GOALS OF TORT LAW: Deter dangerous behavior; accident avoidance; compensate plaintiff; penalize the best risk avoider; spread the risk/cost; (all this gets to overall goal of safer world)
v Damages
Ø Just say what they are, it is good to give a value but jury will determine
Ø Punitive: just punishing, not based on outcome
§ Based on wealth and how much it will take to punish adequately
v Affirmative Defenses
Ø Burden of proof for these is on defendant, and has to plead in answer since affirmative
Ø This is not debating accusations, just saying even if negligent, no, or less, recovery because…
Ø Plaintiffs Fault
§ This is breach of duty of self protection
· Duty is assumed
· Breach means didn’t act reasonably to protect self
· Do have to show cause of course
§ Often called contributory fault/negligence
§ Have this for deterrence on both sides, maximize accident avoidance, sometimes plaintiff is also best risk avoider
§ Common Law RULE: if plaintiff at all at fault then case dead
§ Nowadays do COMPARATIVE FAULT: ask jury to decide how much plaintiffs fault contributed to damage and reduce award accordingly (combination of comparatively how negligent each was and how much each’s neg caused the harm
· Pure Comparative Fault: even if plaintiff 99% at fault could still recover for 1%
¨ But many states if greater than 50% at fault then no recovery
Ø Assumption of the Risk
§ Expressed
· Burden of proof on defendant to show free choice and choice bargained for (gotta prove there was consideration)
¨ Just cause in writing then doesn’t mean a done deal if nothing in exchange
· If in writing, then early on dismiss case, defendant in response to complaint moves for summary judgment
· If in writing called exculpatory clause/hold-harmless agreement
· So, with these have to Rule: decide 1) is it valid under contract law; 2) are we gonna uphold it under public policy concerns
· Dalury v SKI Ltd
¨ Rule: Rest __: Factors for validity of exculpatory clause
Ø Freely and Fairly Made
§ Key is if its ambiguous (ie is typing big enough, is it clear what your waiving (put in words right to negligence claim, be specific and obvious), where is it in the document)
§ Ambiguity will be construed against drafter of course
Ø Between parties of equal bargaining power
§ Obviously businesses always higher so to avoid this defendant just has to show that plaintiff made a conscious choice (so take it or leave it probably no good)
Ø Does agreement interfere with SOCIAL INTEREST
§ Looking at if upholding it interferes with goals of tort liability
§ Also looking at if defendants business is important to society
· Goes against defendant!
· If it is (or IF YOU INVITE PUBLIC FOR BUSINESS) then we know lots of public will be using your service and we probably don’t want the whole public getting hurt freely with no payout
¨ But that’s all business, so court basically says never disclaim duty
§ Bottom line question then honestly is if should be able to waive tort liability before the fact at all
¨ In case was a ski hill and hold harmless when buying ticket, court said fine except for public policy cause invited people to come pay for skiing so have to have duty
§ Implied
· Asking jury to infer by plaintiffs actions that knew risks and assumed them anyhow (this done often in inherently dangerous situations that obvious that plaintiff gets into anyhow)
· Murphy v SteepleChase (Flopper Case)
¨ So a guy was alleging negligent operation of Flopper
Ø Amusement park said doesn’t matter you saw people fallin all over, that was the draw of it, you assumed the risk, impliedly (that’s the affirm defense)
§ Court says Rule: danger so open and obvious, definitely assumed risk
§ And back in these days that was a complete bar
· But nowadays we would look at reasonableness of the assumption of the risk, cause we always assume at least a little risk
¨ Note: there is the possibility (if radical judge) of ruling flopper too dangerous to be endured so above doesn’t matter, gonna hold liable anyhow to get rid of flopper
Ø This is saying learned hand: burden t
whether believe)
· Bystander Liability
¨ Portee v Jaffee
Ø Rule: duty, scope of which is against emotional harm, extends to those not within the zone of danger, when negligence actually causes death or serious bodily injury to somebody who is a marital or intimate familial relation to the one not within the zone of danger (could say this gets to recognizing nat/prob in terms of proximate cause, but once realizing that judges said, oh shit, not a near miss so they aren’t even beneficiaries of duty, since we have control of duty, we’ll just say then in these cases they are a beneficiary)
§ And of course to recover have to show that the sight caused emo harm (split as to whether it must be evidenced by physical manifestations cause argument is that its so shocking we don’t need proof, of course emo harm)
Ø Mom saw son slowly die trapped in elevator door so recovers
¨ Some jurisdictions don’t recognize duty to bystanders
Ø To argue for or against
§ More payout is more deterrence
§ Compensate plaintiff for real harm (but does money actually compensate
§ in many cases its just some minor malfunction and sure injury is foreseeable but is such emo harm foreseeable?
§ Intentional Infliction (so not even worried about duty, really these actions under duty are just specific actions looking at and couche them in duty for some reason)
· Act
· Intent to cause emotional harm
· Actually does cause emo
· Harm
¨ Harm has to be SEVERE (if not I guess just go neg route)
· Also need extra element of OUTRAGE (shock factor, act was just horrid)
¨ Because have this limiter there is no limiter of physical manifestation
