Torts II
Zisk, Spring 2016
Duty to rescue:
A landowner has no duty to warn a trespasser of the existence of a dangerous condition even if child.
A physician is not required to treat anyone who requests medical attention.
A duty to warn of an existing danger must be carried out in a manner reasonably calculated to prevent harm.
Gratuitous undertakings:
A party is liable for negligent acts committed in the course of performing a contract even if the contract itself, bc of lack of consideration, could not have been enforced.
A party who voluntarily assumes a duty not imposed upon him or by law may be deemed neg if w/o notice he discontinues his performance of that duty. Erie RR.
A party whose performance incidentally helps 3rd party, they do owe 3rd party duty to continue.
Special Relationships:
Where a person bears a special relationship to a party or others who may be the victim of the conduct and it is reasonably foreseeable a legally cognizable duty arises to protect or control a 3rd party.
DAMAGES
proof of damages is an essential element of the P’s case in most civil litigation
justice requires P to be restored to pre-injury position
non-economic damages are capable of being transferred to dollars
a jury must take into account past and future damages
Damages are crucial to the deterrence function
3 crucial elements of damage:
pain and suffering
medical expenses
lost earnings
Southern Pacific:
Damages are subject to limitations
– anything more than the proportion of the harm inflicted has no place in the law of damages, absence culpability beyond negligence
PAIN AND SUFFERING
If there is no cognitive awareness of the loss of the enjoyments of life, the award does not serve a compensatory purpose.It has no meaning or utility to injured
To separate loss of enjoyment and pain and suffering would not make damage accurate
Pain and suffering typically includes anguish, worry, grief
Connie thinks of them differently
You can always recover for pain and suffering – like at the moment of the injury
But if you are incapacitated, you cannot recover if you don’t know you are losing something
those damages that compensate for physical and emotional consequences.
economic compensation for injury, such as medical expenses, loss of wages, and cost of custodial care
Hedonic Damages:
Damages awarded for loss of pleasure of being alive
It is physical pain, loss of societyal opportunities, and social stigma that is a major contributor
Sometimes overcompensate, because the injured plaintiff often adapt
Example: wrongfully incarcerated man
Per Diem Rule:
Approach asking for damages, second by second, minute by minute of the P’s life, until you have account for the damages you are asking
Scheduled Damages:
A matrix that classifies the injury, saying how severe it is,
Compares it with similar, previous injuries in cases
Increased Risk of Future Injury
Probably too speculative
COLLATERAL BENEFITS (MEDICAL)
Tortfeasor gets whole bill, no reduction regardless of insurance
Tortfeasor should not benefit from P getting insurance
Between the insurer and the wrongdoer, who has caused the loss, in reason and justice the burden of making compensation to the injured party ought to be ultimately borne by the party as to his remedy against the insurer
No privity between the D and the insurer as to give the former a right to avail itself of a payment by the latter
Collateral source payments include more than insurance payments made directly to P, including salary, and sick or vacation
:
Way to avoid double payments for collateral sources is to allow injured parties to recover their amounts paid from the trot damage
Subrogation grants the collateral source the power to participate in, or even control, the tort litigation and to recover its expenses directly from the tort claimant.
in order to prevent an insurance company from making subrogation claim against your client, structure settlement as pain and suffering because they cannot get those
Covenant not to Execute: if you settle with an insurance company for the maximum amount of coverage, you agree to not sue the tortfeasor
WRONGFUL DEATH AND LOSS OF CONSORTIUM
non-pecuniary damage
15-51-10: Wrongful Death Statute in SC
Survival Action: the period of time from when you’ve been injured until you die…it is compensable period of time.
15-75-20: Loss of Consortium
not a derivative claim; separate cause of action that stands alone
parent-child depend on state.Case law in SC that allows parent to make claim for loss of child
PUNITIVE DAMAGES:
punitive damages are appropriate when it is willful/intentional – questions go to jury.
But judge gets to determine if the punitive question gets to go to the jury
punitive damages are not appropriate in every case:
however, in practice, plead punitive in every case.You don’t know what you will find out in discovery, etc…
bifurcated trial:
try compensatory first; then have second part trial for punitive
Kemezy v. Peters
No burden of production on the plaintiff to show D’s networth
D has the information on his wealth. Duh
In practice, you’re usually trying to find a deep-pocket
You want to convey that award has to be big enough to constitute punishment – $5 million to Wal-Mart is nothing
Look at reasons behind punitive damages
State Farm v. Campbell
Punitive Damages validity guideposts:
1) Degree of reprehensibility of the D’s misconduct
2) Disparity between the actual harm or potential harm suffered by P and the punitive damages award
4-1 rule
single digit multiple is not hard and fast, but is the rule of thumb
can be greater if the act is so reprehensible and counsel can convince jury of that
won’t satisfy Due Process otherwise
3) Difference between punitive damages awarded by jury and the c
e for harm under rule stated in 519, although the harm is caused by the unexpected
(a) innocent, negligent, or reckless conduct of a third person or
(b) action of an animal
(c) operation of a force of nature
once things determined to be abnormally dangerous activity, pretty strict in holding strictly liable no matter intervening third person
PRIVATE NUISANCE
P seeking to establish a private nuisance MUST show invasion that is either:
Intentional or unreasonable or
Unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous condtions or activities
3 elements:
1) intentional and unreasonable
gravity of harm outwigh the utility ?
what’s the financial burden of not doing
2) interference with P’s use and enjoyment of land
3) activity that is continuous or potentially recurring
will be disputed on a case-by-case basis
Factors to Determine Nuisance:
Nature of activity
Gravity of harm to P
Frequency of occurrence
Comparative economic interest
Environment context
Priority in time
Rogers v Elliot (bell ringing case)
Whether or not a particular activity constitutes a nuisance depends upon the way in which it would affect a person of ordinary sensitivity and temperament
If the bell was found to be a nuisance to everyone, then the eggshell plaintiff rule would come in and the church would be liable for further injuring the sunstroke guy
applies to the person and property
Ensign v. Walls (1948)
The fact that an alleged nuisance existed long before those objecting to it moved into the vicinity does not necessarily prevent a court from ordering it abated.
Courts will take into account the fact that one party was on the land before another – ie move to the nuisance, but its not a determining factor
Public Policy: what she is doing doesn’t have great social utility, especially compared to development and growth
Coming to nuisance: it’s a case by case basis
Courts weigh the factors, but there is the comparative overriding factors of economic interest and nature of activity, and priority in time
Minority:
Assumption of risk by P
Problem: mandates that you would have to know the risk
When does SOL begin to run?
When they knew or should have known the tangible harm was suffered
