Torts
Professor Zimmerman
Fall 2010
Damages
Single judgment rule: aware all the money up front even if can’t fully perceive damages all at once (Fetter v. Beale 1697). Why?
o High administrative costs
o Difficult to maintain JD over D
o Malingering – exaggerating effects for more money
o Interest in certainty/final resolution
Compensatory Damages: goal to restore Ps, as closely as possible, to their condition before the harm occurred
o Economic Damages:
o Past Economic Loss
§ Lost income
§ Medical expenses
§ Other incidental damages
o Future Economic Loss
§ Income & medical expenses
§ Age/work-life/dependents
§ Economic variables (inflation etc.)
o Collateral source rule: no offset for other sources of income that ameliorate cost of harm P is entitled to recover out-of-pocket expenses, even if she was reimbursed for these losses by some third party. (but NY takes minority rule- cannot collect once insurance pays- cannot recover from public services).
§ Arambula v. Wells – P injured by D, but still got wages from family business even though still sued D for them. Rule: can recover full damages even if they have already received compensation for their injuries from “collateral” sources. Also apply to gratuitous assistance.
o Non-Economic Damages: pain & suffering, mental anguish, loss of enjoyment
o No set criteria
o Seffert v. Los Angeles Transit Lines – P boarding D’s bus, caught in door & dragged w/ bus. Rule: No fixed standards for awarding damages, only reverse when award “shocks the conscience” and implies verdict resulted from “passion & prejudice” – material deviation standard
o McDougald v. Garber – P in coma b/c of D’s malpractice. Rule: Some level of awareness required to recover for loss of enjoyment of life.
o Justifications:
§ Recognizing emotional trauma
§ Deterrence
§ Promotes court access
§ Allows for recovery when economic damages not sufficient
o Material deviation standard: can lower award to comport with others (remittitur)
Punitive damages: Damages awarded in a lawsuit as punishment and example of to others. In a case where punitive damage requirements are met, the jury has discretion to award them or not.
o State Farm v. Campbell – excessive punitive damages limited by 14th Amendment (due process) and 8th (cruel and unusual punishment).
o 3 guideposts from Gore when we can apply punitive damages:
o Degree of reprehensibility
§ Taylor v. Superior Court – D was an alcoholic, had previously caused accident & arrested many times for drunk driving, and at time of accident drunk. Rule: Punitive damages apply when there is malice in fact (express or implied). Malice – conscious disregard for the safety others. The intent without justification or excuse to commit a wrongful act.
o Disparity b/w harm suffered & punitive award
§ State Farm: awards exceeding single digit ratios b/w punitive and compensatory damages unlikely to satisfy due process.
o Difference b/w punitive award & civil penalties in comparable cases
Intentional Torts
Intent:
· Purposeful intent to create the result OR
· Consequence substantially certain to result
o Garrat v. Dailey: 5-year-old pulled chair out from under P. Rule: Boy had to know with substantial certainty that P would attempt to sit down & fall, otherwise nothing wrongful about what he did.
§ Infancy not a defense to intent.
· Why? Compensation, deterrence, corrective justice
· Transferred Intent: intent to cause harm to one person is enough for sufficient intent to exist for harm to second person
Recklessness
· Know of risk (or risk is obvious to a reasonable person)
· Small cost to reduce risk relative to magnitude of harm demonstrates indifference
· The only intentional tort that could be me through recklessness is IIED (or very rare cases of False Imprisonment- airplane!)
Intentional Torts all share elements of: fault, causation, damages and defenses
Forms of Action
Assault: Intent to put individual in reasonable fear of imminent bodily harm
· Picard v. Barry Pontiac-Buick: P testified she was frightened by D’s actions & this reaction was reasonable to prove assault. Also D touched P’s camera & this was a battery b/c it an object attached to P’s body.
· (if you find you have a battery, most of the time you’ll meet elements for assault– Unless hit from behind)
Battery:
· Offensive contact or non-consensual touch
· To body or object intimately connected to body
· Intent to injure is not necessary when D willfully sets in motion force that causes injury
· Wishnatsky v. Huey: P tried to enter office where D was conversing w/ a fellow attorney and D pushed door closed on P. No battery. Rule: Whether a reasonable person would find offense.
False Imprisonment: act intending to wrongfully confine another within boundaries fixed by actor (need a barrier) that directly or indirectly results in confinement (can be done through words, actions, or both).
· Directly or indirectly results in confinement:
o Physical force or threats
o Duress
o Legal authority
o Not moral force
· Conscious of confinement or harmed by it
· Lopez v. Winchell’s Donut House: D put P in back room to question her about selling donuts w/o registering sales. P voluntarily went & she could have left but never asked (worried about reputation). Rule: moral force not enough, actual force/threat is necessary.
· Need to show physical restraint or threats that overpower one’s will to leave
o If you voluntarily consent to confinement, there is no false imprisonment
Intentional Infliction of Emotional Distress:
· Elements: (need ALL)
o (1) An intentional or reckless act that by,
§ Reckless: D knew high risk severe emotional distress would result, but took few/no steps to prevent it
o (2) extreme or outrageous conduct,
§ Must offend generally accepted standards of decency/morality
o (3) that causes
o (4) severe emotional distress to another.
· Womack v. Eldridge: D took P’s picture to show to jury in child molestation case that P not connected to. Rule: Person can be liable for IIED without physical injury if the 4 elements are met.
o Reasonable person should have recognized likelihood of serious mental anguish of involving an innocent person in a child molestat
at breach must be the cause of the damages—this establishes negligence.
Duty:
Was the conduct misfeasance or nonfeasance?
· Nonfeasance: party passively observes harm to another but fails to act in order to reduce that harm even when the burn of reducing that harm is slight. No duty! (No duty for couch potatoes).
· Misfeasance: When a party through a particular course of conduct exposes another to an increased risk of harm. They create the peril! Duty!
· Justifications for difference:
o Lack of bright line rules – where do you draw the line?
o Altruism will accomplish the same goals
o Multiple rescuers – who do you sue?
o Risky self-sacrifice – if you act, risk hurting yourself
o Would limit autonomy & liberty
Is there an exception to the rule?
· Special Relationship to Victim
§ Parent/Child (2nd Rest §316)
§ Master/Servant (2nd Rest §317)
§ Owner of Property/User of Property (2nd Rest §318)
o Harper v. Herman: P invited on D’s boat by a friend, P & D didn’t know each other. D aware water around boat was shallow and w/o warning P dove in and hit his head. Rule: D did not owe P a duty of care b/c no special relationship.
§ D did not have control over P under circumstances in which P was deprived of normal opportunities to protect himself (Restatement 314A)
o Farwell v. Keaton: P & D following girls, P got beat up and D applied ice/drove him around, but then left P in car in P’s grandparents’ driveway. P died 3 days later. Rule: Duty to render aid b/c of special relationship AND b/c P attempted to aid D.
o 2nd Rest §324 CUSTODIAL RELATIONSHIP – have a duty when:
§ “(a) the failure of the actor to exercise reasonable care to secure the safety of the other while w/in the actor’s charge, or
§ (b) the actor’s discontinuing his aid or protection, if by so doing he leaves the other in worse position than when the actor took charge of him”
o Randi W. v. Muroc Joint Unified School District: School districts that wrote favorable letters of recommendation for a teacher w/ charges of sexual misconduct while he worked at their schools owed a duty of care to a student at a school that hired teacher based on letters who was sexually assaulted. Factors to consider:
§ Foreseeability & causality
§ Moral blame
§ Availability of insurance or alternative courses of conduct
§ Public policy considerations
· Voluntary Assumption of Duty or Service/ Risk Creation
o Farwell v. Keaton: if P attempted to aid D, he voluntarily entered into relationship & is liable for failure to use reasonable care.
