Torts Outline
Prima Facie Case of Negligence
– Injury –
You must show that the plaintiff has suffered an injury. Without one the case has nothing. It’s the most fundamental element.
This is in contrast to criminal law in which prosecution can proceed even if no one got hurt, you can prosecute for an attempt. There’s no such thing as an attempted tort.
Legally Cognizable harms- physical harm such as injury to the body or property damages, loss of wealth, and emotional suffering.
– Duty –
A viable claim of negligence must show that the defendant had an obligation to the plaintiff not to cause the injury that the plaintiff has suffered.
It is a question of law for the judge to define. The jury will never get to decide this.
Heaven v. Pender on page 54 as an early example of the duty rules. Reasonable foreseeability that whatever you’re doing could injure someone if you don’t use ordinary care and skill to avoid that danger.
Pg 55 Winterbottom v. Wright: the privity rule. Denied that anyone had a duty of care to anyone you were not in a privity of contract with. A libertarian view would support this type of rule. Driver couldn’t sue the carriage maker because he wasn’t in a contract with the carriage maker, his employer was.
Is the privity rule in conflict with the rule of reasonable foreseeability?
Could the carriage maker reasonably foresee that people other than the person he is in contract with could be harmed?
Thomas v. Winchester: Imminently Dangerous Products
This is an exception to the privity rule and moves toward the reasonable foreseeability rule.
Nonfeasance v. Misfeasance
Nonfeasance involves no action and misfeasance involves an action.
Nonfeasance means no duty with generally 3 exceptions
If D played some role in placing the defendant in peril.
There is no bright line test.
Voluntarily starting a rescue may generate a duty to complete the rescue
you might have deprived the person in need from other reasonable chances of rescue
Certain pre-tort relationships generate a duty of care.
Premises Liability
Three statuses:
Invitee
Someone who is on another person’s premises in furtherance of the material or institutional goals of the owner of the premises
An invitee is owed a reasonable duty of care by the owner. The owner has to make an inspection of the premises and warn people of any dangers on the premises.
Licensee
Someone who is on someone else’s premises with their permission but not in furtherance of that persons material or institutional goals.
Trespassor
Someone who is on another’s premises without permission
You have a duty not to willfully or wantonly injure a trespassor.
Must take reasonable care to prevent child trespassers from being injured on their property. Attractive nuisances like a pool.
Half of the states have abolished the common law distinction between invitee and licensee and some even got rid of all three.
Pure Economic Loss
Tort law is reluctant to protect the wealth of others. There is no unqualified duty to take care to not cause economic loss to another person.
Accountants must take reasonable care to give a true rendering of a client’s accounts so that creditors don’t lose an enormous amount of money.
Tarasoff v. Regents of University of California (1976)
Extended the duty of care beyond the patient even though there was no special relationship between the doctor and the victim.
Watershed case for the therapists who have patients with violent tendencies. The clergy often finds itself in a similar position but they are under no duty to warn. The difference is that the therapist is trained to be able to predict what they’re hearing is a credible threat. The same reasoning applies if a person tells a friend that they want/plan to kill someone, no duty exists.
Some states require actual knowledge that a person was a serious threat instead of should have known that the person was a threat.
– Breach –
question of fact for the jury to decide
you are not automatically in breach of a duty if the person gets injured.
2 separate standards for breach here:
ordinary standard of care
Ordinary care really means just ordinary care (Martin v. Evans. The trucker who exercised reasonable care before backing up but still hit someone. He wasn’t being unreasonable)
professional standard of care
Expert testimony is required to prove professional negligence. (Myers v. Heritage. The old woman who got dropped at the nursing home)
Strict liability is an extremely tough standard. You can be as careful as humanly possible and still be liable if things go badly.
Vaughn v. Menlove (1837) –
this is where the standard for the reasonable man came from.
Liability for negligence must adhere to the rule of caution that a reasonable man would observe.
Objective standard of reasonable which is based on conduct and not the state of mind. Also because we’re talking about the standard of the ordinary prudent person.
Neighbors have a duty of care to each other. You have a duty that if you do things on your property that if things you do or have on your property then you must exercise reasonable care for their wellbeing and for their property also.
Even though standard of care is objective it doesn’t stand that its never relativized. People with physical disabilities have different standards according to their disability. Mental disabilities are much harder to prove and they are not relativized the same way physical ones are.
The Tender Years Doctrine
Kids under 7 cant be sued.
In Appelhans v. McFall the P tried to get them for negligent parental supervision and must prove both that 1) the parents were aware of specific instances of prior conduct sufficient to put them on notice that the act complained of was likely to occur and 2) the parents had the opportunity to control the child.
Fault Standard
The fault standard or the standard for breach asks whether the actor behaved as would an ordinarily constituted person acting reasonably under the same circumstances.
The standard is not changed for an ordinary person who has either less or more of a capacity than normal.
Exceptions and qualifications of the fault standard
Ratcheted down for people with discreet and documentable disabilities
Rarely if ever ratcheted down for mental disabilities, but sometimes for discrete mental abilities (discrete here means separate and distinct)
A child is typically held to the standard that is calibrated to the c
ipsa loquitur.
Cases requiring expert testimony cant be used under the res ipsa reasoning.
– Causation –
you cannot prove causation through coincidence
Actual
The jury and the But-For Test
Actual causation is almost always governed by the but for test
Breach of duty counts as a cause of injury if the injury would not have occurred but for the breach.
Would the plaintiff have been injured if the defendant had exercised reasonable care?
If the defendant had exercised reasonable care and the plaintiff still gets injured then there is no causation.
The two meanings of caused
Thin and thick causation
Thick causation is thick with moral meaning. This implies responsibility.
Thin causation is both descriptive and normative because it doesn’t imply responsibility or have moral connotations. The injury always arises from the interaction of 2 or more parties.
Proving Actual Causation under the Preponderance Standard
Preponderance standard means more likely than not.
Entails that a fact is proven if the fact finder (jury) determines that there is a greater than 50% probability that the fact is true.
The plaintiff must prove that it is probably the case (more likely than not) that but for the breach the plaintiff would not have suffered an injury.
Skinner v. Square D-
there were multiple possible scenarios that could have caused the death and none of them were more than 50% likely to have been the right one.
Actual causation must follow from a reasonable inference and not just a conjecture (a story consistent with the facts is still just a story).
The plaintiff must present circumstantial evidence that leads to a conclusion that proves that more likely than not but for the defendant’s actions the injury would not have occurred.
Expert opinion by itself is not enough to establish actual causation. There must be evidence to support the opinion. In this case there were only suppositions for him to base his opinion on.
Falcon v. Memorial Hospital
summary judgment had been granted because a reasonable jury could not have found causation because the chances of survival with the iv was less than 50%
the appellate court reversed and the supreme court affirmed, but with a twist. Her estate could only recover 37.5% of the damages instead of all the damages if chances of survival had been over 50%.
court is trying to reconceive what is being alleged and helping the plaintiff’s case. The carelessness of the defendant was more likely than not the cause of the reduced chance of life.
this case was extremely controversial. The
