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Torts
University of Pennsylvania School of Law
Klick, Jonathan

TORTS KLICK FALL 2016
 
 
HOW TO SURVIVE A KLICK POLICY QUESTION
 
 
Order of analysis
Do analysis from a fairness standpoint and from an administrative standpoint.
Timeframe for analysis: At expectation point (ex-ante) we should be concerned with probability and risk, how do we want our system to run (administration).  At the realization phase (ex-post) we should be worried about fairness and compensation.
 
Factors to consider in a Klick policy question
Expectation
What are the incentives?
To take more or less risk
To take more or less precaution
To settle
To litigate
What does this do to insurance?
What does this do to deterrence?
What should the law be doing?
What are the trade-offs?
What are the efficiencies?
 
Realization
How does this affect people on the margin? 
socially?
 
What are the trade-offs?                                                                                                      
What are the efficiencies?
 
 
 
ISsue Spotter Approach:
Step 1, write down times, Step 2: Call of the question
Can stack claims, Intentional Tort + Negligence + Emotional Distress
Examine parties and their relationships with each other
Here (rule) is satisfied because fact 1, fact 2,
Address everything that is controversial (Can kick it to the jury)
 
Negligence Claim
 
1. Duty: “The special relationship of X and Y creates a duty of care and obligation to (prevent injury by checking X or emphasizing Y risk. “
Custodial relationship
Teachers, Parents, Doctors, Coaches, Park Patrol, Security Guard
Common carrier
Airplane, bus driver, innkeeper
Employer/Employee, Principle/Agent [Vicarious liability] “Acting within the bounds of what he was employed to do, during work hours and at the place of employment, and was acting in the interests of EMPLOYER in selling his products”
Landowners, business owner, licensee
Invitee—Someone expressly invited onto property for business purposes
Highest level of duty owed
Licensee/Social Guest—Someone invited onto land as a friend who is not receiving a joint benefit as in a business setting.
Moderate level of duty owed—duty to warn f concealed dangers but not to inspect for dangers
Trespasser—Person who enters property without authorization
No duty owed to person except not to engage in willful conduct toward them or in the case of an attractive nuisance.
Affirmative Duties
If nothing else, “reasonable person”
Following statute
Minors/Children
The law recognizes that minors are deserving of extra protection
Held to the standard of a “reasonable child” of average mental ability for her age.
 
2. Breach:
Did not follow rules/procedures/protocols/statute/company policy
Rule may indicate “reasonableness” and while the rule is not a statute and therefore does not set a clear standard, it may be informative and help a jury find breach of duty.
Did not follow custom
Custom is not dispositive, it only offers some evidence of establishing duty
 
3. Causation
 
Proximate cause
FACT could foreseeably cause this type of danger, as PARTY wasn't an unexpected victim, nor were the harms outside the scope of risk.
Direct Result
Was plaintiff’s injury a direct result of defendant’s behavior or was there something that broke the chain of causation?Where there any intervening causes in the chain of events?
“Remoteness of INJURY/DAMAGE/HARM prohibits recovery by P”
Res Ipsa Loquitur
 
4. Defenses (Counter-Argument)
Statute: D can argue as a defense that the statute was not aimed at the type of harm that P suffered, or at protecting persons in P’s situation
Against institution of a rule/procedure: could result in discrimination
Administrability issues of a policy
Contributory Negligence
Varies by jurisdiction
Within the scope of the rules, not every foul/violation generates a tort claim
Assumption of risk “willingly assumed the risks since they were plain and obvious to any reasonable observer”
Intervening cause (though not a strong defense if foreseeable intervening cause)
Unforeseeable injury
Evidentiary concerns
D might assert that damages are speculative
Evidence demonstrating that the injury was foreseeable
 
5. Who wins/Do we want to find liability for D?
Incentivize their role “Creating liability for X is undesirable because…”
Volunteers… in general, we would like to encourage volunteerism, because of this, such volunteers will often enjoy broader liability shields than equivalent paid individuals.
Disincentivize their behavior “discouraging X is likely a good outcome”
Zero social value
 
6. Damages
Pecuniary (medical expenses including hospital bills and continuing care, loss of future income/earning capacity, lost wages,
must be reasonably certain, so child’s future wages/potential scholarship probably would not be awarded
Nonpecuniary (pain and suffering, loss of enjoyment of life, loss of consorti

$1 value is subjective, Bill Gates
Fairness – enforce what is fair/just. Counter: fairness for one party leads to injustice to the other party
Administrability—simple rules may be suboptimal but save transaction costs & lead to settlement. Counter: people may go for home run
Deterrence — raise cost of certain activity so people take less part in it. Don’t deter behavior totally, reach optional outcome
Rational Actors Model: People are rational and consider cost benefit. There is a sensitivity to change in liability
Consequential View: Don’t care about anything but efficiency (value/input) of a legal change
Pareto Efficiency: Efficient if nobody worse off and at least 1 person better off.  Counter: natural in trade
Hicks Kaldor Efficiency: Outcome is favored if group winners outweigh the group losers
Allocative Efficiency: People should invest until MC=MB, cost internalization (Klick’s view)
 
In analyzing a case, consider:
What characteristics about the parties should the actors have thought about? Are there any parties not mentioned?
Which parties are more deterrable? Which is more negligent?
What is the purpose of the law being applied? Do we want law to come out this way? Are we curbing social benefits?
Which rule is easier to administer? Which is more fair?
Are there other alternate enforcement mechanisms? If there are, the rule could lead to over deterrence.
 
Economic Scholars and their policies:
Bob Kuter: If you pick efficient rule over the inefficient one, you encourage compound growth
: Maximize society’s wealth. The primary concern should be effect on future parties. Judges are best at determining this.
: Inefficient rules create bigger losses to loser than gains to winner. Inefficient rules just won’t survive & naturally fade away.
: Least Cost Avoider Principle, whoever can avoid a harm more cheaply should do it
Coase Theorem: If a rule is inefficient, we’ll have bargaining around it. Don’t worry if court chose inefficient rule