Torts Outline
Torts Outline
Torts Outline
Tort Law: The set of rules regarding liability and compensation of personal injury, death, and
property damage that one party causes to another. (Tort aka Harm)
▪ Negligence
o Always argue foreseeability in negligence law
▪ Did you know?
▪ Did you have enough info/knowledge to know/guess?
o Prima facie
▪ Means you have a “colorful” claim
▪ Means you have evidence for every cause of action
▪ What’s necessary to satisfy a prima facie case?
• Duty
• Breach of Duty
• Causation
• Scope of Liability (Proximate Cause)
• Damages
o Majority Rule: Comparative negligence, if found comparatively negligent, it is
subtracted from damages.
o Minority Rule: Contributory negligence, if found contributory negligent, you receive
no damages.
• Elements of Negligence:
1. Duty – Did the defendant have a legal obligation to exercise some level of care to avoid
risk of harming persons or property?
o In most negligent cases, the measure of the duty owed is that of a reasonable person
under the same or similar circumstances
o Duty is a legal question that is decided by judges.
▪ Generally a person has a duty to
• Foreseeable plaintiffs
• To exercise reasonable care
• With regards to foreseeable risks of harm arising from one’s conduct
o Duty Law is divided into two major categories:
i. General Duty Rule = reasonable care standard in negligent suits
• One’s obligation to foreseeable Plaintiffs to exercise reasonable care
with regard to foreseeable risks of harm arising from one’s conduct.
o This is the duty we owe to people on the highway
o General duty standard = reasonable care standard!
ii. Limited Duty Rules (Exception to General Duty Rule)
2. Breach of Duty
▪ The deviation from standard of care (did the D fail to meet the SOC?)
▪ 2 major components:
• (1) Foreseeable risks of harm
• (2) Unreasonable conduct in light of foreseeable risks
▪ Duty is the legal obligation to exercise care
3. Causation
▪ “cause in fact”
▪ This ties breach of duty to the plaintiffs injury
▪ Bridge that connects Duty and Harm.
▪ Two Main Tests
• But for Test: I wouldn’t have received my injuries but for you……..
o Usually works best when there’s 1 D
• Substantial Factor Test: there’s enough substantial factors to show
your act contributed to my injury
o Usually works best when there’s 1+ Ds
▪ Other Tests
• “Alternative Liability Test”: P doesn’t show who caused harm, but
knows the D(s) were capable of doing it & probably did
• “Market Share Liability”: P doesn’t know who caused harm, but knows
D probably did
o usually in pharmaceutical cases
▪ Important to distinguish: Causation DOES NOT EQUAL proximate cause
• prox cause is legal causation
● How to Determine Breach of Duty (these help to determine what the SOC
should be & ways to determine breach)
● Custom:
▪
How to use custom:
⮚ How may P use custom?
o P must show D deviated from custom as evidence of D’s unreasonable
conduct.
o P must show purpose of custom is to protect against the kind of harm
suffered by P.
⮚ How may D use custom?
o To show they complied with custom
• Hagerman v. Copeland
o P was a construction worker. Fell through an unexposed hole and filed
negligence suit against D.
o Expert witnesses testified that typically other construction company
covers exposed holes. Ct. found that this custom was evidence of BOD and
the jury was properly instructed.
▪ Trimaco v. Klien
⮚ P injured when his bathtub glass door shattered.
o Custom was for safety glazing material to be used instead of glass. P was
in shower and glass broke and injured him.
o Rule: custom/usage is relevant, but it does not define the scope of
negligence.
1. However, When proof of acceptance practice (custom) is
accompanied by evidence that D conformed to it, it may establish
due care. Contrariwise, if it shows that it was ignored, it may
establish BOD.
2. Common practice does not necessarily create a conclusive test. The
jury must be satisfied with its reasonableness.
3. Common practice need not be universal, just well defined.
▪ The T.J. Hooper-
⮚ 2 barges carrying cargos crashed and sank due to bad weather; tugs didn’t have
radios to receive weather report.
o In this case there was no custom use for using the radios (bc only a few
barges used them), but the court said that there are some precautions that
are so imperative that their universal disregard does not excuse omission.
Essentially applied the hand rule to determine the custom not to have
radios is unreasonable. Ct.’s can rule that a custom not to do something is
unreasonable and that it was necessary and could be gotten at a very cheap
price.
-
Rule: if custom is universal and necessary to the industry, someone
deviating from it could be liable for damages. Also, customs that are
unreasonable (like not having radios) are not sufficient for defense.
- Court can apply the hand rule to establish whether a custom is
necessary.
• Section 2.06 ALTERNATIVES TO THE REASONABLE CARE STANDARD
o RELEVANCE TEST: For a statute to be relevant and usable by P, it must pass the
RELEVANCE TEST: (2 elements). A statute can only set the SOC if it meets these
criteria.
1. Plaintiff must be under the protect class (people that statute was meant to protect
AND
2. Injury must be of the kind the statute was meant to avoid.
● Just because you fail to prove Negligence per se, doesn’t mean you still cant prove
negligence. Ex. In your complaint you could have: complaint 1) Negligence 2) negligence per
se 3) strict liability, etc.
o Farrell v. Baxter
⮚ Woman wrecked her car while it was snow. Was speeding and on opposite side
of the road
⮚ Ct. held that she was breaking an Alaska traffic violation and allowed
negligence per se to prove breach of duty, because P satisfied the relevance
test.
o Wright v. Brown
⮚ Man bitten by Dog with rabies. Was supposed to be held 12 days, but was
released early.
⮚ Applied relevance test. The statute was meant to protect the general at large, so
wright fell into this category. BUT it was intended to protect them from
diseased dog. Wrights complaint did not mention anything about diseased dog,
so Wright did not satisfy this category. NPS did not apply
● Internal company policies, such as leaving the external building lights on will not work as a
statute. Cannot be held negligent due to NPS for these reasons.
● The Role of Excuses
o Excuses are a basis for being excused from a statute. Ex. I was having a heart attack
and drove into the other lane.
▪ Incapacity
▪ Emergency
▪ Inability after reasonable care
▪ Compliance was riskier than noncompliance
▪ No knowledge of the occasion for compliance (this doesn’t mean that you can
say “I didn’t know this was against the law”)
▪ Not in the protected class
▪ Injury was not of the kind that statute was intended to avoid
● Negligence per se vs. Child Standard of Care
o Majority View: Child SOC applies to children in civil negligence actions, and
statutory violation should only be considered as evidence.
o Minority View: negligence per se standard applies to children
o Bauman v. Crawford
⮚ Bauman, a child, was riding a bike at night with no headlights. Was hit by
Crawford in a car. There was a municipal code that required headlights on
bikes after dark.
⮚ Court held that he was not negligent, because child SOC applies to him.
● Proof of Negligence
● Circumstantial proof- Evidence from which a reasonable inference can be drawn Ex. The
speed of a car can be inferred from the length of a skid mark.
o Direct Proof- Can also be eyewitness testimony
o Clark v. Kmart
⮚ Woman slipped and fell on grapes in empty checkout lane. Circumstantial
evidence showed that it had been for at least 2 hours.
⮚ Ct. held that the jury could infer that there was a sufficient length of time so
that D should have discovered and cleaned the grapes. (constructive notice)
o Constructive Notice- Notice based on circumstantial evidence (not actual notice)
o Actual Notice- I saw the grapes earlier on the ground
• Res Ipsa Loquitur (the thing speaks for itself)
o Where an inference of negligence can be drawn from circumstantial evidence.
● Elements of RIL * THESE MUST BE MET FOR RIL! **
o (1) Inference that someone was negligent
• The incident would not have happened, UNLESS someone was negligent.
(barrels don’t just fall from the sky)
o Proof:
o Facts of accident
o Common knowledge
o Common sense
o Experts
1. (2) Inference that Defendant was Negligent
● The apparent connection is such that the D would be responsible for any
negligence connected w/ it
● Jury must be able to find that more likely than not the D’s neg. conduct or
omission caused the accident
o Proof:
i. Evidence of the D’s exclusive control, if possible but not
necessary
ii. Evidence that negligence likely occurred when
instrumentality was under the control of the D
iii. Disprove possible neg. of 3rd parties
iv. Remove the P as a possible contributor (or at else less
than 50% responsible in comparative neg.)
● There used to be a requirement that the negligence occurred when
instrumentality was under the exclusive control of the defendant (no longer a
requirement!!) (see Eaton Case) Still try to prove if possible
● So this prong can be satisfied without D’s exclusive control.
● If there is evidence of a specific conduct/act, CANNOT use RIL. Ex. In Byrne v. Boadle, if D
had admitted to accidently dropping the barrel, would have to use regular negligence to prove
this.
o Byrne v. Boadle
⮚ Barrel of flour fell from window of a flour warehouse and hit D. Eyewitness
testified that barrel hit him, but didn’t see it until it struck P and didn’t notice
any ropes. P had no recollection
⮚ It was apparent that the barrel was in the custody of D who occupied the
warehouse and the fact of its falling proves breach. (barrels don’t just fall out of
the sky)
o Eaton v. Eaton
⮚ Mother and daughter in a car accident. Passenger side door had more damages,
which was where the mother was sitting. Both said the others were driving.
Report showed that no other vehicle was the cause of accident.
⮚ Ct. held that in absence of mechanical failure, motor vehicles don’t just drive
off the road. Evidence didn’t support that they were ran off the road. Car had so
much momentum that it crashed into trees 50 feet away, so driver had to be neg.
Jury found that daughter was driver and no indication of a third party.
Proof of Breach
D
irect (e.g. eyewitness)
Evidence
C
ircumstantial
P
robably Neg.
RIL
P
● The Standard of Care in Professional Malpractice
● Professionals are held to a higher SOC than the average person
2. Child unless engaged in adult activity Failure to act like other children of
same age, exp., and intelligence
P
hysical condition (yes)
Reasonable Prudent Person Mental condition (yes)
E
mergency (yes)
A
dult/dangerous activity
Child Reasonable child of same age/experience/intelligence
M
inority Rule (Rule of 7)
P
must be in class
Neg. per se Type of harm
E
xcuse
Med. Malpractice
Doctor Professional
standard (custom)
Informed Consent
L
Chapter 3: Duty
2) Licensee- One who enters and remains on the land with the owners (express or
implied) consent and for his (the licensee’s) own convenience or on business with
someone other than the owner.
i. Must be for the licensee’s benefit
ii. Ex. Social guests, hunters/fishers, relatives/friends are licensees. This is
because the law says when a friend come over and helps you, it makes
them feel good. It is a benefit to them.
3) Trespassers- one who enters another’s property with out any lawful authority,
permission, or invitation
o Duties owed to each category in Trichotomy
1) Invitee duty of care- An owner or occupier of land has a duty to use reasonable
care to protect an invitee from conditions that create an unreasonable risk of harm
of which the owner or occupier knows or by the exercise of reasonable care would
discover. Highest SOC
2) Licensee duty of care- The duty owed to a licensee is not to injure the license
willfully, wantonly, or through gross negligence (essentially intentional or
reckless), and, in cases in which the owner or occupier has actual knowledge of a
dangerous condition unknown to the licensee, to warn of or make safe the
dangerous condition. (Do not need to inspect land for unsafe conditions. Don’t
throw things at them and if you know a problem, tell them about it.)
3) Trespasser duty of care- the only duty a premises owner or occupier owes a
trespasser is not to cause injury willfully, wantonly, or through gross negligence.
(lowest SOC, because landowner is not gaining a benefit)
o Constructive Knowledge- Landowner or occupier should have been the defect
o Actual Knowledge- Landowner or occupier did see the defect
o Child Trespassers
⮚ Attractive nuisance (restatement 2nd section 339)
● A possessor or landowner is subject to liability for physical harm to children
trespassing thereon caused by an artificial condition upon the land if:
a) The place where the condition exists is one upon which the possessor
knows or has reason to know that children are likely to trespass, AND
b) The condition is one of which the possessor knows or has reason to know
and which he realizes or should realize will involve an unreasonable risk
of death or serious bodily harm to such children, AND
c) The children because of their youth do not discover the condition or
realize the risk involved in intermeddling with it or in coming within the
area made dangerous by it, AND
d) The utility of the possessor of maintaining the condition and the burden of
eliminating the danger are slight as compared with the risk to children
involved, AND
e) The possessor fails to exercise reasonable care to eliminate the danger or
otherwise to protect the children.
⮚ Minority Rule: It is implied that if children have any cognition, they are aware of
the danger and no liability to owner (some even as low as 3 years of age)
o American Industries Life Insurance v. Ruvalcaba
⮚ Mother and son came to visit her husband while he was at work. He was busy so
they decided to wait outside, child fell through an “open” handrail that didn’t
comport with building code. They sued, alleging that the child was an invitee.
⮚ Ct. held that 1) there was no evidence of mutual benefit to both parties, 2) no
economic benefit (for business invitee), or 3) no benefit to D. Therefore he was not
an invitee, if he was ruled a licensee, they would have to prove that knew of the
dangerous condition.
o Rowland v. Christian (outlier case)
⮚ D invited P over. While using the bathroom, P cut his hand when one of the sink
fixtures broke. D was aware of the crack and had asked her landlord to fix it, but
failed to warn P.
⮚ Didn’t apply Status Trichotomy, but used the general duty rule.
o Flagrant Trespassers: A landowner owes flagrant trespassers a duty “not to act in an
intentional, willful, or wanton manner to cause physical harm.” Landowners owe a duty of
reasonable care to them if they reasonably appear to be imperiled and (1) helpless; or (2)
unable to protect themselves.
o Landlord Duty Obligations:
⮚ Landlords generally are no liable in negligence for injuries to tenants or guests
arising from defective or dangerous conditions on the leased premises, except in
limited circumstances. Landlords do have a duty of reasonable care for foreseeable
risks where:
i. Concealed dangerous conditions are known to the landlord
ii. Dangerous conditions create risks to those outside the premises
iii. The premises are leased for public admission
iv. The dangerous conditions are in the common areas over which the
landlord retains control
v. The landlord breaches an agreement to repair the premises.
No Duty to Assist
Exceptions:
Special relationship
Voluntary Assumption of Duty
Innocent Prior Conduct
Reliance On a Gratuitous Promise
Intentional Prevention of Aid by Others
Statute
Others
● To Take Protective Measures Against Risks Posed by Third Persons
o IF a 3rd person has a special relationship with a victim or perpetrator, that person may
have a duty to take protective action against a foreseeable criminal incident.
o Majority Rule: Defendant has no duty to control the dangerous person in absence of a
special relationship.
o When is there a special relationship; Therapist/patient Relationship
▪ Tarasoff Standard:
⮚ When a therapist learns from his patient about intent to do harm to a third party,
the therapist has a duty to take reasonable precautions given the circumstances to
warn the potential victim of danger.
⮚ The danger must be foreseeable and imminent
⮚ Specificity- Therapist must be able to identify the victim and the act. (Ex. In
Tarasoff, he explicitly said he was going to kill Tatiana)
⮚ Telling the police is not enough to discharge duty. Must inform the victim
⮚ Can’t just say, “I want to hurt the public. “ Or “I’m going to hurt someone
someday.”
▪ Public Policy Reason- Public policy favoring the protecting of confidential character
of patient-therapist communication must yield to the extent to which disclosure is
essential to avert danger to others. The protective privilege ends where the public
begins.
▪ Tarasoff v. Board of Regents- Podar had a slight relationship with Tarasoff. She started
dating other guys. He went to counseling and told the therapist that he would going to
kill her. Therapist told police, but didn’t warm Tarasoff. Podar killed Tarasoff. Ct.
found that the therapist owed a duty to warn Tarasoff.
▪ Estates of Morgan v. Fairfield Family Counseling ?????
▪ Dunkle v. Food Service east
⮚ Facts: Tindal had schizophrenia and Killed his girlfriend in the bathroom of a
cannery shop. His behavior was “nasty” but he did nothing to indicate that he
would cause harm to his girlfriend.
⮚ Take Away: Tarasoff does not extend the duty to protect to a non-identifiable and
non-foreseeable third party victim. Tarasoff requires more specificity then was
shown in this case.
⮚ Rule: A Physiatrist owes no duty to warn or otherwise protect a non-patient
where the patient has not threatened to inflict harm on a particular individual.
o Independent Duty for Emotional Well Being (Direct Victim) Ask Doyle about elements
▪ Duty that might arise from a contract, special relationship, or assumptions
o Contract- Funeral home cases
⮚ Wrong body in the casket and the other body was accidently
cremated.
▪ Funeral home had a duty to the family through the K. (not a
bystander case, b/c not strangers, didn’t perceive the injury)
⮚ $50,000 casket case
⮚ Cyber bullying case
▪ Contract between parent and school? Parents discharged their
duty to school to protect son, so they owed a duty to parents.
Parents and school are not strangers
o Special relationships- usually not strangers. Can arise from contract or
assumptions, servants, etc.
o Assumptions- helping one in distress
▪ Some emotional distress claims are based on D’s breach of independent duty
obligation to act reasonably for P’s emotional wellbeing
▪ Ex: mishandling of remains of decedent by funeral home gives rise to
emotional harm claim by close relatives
▪ Elements:
a. Pure emotional distress
b. No need for physical injury
c. No need for risk of physical injury
d. Usually cant be strangers
e. No need to be an eye/ear witness
o Burgess v. Superior Court
o Facts: Doctor negligently delayed C-section. Baby suffered permanent brain damage
o Holding: Doctor argued for bystander theory, b/c she wouldn’t be able to succeed since
she didn’t perceive it. Court applied the direct victim rule. The emotional ties between
the baby and the mother (shared body). So he owed a duty of care to the mother.
o Huggins v. Longs
o Facts: Pharmacy prescribed too high of dosage to infant
o Holding: Parents couldn’t recover b/c they were not patients from whom the defendant
prescribed medication. Policy reason, it would open the floodgate, cost of mal-practice
insurance would rise, pharmacists would start to under prescribe.
o Majority Rule: Plaintiff must prove actual exposure to the disease to state claim for
emotional harm
o Cannot prevail just in concern of coming into contact w/ someone who has the disease
o Sunset Period- time when P can be tested to see if they have the disease
o SOL: Starts to run when P knows of the facts that give rise to claim. Typically 2 years
o Totality of Circumstances Test: Argument that P should be able to recover damages for
their fear of contracting disease from time period between possible exposure and the
negative test
⮚ This test may not apply, but could be an argument
o Majka v. Beekil
o Facts: Cut her finger on a scalpel in wastebasket, which had blood on it. Had been
used by doctor who had Aids. Feared that she would develop aids from it and
sued for emotional distress
o Holding: Fear alone is too speculative. She did not show evidence that the scalpel
was actually exposed to Aids, therefore she cannot prove that she was actually
exposed. Summary Judgment for D.
Pre-Natal torts
o Majority Rule: Almost all states now recognize wrongful death claims on behalf of fetuses
o Most states limit the action to fetuses that were viable at the time of the neg
▪ But some states permit actions on behalf on non-viable fetuses
o Cts struggle w policy issues involved in whether to recognize COAs when pre-natal med neg
results in birth of damaged child
▪ Cases often turn on how the injury is characterized and whether the claim is on behalf
of the parents or child
o Wrongful Birth:
▪ Majority of states recognize wrongful birth claims
▪ Instituted by parents
▪ Parents had right to abort baby but didn’t bc they weren’t aware of defect. Negligence
on behalf of doctor
▪ But for someone’s act of neg., child wouldn’t have been born with this impairment
(lack of info)
▪ Not that the doctor caused the harm, but his failure to provide appropriate info so
mother could abort
▪ Must show that parent would have aborted????? Ask Doyle
Case of woman injected with wrong sperm
▪ The child was black instead of white. Sued for wrongful birth. It would be tough to prove this
and would probably fail
▪ They could sue for medical malpractice. Dr. had a duty to exercise reasonable care
▪ Could bring a direct victim claim, because she contracted with the doctor, so Dr. had duty to
ensure that he did not cause her emotional harm
o Wrongful Life
▪ Minority if states recognize wrongful life claim. Very few states
▪ Instituted in behalf of the child
▪ Basically saying that the child would have been better off dead than alive
Greco v. United States
Facts: Claiming doctor failed to diagnose child of defects, depriving her of right to terminate
Holding: Court did not recognize the wrongful life claim. They called “wrongful life” simple medical
malpractice and allowed mother to bring it. Loss of Consortium failed, b/c she planned on aborting
the baby
o Pre-Conception Torts-
o Brought by a child regarding negligent conduct preceding conception of the child that sets the
stage for a possible impairment at birth. Ex. During surgery, a hospital may negligently
transfuse a woman with blood that isn’t compatible with her.
o At least 13 states have passed legislation restricting pre-natal claims.
o Loss of Consortium
o Loss of society and companionship.” Courts generally instruct juries that they may
compensate for the spouse’s loss of love, affection, companionship, sexual activity,
emotional supports, protection, and household services.
o Cannot recover if the primary victims claim does not succeed. (Completely derivative)
o Courts look at the following to determine if unmarried couples can recover consortium
a. Significance
o Length they’ve been together
o How long they’ve lived together
o Economic dependence
b. Stability
o Stability of relationship
o Shared property
o Adopted child
o Minority View: Children can recover for loss of consortium when 3rd party injures
their parents. Must show that D:
o Physically injured the child’s parents
o In a manner that would subject D to liability
Pure Economic Loss
o Majority Rule: Courts generally hold that there is not duty to protect against negligent
interference with purely economic interest.
▪ Exceptions
a. Special Relationships- Tortfeaser/individual, auditors, termite inspectors.
Brought by a third party
b. Particular Plaintiff- Specific foreseeable individual
c. Minority Rule: Identifiable Class- Not the public at large. Foreseeability is
not enough, must be a class who is likely to recover from damages.
▪ The Test is Ascertainability
d. Commercial fishing interests
e. Private action for public nuisance
▪ P’s business is based on a public right. Ex. Roadways, waterways, etc.
People Express v. Consolidated Rail Corp
Facts: Wrecked truck, chemicals leaked out and started a fire in a terminal. No physical injury or
property damages, but prevented people express from operation for 12 hours.
Holding: We hold that a defendant owes a duty of care to take reasonable measures to avoid the risk of
causing economic damages, aside from physical injury, to particular plaintiffs or plaintiffs comprising an
identifiable class with respect to whom defendant knows or has reason to know are likely to suffer such
damages from its conduct.
• Proof of Causation
o A tort plaintiff usually has the burden of proving that the defendant’s wrong was a
cause in fact of the plaintiffs injury
o Three types of evidence are commonly available as proof at trial is:
▪ (1) Direct evidence (Eyewitnesses)
▪ (2) Expert testimony (battle of the experts)
▪ (3) Circumstantial evidence (requires reasonable inference)
o Cumulating Proof to Identify the Cause
▪ Ingresoll v. Liberty Bank of Buffalo
▪ Facts: Husband fell down steps. One of the steps was missing a piece and D
new about it and didn’t fix it.
▪ The jury could draw a reasonable inference. Just bc/ there are other possible
reasons that doesn’t kill P’s prima facie case. As long as they can show a
reasonable inference the D’s negligent conduct more than likely causes the
injury.
▪ Words Doyle Likes: “based on the evidence, this scenario is more likely to be
the cause”
o Untaken Precautions: Proving the Counterfactual
▪ Case Examples: Zucowitz v. U.S.
• P was mistakenly prescribed and direct to take double the dosage of
Danocrine, which had the side effect of developing PPH. She did
develop PPH
• Rule: If a negligent act is deemed wrongful because that act increases the
chances that a particular type of accident will occur, and a harm of that very
sort does occur, there is adequate support for a finding by the trier of fact that
but for the negligent act, the harm would not have occurred.
o Claiming that D’s conduct caused the harm is not enough. Has to
be D’s negligent conduct. The negligent direction of prescribing a
double dosage had to be the cause, even though Danocrine already
had side effects of developing PPH
o Timing was huge: she started showing symptoms right after taking
the Danocrine
▪ Williams v. Utica College of Syracuse Univ.
• Guy assaulted girls in their dorm room
• Rule- Can not prove that the neg. conduct of the college caused the risk,
because she couldn’t prove if it was an insider or outsider. If it was an
outsider, their negligent conduct would have been the cause of the injury.
● When dealing with pharmaceutical cases: Doyle loves pharmaceutical cases
o If the manufacturer warns of the possible side effects and the P develops the disease,
the manufacturers “negligent conduct” was not the cause. Their conduct of
manufacturing the drug is not enough.
o To address breach in pharmaceutical cases, there is a breach when the cost outweighs
the benefit of taking the drug. B<C
● Traditional tests to prove cause in fact
1. “But for”
2. Substantial factor
● Non traditional tests to prove cause-in-fact
1. Joint & Several Liability
2. Loss of a chance of recovery (Matsuyama)
3. Alternative liability (summers)
4. Market Share liability (Eli Lilly)
● Loss of Consortium
o Marriage remains a prerequisite to recovery for loss of consortium, not cohabiting
people
Punitive Damages
1) Contributory Negligence
o Minority Rule
o This completely bars plaintiff from recovering. Even if they’re only 1% negligent
o The defense of contributory negligence is made out just like a claim of negligence
⮚ Do not have to prove duty, because everyone owes a duty of care to themselves
⮚ Must establish the plaintiff fell below the standard of care, causation, and
proximate cause
⮚ All or nothing approach
⮚ Only applies if the defendant was negligent. Not a defense to reckless or
intentional conduct
2) Comparative fault
o Majority Rule
o Majority of states do not apply comparative fault to intentional misconduct, a
majority does allow it for recklessness
o 2 Types
⮚ Pure comparative fault
● Majority Rule
● The negligent party recovers some of the damages from a negligent
defendant regardless of the degree of P’s fault. Ex. If P is 50%
negligent, will only recover 50% of the damages
⮚ “Modified” Comparative fault
● Minority Rule
● Sets a threshold and if the plaintiff’s negligence is over that, they
cannot recover
● Ex. If P cannot recover if they are fault exceeds 50%.
o If they are 40% they can, if they are 51%, they cannot
o Hoffman v. Jones: Got rid of comparative negligence and adopted comparative fault
in Florida
o Doctrine of Avoidable Consequences
⮚ P has a duty to take reasonable steps to avoid exacerbating the injuries. If they
fail to seek medical treatment and their medicals bills are increased by $10,000,
the D will not be liable for those increases
3) Assumption of Risk
o Assumption of risk does not apply to reckless or intentional misconduct
o 2 Types
i. Express
⮚ Contracts/waiver forms
⮚ You waive your rights to bring a negligence action
⮚ Do not mix the language “assumption of risk” with “consent”
⮚ Explicit written or oral permission to release another party from an
obligation of reasonable care
o Ski lift tickets, permission slips to play football, health club
contracts
⮚ Majority rule:
o Cannot waive gross negligence, recklessness, or intentional
conduct
▪ Recklessness: A conscious disregard for a high risk of
injury (must show mens rea). Ex. Drinking and driving
▪ Sky bounce example. She signed away any negligence
actions, BUT she could have sued for recklessness
⮚ Limitations
o Language of a waiver must be clear and unambiguous
▪ Can fail for lack of mutual assent
▪ Should use the word “negligence”
▪ See example on pp. 626
o Waivers may be void against public policy
ii. Implied
⮚ Can be inferred from the parties conduct
⮚ 2 Types
a. Primary assumption of risk
⮚ Majority Rule
⮚ Works like contributory negligence. IT IS A
COMPLETE BAR TO RECOVERY
⮚ Usually applies to activities with inherent danger
⮚ Essentially like the P saying, “ you don’t owe a duty to
me when I do this activity.”
⮚ No duty/limited duty (we didn’t owe a duty, or we didn’t
breach our duty)
o No duty to protect them from the inherent risk
⮚ Typical examples
o Riders on rollercoasters, water skiing, watching
baseball game, skiing, etc.
o Nascar example, P will argue that Nascar owed a
duty and Nascar will argue there is primary
assumption of risk, because it is inherently
dangerous to watch and they voluntarily came.
Thus, no duty. Alternatively, Nascar will argue
that they didn’t breach bc/ they had a fence. Will
use custom.
b. Secondary assumption of risk
⮚ When someone knew about a risk and voluntarily
subjected themselves to it
⮚ Test
a) Knowledge of risk
b) Appreciation of risk
c) Voluntary exposure to risk
⮚ Rarely used anymore, BUT SHE SAID IT IS STILL
HIGHLY TESTABLE
● Today, secondary assumption of risk is just part
of comparative fault analysis
⮚ Cheong v. Antablin (boilerplate limited duty case)
● 2 friends were skiing, ran into each other and one sued
o Ct. held that there is an inherent risk in skiing and being injured
pursuant to that. They applied PRIMARY ASSUMPTION of
risk, which barred the negligence claim.
o Exception: Court said that is the other party acts recklessly or
intentionally, will not bar plaintiffs claim.
4. Statute of Limitations
o An affirmative defense that BARS plaintiffs claim, even if all the alleged facts are
true
o Time within which a plaintiff can bring a claim
o Majority Rule
⮚ The SOL for intentional torts are shorter than those of negligence
⮚ Negligence- 2 years
⮚ Intentional torts- 1 year
o When must it be brought?
⮚ Usually must be brought at the earliest opportunity (motion or answer)
⮚ If not, it is waived
o Accrual
⮚ Courts typically say that the SOL period begins to run when the claim “accrues”
● Accrual of an action usually means that all of the facts essential to a
claimant’s right of recovery have occurred. The essential facts are those
that are necessary to make out the elements of the claim: duty, breach,
causation, etc.
o Discovery Rule
⮚ Applied when the injured party may not have sufficient knowledge of the facts to
understand that they have a claim (DES cases)
⮚ Used in pharmaceutical cases, maybe malpractice, toxic torts, fraud, etc.
⮚ The discovery rule TOLLS the SOL until the injured party SHOULD know or
reasonably know of the claim (the clock starts the next day)
⮚ Injury
o Legally cognizable harm that is the result of tortuous conduct
▪ i.e. when do you know that the harm was due to the tortuous
conduct?
⮚ What must be discovered?
a. Occurrence of harm
b. Harm resulted from wrongful act (breach and causation)
c. Identity of person (or instrumentality) that committed the wrongful act
▪ P need not know the full extent of harm
o Equitable Estoppel
⮚ “When should something stop for fairness”
⮚ When courts prevent D from asserting SOL defense because the D acted in a
way to prevent P from discovering the cause of action
o Ex. If the doctor says, “your arm will heal in 5 years,” which is the max
time you have to bring a claim, that could be grounds for equitable
estoppel
⮚ Elements
o A false representation, And
o Made with knowledge of the facts, And
o Other party must be ignorant of the truth, And
o Made with intention that other party would act upon it, And
o Other party must have been induced
Gaston v. Parsons
Facts: Had surgery on his arm and it was numb and wouldn’t function. Dr. reassured him that this
would last for 6 months to two years. After the two years, he didn’t regain movement and sued for
malpractice. The SOL was 2 years.
Rule: The statute of limitations for a negligence claim begins to run when the plaintiff knows or should know
that the plaintiff has been harmed by the tortious conduct of the defendant.
Holding: Applied the discovery rule and the assurances made by the doctor delayed the time where
he would reasonably discover the harm.
5. Governmental Immunity
o The government is immune from certain claims
o Discretionary functions are protected
o Discretionary function test
i. Determine if the existing law gives the legal authority to make the decision in question
o Almost always discretion is there is no statute, regulation, or agency practice
they must abide by
ii. Determine if the decision involved the kinds od social, economic, and political factors
that legislature intended to immunize in crafting the discretionary function exception
o If these are satisfied, then there is governmental immunity
o Guidelines to determining whether there is immunity
a. Was the conduct an integral part of governmental policy making or planning?
b. Imposition of liability might jeopardize the quality of a governmental process
c. Case cannot be decided without usurping power and responsibility of
legislative or executive branch
Stoller v. City of Lowell
Facts: Stollers building caught on fire. Instead of doing the custom and using sprinklers, they used a
water hose, which didn’t have enough pressure to put out the fie
Holding: Firefighters had discretion in the sense that no statute, regulation, or established municipal
practice required the firefighters to use sprinklers. But whatever discretion they had was not based on a policy
or planning judgment. They were NOT IMMUNE