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University of Connecticut School of Law
Pandya, Sachin C.

Torts Outline – Prof. Pandya – Fall 2012
·         Introduction
o   Hammontree v Jenner
·        Vicarious Liability – August 29
o   Agency Law = someone who is held responsible for actions of other (usually through a labor contract)
o   Worker must be categorized as 1) employee or 2) independent contractor
§  When “employee”, employer must
·         Have the right to control what must be done
·         Have the right to control how it is done
o   Respondeat Superior
§  Employer ————“RS”———-Worker/”employee”
§  One person held responsible for torts of employee
o   Christensen v Swenson
§  Security guard hit someone with her car while she was on her lunch break
§  Must determine if her actions were within or outside the scope or employment.
o   Roessler v Novak
§  Was doctor acting under authority of the hospital?
·        Damages
§  Cost of settling v. cost of trial
§  See diagram in Notebook
o   Compensatory Damages: to compensate for harm; will restore victim to pre injury conditions and/or lead people to be more careful
·         Economic/Pecuniary Damages      
o   Lost wages
o   Medical expenses
o   Expenditures for substitutes/replacements (ie new car)
o   Lost earning capacity (ie messed up hand no longer able to do surgery)
o   Lost of use of property
o   Lost of business opportunity
·         Non-economic damages
o   Physical pain and suffering
o   Emotional/mental anguish
o   Loss of enjoyment
o   Loss of reputation/honor (w/ defamation)
§  Principle of Single Recovery – when it’s over, it’s over!
·         Issue: the value of money (Discounting to Present Value)
o   Future Value (FV) = PV (1 + r)n    r=interest rate; n=time
o   Need $100 for surgery in a year
§  PV = FV / [(1+r)n ] o   Non economic damages don’t normally have to be discounted to present value.
§  Structured Settlement à if case is settled, you don’t have to abide by principle of single recovery
§  Inflation: In real world, there is a fight over what discount rate should be.
·         Consider
o   Nominal interest rate
o   Inflation risk (premium)
o   Default risk (premium)
§  Think about contingency fees
§  Judicial Limits on Excessive Damages       
·         Judge can remittitur (conditionally grant new trial, but P has option to allow judge to make an award based on reasonably jury)
o   Additur – If P says awards is inadequate as matter of law, judge can decide what minimum amount jury could find.
§  Traynor’s Pass Through Point (from Seffert): Varying capacity of D to shift losses
·         1) Liability insurance
·         2) Consumers: when D is a business, prices increase
·         3) Workers: lowering wages
§  P. 710 – Seffert v LA Transit lines – excessive verdict
§  P. 728 – McDougald v Garber – Loss of enjoyment of life in person that is comatose
·         Cognitive awareness is prereq for loss of enjoyment of life; otherwise damages seems punitive.
§  P. 736 – Federal Tax Treatment of Compensatory Damages
·         Recovery needs to be adjusted for taxation
o   Collateral Source, Insurance, and Subrogation
§  Collateral Source Rule – rule at common law that D does not get benefit of payments by other sources to cover P damages (ie medical insurance) [[can be challenged by statutes, and is in CT]] §  Subrogation – a 3rd party who has the right to stand in P’s shoes and sue D to recover payments up to amount paid to P (ie Insurance company can sue someone if the victim chooses not to sue)
·         Sources:
o   Contract – express subrogation clause
o   Implied contract – act as if there is a clause, even if there isn’t
o   Statute
§  P. 742 – Aramnula V Wells – wrong doers are still responsible for full damages of lose wages under the collateral damages rules, even if P has already received compensation from other sources.
§  P. 776 – Insurance coverage and restrictions
§  P. 785 – Frost v Porter Leasing Corp – in absence of subrogation clause between insurer and insured, an insurer that has paid medial or hospital expense benefits has no rights to share in the proceeds of recovery.
§  CW – Collateral Source Rule in CT –
o   Punitive Damages
§  (1) Allowed by common law and by statute in MA, LA, WA, NE
§  (2) Must prove intent/recklessness/”gross negligence”
·         Gross negligence is above and beyond normal negligence.  Malice.
§  (3) Evidence relevant to size of damages
·         Proportional to moral seriousness of crime (ie drunk driving is worse than running a red light)
·         Can look at D’s net worth
o   To punish, rich have to pay more
o   Introduce after liability is established
§  Limits on punitive damages
·         Common law; Statues; Constitutional Limits
§  Liability Insurance for Punitive Damages 
·         Policy terms may have intentional acts exclusion
·         Void for public policy (even if have insurance, will courts make the D pay?
·         Statutes might limit it
§  P. 750 – Taylor v Superior Court – intentional harm need not be alleged to receive punitive damages
·         Only need to allege D knew of and disregarded substantial chance of harm
§  P. 760 – State Farm v Campbell – Verdict was so excessive it violated due process clause.
·         “Duty to settle” à in some states it a violation of contract if insurance company does not settle
·         Gore Guideposts – can challenge punitive damages under Federal Law
o   Reprehensibility of D’s conduct
o   Ratio of award to the harm inflicted
o   Difference b/w award and civil or criminal penalties in comparable cases.
§  P. 783 – Note 3
§  CW – Price v Hartford – held insurance company responsible for punitive damages.  Not void for public policy.
§  CW – Punitive Damages in CT
·        Negligence Principle
o   Did D violate the standard of care?
o   Historical Development
D exercised ordinary care
D no ordinary care
P exercised ordinary care
D wins
P wins
P no ordinary care
D wins
D wins b/c of contrib. negl.
§  P. 35 – Brown v. Kendall – P has the burden to show the D did not use ordinary care. (dog fighting case)
·         Burden or proof = what ordinary care is and what D did/didn’t do that was relevant to standard of care.
§  P. 39 – Adams v. Bullock – If D has taken all reasonable precautions, then no additional duty and not negligent. 
§  P. 43 – US v Carroll Towing – Vicarious liabil

find for you.  Jury could make different inference
·         ie babyfood was dirty because factory mishap, not because it had been sitting there for a long time
§  P. 85 – Negri v Stop n Shop – evidence of dirty store was enough to meet burden of proof
·         Store knew or should have known of spilled baby food
§  Gordon v American Museum of Natural History
·         Evidence not sufficient to support actual or constructive notice
o   Res Ipsa Loquitur à just the fact an accident occurred can be evidence to infer breach of standard of care.  Jury may infer negligence once the elements of res ipsa are met.
§  Inference approach: most states
§  Presumption approach: CA, Arkansas, Maine:: Burden of production shifts to D.
§  Factors:
·         Injury causing event does not ordinarily occur absent negligence
·         D had exclusive control
·         Not P voluntary action (sometimes)
§  Once res ipsa elements are met, burden shifts to D to show he satisfied the standard of care.
·         If fail to present evidence of satisfying the standard of care, then judge can rule for P
·         If they do present evidence, back to P to meet burden of persuasion.
§  P. 90 – Byrne v. Boadle – 1st case of Res Ipsa – negligence can be inferred because barrels do not ordinarily fall out of windows.
§  P. 92 – McDougald v. Perry – Classic example of inference approach
·         Mere fact of accident occurring may be enough to maintain negligence claim under res ipsa
§  P. 99 – Ybarra v. Spangard – Multiple D in a surgery, not one had exclusive control
·         Where a P receives unusual injuries while unconscious and in the course of medical treatment, all those Ds who had any control over his body or the instrumentalities which might have caused the injury can be held liable under res ipsa
·         Not being able to identify D with exclusive control should not preclude res ipsa when she was unconscious.
§  Page 115 – Sides v. St. Anthony’s Medical Center – allowed to present expert testimony in support of res ipsa theory.
§  CW – NY Pattern Jury Instructions
·        Causation
o   Cause in Fact – proving that the action or inaction that amounts to breach of Standard of Care caused P injury.  – A “causes” B
§  Causal inference à infer there is a casual relationship
·         Logic
o   A is a necessary condition for B; if B isn’t true, then A isn’t true.
o   A is a sufficient condition for B; A implies B
·         Probability
o   Probability of B, given A, is greater than the probability of B absent A
o   P (B I A) > P (B I not A)