Torts Test Outline

8/3/2019 Torts Test Outline

1/22

ABNORMALLY DANGEROUS ACTIVITIES

Strict liability for harm to person, land or chattels resulting from theactivity, even though exercised care

Defense assumed risk

Limited to the harm imposed by the activity

activity involves high degree of risk gravity of harm is likely to be great

risk cannot be eliminated by care

Seigler v. Kuhlman gasoline tanker (strict liability)

not of common usage

Rylands v. Fletcher reservoir and flooded mineshaft, nonnatural use in mining land (abn dangerous, strict liability landowner)

inappropriate to the place where carried on

value of activity to community

EMERGENCE OF STRICT TORT LIABILITY

Greenman v. Yuba Power Products

Faulty combo power tool and lathe

Manufacturer assumes liability when not inspecting products(warranty doesnt cover liability imposed)

Torts are: a way to resolve disputes between parties in a non criminal proceeding. Cases are

usually seeking financial compensation. They also can be used to seek an injunction to stop

an action. They also serve as a deterrent. They also encourage good conduct, meeting socialresponsibility.

Tort duties are non criminal, non contractual, not related to property, socially created

obligations or duties. Can be intentional or negligent.Tort-in civil law, a wrongful act for which damages can be sought

I. Intentional torts: Battery, assault, false imprisonment, intention infliction of emotionaldistress,

Can recover only if intentionally invaded the specific interest that is protected bytort.

I. Tortious intent

a. Volitional act AND

b. Either

i. For the purpose or

ii. With substantial certainty of tortious consequence

Transferred intent: actor tries to batter one person and actually causes a harmful oroffensive contact to another is still liable to actual victim

1


2/22

Intentionally causing apprehension of imminent harmful or offensive contactconstitutes an assault. If defendant intends actual contact, but only causes

apprehension, the defendant is liable for assault. The same goes if the D intends

actual contact but causes only apprehension or confinement. Then false imprisonment

INTENTIONAL TORTS

BATTERY

Statute of Limitation 1 year

Prima facie

(1) Intent to harm. Not just touch

(1) Volitional act

(2) Purpose or substantially certain

(2) Causal Link (actually caused harm)

(3) Contact (harmful or offensive, offends dignity)

Contact does not need to be w/ body, only closely identifiedw/ body

Special knowledge of a subjective matter makes itobjectively unreasonable (knowing a person is sensitive)

Does not matter if harm far exceeds intent

Battery and negligence are not mutually exclusive

Substantially certain contact with someone

(harmful touching includes putting in motion something thattouches another person) can have neg/battery

Fisher v. Carrousel Motor Hotel plate snatching (forceful

dispossession in offensive manner sufficient for battery) Unconsented medical treatment is battery

ASSULT intentional threat or attempt, coupled with apparent ability to dobodily harm to another, resulting in immediate apprehension of bodilyharm. No contact is necessary.

Prima Facie

(1) Intent

(2) Reasonable apprehension of contact (battery)

(3) Apparent ability

(4) causation (apprehension must be caused by Ds Act

(4) Immanence

Vetter v. Morgan threatening to remove girl from car(apprehension of imminent harmful contact)

look at surrounding circ. words can constitute assault if, togetherwith other acts or circumstances they put the other in reasonableapprehension of imminent harmful or offensive contact

FALSE IMPRISONMENT (protects personal autonomy and movement)

Prima Facie

2


3/22

(1) Intent to confine (including directing others to confine

(2) Unconsented confinement (actual or apparent physical barrier,threat of force, duress, false exercise of authority)(3) Awareness of confinement (Confinement is within a boundarynot of your choosing)

Remaining within set limits is not a submission to the threat unless theprisoner believed that the actor had the ability to carry his threat into effect.

Do not have to assault captor, but should attempt to see if there is a threat

forcing them to stay.

No be predicated upon persons unfounded belief that he was restrained.

Reasonable and reasonable discoverable means of escape negates a

confinement.

Person has not been confined by threats of Physical force unless by wordsor other acts the actor threatens to apply and has the apparent intention and

ability to apply force to his person. Shopkeepers privilege (Statute) if you reasonably believe that someone

stole something from your store, you can detain them for a reasonabletime and a reasonable manner to investigate the ownership of theproperty (10-15 minutes is typical).

Begins after goods are secure, and after the reasonable time forholding (arrest privilege)

Teel v. May Dep Stores credit card use and detention untilconfession (unreasonable delay in releasing or waiting to callauthorities or allow to post bond = false imprisonment)

Assumption not sufficient, need an actual or apparent physical barrieror by overpowering physical force or by submission to duress or by

taking a person into custody INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Fletcherpoints

(1) Outrageous conduct

(2) Intention for or reckless disregard of the probability of causingemotional distress

(3) Ps suffering severe or extreme emotional distress

(4) Actual and proximate causation by conduct

Eckenrode v. Life of America Insurance refused to pay,economic coercion to force into compromise (liable foremotional injury)

Chuy v. Philadelphia Eagles read in newspaper he haddisease, doctor wrongly told paper (liable b/c disregard of highprobability of emotional distress)

TRESPASS TO LAND (protects prop rights, exclusive poss. Of land.

Intentional b/c purposefully stepped on the land (does not need to

3


4/22

intend to trespass or even know the entry is wrongful, or an entry)

Mistake doctrine bear consequences of mistake

Dont need to prove damages or unreasonable invasion

Trespass must be by a thing (not light)

An actionable invasion of a possessors interest in the exclusive

possession of land is a trespass; an actionable invasion of apossessors interest in the use and enjoyment of his land is anuisance.

Nuisance 2 years damages

Trespass 6 years damages

Nuisance defendant cause a substantial, unreasonableinterference with the plaintiffs quiet use and enjoyment of realproperty. Dont need physical entry

Amphitheaters v. Portland Meadows horse track lights intodrive in movie (nuisance, not trespass)

Martin v. Reynolds Metaldust (fluoride particulates trespass)

TRESPASS TO CHATTELS AND CONVERSION

Chattels-moveable items of property-neither land nor buildings

Conversion-wrongfully using property for ones own purpose oraltering/destroying it

Intentional interference with personal property .

Proof of damages - Actual deprivation, cost of being without

Conversion: intentional interference or destruction of property such thatowner cannot use. Fair market value, b/c must be replaced

Trespass to chattels Less substantial interference to property

Conversion Interference enough to make D pay for the property(must be deprived)

IP protected if:

(1) arranged at some cost and sold as commodity

(2) formulated w/ labor and inventive genius

(3) constitute instruments of fair and effective commercialcompetition

Pearson v. Dodd copied and replaced files (no conversion b/cnot deprived)

DEFENSES (plead or lose, D has burden) CONSENT (void if coerced, duress, or incapacity to give ie minors,

intoxication)

Can be objectively manifested

Unconsented medical treatment is battery

Misrepresenting consent voids the consent

Exceeding consent voids the consent

4


5/22

Neal v Nealsex affair (not battery b/c must affect essentialnature of consented contact)

NOT a defense if deliberate, willful or with a reckless disregard forsafety. Ie sports where fight is more than consented to contact

Overall v. Kadella hockey game (disregard for safety of other

player) Consent to illegal act neither consenting party can sue for damages

(restatement) (except in statutory cases like rape)

Duty to disclose (ie sexual disease)

Restatement of Torts 2nd A consents to sexual intercourse w/ B,who knows that A is ignorant of the fact that B has a venerealdisease. B is subject to liability to A for battery.

SELF DEFENSE AND DEFENSE OF OTHERS

Reasonable:

(1) Reason for force?

(2) Force reasonable?

(3) How long necessary for reasonable force?

Property owners: (higher value on human safety than property rights)

Deadly force to protect property only when life in danger

Recovery of property in hot pursuit; shopkeepers use reasonablemeans (UCC can recover goods as long as no breach of peace)

use of force to cause death only warranted when threat topersonal safety justifies self defense)

dangerous device only if trespasser committing a felony ofviolence, or felony punishable by death, or tres. Is endangeringhuman life.

Notes from book on self defenseb. Self Defense and defense of others

D has right to do what seems reasonable necessary to protect himself against threatenedattack, whether it is real or not, provided reasonable belief that the danger exists)

Self defense v retaliation SD can be asserted only to prevent or resist an attack,not retaliate

only use that amount of force that he reasonable believes is necessary to prevent

the attack. If he uses excessive force he is liable for the excess but does not lose

the privilege altogether.

Can use force only long enough that it is necessary to defend yourself

Deadly Force: only if he reasonable believes that doing so is necessary to resist

an attack of deadly force. Even if faced with deadly force, person being attacked

cannot use more force than he reasonable believes is necessary to prevent the

attack.

Retreat or stand and fight? Most courts allow defender to stand and fight, as long

as defender is using non deadly force. Deadly force may not be used if a

completely safe retreat is available, but one defending himself against deadly

5


6/22

force may stand and kill is he has any reasonable doubt as to the safety of retreat.

Even when a safe retreat is available a defender threatened with DF need not flee

from his home or place of business prior to using deadly force.

SD can be asserted as a privilege for conduct that would otherwise be actionable

battery, assault, false imprisonment, intentional infliction of emotional distress,trespass to land or chattels, or conversion.

SD can be used to prevent a battery, assault, false imprisonment, negligently

caused bodily injury, or even bodily injury innocently caused or threatened by

the person against whom the privilege is asserted.

Can use force to protect others from attack

Most courts only require that the person exercising the privilege act on a

reasonable belief that force is necessary.

Sports By entering field of play, a player manifests consent to many contacts. But not all

imaginable contacts.

If contact is accidental, it is governed by law of negligence.

If intentional, is it within the boundaries of the implied consent.

Intentional contact that violates a rule of game designed to protect players safety

will generally be beyond consent.

Fights

in a boxing match, consent.

Consensual fighting in anger, sometimes defense ok, sometimes the fight breaksthe law by being a breach of the peace, so the crime voids the consent defense.

Either party can recover.

Uncontested attack can be met with self-defense.

NECESSITY

Can use private property in time of necessity but liable for damage

Can run through anothers land to escape

NEGLIGENCE AND STANDARD OF CARE Cause of action: must prove all 5 (judge decides (1) jury all others)

(1) Duty to conform to standard

(2) Breach (didnt exercise reasonable care, negligence)

(1) Negligence per se

(2) Rules of law

(3) Proof of negligence

6


7/22

(1) Direct evidence

(2) Circumstantial evidence

(3) Res ipsa

(3) Cause in fact (causal link)

(4) Legal causation (limits on liability)

(5) Damages Negligence if not exercising reasonable care under all the

circumstances

HAND FORMULA B


8/22

VIOLATION OF STATUTE (does not prove neg. must also be contributory

Negligence per se (violation of statute)

(1) whether injured person falls w/in class of people intended toprotect

(2) whether harm complained of was harm intended to guardagainst

Exception when more dangerous to follow statute

Telda v. Ellman walking down wrong side of road (statute fixesno definite standard of care) more dangerous on correct side

Gorris v. Scott animals on ship must be in pens w/ holdsstatute, sheep washed over but statute not meant to protectthat, meant for disease trans.

Potts v. Fidelity Fruit banana spider bite (statute not meant toprotect worker)

Zerby v. Warren death by glue sale (statute meant to protectchildren, from this exact harm) Cont. neg. not a def.

RES IPSA LOQUITUR (speaks for itself, circumstantial) gets u to jury trial

Requirements:

(1) accident must be of kind that ordinarily does not occur inabsence of negligence

(2) caused by agency or instrumentality w/in exclusive control of D

(3) must not be due to voluntary action of P

Colmenares Vivas v. Sun Alliance Insurance Co escalator halt

and fall (1) yes, escalators dont do that

(2) yes, applies even if D shares responsibility

(3) yes, no evidence P caused it

CAUSE IN FACT

BUT FOR TEST

Event would not have happened BUT FOR the conduct

P must prove it is more probable than not that substandard conductwas the cause of the harm

Proximate cause (1) must be cause in fact

(2) foreseeability

tortious conduct must be a factual cause of physical harm.(Bottle might have been thrown no matter what)

Marek v. Southern Enterprises Inc fireworks in theater

8


9/22

(admission confers a duty to exercise ordinary care for patrons

BUT FOR LIMITED PURPOSE SUBSTITUTES

SUBATANTIAL FACTOR TEST (converging fires)

Two causes bring event, either alone could have done it (but fordoesnt work here)

Basko v Sterling Drug Inc drug side effects from differentmanufacturers (entitled to recover if either drug could havecaused the ailment and one of them was a substantial factor)

ALTERNATIVE LIABILITY

Conduct of two actors is tortious, harm caused by one, uncertaintywho caused. Need to prove that they were neg. and a causal linkbetween neg. and harm. They are all responsible. D has to provewasnt him.

All D must be in court, all must be negligent, and must be cause infact link by one of them (burden shifts to D to prove who did it)

Pennfield Corp v. Meadow Valley Electric Inc ventilation failed

(alt liability n/a b/c cant prove who did it, doesnt apply whenboth actors are not tortious)

CONCERTED ACTION (when you agree to act in concert, responsiblefor each others actions) can infer from parallel conduct

Each conspirator is liable for the act

Joint and separate liable. Can sue anyone for full damages. Canhold innocent party liable if you dont know who is resp. (courtsdont like big numbers for CA)

Bichler v. Eli Lilly and Co DES daughter, evidence ofconscious parallelism (wrongfully acted in concert b/c paralleledin not tested)

MARKET SHARE (most states reject)

If industry conduct neg. Permits apportionment of liability among D-manufacturers based on relevant market share. Cant prove who

LOST OPPORTUNITY DOCTRINE (med mal)

Grant v. American National Red Cross blood transfusioninfection (Lost opp n/a b/c screening would not offer more than30% chance of detecting HCV)1. If theres a high likelihood (>50%) that something would havebeen successful if due care & diligence had taken place, then you

should be able to recover fully.

2. If likelihood


10/22

APPORTIONING HARM

CAUSED BY MULTIPLE TORTFEASORS

Holtz:

(1) when injury indivisible even though caused by successive

accidents, P claim against tortfeasors w/o burden of proving theextent of damages caused by each

(2) damages not apportioned on basis of fault, D jointly andseverally liable for harms they caused or not

(burden of proof on D to escape)

CAUSED BY A COMBINATION OF TORTIOUS CONDUCT AND OTHERCAUSES

Eggshell skull rule tortfeasor takes victim as found

Damages must reduced to account for likelihood of injuryotherwise

Follet v. Jones car accident death but also had terminalcancer (proof as to decedents shortened life span could besupplied) D responsible for diff. in hastened death

damages must be adjusted downward for probability thatsomething other than tortious misconduct would trigger theinjury

Blatz v. Allina Health System bran damage b/c EMS did notarrive on the scene due to negligence (liable for damagesdirectly caused by negligence, not accident)

If cant separate damages, then liable for all

LEGAL CAUSE UNFORESEEABLE CONSEQUENCES

Unforeseeable extent of harm D responsible

Unforeseeable mechanism of harm (as long as kind of harm is for.) Dresponsible

Unforeseeable type of harm D responsible (Polemis) direct result, notresponsible (Wagon Mound) unforeseeable

The Glendola ship crashed into another that was carryinggasoline, crashed later due to original incident (liable for all thatis direct consequence of accident

Wagon Mound I oil spill from tanker, caught fire (not liable for

unforeseeable consequences) more com. rule today fors/unfo Palsgraf v. Long Island R Co railroad platform fireworks drop.

lady hit by scales aft. Expl. (negligence only to risk reasonablyperceived in relation) no duty

Foreseeable plaintiffsa) RULE: If it is not reasonably foreseeable that damages willoccur, then there is no duty

b) For a negligence action, P must show that there was a breach of

10


11/22

duty owed to her, not merely a general wrong to someone else

c) DISSENT Due care seeks to protect society from

unnecessary danger, not just protect one person. Proximate cause isreally just practical politics, the courts want to make things fair.

d) Unforeseeable Ps can win once in a while, but theres a higher

proof level Edwards v. Honeywell Inc firefighter fell through floor and

died, alarm company acted slowly (plaintiff not foreseeableenough)

Hunley v. Dupont Automotive guy crazy after paint spill (nolegal cause when physical harm is unforeseeable)

Meyering v. General Motors kids threw concrete off bridge,busted sunroof (liability when negligence likely to result in theharm experienced) criminal act is not by very naturesuperseding cause. D may be liable if conduct sub fact. didntneed to anticipate rock, but that object could fall from above

INTERVENING SUPERCEDING ACTSD1 neg act------(later in time) D2 neg/intentional. act---------Injury.

(intervening cause of d2 negligence/intentional cuts off d1 liability. Called

superseding

Unless d2 act is foreseeable, and d1s act increased the chance of d2s act.

RULES OF THUMB

Subsequent medical injuries, liable for harm during treatment

Rescue doct. If you create danger, liable for harm to rescuer

EXPLICITLY POLICY BASED LIMITS

DES Daughters policy LC line of no liability beyond daughter

DUTY ISSUE (default general neg. duty)

Heaven v. Pender

if engaged in an activity that places others at risk of harmhave a duty to use reasonable care to minimize the risk

By engaging in an activity with the potential for harm toothers, D has created a relationship with those the activityforeseeably endangers

LIMITED DUTIES

LD PRIVITY

Insulates manufacturers from product liability if bought from aretailer

MacPherson abolished privity for products liability

Humanitarian exception when work is:

(1) dangerously defective

(2) inherently dangerous

(3) imminently dangerous

11


12/22

Bush v Seco Electric Co bad conveyor belt by contractor(ongoing duty of care for contractors giving defective work)

LD DUTY TO ACT

No duty to act unless entered into conduct w/ someone

Nonfeasance passive inaction

Misfeasance active misconduct a failure to take positive steps tobenefit others or protect from harm created by wrongful act of the D

Volunteer exception (Good Samaritan exception) duty of care tonot make situation worse, prevent others from rescue.

Foreseeability of injury does not create duty to act

Exceptions:

(1) Prior conduct warn against danger created

(2) Control instrumentality failure to control foreseeablydangerous instrument (like criminals)

(3) Undertaking law enforcement duty to warn againstdanger if voluntarily assumed that duty to someone

Relationship exceptions (control conduct of another):

Parent and minor child

Master and servant

Possessor of land and licensee

Person in charge of another with dangerous propensities

(liable if guide, increased duty from special relationship,rendering service)

LD MENTAL AND EMOTIONAL HARM If

Defendant liable for an intentional tort will usually be required tocompensate for emotional suffering, even in absence of physical injury.

When D has caused bodily injury, emotional pain is an element ofdamages , parasitic claim.

Can recover for int. IIED not NIED

Exceptions:

(1) Impact (need phys. Impact/injury to rec for emot. harm

(2) Zone of danger

(3) Bystander (emotional distress must be foreseeable)

Foreseeability test emotional injuries reasonably foreseeable

(1) Whether P located near scene

(2) Whether shock resulted from direct emotional impact

upon P from observance of accident (3) Whether P and victim closely related

Physical manifestation requirement need real injury to recover

Niederman v BrodskyCourt abandons requirement of physicalimpact as a precondition to recover for damages proximately causedby the tort in only those cases where Plaintiff was in personal danger

(zone of danger) of physical impact because of negligence and where

plaintiff actually did fear the physical impact.

12


13/22

Sinn v. Burd saw daughter killed by car from porch (must seeif injuries are reasonably foreseeable, zone of danger toorestrictive) most states reject

LD ECONOMIC LOSS W/O PHYSICAL INJURY

Testbank ship crash spilling toxins into water and air

Recovery denied for pure economic losses

1. State of LA. Ex Rel. Guste v. M/V Testbank Two ships collided and

spill toxic chemicals. shut down all non-official business over. Most of theaffected businesspeople sued the shipping companies. Those with pure

economic loss denied recover.

a) MAJORITY OPINION

(1) RULE: P cannot recover for economic loss if that loss

resulted from damage to property in which he had noproprietary interest

(a) The physical consequences of negligence are

usually predicable within a limited range, but thefar-flung repercussions maybe open-ended

(b) D is not liable to another simply because the

injured person had a K the D did not know of

(2) Economic losses not recoverable under the RULE maybe the subject of first-party or third-party insurance.

(3) The Majority thinks that this is a duty issue

b) DISSENTING OPINION (Adopted by some courts, notablyNJ)

(1) Fairness Test:

(a) The damage must be proximately caused by the

accident(b) The damage must be foreseeable,

(i) confining the scope of the claims to

those arising from activities in process at thetime of the accident, or

(ii) to claims that can be proven with

certainty(c) P must assertparticulardamage, not just any

general damage

(2) This rule is more modern and more fair because itimposes the cost of damages on those who caused the

harm, is consistent with modern principles,(3) This was maritime law, so its not entirely controlling,but its VERY PERSUASIVE

Moransais faulty house inspection (economic loss rule doesnot bar against professionals)

Intervention by tort on contract breach when:

(1) tort independent of breach

13


14/22

(2) economic loss rule only applies where theconsiderations are substantially identical to thoseunderlying product liability analysis

(3) well established causes of action in tort are exemptedfrom rule

(4) professional malpractice (stnd. Of their prof) LD OWNERS AND OCCUPIERS OF LAND

Possessor of land:

(1) person who is in occupation of the land w/ intent tocontrol it

(2) person who has been in occupation of land with intent tocontrol it, if no other person has subsequently occupied it w/intent to control it

(3) person who is entitled to immediate occupation of theland, if no other person is in possession under (1) and (2)

Leased land occupied by lessee not owner

INJURIES OFF LAND

(no duty for natural conditions, some states changing it)

INJURIES ON LAND

Trespasser enters/stays w/o any right or privilege to do so- occupier owes no duty to a trespasser except to refrainfrom injuring him by willful or wanton conduct- exceptions: 1) injured children; 2) occupier knowsfrequent/prolonged trespassing occurs (implied invitation)

Licensee occupiers consent (guests)- reasonable care: 1) in conduct of activities on the premise if

the danger is not apparent to the licensee; 2) to warnlicensee of dangerous conditions that occupier knows about

Invitee errand of potential economic benefit to the occupieror under circumstances implying a representation by theoccupier that reasonable care has been used to make theplace suitably safe- duty of reasonable care with respect to activities and withrespect to conditions about which the occupier should haveknown- (Highest level of care)

Some states no liability for open and obvious risks

LIABILITY TO CHILDREN a possessor of land is subject to liability for harm to children

trespassing caused by an artificial condition if

(1) reason to know that children are likely to trespass

(2) reason to know and which he realizes or shouldrealize will involve an unreasonable risk to children

(3) the children b/c of their youth do not discover thecondition or realize the risk involved in intermeddling with

14


15/22

it or in coming w/in the area made dangerous by it(DUTY, ^^^)

(4) Burden less than risk (BREACH, Hand formula)

(5) the possessor fails to exercise reasonable care toeliminate the danger or otherwise to protect the children

(BREACH) DUTY TO PROTECT AGAINST 3rd PARTY TORTS AND CLAIMS

If possible someone might commit tort b/c of you, reasonable steps toprevent it

Stagl v Delta Airlines old lady knocked over by luggage (dutyto maintain premises from reasonably foreseeable injuries) Delta argues that 3rd party action was proximate cause.

Superseding event. no merit. Intervenor will not break the chain ofcausation where they are a normal foreseeable consequence of the

situation created by the defendants negligence. (

McCarthy v Olin Corp death bullets (not liable for criminal

misuse, no special relationship b/t manufacturer and murderer)bullets were meant to kill people, not defective. Leg can restrictclasses of dang. things

Braun v. Soldier of Fortune (unreasonable risk when openlysolicits criminal activity, hand formula) general duty. Criminal actwas foreseeable consequence of the publishing

RISK UTILITY TEST Risk is unreasonable if it outweighs the utility

of the negligent conduct. If burden of adequate precautions is lessthan the probability of harm * by the gravity of the injury that might

result from unmodified conduct.

MEDICAL MALPRACTICE PROFESSIONAL STANDARD OF CARE

Duty for professional:

Knowledge skill ordinarily possessed in standard

practice

Honest good faith judgment for benefit of client

Reasonable care and diligence

Expert testimony:

(1) Court must decide if expert testimony will assist the trier of fact Court must determine whether the witness is properly qualified

Expert in another field testimony ok if: (plaintiff must establish)

testifying expert is so familiar with the standard of a

care applicable to the Ds specialty to render

testimony as well informed as if he were practicing the

same specialty; or

15


16/22

Whether the standard of care for the condition in

question is substantially identical for both specialties

INFORMED CONSENT

Duty: all significant medical info that is material to an intelligent decision

(not EVERY risk) Risk must materialize or no legal consequence

P must show w/ proper info a reas. Per. wouldnt have had procedure

Procedure w/o consent that can be harmful can be battery

more common, no misrepresentation but the P would nothave consented if the physician had fully disclosed the risks.These are grounded in negligence rather than battery

DAMAGES

Nominal P wins intentional tort case without proving damages Trivial sumfor cause of action when not entitled to compensatory

Compensatory Pecuniary medical expenses, future earnings, lost income

Non pecuniary consortium (husband/wife), pain and suffering

Reducing awards

(1) grant new trial on all issues

(2) grant new trial on damages only

(3) order a remittitur, new trial unless P agrees to remit part ofaward

Cannot interfere with award unless verdict shocks theconscience and suggests passion prejudice or corruption on

party of jury Cognitive awareness necessary for recovery for loss of

enjoyment of life

Compensatory damages for physical harms to property

Invasion of land: recovery is any diminution in the lands valuecaused by invasion. Plus value of Ps loss of use of the land.

When chattel has been converted or destroyed: entirevalue at the time and place of tort

Lost use of chattel: value of the use of which the plaintiff hasbeen deprived

COLLATERAL BENEFITS

Collateral source rule collateral benefits do not subtract fromdamages

(not okay to recover more than full damages solely b/cinsurance coverage) no double rec.

PUNITIVE DAMAGES

Guideposts:

16


17/22

(1) Reprehensibility (neg. plus willful or wanton)

(2) Ratio b/t punitive and compensatory

(3) Other state penalties for same conduct

Single digit ratios preferred

State Farm v Campbell underpaying to meet financial limits

Due Process forbids a state from awarding punitive damages forpeople not involved in litigation

CAPS

Statutory

WRONGUL DEATH AND SURVIVAL ACTIONS

Wrongful death damages (Heirs only defined by statute):

(1) Pecuniary

Loss of economic support, expenses

(2) Non pecuniary

Loss of society, companionship (1/2 the states)

Consortium (husband/wife)

Mental anguish

Survival Claims (damages before death):

(1) pain and suffering

(2) medical expenses

(3) lost income until death

(4) lost earning for work-life expectancy

McDavid v US pain and suffering of decedent (from time ofinjury to death)

NOTES:

Punative subject to tax. Compens. No.

Interest starts at judgment

Struct. Settlements: monthly payments to P

VICARIOUS LIABILITY

Respondeat superior held vicariously liable for damages done whenrelationship holds responsible (employer employee relationship)

Scope of employment:

(1) time and space limits authorized by the employment

(2) purpose to serve the employer

(3) act that employee was hired to perform Ira Bushey v US drunk seaman turned wheels flooded dock

(not unforeseeable, liable for risks in public)

NEGLIGENCE OF INDEPENDENT CONTRACTORS

Employers typically not responsible for independent contractors

Nondelegable duties doctrine:

(1) affirmative duties that are imposed on the employer by statute,contract, franchise, charter, or common law

17


18/22

(2) inherently dangerous work

Pusey v Bator hired security guard (inherently dangerouswork)

AFFIRMATIVE DEFENSES based on Ps conduct

Contributory or comparative negligence, avoidable consequences,mitigation of damages, imputed (responsible for someone elses) fault,and assumption of risk

AD CONTRIBUTORY and COMPARATIVE NEGLIGENCE

Contributory bars all recovery (4 states and DC)

Comparative negligence reduces damages recoverable. P and Dshare losses

Comp Neg relationship b/t P and D

Ps conduct can go past trigger point, absolving D

Comp Fault relationship b/t D and D (replace joint and several)

Comp. negligence fails: P has 10% fault and 10,000 damage. D has90% fault. and 1 mil. P gets 9,000, and D gets 100,000. This seems

unfair on its face. Leads to MODIFIED comp. neg. ie 50% rule.

Defenses to comparative negligence: P can show D acted:

Willful & wanton

Conscious disregard

Last clear chance (opportunity to avoid, mostly abolished bymodified comparative)

Aggregate fault group Ds

Hoffman v Jones car accident death, both drivers neg

Preclusion doctrine an action by a P whose injury stems

form the combination of Ds negligent conduct and the Psillegal or highly immoral conduct gets thrown out

negligence must be clear in intentional tort for defense)

AD FAILURE TO AVOID CONSEQUENCES; MITIGATE DAMAGES

Comparative (or contributory) negligence pre accident conduct by thevictim that was a cause of the accident and hence of all of the injuriesor damages

Failure to avoid consequences pre accident conduct by the victimthat did not cause the accident but that was a cause of some (or all) ofthe injuries of damages

Failure to mitigate damages post accident conduct by the victim thatwas a cause of some of the injuries or damages

Dare v Sobule motorcycle death from neg car turn no helmet(no statute requiring helmet, not comp neg)

Hutchins v Schwartz car crash no seatbelt no statute (notnegligence per se but reasonable person would wear seatbelt,foreseeable)

18


19/22

AD ASSUMPTION OF RISK Express release (has survived comparative negligence)

Against public policy?

Voluntary?

Words cover the situation?

Implied secondary . no longer exists in most jurisdictions. ( traditionally a

complete bar to recovery). can fold the facts into comparative negligence

doctrine argument)

Knowing and appreciation of the danger

Voluntary decision to encounter that danger

Implied primary (really a limited duty doctrine) (implied risks of the sport.

Ski case. Risks foreseeable.

Holzer v Dakota Speedway wheel detached and injured,signed release pre accident (exculpatory clause releasesliability)

AD IMPUTED CONTRIBUTORY FAULT

Responsible for actions of someone else

Motor vehicle exception

relationship to driver must be high, control cant be far removed

White v Lunder boating accident (causal negligence ofclaiming spouse greater than denied recovery)

AD STATUTES OF LIMITATIONS

Single act starts immediately

Continuous tort starts last injury

Jolly v Eli Lilly DES daughter did not file on time after shefound out

Feltmeier v Feltmeier abusive relationship, sues for IED(continuous tort)

AD STATUTES OF REPOSE

Complete bar after a certain time, given to certain sectors ie medical field.

AD PREEMPTION

Vertical preemption: federal preemption of state tort law

Horizontal preemption: federal statute trumps another federal remedy. Orstate statute trumps another state remedy.

Federal preemption: govt has brought forth under supremacy cause and

14th amend.

Express preemption (congress addressing federal law as not only to be

19


20/22

minimum but a maximum to prempt state law)

Express non preemption (aka savings clause, if one thing preempted, reststill retained)

Implied conflicts

Cant comply w/ state and fed

Obstacle PE: state law would stand in was of full accomplishmentof fed objectives

Geier v Honda car accident w/o side airbags (fed statutepreempt state tort law)

AD IMMUNITIES

STATE & GOVT

Hicks v State sovereign immunity

FED GOVT

US v Gaubert suing Govt for losing banks money (regulatorsactions were directly related to public policy considerations)

Policy based decisions: immune

Operational decisions: not immune

JUDICIALLY CREATED

Feres military cant sue govt for negligence in duty

US v Johnson coast guard helicopter crash while on search

Was plaintiff engaged in activities that fell w/in the scope ofthe plaintiffs military employment? If no, no Feres bar

Boyle negligent helicopter design

Contractor defense govt specs, complies w/ specs,discloses hazards

PUBLIC DUTY A special rule invoked to absolve governmental Ds fromliability even when general duty principles would seem to make thepotentially liable

Riss v City of NY stalker and police ignored

No public duty to provide police prot. To particular person

RULE: If the government has voluntarily assumed a duty, andthe failure to perform that duty puts a P in more danger than

had that duty not been assumed, probably will be liabilityFederal tort claims act

1. District courts have jurisdiction of civil actions on claims against US

2. Tort claim must be presented within two years after claim accrues

3. US liable for compensatory damages only

4. Must file claim against appropriate federal agency first, if denied, then claimagainst US. Must then file suit within 6 months after they deny it. Or can file

within 6 months if they sit on it.

5. No jury

20


21/22

6. Liable to the same extent as a private individual would be liable in that state

Exceptionsa. Discretionary functions

b. No claims for intentional torts. except: law enforcement can be for assault, false

imprisonment etc.

c. No claim for combatant activities of military during war.

d. No claims arising in foreign country

JOINT AND SEVERAL LIABILITY

Contribution eliminates unfairness of J&S liability except when other Dis a turnip or phantom

Kaeo v Davis drunk guy driving on shoddy road

Could sue city b/c limits to discretionary function cantmake death traps)Notes: Before under joint and several: plaintiff could choose a tortfeasor, and recovercompletely. The tortfeasor, after satisfying the entire judgment could recover half of the

amount from the other tortfeasor. (remember is P was even 1% neg. in some cases he

couldnt recover at all) (most jurisdictions that have joint and several liability havecontribution fault. Only pay what you are liable for. Unless the other tortfeasor is

insolvent or a phantom, than D1 still has to pay all of it.)

COMPARATIVE RESPONSIBILITY

A. Contribution and Indemnity1. Brochner v. Western Insurance Brochner performed a lot of

craniotomies. Most were unnecessary. Finally, he performed on a patient,

and she was injured. She sued the hospital, then settled with P and thehospital separately. The hospital and D sued P in an indemnity action.

The court held that the only way a join tortfeasor can recover from

another is for contribution.

a) RULE: Join tortfeasors are subject to contribution among

themselves based on their relative degree of fault.(1) Each tortfeasor pays only proportionate amounts related

to fault

b) Under old indemnity rules, a single tortfeasor could unfairlypay all or a disproportionate share of damage suffered by an

injured party as a result of negligent conduct caused by two or

more partiesc) Modern rules would have each D pay a proportionate amount

to their fault

d) HOWEVER: Indemnity is preserved (in many states) where:(1) D is liable purely vicariously (respondeat superior,

21


22/22

Employer can sue employee for indemnification)

(2) When an innocent retailer is liable for a manufacturers

defective product(3) Where there is a K for indemnity

Otherwise, its jettisoned for comparative fault contribution

EMPLOYEE/EMPLOYER

premises defect (invitee on property)

Defendant should not get benefit of workers comp, alldamages put on D since double recovery otherwise (workerscomp)

Varela v. American Petrofina P got hurt while working on a piece of

equipment owned by D. He was employed by 3rd party. The court held that anemployers negligence may not be considered in a 3rd party action brought

by an employee covered by workers comp.

Workers Compensation Act Employees cannot sue their employer in

tort when covered by the WCA. However, the employee may still recoverfrom a third party!

RULE: Where the Ds negligence is equal to or greater than that of the

employee, the employee shall recover damages diminished only in

proportion to the amount of the negligence attributed to the employee

So in this case, since the WCA barred a course of action against Psemployer, D was barred from seeking contribution or measurement of

liability from Ps employer

RULE: In the event of recovery, the negligence 3rd party is barred from

seeking contribution or indemnity from the employer, and the

compensation carrier is entitled to subrogation

MED MAL DEBATE

DOC ARGUMENTS

Lawyers w/o med training should 2nd guess performance of Dr

Humans make mistakes, overworked

Juries overly emotional, not competent

Cases ruin reputation, even frivolous

TRIAL LAWYERS

Juries can judge issues of informed consent

Insurance rates not tied to med mal investment cycles REFORM

Caps, restrict informed consent of patients, health panels/courts beforetrials, curbs on attorneys fees, Im sorry laws (cant use admission ofmalpractice against Dr)

22

Torts Test Outline

Documents