TORTS OUTLINE[2]

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NOTE TO SELF: INCLUDE POLICY IN OUTLINEA. WHAT IS TORT LAW?

Torts are wrongdoing. Torts are wrongs recognized by law as groundsfor a lawsuit.

Much of the law of torts is concerned with three questionso What conduct counts as tortuous or wrongful?

o Did the conduct cause the kind of harm the law will recognize?

o What defenses can be raised against liability if the defendant

has committed a tort?

Particular aims of tort law are usually erected under one of two largesystems of thought

o Morality or corrective justice

it attempts to hold defendants liable for harms they

wrongfully caused and no others. Liability is imposed only when it is right to do so.

In most instances, the conduct adjudges as wrong can beviewed as morally faulty conduct: it is intentionalmisconduct or at least unreasonably risky conduct likelyto cause harm to others

o Social utility or policy

the dominant concern is not justice to the individual; it is toprovide a system of rules that, overall works toward thegood of society

B. WHAT ARE THE SEVEN INTENTIONAL TORTS?I. Battery

II. AssaultIII. False ImprisonmentIV. Trespass to LandV. Trespass to Chattels

VI. Conversion

VII. Intentional Infliction of Emotional Distress

I. BATTERYa) Battery is the intentional infliction of a harmful or offensive bodily

contacto An actor commits a battery if:

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he acts intending to cause a harmful or offensive contactwith the person of the other or a third person, or animminent apprehension of such a contact, and

a harmful or offensive contact with the person of the

other directly or indirectly results.b) Indirect Contacto It is not necessary that the defendant touch the plaintiff with his

own body.o It is sufficient if he causes the contact indirectly (e.g., by

ordering his dog to attack the plaintiff)c) Offensive Contact

o Contact, which is offensive to a reasonable sense of personal

dignity, is offensive contact.o In determining whether a particular contact is offensive,

the standard is not whether the particular plaintiff wasoffended,

but whether an ordinary person not unduly sensitive asto his dignity would have been offended.

Defendant is liable for those relatively trivial contactswhich are merely offensive and insulting

d) Intento Character of actors intentions

o In order that an act may be done with the intention of

bringing about a harmful or offensive contact, the act must be done for the purpose of causing

the contact or with knowledge on the part of the actor that

such a contact is substantially certain to beproduced. (Garrett v. Dailey)

e) Transferred Intento Transferred intent can take two forms:

o a tortfeasor intends a tort on one person, but commits

a tort on another; ando a tortfeasor intends one tort, but accomplishes another

When one person intends an assault, then, ifbodily injury results to someone other than theperson whom the actor intended to put inapprehension of harm, it is a battery actionableby the injured person. (Brown v. Martinez).

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o Transferred intent applies only to the following torts

o Battery

o Assault

o False Imprisonment

o Trespass to Lando Trespass to Chattels

f. Insane Persons Intent

The great weight of authority is that an insane person is civilly liablefor his torts

o This liability has been based on a number of grounds: where one of two innocent persons must suffer a loss, it

should be borne by the one who occasioned it

public policy requires the enforcement of such liability inorder that relatives of the insane person shall be led torestrain him

tort-feasors shall not simulate or pretend insanity todefend their wrongful acts causing damages to others

if the insane person is not found liable there would be no

redress for injuries, and we might have the anomaly of aninsane person having abundant wealth depriving anotherof his rights without compensation

It is not necessary for a defendants reasons and motives for formingintent to be rational in order for him to have the intent to invade theinterest of another.

o In Polmatier v. Russ, the trial court found that the defendant

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CHILD LIABILITY

In most states children may be liable for torts they commit as long as theinjured plaintiff can prove the required elements, including intent.

In most states a child cannot escape tort liability simply because of young age.

In some states, however, particularly young children are conclusivelypresumed to be incapable of harmful intent.

A few states go even further and hold that children under a particular age(again, often seven) are conclusively presumed to be incapable of committingany tort at all.

A lawsuit is possible against a parent for the torts of their minor children, onlyif a statue authorizes such a suit in which case the statutory requirements forrecovery must be met - or if the parents are themselves at fault in some way.

The common law rule is that parents are not vicariously liable for the torts oftheir children


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could not form a rational choice, it did find that he could makea schizophrenic or crazy choice.

o Polmatierstates the usual American view that the defendants

insanity is not, in itself, an excuse from tort liability.o

The question is whether he had the requisite intent, if he did,the fact that it arose from insanity is not relevant.o Even though insanity is not a defense to an intentional tort, it is

a characteristic, like infancy, that may make it more difficult toprove the element of battery.

g. Dual intent

that being an intent to contact and an intent that the contact be harmfulor offensive.

the defendant must have appreciated the offensiveness of his/hercontact

More recently, some courts around the nation have abandoned this dual

intent requirement in an intentional tort setting, and have required only

that the tortfeasor intend a contact with another that results in a

harmful or offensive touching

II. ASSAULTa) Assault is the intentional causing of an apprehension of imminent

harmful or offensive contact. An assault constitutes a touching of themind, if not of the body.

A person commits an assault if he actso Intending to cause either harmful or offensive contact with

another person or apprehension of such contact,o and that creates in that persons mind a reasonable

apprehension of an imminent battery

Words alone do not make the actor liable for assault unless togetherwith other acts or circumstances they put the other in reasonableapprehension of imminent contact.

Some commentators, however, as well as the Second Restatement,

suggest that there may be cases where the surrounding circumstancesare such that words by themselves, without an overt act, are sufficientto constitute an assault

b) What does apprehension mean?

Apprehension in this context does not mean fearo but rather an awareness of an imminent touching that

would be battery if completed.

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It is sufficient that the plaintiff believes that if she does not takeaction, a harmful or offensive contact will occur in the nearfuture.

The plaintiffs right to recover is not negated by the fact that

she is confident of her own ability to take action to avoid thecontact.c) What does imminent mean?

Imminent does not mean immediate, in the sense ofinstantaneous contact. It means rather that there will be nosignificant delay.

Threats of future harm cannot constitute assaults. The courts and commentators have taken a relatively strict view

requiring a short periodbetween the making of the threat and thetime when, according to the threat, the harm will take place

III. FALSE IMPRISONMENTa) Elements of false imprisonment are:

a confinement

an intent to confine within boundaries fixed by the actor (withoutthe victims consent

o Confinement implies limited range of movement and it is

not enough to exclude the plaintiff from some place such asa bar or restaurant.

the victim is aware of the confinement or harmed by itb) Intent

The plaintiff must show that the defendant intended to confinehim.

He can meet this burden by showing that the defendant knew withsubstantial certainty that the confinement would result

c) Nature of confinement

By physical barrier or force

By threats or duress

o Threats or demands when by implicit or explicit threat orduress, facts are critical

The central issue is whether the facts showconfinement

o Assertion of authority submission to an officers assertion

of arrest under colorable legal authority

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o Duress of goods grabbing ones property and refusing to

return it, leading a person around b/c/ possession ofproperty limits range of motion of the plaintiff.

IV. TRESPASS TO LANDa) Trespass to land usually requires an intentional entry upon land ofanother

can be accomplished by personal entry

or by causing an object to enter the lando as by firing a bullet or throwing a stone or driving a car onto

the landb) The right of the landowner extends downward beneath the surface and

to at least a reasonable height above groundc) In one situation, intentional entry is not required

This occurs when one unintentionally enters, as where a cargoes out of control without fault, and then refuses to leave

The refusal to leave is now considered a trespassd) Intent

intent includes either purpose to enter or substantial certaintythat entry will take place

the object of the intent need not to be to trespass however. itis enough that the defendant intended to enter the land

he does not escape liability merely because he reasonably

believes he is on his own land or because he reasonablybelieves he has a right to be there

e) Damages without harm

in trespassory torts, the defendant is liable for damages even ifno physical or economic harm is done.

f) Punitive damages without harm

Similarly, punitive damages may be awarded if the trespass isdeliberate or malicious.

g) Extended liability

the trespasser is liable for damages inflicted even if he neverintended harm and could not foresee it

h) Trespass as interference with possession

Trespass is theoretically an invasion of ones right to possession

Usually the possessor is also the owner

Others who are in possession rightfully, as in under a lease, hasa right to sue for trespass

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This particular claim cannot be made for the protection of non-possessory interests such as those in easements or right of ways.

V. TRESPASS TO CHATTELS

a) Trespass to chattels involves some intermeddling with a chattelof another person, and at times even dispossession, but somethingshort of a conversion.

b) Liability is imposed only if the possessor of the chattel suffersdispossession or lost use, or if the chattel or the possessor is harmed

Example D takes Ps car out for a joy ride (dispossession) or Dintentionally puts a dent in Ps car (harms the chattel)

d) Liability is based on actual damages, however not on the market valueof the chattel.

a. If the trespasser is still in possession of the chattel at the time

suit is brought, she has the right to tender the goods to theplaintiff, in mitigation of the latters damages.

b. In other words, title is treated as never having left the plaintiffc. This is in distinction to the tort of conversion, discussed below

as a result of which title is deemed transferred from plaintiff todefendant, and the defendant is required to pay the full value ofthe property.

e) Trespass to chattels has traditionally involved the plaintiffs tangiblechattels

a. However, recent cases have held that clogging a companysemail or computer systems with large amounts of unwantedemail or other electronic conference an count as a trespass tochattels

VI. CONVERSION OF CHATTELSa) In conversion, the defendant must intend to exercise substantialdominion over the chattel.b) There is no requirement that the defendant be conscious of thewrongdoing

One who takes anothers watch in the honest belief that it is her ownis still a converter if the dominion thus exercised is sufficientlysubstantial

c) The American Law Institute concluded that the interference should beserious enough to justify imposing such liability and that a number offactors were important including:

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extent and duration of control;

the defendants intent to assert a right to the property;

the defendants good faith;

the harm done; and

expense or inconvenience caused

NOTE: The dividing line between the interferences which are so serious asto constitute conversion and those which are merely enough to constitutetrespass to chattels (for which only actual damages must be paid, and as towhich there is no forced sale to the defendant) is thus a matter of degree.

VII. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESSa) The tort may be defined as the intentional or reckless infliction, by

extreme and outrageous conduct, of severe emotional or mentaldistress, even in the absence of physical harm

b) To recover damages for intentional infliction of emotional distress, aplaintiff must prove that:

the defendant acted intentionally or recklessly;

the conduct was extreme and outrageouso courts consider the context and relationship between the

partieso courts have tended to emphasize that the conduct is

repeated or carried out over a period of time or

an abuse of power on the one hand or abuse of aperson known to be especially vulnerable

the actions of the defendant caused the plaintiff emotionaldistress; and

the resulting emotional distress was severec) Where such conduct is directed at a third person, the actor is subject

to liability if he intentionally or recklessly causes sever emotionaldistress

a member of such persons immediate family who is present

at the time, whether or not such distress results in bodilyharm, or

to any other person who is present at the time, if such distressresults n bodily harm

Ordinarily, recovery in such cases is limited to plaintiffso who are not only present at the time,

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o but are known by the defendant to be present, so that

the mental effect can reasonably be anticipated by thedefendant.

The requirement of presence has been relaxed by

some courts in particularly compellingcircumstances, as, for example, where a parentsued the defendant for molesting or kidnappingthe plaintiffs child

C. FORCIBLE HARMS AS CIVIL RIGHTS VIOLATIONSa) 42 U.S.C.A. 1983b) a 1983 tort requires the plaintiff to establish that someone,usually a state of municipal official, acted under the color of state law

and also that the action deprived the plaintiff of a federal right. Although the federal right involved might be based on some

other federal statute, most often it has been based on thefederal constitution itself

c)it is sufficiently broad to include the acts of some off-duty officersd) it also includes acts of private persons who conspire with state

officials and acts of private persons who willfully participate in astate-enforced custom or usage that violates federal rights

e) Liability

the officer or private person may be held personally liable

if the officer is acting on behalf of the city, the city may beheld liable

states are simply not liable under 1983 at allf) Why sue under 1983 rather than a simple common law tort?

a 1983 claim permits suit in federal ct while a state tortordinarily would not

o judges may be more favorable in federal courts and

juries are drawn from a wider area and have a

different geographic composition a 1983 claim permits the prevailing attorney to recover

reasonable attorneys fees, pursuant to another federalstatute 42 U.S.C. 1988

o the rule for ordinary tort cases is that each person pays

his own attorney fee

a 1983 claim might sometimes avoid defenses or

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immunities that would defeat a common law claim

D. DEFENSES TO INTENTIONAL TORTS PRIVILEGESI. SELF-DEFENSE

one is privileged to use reasonable force to defendagainst harmful or offensive bodily contact and againstconfinement.

The privilege depends on apparent necessity of self-defense, not on actual reality

Retreato Some states require reasonable retreat before

deadly force is usedo Other courts make no such requirements

if the defendant reasonably but mistakenly believes she isbeing attacked, she is privileged to use reasonable forceto forestall the attack or minimize its effects

o Reasonable deadly force

the defendants privilege extends so far asreasonably necessary to prevent the harmand, if the harm threatened is not itself deathor serious bodily harm, then the defendantmay not use force likely to cause death or

serious bodily harm any excessive force is unprivileged and the

defendant is liable for it. Likewise, thedefendant may not take the occasion toretaliate or to continue a defense after thefight is over.

Provocation is not sufficient to raise the self-defense privilege. Insults and arguments, forexample, do not justify a physical attack by

the insulted defendant

II. DEFENSE OF THIRD PERSONS

at one time, this privilege was limited to permit only defenseof family and servants

this seems to have little support and in general one may

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defend others on the same basis that he may defend himself

III. ARREST AND DETENTION

this is a privilege to detain for investigation for a short time,

until police can arrive for example Shopkeepers Privilege

o any property owner, including a shopkeeper has a

common law privilege to detain against his will anyperson he believes has tortuously taken his property.

o This privilege can be exercised only to prevent theft

or to recapture property, and does not extend todetention for the purpose of punishment.

o This common law right is exercised at the

shopkeepers peril, however and if the persondetained does not unlawfully have any of thearresters property in his possession, the arrester isliable for false imprisonment.

IV. DEFENSE AND REPOSSESSION OF PROPERTY

a possessor of land has no privilege to use force intended orlikely to cause death or serious harm against whom thepossessor sees about to enter his premises or meddle with hischattel,

unless the intrusion threatens death or serious bodily harm tothe occupiers or users of the premises

the force uses must be of a kind appropriate to the defense ofthe property

PUBLIC POLICYo the law has always placed a higher value upon human

safety than upon mere rights in property, ando it is the accepted rule that there is no privilege to use any

force calculated to cause death or serious bodily injury

where only the property is threatened.

V. THE SPECIAL CASE OF CONSENT generally, if the plaintiff has consented to any intentional

interferences with his person or property, the defendant will notbe held liable for that interference

Implied Consent

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o the existence of consent may be implied from the

plaintiffs conduct, from custom or from thecircumstances.

o In determining whether the plaintiff consented, the

defendant is guided by the plaintiffs overt acts ormanifestations, regardless of the subjective state of mindof the plaintiff

o The test is whether a reasonable person in the position of

the defendant would believe that the plaintiff consented.

Lack of capacity to Consento Consent is not effective if a person lacks capacity to give

consento incapacity of an adult plaintiff renders her consent

ineffective

only if her condition substantially impairs hercapacity to understand and weigh the harm and risksof harm against the benefits flowing from theproposed consent

the defendant has knowledge of that incapacityo Incapacity of adult is usually established by showing that the

adult could not manage her own affairs, or, in consent cases,that he did not understand the nature and character of his act.

Exceeding the scope of conditional consento if the plaintiff does give actual consent to an invasion of his

interests, the defendant will not be privileged if he goessubstantially beyond the scope of that consent

that is, the plaintiff generally consents to thedefendants performing acts of a certain nature, andno others

if the defendant invades the plaintiffs interests insuch a way that is substantially different from thatconsented to, he will be liable

Informed Consento a patient expresses consent to a named operation or

procedure, but is not informed adequately about its nature ormaterial risks

claims involving lack of consent, i.e., the doctorsfailure to operate within the limits of the patientsconsent, may be brought as battery claims.

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In contrast, true informed consent claims, i.e., thoseinvolving the doctors obligation to provideinformation, must be brought as negligence actions.

Revocation of consento

Subject only to the slightest qualification, the plaintiff canrevoke her consent at any time by communicating herrevocation to the defendant.

VI. NECESSITY

there are situations in which the defendant is privileged, because ofunusual exigencies, to harm the plaintiff, even though the plaintiffhimself is completely blameless

Public Necessityo the privilege of public necessity exists whenever

interference with the land or chattels of another is necessary,or reasonably appears necessary, to prevent a disaster to thecommunity, or to a substantial number of people

o in public necessity, there is complete protection in terms of

liability

Private necessityo any person is privileged to prevent injury to himself or his

property, or to the person or property of a third person, byinjuring private property, if there is no less-damaging way of

preventing the harm.o in private necessity, there is not complete protection.

o Permitted to trespass, but still held liable for damages in

contrast to public necessity

E. THE PRIMA FACIE CASE FOR NEGLIGENCE

negligence may be any conduct that creates an unreasonable risk ofharm to others

negligent conduct may consist either of (1) an act or (2) anomission to act where there is a duty to act

there has to be actual harm to bring a negligence claim

these five elements has to be established by plaintiffo the defendant owed plaintiff a legal duty;

o the defendant, by behaving negligently, breached that duty;

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o the plaintiff suffered actual damage;

o the defendants negligence was an actual cause of this

damage; ando the defendants negligence was a proximate cause of this

damage

ELEMENTS OF NEGLIGENCE

Duty

Breach (negligence)

Actual Harm

Cause in Fact

Proximate Cause (foresee ability etc.)

I. THE GENERAL DUTY OF CARE

a)The duty owed by all people generally iso to exercise care that would be exercised by a reasonable

prudent person under the same or similar circumstances toavoid or minimize the risks of harm to others

o the reasonable person exercises care only about the kinds of

harm that are foreseeable to reasonable people and risks that aresufficiently great to require protection

b)The Standard of careo The care required is always reasonable care

o The standard never varies, but the care which it is reasonable to

require of the actor varies with the danger involved in his actand is proportionate to it.

the greater the danger, the greater the care, which mustbe exercised.

c) Child Standard of Careo It is the duty of a child to exercise the same care that a

reasonable careful child of the same age, intelligence, maturity,training and experience would exercise under the same or

similar circumstances (Robinson v. Lindsay)o There are 2 exceptions to the child standard of care

Children engaging in adult activities

Adult activities are activities that require adult careand competence

Children engaging in inherently dangerous conduct

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Inherently dangerous is something that is anactivity that has a grave risk of harm attached to it.

o Grave risk of harm (serious bodily harm,

even death)o

Inherently dangerous exception is moremanageable because the adult activityexception is so darn subjective

o The Rule of Sevens

Few courts still say that

Minors over 14 are presumed capable ofnegligence

Those between 7 and 14 are presumed incapable ofit

Those below 7 are incapable of negligence as amatter of law

The Rule of Sevens (not so common now)

But most states hold that children 3 and under aresimply incapable of negligence

d) Persons with mental disabilitieso People with mental disabilities are commonly held liable for

their intentional and negligent tortso A person with mental disabilities is generally held to the same

standard of care as that of a reasonable person under the samecircumstances without regard to the alleged tortfeasorscapacity to control or understand the consequences if his or heractions

Side note: a mentally disabled person, involuntarilyhospitalized, does not owe a duty of care to hisprofessional caregiver and hence is not liable fornegligence or recklessness causing the caregiver harm

e) Persons with superior knowledgeo The standard of the reasonable man requires only a minimum of

attention, perception, memory, knowledge, intelligence andjudgment in order to recognize the existence of the risk.

If the actor has in fact more than the minimum of thesequalities, he is required to exercise the superior qualitiesthat he has in a manner reasonable under thecircumstances

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f) Sudden emergencieso A central feature of negligence law is that to be found

negligent, a defendant must have acted unreasonably.o When there is no unreasonable conduct, there is no fault.

o To find a defendant liable for the effects of an unforeseenmedical emergency that causes sudden unconsciousness wouldbe to impose strict liability, which is inappropriate in thissituation (Roman v. State of Gobbo)

g) Physical disabilityo Ordinary care in the case of such a person is such care as an

ordinarily prudent person with a like infirmity would haveexercised under the same or similar circumstances. (Shepherdv. Gardner)

h)Negligence Per Seo It is a form of ordinary negligence that enables the courts to use

a penal statute to define a reasonably prudent persons standardof care

o To trigger the doctrine, the statute must establish a specific

standard of conducto Negligence as a matter of law

A person whose conduct is negligent per se cannotescape liability by attempting to prove that he or sheacted reasonably under the circumstances

However, a finding of negligent per se is not equivalentto a finding of liability per se

Plaintiffs in negligence per se cases must still establishcausation in fact, legal cause and damages

o Requirements for negligence per se

The statute must have been designed to prevent the kindof harm that befell P; and

P must have been a member of the class that thelegislature intended to protect by the statute.

A statute requiring a landowner to keep a buildingin safe condition is meant to protect only thoserightfully on the premises and not trespassers.

o Excuses legally acceptable for violation of a legislative

enactment (not exclusive)

The violation is reasonable because of the actors

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incapacity;

D neither knows nor should know of the occasion forcompliance;

D is unable after reasonable diligence or care to comply;

D is confronted by an emergency not due to his ownmisconduct;

Compliance would involve a greater risk of harm to D orothers.

II. BREACH: ASSESSING REASONABLE CARE BY ASSESSINGRISKS AND COSTS

a) once it has been determined that defendant owed plaintiff a duty ofcare, the question is whether the defendant breached that duty byfailing to exercise reasonable care

The defendant who breaches that duty is negligentb) Balancing test used to determine if D breached the standard of care

The probability that the harm will occur; the gravity of theresulting injury and the burden of adequate precautions

o Liability depends upon whether B < PL.

c) Assessing Responsibility when more than one person is negligent

Liability of one person does not necessarily exclude liability ofanother

Comparative faulto Plaintiffs recovery reduced to reflect her faulto POLICY each faulty party must bear his or her share

of the losses

Not ordinarily reduced when D commits anintentional tort

Generally reduced in negligent and strict liabilitycases

Joint and several liabilityo P can enforce tort claim against either tortfeasor

But if one d pays the entire judgment, he canobtain contribution from the other d so as tomake his payment proportional to his fault.

i. Example, P secures a $10,000 jointand several judgment against both Aand B. P enforces the judgment

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entirely against A. A obtainscontribution from B.

o P can contain judgment against both, but cannot collect

more than her full damages.

Several liabilityo Differs from joint liability in that no tortfeasor is liable

for more than his proportionate shared) Proving and Evaluating Conduct

P must prove each element of the case by a preponderance ofthe evidence

o Negligence, for example, must be shown to be more

probable than not.o Even if Ps case is difficult to prove, P still has the

burden of presenting sufficient evidence to demonstratethe existence of a material question of fact.

The Role of the juryo Determining credibility of witnesses and

o making findings of fact

Factors that can affect a witness testimonyo Stress

o Expectations

Cultural expectations

Expectations based on personal prejudiceo Event factors , example, time

o Detail salient some details stand out more

Can depend on how violent is the event

What type of facts are you paying attentionto (time is something that people generallymake a mistake of)

Circumstantial evidenceo Evidence of one fact that permits an inference of

another facto Almost all negligent cases, involve at least some factual

inferences.

Experts opiniono Experts are usually allowed to give expert opinion or

conclusions, within the field of their expertiseo Expert opinion are sometimes the most practical

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method to establish certain facts, usually admitted onmedical issues

o Problems with expert testimony

Experts differ

Experts testimony may only be speculation Experts may overwhelm the jury

o

Vkng;ew

nvsnwe) RES IPSA LOQUITUR

The thing speaks for itself

The instruction of res ipsa loquituro tells the jury that if they do find the existence of the

following elements, then they may draw the inferenceof negligence,

o not that they must do so

o MAJORITY (Valley)

Event in question would not occur withoutnegligence

Other responsible causes, including theconduct of the plaintiff and third personas,are sufficiently eliminated

Defendant owes plaintiff a dutyo MINORITY (Eaton)

Event in question would not occur withoutnegligence

Instrumentality/ agent under the control ofthe defendant

Plaintiff not responsible for outcome

III. ACTUAL HARM

The third element of negligence is that the plaintiff must suffer legallycognizable harm, frequently referred to as actual damageso The plaintiff must prove that actual damages resulted from

defendants negligence or else the plaintiff will lose.o POLICY conduct that was merely negligent was NOT

considered to be a significant interference with the publicinterest such that there was any right to complain of it, or be

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free from it, without proof of an actual injury

Nominal damages are damages in name onlyo usually $1.00 or six cents

o

Restatement adopts the position that nominal damages are notavailable in a negligence action where no actual injury isproved, since actual injury is an element of negligence.

IV. CAUSE IN FACT, (ACTUAL CAUSE OR FACTUAL CAUSATION)POLICY for cause in fact requirement

Accountability

Deterrence

Set limits on liability to defendants and potential defendantsP must prove

Not only that she suffered legally recognized harm,

But that the harm was in fact caused by the defendant

The relationship between Ds wrongdoing and Ps harm is legallysufficient

o The But for- Test of Causation (traditional and still dominant)

But-for-Ds conduct, P would have avoided the injury

When this statement can be shown to be true, cause infact or actual cause has been proven

o The Substantial factor Test (supplements the but for test)

If two or more causes concur to bring about an event,then cause in fact is established by the substantialfactor test.

o Liability of two or more persons

When two or more tortfeasors are but for causes of asingle indivisible injury, causal apportionment isimpossible

The respective responsibility of each tortfeasor must bedetermined by some fault of fault apportionment and not

by apportioning damages to separate causes Alternative Liability Theory (Summers v. Tice)

POLICY where the matter of apportionment isincapable of proof, the P should not be deprived ofhis right to recover

2 negligent but only 1 could have could have

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caused Ps injury, then both held liable

P also shows that other persons were not negligentand could not have been causes of the harmsuffered.

b/p shifts to each defendant to absolve himself ifhe cano defendant bear the risk of not persuading the

judge or jury on cause in fact

Joint and several liability

where the tortuous acts of two or more wrongdoersjoin to produce an indivisible injury, all of thewrongdoers will be held jointly and severallyliable for the entire damages

the P may proceed to judgment against any oneseparately or against all in one suit.

V. PROXIMATE CAUSE (THE SCOPE OF RISK REQUIREMENT)

P must prove that Ds negligent conduct was the proximate cause ofthe harm suffered by P.

Proximate cause establishes a reasonable connection between an actor omission of D and the harm suffered by P.

o Whether the harm which occurred was of the same general

nature as the foreseeable risk created by the defendants

negligenceo An actor is not liable for harm different from the harms whose

risks made the actors conduct tortuouso POLICY

Lines must be drawn, determining how far down thecausal continuum individuals will be held liable for theconsequences of their actio

F. DEFENSES TO A NEGLIGENCE CLAIMI. Contributory NegligenceII. Comparative Fault (Responsibility)III. Assumption of the RiskIV. Statutes of Limitation

I. CONTRIBUTORY NEGLIGENCE

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Conduct on the part of the plaintiff which falls below the standard towhich he should conform for his own protection, and which is alegally contributing cause co-operating with the negligence of thedefendant in bringing about the plaintiffs harm

Three different basis for contributory negligenceo Plaintiff fails to exercise due care to safeguard him or herself

(fault)o Plaintiff is a superseding cause (proximate cause)

o A reasonable person in the position of the defendant would not

have foreseen any harm at all (no negligence on the part of thedefendant)

II. COMPARATIVE FAULT (RESPONSIBILITY)

Two types of comparative fault systems includeo Pure comparative fault

o Modified comparative fault

Counting for comparative fault purposeso Unit rule

Plaintiffs negligence is compared to the combinednegligence of all the defendants (aggregation permitted)

o Modified unit rule

a defendant who is less negligent than the plaintiff is

liable only for his individual percentage of the totaldamage. A defendant may not be liable if plaintiffnegligent (no aggregation)

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Mentally ill victimso Mentally ill persons can be comparatively negligence of their

injuries in some circumstances, howevero There can be no comparative negligence where the defendants

duty of care includes preventing the self abusive or self-destructive acts that caused the injury.

o When the defendant undertakes to protect the plaintiff from her

own fault, or when the law imposes such a duty, the entireresponsibility for care by definition falls upon the defendantand the plaintiffs fault cannot be held against her

How do you distinguish between contributory negligence and

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comparative faulto Contributory negligence is an all or nothing bar

o Comparative fault is some type of apportionment/ reduction in

the amount of damages

III. ASSUMPTION OF THE RISK

A plaintiff impliedly assumed the risk when her conduct shows thatshe was aware of the particular risk and voluntarily agreed to bear thatrisk herself

It is not enough that the plaintiff should have known about the risk,rather plaintiff must know about particular risk involved

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IV. Statute of Limitations

Reasons for Statutes of Limitationso To bar stale claims

o To permit both personal/ business planning and to avoid

economic burden that would be involved if the defendant andtheir insurance companies had to carry indefinitely a reservefor liability that might never be imposed

The two basic rules for determining when a statute of limitationsbegins to run

o Accrual rule

The cause of action begins to run at the time of injury tothe plaintiff

Most jurisdictions tort statutes of limitationsbetween 2- 6 years

The statute begins to run wheno Plaintiff knows or reasonably should know

of the injury;o Plaintiff knows or reasonably should know

of the causal connection between the injuryand the harmful product/accident;

o Plaintiff knows or reasonably should know

of a particular defendants identityo Discovery rule

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The statute begins to run when the plaintiff discovered orshould reasonably have discovered, the injury.

G. DUITES OF MEDICAL & OTHER PROFESSIONALSI. DUTIES OF HEALTH CARE PROVIDERS

The Malpractice Claimo the malpractice claim must ordinarily be asserted by a person

accepted by the doctor as a patient

Medical Standard of Careo a physician must exercise that degree of care, skill and

proficiency exercised by reasonably careful, skillful andprudent practitioners in the same class to which he belongs,acting under the same or similar circumstances.

o expert medical testimony is usually required to establish the

medial standard of care

except where the common knowledge of laymen issufficient to recognize or infer negligence

if the plaintiff furnishes no such testimony or the it isinadequate to show the standard, the judge will direct averdict for the defendant

More than one medical standard or practiceo where a competent medial authority is divided, a physician will

not be held responsible if tin the exercise of his judgment hefollowed a course of treatment advocated by a considerablenumber of recognized and respected professionals in his givenarea of expertise.

Non-medical practitionerso such as chiropractors and podiatrists, are permitted to practiced

according to their school of beliefo they are subject to the standards of the school they profess, not

to medical standards Good Samaritan Act

o a number of states have enacted statutes exempting licensed

doctors, nurses and other individuals who voluntarily andgratuitously render emergency treatment, from liability forordinary negligence. Liability still exists, however for grossnegligence.

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II. RES IPSA LOQUITURo evidentiary doctrine that merely permits the jury to infer

negligence based on a well-founded understanding that the

injury-causing event would not normally occur unless someonewas negligento it may be rebutted with evidence from the defendant that tends

to cast doubt on plaintiffs proof.o expert testimony is available to aid the jury in determining

whether an event would normally occur in the absence ofnegligence

expert opinion in this context is used to educate the jury

the jury still has to draw the necessary conclusiono if a medial procedure carries with it the inherent risk of a

particular kind of injury or complication, the court cannot useres ipsa loquitur merely because such an injury in fact occurred

o where a plaintiff receives unusual injuries while unconscious

and in the course of medial treatment, all those defendants whohad any control over his body or the instrumentalities whichmight have caused the injuries may properly be called upon tomeet the inference of negligence by giving an explanation oftheir conduct.

III. INFORMED CONSENT a physician owes to his patient the duty to disclose in a reasonable

manner all significant medical information that the physicianpossesses or reasonably should possess that is material to anintelligent decision by the patient whether to undergo a proposedprocedure.

a patient is entitled only to disclosures of risks that would be made bya reasonable medial practitioner

o because this is professional malpractice and the professional

standard must be usedo because there might be therapeutic reasons for withholding

information, ando because since the plaintiff must produce medical testimony in

other cases, this will add very little burden

the plaintiff in informed cases must also show thato a reasonable person would have refused the treatment had full

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information been given, ando that the plaintiff herself would have refused it

some courts treat informed consent claims as battery claimso the usual approach, however, is to treat informed consent

claims under negligence May a physician treat a competent patient over her objection if the

treatment is required to save her life?o Every person has the right, under the common law and the

Constitution, to accept or refuse medical treatment

If a patient indicates that he or she is going to decline the risk-free testor treatment, then the doctor has the additional duty of advising of allmaterial risks of which a reasonable person would want to beinformed

H. DAMAGESI. COMPENSATORY DAMAGES GENERALLY

POLICY the goal is to restore the injured party, to the extentpossible, to the position that would have been occupied had the wrongnot occurred.

Types of compensatory damageso Damages for reasonably incurred medical expenses resulting

from the tort

Medical expenses include past, present and expected

future expenses

The standard is reasonably incurred expenseso Damages for lost earning capacity or wage loss resulting from

the tort Use of economist to determine probable earning capacity[Martin v. United States]

Inflation adjustment over entire loss period

Reduction of award to present valueo Damages for pain and suffering resulting from the tort,

including mental pain and suffering The recovery includes the negative emotional reactions topain as well as the pain itself

Pain or suffering might also include fear or anxiety aboutfuture harms

Pain is notoriously difficult to measure or even talk about

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meaningfully

Per diem or unit-of-time management it asks the jury toconsider the value of pain by the minute or hour and then tomultiply by the number of hours the plaintiff will continue

to suffer over his lifetime Substantial pain and suffering awards help to pay theattorney fees in personal injury cases

Hedonic damages (Mc Dougald case)

Is the loss of enjoyment of life a part of the painand suffering award or separate component ofdamages?

Duplicative: especially when personnot aware of the loss then award onthis basis serves no compensatorypurpose

Separate: this loss is distinct fromconscious pain and suffering and doesnot require the person to be aware ofthe loss of compensation

o In a limited number of cases, an award to pay for the cost of

medical monitoring of the plaintiffs condition to intercept aprospective disease, such as cancer, that may develop in thefuture

that is, damages would include damages for thecosts of periodic medical checks that could detectcancers in early stages so as to permit earlyintervention.

Some courts have allowed medical monitoring damageseven when no physical harm has been done and noemotional harm claim is allowable

Other courts have insisted that the plaintiff must proveactionable physical harm before medical monitoring costs

can be recoveredo Any other specifically identifiable harm that has resulted from

the tort, such as special expenses necessary to travel for medicalattention

Plaintiff must prove that damages claimed were caused in fact by thedefendants conduct

No salutary purpose would be served by having the jury make

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separate awards for pain and suffering and loss of enjoyment of life.(McDougald v. Garber)

o to recognize loss of enjoyment of life as a separate category of

damages runs risk of duplication with permanent disability and

pain damages. (Montalvo v. Lapez).d) Pecuniary damages

Those damages awarded to compensate an injured person for thephysical and emotional consequences of the injury,

o such as pain and suffering and the loss of the ability to engage

in certain activitiese) Non-pecuniary damages

compensate the victim for the economic consequences of the injury,o such as medial expenses, lost earnings and the cost of custodial

careII. ADJUSTMENTS IN DAMAGESa) The doctrine of mitigation of damages (avoidable consequences)

this rule requires the plaintiff to exercise reasonable care to minimizedamages and denies a recovery to the extent that damages should havebeen but were not reasonably minimized or avoided

Distinguishing between comparative fault and avoidableconsequences

o Comparative negligence rules are fault apportionment rules

o Avoidable consequences rules are causal apportionment rules

b) The Collateral Source Rule and Its Cousins The general rule is that in determining the defendants liability, all

collateral benefits to the plaintiff should be ignoredo The defendant pays the full medical expenses even though they

may have been already paid by the medical insuranceo The defendant pays full lost earnings or lost earning capacity

even though the plaintiff collected full pay as a gift from hisemployer or as part of his job benefits

The collateral source rule does not apply to payments made by the

defendant itself or by a source identified with the defendant, such asthe defendants insurer.

c) Reduced Tax Liabilities

Federal tax laws provide that compensatory recoveries for personalinjury and death are not taxable, even if those recoveries replaceearnings which would have been taxable

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III. PUNITIVE DAMAGES awarded only for misconduct coupled with a bad state of mind

involving malice or at least a reckless disregard for the rights of others POLICY (the stated purposes of punitive damages)

o Punishment or retribution

o Deterrence

o Assistance in financing useful litigation

Statutes in many states limit the amount of punitivedamages that can be awarded or direct a portion of theaward to some public entity/ or public chest

Calculating punitive damageso Courts look at the seriousness of the wrongdoing as the most

important consideration (p. 888)o Courts admit evidence of the defendants wealth

o Increasingly, courts looking at relationship between the

compensatory damages and the punitive damages

TORTS OUTLINE[2]

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