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Torts
University of North Carolina School of Law
Saver, Richard S.

 
Torts Long Outline – UNC Law – Saver – December 2015
 
Introductory Issues
I.      Categories of Torts: Strict Liability, Negligence, Intentional
II.    Types of Harm
A.    Personal injury (physical, property, etc.) battery, assault, etc
B.    Non-personal injury (economic harm, reputational harm)  business interruption, defamation
 
III.   Institutional Issues
A.    Jury: Makes fundamental determination was there negligence – rarely overruled
B.    Insurance: Availability of insurance affects cause of action selection
C.   Contingency Fee: Attorney often works for a percentage of client’s ultimate recovery
 
IV.  Perspectives on Torts
A.    Moral: we should only hold parties liable when they have the ability to force consequences and chose poorly -> should not punish just for having cause the harmful conflict, but that you were able to foresee and prevent
B.    Economic perspective – where the measures necessary to avert the accident would have consumed excessive resources, there is no occasion to condemn the defendant for not having taken them – cost benefit of (possible) cost of accident and cost of prevention
C.   Historical/Institutional – jury/insurance/contingency fees – ABA restrictions
 
V.    Politics of Torts: a) Populist b) Conservative c) Social Democrat
A.    Populist – tort system functions well -> sympathetic to plaintiffs and the injured fighting against large businesses
B.    Conservative -> pro-business, tort system places unneeded cost on business, passed onto all of us through high prices as consumers, lawyers as ambulance chasers (profits)
C.   Social Democrats – Cut down role of tort system in regulating risk – delegate more to regulatory agencies – governmental compensation or social welfare insurance policies – lost income, etc – narrow focus and more closer to government
 
VI.  Goals of Tort Law
A.    Deterrence: Give incentive not to act negligently, but not too much
B.    Compensation: help recovering and loss spreading, not a full safety net
C.   Loss Spreading: Helps spread costs throughout society not burden individuals
D.   Standards of Conduct: What does it mean to be a reasonable member of society?
E.    Redress of Social Grievances – everyone has equal access to system (large to small)
F.    Corrective Justice – Court signals that there was a wrong done – even out imbalance
G.   Check on New Technology – ensure incentives and deterrences on society’s evolution
 
VII.  Damages
A.    Single-Judgment Rule: Injured plaintiff gets one shot and one shot only to recover damages – Encourages plaintiff to try to recover for all possible damages – creates stability for insurance markets – better testimony, peace of mind for both parties
B.    Types:
1.    Intangible — emotional, speculative, etc – hard to point out exact damages
2.    Tangible — medical expenses, physical therapy, known losses, etc
 
VIII.         Possible Plaintiffs
A.    Survival Statutes – brought by estate of victim – injuries up to point of death
B.    Wrongful death statutes – Brought by dependents of victim to represent own interests – not mutually exclusive, claims can be brought by same person
 
IX.  Possible Defendants
A.    Respondent superior – employer liable for employees actions (apply Birkner test)
B.    Independent contractors – employer not responsible – IC controls condition of work
1.    Exception: When principal hires independent contractor to perform inherently dangerous activity (can’t contract against) – public policy exception
 
X.    Christensen v. Swenson – Respondent superior (vicarious liability) applies when employee is acting within scope of their employment (pg. 18)
A.    Birkner Three Factors to determine if within scope (Majority Common Law Rule):
1.    Employee’s conduct must be of general kind of employment
2.    Must occur within hours and spatial bounds of employment
3.    Conduct must be motivated, at least in part, by the purpose of serving the employer’s interest (mutual benefit category)
B.    Hypo: Uber driver – apply Birkner factors – vicarious liability applies to employees, but not independent contractors -> control own conditions of work
 
The Negligence Principle
 
XI.  Brown v. Kendall: defendant trying to hit dog with stick hits plaintiff in the eye
A.    Duty to exercise ordinary care, not extraordinary – only requires reasonable care
 
XII.  Adams v. Bullock: Kid hits trolley cable with wire while walking across bridge
A.    Predictive likelihood was low, not violating any other law, conforming to industry custom/practice, no other warning signs, no need for extraordinary care, used reasonable care
 
XIII.         U.S. v. Carroll Towing Co.: Tug breaks loose, hit barge, barge eventually sinks
A.    First application of Hand Formula by Cardozo – Burden = Probability times Loss
B.    Bargee found negligent under formula – care based on community expectations too
 
XIV.        Reasonable Person Standard
A.    Legal Fiction, Objective/Subjective, WWEMD, Children and Vicarious Liability
1.    What would an ordinary, average person do in the same circumstances?
2.    For children, adult standard is not used – look at reasonable child of similar capacity
3.    Under 7, no negligence – 7-14 negligence not assumed but rebuttable – 14+ = adult
4.    Hypo: Hunting range accident – 12 year old accidentally shoots plaintiff who is walking across field with a white flag – responsibility in activities that are inherently dangerous
5.    Parents are not vicariously liable for actions of children – negligent entrustment can be found, but high bar – children are usually judgment proof
B.    Adjustments: don’t adjust for elderly, gender, race, etc. (prevent stereotypes)
1.    Common Carriers (Common Law: adjust standard upward)
2.    Superior Skill (Adjust upwards) – has skills, must exercise skills held
3.    Physical/Mental Adjustments
a)    Adjust for physical disabilities -> able to be noticed and adjusted for
b)    Tort law is skittish about adjusting for mental – Common law: no adjustment
C.   Bethel v. New York City Transit Authority: NY court of appeals rejected higher                              standard for common carriers (pg. 49) – usually held to upmost care standard
 

’t have evidence to satisfy burden of proof (instrumentality under the sole control of the defendant)
D.   Burden of Proof: On plaintiff to prove with real bonafide evidence
E.    Burden of Persuasion: After evidence entered, jury must find for defendant if too close to call so plaintiff has burden to persuade
F.    McDougald v. Perry – tire flies off trailer and hits plaintiff windshield – rusty chain
1.     Two Factors for Res Ipsa (Sometimes Three):
a)    (1) Instrumentality under the sole control of the defendant
b)    (2) Accident wouldn’t have occurred but for the negligence of the defendant
c)    (3) Plaintiff wasn’t contributory negligent (implicit factor)
G.   Ybarra v. Spangard –  plaintiff has operation – awakes with partial paralysis and pain – hard case to prove because he was unconscious – courts have used right of control instead of exclusive control when multiple defendants (smoke out)
 
XX.Medical Malpractice
A.    Custom = can be conclusive – historical circle of silence made recovery hard
B.    Defining Relevant Custom – multiple tests exist
1.    Same Locality – not often used, compared against same doctors in area
2.    Same or Similar Locality (Most commonly used) – expands geographic limits
3.    National standard – modern medicine isn’t different based on geography
4.    Experts often used to determine custom and reasonable care/behavior
 
XXI.        Informed Consent
A.    Historical Origins, Disclosure Standards (reasonable patient or physician), NC Approach, Scope of Disclosure (Material information and alternatives)
B.    Informed consent is a tug and pull between doctor and patient
C.   Matthies v. Mastomonaco – doctor didn’t tell elderly patient full range of possible treatment options for broken hip – patient filed informed consent claim
D.   Informed consent requires giving information about all medically reasonable options – applies to both invasive and non-invasive procedures
E.    Two Tests Exist for informed consent – split 50/50 in jurisdictions
1.    Reasonable Patient standard – all reasonable options about material risks
2.    Reasonable Physician – doctor has superior knowledge, doctor only has to disclose any material risks that any reasonable physician would reveal
a)    Reasonable Physician relies on expert testimony for standard determination
F.    Exceptions in Emergencies
1.    Therapeutic information disclosure itself would be so harmful to patient that disclosure is not required – example: trauma situations