Torts Outline, Rutgers Camden, Professor Maltz, Fall 2010
Five things to know for exam: duty, breach of duty, proximate cause, injury, and time of exam.
Week 1, Chapter 3 1. Mental ability and states Pg. 122
Normative view- WE should say that A owes B money under those circumstances that will make society run more efficiently. The basic idea is that people know the legal rules and they adjust their behavior according to what those legal rules are. The vision is that we ought to have the rules that encourage people to adjust their behavior in a way that makes society run more efficiently.
Second theory which liability is based- theory of corrective justice- if A injures B, B should be able to collect from A under circumstances where it just doesn’t seem right if he can’t.
Three categories of torts-
Intentional torts- A and B are walking down the street and A punches B.
Negligence law- A is driving down the road and is texting. A runs into B’s car, but not because they meant to, but because it was an accident. Corrective justice- the other party ought to be able to recover damages.
Strict liability- does not matter if you are careless, or did nothing wrong. If you do something and injure someone in the course of doing it, you are liable anyway.
When a P sues a D for negligence, the first question is:
1. Whether the D owed the P a duty?
2. Whether the D breached that duty by failing to use reasonable care?
1. Sometimes is, whether the D took reasonable precautions against the harm that occurred?
The P may have been negligent as well. Negligence= carelessness.
Duty, breach of duty, cause in fact, proximate cause, damages.
A. The reasonable person
Restatement (second) 283: Conduct of a reasonable man pg. 122- Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.
Williams v Hays- Mental ability and mental states pg. 122- reasonably prudent person rule. Hays is captain of a ship. There is a bad storm. He thinks he has maleria and lays down. Help is offered to the ship twice and turned down. The ship runs aground, and owners sue Hays because he was negligent. This is the any fool rule- any fool that offers help should accept it. Did Hays act reasonable in taking care of the ship? Rule of Law- Insanity is not a reasonable defense. Why? Someone needs to be liable for what happened and it should be the other side. But on appeal the court says that if he did all he could, he shouldn’t be liable.
Vaughan v Menlove pg. 125- The D built a haystack near the edge of his property that caught fire. The P warned the D that it could catch fire, so the D built a chimney.The fire spread from the D’s yard to the P’s yard. Williams v Hays says that we hold everyone to the standard of the reasonably prudent person. In Menlove, the court says the system will not function if every time a person comes to court they say that they can’t be held responsible because they acted reasonably prudent How do we know if someone is acting reasonably prudent? Give it to the jury.
Holding- The court said the D was bound to use reasonable caution as a prudent person would have exercised under those circumstances. The jury returned a verdict for the P. The D appealed saying that he should not be responsible for not possessing the highest order of IQ. Held for the P.
Rule- -“Reasonable person standard”- a person is normally held to the standard of the normally prudent person.
Lynch v Rosenthal pg. 126- Lynch was a 22 yr old man with the mental capacity of a ten year old was instructed by Rosenthal to walk between a corn picker and wagon from which the picker was discharged. He stumbled in to the picker and his right arm was injured. Lynch brought a suit claiming the D was negligent by not warning him it would be dangerous. The D argued that Lynch was negligent by not coming too near the machine. D’s attorney would sight Vaughn v Menlove because this case involved a person of lower intelligence. Being of below average IQ is not a defense to being negligent. D would say the P was contributorally negligent.
Issues- Whether Rosenthal was negligent in not warning Lynch about the dangers of following too closely behind the corn picker? Was Lynch contributorally negligent? Not if he has the IQ of a child.
Hold-P, Lynch wins. Rule- The difference is that:
1. Menlove was cautioned by a neighbor, and Lynch was not warned at all. Rosenthal was negligent in not warning Lynch. Even if the P proves the D was negligent, the D can give an affirmative defense- that the P was contributorally negligent.
2.Also, Lynch has medical backing that he is really mentally challenged.
-Suppose in Vaughn v Menlove, Menlove had an IQ test and he was dumb? He was still warned. Lynch flat out did not understand what could happen if he went near this machine.
– This is about a medically distinct defect.
Restatement- we treat children differently because they are different. Lynch was like a child and therefore, should only be held to the standard for a child. D did not satisfy his duty of care to Lynch.
Order of proof: First, we need to prove that the D was negligent. Suppose the case stops here. Rosenthal’s attorney says I’m putting out a defense. The defense is that the P was contributorally negligent so that even if the P meets his burden of proof in showing that Rosenthal didn’t warn him and should have warned him, he can still win if he can show he was negligent. Both sides are trying to prove the same things about each other.
Weirs v Jones County, IOWA 1892 pg. 129- The D determined a bridge was unsafe and posted signs. The P could not read English and crossed it. It collapsed. He sued the county for the loss of his animals and wagon. The D won. The signboards were placed in a conspicuous place at each end of the bridge. The fact that the P could not read English was no excuse- the county was not required to post signs in any other language. They took ordinary and reasonable care.
Rule- Suppose the German is illiterate. He should know of his own illiteracy. There is no excuse for the German.
Friedman v State pg. 130- Friedman, 16 was stuck all night on a ski lift with a boy. She jumped off and was injured. She sued the state. P wins. They said it is not hard to see why she would be hysterical. Staying with a man was forbidden in Hebrew law.
Rule- The trial court says the standard of her behavior is that of the reasonably prudent orthodox Jew. Everyone should be held to the standard of the reasonably prudent person like them.
-Sometimes P’s are partly to blame. IF there is:
-contributory negligence- the P who was also negligent can get nothing from the D.
-last clear chance- a P is not barred from recovery by their own negligence if the D has had the opportunity to avoid the accident and did not do so.
-comparative negligence- reduced recoveries by negligent P’s in proportion to their fault do not prevent them from recovering altogether.
-Modified comparative negligence- P’s to collect only if they are not more then 50% responsible.
-Pure rule- allows P’s who are 90% to blame to bring suit and still collect the remaining 10%.
Fredericks v Castora pg. 132- The P was riding a car that was hit by 2 trucks. The jury found no negligence on the part of the two truck drivers. The P appealed, saying the jury should have been instructed to a higher standard then it would apply to ordinary drivers. The Court of appeals affirmed: Negligence is defined as due care under circumstances. We decline this opportunity to develop a higher standard for experienced truck drivers.
-Suppose a person is in an accident with a car and the driver of the car was a Grand Prix champion. Being negligent is a matter of fact. The question of whether someone should be held to the standard of the “reasonably prudent person” is a matter of law. First you decide what category a person is in then you decide the kind of proof you will need.
Restatement 298- in my words (pg 132)- If a person who has extra strength does not use it, they will be held to a higher standard then those who do not have that strength and can be found negligent at times when others would not be.
Reasonably prudent deaf man- Kerr v Connecticut Co pg. 133- Kerr, a deaf man, was walking home when he was hit with a trolley. The trolley hit and killed Kerr. His estate brought suit. The trolley made noise and took precaution, but Kerr did not. Kerr is negligent. Kerr knew he was dea
d that was playing on a RR. Ourt held D was negligent. This is about BPL- P saved the RR money by saving the child. More than that- it’s the right thing to do. The probability of the kid being killed if we don’t act is 1. For the B, we need another adjustment factor for the possibility of not saving the kid. B<PL
On the PL side, we talk about the probability and the size of the loss if the precaution is not taken. The size of the loss is a Million.
F2 (F1) million= (1) (1 million) B<PL
F1 x 1 million- possibility that he won’t be killed. Its also possible that they will both die. How do we adjust formula to take into account that they will both die anyway? Since he did nothing wrong, he cannot be contributorally negligent. If its too hard for B<PL, then you don’t need to do it.
The Margharita pg. 151- Martinez was a seaman on the Margharita. He fell overboard and a shark bit his leg. The ship refused to turn back. Court found in favor of the D. The owners did the cost effective thing. Nothing more could be done anyway. Look at the situation as a whole.
B= COST OF THE PRECAUTION NOT TAKEN. It is high for too reasons. First, because it is expensive, and second, because there is a probability of injury to the rest of the crew.
P= 1, because there is additional pain and suffering.
L= low. There was no additional permanent damage to the leg.
Untaken precautions- Davis v Consolidated Rail Corp. pg. 155- P inspected trains. He arrived at the yard, and inspected a train without putting a flag up. The train moved and his leg was cut off. Davis argued:
1. Lundy, who had a 2-way radio, should have notified the crew that an unknown person was sitting in a van near the tracks.
2.Before the train moved, someone should have walked the length of the tracks.
3.It was negligent for the crew to move the train without first blowing the horn.
-A jury found for Davis, and assessed damages at $3 Million, but found that Davis’s own negligence had been 1/3 responsible for the accident, and therefore awarded him $2 million. The RR appealed. Davis should have put up the flag, but the RR could have blown the horn- cheapest from a BPL perspective. Any other precaution would not be economically ideal.
Restatement (third) §3- Negligence pg. 156- A person acts with negligence if the person does not exercise reasonable care under the circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that it will result in harm, the foreseeable severity of the harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.
C. Custom and the problem of Medical Malpractice
The TJ Hooper Pg. 159- Barges were lost during a storm. They lacked the radios needed to know a storm was coming. The coal barges lost. If they had radios, then would have known about the storms. This is what the reasonably prudent person does. Although its not industry practice to have a radio, the court didn’t care. This does not entitled you to a matter of law. Its obvious that its dangerous to not have a radio.
Ellis v Louisville and Nashville pg. 160- P worked for train for a long time. After years, he got a lung disease. The D said it was general practice to not wear masks. The P looked to The TJ. The D wins because this has gone of for years and no one has been injured yet. Danger is not obvious.
