Upload
coucoumota
View
230
Download
0
Embed Size (px)
Citation preview
8/7/2019 TORTS OUTLINE[2]
1/29
TORTS 1 Outline
NOTE TO SELF: INCLUDE POLICY IN OUTLINEA. WHAT IS TORT LAW?
Torts are wrongdoing. Torts are wrongs recognized by law as groundsfor a lawsuit.
Much of the law of torts is concerned with three questionso What conduct counts as tortuous or wrongful?
o Did the conduct cause the kind of harm the law will recognize?
o What defenses can be raised against liability if the defendant
has committed a tort?
Particular aims of tort law are usually erected under one of two largesystems of thought
o Morality or corrective justice
it attempts to hold defendants liable for harms they
wrongfully caused and no others. Liability is imposed only when it is right to do so.
In most instances, the conduct adjudges as wrong can beviewed as morally faulty conduct: it is intentionalmisconduct or at least unreasonably risky conduct likelyto cause harm to others
o Social utility or policy
the dominant concern is not justice to the individual; it is toprovide a system of rules that, overall works toward thegood of society
B. WHAT ARE THE SEVEN INTENTIONAL TORTS?I. Battery
II. AssaultIII. False ImprisonmentIV. Trespass to LandV. Trespass to Chattels
VI. Conversion
VII. Intentional Infliction of Emotional Distress
I. BATTERYa) Battery is the intentional infliction of a harmful or offensive bodily
contacto An actor commits a battery if:
1
8/7/2019 TORTS OUTLINE[2]
2/29
TORTS 1 Outline
he acts intending to cause a harmful or offensive contactwith the person of the other or a third person, or animminent apprehension of such a contact, and
a harmful or offensive contact with the person of the
other directly or indirectly results.b) Indirect Contacto It is not necessary that the defendant touch the plaintiff with his
own body.o It is sufficient if he causes the contact indirectly (e.g., by
ordering his dog to attack the plaintiff)c) Offensive Contact
o Contact, which is offensive to a reasonable sense of personal
dignity, is offensive contact.o In determining whether a particular contact is offensive,
the standard is not whether the particular plaintiff wasoffended,
but whether an ordinary person not unduly sensitive asto his dignity would have been offended.
Defendant is liable for those relatively trivial contactswhich are merely offensive and insulting
d) Intento Character of actors intentions
o In order that an act may be done with the intention of
bringing about a harmful or offensive contact, the act must be done for the purpose of causing
the contact or with knowledge on the part of the actor that
such a contact is substantially certain to beproduced. (Garrett v. Dailey)
e) Transferred Intento Transferred intent can take two forms:
o a tortfeasor intends a tort on one person, but commits
a tort on another; ando a tortfeasor intends one tort, but accomplishes another
When one person intends an assault, then, ifbodily injury results to someone other than theperson whom the actor intended to put inapprehension of harm, it is a battery actionableby the injured person. (Brown v. Martinez).
2
8/7/2019 TORTS OUTLINE[2]
3/29
TORTS 1 Outline
o Transferred intent applies only to the following torts
o Battery
o Assault
o False Imprisonment
o Trespass to Lando Trespass to Chattels
f. Insane Persons Intent
The great weight of authority is that an insane person is civilly liablefor his torts
o This liability has been based on a number of grounds: where one of two innocent persons must suffer a loss, it
should be borne by the one who occasioned it
public policy requires the enforcement of such liability inorder that relatives of the insane person shall be led torestrain him
tort-feasors shall not simulate or pretend insanity todefend their wrongful acts causing damages to others
if the insane person is not found liable there would be no
redress for injuries, and we might have the anomaly of aninsane person having abundant wealth depriving anotherof his rights without compensation
It is not necessary for a defendants reasons and motives for formingintent to be rational in order for him to have the intent to invade theinterest of another.
o In Polmatier v. Russ, the trial court found that the defendant
3
CHILD LIABILITY
In most states children may be liable for torts they commit as long as theinjured plaintiff can prove the required elements, including intent.
In most states a child cannot escape tort liability simply because of young age.
In some states, however, particularly young children are conclusivelypresumed to be incapable of harmful intent.
A few states go even further and hold that children under a particular age(again, often seven) are conclusively presumed to be incapable of committingany tort at all.
A lawsuit is possible against a parent for the torts of their minor children, onlyif a statue authorizes such a suit in which case the statutory requirements forrecovery must be met - or if the parents are themselves at fault in some way.
The common law rule is that parents are not vicariously liable for the torts oftheir children
8/7/2019 TORTS OUTLINE[2]
4/29
TORTS 1 Outline
could not form a rational choice, it did find that he could makea schizophrenic or crazy choice.
o Polmatierstates the usual American view that the defendants
insanity is not, in itself, an excuse from tort liability.o
The question is whether he had the requisite intent, if he did,the fact that it arose from insanity is not relevant.o Even though insanity is not a defense to an intentional tort, it is
a characteristic, like infancy, that may make it more difficult toprove the element of battery.
g. Dual intent
that being an intent to contact and an intent that the contact be harmfulor offensive.
the defendant must have appreciated the offensiveness of his/hercontact
More recently, some courts around the nation have abandoned this dual
intent requirement in an intentional tort setting, and have required only
that the tortfeasor intend a contact with another that results in a
harmful or offensive touching
II. ASSAULTa) Assault is the intentional causing of an apprehension of imminent
harmful or offensive contact. An assault constitutes a touching of themind, if not of the body.
A person commits an assault if he actso Intending to cause either harmful or offensive contact with
another person or apprehension of such contact,o and that creates in that persons mind a reasonable
apprehension of an imminent battery
Words alone do not make the actor liable for assault unless togetherwith other acts or circumstances they put the other in reasonableapprehension of imminent contact.
Some commentators, however, as well as the Second Restatement,
suggest that there may be cases where the surrounding circumstancesare such that words by themselves, without an overt act, are sufficientto constitute an assault
b) What does apprehension mean?
Apprehension in this context does not mean fearo but rather an awareness of an imminent touching that
would be battery if completed.
4
8/7/2019 TORTS OUTLINE[2]
5/29
TORTS 1 Outline
It is sufficient that the plaintiff believes that if she does not takeaction, a harmful or offensive contact will occur in the nearfuture.
The plaintiffs right to recover is not negated by the fact that
she is confident of her own ability to take action to avoid thecontact.c) What does imminent mean?
Imminent does not mean immediate, in the sense ofinstantaneous contact. It means rather that there will be nosignificant delay.
Threats of future harm cannot constitute assaults. The courts and commentators have taken a relatively strict view
requiring a short periodbetween the making of the threat and thetime when, according to the threat, the harm will take place
III. FALSE IMPRISONMENTa) Elements of false imprisonment are:
a confinement
an intent to confine within boundaries fixed by the actor (withoutthe victims consent
o Confinement implies limited range of movement and it is
not enough to exclude the plaintiff from some place such asa bar or restaurant.
the victim is aware of the confinement or harmed by itb) Intent
The plaintiff must show that the defendant intended to confinehim.
He can meet this burden by showing that the defendant knew withsubstantial certainty that the confinement would result
c) Nature of confinement
By physical barrier or force
By threats or duress
o Threats or demands when by implicit or explicit threat orduress, facts are critical
The central issue is whether the facts showconfinement
o Assertion of authority submission to an officers assertion
of arrest under colorable legal authority
5
8/7/2019 TORTS OUTLINE[2]
6/29
TORTS 1 Outline
o Duress of goods grabbing ones property and refusing to
return it, leading a person around b/c/ possession ofproperty limits range of motion of the plaintiff.
IV. TRESPASS TO LANDa) Trespass to land usually requires an intentional entry upon land ofanother
can be accomplished by personal entry
or by causing an object to enter the lando as by firing a bullet or throwing a stone or driving a car onto
the landb) The right of the landowner extends downward beneath the surface and
to at least a reasonable height above groundc) In one situation, intentional entry is not required
This occurs when one unintentionally enters, as where a cargoes out of control without fault, and then refuses to leave
The refusal to leave is now considered a trespassd) Intent
intent includes either purpose to enter or substantial certaintythat entry will take place
the object of the intent need not to be to trespass however. itis enough that the defendant intended to enter the land
he does not escape liability merely because he reasonably
believes he is on his own land or because he reasonablybelieves he has a right to be there
e) Damages without harm
in trespassory torts, the defendant is liable for damages even ifno physical or economic harm is done.
f) Punitive damages without harm
Similarly, punitive damages may be awarded if the trespass isdeliberate or malicious.
g) Extended liability
the trespasser is liable for damages inflicted even if he neverintended harm and could not foresee it
h) Trespass as interference with possession
Trespass is theoretically an invasion of ones right to possession
Usually the possessor is also the owner
Others who are in possession rightfully, as in under a lease, hasa right to sue for trespass
6
8/7/2019 TORTS OUTLINE[2]
7/29
TORTS 1 Outline
This particular claim cannot be made for the protection of non-possessory interests such as those in easements or right of ways.
V. TRESPASS TO CHATTELS
a) Trespass to chattels involves some intermeddling with a chattelof another person, and at times even dispossession, but somethingshort of a conversion.
b) Liability is imposed only if the possessor of the chattel suffersdispossession or lost use, or if the chattel or the possessor is harmed
Example D takes Ps car out for a joy ride (dispossession) or Dintentionally puts a dent in Ps car (harms the chattel)
d) Liability is based on actual damages, however not on the market valueof the chattel.
a. If the trespasser is still in possession of the chattel at the time
suit is brought, she has the right to tender the goods to theplaintiff, in mitigation of the latters damages.
b. In other words, title is treated as never having left the plaintiffc. This is in distinction to the tort of conversion, discussed below
as a result of which title is deemed transferred from plaintiff todefendant, and the defendant is required to pay the full value ofthe property.
e) Trespass to chattels has traditionally involved the plaintiffs tangiblechattels
a. However, recent cases have held that clogging a companysemail or computer systems with large amounts of unwantedemail or other electronic conference an count as a trespass tochattels
VI. CONVERSION OF CHATTELSa) In conversion, the defendant must intend to exercise substantialdominion over the chattel.b) There is no requirement that the defendant be conscious of thewrongdoing
One who takes anothers watch in the honest belief that it is her ownis still a converter if the dominion thus exercised is sufficientlysubstantial
c) The American Law Institute concluded that the interference should beserious enough to justify imposing such liability and that a number offactors were important including:
7
8/7/2019 TORTS OUTLINE[2]
8/29
TORTS 1 Outline
extent and duration of control;
the defendants intent to assert a right to the property;
the defendants good faith;
the harm done; and
expense or inconvenience caused
NOTE: The dividing line between the interferences which are so serious asto constitute conversion and those which are merely enough to constitutetrespass to chattels (for which only actual damages must be paid, and as towhich there is no forced sale to the defendant) is thus a matter of degree.
VII. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESSa) The tort may be defined as the intentional or reckless infliction, by
extreme and outrageous conduct, of severe emotional or mentaldistress, even in the absence of physical harm
b) To recover damages for intentional infliction of emotional distress, aplaintiff must prove that:
the defendant acted intentionally or recklessly;
the conduct was extreme and outrageouso courts consider the context and relationship between the
partieso courts have tended to emphasize that the conduct is
repeated or carried out over a period of time or
an abuse of power on the one hand or abuse of aperson known to be especially vulnerable
the actions of the defendant caused the plaintiff emotionaldistress; and
the resulting emotional distress was severec) Where such conduct is directed at a third person, the actor is subject
to liability if he intentionally or recklessly causes sever emotionaldistress
a member of such persons immediate family who is present
at the time, whether or not such distress results in bodilyharm, or
to any other person who is present at the time, if such distressresults n bodily harm
Ordinarily, recovery in such cases is limited to plaintiffso who are not only present at the time,
8
8/7/2019 TORTS OUTLINE[2]
9/29
TORTS 1 Outline
o but are known by the defendant to be present, so that
the mental effect can reasonably be anticipated by thedefendant.
The requirement of presence has been relaxed by
some courts in particularly compellingcircumstances, as, for example, where a parentsued the defendant for molesting or kidnappingthe plaintiffs child
C. FORCIBLE HARMS AS CIVIL RIGHTS VIOLATIONSa) 42 U.S.C.A. 1983b) a 1983 tort requires the plaintiff to establish that someone,usually a state of municipal official, acted under the color of state law
and also that the action deprived the plaintiff of a federal right. Although the federal right involved might be based on some
other federal statute, most often it has been based on thefederal constitution itself
c)it is sufficiently broad to include the acts of some off-duty officersd) it also includes acts of private persons who conspire with state
officials and acts of private persons who willfully participate in astate-enforced custom or usage that violates federal rights
e) Liability
the officer or private person may be held personally liable
if the officer is acting on behalf of the city, the city may beheld liable
states are simply not liable under 1983 at allf) Why sue under 1983 rather than a simple common law tort?
a 1983 claim permits suit in federal ct while a state tortordinarily would not
o judges may be more favorable in federal courts and
juries are drawn from a wider area and have a
different geographic composition a 1983 claim permits the prevailing attorney to recover
reasonable attorneys fees, pursuant to another federalstatute 42 U.S.C. 1988
o the rule for ordinary tort cases is that each person pays
his own attorney fee
a 1983 claim might sometimes avoid defenses or
9
8/7/2019 TORTS OUTLINE[2]
10/29
TORTS 1 Outline
immunities that would defeat a common law claim
D. DEFENSES TO INTENTIONAL TORTS PRIVILEGESI. SELF-DEFENSE
one is privileged to use reasonable force to defendagainst harmful or offensive bodily contact and againstconfinement.
The privilege depends on apparent necessity of self-defense, not on actual reality
Retreato Some states require reasonable retreat before
deadly force is usedo Other courts make no such requirements
if the defendant reasonably but mistakenly believes she isbeing attacked, she is privileged to use reasonable forceto forestall the attack or minimize its effects
o Reasonable deadly force
the defendants privilege extends so far asreasonably necessary to prevent the harmand, if the harm threatened is not itself deathor serious bodily harm, then the defendantmay not use force likely to cause death or
serious bodily harm any excessive force is unprivileged and the
defendant is liable for it. Likewise, thedefendant may not take the occasion toretaliate or to continue a defense after thefight is over.
Provocation is not sufficient to raise the self-defense privilege. Insults and arguments, forexample, do not justify a physical attack by
the insulted defendant
II. DEFENSE OF THIRD PERSONS
at one time, this privilege was limited to permit only defenseof family and servants
this seems to have little support and in general one may
10
8/7/2019 TORTS OUTLINE[2]
11/29
TORTS 1 Outline
defend others on the same basis that he may defend himself
III. ARREST AND DETENTION
this is a privilege to detain for investigation for a short time,
until police can arrive for example Shopkeepers Privilege
o any property owner, including a shopkeeper has a
common law privilege to detain against his will anyperson he believes has tortuously taken his property.
o This privilege can be exercised only to prevent theft
or to recapture property, and does not extend todetention for the purpose of punishment.
o This common law right is exercised at the
shopkeepers peril, however and if the persondetained does not unlawfully have any of thearresters property in his possession, the arrester isliable for false imprisonment.
IV. DEFENSE AND REPOSSESSION OF PROPERTY
a possessor of land has no privilege to use force intended orlikely to cause death or serious harm against whom thepossessor sees about to enter his premises or meddle with hischattel,
unless the intrusion threatens death or serious bodily harm tothe occupiers or users of the premises
the force uses must be of a kind appropriate to the defense ofthe property
PUBLIC POLICYo the law has always placed a higher value upon human
safety than upon mere rights in property, ando it is the accepted rule that there is no privilege to use any
force calculated to cause death or serious bodily injury
where only the property is threatened.
V. THE SPECIAL CASE OF CONSENT generally, if the plaintiff has consented to any intentional
interferences with his person or property, the defendant will notbe held liable for that interference
Implied Consent
11
8/7/2019 TORTS OUTLINE[2]
12/29
TORTS 1 Outline
o the existence of consent may be implied from the
plaintiffs conduct, from custom or from thecircumstances.
o In determining whether the plaintiff consented, the
defendant is guided by the plaintiffs overt acts ormanifestations, regardless of the subjective state of mindof the plaintiff
o The test is whether a reasonable person in the position of
the defendant would believe that the plaintiff consented.
Lack of capacity to Consento Consent is not effective if a person lacks capacity to give
consento incapacity of an adult plaintiff renders her consent
ineffective
only if her condition substantially impairs hercapacity to understand and weigh the harm and risksof harm against the benefits flowing from theproposed consent
the defendant has knowledge of that incapacityo Incapacity of adult is usually established by showing that the
adult could not manage her own affairs, or, in consent cases,that he did not understand the nature and character of his act.
Exceeding the scope of conditional consento if the plaintiff does give actual consent to an invasion of his
interests, the defendant will not be privileged if he goessubstantially beyond the scope of that consent
that is, the plaintiff generally consents to thedefendants performing acts of a certain nature, andno others
if the defendant invades the plaintiffs interests insuch a way that is substantially different from thatconsented to, he will be liable
Informed Consento a patient expresses consent to a named operation or
procedure, but is not informed adequately about its nature ormaterial risks
claims involving lack of consent, i.e., the doctorsfailure to operate within the limits of the patientsconsent, may be brought as battery claims.
12
8/7/2019 TORTS OUTLINE[2]
13/29
TORTS 1 Outline
In contrast, true informed consent claims, i.e., thoseinvolving the doctors obligation to provideinformation, must be brought as negligence actions.
Revocation of consento
Subject only to the slightest qualification, the plaintiff canrevoke her consent at any time by communicating herrevocation to the defendant.
VI. NECESSITY
there are situations in which the defendant is privileged, because ofunusual exigencies, to harm the plaintiff, even though the plaintiffhimself is completely blameless
Public Necessityo the privilege of public necessity exists whenever
interference with the land or chattels of another is necessary,or reasonably appears necessary, to prevent a disaster to thecommunity, or to a substantial number of people
o in public necessity, there is complete protection in terms of
liability
Private necessityo any person is privileged to prevent injury to himself or his
property, or to the person or property of a third person, byinjuring private property, if there is no less-damaging way of
preventing the harm.o in private necessity, there is not complete protection.
o Permitted to trespass, but still held liable for damages in
contrast to public necessity
E. THE PRIMA FACIE CASE FOR NEGLIGENCE
negligence may be any conduct that creates an unreasonable risk ofharm to others
negligent conduct may consist either of (1) an act or (2) anomission to act where there is a duty to act
there has to be actual harm to bring a negligence claim
these five elements has to be established by plaintiffo the defendant owed plaintiff a legal duty;
o the defendant, by behaving negligently, breached that duty;
13
8/7/2019 TORTS OUTLINE[2]
14/29
TORTS 1 Outline
o the plaintiff suffered actual damage;
o the defendants negligence was an actual cause of this
damage; ando the defendants negligence was a proximate cause of this
damage
ELEMENTS OF NEGLIGENCE
Duty
Breach (negligence)
Actual Harm
Cause in Fact
Proximate Cause (foresee ability etc.)
I. THE GENERAL DUTY OF CARE
a)The duty owed by all people generally iso to exercise care that would be exercised by a reasonable
prudent person under the same or similar circumstances toavoid or minimize the risks of harm to others
o the reasonable person exercises care only about the kinds of
harm that are foreseeable to reasonable people and risks that aresufficiently great to require protection
b)The Standard of careo The care required is always reasonable care
o The standard never varies, but the care which it is reasonable to
require of the actor varies with the danger involved in his actand is proportionate to it.
the greater the danger, the greater the care, which mustbe exercised.
c) Child Standard of Careo It is the duty of a child to exercise the same care that a
reasonable careful child of the same age, intelligence, maturity,training and experience would exercise under the same or
similar circumstances (Robinson v. Lindsay)o There are 2 exceptions to the child standard of care
Children engaging in adult activities
Adult activities are activities that require adult careand competence
Children engaging in inherently dangerous conduct
14
8/7/2019 TORTS OUTLINE[2]
15/29
TORTS 1 Outline
Inherently dangerous is something that is anactivity that has a grave risk of harm attached to it.
o Grave risk of harm (serious bodily harm,
even death)o
Inherently dangerous exception is moremanageable because the adult activityexception is so darn subjective
o The Rule of Sevens
Few courts still say that
Minors over 14 are presumed capable ofnegligence
Those between 7 and 14 are presumed incapable ofit
Those below 7 are incapable of negligence as amatter of law
The Rule of Sevens (not so common now)
But most states hold that children 3 and under aresimply incapable of negligence
d) Persons with mental disabilitieso People with mental disabilities are commonly held liable for
their intentional and negligent tortso A person with mental disabilities is generally held to the same
standard of care as that of a reasonable person under the samecircumstances without regard to the alleged tortfeasorscapacity to control or understand the consequences if his or heractions
Side note: a mentally disabled person, involuntarilyhospitalized, does not owe a duty of care to hisprofessional caregiver and hence is not liable fornegligence or recklessness causing the caregiver harm
e) Persons with superior knowledgeo The standard of the reasonable man requires only a minimum of
attention, perception, memory, knowledge, intelligence andjudgment in order to recognize the existence of the risk.
If the actor has in fact more than the minimum of thesequalities, he is required to exercise the superior qualitiesthat he has in a manner reasonable under thecircumstances
15
8/7/2019 TORTS OUTLINE[2]
16/29
TORTS 1 Outline
f) Sudden emergencieso A central feature of negligence law is that to be found
negligent, a defendant must have acted unreasonably.o When there is no unreasonable conduct, there is no fault.
o To find a defendant liable for the effects of an unforeseenmedical emergency that causes sudden unconsciousness wouldbe to impose strict liability, which is inappropriate in thissituation (Roman v. State of Gobbo)
g) Physical disabilityo Ordinary care in the case of such a person is such care as an
ordinarily prudent person with a like infirmity would haveexercised under the same or similar circumstances. (Shepherdv. Gardner)
h)Negligence Per Seo It is a form of ordinary negligence that enables the courts to use
a penal statute to define a reasonably prudent persons standardof care
o To trigger the doctrine, the statute must establish a specific
standard of conducto Negligence as a matter of law
A person whose conduct is negligent per se cannotescape liability by attempting to prove that he or sheacted reasonably under the circumstances
However, a finding of negligent per se is not equivalentto a finding of liability per se
Plaintiffs in negligence per se cases must still establishcausation in fact, legal cause and damages
o Requirements for negligence per se
The statute must have been designed to prevent the kindof harm that befell P; and
P must have been a member of the class that thelegislature intended to protect by the statute.
A statute requiring a landowner to keep a buildingin safe condition is meant to protect only thoserightfully on the premises and not trespassers.
o Excuses legally acceptable for violation of a legislative
enactment (not exclusive)
The violation is reasonable because of the actors
16
8/7/2019 TORTS OUTLINE[2]
17/29
TORTS 1 Outline
incapacity;
D neither knows nor should know of the occasion forcompliance;
D is unable after reasonable diligence or care to comply;
D is confronted by an emergency not due to his ownmisconduct;
Compliance would involve a greater risk of harm to D orothers.
II. BREACH: ASSESSING REASONABLE CARE BY ASSESSINGRISKS AND COSTS
a) once it has been determined that defendant owed plaintiff a duty ofcare, the question is whether the defendant breached that duty byfailing to exercise reasonable care
The defendant who breaches that duty is negligentb) Balancing test used to determine if D breached the standard of care
The probability that the harm will occur; the gravity of theresulting injury and the burden of adequate precautions
o Liability depends upon whether B < PL.
c) Assessing Responsibility when more than one person is negligent
Liability of one person does not necessarily exclude liability ofanother
Comparative faulto Plaintiffs recovery reduced to reflect her faulto POLICY each faulty party must bear his or her share
of the losses
Not ordinarily reduced when D commits anintentional tort
Generally reduced in negligent and strict liabilitycases
Joint and several liabilityo P can enforce tort claim against either tortfeasor
But if one d pays the entire judgment, he canobtain contribution from the other d so as tomake his payment proportional to his fault.
i. Example, P secures a $10,000 jointand several judgment against both Aand B. P enforces the judgment
17
8/7/2019 TORTS OUTLINE[2]
18/29
TORTS 1 Outline
entirely against A. A obtainscontribution from B.
o P can contain judgment against both, but cannot collect
more than her full damages.
Several liabilityo Differs from joint liability in that no tortfeasor is liable
for more than his proportionate shared) Proving and Evaluating Conduct
P must prove each element of the case by a preponderance ofthe evidence
o Negligence, for example, must be shown to be more
probable than not.o Even if Ps case is difficult to prove, P still has the
burden of presenting sufficient evidence to demonstratethe existence of a material question of fact.
The Role of the juryo Determining credibility of witnesses and
o making findings of fact
Factors that can affect a witness testimonyo Stress
o Expectations
Cultural expectations
Expectations based on personal prejudiceo Event factors , example, time
o Detail salient some details stand out more
Can depend on how violent is the event
What type of facts are you paying attentionto (time is something that people generallymake a mistake of)
Circumstantial evidenceo Evidence of one fact that permits an inference of
another facto Almost all negligent cases, involve at least some factual
inferences.
Experts opiniono Experts are usually allowed to give expert opinion or
conclusions, within the field of their expertiseo Expert opinion are sometimes the most practical
18
8/7/2019 TORTS OUTLINE[2]
19/29
TORTS 1 Outline
method to establish certain facts, usually admitted onmedical issues
o Problems with expert testimony
Experts differ
Experts testimony may only be speculation Experts may overwhelm the jury
o
Vkng;ew
nvsnwe) RES IPSA LOQUITUR
The thing speaks for itself
The instruction of res ipsa loquituro tells the jury that if they do find the existence of the
following elements, then they may draw the inferenceof negligence,
o not that they must do so
o MAJORITY (Valley)
Event in question would not occur withoutnegligence
Other responsible causes, including theconduct of the plaintiff and third personas,are sufficiently eliminated
Defendant owes plaintiff a dutyo MINORITY (Eaton)
Event in question would not occur withoutnegligence
Instrumentality/ agent under the control ofthe defendant
Plaintiff not responsible for outcome
III. ACTUAL HARM
The third element of negligence is that the plaintiff must suffer legallycognizable harm, frequently referred to as actual damageso The plaintiff must prove that actual damages resulted from
defendants negligence or else the plaintiff will lose.o POLICY conduct that was merely negligent was NOT
considered to be a significant interference with the publicinterest such that there was any right to complain of it, or be
19
8/7/2019 TORTS OUTLINE[2]
20/29
TORTS 1 Outline
free from it, without proof of an actual injury
Nominal damages are damages in name onlyo usually $1.00 or six cents
o
Restatement adopts the position that nominal damages are notavailable in a negligence action where no actual injury isproved, since actual injury is an element of negligence.
IV. CAUSE IN FACT, (ACTUAL CAUSE OR FACTUAL CAUSATION)POLICY for cause in fact requirement
Accountability
Deterrence
Set limits on liability to defendants and potential defendantsP must prove
Not only that she suffered legally recognized harm,
But that the harm was in fact caused by the defendant
The relationship between Ds wrongdoing and Ps harm is legallysufficient
o The But for- Test of Causation (traditional and still dominant)
But-for-Ds conduct, P would have avoided the injury
When this statement can be shown to be true, cause infact or actual cause has been proven
o The Substantial factor Test (supplements the but for test)
If two or more causes concur to bring about an event,then cause in fact is established by the substantialfactor test.
o Liability of two or more persons
When two or more tortfeasors are but for causes of asingle indivisible injury, causal apportionment isimpossible
The respective responsibility of each tortfeasor must bedetermined by some fault of fault apportionment and not
by apportioning damages to separate causes Alternative Liability Theory (Summers v. Tice)
POLICY where the matter of apportionment isincapable of proof, the P should not be deprived ofhis right to recover
2 negligent but only 1 could have could have
20
8/7/2019 TORTS OUTLINE[2]
21/29
TORTS 1 Outline
caused Ps injury, then both held liable
P also shows that other persons were not negligentand could not have been causes of the harmsuffered.
b/p shifts to each defendant to absolve himself ifhe cano defendant bear the risk of not persuading the
judge or jury on cause in fact
Joint and several liability
where the tortuous acts of two or more wrongdoersjoin to produce an indivisible injury, all of thewrongdoers will be held jointly and severallyliable for the entire damages
the P may proceed to judgment against any oneseparately or against all in one suit.
V. PROXIMATE CAUSE (THE SCOPE OF RISK REQUIREMENT)
P must prove that Ds negligent conduct was the proximate cause ofthe harm suffered by P.
Proximate cause establishes a reasonable connection between an actor omission of D and the harm suffered by P.
o Whether the harm which occurred was of the same general
nature as the foreseeable risk created by the defendants
negligenceo An actor is not liable for harm different from the harms whose
risks made the actors conduct tortuouso POLICY
Lines must be drawn, determining how far down thecausal continuum individuals will be held liable for theconsequences of their actio
F. DEFENSES TO A NEGLIGENCE CLAIMI. Contributory NegligenceII. Comparative Fault (Responsibility)III. Assumption of the RiskIV. Statutes of Limitation
I. CONTRIBUTORY NEGLIGENCE
21
8/7/2019 TORTS OUTLINE[2]
22/29
TORTS 1 Outline
Conduct on the part of the plaintiff which falls below the standard towhich he should conform for his own protection, and which is alegally contributing cause co-operating with the negligence of thedefendant in bringing about the plaintiffs harm
Three different basis for contributory negligenceo Plaintiff fails to exercise due care to safeguard him or herself
(fault)o Plaintiff is a superseding cause (proximate cause)
o A reasonable person in the position of the defendant would not
have foreseen any harm at all (no negligence on the part of thedefendant)
II. COMPARATIVE FAULT (RESPONSIBILITY)
Two types of comparative fault systems includeo Pure comparative fault
o Modified comparative fault
Counting for comparative fault purposeso Unit rule
Plaintiffs negligence is compared to the combinednegligence of all the defendants (aggregation permitted)
o Modified unit rule
a defendant who is less negligent than the plaintiff is
liable only for his individual percentage of the totaldamage. A defendant may not be liable if plaintiffnegligent (no aggregation)
Sfkdk
Mentally ill victimso Mentally ill persons can be comparatively negligence of their
injuries in some circumstances, howevero There can be no comparative negligence where the defendants
duty of care includes preventing the self abusive or self-destructive acts that caused the injury.
o When the defendant undertakes to protect the plaintiff from her
own fault, or when the law imposes such a duty, the entireresponsibility for care by definition falls upon the defendantand the plaintiffs fault cannot be held against her
How do you distinguish between contributory negligence and
22
8/7/2019 TORTS OUTLINE[2]
23/29
TORTS 1 Outline
comparative faulto Contributory negligence is an all or nothing bar
o Comparative fault is some type of apportionment/ reduction in
the amount of damages
III. ASSUMPTION OF THE RISK
A plaintiff impliedly assumed the risk when her conduct shows thatshe was aware of the particular risk and voluntarily agreed to bear thatrisk herself
It is not enough that the plaintiff should have known about the risk,rather plaintiff must know about particular risk involved
Gfjsgjsgsd
Gjgg
Jfgfg
IV. Statute of Limitations
Reasons for Statutes of Limitationso To bar stale claims
o To permit both personal/ business planning and to avoid
economic burden that would be involved if the defendant andtheir insurance companies had to carry indefinitely a reservefor liability that might never be imposed
The two basic rules for determining when a statute of limitationsbegins to run
o Accrual rule
The cause of action begins to run at the time of injury tothe plaintiff
Most jurisdictions tort statutes of limitationsbetween 2- 6 years
The statute begins to run wheno Plaintiff knows or reasonably should know
of the injury;o Plaintiff knows or reasonably should know
of the causal connection between the injuryand the harmful product/accident;
o Plaintiff knows or reasonably should know
of a particular defendants identityo Discovery rule
23
8/7/2019 TORTS OUTLINE[2]
24/29
TORTS 1 Outline
The statute begins to run when the plaintiff discovered orshould reasonably have discovered, the injury.
G. DUITES OF MEDICAL & OTHER PROFESSIONALSI. DUTIES OF HEALTH CARE PROVIDERS
The Malpractice Claimo the malpractice claim must ordinarily be asserted by a person
accepted by the doctor as a patient
Medical Standard of Careo a physician must exercise that degree of care, skill and
proficiency exercised by reasonably careful, skillful andprudent practitioners in the same class to which he belongs,acting under the same or similar circumstances.
o expert medical testimony is usually required to establish the
medial standard of care
except where the common knowledge of laymen issufficient to recognize or infer negligence
if the plaintiff furnishes no such testimony or the it isinadequate to show the standard, the judge will direct averdict for the defendant
More than one medical standard or practiceo where a competent medial authority is divided, a physician will
not be held responsible if tin the exercise of his judgment hefollowed a course of treatment advocated by a considerablenumber of recognized and respected professionals in his givenarea of expertise.
Non-medical practitionerso such as chiropractors and podiatrists, are permitted to practiced
according to their school of beliefo they are subject to the standards of the school they profess, not
to medical standards Good Samaritan Act
o a number of states have enacted statutes exempting licensed
doctors, nurses and other individuals who voluntarily andgratuitously render emergency treatment, from liability forordinary negligence. Liability still exists, however for grossnegligence.
24
8/7/2019 TORTS OUTLINE[2]
25/29
TORTS 1 Outline
II. RES IPSA LOQUITURo evidentiary doctrine that merely permits the jury to infer
negligence based on a well-founded understanding that the
injury-causing event would not normally occur unless someonewas negligento it may be rebutted with evidence from the defendant that tends
to cast doubt on plaintiffs proof.o expert testimony is available to aid the jury in determining
whether an event would normally occur in the absence ofnegligence
expert opinion in this context is used to educate the jury
the jury still has to draw the necessary conclusiono if a medial procedure carries with it the inherent risk of a
particular kind of injury or complication, the court cannot useres ipsa loquitur merely because such an injury in fact occurred
o where a plaintiff receives unusual injuries while unconscious
and in the course of medial treatment, all those defendants whohad any control over his body or the instrumentalities whichmight have caused the injuries may properly be called upon tomeet the inference of negligence by giving an explanation oftheir conduct.
III. INFORMED CONSENT a physician owes to his patient the duty to disclose in a reasonable
manner all significant medical information that the physicianpossesses or reasonably should possess that is material to anintelligent decision by the patient whether to undergo a proposedprocedure.
a patient is entitled only to disclosures of risks that would be made bya reasonable medial practitioner
o because this is professional malpractice and the professional
standard must be usedo because there might be therapeutic reasons for withholding
information, ando because since the plaintiff must produce medical testimony in
other cases, this will add very little burden
the plaintiff in informed cases must also show thato a reasonable person would have refused the treatment had full
25
8/7/2019 TORTS OUTLINE[2]
26/29
TORTS 1 Outline
information been given, ando that the plaintiff herself would have refused it
some courts treat informed consent claims as battery claimso the usual approach, however, is to treat informed consent
claims under negligence May a physician treat a competent patient over her objection if the
treatment is required to save her life?o Every person has the right, under the common law and the
Constitution, to accept or refuse medical treatment
If a patient indicates that he or she is going to decline the risk-free testor treatment, then the doctor has the additional duty of advising of allmaterial risks of which a reasonable person would want to beinformed
H. DAMAGESI. COMPENSATORY DAMAGES GENERALLY
POLICY the goal is to restore the injured party, to the extentpossible, to the position that would have been occupied had the wrongnot occurred.
Types of compensatory damageso Damages for reasonably incurred medical expenses resulting
from the tort
Medical expenses include past, present and expected
future expenses
The standard is reasonably incurred expenseso Damages for lost earning capacity or wage loss resulting from
the tort Use of economist to determine probable earning capacity[Martin v. United States]
Inflation adjustment over entire loss period
Reduction of award to present valueo Damages for pain and suffering resulting from the tort,
including mental pain and suffering The recovery includes the negative emotional reactions topain as well as the pain itself
Pain or suffering might also include fear or anxiety aboutfuture harms
Pain is notoriously difficult to measure or even talk about
26
8/7/2019 TORTS OUTLINE[2]
27/29
TORTS 1 Outline
meaningfully
Per diem or unit-of-time management it asks the jury toconsider the value of pain by the minute or hour and then tomultiply by the number of hours the plaintiff will continue
to suffer over his lifetime Substantial pain and suffering awards help to pay theattorney fees in personal injury cases
Hedonic damages (Mc Dougald case)
Is the loss of enjoyment of life a part of the painand suffering award or separate component ofdamages?
Duplicative: especially when personnot aware of the loss then award onthis basis serves no compensatorypurpose
Separate: this loss is distinct fromconscious pain and suffering and doesnot require the person to be aware ofthe loss of compensation
o In a limited number of cases, an award to pay for the cost of
medical monitoring of the plaintiffs condition to intercept aprospective disease, such as cancer, that may develop in thefuture
that is, damages would include damages for thecosts of periodic medical checks that could detectcancers in early stages so as to permit earlyintervention.
Some courts have allowed medical monitoring damageseven when no physical harm has been done and noemotional harm claim is allowable
Other courts have insisted that the plaintiff must proveactionable physical harm before medical monitoring costs
can be recoveredo Any other specifically identifiable harm that has resulted from
the tort, such as special expenses necessary to travel for medicalattention
Plaintiff must prove that damages claimed were caused in fact by thedefendants conduct
No salutary purpose would be served by having the jury make
27
8/7/2019 TORTS OUTLINE[2]
28/29
TORTS 1 Outline
separate awards for pain and suffering and loss of enjoyment of life.(McDougald v. Garber)
o to recognize loss of enjoyment of life as a separate category of
damages runs risk of duplication with permanent disability and
pain damages. (Montalvo v. Lapez).d) Pecuniary damages
Those damages awarded to compensate an injured person for thephysical and emotional consequences of the injury,
o such as pain and suffering and the loss of the ability to engage
in certain activitiese) Non-pecuniary damages
compensate the victim for the economic consequences of the injury,o such as medial expenses, lost earnings and the cost of custodial
careII. ADJUSTMENTS IN DAMAGESa) The doctrine of mitigation of damages (avoidable consequences)
this rule requires the plaintiff to exercise reasonable care to minimizedamages and denies a recovery to the extent that damages should havebeen but were not reasonably minimized or avoided
Distinguishing between comparative fault and avoidableconsequences
o Comparative negligence rules are fault apportionment rules
o Avoidable consequences rules are causal apportionment rules
b) The Collateral Source Rule and Its Cousins The general rule is that in determining the defendants liability, all
collateral benefits to the plaintiff should be ignoredo The defendant pays the full medical expenses even though they
may have been already paid by the medical insuranceo The defendant pays full lost earnings or lost earning capacity
even though the plaintiff collected full pay as a gift from hisemployer or as part of his job benefits
The collateral source rule does not apply to payments made by the
defendant itself or by a source identified with the defendant, such asthe defendants insurer.
c) Reduced Tax Liabilities
Federal tax laws provide that compensatory recoveries for personalinjury and death are not taxable, even if those recoveries replaceearnings which would have been taxable
28
8/7/2019 TORTS OUTLINE[2]
29/29
TORTS 1 Outline
III. PUNITIVE DAMAGES awarded only for misconduct coupled with a bad state of mind
involving malice or at least a reckless disregard for the rights of others POLICY (the stated purposes of punitive damages)
o Punishment or retribution
o Deterrence
o Assistance in financing useful litigation
Statutes in many states limit the amount of punitivedamages that can be awarded or direct a portion of theaward to some public entity/ or public chest
Calculating punitive damageso Courts look at the seriousness of the wrongdoing as the most
important consideration (p. 888)o Courts admit evidence of the defendants wealth
o Increasingly, courts looking at relationship between the
compensatory damages and the punitive damages