First Year Torts

8/13/2019 First Year Torts

http://slidepdf.com/reader/full/first-year-torts 1/27

I. Intentional Torts – Π must prove tortious intenta. Tortious intent is:

i. A volitional act ANDii. Purpose of tortious consequence OR

iii. Substantial certainty of the tortious consequence (because if you’re sure of the consequence, ytreated as if the consequence was your purpose, it’s the moral equivalent.)

b. Transferred intenti. If you intend to hit A, and you hit B, the intent transfers

ii. If you intend to commit one tort but actually commit another, the intent transfers (egg, if you ito commit assault and commit a battery, the intent transfers as if you had intended the battery

c. Mistake doctrinei. The law assumes you are held accountable as if you did know the correct identity of the thing y

acted ond. Recklessness

i. The reckless actor’s state of mind is indifference to risk, when the effort to mitigate the risk reqfar les of the actor than the risk (i.e., “I could make this safer with slight effort on my part, but Icare about the risk!) That’s the difference between an intentional act and a reckless act.

e. Batteryi. Prima Facie elements:

1. Tortious intent (to bring about the harmful or offensive touching)2. An offensive and harmful touching (contact element, there must actually BE a harm

offensive touching)3. A Causal link4. “Offensive” is judged based on the reasonable person construct

a. If you are on specific notice a particular touching would be offensive, it couldconstitute a battery, even if such touching would not offend another person,because reasonable people don’t go around touching people in manners thebeen advised are offensive.

f. Assaulti. Prima Facie Elements:

1. Tortious intent2. Of bringing about a reasonable apprehension of imminent battery3. Causal link between the intent and the apprehension

a. Essence of assault is the awareness you are ABOUT to be touched in an offenharmful way

i. Battery does not require awareness, assault doesii. Assault is reasonable apprehension of offensive or harmful touching,

battery is if the offensive or harmful touching actually occurred.g. False imprisonment

i.

Prima Facie elements1. Tortious intent (to confine)2. Confinement3. A causal link between the tortious intent (volitional act) and the actual confinemen

must INTENT to confine and there must BE a confinement)a. There must be awareness of the confinement OR actual harmb. No requirement to prove damagesc. Confinement exists even if there is a reasonable means of escape if the confi

does not know of it or if circumstances are such to make it offensive to areasonable sense of decency or personal dignity, but he must use it if it onlya slight inconvenience or requires him a technical invasion of another’s land



d. It is not false imprisonment to prevent someone from going in a particulardirection in which they have a right or privilege to go, unless by threat of phforce upon the other going or attempting to go beyond the area in which theintends to confine him.

h. IIEDi. Prima Facie elements:

1. Tortious intent (volitional action with at least substantial certainty of causing severemotional distress) (or reckless in many cases)

2. Outrageous conduct3. Severe emotional distress4. Damages

a. Requires proof of damages in the prima facie case, in fact, there is a heightenrequirement of “severe” damages in that you must prove a particularly highof emotional distress

b. Unlike other intentional torts, damages are not presumedc. Uses a flexible doctrinal policy standard unlike the bright line rule used in to

like batteryi. I.e. “outrageous” and “severe” are flexible standards that lead to

interpretation. Actual physical harm not needed for IIEDi. Interference with Property

i. Trespass to land1. The right violated is the right to exclusive possession of the land2. Prima facie elements

a. A possessory interest in the real propertyb. Intentc. Causal link between the volitional act that forms the intent and the invasiond. Mental state required is a state of purposeful action or substantial certainty

create an invasione. No requirement of a particular amount or type of damage.

3. Invasion could be with your person4. You’re liable even if you mistakenly believed that the land was yours or that you ha

permission to be there.ii. Nuisance to land

1. Difference from Trespass is in the right violated – in nuisance the right violated is tright to use and enjoyment of the land.

a. Public Nuisance: §821B (1) a public nuisance is an unreasonable interferenca right common to the general public (2) circumstances that may sustain a hthat an interference with a public right is unreasonable include the followin

i. (a) whether the conduct involves a significant interference with the phealth, the public safety, the public peace, the public comfort or the p

convenience or (b) whether the conduct is proscribed by a statute,ordinance or administrative regulation or (c) whether the conduct is continuing nature or has produced a permanent or long lasting effectas the actor knows or has reason to know, has a significant effect on tpublic right

ii. who can recover for public nuisance, one must have suffered harm ofdifferent from that suffered by other members of the public exercisinright common to the general public that was the subject of interferenorder to maintain a proceeding to enjoin or abate a public nuisance, omust have the right to recover as indicated above OR have authority public official or public agency to represent the state OR have standin



sue as a rep of the general public, as a citizen in a citizen action or as member of a class in a class action

b. Private Nuisance §821D a private nuisance is a nontrespassory invasion ofanother’s interest in the private use and enjoyment of land.

iii. Trespass to chattel1. Elements

a. Intentb. Interference with owner’s right

c. Causal linkd. Actual DAMAGES REQUIRED – because a lot of people come into contact wit

people’s property, if we allowed lawsuits for this without damages, we woula real problem, we require damages to prevent frivolous suits

iv. Conversion1. More serious degree than trespass to chattel2. ∆ should have to pay full value of property to Π because they deprived π so substan

of their right to the property that they converted it just as if they stole it and lost ordestroyed it.

3. Factors in determining conversion: The extent and duration of the actor’s exercise dominion or control, the actors intent to assert a right in fact inconsistent with the right of control, the actor’s good faith, the extent and duration of the resultinginterference with the other’s right of control, the harm done to the chattel, theinconvenience and expense caused to the other

j. Defenses to Intentional Torts:i. Consent – defense that must be proved

1. Can negate offensiveness of touching and confinement2. If the definition of the tort includes unpermitted action, consent means it isn’t a tor

negates prima facie case3. Consent to sport only extends to injury permissible within the rules of the game an

not extend to intentional causation of injury outside the game or violation of safetyduring the games.

4. Consent can be vitiateda. By misrepresentation that is material to the point in question

i. Scattergood DeMay- misrepresenting a person as a medical professioDID vitiate consent to allow him to touch the wife

ii. McPherson- husband misrepresented fidelity, but absent evidence heor should have known he was infected with STD, the misrepresentatito material fact does not vitiate consent. (Material fact was STD statufidelity)

5. Consent may have been exceeded6. May have no objective manifestation

7.

May be consent to an illegal act (can’t) 8. Can be revoked9. Can be defeated by non disclosure

ii. Self Defense1. Right if there is a real danger or a reasonable belief that there is a danger2. Right ends when the danger abates- only allowed to utilize the amount of force

reasonably believed to be necessary to prevent attack. You may be liable for the excexcessive force is used, but it doesn’t vitiate the privilege.

3. Can be asserted to prevent or resist an attack but not to retaliate4. Deadly force allowed only if

a. You reasonably believe that doing so is necessary to resist an attack of dead



b. Completely safe retreat is not available (except that you need not flee home business before using deadly force)

c. If there is reasonable doubt as to safety of retreat, defender may stand and k5. Right to defend others

a. You may use force to protect others from attack so long as you have the reasbelief that force is necessary

i. Some jurisdictions do not allow for erroneous but reasonable belief, bmost do.

6. So the questions to ask in self defense are:a. Was the force justified to start with?b. What level of force was justified?c. How long was force justified for?

iii. Defense of Property1. You may protect property with reasonable force

a. Protect against dispossession or destructioni. May not attempt to recapture property once taken unless

1. Under the limited privilege of fresh pursuit of goods when youa. Retrieve goodsb. Detain only in order to call law enforcement

ii. Reasonable force does not include that which is likely to1. Take life2. Inflict great bodily injury

iv. Necessity1. Public §196 Restatement (third): One is privileged to enter land in the possession o

another if it is, or if the actor reasonably believes it to be, necessary for the purposeaverting an imminent public disaster

2. Private §197 1)One is privileged to enter or remain on land in the possession of anif it is or reasonably appears to be necessary to prevent serious harm to

a. The actor, or his land or chattels orb. The other or a third person or the land or chattels of either, unless the actor

or has reason to know that the one for whose benefit he enters is unwilling tshall take such action

2) Where the entry is for the benefit of the actor or a third person, he is subject liability for any harm done in the exercise of the privilege stated in Subsection (any legally protected interest of the possessor in the land or connected with it, ewhere the threat of harm to avert which the entry is made is caused by the torticonduct or contributory negligence of the possessor.

II. Negligence

a. Prima facie elementsi. Duty

ii.

Breachiii. Cause in factiv. Legal cause (limits liability even when there’s a breach v. Damages

b. Proof of Negligence – don’t destroy evidence, judge could direct a verdict or instruct the jury to pthe evidence against youi. Types of evidence: Expert testimony, circumstantial, direct, physical evidence, testimony

ii. Particularly eyewitness testimonyiii. Admissions (i.e., other driver got out and said “oh, I’m so sorry, it’s all my fault) iv. Circumstantial- facts that together create an inference that a certain thing was more likely than

c. Substandard care



d. Reasonable personi. Reasonable person construct – how an objective, fictive, prudent person SHOULD act under the

circumstances1. Unique characteristics of the actor

a. Lesser intelligence usually not relevant (Vaughan v. Menlove – fire in the hab. Physical disability is relevant (Roberts v. State of Louisiana – blind man in th

office) we ask about conduct of a reasonable person with that same disabiliti. Because, for example a blind person can’t see dangers, a person with

leg can’t run, etc. Old age only taken into account insofar as it relates physical disability (80 yr old w a walker can’t run away from a hazar

c. Higher standard for special skills – i.e., doctor – we ask what a reasonable dothe same type would do. Electrician , etc.

i. Policy – because the other party (usuallyπ) probably relied on therepresentation of advanced skill before entering the relationship. Dousually apply to incidentals, ie, if an expert skier and novice skieraccidentally collide on a slope. Don’t want to encourage people to notwhat they are doing. Would be diff. if it was a ski instructor/student. exception for beginners (ie, the instructor probably can’t sue the studKNEW student didn’t know what they were doing, but if student hurtthird party, they will be successful, beginner status not considered)

d. Childreni. A child of like age, intelligence, and experience (majority view)

ii. Adult activity exception- usually limited to licensed activities like dricar. (Majority view)

iii. Child under 5 incapable of negligence §10 (SOME jurisdictions)iv. POLICY: children are less able than adults to maintain an attitude of

attentiveness to risk their conduct may cause and to understand riskalternative courses of action/appropriate choices. Third partiesencountering a child, say, driving a car, cannot adjust their behavior tmake allowances for a child’s proximity.

e. Custom- if an actor’s behavior complies with the customs of community or oin like circumstances, it is evidence of non-negligence but not dispositive.Departure from the custom above in a way that increases risk is evidence ofnegligence but not dispositive

i. Policy- evidience actor has complied w custom in adopting someprecautions may bear on whether others were available, feasible, andshould’ve known of them (if others usually take same course of cond‘ordinary care’ has bearing on ‘reasonable care. NOT conclusive)

ii. In the case of a business with a policy standard, action less than that show negligence, because the existence of the policy eliminates any c

by ∆ that the risk was unforeseeable. Π may have relied on the standaMay or may not be admissible.e. Violation of statute

i. Breach of a statute establishes negligence per se1. Conclusive of the breach element of negligence (breached by being negligent) not o

larger tort of negligence, other elements must still be proved (ie, if a person drivingis rear ended by the other driver, there is negligence per se but that wasn’t the causfact)

a. Some state (OR included) view statutory violations as only a presumption obreach negligence

2. If it establishes negligence per se, we ask:



a. What is the purpose of the statuteb. Would the purpose be defeated by compliance? (Tedla – Pedestrians on the

side of the road because of traffic)c. Was it the type of harm designed to be protected against? (Gorris – sheep on

ship)d. Was π the class of persons designed to be protected? (Potts – employee and

banana spiders)3. Complying with a statute is evidence of nonnegligence but does NOT preclude a fin

negligence. (unless a precaution that could’ve been taken would’ve required violatithe statute –not negligent for failing to adopt violational precautions.

f. Res ipsa loquituri. Highly doctrinized subspecies of circumstantial evidence

1. The doctrine implies the court does not know and has no way to find out what actuhappened, so likely negligence is derived from knowledge of the causes of the type category of accidents involved. There is a risk of error, uncomfortable bc ∆ can be fneg. w/out any evidence of ∆ actual conduct - leads to circumspection in application

ii. Facts that together create an inference that a certain thing was likely (§17 The factfinder may ithat the defendant has been negligent when the accident causing the plaintiff’s harm is a type oaccident that ordinarily happens as a result of the negligence of a class of actors of which thedefendant is the relevant member.)

iii. Just evidence, not conclusiveiv. Three Prong Test

1. The accident must be of a kind which ordinarily does not occur in the absence ofsomeone’s negligence

2. It must be caused by an agency or instrumentality within the exclusive control of ∆a. Be careful with this, if ∆ buys a car, next day brakes fail, π would not have RI

driver, even tho he had exclusive control at time of accident, but might haveover manufacturer of brakes/car.

3. It must not be due to any voluntary action on the part of π g. Failure to Warn- a ∆ whose conduct creates a risk of harm can fail to exercise reasonable care by

to warn of the danger if (1) the ∆ knows or has reason to know (a) of that risk and (b) that thoseencountering the risk will be unaware of it AND (2) a warning might be effective in reducing the rharm. •∆ must still exercise reasonable care to protect against risk despite warning.

III. Factual Causation

a. We require this link to the damages, because there are breaches all the time, but we only hold peoliable who actually cause the damages.

b. But for test – BUT for the negligent act, the injury would not have occurred. Existence of other caudoes not affect whether the specified conduct was a necessary condition if harm would not haveoccurred absent the specified conduct

c. Limited Purpose substitutes:

i.

Substantial Factor test1. Independent, concurrent and sufficient causes2. If two causes concur to bring about an event, and either one of them, operating alon

would have been sufficient to cause an identical result, some other test is needed3. Substantial factor used most often in toxic tort cases

a. Four major types of cause in fact issues in toxic tort casesi. Was there exposure at all? (Contains different issues, i.e., did they du

toxic substance at all? Prove the toxic substance did get delivered toone way or another? What type of exposure? Inhalation? Skin contacIngestion? How much exposure? For how long?



ii. General causation: can that exposure to this toxic substance in roughamount of range likely cause the specific injury/illness alleged?

iii. Specific causation- DID it cause the effect? Can be other exposure or fthat might cause the type of injury/illness

iv. Who is the ∆? Is the alleged ∆ responsible for setting into motion the of events? (Indeterminate ∆ issue)

b. Can’t recover for increased risk absent damages in a toxic exposure case.i. Policy- if ∆ paid out for increased risk, might end up paying a lot for

damages that never come to fruition, leaving less money for those wiactual illness or injury to recover, so you must show actual physical ior injury.

c. Signature diseases – known to be only caused by that source (i.e., asbestosissignature diseases, including mesothelioma which is caused by asbestos in 9cases.

i. Signature disease proves causation element, you don’t have to prove outside that.

ii. Alternative liability1. Goes to the indeterminate ∆ issue2. We must have all the possible ∆s brought into court, we must prove they all acted

wrongfully and that one of the wrongful acts did, in fact, cause the π’s injury (thougdon’t have to prove WHICH of the acts caused the injury, just that it was ONE of the∆ must have acted tortuously to invoke alternative liability

3. Then the burden shifts to the ∆s to try to prove that their particular action did not cthe injury. If they can’t they will be jointly liable.

4. Summers V. Tice, 2 hunters fired at the same time, hit the third, no way to say (in th1940’s, no ballistics) whose round caused the injury, and they were jointly liable.

5. Most courts will only apply this with a few potential ∆s, not numerous.iii. Joint & Several Liability

1. Same effect on ∆s as contributory negligence did on πs. Both were all or nothing ru2. Exists at common law in three situations:

a. Concerted action- still exists even in states that have abolished J&S otherwiswhole idea is that the wrong IS the conspiracy

b. Common duty- something like a common duty to maintain something like anelevator (where both the building owner and a maintenance co. were liable)since there was a common duty and common control, they can be jointly andseverally liable, or where both a driver and owner are liable for bad brakes ocar

c. Independent negligent acts that have caused an indivisible injury, d1 and d2both the but-for causes and are jointly and severally liable.

3. Contribution was the way the harshness of J&S would be ameliorated, because the

had to pay could seek contribution from other D’s for their share. Made J&S morepalatable, but doesn’t work so well with phantoms and turnips. 4. 2 methods used in a contribution case:

a. Pro rata method – 2 ∆s, 50%, 3 ∆s, 33 1/3%, and so on. Divided equally number of ∆

b. By fault0 contribution based on % of fault assigned to a given ∆.5. Don’t need contribution actions if you abolish J&S liability, though some states ke

for intentional tortfeasors6. Indemnification is a common law doctrine that mitigated the harshness of J&S doc

dollar for dollar recovery for what you spent (insurance co’s sometimes have, somsecondary retailers held liable on products liability theory)



7. Worker’s compensation bar: employee can’t sue employer, only can get worker’s cthird party claim by employee against a third party is allowed, but the thirdgenerally can’t get contribution against the employer for policy reasons, it wouldthe purpose of worker’s comp to allow it - a back door around worker’s comp excbar

8. Comparative NEGLIGENCE compares π’s fault to ∆’s fault9. Comparative RESPONSIBILITY aka comparative FAULT compares fault of the ∆s

one another

iv. Concerted action1. Parallel action isn’t necessarily indicative of concerted action, there may be other r

for parallel action. You must have evidence of some collusion to create the concerteaction of tortious acts.

a. Buchanan v. Vowell (mom on phone with drunk driver daughter, driving behb. It is enough to simply encourage the tortious conduct or to provide substant

assistancev. Market share

1. Each ∆ (usually used in DES cases) is held liable for damage in a percentage proporto his or her share of the market for the toxic product/drug. Generally has been limDES cases because the victims were exposed in utero and there were not records ogave which product to which mother, pills were fungible. Exposure often not appar20-25 yrs. after

2. Π made reasonable attempts to discover, but there was no reasonable way to do so(records were not kept from back then, harm took 20 years after neg. act to eventu

vi. Lost opportunity doctrine1. If the alleged negligence substantially contributed to the reduced chances/opportu

a. Grant v. Red Cross- no lost opportunity because chances weren’t high enouginability to prove cause in fact.

b. If a greater than 50% chance (more likely than not you’d survive before thenegligence) then you have standard but-for causation, not lost opportunitydoctrine

d. Damages apportioned to causation (apportioning harm caused by multiple tortfeasors)i. Different from alternative liability, which is where only one caused the harm but you can’t tell

Here, they all caused harm, but we don’t know which harm was caused by which ∆.ii. If you can’t separate the harm caused by each successive act of negligence, you must treat it as

indivisible injury (Holtz v. Holder)iii. POLICY- it is better that negligent ∆s pay than that the innocent victim isn’t compensated. A ∆ w

tortious act could have caused the injury should be off the hook bc another person caused injuiv. We don’t shift the burden of proof to the ∆ if there is a contributing pre existing condition, thou

do in multiple tortfeasor/alternative liability cases. (BLATZ v alina health system) In those cas

burden of proof on ∆ to show they didn’t cause an individual injury v. Independent acts that are all negligent and join to cause injury1. Multiple and sufficient causes- each would have been a factual cause in absence of o

acts, regarded as a factual cause

IV. Proximate Cause/legal cause

a. Sum it up in one word: LIMITS. Without proximate cause, we do not impose liabilityb. Even though you have a breach in duty , that has a cause in fact, of damages/injury, you may still

have liability if you do not have proximate causec. Scope of Liability

i. 4 situations limit:



1. Unforeseen consequencesa. Older rule, the Polemis case. The court rejected the foreseeability as a test at

time. The rule then was, did the harm directly result from the negligent act. dropping the plank caused the explosion/fire, so liability even though fire wforeseeable) hindsight perspective

b. Wagon Mound case- forward looking. Type of harm must be foreseeable unWagon Mound.

c. What types of consequence? If an extent of harm, EGGSHELL SKULL rule, yo

your victim as you find them. So if you could foresee the type of harm, you aliable for the degree/extent of harm even if it was unforeseeable.

i. The converse is true, if a person is stronger than usual, you aren’t liabthe average (greater) harm, just what you actually caused. (We hold yaccountable for the degree you caused if the type was foreseeable, wthat was more or less than the usual.

d. Unforeseen mechanism doesn’t matter either, if the harm could be foreseen way it came about couldn’t be, it makes no difference, ∆ is on the hook.

2. Unforeseeable π a. Palsgraf

i. Π must be foreseeable – when looking forward at the risks, is the π inview? Is he/she a foreseeable person to whom harm can come?

ii. Judge Cardozo conceptualized the issue in such a way as to turn it intduty issue (and by so doing, turns it into a judge issue, not a jury issuissue makes it an issue of law, doesn’t go to the jury. So it isn’t what areasonable jury thinks.)

iii. I.e., if you’re saying that the conduct was negligent because a or b, thehave to see if your π is in a or b.

iv. Breach analysis- looks at foreseeable risks, and then weighs them wihand formula.

3. Intervening or superseding causea. Traditional common law approach, where D1’s act is negligent and D2’s

subsequent act is negligent, should D2’s negligence cut off responsibility fornegligent act?

i. Older cases tend to say yes, but newer cases not so much, because D1negligent act has increased the risk of D2’s negligence.

1. Braun v. Soldier of fortune magazine – hit man ada. Court said even though criminal act, not intervening ca

because the publishing of the ad increased the risk.ii. Sometimes the negligence of D2 does require us to cut off liability of

iii. If D2’s action comes after D1’s act of negligence but before the injuryintervening.

iv.

If it cuts off all liability to D1, it is superseding.v. If the negligent act of D1 increases the risk of D2’s negligence, then Dshould still be on the hook.

vi. If D2’s conduct is criminal, generally not fair to hold D1 responsible vii. If D2’s act is willful, more likely to be superseding.

4. Rule of thumba. Subsequent medical injuries (D1 is still responsible if medical providers agg

the injury with a subsequent act of negligenceb. Rescuers (non professional rescuers injured in the course of rescuing, D is li

rescuer just as the original party. If negligent to the first party, also negligenrescuer. (bc danger invites rescue)



5. Policy driven rule (i.e., DES limits cases to daughters, not granddaughters and so onhave to draw a line somewhere)

a. We don’t want over deterrence, it would burden economic activity if peopleconstantly guarding against unforeseeable risk.

b. We are more likely to ignore this (proximate cause) in intentional torts or fiway to resolve in favor of πs.

c. NY fire rule (first house only, made no sense but illustrates a policy driven lecause rule)

V. Dutya. Duty is for the judge, so some judges indulge in Dutification, making what should be an issue of

foreseeability (for the jury) into an issue of duty.b. General negligence duty – the general duty in one’s actions not to create foreseeable and unreaso

risks to other peoplei. Default- always applies unless

1. A special duty appliesa. Doctors, Lawyers, Innkeepers, etc.

2. A limited duty appliesc. Limited Duty (no duty rules are matters of LAW , scope of liability one of FACT

i. When liability depends on factors specific to the individual case, appropriate rubric is SCOPEii. No privity

iii. No duty (nonfeasance, no duty exists)1. Remember, General duty applies to the person who created the risk. An actor whos

conduct has not created the risk to another has not duty of care to the other unlessis an affirmative duty applied (ie, by statute, relationship, prior conduct)

a. Policy: liberal tradition of individual freedom and autonomy. Don’t want to ca general duty of self sacrifice. However, this results in the law condoning anactor’s failure to assist another in mortal peril, even when they could do so acost to self. Tension resulting reflected in some of the exceptions:

iv. EXEPTIONS to nonfeasance:1. Sometimes, if you look at a broader period of time, what appears to be a nonaction

really an omission over a larger course of conduct2. Prior conduct – if the conduct creating the risk has ceased, but the risk continues3. Relationship with w perp, relationship with vic4. Control instrumentality5. Volunteer (Undertaking – voluntarily rendering services, gratuitously or by contrac

behalf of another. Equally applicable to altruistic and nonaltruistic acts, just must hknowledge that the undertaking will reduce the risk of harm to another, need not kthe other will rely on the undertaking. Duty is imposed in this situation if the failurexercise reasonable care in this situation increases risk of harm or the person reliethe volunteer exercising reasonable care.

6.

Statutory obligations- some statutes might specifically grant or bar a private cause action, but when it has not, the court may consider the legislative purpose to decidejustifies adopting a duty the common law did not previously recognize

v. NIED1. Limited duty doctrine

a. Can get for: physical injuryb. IIEDc. Impact test – must be impact, however slight, to have NIEDd. Zone of danger test – single, traumatic incidents – π was personally in the zo

dangere. Bystander theory (Dillon v. legg.)



i. 3 factor test1. Nearness: proximity – located in such a way as to personally

experience it2. Nowness: contemporaneous observance (this is a definite elem

not a balancing test)3. Closeness: relationship between the parties

vi. Economic Loss Doctrine1. Pure economic loss is when there is ONLY economic loss absent injury to person or

property2. The general rule is that there is no recovery for economic loss absent physical dam

person or property. Generally, ELD is considered part of a limited duty.Economic loss doctrine BARS recovery, the exceptions ALLOW recovery

Exception: attorney malpractice3. Mass Torts

a. Testbank- only fishermen got to recover because they had a proprietary intethe fish (though they don’t own them)

b. Courts are concerned about unlimited liability; want to draw bright lines toprevent.

c. “TESTBANK BAR” you must show a proprietary interest in order to recover.4. Product sales

a. If I buy a product, that by sale contract should define the risks of some loss tresults from that product use, contract can provide the answer here.

vii. Occupiers of land1. Common law refused to impose a general duty of care, the default rule doesn’t appl

except as to those states where the common law has evolved to apply it2. Sanctity of real estate, ownership of real property3. Who is an occupier? Not just owners- it is a person who occupies with intent to con4. Two major contexts

a. Inside the landi. Duty to entrants on the land with regard to:

1. Conduct by the land possessor that creates risk to entrants onland

2. Artificial conditions on the land that pose risks to entrants3. Natural conditions that pose risks to entrants (ice, snow, etc)4. Other risks to entrants when an affirmative duty is applicable

ii. Risk must be one that is known by the possessor or could be reasonadiscovered by him

iii. Precautions taken may be durable (like a sign) or transient (oral warb. Outside the land

i. Duties to those NOT on the premises- you might be responsible for p

injured off your land if it is a result of activities on your land1. Not responsible for natural conditions, but if a condition isartificially created you can be liable to injuries off your land dthe artificially created condition.

2. Commercial land, if know of risk or it’s obvious, duty as to natconditions (ie, businesses have to clear snow and ice) must in

c. Invitee, licensee, trespasser (no longer used in most jurisdictions as a brighti. Invitee is a business purpose

ii. Licensee is a social guestiii. Trespasser is a one who enters or remains without possessor’s conse

other legal privilege



1. From when you discover a trespasser you have a duty of reasocare as to your activities.

2. Frequent trespassers in a limited area, you have a duty to warknown hazards (i.e., if there is a common shortcut through aproperty)

3. Child Trespassers-a. Attractive nuisance – imposes a duty of reasonable car

the landowner, not to have hazards that are attractive

children, must take reasonable steps.viii. Recreational Use statutes-

1. The owner does not have a duty for the entry or use of others for recreational activ(electric fence trespasser)

a. Does not apply to commercial recreational areas, like waterparks.VI. Breach

a. What happened? Was the conduct reasonable?b. Emergency doctrine- special jury instruction to take into account the circumstances of an emergec. Custom of Industry

i. Evidence, not conclusoryii. Whether industry custom followed or not, it is merely evidence (TJ Hooper – tugboat radios)

d. Statutesi. Compliance with a statute is not conclusive of no risk/breach, you can still create an unreasona

risk.e. Hand formula B<PL

i. B= burden of precaution (i.e., cost of mitigating the risk, making it safe)ii. P= probability of risk occurring

iii. L – injury (loss – gravity/severity of injury/loss that resultsiv. Liability depends on whether B is less than L multiplied by P. If the burden is low and the prob

and/or magnitude is high, liability is more likely.v. Also takes into account the economic benefit of continuing the activity and non economic costs

ruining an experience)VII. Damages

a. Compensatory damagesi. Purposes of compensatory damages:

1. To compensate the injured party2. Accountability3. Money is the only way in general that a jury has to do justice4. Single judgment rule- most settle. Very few go to trial and when they do, we only w

hear them once. We don’t want to have to do continual updates for more damages.ii. Three options for review of damages:

1. Grant a new trial (award excessive, product of bias on the part of the jury, new tria

overall)2. New trial on damages or only on part of the damages3. Remittitur (reducing the damage award amount) gives them a choice of taking a low

award or retrying the caseiii. Two types of damages

1. Economica. Future earnings losses (requires calculations)b. Past medical expensesc. Lost wagesd. Future medical expenses,e. Care costs (past and future)



f. Loss of family services (whatever was done in the home)g. Some economic damages are discounted once calculatedh. Collateral source rule

i. Prohibits the admission of evidence that the π’s damages were or wilcompensated from some source other than the damages awarded agathe ∆. For example, evidence that the π’s medical bills were paid byinsurance is generally not admissible.

ii. Some tort reformers say this is a windfall or double dip for the π, but

an oversimplification. Π has paid into their insurance, first of all, andinsurance co often has a right to be paid back out of any award, so π aloses out in that case.

i. Special vs. general verdicti. General verdict just ask the jury, who wins and how much money.

ii. Special verdict shows the breakdown of damages and possibly liabiliDetailed components like economic damages, medical, wage loss; noneconomic, pain and suffering, loss of enjoyment, etc.

iii. Defense might like special form for liability, but probably rather a genverdict on damages, juries tend to award more if it is broken down insmall component parts (π likes)

iv. Overall, system perspective, the special form, focuses the juries’ attenon the specific issues, avoids distraction.

2. Noneconomica. Pain and sufferingb. Past and future emotional distressc. Loss of enjoyment of life

iv. Insurance-1. Juries might think it makes a difference if a π has insurance, so most of the time you

bring up the existence of insurance for the jury.a. For a time, you couldn’t even get discovery about insurance existence, policy

etc., so it made it harder for πs to know how much to argue for in settlementnegotiations

i. No point in arguing for more than the policy limit if the ∆ is a turnip. v. Taxation:

1. Punitive damages are generally taxable by IRS2. Compensatory damages generally are not taxable

a. Idea is that compensatory damages are to make up for a loss, so you aren’gaining anything (if you get compensated for losing an arm, you shoultaxed) Wage loss damages are not taxed

3. In most states, we do not tell the jury about the taxability/tax consequencedamages they award (don’t want them adjusting for that.)

vi.

Recovery for increased risk:1. We don’t compensate for increased risk unless it increases to over 51% (because tincrease has made the harm more likely than not)

a. Policy reasons, don’t want compensation dollars wasted on people who donan illness/injury and leave those who have eventuated the risk with no recoall.

b. You can’t get anything for worry/fear about the risk (that would be NEIDimpact/zone of danger/bystander rule)

vii. Attorney fees:1. You can get them if it says so in your contract



2. Sometimes you get them by statute to the prevailing party (i.e., anti discrimemployment cases)

3. The typical rule if neither exception applies is that each party pays their own feesa. How would a loser pays provision affect tort cases?

i. Might reduce number of frivolous cases, but it also might discouragewho have less means from bringing a valid suit.

b. Wrongful death/survivali. Survival actions are the decedent’s losses that survive his or her death. Some states require fili

prior to death, others you can file after death as well1. Pain and suffering before death2. Loss of income expectancy (less whatever is paid for lost support in a wrongful dea

action,)3. Burial costs (can also be in wrongful death)4. Subject to claims of creditors (because this is an action for the decedent.

ii. Wrongful death is the dependent’s claim1. Pecuniary damages, Loss of support, etc. You have to show how much of their yearl

income was spent supporting the spouse and or children.2. Not subject to claims of creditors (because it is for the beneficiaries.

iii. Same facts give rise to both types of cases1. Statute will typically say who can sue for wrongful death and who can recover

(sometimes it’s the same people sometimes not) c. Punitive damages

i. To punish people for bad behaviorii. Targets: banks, insurance companies, product manufacturers, foreign companies

iii. Only 4% of winning claims get punitive damages according to one study, and usually relativelyamounts.

iv. Oregon has a state fund that takes 60% of punitive damage awards, money goes to society.v. Should evidence of wealth matter? Should the rich pay more?

vi. Deterrent effect – have to pay enough to defer/punishvii. Why do we hold the corporation responsible for acts of individual people?

1. Most states follow some version of the restatement, which says, if it is a corporate hoffice, that person is closely enough identified with the corporation to hold themresponsible. For lower ranking employee, need some complicity of the company (i.Exxon knew the captain was drinking, knew about relapse, did nothing)

viii. Ten limits to Punitive damages:1. Some states don’t allow them at all, and some states don’t allow in certain types of 2. Jury rejects punitive damages in the majority of cases that are submitted to them3. The concept that you need more than just negligent conduct for punitive. Need eith

intentional conduct or ‘negligence plus’, something like malice or egregiousness (Owanton disregard for health and safety) “risk creating a gross deviation from the

standard” 4. Whereas normally in civil litigation proof level is preponderance of the evidence, stfor punitive is clear and convincing.

5. Trial court has a role in deciding before there is ever a verdict whether there is suffevidence to go to a jury, throw most out.

6. Courts have available in some states the concept of bifurcation, where you separatethe liability issue from the damages issue (disadvantage to πs to separate the damaphase from the conduct determination phase)

7. Trial courts can review damage awards for excessiveness, and in most states do so.can always set aside, or order remittitur if they don’t like the award



8. Appellate court is going to review the award again and can also set it aside if produpassion or prejudice

9. Some states limit punitive damages, methods include ratio (i.e., 2:1 or 1:1 wcompensatory damages) some states have a flat cap, some states have a limit that ispercentage of income or net worth cap

10. Fund idea: who gets the punitive damages? Many states adopted state fund idea- tashare of punitive awards to use for public purpose.

11. Also, federal due process limits. Supremes have said that this means there are limi

the amount of punitive damages awarded. Three guideposts;a. Reprehensibility of ∆’s conduct (the more reprehensible the larger the awar

justified)b. Ratio of compensatory and punitive damagesc. Look at the analogous state criminal penalties for that conduct (corporate

violations usually have minimal fines so this factor tends to strongly favor ∆12. Supremes said reprehensibility is the leading guidepost but in reality the ratio idea

become more and more important.a. Court said there is a process requirement for awards

i. States must have an appellate court that reviews the excessiveness oawards.

ii. Only in-state conduct is at issue. Doesn’t make a difference if the ∆ haengaged in conduct all over the place, jury should only focus on whathappened in the states. (Does this make sense in a national economyabout state sovereignty?)

iii. Can’t punish for harmful conduct to non-πs.VIII. Vicarious Liability

a. Respondeat superior (employer held responsible for employee’s torts) i. Time and place of employment

ii. Act and purposeiii. Serve employeriv. Intentional torts are not usually in scope of employment with a few exceptions.

b. Independent contractor with respect to nondelegable dutiesi. Inherently dangerous

c. In law partnerships, each partner liable for malpractice of every other partnerd. Automobiles, the bailor is responsible for negligent driving of baileee. Parents are held responsible in some states for some intentional torts of their children.

IX. Proportionate Liability

a. Affirmative defenses to Negligencei. Contributory negligence

1. Still the law in a few jurisdictions, and the law that kicks in when a modified companegligence case gets past the 50 or 51% π fault trigger

2.

Complete bar to recovery3. Abolished in most states, led to the same thing on the defense side, no all or nothin4. Doctrines that softened contributory neg:

a. Last clear chance on the relative fault of the parties (whoever had the last clchange to avoid the injury)

b. Willful or wanton conduct – successful characterization of the ∆ conduct asor wanton negligence can defeat contributory negligence.

ii. Comparative negligence1. Most states enacted modified comparative negligence via statute – bar kicks in at 5

than) or 51% (not greater than so in these states at 50/50 the π recovers.)



a. This doctrine in many states has resulted in the elimination of joint and seveliability, under the thought that if we eliminate the all or nothing rule for π, twe should eliminate it between ∆s and institute a type of comparative faultdoctrine

i. E.g., OR has a modified comparative fault negligence statute, it is a ‘nogreater than’ statute, ties go to π, we aggregate the ∆ fault for comparpurposes, i.e., if there are 3 πs at 20% each, then the π with 40% faulstill recover. (3 πs aggregated to 60%)

2. A few states have pure comparative neg, where π recovers for ∆ % of fault, even if π95% and ∆ is 5%

3. Most states have abolished last clear chance into comparative negligence4. In some states, willful/wanton is still a complete answer to π’s neg. but in some sta

folded into the comparative neg. calc.5. Generally you aggregate the ∆’s liability

a. Contribution action allows D1 who had to pay more than their fair share undjoint and several liability to go to D2 and ask for reimbursement for D2’s shafault. The net result, if contribution action took place, would be fair. Withoutand several liability, each ∆ is responsible only for what they actually caused

b. Turnips and phantoms- because D 1 cannot collect in a contribution actifrom them (turnip=judgment proof, phantom = can’t be found/served)

i. In a comparative fault jurisdiction, the risk of phantom/turnip is shifπ.

ii. Therefore, some reallocate the phantom/turnips share according to fpercentages

iii. So if there is 100K damages1. Fault = P 40%

a. D130%b. D230%c. In a J&S jurisdiction, D1 on the hook for 60K. In CF

jurisdiction, d1 pays 30k, then the other 30k is realloca3/7 to d1 and 4/7 to P. (bc they total 70% so 7ths)

d. In OR, our comparative fault act reallocates the share ophantom/turnip according to fault % within one year aappeals exhausted (as in c above)

iii. Duty to mitigate after the injury1. Post accident conduct by the victim that was a cause of some of the injury or damag

Examples: duty to get medical care, duty to seek employmentiv. Duty to take advance precautions before the injury

1. (i.e., failure to avoid consequences) pre accident conduct by the victim that did not the accident but was the cause of some or all of the injuries or damages

a.

example, seat belts- the old rule until the mid 80’s was that there was no dutwear a seat belt, and you couldn’t introduce lack of seat belt evidence, wouldgrounds for a new trial. After seat belt laws, admissibility of seat belt evidenbegan to shift.

b. Policy favors having some contribution for the π’s fault for not wearing a seabut not making that bar recovery.

v. Imputed contributory negligence (i.e., ‘family purpose doctrine’, teenager driving car) vi. Express assumption of risk (release on ski ticket) 2 Key issues:

1. How broad is the assumed risk? Does the document in question (waiver, etc.) coversituation in question? How broad is the document in terms of waiver/release



2. Assuming the release document covers the situation, does it violate public police? Tis towards saying parties are free to assume a risk if they wish to, fewer public policarguments

a. Hojinowski v. Van Skate Parki. Waiver limits liability to intentional torts (i.e., unless there is a hazar

INTEND to hurt people) could argue that’s overly broad. You construambiguity against the institution that seeks the waiver.

ii. Set of factors the court applies (Tunkl factors pg 400)***

vii. Implied secondary assumption of risk (voluntary encountering of a known hazard)1. I.e., you voluntarily agree to let your friend drive a speeding car, you have assumed

risk in an implied fashion via conduct2. Subjective state of the actor is important. Did the actor subjectively understand and

appreciate the risk and consent by their conduct (not a reasonable person but THISspecifically)

3. Some states abolished this and folded it into the comparative negligence analysis. Istates that have maintained this doctrine, it is a complete defense, it doesn’t just redliability as it would in a state that folds it into the calculation

viii. Implied primary assumption of risk (risks are inherent to the nature of the business so the riskassumed when you use the business)

1. This is really a limited duty doctrine, i.e., if you run an adult recreational operation,are some risks inherent to the sport and a person is assuming those inherent risks by participating. Court created limited duty doctrine.

ix. Both Ways Rule1. In any situation where the actor might have vicarious liability, then by the same tok

when the actor sues as a π, they carry the vicarious liability.a. E.g., through respondeat superior, they are negligent of their own employee

the converse is true, if the employer is suing someone else, the employer mubear the burden of the employee’s negligence

b. Motor vehicle exception to the both ways rule exemplified by continental aulease corporation v. Campbell

c. Π’s actions are derivative White v. Lunder *** b. Statutes of Limitations & Reposec. Time bar

X. Immunities – originally creations of common law, now also heavily statutorya. Worker’s comp is a type of horizontal preemption that says you can’t sue in tort; you’re limited to

worker’s comp. b. Charitable

i. Oregon archdiocese case – Catholic Church child abuse. A question of scope of employment, wohave had a ruling like that if we still had the doctrine that charitable organizations including chare immune

ii.

Based on several ideas, one that the charity has assets held for certain purposes, not to go to πlawyersiii. What happened in many states, charitable immunity was eroded and then abrogated by judicia

decisions? Courts began to look at rationale and say, well, if you’re injured by a vehicle driven bchurch official, you should be able to sue the church. The abrogation of charitable immunities imade current child abuse cases possible.

1. The doctrine is abolished in general but there may be some statutory exemptions (lpartial immunities for boy scout troops, etc.)

c. State and local governmenti. The legislature has lowered this shield in some states (torts claims statutes, etc.)



ii. Notice period – procedural issue, present in most state statutes, 60 to 180 days to give notice oclaim in the certain way specified in the statute caps (aka tort claims statutes) lowers shield buestablishes caps on liability (OHSU baby brain damage case)

1. Usually address and often rule out punitive damages2. In addition to the procedural rules there’s the substantive waiver of sovereign imm

itself, often a general waiver with exceptions, if you fall under one of the exceptionsfall back under sovereign immunity

iii. MOST IMPORTANT: DISCRETIONARY FUNCTION EXCEPTION- Also the most common

1. Wide variance in how states define discretionary, doesn’t give you much guidance awhat will be considered ‘discretionary function’, not much descriptive power in thephrase itself, describes a conclusion

2. Judges can’t be sued for rulings, prosecutors, etc., legislative immunity3. First thing to ask: is there a statute? Tort claims statute?4. RISS: Specific threat from a specific individual- be police owe such a broad duty to

everyone, there is no particular duty to anyone (limited duty doctrine) duty ofgeneralized care limits duty to individuals

d. Federal governmenti. Federal tort claims act

ii. Discretionary function exception §2680(a), lots of casesiii. Originally said, is it operational or policy?

1. If operational, discretionary function exception did not apply, but if a policy decisio(Pre 1991 Gaubert S&L case)

2. Operational decisions are discretionary now if they are grounded in the policy of thregulatory regime (Gaubert)

3. Cases that fall outside discretionary function: not grounded in policy, like a violatioregulation, driving of a car, a decision involving no choice or judgment

4. Merando case: policies on removing trees with limited resources – actions are suscto policy analysis, Gov. argued for a discretionary function exception and won.

5. Area of non-liability/immunity is still larger than area of liability because thediscretionary function exception erases so much liability.

e. Spousal immunityi. Most states have totally abrogated

ii. First exceptions for intentional torts like batteryiii. Sort of a public duty doctrine could prevent using the court’s resources for typical spousal activ

(like, food poisoning when wife makes dinner, you really can’t sue for that) f. Parental immunity

i. Reasonable parent test- parent is judged by whether that parents’ conduct comported with thareasonable and prudent parent in a similar situation. A DUTY doctrine, parents have the duty tthat which a reasonable parent would do

ii. Does it give too much power to the jury? “Reasonable” is a standard for the jury, do we trust th

make those determinations?iii. Broadbent case- mom can’t collude with dad, good faith clause in most insurance contracts iv. Practical problem to abrogate parental immunity: If there is another driver also at fault, kid su

other driver, can other driver seek contribution from the parent? Probably so, though courts arreally excited about.

XI. Medical malpractice

a. Standard of care (specialized duty doctrine)i. Heightened standard of care (also applies to other learned professions, such as doctor, enginee

PROFESSIONAL DUTY. THREE COMPONENTS1. Knowledge and skill ordinarily possessed by similarly situated people in your field2. Exercise your honest good faith best judgment in the client’s best interest



3. Actual reasonable care and diligence in applying the knowledge and judgment theyto the client.

ii. Expected to have the skill ordinarily possessed by someone in your field, because you are holdyourself out to the public.

b. Key Points of the MedMal doctrine:i. Doctors set their own standard of care, the profession itself. So we usually need a doctor’s testi

to say if something didn’t meet standard of care (exception, things like scissors or sponge left iwound, doesn’t take a genius)

ii. Which doctors will set the standard of care? Tradition was one from the doctors own communno one wanted to do it, so now they say from a ‘similar community”. A few states say anyone fthe state, and for some specialties it might be a national standard (like neurosurgery)

1. Has to be from the same school of medicine or be able to demonstrate that itssubstantially the same standard of care

a. Reasoning: patient autonomy. The patient chose that particular type of physso you want the judgment to be based on what the patient could reasonablyexpected for the type of care they elected to receive.

iii. You need an expert, so how do you qualify an expert?1. Foundation: must demonstrate the foundation of their expertise

(paperwork…certification, experience, etc.)2. Must have some basis for their opinion in the instant case (examined patient, review

recordsiv. Medical records are often the key thing in evaluating the validity of the claim (Π lawyers often

RN’s on staff to evaluate claims to decide what’s worth taking) c. Informed consent is a NEGLIGENCE action. Do not confuse with improperly obtained consent,

that might result in a battery case (O’Brien) i. Misrepresentation could be battery

ii. Consent from someone unable to give (age, mental infirmity) could be battery, so you have to athere are any consent issues that could defeat informed consent.

iii. Traditional view was what would reasonable physicians disclose in similar circumstancesiv. Shift in modern view to: what would a reasonable patient want to know.v. To win, have to show that the risk not informed of has eventuated

1. Also the cause in fact link: would that information have been material to the decisioa. What would have been material to a reasonable person in a similar situation

d. Preventable medical errors cost 40-90,000 lives a yeare. Juries decide for the doctors in 75% of cases

XII. Strict liability

a. The ∆ is liable on the basis of factual causation regardless of negligence or intentb. There can be liability without fault

XIII. Product liability

a. Strict liability for everyone in the chain, from manufacturer to retail store. Retailer may have inde

against those higher up the chain but that does not relieve them from the strict liability.Π

may sanyone in they chain they like. XIV. Nuisance

XV. Tort Reform

a. The whole elaborate tort system is do figure out what juries get to decideb. Juries frequently do not find for πsc. We’d rather prevent harm through regulation, but we want the tort system as a remedy if it occurd. We can’t always prevent injury, we’ve had the FDA for years and we still have problems because t

benefit of a given product outweighs risk to consumers.e. Should damages be capped?

i. Should caps only be on noneconomic damages? Should punitive damages be capped?



f. Dutification as a tort remedy – more active position on duty, judges use the duty doctrine toaggressively cut down the number of cases reaching juriesi. Expresses distrust of the jury system

XVI. DAMGES CALCULATIONS EXAMPLESa. Pure comparative negligence:

i. Claim and counterclaimii. Π has 25% fault and 100K in damages

iii. ∆ has 75% fault and 50K damages.

iv. 2 ways to do it:1. 2 judgments: π gets 75K, ∆ gets 12,500 (subtracting each one’s % fault off their resp

damage award. π likes this method, they get a bigger award 2. Set off method- net difference goes to the party with the bigger damage award. So h

gets $62,500 and ∆ gets nothing. Insurance companies like this oneb. Failure to take advance precautions situations:

i. 100K damage. 76K caused by failure to wear seatbelt. Fault allocations come out at 30% to pla60% to defendant and 10% to seatbelt

1. Traditional approach: failure to wear belt ignored, remove that fault percentagea. So, total damage is 100K but total fault is 90%. P 30/90ths at fault, D 60/90t

fault(2/3) so P gets 2/3 of 100K or $66,666. (Bc you deduct his 30/90ths akof fault)

2. Total bar – plaintiff gets none of the seatbelt related damagesc. Comparative fault- Total damage 100K, D1 fault 25%, gets judgment of 25K. If D2 is a turnip, too b

P, unless in a state that redistributes the remainder according to remaining fault (so if D2 owed 5and P had 25% fault, they would redistribute D1’s 25K owed, so D2 would owe P 12,500)

d. 2 defendants, one has immunity. EG: P has 15% fault, D1 has 42% fault, D2 has 43% fault. Two opD2 owes 85%. OR , P liable for 15/58, D2 liable for 43/58. More fair method is #2 (commonly comwith workers comp bars on suing employers)

e. Under respondeat superior/vicarious liability, if D1 is the EE, 40% fault, may pay 0. D2 ER has 20but may have to pay 60K, their 20% and employee’s 40%.



POLICY POLICY POLICY POLICY:

Medmal Reform:

Only a small % of medmal vics seek legal advise. Fewer are taken, and then most are settled or drOf the few that go to trial, Dr’s win 75% of the time. Big awards less than 1% of cases. There are 4100K preventable medical deaths every year in hospitals, plus more for pharmacy errors and deahome.

In favor of reforms: It is wrong for the legal system to judge the medical system> Doctors are humbeings, human beings make mistakes> Between runaway jury awards and ambulance chasing clafiling lawyers, in some areas we have a dearth of drs willing to practice. Insurance rates areastronomical, burdening dr’s and causing them to leave fields like OBGYN in droves.System also encourages ‘defensive medicine’ whereby dr’s perform tests that aren’t needed, whicturn raises the overall costs of health care and therefore insurance.

Caps on damages? Many places have tried a 250K cap. Should there be limits, and if so, who shoullimit and for what causes of action? Who should institute limits? (state? Feds?) Should we removecauses of action? What about suits for informed consent? What about ‘health courts’ aka ‘death pDoes this create 7th amendment issues? (trial by jury) what about due process?What about caps on noneconomic damages – what about children, elderly? What is their ‘economvalue’. How do you quantify the ‘economic value’ of grandma’s cookies or a child’s laughter?

“I’m sorry” laws – doctor can apologize and explain without it being used against them in court. Mmake patients more amenable to settlement- some laws have had other stuff tagged onto it thouglimits on suits, makes it harder to get passed.

Limit on attorney fees, people think lawyers are the problem. But if fees are more limited, lawyeronly going to take sure bets for big payouts. Reduces acess to justice for those who may need it m

Statutory restrictions on MedMal: some stated limit medmal liability by various methods bc theyperceive a crisis related to medmal insurance rates. They may use tribunals to weed out weak cla(7th amendment problem), forbid res ipsa loquitur, use locality rule for standard of care (local dr’determine standard of care on local basis) and impose damage caps.

Anti statutory restriction: 7th amendment violated by someone outside the court concluding you hno right to a jury trial. Damage caps limit access to justice for neediest people (poor, elderly, kids)Doesn’t begin to address medical error rates which are the actual source of the problem. Shouldnallowed to make it ‘ok’ that people in Arkansas get a significantly lower standard of care on purpo

than those in Boston.

Pro restriction: insurance carriers are in dire straits, physicians are paying soaring rates, sometimhospitals, can’t pay. Some carriers won’t cover medmal or some specialties, and some phsyicans cafford, which results in a shortage of physicians in given specialties (OBGYN) or areas(Rural). Hosare going bankrupt, must be dealt with quickly and firmly via legislative action.Medical error estimates don’t take into account people who would’ve died anyway, the thousandelderly end of life patients, weakend immunce system, etc. Many would have died in a matter of dregardless. Technological glitches shouldn’t be medical error



Systems Problems Require Systems Solutions: systems problems account for mostmedical errors, such as equipment failure or misinterpretation of medical orders, and hospitalsacross the nation are already struggling financially or going bankrupt. Such a widespreadproblem demands executive or legislative action to limit the unmeritorious claims unjustlydriving up costs and take other measures to decrease medical malpractice costs.

It Is Human Error, Not Malpractice: although the operating room is deemed“sterile,” when a physician is elbows deep inside of a human body in a highly time-pressured

situation, it is anything but “sterile.” Unlike lawyers, physicians do not always have time toresearch, reflect, or consult. The human body is messy and fragile, and often only a vast arrayof “bad” medical options are available, with no corresponding clear courtroom “win” in sight.Unlike lawyers, physicians see dozens of patients per day, each with unique diseases, familyhistories, allergies, and possible hidden problems. Human error in such a context is inevitable.Behind closed doors, physicians may discuss the first patient whose death s/he accidentally(negligently) caused, with great sorrow and self-blame, but also with mutual understandingthat “these things happen.” If all instances of such physician error resulted in liability, we wouldsoon be without physicians. Furthermore, a contentious “negligence” outlook, rather than arealistic awareness of human error, seriously undermines and undervalues the professionalbest efforts of physicians who are, after all, only human. Physicians should be rewarded, not

punished, for the emotional sacrifice they undertake on a daily basis with the knowledge thatmistakes will occur despite the utmost professional competence and care, and the associatedburden of guilt. That burden, of personally inevitable yet objectively avoidable error resulting inpatient injury or death, is a significant emotional stressor that is rarely appreciated by P’slawyers.

Excess Liability May Increase Medical Error: physicians should be able to seek helpwith substance abuse problems or unknown causes of error without fear of punitiverepercussion. Physicians are only human, and the alternative is worse - a continuation of thecurrent culture of silence, with physicians left unable to seek help to adequately address theirproblems. Errors occur, and in order to study when and why errors occur, and assist individualphysicians to be healthy and decrease their error rate, it is imperative that physicians are free

to self-report and discuss errors with colleagues without concern of future lawsuit.

Defensive Medicine Is Bad Medicine: as then-President Bush said, doctors “shouldbe focused on fighting illnesses, not fighting lawsuits.” The current system awards sympatheticP’s rather than deterring D’s. In order to avoid lawsuit, physicians order unnecessa ry and non-benign tests and procedures, which costs billions of dollars per year, are often time-consumingor even painful to administer, and likely involve health risks such as increased rate of cancerfrom radiation.

Contingency Fees Are Unethical: Doctors do not work on contingency fees becauseit is considered professionally unethical. Legislation should be enacted to reduce windfalls to

greedy plaintiff’s attorneys and help awards to into injured patients’ pockets instead, along thelines of what California has done with a sliding scale prohibiting attorneys from collecting morethan 15% on awards over $600,000. Attorney fees in the context of settlement in particularshould be capped, since contingency fees inappropriately bias attorneys toward settlement,which is detrimental to the patient, since attorneys receive somewhat less money but aftersignificantly less work. Further, where liability is undisputed, contingency fees inappropriatelyaward attorneys for cases that are strong on their merits and deserving of large sumsregardless of attorney fees. Some performance-based compensation is appropriate, but notimmense sums disproportionate to the amount of work that was performed. When attorneystake money out of the pockets of deserving patients disproportionate to their workload, publicesteem for the bar plummets and rightly so – these windfalls are highly unethical, and should



be illegal. Contingency fees should only be paid when attorneys take on a meaningful risk ofnot being paid, and the fees should corroborate with the amount of work performed.

Caps Provide More Appropriate Compensation: Physicians often feel that a badoutcome, rather than malpractice, is what prompts a lawsuit. D’s win approximately ¾ ofmedmal suits, so unmeritorious claims are in the courtroom more often than they should be.Often, more serious injuries influence juries to make large awards even without negligence dueto the “sympathetic plaintiff” effect. Caps on damages decrease the inappropriately exorbitant

sums due to jury sympathy. Nonpecuniary losses such as pain and suffering or loss ofenjoyment of life in particular should have strict damages caps, since these nebulous losseswhich can in no way be truly recompensed by monetary means. Exorbitant sums prejudice thepublic against not only medical malpractice claims and lawyers, but against all types of injuryclaims and all who practice in the field of law. The public is justified in its perception of greedyplaintiffs seeking ever more questionable damages, and caps on damages will help redeemlawyers in the public eye, and more appropriately compensate injured patients and lawyersalike.

Pre-Trial Screening Reduces Frivolous Lawsuits: although screening panels dopresent potential 7th Amendment Constitutional problems regarding right to a civil jury trial,

pre-screening trials are endorsed by AMA and reduce costs while ensuring that deservingvictims of medical error are not denied trial. Perhaps a Constitutional amendment should beproposed that provides medical malpractice victims with a right to a civil jury trial only afterundergoing a pre-trial screening with a panel of medical experts. This pre-trial “jury ofprofessionals” is particularly appropriate given the applicable professional standard of care.Plaintiff’s attorneys may do everything they can to bring only meritorious cases, but medicalexperts are in the best position to weed out weak or frivolous medmal claims. Such a practicecould even benefit P’s attorneys by preventing further time and expenditure on a case withoutmerit. Such a change in civil procedure would decrease medical litigation and insurance costsand protect physicians from socially and professionally damaging litigation, without denyingdeserving Ps their day in court. While some endorse secrecy in the pre-trial proceedings, withless strict evidentiary and other rules more along the lines of mediation, perhaps more

transparency would allow for more deterrence effect and allow for studies on standards of care,the most common medical errors, and improving patient outcomes.

“I’m Sorry” Laws Benefit Patients and Physicians: patients want a detailedexplanation of how the system broke down or what mistakes were made. Patients understandthat mistakes occasionally happen, even without negligence. Granting immunity encourages fulldisclosure, helps patients retain trust in the medical profession, and reduces the emotionalsuffering of resentment and rage of secret harms done subject only to peer review withoutmedical professionals appearing to share the patient’s sorrow, frustration, and even regret atthe turn of events. Studies show that when physicians demonstrate that they care after a badoutcome, patients are less likely to file a medmal suit. Thus, “I’m sorry” laws protect physicians

from a lawsuit, protect the physician-patient relationship, and encourage patient access toinformation about what occurred.

Anti Restriction: rising medical malpractice rates may be a problem, but there are farbetter ways of approaching that problem than by unjustly barring or deterring meritorious

claims. physicians’ incomes increased more than the cost of insurance.

High Incidence of Preventable Medical Error: far greater than number ofmalpractice claims, an ABA task force found only about 2% of victims of medmal even fileclaims, and may disproportionately effect children due to their varying size, lesser



communicative capabilities, and tendency to faster deteriorate. Medical errors cause moredeaths than car accidents, cancer, or AIDS each year. Once a foreseeable P proves a primafacie case for negligence, it is wildly unjust for that P to be prevented from recovering full andjust compensation for all of the losses suffered as a result of that negligence. Culture of safetyis possible, with multiple redundancies in safety systems as demonstrated by nuclear powerindustry and space program.

Caps Increase Medical Error: There is a growing public fear of preventable medical

error, which is entirely rationale, and the error itself must be addressed rather than merely itssymptoms. There are a variety of ways to decrease medical error and thereby reduce medicalmalpractice litigation and associated costs. Legislation regarding use of information technologyto eliminate reliance on handwriting, avoidance of similar-sounding and look-alike names andpackages of medication, and standardization of treatment policies and protocols to avoidconfusion and reliance on memory. Caps may make this problem worse by reducing incentivesfor doctors and hospitals to reduce medical errors.

Caps Unfairly Effect Certain Patients: frivolous lawsuits are dismissed pre-trial, socaps on damages influence a different group of plantiffs. Elderly, poor, and unemployedpatients’ economic loss is less readily calculable, perhaps undervalued, and simply lower than

other patients. Without recovery for noneconomic losses, these groups of P’s may not be ableto find attorneys financially able to take their case, even when injustice has undeniablyoccurred, and thus be denied any form of compensation. Further, patients with the mostserious injuries require large sums of money to appropriately offset large economic losses.Even when these victims of medmal recover, when their damages are capped their losses aresignificantly undercompensated, meaning the victims bear the burden of others’ wrongdoing.To pay full damages to patients with less serious injuries, but deny more seriously injuredpatients full recovery, seems patently unfair. Concerns of “sympathetic plaintiffs” can beaddressed in other ways, such as with a bifurcated trial or other more precise jury instructions.

Individual Problems Require Individual Solutions: small percentage of doctors costthe most. Premiums should be merit based. When a doctor does surgery drunk, personal andindividual accountability is essential. Decreasing liability further decreases deterrence. Whilephysicians with drug problems may initially try to keep it secret, once the issue is discovered,strict licensing rules should be in place with stringent testing requirements so that no morepatients suffer the same fate. When the approach is more lenient, physicians may not be afraidto come forward and seek treatment, but they also may not have the same deterrenceincentives to get clean and stay clean.

“I’m Sorry” Laws Inappropriately Reduce Liability: to my knowledge, in no other

context would a D’s admission of fault be inadmissible in court. Such protection of a negligentD who has confessed to that negligence seems, on its face, wildly inappropriate. Patientsdeserve to know what has gone wrong, and they also deserve to recover appropriate

compensation for the injury they have suffered due to another’s negligence. The medicalculture of silence should be broken with legislative or judicial action, with “whistle-blowing”laws holding hospitals and physicians accountable for not reporting negligent physicians,particularly repeat offenders. While laws requiring disclosure are fully compatible withdecreasing medical costs and improving patient care, protective laws that decrease victims’recourse to address injuries caused by admitted negligence is a patently unjust option.

Legal Costs Not A Problem: although Americans spend outrageous sums onhealthcare compared to other countries, approximately 2 cents of the health care dollar goestoward medical malpractice litigation. Opinion differs as to whether medmal insurance payouts



have increased, but it appears that insurance premiums more closely reflect the nationalmarket economy rather than damages of malpractice claims. Further, caps do not necessarilycorrespond with lower insurance premiums, and are even less likely to correspond with lowerpatient costs. Legislation may be required to decrease the percentage of funds that can beinvested in the stock market by medical insurance providers.

Caps On Attorneys Fees Reduce Access To Courts: complex medical cases requireplaintiff’s attorneys to conduct years of investigation, pay hundreds of thousands of dollars in

fees for medical experts, and expend thousands of hours on each individual case, all withoutany guarantee of return. Most victims of medmal cannot afford an hourly rate. Contingencyfees allow plaintiff’s attorneys to shoulder the burden of this immensely costly and ultimatelyrisky undertaking, which benefits the patient. Occasional big paydays are necessary to coverdaily expenses, since the rigorous screening process alone can take months and cost tens ofthousands of dollars, since the causal knot is buried in medical science, with local professionalstandards further hidden by the medical culture of silence. Medmal attorneys already take only2-3% of medmal cases due to the large risks involved in each one. Without the sporadicpayout, attorneys would have less incentive (or perhaps even ability) to take on even the mostmeritorious medmal cases, let alone those where liability is less certain, and many victims ofmedmal would be denied access to the courtroom.

Caps Are Un-Constitutional: in states where medmal legislation has been enactedto reduce potential recovery, medmal litigation has decreased. As a result, insurancecompanies, physicians, and hospitals (although not patients) have profited. Proponents of suchcaps tout this result as a success. However, the decrease in medmal litigation is not due todecreased medical error, betterment of professional standards of care, or a decrease infrivolous lawsuits - it has simply become economically unfeasible for lawyers to pursue mostmedmal cases. Medmal litigation was already a risky and expensive venture, and caps havesucceeded only in further reducing medmal victims’ access to justice. Caps eliminatecompensation without substituting an alternative remedy. Thus, caps are contrary to the core

Constitutional value of “justice for all.” Caps present further “separation of powers” issueswhen a legislature interferes with the right of juries and judges to determine fair damages. Tort

law provides an essential component of the American system of “checks and balances,” oftenthe only method of holding big business and industry accountable. Caps are further contrary tostate constitutions with remedy clauses, for example the Oregon constitution declares that“every man shall have remedy… of law.” Like mandatory sentences, mandatory caps give acookie-cutter solution for unique cases.

Pecuniary Damage Caps Particularly Unjust: unlike nonpecuniary losses, monetarydamages can directly compensate P for the pecuniary loss suffered due to D’s wrongdoing. Themost seriously injured Ps should still receive full pecuniary losses. Any medical liability policyshould compensate victims of medical mistakes.

Possible Areas of Agreement

Decrease Medical Error: the least controversial way to decrease litigation costs ofmedical malpractice is to decrease medical malpractice. Physician-centric methods ofdecreasing error might include: improving physician-patient communication, improvingaccuracy of medical records, obtaining meaningful consent, completing careful and thoroughexaminations, consulting and referring appropriately with other specialists. Systems-basedmethods of decreasing error might include: increased systematic redundancy, decreasing look-alike medications, relying on typed prescriptions rather than hand-written, and specialprecautions for vulnerable patient populations such as children.



Culture of Transparency: when a physician suggested evaluating surgeoncompetence in regular peer review conferences in the early 1900s, he lost his staff privileges atthe hospital as a result. Now all academic hospitals and most large private hospitals as wellconduct Morbidity and Mortality (M&M) conferences on a regular basis (often weekly orbiweekly) to learn from complications and errors. Conferences are nonpunitive and focus on thegoal of improved patient care. Hospitals should be required to maintain statistics on error ratesfor individual physicians in various specialties, compare with national averages, and for repeatoffenders provide further training or suspend staff privileges. Further, as an extension of

“informed consent,” non-medical healthcare providers should be legally required to informpatients that they have not attended medical school, are not qualified to provide a medicaldifferential diagnosis, and other details of the different professional standard of care. (Ifpatients choose to have a homebirth attended by a midwife, or mysterious pain treated byacupuncture, they should be informed that serious adverse outcomes are more likely.)

Legislative Protection of Revocation of Staff Privileges: when staff privileges areterminated or suspended, physicians often bring suits against the hospital, governing board,and even other staff physicians, with actions alleging state and federal antitrust violations,substantive and procedural due process errors, defamation, federal civil rights violations,conspiracy, breach of contractual obligations, and tortious interference with contractual and

business relationships, among others. The threat of these suits deters hospitals from revokingstaff privileges without well-grounded and verifiable justification. More analysis is necessary,but perhaps legislative protection of merit-based staff privileges would decrease preventablemedical error.

Merit-Based Insurance Premiums: insurance premiums vary by specialty, but notaccording to past medmal settlements or judgments or individual risk-reducing practices withina physician’s control despite the highly predictive value of past offenses. Without merit -basedinsurance premiums, physicians have little deterrence incentive since personal financial payoutis utterly unaffected by individual rates of medical error and associated medmal litigation.Insurance companies have resisted merit-based premiums, complaining that the physicianswith the highest surcharges cancel their policies. However, higher risk physicians should pay

higher premiums. If merit-based insurance premiums are legally mandatory, merit evaluationswill attach to physicians and prevent policy shopping. If it becomes economically infeasible forphysicians proven to be negligent in the past to practice, common sense indicates that mightbe a public good rather than a detriment. Merit-based insurance premiums wouldcorrespondingly reward low-risk behaviors, high quality physicians, and innovative methods ofimproving patient outcomes and/or decreasing medmal litigation.

National Insurance System: physicians and lawyers alike want patients to haveaccess to high quality healthcare, with less medical error, more preventative medicine, and aneconomically healthy medical system. As other countries have demonstrated, it is possible forphysicians and patients to afford insurance, insurance companies to make a profit on medmal,

and for hospitals to thrive. This may be an exciting point in healthcare history, as increasinglylarge numbers of the populace approve of legislation to create a unified, national, no-faultsystem, which would hopefully bring healthcare costs down, improve hospital financial stability,achieve better regulation over insurance carriers, and deter frivolous lawsuits by removing partof the damages (medical expenses) from the equation. Despite American values of patientautonomy in electing whether or not to have coverage, all Americans in effect have coveragevia emergency rooms once something goes wrong. Thus the true difference is access topreventative care, which is far cheaper to society than reactive care. The American MedicalAssociation (AMA) originally believed that such a universal healthcare system would bedetrimental to physicians, and even coined the term “socialized medicine” to turn public opinionagainst it as a communist system. However, the official AMA stance has changed within the



past decade despite ties between physicians and insurance companies (60% of providersowned/managed by doctors), hopefully signaling a movement in that direction. Such a nationalhealthcare system would inevitably decrease medmal costs, and in a way that increases patientaccess to preventative care without decreasing access to justice.

Start With Medikids: just as our nation provides public education to enable thepopulace to meaningfully participate in our democracy, providing a free public healthcaresystem for children might be a less controversial step on the road towards implementing a

national healthcare program. Without adequate prophylactic care, uninsured children aredenied “equal opportunity” to purse “life, liberty, and justice.” A variety of state and federalprograms already exist to provide health coverage to low-income children, and it is politicallyuncontroversial to initiate services “for the children.” Expanding on Medicare and Medicaid with“Medikids” is a realistic step towards universal healthcare. Just as parents are required to sendtheir children to school or otherwise ensure they attain minimum education standards, parentsshould be required to send their children for immunizations, regular check-ups, and medicalpreventative care. Symptoms of an unknown medical origin are too often treated withsubstandard alternative, non-medical “medicine,” such as faith-based healing, and this shouldnot be a legal option for children under the age of 18.

No-Fault System: impossible to regulate professional standard of care in everysituation (otherwise medmal cases would have no need of medical experts), so a no faultsystem without deterrence or regulation would likely lead to lower caliber of patient care.Therefore a no-fault healthcare system is not a viable option.

Documents

First Year Torts