Torts
Authors	Robertson Powers Anderson Wellborn III
Text	Cases and Materials on Torts (American Casebook Series)
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Related course(s)

Levels of Liability

Intentional -----------------Negligence---------------------------Strict Liability------------------------Absolute Liability

Intentional Torts (9-72)

Battery: Intentional non-consensual touching that causes harm to π

Ghassemieh v. Schafer – Schoolgirl pulls chair out from under teacher. Battery facts can support negligence

Dailey – 5-year-old pulls chair. Causing a nonconsensual touching is a battery; knowledge sufficient for intent. Intent to do action, not to do harm.

Fisher v. Carrousel Motor Hotel – Racism plate grabbing – touching someone something is holding is a battery. “indignity” can be the harm for battery; use “social value” in determining indignity.

Assault: Δ causing a reasonable apprehension of imminent physical harm to π.

Vetter v. Morgan – swearing @ stoplight – more guys than her and lots of screaming. She was reasonably in fear. Words alone not enough; words, acts, and circumstances that cause reasonably apprehension of fear (second restatement § 31).

False Imprisonment: Δ (1) intentionally (2) confines or instigates confinement of π.

Herbst v. Wuenneberg – voter rolls – πs did not try to leave, therefore no imprisonment.

Methods of confinement (restatement torts 2d):

• §38 physical barriers,
• §39 overpowering physical force or submission to a threat of force,
• §40 by submission to threats other than physical force (such as threatening to harm a family member), or
• §41 by taking a person into custody under a purported legal authority.

Geddes v. Daughters of Charity - reasonable alternative means of escape negate false imprisonment.

Π must have been aware of the imprisonment at the time OR it must have caused actual harm.

Preventing someone from entering is not false imprisonment.

IIED

• extreme and outrageous conduct;
• intent to cause or disregard of a substantial probability of causing (reckless), severe emotional distress;
• causal connection between conduct and injury; and
• severe emotional distress.

Eckenrode – life insurance –Reasonable person standard for Δ. Outrage can come from position of power.

Dana v. Oak park marina – Cameras in bathroom – recklessness is ok for IIED.

Recklessness Third Restatement § 2: someone is reckless if: (a) person knows of the risk of harm created by the conduct or knows facts that makes the risk obvious to another person in the person’s situation, and (b) The precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk.

Second restatement: deliberate disregard of a high probability that [Tort] will follow.

Trespass to Land:

Intentional interference with rights of exclusive possession. No need to show Δ’s unreasonableness or damages. Interfering with rights of exclusive possession is the damage.

Amphitheaters – Lights on movie theater – Not a trespass because no damages (court is wrong). No nuisance because no damages.

Martin v. Reynolds – Aluminum particulate on farm: trespass established because physical invasion of possessory interest. Indirect entry ok.

Nuisance: Interferes with π’s use and enjoyment of land. Must show Δ’s unreasonableness AND damages.

Trespass to Chattels: Diminution in value caused by interference; where the intermeddling falls short of the complete.

Pearson v. Dodd – senator’s notes – using then replacing is a trespass to chattels, not conversion. Using photocopies obtained from someone who trespassed to chattels is not trespass to chattels.

Conversion: Intentional exercise of dominion over π’s property. Δ does not need to know they are converting. Everyone in a “chain” of conversion is liable therefor.

Defenses (56-72)

Consent

O’Brien – ship doctor vaccine – if someone appears to a reasonable person to have consented, they consented.

Overall – Hockey fight – consenting to one action does not mean consent to a following unrelated action. Consenting to a game does not mean consenting to batteries that occur during the game. Causing harm by breaking up a double play intentionally outside the rules of the game? Strategical value.

McPherson -STD transmission – Husband didn’t know STD was there; no intention, no battery. Wife consented to sex. Consent obtained through misrepresentation is ineffective.

Self-Defense and Defense of others

Tatman v. Cordingly – Old guy gets beat up. Only can use reasonable force, least amount of required force; no retaliation; no deadly force unless reasonable belief Δ is resisting deadly force (unless in home). Can be asserted in many different torts. Can defend self or others.

Defense of property

Katko v. Briney – Trap gun - it is illegal to use force unless you yourself could use force. Must be in response to dangerous felony.

Teel v. May Dept. Stores- detained lady for questionable credit cards/affair – ok to detain someone to recover shoplifting stuff. Once goods recovered then you must relief thief. Cannot hold for illegitimate purposes.

Necessity

Ploof v. Putnam – Boat docked on island uninvited – Δ not liable for trespass when entering land to preserve property.

Vincent v. Lake Erie Transp. Co. – If Δ causes damages during a privileged trespass, must pay damages.

Negligence

5 elements:

• Δ had a duty to conform conduct to a standard (reasonable, ordinary, etc.). matter of law
• Δ did not conform to standard (breach) Factual determination, sometimes mixed, See blind guy.
• Δ’s substandard conduct was a factual cause or cause in fact of π injuries. (injuries would not occur without Δ’s acts) Factual determination
• Δ’s substandard conduct was a proximate cause of the π injuries (cause that is legally sufficient to result in liability) Factual determination
• Δ caused actual damages. Factual determination

Duty (73-114)

Generally

“Not improbable that this act could result in harm”

Brown v. Kendall – establishes “ordinary care.”

Hand Formula: B<PL: Burden on Δ must be less than probability of action occurring times the injury that results for Δ to have a duty. If Δ doesn’t know or appreciate the risks, B becomes the cost of knowing the risks.

“risk to be perceived defines the duty to be obeyed.” And “risk imports relationship” from Palsgraf

Grace Co. v. City of Los Angeles – soggy coffee beans – It would be unreasonable to constantly inspect pipes. Burden of inspecting the pipes constantly outweighs the likelihood of harm and the damages. No duty here.

Beatty – Horse spooked by train – RR could have built road better, but it would be too expensive. B > PL, no duty.

Allen v. Louisiana Power – company saving $48; low burden ($48 dollars vs grave injury) therefore duty.

T.J. Hooper – boats and radios – Industry custom does not define a duty.

Sudden emergency not defense to duty of care.

Reasonable person

Vaughn v. Menlove – hay combustion – standard of care is objective “reasonable person” not subjective, what Δ thought/knew.

Roberts v. Louisiana – blind guy – reasonable person standard here is “reasonable blind guy.” Physical injuries considered, not mental injuries. Blind guy acted reasonably.

Strait v. Crary – drunk kid on truck: Children held to different standard of care unless (1) they’re engaged in an adult activity (driving, licensure) or (2) public policy demands it. 0-7 presumption for different care, 7-14 no presumption, 14+ presumption against. Third restatement §10(b) child under age 5 cannot be negligent.

Violation of a statute: Per Se Negligence

• Statute that prescribes certain actions or defines a standard of conduct, explicitly or implicitly^[1];
• Δ violates statute¹;
• Π must be in class of people sought to be protected by the statute^[2]; and
• Harm is the sort the legislature sought to prevent^[3].

Martin v. Herzog – No lantern on carriage – violation of statute is negligence if it contributes to a tort.

Tedla v. Ellman – walking with traffic – violating a statute is not per se negligence if violating the statute furthers the purpose of the statute.

Gorris v. Scott – Sheep goes off boat – not per se negligence to violate a law that does not protect against the specific harm caused by negligence.

Potts v. Fidelity – Spider bites banana packer – law must apply to the class of people injured for per se negligence. Harm complained of must be the harm it was intended to guard against.

Zerby – violation of a statute can create absolute liability where it is to protect a group of people from their own inexperience: (1) child labour, (2) sales to drunks, or (3) dangerous articles to minors.

Res Ipsa Loquitur:

• Accident must be of a kind where it would not occur without negligence
• Must be caused by an agency or instrumentality entirely within Δ’s control
• Must not be due to π’s voluntary actions.

Colmenares – escalator – Even though Δ contracted out maintenance, it still remained in Δ’s exclusive control

Kmart Corp v. Basset – doors close on lady at Kmart. No res ipsa loquitur here, doors could close without negligence.

No Duty Rules (207-296)

Standard of care has broadened from individualized duties to broad general duties (Reasonable person): Heaven v. Pender.

Privity of Contract Someone cannot sue someone removed from a transaction for negligence. (manufacturer cannot be sued by person who bought goods from retailer(NO LONGER GOOD LAW))

Bush v. Seco – Exception to accepted works doctrine (similar to privity) for (1) dangerously defective products, (2) inherently dangerous products, or (3) imminently dangerous products.

MacPherson – Buick breaks – lady can sue manufacturer even though she bought it from dealer. Begins “assault on the citadel” of privity.

Donoghue – if someone buys a good for someone else, the consumer can sue the manufacturer, does not have to be purchaser.

Nonfeasance (nonaction) vs Misfeasance (negligent action) Generally can’t be liable for nonfeasance.

Restatement (third):

§ 39 exception to nonfeasance based on prior nontortious conduct

Exceptions to nonfeasance Restatement (third) § 40:

* common carrier with passengers;

• innkeeper with guests;
• business to business guests;
• employer with employees in either
• imminent danger, or
• injured or ill and rendered helpless thereby;
• school with student;
• landlord with tenants; and
• custodian with those in custody when either
• statute prescribes custody, or
• custodian has a superior ability to protect the other.

§ 41: relationship with perpetrator exception:

an actor in a special relationship with another owes a duty of reasonable care to third parties with regard to risks posed by the other that arise within the scope of the relationship:

• parent with children,
• custodian with those in custody,
• employer with employees when the employment facilitates the employee’s causing harm to 3^rd parties, and
• mental-health professionals with patients.

§ 42-44 volunteer exception

Satterfield v. Breeding Insulation Co. – company didn’t tell workers to clean asbestos off clothes. Misfeasance, not nonfeasance, because having workers work in bad conditions is a whole action; compares with failing to hit brakes in car, not hitting brakes is nonfeasance, driving car recklessly is misfeasance.

Lacey – coast guard not rescuing guys – no duty to rescue. If you start to rescue, you must exercise “due care” so you don’t dissuade other would-be rescuers. Practical policy concerns for determining when a rescue begins.

Galanti – Mob boss – No duty to warn or protect others from danger, unless:

• if Δ has created the danger;
• if Δ failed to control the foreseeably dangerous instrument (and is capable of controlling it); or
• Law enforcement officials have voluntarily assumed or incurred duty to a specific individual.

Emotional Trauma fear of creating rules for emotional trauma: (1) medical science is not good enough (wanes throughout time); (2) fear of lies; (3) “flood of litigation”; and (4) (Alces’s) people should be tough doctrine.

Now people are liable for both physical and emotional harm. Current test is foreseeability (Heaven). Following cases trace evolution of doctrine:

Bosley v. Andrews – cow and heart attack – Impact rule: only able to recover for emotional harm when there is a physical injury that causes the emotional harm. Cow should have touched her, lady’s heart attack not enough for emotional harm.

Niederman v. Brodsky – car skids in front of π and hits π’s child. Zone of danger rule: πs may recover for fear occurring to π. Π recovers because HE was afraid of being hit, not emotional trauma from witnessing his kid get injured.

Sinn v. Burd – Car hits lady’s daughter while she watches. Bystander rule:

• Whether π was located near the scene of the accident or away from it,
• Whether shock was a result of a direct emotional impact (seeing it vs. hearing of it)
• Whether π and victim are related.

Armstrong v. Paoli Memorial Hospital – applies bystander rule. Because π was not related to victim and heard of and did not see the accident.

Some jurisdictions have moved away from the “physical manifestation” requirement:

• can be overinclusive,
• can be underinclusive,
• requirement is defective because it encourages extravagance in pleading and being “inventive,”
• physical manifestation has lost its original meaning, and
• medical research is better than our old guesswork.

Pure Economic Loss Can’t recover for pure economic loss. If an appliance self-destructs cannot recover for damage to appliance, only damage appliance causes to other things and people.

Barber Lines v. M/V Donau Maru – oil spill prevents boat from docking. Boat incurs additional expenses docking elsewhere. Presumption against remote damages in tort. Allowing tort recovery is bad for public policy:

• Tort actions are less effective than insurance
• Too many plaintiffs
• Tort liability disincentivizes business

East River Steamship Corp. v. Transamerica Delavel, Inc. – turbines on boats – if a product breaks itself bring a contract action. If it breaks something else bring a tort action. Dissent: good showing of practical policy considerations.

Owners and Possessors of Land – off the land

Old rule: for natural land conditions that pose a risk of physical harm to people or property not on the land only have a duty if (1) the land is commercial, or (2) if the possessor knows the risk or if the risk is obvious. Jurisprudence moving towards Heaven.

Sprecher – landslide damages neighbor’s home – Owner has Heaven standard applied, not old standard. B<PL.

Coase Theorem: regardless of lawsuit, people will work out the cheapest possible fix to damages. Example: train car throwing sparks on farm. If court would impose liability on train car owner, he will buy spark guards. If court would impose liability on farmer, famer will buy spark guards.

Owners and possessors of land – On the land Old trichotomy, in order of most to least protected:

• Invitees (invitee works for landowner’s purpose), exercise reasonable care
• Licensees (licensee works for their own purpose), less protection.
• Trespassers, no duty besides avoiding intentional or reckless injury.

Machado v. Yacht Haven – lady trips on lights – Foreseeability is the controlling factor in determining duty of possessor. No more trichotomy.

Bennet v. Stanley – kid and mom drown in neighbor’s pool. Attractive nuisance doctrine, possessor is liable if (2 restatement §339):

• the place where the condition exists is one where the possessor knows children are likely to trespass, and
• condition is one in which the possessor knows or has reason to know there is a risk of serious injury or death , and
• the children, due to their youth do not discover the condition or realize the risk, and
• the utility to the possessor of maintain the condition and the burden of eliminating the danger are slight as compared to the risk of the children involved, and
• possessor fails to exercise reasonable care to eliminate the danger.

Creating no duty rules

§§ 6-7 of 3^rd restatement has a 3-part agenda for controlling the duty element:

• Heaven v. Pender
• Only depart from Heaven in exceptional cases
• attempt to get rid of foreseeability in duty in order to retract scope. 4 Criteria for a new “no-duty” rule:
• process should be approached with caution: it is good for only exceptional cases.
• The new rule must cover a category of situations.
• judge should exhibit some candor, law is new, don’t pretend otherwise.
• principal or policy should have some level of legitimacy.

Thompson v. Kaczinski – trampoline blows into road – don’t use foreseeability here, use “public policy.” Homeowners should exercise reasonable care because we don’t want stuff in the road.

KFC of Cali. v. Superior Court- robbery at KFC – Don’t use “reasonable person.” No duty to prevent robbers from taking advantage of a duty.

Cause in Fact (115-66) But-for test:* Identify harm

• Identify Δ’s wrongful conduct
• Change facts to make Δ fit the standard of care π claims was violated
• Would harm still have occurred if the facts are as they are in (3)?
• Answer (4)

East Texas Theatres v. Rutledge – Rocky horror picture show throwing glass bottles - Not removing rowdy people does not establish cause in fact. Glass could have been thrown by any number of non-removed rowdies.

Marek v. Southern Enterprises – fireworks in theater – not doing something is but-for cause; Δ had time and ability to act.

Viner – legal malpractice – lawyer’s conduct not but-for cause because the πs had no bargaining power and would not have had the deal regardless of lawyer’s ability.

Substantial factor test: When 2 or more causes are sufficient standing alone to cause π’s harm—both are cause in fact.

Sanders v. American body Armor – 2 bullets 1 cop – with but-for no one will be liable. If either event independently would have caused π’s harm, use substantial factor test.

June v. Union Carbide: Causal set test- Cause in fact must be a necessary component of a causal set that would have caused damages. If A, B, C caused damages, and Δ’s action is C and C was necessary for A, B, C to cause damages then Δ is liable. If A and B alone would have caused damages, Δ not liable.

Alternative Liability:

Summers v. Tice – 1 of 2 duck hunters shoot a guy, but both shot negligently. Shift burden to Δs for proving which one didn’t shoot.

Pennfield – pigs dying – Can’t shift burden if only one Δ is negligent.

Market Share Based on how much market share Δ’s have; Market share is how much they are liable for. Mostly DES cases.

Poole v. Alpha Therapeutic Corp - HIV in anti-hemophiliac drug. Can’t use market share because not DES.

Concerted action: Δ is liable if he (a) does a tortious act in concert with another, or (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to conduct himself.

De Carvalho v. Bruner – Horse carriage racing – if there are “joint wrongdoers” in tort they are jointly and severally liable even if one doesn’t cause any actual damages. Encouragement is sufficient to be a “joint wrongdoer.”

Lost opportunity/loss of chance: Mostly medical malpractice. π must show (preponderance of the evidence) that Δ caused an X% loss of chance (of living, of not being injured). Recovery under 50%+1 is always X%. Over 50+1% it varies by state. Some give 100%, others give X%.

Smith v. Parrot – can’t use preponderance of evidence because state did not adopt it. Policy for: mitigates harshness of tort law, worth of recovery, and deterrence. Policy against: unfairness of lower standard of evidence, elevating price of healthcare, and illusion of deterrence when Δ did not provably cause the injury.

Apportioning damages on the basis of causation:

Holtz v. Holder – single indivisible injury rule: if harm is indivisible (impossible to tell which Δ caused what) Δs are jointly and severally liable.

Follet v. Jones – Cancer car accident – Δs are liable for the amount of time π lost to live. Better illustrated by guy who gets electrocuted after falling off bridge. Electric company was liable for the 12 seconds of life π had left to live. Not liable for damages plaintiff would have suffered otherwise.

Lancaster v. Norfolk and Western Railway Co. – Eggshell skull rule: tortfeasor takes victim as he finds him. Tortfeasor must pay all damages caused by tortfeasor’s conduct but is not liable for preexisting conditions.

Blatz v. Allina Health System – delayed ambulance – not liable for preexisting conditions. Δ has burden to prove when their conduct started being a cause of damages. Defendant must prove damage can be divided, question of fact for jury.

Proximate Cause (167 – 206)

“Not improbable that the act could result in this harm”

4 categories:

• Unforeseeable extent of harm: eggshell skull rule: if Δ is the proximate cause of the accident, Δ is liable for all damage subsequent to that action
• Unforeseeable manner of occurrence: if harm is foreseeable but the mechanism through which the harm occurs is not, Δ is liable (Wagon Mound II)
• Unforeseeable type of harm: if harm is not foreseeable than Δ is not liable (Wagon Mound I)
• Unforeseeable π: If harm occurs to the “wrong π” than Δ not liable. See Palsgraf.

Royal Indemnity Co. v. Factory Mut. Ins. Co. – negligent inspection of sprinklers. Even had the company inspected the sprinklers, the damage would still have occurred because there was no water pressure. Not foreseeable, unforeseeable type of harm.

Overseas Tankship Ltd. v. Morts Dock and Engineering Co. Ltd. (Wagon Mound I) – reasonable foreseeability. There was a confluence of random stuff that without them all occurring, the damage would not have occurred. Damages unforeseeable.

Wagon Mound II – boat company is liable because spilling oil foreseeably could cause damages. Therefore, proximate cause.

Palsgraf – “the risk to be perceived defines the duty to be obeyed and risk imports relation” there must be some relation between the act and the harm. In this case if any π is going to sue, it doesn’t make sense for this π to sue, therefore no proximate cause.

Damage caused by medical personnel helping π following Δ’s foreseeable conduct is also foreseeable-Δ may be liable for that as well. Damage to rescuers helping victim is also foreseeable, Δ is liable for rescuer’s injuries as well; applies to both negligent and intentional Δs; sometimes an exception for rescue personnel “firefighter rule.”

Edwards v. Honeywell- Firefighter died, Posner case. Unforeseeable that firefighter would die, unforeseeable π.

Meyering v. General Motors Co. – rock on corvette. It is not foreseeable that kids would throw rock on corvette, but it is foreseeable that rocks would fall on a corvette. Unforeseeable mechanism.

Damages (297-336)

3 types of compensatory damages:

• Medical Expenses
• Loss of earnings and earning capacity
• Physical and emotional pain and suffering

(1) and (2) are “specific” damages, (3) is “general damages.”

Point of tort law (normatively) is to restore people to how they were prior to the tort. All damages are compensatory. Exemplary damages (punitive) are only for intentional torts.

Pain and Suffering and Medical expenses brings π to where they were prior to accident

Rodriguez v. McDonnel Douglas Corp. – guy’s leg is messed up while fitting sprinklers. Only overturn jury awards if “the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice, or corruption on the part of the jury.”

Test for loss of wages is “what π could have earned” had π advanced in career, not “what π would have earned.”

Present Value - courts will limit earnings to compensate for increases in interest over time

Hedonic Damages brings π to where π should have been had π been able to have fun

Banks v. Sunrise hospital – cardiac arrest during surgery. Calculate hedonic damages on their own. Allow testimony for hedonic damages if probative value outweighs prejudice.

2 methods expert used for “willingness to pay” (how much would you pay/how much pay would you forego)

• Survey method – change risk of death from 3/20,000 to 1/20,000
• “wage risk method” examines salary difference in people with high risk v. low risk jobs

Collateral Source Rule can recover for damages paid by insurance companies and other parties (grandmas). Π windfall with rule, Δ windfall without rule

Hoffman v. 21^st North American Ins. Co. – attorney writes off medical bills. Don’t allow recovery under collateral source rule for benefits that π’s didn’t pay for.

Fatal injuries: Wrongful death; Survival

Wrongful death: damages incurred by family for loss of a loved one

Survival: damages brought by estate for damages suffered by decedent – cost of injuries, etc.

Sea land services Inc. v. Gaudet – wrongful death brought after personal injury action. Wrongful death and survival are not res judicata, they are different causes of action. Survival allows recovery for “nurture, training, education, and guidance that a child would have received . . . ”

Interest – usually accrues based on statute in damages

Taxation – punitive damages are federally taxed, compensatory damages are not

Lump sum judgments and structured settlements- lump sums allow πs to be dumb. Structured settlements (payment over time) make πs act wiser.

Caps on damages – some states have caps on damages. Some caps are unconstitutional. Lebron v. Gottlieb

Punitive Damages – punish Δs, optional. Typically require higher scienter than negligence.

Mathias v. Accor Economy lodge – bedbug hotel – punitives are appropriate because it is supposed to deter. Not everyone sues so this prevents motel 6 from profiting from bedbugs.

Vicarious Liability (337-50)

An employer may be strictly liable for the negligent actions of an employee.

Employer’s Vicarious liability Respondeat Superior – liability of master for torts of servant acting in scope of employment. Employers generally not liable for contractors.

to determine if someone is a contractor, Restatement (third) of agency § 7.07(3)(a):

• Extent of control agent has given to principal over details of the work
• Whether the agent is engaged in a distinct occupation or business
• Whether the type of work done by the agent is customarily done under a principal’s direction, or without supervision
• The skill required in agent’s occupation
• Whether the agent or principal supplies the tools and other instrumentalities required for the work and the place in which to perform it
• The length of time during which the agent is engaged by principal
• Whether the agent is paid by the time worked or by the job worked
• Whether the agent’s work is part of the principal’s regular business
• Whether the principal and the agent believe that they are creating an employment relationship
• Whether the principal is or is not in business.
• Also, relevant: extent of control that the principal has exercised in practice over the details of the agent’s work.

Under common law parents are not vicariously liable for torts of their children. Some jdxs have imposed it by statute.

Employers can be liable for negligence twice; employee is negligent and hiring employee negligently (like if employee has no qualifications to be a doctor, or something).

Patterson v. Blair – Camaro for truck repossession with gun. 3 standards discussed:

• Friendly’s foreseeability: if employee’s actions are foreseeable, employer is liable
• Prosser and Keeton’s furtherance of business: employer only liable where actions are in furtherance of employer’s business.
• Kentucky synthesized rule:
• Must be in furthering employer’s business
• No deviation to further employee’s interest
• General familiarity between tort and day-to-day operations of employee.

Tommy John, LLC – bar bouncers – “specially dangerous” exception to contractor exception does not apply where the contractors mitigate risk.

Victim Fault and Proportionate Liability (351-460)

Atavistic Doctrine wrongful conduct no duty rule. Can preclude πs from recovery if they do a wrong act. Smells like contributory negligence.

Mischalski – car jack failure – πs are only barred from recovery under atavistic doctrine if the illegal act is a “contributing proximate cause” of the injuries. Actions must be causally connected.

Guadamud – syringe and bad dentistry – Barker test: (1) is π’s conduct a serious violation of the law, and (2) are the injuries a direct result of the violation of the law? If licensure look to purpose of licensure.

Traditional affirmative defenses in negligence actions

• Comparative negligence – reduces π’s recovery by the % fault π is assigned.
• Contributory negligence – complete bar if π was even the slightest bit negligent.

McIntyre v. Balentine – 2 drunks in a car accident. 3 forms of comparative fault:

• Pure system: π can recover even 1% if they are 99% negligent
• Modified system: π can recover only if their negligence is not greater than Δ(s)’s (π’s fault <50%)
• Modified system: π can recover only if their negligence is less than Δ(s)’s (π’s fault =< 50%)

Wassel v. Adams – motel rape – Victim is 97% at fault, motel is 3% at fault. “willful and wanton” doctrine is an “ameliorative doctrine” that is used to make contributory negligence less bad. No longer applicable in comparative negligence.

Jettisoning Joint and Several Liability: allocating fault to non-parties

Brown v. Kell – dad sues lady for son’s car accident. No more joint and several liability. Apportion fault to even non-parties.

Varela v. American Petrofina Co. of Texas, Inc. -Contractor hurt. Cannot recover from employer due to worker’s comp. How to assign employer’s fault?

• Charge π
• Charge Δ (Chosen in Varela)
• Drop it entirely: 15/58 and 43/58
• New trial, don’t consider employer (notes).

Fault goes to blameworthiness, not damage caused.

Indemnity, Contribution, partial settlements.

Indemnity - one party is stuck with the full value of torts caused by another due to a contract. They may seek recompense from another Δ.

Contribution – “partial indemnity” mitigates harshness of joint and several liability. Allows one Δ to go after another for part of the damages they had to pay.

Partial Settlement – when a Δ settles and π takes another Δ to trial, there are issues.

McDermott Inc. v. AmCylde – sling Δs. When a Δ settles with π to give π a “war chest,” there are 3 options:

• If one pays more than they need to, the others will get a credit by exact numbers, but the other Δs may seek repayment from the one who settled. Disincentivizes settlement.
• If one pays more than they need to the others will get a credit by exact numbers, and the other Δs may not seek repayment from the one who settled. Incentivizes settlement too much.
• If one party mays more than the others, it will diminish the claim against the others by an equitable share (% based)

1 and 2 are about dollar for dollar credit; 3 is percentage based. Use 3. 1 discourages settling. Only way for 2 to be fair is with a “good faith hearing” – defeats point of settling; skipping litigation. 3 is best.

Equitable share just makes it so that the Δ who settled “drops out” entirely. Their negligence is imputed to π.

Imputed Contributory or Comparative negligence: When your agent is negligent in causing a tort in which you are harmed. Book uses example of a chauffeur that runs a stop sign and hits another car running a stop sign. Chauffer makes master liable to victim, and chauffer makes victim less or not at all liable to master.

No imputation “inter se” Cannot attribute your negligence to the π. If the chauffer sues the car owner, the chauffer cannot impute the chauffer’s negligence to the owner.

• Second category of imputed π negligence (apportionment restatement) §6:
• When a π asserts a claim that derives from the Δ’s tort against a 3rd person, 3rd person’s negligence is imputed to the π.
• Negligence of an estate’s decedent affects the estate’s recovery in a survival action to the same extent it would have reduced the recovery had they lived

Continental Auto Lease Corp. – Law imputed negligence to owners of cars when a driver gets into an accident. Court held that it could only be imputed if the owner had control over the driver.

White v. Lunder – boating accident, husband and wife sue friend. If loss of consortium (or other derivative claim) impute spouse’s negligence to π. Do not bar recovery under modified system comparative negligence, just reduce π’s recovery by both amounts of negligence. Here it was 30% wife, 33% husband for a total of 63%.

Failure to avoid consequences; failure to mitigate damages

Hutchins v. Schwartz – Accident no seatbelt.

• Wash (1) π’s recovery should not be diminished by his failure to anticipate Δ’s tortious conduct (2) seat belts not required in all vehicles, (3) most people do not wear their seat belts, (4) admission of seat belt evidence would create a “battle of experts”.
• Others: No statute to wear seatbelt. Eggshell skull theory.
• Fla, Wisconsin: jury could decide that not wearing a seat belt was comparative negligence.

Δ must prove extent of damages caused.

• Failure to mitigate damages, failure to avoid consequences, comparative and contributory negligence
• Failure to mitigate damages: post-accident conduct, cause of some of the injuries. – typically prevents damages arising from post-accident conduct.
• Failure to avoid consequences: pre-accident conduct that did not cause the accident but was a cause of some of the injuries or damages
• Comparative (or contributory) negligence: pre-accident conduct that was a cause of the accident and ALL of the injuries or damages

Conceptual Phases

• Π’s prima facie case. (Was Δ negligent?)
• Δ’s affirmative defenses (Comparative/contributory negligence, among others)
• Judge ruling on law (How much is each Δ liable for?)

Exxon co. v. SOFEC – bad boating – if π is a superseding cause of injury, then π cannot recover. Smells like contributory negligence. π wanted to put comparative fault analysis in phase 1 (belongs in phase 2). SOFEC said that π was proximate cause (Phase 1) SOFEC wins.

Piner v. Superior Court – 1 car accident then another different car accident. Holtz v. Holder under comparative fault. Apply single indivisible injury rule. Once π proves both Δs are liable for accident, Δs have burden to apportion fault.

Percentage fault assignments in intentional torts cases not all courts follow this

Ozaki v. Ass’n of Apartment owners of Discovery Bay – lady is murdered by boyfriend in hotel. Murderer 92% at fault, Victim 5% at fault, hotel 3% at fault, no recovery under Hawaii comparative fault regime. “fault siphoning.”

Assumption of Risk

Express Assumption – signing a contract/some communication of risk; to determine validity:

• Does language express its purpose clearly enough?
• Legal jargon, length, complication, all weigh against clarity.
• Was the contract “fairly entered into?”
• Oral misrepresentations
• Coercion
• Pressure
• Signature was hasty
• Is it void on public policy grounds?
• Some states are more amenable to defendants who operate outdoorsy recreation centers
• McDonald v. Whitewater Challengers – Ny π v. PA Δ. NY law said that contractual releases are void, PA law said they are not. Court went with PA law because Δ operated in PA.

Hojnowski v. Vans Skate Park – mom signs kids rights away. Cannot sign a kid’s right to sue away because of Parens Patriae (state is the daddy doctrine). Can sign away right to a jury trial because public policy favors it.

Implied assumption of risk – when π encounters a risk but has no express acknowledgement

Primary implied assumption of risk – π has no subjective knowledge of risk. Π has duty to π, Δ has no duty.

Bennet v. Hidden Valley Gold and Ski – a participant in a sport “accepts hazards that reasonably inhere in the sport so far as they are obvious and usually incident to the game.” Π may not have known of risk but should have known of risk.

Secondary implied assumption of risk – π has subjective knowledge of risk

Kane v. Landscape Structure – 6-year-old falls off playground equipment. Δ must prove (1) knowledge of danger, (2) understanding and appreciating the risks, and (3) voluntary exposure to danger.

Statutes of Limitation and Repose (461-76)

Statutes of Limitation

Protects court’s jurisdiction, protects Δs, encourage πs to bring fresh claims. Prevents claims after a period but can be tolled.

Exceptions to SoL:

• Discovery rule – SOL doesn’t start until you discover the harm.
• Concealment – SOL doesn’t start if Δ conceals harm from π.
• Ongoing Tort - If it is an ongoing tort, SOL doesn’t start running until whole tort is over (Feltmeier)

Jolly v. Eli Lilly & Co. – SoL is question of fact for jury. When modified for discovery rule, SoL should start ticking when π knows or should know that harm occurred. Change in statute does not toll the SoL – Armageddon flood of litigation.

Kensinger – ignorance of a “critical fact” (wrongful act) can be enough to apply Discovery Rule.

Feltmeier v. Feltmeier -a continuing tort is “occasioned by continuing unlawful acts and conduct, not continual ill effects.”

Ravenswood – a subway built under your house is not a continuing trespass, just a trespass when it is built Belleville Toyota – each wrong allocation of vehicles over several years is an independent act, not a pattern of continuing tortious behavior. Pavlik - Sexual harassment over 2 years is a continuing tort. Repetition is a “critical factor.” Hard to say when behavior finally becomes tortious, because it built up, therefore continuous tort.

Statutes of Repose

Prevents claim after a period of time. No exceptions. Begins to tick after date of negligent conduct, not of injury.

Bradway – lady finds out about HIV contraction after Statute of Repose is over. Time barred.

Governmental and Family Immunities (477-510)

Precludes Δs from tort liability based on Δ’s identity. Applies to intentional torts

Governmental Immunity

Hicks v. State – abolishes sovereign immunity because it’s based on divine right of kings.

=== Public Duty Doctrine Government officials don’t have a duty to any particular citizen, just the public as a whole ===

Riss v. New York City – Police don’t have to help people who ask for help under the public duty doctrine. Would create too much liability and be too expensive.

Federal Government Federal gov. has immunity from all suits except those provided by congress. Federal Torts Claims Act (FTCA)

28 U.S.C.A. §§1346(b). 2401(b), 2402, 2671, 2674, 2675, 2679, & 2680.

1346 – district courts have og jdx to hear tort cases against fed gov’t

2401 – Statute of Repose 2 years

2402 – no jury

2671 – federal agency is federal agency, employee of the gov’t is employee of the gov’t needs to be acting “in scope of his office”

2674 – liable in the same way a private person would be.

2675 – disposition by federal agency as perquisite; evidence – need to get a denial of recovery from the agency before suing. Claims cannot exceed whatever is submitted to the agency. Disposition of the claim by the head of a federal agency is not competent evidence

2679 exclusiveness of remedy – 1346(b) exclusive

2680 – 1346(b) does not apply to any claim based on an act or omission of an employee exercising due care in the execution of duty.

(h) intentional torts get qualified immunity

(i) fiscal operations immune

(j) military immune

(k) claims arising from foreign countries immune.

Merado v. United States – Government not liable for “discretionary functions”

Gaubert analysis for discretionary v. Proprietary:

• Whether the act giving rise to the suit involves an element of judgement or choice
• If action is not prescribed by law or regulation
• Whether that judgement is the kind that the discretionary function exception was designed to shield
• If it is made on basis of public policy
• Varig Airlines – spot checking aircraft is discretionary – public policy'
• Mitchell – choosing what roads to repair is discretionary – public policy'
• Autery – not cutting down trees in a national park is discretionary – discretionary'

Discretionary v. Proprietary functions (may be extinct) Proprietary function – something for benefit of the governmental body, not the public. Governmental function – something for benefit of the public.

Immunity from government contractors. Before FTCA waived sovereign immunity, SCOTUS held that private contractors could not be held liable for damages caused by the performance of work validly ordered by congress. SCOTUS has upheld immunity for contractors for tort liability for design defects in military equipment where: (1) US approved reasonably precise specs, (2) equipment conformed to specs, and (3) supplier warned US about dangers in the use of the equipment. Boyle.

Immunity of Government officials and employees

Federal officers and employees are broadly immunized by Federal employees liability reform and tort compensation act of 1988. State level: judges, prosecutors, legislators, and high-ranking execs usually have absolute immunity. Other officials usually have qualified immunity (good faith required).'

Family Immunity

Price v. Price – man and woman get in car accident and marry later. No spousal immunity because bad on public policy. Removing spousal immunity will not prevent marriages and state has abrogated spousal immunity before and has brought no increase in collusive suit.

Zellmer v. Zellmer – Parents are immune from lawsuits of their kids. Fact issue if someone is In Loco Parentis. Don’t want to adopt “reasonable parent” and second guess parents.

Medical Malpractice (511-24)

Professional Standard of Care

Each medical specialty has a different standard of care. Industry standard not typically good (T.J. Hooper) but is in MedMal.

Melvlle v. Southward – Foot infection, bad podiatry – Only people who are familiar with a profession’s standard of care can testify.

Informed Consent

Required to not be a battery, outside of extreme circumstances.

Harrison v. United States – no C-section, deformed arms. To determine whether a doctor should let someone know of a procedure:

• sufficiently close dr-patient relationship
• dr knows or should know of info
• information is such that the dr should reasonably recognize that it is material to patient’s decision (reasonable person would have made a different decision)
• dr fails to disclose

Common Law Strict Liability (525-36)

Animals

Owners of animals are strictly liable for damages they cause. Every dog gets one bite though. It is “strict” so still requires foreseeability, not absolute. Tigers, lions, bears; no bites.

Abnormally Dangerous Activities

Liability imposed for activities (not materials) that are both highly dangerous and not commonly pursued in the community. (explosions, poisons, impounded substances).

Rylands v. Fletcher – water floods mine – strict liability for “abnormally dangerous” instrumentalities (pools flood); “unnatural” land use (why build a pool in mine country?)

Exner – Augustus Hand finds dynamite exploding on a mine killing someone off the mine is strict liability.

Siegler v. Kuhlman – Oil truck explodes and kills girl

(1) regardless of care, if something bad happens you are liable if “abnormally dangerous” (strict liability).

(2) in determining abnormally dangerous:

• high degree of risk
• gravity of harm will be great
• whether risk can be eliminated through reasonable care
• whether activity is not a matter of common usage
• whether activity is inappropriate to the place where it is carried on
• value of activity to community

3^rd restatement §§ 519-20: an activity is abnormally dangerous and therefore subject to strict liability if it “creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised”

Strict Products liability (537-66)

Negligence

Privity of Contract – Courts used to prevent recovery based on privity. After MacPherson and others, they don’t so much.

Sometimes you can use Res Ipsa, sometimes you cannot.

Warranty

Henningsen – do not need privity for suing for breach of warranty.

Misrepresentation

Misrepresenting product – can be fraudulent, negligent, or innocent.

Emergence of Strict Tort Liability

• Defective Design
• Defective Manufacture
• Defective Warning

Greenman v. Yuba Power products – lathe – manufacturers are liable for manufacturing and design defects in their products that cause injury to users. Could be negligence as well.

Linegar v. Armour of America – cop shot in vest with opening in the side – If something is supposed to not protect you in a certain way it is not a design defect. Policy reasons, police knew it would not protect that way.

Philips v. Kimwood Machine Co. – sander with no guard – no manufacturing defect, but it was dangerously defective in design.

Negligence: reasonableness of the manufacturer’s actions in selling w/o warning. Strict Liability: dangerousness of machine being sold w/o warning.

Tests for design defects:

• Consumer expectations test: if consumers (jury) find that dangerousness outweighs their expectations, then Δ is liable.
• Bad test; jury should think about before the π was injured but would think about it after they were injured.
• Risk utility test from 3^rd restatement: manufacturing defect when it “departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.”
• Product cost
• Product performance
• Focuses on product feature
• Risk v. Benefit analysis (Smells like B<PL)
• Combined test: If either then bad design.

Potter v. Chicago Pneumatic Tools – do not adopt reasonable alternative design, undue burden on πs. Integrate risk utility analysis into consumer expectations test:

• Usefulness of product
• Likelihood and severity of danger posed by design (PL)
• Feasibility of alt design (B)
• Ability to reduce product’s design without impairing it (B)
• Feasibility of spreading the loss by increasing price (B)

Plaintiff Conduct Defenses

Daly v. General Motors – comparative fault applies to strict product liability. Reduce damages by extent to which π did not exercise due care. Assumption of risk reduces but does not bar a claim.

[1] Martin v. Herzog

[2]Potts v. Fidelity

[3] Gorris v. Scott