Torts Outline

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Chapter 1

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)

1.04 The Culpability Spectrum: (consciousness when tort happened)


Innocent Conduct>Negligence>Recklessness>Intentional (Increasing Culpability)
o Intentional Torts:
▪ Assault=affirmative voluntary act (not necessarily touching)
▪ Battery=harmful or offensive contact
o Unintentional Torts:
▪ Negligence=unreasonable conduct in light of foreseeable risks
▪ Recklessness=conscience disregard to a degree of high risk
▪ Strict liability=liability w/out fault as abnormally dangerous activities (e.g.
hazardous waste disposal)
1.08 Tort Litigation Process
o 5 stages to a tort claim (after incident):
1. Lawyer consultation- Interview, research, preliminary investigation
2. Pleadings- complaint, answer and counterclaims, motions
3. Pre-Trial Procedure- Investigation, discovery, motions, settlement negotiations and
mediation.
4. Trial-part1 Jury selection, plaintiffs case, defendants case, motions, closing statements
Trial-part2- Verdict, Motions, Judgment
5. Appeal- Notice of appeal, briefs, arguments, opinion
I. Discovery (6 types)
o Basic Information- each side provides other with basic info.
o Interrogatories- written question to be answered by opposing party.
o Depositions- oral testimony (interview) of any person having relevant info.
o Requests for production of documents
o Medical examinations
o Requests for admissions
II. Motions (3 types)
o Discovery motions
o Motions in Limine- to bar something (evidence, witness, etc) from testifying.
o Summary Judgment “based on evidence” the standard of review is de novo (2 part test)
a. No genuine issue of material fact in dispute, AND;
● Genuine: when the jury could find either way based on the evidence.
● Material fact: facts that are necessary for the claim.
o Issue of fact: what happened, who did it, etc.
o Issue of law: what does the law say?
b. The moving party is entitled to judgment as a matter of law
III. Trial
o Jury selection- voir dire (?s for potential jurors)
o Opening Statements
o Plaintiffs case
▪ Has Burden of Proof (Two Types)
• Burden of Production
o Sufficiency of the evidence where such probability for the jury
to find in the plaintiff’s favor
• Burden of Persuasion
o Show each element by preponderance of evidence to jury.
o Defendants Case (rebuts Plaintiff)
o Motions
o Closing Statements
o Jury Instructions
o Judgment (JNOV - Non Obstate Verdito)
o Verdict
o Appeal
▪ Notice of Appeal
▪ Briefs
▪ Arguments
▪ Opinion
• Majority, Concurring, and Dissenting
IV. Appeal
o De Novo
▪ review of law and fact
▪ Appellate CT gives no deference (respect) to trial ct. (essentially reviews
everything like a new trial.)
- Summary Judgment- De novo
- Jury Charge- De novo
- Directed Verdict- De novo
- New Trial- De novo
• Vicarious liability (respondent superior)- One party may be liable for another party by
reason of relationship. Example, employer/employee relationships AND Employee must be acting
within his scope of employment.
o Scope of employment- Acts that an employee is supposed to do and acts that are closely
related that may be characterized as fairly and reasonably incidental to carrying out the objectives of
employment. Test:
1. Existence of employer-employee relationship AND
2. Conduct of employee acting within the scope of employment at the time of the accident.
(if he takes his break, goes somewhere else and acts negligently, employer is not liable.)
(if he takes a bathroom break and acts negligently, employer is probably liable.)

Chapter 2- Negligence Law: Breach of Duty

▪ 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

● Ways to breach duty:


o Majority Rule: Defendants are held to the reasonable person standard.
(general rule) What would a reasonable person do in similar circumstances?
o Hand Formula used in few JX to determine if D breached a duty (Untaken but
reasonable precaution)
o Custom
o Common sense argument
o In res ipsa loquitor (RIL) Cases
(Translation: The thing speaks for itself)
o RIL is basically a form of circumstantial evidence
o Can only happen in the event of a negligence
o Invoked when P has been harmed but cannot point to any act
that caused it. “But I can infer D caused it!”
▪ If I can point to an act/omission it’s not RIL
- Ex: surgeon left a sponge inside you
o Statutory Duty- Negligence per se

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

o Proximate Cause (Scope of Liability)


▪ It’s legal causation-Limited Device
▪ It’s a device to limit liability
• Should D be liable for harm?
• Or where there intervening factors?
o Was the P foreseeable?
o Event foreseeable?
o Unforeseeable Consequences?
▪ Who is liable? The rock or the ripple?
• Joint and Several Liability- each defendant can be held responsible to
pay the entire judgment to the plaintiff instead of being liable for only a
proportionate share.
o The defendant who pays entire judgment can sue other
defendants for partial percentage of the payment (Contribution)
o The plaintiff can only collect once for her harm and does not get
multiple recoveries from each defendant.
Breach of Duty
• Reasonable Care Standard
o The Reasonable Care Standard:
▪ In most negligent cases, the measure of the duty owed is that of a reasonable
person under the same or similar circumstances. Breach of duty element
consists of two components:
1. The foreseeable risk of harm AND
2. Unreasonable conduct in light of these risks
o It is a “General Duty” of reasonable care
o Measure of duty owed=Standard of Care
▪ Section 2.02 Rudolph v. Arizona B.A.S.S. Federation
• Rudolph’s sued for death of their daughter, Heather. Heather was hit on
her jet ski by a fishing boat driven by a contestant in D’s fishing
tournament. D didn’t patrol lake, knew how congested it was, set a 1pm
deadline (which drivers of the boat were trying to beat when Heather
killed), only designated one weigh in site. Court found that D owed a
duty of care to conduct the tournament without harming other lake-
users.
• The Reasonable Person
o The reasonable person is a hypothetical, law-abiding citizen.
o Measure of duty that is owed is that of a reasonable person under the same or similar
circumstances (Guideline in a negligence action) Majority view
o Defendants conduct is at issue, not state of mind.

• Reasonable Men and Women


o The removal of the term “reasonable man” to be “reasonable person” to prevent
sexism
▪ Edwards v. Johnson
• Woman at home alone at night w/ her kids accidentally fires a shotgun
at a man who knocked on her door (her neighbor). Her shotgun
misfired. Did she exercise reasonable care for a person in same/similar
circumstances?
• The dissent said that age, sex, strength should be included or there
should be a “reasonable woman” standard – sexist view.
• Emergency:
1. When an actor is confronted with a sudden AND
2. Unforeseeable danger AND
3. Not of the actors own making (did not create the emergency)
o Sudden emergency can be a defense against BOD, because it holds the D to the degree of
care, which a reasonably careful person would have exercised under the same emergency.
o It is not an emergency if it’s foreseeable and can be prepared for.
o Foster v. Strutz
⮚ Two people parked in a parking lot. A car filled with 5 guys pulled up next to them
and began punching them inside their car. So the driver (who was getting punched)
pushed on accelerator to drive away, but accidentally drove into a person in the
parking lot.
⮚ Ct ruled that the person getting punched had 10-15 seconds, which was plenty of time
to make a (different) judgment call instead of pressing on accelerator & driving into
someone’s toe. So it wasn’t a “sudden emergency”.
o Rule: the incident must require an instantaneous response to qualify a sudden emergency
situation. (Time is a key element)

● Reasonable Standard for Physically Different Characteristics:


o Rule: Physically disabled person is held to the standard of a reasonable person WITH THE
SAME DISABILITY IF that disability gave rise to the incident. If not, then they are held to
the reasonable person standard.
⮚ Ex. A blind person is held to the standard of care of another blind person (if blindness
is relevant to the facts) under the same or similar circumstances.

● Reasonable Standard for Mentally disabled individuals:


o Majority Rule: Standard of care for mentally disabled and the insane is that of a SANE,
MENTALLY ABLE PERSON.
⮚ This is a policy reason. They create harm just as a reasonable person does. Also,
people can fake it.
o Sudden unanticipated mental disorder.
⮚ Bashi v. Wodarz
⮚ Woman crashed into a car and fled the scene. Later, she said she had no recollection of
the event and also showed some bizarre behavior. So is the sudden onset of mental
illness a reasonable defense?
⮚ Rule: sudden onset to mental disorder cannot be a defense b/c such individual shall be
judged on the objective reasonable person standard in the context of neg.
⮚ Wisconsin Experience (only recognized in Wisconsin)
⮚ Court held that sudden mental incapacity equivalent to a sudden physical one (e.g., a
sudden heart attack) would insulate a defendant from liability.

● Reasonable Standard for Children:


o Majority Rule: The standard is that of a reasonable child of like age, intelligence,
experience, and maturity.
o 2 exceptions to SOC for children:
1. If the child is engaged in inherently dangerous activities, they are held to standard of
care of an adult. (key words- heavy mechanized vehicle and powerful machinery)
2. If child engages in adult activities, they are held to the standard of care of an adult. (using
“adult like processing” consciously were jaywalking instead of using crosswalk”)
⮚ Robinson v. Lindsay
⮚ 13 year old boy drove a snowmobile and crashed, causing injuries to P
⮚ Rule: when a child engages in inherently dangerous adult activity, the child is held to
an adult standard of care
⮚ If you’re acting like an adult, you’re an adult
● Minority Rule: The rule of 7
⮚ Below age 7: incapable of negligence
o Operates as an immunity to liability
⮚ 7-14: rebuttable presumption that the minor is incapable of negligence
o Presumed capable but can argue immunity
⮚ 14+: presumption that the minor is capable of negligence

● How to Determine Breach of Duty (these help to determine what the SOC
should be & ways to determine breach)

● The Hand Risk Analysis (hand formula):


o Not required, just one way for P to show Breach of Duty
o This is rarely used and only used to determine breach.
o The Burden of Adequate Precaution is less than the probability of harm times the magnitude
of harm. B<PxL
o B: Burden of adequate precaution:
⮚ D wants to prove that B>PxL (precaution is too expensive)
⮚ P wants to show B<PxL (precaution is reasonable to prevent harm).
⮚ Factors to consider are:
● Feasible (Cost)
● Safer Alternatives
● Would have avoided accident if they would have done this
● Will not impair D’s societal useful conduct
● Cant be too inconvenient
⮚ This is cost analysis
o P: Probability of harm:
⮚ P must show that harm is likely
⮚ Use statistics and percentages if available. If not use common sense
o L: magnitude of harm (injuries)
⮚ Actual harm or worst case scenarios
⮚ Ex. there’s a 50% likelihood of injury. Injury cost $100. (PxL)=.50 x 100 = $50. Then
compare this is the cost of the precaution.
o Expected Accident Cost= PxL. Ex. If 1000 ladders are sold and 500 users were injured
using them, there is a 50% chance of someone getting hurt. If the injuries of P are
$1,000,000 then (1,000,000 x .50=500,000) the expected accident cost is $500,000.
Compare this to the burden of precaution.
⮚ Criticisms of Hand Formula
▪ It’s too abstract from the suffering of actual people
▪ Only about money
⮚ United States v. Carroll Towing Co.
⮚ Hand formula established in this case!!*
⮚ Barge accidentally set adrift, dumped it’s load and sank. No one was on board to
prevent make others aware of the accident.
⮚ Someone should have been on board to prevent this from happening
▪ This case utilizes the hand formula/balancing scale to determine whether a
breach of duty of ordinary care occurred. They concluded that the precaution of
having someone there was less that PxL.
⮚ McCarthy v. Pheasant Run Inc.
▪ Woman checked into hotel; locks on sliding door not locked. She went out for
the evening. When she came back, someone had come in through the unlocked
door and injured her (emotional distress).
• This case also used hand formula.
● In this particular case though, P didn’t prove B<PL

● Custom:

▪ Is not dispositive (clearly settles the issue of) of breach of duty


▪ Simply a tool in “Standard of Care” Does not create “SOC”
▪ General Rule: Custom is only a tool in determining the SOC, but the SOC continues
to be that of a reasonable person.
• Just guides the jury in determining the reasonableness of a party’s
conduct
• Can’t use custom to directly show breach, but can use it as evidence of
BOD
• Looks at customs of similarly situated members of the community.
▪ Elements of the Use of Custom:
• (1) Practice in a relevant community/industry must be:
• (2) widespread, universal, notorious
o If sporadic or occasional act, its not custom (Majority)
• (3) For custom to be relevant/important, custom at issue must result
from safety concerns
• Custom violating the law (Statute or Regulation) cannot be admitted to
show reasonable care
▪ Exception:
• Medical malpractice cases are dispositive of proper standard of care
(the custom is the SOC). Ex. Physicians customs sets the standard for
other Physicians.


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 Specific Judicial Standards


⮚ Minimum standards of reasonable care can be evolved by judges as rules of law to
substitute for the reasonable care standard.
⮚ Judges can take breach question away from the jury.
o Baltimore & Ohio R.R. Co. v. Goodman
⮚ P was driving his vehicle and was hit and killed by a train. He claimed he had no
“practical view,” until he was 12ft from danger.
⮚ Ct. held that he owed a duty of care to himself. Ct. said since he took no further
precautions, and only relied on the signals, he breach his duty to himself and
reasonable care could not be decided by jury.
o Pokora v. Wabash
⮚ Another railroad accident. P was hit by a train, he stopped, listened, but was still
hit.
⮚ Ct’s can from time to time declare standards of prudent care, but are taken from
the facts of life. In this case, getting out of his vehicle to see if a train was coming
is uncommon and even dangerous. He did not breach a duty to himself.
● Negligence per se
o Negligence per se regards a statute and a presumption of negligence if statute is
violated.
o Majority View: A relevant statute becomes the standard of care, and violation of said
statute proves breach of duty UNLESS a recognized excuse is given.
o The standard is still reasonableness, but violation proves unreasonable actions.
o Minority view: Violation of a statute is only evidence of breach of duty.
o Negligence per se only deals with the BOD prong of negligence.

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.

● Difference between Negligence, Negligence per se, and Strict Liability:

Negligent Neg Per Se Strict Liability


Duty determined based on Presumption of negligence on Presumption of negligence on
foreseeability the part of D the part of the D
No presumption of negligence D can give excuses (in D has no right to offer excuses
on the part of D majority jx)

● 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.

● The “Control” Element


o Ybarra v. Spangard (know this case)
⮚ P had appendicitis and went in for an appendectomy. When he was put to sleep,
felt pressure below his shoulders. After surgery, felt pain in that area. Ended up
developing paralysis. Sued using RIL, because he was unconscious and had no
idea who caused this, but it couldn’t happen without negligence. The multiple
doctors said RIP could not be evoked, because they couldn’t prove “exclusive
control” by any doctor of the instrument that harmed him.
⮚ Where a plaintiff receives unusual injuries while unconscious and in the course
of medical treatment, all those defendants who had any control over his body or
the instrumentalities that might have caused the injuries may be held liable in
an action based on res ipsa loquitur.
● The policy reason behind RIL is that it allows P’s who have been harmed to recover when
they cant prove negligence.

Proof of Breach

P’s Burden To prove D’s unreasonable conduct

D
irect (e.g. eyewitness)
Evidence
C
ircumstantial

Slip/fall D’s constructive knowledge

P
robably Neg.
RIL
P
● The Standard of Care in Professional Malpractice
● Professionals are held to a higher SOC than the average person

● Negligent Medical Performance


o A common standard of care for a doctor states that a physician must act with the
degree of care, knowledge, and skill ordinarily possessed and exercised in similar
situations by the average member of the profession practicing in the field in the
relevant geographical community.
⮚ The SOC is NOT that of a “reasonable doctor”
o Custom sets the SOC, and deviation from that custom constitutes breach of duty.
Custom evidence is conclusive in establishing the standard of due care.
o Specialists are held to the SOC of other specialists, nation wide IF the issues involves
their specialty.
o Smith v. Finch
⮚ Doctor misdiagnosed kid with just a viral disease, when he really has rocky
mountain fever. Experts were brought in that testified that the doctor breached
SOC owed to the kid, by not including RMSF in their differential diagnosis,
because of the symptoms, the fact that it was summer, and the severity of the
infection if not treated.
⮚ Physicians liable because they should have considered all the possible
problems with Justin (even rare ones).
● Doctrine of Informed Consent
o 2 types of informed consent
i. Professional standard- The physician is required to disclose those risks which a
reasonable medical practitioner of like training would disclose under the same or
similar circumstances. Determined by expert testimony, which established
professional SOC.
ii. Lay standard- Physicians disclosure duty is to be measured by the patient’s
need for information rather than by the standards of the medical profession. In
other words, physicians must disclose those known risks which would be
material to a prudent patient in determining whether or not to undergo the
suggested treatment. Does not require expert testimony, it is for the jury to
decide.
o In emergency setting, consent is assumed
o General rule: The patient should be given ALL information PRIOR and must
consent. Usually, consent is given when you sign the paperwork.
o The Tuskegee Experiment
⮚ Study w/ black males for syphilis. Study was done w/o consent and they were
told they were being treated for bad blood. Decades later a class action was
brought.
o Phillips v. Hull
⮚ Phillips had a tubal ligation operation. Later gave birth by caesarean section,
and the child was born “abnormal.” Claimed that he failed to warn her that
the tubal ligation was not 100% effective, and did not advise her to continue
using contraceptives, therefore not getting her informed consent.
⮚ Ct. applied lay standard and said there was a genuine issue of material facts
● Legal Malpractice
o General Rule: SOC is determined by lawyers in relevant JX (state)
o Exception: Legal specialists (e.g. patent lawyers, etc.) are held to a national standard.
o Not held liable for mistaken advice when well-informed lawyers in the community
entertain reasonable doubt as to the proper resolution of the particular legal question.
o Smith v. Lewis
⮚ Attorney failed to include retirement in clients community interest when filing
for a divorce.
⮚ Ct. held that he did not do reasonable research. Any legal encyclopedia would
have let him know that it was included, and they were readily available to
him. His conduct fell below the SOC of a reasonable lawyer.
● Expert testimony
o Usually always involved when trying to prove professional malpractice. (except lay
standard)
o Role of experts
⮚ To establish custom
⮚ Determine whether or not custom is done properly (deviation)
⮚ To establish duty and breach of duty
o Qualifications
⮚ Majority Rule: Experts must show knowledge of the customary practice in
area practiced by D
⮚ Minority Rule: Expert must have training and experience in D’s area of
specialty
o Common Knowledge Rule- When an expert is not needed because common
knowledge that the jury has is enough
Standard of Care Breach of Duty Analysis

1. Reasonably prudent person under Hand/Custom/common sense


same or similar circumstances

2. Child unless engaged in adult activity Failure to act like other children of
same age, exp., and intelligence

3. Professional: custom is the SOC Deviation from custom; expert witness


usually required
4. Statutes: terms of statutes may Violation of statute (neg. per se)
become SOC
Standard of Care

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

● General Duty Principle of Reasonable Care


o One’s obligation to foreseeable Plaintiffs to exercise reasonable care with regard to
foreseeable risks of harm arising from one’s conduct.
o Mcpherson v. Buick (foreseeability)
⮚ Faulty wheel on vehicle. Buick said they owed no duty to the injured person, only to
the immediate purchaser (retailer) who sold the car, because they were in privity of
contract.
⮚ Ct. held that that vehicles are inherently dangerous. That others would use them
besides the retailer, so customers are foreseeable. They owe a duty to those beyond
the immediate purchaser to inspect the product.
o Generally, if you make a product you are liable to the injured foreseeable people down
the line.
o Ask Doyle about if the person buys then sell to another. Are they forseeable?
o A.W. v. Lancaster County School District (foreseeable risk)
⮚ Sexual assault on child at school. Teachers failed to watch the adult defendant after
he entered.
⮚ Ct. focused on what was going on inside the sc ashool, not on the lack of criminal
activity outside. Once they lost sight of D, they should have foreseen that he was a
risk.
● Limited Duty Rules
o Owners and Occupiers of land
o Special protections are given to landowners when visitors ate injured on their real property
o Status Trichotomy:
1) Invitees- One who enters on another’s land with the owner’s knowledge and for
the mutual benefit of both
i. Public invitees- Invited to enter the land as a member of the public.
ii. Business Invitees- invited to enter for some dealing with possessor (must
be premised on part that the owner will reap economic benefits)
a. Status of invitee can be determined by two tests:
a) The economic benefit or advantage test- inquires whether
the visitor entered the land with at least the potential of
pecuniary benefit or advantage to the possessor. OR
b) Public Invitation Test- inquires whether the premises are
held open to the public in such way that there is a legally
implied assurance that the premises are reasonably safe for
entry. (Ex. when you go to the store)
c) Exam Tip if someone falls within public and business
invitee, make sure to say that they fall in both (Ex.
Contractors, employees, etc.)

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.

● Limited Duties to Act Affirmatively to Prevent Harm


o Sometimes the law obligates a person or entity to take measures to protect the interests of
others even where the person or entity did not cause harm
o General Rule: generally, no duty to assist if you did not cause the harm, unless there is an
exception
⮚ Restatement (2nd) section 314 illustration: A sees B, a blind man, about to step
into the street in front of an approaching automobile. A could prevent B by doing
so by a word or touch without delaying his own progress. A does not do so, and B
is run over and hurt. A is under NO DUTY to prevent B from stepping into the
street, and is not liable for B.
o Misfeasance v. nonfeasance
⮚ Misfeasance- Ask Doyle how to tackle this type of problem
▪ Where the risk of harm arises out of ones own conduct
● Commission or omission
● Liability
● Duty to assist
⮚ Nonfeasance
▪ Where risk of harm does not arise out of one’s own conduct
● No Liability
● No duty to assist, unless exception
⮚ Ct’s allow claims based on misfeasance and disallow claims premised on
nonfeasance
o Exceptions, where a person’s required to act:
⮚ Special Relationships:
• Parent/child, teacher/student, jailer/prisoner, carrier/passenger, contractual
relationship where a party has agreed to provide aid, voluntary undertaking,
statute
⮚ Statutes:
● All states have laws requiring assistance to police and fire officials on
request, for motorists to remain at the scene of the accident, and reporting
of child physical and sexual abuse by certain persons (parent, teacher,
medical personnel).
⮚ Good Samaritan Statutes:
● Practiced in Minority of states. Statutes requiring a person to help if it
does not put them in danger.
o Cash case
⮚ Friend took child into the bathroom and killed her. He took no steps to prevent.
Held that he owed no duty to the child.
o Yania v. Bigan
⮚ Bigan allegedly taunted Yania into trying to make a jump. He fell into and
drowned.
⮚ Ct. held that Yania was an adult and Bigan’s taunts could not have enticed him to
jump. That he thrust himself into the perilous situation, not Bigan. Recognized that
IF Yania was a child, it would be conceivable that the taunting could entice the
child to jump, creating a duty.
⮚ Rule: Someone who finds another in a position of peril is under no legal duty to
rescue the person, unless he or she is legally responsible for placing the person in
the perilous position.
o Farwell v. Keaton
⮚ Two boys on a “social venture” one of them got severally beat up, while following
some girls. Hid friend put an ice pack on him, help him into his vehicle, rode
around for hours, tried to wake him up and when he didn’t left him in his vehicle
outside his grandparents house. He dies a few days later. Could have lived if taken
to hospital or contacted his parents.
⮚ Not the Majority View, Ct. held that there was a special relationship that created
a duty since they were on a “social venture” together, which constituted a special
relationship.
⮚ Furthermore, there was a voluntary undertaking by the friend when he took
affirmative acts (going and getting the ice, applying ice, helping him into car,
driving him around) and this created a duty and he breach this duty when he did
not go further.

Limited Duty Rule

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.

● To Protect Against Criminal Conduct


▪ Delta Tau Delta v. Johnson
⮚ Facts: Alum sexually assaulted girl at a party
⮚ The court went through four tests to determine the foreseeability of the criminal
act
1. The first is the specific-harm test, which only imposes a duty of care when a landowner
knew or should have known that a specific harm was happening or about to happen.
2. The second is the prior-similar-incidents test, in which a court considers evidence of
prior incidents of crime and their proximity to the landowner’s property.
3. Next is the totality-of-the-circumstances test, where a court simply considers all of the
relevant circumstances surrounding a particular event, including the nature of the
property, the occurrence of prior similar events, and the condition of the property.
4. Finally, some courts employ a balancing test that weighs the burden of imposing a duty
of care upon the landowner against the foreseeability of harm.
⮚ The court applied the totality of the circumstances test. Ct. held that the chapter owed a
duty.
o Negligent entrustment
▪Ex. Kid going to a party to drink and you give him your vehicle when you know that he
has already received DUI’s.
▪Prima facie elements:
a. That the defendant supplied a third party with the chattel in question for the use of
the third party
b. That the supplier of the chattel knew or should have known that the third party
would use the chattel in a manner involving and unreasonable risk of harm; AND
c. That harm resulted from the use of the chattel

● Public Duty Doctrine

o This rule is followed in a majority of jurisdictions. Cuffy Rule


▪ General Rule: A municipality Only owes a duty to the public at large, not an
individual; there is an exception to the general rule when there is a special
relationship between the municipality and the claimant.
▪ The elements of the special relationship are:
1. A promise by the municipality to act on behalf of the injured party, AND
2. Knowledge on the part of the municipalities that a failure to act could lead to
harm, AND (list their actions)
3. Some form of direct contact between the municipality’s agents and the injured
party, AND
4. Reliance by the injured party upon the municipality’s promise act (Must be
justifiable reliance)
● Cuffy v. City of New York
● Family has a feud with the downstairs tenants. Mr. Cuffy called the police and they
promised him that they would be there first thing in the morning. By noon, the
Cuffy’s son arrive and got attacked by the tenants, they also attacked his wife and
other son. Ct. held that the city owed no duty to the Cuffy’s
● Rationale: By noon, they should have realized that the police were not coming,
since they promised they would be there first thing in the morning. Therefore, they
did not reasonably rely on the promise. Also, the first son that got attacked was not
owed a duty, because Mr. Cuffy directly contacted the police for the safety of his
wife and the other son.

Limited Duties Regarding the Type of Harm

● Emotional Distress Injuries


o The duty to protect others from emotional distress
o Three views on how one can recover from emotional distress Where there is NO
PHYSICAL INJURY
o Majority Rule: Zone of Physical Danger Rule I
▪ Fear for own physical well being, but no physical injury is required
▪ Elements:
1. Within the zone of danger
2. Arose from fear of plaintiff’s own safety
3. Suffered serious emotional distress arising from the incident
o Majority Rule: Zone of physical danger Rule II
▪ Fear of the physical well being of another person
▪ Elements
1. “Family Member” killed or seriously injured
2. Within the zone of danger
3. P saw the Injury or perceive it Ask Doyle
4. Suffered serious emotional distress arising from the incident
o Minority Rule: Impact Rule:
▪ Courts only allow recovery where there is physical impact, but no physical injury. The
requirement of physical injury is often satisfied even by the slightest touching in an
accident context.
o The zone of physical danger is a geographic space within which a party is at a foreseeable
risk of physical injury. Ex. If A is walking five feet behind B when a car jumps the curb and
strikes B, A would be considered to be within the zone of physical danger. If A however, was
on his porch some 60 feet away, he would be outside the zone of physical danger.
Persons subject to Direct Physical Risk
o Bystander Emotional Harm- Persons Outside the Zone of Danger
▪ D has a duty not to negligently cause emotional distress to those who observe
an act which harms another
▪ This rule is triggered when P is outside the zone of physical danger. Zone I &
II do not apply
▪ Like when parent is on porch (outside zone of danger) & sees their kid run over
▪ Many states follow the bystander recovery approach where neg conduct
creates a risk of physical harm to a close family member & the P
witnesses/overhears (perceives) the accident
▪ Elements of bystander emotional harm
1. P must actually perceive (eye/ear witness) the injury
2. Must be closely related to the victim
a. Marriage
b. Blood relation
c. Usually not aunts/uncles, nephew, best friends, etc.
3. Severe emotional distress
a. Neurosis, psychosis, chronic depression, phobia, shock
b. NOT things like insomnia, headaches, loss of appetite
4. Serious physical injury to victim (was the risk so great that it could give
the party emotional distress?)
▪ Bystander Percipient Witness/Geographic and Temporal Requirement: Most
courts strictly require that the plaintiff be an eye-witness to the accident. One can also
be an ear-witness.
o Clohessy v. Bachelor
▪ Facts: Mother was walking by the side of road with her two kids. Negligent
driver accidently hit the boy with his side mirror. Mother and brother suffered
serious emotional distress, they saw the impact and it killed the boy.
▪ Holding: They were outside the zone of physical danger, because a side mirror
is so short and the truck was not swerving outside his lane. Applied Bystander
rule and they satisfied the elements.

Progression Of Law In Emotional Distress Cases

Emotional distress of person subject to physical risk:


Substantial physical contact-slight physical contact
Person suffering Emotional Distress Within Zone of Foreseeable Physical Risk:
i. Fear for personal Well-Being
ii. Fear for Well-Being of Another
Bystander Recovery:
i. Observe severe accident to a person in a close relationship
ii. Serious Emotional Distress

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.

Duty to Protect against fear of future disease

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.

Limited Duty Rule Contexts


1. Duty to Act, Assist or Rescue- Misfeasance/Nonfeasance
2. Owners and Occupiers of Land
3. Recreational Sports
4. Guest Statutes
5. Consortium Losses
6. Emotional Harm Without Physical Injury
7. Pre-Natal Torts
8. Responsibility for Conduct of Others
9. Economic Loss Without Physical Injury
10. Others (Existing or added by courts in future cases)

Developing A Framework For Resolving Duty Issues


1. Start with a presumption that the general duty principle of reasonable care applies
2. Determine if any limited duty rule applies
3. If one or more limited duty rules apply, determine whether there are any exceptions
to the rules that are relevant
4. If no exceptions apply and P would fail under the limited duty rule, then consider
arguing for a new or expanded exception, or an overruling of the limited duty rule
itself.
5. If no limited duty rule applies, the D could try to persuade the court to create such as
rule if the subject area poses a novel situation not previously dealt with by the court
6. If the court determines no limited duty rule or exception is applicable, the general
duty principle applies.
Chapter 4: Causation HAS TO BE D’S NEG. CONDUCT

o The Conceptual Basis of Causation


▪ Causation requires a connection between the defendant’s negligent conduct and
the plaintiffs injuries, causation is determined by the jury, established by a
preponderance of the evidence
▪ Deals with negligent conduct, not just conduct. Conduct can be reasonable.
▪ Burden of Proof:
• (1) Burden of production (Judge’s Decide)
o the plaintiff must produce sufficient evidence that a jury can
find that more likely than not a Ds careless conduct was a cause
in fact of the harm
▪ Tested on direct verdict by defendant at the close of all
the evidence
• (2) Burden of Persuasion (Juries Decide)
o If the plaintiff satisfies the burden of production then P must
persuade the jury that more likely than not the cause in fact is
established
▪ Tested by jury during deliberation

o TWO MAIN TESTS FOR CAUSATION:


o “But For” Causation Test
• Majority Rule when only dealing with 1 plaintiff
▪ Plaintiffs injury would not have occurred “but for” the defendants breach of
duty.
⮚ “but for” = unless, without, etc.
▪ Limitation: The but for test can prevent a plaintiff from showing causation in
multiple cause situation cases (requiring an absolute yes or no answer to
exactly who)
• (where two actors independently and simultaneously act negligently
toward a plaintiff and injury results, and the negligent act of either actor
alone was sufficient to cause the injury, the but for test would excuse
both actors).
▪ Restatement (third) of Torts § 26- uses the but for test for most cases including
multiple causation cases, courts have generally not adopted this approach.
Sowles v. Moore, New York C.R.R. Co. v. Grimstad
o Lost control of horse and went into unguarded water.
o Rule: When injury on part of the plaintiff and negligence on part of the defendant concur, the
plaintiff cannot, nevertheless, recover, if the defendant could not, by the exercise of due care;
have prevented the accident from occurring.
NY Central RR v. Grimstad
o Husband fell of the boat and drowned
o Ct. could not make a reasonable inference that no life preserver is what caused his death. So
many other possibilities, P could not make a “but for” argument
o The Substantial Factor Test
▪ Easier to satisfy than “but for” test
▪ The substantial factor test asks whether the defendant’s negligent conduct was
a substantial factor in significantly contributing to the plaintiff’s injuries.
▪ Has been widely adopted Majority Rule When dealing with multiple
defendants
▪ Remember: (Joint and Several Liability)
(1) A Defendant is not relieved of liability because others may also be
responsible for the harm.
(2) Defendants’ negligence need not occur at the same time.
(3) If the damage can be apportioned to each Defendant, each Defendant may
be held liable for only their portion.
▪ Rest 2nd Torts § 433. The following considerations determine whether the
actor’s negligent conduct is a substantial factor in producing harm:
o (1) The number of other factors which contribute in producing the harm and
the extent of the effect which they have in producing it;
o (2) Whether the actor’s conduct has created a force or series of forces which
are in continuous and active operation up to the time of the harm, or has
created a situation harmless unless acted upon by other forces for which the
actor is not responsible;
o (3) Lapse of time. (longer the time from the conduct to the injury, the better for
the defendant)
▪ Case Examples: Corey v. Havener (motor tricycle), and Smith v. J.C. Penney
Co.

• 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)

● Multiple Parties: Apportionment of Damages or Joint Liability


o Joint and Several Liability: When two or more independently negligent parties cause
a single indivisible harm (like a three car collision where you don’t know which of the
other two cars caused the injury) Cts generally hold each party liable for the entire
harm, and the two D’s can figure out which portion each pays themselves. (when 2
parties cause 1 harm)
⮚ Fugere v. Pierce
o Three car accident, P sued both other drivers, problem was that jury instructions
included that each pierce was not liable for any damages that were caused by the
negligence of a third part. This was wrong, they should be held jointly and severally
liable. Fugere could sue only 1 D and the burden would shift to him to prove that the
damages could be apportioned.
o Rule: If P is harmed by two or more tortfeasors almost simultaneously, the defendants
bear the burden of proving that P’s injury can be apportioned.
o Several Liability: Each party is only obligated to pay his own portion
o Joint and Several Liability: Each are held liable for the full amount
o Single indivisible injury rule: If P cant determine which D casued the injury, then
they can bring 1 claim against both
• Joint and Several Liability Note:
o Each Defendant entirely liable for the harm
o There is no Majority Rule- Jx based
▪ Historically there were 3 categories:
o “True” Joint Torts – parties deliberately engaged in a joint activity which
caused the harm. (Meeting of the Minds). Only 1 of their conduct must
cause the harm
o Special Circumstances – A’s neg is sufficient to cause some harm and
B’s negligence cause some other harm. Will NOT be held jointly and
several liability, because it can be divided. Only responsible for their
harm
o Independent Actions Concurring to Cause Harm – unclear who caused the
harm. This is like the two fires, set on each side of a property, both caused
the barn to burn down. If Ct allowed 1st fire starter to argue that even
without his fire, the barn would have burned, then the other can do the
same, and no one held liable. So, even if each knew nothing of the other
fire, both fired joined to cause the harm together.
● Now Ct also uses comparative negligence to apportion the damages
actually caused by the D
● Loss of a chance of recovery
o Mainly addressed for medical malpractice cases
o Still use “but for” to determine the causation between negligence and loss of chance
o Majority Rule, about 24 states follow this
o Rule:
i. Where a physician negligently reduces or eliminates the
ii. Patients prospects for achieving a more favorable medical outcome,
iii. The physician has harmed the patient and is liable for damages
o So…. If Dr. acts negligently and lowers your chance, P is compensated for his loss of
chance
▪ Ex. Can recover if you had a 40% chance to recover, and because of the
physicans negligence, you only have 10% chance. The % of chance of survival
is at the point of the doctors negligence.
o Minority: Some courts have rejected this if their chance was already less than 50%
o Minority Rule: All or nothing rule
▪ Just a straight ahead causation case, the Dr’s negligence actually caused the
harm (death)
▪ Ex. Physicians negligence caused a patients chance of survival to drop from
51% to 0. They can then recover for full wrongful death damages. If the chance
of survival dropped from 49% to 0, no recovery. Cannot prove that the Dr.
caused the death.
o Matsuyama v. Birnbaum (applied loss of a chance of recovery)
▪ Reduced plaintiffs chance of survival from 37.5% to 0. Used the “but for” test
to determine that he caused the loss of a chance.
▪ Holding: P can recover for her loss of chance
o How to derive the damages Know this for test
1. Determine the actual recoverable amount under malpractice or wrongful death
2. Calculate the patients % of recovery immediately preceding the malpractice
3. Then calculate the % of recovery after the malpractice
4. Subtracted 3 from 2
5. Multiply 4 from 1
● Alternative Liability Doyle loves alternative liability… so know it
o Alternative Liability: Liability arising from the tortious acts of two or more parties –
when the P proves that one of the D’s has caused the harm, but cannot prove which
one caused it – resulting in a shifting of the burden of proof to each D.
o Majority Rule: Where more than 1 defendant engages in negligent conduct and the
conduct of 1 of the defendants is the cause of the P’s injury. The burden shifts to the
defendants to exculpate themselves of liability OR apportion the damages.
o Exists when there is inadequate proof of causation bc/ of D’s actions
o Elements to Proves Alternative Liability:
1. Each defendant was negligent;
2. Harm was caused by only one of the parties;
3. There was simultaneous conduct;
4. Must be potential of similar harm by each party;
5. Plaintiff is unable to show which defendant was responsible for the
harm;
6. Responsible parties are in court (Can be served and Found);
7. Defendants have better access to the facts.
o If P satisfies these 7 elements, he has satisfied causation, then the burden shifts to the
defendants to exculpate. If they cannot, they are jointly liable.
o Summers v. Tice (MUST KNOW THIS CASE FOR THE FINAL
▪ P and two D’s out hunting, both D’s shot in P’s direction, P hit in face with
birdshot, but unable to say which D, or both, hit him. Ct held that the burden of
proof shifted to each D to prove themselves not responsible for the harm.
● Market Share Liability: Must Know for Final
● Market Share Theory: Liability that is imposed, usually severally, on each member of an
industry, based on each member’s share of the national market or respective percentage
of the product that is placed on the market.
● Usually used in products liability where P cannot identify the manufacturer, among
several, who produced the product that caused the injury
● When “but for” and substantial factor cannot prove causation
● MAJORITY RULE – Limits Market share Liability to DES Cases.
● MINORITY RULE – No use of market share, even in DES cases
o Hymowitz v. Eli Lilly & Co.
▪ DES Case (drug given to pregnant mothers, lawsuits usually brought by
daughters of mothers who took DES, called DES daughters). Case brought
against DES manufacturers, as none knew who manufactured the product
they took, and all manufacturers products were the same. Ct held to apply
the market share theory, so each manufacturer is liable for the percentage
of the national market they held.
▪ 2 problems, the SOL and couldn’t identify the manufacturer, so they passed
a discovery rule and developed the market share theory
▪ Couldn’t apply alternative liability, bc it requires a small number of
wrongdoers, all possible D’s must be in Ct. (here some had left the market,
and so many that they could appear in Ct.), and defendants were no more
likely to know whose drugs she took.
▪ “but for” and substantial factor would not work
▪ So public policy required that they come up with a rule
● 3 steps to Hymowitz/market share approach
I. Used a national market approach.
i. D’s knew or should have known they were putting a bad drug into the
national market
II. The only way to exculpate is to prove that they did not produced the drug
for a the specific purpose (in this case pregnancy)
i. P will not be made whole if they can exculpate, but also some D’s will
be held liable when the are not guilty bc/ they use the national market
III. Liability is several only and is not inflated when all manufactures are not in
Ct. or some exculpate
● Application of market share theory to lead paint problems
o Presents difficulty, as lead paint was used openly from the 1920’s to 1978. During this
time many manufacturers both entered and left the market.
o Brenner v. American Cyanamid Co.-NY
● Ct held that could not apply market share liability to lead paint cases due to the
inability to narrow the time period to apply the theory, absence of fungible
product (was in so many diff types of paint), and that there was no signature
injury involved to prove it was a result of the paint (lead paint causes all sorts of
things).

Chapter 5- Scope of Liability (Proximate Cause)


● The Conceptual Basis of Scope of Liability: A scope of liability determination examines
whether the careless conduct of D is sufficiently related to the harm suffered by P to warrant
holding the defendant liable.
● Whether the careless conduct of D is sufficiently related to the harm suffered by P to warrant
liability
● Essentially, scope of liability tests whether the result in question was wholly abnormal,
unprecedented, or highly extraordinary under the circumstances and whether liability should
extend so far
● It is a means to set the outer boundaries of liability in negligence cases
● Two tests: DOYLE SAID THIS WILL BE ON FINAL!!!
o The Direct Consequences Test: MINORITY RULE
▪ If you act negligently and it causes harm, you are likely liable
▪ Doesn’t really look at foreseeability
▪ Would be held responsible for every domino in the chain
▪ Polemis
● D’s stevedores negligently dropped wooden planks into a ship, creating
sparks which burn the ship down.
● Found D negligent bc/ actions were traced back to his stevedores.
Since there was SOME damage that was foreseeable, it doesn’t matter
that the spark wasn’t reasonably foreseeable
▪ If Polemis was analyzed under the foresight test, the consequences may be
unforeseeable or the stevedores may be an intervening factor
o The Foresight Test: MAJORITY RULE
▪ Set the limit of liability based on the risks that made the conduct unreasonable
(negligent) in the first place.
▪ Requires three questions to be answered:
1. Is there an arguably unforeseeable plaintiff?
2. Are there arguably unforeseeable consequences?
3. Is there arguably intervening conduct?
a. If YES, then it’s a Scope of Liability Claim.
b. If NO, then no scope of liability issue
● Application of the Foresight Rule:
o Unforeseeable Plaintiff:
▪ Palsgraf Have to know this case
▪ Dropped fireworks after RR agent negligently helped someone board the train.
Fireworks exploded, causing a scale to fall on palsgraf.
▪ Ct. held that the orbit of danger of mishandling the package does not extend to
1) a scale falling and 2) on Palsgraf.
▪ Furthermore, the Risk of the agents negligence does not extend to 1) an
explosion, 2) a scale falling, and 3) on Palsgraf
▪ Was the PLAINTIFF, or class of persons of which the P was a member within
the scope of risks created by the defendants negligent conduct? The particular
person/class must be foreseeable
o Unforeseeable Consequences:
▪ Was the result (consequence) within the scope of risks created by D’s
negligence?
▪ Majority Rule:
● Manner of Harm Test: As long as the defendant creates a reasonably
foreseeable risk of the general kind of harm that befell the P, the exact
way or precise manner the harm occurs does not matter for the purposes
of scope of liability
▪ Minority rule:
● Type of Harm Test: D should have reasonably foreseen the specific
harm that happened to P
▪ Juisti v. Hyatt
● Negligence of hotel maid of not turning on exhaust fan created the fire
alarm to go off. P had to go down 14 flights of stairs and suffered a
collapsed lung
● Ct. applied the MANNER OF HARM TEST. It is not whether the
consequence (collapsed lung) was a foreseeable consequence, but
whether they could foresee the manner of harm.
● Ct. ruled for P. A failure to turn on exhaust fans could result in a lot of
harm
o Intervening Forces
▪ Two Possibilities
1. Criminal conduct of a third party
2. Shifting responsibility issue
▪ Arises when there are 2 or more causes in fact:
1. D’s tortious conduct, AND
2. Subsequent act the “intervenes” in D’s negligent conduct
▪ An intervening force only breaks the causation chain if the intervening factor is
unforeseeable….. So there must be
1. Subsequent act
2. That is unforeseeable
▪ Generally, both the tortfeasor and intervener will be held liable
▪ Criminal Conduct of a third party:
▪ McClenahan v. Cooley
● D left his keys in the ignition of his car in a public area. Thief spotted
it, stole the car, drove it negligently, and injured P.
● Should the D had foreseen that by leaving his keys in the ignition, that a
thief would see it, steal his car and drive it negligently?
● Ct. held yes, and that it was not a intervening factor to break the
causation chain

▪ Shifting Responsibility Issue


● This is a MINORITY RULE
● Sometimes and third party intervening conduct, even though
foreseeable, is so egregious, a court is motivated to conclude that the
third party alone is responsible for the damages and supersedes the
negligence of the initial actor.
● In other situations, a negligent actor can argue that she had the right to
rely on the careful conduct of intervening parties to prevent harm
● The third party will be liable if his negligent act is egregious, even if it
is foreseeable
● The burden will be shifted to the intervener
● McLaughlin v. Mine Safety Appliances
o Manufacturer of heat block failed to put label on the block, but
had instructions on how to use it on the box. They trained the
firefighters wrap it in insulation. Girl almost drowned and they
failed to tell nurse, girl was burned
o Liability was shifted to firefighter. Ct. said that their duty to
warn was relieved when they trained the firefighters, and the
firefighter had the duty to warn the nurse.
o Rule: A distributor of a defective product may be absolved of liability
for negligence if an intermediate party with knowledge of the defect
passes on the product on to a third party without notice or warning.
(minority rule)
● Bigbee v. Pacific telephone
● Ct. said the intervening factor was the negligent driver, and it was
foreseeable that they could hit the telephone booth, because there were
prior accidents.
● Exceptions to the foresight rule
1. Medical Malpractice complications rule (Doyle Likes This Rule)
2. The Eggshell (thin-skulled) plaintiff rule
3. The Rescuer Rule

o Medical Malpractice Complication Rule


● Only deals with instances where medical malpractice may be a superseding
intervening factor
● General rule:
o The law regards the negligence of a wrongdoer in causing the original
injury as the proximate cause of the injuries following from the
subsequent negligence or unskilled treatment thereof, and holds him
liable.
o The original negligent tortfeasor is liable for ALL the harm
● The plaintiff does not have to make the case that the original defendant could
foresee future injury from malpractice
● The plaintiff only has to bring one claim against the original tortfeasor instead
of bringing a malpractice case and the burden is on the Defendant to implead
hospital and prove malpractice.
● The original tortfeasor can always implead the negligent medical
professional/hospital
● So…. For this case to apply, there must be
1. Original negligence
2. Harm to the plaintiff
3. Subsequent negligence by medical professionals
4. That aggravated the injury
● Association for the retarded citizens-Volusia v. Fletcher
● Autistic kid was negligently unsupervised and nearly drowned in the
deep end of pool. Medical professionals failed to take him to the closet
hospital and D claimed that he would have been more likely to have
survived if they did so. The Defendant argues that there was a
superseding intervening cause by the medical professionals.
● Applied Med. Malpractice rule and held Defendant liable
o The Eggshell (Thin-Skulled) Plaintiff rule
● “You take the plaintiff as you find him”
● Arises when the plaintiff has a underlying medical condition that causes
additional injury
● General Rule: Some harm must be foreseeable but the extent of the harm
need not be foreseeable for P to recover
● Defendant cannot argue that he did not know and could not have known that
the plaintiff had an underlying condition that would cause the additional harm
● Pace v. Ohio dept. of Transp.
● Defendant negligently hit P with a snowplow, injuring his small finger.
He went to the hospital and there was only swelling. He went back a
few days later and it was infected, which led to it being amputated. He
was a diabetic, which made him susceptible to infection. D argued that
their negligence was not the prox. Cause, because he was a diabetic and
contributed to his own injuries. The D did not put on evidence that P
was using drugs or not complying with his required diet. His blood
sugar levels were normal.
● Rule: Under the eggshell skull rule, a negligent actor is not relieved of
liability for a plaintiff’s harm simply because the plaintiff was abnormally
susceptible to harm.
● A tortfeasor is on the hook for any damages to a plaintiff that were actually
and proximately caused by the tortfeasor’s negligent actions, even if the
damages greatly exceed what they would have been had the tortfeasor harmed
a reasonably strong person, or if the damages might not have occurred at all.
● The Defendant can combat this by arguing that P did something to
aggravate the injury
o The Rescuer Rule Will not be tested on this
● This rule applies when the defendant negligently puts himself or another in
peril and someone is hurt attempting to rescue them.
● Rule: Under the rescue doctrine, a negligent actor is liable for injuries
sustained by a person trying to rescue the actor from the actor’s own
negligence.
● Danger invites rescue (good language to remember)
● So, if you engage in negligent conduct, which puts you in peril, you
essentially ask the other actor for help. If they get hurt attempting to
help, you are liable
● Some if you negligently cause another to be in peril, and someone gets
hurt trying to help them.
● Affirmative defense
▪ Defendant can put on an affirmative defense that P acted negligently.
● Sears v. Morrison
● Morrison negligently put himself in peril and a cooler was laying on
him. P was injured trying to get it off of him
● Ct. held hat he was liable since he negligently put himself in danger.
Chapter 6- Damages
● No federal taxes come from damages.
● There are income taxes on punitive damages
● Pecuniary Damages
o Objectively calculated
● Non-Pecuniary Damages
o Subjectively calculated
● Three primary areas of personal injury damages recovery
1. Earnings Losses
a. Past and Future
b. Lost income, lost opportunity (raises, promotions, etc.), health insurance, etc.
c. Based off of plaintiffs work life expectancy
d. Non speculative
2. Medical Treatment Expenses
a. Past and Future
b. Including hospital and pharmaceutical expenses, past and future
c. Must be reasonably necessary and reasonably priced. Plaintiff has the burden to prove
this
d. You have to put on medical experts for future medical expenses
e. Non speculative
3. Pain and Mental Suffering (ASK Doyle of there must be awareness)
a. Past and Future
b. Includes emotional harm, mental pain, physical pain, LOEL, etc.
c. This is hard to prove. Usually have to look at other cases and say “this is what they
received, so I should too.”
d. Speculative
4. Some courts recognize LEOL
a. Majority Rule:
i. It is part of pain and suffering
ii. Must be some level of awareness to recover for LOEL
● Lump Sum Rule
o plaintiffs recover a lump sum covering all past and future damages
● Collateral source rule (wont be on essay)
o Where a plaintiff is compensated for his or her injuries by some source independent of the
tortfeasor, the plaintiff is nonetheless entitled to a full recovery against the tortfeasor.
o Ex. If insurance pays some of the bills, you still recover.
● Additur and Remittitur
o Additur is when the judge adds to the damages, remittitur is when he subtracts
● Subrogation (Ask Doyle)
o Allows the benefit provider to step into the shoes of the injured party and sue the negligent
defendant directly for benefits paid out.
o Generally reject in personal injury suits
● Damages Cap
o Certain JX may have a statute that limits types of damages (pain and suffering, etc.)
● Mitigation
o P should have got medical attention earlier so that the injury wouldn’t have been this
bad
● Expert testimony is essential to prove damages
● Federal tort Claim Act
o If bringing suit against the government, it has to be in federal court under the FTCA.
There is a 90 day notice of claim
● Discounting to present value
o Discounting to present value (using discount rate) is necessary because the lump sum awarded
can be invested today and will earn interest over the individual’s life, which would provide
more than full compensation.
o Only 2 things we need to be aware of for discounting to present value
i. Interest
● Decreasing damages to account for interest
ii. Inflation
● Increasing damages to compensate for inflation
● Calva-Cerquerica v. United States
o 18 year old hit by bus. Severe injuries including paralysis and severe mental
disabilities.
o Pain and suffering
▪ Looked at similar case and gave him $5 million which was slightly more than
case
o Past medical care
▪ Was entitled to the full 899,000 which was spent on medical expense. Applied
collateral source rule and even though insurance paid for some, he received the
full amount
o Future medical expenses
▪ Put on medical experts and was awarded $15 million
o Future lost wages
▪ Based this off his family and experts. His mother had a doctorate degree, father
was a doctor, etc. Thus he would reasonably finish college and complete some
graduate school. Then put on expert to determine the amount he would earn.
Awarded him $2.5 million
● Pain and Suffering
o Aside from the three primary areas of recovery, courts may recognize LEOL
o Usually have to look at a case with similar facts to determine this
o Physical pain- trauma from accident, removal from accident, medical treatment,
healing process, rehab process, and from “phantom pain” from amputation of limbs
o Mental Suffering- Anxiety, Depression, etc.
o Emotional Distress- Same as “mental suffering.” Worry, grief, humiliation,
embarrassment, anxiety, despair, helplessness, and depression
o Post-Traumatic Stress Disorder- occurs from recollecting the traumatic event
periodically by a stimulus similar to the event.
o Loss of enjoyment of life
▪ General Rules
● Most courts allow recovery for LOEL
● It is part of pain and suffering (this could lead to double recovery)
● There must be some level of awareness to be able to recover LEOL
o Mcdougald v. Garber
▪ Malpractice that left her in a permanent coma.
▪ There must be some awareness to recover LOEL because this would have no
meaning or utility to the injured person. Should be calculated with pain and
suffering
● Wrongful Death
o SOL begins to run from the date of the death, not the accident
o She said this was highly testable
o A plaintiff can recover non-pecuniary losses in a wrongful death suit
o Persons entitled to claim for wrongful death
▪ Spouses and children
▪ Parents and siblings are additional classes if there is no children or spouse
Wrongful Death Statues Survival Statutes

Right of Action Beneficiaries (a/k/a survivors) 1. To decedent’s estate


Spouse, children. Etc. (based upon survival of
decedents PI claim)
2. To those who want to sue
decedent’s estate
Addresses Loss To beneficiaries To decadent
To victims of decedent

Measurement of Damages 1. Economic loss suffered as 1. From date of accident to


a result of the death date of death
2. Loss of support, services, ⮚ Pain & suffering
society ⮚ Earnings losses
3. Replacement labor costs ⮚ Health care expenses
⮚ Lost financial opportunity
2. Funeral and burial
expenses

● Loss of Consortium
o Marriage remains a prerequisite to recovery for loss of consortium, not cohabiting
people

Punitive Damages

● Punitive damages AKA Exemplary damages


● Not subject to comparative fault apportionment
● Punitive triggering events
o Intentional Misconduct
o Recklessness/outrage
o Fraud
o Malice
● Majority Rule:
o Compensatory damages are prerequisites to punitive
● Standard of proof:
o Clear and Convincing evidence (this is between preponderance and wo/ a reasonable
doubt
● The defendants wealth is inadmissible on whether punitives SHOULD be awarded, but can be
used to determine how much
● Majority Rule:
o Corporations are liable for punitive damages on the awarded fro reckless acts o fits
employees acting in a managerial capacity
● Limits to Punitive damages
o Gore Guideposts in determining whether punitives are excessive
i. Degree of reprehensibility of the misconduct
⮚ The harm was physical or only economical
⮚ Actions showed reckless disregard for health and safety of others
⮚ Conduct involved repeated actions
⮚ Harm was intentional/deceitful
ii. Disparity between actual or potential harm suffered by plaintiff and punitive
awards
iii. Difference between punitives and civil penalties authorized by the state
o Mathias v. Accor Economy Lodging
▪ BedBug case where their conduct amounted to willful and wonton conduct.
They awarded $5,000 in compensatory and $186,000 in punitives. Court said
this was not excessive
o State Farm v. Campbell (due process)
▪ SF made bad faith claim to P. Plaintiff sued for fraud, etc. they awarded $145
million in punitives, a 145-1 ratio. They applied the Gore Guideposts and said
they shouldn’t be punished for what they do nationally, and worried about bias
to punish big business.
● Rule: Court said that any single digit ratio comports with due process,
but anything higher is an indication of an award that is grossly
excessive

Chapter 7: Defenses and Immunities


● Affirmative defenses
1) Contributory Negligence (Minority Rule)
2) Comparative fault (Majority Rule)
3) Assumption of Risk
4) Statute of Limitations
● Affirmative defenses are typically brought at the first chance (the answer) if they aren’t, they
are waived

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

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