Torts Flashcards
(215 cards)
1
Q
NEGLIGENCE
A
A tort grounded in a person’s failure to conform his/her conduct to the standard of care established by law
2
Q
Elements of Negligence
A
DUTY
BREACH
CAUSATION
DAMAGES
3
Q
Negligence- Duty
A
A legally recognized relationship between the parties that requires D to act in a certain way
4
Q
Palsgraf v. LIRR
A
-There can be no liability for negligence unless – D owes a duty to the P -The existence of a duty depends on – A foreseeable risk of harm & A foreseeable plaintiff
5
Q
Duty Principle
A
In general, a duty arises when D creates:
a foreseeable risk of harm
to a foreseeable plaintiff
6
Q
Foreseeable Risk Requirement
A
- “The risk reasonably to be perceived defines the duty to be obeyed”
- “It is the risk to another or to others within the range of apprehension”
- D owes a duty only to persons w/in the zone of danger
7
Q
Palsgraf Dissent
A
D owes to “the world at large” the duty of refraining from those acts that may unreasonably threaten the safety of others
“Not only is he wronged to whom harm might reasonably be expected to result, but he also who is in fact injured.”
8
Q
STANDARD OF CARE
A
The “standard of care” for negligence is –
the level of conduct demanded by law to avoid liability
9
Q
REASONABLY PRUDENT PERSON
STANDARD OF CARE
A
D is held to the standard of care of
- a reasonably prudent person (RPP)
- in the same or similar circumstances
10
Q
Vaughan v. Menlove
A
In determining breach –
D’s conduct is to be evaluated using an objective “man of ordinary prudence” standard
11
Q
Intelligence & Judgment Qualities & the Reasonable Person Standard
A
D’s Low Intelligence or knowledge -Not taken into account (e.g., hay rick case) -Objective RPP std applies D’s Superior Intelligence or knowledge -Often taken into account -Despite seeming inconsistency
12
Q
Restatement 2nd Section 289
Persons with inferior qualities
A
The individual who is “habitually wool- gathering, inattentive, absent minded, forgetful, ignorant or inexperienced, slow- witted, … or a fool” must:
“conform to the standard of the society in which he lives” or
“if he cannot conform … must still make good the damage he does”
13
Q
Restatement 2nd Section 289
superior qualities of actor
A
“If the actor has in fact more than the minimum of these qualities,* he is required to exercise the superior qualities he has in a manner reasonable under the circumstances.”.
“The standard becomes, in other words, that of a reasonable man with such superior attributes.”
_________
* Attention, perception, memory, knowledge, intelligence, & judgement
14
Q
REASONABLE PRUDENT
PERSON
A
The RPP is EXPECTED to –
- notice the obvious & apparent
- know matters of common knowledge
- understand what community understands
The RPP is …
NOT expected nor required to be perfect or infallible
15
Q
Delair v. McAdoo
A
The RPP Standard
-The Reasonable Person notices what is apparent
-The Reasonable Person knows of common (driving) hazards
-The RPP knows
of matters of
common knowledge
16
Q
Emergency Doctrine
A
*Cordas v. Peerless Transportation
In an emergency, the SOC is that of a RPP acting under emergency circumstances
[Unless, D’s own risky conduct created the emergency]
17
Q
Areas of flexibility in the RPP Standard
A
Superior intelligence/knowledge
Physical characteristics
18
Q
*Flexibility
Roberts v. Louisiana
A
A blind man “must take the precautions, be they more or less, which the ordinary reasonable man would take if he were blind.”
19
Q
*Flexibility
RPP Standard of Care Physical Traits & Disabilities
A
-Persons with physical disabilities held to standard of a RPP with the same physical disability acting in similar circumstances
20
Q
Breunig v. American
Fam. Ins. Co
A
D’s mental illness usually is not taken into account in evaluating the reasonableness of D’s conduct
[Persons w/ mental disabilities are not allowed a standard of a RPP w/ the same mental disability]
21
Q
SUDDEN ONSET EXCEPTION*
A
“We think the statement that insanity is no defense is too broad when it is applied to a negligence case where the driver is suddenly overcome without forewarning by a mental disability or disorder …”
*Minority Exception
22
Q
STANDARD OF CARE
A
REASONABLY PRUDENT PERSON
- D held to the standard of care of
- a reasonably prudent person in the same or similar circumstances
23
Q
AREAS OF FLEXIBILITY in the reasonable prudent person standard
A
D’s superior intellig., experience, or skill
D’s physical characteristics
But, courts will not consider …
D’s low intillig., experience, or skill
D’s mental illness or disabilities
24
Q
Voluntary Drug/Alcohol Abuse
& the RPP Std of Care
A
D’s abuse of drugs or alcohol is not a circumstance taken into account by RPP standard of care
[The applicable standard of care is not
whether D was driving as well as a RPP
high on drugs!!!]
25
Alternative Standards of Care
Children
Professionals
Land Possessors
26
Child Standard of Care
Children are held to the std of
A reasonable child of like age, intelligence & experience
Under similar circumstances
Exceptions:
Inherently Dangerous or Adult Activity
Rule of 5
27
Restatement Exception for child std. of care
Child standard of care does not apply when child engages in …
an activity normally undertaken only by adults (adult activity) &
the activity normally requires adult qualifications
28
Professional
| Standard of Care
The professional D must exercise …
the knowledge & skill of an ordinary member of profession in good standing
Under similar circumstances
29
LP DUTY TO PERSONS
| OFF THE PREMISES
Generally Land possessors owe –
NO DUTY to persons outside the
premises for natural conditions
on their land
30
Taylor v. Olsen
Tree Exception to Natural Conditions Rule:
[Duty] Landholder owes a duty to offsite P for risks posed by trees on D’s premises
[SOC] Duty owed depends on all of the relevant circumstances
31
DUTY OWED TO PERSONS
| OFF THE PREMISES
Land possessors generally –
OWE A DUTY of reasonable care to persons harmed outside the premises
from artificial conditions & activities on their premises
32
Salevan v. Wilmington Park
Landholder owed a duty to offsite P
for activities on D’s premises [DUTY]
Duty owed is to take reasonable precautions to protect offsite public from wayward balls [STD OF CARE]
D failed to use reasonable precaution [BREACH] (~200 flying baseballs)
33
Bright Line Tests
Straight-forward application
More consistency
But rigid, somewhat arbitrary
34
Totality of Circumstances Tests
More flexible & adaptable
| But less consistent, wide variability in outcomes
35
DUTY: LANDHOLDERS & ON SITE Ps
Status Categories
Trespassers
Licensees
Invitees
36
Trespasser
A PERSON WHO ENTERS OR REMAINS ON LAND IN THE POSSESSION OF ANOTHER WITHOUT CONSENT OR A PRIVILEGE TO DO SO
37
Licensee
A PERSON WHO ENTERS OR REMAINS ON LAND BY VIRTUE POSSESSOR’S CONSENT OR A PRIVILEGE & IS THERE FOR THEIR OWN PURPOSES.
38
Invitee
A PERSON WHO ENTERS OR REMAINS ON LAND WITH CONSENT OF THE POSSESSOR FOR PURPOSES RELATING TO THE POSSESSOR’S INTERESTS OR ACTIVITIES.
39
Status Categories
trespasser (unknown, known, frequent, children)
licensee
invitee
40
Nature of the Risk
natural condition
artificial condition
activity
41
Known Trespassers & Natural Conditions
Generally, Land possessors owe –
NO DUTY to known TR for risks
arising from natural conditions
on their land
42
Landholders generally owe a duty to known trespassers for artificial conditions when:
Landholder knows the trespasser is
approaching an artificial condition
The artificial condition is not evident
to the trespasser (hidden condition)
The artificial condition poses a risk of
serious bodily harm or death
43
Known Trespassers &
| Activities
Land possessors generally owe –
a duty of reasonable care to known trespassers for activities carried out on their land
44
FREQUENT TRESPASSERS
Landholders may owe a limited duty
to frequent trespassers where:
Landholder is on notice or has reason to know of frequent trespassing
the risk is posed by natural or
artificial conditions or activities on
the premises
Duty rules similar to known TR rules
45
“FLAGRANT”
| trespassers
Under RS3rd of Torts:
the duty owed by Landholders to flagrant trespassers is more limited than duty owed other trespassers
46
Limited Duty of Landowners & Occupiers – Trespassing Children
L/Os owe a duty (of reasonable care) to protect trespassing children from harm due to attractive nuisances
47
DUTY OWED TO LICENSEES
| NATURAL & ARTIFICIAL CONDITIONS
A duty arises to licensees when P harmed by
A dangerous hidden condition &
L/P knew of the condition
The duty owed (SOC) is:
reasonable care
reasonable steps to warn or make safe
48
DUTY OWED TO LICENSEES
| ACTIVITIES ON THE PREMISES
Land possessors generally owe a
duty to licensees to –
act with reasonable care with
respect activities on their premises
whenever LP knew or should have known of danger
49
Duty of Land Possessors to Invitees
| BUSINESS INVITEES:
Persons invited to enter or remain on land
for purposes connected w/ possessor’s
business dealings
(e.g., D’s clients & delivery people)
50
Duty of Land Possessors to Invitees
| PUBLIC INVITEES:
Persons invited to enter or remain on land for a purpose for which the land is held open to the public
(e.g., museum patrons & national park visitors
51
LICENSEES v. INVITEES
Landholder duty of reasonable care arises to LICENSEES for dangerous conditions that
Are non-evident (hidden) &
D actually knows of
Landholder duty of reasonable care arises to INVITEES for dangerous conditions that
Are non-evident (with some exceptions) &
D knows or should know of
52
Whelan v. Van Natta
Invitee status of P changes when P
exceeds the scope of invitation with
respect to —
Time (duration of the invitation)
Space (location of the invitation)
53
PUBLIC EMPLOYEES
| GENERAL RULES*
Non-Emergency Personnel:
When on the premises for a purpose
connected w/ owner they are invitees
Emergency Personnel:
When on the premises in an emerg.
capacity they are licensees
* These rules vary significantly depending on the jurisdiction!
54
Rowland v. Christian
Court rejects status approach
as the basis for landowner duty
New Unitary Standard:
Land Occupiers owe all persons entering
premises a duty of reasonable care
55
Nonfeasance
General Rule: No Duty for Nonfeasance
Exception 1: Special Relationships
Exception 2: Undertakings
Exception 3: Gratuitous Promises
56
THE STATUS OF THE STATUS APPROACH:
The Traditional Status Approach
The Unitary Approach
(substantial minority rule)
The Blended Approach
57
Misfeasance
risk-creating conduct
General Duty of Care
D owes a Duty to foreseeable Ps
58
NONFEASANCE
failure to act tobenefit P
General No-Duty Rule
D owes No Duty
Gen’lly, a FAILURE to take steps to
benefit or protect the P
from risks created by other persons or forces
P no worse off than if D not there at all
Exceptions
Special Relationships
Undertakings
Promise & Reliance
59
NEGLIGENT OMISSION
(risk-creating inaction)
A negligent omission is …
D’s failure to do something that
creates a risk to another
If D create the risk and then fails to act, D has a duty to the foreseeable Ps.
60
Hegel v. Langsam
Nonfeasance:
Univ. merely failed to take positive
steps to protect P from outside forces
No Duty:
Univ. had no duty to control the
private lives or associations of students
61
Duarte v. State
Nonfeasance:
University failed to take positive steps to protect student from murderer
Duty
University owed a duty to protect students
from violent assaults on campus
Based on a special relationship
62
SPECIAL RELATIONSHIPS
Entrustment
Ship Captain & Seaman In Distress
Hospitals & Patients; ERs & EEs
Common Carrier & Passenger
Legal Custodian & Charge
Jailor & prisoner
School & young student (not university)
Unique Position of Control & Quid Pro Quo
Innkeeper & Guest
Landlord & Tenant
63
Duty, Nonfeasance, & Special Relationships
A special relationship may give rise to a duty for nonfeasance to:
aid or rescue
warn or protect
control
Special relationships are typically based on entrustment, control, quid pro quo, or specialized knowledge
64
Types of Special Relationships
Entrustment
Ship Captain & Seaman In Distress
Hospitals & Patients; ERs & Ees
Legal Custodian & Charge (Control)
Jailor & prisoner
School & student
Quid Pro Quo or Unique Control of Premises
Innkeeper & Guest
Landlord & Tenant
Specialized Knowledge
Therapist & Patient
65
Commonwealth v. Peterson
As a General (No) Duty Rule:
A person does not have a duty to warn or protect another from criminal acts of a 3rd person
Exception:
There’s a special relationship between P & D
(business owner/invitee or landlord/tenant) &
The harm to P was particularly foreseeable
(an imminent probability of injury
66
Tarasoff v. Regents
| of Univ. of CA
Duty based on Special Relationship (“Tarasoff Duty”)
A therapist may owe a duty to take reasonable
steps to protect others from their patients
The duty to protect 3rd parties is based on –
the special relationship between
therapist & patient
The duty arises when therapist determines/shld have determined patient poses a serious threat to others
67
Riss v. N.Y.
Police have no tort duty to protect individual citizens from threatened crimes
68
PUBLIC DUTY DOCTRINE
Any duty owed by government actors is
owed to the public at large
rather than to any specific individual
69
UNDERTAKINGS
One who voluntarily undertakes efforts to
aid or protect another person acquires a duty
Traditional Rule
Not to abandon efforts so as to leave the
person in a worse position than before the undertaking
Modern View
To exercise reasonable care in providing aid or
protection during the actor’s charge
70
Good Samaritan
| Statutes
Good Samaritan Statutes ...
Protect rescuers from civil liability for negligence,
Provided rescuer acting in good faith
71
Gratuitous Promise
| & Reliance
A duty arises for nonfeasance when
D promises to
undertake efforts to help P &
P relies on D’s promise to his or
her detriment
72
Delong v. Erie County
Tort liability against County
for negligence in failing to rescue
may proceed where there is –
a gratuitous promise &
detrimental reliance
73
Hand Formula
If B < P x L then D acted unreasonably (breach)
If B > P x L then D acted reasonably (no breach)
P = Probability of harm occurring
L = Level of seriousness of the potential injury
B = Burden on D of avoiding harm (taking
precautions)
* Hand Formula only applies when SOC is Reasonable Care
74
Evaluating BREACH of the RPP Standard of Care
Hand Formula (B
75
Custom
A “custom” is …
A “fairly well defined” practice in the relevant business or industry
A widespread, common practice
In general, a custom/industry practice
May be used as EVIDENCE of what a
RPP wld do under similar circumstances
BUT it is NOT a conclusive test of breach
(B/c the custom itself may be unreasonable or
inapplicable under the circumstances)
76
Professional
| Standard of Care
Doctors are held to the standard of
conduct of –
The ordinary physician (member of the medical profession) in good standing
Under the same or similar circumstances
77
Boyce v. Brown
In malpractice cases,
The CUSTOM of the profession is determinative on the issue of breach
The doctor’s compliance with custom shields the doctor from liability
The doctor’s deviation from custom proves the doctor’s breach
78
To prove medical malpractice P must –
Offer affirmative Ev of community practice (custom) using expert testimony
Unless the negligent conduct is so
grossly apparent that a layperson
would have no trouble recognizing it
But, another Doctor’s alternative course of treatment is insufficient Ev of breach
79
Typical professionals subject to a professional standard of care
```
Medical Doctors
Attorneys
Dentists
Veterinarians
Architects & Engineers
```
80
Criteria for evaluating “professional” status:
Formal training
Licensing
Self-regulating
Complex judgment
81
Violation of Statute
| 2-step analysis
Using Violation of Statute to evaluate
breach requires a 2-step analysis –
A determination that statute is relevant (Judge should adopt)
A determination of the effect of the violation on breach (Jury use)
82
JUDICIAL ADOPTION OF STATUTES
TYPE OF HARM to be prevented
Whether P’s injury is the type of harm
the statute was designed to prevent
```
PROTECTED CLASS
Whether P belongs to the class of persons
the statute was designed to protect
```
83
EFFECT OF VIOLATION
| OF STATUTE
Negligence Per Se (w/ excuse)
Rebuttable Presumption
Evidence of Negligence
84
Traditional Negligence Per Se
Violation of a relevant statute is
conclusive evidence of breach
Negligence per se means ….
negligence “in itself”
85
Ney v. Yellow Cab Co
Prong 1: Type of Harm
(Whether P’s injury is the type of harm the statute was designed to prevent)
A type of harm the statute was designed to protect against (auto theft related safety) was the type of harm P suffered (auto theft related harm)
```
Prong 2: Class of Persons Protected
(Whether P belongs to the class of persons the statute was designed to protect)
```
The class of persons the statute was designed to protect (general public) was same class P was member of (a member of the public)
86
Osborne v. McMasters
* traditional neg.
* Violation of a statute- effect
[CB at 218]
Traditional Negligence Per Se
Violation of a relevant statute is
conclusive evidence of breach
Negligence per se means ….
negligence “in itself”
87
Zeni v. Anderson
| *Violation of a statute- Effect
REBUTTABLE PRESUMPTION
The violation of a relevant statute –
Establishes a prima facie case of
negligence (breach)
That may be rebutted by showing
an adequate excuse
88
Restatement EXCUSES to breach based on a Violation of Statute
(“I’ve got LICE!”)
```
Incapacity
Lack of knowledge of facts needed to comply
Inability to comply
Compliance creates greater risk
Emergency
```
89
Modern Rule
Negligence Per Se w/ Excuse
*Violation of statute: Effects
An UNexcused violation of a relevant
statute constitutes –
conclusive evidence of breach (negligence in itself)
90
Evidence of Breach
(minority rule)
*Violation of statute: Effects
Violation of an applicable statute
offers –
EV of breach that the fact finder
may accept or reject
91
Washington Pattern Jury Instructions
| *violation of statute example thing
The violation, if any, of a [statute] [ordinance] [admin. rule] [internal gov’tl policy] is not necessarily negligence, but may be considered by you as evidence in determining negligence.
COMMENT
RCW 5.40.050 provides, in part: “A breach of a duty imposed by statute, ordinance, or administrative rule shall not be considered negligence per se, but may be considered by the trier of fact as evidence of negligence ….”
92
NEGLIGENCE
| ELEMENT 2 – BREACH & RES IPSA
3 things
Direct v. Circumstantial Evidence
Doctrine Prerequisites
Effects of Doctrine
93
APPROACHES FOR EVALUATING BREACH
Hand Formula
Community/Industry Custom
Violation of Statute
Res Ipsa Loquitur
94
PROOF OF NEGLIGENCE
| DIRECT EVIDENCE of NEG.
Ev of negligence from personal
| knowledge or observation
95
PROOF OF NEGLIGENCE
| CIRCUMSTANTIAL EV of NEG
Ev from which a jury may infer negligence
96
RES IPSA LOQUITUR
| The “thing speaks for itself”
Allows jury to infer the D breached
Without any proof other than the
happening of the event itself
97
Res Ipsa Prerequisites
*Byrne v. Boadle
The event ordinarily does not occur w/o some negligence (e.g. a barrel rolling out of a window)
The instrumentality was in D’s control
Effect of Res Ipsa: A presumptive inference of negligence
98
McDougald v. Perry
Prerequisites for Res Ipsa:
An injury causing event that does not
ordinarily occur w/o negligence
D’s exclusive control over the instrumentality
Effect of Res Ipsa: A permissive inference of negligence
99
Larson v. St. Francis Hotel
Prerequisites for Res Ipsa:
- An injury causing event that does not
ordinarily occur w/o neg
- Instrumentality in D’s “exclusive” control
(P must eliminate “all possibility” event caused by someone other than D)
100
Cruz v. Daimler Chrysler Motors
Prerequisites
The event is of a kind which ordinarily does not occur in the absence of neg.
Other responsible causes, including the conduct of the plaintiff & 3rd persons are sufficiently eliminated by the EV
Effect of Res Ipsa
A permissive inference of negligence
101
Jurisdictional Split re Control Required - Res Ipsa
Traditional Approach
P must prove D’s “exclusive” control (Larson Case)
No possibility event caused by someone other than D
Modern Approach
Other responsible causes (other than D) “sufficiently eliminated” (Restatement)
More likely than not D had control of the instrumentality at the time of the negligence
102
PROCEDURAL EFFECTS
Res Ipsa Loquitur may establish:
A permissible inference of breach
[majority rule]
A presumptive inference of breach
[minority rule]
103
Res Ipsa Loquitur
| 2-step analysis
Using Res Ipsa Loquitur to evaluate
breach requires a 2-step analysis
A determination that facts of the case meet the res ipsa prerequisites
A determination of the procedural effect of res ipsa evidence
104
ELEMENT #3: CAUSATION
I. Factual Cause (cont.)
A. “But For” Test
B. Exceptions to the “But For” Test
II. Proximate (Legal) Cause
A. General “Foreseeable” Harm Rule
B. Clarifying Principles
C. Superseding Intervening Forces
III. Joint Tortfeasors
105
Factual Cause
Generally, P must show that -
| But For D's negligent conduct, P's harm would not occured.
106
MULTIPLE CAUSE SCENARIOS
(multiple negligent acts cause P a single injury)
*Causation
MULTIPLE “NONE ALONE” CAUSES
(in combination causes)
-Apply BUT FOR test
MULTIPLE “ANY ALONE” CAUSES
(redundant causes)
-Apply SUBSTANTIAL FACTOR test
107
“BUT FOR” EXCEPTIONS
| *Causation
```
Any Alone Causes (Subst’l Factor Test)
Who Done It Situations (Burden Shifting)
- Summers v. Tice
- Enterprises
- Market Share Liability
```
108
Summer v. Tice
Where P cannot determine which of several
negligent Ds caused the harm,
The burden of proof shifts to Ds &
Ds must prove they were not a factual
cause of P’s harm
109
Perkins v. Texas & New
Orleans RR
*factual cause
“It is fundamental that negligence is not
actionable unless …
“it is a cause in fact of the harm for which recovery is sought.”
“It need not . . . be the sole cause.”
110
FACTUAL CAUSE: “BUT FOR” TEST
Generally, P must show that –
“But for” D’s negligent conduct,
P’s harm would not have occurred
D is not a factual cause of P’s injury –
If P’s injury would have occurred anyway
(regardless of D’s neg. conduct)
111
Applying the “BUT FOR” Test
Replay the event &
Take away D’s negligent conduct
-If P Unharmed => D is A FACTUAL CAUSE
-If P STILL injured => D is NOT A FACTUAL CAUSE
112
Reynolds v. Texas
& Pac. RR
*Causation
What Done It?
The “mere possibility” that P’s injury might have happened without D’s neg. conduct …
is not sufficient to break causal link
113
Post Hoc
| *causation
One thing follows another
| Does not satisfy factual causation
114
Propter Hoc
One thing happens because of something else ("on account of this")
115
Hill v. Edmonds
In None Alone multiple cause scenarios,
The “But For” Test applies
Each actor is responsible if
their separate acts of negligence combine to produce a single injury
116
Anderson v. Minn.
| St. Paul RR
In Any Alone multiple cause scenarios,
Where 2 forces either of which alone could have independently caused the harm
Apply the Substantial Factor Test:
Applying the substantial factor test, each D’s neg. will be a cause in fact if …
it materially contributed to
bringing about P’s harm
117
RS (2nd) BURDEN SHIFTING
The burden of proof shifts to Ds to prove
they were not a cause in fact where:
Small # Ds
Simultaneous negligent conduct
Conduct created similar risks
Only 1 D actually inflicted P’s injury
____________________
All Ds joined in lawsuit (some juris)
118
Enterprise (Industry-Wide) Liability Theory
Enterprise theory shifts the burden to Ds to
show they were not a “but for” cause where:
The entire industry group is small
An industry-wide practice creates an
unreasonable risk of harm
The industry group jointly controls the risk
119
Market Share Liability
Sindell v. Abbott Labs
*Factual cause- who done it
Under exception, if P can
-Join Ds constituting a "substantial share of market &
-Show these Ds made and marketed DES
then burden shifts to Ds to prove lack of causation (they did not make pills P took)
If D cannot meet burden,
- D responsible for a share of P's damages &
- The portion is based on D's market share of DES
120
Policy Considerations: “A FFair DEAL
A = Allocation of Loss
FFair = Foreseeability & Fairness (moral blame)
D = Deterrence
E = Economic Burdens (on D & community)
A = Administrative Concerns
L = Legislative Considerations
121
Atlantic Coast Line R. Co.
| v. Daniels
Factual cause alone
can not be the basis
for negligence liability
122
Proximate Cause Tests
Foreseeable Consequences (maj. rule)
Restatement Factors* (min. rule)
Direct Causation* (mostly obsolete)
______________________
* You will NOT be tested on this test.
123
Overseas Tankship v. Morts Dock (Wagon Mound No.1) [CB at 323]
*Proximate cause
Foreseeable Consequences Test
D’s liability depends on the reasonable foreseeability of the consequent damage
Ds are only liable for anticipated, expected consequences of their negligent acts
124
FORESEEABLITY TEST
What actual type of harm, actual consequence did P suffer
What were the expected risks of D's neg conduct?
-Was P's type of harm one of the expected risks?
If NO match = no proximate cause
If YES match = proximate cause unless SIF
125
Foreseeable Consequences Test
D’s liability depends on the reasonable foreseeability of the consequent damage
126
Clarifying Principles
Extent of Harm
Eggshell Skull Plaintiffs
Manner of Harm
127
Extent of harm rule
So long as P's type of harm was reasonably foreseeable,
| -The extent of p's harm need not be foreseeable.
128
Eggshell Skull Plaintiff Rule
So long as a personal injury is reasonably foreseeable –
P’s particular/more extensive personal injury need not be foreseeable for proximate cause
129
Bartolone V. Jeckovich
Eggshell rule
A D must take a P as he finds him
D may be held liable for aggravation of P’s pre-existing conditions
130
Manner of Harm Principle
So long as Ps type of harm was reasonbaly foreseeable
| -The manner (sequence of events) in which the harm occurred need not be foreseeable
131
PROXIMATE CAUSE ANALYSIS
Foreseeable Consequences
P’s type of harm must be a reasonably
foreseeable consequence of D’s negligence
```
Intervening Forces
No superseding (unforeseeable) intervening forces
All intervening events must be foreseeable to maintain causal link
```
132
Proximate Cause - Superseding Forces
Superseding ---> Unforeseeable intervening forces -->Cut off liability harms (no proximate cause)
NON- Superseding --> Foreseeable intervening forces --> D remains a proximate cause
133
3 INTERVENING FORCES PATTERNS
LATER NEGLIGENCE BY OTHERS - often foreseeable (not superseding)
LATER INT’L/CRIM CONDUCT - often unforeseeable (superceding)
LATER ACTS OF NATURE -
often foreseeable (not superceding)
unless extraordinary & unanticipated
134
*Derdiarian v. Felix Contracting
| Foreseeable Intervening Act Rule
If intervening act is a Foreseeable outcome of D’s neg...
it is NOT superseding &
D remains a proximate cause
If intervening act is UNforeseeable
(extraordinary/far removed from D’s neg)...
it is Superseding &
it severs proximate cause
135
Watson v. Kentucky & Indiana Bridge & R.R. [CB at 350]
*Proximate Cause - Intervening Forces
An intervening intentionally malicious act is an unforeseeable later act &
therefore a superseding intervening force that breaks the causation chain (no proximate cause)
136
Type of Harm Foreseeable?
Foreseeable Consequences Test
Clarifying Principles
Extent of Harm Rule
Eggshell Skull Plaintiff Rule
Unusual Manner Principle
Rescue Doctrine (new!)
137
The rescue doctrine
As a general rule, if P is a rescuer injured attempting rescue necessitated by D's negligence
- P's harm will be a foreseeable consequence of D's negligent conduct
- "Danger invites rescue"
138
2 Part Proximate Cause Analysis: Part II
Intervening Forces
- No superseding (unforeseeable) intervening force
- All intervening events must be foreseeable to maintain causal link
- 3 Rules of Thumb
139
Palsgraf Dissent
```
Proximate Cause ”Hints”
-Something w/o which the event would
not have happened
-Foreseeable
-Natural & continuous sequence
-Not too attenuated (in time & space)
```
-Direct connection (few intervening factors
140
Palsgraf Dissent
“There is in truth little to guide us other than common sense”
“What we do mean by the word ‘proximate’ is that, because of convenience, of public policy, of a rough sense of justice,”
“The law arbitrarily declines to trace a series of events beyond a certain point”
– J. Andrews
141
Negligence Damages element
P must prove actual damages (monetary loss) as part of her prima facie case for negligence
142
BASIC TORT DAMAGES
compensatory
punitive
nominal
143
COMPENSATORY
| DAMAGES
To make the injured party “whole”
As compensation, restitution, or indemnity (& nothing more)
144
Personal Injury
| Compensatory Damages
Pain & Suffering
Medical Related Expenses
Lost Earnings/Earning Capacity
145
Property Damage
| Compensatory Damages
Full market value
Loss in market value
Rental value
146
PUNITIVE DAMAGES
An additional monetary sum awarded where
D acted w/ malice or reckless disregard:
- to punish the D
- to deter the D & others engaged in
similar conduct
Punitive damages are not awarded in ordinary negligence actions
Note: In WA, punitive damages are not available (unless explicitly provided for by statute)
147
NOMINAL DAMAGES
Typically a small, symbolic sum awarded if P has no actual damages
to vindicate P’s rights &
to prevent D from acquiring
prescriptive rights
Nominal damages are not available in negligence actions. P must prove actual damages to prevail
148
General Damages Rule
- Single recovery rule
- Avoidable consequences doctrine (Aka duty to mitigate)
- Collateral Sources rule
- Maximum recovery rule
149
SINGLE RECOVERY RULE
All compensatory damages for P’s losses (past, present & future) must be awarded at the time of trial
TIME VALUE OF MONEY ADJUSTMENTS
Downward to Present Value
Upward for Inflation
150
Doctrine of avoidable consequences (aka duty to mitigate) #1
P may not recover for any exacerbation of damages that
| -P could have avoided by exercising reasonable care after D's legal wrong brought about the harm
151
Doctrine of avoidable consequences (aka duty to mitigate damages) #2
in personal injury cases, P cannot recover damages for injuries that
- P could have readily avoided (e.g. by obtaining appropriate medical treatment)
152
Doctrine of avoidable consequences # 3
In personal injury cases, P cannot recover damages for injuries that
- P could have readily avoided (e.g. by obtaining appropriate medical treatment)
153
Doctrine of avoidable consequences
Doctrine of avoidable consequences
V.
P's own negligence (comparative/contributory negligence defense)
154
COLLATERAL SOURCE RULE
| *Montgomery Ward v. Anderson
Payments made to injured P from other sources are not credited against D’s liability [RS2nd]
Excludes Ev of payments to
P from sources collateral to D
wrongdoer
155
Procedural Aspect
| *Collateral source rule
Prohibits Ev of payments to P from sources collateral to D
156
Substantive Aspect
| *Collateral source rule
Payments from collateral sources are not credited against D's liability
*Tort reform efforts have modified and/or eliminated this rule in many states
157
Remittitur
*Anderson v. Sears
Roebuck & Co.
- Procedure by which an excessive jury verdict is reduced.
| - The judge may order the plaintiff to remit a portion of the award (or face a new trial).
158
MAXIMUM RECOVERY RULE
Trial Judge must determine:
-whether jury verdict exceeds maximum amount a reasonable jury would award
-A jury’s award may not be second-guessed
judicially if it is within the maximum amount
of damages reasonably supported by the
evidence
159
PERSONAL INJURY DAMAGES
```
Pain & Suffering
Medical & related expenses
Lost earnings v. lost earning capacity
Disability & Disfigurement
(aka “loss of enjoyment of life”)
```
________________
* D & D may be included with pain & suffering
160
Medical & Medical related costs
Medical & medical related cost awards reimburse P for expenses of
- diagnosing & treating P's injuries resulting from the tort
- E.g., hospital bills, rehabilitation therapy, ongoing nursing care
161
Lost earnings and lost earning capacity
- Compensation for actual lost wages or income due to the injury (what P would have earned)
- Compensation for P's lost potential to earn income due to the injury (what P could have earned)
162
Disability & Disfigurement (aka loss of enjoyment of life)
Disability & disfigurement awards compensate P for...
| -Lost life experiences and lost life pleasures due to physical & mental impairment
163
Legal Videos
“Day-in-the-life” videos constitute evidence (usually admitted during the damages phase):
To show jurors the impact of a catastrophic injury on victims & their families
- “Settlement documentary” (videos are used pre-trial):
- To present plaintiff’s case to mediators, jurors, and opposing counsel
164
PROPERTY DAMAGES
Complete destruction
→ fair market value
Partial damage
→ diminution in fair market value or
→ reasonable cost of repair
Temporary deprivation of use
→ rental value
165
JOINT TORTFEASORS are...
Defendants who either:
Act in concert
Cause a single indivisible harm
Are vicariously liable
166
Acting in concert
Ds are joint tortfeasors if...
- they agree to engage in or aid one another in committing a tort or
- they encourage one another to commit a tort
- e.g., participate in drag race
167
Indivisible injury
Ds are joint tortfeasors when...
- their independent acts bring about a single indivisble harm
- e.g., independent neg acts by D1 & D2 turn into a human fireball
168
Vicarious liability
Ds are joint tortfeasors where
- a relationship between them makes one liable for the torts of the other
- e.g. employers may be held liable w/o fault for certain torts by their employees
169
Joint & Several liability
Common law traditionally allowed
P to recover –
the entire amount of damages
from any one joint tortfeasor or
A share of the damages from
each joint tortfeasor
----- Under common law joint & several liability, multiple (solvent) Ds typically
Ended up responsible for pro rata shares
of P’s total damages either because
- - P’s collected evenly from all, or
- - the D held responsible by P then sued others for contribution
170
Bartlett v. New Mexico Welding Supply
Adopts principle of comparative fault among liable Ds
Each D now only liable for a fault based share of P’s total damages
P must bear the risk of unknown or insolvent Ds
171
Joint & Several Liability
| modern and traditional rules
Joint & Several Liability
(traditional rule)
P may recover the entire amount of damages from any joint tortfeasor
Comparative Fault Among Ds
(modern rule)
P may recover only a fault-based share of damages from any joint tortfeasor
172
DEFENSES TO NEGLIGENCE
| based on Ps conduct
Contributory Negligence
Comparative Negligence
Assumption of the Risk
173
CONTRIBUTORY NEGLIGENCE
P’s own negligence bars all recovery
from other negligent persons
Applies where P’s own conduct:
falls below “the standard of conduct” which
P should conform for her own protection
is “a legally contributing cause” w/ D’s neg
in bringing about P’s harm
174
Butterfield v. Forrester
Contributory Negligence Defense
“One person being in fault will not
dispense with another’s using ordinary
care for himself”
175
LAST CLEAR CHANCE DOCTRINE
Creates an exception to the
contributory negligence defense where:
- D had the opportunity to avoid the accident after the P no longer could
- If applicable, D remains liable despite
P’s prior negligence
176
DEFENSES BASED ON
| P’S OWN NEGLIGENCE
CONTRIBUTORY NEGLIGENCE
P’s own negligence bars all recovery
from other negligent persons
Unless D had the Last Clear Chance to
avoid the harm
177
McIntyre v. Balentine
The McIntyre Court …
Rejected Contributory Negligence
Adopted Comparative Fault
Modified comparative negligence
- P's recovery is reduced by P's own percentage of fault
- Unless P's own fault is > 49% then P's recovery is completely barred
- P recovers so long as P's neg is < D's neg (aka "the equal to or greater than fault bar)
178
COMPARATIVE NEGLIGENCE
| (modern majority approach)
P’s own negligence reduces P’s recovery from other negligent persons
Unless P’s negligence exceeds a set level of fault & then P’s claim is barred
179
COMPARATIVE
| NEGLIGENCE FORMS
PURE Comparative Neg (minority)
MODIFIED Comparative Neg (majority)
MODIFIED & MULTIPLE Ds
-combined fault rule (maj. rule)
-individual fault rule (min. rule)
180
Pure Comparative Negligence
P recovers from Ds regardless of
P’s own negligence
But, P’s recovery reduced by P’s own
share of fault
181
MODIFIED Comparative Neg.
P’s recovery is reduced by P’s own
share of fault,
Unless P’s neg exceeds the set level of culpability, at which point P’s recovery is completely barred
“Greater Than” Fault Bar (majority)
“Equal or Greater Than” Fault Bar
“More than Slight” Fault Bar (1 state)
182
Assumption of the risk
Where P knowingly & voluntarily assumes responsibility for a risk:
- Generally P can not hold D liable
183
DEFENSES BASED ON P’S CONSENT TO ACCEPT RISK
Express Assumption of the Risk
- P explicitly agrees in advance to assume
a risk
Implied Assumption of the Risk
- P’s assumption of a risk is implied by P’s conduct
184
Seigneur v. National
| Fitness Institute
Express Assumption of the Risk
-Exculpatory clauses valid unless ambiguous or legislatively prohibited
Exceptions:
- Int’l or reckless, wanton, or grossly neg. conduct
- Grossly unequal bargaining power
- Public interest transactions
185
Public Interest Transactions
Totality of the Circumstances Test
- public service obligations
- important to public good where exculpatory clause “patently offensive”
Tunkl Test Factors
```
Suitable for public regulation
Essential service
Services held open to public
Superior bargaining power
Adhesion K
Seller control over & subjects P to risk
```
186
Implied Assumption of risk
P's consent to accept responsibility is implied by P's conduct
P’s recovery barred if D proves P’s conduct shows –
P knew of the risk & its magnitude
P voluntarily encountered the risk
187
Rush v. Commercial
| Realty [CB at 644]
Implied Assumption
of the Risk Defense
P must know of risk (subjective knowledge)
AND
voluntarily encounter it
188
Jurisdictional
Split
IMPLIED
A/R
P’s conduct is voluntary ….
- unless coercion or duress (broadens defenses)
- only if P had reason. alternatives (restricts defense)
189
Meshing Implied A/R & Comparative Negligence
Jurisdictional Split
A/R Subsumed (modern trend)
Unreasonable A/R reduces P’s recovery according to Comparative Fault rules
A/R no longer bar on P’s recovery
A/R Retained (traditional rule)
A/R Remains Complete Defense (full bar)
190
Express A/R Fully Retained
A/R Remains Complete Defense
P’s claim barred regardless of P’s negligence or lack of negligence
191
Vicarious liability
The negligence of one person is imputed to another person based on the relationship between them
192
Vicarious liability special relationships
- employer/emplyee
- employer/ IC
- Joint enterprise
- bailments
193
Employment V/L framework
Step 1:
Is the tortfeasor an EE or IC?
Step 2:
if EE was s/he acting with scope of employment?
If IC, do any of the ecveptions to the general rule of no V/L apply?
194
Vicarious Liablility Rule
Employees (EE)
in general an ER is liable for torts for an EE committed w/in the scope of employment
IC
in general an ER is not liable for torts of an IC
195
Murrell v. Goertz
To determine tortfeasor’s status as EE or IC
Court applied “right of control” test
The more control over performance of
the work that ER has, the more likely
tortfeasor will be considered an EE
196
Factors for evaluating EE v. IC status
- Control ofver details of work
- similarity of occupation or business
- supervision
- skills
- Tools and place of work
- Duration
- Payment method
- understanding of the parties
197
Bussard v. Minimed - within the scope of employment
Within the Scope of Employment
While performing services for the
Employer (ER)
While engaged in personal acts
incidental to employment (comfort & welfare)
While participating in dual acts
198
*Bussard v. Minimed
| “GOING & COMING RULE”
An EE is ordinarily outside the scope of work while commuting to & from work
Exception: foreseeable dangers “arising from or related to” work
199
O’Shea v. Welch
FROLIC & DETOUR RULE
(aka “Slight Deviation” Rule)
An EE is ordinarily outside scope of work while on a frolic (major deviation)
An EE is ordinarily within scope of work if merely on a detour (slight deviation)
Personal acts far removed in time, distance, purpose, or expectations of the employment are frolics
Personal acts closely related in
time, distance, purpose & expectations of employment are mere detours
200
APPROACHES FOR DETERMINING
| W/IN THE SCOPE OF EMPLOYMENT
Engaged in ER work or Personal Conduct Incidental to work (including dual acts)
- Foreseeable dangers related to or arising from the employment
- Mere Detour (v. Frolics)
- ER Right of Control
- Furtherance of ER Purpose
201
Vicarious Liability & Intentional Torts
An ER may be held V/L for some intentional torts by its EEs
202
Vicarious Liability & Damages
If an EE acts negligently, P may recover compensatory damages from a V/L ER
If an EE commits an intentional tort, P may recover compensatory damages from a V/L ER (no other damages)
203
ANALYTICAL APPROACH
| for V/L
STEP 1:
Is the tortfeasor an Employee (EE) or
an Independent Contractor (IC)?
STEP 2:
If EE, was s/he acting within the
“scope of employment”?
If IC, do any of the exceptions to
the general rule of no V/L apply?
204
INDEPENDENT CONTRACTORS
GENERAL RULE:
In general, ERs are not liable for the torts of Independent Contractors
MAJOR EXCEPTIONS:
Nondelegable Duties (nondelegable liabilities)
Inherently Dangerous Activities
205
Maloney v. Rath
| *Nondelegable duty
Nondelegable Duty Exception
Nondelegable duty exists for
motorist’s safe maintenance of cars
Motorist can be V/L for mechanic/IC torts for unsafe car maintenance
206
NONDELEGABLE DUTY EXCEPTION EXAMPLES:
Car Owner’s duty to safely maintain brakes
General contractor’s duty to construct
buildings safely
Landowner’s duty to maintain ppty in
a reasonably safe condition
A hospital’s duty to provide emergency care
207
Inherently Dangerous activities
| *IC
Activities that by their nature involve rave risks of harm
208
Inherently dangerous activity exception
| *IC
ER may be V/L for negligence of IC engaged for inherently dangerous activities
209
INHERENTLY DANGEROUS ACTIVITY EXCEPTION EXAMPLES:
| *IC
crop dusting w/ poisonous chemicals
transporting giant logs on a highway
painting lines in middle of road
unloading propane gas at filling station
210
INHERENTLY DANGEROUS - ACTIVITY EXCEPTION
ER may be vicariously liable for neg of
IC engaged for inherently dangerous activities
EXCEPTION TO THE EXCEPTION:
COLLATERAL NEGLIGENCE
ER is NOT vicariously liable for collateral
neg. of IC engaged in inherently dang activity
“Collateral Negligence” is risk creating conduct unrelated to the inherent danger of activity
211
JOINT ENTERPRISES
| GENERAL RULE
Vicarious Liability
may be imposed upon those engaged in a joint enterprise
212
Popejoy v. Steinle
| *Joint enterprise test
Joint Enterprise Test
Agreement
Common Goal
Pecuniary Purpose
Equal Right to Control
213
Bailment Relationships
Generally bailors are NOT vicariously liable for acts of Bailees
Exceptions:
bailor/passenger
family purpose doctrine (or family car doctrine)
automobile consent statutes
214
Malchose v. Kalfell
Family Car Doctrine
Imposes V/L on owner-lender (bailor) of a car for
Negligent operation by a person driving with consent (bailee) for family purposes
215
VICARIOUS LIABILITY
| and Negligence
D is liable for negligence of another person based on their relationship (imputed liability)
NEGLIGENCE
D’s own conduct is negligent, falls below the applicable standard of care
“negligent entrustment” is D’s own negligence in entrusting chattel
