TORTS WRIGGINS FALL 2014
Chapter 1: An Overview of Modern Tort Liability
Personal Injuries and Property Damage:
Tort law is concerned with liability for personal injuries and property damage.
Torts and Crimes
i. The same conduct can be both a tort and a crime. Key differences between the two are:
1. A tort is initiated by an individual; a crime is prosecuted by the state
2. Torts result in monetary award for victim; crime does not
3. Standard of proof is different.
i. Criminal: Reasonable Doubt
ii. Civil (torts): preponderance of evidence (more than 50%)
iii. Intermediate Standard: Clear and convincing evidence
Torts and Contracts
i. Conduct may also constitute both a breach of contract and a tort. Example: When a consumer is injured by a defective product that does not live up to its warranty.
ii. Whether a suit is cast in contract or in tort determines a number of important questions:
1. What types of defenses may be asserted
2. how damages will be calculated
Largely a Matter of State Common (judge-made) Law
i. Varies in important respects from one jurisdiction to another. Legislatures are becoming more involved in the field of torts.
Public Policy and the Costs of Accidents
i. Tort law is concerned with the costs of accidents in at least two important respects.
1. It seeks to allocate rationally and fairly the costs of past accidents by determining whether and in what amount the plaintiff is entitled to recover from the defendant.
2. Seeks to minimize the costs of future accidents by deterring persons from engaging in activities that are likely to give rise to harm.
ii. Competing Public Policies in Tort Law
1. Liability should be based on “fault”
2. Liability should be proportional to fault
3. Liability should be used to deter accidents
4. The costs of accidents should be spread broadly
5. The costs of accidents should be shifted to those best able to bear them
6. Those who benefit from dangerous activities should bear resulting losses
7. Tort law should foster predictability in human affairs
8. Tort law should facilitate economic growth and the pursuit of progress
9. Tort law should be administratively convenient and efficient, and should avoid intractable inquiries.
10. Tort law should promote individual responsibility and discourage the waste of resources
11. Courts should accord due deference to co-equal branches of the government.
12. Accident victims should be fully compensated
Three Categories of Tort Liability
All tortious conduct falls into one of three categories: intentionally inflicted injury, failure to exercise reasonable care, and conduct giving rise to strict liability.
Each of these three forms exists in every jurisdiction today.
Movement today to reform torts and make it harder to collect damages. Very controversial, but supporters of tort reform have been very successful.
A given course of injurious conduct may give rise to claims falling within one or more of the three categories of torts.
Outside of these three categories there is no tort liability.
Intentionally Inflicted Injuries
Vosburg v. Putney Supreme Court of Wisconsin, 1891
i. Boy accidentally, and very slightly, kicked another boy in a classroom. The boy who was kicked had sustained a previous injury to his leg and the kick aggravated that injury to a point where severe harm was done.
ii. Did the plaintiff in this case intend to harm the defendant? No, he didn’t. But he was liable for battery because intent to harm is not required—must only have intent to do what the law forbids (kick someone).
iii. Should defendant be held liable for the damages since a “normal” defendant (one without a previous injury) would not have suffered from his actions?
1. Eggshell Skull Rule: Take the plaintiff as is. If the P happens to have as skull a thin as an eggshell and suffers catastrophic loss as a result of something you do, you are liable for all the losses.
iv. Two ways to get rid of jurors
1. Challenge for Cause-good reason to disqualify.
2. Preemptory Grounds-gets a select number of disqualifications for no reason whatsoever.
Garratt v. Dailey, Supreme Court of Washington, 1955
i. Five year old boy moved chair from underneath lady as she was sitting down—can he be held liable for battery?
ii. He had the intent of making her fall on the ground and his purpose was to make her fall on the ground. Boy did not mean to hurt her but did know that she would fall if he moved the chair, so he was held liable.
iii. If boy had moved chair several minutes before lady sat down, he would not be guilty because she would have been careless in not checking to make sure the chair was still there before he sat down.
Failure to Exercise Care
Includes claims under the doctrines of negligence and recklessness
Negligence
i. Failure to exercise reasonable care under the circumstances
ii. It is conduct with creates an unreasonable risk of harm
iii. If a risk is unreasonable to be perceived as the result of an actor’s conduct, the actor must exercise due care to prevent the risk from coming to fruition.
iv. The concept of foreseeability plays a central role in negligence
v. The burden of proving negligence lies with the plaintiff, the party wishing to change the status quo
1. The mere fact that an accident has occurred and that harm has resulted is not a sufficient basis for the imposition of liability under negligence principles
vi. Doe v. Roe, Court of Appeal of California, 1990
Woman sued man for negligence because he transmitted herpes to her. Could not have sued for battery because the contact (sexual relations) was consensual. (Battery is intent to cause contact and unconsented or offensive touching of the plaintiff’s person or effects.) However, the consent could be revoked because he lied (defrauded) to her. The suit was for negligence however, not battery. He was negligent because he knew he was infected and took no precautions against infecting her. If his doctor had emphatically told him that he could not spread the disease when there were no outbreaks, he might not have been found negligent. Woman’s damages were reduced because it was later found she had contributory damages because she kind of knew that he had had relations with his female roommate who had an STD and thus the risk of him having one was great.
Recklessness
i. Is a more-blameworthy variety of tortious conduct than negligence
1. Though both involve the failure to exercise care
ii. Two definitions of recklessness
1. Objectively: it is an extreme lack of care
i. It exists if the risk of harm from the defendant’s conduct is totally disproportionate to the utility of that conduct
2. Subjectively: consists of conscious indifference to a known risk of serious harm
iii. Generally viewed more blameworthy than negligence but less blameworthy than intentionally harmful conduct
iv. Categorizing the defendant’s lack of care as recklessness rather than negligence may carry important consequence
1. e.g. Evidence of recklessness will support an action for deceit or an award for punitive damages
i. While proof of negligence is insufficient for those purposes
v. Cohen v. Petty, Court of Appeals of the District of Columbia, 1933
Man wrecked his car after becoming ill—passenger in the back seat suffers substantial injury by going through the roof of the car. She sued for negligence “Oh tree I feel sick”.
1. Was not held liable because he had no way of knowing that he might become ill, and therefore could not take any precautions against becoming ill and wrecking the car while driving.
2. Because there is no reason to foresee the danger, the failure to take precautions was not as failure to exercise due care
3. The injuries were the result of what amounted to an unavoidable accident, and therefore were not compensable
Contributory Negligence, Comparative Negligence, and Comparative Fault
i. Effect of Contributory Negligence
1. In olden days: Contributory Negligence was 100% negligence. Only applied in negligence suits and was a 100% bar to recovery. If someone who suffered harm was the least bit negligent, then they could not recover damages. As industrialization boomed, industries were never liable for harm to workers.
2. The rules changed in two stages: Comparative Negligence compares the defendant’s negligence to the plaintiff’s negligence. Contributory Negligence is no longer always a 100% bar.
3. 2 types of comparative negligence: pure and modified (50%)
a. Pure: if someone is 1/3 responsible for their harm, they can collect damages for 2/3 of the harm.
b. Modified (50%): if someone is found to be 40% negligent in their harm, they can collect 60% damages. However, if plaintiff is more responsible for their harm (more than 50%) then the defendant, then they cannot recover anything.
4. Comparative Fault- can be used as a defense to everything except an intentional tort.
Assumption of the Risk
i. Volenti non fit injuria
1. A person is not wronged by that to which he or she consents.
2. The principle that a person who knowingly and voluntarily risks danger cannot recover for any resulting injury.
iii. Assumption of risk:
1. Voluntary confrontation of a
2. Subjectively appreciated danger
3. With no expectation that defendant will exercise care
iv. Effect of Assumption of the Risk
1. At common law: AR (or its counterpart, consent) could be raised in any action and was a 100% bar to liability
2. Under comparative principles: AR is sometimes a 100% bar to liability and sometimes only reduces recovery (because in those cases it is “merged” with comparative negligence or comparative fault)
Strict Liability
Actions in which liability is imposed without regard to the actors state of mind or exercise of care.
Strict liability refers to a rule of law which dispenses with one or both of the two chief elements of any fault-based approach to compensation, namely forseeability and blameworthy conduct. Usually applies to inherently dangerous activities such as blasting with dynamite, nuclear energy facilities, etc. Strict liability is the rarity—things are generally referred to as negligence instead.
Strict Liability by Statute: Some legislative schemes provide for no-fault compensation. Example: The National Childhood Vaccine Injury Act which provides compensation for injuries caused by mandatory childhood vaccines while protecting vaccine makers from devastating l
for mental distress damages suffered by the insured.
iii. In determining whether an insurer has given consideration to the interests of the insured, the test is whether a prudent insurer without policy limits would have accepted the settlement offer.
iv. Policy goal: when you buy liability insurance, you should be less vulnerable but in her case she lost everything.
1. Send a message to insurance company
Misc. Facts about Torts
Remedies
i. Damages, injunctions, restitution, self-help
Realities
i. Settlement, cross-claims, contingent fees
Awards might be based not on what the plaintiff lost, but what the defendant gained. Someone who cuts across your property, thus saving transportation money, may have to pay the money saved to the one who owns the property that was trespassed on.
Restitution is awarded when there has been unjust enrichment—the civil wrong that is the tort is the unjust portion that makes a gain by the offender an unjust enrichment.
e. Tort Damages
i. Nominal
ii. Compensatory (aka actual)
a. Punitive (aka exemplary)
Chapter 2: Basic Intentional Torts
The Concept of Intent
State on Mind About Results
i. The Concept of Intent
1. Intent is a state of mind about consequences or results, and exactly what must be intended varies with the tort in issue.
2. Examples: False imprisonment requires intent to confine, trespass to land intent to be present at the place in question, and conversion, intent to exercise dominion and control over personal property.
ii. Two Varieties of Intent
1. Purpose
i. Depends upon the defendants subjective wishes and exists whenever the defendant acts with the purpose of causing the consequence which the law forbids.
2. Knowledge
i. Present if the defendant, regardless of subjective purposes, knows with substantial certainty that the act in question will cause the prohibited result.
ii. It means certainty for all practical purpose
Intent to Injure
Proof of intent to harm is not a prerequisite to intentional tort liability. The defendant may be held liable although intending nothing more than a practical joke.
Lambertson v. United States (meat hook case)
i. The intent that is necessary for battery is the intent to make contact, not the intent to do injury
Degrees of Probability
i. The difference between knowledge, recklessness, and negligence is a matter of degree.
1. If someone knows that something is certain or substantially certain to result from his action, and he does those actions anyway, then he is treated as if he purposefully and knowledgeably intended those consequences.
2. If there is less of a probability of those actions causing those consequences, then he is being merely reckless.
3. And if there was only a small chance of those actions causing those consequences, then he was negligent.
Motive
i. An individual’s motivation is not the deciding factor in whether or not a particular result was intended. (does not negate the fact that the act was done intentionally)
ii. While defendant’s motivation may be relevant on the question of mitigation of damages, it is not conclusive as to intent
Intentional Acts
i. The law almost never holds someone liable simply for performing an “intentional act” which caused harm.
ii. Intention has to do with result, not just the with “acts”
iii. A competent lawyer should never argue that a defendant committed an intentional tort on the sole grounds that the defendant “acted intentionally”
iv. Example: If someone fires a gun at a target and someone is sleeping in grass nearby without the shooters knowledge, and the bullet hits that sleeper, then the shooter is not liable of an intentional tort just because he performed the intentional act of shooting the gun.
Mistake and Intent
A mistake by the defendant concerning the facts surrounding an action is normally irrelevant to the question of intent.
i. Does not mean mistake is never relevant to the question whether the defendant intended to interfere with the person or property of another
