. Wholesalers & Retailers

3. Difficulties usually arise with proof.a. Proving defect caused injuryb. Proving defect was present when product was purchased

i. If defect was created after purchase, seller is not liableb. Design Defect

i. All units, or some percentage, are defective due to inherent design flawii. Two Tests:

1. Consumer Expectations Test (Restatement 2nd §402A)

a. Design is defective if the product failed to meet consumer expectations

b. (P) should rely on consumer expectations if the circumstances of the product’s failure permit an inference that the product’s design performed below the legitimate, commonly accepted minimum safety assumptions of its ordinary consumers

i. Interpreted to mean that this test will be used when the defect is so obvious to everyone.

c. Critiquesi. Can be vague and ambiguous, especially in highly complex

casesii. Overly broad – liability will follow from almost all product

injuries if the test means that any injury consumers would not expect demonstrates a product defect

iii. Consumer knowledge of dangers may preclude liability in cases where a safer design is cheap and effective in reducing risk.

2. Risk / Utility Testa. Restatement (3rd) §2: Product is defective in design when

i. (1) The foreseeable risk of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design (RAD) and;

ii. (2) The omission of the alternative design renders the product not reasonably safe.

b. Minority Rule – Even if there is no RAD, some states permit a jury to find a product’s risk outweighs its utility if the value of the product is minimal relative to its danger. Often called “manifestly unreasonable design”

c. Reasonable Alternative Design – (P) must prove the availability of a technologically feasible and practical alternative design. (P) is not required to establish with particularity the costs and benefits associated with adoption of the suggested alternative. Factors:

i. (1) Industry Customii. (2) Openness and Obviousness of Danger

iii. (3) Magnitude and probability of foreseeable harmiv. (4) Instructions and warnings accompanying productv. (5) Nature and strength of consumer expectations

vi. (6) Expenditures requiredvii. (7) Loss of product utility

d. Camacho Balancing Test to Evaluate Original Producti. (1) Usefulness and desirability of product

ii. (2) Probability and magnitude of potential injuryiii. (3) Manufacturer’s ability to eliminate unsafe character

without impairing its usefulness or making it too expensive

to maintain consumer utility through a Reasonable Alternative Design

iv. (4) User’s ability to avoid danger when using the productv. (5) User’s probable awareness of danger

e. If consumers would have no idea how safe the product could be made (no expectations), the design is defective if the product created excessive preventable dangers

i. Excessive: Risks inherent in the design outweigh its benefits

ii. Preventable: The risk is avoidable through a safer alternative

f. Test focuses on condition of the product, not the manufacturer’s conduct.

g. Comparabilityi. Comparisons among products must consider only

comparable productsii. The purpose or design must be taken into account because

the design might give special benefits to consumersh. Daubert Factors for Expert Testimony Apply

i. (1) Theory can be, and has been, tested using the scientific method

ii. (2) Theory or technique has been subjected to peer review and publication

iii. (3) Sufficient confidence of conclusions drawn from scientific studies

3. Crashworthiness Doctrinea. Manufacturers are responsible for anticipating not just the

intended use of their products, but also the foreseeable unintended uses.

i. Ex: (D) must produce cars that are reasonably safe if crashed.

4. Open and Obvious Dangersa. (D) wins because product users expect risksb. Jurisdictions vary

i. Some throw out claimsii. Most abandon consumer expectations and adopt risk/utility

test.iii. Some legislatures have adopted risk/utility

5. Burden of Proofa. Majority Rule – (P) has burden of proofb. Minority Rule – (Barker): (D) has burden of proof

iii. Restatements1. Second Restatement – §402A (1965)

a. Applied to products in “defective condition unreasonably dangerous to the user or consumer or to his property”

i. Strict liability applied even though seller had “exercised all possible care”

b. Jurisdictions that still apply §402A retain the “unreasonable dangerousness” prong to distinguish risky products (knives, guns) from defective products

2. Third Restatement - §2(a) (1998)a. Eliminates “unreasonably dangerous” language, refers only to

defective productsb. Risk/Utility Calculus – Product created excessive preventable

dangers (avoidable risks outweigh benefits)i. Keeps consumer expectations only for food cases and when

marketing has suggested suitability for inappropriate uses.c. Lists the categories of defective products: manufacturing,

design and information defects3. Jurisdictions Vary

a. Some apply only §402Ab. Some apply only §2c. Some apply §402A if jury is able to infer something about

Consumer Expectations from failure (e.g. when defect is obvious); otherwise they use §2.

i. Some switch to §2 for obvious danger casesc. Information Defect

i. When is a warning required?1. Not required for obvious dangers

a. Warnings might be required if there are methods to reduce risks if they are not obvious

b. Even if danger is obvious, (P) can bring a defective design claim (though this may work against (P) because it might be difficult to show an RAD that can reduce injury, and difficult to show that consumer expectations were not met).

2. Restatementsa. Restatement (2nd) §402A, Comment j – Seller is required to give

warning if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the danger

b. Restatement (3rd) - For non-obvious dangers, warning required if

i. (1) danger is reasonably foreseeable and ii. (2) warning’s expected benefits (reduced probability or

magnitude of harm) exceeds expected costs (determining what info to provide and how to provide it; cost of information overload)

3. Generally, warnings are insufficient to protect against design defect claims

ii. What makes a warning adequate?

1. Content must be adequatea. Must contain facts necessary to permit a reasonable person to

understand the specific nature and extent of danger, and in some cases how to avoid it

2. Expression must be adequatea. Where non-English speaking consumers are foreseeable,

warnings must be provided in languages other than Englishb. Where illiterate consumers are foreseeable, symbols might be

required3. Warning must be conspicuous

iii. Federal Law Preemption1. When federal law mandates sufficient warnings, state law is preempted

a. If state law calls for more information, sellers do not have to comply

b. Federal statutes may forbid state tort claimsiv. Exceptions to warning requirements

1. Learned Intermediary Exception – Minority of states have adopted it, requiring no warning if a learned intermediary (ex: doctor) is adequately warned of dangers

a. Exceptions apply for contraceptives, vaccinations, direct-to-consumer advertising, and if the FDA requires direct warning

b. Risks with pharmaceuticals are generally addressed through warning, rather than design claims.

2. Rationale:a. (1) Hard for manufacture to get info to end userb. (2) Patients rely on doctors for help in selecting treatmentc. (3) Doctors exercise professional judgment in selecting

appropriate optionsd. (4) Doctors are in the best position to provide appropriate

warning to patientse. (5) Direct warning to patient might interfere with doctor/patient

relationship3. Restatement (3rd) §6(d) – A prescription drug or medical device is not

reasonably safe due to inadequate instructions or warnings if reasonable instructions or warnings regarding foreseeable risks of harm are not provided to:

a. (1) prescribing and other health care providers who are in a position to reduce the risk of harm in accordance with the instructions or warnings; or

b. (2) the patient when the manufacturer knows or has reason to know that health care providers will not be in a position to reduce the risks of harm in accordance with the instructions or warnings

v. Additional Rules1. Hindsight Approach v. State-of-the-Art Approach

a. Hindsight Approach (rare today) is good fori. (1) Compensation for harm

ii. (2) Loss Spreadingiii. (3) Minimizing Administrative Costs

b. Modern Approach: Restatement (3rd) – Seller required to give warning against danger if it had knowledge or should have had knowledge of the danger. Good for

i. (1) Deterrenceii. (2) Fairness

iii. (3) Alleviating difficulties of proofc. Modern approach presumes manufacturer was fully informed of

all risks regardless of the state of the art at the time of the sale2. Dangers Discovered After Distribution

a. Least Cost Avoider Rationale: Restatement (3rd) §10 – Many jurisdictions require reasonable warnings of dangers discovered after distribution.

b. If injury was not foreseeable at the time of sale, seller is generally not required by tort law to recall, repair or retrofit the product after discovering the risk

i. Some statutes and regulations do require this.iii. (3rd PF ELEMENT) Defect was actual and proximate cause of (P)’s harm

1. Heeding Presumptiona. To show but-for causation, (P) must prove that he would have heeded the warning

had one been given. This is difficult to show, so courts allow the jury to presume (P) would have heeded warning had one been given. Shifts burden of proof to (D) to show that it is more likely than not that the warning would not have been heeded.

iv. (4) Damages

b. Defensesi. Modern Law

1. Courts use comparative negligence doctrine to split damages according to responsibilityii. Restatement Approaches

1. Restatement (2rd) §402Aa. Contributory Negligence

i. No defense allowedii. Negligent failure to discover or guard against a product defect is not a defense

to strict liabilityb. Assumption of the Risk

i. Complete Bar2. Restatement (3rd) §2

a. Comparative Responsibilityi. (P) has a duty to discovery and / or protect against harm from defects

1. Though not all jurisdictions allow this defense, and the Restatement cautions that reasonable people have little reason to expect defects.

ii. Allows a defense for unreasonable failure to discover or protect against defect

1. (P) has duty to exercise ordinary careiii. Apportion damages

b. Assumption of the Riski. Folds into comparative responsibility

iii. Express Assumption of Risk1. Waivers

a. Generally not allowed2. Exceptions

a. Sale of used goodsb. Sophisticated buyers with adequate information and sufficient bargaining power

3. Employee Exceptiona. Courts do not allow an assumption of risk defense against employees who are

injured by products that are obviously dangerous.b. Rationale: Employees have little choice but to deal with the risky products and so

should not be completely barred from recovery even though they proceeded in the face of known danger

iv. Enhanced Injuries1. Some jurisdictions will ask jury to determine the extent of damage caused by initial

negligence and apportion accordingly2. Some will ask jury to apportion based on (P)’s (or other party’s) fault and defendant

manufacturer’s responsibility3. Some refuse to allow apportionment in crashworthiness cases.

a. Analogy to proximate cause analysis in medical malpractice casesv. Modification

1. Majority Rule: If modification of a product is foreseeable, the manufacturers can be held liable for harms cause by modification if (P) can show defect.

2. Minority Rule: Seller is not liable even if third-party modification is foreseeablea. Does not apply to warnings, because they are much less costly than designing a

tamper-resistant productc. Modern Doctrine

i. (P) can pursue an action for injury due to a defective product under:1. Negligence Claim

a. Res Ipsa Loquitur may help establish breach2. Breach of Warranty under the Uniform Commercial Code3. Strict Products Liability

d. Rationalei. Deterrence – Manufacturer is in the best position to reduce risk

ii. Loss spreading – Risk can be “insured” by manufacturer and distributed among the public as a cost of doing business

iii. Difficult Access to Evidenceiv. Fairnessv. Administrative Cost Savings – No need to sue up the chain

vi. Changing relationship between manufacturer and consumere. Warranty – Uniform Commercial Code

i. Some states continue to apply contract doctrines of warranty to resolve disputes

ii. Implied Warranty – Allows claims where contract was silent on buyers rights given an injury1. Merchantability – Required goods to be fit for the ordinary purposes for which they

were sold2. Fitness – Required goods to be fit for particular purposes of the buyer known to the

sellerVII. Intentional Harm

a. Prima Facie Elementsi. (1) Intent (to harm)

1. Intent satisfied ifa. (D)’s purpose was to harm, orb. (D) was substantially certain harm would follow from action at a particular time or

place2. Knowledge of lack of consent might imply intent to offend in battery claims3. Transferred Intent

a. Intent can transfer from one intentional tort to another or from person to personi. (D) is liable for battery if (D) commits a battery even though he only intended

to assaultii. (D) is liable for battery to B even if (D) intends to injure A.

ii. (2) Impact1. Battery: Intentional infliction of a harmful or offensive bodily contact upon another

a. Harmful Contacti. Includes extension of a person (clothing, purse, etc.)

b. Offensive Contacti. Some courts hold that intent to touch is sufficient

1. Though often when (D) had knowledge that (P) did not want to be touched

ii. Lack of consent implies (D)’s intention to offend through contact, (P) must show lack of consent to touching and that a reasonable person in (D)’s circumstances would not have inferred consent

2. Assault: Apprehension (and reasonable apprehension) of imminent harmful bodily contacta. Standards

i. Objective – Reasonable Person would have apprehended imminent harmful bodily contact

ii. Subjective – (P) was placed in apprehension of imminent harmful bodily contact

b. Fear – Not generally required.3. False Imprisonment: Confinement for any appreciable time

a. Standardi. Objective – A reasonable person would perceive confinement against his will

ii. Subjective – (P) perceived confinement against his willb. Physical Restraint is not necessary

i. Threats of immediate bodily harm can be sufficientii. Threats of harm to another person or (P)’s property might be enough

iii. Implicit Threats are sometimes sufficient

iv. Psychological Coercion can be sufficientv. BUT – (D)’s assertion that (P) must stay is not enough

c. Means of Escapei. If (P) has reasonable means of escape, she is not considered to be confined

1. Reasonable means (1) readily knowable and (2) reasonably safed. Awareness

i. Some courts require (P) to be aware of confinement1. If (D) confines a baby, there is no false imprisonment claim, unless

actual harm occurs.4. Intentional Infliction of Emotional Distress – Outrageous and Intolerable Conduct

a. If (P) suffers no bodily injury, (D) is liable only ifi. (1) (D)’s conduct was intentional or reckless

1. Restatement (3rd) §2 – A person acts recklessly ifa. (a) he knows of the risk of harm created by the conduct or

knows facts that make the risk obvious to another in the person’s situation, and

b. (b) the precaution that would eliminate or reduce the 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 indifference to the risk.

ii. (2) (D)’s conduct was outrageous and intolerable1. Outrageous conduct must offend against generally accepted standards

of decency and moralitya. Did (D) abuse a position of power?b. Did (D) engage in repeated behavior?c. Did (D) threaten violence to a person or property in which (P) is

known to have a special interest?iii. (3) (D)’s conduct caused the emotional distress, and

1. Most courts do not require medical testimony, but some do.2. Most courts do not require physical manifestation, but some do.

iv. (4) (P)’s emotional distress was severe1. If (D)’s conduct is sufficiently extreme, the court will allow the jury to

infer severe distress2. Otherwise, (P) must bring other evidence of severe emotional distress

a. Testimony of crying is not usually sufficientb. Missed work, trouble sleeping, couldn’t leave house works

b. Harm requires showing of severe emotional distressiii. (3) Causation

1. Actual Cause – similar to other torts2. Proximate Cause – more inclusive. Foreseeability not always required, but courts have

attempted to establish some boundaries.iv. (4) Harm

1. Actual Harma. Physical harm to person or propertyb. Emotional Harm

c. Economic Harm2. Harm to Dignity (offense)

a. Objective – Impact would have offended reasonable sense of personal dignityb. Subjective – (P) must have been offended

i. If battery, (P) must show lack of consentb. Defenses

i. Contributory Negligence1. (D) not allowed to bring affirmative defense of contributory negligence against an

intentional tort claimii. Comparative Negligence

1. Some courts allow, some do not.iii. Consent

1. Appearancesa. Created by words, acts, and social conventionsb. May lead (D) to reasonably believe (P) consented

2. Actual Consenta. (P) is barred from recovery, even if (D) was unaware of consent

3. Capacitya. (P)’s intoxication does not necessarily negate consent.b. The question is whether a reasonable person in (D)’s circumstances would believe

(P) was consenting, including having the capacity to consent.4. Type

a. Consent must be to the particular conduct or substantially the same conducti. Ex: Consenting to sex is not the same as consenting to sex with an HIV+

partner5. Jurisdictions

a. Most treat it as an affirmative defensei. (D) has burden of showing

1. (1) reasonable person in (D)’s circumstances would have believed (P) was consenting, or

2. (2) (P) consentedii. Exception

1. In battery cases involving offense, most courts place burden of proof on (P)

b. Some jurisdictions require (P) to demonstrate lack of consent as part of the Prima Facie intent determination

iv. Defense of Self and Others1. Conduct is justified if

a. (1) (D) had acted honestly in using force, b. (2) his fears were reasonable under the circumstances, and c. (3) the means of defense were reasonable

2. (D) is not generally required to retreat, even if possible.a. Some states require reasonable effort to retreat if safe, unless (D) is in his own

dwelling (Castle Doctrine)3. Retaliation does not count as self-defense

a. (D) must show immediate need to prevent an imminent harm, or an imminent necessity to prevent a future harm

v. Defense of Property1. Force must be reasonable2. Force that would result in injury or death is not considered reasonable3. Recapture of property by force is allowed only if in hot pursuit

a. Otherwise, must use law enforcement or the courtsvi. Private Necessity

1. If A faces a serious and imminent threat, he may use the defense of private necessity against a claim by B for trespass. B may not take action to preclude trespass, and if he does may be liable for intentional tort.a. Response must be reasonable in light of the threatb. A is not considered a trespasser for purposes of landowner liability

i. A can recover if something happens to them on the propertyc. Landowner may not push them away and back into danger

2. Privilege is limited. If B allows trespass and A’s justified trespass causes B harm, A must compensate B.

vii. Public Necessity1. (D) not liable if the intentional tort was committed to protect the public good, even if

(D) is a private citizen.2. (D) must show

a. (1) Public rather than private interests were involvedb. (2) (D) was reasonable in believing action was neededc. (3) Action taken was reasonable response to the need

3. Unlike private necessity cases, in public necessity cases compensation is not required for damage done to property.a. Courts do not want to create an incentive for potential (D) to engage in time-

consuming cost-benefit analysis during emergenciesviii. Illegal Activity

1. Voluntarily engaging in an illegal activity does not permit (P) to recover for damages because it runs counter to public policy.

VIII. Damagesa. Single Judgment Rule

i. Damages for harm are awarded only onceii. Rationale

1. Decrease in administrative burdens associated with reopening the case periodically2. Difficulties in maintaining jurisdiction over (D)3. Reduction in chance that (P)’s recovery or return to work might be consciously or

subconsciously impeded4. Unfair to hold (D) indefinitely responsible for possible changes in circumstances

b. Compensatory Damagesi. Economic Damages (Specific Damages)

1. Medical expensesa. Medical expenses must be reasonableb. Future medical expenses must be more likely than not to occur

2. Incomea. Lost earnings from time of accident to time of trialb. Future earnings are estimated assuming normal earning power (including career

path, life expectancy, etc.)i. Discount Rate to calculate present value of future losses

1. Reduces awards because (P) can invest and earn interestii. Inflation Adjustment

1. Increases award amount because $1 today will not have the same purchasing power as $1 in the future

iii. These two are often ignored or offset against one anotherii. Non-Economic Damages (General Damages)

1. Pain and Sufferinga. Most courts require awareness on the part of the victim

2. Loss of Enjoyment of Life (Hedonic Damages)a. Most courts require awareness on the part of the victimb. Some courts do not allow LoE as a distinct category from pain and suffering.

iii. Methods for computing damages vary1. Per Diem Method

a. Some allow only if (P) does not suggest a specific number to be multiplied by a number of periods, but rather simply suggests the method the jury should apply

b. Some courts allow evidence about awards for similar injuriesi. There is often wide variation and difficulty in finding sufficiently similar cases

2. Statutory Caps indexed to inflationa. Cap may be set at a fixed amount or at some function of economic damages

3. High-Low Agreementsa. Parties agree prior to trial that (D) agrees to pay at least X, but no more than Y.

iv. Excessiveness1. If the award shocks the conscience, as to imply passion, prejudice, corruption or caprice,

it may be excessive2. Legislatures and courts have taken steps to reduce award variability

c. Punitive Damagesi. Function: To punish and deter

ii. Trigger1. Requires egregious conduct, sometimes triggered by statute

iii. Due Process1. (D)’s sometimes argue that large and highly variable awards violate the 14th Amendment

a. SCOTUS’ Gore Guideposts and suggested ratios are meant to reduce variability, although it’s not clear when courts will apply different ratios. Factors:

i. (1) Degree of reprehensibility of (D)’s misconductii. (2) Disparity between actual or potential harm and the punitive award

iii. (3) Disparity between punitive damages and civil penalties authorized or imposed in comparable cases

2. Due process also forbids a state from using a punitive award to punish for injury inflicted on non-parties

iv. State Action

1. Small number of states have abolished punitive damages2. Some (roughly 20) have increased the burden of proof to clear and convincing evidence3. Some have set a maximum dollar amount or ratios (single digit ratios)4. A few require punitive damages to be shared with the state

d. Survival Actions v. Wrongful Deathi. Traditionally

1. (P)’s death would extinguish his claim in tort, and dependents could not bring a claim2. (D)’s death also ended injured victim’s claim

ii. Modern Rule1. Survival Actions

a. Preserve to the decedent’s estate any personal cause of action the decedent would have had if he had survived (damages accruing up until death)

b. Recovery compensates the estate, which is later distributed to heirs2. Wrongful Death

a. Allows survivors to recover for their losses due to the death of the decedent (sometimes only pecuniary losses)

i. Many states now allow damages for non-pecuniary losses, including loss of consortium.

1. Loss of Consortiuma. Type of emotional harm damages.b. Contemporary claims involve loss of intangibles, usually

described as “services, society, and sexual intercourse”c. Usually restricted to spouses, but some states permit parents and

children to recover for loss of services and societyd. It is derivative of the claims of the primary victim and fails if

the primary claims fail.e. (P) bringing a consortium claim need not show physical injury

or physical manifestation of emotional harmb. Recovery compensates relatives and dependents

e. (D)’s Deathi. Traditionally

1. (D)’s death ended injured victim’s claimii. Modern

1. Survival statutes allow for claims against the tortfeasors even after his death2. In many jurisdictions, the victim’s estate is allowed to sue the estate of the decedent-

tortfeasor3. Most states deny punitive damages in these cases

f. Collateral Source Rulei. (P) can recover for losses even if covered by a third-party

1. Includes family, charity, or insurerii. Justification

1. Deterrence2. Fairness – (D) should not benefit from the generosity of others3. To hold otherwise might discourage generosity or charity, and might discourage the

purchase of insurance

4. (P) who has paid insurance premiums should be able to recoup5. Sometimes there is no actual double recovery

a. Subrogationb. (P) might feel moral obligation to repay gratuitous payments

6. Compensatory damages do not always fully compensate (P)a. Trial expenses (lawyer)

IX. Insurance a. First-Party

i. Personal injury insuranceii. Most jurisdictions operate under a collateral source rule combined with subrogation rights

1. Most courts require a subrogation clause in the insurance policyb. Third-Party

i. Liability insuranceii. These policies come with both a promise to indemnify and a promise to defend

1. Disputes arise when the insurer decides it is not responsible for covering a particular lossa. Usually resolved through a breach of contract claim or a declaratory judgment

iii. Insurance companies use mechanisms to prevent moral hazards with insured (Ds)1. Experience ratings, deductibles, coverage limits

a. Goal is to make sure (D) has something to lose.c. Strategies

i. Lawyers consider insurance before deciding how to frame a claim.1. A policy might prohibit coverage of intentional torts, so (P) might be better off claiming

negligence if (D) is otherwise judgment-proof2. Sometimes lawyers will not pursue claims if the alleged wrongdoer is not insured

d. Collateral Source Rule & Subrogationi. (P) can collect damages even if first-party insurance covers losses

ii. Subrogation allows insurer to step into the shoes of (P) for purposes of recovering indemnity payments made to (P)

1. No common law right to subrogation.e. Declaratory Judgments

i. Used to determine a party’s rights, duties and obligations1. Not for liability or damages

ii. Decisions are handed down prior to negligence litigationf. Joint & Several v. Several

i. Under Joint & Several liability, (P) can recover from any liable insurer (up to the limits), and the insurers will settle up later

ii. Under Several liability, the insurance policies will cover their particular share.X. Workers Compensation

a. Traditionally claims were barred by the “Unholy Trinity”i. Fellow Servant Rule – No recovery if another employee contributed to the injury

ii. Contributory Negligenceiii. Assumption of the Risk – for customary and observable dangers

b. Modern Day Benefitsi. Employer

1. Scheduled benefits, limited in duration and amount

2. No benefits for pain and suffering3. Workers Compensation is the exclusive remedy against employer and co-workers

a. But employees can sue 3rd partiesii. Employee

1. No need to show fault2. Employer cannot assert defenses3. Immediate Payment

c. How It Worksi. Employer

1. Strictly liable for injury occurring in the course of employment and arising out of employmenta. Course of Employment

i. Injuries going to or coming from work are not covered1. Exception: Traveling jobs or special errands

b. Arising Out of Employmenti. Injury must be associated with the risks of employment or the workplace

1. Risks can be very small or remote2. Does not include personal risks3. Risks usually understood to include innocent horseplay at work, but not

willful misconduct2. Must purchase private insurance or participate in a state fund3. Cannot limit liability through contributory negligence, assumed risk, or the fellow

servant rule4. Is benefitted by limited liability, usually 2/3rds of average wage for a limited period,

plus medical expenses. No pain & suffering5. Pays benefits periodically and immediately

d. Complicated Casesi. Permanent Partial Disability

1. Work-related injuries that involve permanent loss, but worker can still workii. Occupation Disease

1. Complicated causal issues, just as it tort system2. Problems with determining appropriate compensation

iii. Mental Stress Claims1. Mental-Mental Claims are the hardest because proof is difficult, fraud is easy, and

limitations are complicated2. States differ on how they handle these claims. Some do not permit recovery

iv. Third-Party Suits1. Workers Compensation can impact the incentives in tort cases

Traditional Defenses

NEGLIGENCE STRICT LIABILITY INTENTIONAL TORT

CONTRIBUTORY NEGLIGENCE

COMPLETE BAR NO DEFENSE ALLOWED NO DEFENSE ALLOWED

ASSUMPTION OF RISK COMPLETE BAR COMPLETE BARN/A

(D) CAN ARGUE CONSENT TO IMPACT

Modern Defenses

NEGLIGENCE STRICT LIABILITY INTENTIONAL TORT

COMPARATIVE NEGLIGENCE

APPORTION APPORTIONSOME DO NOT ALLOW

-SOME ALLOW AND

APPORTION

ASSUMPTION OF RISKFOLDED INTO DUTY,

BREACH, AND COMPARATIVE NEGLIGENCE

FOLDED INTO COMPARATIVE NEGLIGENCE

N/A(D) CAN ARGUE

CONSENT TO IMPACT

Learned Hand Formulao Burden of Taking Precaution vs. Probability of Harm X Magnitude of Harm

B < pL = Negligent B > pL = Not Negligent

Reasonable Person Standardo Objective Standard

(D)’s state of mind is irrelevant Consider only what a reasonable person would have thought or done in the same or similar

circumstances.o Miscellaneous Rules

Superior Attributes Ex: A reasonable person with superior knowledge of how dangerous machines work.

Age of Risk Creator Reasonable child of the same age, intelligence and experience Unless engaged in a dangerous adult activity Rule of 7s

o Younger than 7 = Conclusively presumed to be unable to comprehend risk

sufficientlyo 7-14 = Rebuttable presumption (unable to comprehend)

o Older than 14 = Usual standard

Prima Facie Cases

Negligenceo (1) Duty to conform to a specific standard of conduct

Generally, a duty to act as a reasonable person. Duty is owed to foreseeable plaintiffs

o (2) Breach of that duty

o (3) Causation

Actual Cause Proximate Cause

o (4) Damages

Intentional Tortso (1) Intent

o (2) Impact

o (3) Causation

Actual Cause Proximate Cause

o (4) Harm

Assaulto (1) Intent on the part of (D) to bring about in (P) apprehension of immediate harmful or offensive

contact with (P)’s persono (2) An act by (D) which creates a reasonable apprehension in (P) of immediate harmful or offensive

contact to (P)’s persono (3) Causation

o (4) Harm

Batteryo (1) Intent on the part of (D) to bring about harmful or offensive contact to (P)’s person

o (2) An act by (D) which brings about harmful or offensive contact to (P)’s person

o (3) Causation

o (4) Harm

False Imprisonmento (1) Intent on the part of (D) to confine or restrain (P) to a bounded area

o (2) An act or omission to act on the part of (D) that confines or restrains (P) to a bounded area

o (3) Causation

o (4) Harm

Intentional Infliction of Emotional Distresso (1) Intent on the part of (D) to cause (P) to suffer severe emotional distress or recklessness as to the

effect of (D)’s conducto (2) An act by (D) amounting to extreme and outrageous conduct

o (3) Causation

o (4) Damages in the form of severe emotional distress