TORTS II SPRING 2014 OUTLINE – PROFESSOR SILVER
PART IV(B): DEFENSES TO NEGLIGENCE
Immunities
Families
Charities
Employer Immunity & Worker’s Compensation
State and Local Governments, US Federal Government, + Public Officers
PART V: VICARIOUS LIABILITY
Respondeat Superior
Independent Contractors
PART VI: STRICT LIABILITY
Animals
Abnormally Dangerous Activities
Limitations on Strict Liability
PART VII: OWNERS AND OCCUPIERS OF LAND
Outside the Premises
On the Premises
Invitees, Licensees, and Trespassers
Persons Outside the Established Categories
Lessor and Lessee
PART VIII: DAMAGES
Personal Injuries
Physical Harm to Property
Punitive Damages
PART IX: WRONGFUL DEATH & SURVIVAL
Wrongful Death
Survival
PART XI: PRIVACY TORTS
Commercial Appropriation
Intrusion
Public Disclosure of Private Facts
False Light in the Public Eye
PART XII: NO DUTY TO RESCUE
No Duty to Rescue
PART XIII: PRODUCTS LIABILITY
Products Liability
PART XIV: DEFAMATION
Defamation
PART IV (B): DEFENSES TO NEGLIGENCE
(2) IMMUNITIES
IMMUNITIES: An immunity is a defense that is given to a whole class/group of people who have something in common. The class avoids liability in tort under all circumstances, within the limits of the immunity itself and it is conferred not b/c of the particular facts, but b/c of the status, position, or relationship of the favored defendant.
DEFENSE VS IMMUNITY
Both avoid liability
Immunities:
Plaintiff cannot bring suit against defendant b/c defendant has a special relationship with the plaintiff such that the defendant cannot be sued
Immunity fosters neglect and breeds irresponsibility, while liability promotes care and caution
Defenses:
Plaintiff may bring action and defendant may assert a defense to avoid liability
RELATIONSHIP
IMMUNITY
EXCEPTIONS?
Spousal Immunity
No – Abolished
X
Parent-Minor
No– Intentional Torts
Yes – Negligence
Exception to negligence: Motor vehicle accidents due to insurance
Charities
No – Abolished
X
Employer Immunity
Yes, immunity allows for alternative recovery – Workers Comp
X
State & Local Govt’s
Yes, but waivable
Some higher officials may be sued
United States Fed Gov’t
Yes – immune when acting in a discretionary fashion
May be sued when acting in a non-discretionary or ministerial fashion
Public Officers
Yes – for acts arising out of their public duties
X
(a) FAMILIES
SPOUSAL IMMUNITY: Spousal immunity has almost been completely abrogated. The few courts that still recognize spousal immunity have limited it.
After divorce, spouses are permitted a claim for tots that occurred prior to, and in some jurisdictions, during the marriage. Claims are also permitted if either spouse is dead at the time the action is brought.
When the tort occurred prior to marriage, some states allow the claim.
When the tort is an intentional tort, most states allow the claim.
u Freehe v. Freehe – Spousal Immunity: Husband was injured on a tractor that was negligently maintained by his wife. Court held that spousal immunity was no longer a valid immunity.
6 Reasons For Keeping Inter-Spousal Immunity + Rebuttals
Wife was considered chattel of the husband upon marriage
Court held that this was barbaric and no longer valid
Suits would destroy the peace and tranquility of the home
Court argued if there were peace and tranquility, then no one would be suing in the first place
Injured spouse has an adequate remedy through the criminal and divorce laws
Husband could have filed for divorce, but he still would have received no financial remedy for her negligence
Court would be flooded by trivial matrimonial disputes
There are other states that have abrogated spousal immunity and the courts are not flooded. When a court is flooded with certain matters then it usually means that it is an important issue that should be determined by a court.
It would encourage collusion and fraud where one or both of the spouses carry liability insurance.
There can always be risk for fraud and collusion, but this is not a good reason to keep it in place. In our system, the court should have more confidence in the judicial system.
Opposing counsel always necessarily disagree, this is why we have an adversarial system.
Trials are a search for truth; in our system two adversaries argue for the search for truth.
Our system requires, two opposing sides with two opposing truth. How many versions of the truth are there? Only one! If you require two versions of the truth, then you’re at least requiring one side to lie and often both sides lie.
Silver argues that our system is best because it makes it more efficient by making it easier to find the truth. If you have evidence of blatant lies, then it tells you a lot about which side is wrong and which side is telling the truth.
Is there anything in the adversarial process that is not in the inquisitorial process that detects lies? Cross-examination, as required by the Constitution and it is a part of the confrontation clause.
Encouraging your client to lie or lying as an attorney = suborning perjury
Most legal systems are inquisitorial or accusatorial.
When a scientist wants to know what an unknown substance is he conducts research, much like the other tribunal systems.
It’s a matter for legislature, not the court; legislature should make the laws and the judges should only interpret
Spousal immunity was created by common law; legislature did not create that law. Common law does not mean that judges make laws; they only fill in the gaps in this interstitial system.
PARENT-CHILD IMMUNITY: Immunity exists between a parent, or any individual in loco parentis, and a child for negligence actions, except in motor vehicle accidents, but no immunity exists for intentional torts.
Intentional torts: If you batter a child, you should pay for it criminally + civilly.
WORKER’S COMPENSATION: Governmental program, imposed by statute, in the form of a no-fault insurance, that works as a substitute for litigation, that does not cover intentional torts by employer nor independent contractors. Applies when an employee is injured, either at the work place or within the scope of employment, and may be with or without the fault of the employer; for remedy injured employee is not able to suit, only has to file for worker’s compensation.
Form of Insurance:
No trial; recovery works like a no-fault insurance
Both the employees and the employer are considered insured parties, as it prevents harm for both of them.
It is not voluntary insurance, but other types of insurance are not voluntary (ex: ObamaCare + automobile insurance)
Employers all pay workers compensation premiums for insurance, this goes into a fund and when an employee is injured it is dispersed.
Private Program: It is a private program because it takes money from employers and puts it in the pocket of another set of private individuals, namely those employees who are injured
Fault of Employer: With workers compensation you do not need to prove unreasonableness on behalf of the employer, the employee just need to be harmed while on the job.
Exception – Intentional Torts: Employee may recover worker’s compensation + sue the employer
Enterprise Liability: Fault creeps back into worker’s compensation because it was foreseeable that employees may be injured at the work place.
RECALL: Fault creeps into strict liability through proximate cause when the harm was foreseeable or should have been foreseeable to the reasonable person.
Within Scope of Employment: Employee doesn’t have to be under the employer’s roof; not actually in the work place – only need to be acting within the scope of your employment; respondeat superior
Delayed Disease Or Condition: If exposure during scope of employment leads to a delayed onset disease or condition, the employee may recover for worker’s compensation. Symptoms are not required to manifest during course of employment.
Occupational Hazard: For matters dealing with occupational hazard, the court may need to consult an expert witness when the evidence is “beyond the ken of the jury”
“Ken” = Understanding/Experience/Knowledge
Source of Law: Statutory; not created by common law
Recovery: Worker’s compensation does not allow you to recover all damages available in a tort action
Damages = compensatory
This is just like any other insurance
Economic damages only; leaves out most non-economic damages, including pain and suffering, punitive damages, and hedonic damages
