TORTS II
KUTNER
SPRING 2012
A. Harm to intangible interests
Rule- No liability for pure economic loss under negligence law
Exceptions:
· Special Relationship- professional to client (Caltex Oil case- operator aware of pipeline and directly dep.)
· Negligent Misrepresentation
Policy- (1) Pandora’s box- unlimited liability and litigation (whereas physical injury is limited in scope and nature)
(2) Proximate/Casual Link- between decrease in sales & D’s negligence
(3) Potential liability for D- Unpredictable and heavy burden on D’s conduct
(4) Risk Allocation- businesses should just be risk of doing business in system rather than shift burden to other
Examples/Hypos
· P has property damage- loss of revenue from property damage
· Person injured and can’t work- income from employment
· Medical Bills
Cases
Just v. Arrington Construction Co.
Facts: P suing D because of loss of flow of customers’ b/c D didn’t uphold K restrictions. No cause of action lies against a defendant who suffers only pure economic loss (need physical injury)
Peter v. San Francisco
Facts: P alleges that that school district was negligent in failing to provide adequate instruction.
Held that duty of care based on several factors not met in this case. Factors for establishing new duty: (1) Workability of Rule
B. Harm without Impact
Impact Rule: Damages for severe mental shock arising from mere sudden terror without actual physical injury are not recoverable
-No physical impact = no Cause of action
-No duty to prevent injury without impact
Zone of Danger Rule-If P In danger of physical impact as well, may recover (without impact)
a) P located near scene of accident
b) Direct emotional impact
c) Close Relation between individual injured and P (unmarried partners?)
Contemporaneous Observation Rule
If P personally perceives the incident does not need to be w/in Zone of impact- (i.e. seeing car from far away, hearing screams)
Policy Rationale:
Impact Rule: (1) Insufficient Medical proof (2) Stare’ Decisis (3) “Pandora’s Box
Restatment Rule – basically negates all three as policy rationales- people injured should be entitled to relief
Zone of Danger Rule- D owes a duty to bystander’s b/c within area of risk created (Cardozo approach)
Cases
Bosley v. Andrews
Facts: P suffered heart failure after being rushed at by bull. No physical impact. Held there was no liability
Niederman v. Brodsky
Facts: D negligently crashed car, hitting P’s son but not P. P suffered heart failure led to hospitalization.
Held- Abondened impact doctrine and allowed actually feard impact to be a COA
Yandrich v. Radic
Facts: P’s son died in car accident. Father not there to witness but committed suicide later when he heard.
Held: P must have contemporaneous observation – needed to personally perceive injury
C. Emotional Distress
Rule- There must be actual physical harm suffered as a result of the emotional distress (some cases allow serious emotional distress to count (i.e. debilitating)
· Examples: Heart attack, miscarriage, mental injuries etc.
· Must have owed a duty and the result be foreseeable
· Evidence of emotional distress
Exceptions- (1) Death Telegram Rule (2) Negligent interference with dead bodies
Cases
Espinosa v. Beverley Hospital
Facts: P given wrong child after giving birth. Court held there was no physical injury so no cause of action
Molien v. Kaiser Foundation Hospitals
Facts: D negligently diagnosed wife with syphilis. Wife told husband. Alleged mental suffering and loss of consortium
Held- established negligent infliction of emotional distress
-Argument that hospital did not owe duty of care to husband because not a patient (but this likely fails)
Damages
A. Personal Injuries
Types: (1) Nominal – to vindicate right (2) Compensatory- financial equivalent of loss/harm (3) Punitive – awarded to punish
Facts: Generally one lump sum paid taking into account inflation, present value etc.
Rules:
Single Recovery Rule – P must seek all damages and compensation at one trial
Maximum Recovery rule
(1) Past physical and mental pain;
(2) Future physical and mental pain
(3) Future Medical Expenses
(4) Loss of earning capacity
(5) Permanent disability and disfigurement
Collateral Source Rule- payments, gratuitous services or services provided at a discount are disregarded in damage calculate
a) Policy- P should benefit from this, not tortfeasor because claimant bought/earned/was given benefits
a. D- argues this is a windfall, P gets double recovery
b) Exceptions
a. To rebut P testimony
b. Show P attributed condition to something else
c. P continued to work (etc.)
Cases
Anderson v. Sears
Facts: P and daughter injured in house fire caused by D’s defective heater. D appealed damage award. Held – court applied max. recovery rule, found jurys award w/in max allowed
Montgomery Ward v. Anderson
Facts- P fell in D’s store and negotiated medical expenses down. Collateral source ruled prevented P’s discount from being included in the damages calculation
B. Harm to Property Interests
Rule- damages are equal to the difference between value in property before and after the harm
(Not affected by sentimental attachment)
Compensates for all proximately caused damages (whether anticipated or not)
Avoidable Consequences-
Mitigating Damages- P required to take reasonable measures to minimize (not a duty but will be deducted)
(1) Narrow View: It is required to find P unreasonable to find duty to mitigate
(2) Broad View- Alternatives (choices w/in bounds of reason) that make more sense.
Medical Decisions – Generally not failure to mitigate unless very low risk (emphasis on free will of one’s body)
*religious beliefs generally not considered
Koplin v. Quade
Facts- D’s bull crossed onto P’s property and mated w/ her thorough-bred heifer. Held that the true measure of damages diff. between value of heifer to P before and after trespass.
Darbishire v. Warran
Facts- P sued D for amount it cost to repair car. Car worth much less. Held- duty to mitigate damages.
Albert v. Monarch
Facts- P suffered personal injury. Chose not to have surgery, which increased medical costs. Held- cost of choice on P, no failure to mitigate in choosing to avoid surgery unless (like here) risk very low.
C. Punitive Damages
Purposes
· Held pay for litigation
· Deter bad behavior/make an example of others
· Compensatory damages too low, but punitive makes it worthwhile to bring suti
Characteristics
w- generally (1) reduce damages and then (2) subtract settlement
*Can reallocate fault among D’s if 1 defendant becomes insolvent
Cases
Case: McIntyre v. Ballentine
Facts: Car accident – both P and D were drunk.
Holding: Adopts comparative negligence – description of development of comparative negligence law.
Case: Coney v. J.L.G. Industries
Facts: P died while operating construction equipment. D argues contributory negligence on behalf of P and employer.
Holding: Comparative negligence does not eliminate joint and several liability.
Case: Bartlett v. New Mexico Welding Supply
Facts: Car accident caused by unknown driver.
Holding: Comparative negligence applied, thereby eliminating joint and several liability – extreme position.
Case: Lemos v. Eichel
Facts: Awarded damages for motorcycle accident.
Holding: Apply P’s % reduction first to damage award then divide among Ds or subtract settlement award.
C. Assumption of Risk
Rule- Showing P knew of risk and put himself in the danger anyway
Express- P expressly agrees in advance that D is under no obligation of care for him and shall not be liable for consequences of conduct which would otherwise be negligent
(1) Express agreement within the risk assumed
(2) Contract agreement enforceable (i.e. bargained for exchange no duress etc.)
Implied-Factors:
(1) Actual Knowledge of a particular risk (is the risk inherent to the activity?)
(2) Appreciation of the magnitude
(3) Voluntary Encountering of the risk
· Awareness of risk is not enough- need consent
· Violente non fit injuria- to the person who is willing there is no legal injury
o Even if P aware and voluntarily exposed himself not enough (still need *consent*)
Primary v. Secondary
Primary- D owed no duty to P
Secondary- D could be found to have breached duty of care but P knew of and accepted risk
· Common case- employees and unsafe working conditions= general AOR
Cases
Hildebrand v. Millard
Facts- P drove a construction vehicle where it partially intruded into a driving area; D told p he ought to move it; car ran into construction vehicle which in turn crushed P:
Held- No AOR b/c did not consent to any danger by placing construction vehicle where he did. (Possibly contrib neg)
Rush v. Commercial Realty co.
Facts- P fell through floor while trying to gain access to bathroom.
Held- that there was no AOR because no other reasonable option for P to gain access to bathroom.
Keegan v. Anchor Inns, Inc.
D was replacing planks on boardwalk; P proceeded across boardwalk. In attempt to avoid plank stepped on nail and fell in hole
Held- AOR cannot coexist with contrib. neg. AOR only present if evidence of consent or waiver
