GOWDER – TORTS – FALL 2017
NEGLIGENCE
Duty of Care
When and to Whom is a duty of care owed
Vague/fuzzy, which allows doctrinal wiggle room for judges
court can get specific or broad
Foreseeability is an essential component – D owes a duty of care to all reasonably (objective/reasonable person standard) foreseeable Ps for all reasonably foreseeable harm
Previous act with no negative results, does not imply no duty for the same future acts; in fact, it can show that you knew the behavior was risky, and therefore you had a duty to not do it (Weirum v. RKO General, Inc. radio show case)
If reasonable foreseeability that you could incite a third party to act negligent, you could have a duty to not act (Weirum v. RKO General, Inc.)
Duty is usually question of law; foreseeability is usually question of facts
How careful do you need to be?
If you are creating a hazard (Weirum v. RKO General, Inc.) vs. the hazard being incidental (Kubert v. Colonna, where D sent a text, and even if she knew he was driving, had no “knowledge or special reason to know” that D would actually read the text while driving)
Just because someone else has a duty, does not mean you don’t (even if other’s is greater Kubert v. Colonna)
Duty when pressured to accede to criminal’s demands (Boyd v. Racine Currency Exchange teller didn’t give the criminal money and criminal shot patron)
foreseeability alone does not impose duty
businesses do have duty of reasonable care of invitees’ safety and must take precautions
when in an actual situation, however, individual is not obligated to accede
if it encourages criminal behavior (policy)
if it does not (disabled man case), D could be held to have a duty
if there is no guarantee criminal will do what he promises by acceding
balance of proprietary interest vs. interest of human life (bowling alley case)
Duty to rescue
generally no duty to rescue (head in puddle example)
exception if there is special relationship; “person has custody under circumstances where P deprived of normal opportunities to protect himself”
common carriers, innkeepers, landlord, stores. possessors of land open to the public, schools, employers, jailers, day-care providers
possibly friends (Farwell v. Keaton drunk fight; guy left in backseat)
no exception if D did not: hold power over P’s welfare or receive financial gain, and P either: would not reasonably expect any protection or reasonably should be well aware of the dangers (Herman v. Harper boatowner didn’t warn about shallow water)
exception when you create the harm
some jx say only if you were negligent
some jx say even innocent behavior obligates you (South v. Amtrak train driver didn’t want to get blood on his jacket, so didn’t cover up P)
exception for psychotherapists – they must warn third parties who might be in danger from one of their patients
always duty to avoid affirmative acts which may make the situation worse
starting, then stopping aid (by starting, you discourage others from helping)
gross negligence in assisting
Good Samaritan Laws
for those that try to “rescue”, they will not be held liable for further harm unless they act with gross negligence
some states cover strangers; some only medical personnel
transporting likely to be immune from suit (Swenson v. Waseca Mutual lady hit by semi turning around, after helping injured snowmobiler)
four states have compelled Samaritan laws – must render aid in some circumstances
More on reasonable person standard
In Vaughan v. Menlove, D argued he was using best judgment when leaving hay near neighbor’s property (which ended up catching fire and burning P’s cottages down), but judge instructed jury to use objective (reasonable person) standard
although designed to be objective, it can be what’s reasonable within that community – jury (of peers, i.e. community) would have made a judgment on what they considered a reasonable person (Vaughan v. Menlove, the local community at the time probably understood the propensity of damp hay to catch fire, but doubtful 12 bigwig CEOs would, especially in this day and age) BUT at the same time, this does NOT mean the same thing as judging someone on what he/she would’ve thought was reasonable
Policy reasons for using reasonable person include:
letting people know what the law expects, so they can act accordingly
it ties up the court system less (thus less money, and more efficiency)
may seem hard on the D, but subjective would be hard on P. Between two “innocent” parties, who should suffer the loss; if someone is just a bumbling idiot, should we just excuse them going around causing losses to others (A: no)
In some instances the reasonable person standard is adjusted (Exceptions)
physical limitations – generally courts will consider physical but not cognitive limitations (e.g. what would reasonable blind person have done)
ON THE OTHER HAND, a sudden mental aberration can be an excuse to not find breach; (Breunig v. American Family Insurance Co. lady had known schizophrenia, and had a hallucination (Batman) while driving)
HOWEVER, if the person has foreseeability of reasonable risk (e.g. you knes for years you have epilepsy and attacks can come on at any time, if you have one while driving and cause damage) you likely breached your duty (Breunig v. American Family Insurance Co.)
policy reasons for holding a permanently insane person liable are:
again, if there are two “innocent people”, who should bear the loss
to induce those interested in his/her estate to restrain and control him
the fear that insanity pleas would get out of control
If a person has superior knowledge or skills, the standard raises (lowers?); if a NASCAR driver crashes into someone, that person can argue that the NASCAR driver should have used his superior driving skills to avoid the crash
Children – quite subjective – IN appeals court says “standard of care expected of a child is measured by reasonable child of similar (not only) age, (but also), knowledge, judgment, and experience under similar conditions and circumstances
exception to this, if child is performing an adult activity
some courts say adult activity is one predominantly done by adults (e.g. driving)
some courts say adult activity is associated with the level of danger (e.g. golf)
Negligence Per Se
using standard of care from a statute or regulation
give P “free pass” on the element of breach of the duty of care
can be used if it passes the “class-of-risk/class-of-person” test”
does the injury fall under the kind of risk the statute was designed to cover
does the plaintiff fall under the kind of persons the statute was designed to protect
in Gorris v. Scott (sheep falling overboard), P sued under Contagious Disease Act – CoP was met (animals {or people who owned animals, i.e. Gorris}), but CoR was not – the Act was designed to protect against animal exposure to disease, and moreso to protect people of UK from infected animals coming into the country
for it to work, not only must D have committed it, but there has to be direct causal link between committing it (breach) and the injury (i.e. STILL HAVE TO ESTABLISH PROXIMATE CAUSE)
in Martin v. Herzog (buggy), D was driving over the speed limit (up to jury to decide if actually (proximately) caused the accident )
can use excuses for violating
complying would be more dangerous than violating (broke down car walking wrong way example)
inability to comply despite attempt to do so
emergency circumstances UNLESS emergency was caused by D
even if using an excuse, you must still use reasonable care
compliance with statute/regulation does not necessarily excuse behavior – P can still argue that reasonable person standard of care required more than just what the statute required; put another way, statute is the floor, not the ceiling
for D, it does not give free pass, but it can be an affirmative defense to show P’s contributory or comparative negligence
in Martin v. Herzog (buggy case), P was not using lights (violating local ordinance), new trial was ordered so jury could decide if P’s negligence per se contributed (was there causation) to accident
Custom – the habitual way of doing things (in a community)
can be evidence for the jury (of what reasonable person would’ve done), but IS NOT dispositive
in T.J. Hooper the bargemen’s custom was not using radio receivers, yet they were still found negligent, since a reasonable person would say they should’ve had them (they were cheap and would’ve been the difference in injury being caused)
custom can lag; in T.J. Hooper, radio receivers hadn’t widely “caught-on”, but Ds knew about them and should’ve been using them
a practice that is customary tends to show that it is a practicable and well-known means of reducing risk
established custom can reflect the amalgamated judgment of a community
professional-malpractice negligence is different – custom of doctors, lawyers, etc. sets the standard of reasonable care and replaces reasonable care standard
Res Ipsa Loquitor (“the thing speaks for itself”)
P can prevail on the breach element, by showing that EVEN THOUGH he can’t prove how D was negligent (no specific evidence), it was obvious the D was negligent SOMEHOW (Byrne v. Boadle falling barrel case).
two requirements
accident was likely negligence (i.e. likely a breach of the duty of care)
accident was likely the conduct of the defendant
in some (stricter) courts, there is a third requirement – proof that the instrumentality of harm was under D’s excl
irth was in the line of events that led to you running over a guy (but proximate cause will help avoid these silly things)
Plaintiff can sue any and all causers
Must be proved by a preponderance of evidence – more likely than not
if breach was a substantial (as opposed to a mere possibility) cause of increased risk of harm (as opposed to an obvious cause of a harm itself), and the harm actually happened, it’s up to the jury to determine if the “loss-of-a-chance” was substantial, i.e. caused the harm (Beswick v. CareStat, where D’s breach of duty to not respond [due to not having a certified ambulance crew] increased the odds of P’s husband dying enough to cause the death, despite him only having a 34% chance of surviving even without their breach)
there are two questions present here
is the reduction a cause (i.e. substantial factor)
is the reduction an injury (i.e. is lessened chance of survival an injury)
what is the harm caused by the breach
death itself (Beswick court said this; Herskovits v. Group Health majority opinion also said this)
even if the original chance of living is less than 50%, a jury could still find causation if dr.’s actions were a substantial factor in the death
for policy reasons, doctors shouldn’t be able to use this excuse or else they could be as negligent as they want where patient had less than 50% chance
decision would be Dr.’s negligence caused death, or it did not
loss of a chance to survive (dissent in Herskovits said this) – P does not have to show negligence caused death or didn’t, but only has to show that a substantial chance was lost (P had 30% chance to live? – P only has to show P lost that 30% (as opposed to the negligence actually caused death)
similarly, if patient’s survival odds went from 30% to 10%, loss of chance applies (and jury can award partial damages based on that % loss)
loss in this case could be calculated as original minus new % (30-10 = 20%), and thus P could get 20% of total damages
if patient died it would be the whole loss of chance (here, 30%)
could be calculated as new being a % of the old (1.0 – 10/30 = 67%), and thus P could get 33% of total damages
could be calculated using (what Prof. calls) “what-would-you-pay” approach (what would a person pay to have that increased % back)
could be calculated by the jury (unguided approach) – judge can say “jury, whatever you think is appropriate” (and then lawyers will likely argue their approaches to the jury)
under (the old) traditional doctrine, either 100% or 0% damages would have been awarded (either the loss caused death or not)
substantial factor is ambiguous and fuzzy, and seems to stand in for court’s intuitive sense of justice
“Multiplicity” Issues (multiple actors breached, leading to harm)
multiple necessary causes
each one in the chain can be held liable – in Jarvis v. J.I. Case Co., where there was a pipe/backhoe explosion, P sued the pipe maker, the solvent (used on the pipe) maker, the backhoe manufacturer, and the backhoe’s engine manufacturer – all were necessary (but-for) causes of the harm
multiple sufficient causes
exception to “but-for” test, but actual causation test will be considered met
generally each of the original causers can be held fully liable individually (i.e. they don’t necessarily just split the cost of damages)
shifts burden of proof from plaintiff to defendants
Merged Fires – where two actual causes (each of which could breach duty of care) would each have caused injury, but they came together before causing the injury – fires or perhaps chemicals in a lab
each cause needs to substantially contribute
if one of the causes was overwhelmingly “bigger” than the other, the (much) lesser causer may be found not liable – e.g. small fire but exploding nuclear plant “swallows” it
if one of the causes was “natural”, the man-made causer may be immune to liability (Kingston v. Chicago where this was seemingly indicated – i.e. court said maybe)
