Torts Outline.docx

Torts Professor NoahSpring 2008Torts OutlineTable of ContentsTort Liability in General7Remember: who sued whom for what and why?7Standards of Tort Liability- “blameworthiness continuum”7Vicarious Liability respondeat superior7Negligence8Modern Claim of Negligence8“Hand Formula8The Reasonable Person8Common Carriers9The Role of Custom9Purpose9Relevance9Statutes10Violation10Compliance10Statutes (Regulations) and Tort Duties10Particularizing the Standard of Care10Res ipsa loquitur = “the thing speaks for itself”10Medical Malpractice10Standard of Care10Custom11Self-regulating11Hospital Liability11Expert Testimony11Informed Consent11Special Duty Rules12Duty exists when12Special relationship12Catalyst12Voluntary rescue12Gratuitous promises12Duty does not exist when12Duties to Third Parties12Intrafamilial Duties14Municipalities14oConditions for Bringing Suit for Ministerial Acts:15Police Protection15Municipal Transport15Special Undertakings15State/Federal Entities16The Federal Tort Claims Act:16Nonphysical Harm (Emotional Harm)18Spectrum of Emotional Harm Claims18Impact Rule18Zone of Danger18Airplane Cases18Exceptions to Zone of Danger Rule18Fear of Future Harm19Foreseeable bystander claims19Causation21Types of Causation21Cause in Fact21Loss of a Chance22Definition22Standard of proof22Proportional Recovery22Joint and Severable Liability (Multiple Tortfeasors)23Multiple Tortfeasors23Proximate Cause25Defenses29Contributory Negligence (CN)29Comparative Negligence (Cf.N)29Mitigation (Doctrine of Avoidable Consequences)30Assumption of Risk31Strict Liability and Land Torts34Abnormally Dangerous Activity34Trespass/Nuisance Chart35Trespass35Nuisance36Products Liability38Warranty as Basis for Strict Liability38Res Ipsa Loquitur38Strict Liability for Defective Products38Full transition to Strict Liability38Cannot Delegate Liability39Coverage of Bystanders39Used Goods39Successor Liability39Continuity of Enterprise Exception39Non-Sellers/Lessors40Irregular Sellers40Govt Contractors40Causation40Proximate Cause Issues:40Emotional Distress40o2nd RS Sec. 402(A):40Chain of Distribution41Types of Product Defects41Manufacturing/Design Defect Claims41Comparative Negligence - recklessness41Causation Issues42Circumstantial Evidence42Design Defects42oConsumer Expectations Test (CE):42oRisk Utility Balancing Test (RU):43Market Created Consumer Expectations43Which Test to Use43Reasonable Alternative Design43Safety Instructions and Warnings Claims44Types of warnings44Recurring issues44Special issues44oAllergic reactions44oLearned intermediary rule44oKnowability44oMisrepresentation Claims45oPost-sale Duty to Warn45No Warning Required45Tied to Other Claims45Adverse Consequences of Label45Criteria for Adequacy45Cost of Warning45Products Dangerous for Another Exposed Class46Connection with Design46Prescription Drugs46Chain of Command and Physicians46Subsequent Remedial Measures46Defenses to Products Liability46Non-Foreseen Misuse47“Trigger” for SL47Divisible Injuries47Contribution Claims47Pre-Emption Defense47Occupational Injuries47Subsequent Modification47oSafe as Marketed?48Substantial Modifications and Duty to Warn48Disclaimers/Waivers49Bulk Supplier Doctrine49Hybrid Transactions: Service and Sales49Pre-emption50Conflict50Damages51Compensatory Damages51Pecuniary Damages52Nonpecuniary Damages52Damages for Loss of Enjoyment of Life52Death Damages52Punitive Damages53General Rule53Purpose53Requirements53Statutory Reforms54Vicarious Liability54Size of Award54Corporations55Workers Compensation55Questions to ask55WC Benefits55Intentional Torts/Intentional Infliction of Emotion Distress (IIED)57Battery57Definition57Boundary Crossing57Liability57Proximate Cause and Trespass57Limits57Surgery57Defense of Contributory Negligence57Insanity57Parents57Assault57Definition57Damages57Intentional Infliction of Emotional Distress (IIED)574 part test57Defamation58Other Intentional Torts58Intentional Tort Defenses58First Amendment Rights58Consent58Self Defense (of Person)58Self Help (Property Privileges)58D Lacked Intent59Private Necessity59Recklessness59Tort Liability in GeneralRemember: who sued whom for what and why?Standards of Tort Liability- “blameworthiness continuum” Absolute liability: plaintiff only needs to show that the defendant caused the injury Strict liability: ditto, plus that defendant should have known of the risk Negligence: ditto, plus that defendant failed to act reasonably Intentional tort: defendant meant to cause offensive contact, etc. Criminal offensesVicarious Liability respondeat superior Holds the employer may be held responsible for negligence of employees Employer has responsibility for conduct of employee if employee was acting within the scope of employment (rule of imputation)o Note: the employee MUST have been negligent in order to have VL Criteria:1. Employees conduct must be of the kind hired to perform (not personal endeavor)2. Employees conduct must occur substantially within the hours and ordinary spatial boundaries of employment3. Employees conduct must be motivated at least in part by purpose of serving the employers interests Employer also responsible for negligence of:o Employees not acting w/in the scope if negligent hiring/supervision This is more of a negligence issue than a VL one see Foster p. 39o Independent contractors if negligent selection if apparent agency (representation + reliance + change in position by 3rd party in reliance on the representation) Roessler p. 24 non-delegable duties (e.g., peculiar risks) Becker p. 29 Employer not responsible for:o Intentional torts committed by employees (majority rule) if outside the scope of employment (Lisa M. p. 22) Minority rule: if the injury is in response to job-related stimulus, VL may exist (Baker p. 23)o Independent contracts subject to above limitationso Negligence of a co-worker Farwell p. 39NegligenceModern Claim of Negligence Formula: Duty (to exercise ordinary care) + Breach (lower case “negligence”) + causation + damages = Liability (absent defenses) Duty: specific typeso Ordinary care/reasonable person: all people have the duty to conduct themselves as a reasonable person would under the same or similar circumstances o Special Duties: some special duties may be imposed by statute or case law, which is in addition to/in place of the duty of due (reasonable) care Foreseeability is a pre-requisiste! See Hammonstree (p. 3) or Adams (p. 40) or Braun (p. 41) or Wood (p. 53) Ordinary/common acts: the law only expects ordinary care common/simple acts do not require extraordinary care (see Greene p. 43) Constructive notice: A prima facie case of negligence may be established by circumstantial evidence that a party did not act to remedy a potentially hazardous condition of which the party had constructive notice; 3 components:1. D should have known/should have discovered the danger of the hazard(defect must have been visible/apparent)2. Regardless of the origin of the hazard, D had sufficient time to remove danger(must have existed for a period of time)3. Untaken precaution was a failure to inspect/remedyo Circumstantial evidence: must be strong enough to establish constructive notice; must have some probative value Business Practice Rule: used in certain cases where have self-service method of sale that creates a reasonably foreseeable risk of harm to invitees. D has burden of showing what steps were taken to prevent foreseeable risk of harm. No constructive notice is necessary. Merely enough that D knows of generally foreseeable risk. D has elevated standard of care“Hand Formula”: if B PL then negligent P = probability of an incident occurring L = the injury B = burden of avoidance Limitations: is a conceptual model to be used as a guide, see McCarty (p. 47)The Reasonable Person BPL formula is not generally applied; reasonable person standard used instead Question is: Would a reasonable person of ordinary prudence in Ds position do as D did under the same circumstances?o Note: Ds beliefs are irrelevant but if D is disabled (physically or suddenly/unanticipated) then probably not liable (standard is what a reasonable person with the disability would have done unconsciousness generally means not liable as well)o However: the insane and the stupid are still liable for their tortso Children: are held to the standard of what a reasonable person of that age and experience Exception: children who engaged in adult activities (driving, etc.) are held to the same standard as an adult (rationale is that other people are not able to recognize minors limitations until after the fact)o Requires ordinary care: if D engaged in lawful act and commits an unintentional injury, then D not liable for Ps injury unless P can prove that D failed to exercise due/ordinary careo Circumstances: some courts allow emergencies for sudden/unforeseen occurrences (but not all jurisdictions) Reasonable people may employ cost-benefit analysis (similar to BLP) To what extent do we apply the reasonable person standard and customize it for certain cases?HEIGHTENEDLESSENEDUnnecessary acts?Physical disabilities? (Cohen v. Petty, Holmes excerpt p. 54, R2d 283C)Common carriers? (pre-Bethel, some states - ex: CA, see Andrews)Mental disabilities? (Vaughan v. Menlove, Bashi v. Wodarz, Roberts v. Ramsbottom)Dangerous instrumentalities? (Wood v. Groh)Age? (see p. 58 7/14/21?)Superior attributes? (technically in Restatements but rarely enforced)Common Carriers Established Contractual Relationship: Facility of protection MAY impose a duty to protect when there is an established contractual relationship: patron/provider, hotel/guest, passenger/carrier, etc. (Adams p. 40) Standard of reasonable care: A common carrier is subject to a duty of reasonable care under the circumstances, NOT extraordinary care (Bethel p. 50) Standard of Utmost Care and Vigilance: A common carrier owes a duty of utmost care and vigilance towards it passengers but is NOT insurer of passengers safety.o Given heightened duty of common carrier, even small risk of serious injury to passengers may form basis of liability if that risk could be eliminated consistent with character and mode of travel and practical operation of that carriers business. Can assess common carriers actions in terms of BPL formula (Andrews p. 66) California Exception: some California courts still hold common carriers to higher standard of care English law: If judge that risk of injury very small, and weigh consequences of such injury if it were to occur-conceivable that reasonable person would have thought it right to refrain from taking steps to prevent the danger (Bolton p. 48)The Role of Custom Purpose of Custom:o Determined by industry or relevant communityo Evidence of 1 or 2 instances not permitted to serve as guide (Garthe, p. 73)o P contends that injury would not have happened if D had followed custom then introduction of industry custom is allowed as evidence if purpose of custom was to prevent Ps injuryo Feels like an expectation: custom may be used as evidence of expectation that D will conduct himself in a certain way Relevance of customo Inculpatory/offensive use: If P proves that others in Ds industry use a certain precaution and D did not, this will NOT be conclusive evidence that D was negligent. But: in most cases reasonable prudence is common prudence. (Trimarco p. 69) Custom may indicate foreseeability if failed to acto Exculpatory/defensive use: (evidence for D) A common practice is not non-liability for negligence - the jury must be satisfied with its reasonableness Thus: jury question regarding if the custom is reasonable/unreasonable Custom may indicate:o Foreseeability or lack thereofo Feasability or lack thereof Technically feasible? Ex. In Trimaco: was safety glass in existence?o Affordability or lack thereof Economic as opposed to technical feasibilityStatutes Violation of a safety statute is conclusive evidence of negligence (absent excuses) provided that:1. P is member of class that statute is designed to protecta. Exception: if observance would subject P to more imminent danger2. Harm is of the character that the statute is designed to protecta. Commonality of noncompliance is not an excuse (e.g. lots of people j-walk) Compliance with a safety statute may be some evidence of non-negligence but is not conclusive and is not evidence of due care Noncompliance due to impossibility is excuse for negligence per se Duty to follow statutes even if statutes are defective Non-safety statutes are irrelevant to tort law Statutes purposes can be interpreted broadly Statutes (Regulations) and Tort Duties When common law duty already exists:o Particularizes standard of care (negligence per se)o Provides defense (statutory immunity) When no common law duty exits:o Creates private right of action (express/implied)o Buttresses creation of common law dutyParticularizing the Standard of CareNoncompliance/nonadherence (offensive use)Compliance/adherence (defensive use)CustomSome evidence of negligenceSome evidence of non-negligenceStatute (or reg.)Conclusive (in most states): “negligence per se” (absent an excuse)Some evidence of non-negligenceRes ipsa loquitur = “the thing speaks for itself” Res ipsa formulation must have all 3:1. Accident ordinarily wouldnt occur absent someones negligence2. Defendant had exclusive control over the agency/instrumentality that caused the harm3. plaintiff didnt contribute to the accident no longer applicable but historically applied Res ipsa gives plaintiffs (depending on jurisdiction):o Permissible inference of negligence (majority rule); oro Rebuttable presumption of negligence (minority rule); oro irrebuttable presumption of negligence almost unheard of see Chin case p. 108 Res ipsa does not apply if there are multiple possible wrongdoers/places for negligence unless P is helpless (e.g., is an infant, etc.) and could not have contributed to the injuryMedical Malpractice Standard of Care: Physicians held to higher standard of care (similar to common carrier situation)o National level of custom: The standard of care is determined by custom at national level, not local level. Additionally, irrelevant as to amount of time/experience in field, still held to same standard even if resident (Sheeley p. 111)o Multiple Schools of Thought: As long as the physician following reputable school of thought, not negligence for doing that act/course of treatment in itself. Can be established by testimony that considerable number of recognized and respected professionals advocated course of treatment followed by physicians. (Gala p. 116) Custom is generally determinative/conclusive where following custom indicates D not negligento D not following custom generally indicates D is negligent (different from standard negligent claims)o EXCEPTION: If something self-evident and custom does not follow this, may still be negligent since custom may not conclusively establish standard of care (Leonard p. 99) Self-regulating: industry/group sets standards since public officials/regulatory agencies dont have knowledge to do Hospital Liability: hospitals MAY be held liable in medical malpractice foro Lack of reasonable care: failing to staff and maintain adequate facilities to provide proper care to patients (Welsh p. 116)o Vicarious liability: although many hospitals hire physicians as independent contractors to avoid liability, apparent agency may establish vicarious liability nonetheless (Roessler p. 24)o Non-delegable duties: Suggested that have non-delegable duty to provide facilities and services necessary to ordinary functioning hospital. Patients have little power to seek alternative sources of treatment, etc., while hospitals have great authority and ability to set treatment environment Expert Testimonyo Need not be the same type of practitioner/geographic area as D, so long as they have experience and/or familiarity with the relevant field and procedure (Sheeley p. 111)o May be used to “bridge the gap” between custom and common knowledge to educate jurors in determining res ipsa application to case (Lourdes Hospital p. 119) Multiple defendants: for medical malpractice, may establish RIL even if multiple Ds if P is unconscious (Ybarra p. 102) Note: concern over RIL becoming rebuttable presumption rather than permissible inferenceo Burden of proof on P, not D. P usually needs to bring in expert witnesses to prove case, and if doesnt provide expert witnesses, runs risk of losing (demonstrated by ruling in Mattke p. 118) Informed Consent: Must obtain prior to treatmento Reasonable alternatives: physician has duty to explain reasonable alternatives for treatment in order for patient to have autonomy in making own decisions (Matthies p. 123)o Material Risks: physician required to disclose material risk inherent in procedure or course of treatment (Matthies)o Role of Cust