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Level of Blame
Intentional torts = on purpose
“Reasonable Person” (obj test).
1. Plaintiff must show that defendant acted with the intent to cause a particular consequence. (Battery requires an intent to batter plaintiff; trespass to chattels requires an intent to mess with plaintiff’s chattel; etc.).
2. “intends” the consequences of his conduct if (1) his purpose is to bring about those consequences; OR (2) he knows with substantial certainty (KSC) that the consequences will result from his actions. For KSC, it is that defendant knew that it would happen--not just that it “might” happen or even that there was a “high risk that it would” happen--and he did it anyway, even if plaintiff can’t prove that that was why he did it.
actor must have substantial certainty that the contact or apprehension will result from actions. Thus, negligence and recklessness are not battery.
Intent = purpose & knowledge to substantial certainty.
· Intent to bring about consequence, (e.g. battery- harmful and offensive touching).
· Specific Harm is sufficient (e.g. broken leg).
· Likewise, actions taken with actual knowledge that the consequences are substantially certain to follow are sufficient.
If you have intent = mistake is irrelevant.
You still need to show either purpose or knowledge to a substantial certainty. But if you can show intent, then mistake doesn’t change it.
does not vitiate intent. Again, so long as defendant had the requisite purpose or knowledge to a substantial certainty, it does not matter that he acted based on some insane perception of the world. This does not mean that insane people always have intent; it just means that people with intent might be basing it on something insane, and we don’t care.
If defendant intended to commit one of the five classic intentional torts (battery, assault, false imprisonment, trespass to land, and trespass to chattels) against A, and ends up committing it against B, defendant will be liable to B. Even though defendant did not intend to commit the tort against B, the intent to commit it against A transfers.
if defendant intended to commit one of the five classic intentional torts, but ended up committing a different one of the five, he will be liable for committing the other tort, because the intent to commit the first tort transfers
1) defendant acted with intent to cause a harmful or offensive touching to plaintiff’s person; AND
(2) That intentional act caused a harmful or offensive touching to plaintiff’s person.
If plaintiff is only harmed or offended because of some hypersensitivity, but defendant knew about that hypersensitivity in advance, then that will be considered harmful or offensive too. If defendant does not actually know about the hypersensitivity, though, then it is unlikely that plaintiff will be able to establish that defendant had intent.
o (1) defendant acted with an intent to cause a reasonable apprehension in plaintiff of an imminent battery; and
o (2) that intentional act caused plaintiff to suffer a reasonable apprehension of an imminent battery. “Apprehension” here means that plaintiff expected the imminent battery, not necessarily that he feared it.
reasonable” part of the test subsumes lots of other questions (e.g., if plaintiff was not actually in danger of suffering a battery, it might still be an assault if plaintiff reasonably thought otherwise).
If defendant is threatening a future battery, or is merely preparing to commit the battery, or is on his way to commit it, that is not enough. Plaintiff must be “in range” and defendant must be overtly acting.
o (1) Defendant acted with intent to confine or restrain someone in a bounded area; and
o (2) That act caused plaintiff to be knowingly confined or restrained in a bounded area without legal authority.
o Means of confinement or restraint might include: physical barriers, force or threat of force, (invalid) use of legal authority, and maybe even threat of damage or loss to reputation or property.
o Exemplarily damages can be awarded on top of actual damages.
*Mere refusal to admit is not false imprisonment.
o Future threats do not count.
Restatement and some states allow actual injury to substitute for knowledge of confinement. There is no majority rule on this point. Explain both on the exam. Ask. Injury can be nominal. IF you didn’t know you were confined you can sue if your injury came out of the confinement.
False imprisonment will not be found if plaintiff stayed in the space of her own volition. The point at which defendant’s actions amount to actual restraint may be hard to pin down: Threat of force or physical barriers are easy; threat of damage to reputation or property is tougher but at some point may rise to the level of FI. This leaves lots of discretion to the jury.
· (1) Extreme and outrageous conduct by the defendant;
· (2) With intent to cause plaintiff to suffer severe emotional distress (outrageous, extreme, or uncivilized);
· (3) Causing plaintiff severe emotional distress. Physical Manifestation* Courts set the bar for this tort high—not just by requiring extreme and outrageous conduct and severe emotional distress, but also by being much more likely to take cases away from juries.
*We require damages unlike other intentional torts.
In some jurisdictions (there is no majority rule), recklessness, a lower standard than intent, suffices for the intent element. Between this, the restrictions on transferred intent, and the significant damages requirement, IIED thus departs from the regular scheme of intentional torts in three important ways.
Trespass to Land
· (1) intent by defendant to physically invade real property;
· (2) physically invading plaintiff’s real property (plaintiff must be the possessor or, if there is no other possessor, the owner of the property);
· (3) without plaintiff’s authorization. The “invasion” can be by defendant’s person or by any other person or object that defendant causes to go onto the property.
includes invasion of small zones of air above the land and ground below (reasonable extent*). How far above or below this goes is subject to balancing that turns on the extent of the interference with the property interest. Balancing Test* Doesn’t matter if it’s an accident or a mistake.
Trespass to Chattels
· (1) intent by defendant to use or intermeddle with a chattel;
· (2) chattel is in possession of another;
· (3) this results in either
o (a) impairing the chattel’s condition, quality, or value;
o (b) depriving plaintiff of the use of the chattel for a substantial period of time or completely dispossessing plaintiff of the chattel; or
o (c) harm to plaintiff or a legally protected interest of plaintiff’s.
· Remedies: diminution in value.
*you can analyze both separately.
Exercising dominion over something = conversion
Trespass to chattels = use or intermeddle with it.
is an intentional exercise of dominion over a chattel that so seriously interferes with the right of the owner to control it that the defendant may justly be required to pay the plaintiff the full (prior) value of the chattel. *Mistake, good faith, and authorization (don’t give it back) don’t matter*
· Acquiring of it.
· Receiving it (after purchase from a thief).
· Damaging or altering it.
· Receiving it.
· Disposing of it (selling it).
· Misdelivering it .
· Refusing to surrender it.
Ø No transferred intent.
Ø Remedies: forced sale (defendant gets to keep it), full price or value.
Ø No double recovery (trespass to chattels and conversion).
Ø Good faith purchaser is protected if fraudulent transaction, but not in transaction for stolen chattel. Also, if you by a mistakenly sold item you may be protected if the merchant deals in goods of that kind.
In conversion cases, many states require the plaintiff to offer the defendant an opportunity to return the chattel at issue and some states may, if it is not damaged, require the plaintiff to take it back. Even without such requirements, though, a plaintiff obviously will have a hard time winning if defendant is willing to return the chattel undamaged.
“defenses to intentional torts.”
There are several “privileges” that a defendant can establish as an affirmative defense for an action that would otherwise be an intentional tort.
defendant is not liable for an otherwise tortious act if plaintiff consented to defendant’s act. Consent can be expressly spoken or written, but it can also be implied by context. Consent given by mistake is valid (defendant can plead it; plaintiff will lose) unless defendant induced the mistake (e.g., through misrepresentation, fraud, or duress) or otherwise should have known that plaintiff was giving consent based on a false pretense.
*Local custom can be consent.
In most states, consent to a criminal act is not valid (defendant cannot plead it). Some states disagree and allow consent to be pled by defendant in this circumstance (defendant can plead it; plaintiff will lose), though those states typically don’t if the criminal statute was intended to protect people in plaintiff’s position (e.g., statutory rape, in which case it is less appropriate to use the victim’s consent to prevent her recovery in tort).
defendant is not liable for an otherwise tortious act--usually battery--if
· (1) it was performed under a reasonable (could use mistake as a defense) belief by defendant that he is being or is about to be attacked; and
· (2) Constituted reasonable force.
o Reasonable force thus means two things: that it was reasonable to use force, and that the amount of force used was reasonable. *Retaliation is not allowed; verbal provocation is irrelevant. This is about a reasonable response to an imminent physical danger. Reasonable mistake does not vitiate the privilege.*
In self-defense, some states require retreat when doing so is reasonably safe, though even these states typically don’t require defendant to retreat from his or her home. Note that even when there is not a blanket retreat requirement, a jury might still find defendant acted unreasonably in a particular retreat case.
Defense of Others
Defense of others: If a third party would have been privileged to use self-defense, defendant is privileged to use reasonable force on the third party’s behalf.
Defense of Property
Defense of property: Defendant is privileged to use reasonable force to prevent the commission of a tort against his property (note: once the tort is complete, the rules for recovery of property apply). The amount of force that is reasonable will be less than that for self-defense, and deadly force will almost never be reasonable for property. You can’t eject someone out of your house into danger.
Recovery of Property
Defendant may commit an intentional tort against plaintiff if reasonably necessary to avoid injury or damage. Damage prevented > damage inflicted. The threatened damage must be
· (1) natural/external;
· (2) substantially more serious than the interference with plaintiff’s interests; and
· (3) Sudden, unexpected, and temporary. If it weren’t all of these things, the parties would be able to just negotiate. If defendant is acting to prevent threatened damage to the public at large (public necessity), the privilege is an absolute one and defendant need not pay for damages caused to plaintiff’s property. If defendant is acting to protect a personal interest (private necessity), he must compensate plaintiff for actual damage to plaintiff’s property, but under the law he is still “privileged” to act as he did.
Otherwise tortious acts may be rendered non-tortious if performed pursuant to legal authority. Similarly, the common law makes parents, teachers, wardens, etc., are permitted to use reasonable force to discipline their children, students, prisoners, etc., without being liable for intentional torts.
To establish liability for negligence, a plaintiff generally must prove that defendant had a duty to plaintiff to exercise some level of care, and breached that duty, causing damage to plaintiff. The risk needs to be unreasonable.
Learned Hand Test
Learned Hand Test
. For B in the Learned Hand Test, keep substitutes in mind (i.e., if there are alternative ways of obtaining the benefits, this will reduce B).
Constructive v. Actual Knowledge
C= Something you are expected to know. AK: Something you know for sure.
If you have specific superior knowledge you have to use it in addition to what a reasonable person would do.`
Reasonable Prudent Person
Children engaged in adult activities (usually things involving motorized vehicles or heavy equipment) are held to the (more objective) adult standard.
is not a defense to negligence--as with other cases involving general mental conditions, the insane are held to the standard of a person of ordinary intelligence, perception, and memory. Alzheimer’s is a physical characteristic debated.
. Liability for malpractice cannot be premised on a mere disagreement or a failure of technique or tactics.
Most medical malpractice cases define the professional standard as that which doctors in the same or a similar locality do. This allows for diversity in practices, and allows for appropriately lower standards in areas with fewer medical resources. Min Rule: Some states use a national standard instead. A problem with a local standard may be that the standard is wrong or dangerous.
a patient may sue if she is not told of a risk of injury from a medical procedure, she has the procedure, and she then suffers that injury. In most states, doctors are held to the regular malpractice duty of care for professionals: we require plaintiff to show that the ordinary level of professional care (i.e., the customary practice) mandates disclosure, and thus that the failure to disclose the risk is a breach of that duty. But a significant minority of states subscribe instead to a “reasonable patient” (subj. std.) rule (invented in the Canterbury case), under which a doctor must disclose material risks (i.e., those that a reasonable patient would want to know and would carefully consider). Right of self determination is big in this type of case.
after duty and breach have been found--to see whether disclosure would have changed a patient’s decision. Almost all states require another rule invented in the Canterbury case: plaintiff must make an objective showing (that a reasonable patient in plaintiff’s position, upon learning of the risk, would have changed
her mind and not had the procedure done) in addition to the usual subjective showing that the patient herself would have changed her mind had the disclosure occurred.
Negligence Per Se
Proving a violation of a criminal or regulatory statute or an administrative regulation (we’ll just oversimplify and say “statute” for short to cover all of these) may be sufficient to establish the duty and breach elements of negligence. This is often an easier way to do it than using the usual standard of ordinary care, etc. would be. It is called negligence per se. Remember that it is an alternative method of establishing negligence, not an exclusive one. That is, a plaintiff might be able to show a breach of both sorts of duty.
. Before the statute can be used to provide a duty in this way, the court must find that the injury at issue is of the sort that the statute meant to prevent, and that the victim is of the sort that the statute meant to protect. The court must also decide if the statute is appropriate for translation into a civil duty. Some factors they must consider include:
* whether it creates difficulty in proving causation;
* whether it creates a new duty;
* whether it provides liability that is too strict (i.e., too detached from defendant’s level of care);
* whether it provides for disproportionate liability;
* whether it represents too vague of a duty.
with a statute may be evidence of reasonable care, but it will not establish any sort of “non-negligence per se.”
5. Excused violation of statute = not negligence
List of Excuses
· Actor’s incapacity
· Reasonable diligence, yet still unable to comply
· He neither knows nor should know of the occasion for compliance (facts not law).
· Emergency not due to his own misconduct
· Compliance would involve greater risk of harm to the actor or others.
2. The plaintiff has the burden of proof and the burden of coming forward.
Res ipsa loquitur (last resort-if not established, you lose) (Pie Chart in Outline)
Causation is really two separate elements: You have to be able to make a reasonable inference.
a common test is to require a showing that but for the party’s tort (our examples will all involve negligence), the damages at issue would not have occurred. The converse argument in opposition would be that there is no causation-in-fact because even if the party had not committed the tort, the damages still would have occurred.
the negligence at issue must be something that, more abstractly, makes the result more likely. Put another way, a “but for” cause will not establish causation-in-fact if it is mere coincidence.
plaintiff must produce evidence to argue that defendant more likely than not caused the injury. While it may be relevant, evidence that defendant’s tort could possibly have caused the injury will not suffice by itself to get the case to a jury. Plaintiff needs some evidence that defendant’s tort did cause the injury. To fight plaintiff’s causation argument, however, defendant can use any evidence of possibility, probability, or what have you, that casts doubt on plaintiff’s explanations.
(match v engine fire) in causing the harm. This only happened in situation where there is mutual cancellation (forest fires). This is an alternative to the but-for test, and it avoids allowing a defendant who otherwise would be liable from getting out of it just because another defendant did something negligent too (and vice versa).
(e.g., two negligent shooters with no way of knowing which shot did the damage), the inability to sort out which it was will not necessarily deprive plaintiff of the ability to recover. Instead, a court may simply shift the burden of proof on causation to the multiple negligent defendants.
o Burden shifts to defendants to prove they didn’t produce drug. (manufacturers are in the best position to determine cause)
o Percentages are formed based upon % of market share.
o Public policy – an incentive for product safety.
1. is less a matter of fact and logic than it is a matter of how broadly the court wishes to allow a defendant to be held responsible for damages that he causes-in-fact. As we will see in some cases, some courts will express some such practical limitations on liability in terms of duty. If cause in fact is not established, then there is no need to look at it. *Lapse in time.
o Directness IC?
o Foreseeability (type of harm)
o Policy Decision
1. In other words, was it within the scope of the risk that defendant created? This will often be a jury question. In most states, the type of accident (e.g., negligently leaked gasoline bursting into flames and burning immediate bystanders) is what must be foreseeable, rather than the precise method of its occurrence (e.g., a stray match) or the magnitude of the injury (e.g., minor burns or fatal burns). The more foreseeable it is, the more likely defendant was the proximate cause.
· Foreseeable/natural ordinary result.
· Policy of houses – insurance.
· You must take the plaintiff as you find them. (Insanity case). Doesn’t matter if it occurred without the accident. Eggshell doctrine.
Scope of the risk extends to plaintiff in a positional sense. If defendant negligently crashes his car into another car, a pedestrian who gets mangled on the sidewalk next to the accident is within the scope of the risk but a pedestrian three blocks away who gets mangled by, say, shattering glass is less likely to be within the scope of risk.
· Zone of danger rule – duty of care owed to those within reasonable zone of danger.
· Type if harm
· Scope of risk that can be reasonably foreseen under the circumstances.
causes-in-fact of an injury that arise subsequent in time to defendant’s negligence--may or may not supersede defendant’s negligence. A “superseding cause” is an intervening cause that cuts off defendant’s responsibility or, more precisely, forces a conclusion that defendant’s negligence was not a proximate cause of the injury.
· Is IC foreseeable?
· Is the intervening cause independent? More dependant = less likely superseding
· Is it a criminal or intentionally tortious act?
· Examples on 341.
An intervening cause is more likely to be superseding. As usual, foreseeable does not mean foreseeable in the lay sense of the word, but rather deals with the scope of the risk. Applying this to intervening causes, we ask whether the occurrence of the intervening cause, or its result, is within the scope of risk of defendant’s negligence.
Be sure to define foreseeability with enough generality--the specific way that something occurred (gasoline-soaked rat catching on fire) may not be foreseeable, while the category of harm (gasoline fumes igniting, somehow, in a room with an open flame) is; it is only the latter that matters for foreseeability.
more likely to be superseding if it is independent of defendant’s negligence as opposed to flowing from it (though this is the least weighty of the factors for intervening causes). Assuming that causation-in-fact was already established, Defendant’s negligence will always “cause” the intervening act in the sense of allowing it to result in damages; what we mean by “dependence” here is something more. An independent intervening cause is something like an Act of God or the epileptic seizure in the 400° enamel case, which would have happened regardless of defendant’s negligence (even if it wouldn’t have led to the same result). A dependent intervening cause is one for which the defendant was the cause in fact. An easy case is a battery in which the intended target ducked and plaintiff was hit instead; because the ducking was caused by defendant’s initial tortious act, the ducking is a dependent intervening cause.
are not necessarily superseding causes, but they are very likely to be. There is plenty of interplay between these categories, though. In some cases, the criminal act is dependent (if persons are a result of the actions of the defendant, and thus unlikely to be held to be superseding. In some other cases there is so much foreseeability that the act is not superseding; this is generally when the crime is squarely within the scope of the risk (e.g., defendant negligently abandons passenger in a known high-crime area; passenger is mugged by third party; mugging does not supersede defendant’s negligence as proximate cause).
7. Keep in mind that in all of these cases, “more likely” does not mean “certain.” Foreseeable and dependent intervening causes may turn out to be superseding; extraordinary and independent ones may not.
As a matter of law, it is not a superseding cause that a reasonable rescuer will attempt to save defendant’s victim, or that the victim will attempt reasonable escape. It is not usually a superseding cause that the victim will seek medical treatment and suffer malpractice, or that a plaintiff will suffer a subsequent injury as a result of his defendant-caused weakened state. All of these points only cut off the one argument, though—plaintiff still must establish duty, breach, causation in fact, damages, and the rest of proximate cause (i.e., there may be other intervening causes as well, and these rules don’t affect them).
(e.g., social hosts and victims of their drunk-driving guests; plaintiffs who had not been conceived when the key injury was inflicted) in which there might otherwise be proximate cause but the courts in some states declare that there is not, as a matter of policy. Most of these cases can also be understood alternatively as restricting not proximate cause but duty. Majority rule: no liability for social hosts. *A bar would be or someone that sells to minors.
· Negligent entrustment – negligently letting someone borrow your car e.g.
Now rejected in the vast majority of states, contributory negligence precludes plaintiff from prevailing if he was at all a negligent cause of the injury, regardless of the extent of defendant’s negligence. Several exceptions are carved out, such as allowing plaintiff to recover if defendant had the last clear chance to prevent the injury, and treating plaintiff more forgivingly when determining if he or she was a proximate cause of his or her injury.
*Lasr Clear Chance Rule - party has last opportunity to avoid injury.
Most states now have some form of comparative negligence, whereby plaintiff can still recover if she is negligent, but has her award reduced by the percentage of her fault. Some states use pure comparative negligence, in which plaintiff can recover something even if he is 99% responsible. Most states, however, use “modified” comparative negligence, where plaintiff cannot recover anything if he or she is mostly at fault (more than 50% in some states, 50% or more in others). Modified comparative negligence does not function like contributory negligence at that point, though, because it does not use exceptions like last clear chance in such cases.
· Weigh the nature of the conduct and causal relationship of conduct and injuries to get %. (On test).
*Not a defense in intentional torts.
If plaintiff is injured but had contracted not to hold defendant responsible for such injuries, the contract will be enforced to bar suit, unless: (1) the contract contravenes public policy--this mainly includes contracts for essential services where plaintiff had no real bargaining power; (2) defendant’s tort was an intentional or wanton-and-willful one; (3) the injury was medical malpractice; or (4) the contract waived application of a safety statute.
plaintiff must have actual knowledge of the risk, have an appreciation of its magnitude, and must voluntarily encounter the risk. Encountering a risk while acting pursuant to a reasonable necessity means that the encounter was not voluntary and assumption of the risk does not apply. Assumption of the risk is all or nothing; if it applies, plaintiff’s claim is barred. For your amusement, watch this ad: http://www.youtube.com/watch?v=pDUIIl_OUuo. Is this IAR? Probably not.
and thus almost all states--have rejected the doctrine of implied assumption of the risk. Instead, they either say that defendant has no duty toward such a plaintiff, or they subsume the question into the general comparative negligence analysis. Remember: in almost every jurisdiction, IAR is not used anymore, so don’t talk about it unless you have some reason to believe that you are in one of the few jurisdictions where it still applies.
Analyze contributory negligence separate from implied assumption of the risk.
Look at scope of the risk.
are procedural rules limiting the time plaintiff has to file a lawsuit. The SOL is subject to waiver (i.e., it is a “use it or lose it” argument for defendant), and equitable tolling. An example of tolling is for latent injuries--most states begin the SOL clock only upon plaintiff’s constructive knowledge of the injury (reasonable person would have investigated) and defendant’s apparent negligent causation of it. (Some states require more, others less.) Other uses of tolling are where the victim is a minor child; and where defendant has fraudulently concealed the injury or his own conduct.
· Waiver exceptions
o Minor – when they reach majority
o Fraudulent Concealment
o Sometime is SOL doesn’t run until medical treatment is finished or series of acts. (River Pollution)
o You can’t say it was the idea that it was worth suing that lead you to sue.
allows suit for an entire continuous tort, starting the SOL count only when the tort ends.
give a firm outer bound for the timing of suits. They are not subject to the discovery rule or to waiver. They are substantive, where SOL is procedural. The clock for them starts when defendant performs the action in question, regardless of when the injury occurs or is discovered. SOL when injury occurs. SOR no matter when injury occurs.
Of those that haven’t, most eliminate it partially--for things like intentional torts, car accidents, or obvious exceptions where the beneficial relationship that immunity purports to protect is absent.
has been voluntarily waived, at least partially, by the government. (The federal government, like many states, has a general waiver of immunity but with numerous exceptions.) Where waiver applies, it allows suits against the government for negligence by public officials--under these waivers the suit is against the government, not the official. One common context in which many states waive immunity is for proprietary actions – not governmental.
· Exceptions to general waiver – same extent anyone else could be sued.
o Discretionary functions
o Strict Liability
o Punitive Damages
o Most Intentional Torts, except is w/ officers.
is generally limited to discretionary duties (social policies; political goals) (politics not tort law is where there is accountability). Immunity as to ministerial duties(operating procedures) (911) is rare.
Legislators and judges get absolute immunity for torts committed in the scope of their positions.
5. Other officials typically only get qualified “good faith” immunity, though some states give total immunity to these officials. In either case, the immunity for these other officials only extends to discretionary actions; there generally is no immunity at all for them for ministerial actions. (1983, Bivens?)
Joint and Several Liability
means that each defendant is liable for all the damages.
7. Three typical contexts in which joint and several liability are applied, if the jurisdiction allows J&S liability at all, are:
· (1) defendants acting in concert (drag racing);
· (2) vicarious liability; or (common duty not met by parties)(3) An indivisible harm. Joint and several liability makes much more sense when defendant have a right to contribution (which we will cover next time); the two are typically found together.(divide up harm amount defendants = damages)
has led to the scaling back of J&S liability in many states. The most important issue in J&S liability is who bears the risk of an insolvent defendant.
9. Many states still have J&S, many others restrict it only for non-economic damages; for defendants with less than a certain amount of fault; for certain torts; or for certain defendants (such as vicariously liable ones). While most states keep J&S liability for acting and concert and for vicarious liability, there is no majority rule as to whether J&S is kept for indivisible harms.
10. When apportioning fault for comparative negligence in J&S liability:
· It is a pro-plaintiff doctrine
· Allocability doesn’t mean divisibility
· Parties risk that the defendant won’t be able to pay (insolvent). This doctrine keeps burden off of plaintiff.
Uniform Comparative Fault Act
· Equitable Share of obligation
· Percentage of fault
· Uncollectable from a party = reallocation among the other parties (including plaintiff if he is at fault) according to their respective percentages of fault.
· Maj Rule Modified Negligence – plaintiff can’t recover if they are more than 50% liable.
· Standard negligence – you can recover no matter how negligent you are.
If plaintiff has already collected full payment from one joint tortfeasor through judgment or settlement, Plaintiff cannot proceed against any other of the joint tortfeasors. The settler may proceed against them, though, to obtain contribution.
if plaintiff settles with and releases one joint tortfeasor, this does not preclude suit against the other joint tortfeasors unless the release so specifies that it is a “full release.” The court will interpret the contract to determine the partialness of the satisfaction/release and whether it was in good faith.
you need to subtract the amount of the settlement then reduce it by the percentage of plaintiff’s fault and (on exam) vice versa.
If plaintiff has received money collateral source because of the injury (e.g., life insurance or a benefactor not involved in the injury), in most states this is not subtracted from a judgment as a partial satisfaction would be.
liable defendant who paid more than his fair share can seek contribution against other joint tortfeasors who paid less than their fair share. It is not required that plaintiff have sued these other joint tortfeasors, but it is required that plaintiff could have done so at some point (e.g., if a party is immune from plaintiff’s suit, defendant cannot seek contribution from that party).
· Most jurisdictions divide according to the relative fault of the parties.
· If statute of limitations has run it is possible for defendant to still seek contribution from someone else. Not in SOR.
defendant will not be held liable with another defendant who causes a subsequent, separate injury merely because it is difficult to separate out their respective damages. The first defendant will only be potentially liable for the second injury to the extent that plaintiff can prove that the first defendant’s tort caused it (in fact and proximately).
1. indivisible injury, the burden shifts to defendant to establish apportionability and thereby avoid J&S liability.2. To apportion damages, first reduce the damages into individual indivisible injuries. Then apportion liability separately for each one, so that no defendant pays for discrete injuries he or she did not cause. Apply J&S liability, if available, to applicable defendants and applicable injuries
Includes performing the contract improperly, but also lying about nonfeasance, fraudulently entering a contract with no intention of performing, or partial performance--can be addressed in a tort action too. One exception, though: in most situations, lawyers owe a duty only to their clients.
Misfeasance--which includes performing the contract improperly, but also lying about nonfeasance, fraudulently entering a contract with no intention of performing, or partial performance--can be addressed in a tort action too. One exception, though: in most situations, lawyers owe a duty only to their clients.
the burden shifts to defendant to establish apportionability and thereby avoid J&S liability.
We now say that you owe a duty to those who might foreseeably be injured by your negligent affirmative acts--what we’ve been saying about negligence all along this semester.
· Reasonable Action
· Duties need to be done non-negligently
· Good Samaritan Law for doctors. Limited liability via good faith.
, which can come from: (1) a special relationship between defendant and plaintiff (e.g., common carrier, custodian); or (2) a special relationship of control or responsibility between defendant and the third party (e.g., psychiatrist and patient who kills plaintiff, boss and worker who hurts customers). Once the duty applies, though, defendant only needs to be reasonable to avoid breach.
negligence case in which there are emotional damages but no physical harm), plaintiff no longer need to have a contemporaneous physical impact from the thing that upset them. However, if there are not contemporaneous physical injuries, the emotional reaction must manifest itself with definite and objective physical effects before plaintiff can recover. Additionally, it must be shown that a normal person would suffer an emotional reaction passing the same threshold (though once that is shown, plaintiff can recover for the entirety of his emotional reaction). Remember, though, that if there is contemporaneous physical harm, though, plaintiff can recover for the concomitant emotional harm without these extra showings.
· Toxic Torts: may work if you can pair it with the other elements of negligence and a reasonable fear.
many states require that plaintiff herself have been in the zone of danger (created by defendant) of physical injury. A strong trend, however, is for states to require instead that plaintiff witness the actual impact on the victim, be a close family member of the victim, and suffer more distress than a typical bystander would (the last factor is pretty much automatically covered by the second one). There is no majority rule. Both*
7. In most jurisdictions, defendant owes a duty of care to known or anticipated (frequent in limited area)(tolerated) trespassers. Jurisdictions vary as to what duty is owed--they range from a duty not to wantonly injure up to a duty of reasonable care, with many jurisdictions in between.
· Notice or anticipation of the trespasser
· If you don’t know there is no duty to anticipate.
· Moment of discovery – duty to not injure with active operations. (machinery in motion)
· You can’t wantonly injure someone.
· Ordinary Care.
is someone on defendant’s property for his own purpose, though it is too easy to dispute whose purpose is being served, so it is probably best just to be categorical here: licensees include social guests, solicitors, and basically anyone who is not an invitee (customer employee repairman). . Two parts of defendant’s duty to a licensee are (1) to not be willful or wanton, and (2) to warn of hidden dangers that are unknown to the licensee but actually known to defendant. A higher duty--reasonableness--is owed to an invitee. Ordinary Care/Active Operations
are business visitors: customers, employees, delivery, repair, etc. Note that despite the common use of the word “business” here, homeowners may have invitees too (e.g. delivery and repair), and some licensees are there for business purposes too (e.g., solicitors). The landowner owes invitees an unreduced duty—typically, ordinary care. *Public Bathroom* Invitee status has limits. If you stay past the basis of your invitee status, and/or go past the physical area of your invitee status, you may become a licensee (or maybe even a trespasser).
. The danger must be artificial. Defendant must have constructive knowledge that (1) children are likely to be on the premises (attracted by the attractive nuisance, which is not necessarily the thing that is dangerous); and (2) the dangerous condition must present a very unreasonable risk of serious bodily harm. The child must be unaware of the hazard or the level of risk it presents because of his or her youth. This only establishes duty, though: if the doctrine applies, defendant need only exercise reasonable care.
Many states have abolished the categories of licensee versus invitee and just apply a duty of reasonable care to both. There is no majority rule. Some states, though a clear minority, do so for trespasser versus non-trespasser too. But reasonableness still varies by context, so this does not set (what would otherwise be) trespassers and licensees on exactly the same footing as invitees.
o Public Employees Meter man, inspectors – invitees
o Police, Firefighters – licensees
§ No duty of ordinary care
§ Just duty to warn them of conditions that they are unlikely to discover.
5. In most jurisdictions, landlords owe no duty to guests of their tenants other than in certain exceptional situations. Taken together, we will say for our class that these exceptions translate into something like the landlord owing the guest the duty when the tenant doesn’t know about or lacks control over the danger. Min rule: In some states, this has been largely swept away and the landlord owes the general duty of reasonable care.
In most jurisdictions, landlords owe no duty to guests of their tenants other than in certain exceptional situations. Taken together, we will say for our class that these exceptions translate into something like the landlord owing the guest the duty when the tenant doesn’t know about or lacks control over the danger. Min rule: In some states, this has been largely swept away and the landlord owes the general duty of reasonable care.
LL no duty to 3rd party unless
·Unknown to tenant
Lessor contracts to repair with LL. Doesn’t fix it per agreement.
· Misfeascence with negligent repairs
· Common areas (controlled by LL)
· Premises open to the public
· Dangers to people off the land.
Assuming no transaction costs, the same final result in a system will occur regardless of the initial allocation of rights/duties/liability. In the real world, of course, there are transaction costs, so it makes sense to impose liability on the side with the lower transaction costs (the “least cost avoider”).
Tort law attempts to redress injury only through the rough method of lump-sum money damages.
Types of Damages
· Economic $
· Non-economic (fixed by $)pain and suffering, loss of life expectancy
Ø Nominal – low
Ø Punitive - punish and deter
Ø Compensatory – loss of consortium, loss of services,
· Compensable plaintiff?
· Caps on damages
award, on defendant’s motion, a court can order a new trial or remittitur (burden on defendant) (additur) (giving plaintiff the option of (A) accepting a lower, reasonable award, or (B) rejecting it and opting instead for a new trial). The standard for excessiveness is whether a reasonable jury could have awarded this amount. Courts might also put this as whether the award shocks the judicial conscience, or if the award was a result of passion or prejudice on the part of the jury. Ratio of punitive damages to compensatory damages >10 won’t be reasonable. Clear and convincing evidence.
typically require expert testimony--on likely future needs, counterfactual career paths, discount rates, etc. Experts also may testify on the reasonable value of services, for both past and future damages. Some courts fix the discount rate, usually between 0–3%. Others calculate it ad hoc, at least for special categories of damages where price changes vary from the whole economy.
generally are not taxable, but other compensatory damages are, and punitive damages generally are.
are based on fair market value--assuming an open market, voluntary sale, leisurely seller, and willing buyer--at time and place of injury. A reasonable additional amount is allowed for sentimental value for some items.
is to punish defendant and deter defendant and others from similar actions. In most states, punitives require plaintiff to prove wanton and willful conduct by defendant, by clear and convincing evidence. The jury generally weighs how bad the conduct was, and how effective a deterrent punitives would be. You can’t sue people for something they do out of state.
Many states do not allow insurance coverage for punitives. There is no majority rule.
Every State* Depending on the jurisdiction, either the personal representative of the estate or the next of kin bring the suit. Damages may be measured, respectively, from the decedent’s perspective (mainly lost earnings) or from the survivors’ (mainly lost support and services, and, in some states, emotional damages).
most states no longer terminate a cause of action upon the death of one of the parties. This applies both to cases in which the death is related to the issue of the suit, and those where it is not. In the former cases, some states combine survival and wrongful death to allow decedent to recover in a single case for losses and suffering before death as well as post-mortem damages. No punitive damages against dead people. If decdent is negligent comparative negligence applies.
An employer is liable for the tort of its employee committed in the scope of employment, regardless of whether the employer is free from tortious conduct itself. Don’t forget that the employee can be sued for the tort as well.
the employer may be liable under a regular negligence theory (e.g., negligent hiring or supervision) in addition to or instead of vicarious liability.
during work hours, but too far outside the scope of the enterprise—the employer is not liable. But the employer will be liable if it is a minor detour of a sort that the employer expects or tolerates.
when it was more directly within the scope of the employment than with negligence (e.g., battery by a bouncer at a bar).
unless the IC is doing something “non-delegable.” Examples of the latter are car safety (owner of car), property maintenance (not mentioned in class), building design (not mentioned in class), crimes, inherently dangerous activities (except if they are collateral- not recognizable as particularly likely to occur or needing special precautions), etc.
is vicariously liable for the torts of other participants, assuming the tortious act is within the scope of the enterprise. The vicariously liable person must generally have some control over the negligent party’s actions, as opposed to being a merely passive investor in the enterprise. The joint enterprise must also be a commercial one.
generally do not give rise to vicarious liability, but most states by statute or case law have applied vicarious liability to cars: The owner of a car is vicariously liable for the negligence committed by someone to whom he lent it. Family Car Doctrine* Rental Cars Exempt *
That is, if X would be charged with Y’s negligence vicariously were X a defendant, he will also be charged with Y’s negligence when he (X) is a plaintiff, and thus will have his recovery reduced or eliminated. X stands in Y’s shoes either way. This is generally limited, however, to vicarious liability relationships involving control (i.e. respondeat superior, non-delegable duties, and joint enterprise, but not car owner/lender). He would have it eliminated in Contributory negligence states and its limited bailment.
of known (or constructively known) vicious tendencies. The damages must not be from something collateral, like tripping over the animal. It must be from something “animal” about the animal. Comparative negligence is a defense, but not contributory negligence*
subjects the performer to strict liability for damages they cause. The determination of abnormal danger is generally based on Restatement § 520, which looks to the risk and magnitude of harm, location, commonness, value to the community, and—most importantly—whether reasonable care would not prevent serious harm. In other words, we perform a society-wide cost-benefit analysis for the activity in question, and if the benefits are significant but the costs are great and hard to avoid, we impose strict liability for the activity.
If serious damages would occur even with the exercise of reasonable care, then the negligence standard is not adequate. This gives the legislature and the courts two possible courses of action: (1) They can ban the activity in question (leading to criminal liability and perhaps “negligence per se” civil liability); (2) They can impose strict liability, which guarantees that all victims will be compensated (not just victims of unreasonable carelessness), but also allows the activity to continue. In other words, like negligence, strict liability allows defendant to choose whether or not it is “worth it” to engage in an activity. Under negligence, though, if an activity is “worth it” and defendant is careful enough, the victims of any accidents will be saddled with their own losses. Under strict liability, by contrast, the victims will be compensated.
Remember that even if defendant is subject to strict liability for engaging in an activity, plaintiff still must establish causation in fact, proximate cause, and damages before defendant will be liable. Proximate cause is harder to establish for strict liability than it is for negligence.
liability might be under a plain negligence theory, a warranty theory, or strict liability. Not all states allow all methods in all cases, but negligence is always available as a possibility.
, a seller or manufacturer impliedly warrants that an item sold is reasonably fit for the general purpose for which it is manufactured and sold. The manufacturer is strictly liable for damages caused when this warranty is broken. Privity is irrelevant. A consumer can bargain away this implied warranty (such as by buying a product with a very limited express warranty), but it must really be bargained away (that is, there must be some choice). In most states, though, implied warranty is not really used anymore.
defective products by eliminating all vestiges of contract theory. Under 402A, manufacturers were strictly liable for defective conditions in their products that were not materially altered after leaving manufacturer’s control (i.e., the defect must have been present when the product left the manufacturer’s hands).
the majority approach, for our purposes—distinguishes between manufacturing, design, and warning defects. It maintains strict liability for manufacturing defects (which are defects in which there is a material deviation from the intended design of a product), but not for design or warning defects. Negligence is available for all three types of defects, though.
can vitiate various aspects of a products liability claim. It can eliminate the notion that there is a defect (if the misuse is not reasonably foreseeable), or that there is proximate cause (if the misuse constitutes a superseding cause), and it can also be used to show comparative fault (if defendant is liable but plaintiff was negligent too).
There generally is no strict liability for defective products for providers of services (including those who sold a defective product, but only incidentally to selling the service). Remember, though, that the negligence remedy is always potentially around for all of these situations.
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