TORTS
1. The Negligence Principle–
The most important habit to acquire is to go through the sequence of elements methodically in every case.
Be sure to look at the relationship between the plaintiff and the defendant and identify the appropriate duty to impose on the defendant. You must never assume that the defendant owes a duty of care. Even though that is usually the case, you must explain why a duty exists in each case.
Remember that the plaintiff must show actual cause (cause in fact) and proximate cause (legal cause), and you should discuss each of these elements.
A. The Central Concept–
1. The standard of Care– A party will not be deemed negligent if he has taken reasonable precautions to avoid predictable dangers. Each person owes a duty to behave as a reasonable person would under the same or similar circumstances.
A. U.S. v. Carroll Towing– There is a duty of care to protect others from harm when the burden of taking adequate precautions is less than the product of the probability of the resulting harm and the magnitude of the harm.
2. The Reasonable Person– A duty to act as a reasonable person would. The issue is not what the defendant believed, but how the reasonable person of ordinary prudence would have acted.
A. The standard remains the same– although the amount, and kind of care varies, the standard never varies. It is always whatever care the reasonable person would have exercised under the circumstances.
1. Application– Emergency– Certain conduct may be acceptable in emergency but not in nonemergency situations because the need for immediate action justifies acts that otherwise could be considered unreasonable.
2. Children– Minors are held to the standard of care that would be expected from child of like age, intelligence, and experience. They may be held to adult standard if engaged in a dangerous adult activity (driving).
3. Special knowledge and skills– Those engaged in a profession or trade are held to standard of care exercised by similar professionals in same or similar communities
4. Old people– held to the same reasonable standard as the rest of us.
B. The Roles of Judge and Jury–
1. In General– Unless reasonable minds could not differ on the point, the standard by which negligence is measured is for the jury to decide.
2. The Role of Custom– custome in the community is admissible as evidence of the standard of care owed, but it is never conclusive. The test remains whether the reasonable person would have so acted under the same circumstances. Custom is a way of saying what is reasonable. One may argue that custom is wrong, or that there isn’t enough evidence to establish custom.
3. The Role of Statutes– If the defendant violated, or failed to perform some statutory duty, it constitutes negligence per se.
A. Exception– If it is likely that the D will prevent more harm by breaking the statute then the presumption of negligence can be rebutted.
C. Proof of Negligence–
1. Direct evidence– Witness or incontrovertible facts
2. Circumstancial evidence– The main question here is whether there was enough evidence to put D on constructive notice of a dangerous condition.
A. Constructive notice– A defect must be visible and apparent and it must exist for a suffiecient length of time prior to the accident to permit the defendant to discover and remedy it.
3. Res ipsa loquitur– In certain cases, the very fact that a particular harm has occurred may itself tend to establish both parts of the breach requirement: What happened and that it was through the defendant’s unreasonable conduct. Then the law may permit an inference or a presumption that defendant was at fault. (The burden then shifts to D to rebut the presumption of negligence, or if inference the jury may choose to draw such an inference or not).
A. Essential Elements–
1. The accident must be of a type that normally does not occur in the absence of someone’s negligence. (i.e., barrels falling from a building).
2. The indicated source of negligence must be within the scope of a duty that the defendant owes the plaintiff.
A. P must show that the defendant was in exclusive control of the instrumentality that cause the harm to plaintiff.
3. It must appear that neither the plaintiff nor any third person contributed to or caused the plaintiff’s injuries. (Courts split on this). Courts usually hold that if it is more than one is must be a cohesive group. (Doctors and nurses).
B. Other factors–
1. Accessibility of evidence– if P cannot get to information, or can not prove negligence because of circumstance (unconscious).
D. The Special Case of Medical Malpractice–
1. Establishing a Standard– To prevail, the P must establish the particular standard of medical care that is required. Since the standard is measured in relation to professional understandings, the plaintiff must generally present expert testimony to establish the standard.
2. Informed consent– Doctors have a duty to disclose relevant information about benefits and risks inherent in proposed treatment, alternatives to that treatment, and the likely results if the patient remains untreated.
A. In informed consent cases, most courts hold that the patient must show that if properly informed neither the patient nor a reasonable person in similar circumstances would have undergone the procedure.
The Coase Theorem– The efficient outcome will result regardless of where the legal entitlement is placed, if there are no transaction costs. People will bargain to attain the results that benefit them most.
2. The Duty Requirement: Physical Injuries
A. Obligations to Others– If an individual is in a situation of dnager, should the law impose a duty on others to assist that person? Under general common law the answer is no. At least where the defendant was in on way responsible for that person’s injury or predicament. Rationale– Tort law is not concerned with purely moral obligations.
1. Exceptions–
A. Special relationship to plaintiff (act) – Must aid where there is a special relationship. e.g., family, employer-employee, host-guest, carrier-passenger, jailer-prisoner, common under taking etc.
1. There may be a duty to warn P of danger, but only if the guest is neither particularly vulnerable nor lacks the ability to protect themselves.
B. Duty where D undertakes to aid plaintiff (Good Samaritan obligation) – If the D voluntarily undertakes to aid the plaintiff, he must do so carefully. If D acts he owes a duty of reasonable care. (Special duty when you isolate the victim).
C. Affirmative Duty to Prevent harm– If special relationship then you have a duty to prevent harm, whether or not inflicted by another person. Special relationship (warn) – The D may have a duty to warn the victim of possible harm from another.
B. Obligation to Control the Conduct of Others– Nonfeasance– failure to control the conduct of third person over whom the D had the power to control.
1. Master-servant cases– employer is directly liable for failure to prevent employee’s toritous acts committed in her presence and for failure to exercise due care in hiring reliable employee, training employee, or supervising employee.
C. Landowners and Occupiers– Most states substitute a special duty of care for land occupiers in place of gerneral duty rule.
1. Trespassee–
A. No duty to unknown trespassers
B. If occupier knows or should know of trespasser’s presence there is a duty to warn of or make safe (i) artificial conditions involving risk of death or serious bodily harm; and (ii) all activities involving any risk of harm that the trespasser is unlikely to discover.
C. Child trespasser (attractive nuisance doctrine) – A child trespasser is a child so immature as to be unable to recognize the danger involved.
1. Duty– Where the land occupier discovers children trespassing or is charge with such knowledge, there is a duty owed to warn or protect them from artificial conditions involving risk of death or serious bodily harm, provided:
A. Place is one where children are known or likely to trespass.
B. Possessor knows
irth– 17 states recognize a wrongful birth action, but they are split as to whether parents can recover against a negligent D for the costs of raising and educating an unwanted child (e.g., where physician D negligently performs a vasectomy, or D pharmacy negligently sells diet tablets in place of oral contraceptives).
2. Damages–
A. Costs of raising a healthy child vs. costs of a disabled child.
B. Costs of raising child vs. costs of abortion.
C. Kid can’t get anything against the mother, but can against the doctor for being born deformed.
C. Economic Harm– Duty is the crucial issue. Generally, the plaintiff’s interest in protection from economic harm has been considered too remote for the imposition of a duty of due care.
1. Criteria for recovery of solely economic damages–
A. There is an awareness of what the stuff will be used for.
B. Reliance by a known party.
C. Some conduct linking the maker evincing understanding of the importance.
D. Defendant must be able to reasonably foresee the impending harm.
4. Causation
A. Cause in Fact–
1. Basic Doctrine– D’s conduct must be the cause in fact of injuries.
A. “But for” rule– If the P would not have ben injured but for D’s act, the act is a cuase in fact of the injury.
1. If the P would have sustained the same injury regardless of D’s act, the act is not the cause in fact of the injury and the D usually is not liable to the plaintiff. Thus, actual cause is missing where the plaintiff’s land is flooded because of D’s failure to maintain its railroad embankment inproper condition if it appears that the storm was severe enough to have caused the collapse of even a reasonably maintained embankment.
B. Other factors– The fact that P’s condition could have been caused by factors other than D’s negligence does not obligate P to prove that none of those factors was actually the cause. (Stubbs v. City of Rochester).
C. Loss of chance– Traditionally, a P couldn’t recover for a loss unless she could prove that she had lost something that she was more likely than not to have acquired or retained but for the defendant’s conduct.
1. Medical exception– in medical courts have begun to allow suits for losses of recovery chances that are less than 50% (Falcon v. Memorial Hospital). P could sue where D’s negligence reduced P’s chances of recovery with damages to be based on that lost percentage.
2. Increased risk– courts are split on recovery for an increased risk of contracting a disease. (The case we read in the book didn’t allow it).
A. Emotional Distress– When physical injury is present, courts allow recovery for fear of further harm, such as cancer. But where there is no present physical injury, recovery for fear about future developments is much less likely.
B. Medical Surveillance– You can recover for medical surveillance costs after you have been injured, to check if you will contract future disease. You have to visit Dr. more than you normally would (no recovery for just regular check ups).
2. An Introduction to Joint and Several Liability (§ 1116)–
A. Joint and Several Liability– P can choose any defendant and get the whole thing. Once chosen defendant can get whole or partial indemnity from other defendants.
