Torts II Outline

TAYLOR_TORTS II_SPRING_2013
LIMITED DUTY RULE AND ITS EXCEPTIONS (FINAL ESSAY)(START WITH TWO PART DUTY TEST AND THEN GO INTO THE LIMITED DUTY RULE AND EXCEPTIONS) (IT’S A DUTY QUESTION!!!) (ESSAY QUESTION WILL COME FROM CHAPTERS 9-12)
Causation (2 part test)
Two step inquiry:  causation involves a two-step inquiry.  The first steps asks, is there a connection between the tortious conduct and the P’s injury?  One way is the “but for” test.”  The second step concerns the fairness of imposing liability for harm in fact caused by the D. 
(Jury makes determination) Factual/ actual/ cause-in-fact
Factual causation: it’s about the facts  (can use direct, circumstantial, expert witnesses, can’t be mere possibilities, can’t be speculative evidence)
·         P normally has the burden of proof (probabilities not possibilities)
·         Evidence cannot be speculative
·         Conduct is a “substantial factor” if it was:
1)      Indispensable (but for test) But for the D’s conduct, the harm would not have occurred. or
2)      Independently sufficient causes (test) (multiple d), if two or more causes concur to bring about the harm, and either one alone would have been sufficient to cause the result, then that is ISCT. 
Factual Causation:  A factual inquiry into whether the D’s conduct precipitated the injury; and
Proximate Causation:  A policy inquiry into whether it is fair to impose liability on a D whose conduct was a factual cause.
But For Test:  But for the D’s conduct, the harm would not have occurred. Works well for a single D.  The conduct is essential. Sin qua non.
·         Multiple “But for” causes: There may be multiple “but for” causes.  Where one negligently leaves his truck in the street and the other negligently fails to take evasive action, both actions would be factual causes of injuries. 
·         Greater harm:  increased likelihood of harm/ greater harm.
Substantial Factor Test (works well with multiple D):   
·         Two forces are actively operating and each of itself is sufficient to bring about harm to another, the actor’s negligence may be found to be a substantial factor in bringing it about.
·         If you have multiple D and it’s hard to say that one act would be independently sufficient to cause the harm, then you can apply substantial factor test and say that each actor was a substantial factor in harm.
·         Types of evidence:  Direct, circumstantial, expert witness.  No mere possibilities; no speculation.
Loss of a chance (only available in medical malpractice)
·         This doctrine allows a P to recover damages by showing that the D was a substantial factor in causing the P to lose a significant chance of escaping the harm in question (e.g. death, paralysis, loss of limb).  Some states reject the doctrine.
Multiple fault and Alternative liability
The burden of proof on factual causation shifts to D, if:
1)      Each is shown to have acted tortiously
2)      The actual wrongdoer is one of the small number of d before the court and
3)      The nature of the accident makes it impossible for the p to prove causation
Each d is subject to full liability for the p injuries, absent proof of lack of causation
Concerted action:   liability rests upon the principle that ‘[a]ll those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit, are equally liable with him.
·         Injured plaintiff may pursue any one joint tort-feasor on concerted action theory, and such tort-feasor may, in turn, seek contribution from others who acted in concert with him.
3 types of concerted action liability
Civil conspiracy:
·         an agreement between two or more persons to do an unlawful act or a lawful act in an unlawful manner
·         Harm caused by the act of a party to the agreement
·         Done in furtherance of the common scheme
Agreement—tacit
Aiding and abetting:
1)      A wrongful act by the principal causing injury
2)      General awareness by the d of his/her role in overall illegal activity
3)      Substantial assistance
·         Re substantiality, consider
1.      Nature of act encouraged
2.      Amount of assistance
3.      D’s presence or absence at the time
4.      D relation to tortfeasor
5.      D state of mind
6.      Duration of assistance
One who assists a tortious acts is liable for reasonably foreseeable acts done in connection with it.
Joint Enterprise Doctrine:  Four elements 1) an agreement, express or implied, among the members of the group; 2) a common purpose to be carried out by the group; 3) a community of pecuniary interest in that purpose, among the members; and 4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control
Perspectives on factual causation
1)      Paradigm case: p has burden of proof
2)      Ybarra- p burden is eased
3)      Summers- burden shifts to d if all were negligent and the responsible party is in court
4)      Hall- b shifts to d if they jointly controlled the risk and it is virtually certain the responsible party is in court
5)      Sindell- b shifts to d if number sued is sufficient substantial to prevent injustice
6)      Halberstam- P need not show that d caused the harm, but only that d acted in concert with the wrongdoer
7)      Hymowitz- D who engaged in a particular type of conduct is liable even if it neither caused the p harm nor acted in concert with the one who did
Incitement:  There is a balancing act between incitement and first amendment.  3 variables to see if D is liable for incitement.
·         Culpability:  the d must have engaged in conduct that is blameworthy of third party’s conduct.  We can measure culpability by negligence, recklessness, and intent.