Torts / Prof. Brown / Spring 2010
* Five objectives of Tort Law:
1) *Compensation
– social concern for the victims and their families
– should enable them to recover past, present and future expenses, resulted from accidents
2) *Deterrence
– help to reduce the level of accidents
– Financial responsibility for accidents encourages safe conducts.
3) Preserve socially desirable activity
4) Efficiency of legal process
– should be efficient and provide standards to the community
– provide guidance to lawyers and juries and laypeople
5) Fairness
– must be overarching component in for for public to accept system
– would not function if public did not view it as fair
* Culpability spectrum: Intentional Tort –> Recklessness –> *Negligence* –> Strict Liability
* Vicarious Liability
– One party is liable for the behavior of another because of a relationship, usually employer responsible for employees conduct
– Conditions: must be under the scope of employment, depends on circumstances
– Restatement (2d) of Agency: An employee for vicarious liability purposes is a person who performs services “in the affairs of another” and is subject to “the other's control or right to control”
Kime v. Hobbs 562 N.W.2d 705 (NE 1997) p.53
Facts: Yelli is driving a big tractor, slams into Kime. Yelli was transporting Hobbs' cattle to another location at the time under Hobbs' orders, and was being paid by Hobbs. Kime suffered injuries, her passenger, Sullivan, died from the crash
Procedure: Hobbs (Defendant) filed motion for summary judgment [no reason to send to jury, b/c no genuine issue of material, triable fact — no reasonable jury could find any other way. Look at facts in light most favorable to the non-moving party: Kime (Plaintiff)]
Issue: Was Yelli working as an independent contractor or Hobbs' employee at the time of the accident?
Holding: Yelli was acting as in independent contractor
(R) Ten factors: 1. control; [2. distinct occupation; 3. kind of occupation; 4. skill; 5. who supplies tools, etc.; 6. length of employment; 7. method of payment; 8. whether work is part of regular business; 9. presence of agency relationship; and 10. whether the employer is in business.] If you can't establish control, you're going to have a hard time establishing vicarious liability.
– In this case, the “employer”–Hobbs–did not control Yelli. Hobbs designates lots of stuff–time, location, etc. It's one thing to control the end process, it's another to control the “means and method” of performance. Here, payment was based on the shortest route. They're not controlling how he does it.
(Other issues: #2 – Court stated that Yelli was in distinct business from Hobbs. He owned the equipment and had other income streams; #5 – Yelli owned some of the equipment; #6 – Yelli was not counted as an employee for tax purposes)
Negligence
Basic elements of negligence:
1) Duty
– question of law, decided by judges
– Generally, one has a duty to foreseeable plaintiffs to exercise reasonable care with regard to foreseeable risk of harm arising from one’s conduct
2) Breach
– question of facts
– foreseeable risk, reasonable or unreasonable conduct
– What a reasonable person would have foreseen and done under the circumstances
3) Causation (Cause In Fact)
– Did your breach cause the injury? “but for” test, substantial factor
4) Scope of Liability (Proximate/legal cause)
– Is there a close enough relationship between the initial action and the harm?
5) Damages: an actual harm must be suffered
Basic defenses:
– Grounded in tort law
Contributory negligence
Comparative negligence
Assumption of risk
– Procedural/General (not tort defenses, even though they're defenses to a tort claim)
Filed after the statute of limitations
Immunities (sovereign, etc.)
1) Duty – general duty of care / limited (special) duties
1) General duty of care (to foreseeable PLs)
Rudolph v. Arizona B.A.S.S. Federation (Ariz. Ct. App. 1995) (p.80)
=> bass fishing tournament in a lake
(F) Wrongful death suit. Plaintiffs’ daughter, while riding a jet ski in a lake, got killed in a collision with a boat driven by participants in the DF’s bass fishing tournament.
(H) The trial court concluded that DF owed no duty to PLs’s daughter, but here, the CA reversed.
(R1) Like every driver on the public highways owes to all other users of the highways a duty to drive carefully, DF had a duty to exercise due care in designing and conducting the tournament to prevent other users of the lake from being injured.
– Even though DF had no relationship with PL, the general duty of care applies in this case. (general duty of care to foreseeable PL)
(R2) Breach – DF’s conducts were unreasonable, thus they breached the standard of care
– choice of lake despite objections to the heavy traffic
– designating only one weigh-in station
– unwise choice of 1:00pm deadline, a time when the area would be especially busy
(R3) Cause – The evidence presented by PLs provides a reasonable basis for a jury to conclude that DF’s conduct was a causative factor in PL’s death
* Rudolph in Tort Law:
– Deterring poorly organized bass tournaments
– Rudolphs were compensated for pursuing the suit (as opposed to other victim's parents who settled for $100,000). “Desire for redress” goes beyond monetary desire, often stronger motivation.
– Reduce possibility of breach of duty: use a less busy lake, add more weigh stations, change weigh in time (make it “stop fishing” time)
Macpherson v. Buick Motor Co. (N.Y. 1916) (p.242)
=> Manufacturer’s duty of care to the ultimate purchaser
(F) PL bought a car from a dealer. The car suddenly collapsed and PL got injured. Buick didn’t make the wheel spokes of the car that were defective and caused the accident, bought them from another manufacturer.
(I) Does Buick owe a duty of care to the plaintiff when they were not in privity with him? Yes
(R) If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, the manufacturer of this thing of danger is under a duty to make it carefully, irrespective of contract.
– If the nature of a thing is such that it is reasonably certain to place life and lim in peril when negligently made, it is then a thing of danger.
– DF is a manufacturer of automobiles. It was responsible for the finished product. It was not at liberty to put the finished product on the market without subjecting the component parts to ordinary and simple test.
Thomas v. Winchester- Manufacturer mislabeled a poison, sold to druggist and then to plaintiff. Manufacturer was held responsible because they put human life in imminent danger. Don’t use privity as a barrier because the duty is foreseeable.
Statler v. Ray Mfg. Co.- Manufactured a large coffee urn, installed it in a restaurant and it exploded, injuring the plaintiff. Court held the manufacturer liable, as it was not an inherently dangerous object, but could cause great harm.
– Do not limit Thomas v. Winchester to poisons, explosives and things of like nature.
– The person in the best position to inspect the wheels was Buick.
– They were not just a seller, they were manufacturers and it was foreseeable to them that if the car was defective, damage was not only possible, but probable. Injury was almost certain.
P1) a drunken driver getting behind wheel
Duty – Yes. General duty to operate a vehicle with a reasonable care
Drunkenness – breach of duty, unreasonable conduct
P2) attending super bowl and you toss a bottle hitting a victim and causing serious injury
Duty – Yes. General duty of care to those around you to act as a reasonably prudent person would act
Breach – Engaged in conduct that reasonable person would know they would cause injury if threw bottle. Pool of people below you is class of potential victims.
P3) manufacture a bowl, and somebody bashes someone else over the head with it. As the bowl manufacturer, do you have a duty to the person who was smashed on?
– Person who smashed it: intentional tort
– Manufacturer: No duty to manufacture bowl so it can’t be used to smash someone on the head.
2) Limited duties
Land owner’s duty to visitors on the property
American Industries Life Insurance Co. v. Ruvalcaba (Tex. App. 2001) p.276
(F) PL husband worked at a building owned and managed by DF. PL wife and a son visited the husband at work. The son fell down stairs on way out and suffered brain damage. Stairs were not compliant with current building code.
(R) Land owner’s duty to invitee, licensee, trespasser
– invitee: one who enters on the property with the owner’s knowledge and for the mutual benefit of both
– licensee: one who enters on the property with the owner’s consent and for his own convenience or on business with someone other than the owner
– trespasser: one who enters the property without any lawful authority or permission
Respective duties of each category
Invitee Licensee Trespasser
Intentional yes yes yes
Gross neg. yes yes yes
Act. Kwlg. yes yes no
of a danger
Should have yes no no
known a danger
*(An owner or occupier of land has a duty to use reasonable care to protect an invitee from conditions that create an unreasonable risk of harm of which the owner or occupier knows or by the exercise of reasonable care would discover.)
=> If a person is invitee on the property, the owner owes him a duty of reasonable care, which would extend to warning him of any of the dangers of the property and also to making reasonable efforts to determine whether any such dangers existed.
=> If a person is a licensee, the owner has a duty of care to protect the licensee from dangerous conditions that the owner has actual knowledge unknown to the licensee and to warn it.
=> trespasser: not to cause injury willfully, wantonly or through gross negligence.
1) PL was not an invitee
– no business relations, no mutual benefits
– not the guest of a tenant
– not the child of tenant
– not a visitor to a public building
2) no evidence of gross negligence, no evidence of actual knowledge of harm
=> DF owed no duty to PL
* Child visitors – attractive nuisance exception (p.286)
Restatement 2d Torts § 339
A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:
(a) the possessor knows or has reason to know that children are likely to trespass the place
(b) the condition involves unreasonable risk of death or serious bodily harm to such children …
Pg. 287-288 footnote: society changes, but children do not. Children are still children and will engage in conduct dangerous to them so society has to be more careful and act with care.
Rowland v. Christian (Cal. 1968) p.288
=> ignored the categories, general duty of care applied.
(F) Christian is leasing the apartment and Rowland is a guest. Christian knows of faucet knob defect and has told landlord who does nothing about it. Rowland gets injured from using the faucet. Rowland says there was no warning from Christian. Never clear whether defect on faucet was obvious or not. All categories of duty chart require a non-obvious condition.
(R) The occupier of land is aware of a concealed condition involving in the absence of precautions an unreasonable risk of harm to those coming in contact with it and is aware that a person on the property is about to come in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence.
=> more like a general duty
New York’s view on the issue:
1976 NY court of appeals followed Rowland v. Christian in abandoning the strict categories in favor of a more general analysis. Still rely on duty of trespasse
ne teenager, and one adult. After fleeing from the JCC, Furrow came upon Ileto who was delivering mail, shot and killed Ileto with the firearm.
– Plaintiffs allege that defendant gun manufacturers and distributors produce, distribute and sell more firearms than legal purchasers and they all knowingly participate in and facilitate the secondary market where persons who are illegal purchasers and have injurious intent obtain their firearms.
– PL alleged that DF manufacturers and distributors select and develop distribution channels they know regularly provide guns to criminals and underage end users.
=> Despite this information about the path of guns to illegal purchasers, defendant manufacturers and distributors fail to exercise reasonable care to protect the public from the risks created by the distribution and marketing schemes that create an illegal secondary market. (Manufacturers make more guns than people can buy creating a secondary market.)
(R)
1) Glock owes PLs a duty of care -> YES
Plaintiffs sufficiently alleged that it was reasonably foreseeable that defendants' negligent behavior and distribution will result in guns getting into the hands of people like Furrow and unreasonable risk of harm created. -> Therefore, the duty of reasonable care exists
In determining whether DFs breached the duty of care owed to PL, the social value of the interest that DFs seek is outweighed by the health and safety interests of potential victims of gun violence. -> Therefore, the duty was breached
2) Direct link
Defendants contend the NY court of appeals decision holding that no duty existed between a gun manufacturer and victims of a shooting. When there is a third party involved a duty may arise between manufacturer and victim plaintiffs but only when there is some form of special relationship between third person tortfeasor or between the defendants and the plaintiffs.
The court held that there is a direct link b/w the manufacturers distribution practices and the illegal sale of the Glock gun to Furrow that he used to kill PL.
-> Glock knew that distributors sold guns that were later purchased by prohibited buyers like Furrow and used in crimes
-> Glock’s marketing essentially targeted the gun show and unlicensed sales market
3) Intervening act
DFs contended that it was Furrow who shot the gun and his wrongful act was the immediate cause of injuries suffered by PL
-> The court held that where an intervening act by a third party was foreseeable, it does not amount to a superseding cause relieving the DF’s negligent liability.
Discussion/Debate: Case opinion emphasis is on policy of deterrence to manufacturers. Does the court get it right?
– Opinion goes too far in holding Glock responsible
Did manufacturer sell to an illegal dealer? No.
Police dept. went to a former police officer, is there something wrong with this? Not necessarily.
Cannot hold manufacturers liable just for making their product and marketing it.
Glock cannot be held responsible for the entire marketplace
– Opinion is a good reflection of the duty needed to protect people
Manufacturers should be liable for creating a market they know is going to lead to harm. Guns are inherently dangerous, and designed to kill/harm.
Glock is intentionally trying to manufacture for secondary market. Taking no steps reduce the secondary market sales like other manufacturers.
Result of the Opinion
– Very difficult for gun manufacturers to obtain summary judgment because the burden is “no reasonable jury could believe Glock did not take reasonable steps to prevent secondary market.”
– Easier to suggest there is no duty at all rather than to have to prove no reasonable jury could find a breach of that duty.
– Does this undermine deterrence? Even if company takes some steps, jury could still find them liable, therefore no incentive to change marketing strategy at all.
2) Breach
– What a reasonable prudent person would have acted under the same or similar circumstances
– Objective standard
Reed v. Tocoma Ry. & Power Co. (Wash. 1921) p.95
(R) Error of judgment is not necessarily negligence.
– The mere fact that one errs in judgment is not conclusive proof that he did not act as a reasonably prudent person would have acted under like circumstances.
Lussan v. Grain Dealers Mutual Insurance Co. (5th Cir. 1960) p.95
=> involuntary reflex responses
(F) DF, owner of the vehicle, was driving when one of the two passengers discovered a bee (wasp) inside the car. DF swatted at the bee, and accidentally lurched the steering wheel and the car crashed into a vehicle on the curb. Lussan (PL) was injured and brought suit.
(R) The standard of performance in the law is not what had to be done to avoid damage, but that which prudent human beings would have done or not done.
– This case involves a common occurrence – the involuntary reflex responses by which nature
