TORTS
SUGARMAN
2010
Introduction
a. Introduction
a. Types of Legal Reasoning: (Precedent, Analogy/Distinction, Fairness, Policy)
b. Rules v. Standards: A Rule is bright line and applied by the judge before it gets to the jury; a standard allows for more individualization of the law but less horizontal equity.
c. Policy Categories for Analyzing a Rules: (1) Perverse Behavioral Response, (2) Crushing Liability, (3) Administrative Difficulties, (4) Trumping Social Values.
b. Vicarious Liability (someone else did something wrong, but you have to pay)
a. Parents are vicariously liable for their children
b. Respondeat superior-held liable for the actions of another (employers have a right to claim back from employees, but rarely do)
i. Christensen v. Swenson (D hit car while driving during work break; P sued company). Ct. Companies are responsible for the torts of their employees while they employee is acting within the scope of their employment.
ii. Scope of employment: (1) employee’s conduct is of a general kind that she was hired to perform; (2) conduct occurred within the hours and space of employment; and (3) conduct was motivated by purpose of serving employers interest.
c. Generally, employers are not liable for the torts of independent contractors. However, liability can be imposed if the employer gives contractor apparent authority.
i. Apparent authority (Roessler v. Novak; Dr. misread chart, hospital tried to say he was contractor; ct for P) Apparent authority can be established where:
1. contractor was represented by the purported principle;
2. there was reliance on that representation by a third party;
3. there was a negative change in 3rd party because of reliance
d. Sometimes an employer is responsible for a contractor’s tort because it is a non-delegable duty.
i. In Maloney case, drivers breaks failed, but she was still negligent b/c statute had made fixing breaks a non-delegable duty. *Sometimes P does not have the ability to shop around and so non-deligable duty (concurring opinion in Roessler).
c. Taking Stock & General Overview
a. Policy Benefits to Vicarious liability
i. Promotes safety within company, allows victims to collect against otherwise judgment proof D; bosses have more control of workplace; employee benefit (no fear of individual suit), difficult to prove negligence
b. Policy Arguments Against Vicarious Liability
i. Shouldn’t punish someone who is not responsible, don’t want to discourage enterprise, keep the courts out of cases where there isn’t negligence
Negligence (Breach)
a. Historical Development of Fault Liability
a. Negligence emerged in the 1800s
b. Burden is on P not D to show that D did not use ordinary care.
i. Ordinary Care-the kind and degree of care, which a prudent and cautious man would use, and is required by the exigency of the case.” (Brown v. Kendall-dog fight; ct for D)
b. Standard of Care
a. Standard of care does not involve forethought of extraordinary peril, not fairly within what the ordinary person would consider a thing of danger (Adams v. Bullock; boy swinging metal wire ct. for D)
b. Note cases: Braun (city wires insulated for 3 years, 15 years later people built and electrocuted; court held for P b/c D owners of wires should have anticipated that buildings would go up in empty space).
c. Note case: Greene v. Sibley: women in grocery store tripped on worker (ct for D worker) b/c woman should have been aware of worker.
d. BPL; B=Burden on D, P-probability of harm and L-value of loss: If B>PL, then no liability. If B
Lord Reed Cricket Case is an example of P being so low that PL is almost zero. As a rule, court says it can’t outweigh B, the judge ignores B; but once the accident happens, that information needs to be factored into the P.
ii. Burlington (train turntables w/ kids on them) High burden-getting rid of turntables, but lower burden for locks.
iii. Cose Theorem: Railroad did not need to pay farm if protection against sparks more expensive than damage caused to crops, the operator did not need to pay the farm for lost crops.
c. The Reasonable Person
a. Common carries used to be held to the standard of utmost care, but now only held to reasonable care (Bethel v. NYC Transit Authority). Utmost care is asking more than what is “reasonable.”
b. An exception to the reasonable person standard is with handguns. Father had locked gun, kid got it and shot; ct against dad D). Wood v. Groh; held to highest degree of care, not just reasonable care.
c. Factors Taken in to account: age (sometimes), superior skills (states are divided), wisdom and experience, certain substantial physical factors like blindness
d. Factors not taken into account: mental capacities (too easy to fake, dominant view), gender
d. Role of Judge, Jury and Custom
a. This highlights the distinction between rules and standards. Rules can be decided by the judge. Standards go to jury. A rule effectively says, “a reasonable jury could never disagree on this.”
b. Advantages to Rules over Standards
i. Administrative efficiency because you don’t need a jury
ii. People won’t bring claims they know they won’t win
iii. People may take more precautions when they know what the rules are
iv. All claims are treated equally
c. Disadvantages
i. Rules do not evolve with technology or morals the same way standards would
ii. Stop good claims
iii. Rules are too narrow (individual justice may be sacrificed)
d. A judge can make a rule saying no negligence in a particular situation if he the jury may be swayed by emotions instead (negligence per se). The effects of distinction between rules and standards can be seen in B&O Railroad v. Goodman and Pokora v. Wabash Railway Co. In B&O, court held that as a matter of law, RR is not liable, if P does not get out of car to check. Problems b/c no one won a suit against RR. Until Pokora (rule of law case) clarified that B&O was just a standard, not a rule and then questions could proceed to jury. No ironclad rules about what is negligent conduct. *Under Pokora, the question goes to the jury unless it violates the Adams v. Bullock standard, exceptional circums
tary action on part of P standards from McDonald. Here P was under anesthesia at time.
c. Burden Shifting cases, the burden shifts to D because the D has better access to information. They will lost unless D can show non negligence. Compare with: Gordon v. American Museum of Natural History (slipped on Sabro wrapper; ct for D museum because no constructive notice) Constructive notice requires (1) visible and apparent and (2) exists long enough for the D employees to notice and fix (or put up notice about).
d. Business practice: if the plaintiff could reasonably anticipate that harzardous conditions would likely arise, then no suit. B/c the danger is foreseeable to P. Randall (slip and fall at bird seed bins, but no evidence of notice to D; ct found for D).
g. Medical Malpractice
a. Changes: standard of care, custom and question of proof
b. Dr. get to set their own standards of conduct, but Dr. specialized skills/knowledge are taken into account
c. P must show D departed from the standard of care, and therefore needs expert testimony (which was hard to get b/c Dr. solidarity, now better because wider range of locations available)
i. Dr. used to be held to similar location standards, now it is a national standard, Sheeley v. Memorial Hospital (P hurt in labor, wanted expert from out of town).
d. P are allowed to provide Dr. to prove res ispa case because only a Dr. would know if injury was likely to result without negligence (States V. Lourdes Hospital-P arm hurt after surgery; ct allowed P to use expert to establish that as an unlikely result of surgery).
e. In medical malpractice, the custom IS the standard b/c (1) medicine is complicated so leave it to Dr, own process of licensing, should trust them because market pressures make them want good Dr, medicine adapts faster than law, we need Dr.s and don’t’ want to discourage them, we trust them b/c of oath to help.
f. Dr. practices work on a national, not local standard for care in malpractice cases. This may increase the standard of care expected in rural areas and provide access to more witnesses.
h. Policy Reasons for Negligence rather than strict liability: (1) shouldn’t punish someone if they were careful, (2) don’t’ want to discourage enterprise/liberty; (3) keep the courts out of cases where there isn’t negligence; creates horizontal equity,
i. Informed Consent
a. Dr. must notify patient of risk/outcome if a reasonable patient would have considered the risk material (is not a subject patient standard) Matthies v. Mastromonaco (woman lost leg because Dr. didn’t tell her about the other options; ct found for P w/o leg); Dr. must discuss “medically reasonable” alternative courses of treatment.
b. This comes out of the fact that malpractice isn’t battery, it’s about bodily integrity/consent; our body, ourselves; women with breast cancer
c. An alternative way to frame informed consent is a duty to disclose.
