Torts Outline

 
TORTS
ROHT-ARRIAZA
FALL 2013
 
 
 
 
1.       NEGLIGENCE: BREACH OF DUTY
a.       A PRIMA FACIE CASE FOR NEGLIGENCE CONSISTS OF 4 ELEMENTS:
                                                               i.      Duty, the obligation to protect another against unreasonable risks of injury
1.       In general, a duty of care is owed to all foreseeable people who may be injured by the Ds failure to follow a reasonable standard of care. An actor has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.
                                                             ii.      Breach, the failure to meet that obligation
1.       Standard of care: default is a reasonable prudent person under the circumstances.
a.       A composite of what trier of fact thinks rpp would do. Can make mistakes, lapses of judgment, etc.
                                                            iii.      Causation, a close causal connection between the action and the injury
1.       Did Ds obligation include the general type of harm the P suffered? Are there any intervening causes that are so unexpected they supersede?
2.       Ds conduct may also cause subordinate risks of harm (ancillary risks)
3.       The S of L determines whether D should be liable for such a result.
4.       S of L suggests that there may be some factual settings in which imposing liability will be inappropriate.
                                                           iv.      Damages, the loss suffered.
1.       Requires that P establish actual loss.
2.       Covers: compensation for medical bills and lost work time; recovery for physical pain of victim; mental/emotional harm suffered; future med expenses, sum for future earning capacity.
3.       A lump sum payment.
b.      ANALYSIS OF THE ELEMENTS OF A NEGLIGENCE CASE
                                                               i.      RUDOLPH v. ARIZONA B.A.S.S. FEDERATION (Ariz 1995)
1.       R: “No duty, no breach, no causation.”
2.       Duty: was there a relation between these individuals that impose upon one a legal obligation for the benefit of the other?
a.       No special relationship because Heather wasn't part of the tournament and that Heather was not connected with either GCB or the tournament, was not a spectator of the tournament, and did no entrust herself to the care of GCBB. They said that the actions that Kirkland made was of his own accord, and they have no duty to control Kirkland. 
b.      If there is no duty, then it doesn't matter and they don't care. Then they don't have to apply the reasonable standard.
c.       The appeal court took the example of driving on the freeway along with the case in Weirum v. RKO General, Inc. and said that it doesn't matter – because they owed D a duty to use reasonable care in designing and conducting their tournament to prevent other users of the lake from being injured.
3.       Breach: the test for whether D's conduct was negligent is whether there was a foreseeable and unreasonable risk of harm from that conduct.
a.       D chose the a lake that they know would be congested with boating and jet ski
b.      D designated only one weigh in station and placed it near the main launch area where traffic was especially heavy.
c.       D also established a deadline of 1pm, when the area is especially crowded.
d.      There was also a lack of training regarding safety.
4.       Causation: the thing that ties the breach to what actually happened.
a.       If not for D, P would not be hurt.
                                                             ii.      What Conduct Constitutes Breach of Duty?
1.       Foreseeable Risks of Harm
2.       Unreasonable Conduct in Light of the Foreseeable Risks
c.       THE REASONABLE CASE STANDARD
                                                               i.      In most cases, the standard of care is that of a reasonably prudent person under the circumstances. This standard is an objective one, measured by what a reasonably prudent person would do, rather than whether a particular defendant s acting in good faith or using her best efforts.
d.      GENDERAL DUTY OF REASONABLE CASE
                                                               i.      A.W. v. LANCASTER COUNTY SCHOOL DISTRICT (Nebraska, 2010)
1.       The trial court dismissed the case on summary judgment, ruling that the school district owed no duty of care because the assault was not foreseeable.
2.       Rather, deciding what is reasonably foreseeable involves common sense, common experience, and application of the standards and behavioral norms of the community-matters that have long been understood to be uniquely the province of the finder of fact.
a.       Duty rules are meant to serve as broadly applicable guidelines for public behavior.
b.      ‘Foreseeability’ also may obscure the factors that actually guide courts in recognizing duties for purposes of negligence liability.
e.      REASONABLE PERSON STANDARD EXCEPTIONS
                                                               i.      When it’s a physical disability – the standard is that of a reasonable person with the same disability. (Ex: have to exercise greater care, install flashing lights in the car, etc…) It can impose a higher burden than a non-disabled person. Must take compensatory action if necessary.
1.       Pretty well established rule of law
2.       Still an objective standard, but just that the pool we're looking at is smaller.
                                                             ii.      When it's a mental disability – the standard is that of a reasonable prudent person.
1.       Rules re heart attack, other physical illness – no breach.
2.       There is a persistent sense in the law that says that people who have mental issues – we can't tell and it's easy to fake, and if people are going to live in the world, they're going to have to take responsibility for their own stuff. And it'll provide incentive for the caretakers to take better care of them (which is kinda contradictory).
                                                            iii.      Children are judged compared to reasonably prudent children of the same age, intelligence, maturity, training, and experience.
1.       Starts with an objective component (age), but then adds the subjective component. 
2.       Rationale: let kids be kids, brain development, lots of variation, etc.
3.       Except where inherently dangerous -> RPP. In some states, adult activity.
4.       ROBINSON v. LINDSAY (Wash. 1979)
a.       Rule: We believe a better rationale is that when the activity a child engages in is inherently dangerous, as is the operation of a powerful mechanized vehicle, the child should be held to an adult standard of care.
f.        SUPERIOR SKILL PROBLEM
                                                               i.      Being a reasonable person includes taking in account of your superior ability.
g.       DEVELOPING THE REASONABLE CARE STANDARD
                                                               i.      Balancing Risk vs Untaken Precautions
1.       UNITED STATES v. CARROLL TOWING CO. (2d Cir. 1947)
a.       Hand Formula—There is a duty of care to protect others from the harm when the burden (B) of taking adequate care is less than the product of the probability (P) of the resulting harm and the loss (L) of that harm.  If B < PL, then defendant is negligent. b.      Attendant of defendant’s barge was absent for 21 hours during which barge broke loose and struck the plaintiff’s barge causing it to sink. c.       Judgment for plaintiff because judgment for plaintiff because cost of keeping bargee on board was less than the probability and loss of harm. d.      Monetary example:                                                                                                                                        i.      Bargee costs $8/day                                                                                                                                      ii.      Without bargee, one accident costs 6K and probability is one accident every 200 days.  Therefore, risk is $30/day.                                                                                                                                     iii.      With bargee, the probability of one accident worth 3K every 300 days.  Therefore, $10/day.                                                                                                                                    iv.      Burden would be $20 with bargee as opposed to $30 without bargee.  Thus, it is economically efficient to have bargee on board. e.      As P’s attorney, you have the burden of proof to show the burden/untaken precautions.                                                                                                                                        i.      What could have been done                                                                                                                                      ii.      That it was preventable and foreseeable 1.       What is the burden of avoiding that foreseeable risk?                                                                                                                                     iii.      What did D do when they should have done it differently? What didn't D do that they should have done? 1.       Is it… (SAFETY Acronym) a.       Safer, b.      Alternative, c.       Feasible d.      Effective, e.      Costly, f.        doesn't impair the utilitY? 2.       McCARTY v. PHEASANT RUN, INC. (Illinois, 1987) a.       Rule: The district judge correctly pointed out that the case was not so one-sided in Ps favor. Having failed to make much effort to show that the mishap could have been prevented by precautions of reasonable cost and efficient, McCarthy is in a weak position to complain about the jury verdict. b.      Used the hand formula  (whether the burden of precaution is less than the magnitude of the accident, multiplied by the probability of occurrence)                                                              ii.      Role of Custom 1.       HAGERMAN CONSTRUCTION, INC. v. COPELAND (Indiana Ct. App. 1998) a.       Rule: The conduct of other persons in substantially similar conditions may be relevant, under the circumstances, or a particular individual’s acts or omissions. b.      Custom: doesn't change RPP standard of care, merely provides evidence of what others do -> what it would be reasonable to do.
2.       TRIMARCO v. KLEIN (N.Y. 1982)
a.       Custom and usage reflects the judgment and experience and conduct of many. Support comes from the direct bearing it has on feasibility, for its focusing is on the practicality of a precaution in actual operation and the readiness with which it can be employed.
b.      Standard of care is still RPP
c.       (Holmes) “What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.”
d.      There was a custom, and D deviated from the custom.
                                                                                                                                       i.      Compliance with the custom can be evidence that shows that D acted reasonably, but it is not determinative.
3.       THE T.J. HOOPER (2d Cir 1932)