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Torts II
University of Georgia School of Law
Peltz, Richard J.

TORTS II OUTLINE – SPRING 2010 – PELTZ
CHAPTER 10: PROOF
1. § 10.03: Res Ipsa Loquitur (“The Thing Speaks for Itself”)
o    Rule: “Ordinarily Not Occurring in the Absence of Negligence”
·         Instrumentality causing the injury was in the exclusive control of the Δ
·         Π has disproved other explanations
·         Burden of explanation seems most easily met by the Δ
o    Negligence:
·         (1) Duty
·         (2) Breach
·         (3) Proximate Cause
·         (4) Injury/ Damages
o    Peltz Elements & Commentary: Res Ipsa Loquitur:
·         RES IPSA LOQUITURmay be invoked when:
§ (1) The event does not ordinarily occur absent negligence;
§ (2) Other possible causes, including the conduct of plaintiff and third persons, are sufficiently eliminated by the evidence;
§ AND
§ (3) The indicated negligence is within the scope of defendant’s duty to plaintiff.
§ (Restatement (2d) of §Torts 328D)
·         The latter element is arguably redundant of the general rule of negligence, but serves to remind us that RIL does not render the duty element a dead letter.  In the four-part negligence test, RIL may be said to stand in for duty and breach, but not causation and injury.
·         MINORITY RULE: Some jurisdictions still formulate the RIL “rule” to refer to the exclusive control of the defendant over the instrumentality of injury.  Historically, this requirement precluded the operation of RIL in cases of multiple defendants.  But that limitation is little observed today.  Typically even a court that uses the exclusive control language will work around the limitation in a case of multiple defendants through a device such as “common duty.”  Also, the adoption of comparative fault in cases of joint liability (next week) has had a deleterious effect on the application of exclusive control 
·         The key practical question that arises once RIL is invoked is what effect it has. 
·         MAJORITY RULE, RIL entitles the plaintiff to a jury instruction that the jury may draw inferences as to the defendant’s responsibility for the negligent condition.  Note that the “may” is permissive, not mandatory.
·         The Restatementleaves the effect of RIL to the trial court, indicating that a viable alternative effect would authorize the court to instruct the jury to draw a certain inference (which might or might not be dispositive on the facts; another issue, besides breach, such as causation, might remain as a jury question of fact). 
·         MNIORITY RULE: Also, we must acknowledge that because of the historical confusion with burden-shifting, some courts will allow RIL to establish a rebuttable presumptionof defendant’s negligence, thereby shifting the burden of proof to the defendant to show nonliability.  Consider that the inference instruction might not be all that different in practical effect from the rebuttable presumption.
·         Note that in litigation involving a plaintiff’s RIL theory, the plaintiff typically will plead two separate counts of negligence, one predicated on RIL, and another not, even though both counts contemplate the same occurrence of injury.  The defendant may move to dismiss the RIL claim, and if defendant prevails, the plaintiff can still struggle to prove negligence on the other count in the traditional fashion.
o    R.I.L. Generally
·         Question of law if it applies and then jury makes the reasonableness determination.
·         Other causes have to be sufficiently eliminated – P bears burden of proof.
·         To defeat r.i.l. – Need to come up w/ good alternative situations
·         Born with Byrne v. Boadle, England, 1863. (the flour barrel case)
·         Either get negligence or r.i.l. – Not both!!!
o    Jurisdiction Split
·         Majority rule: permissible inference – RIL entitles P to a jury instruction that jury may draw inference
·         Minority rule: burden shifting – rebuttable presumption of guilt
§ Not reconcilable in every jurisdiction
o    Permissible inference (FOR OUR MAJORITY RULE)
·         The event is of a kind which ordinarily does not occur in the absence of negligence
·         Other responsible causes, including the conduct of the PL and third persons, are sufficiently eliminated by the evidence
·         The negligence is w/in the scope of the DF’s duty to PL
o    Correlations and Case Examples:
·         Contributory negligence: When the ct allows a finding of RIL, the Π is usually expected to eliminate his role and the role of 3rd parties in the injury. O’Connor v. Chandris Lines, Inc., USDC, MA, 1983. (Vacationers whose top bunk collapsed on a cruise ship.)
·         Exact cause: The Π is not expected to know exactly how the injury occurred, or what specific part of the instrumentality caused the injury. Lodono v. Washington Metro, DC Cir., 1985. ([Starr]: little girl’s injury could be blamed on an escalator generally, and need not be any more specific.)
·         Multiple Δ’s: control need not be literally exclusive, if a group of Δ’s all shared a common duty. Dullard v. Berkeley Associates Company, 2nd Cir., 1979. (4×4 falls from a building. Fingers are pointed and multiple Ds.)
·         Limits: One oft-cited limit to RIL is the commonality of the occurrence. In order to be comfortable inferring negligence from sparse circumstantial evidence, the ct has to feel intimately acquainted with an experience, e.g. Bohnsak v. C.E.B. Prod.’s, TennCtApp, 1976. (woman’s problem with a fingernail polish not seen as common enough experience to allow RIL.)
§ I.e. not likely to allow RIL w/ complicated scenarios (ex. scientific causation), need a common experience, also not likely w/ car failure (ex. tires blow out)
o    Procedure and RIL:
·         Court must decide whether jury could rationally find negligence and causation based on P’s evidence
§ If court decides can’t rationally find n, then directed verdict for D
§ If ct says maybe could, then instruct jury to decide as a question of fact RIL
§ If yes, then submit case, and require D to respond (burden shift)
o    Policy arguments: (Weinrib)
·         For:
§ An RIL finding has substantial deterrent effect. It is an opportunity for a court to say that it desires Strict Liability in a particular area (recall the transfer from RIL to SL by Traynor in Escola.)
§ Allows for a meritorious claim to go forward when the situation keeps Π from getting the negligence-proving evidence he needs.
·         Against:
§ Imposing liability w/o a reason? Can be arbitrary.
§ Can produce widely varying scenarios, different results in similar cases.
 
CHAPTER 11: Liability and Apportionment of Damages Among Multiple Defendants
§ § 11.01 “Joint Liability”à SEE PRACTICE QUESTION ON TWEN!
o    Defined
·         Each Δ is liable for the entire, indivisible injury,
§ i.e. if there are 2 Δ’s and one is insolvent, the other can be forced to pay 100%.
o    Theories
·         Joint venture
§ A group of Δ’s were involved in a profit-seeking business endeavor
§ Association of 2 or more people to carry out a single business enterprise for profit, for which purpose they combine their $, property, effects, skill & knowledge
·         Joint enterprise
§ A group of Δ’s joined in a substantive common activity, but w/o business motive; each Δ must have a fair degree of control over the situation, e.g. control over a vehicle.
·         Concert of Action: Substantial assistance or encouragement – for harm resulting to a third person from the tortious conduct of another, one is subject to liability if he ..(b) knows that the others conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself
o    Peltz’s Elements & Comments: Multi-State Rules of Joint Liability and Multiple Defendants
·         ELEMENTS, from RST § 876 (1977) pg. 535:
·         An actor is responsible for tortious harm to a third party caused by another when the actor:
§ (a) did the tortious act with the other or acted with the other pursuant to a common design (“conspiracy,” joint venture, joint enterprise);
§ (b) knows the other’s conduct breaches a duty, and gives the other substantial assistance or encouragement (“aiding & abetting”);
§ OR
§ (c) gives substantial assistance to the other in reaching a tortious result, and the actor’s own conduct separately considered is tortious as to the third party (e.g., through negligence supervision).
§ At common law, multiple defendants were jointly and severally liable to the plaintiff, and there was no contribution or indemnity except by contract or under the “active-passive” doctrine.  Under the active-passive doctrine, a passive defendant was entitled to indemnity by an active defendant.
§ In the twentieth century, multistate law, usually by statute, moved toward apportionment and contribution among defendants.  The Uniform Contribution Among Joint Tortfeasors Act called for apportionment when joint liability would be “inequitable.”  Contribution was available in cases of apportionment, or in equal share absent apportionment, but liability remained joint and several as to the plaintiff.  A defendant’s settlement reduced the liability of non-settling defendants.
§ With the continued trend toward comparative fault allocation and amid calls for tort reform, the twenty-first century trend, so far, is toward apportionment and away from joint liability.  The 2003 Uniform Apportionment Among Tortfeasors Act calls for apportionment and several liability only.  With several liability the rule, a defendant’s settlement has no effect on remaining liabilities.  Joint liability may be preserved among defendants engaged in joint activity or employer-employee relationships.
§ Generally, an “empty chair” may be represented in liability allocation, but the absent defendant does not suffer any real liability.  Defendants might be required to give advance notice to a plaintiff that they will argue for a fault allocation to a non-party. Strict liability and negligence liability are usually allocated on the same terms, but criminal actions and intentional torts are usually regarded as incompatible with strict and negligence fault allocations.
o    Types of Liability
·         Liability to third party when you didn’t commit the act:
§ Common design (joint enterprise) – does tortious act in concert w/ other pursuant to a common design
§ Gives

er active, Dow should recover 100% from employer under active-passive doctrine, instead x%, court reduces recovery of passive Dow
·         Primary/secondary (Theoretically separate from active/passive, but there is overlap.)
§ If a Δ’s negligence in an accident arises only out of operation of law, he may be considered a secondary actor, and may be able to pass off the entire loss. E.g. an employer who suffers a tort judgment b/c of respondent superior, could sue the negligent employee seeking indemnity.
·         Rule from Wrobel v. Trapani, IllApp, 1970. A negligent general contractor could seek indemnity from the sub-contractor who employed the injured party, under the active-passive doctrine.
·         Limits: NY cases, which demonstrate the limits of indemnity doctrine.
§ Rule from Dole v. Dow Chemical, 1972. Rejected active/passive factors; accepted “relative responsibility” framework (a move toward comparative apportionment principles) (Workers’ compensation)
§ Rule from Rogers v. Dorchester Associations, 1973. A case that shows that total indemnity still lives. The ct here emphasizes use of the doctrine in situations involving vicarious indemnity. NY statute that landlord can’t delegate obligation to another party.
o    Contribution: “a proportionate division of liability, equally split b/w a # of tortfeasors”
·         Rule from Hunt v. City Stores, Inc., LA SpCt, 1980. Dept store receives contribution of ½ of personal injury award from escalator manuf. and their insurer. Using cost-sharing, corrective justice policy arguments, Ct found them equally at fault. They both failed to warn. The manuf. could have built a better escalator, but store could have bought a better escalator.
§ Majority rule: regards whether negligence is predicated on strict liability or negligence, we’ll follow the same rule
§ Liability of the negligent tortfeasors for the results of what the intentional actor did is a diff. test: intentional tortfeasor might be a superseding cost, cutting off liability to the negligent tortfeasor
§ Ask whether the DF knew or should have known that they were creating a likely opportunity that a 3rd party would use
§ §11.03 Effect of Settlement on Apportionment
o    Settlement Issue
·         Problem: if one of a group of Δ’s settles with a plaintiff, should the settlement amount be subtracted from a jury award before the other Δ’s pay their share?
·         Answer/ Rule: NO. (At least in Arizona) 
§ Example – Roland v. Bernstein, CtApp AZ, 1991. In a malpractice case, the Π sued the doctor, the anesthesiologist and the hospital. The latter two settles for $700K. The AppCt would not subtract that amount from the final award: $1.965M, and ordered Bernstein to pay his share, 47%, or $923K.)
·         Policy question: Since the law favors settlement, does this rule encourage settlement?
§ In a comparative neg state →NO, they’ll pay the same amount as they would.
§ In a joint liability state → YES, an 80% responsible party could settle for half of the eventual award amount, and the other, 20% responsible party, would have to pay 100%.
o    Look at statutes on the Course Materials on TWEN
·         Arkansas (tracks the uniform act very closely)(middle one in time) – around for most of the 20th century until superseded in 2003
·         Georgia
·         New Uniform act of 2003: Growing trend for precision, which means fairness but also longer litigation.
o    The Role of Workers Comp
·         Problem re 3rd Party Indemnification
·         The “exclusivity clause” of most workers’ comp legislation prohibits employees from suing their employers, but they may sue 3rd parties. What happens when those 3rd parties seek indemnification from the employer?
·         Rule: Most jurisdictions say no, b/c of the strong policy arguments behind the “exclusivity clause.”
·         Worker’s comp immunity rules cuts broadly in favor of employees
§ A product manufacturer, ex maker of dangerous work place machines, is vulnerable to tort suit by employees of an employer that uses the machine, but it cannot sue that employer for its contribution to injury requiring use of unsafe machine.