Torts Outline

Torts 509 Engel fall 2017
 
Exam
Write on every other line of the bluebooks;
Different rule for issues – which approach to adopt?
Design to address the alternatives that are possible in making arguments.  There is no single “right” approach
Generally do not need to know the years (Brown v. Kendal – mid 19th Century)
Difference between § 402A and Greenman
402A – unreasonable dangerous and defective product
Greenman – defective product
 
Additional torts resources listed on page 17 of casebook; Articles published in journals.  Most tort cases appear in state court.
 
CAUSE IN FACT
 
Background: The Litigation Process (CB 9-18)
 
P files complaint: Question of law = court; Question of fact = jury
D can file motion to dismiss/demurrer based on P’s unsound legal theory
D can respond to complaint (“answer”) – denying or admitting facts, adding facts
Motion for summary judgment – concrete proof any reasonable juror could resolve if opposing party’s facts cannot be proven true
Trial – P has the burden of proof, which can be met by 1- sufficient evidence; and 2- the burden of persuasion
D can file a motion for a “directed verdict” or “judgment as a matter of law” if P did not satisfy the burden of proof and the case could easily be closed.
Judge “charges” the jury on the burdens of proof and the legal rules
In P’s favor:  D can move for judgment notwithstanding the verdict or “judgment as a matter of law” b/c the verdict reached was not reasonably based on evidence  
If P provides reasonable evidence and D provides overwhelming evidence, there can be no directed verdict b/c P provided some evidence
If the jury seems to have been swayed by other factors – the judge can order a retrial 
In D’s favor:  P can seek a new trial b/c judge was “prejudicial” (i.e., allowing or disallowing evidence, jury charge, etc.)
Damages: 
Tangible losses – already happened or predictable
Intangible losses  – not easily assessed (e.g. pain and suffering)
Procedures for proceedings to “execute” on a judgment exist =seize property or garnish wages.
Attorneys and Fees:  “contingent fee system” – clients only pay if their case wins and the fee is usually a certain % of damages recovered
Lord Campbell’s Acts – One can sue on deceased’s behalf for 1- victim’s bodily security (allowable recovery of damages that could have been obtained before death); and 2- recovery for damages to dependents’ interest in economic support loss
 
Damages – Why do we even need causation if one of the 4 purposes is usually present?
Compensation – Often awarded to make the victim whole;  Injured parties receive a payment sufficient to place them in a position an equal – or equivalent – to where they were before.
Corrective Justice – Awarded as a punishment focusing on responsibility for wrongdoing. 
Deterrence –  Incentives & disincentives for behaviors (be more careful & reduce accidents)
Loss Distribution – Spreads the cost of injuries more broadly (more efficient spreading)
 
Compensatory Damages (CB 706-18; 726-32)
Past pecuniary losses- damages already incurred (e.g., medical expenses, lost wages)
Future pecuniary losses – predicted future recoverable damages (future earning, MD bills) – must consider retirement age, promotions, inflation, cost of living
Pain & Suffering – recognize of non-economic & economic goods
If an award seems too excessive the court can 1- grant a new trial or 2 – grant remittitur, where the court conditionally grants a new trial unless the plaintiff accepts a reduction in the damages award
Conversely if the courts feel the damages awarded were inadequate a new trial is ordered unless the defendant agrees to an adjustment upward of the award.
 
Damages in the Event of Death – Survival Action & Wrongful Death (CB 726-32)
Loss of life – awarded for shortened life expectancy, loss of enjoyment of life
No requirement for time in between injury & death for award.  Death was the injury.
Wrongful death of child – damages for loss of household help and future help
 
“But For” Test 
 
Rule:  If D had not been negligent, P would not have been injured.  Proven by a preponderance of evidence – the likelihood of causation must outweigh the likelihood of no causation. 
 
New York Central R.R. v. Grimstad, (1920) (Supp. 3-7)
Facts: Grimstad fell off barge and drowned, no life-saving equipment on board.
Holding:  Grimstad did not prove cause in fact.  Not proven that Grimstad would have likely been saved from drowning if life-saving equipment on board.  (e.g. his wife would have gotten to it in time, could have thrown it to him, he could have held on)
 
Loss of Chance
Rule:  P’s recovers damages from a decrease or elimination of the chance of recovery from a pre-existing condition.  Different from “but for” b/c the injury may have occurred anyway.  Don’t have to prove by preponderance D’s harm was the cause – Only have to prove by a preponderance that D caused P to lose the chance of a better outcome. 
 
P’s favor:  P can only recover % of damages D’s negligence affected (i.e., 30% chance of losing your leg and that negligence caused the harm = can only recover 30% of the damages)
 
Traditionally, P couldn’t recover damages unless he could prove more likely than not to he would have recovered from the harm
 
To whom does the loss of chance theory apply?  Seen in the medical situations, but should it apply to any plaintiff (i.e., businesses, etc.)?  What about the Grimstad case?  Should Elfrieda be allowed to recover under the loss of chance theory?
Grimstad was in a bad situation by falling in the water and the defendant’s aggravated the situation by not providing life saving equipment, creating a loss of chance to survive.
Doctors should be held to a higher standard of duty because of the nature of the relationship.  You see a doctor and engage his or her services in order to avoid loosing the chance of harm.  There is a contractual relationship in medical malpractice cases.
 
Alberts v. Schultz, (N.M. 1999) (CB 360-69)
Facts:  Mr. Alberts saw two doctors who both overlooked the immediacy to Mr. Alberts’s rest pain and he had to have his leg amputated. 
Holding:  No reason to bar lost-chance claims in situations where chance of  a better outcome before “treatment” was less than 50%. In current case however, Alberts did not show beyond a preponderance of evidence that had the doctors not been negligent he may have been able to save his leg.  (no recovery)
Comments:  If loss of chance theory was never used = no liability for doctor’s negligence where patient had < 50% chance of a positive outcome regardless of negligence.  Free reign to act negligent if the patient doesn’t have a good prognosis.   “Ruminations on Cause-In-Fact” by Wex Malone (1956)  (Supp. 8-26) Cause-in-fact not just a matter of factual analysis – everyone’s individual experiences and interpretations influence how “facts” are perceived and what meets the bare minimum for imposing liability policy Causation-in-fact essentially a matter of conjecture, requiring judicial determination on when the conjecture is appropriate for the jury or should be handled by judges.  Different forms of reasoning can be used by judges in cases of conjecture. The essential weakness of the but-for test is the fact that it ignores the irresistible urge of the trier to pass judgment at the same time that he observes. Juries compromise amounts awarded in doubtful cases. Substantial factor test –likelihood under “but for” test supplanted by estimate of quantity (how much D’s participation contributed) & size of the defendant’s contribution subjected to various policy factors = affect the outcome The difference between cause and proximate cause is largely of degree, rather than kind.  (what happened & “factual” inquiry – cause; policy dominating factor – proximate cause)   Joint & Several Liability (CB 369-379) Rule:  When more than one person caused plaintiff’s harm and the harm is indivisible, each defendant is liable for entire ha