TORTS II OUTLINE
I. WRONGFUL DEATH AND SURVIVAL:
A. Wrongful Death:
1. Brought by the dependants or family members. *NY- “distributes” of the deceased can bring the lawsuit.
· The legislature did not intend to cover stepchildren.
· No recovery by parents for stillborn
2. If the decedent had no will, the law provides upon his death the estate is divided among certain peopleà the next of kin. In *NY those people are called distributees. They include the spouse and the children. Ex. If there is no spouse the children get all and vice versa. If there are no children or spouse, the parents get all.
3. Can only be brought for pecuniary loss.
· Ex. My mom supported the family and when she was killed the child lost
support.
· Or my spouse was killed and he contributed ½ to the family.
· If the decedent was unemployed/ never contributed/ or no prospect of getting a job then there is no recovery.
· If you lose a young child there is usually no recovery bc there is no pecuniary loss. However, if u can show a 15 yr old who graduated Harvard Law School would be supporting you the rest of you r life then u can recover. This is really hard to prove.
· If you lose an older child who is a Harvard Dr. and is sending the parents $ and would have continued to support themà u may be able to show pecuniary loss.
· If parent/child have a bad relationship, this comes into effect. The jury decides how much did you loose by virtue of that death.
· This is a rough rule that saves the insurance co’s lots of $.
· Most states measure damages based on the loss to the beneficiaries.
4. Selders v. Armentrout: Nebraska extended the rule to include damages for the wrongful death of a minor child to include the loss of society, comfort and companionship of the child. (NOT IN NY).
5. Ct. of Appeals in *NY added by judicial gloss – that kids can recover for loss of nurture and guidance.
6. *NY- No recovery for grief or loss of society; Pecuniary loss only.
7. Medmal: Jury can reduce what taxes would take away.
8. No state limits recovery for pecuniary loss. However, some state legislatures limit recovery for non-pecuniary loss, i.e. grief.
9. Punitive Damages: should punitive damages be awarded to the beneficiary in cases involving reckless or intentional conduct? *NY allows punitive damages.
Theoretical problem: cause of action in a wrongful death action belongs to the relatives. The decedent is the one who should receive the benefit of the punitive damage awards. The beneficiaries have the right to replenish income for pecuniary loss, they are not there to get additional $ for misconduct. However, if the D died there is no basis for punitive damages.
10. Statute of Limitations: S of L in *NY for wrongful death is 2 years from the date of the death. Cause of action belongs to the next of kin. Trap: other sections of NY law establish shorter S of L when brought ag. a particular D. Ex. Metro-transit, NY health and hospital corp. This is established by state law. S of L is a defense that must be raised by the D.
B. Survival Action:
1. Decedent’s cause of action. Survival statutes preserve for the decedent’s estate certain causes of action which could be brought ag. a tortfeasor had the decedent not died.
2. Pain & suffering, medical expenses, lost earnings.
3. To recover for pain and suffering, deceased must be conscious.
· Moans and groans show P was conscious.
· The claim may include pain and suffering that occurred prior to the physical injury, sometimes called “pre-impact fright.” (ex. NY-airplane crashes).
4. Gets distributed through will.
5. *NY- If the decedent, during his lifetime, disposes of the case by settlement or judgment the wrongful death action is lost.
· Ex. Mr. Jones is severely injured and is in the hospital for three months. He is released and goes home. The tortfeasor’s insurance co. works out a settlement with Jones for “x” amount of pain and suffering. Two months later he dies of the injury. In NY, a wrongful death action cannot be brought. There is a theoretical contradiction is that bc the wrongful death action didn’t belong to Jones; it belonged to the next of kin.
6. Statute of limitations is 2 yrs. What if the next of kin is a 10 yr. old kid? Then the S of L is tolled until child hits 18. When the child turns 18, he has two years to bring suit.
II. DEFENSES:
A. Contributory Negligence:
· If P was negligent to any degree it will bar his cause of action completely.
· Harsh rule.
· Under the doctrine of contributory negligence, a P who fails to exercise reasonable care to avoid an injury is completely barred from recovery.
· Burden of proof in contributory negligence is on D. Except in NY the burden was on P to prove freedom from contributory negligence.
· D engaged in intentional, wanton or willful or reckless conductà contributory negligence is not a defense.
· NY labor law covering construction accidentsà ex. fallen things. Legislature protected working people on those jobs by providing if they were hurt bc not provided with proper gear, they could recover, even if the injury was brought partly by their own negligence.
· Statutes explicitly abolishing the defense in limited situationsà sometimes the legislature explicitly abolishes the contributory negligence defense in a limited situation. Ex. F.E.L.A.
· Exceptions to the contributory negligence rule: last clear chance to avoid it. Softens rule. (no basis for last clear chance in a comparative fault jxn).
B. Pure Comparative Negligence (NY):
· P is able to recover even if he is at fault but the verdict is reduced by amt of his fault.
· NY adopted this doctrine in 1974.
· Joint and several is gone. You are only responsible for your percentage. Thus, there will only be several liability.
· *NY- no longer has pure: NY provides for pain and suffering. Must show >50% fault on the part of D to recover the whole thing. Economic consequences are subject to pureà whatever the percentages are they are.
· Ex:
NY pure comparative fault
Jones sues Kelly Jones sues Kelly and Roe
40% 60% 49% 51%
verdict: $100,000 verdict: $100,000 P & S
How much does Jones collect? Thus, can collect $100,000
$60,000 from Roe.
C. Modified Comparative Negligence:
· “Not as great as” P’s recovery is reduced by the percentage of fault attributable to the P as long as the P’s fault is “not as great” as the D’s. If the P’s fault is equal to or greater than the D’s, the P is completel
s assumed the risk bc he knew of the risk and decided to assume it.
-P, entering D’s premises in the dark, does not know that they are dangerous, and fails to exercise ordinary caution to find out. Here, P is negligent; he didn’t know and therefore did not assume the risk.
-P knows that D’s activity involves some danger, but quite reasonably concludes that he can safely encounter it and proceeds. In an amusement park, he buys a ride on a moving belt that upsets the riders. P has assumed the risk.
-P, fully aware of an unreasonable risk, voluntarily proceeds to encounter it. He consents to drive with a drunken driver on a dark night. P has assumed the risk.
-It is essential that D show that P had assumed the risk.
-Does a hockey fan assume the risk of being struck in the face with an errant puck? Yes. attendants at sporting activities generally there is an assumption of risk. What about being trampled by unruly fans at a football game after he caught a ball? No assumption of risk since trampling is not a risk inherent in or an ordinary part of football.
-D negligently maintains a highway leaving a large mudhole in it. P, knowing the condition of the highway, attempts to drive past the mudhole, and while keeping to the extreme edge of the road slides off into the ditch and is injured. Should It make any difference whether (1) P is away from home and has to get back or (2) there is a reasonably short and convenient detour at hand, in good condition? If the D can show an alternate route, D can show assumption of risk. But if there is no other way to get home, whether P assumed the risk goes to the jury.
-P drove a car at an excessive speed and D negligently crossed over the median and collided with it. The proof was clear that P’s speed was not responsible for the collision, but it did increase his damages. How should the court have decided this case? Should really be decided on comparative fault.
3. Primary Implied Assumption of Risk:
· Inherent (like a baseball game), swimming pool accidents (dive into shallow end.)
· Court says either no duty on the part of D to P, or there was no negligence.
· No way can P win.
Benitez v. City of NY: A HS quarterback was injured in a football game and ended up as a quadriplegic. The team was placed in a tougher division even though the coach protested the team was too small. This is an ex. of primary implied assumption of risk, and recovery was barred. (afraid if held city liable it would have a serious effect on athletics).
4. Secondary Implied Assumption of Risk:
· Affirmative defense to an established breach of duty owed by the P to the D.
· Conduct is reasonable but nonetheless bars recoveryà pure/strict
