Torts Outline Spring 2013 Prof. Glynn
Will it be decided as a matter of law?
Is there a fact dispute?
Will this get to the jury?
court decides as a matter of law that no reasonable person could differ
DUTY
· Duty ordinarily ? of law
o fear is we don’t want juries getting ahold of these questions
o might be more expansive duties than we want for policy reasons
o worry they’ll get it wrong
· If material facts in dispute, the jury decides
· Breach classic example of jury question
No duty—nonfeasance permitted
· Duty, matter of law, may be fact ?, judge weighs policy in deciding whether to impose duty
· Default rule: no affirmative duty to act, nonfeasance allowed
o Walk thru all the exceptions to duty
§ act that created the risk?
§ non-negligent injury or creation of the risk of harm?
§ special relationship?
· Custodian and ward (e.g. mental facility)
· Common carrier
· landowner (like museum case)
· innkeeper
· schools and children
· familial relationship (parents children, sometimes spouses, surrogate parental role),
· sometimes employer/employee.
· Knowledge of danger alone doesn’t create a special relationship–Harper
§ ad hoc special relationship?
· Undertaking?
· Voluntary assumption of care?
o Rescue
o Reliance
§ Special relationship with injuring party?
· Is V identifiable?
§ Statute imposes affirmative duty?
§ Policy for no duty
· Unlimited liability (Moch, Strauss)
· Parade of horribles (Reynolds social host)
· Scope of the duty issue–Is 3d party victim
o In privity (Strauss)
o Limited group/identifiable (Randi W.)
· Foreseeable P? (Palsgraf)
§ Social host
· Vs. dram shop laws
§ Negligent entrustment
· Negligence on both entrustor/entrustee
· Entrustor has knowledge that giving instrument is potentially negligent
§ Landowner to invitee from tortious conduct by third party
· Sometimes businesses owe a duty of reasonable care to customers to protect them from third party criminal activity on the land
· Often courts inquire if it was foreseeable (Posecai)
· But many courts and R(3d) criticize approach as conflating breach inquiry with duty inquiry thus elevating role of judges at juries’ expense—allocation of powers issue (AW v. Lancaster Schools)
§ Immunity
· Spousal immunity abrogated
· Parental immunity abroagated
o Goller except in exercise of parental discretion or authority
o Broadbent reasonable parent standard
· Government
· Potential defense
o no duty
o rescue couldn’t be done safely
o causation issues
o not foreseeable V
· Generally one doesn’t owe duty to another to protect from acts of a third party
· exceptions
o Tarasoff
o Randi w
o Negligent entrustment
§ Reject in Moch, Strauss, Social Host context
BREACH
· Reasonable Person
· Negligence Per Se
· Res Ipsa
o Elements
1. Ax wouldn’t usually occur without negligence
2. The instrumentality was in exclusive control of D (Ybarra relaxes this b/c of policy w/multiple Ds)
3. The P didn’t voluntarily act to cause injury
· Custom
· Med Malpractice
o Malpractice
o Informed consent
· Proof
o Direct or circumstantial
CAUSATION
Factual cause
But-for
Inferences (Stubbs and Zuchowicz)
Expert testimony standards (Daubert factors)
Exceptions to but-for:
Alternative liability (Summers v. Tice)
Multiple sufficient causes (Anderson)
Concerted activity
Market share approach (Hymowitz v. Eli Lilly)
Loss of chance (Matsuyama)
Legal cause
Outmoded direct cause (polemis)
Majority test foreseeability (wagon mound)
Restatement approach
Eggshell P (Benn v. Thomas)
Superseding Cause
Intervening act is independent force occurring after the D’s original negligent act.
Intervening act doesn’t cut off liability.
Superseding act is an intervening act that was outside the scope of the risk created by D’s negligent conduct. It’s highly extraordinary, bizarre and most importantly unforeseeable.
Was intervening act within scope of the risk created by original D’s conduct?
We don’t have to foresee the specific harm or causal mechanism just whether the act itself was foreseeable
Putting gas tank near radiator. Don’t have to know how it’ll blow up just know that one should foresee it’s negligent.
Medical treatment often foreseeable act—intervening—even negligent treatment isn’t superseding (Weems v. Hy Vee)
Tortious acts by third party not necessarily superseding. If they’re foreseeable then doesn’t sever causal chain (Blaine)
HARM
Who is interacting? AßàB or is there a C involved
Approaches inconsistent. Social host no liability contrasted w negligent entrustment. Both places D launched peril and foreseeable victim harmed. Policy considerations.
Foreseeability
Duty shouldn’t play a role but sometimes it creeps in
Business to customer
Foreseeable P requirement Palsgraf
Breach
Foreseeability plays a role in calibrating how an RP would act
§ In duty analysis we look at foreseeability of P or harm
§ In prox cause analysis we look at foreseeability of the type of ax
§ In superseding analysis we look at foreseeability of act by third party that intervenes (comes between) the D’s act and Ps harm
Introduction
What is a tort?
– A person by his or her conduct causes harm to a person or his or her property—a civil wrong
– 3% of cases go to trial
– CL area
Fundamental Tort Policy
· Compensating innocent parties (why we reject no liability system)
· Shifting loss to responsible party or distributing among appropriate entities
· Deterrence of wrongful conduct
· Preventing future harm
· Puts ris
Surgeons can be held liable via respondeat superior for acts of nurses
2. APPARENT AUTHORITY
3. NON-DELEGABLE DUTY
Vicarious liability even if not employer certain duties that person is obliged to take on and if they outsource to independent contractor also strict liability but doesn’t require employment relationship
Apparent employment
Roessler v. Novak (P admitted to hosp, radiologist D fails to diagnosis properly, major complications, P sues hospital on vicarious liability theory of apparent authority. D hospital says D radiologist was an independent contractor
· AGENCY: a principal may be held liable for the acts of its agent that are within course & scope of the agency. Agency can be express or thru apparent authority.
· Apparent Authority: An actor is responsible for the conduct of an agent when it has—based on an objective standard—presented to the world that the agent is acting on its behalf.
· Rationale for apparent authority is principal cannot disclaim behavior of an agent when the principal permits the appearance of authority and justifies a third party in relying upon that appearance authority as if it existed.
· Apparent authority exists only if 3 elements present
o Representation by principal that agent acting within scope of agency
o Reliance on representation by third party
o Change in position by third party in reliance on representation
· who controls hours, tools and materials, who bears risk of entrepreneurial loss, who has potential for gain, where work performed, intent by worker
The Negligence Principle
Negligence is doing something which a reasonably prudent person wouldn’t do or failure to do something a RPP would do under similar circumstances. Foreseeability helps us frame what an RPP would do in the circumstances. It is the failure to use ordinary or reasonable care. Ordinary or reasonable care is care which people of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence
What is unreasonable risk? Judge Hand says B
Unintentional torts resulting in injury to person or property are governed by negligence standard—the use of reasonable care under the circumstances
– Posner says we’re trying to incentivize care up to a certain point
– Negligence allows you to calibrate the level of care
– Goals of negligence standard
