Torts Shulman/Outline

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Torts
Authors Shulman
James
Gray
Gifford
Text Image of Cases and Materials on the Law of Torts (University Casebook Series)
Cases and Materials on the Law of Torts (University Casebook Series)
Taught by
Taught at
Related course(s)

Negligence- the omission to do something which a reasonable person guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do.

Duty''''

Breach of Duty''''

Causation''''

Harm''''

-Is there a duty owed?

-Standard of care governing the conduct?

-PALSGRAF

-Proving what the P did, or did not do. -This can be res ipsa loquitor (when facts are not concrete).

-Cause in fact. -Proximate cause – scope of liability

-Must typically be a tangible physical injury -In some cases not required, IE trespass.

Chapter 1 – the writ system, ives, theories of tort law

Writ System – King’s Court, jurisdiction was granted by extending a writ. Each writ had its own requirements, procedures, & processes. King’s abuse of system led to the 1258 Provisions of Oxford (royal courts would stop making new writs and could only take jurisdiction had a pattern that fit existing writs).
- Plaintiff REQUIRED to select the CORRECT writ. If the wrong writ was chosen, the case would be dismissed with prejudice. Two most important writes:

Trespass''''

Trespass on the case''''

-Injury resulting immediately and directly from the defendant’s actions. Precursor to trespass to land, chattels, assault, and battery.
-Did not require plaintiff to plead or prove D’s conduct causing harm was intentional or negligent, or defendant was otherwise at fault. (Weaver v. Ward, where no man should be excused of a trespass unless they be judged utterly without fault, in other words, STRICT LIABILITY)(Brown v. Kendall, huge case, a defendant cannot be held liable if they acted with lawful intent and without fault, burden on P to show intent was unlawful or lack of due care).
- Consequential, indirect injury.
-Most cases with negligence to prove physical injury or property damage was result of negligence.

Ives – The Challenge to Common Law Posed by Accidental Injury''''

-The case shows a fight between the common law and workmen’s compensation. Under common law, the plaintiff is required to show fault to recover. There was a trinity of affirmative defenses: (1) Fellow-servant rule (2) Assumption of risk (3) Contributor negligence.
-Workmen’s compensation is no fault liability. Eliminated the trinity in the interest of loss minimization, loss distribution and efficiency (litigation over workplace injury is insanely burdensome. Standardizing recovery is much easier. Usually limited to medical expenses, rehab expenses, lost income to a modest cap.

6 Principles of Ives –''''

'(1) Constitutions prevail over states. Courts decide when constitution conflicts with statutes
(2) Both the federal Constitution and NY Constitution include due process clauses that guarantee against deprivation of property without due process
(3) Due process of law means defendant entitled to be judged fundamentally by same law in place at adoption of Constitution. If this were true, would have never seen development of negligence.
(4) Fault is one of the basic principles in place at time of adoption of Constituted (NO, it was no fault liability,
Brown v. Kendall not decided for 80 years).
(5) This statute creates liability without fault
(6) The court’s opinion rests on the following: social, economic, and moral considerations DO NOT COUNT.'

The Switch to Negligence''''

Industrialization – Railroads and industry could not have thrived under strict liability were the only system. Legal formalism from 1870s-1960s; law followed precedent, ignored economic, social and philosophical arguments. Workmen’s compensation grew out of liberalism, focus on moral wrongdoing and fault. Practical reasons for workmen’s comp, if common law had own system, would get rid of affirmative defenses. Could cost more money.
Loss Distribution – Less disruptive when numerous policyholders or customers pay a tiny amount more than having accident victim pay all costs
Loss Minimization –
Deterrence or regulation of activity likely to cause harm. Tortfeasor must pay for damages it causes as a result of harm producing activity. Will conduct activities more carefully or stop harm-producing activities.

Goals of Tort Law''''

Instrumental – Objective. Fairness, loss distribution, loss minimization. Deterring future conduct which causes harm. Focuses on impact on society and economy. Pro-plaintiff.
Corrective Justice – Based on Kant & Aristotle. Doing wrong creates disequilibrium which requires justice to restore. Duty on the part of injurer to make injured whole.
Civil Recourse – Duty to repair wrong or compensate victim does not arise automatically, but exists as prescribed by Tort law. Distinction between moral duty and state imposed affirmative duty to compensate.

Chapter 2 – strict liability

Necessity

Affirmative defense or privilege to the intentional tort of trespass. A defendant who acts to prevent a threat of injury or death from nature, not caused by a third party, is acting in necessity. This is an incomplete privilege, any damage to property must be paid for (majority). Small minority hold it as a complete privilege. Vincent v. Lake Eerie, where despite acting under privilege, dock owner recovered damages due to unjust enrichment.

Abnormally Dangerous Activities

The nature of some defendant’s harm producing activity is so dangerous that courts allow recovery without fault. Typically explosives, hazardous waste disposal, storage of certain liquids, fumigations, and excavation. Inherent nature of activity, not action of defendant’s.
R2d § 520 Abnormally Dangerous Activities Factors…(a) high degree of risk; (b) gravity of harm; (c) inability to eliminate risk by exercise of reasonable care; (d) whether activity is of common usage; (e) whether activity is appropriate to the place where it is carried on; (f) whether its value to community is outweighed by its dangerous attributes. (issue here is that there is no weight given to any factor) R3d §20 Abnormally Dangerous Activities(b) An activity is abnormally dangerous if; (1) the activity creates a foreseeably significant risk of physical harm even when reasonable care is exercised by all actors; (2) activity is not one of common usage.
Indiana Harbor Belt RR Co – Accident must occur within scope of the inherently dangerous activity, not during shipping (in this case).


Nuisance''''

Private Nuisance – non-trespassory invasion of another’s interest in the private use and enjoyment of their land. Does not require a physical invasion. They are usually continuous. Must be (1) intentional and unreasonable, or (2) unintentional and otherwise actionable under negligent or reckless conduct, or for abnormally dangerous activities.
Damages - court will look at precedent. Permanent – damages for use and enjoyment, will look at decrease in fair market value, Temporary – fair rental value of the land, for each year a smaller amount of damages is awarded for fair rental value of the property.
R2d § 825 – Intentional – (a) a person must act for the purpose of causing the invasion; or (b) the person must know that an invasion is resulting or substantially certain to result from their conduct. (purpose, knowledge0 R2d §826 – Unreasonable – (a) gravity of the harm outweighs the utility of the actor’s conduct; or (b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.
Public Nuisance – Unreasonable interreference with rights held in common by members of the public. Factors to consider: (a) whether the conduct involves significant interference with public health, peace, comfort or convenience; or (b) whether conduct is proscribed by a statute, ordinance, or administrative regulation; (c) whether conduct is of a continuing nature or has produced permanent, long-lasting effect, and, as actor knows or has reason to know, a significant effect on public right.
Defenses to private nuisance: If a statute permits continuation of conduct that would constitute a nuisance, any tort claim is displaced. Administrative agencies also have a substantial amount of latitude, there is a debate when it comes to preserving property and promoting something of social utility. If something is from a higher level, EG federal v state, that is called pre-emption.
Defenses to public nuisance:
Coming to the nuisance. Plaintiff may not have relief if they knowingly came into a neighborhood after nuisance was in placed for reserved for certain endeavors. Usually not a bar to recovery. Think of the porn shop outside a base. Daycare opens next to it, asks porn shop to close. Daycare will win.

Trespass''''

Trespass – Actionable invasion of a possessor’s interest in the exclusive possession of their land and it must be: (1) intentional (must intend to be there, but you do not have to know you are violating someone else’s property rights), (2) legally protected interest, and (3) an invasion. Can be intentional or strict liability (no intent, but projecting self or object in their control when the invasion occurs).
- No harm requires for a visible invasion. For a molecular invasion (majority), there is usually no trespass, can only recover under nuisance. But, in a minority, must prove harm or material damages or that the micro trespass is likely to cause conflict.

Animals''''

Negligence – Applies to domesticated animals or wild animals harmless by nature. Strict liability comes into play if the owner knows of the animal’s dangerous propensities.
Strict Liability –
Wild animals, unless harmless by nature. Domesticated animals with dangerous tendencies owner is aware of, property damage caused by domesticated animals trespassing to land. Absolute duty to control/confine due to foreseeable harm. The harm must be within the scope of risk, IE what makes the animal dangerous. If you just trip over a snake, that is not strict liability.

Vicarious Liability''''

Fiction created to hold one party liable for the torts committed by another by virtue of their relationship. Whether the risk was one that may be fairly regard as typical or broadly incidental to the enterprise.
Respondeat Superior – Employer, not liable because of their own acts, can be held liable for wrongful acts of employee committed within scope of employment. Majority test here is whether actions of employee actuated in party by purpose to serve employer. Minority is risk typical of enterprise undertaken by employer.
Employee – Employed to perform personal services whose physical conduct is subject to right of control by master. Generally what separates someone from being an employee and independent contract. Independent Contractor – Contracts with another to do something for them but is not controlled by the other or subject to right of control with respect to physical conduct. Usually a specialist of some sort.
NOTE – If someone reasonably believes that someone is acting on behalf of an organization (hospital, Sword v. NKC) and relies on that reasonable belief, under apparent agency the employer will go out the window. This is void when: (1) plaintiff has selected own doctor or (2) plaintiff had specific knowledge of relationship..
NOTE 2 – apparent agency is presumed unless notice is provide that the entity is not providing the service and the independent contractor is responsible. Hospital here.

Non-Delegable Duties''''

In certain situations, the actor has a responsibility that should not be considered discharged when the actor, even with reasonable care, hires a contractor to perform the work.
Test: Generally speaking, look to see if a risk cannot be exercised by the exercise of reasonable care. This is inherently dangerous. Encompasses the duty owed to invitees, some safety statutes.

The anatomy of fault

Duty – Quantification of the defendant’s obligation to plaintiff to use reasonable care under circumstances (matter of law)

When is a duty owed? (Cardozo – when risk is foreseeable to the specific plaintiff)(Andrews – when risk is foreseeable to someone)
Balancing test: (1) foreseeability of harm to plaintiff (2) degree of certainty that plaintiff suffered injury (3) closeness of connection between defendant’s conduct and the injury suffered (4) moral blame attached to defendant’s conduct (5) policy of preventing future harm (6) extent of burden to defendant and consequences to community of imposing duty to exercise care with resulting liability for break, and availability, cost and (7) prevalence of insurance for the risk involved.
-National Food Stores – a duty to exercise reasonable care exists whenever harm is reasonably foreseeable.
- Maryland – Foreseeability is not enough. Harder for plaintiff to get case to a jury. Engage in policy analysis and can be very subjective.
-Open and obvious risk – no duty to warn in Maryland. Minority follow Holmes (no duty owed). Majority (defendant has a duty, even if polaintiff knows).

“Reasonably Prudent Person” Under the Circumstances''''

- We judge against an objective standard. We judge a defendant’s behavior against their failure to do something a person would do, doing something a reasonable person would not do, or contributory negligence.
- Reasonable person does not take differences in temperament, intellect or education (subjective, things we cannot see).
- Disabilities – reasonable person with same disabilities would do under the circumstances.
- Children – Children of similar age, mental capacities, and experiences, unless engaged in certain activities like driving, piloting an aircraft or powerboat.
- Common Carriers – highest degree of care consistent w/operation of their business (1) relationship between parties, (2) instrument of harm is in exclusive control of one party and (3) risk of physical harm is patently present.
Bailments – Sole benefit of borrower (bailee): liable for slight negligence. Mutual benefit: ordinary care. Sole benefit of lender (bailor): liable for gross negligence.

Cost-Benefit Analysis ''''

- Think Adam v Bullock, where if a party took ordinary precautions and the burden of further precaution was disproportionate to the probability of the accident, there was no negligence. This can be articulated by Judge Learned Hand’s formula. Burden (B), Harm (L), Probability of Harm (P):
- If B< LxP, negligence.
- If B > L x P, no negligence.
-Based on the concept that people are rational by nature and take cost efficient measures and acts in account before doing things. The idea is that a reasonable person would not take measures if they were not cost-efficient.
Coase Theorum – In a world without transaction costs, liability rules do not matter. If information were perfect, a system of strict liability with contributory negligence would offer the best result, every time. The issue is transaction costs, IE sum of accident and transaction fees. His goal is to maximize net sum for everyone.
Reality in light of this – Recovery is not always ideal. Labels are not always accurate. Juries are imperfect, there are transaction costs.
Restatement 3rdPrimary factors to examine in determining whether was a party was negligent are (1) the foreseeable likelihood that th person’s conduct will result in harm, (2) the foreseeable severity of any harm that may ensue and (3) the burden of precautions to eliminate or reduce the risk of harm.

Custom''''

- Outside of professions, custom can be evidence of what should be done, but is not conclusive. Illustrated in La Sell where custom can be used as evidence of what should be done, but is not conclusive. Same with private rules, admissible but non-binding.
-Medical Malpractice- Standard of care is established as a matter of law. Juries do not have expertise to ascertain what is reasonable and unreasonable in a highly technical field. Expert witnesses. Locality Standarddegree of care and skill of similar doctors in similar communities. National Standard – for specialist, Degree of care and skill of average qualified practitioner.
-Duty to Disclose –
physicians have a duty to disclose material risks that would be important to the patient’s decision. Majority – expert needed. Minority – no expert.
-Causation (1)
whether disclosure of material risks of treatment would have resulted in decision against it. Majority: subjective, this particular patient. Minority: objective, reasonable patient. Exceptions: emergency and unfeasible (IE anxiety could cause a heart attack if informed). Expert testimony needed to establish.
-Maryland – standard of same profession, similar training/expertise, situated in the same or similar communities at the time of the alleged act.

Role of Statutes''''

Defensive Use – Tort reform statutes (MD defining care in medical negligence cases, protection of law of commerce in guns. Worker’s comp precluding or displacing common law, Displacement (regulation or statute displaces a common law tort action) Offensive Use – Private cause of action, negligence per se, MD – statute or ordinance rule.
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Negligence per Se – (1) Statute imposes duty (2) person neglects to perform duty (3) person is liable to those for whose protection statute was imposed (4) for any injuries the statute was designed to prevent (5) which were proximately produced by such neglect (affirmative defense: emergency and impossibility).
(a) Tedla – Violation is just evidence
(b) Martin –
violation is negligence
(c) Combs –
Violation raises a rebuttable presumption Allows jurors to look beyond the violation.


Maryland – Statute or ordinance rule. (1) statute and ordinance creates a duty (2) injured party is part of a targeted class that statute was designed to protect (3) causation (4) harm

What do we do if we cannot just apply the facts to determine breach? What if the plaintiff cannot identify the tortfeasor?
Res Ipsa Loquitor can also be used as a vehicle to Joint and Several liability. Ybarra – every doctor in OR was a defendant. Could not expect patient to identify tortfeasor when they were asleep. This is not vicarious liability.
R2d § 328D (1) the act must be of the kind which ordinarily doesn’t occur in the absence of someone’s negligence. (2) the accident must be caused by an agency or instrumentality within the exclusive control of the defendant. (3) the accident must not be due to any voluntary action on the part of the plaintiff. R3d § 17 The factfinder may infer that the defendant has been negligent when the accident causing the plaintiff’s physical harm is the type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is the relevant member.
Procedural effects of invoking Res Ipsa Loquitor: (1) warrants an inference of negligence which the jury may draw or not based on their judgement (2) raises a presumption of negligence that requires the jury to find negligence unless the defendant produces evidence counter to it (3) shifts the burden of production of non-negligence to defendant and shifts the burden of persuasion to the defendant. If they cannot product evidence, directed verdict.
DO NOT APPLY THIS TO CAR ACCIDENTS. JUST DO NOT. DO NOT. YOU WILL LOOK LIKE A MORON. REMEMBER THIS IS AN ELEMENT OF BREACH. DO NOT JUST SPIT THIS OUT. IT IS PART OF FIGURING OUT IF THERE IS A BREACH. THIS IS THE TORT VERSION OF IN CASE OF EMERGENCY, USE THIS. ''''

causation

- But for the defendant’s action, the plaintiff would not have been injured. (1) cause in fact -or- (2) proximate causation (coincidence, must show recurrence of conduct will increase probably of injury)
- Cause in Fact – R3d – plaintiff must be able to prove that but for negligence of defendant, plaintiff would not have been injured.
- Tortious act or contributory negligence must increase probability that plaintiff will be injured.

'- Multiple Indeterminate tortfeasors – Joint and several liability.'

-R2d § 876 Concert of action – Harm resulting to third person from tortious conduct of another, subject to liability if (a) does a tortious act in cocernt with other or pursuant to a common design with them (b) knows other’s contact constitutes breach of duty and gives substantial assistance or encouragement to other to conduct self (c) gives substantial assistance to other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.
-Concurrent Tortfeasors – Where each of two or more parties jointly contribute to an indivisible injury, they are both jointly and severally liable. -Alternative Liability (only place where burden of proof shifts to D) – Where each of two or more independent tortfeasors contribute to an indivisible harm the burden of proof will shift to the defendant to prove who was responsible for the injury. Summers v Tice – dick cheney case, plaintiff could not identify who injured him. Burden shifts to defendants. '''
-Enterprise liability – group of corporations or trade association can be held jointly and severally liable for harms. Similar to concert of action.
-Market share liability –
Plaintiff may shift burden of proof as to causation when (1) all named defendants are potential tortfeasors (2) allegedly harmful products are identical and share same defective qualities (fungible) (3) plaintiff is unable to identify which defendant caused injury through no fault of their own (4) substantially all of the manufacturers who crated defective products during relevant time are named as defendants. Only for something like DES. Did not work for lead pain. Will be held liable for proportion of marketshare.

Proximate Causation/Scope of Liability''''

R3d – Just because negligence is a factual cause and increases probability of accident, does not mean defendant is liable.
Which PLT Can Recover'''' For what types of risk can PLT recover? '''' Extent of Harm''''
Unforeseeability of ____ necessarily precludes liability. ' Cardozo in Palsgraf (slight majority): foreseeability Wagon Mound I (minority), foreseeability N/A
Unforeseeability of _____ does not preclude liability. Andrews in Palsgraf. Factors to consider: (1) must have natural and continuous sequence with cause in fact (2) whether defendant’s tortious acts were substantial factor in PLT’s injury. (3) Whether there was direct cause w/o intervening causes (4) degree of attenuation between conduct and injury (5) foreseeability (6) remoteness. If balance pans out, duty owed to plaintiff. In re Polemis (majority). Direct cause. Thin skull, shabby millionaire rule
Majority typically goes: Cardozo (foreseeable plt) 🡪 Wagon Mound I (foreseeable risk)
Minority typically goes: Andrews (factprs) 🡪 In re Polemis (direct cause)
Maryland – foreseeability 🡪 foreseeable risk (and six factors from Andrews)
Intervening Cause- act which contributes to the injury that takes effect after the complete action of the defendant. Always foreseeable. Concurrent tortfeasors, joint & several liability. Example – malpractice after defendant causes harm. Superseding Cause – intervening cause that breaks the chain of causation so original defendant is no longer liable. Intervening cause that is not foreseeable. Plaintiff falls into hole created by defendant, uninjured. Defendant goes to get help, panther attacks plaintiff. Not foreseeable. --[if !supportMisalignedColumns]-->
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plaintiff’s conduct & related issues

Contributory Negligence

-The plaintiff must still exercise the degree of care an ordinary or reasonable person would in similar circumstances. Contributory negligence is conduct on the part of plaintiff that contributes to the legal cause to the harm they have suffered, which falls the standard of care for the own protection. In DMV, NC, AL if you are at all contributorily negligent you are barred from recovery. Defendant has burden of production.


-Last Clear Chance Doctrine – commonl aw workaround. Plaintiff’s contributory negligence overwridden only when the “defendant had the last clear chance to avoid the injury and negligently failed to take advantage of that chance.
-R2d §479-80 (1) If defendant had actual knowledge or reason to know of plaintiff’s peril and failed to exercise reasonable care to avoid harm, defendant liable to either helpless or merely inattentive plaintiff (2) If defendant did not know but should have known or had reason to know of plaintiff’s peril they are liable only to helpless plaintiffs.
-Willful, wanton, or Reckless Misconduct, or Intentional Torts - Contributory negligence is not a defense.
-Imputed contributory negligence – Disfavored. When the contributory negligence of one party will preclude the recovery by a second party (similar to vicarious liability for defendant). Kicks in when – driver and passenger are in joint enterprise. Does not work with family relationships.

Assumption of the Risk – Affirmative defense to negligence. Comparative jurisdictions are split 50/50. Half see it as independent bar to recovery. Half roll it into their comparative fault analysis.
- Express (think exculpatory clauses) – Plaintiff agrees with defendant in advance that defendant will not be held liable for certain types of harm (no duty). Some jurisdictions require the disclaimer to be clear, unambiguous, or explicit and mention negligence explicity. Implied – Plaintiff must have unreasonably and voluntarily encountered a known risk (must have knowledge to the specific risk, not just a general risk).
- Exceptions to Exculpatory Clauses – (1) Defendant commits an intentional tort or willful, wanton, or reckless conduct (2) Grossly unequal bargaining power (3) overriding public interest: (1) type of business generally subject to public regulation? (2) Perform a service of great importance to public, IE practical necessity for some (3) Does defendant hold itself out as being open to all members of public (4) Is there a decisive advantage in bargaining power (5) Is there a standard adhesion contract with no provision whereby a purchaser can pay additional fees to obtain protection from negligence (6) Is plaintiff placed under control of defendant as the result of transaction?
- Seatbelt Defense – Juries may consider nonuse of seatbelts in a comparative fault case (accident)
- Avoidable Consequences – plaintiff who has been injured has a duty to use reasonable care to avoid aggravating injuries from accident. Cannot claim damages for negligently aggravated injuries. Religious exceptions permitted.

Comparative Fault''''

Assigns responsibility for damages in direct proportion to the amount of negligence of each party. Must establish (1) defendant was negligent, (2) defendant’s negligence was cause-in-fact and proximate cause of plaintiff’s harm, (3) plaintiff was contributorily negligent.
Pure – CA + 11 states. Divide damages in accordance with degree of fault of parties. Modified – Apportionment on fault up to point at which plaintiff’s negligence is equal to or lesser than that of defendant. There are a number of ways to do this.
Not Greater Than – 50/50 split to plaintiff, but if fault goes past that, no recovery.
Not Less Than –
Plaintiff must be less than 50.
Wrongful Death & Survival Actions – Under common law, when victim died, claims died with them. ALWAYS CHECK STATUTE.
Wrongful Death – Dependent on negligence. Brought by administrator or executor of estate.
Recoverable Losses – lifetime lost income of decedent (adjusted for inflation), discount cost of living.
Beneficiaries – mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counseling, training, guidance or education.
Survivor Action – dependent on negligence, but different timeframe. Permitted for harm arising between time of accident and time of death.
Recoverable losses – pain and suffering, lost wages, medical expenses, funeral costs, costs to replace property lost during accident.
Wrongful death actions and survival actions are derivative. Contributory negligence of decedent will affect recovery. Beneficiary’s negligence will limit recovery or bar recovery depending on the jurisdiction. R2d § 494 Negligence of Person for Whose Death or Loss of Services Action is Brought – plaintiff is barred from recovery for an invasion of his legally protected interest in the health or life of a third person which results from the harm or death of such third person, if the negligence of such third person would have barred his own recovery.

Apportionment of Liability ''''

How do we apportion liability with concurrent tortfeasors? This is only for comparative fault jurisdiction. 5 mains ways to do this.
Contribution – party seeks reimbursement for part of what they have paid. Holds other defendant responsible for their fair share, IE have overpaid. Indemnification – party who has paid for judgement goes after third party to be compensated for all damages they have payed.
1. Joint and Several Liability – Contribution available. Plaintiff can collect from whichever party they want or any combo. Can force a solvent party to pay. MD
2. Several (Proportionate) Liability –
No contribution. Defendants pay fair share.
3. Joint and Several Liability economic damages – Several Liability for non-economic damages –
compromise solution. Joint and several for economic damages, but proportionate for non-economic damages.
4. Statutory Threshold –
If D’s share of liability > statutory threshold, jointly and several. If D’s share < threshold, proportional liability.
5. Reallocation Approach (Giff’s fav) –
One defendant insolvent, you can reallocate damages between plaintiff and remaining defendant according to fault. Allows for apportionment up to one year after judgement. Often unknown whether defendant is insolvent until after it is awarded. Ensures someone gets paid.
Settlements – Under joint and several, remaining parties are responsible for entire amount of damages minus amount of the settlement. Remaining parties cannot seek contribution from defendant who has settled. Discharged from liability.
Uniform Contribution Among Tortfeasors Act- Where two or more persons are subject to liability in a tort arising out of same injury to a person or property, or same wrongful death, there is a right contribution among them, even though judgement hasn’t been entered against any or all of them. --[if !supportMisalignedColumns]-->
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Damages

Compensatory Damages – Plaintiff has to prove actual harm, typically personal injury or property damages. Economic damages or emotional distress is usually insufficient. Can recover punitive damages in the event of particularly egregious actions. May recover for Economic damages: (1) loss of earning capacity (2) past and future medical expenses. Non-economic damages include pain and suffering which is often capped.
Policy considerations – purpose is to make plaintiff whole, as if they had never suffered loss in the first place. There is variability in award based on location, jury, etc.
Collateral Source Doctrine – defendant should not be given credit for reimbursement of medical expenses, lost income, or other damages the plaintiff has received from a 3rd party. If injured by another person, the recoverable damages are diminished neither by (1) fact injured party has been indemnified for his loss by insurance effected by him nor (2) fact that medical expenses were paid by a health insurance plan. Note that in many cases these rights are subrogated by insurance, so settlement costs in regard to those are paid directly to them.
Punitive Damages – Compensatory damages are inadequate to deter, punish the wrongdoer. Only recoverable for willful, wanton, or reckless conduct or intentional torts.

immunities

Affirmative defenses that keep the plaintiff from recovering if there is tortious conduct. Can be related to identity of defendant, or relationship with plaintiff. Significant change in the field of Tort law related to this.

Interfamily''''

Interspousal – Under common law could not sue each other b/c single entity. Most states have abrogated. Most for traffic accidents, outrageous intentional torts. Still exists for some categories. Depends on state, check statute. Parent-child – Abrogation is slower here. Exceptions for car accidents, outrageous intentional torts. Dual capacity doctrine – parents acts outside of general role as parent, IE parent doctor gives negligent treatment. Parents are not liable for being a shitty parent, or battery for spanking as an example.
Charitable Institutions – Traditionally immune to all claims. Partially abrogated, recovery capped to amount of liability insurance carried. Maryland follows this.

Government Entities – Sovereign Immunity

Liability of Government and Officers (State Torts Claims Acts) – every state has one. There are limits on amount of recovery, circumstances on when state is held liable. Usually no punitive damages. Procedural barriers to recovery, shorter statues of limitations. Absolutely must read the statute. Check for discretionary exceptions. Maryland Tort Claims Act – Can sue the state but damages capped. State/county is not liable for state employee’s conduct when they are not acting w/in scope of employment or for egregious, malevolent, or gross negligence. If state can be held liable, you cannot sue employee.
Municipalities – Immunity is granted where government function is performed. No immunity for proprietary functions, like what would be performed by a private company (power plant, etc). Some states deal with this through their Torts Claims Acts.
Federal Torts Claim Act – Allows suit if employee would be liable under laws of state in which act occurs. Sovereign immunity for core administrative areas. Suits permitted but must first file administrative claim with agency concerned within 2 years of incident. No punitive damages.
Discretionary Function Exception – Bars claim based on exercise or performance, or failure to exercise or perform a discretionary function or duty on part of federal agency or employee whether or not discretion is abused. This is statutory, must be specifically granted by state law. Test – (1) Whether challenged act involves an element of judgement or choice, or is it mandated by policy or statute? (statute = no exception) (2) Are actions based on considerations of public policy?
Rule of thumb – Design is covered, implementation is not.
Public Officials/Employees – Judges and prosecutors have absolute immunity from all claims. Qualified immunity is norm, but must check statutes. If official engaged in ministerial functions, they can be sued personally. If a state employee involved in discretionary functions, can typically only be held liable if knew were violating someone’s rights or acting with malice or gross negligence. Municipalities can be held vicariously liable in civil statutory actions for civil rights violations only if conduct is part of regular practice of municipality.
Maryland – lifts immunity when official acted with malice or gross negligence. General tortious conduct, state is liable.

premises liability

About ½ of all jurisdiction (including MD) hold that plaintiff’s rights against a land-occupier when plaintiff is injured on property depends on reason was there (Trichotomy). ½ of other jurisdictions have adopted a general negligence standard. The standard of care is not reasonable care.
Trespasser – A person who enters or remains on land in possession of another without privilege to do created by possessor’s consent or otherwise. R2d § 329 Discovered and undiscovered trespassers are owed a duty from willful, wanton, reckless misconduct or intentional torts. R2d § 334 occupier must exercise duty of care to protect undiscovered trespassers from occupier’s highly dangerous activities.
Licensee – a person who is privileged to enter or remain on land only by virtue of possessor’s consent. R2d § 330 duty to warn of concealed dangers known or that should be known to landowner. Affirmative duty to discover unreasonable dangers.
Invitee – (1) either a public invitee or business visitor. (2) public invitee is person invited to enter or remain on land as a member of public for purpose which land is held open to public. (3) business visitor is a person who is invited to enter or remain on land for purpose directly or indirectly connected with business dealings /w possessor of land R2s § 332. Reasonable care under the circumstances
Children – R2d § 399
A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if (a) “the place where the condition exists is one upon which the possessor knows or has reason to know” that children are likely to trespass (b) “…” and which he realizes, or should realize will involve an unreasonable risk of death or serious bodily harm ('c) the children, because of their youth do not discover the condition or realize the risk…(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared to the risk (cost benefit analysis)(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children '


- 48 states have a version of “Attractive Nuisances” where the child is not treated as a trespasser, and is therefore owed a duty of care. A minority of states follow the “Allurement Doctrine” → Where children can be lured to the premises (anything that draws them to the property e.g. pools, houses made of candy). However, this only counts if the nuisance actually ATTRACTS the child to the premises. The nuisance cannot be discovered once the child is already on the land). Attractive Nuisance doctrine is not recognized in Vermont, and KIND of recognized in MD. Think Blackburn case from chapter….three (the same one that establishes the statute and ordinance rule) ∏ was able to collect because the pool was not fenced in. What happens to children when there is no statue and ordinance rule to protect them? This rule only applies to landowners, and not to utilities

Public Officials''''

Postal employees, refuse collectors, inspectors, meter readers, etc – Invitees.
Police, fire, similar – licensees.
Firefighters Rule – bars claims by firefighters and police against those whose negligence created fire or hazard for injury, particularly if officer injured by condition that occasioned their presence.
Why the distinction? First group visiting premises for a purpose associated with business activities of land occupier. Police and fire arrive at unexpected times and it doesn’t’ seem feasible to require occupier to conduct inspection and warn of hidden dangers.

Products liability

Usually not a solo claim, included with negligence, strict liability, warranty.

Warranties – claim under warranty can recover economic/commercial loss w/o pleading injury or arguing property damage.

Express Warranty – guaranty by words for pictures that manufacturer or retailer of product will have certain qualities. Implied Warranty of Merchantability – Goods sold are reasonably suitable for ordinary uses for which goods of description are sold. Implied Warranty of Fitness for Part. Purpose – buy relies on seller’s skill or judgement in selecting certain goods.

Three Main Claims for Products Liability''''

Manufacturing Defect''''

Design Defect''''

Warning Defect''''

-Occurs when there’s defect in particular product that was not intended. Defect occurs when product departs from intended design and is more dangerous than consumers expect it to be.
-Strict liability in concept. No need to prove manufacturer was negligent in manufacturing or inspection. Focus is on product.
Exists when defect is inherent in design of product itself. Design flaw can make product unreasonably dangerous. Occurs when manufacturer fails to place warning as to inherent dangers of product, as well as how to use product in a safe manner.
(1) Plaintiff must prove product defective. (2) Defect existed when product left manufacturer’s control (3) Defect proximately caused injury to PLT, a reasonably foreseeable victim or intended user.

R3d § 3 Circumstantial Evidence Supporting Inference of Product Defect It may be inferred that harm sustained by plaintiff was cause by product defect existing at time of sale or distribution, without proof of specific defect, when incident that harmed plaintiff: (a) Was of a kind that ordinarly occurs as a result of product defect and; (b) was not, in this case, solely result of causes other than product defect existing at time of sale or distribution.This is like Res Ipsa Loquitor.
R3d § 2 Categories of Product Defect – A product is (b) defective in deisng when foreseeable risks of harm posed by product could have been reduced or avoided by adoption of reasonable alternative design by seller or other distributor, or a predecessor in commercial chain of distribution, and omission of alternative design renders product not reasonably safe.
Risk Utility Test – (1) Usefulness of product and likelihood/severity of danger posed by design (2) Feasibility of alternative design and financial cost of improved design (3) ability to reduce product’s danger w/o impairing usefulness or making it too costly (4) feasibility of spreading loss by increasing price (5) availability of feasible alternative design (6) consumer expectations.
Consumer Expectation Test –
minority.
State of the Art – level of relevant, scientific, technological and safety knowledge existing and reasonably feasible at time of design. Not custom. Law – Factor in considering adequacy of design and whether in defective condition unreasonably dangerous to normal consumer.
R3d § 2 a product is (c) defective because of inadequate instructions or warnings when foreseeable risks of harm posed by product could have been reduced or avoided by provision of reasonable instructions or warnings by the seller or other distributor, etc.
Must argue foreseeable risks could have been reduced/avoided by warning.
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Obvious Dangers – Majority - Obvious dangers are not dispostive in warning defect or strict liability cases. Minority – Obvious dangers are a defense as a matter of law (Maryland and VA)

Misuse''''

Method of negating proximate causation. Misuse of product, not the defect, that caused accident (Predominant view)
R2d § 402A Comment H – product is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handling or from abnormal preparation for use or from abnormal consumption the seller is not liable.
Unforeseeable product misuse or alteration is a defense. This would feed into a comparative fault analysis. Foreseeable product misuse or alteration is not a defense. However, foreseeable misuse must result in harm that falls within general scope of risk produced by product.

Contributory Negligence in Products Liability ''''

R3d § 17 Apportionment of Responsibility Between or Among Plaintiff, Sellers and Distributors of Defective Products, and Others (a) plaintiff’s recovery of damages for harm caused by product defect may be reduced if conduct of plaintiff combines with product defect to cause harm and plaintiff’s conduct fails to conform to generally applicable rules establishing appropriate standards of care (b) the manner and extent of reduction under subsection (a) and the apportionment of plaintiff’s recovery among multiple defendants are governed by generally applicable rules apportioning responsibility.

Comparative Fault Adopting 3d § 17''''

Other Comparative/Contrib Neg. Juris''''

Maryland''''

Apply comparative fault in strict liability cases.

PLT is contributorily negligent if: unreasonably proceed faced with a known risk or unreasonably fail to discover a product defect.
In state where manufacturer is responsible for discovering defects, PLT’s unreasonable failure to discover is not a defense.

Unreasonably proceeding in face of known product defect is contributory negligence.
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Assault, battery, other intentional torts

Conduct More Egregious than Negligent

Gross Negligence - negligence that’s pretty bad. Lack of slight diligence or care or a conscious, voluntary act or omission in reckless disregard of a legal duty and of consequences to another party. Two examples of where it can come into play.
Bailments – Bailee is only liable for gross negligence when bailment is in the complete benefit to bailor. Good Samaritan Rule – Samaritan medical practitioners are only liable for gross negligence if they begin treating an accident victim who needs medical attention.
Willful, Wanton and Reckless Conduct R3d § 2 Recklessness – A person acts recklessly in engaging in conduct if (a) the person knows of the risk of harm created by the conduct or knows facts that make the risk obvious to another in the person’s situation, and (b) the precaution that would eliminate or reduce the risk involves burdens that are so slight relative to magnitude of risk as to render person’ failure to adopt precaution a demonstration of person’s indifference to risk. (bottom line, knows risk is obvious and cost benefit analysis demonstrates indifference).
Obviousness of Risk – supports inference of knowledge, reckless indifference to risk, failure to appreciate obvious risk is indicative of attitude of indifference to risk.
Reckless conduct – involves a degree of risk and a voluntary taking of risk so marked, that compared to negligence, there is not just a difference in degree but also in kind. Reckless conduct must be based on a high degree of risk of death or serious bodily injury resulting from a defendant’s action or inaction when under duty to act.
Effects of Finding Recklessness (a) damages can be enhanced (b) effect of contributory/comparative negligence may be reduced or avoided (c) recovery may be possible for undiscovered trespasser or licensee who could recover under ordinary negligence (d) employee may be able to sue employer (e) minor children may be able to sue parents.

Punitive Damages''''

Recoverable only in intentional torts and reckless conduct. Often capped by statute. We have them because (1) compensatory damages don’t always fully compensate (2) deterrence (3) society’s form of punishing conduct it deems abhorrent (4) relieves some pressure from criminal justice system.


Due Process and Reduction – (1) amount of award in comparison to compensatory award (1:9 cap) (2) reprehensibility of defendant’s conduct (3) lack of judicial guidance for jury or absence of other checks (when someone was awarded 2 million for chipped paint on car)

Battery''''

Battery and R3d § 101(draft) – (1) actor is subject to liability another for battery if: (a) actor intends to cause contact with person of other (b) actor’s conduct causes such contact (c) contact is: (i) offensive or (ii) causes bodily harm to the other; and (d) the other does not actually consent to the contact. Battery is any intentional, unconsented to physical contact that is offensive or harmful. '
You can satisfy intent with: (1) purpose as to result (2) knowledge to substantial certainty that harmful or offensive contact would occur.
Single intent (majority) – requires only that defendant intent to cause offensive or harmful contact. Double intent (minority) – defendant intend to cause both contact and contact be harmful or offensive. Maryland.

Assault ''''

A defendant is liable for assault when (1) their conduct or threat places victim in reasonable apprehension of imminent, harmful or offensive bodily contact (2) and the defendant intended to cause either (a) such contact, or (b) the apprehension of such contact. Bodily contact is not required. Bodily injury is not needed. Words alone are normally insufficient. There does not need to be hostile intent.

Self Defense – Affirmative Defense''''

Normally – person threatened is entitled to use such force as reasonably necessary to defend against attack.
However – if circumstances would lead a reasonable person to believe they’re in risk of serious bodily harm/death, they can use deadly force.
R2d § 63 – Self Defense by Force Not Threatening Death or Serious Bodily Harm (1) an actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him. (2) self defense is privileged under the conditions stated in subsection(1), although the actor correctly or reasonably believes that he can void the necessity of so defending himself (a) by retreating or otherwise giving up a right or privilege or (b) complying with a command with which the actor is under no duty to comply or which the other is not privileged to enforce by the means threatened.
Defense of Third Party – One is justified in using reasonable force in defense of others. It is no longer required that the force be used to defend a member of the defendant’s own family or someone otherwise under the defendant’s legal protection.
-Self defense may constitute a defense to liability for intentional torts, even if the actions taken by the PLT result from a mistaken but reasonable belief that they are under attack (Courvoisier v. Raymond).
Defense of Property – You are permitted to use reasonable force. You cannot do indirectly what you cannot do directly Katko v. Briney.