Torts Outline

Torts I Outline Spring 2010

· Tort Goals
o Compensation;
o Deterrence;
o Spreading the Risk of Injury (or, really, spreading the cost of injury — through insurance, or by passing on the cost to the one who can spread it most efficiently);
o Fairness;
o and maybe — business efficiency
· Tort Spectrum
o FREEDOM <————————–>SECURITY
o Protect Freedom (less tort litigation)— Provide security from improper conduct (more tort litigation)

· BREACH OF DUTY – Did the ∆’s conduct fall below the level of care owed to the π? In light of the foreseeable risks created by the conduct, was the ∆’s conduct unreasonable under the circumstances?
o The Reasonable Care Standard
§ An act actually BREACHES a duty when it violates the RP/UC test (i.e., when no reasonable person would have taken that act under the circumstances.
o The Reasonable Person
§ General Characteristics
· Vaughan v. Menlove – “The standard to be applies is that of a reasonably prudent person”
o Duty is of an objective reasonable person, not subjective.
· Reed v. Tacoma Ry. & Power Co. – “Mistaken judgement is not necessarily negligence”
o The question isn’t whether the party made the RIGHT decision, the question is whether the party made a REASONABLE decision under the circumstances.
· Brussand Case – Holding: The issue of breach is truly a question for the jury, not for the judge to decide. Only under very rare circumstances does the judge decide breach as a matter of law.
· Lussan v. Grain Dealers Mutual Insurance Co. – “the legal standard to be met is that no reasonable man could infer that the prudent man would have acted this way”
§ Reasonable Men and Women
· Edwards v. Johnson
§ Emergency
· Foster v. Strutz
o Singling out the “sudden emergency” as a specific circumstance to consider creates a tone that leads the jury to hold this circumstance above all others. Courts will avoid giving this instruction as best they can. The emergency is merely one of the circumstances a jury can consider when evaluating reasonableness “under all circumstances.”
§ Physically Different Characteristics – Generally taken into account
§ Mentally Disabled Individuals – Generally not considered
· Note — in the 1970s (and since), some courts have been willing to think about considering mental disabilities as “circumstances” for purposes of the law of negligence.
· Bashi v. Wodarz – Mental disability does not absolve liability. Reasonable person standard, not reasonable disabled person.
§ Children – Reasonable Child of Like Age, Intelligence, Maturity, and Experience
· Exception for certain activities: Inherently dangerous or adult
· Robinson v. Lindsay
o General Rule: Standard of care for a child is a reasonably careful child of similar age, intelligence, maturity, training and experience.
o Developing the Reasonable Care Standard
§ ESTABLISHING WHAT A RP WOULD DO UC
· There are two ways to establish RP/UC standards of conduct
o (1) by using the Hand formula, B<PL
o (2) by applying the community standard (which is the more general and more common way of establishing the standard).
§ THE TWO PARTS OF THE COMMUNITY STANDARDS QUESTION
· When we look at the community standard in the context of a case, we have to ask two questions:
o (1) What is the community standard?
§ Look to
· evidence of custom
· the judiciary’s articulation of a rule (a la Goodman)
· the rule established by a statute or ordinance designed to protect safety
· and, primarily and ultimately, the knowledge and insight of members of the jury.
o (2) Was it actually breached in this case?
§ Look to
· direct evidence
· circumstantial evidence (where the jury must draw inferences from the presented facts to make conclusions about the ultimate facts).
· RIL (which is just a form of circumstantial evidence).
§ Balancing Risk vs. Untaken Precautions
· United States v. Carroll Towing Co. – “If the probability be called P; the injury L; and the burden, B; liability depends upon whether B is less than I, multiplied by P: i.e., whether B<PL.”
o Rule: Learned Hand Equation: B < P x L = Negligence
§ B: Burden on the party “to do it right”
§ P: Probability – How often does this loss happen?
§ L: Loss (Injury) / Liability – How big is what goes wrong?
o The Rule: If the burden on the defendant of taking a safety precaution is less than the probability of the plaintiff’s loss, times the amount of that loss, if the safety precaution is not taken, then it is negligence (i.e., a breach of the duty) NOT to undertake the burden. If, on the other hand, the burden of taking the safety precaution is greater than the probability of the loss times the amount, there is NO tort obligation to take the safety precaution.
§ Problems with the formula:
· Problem of information: How do you get these numbers? Can you even get these numbers (dollar amount on life)? Too expensive to compute?
· Problem of conduct: Can people conform their conduct to this formula? Burden on society to live by this formula too great. Too much room for good faith error in computing.
· Problem of incommensurability: Can we measure any of these factors? How do we translate nonfinancial damages into dollars? How many widgets have the same value as a human arm or a human life?
· McCarty v. Pheasant Run, Inc. – “ The analytically (not necessarily the operationally) most precise is that it involves determining whether the burden of precaution is less than the magnitude of the accident, if it occurs, multiplied by the probability of occurrence. * If the burden is less, the precaution should be taken.”
· Indiana Consol. Ins. Co. v. Mathew
· Pease v. Sinclair Refining Co.
§ Role of Custom
· Hagerman Construction, Inc. v. Copeland – Holding: When the defendant doesn’t perform as is customary in their industry, such evidence is sufficient for the jury to determine that the defendant breached a duty.
· Trimarco v. Klein
o A statute that does not apply cannot form the basis of the standard of care.
o Industry Custom thus is evidence of what a reasonable person would do under the circumstances, but it is not dispositive.
· The T.J. Hooper
o Industry custom not dispositive. In the end, it’s the reasonable person that matters. Question for the jury, industry custom is not definitive as a matter of law. Burden is on the industry to step up to reasonableness, not merely look to peers. Here, the court (as factfinder) determines that a reasonable towing company would have had a radio on board.
o Alternatives to the Reasonable Care Standard
§ Specific Judicial Standards