Intentional Torts: battery, assault, false imprisonment, IIED

Intentional Torts = Volitional act + Intent (purpose or knowledge—substantial certainty of result, Garratt, even if unlikely to

occur, e.g. throwing rock at far-off person)+o Transferred intent- 1) A intends a tort on B, but commits a tort on C OR 2) A

intends one tort, but accomplishes another= STILL LIABLE available in assault, battery and false imprisonment (limited in IIED)

Causation (conduct of D is substantial factor in bringing about injury)

Liability:1. Insane NOT excused2. Children generally NOT excused if P can prove elements, incl intent

a. EXC: not liable in some states where young children (usually <7) are held to be incapable of intent or tort generally

b. Parents: NOT liable for children’s torts i. EXC: where statute imposes liability (in most states, but limited to kids’ willful/wanton acts and damages capped at low amt)

3. Respondeat superior: employers sometimes liable for employee torts committed in course of employment. If worker is injured, worker’s comp usually covers (except intentional torts, Bruce, unless in furtherance of company)

Battery1. An act by the D with…2. Intent to cause

o Purpose/knowledge (Garratt)o RULE CHOICE: dual intent (majority)- intent to cause a harmful or offensive

contact via a touching vs. single intent (minority)- intent to toucho Transferred intent applies (Stoshak, hit teacher), but SOL remains same (Baska)o Tortfeasor need not be rational (Polmatier, crazy son in law)

3. H/O (“would offend a reasonable sense of personal dignity”, RS 19, Turk) contact, or imminent apprehension of such a contact, AND

o Offensive contact (no injury necessary) offends a reasonable sense of personal dignity, Turk OR via prior knowledge, defendant knows plaintiff will be offended by the

contacto Dual vs. Single Intent

i. Dual: intent to make contact + intent that contact be H/O (White, old lady hitting). Rationale: more subjective, refocus punishment on those meaning to harm.

ii. Single: intent to make contact--which ct determines was H/O (Wagner, mental patient attack). Rationale: practical consequences of dual intent unworkable/insufficiently protective, makes unwanted kiss ok.

4. H/O contact occursa. Victim need not realize H/O contact at time (e.g. asleep)b. Medical care over objection always = battery (Cohen, naked C-section)

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EXC: if provider doesn’t know of objection (VanHoey)5. Causation- liable for…

o Direct contact of P (or extension of P, e.g. cane)o Indirect contact- not necessarily touching P (i.e. throwing object at P, Leichtman,

smoke particles) Sufficient if defendant sets in motion a force that brings about harmful or

offensive contact i.e. Plaintiff falls in hole dug by defendant i.e. Defendant was angry and broke a glass door. Plaintiff later cut by

glass.6. Damages: don’t need to prove actual damages, can be nominal (Elkin, sexual abuser dad)

Assault

1) Intent (knowledge/purpose) to put P in apprehension of an immediate H/O contact AND

2) Reasonable and imminent apprehension of battery results, Cullison, trailer visit, vs. Koffman (student tackled by coach, didn’t have apprehension beforehand, battery)

Reasonable based on D’s apparent ability (e.g. gun, even if unloaded) OR based on unreasonable fear D knows of--Words alone not reasonable unless accompanied by more and may negate apprehension (e.g. “I’d punch you if I weren’t so nice”)--P must be aware of threatened contact, contrast to battery

Imminent = “no significant delay”, D has present ability to carry out threato threats of future contact insufficient (i.e. “beat you up tomorrow” not assault)o also no assault if D is too far away to do any harm or merely preparing for future

harmful act

Conditional threat :o Liable if actor gives the other an option to escape the contact by obedience to a

command unless command is one which the actor is privileged/has a legal right to enforce

EX: Burglar P enters D’s house. D says, “If you don’t leave, I’ll throw you out.” No assault on P b/c D has legal right to force P to leave.

Actual damages not required; can recover for nominal damages

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False Imprisonment1) Intent to confine (knowledge or purpose)2) Confinement Physical barrier/force (held within certain limits, not that P is prevented/excluded from

entering certain places, e.g. restaurant)o Force can be directed at him, member of his immediate family, or his property

EX: P cannot leave building because D has her purse. By threat of force/duress/invoking legal authority

o Must be plausible threat (reasonable person standard)o E.g. NO, Hardy, didn’t ask to leave/not told she had to stay, vs. McCann, reasonable

people would’ve thought Wal-Mart would use force/had authority Complete = even if there’s a way to escape, UNLESS P knows of escape (required to pursue

reasonable means of escape, but liable if escape would offend reasonable dignity)3) P= aware of confinement OR harmed by it

o E.g.: baby locked in bank vault false imprisonmento E.g.: sleeping person locked in room, learns later that door was locked not false

imprisonment4) Damages: not limited to actual compensatory damages, exc. in case of “harm” not

“awareness”

5) Similar act not done w/intention to confine is NOT false imprisonment, but may be negligent/reckless if risk threatened bodily harm (e.g. accidentally locking grocery employee in cold vault)

Intentional Infliction of Emotional Distress (IIED)

1) D intentionally or recklessly 2) By extreme and outrageous conduct- beyond bounds of decency Two factors that help establish this

o Relationship between the parties (esp abuse of power)o D is aware of P’s particular sensitivities and exploits them

Also look to severity and regularity of the conduct (Bruce, abusive boss, not Jones) Mere insult is not sufficient 3) Causes emotional harm to D4) That is severe (beyond what reasonable person can be expected to endure, not for harm to

esp vulnerable P unless D knows, usually must be severe enough that P sought medical attn, SOME cts: distress must cause physical manifestation)a. Does NOT apply when exercising legal right (e.g. divorce)b. Limited transferred intent: Third party/bystander IIED (NOT Long, wife seduced,

failed “presence requirement”)o P can recover if

A) present (and defendant knows that P is present…because defendant must be substantially certain he will cause severe emotional distress to P )

B) related to party OR suffers actual bodily harm Courts reluctant to recognize this tort- high standards

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Actual damages are required- nominal damages will not suffice

Affirmative Defenses to Intentional Torts

“Privileges” based on P’s conduct

RS § 63: Self-Defense by Force NOT Threatening Death/Serious Bodily Harm :

(1) Actor can use:a. reasonable force (must be proportional)b. not intended to inflict death/serious harm c. to defend against H/O conduct which he reasonably believes another is about to

inflict intentionally upon him (or 3rd party, RS 76, if D (1) reasonably believes 3rd party would have self-defense privilege and (2) D’s intervention is necessary for 3rd party’s protection) (Touchet, words not sufficient threat)

d. NO duty to retreat (majority)e. NO need to comply w/command to escape injuryf. NOTE: applies to cover “discipline” privilege in schools, as long as shown corporal

punishment wasn’t unreasonable/excessive

RS § 65: Self-Defense by Force Threatening D/SBH

(1) Privileged if actor reasonably believes that:a. Other about to inflict intentional contact/bodily harm AND thatb. He is thereby in peril of death/serious injury which can ONLY be safely prevented

by immediate use of such force.(2) Privilege DOES exist even if actor believes he can avoid injury by:

a. Retreating if attacked within his dwelling place EXC: if it’s the dwelling of other too;

b. Permitting other to intrude in his dwelling place; orc. Abandoning an attempt to effect lawful arrest.

(3) Privilege does NOT exist if actor believes he can avoid injury by:a. Retreating if attacked in place OTHER than dwelling; orb. Relinquishing exercise of any right/privilege OTHER than his privilege to prevent

intrusion of dwelling or to effect lawful arrest.

Arrest and Detention: RULE CHOICE, up to legislature—

Trad. Common Law: prop owner can detain thief “at his peril” (liable for false imprisonment if turns out they didn’t commit crime). Firm rule

RS 2d: prop. owner can detain thief on “reasonable belief” in reas manner for reas time but must be “on premises”. Raises question but “remains silent” on whether detaining can include off-premises vicinity. Flex standard

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Statutory: e.g. WI statute allowing off-premises chase if “reasonableness” requirements are met (Menard, Inc)

Defense of property: NOTE: trumped by necessity (e.g. docking boat)

RS § 77: Defense of Possession by REASONABLE Force NOT Threatening D/SBH if:

a. Intrusion isn’t privileged or other intentionally/negligently causes actor to believe it’s not privileged; AND

b. Actor believes intrusion only preventable by force used, ANDc. Actor has 1st requested other to desist or believes request will be useless/substantial

harm will be done before request can be made.

RS § 84: Use of Mechanical Device NOT Threatening D/SBH if:

a. Use of device is reasonably necessary to protect from intrusion; andb. Use of device reasonable under circumstances, andc. Device is one customarily used for such purpose OR reasonable care is taken to make its

use known to intruders.

RS § 85: Use of Mechanical Device Threatening D/SBH: Privilege exists only when ACTOR would have privilege to prevent intrusion by intentional infliction of such harm if present. Graves/Katko (deadly/SBH force by act or device only ok if intruder threatens w/same, making force “reasonable”/proportionate).

Effect of reasonable mistake by D varieso Mistake as to danger- if D’s mistake is about whether force is necessary, D is

protected by reasonable mistakeo Privilege- but if the owner’s mistake is about whether the intruder has right to be

there, the use of force will not be privileged Deadly force

o May use deadly force only where: Non-deadly force will not suffice AND the owner reasonable believes that without deadly force, death or

serious bodily harm will occur i.e. use of deadly force allowed against a burglar

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Consent

1. Express and conduct complies with terms2. Implied from “reasonable person” standard and conduct

a. EXC if person has taken steps to make contrary intention known (e.g. posting “no trespass” sign = no RP consent to solicitors)

b. May disadvantage those w/limited cultural/linguistic knowledge (O’Brien, vaccination) c. Medical consent implied usually in emergency situations where consent can’t be

obtained (Miller, resuscitated baby, Miller, drunk patient) 3. Substituted consent: may be a jury Q (e.g. Harvey, mother consenting for adult son under

anesthesia)4. Scope : what’s “reasonably expected” in course of what is agreed to (e.g. medical procedure,

Kennedy: reasonable physician intervention for wellbeing within area of “original incision”, NOT stomping on foot after basketball game)

Does NOT apply when:

(1) Duress (may be jury question, e.g. student/professor)

(2) Fraud (Johnson, STD where D knows other doesn’t know)

(3) Lack of capacity (minors, mentally disabled, under influence)

(4) Conditional and condition exceeded (e.g. Ashcraft, non-family blood transfusion, Duncan, non-authorized drug given)

(5) Policy decision to preclude (Robins, discussion of whether to omit for inmates toward jailors)

(6) Revoked (must be while D still has time to alter conduct)

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Privileges Not Based on Plf Conduct

1. Arrests/searches: officers may enter land to execute searches/warrants, does not incl privilege to invite media

2. Public rights: user of public utilities; public accommodations laws, privilege to enter land to reclaim one’s own goods, and limited privilege of free speech in shopping malls

3. Necessity

RS § 196: Public Necessity : Private party has privilege to enter land in possession of another if actor reasonably believes it to be necessary to avert imminent public disaster.

*May involve breaking/entering or reasonable force against possessor if it appears reasonably necessary

*Does not involve compensating owner, Surocco; however, when govt authorities acting in official capacity cause property damage in emergency to mitigate disaster, they may have to compensate for “taking” (differs by state), e.g. Wegner (Mpls policy grenading house)

RS § 197: Private Necessity : In case of emergency, private actor has:

(1) Privilege to enter land of other if it appears necessary to prevent serious harm to:a. Actor or his land/chattels (Ploof)b. Other or a 3rd party UNLESS knows 3rd party wouldn’t want him to

(2) If entry is done for benefit of actor/3rd party, actor liable for any damage unless entry is caused by tortious conduct/contributory negligence of possessor. --Rationale: forcing party to internalize the externality cost, deterrent/economic goal of rule (sacrifice cheaper asset to make efficient choice), Vincent.

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Negligence

Generally, imposing on others an unacceptable degree of risk of injury, failure to take precautions moral blameworthiness

ELEMENTS OF NEGLIGENCE1) Duty2) Breach (small “n” negligence)3) Factual cause 4) Proximate cause5) Damages

Institutions of Negligence Practice: (1) Litigation finance—the attorney fee is contingent, usually 25-50%. In large, time-consuming cases, there must be high pain/suffering or punitive damages to make it worth atty time.(2) Liability insurance—though auto insurance may be compulsory, policy limit (sum to pay for injuries) likely too low to cover most serious injuries.(3) Role of settlement: few trials, but lawyers must have sense of what could be awarded to ensure good settlements

Duty

Duty to behave like a RPPUTC (to all foreseeable Ps)

The standard of care remains the same under all circumstances (Stewart)o But if the danger is high, the reasonable person will ordinarily exercise care greater

than if danger is lowo Dangerous instrumentalities : standard remains the same (RPP), but amt of care so

provided changes (Stewart, gas tank blew up)o Sudden emergency doctrine - in midst of crisis, a RPP may not be thinking clearly,

might do things that one cannot do under normal circumstances but standard remains the same (Bjorndal, car crash)-- Varies by state but most recognize different instruction rarely appropriate

Reasonable person- objective standardo Has same physical characteristics/disabilities as defendant

Yet expected to know your handicaps and exercise the care of a person with such knowledge (i.e. someone with epilepsy shouldn’t drive)

o Average mental ability (not deemed to have mental capacity of defendant) Individual mental handicaps are not considered (i.e. low IQ no excuse)

o Same knowledge as average member of community Yet defendant with knowledge superior to that of the average person to

required to use that knowledge

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Particular Standards of Conduct: Exceptions to General Rule (specialized trumps general)

What Circumstances Count? (constitute a defense/specialized rule)

Counts Does Not CountChildrenSuperior skillPhysical disabilitiesEmergencies

Child doing adult thingsInsanityIntoxicationMental disabilities

Child standard of care- specialized rule Duty for a child is to exercise the same care as a reasonably careful child of like age,

intelligence, experience, acting under similar circumstanceso Subjective standard used for children is more pro-defendant than adult standard,

evid of mental/emotional deficit considered (unlike adults) EXC: children are held to adult standards if child engages in adult activity (Robinson,

snowmobile, vs. Putney, golf cart: determine “adult activity” by who does it/danger level) EXC: Some courts say that children of very young age (under 3, RS 10 says 5) are incapable

of negligence EXC: minority approach: where children > 14 = rebuttable presumption in favor of

negligence, children 7-14= rebuttable presumption against capacity, children < 7 = incapable of negligence

Knowledge and Skills (RS 12):

If actor has knowledge/skills exceeding those of others, they must be taken into account in determining whether he/she acted as a reasonably careful person, though instruction remains same (Cervelli, professional trucker, Hill, tractor operation, drs must report own symptoms properly). If actor is below avg judgment/knowledge, it’s generally ignored.

Intoxication NOT an excuse EXC: sometimes for adult learners who cause harm to teachers

Disability (RS 11):

(a) Conduct of physically disabled actor negligent only if conduct doesn’t conform to that of a reasonably careful person w/ same disability (NOTE: old age not in and of itself considered a disability).

(b) Conduct during period of sudden incapacitation resulting from physical illness negligent only if sudden incapacitation was reasonably foreseeable (e.g. seizure/didn’t take meds, foreseeability often a jury question)

(c) Actor’s mental/emotional disability not considered

Mental Disabilities- no specialized rule Held liable for intentional AND negligent torts

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Policy reasoningo Allocates losses between two innocent parties to one who caused the losso Provides incentive to those responsible for people with disabilities and interested in

their estates to prevent them from causing harm to others and restrain those who are potentially dangerous

o Removes inducements to fake mental disabilityo Avoids administrative problems involved in courts and juries attempting to identify

and assess significance of actor’s disability- too difficult to draw line between mental deficiency and variations of temperament, intellect and emotional balance

o Forces people with disabilities to pay for damage they do if they “are to live in the world”

EXC: If someone is mentally disabled, institutionalized, and hurts a caregiver not liable (Rusk)

Insanity- no specialized rule MAJORITY rule= Mental illness is never a defense. Insane are held to same standard as

everyone else. MINORITY rule- treat sudden insanity same as sudden physical incapacity (Breunig (sudden

delusion while driving)

Using Statutes to Define Duty: Statutory Standard of Care (RS 14)Negligence per se: When a safety statute has sufficiently close application to the facts of the case at hand, an unexcused violation of statute by defendant is “negligence per se” and that conclusively establishes that D was negligent (breach and duty of care satisfied (some states: only breach satisfied); still need to establish causation and damages).

Used when:1) P is in class of persons that statute protects (not usually gen pop but sometimes, e.g.

person bit by non-quarantined dog whether actually rabid or not) AND2) P’s injury is class of harms statute was designed to prevent (e.g. not selling ammo to

someone <21 who commits suicide)3) [Inferred by cts to allow civil COA when statute itself is silent as to civil liability on top of

public-law penalty, so somewhat discretionary, O’Guin: read “protecting health” to cover “safety” of landfill]

EXC: D’s violation of statute is excused when:o Violation is reasonable due to incapacity (i.e. youth, blindness)o Actor neither knows nor should know of the occasion for compliance (i.e. tail light

goes out without driver’s knowledge)o Actor is confronted by emergency not due to his own misconducto Compliance would involved greater risk of harm to the actor or to otherso Violation due to confusing way requirements of statute were presented to publico Actor DOES exercise reasonable care in trying to comply w/statuteo NOT an excuse that D is unaware, careless (Impson, forgetting intersection) or

thinks it’s unwise Statute prescribes precise contours of reasonableness

o Rather than, D has duty to act like a reasonably prudent person unlike like circumstances, now, D has duty not to sell ammo to anyone under 21 (in this case, only issue is age- if P is under 21, D is negligent)

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Licensing : may or may not be neg per se (e.g. YES furnace permit when fumes harm someone, NO motorist moving and not having new license yet). Look to whether regulation represents legislation on “how to do something” (usually not met).

Alternative Duty Standards

Special duty standards o Land possessorso Medical and other professionalso No duty- immunitieso Duty to act affirmativelyo Duty to control third persons

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Special Duty of Possessors of Land

NOTE: 50% of states still have these categories--Some retained ltd trespasser duty but abolished licensee rule (hybrid)--Others redefined boundaries of categories (e.g. MD “bare licensees”, like hunters, treated as discovered trespassers)50% of states follow Rowland and have substituted a general RPP duty of care (rationale: old rules out of date, lead to wrong results, too complicated)

What kind/category of entrant is P?1) Invitee- person who enters land in response to express/implied invitation

a. Business invitee- on premise for pecuniary benefit of possessor (customer, employees, incl mail carriers, garbage disposal, census taker, health inspector)

b. Public invitee- on premise held open to general publici. Two may overlap- i.e. shopping at supermarket

Loses invitation if acting beyond scope/area of permission (Gladon, becomes trespasser (no owner consent) or licensee (consent))

Duty: to use ordinary care in keeping property reasonably safe for invitee Duty includes duties owned to licensees (to warn of non-obvious

dangerous conditions known to landowner and to use ordinary care in active operations on property) + duty to make reasonable inspections to discover dangerous conditions and make them safe

“make them safe” = usually warning is sufficient EXC: open/obvious danger (O’Sullivan, pool dive)—some cts wait

to apply this as CF. Does NOT apply if P has no choice (icy walk) or if P likely to be distracted (supermarket spill). Alternatively, some juris say duty exists but no breach b/c so obvious, making it a question of whether harm was foreseeable even if danger is obvious (e.g. construction balcony w/o railing, bar at top of stairs).

2) Licensee- enters with permission but not for pecuniary benefit of owner, e.g. social guest Duty: to warn of dangerous condition known to owner that creates unreasonable risk of

harm and licensee unlikely to discover NO duty to inspect for defects or repair known defects Duty to exercise reasonable care in conduct of “active operations” for

protection of licensees known to be on property Incl firefighters/police (policy decision, can’t recover for failure to

inspect/repair)3) Trespasser- no permission

o Undiscovered trespasser- No obligation to discover and no duty of care owed (Palsgraf applied to land possessors)

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o EXC: there is a duty to refrain from willful/wanton injuryo EXC: must exercise reasonable care for flagrant trespasser who is imperiled and

helpless OR unable to protect themselves

4) Discovered trespasser- must behave with ordinary carei. May arise b/c of frequent trespass on limited area (know trespass likely)

1. Reasonable care to make premise safe or warn of dangersii. Child trespasser- see below for Attractive Nuisance Doctrine

Attractive Nuisance Doctrine (majority): May be applied to abandoned cars, lumber piles, sand bins, etc. Usually applies to children of “tender years” (contra new Amtrak case, 17 yr olds!). D liable to harm to trespassing kid if:

(1) D knows/has reason to know kids likely to trespass(2) D knows/has reason to know condition involves unreasonable risk to kids(3) Kids don’t realize risk due to age(4) Utility to possessor of maintaining risk and burden of eliminating danger < risk to kids(5) D fails to exercise reasonable care to eliminate danger/protect kids (Stanley, pool-pond)

EXC: a. conditions essential to landownerb. kids over school age (contra Amtrak)c. (some juris) “common hazards” where duty owed but impossible to protect, e.g.

fires/pools

Recreational Uses: most states passed statutes limiting liability of landowners (to wanton harm) who open land to non-paid, not-expressly-invited public recreational use (govt wants to encourage). Interpretive difficulty (how far… parking lot? Bathroom? And what about P’s purpose… business trip and pleasure? Going home?)

Undiscovered Trespasser

Discovered or Anticipated Trespasser

Licensee

(present w/ permission but no benefit to land owner)

Invitee

(present for benefit or person on land open to general public)

Must be within scope of invitation Gladon (train case)

Activity No Duty Ordinary Care Ordinary Care Ordinary Care

Static Condition

No Duty

(refrain from willful/reckless injury)

Limited duty to protect against a condition if:

(1) artificial, (2) highly dangerous, (3) concealed and

Duty to protect against a (1) concealed condition (2) the existence of which is known

Ordinary Care + a duty to conduct a reasonable inspection to discover and correct hazard.

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(4) known to landowner

Exc: peril

EXC: recreational use

Duties of Medical and Other ProfessionalsThese rules extend to other professionals, such as architects, lawyers, etc., p. 355-56

Medical Professionals Standard duty of care in medical malpractice= custom of the profession, care of

reasonably careful/skilled physician of class of drs to which he belongs (BUT when medical authority divided, no liability if choice of “considerable #” of med professionals)

Therefore, always need an expert o Jury= lay person with no expertise in the area need expert to explain, testifying to

practice standard, not own practice (Walski)o Specialists : compare to other drs in specialization, not medicine generallyo Referrals : often req to refer where standard of care so reqso EXC: in obvious cases (i.e. surgeon amputates wrong arm)- no expert testimony

needed Alternatives (Locality)

o Strict locality rule: (maintain in some states), which measures D’s conduct against that of other doctors in the same community. Growing movement in legislatures to make malpractice suits harder. Issue: conspiracy of silence.

o Modified locality rule: standard is care exercised by ordinarily careful physicians at time and in similar localities

Duty to disclose risks of surgery- see informed consent

Other Professionals Education- acceptance standard across country for all education levels= NO COA for

educational malpractice (Loyola, but see dissent, maybe for unfulfilled K?) Non-medical practitioners (e.g. chiropractors): held to their school of belief, not med

standard Mental health care providers (i.e. clinical psychologists, social workers)- owe duty of

customary practiceo Compared to each other, not psychologist to social worker

Clergy- no duty or standard of careo Yet as Pastoral role- similar to mental health professionals (clergy malpractice)

“Malpractice Mess”—who pays for suits? Complete negligence unavoidable, but no alternative to litigation system (e.g. trying to deal directly with dr/hospital, must go through cts and sue insurance). Alternative approach (vaccines, New Zealand)—set aside some money tacked onto every transaction for fund for those injured, program does not try to sort out claims of bad luck vs.

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negligence but has list of recoverable injuries based on severity/frequency. If not satisfied one can sue but people usually don’t. Benefits: predictable, evenly distributed, keeps vaccine cos in business (otherwise they’d be bankrupted by suits), downsides: if applied broadly (e.g. to too many/all injuries), it would exceed cost of universal coverage, doesn’t allow P emotional satisfaction of day in court. Caps? Limit liability but remains frustrating and not uniform in fair compensation (like current litigious system).

*Problems w/custom standard? Reduces innovation (don’t want to try something new b/c won’t measure up to standard of care), creates problem of conspiracy of silence, reduces tailored care by patient, progressive over-care overall. Customary standard applies to all practices (e.g. lawyers, accountants, etc).

Res Ipsa in MedMal (Use to Show BREACH of Medical Duty)1) Injury causing event does not occur in absence of negligence2) Injury was most likely caused by D or instrumentality in exclusive control of D

a. May be “constructive control/right of control”, ALL Ds who had shared control over body/instrumentality causing injury have “control” unless D shows proof to contrary, Ybarra (rationale: P in worse position to prove, encourage drs to tattle)

b. NOT exclusive control when attributable to frailty/previous condition, P must offer evid to exclude these to show MOST likely dr’s fault (Kelly, failed b/c of preexisting pre-enema probs)—note this makes it hard for P who went to dr for prob in 1st place

c. Usually need expert testimony UNLESS obvious breach (e.g. sponges left)

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Informed ConsentInformed consent- owes patient duty to disclose risks of non-negligently performed surgery so patient can make intelligent decision. Most cts treat as negligence, a few as battery (ins may not cover). EXC: emergency situation threatening P’s life

ELEMENTS1) Physician failed to comply with the standard for disclosure

a. Disclose what doctors customarily disclose (Wooley, MA) Usually requires expert testimony Rationale-professional standard since malpractice case, may be therapeutic

reasons for withholding information, and adds little burden to P since must produce medical testimony on other issues

Overlooks purpose of requiring disclosure, protect patient’s right to decide for himself

b. ( Maj. ) Disclose what a reasonable patient would want to know (Harnish, Marsingill) General Rule: physician owes to his patient the duty to disclose in a

reasonable manner all significant medical information that the physician possesses or reasonably should possess that is material to an intelligent decision by the patient whether the undergo proposed procedure

Information a physician reasonably should possess = information possessed by the average qualified physician (practicing in that specialty)

What physician should know involves professional expertise and can be proved only though testimony of experts

Extent to which he must share that info with his patient depends upon what information he should reasonably recognize as material to patient’s decision

Material determination is one that lay persons are qualified to make without aid of expert

Situations that call for non-disclosure- complicate procedure or render unfit for treatment

c. Disclose what the particular patient would want to know

2) The undisclosed risk occurred and harmed the P

3) Causation: (maj: objective): the P + a reasonable person UTC (some cts: judged by reasonable person in light of P’s personal fears/beliefs) would NOT have consented if informed

Specific examples:

1. IC = risks of procedure itself

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a. NOT dr’s own success rate (Wlosinski), contra Johnson, patient entitled to info that more successful/experiences drs available --But can’t LIE, state statutes prevent fraud

b. Must disclose risks of turning down procedure (Truman, pap smear)c. If outside procedure itself, use practice standard (e.g. NOT life expectancy, Arato)

IMMUNITY= no duty

Family Immunity1. Spousal: nearly all abolished, some partially abolished (e.g. immunity from negligence but

not intentional torts or motor vehicle accidents)2. Children: majority abolished BUT broad discipline/supervision discretion remains, some

partially abolished (not applied in intentional torts/motor vehicle accidents, Rousey)--NOTE: doesn’t apply where duty is to world at large not kid (e.g. Hoppe, exploding nail gun, duty not to negligently maintain explosives applied to all potential victims)

a. No duty approach (Augsburger, cabinet)—doesn’t apply if intentional tortb. RPP (small minority)c. Limited duty approach (Goller, tractor), immunity except where:

i. exercise of parental authority (discipline)ii. exercise of parental supervisory discretion (food, clothes, etc)

3. NOTE: cts divided as to “who counts” as family

Charitable Immunities Mostly abolished, some retain/partially retain (e.g. neg but not willful/wanton acts,

abolished only as to hospitals, etc)o Some cap damages by statuteo No immunity for paying patients in hospitals/immunity for charity patientso Statutes MAY provide immunity for individuals engaged in charitable activities, e.g.

fed statute for nonprofit volunteers)o Traditional view: IMMUNITY, EXC: non-trust funds (ins), administrative neg, claims

by paying users, collateral commercial acitivity (e.g. YMCA ski trip), intentional torts

Federal and State Government Immunities

1. Federal Immunity: FTCA abolished after WWII

FTCA Cases:1. Governed by state law

o E.g. in MD, no recovery if hit by federal vehicle while jay-walking because it’s one of the five states with CN

2. Key conditions on waiver of immunity:

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o Before filing suit in court, P must submit claim to govt agency involvedo Suit is not permitted until agency has refused payment or has delayed over six

months in making a decision on ito Bench trial- no juryo Fed cto No punitive damageso No SL under FTCA

3. EXCS from bar on immunity:o Intentional torts (possible exc: “fostering the risk”, e.g. letting off-duty officer take

govt rifle off base)o Government activities (e.g. mail delivery: immunity for lost letter, NO immunity for

negligently-driven mail truck)o All claims arising in foreign countrieso Combatant activities of militaryo Feres Bar: judicially created

“Incident to service” injuries, interpreted very broadly (e.g. Jefferson, towel in abdomen not recoverable)

Does NOT bar claims by spouses/children on baseo Discretionary functions (Whisnant, poor maintenance not immune)

--Note: no immunity when govt disregards own regulation (Loge, vaccine) Apply Gaubert test:

a. Was challenged act discretionary (did govt have a choice of action)?b. Was challenged act one Congress meant to protect as a policy decision (design or implementation)?

2. State Immunity: abolished/limited by legs in 60s/70so Most states follow federal model and waive generally, retaining it in particular,

specified situationso Smaller but significant number work in reverse, retaining immunity generally but

abolishing it in particular, specified situationso Smaller number retain virtually complete immunity (e.g. AL)

3. Municipality Immunity (corps chartered by sovereign): may be separate or same as state rules Traditionally accorded immunity (public duty doctrine: no private person can recover)

o EXC: Liable for takings of propertyo EXC: Liable for nuisances such as unsanitary garbage dumps, and for torts

committed in course of proprietary activities, as distinct from gov’t activitieso Fire/police : immune from decisions implicating resource allocation

EXC: when they have undertaken responsibilities to specific members of the public, creating a “special relationship” voluntarily assumed duty to exercise ordinary care in performance of task (DeLong, dispatcher fail)EXC: NO immunity when improperly carrying out policy decision (Harry Stoller, firefighter fail)

4. Public Officials Immunity: Applies to public officer carrying out his official duties when they involve discretionary acts done without malice or improper purpose (no immunity for ministerial acts- operational level)

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Nonfeasance/MisfeasanceNonfeasance- doing nothing = no liability (Yania, ditch drowning)

o Misfeasance- something affirmatively doneo Nonfeasance- whether you are obligated to take the action in the first place

Exceptions and Qualifications to No Duty to Rescue a. Voluntary rescue : If you choose to rescue, you must rescue like a reasonably prudent

person under similar circumstances while other is in your custody + when terminating rescue

a. Cannot make a person worse off by abandoning the rescue AND if other is in immediate peril at time of termination must show reasonable care in terminating (Wakulich, Goldschlager)

b. Yet if this rescue is danger to yourself, then you don’t have to rescueEXC: Good Samaritan laws immunize voluntary rescuer in some states, sometimes limited to professional rescuers/meds who gratuitously aid

b. Special relationship duty to rescue person in peril (Farwell v. Keaton)a. Parent-child; school-student; doctor-patient; custodian-one in care; employer-ee;

landowner-invitee; carrier-passenger; innkeeper-guest; shopkeepers-patrons (and other relationships in places of public accommodation).

b. NOTE: NOT exhaustive, cts can add discretionarily (Farwell, friend in car/imposed duty, vs. Faltys, frat bro drowning/not imposed)

c. Own conduct (RS 39, negligent or innocent) places another in peril (or contributes, e.g. giving gun to assaulter) = duty to use reasonable care to aid/assist that person--NOTE: other’s helplessness not req’d, must take steps to mitigate risk created if in better position to render aid than injured person (jury Q of duty when in position to influence tortfeasor’s rescue/position to influence outcome, B<PL)--Can be a case-by-case consideration in some states, e.g. Mairs (NJ), where friends w/cell phones did not call for help for hit motorcyclist

d. Statute/ordinance requires a person to act affirmatively for the protection of another

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Duty to Protect From Third Persons (TPSH)

Generally no affirmative duty to protect, EXC where:

1) Special relationship (what counts? --Iseberg, partner shooting, no SR--Schools: duty where supervisory + acting in loco parentis (Marquay, principal not other teachers liable in sexual abuse case). Some states: limited to on-premises/school hrs--Colleges: no duty (no SR)--Landlords: no duty to protect against 3rd party attacks or maintain security measures (other cts: must maintain security employed when tenant became a resident, Funchess).--Hospital: duty to take reasonable measures to protect domestic violence victim (McSwane)

2) Foreseeable harm (how much?)o 4 Approaches to Foreseeability

Specific harm- duty only when D is aware of specific, imminent harm to P Prior similar incidents duty if past history of criminal conduct put owner

on notice of risk to P Totality of the circumstances- takes additional factors into account, such

as the nature, condition, location of the land, plus any other relevant factual circumstances bearing on foreseeability

Balancing test (cost benefit analysis)- duty when foreseeability of harm and gravity of harm > burden of imposing a duty on business (NOTE: this misconstrues “breach” element, Carroll Towing. Shifts burden of security from public (police) to private enterprise (pay for security), only a few states: CA, TX, LA, Posecai)

*Still need to prove breach (consider McSwane)*Duty may not matter after damage calculation (political, states vary) (Reichert, owner had duty to protect patron from violent invitee, but if not joint/several liability, % liability may yield low damages)

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Duty Based On Relationship with 3rd Party Sources of Harm (TPSH) (RS 41)

1. Duty of reasonable care when risk posed by 3rd party within scope of special relationship2. Special relationships include:

a. Parents /children--Note: only duty to control specific/present dangerous behavior that parent knows/should know of in exercise of reasonable care, relies on foreseeability of specific harm, e.g. not when historically violent kid shot another

b. Custodian /those in custody (Dudley, halfway house duty to victim of violent ex-con)c. Employer /employees when employment facilitates employee’s causing harm (e.g.

employing serial assaulter as flower deliverer w/o doing background check)d. Sometimes: landlord/tenante. Mental health professional/patients (Tarasoff)

--Note: reasonable care, also still relies on foreseeability of specific harm caused to usually readily-identifiable victim (Thompson—states disagree)--Other drs: Tarasoff duty may apply, e.g. duty to warn of dangerous effects of meds, duty to warn of how to avoid spreading communicable disease, NO duty (even prohibited) from revealing AIDS patients’ identities to possible partners--Criticism: unworkable b/c therapist can’t predict (administrability), conflicts w/confidentiality duty--Codified/rejected/expanded (to cover bystanders who see confided-of violence, duty to prevent suicide) depending on jurisdiction

f. Negligent Entrustment: giving/selling dangerous item to TPSH who D knows or should know will use it in a dangerous way (e.g. selling gas to drunk driver, Brigance: alcohol to drunk people/minors)i. some cts reject alcohol provider liability (traditional)ii. some cts allow duty to drinker, others bariii. some cts allow social host liabilityiv. some states have dram shop statutes: some expressly impose liability upon

alcohol dispensers, limiting to certain kinds of sales (e.g. minors/drunks) or requiring higher showing than mere negligence in sale, some limit to on-premise consumption (not liquor stores); OTHER EXTREME: some juris immunize alcohol providers for neg entirely OR say no liability w/o statute (leg decision)

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Breach (small “n” negligence): D acted “unreasonably”

--Foreseeability plays a role for precautions: RPP obligated to take precautions more often when risk is more likely. --Note: if 9/10 times RPP would avoid risk, jury must find breach (not human fallibility)--Note: where AUC is inadvertent (not balanced and ignored), B = cost of greater attention (matter of common sense for jury)

Steps:1. Identify AUC (be specific, e.g. failure to make Johnene leave car not failure to drive safely)2. Ask if there’s a factual dispute about whether act/omission occurred3. Identify theory of why AUC was unreasonable:

How to evaluate reasonableness:o Assessing risk and costs It is usually reasonable to do what is customary (Mathew) It is usually reasonable to value life over property (Mathew) It is usually reasonable to avoid greater damage (Mathew, not Boston Edison-

contrived) It is reasonable to take cost-justified precautions (Boston Edison) NOT reasonable to warn against obvious (Stinnett) NOT reasonable to protect people who can protect selves (Stinnett) Evidence of custom is admissible but not conclusive (TJ Hooper, custom may lag)

--Departure from own custom not conclusive (may have been excessively careful)--Bears on: foreseeability of harm, whether D knew/should have know of risk, that risk was unreasonable w/o precaution, unreasonable in community opinion, and feasibility of safety option--Defenses: question custom, show specific conduct posed less risk than other activities of kind, D adopted alternative methods to reduce risk--Can introduce evidence as P sword or D shield--Expert: testifies as to safety/cost, not what’s reasonable

Passage of time (needed for slip and fall, Thoma)--Note: slip’n’fall theories: (a) D created condition, (b) D discovered/should’ve discovered condition, (c) in D’s mode of operations it was foreseeable a dangerous condition would be created + D didn’t take precaution to avert (e.g. grocery display)--Not clear liquid, Stinnett bars--Constructive notice to D (time on floor) hard to est, some states ease P burden(e.g. need pattern of conduct)

Violation of a statute (negligence per se)- establishes duty AND breach

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--Note: safe custom may trump weak ordinance (Duncan, wood for steps)

o Hand Formula B<PL (Carroll Towing), esp. warning (low B)B= burden (may incl risk created by precaution, e.g. looking ahead while driving) P= probability of lossL= cost of lossNote: memory of RP req’d (e.g. not reasonable to forget hole in yard could trip someone, but even memory has cost (reminders/staffing/etc)Note: may be hard to determine cost, may need to account for COST of getting cost

1. Evaulating risk-utility assessment (p. 157): (1) it provides deterrence in “right” amount (proportion) and maximizes community resources (community richer if members do not spend $10 to save someone $5). (2) Some say basic liberties of freedom of action and security should take precedence over considerations of wealth. (3) There are alternative ways juries may judge negligence: (a) intuition, (b) by statutory prescriptions, (c) hard-and-fast judicial prescriptions, (d) custom, (e) moral rules.

Zipursky, “Sleight of Hand”: Hand formula cannot be a uniform field theory of breach (negligence). “Momentary error” cases do not make sense (e.g. waiter who drops hot soup), trying to calculate the burden is too difficult. Jury instructions also do not match up. There are other ways to conceive of negligence as well, e.g. deontological/rights based perception of reasonableness (relational carefulness to others, Golden Rule), virtue theory (template of a virtuous “prudent” person, to be negligent is to fail to be virtuous), “civic competency” (Zipursky’s preference, mix-and-match from other theories)

E.g. p. 196, kid hit in dark/rain driving 20 mpg. B<PL guides argument, better to argue B of honking/flashing lights too low NOT to be unreasonable, not that driving differently was better

Res Ipsa Loquitur- “the thing speaks for itself”, circumstantial evid (to establish breach) --Note: P may use as one of multiple theories (specific neg/RIL)

1) Injury/accident is of type that ordinarily occurs through negligencea. Appeal to common sense (Byrne, flour barrel, Koch, Cosgrove)b. Exclude other possibilities (Warren, car rolled down hill)

--Judge Posner’s bus example: RIL not a free ticket out of P burden to prove: if 51% of buses owned by company A, not RIL b/c P could undertake investigation to find out who was actual cause (unless P shows investigation impossible)

c. Expert testimony (Persinger, toddler ankle break)

2) Injury/accident usually caused by person in D’s position (instrumentality in exclusive control of D—P must show MORE probable D was cause, Barbie, mullion bar)--Flexible rule, where D was probably neg and contributed, RIL allowed (Giles)--2+ Ds in serial control = RIL allowed (Collins, ambulance/hospital yielded broken leg)

3) P did not contribute to the injury--Depends on juris but most: less rigid now, enough that D was A neg party, Giles

Elements above different from RS elements:

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o 1) event is of a kind which ordinarily does not occur in absence of negligenceo 2) other responsible causes, including the conduct of the plaintiff and third persons,

are sufficiently eliminated by the evidenceo 3) the indicated negligence is within the scope of the defendant’s duty to the

plaintiff

Factual Causation (but-for breach, no injury)Imagine alternate situation where defendant doesn’t commit the breach. Infinite causes: need to be A cause not THE cause (Hale, bushes, Salinetro, xray pregnancy).

1. Indivisible Injury

o Merged (“duplicative”) causes- occurred at same time (or don’t know which occurred first) to bring about an injury, each of which would have been enough by itself to cause the harm

Substantial factor test: both Ds liable if each breach was a substantial factor sufficient by itself to cause the harm (Landers, 2 cos not salt packet)

Covers multiple causal sets (e.g. if A, B, and C lean on car and only 2/3 are needed to push over cliff, all 3 liable. RS no comment if A responsible for 2/3 itself and B only 1/3 where 2/3 needed).

Burden shifts to D to show he was not a substantial factor Ct may excuse de minimis contributor (e.g. faulty dam when flood)

o Sequential causes Loss of chance doctrine/loss of opportunity doctrine

P only receives damages for lost opportunity (time harm is accelerated, higher risk, lost opp), NOT entire injury if D deprives P of substantially better outcome, and V SMALL risks may not be compensable.

Medmal form of recovery that allows P, whose preexisting injury or illness is aggravated by negligence, to recover for lost opportunity to obtain a better degree of recovery

Causation Tests (p. 214 cancer patient illutration)a. Traditional:P burden: 51%+ chance of more favorable outcome than receivedRecovery: damages for entire preexisting illnessb. RelaxedP burden: lower, must show D neg more likely than not “increased harm by some degree” or “destroyed substantial possibility of better outcome”Recovery: damages for entire preexisting illnessc. Lost Opportunity (1/2 of states)P burden: D’s neg deprived P of some chance for better outcome by preponderance of evid (any % of reduced chance)

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Recovery: damages for los opp, not whole injury, damages being proportional to chance lost d. Preponderance: no recovery if chance of survival was <50% to start*See notes on lost opportunity damages below

Sequential/Unascertainable Causes If ascertainable, only preempting cause is “actual cause” (e.g. shooting before

poisoning) May be a jury question of preempting cause or not (Dillon, was he already

falling to his death (not liable) or would he have survived in injured state (liable, but only to compensate for ltd earning capacity as injured person)).

Otherwise, in case of 2+ actors, burden shifts to D to show he was NOT a cause or jointly/severally liable (Summers, hunting)

2.Divisible Injury: each D only at fault for harm he caused, no joint/several liability

Lost Opp Damages:

Proportional damages (lost opp test): e.g. if 40% chance of survival eliminated by D’s neg, P gets 40% of damages if D had caused the death itself. Note: 75% chance gets 75% damages (doesn’t change to 100% by a preponderance of evidence rule).

Note also: 40% chance that there’s a 30% chance changes quantified analysis, chance of chance requires preponderance of evidence

Under traditional: but-for cause loss of opportunity often wouldn’t be compensable (e.g. reducing 40% chance of improvement to 20%, wasn’t preponderance of evidence for P claim that recovery would be greater). Loss of chance theory is more pro-P approach (policy rationale, drs should be deterred from giving patients less than maximum chance for recovery). --If chance of recovery goes from 60% to 40%, P gets 100% damages b/c can prove by preponderance of evid

Liability of 2+ Persons (Damages)

A. Indivisible injury

Comparative Fault (P): (most states) in negligence and strict liability cases (not intentional torts), P recovery reduced in proportion to own fault/D liability correspondingly reduced.

Joint/Several Liability: (traditional) P can enforce 100% of claim against either tortfeasor. After that, if one D pays more than their share, they can collect “contribution” (proportional payment from other D(s) for their fault) by cross-claim suit. BUT if one D is insolvent/uninsured/ immune, other D can’t recover contribution payment (has to pay full amount).

Several Liability/Proportionate Share Liability/Comparative Fault Liability: (alternative enacted by many states by statute) Trier of fact apportions fault, P collects proportional amount from each D individually. No contribution, if one D cannot pay (insolvent/immune/uninsured), P suffers loss (can’t collect from other D).

B. Divisible injuries: each D liable for only harm he caused, no fault apportionment needed

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C. Agreement: D may be responsible even if his own conduct was not the cause of harm, e.g. respondeat superior, partners, conspiracies

Proximate cause (legal cause, “scope of responsibility”)

D not liable unless a reasonable person in D’s position UTC should have foreseen that his conduct risked injuries (1) of the same general type that occurred (Medcalf) to (2) a general class of persons to which P belongs (Palsgraf). Ex ante exercise: determine risk created and then compare to harm caused, not the other way around (Crenshaw, slipping on shrimp vom). If can’t determine whether harm was w/in scope of risk created by neg, jury Q. Same rules apply when determining P’s CF.

Cardozo/Andrews disagreement dimensions: (1) substance: what’s the limiting principle on liability? Cardozo: foreseeability, “zone of danger” Andrews: multi-factor test, “practical politics” (p. 227), (2) procedure/verbiage: where to situate the limiting principle? Cardozo: duty, Andrews: proximate cause. Most cts agree w/Cardozo to limit by foreseeability, but use Andrews’ locution of proximate cause.

Defining Scope of the Risk:

A. (What) Medcalf, risk is w/in class of risks created by neg conductB. (Who) Palsgraf, P is w/in class of persons risked by neg conduct. EXC: rescue doctrine,

danger invites rescue, rescuer w/in foreseeable class of persons harmed—doesn’t count when not involved to aid, e.g. husband coming to scene to be with wife

C. (How) Manner in Which Harm Occurred: if harm caused is same type/degree as harm risked to type of victim risked, LIABLE even if exact manner of causation was unforeseeable (Hughes, kid burned). If harm that occurs is different in degree/kind from harm risked, not foreseeable (Doughty, burned, but risk of uncovered vat was splash, not explosion; Darby, death, but risk of open lake was Weils disease, not drowning). Note: latitude in characterizing, diff sides will characterize unforeseen mechanism differently.

D. (How Much) Extent of Harm: Eggshell skull rule: if extent of harm is greater thanexpected, does not reduce liability.--But must be neg act that would’ve foreseeable cause harm to a normal person, not something that ONLY harmed b/c of P’s condition--Rationale: D benefits when P already doomed (Dillon, low damages if reduced capacity already), should pay for flip side too. Also, take P as you find him: just injuring someone on the fragile side of the bell curve doesn’t remove foreseeability.

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E. (Where/When) Intervening Act (break causal chain or w/in risk created)? D liability limited to those harms that result from the risks that made the act tortious (RS 34)1. NOT Superseding if it was w/in risk or connected to it2. Criminal acts: sometimes supersede, depends on whether w/in risk created (e.g.

Watson, criminal throwing match into gas leak supersedes, vs. Hines, train not stopping and making woman walk home alone (raped) very risk created)

3. Suicide: e.g. Delaney, gun securing, took case-by-case approach:a. Traditional (most states): suicide IS supersedingb. Exceptions (some): if D’s conduct induces mental illness/suicidal impulse + where special relationship exists where D knows/should know of riskc. Case-by-Case (a few): foreseeability based on case facts

4. Negligent Intervening Acts: still liable if D put P in situation of “heightened danger” that results (e.g. Derdiarian, roadside construction, vs. Ventricelli, trunk)

5. Termination of the Risk: D remains liable until situation has “normalized” after negligent conduct (Nugent, warning after truck off road, Horton, risk should’ve terminated when parents got gun caps)--But resulting harm must still be a “what” risk created (e.g. Sheean, but stopping illegally not prox cause of passenger injury when sanitation truck hit it).

6. RS 35: Enhanced Harm Due to Efforts to Render Aid: D liable for enhanced harm due to effects of 3rd party trying to render aid reasonably required (EXC: not unreasonable efforts to render aid, e.g. enlarging cut)

Foreseeable results, foreseeable intervening force- defendant liable Subsequent medical malpractice- original tortfeasor is usually liable for the

aggravation of plaintiff’s condition caused by the malpractice of plaintiff’s treating physician

Negligence of rescuers- rescue is foreseeable response to accident or injury; original tortfeasor still liable when injured person is hurt more by rescuers or rescuer is hurt (true even if rescuer is negligent)

Unless performed in grossly careless manner Cardozo: “Danger invites rescue”

Efforts to protect person or property- defendant is liable for negligent efforts on part of persons to protect life or property of themselves or third person endangered by defendant’s negligence

Reaction forces- where defendant’s actions cause another to “react” (i.e. negligently firing a gun at someone’s foot), liability attaches for any harm inflicted by the reacting person on another

Subsequent disease- original tortfeasor liable for diseases caused in part by weakened condition in which defendant has placed plaintiff in by negligently injuring her

Subsequent accident- when plaintiff suffers a subsequent injury following her original injury, and the original injury was a substantial factor in causing the second accident, original tortfeasor usually liable for damages arising from second accident

Foreseeable results, unforeseeable intervening forces- defendant usually liableo Intervention is neither foreseeable or normal, but leads to the same type of harm as

that which was threatened by defendant’s negligence- defendant liable

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Most courts will find liability here because they give greater weight to foreseeability of result than to foreseeability of intervening force

EXCEPTION: When intervening force is an unforeseeable crime or intentional tort- then it is deemed a superseding force- cuts off defendant’s liability

EX: D fails to clean residue out of oil barge, leaving it full of explosive gas.. Negligence exists because an explosion resulting in harm was foreseeable. Yet unforeseeable bolt of lightning strike barge causing explosion. D is liable.

o BUT if arsonist caused explosion, no liability. Unforeseeable results, foreseeable intervening forces- defendant not liable Unforeseeable results, unforeseeable intervening forces- defendant not liable

Damages*Must suffer actual harm or injury (Breen) and is expected to mitigate damages (enhancement)*Collateral source rule: any payment from outside sources to compensate does not alter judgment against D, may subrogate. Rationale: may under-deter otherwise and P’s decision to self-insure should not affect D liability.* Nominal damages are not available in negligence (only in intentional torts)

Compensatory damages- to give you back what you lost Economic/pecuniary damages “specials”

Out of pocket expenditures that have been made or will be made by plaintiff: lost wages, medical monitoring (controversial), medical expenses, extras?- mowing lawn

Ct may allow periodic payments instead of lump sum (or “structured settlement”), lump sums must be adjusted for inflation/investment

Non-economic/non-pecuniary damages Pain and suffering More than just physical pain- reduced quality of life, mental/emotional suffering Where lawyer fees come from—needed to take case Most cases require that person be consciously aware of injury and loss of enjoyment

not separately measured from pain/suffering, McDougald (brain damage) (minority of cts do allow separately)

Per diem/”Golden Rule” (cost to trade places)/comparable case measures: allowed in some cts, not others. Most say no mechanical way to do it, must calculate case by case.

Punitive damages- punishment/sanction against defendant Only for intentional or reckless torts, not negligent torts General Rules , p. 796-97:

1. Requires misconduct w/ intent/malice or wanton/reckless disregard (can bring in negligence case though if D showed conscious indifference to consequences)

2. Purposes: retribution, deterrence, sometimes litigation finance3. Jury’s discretion determines whether and how much to award. Not per se unconstitutional,

but extreme awards may violate due process 4. Statutes may limit amount, otherwise “reasonable proportion” guideline5. Comparative fault does not reduce punitive award

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6. Awarded for various reasons, e.g. bullying, profit from tort (Owens-Corning)7. Measuring: reprehensibility of conduct, wealth, ratio rules (compare punitive damages to

potential harm of conduct). Limiting: amount of award or number of cases where they may be awarded (increased proof standards, single liability statutes, specific malice requirement, redirecting funds, statutory caps/ratios).

Damage caps- ½ of states have these- “tort reform”--Others have found unconstitutional, overridden by other statutes, used annual cap increases, only applied to certain claims, or removed in extreme cases

Damage Arguments:

High premiums more correlated to market returns than tort suits

Cap/comparative fault calculations’ timing may drastically impact total amount (p. 788 comparison). Side effects: cts may be more inclined to resolve close Qs of liability for P when damages are capped (e.g. Sept. 11 litigation)

Arg for abolishing pain/suff damages: Ds will pass on costs of award to consumers, creating “compulsory insurance”, when most consumers would be better off enjoying cheaper goods and no pain/suff award if hurt. Plus, taking out own pain/suff insurance would be cheaper than working through tort suit system. But would there be any deterrent effect then on companies?

*Attys: successful cases subsidize unsuccessful ones, delays compensation (might work on case for 2 yrs before pay), can result in low or astronomical salaries depending on damages. Atty fees not usually included in award/settlement b/c of contingency arrangement.

*Costs: may be recoverable (usually on appeal) for P

*Damages depend on the person (e.g. hitting homeless person, less damages, women less, etc), system designed to restore a status quo ante that is unequal

“Six Ways Liability Insurance Shapes Tort Law in Action” Article

1. LI is an element of tort liability for all but the wealthiest potential Ds2. Contractual limits on amount of LI place a practical limit on the amount of damages a P can

receive3. Liability is shaped to match available insurance coverage (e.g. rarely intentional torts, neg

framing to get ins to kick in, ins complies b/c required to put individual D interests ahead of ins interests)

4. LI makes insurers repeat players pursuing portfolio strategies through individual cases according to their long-term interests in development of tort rules and settlements (e.g. chilling claims)

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5. LI personnel transform tort rules into “rules of thumb” for claims administration that end up determining real recoverability (and therefore tort rules in action)

6. Negotiations over insurance boundaries drive in-action bounds of tort inquiries/”development of tort law in action”

Defenses to Negligence: Contributory Negligence

1. Contributory Negligence= P’s fault is an absolute bar to recovery (Butterfield)o Doctrine has been abandoned by vast majority of jurisdictions- only 5 jurisdictions

retain this rule (AL, NC, MD, VA, DC)o Differs from mutiple actors (Landers) by making it a zero-sum P/D game

2. Comparative Faulta. Pure CF: doesn’t bar recovery but reduces damages according to P’s % neg (e.g. NY)b. Modified/Partial CF: various conditions

E.g. WI, no bar to recovery as long as P neg NOT greater than neg of D, and damages are proportionally reducedE.g. ND, bar if P fault as great as combined fault of all D’s

c. “Equitable and Just” Reduction: (ME only): P’s damages reduced by amount jury considers equitable and just, not in proportion to fault

*To fight jury award, must be against weight of evidence, one way to determine (Posner) is to compare cost of non-neg conduct to avoid injury for each party (Wassell)

E.g. if 70% CF in $100,000 award, recovers $30k in NY but $0 in WI; if 50%: $50k in NY, $50k in WI, $0 in ND e.g. 2-car collision, 1 ran stop sign 1 drunkA’s damages = $100k, 40% faultB’s damages = $200k, 60% faultNY: A gets $60k, B gets $80kct nets out so A owes B $20k (even though B was more blameworthy, damages change situation)WI: A owes B $0 (b/c B greater neg), B owes A $60kB owes A $60k

§ 8: Factors for Assigning Shares of Responsibility:

a. Nature of person’s risk-creating conduct [com: how unreasonable UTC, extent to which deviated from standard, surrounding circumstances, each actor’s abilities/disabilities/awareness/intent],

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incl any awareness or indifference w/respect to risks created and any intent with respect to harm caused;

b. Strength of causal connection b/t risk-creating conduct and harm [com: how attenuated the causal connection, timing, comparison of risk created and actual harm.]

3. All-Or-Nothing Outcomes After CFa. If duty breached is to protect D from his own carelessness (Bexiga), e.g. children,

mentally incompetent, repetitive work. P vulnerability important if: D knows of P’s disability + P’s risky conduct endangers himself but not others. Stinnett doesn’t apply when P’s ability for self-care is reduced.

b. If P has an “entitlement”/absolute right to behave as he did (Leroy Fibre), these are debatable (e.g. entitled to wear expensive jewelry or walk alone in dangerous area?)

c. If P has no duty to be careful as a matter of law (Christensen)

Defenses to Negligence: Assumption of the Risk

Express AR = contractual waiver of D liability (total or ltd). Must be:o Enforceable (e.g. not fraud/unconscionable/contrary to policy, look to: essentiality

of service (e.g. hospital vs. recreation), other vendors, competitive bargaining, e.g. compulsory waiver in emergency setting void, Tunkl)

o Scope : must cover AUC (Moore, release was not from neg in general, e.g. planning course for ATV)

o Signed before injury

Implied AR: may est no duty, affect CF, or immunize D from suit1. Implied Primary AR: law sets lower standard of care in case of inherently dangerous

activity (than RPPUTC), no duty to reduce risks but duty not to increase risks (Avila)--Applies to sports and some other situations (Murphy, “the timorous can stay home”)--Normal RPPUTC would’ve told player to chill out, here ok not to--May apply to criminals (e.g. mugger AR that cop might shoot)

2. Implied Secondard AR: waiver like express AR but inferred from conduct (e.g. getting in car with drinking driver). Overlaps w/CF. P must:a. Know of riskb. Voluntarily decide to encounter risk

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Negligent Infliction of Emotional Distress

NIED: 4 fact patterns:

1. Loss of consortium: a) services, b) society, c) sex. Derivative claim, cannot rise higher than original claim (e.g. CF may reduce/bar recovery), but some states treat as independent claim --Loss of fillial consortium (a few states recognize, majority no)

--Loss of parental consortium (a few states recognize, majority no, Boucher). Rationale: multiplies liability, higher costs, invades leg province--Unmarried cohabitants: depends on juris, Medley

2. Near-miss (“fear or shock from risk of physical harm”). States differ on standards:--“Impact rule” (e.g. even gravel from car, horse tail brush)--Zone of danger --Physical manifestations (objective verifiability), e.g. miscarriage, rash--“Medically diagnosable” emotional harm, e.g. depression--Abolished any specific rule

3. Bystander (sadness/grief)--Dillon: flexible standard (as to proximity of relationship, time, space), duty to all who may suffer emotional harm based on P location + sensory contemporaneous observance + close relationship--Thing: firm rule (“ “), need presence at scene + serious distress + close relationship--Grube: “fear for one’s own safety”—confused standard, makes the category effectively nonexistent or a double claim of a near-miss claim (ZOD)

*Some cts allow delayed perception if scene is unchanged (Dillon type usually)*Recovery affected by CF (e.g. dad who lets kid wander off and be hit by car)*”Close relationship” determined by state

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4. Relationship + Foreseeability Claims : D behaves carelessly, no physical injury, but there’s a preexisting relationship and as a result P is upset, which was a foreseeable result of the D’s conduct (e.g. dead body cases, false positive test results, irreplaceable tissue samples, baby swap; NOT sex tape, Boyles, maybe wrong, or administrability issue)

5. Toxic Exposure [emerging area]: no present disease but > 50% chance of developing (cts very divided about whether such cases are recoverable, some states have no case law position yet). Note: if you DO have symptoms, medical monitoring is easily allowed.

PRODUCTS LIABILITY

McPherson v. Buick, Cardozo: duty does not run only to those in “privity of K,” allowed buyers to sue manufacturers for negligence. However, when difficult to establish negligence, P attys used merchantability (but still an implied K issue with a specific manufacturer). Then overruled need for privity in merchantability claims, then *Greeman: eliminate verbiage, all merchants in a distribution chain are strictly liable if they sell a dysfunctional product (incl manufacturer, wholesaler, retailer). Incorporated into RS2d, §402A: SL for products

SL: chief req is that consumer prove product is defective (3 forms):

1. Manufacturing defect: “production flaw,” a. Anomalous productb. Tests:

“More dangerous than consumers would expect” (consumer expectation test, p. 645 n2), vs. “Physical departure from its intended design” (RS3d, n3)

Challenge for P: proving defect existed at time it left D’s hands. If product has been subsequently altered (deliberately/accidentally, as by negligent/rough handling), no claim. Lee, p. 643: proof issue: only 3 reasons bottle can explode: thermoshock (none), physical force (none), overcarbonated/glass problem (P gets showing of evid cuz it’s left). RIL w/ diff jury charge, doesn’t allow B<PL type determination of breach (SL).MAY be able to est proof simply by showing product to factfinder, who will know by nature of product that the defect existed (e.g. razor sharp edge on toy truck, unless manufacturer can show you sanded it down).What if product is destroyed, e.g. car crash? Logical deduction, rule out other likely explanations

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Note: p.647, Mexicali Rose, “no duty to provide perfect enchilada” when defect is “natural” to the food. Most cts REJECT this “natural to the food” argument.

2. Design Defect: product itself designed in a way that’s dangerous to consumers (more worrisome to manufacturers, mass liability). a. Tests:

Some: retain consumer expectation test, but problematicMajority: “Risk utility test”: if design produces degree of danger that could’ve been eliminated at reasonable cost, product considered defective. Basically just negligence (showing manufacturer made neg decision in weighing utility). Honda, killer seatbelt case, P must prove existence of reasonable alternative design (safer but not much costlier or unworkable)… P here failed, moving release lever closer to driver would make it harder for a 3rd party rescuer to press, also failed to show it was econ viable (even though Toyota was using another design, could be different cost structures, what’s price-effective for an expensive car isn’t necessarily so for a cheap car). HEAVY BURDEN ON P, NEED EXP ENGINEERING TESTIMONY, RS USES BUT NOT ALL CTS AGREE.

b. Information Defect: even if no way to cost-effectively eliminate danger of design (e.g. ladder, possibility to fall off top step), “obligation to give adequate (prominent, understandable, maybe bilingual/pics) warning about non-obvious danger that cannot be designed out, to consumer or ‘learned intermediary’ (skilled dispenser, e.g. pharmacist)” UNLESS danger is obvious. Liriano, hurt in meat-grinder where store had removed safety guard: Calabresi—warning need not just identify danger, may identify alternative, e.g. “don’t use w/o safety guard”, so there WAS a defect.

Note: still need to show causation, 674n10, but “heeding presumption” as to warning, shifts burden to D to show P wouldn’t have heeded warning (like informed consent, reasonable person standard as to what we think someone would’ve done).If misuse of product is foreseeable, it is NOT P fault (product should be designed to take that into account, like Bexiga). But if misuse NOT foreseeable, there’s no liability b/c no defect. CF may still apply though, e.g. crushing machine.

Products Liability Strict products liability= liability without fault

o Yet when someone says products liability, don’t always mean strict liability Products liability can overlap with negligence (no cost-benefit justified

precautions, drunk on assembly line) or contracts Analytic shift: No longer focus on conduct, look at product itself

o Not interested in behavior of defendant Who would be exposed to liability for strict products? ONLY IMPOSED ON MERCHANTS

o All merchants in distribution chain (manufacturer, retailer, wholesaler) Cuiseneart Macy’s You

Can sue both Macys and Cuiseneart Yet if you sell food processor to friend/eBay- they cannot sue you because

you are just a casual seller Joint and severally liable- if you recover from anyone lower on chain, they can seek

indemnification from highest (100% recovery)

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In order to have a claimo 1) Must sue merchanto 2) Must prove

A) Product was defective B) Defect existed when product left the possession of defendant being sued

3 Types of Defects Manufacturing defect-When the product departs from its intended design

1 in a million Product can still be defective if no negligence is found

Elementso Product was in fact in a defective condition, unreasonably dangerous for its

intended use Test for defect/unreasonable danger: Consumer expectations test- must

make a product more dangerous than consumer reasonable expects (used by more jurisdictions)

Used in food products cases- did consumer reasonably expect to find i.e. a bone in their enchilada?

Alternative test: Products Liability Restatement- product has defect when product departs from its intended design even though all possible care was exercised in making product

o Defect existed when the product left defendant’s hands (can use res ipsa) Can infer that defect exists at sale/distribution if a) event was of a kind that

ordinarily occurs as a result of product defect, or b) event was not solely the result of causes other than defect

o Defect was proximate cause of injuries sustained Design defect

o Every unit of product is vector for liability- dangerous propensitieso Alternative test often used with design defects= risk-utility test- defective if the

risks inherent in the design outweigh the benefits/utility Weight the likelihood of harm, gravity of harm if it occurs against cost for

preventing harm by using different design (includes loss of benefit in present design and direct costs of alternative design- production and ads)

Note: Restatement of Products Liability adopts risk-utility test for design defects (consumer expectations test- not independent standard for judging defects)

o Plaintiff must/should offer evidence of RAD- reasonable design alternative Safer Economically plausible Practical- doesn’t introduce new problems regarding product’s use

(i.e. dull carving knife) Restatement 3rd of Product Liability- says must offer evidence of RAD This almost always requires expert testimony

Honda v. Norman- Seatbelt traps woman who drives her car intoxicated into body of water.

RAD is not enough- must also show that product was unreasonably dangerous and foreseeable that it would cause harm similar to that suffered by plaintiff

o Problems with design defects Consumers don’t necessarily know about design before they use it

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You may cease to expect any better if you are a repeat user (i.e. industrial press- Knitz)

Information Defects- failure to provide appropriate information (instructions or warnings) about a product may make an otherwise safe product dangerous or defective

o Warnings Used to 1) warn of danger’ and 2) educate user about safer alternatives Subject to risk-utility analysis. Almost always economic, safer, and practical,

yet can be superfluous or counterproductive No duty exists to warn of dangers that are/should have been obvious Warning must be reasonably clear and of sufficient force and intensity to

convey the nature and extent of the risks to a reasonable person Sometimes must warn of extend of harm that can result

Danger to small amount of people- duty to warn turns on magnitude of danger

o Heeding presumption- courts assume that plaintiff would read and heed warningo Learned Intermediary Doctrine- warn doctors about downsides of medication-

assume that they will pass it on to patients Doesn’t apply if vendor markets drugs to end-users

o Liriano v. Hobart- Young immigrant hurt on meat grinder without any warning.

Affirmative defenses Early products liability decisions hesitated to make P’s contributory/comparative

negligence a defense Modern approach: whatever jurisdiction’s standard method of dealing with P’s negligence is

(typically comparative negligence), that method applies to products liability Different types of negligence by P

o Failure to discover risk- prob not negligence since P is entitled to assume that there was no defect at all

o Assumption of risk- modern trend treats this as comparative negligence- to the event that P’s decision to use the product in face of known risk was unreasonable, it will cause P’s recovery to be reduced proportionally

No long an absolute bar to recoveryo Ignoring safety precautiono Misuse: If P totally misuse the product, D will not be relieved from liability unless

misuse was so unforeseeable that either 1) the misuse couldn’t be reasonably warned or designed against or 2) misuse was found to be superseding

Third party alteration- no defense if it was foreseeable- Spadone Hughes- misuse is not affirmative defense; rather, part of P’s case

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Boyle ArticlePrecedential Arguments

1. Purposive interpretation v. formalist interpretationa. Purposive- imagine purpose behind rule and determine words in light of purposeb. Formalist: explain meaning of word by taking it out of context and without

considering purpose behind word. Then apply that definition to your facts.2. Broad v. narrow rule

a. Broad rule- take each phenomena in case and make it as abstract as you canb. Narrow- rules in specific case are not capable of deciding another case that is

marginally different3. General Manipulation of precedent

Policy Argument/Non precedential1. Judicial administrability

a. Firm rule- easily administered, citizens know the law, another standard would open floodgates to litigations, undermine the rule, confusion

b. Flexible standard- Rule X= harsh and rigid standard, would lead to unfair outcome, cannot adapt to changing times, courts’ hands would be tied, will allow justice to be delivered on case by case basis

2. Institutional competence- is particular claim suitable for court to take?a. Courts are competent institutions- issue is suitable for courts to deal with, needs to

be resolved by institution which takes outside expert advice with firm understanding of changing moral consensus of society, set up to deal with complex factual issues, to respond to changing circumstances, and be objective

b. Court are not competent- leave it to legislature, courts should apply and not make law (threaten separation of powers), legislature is body that reflects changing public opinion, can use outside experts, used to dealing with complex matters, cannot have quick fix judicial decision

3. Moral arguments

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a. Making moral decisions on formal classification of dispute (two contracting parties) v. making moral decisions based on substantive relative social power of people involved

i. Morality as form (a contract is a contract) v. morality as substance (why should K be enforceable against person with unequal bargaining power)

b. Other moral arguments; morality as freedom v. morality as security; individual v. community; content v. process; individualistic v. altruistic

4. Deterrence or social utility argumentsa. One side argues that proposed action will deter good conduct and encourage bad

behavior. Other side argues the opposite.5. Economic arguments: cost benefit analysis

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