I. Tort Liability
A. Intentionally Inflicted Injuries
1. Purpose or knowledge (See Garrat v. Dailey, boy moving chair case)
2. An individual doesn’t have to intend to cause harm to be liable (See Vosburg v. Putney, boy in classroom kicked case)
B. Failure to Exercise Care
a. Failure to exercise reasonable care
b. Conduct that creates an unreasonable risk of harm
c. Foreseeability must be present. See Doe v. Roe, herpes case.
a. Extreme lack of care; a conscious indifference to a known risk of serious harm
C. Contributory Negligence (modified in recent years)
1. If the plaintiff’s failure to exercise care for self-protection contributed to their injury or loss, the defendant is completely absolved of liability
D. Comparative Negligence, there are two types
1. Pure, in which damages are reduced in proportion to the plaintiff’s fault
2. Modified, in which there is a 50% threshold. If the plaintiff’s negligence exceeds or equals 50%, there is a bar to recovery
E. Comparative Fault
1. Contributory negligence may be invoked to offset liability for recklessness or strict liability
F. Assumption of the Risk (completely bars recovery), exists if a person
1. Subjectively appreciated a danger,
2. Voluntarily chose to confront it, and
3. Either manifested a willingness to relieve the defendant of any obligation to exercise care or had no expectation that care would be exercised
G. Strict Liability
1. If foreseeability or blameworthy conduct is not present, but there is still liability, then it is strict. See Hossenlopp v. Cannon, dog bite case
II. Intentional Torts
A. Battery, must establish elements of:
1. Intent to make contact, can be established with either purpose or knowledge
a. Purpose: Subjective desire to cause a forbidden result
b. Knowledge: Substantial certainty that a forbidden result will occur
c. Transferred Intent: If the defendant intended to cause any one of the five-trespassory torts (assault, battery, false imprisonment, trespass to land, trespass to chattels), then the defendant “intended” to cause any invasion within that range of actions that befalls either the intended victim or a third party. See Keel v. Hainline, eraser fight case
2. Offensive or harmful contact of the plaintiff or their effects
a. An act is offensive if an ordinary person, unless the defendant knows the person has a peculiar sensitivity, would consider it be so
b. An act is harmful if pain or illness results, or if the structure or function of any part of the plaintiff’s body is altered in any way, even if the alteration causes no other harm
3. Absence of Consent
4. Awards for battery include:
a. Nominal damages (to vindicate the technical invasion of the plaintiff’s rights, if no actual injuries are proved)
b. Compensatory damages (to compensate the plaintiff for such things as lost wages, medical expenses, and pain and suffering)
c. Punitive or exemplary damages (to punish or make an example of the defendant for conduct that is particularly outrageous)
1. Intent to cause apprehension of contact, can be established with either purpose or knowledge
2. Present apparent ability to cause contact
a. See Western Union Telegraph Co. v. Hill, “fix her clock” case. He had the ability to reach over the counter and grab her
3. A threatening gesture by the defendant (in most instances)
a. Words are not usually enough to establish a cause of action (see Slocum v. Food Fair Stores of Florida, Inc.), an actual assault needs a gesture of harm
4. Well-grounded apprehension of imminent, unconsented contact
a. Apprehension must be aroused in the mind of a reasonable person
C. Intentional Infliction of Severe Emotional Distress (Outrage)
1. Intent to cause emotional distress or recklessness
2. Extreme and outrageous conduct
a. Must be “beyond all possible bounds of decency”; “atrocious”; “utterly intolerable in a civilized community”
3. Causation; and
4. Resulting severe emotional distress
a. Distress must be “so severe that no reasonable person could be expected to endure it.” See Harris v. Jones, GM-Employee stutter case
D. False Imprisonment
1. Intent to confine
a. The defendant must have intent. If someone accidentally locks a door, leaving a person inside somewhere, there is no false imprisonment. That would be a case of negligence.
2. Unconsented detention within boundaries fixed by the defendant
a. Fixed boundaries may be large or mobile. A car may be considered a boundary. However, if an area is so large, it is no longer confinement, but exclusion from one area.
3. Apparent lack of a reasonable exit
a. There must be no reasonable exit apparent. If the exit entails a likelihood of harm to the plaintiff, this is not a reasonable exit.
4. Use of unreasonable force, threat of force, or assertion of legal authority by the defendant
a. Force may be physical, as a defendant may have the ability to apply force. However, if the plaintiff is aware that there is no threat of force, there is no false imprisonment. Additionally, there is no false imprisonment if one unlawfully asserts legal authority (See Enright v. Groves, leash law case).
5. Harm to the plaintiff or knowledge by the plaintiff of the confinement
a. If actual harm is not present, then the plaintiff must be aware of their confinement. Confinement must be involuntary and unprivileged as to the outlook of the plaintiff (See Peterson v. Sorlien, cult brainwashing case).
E. Trespass to Land (Quare Clausum Fregit)
1. Intent on the part of the defendant to be present
a. Intent must be to be present on the land, but does not require intent to violate another’s land or rights.
2. Unconsented physical presence on, under, or above the land of another
a. A landowner must have exclusive possession of the land and object to the defendant’s presence on it.
F. Trespass to Chattels (De Bonis Asportatis), minor interference
1. Intent to affect the chattel
2. Minor interference with the plaintiff’s possessory interest by:
a. Dispossession, which may be committed by:
i. Taking without consent
ii. Obtaining by fraud or duress
iii. Barring access
iv. Completely destroying
v. Taking into the custody of the law
b. Use, or
c. Intermeddling (physical contact)
3. Absent dispossession, damage in the form of
a. Substantial loss of use
b. Impairment of condition, quality, or value. (See Compuserve v. Cyber Promotions, e-mail advertisements case).
G. Conversion, major interference
1. An intentional exercise of dominion and control over a chattel, which is more serious than trespass to chattels, and the actor may be required to pay the full value of the chattel. In determining whether the interference is serious enough to justify conversion, consider:
a. Extent and duration of dominion and control
b. Actor’s intent to assert a right inconsistent with the plaintiff’s right to control
c. Actor’s good faith (or bad faith, see Russell-Vaughn Ford v. Rouse, salesman lost keys case)
d. Extent and duration of the resulting interference
e. Harm done to the chattel
f. Inconvenience and expense caused
III. Defenses and Privileges
A. Consent (volenti non fit injuria = to one who is willing, no wrong is done)
1. Actual consent (consent in fact)
a. Plaintiff is willing for the conduct to occur
2. Apparent Consent (objective manifestations)
a. If a reasonable person would understand the plaintiff’s conduct to indicate willingness, there is consent (See O’Brien v. Cunard, vaccination case)
3. Implied Consent (policy-based)
a. Interests to be furthered by the invasion are more important than those that will be sacrificed. This is most often used in emergency situations (See Miller v. HCA, Inc., premature baby resuscitation case).
4. Capacity to consent
a. If the individual lacks the capacity to appreciate the nature, extent, and probably consequences of the decision, there is no consent. Lack of capacity may also arise from infancy, agedness, or medical disability. (See Davies v. Butler, Sundowners case).
5. Consent based on Mistake
a. Any mistake by the plaintiff as to a material fact, which is known by the defendant, destroys consent. (See DeMay v. Roberts, non-doctor in house case).
B. In General
a. Anyone other than the aggressor,
b. Who anticipates immediate physical harm
c. May use reasonable force in self-defense (See Silas v. Bowen, drunk customer shot in foot case).
2. Defense of Others
a. May be used by anyone that reasonably believes force is necessary to protect another from physical harm. (See Drabek v. Sabley, snowballs thrown at vehicle case).
3. Defense of Property
a. A possessor may use reasonable force to defend property, but not deadly force. (See Katko v. Briney, spring-gun farmhouse case).
4. Recapture of Chattels
a. A possessor may use reasonable, non-deadly force to recapture chattels that were wrongfully dispossessed by fraud or force if there is prompt discovery and fresh pursuit.
5. Privilege to Detain for Investigation (Shopkeeper’s Privilege)
a. Permits shopkeepers (See Dillard’s v. Silva)
i. To detain temporarily
ii. In or near their store
iii. One reasonably suspected of theft
iv. For purposes of reasonable investigation
6. Public Necessity
a. Anyone is privileged to use reasonable force necessary to avoid an imminent risk of greater harm to the community or many persons. (See Surroco v. Geary, blown up house case. See also Wegner v. Milwaukee Mutual Insurance, house destroyed by SWAT case).
7. Private Necessity
a. Same as public necessity, except the action only benefits one or a few persons, and the actor is liable for actual losses. (See Ploof v. Putnam, boat tied to dock on island case).
8. Unlawful Conduct (See Barker v. Kallash, pipe bomb case).
a. Can be a total bar to recovery if
i. The conduct constitutes a serious violation of the law, and
ii. The injuries for which recovery is sought were a direct result of that violation
A. Excessive Damages
1. Remittitur and Additur
a. A judge may examine an award for damages to determine if it is too high or too low. If the award is against the evidence, a judge may order a remittitur or additur. The plaintiff can then accept that change or attempt a new trial. (See Anderson v. Sears, Helen Britain burn case).
B. Pain and Suffering
1. Some courts allow “per diem” arguments while others consider awards in similar cases. “Day in the life” films are becoming increasingly common as evidence.
C. Hedonic Damages
1. Awards for the loss of ability to participate in activities such as sports, travel, and sexual relations. Not all jurisdictions recognize these.
D. Loss of Consortium
1. Provides compensation for expenses, lost companionship, and affection to:
a. A spouse (in all states)
b. Parents (in many states)
c. Children (in a few states)
d. Siblings (in a few states)
e. Grandparent in loco parentis (in one state)
f. Unmarried cohabitants (in one state)
E. Medical and Credit Monitoring
1. Recovery for the cost of future medical examinations intended to detect and treat diseases caused by exposure to toxic substances. (See Meyer ex rel. Coplin v. Fluor Corp., lead smelter pollution case).
2. Recovery for the cost of credit monitoring systems intended to detect and prevent fraud and identity theft.
F. Collateral-Source Rule
1. A defendant’s liability is not reduced because the plaintiff received compensation from a source independent of the tortfeasor. (See Helfend v. Southern California Rapid Transit District, plaintiff had already received compensation from insurance company).
G. Avoidable-Consequences Rule
1. A plaintiff may not recover for any aggravation of damages that could have been avoided by the exercise of reasonable care after the defendant committed the wrong. (See Zimmerman v. Ausland, injury could have been remedied by surgery) In determining what is reasonable, take into account:
b. Probability of success
H. Survival and Wrongful Death Actions
1. Survival statutes allow a claim to survive the death of either party. If the plaintiff dies, the claim is prosecuted by the estate
2. Wrongful death statutes permit certain persons to recover for losses sustained as a result of the death of another. (See Gonzalez v. New York City Housing Authority, murdered grandma case).
I. Loss of Earning Capacity
1. In determining earning capacity, take into account:
a. History of earnings
b. Plaintiff’s health and habits
c. Probability of employment due to age, economic conditions
2. Inflation should be taken into account in calculating both future earnings and discount rate, or left out of both. (See O’Shea v. Riverway Towing Co., lost future earnings are reduced to present value).
J. Taxation of Damages (not the same in all states)
1. Compensatory damages for personal injury are not taxed
2. Taxation of earnings on investment of a lump sum can be avoided by a structured settlement. Plaintiff will receive payments that are not taxable
3. In wrongful death cases, evidence of future tax liability is usually admitted. (See Hoyal v. Pioneer Sand Co., future tax rates are speculative).
4. Federal courts hold that damages for loss of future earnings are not taxable
K. Punitive Damages (exemplary damages)
1. Awarded to punish or make an example of the defendant
2. In some states, compensatory damages are required for punitive ones
3. Statutes may limit amount
4. Are not available for negligence
5. Factors in assessing punitive damages include:
a. Magnitude of risk
b. Awareness of danger
c. Duration of failure to act
d. Compliance with regulations
e. Purposeful creation of danger
f. Need for deterrence
g. Wealth of defendant
6. Ratio of punitive to compensatory damages may be excessive (See State Farm v. Campbell) depending on:
a. Reprehensibility of the conduct
b. Similar conduct in other cases
7. Cannot be based on:
a. Lawful conduct
b. Conduct outside the state
c. Hypothetical claims
V. Negligence: Basic Principles
1. Palsgraf v. Long Island Railroad Co.
a. The Palsgraf Duty Rule states that, “where there is a risk reasonably to be perceived, there is a duty to be obeyed
b. There was no foreseeability that the injury to Helen Palsgraf would occur, and therefore no duty to be obeyed
2. Nussbaum v. Lacopo (golf ball hit house case)
a. A person cannot be expected to guard against harm from events that are so unlikely to occur that the risk, although cognizable, would commonly be disregarded
3. Gulf Refining Co. v. Williams
a. If the risk was of sufficient weight and moment that a reasonable person would have avoided it, there is a duty for liability
4. United States v. Carroll Towing Co.
a. The Learned Hand Balancing Test states that conduct is negligent if the Burden of prevention is outweighed by the gravity of the Loss times the Probability of the harm. B < L x P
5. Utility vs. Risk formula
a. The utility of the defendant’s action and the burden and feasibility of taking preventative measures are weighed against the gravity of the threatened harm and the probability that such harm will ensue
b. Utility of a given course of conduct is a function of:
i. Social value of the interest the defendant seeks to advance (actions to prevent a cure or disease are important; recreational activities are perhaps less important)
ii. Likelihood that the conduct will advance the desired objective (Is the vaccine likely to be effective? In all cases or just a few?)
iii. Availability of alternatives
• Technical feasibility
• Economic and other costs
c. Gravity of a threatened harm is a function of:
i. Social value of the interest imperiled (Is there a threat to the life and health of persons or only to property interests?)
ii. Extent of the harm that is threatened (Will there be partial damage or complete destruction?)
iii. Number of persons affected
6. The Reasonable Person Standard
a. Allows the finder of fact to consider that a person under certain circumstances may act differently. It does not change the burden of care, but says, “under these circumstances, did that person act reasonably?”
b. Emergencies are a factor that should be considered in determining if the actor behaved reasonably (in most states)
c. Physical disabilities such as blindness, deafness, height, etc. do not change the standard of care
d. Religious beliefs are held to be a relevant factor, but they do not change the standard of care
e. Age is a relevant factor, and a lesser standard of care may be exercised by minors in certain situations
f. Mental deficiencies and insanity are generally disregarded, and the person is held liable for negligence unless the conduct measures up to that of a reasonable, prudent, full sane person. However, if the insanity is unexpected, then it could be a factor in determining liability
g. Those with superior knowledge, training, or skill (Professional Malpractice) must utilize these talents and foster predictability in their practice
h. Legal malpractice: an attorney implicitly represents that he or she possesses the ordinary degree of learning, skill, and ability and will use his or her best judgment and be diligent and careful. There is no liability for a mere error of judgment on which reasonable lawyers may differ, and there is no guarantee of success
i. Medical malpractice: The failure to obtain informed consent is professional negligence even if treatment is skillfully rendered
7. Judge-Made Standards of Care
a. In Helling v. Carey, the judge made a standard stating that “reasonable prudence” required a test to be given to detect glaucoma
8. Negligence Based on Violation of Statute
a. Does the statute set the standard of care?
i. If the legislature says it does
ii. The court says it does anyway
b. Was there an excuse for the violation?
c. What is the effect of an unexcused violation?
i. Negligence per se: jury is told what the statute requires and what, if anything, constitutes an acceptable excuse
ii. Prima facie negligence: jury is directed that, if the facts show there was a violation of statute but no excuse, it must conclude that the defendant’s conduct fell below the standard of care
iii. Some evidence of negligence: jury is instructed that even if it finds there has been an unexcused violation of statute, it is evidence of negligence
d. Did the violation cause the injury?
e. Can the defendant raise a defense?
9. Excused Violations of Statute, possible excuses include:
a. Incapacity to comply
b. Ignorance of the need to comply
c. Inability to comply despite diligence
e. Greater risk of harm
10. Special Standards of Care
a. Degrees of negligence: slight, ordinary, and gross. Distinctions between them are usually disregarded
VI. Proving Negligence
A. Direct evidence: evidence of the fact in question
1. Example: eyewitness testimony as to the identity of the assailant
B. Circumstantial evidence: evidence from which the fact in question may be inferred
1. Example: fingerprints, skid marks
2. Constructive notice
a. Liability for negligence depends on foreseeability, not notice
b. If the harm was not otherwise foreseeable, plaintiff must establish that the defendant had actual or constructive notice of the danger
c. Constructive notice is established by evidence that the danger existed so long that it should have been discovered through the exercise of reasonable care (banana peel cases)
3. Mode of operation
a. Focuses on the nature of the defendant’s business that gives rise to a substantial risk of injury to customers from slip and fall accidents (Sheehan v. Roche Brothers Supermarkets, grape slip and fall case)
C. Evidence of Custom
1. Custom does not determine the standard of care
2. Conformance with custom raises an inference of reasonableness
a. In The T.J. Hooper, the court found no custom of having radio receivers of tugboats, so not to have one was reasonable behavior
3. Departure from custom raises an inference of unreasonableness
D. Res Ipsa Loquitur (the thing speaks for itself)
1. A kind of circumstantial evidence from which breach and causation can be inferred
a. The event ordinarily does not occur in the absence of negligence
b. Facts indicating that the defendant’s conduct, more likely than not, was a cause of the event. Consider control and knowledge in determining if it was a cause
3. Multiple defendants
a. In Ybarra v. Spangard, the court found multiple defendants liable for negligence because the plaintiff was unconscious and could not identify which person caused his injury
4. Procedural effect of Res Ipsa Loquitur
a. Permissible inference (majority)
b. Presumption that shifts the burden of going forward with evidence
c. Presumption that shifts the burden of persuasion
E. Spoliation of Evidence
1. Some states permit an independent action
2. Others use presumptions or sanctions
3. In Trevio v. Ortega, the court found that the availability of other remedies made recognition of an independent tort action for spoliation unnecessary and undesirable
4. The choice of remedy should depend upon the culpability of the spoliator and the prejudice to the plaintiff
VII. Factual Causation
A. Defined as a factual inquiry into whether the defendant’s conduct precipitated the injury
B. Plaintiff normally has the burden of proof
C. Conduct is a “substantial factor” if it was:
1. Indispensable (“but for”)
2. Independently sufficient
3. Otherwise substantial
D. Overview of causation
1. Williams v. Steves Industries, Inc.
a. Plaintiff’s car was struck on the highway as a result of her negligence to fill it up with gas. The damages would not have occurred “but for” her negligence. This is an example of factual causation
E. Sine Qua Non: the “but for” test
1. Reynolds v. Texas and Pacific Railway Co.
a. Defendant’s conduct can never be a factual cause unless the chances of harm to the plaintiff have been multiplied
2. Kramer Service, Inc. v. Wilkins
a. One in a hundred chance that the contribution was a but-for cause is no basis for liability
3. Salzler v. Advanced Group 400
a. Causation cannot be speculative. Plaintiff could not identify her assailants and there was no factual causation
F. Independently sufficient causes and related problems
1. Anderson v. Minneapolis, St. P. & S.S.M. Ry. Co.
a. Any of three fires could have been responsible for burning plaintiff’s house. Any one of the fires alone would have caused a similar result. The “but for” test is not satisfied, so some other test is needed
G. Loss of Chance Rule
1. Doctrine that allows a plaintiff to recover damages by showing that the defendant was a substantial factor in causing the plaintiff to lose a significant chance of escaping the harm in question. This doctrine is not accepted by all states
2. Matsuyama v. Birnbaum
a. Doctor’s negligence deprived the plaintiff of a less-than-even chance of surviving cancer
H. Multiple fault and alternative liability
1. The burden of proof on factual causation shifts to the defendants if:
a. Each is shown to have acted tortiously
b. The actual wrongdoer is one of the small number of defendants before the court, and
c. The nature of the accident makes it impossible for the plaintiff to prove causation
2. Each defendant is subject to full liability for the plaintiff’s injuries, absent proof of factual causation. (Summers v. Tice, both defendants were liable because it could not be proved which shot hit the plaintiff)
I. Market-Share and Enterprise Liability
1. California version of Market-Share Liability: each defendant is liable for the part of the judgment proportional to their share of the market, unless they can prove that they did not produce the dosages which caused plaintiff’s injuries (Sindell v. Abbott Laboratories)
2. New York version of Market-Share Liability: defendants are liable for the judgment proportional to their share of the market. Even if they can prove that they did not produce the dosages that caused the plaintiff’s injuries, they are still liable. (Hymowitz v. Eli Lilly and Co.)
3. Enterprise liability: burden shifts to defendants if they jointly controlled the risk and it is virtually certain the responsible party is in court (Hall v. Dupont)
J. Liability based on concerted action
1. Civil conspiracy
a. An agreement between two or more persons;
b. To participate in an unlawful act, or in a lawful act in an unlawful manner;
c. An injury cause by an unlawful overt act performed by one of the parties to the agreement;
d. Which overt act was done pursuant to and in furtherance of the common scheme
e. Herman v. Wesgate, parties did not lay hands upon the plaintiff, but encouraged or otherwise aided the misconduct of the primary actors
a. The party whom the defendant aids must perform a wrongful act that causes and injury;
b. The defendant must be generally aware of his or her role as part of an overall illegal or tortious activity at the time the assistance is provided; and
c. The defendant must knowingly and substantially assist the principal violation
d. Halberstam v. Welch, defendant was liable because she assisted with her husband’s illegal activities and was aware of the illegal activity
1. Liability for encouragement of one to do a wrongful act
VIII. Proximate Causation
A. Defined as a policy inquiry into whether it is fair to impose liability on a defendant whose conduct was a factual cause
B. Directness and Remoteness
1. Direct causation view: retrospective approach that holds that liability extends to any harm which flows in a continuous stream from the actor’s tortious conduct
1. Prospective approach limiting liability to foreseeable damages
2. Wagon Mound No. 1
a. Defendants were not held liable because they could not foresee that the oil could be set afire when spread on water
3. Wagon Mound No. 2
a. Defendants were held liable because there was a remote possibility that the harm could be foreseen
4. The “Eggshell Skull” Doctrine
a. McCahill v. New York Transp. Co. (delirium tremens case). If a plaintiff suffers any foreseeable injury, even a trivial one, the defendant is liable for all physical consequences, even unforeseeable injuries, so long as they do not stem from superseding causes
5. Manner of Occurrence and Kind and Extent of Harm
a. Merhi v. Becker (drunk picnic case). The precise manner of harm does not need to be foreseen. A risk of physical harm was present and that was enough to make the defendant liable
b. Kinsman No. 1. The full extent of the physical harm was not seen, but the defendants were still held liable for damages to the plaintiff
c. Kinsman No. 2. The relationship of the plaintiff’s damages to the defendants’ negligence was “too tenuous and remote” for liability
D. Result within the Risk
1. DiPonzio v. Riordan
a. The defendant was not liable because the plaintiff’s injuries did not fall within the scope of risks presented by the defendant’s negligence
E. Intervening and Superseding Causes
1. Intervening Cause: a force which comes into play after the tortious conduct of the defendant, and which participates along with the defendant’s conduct in causing injury to the plaintiff
2. Superseding Cause: a type of intervening force which breaks the chain of proximate causation between the defendant’s negligence and the plaintiff’s harm
3. Foreseeable End Results
a. Derdiarian v. Felix Contracting Corp. The defendant was liable because they negligently failed to put up barriers that would have prevented the plaintiff’s injuries. It was not a superseding cause because it was the general sort of harm foreseeable
4. Intervening Acts
a. Spears v. Coffee. The defendant was not liable because other defendant’s actions were a superseding cause. Second defendant’s actions were not foreseeable.
5. Rescue Doctrine
a. Altamuro v. Milner Hotel. One who imperils his own life for the sake of rescuing another from imminent danger is not chargeable with contributory negligence. If the life of the rescued person was endangered by the defendant’s negligence, the rescuer may recover for the injuries that he suffered from the defendant in consequence of his intervention
F. Shifting Responsibilities
1. If a defendant creates a risk of harm to a plaintiff, it is irrelevant that a third person fails to prevent that harm. The omission of the third party is not superseding cause and the defendant will be held liable for complications that could have been avoided by the third party. However, the duty can be passed to a third person in certain situations.
2. Goar v. Village of Stephen
a. A contract provided that duty passed to the Village rather than the company that installed the electrical lines. Therefore, the Village was held liable
3. Bailey v. Lewis Farm, Inc.
a. The original owner of a trailer was held liable for negligently maintaining the axle when he possessed it. The sale of a dangerous instrumentality to another ordinarily does not relieve the seller of liability for injuries caused to third persons after the sale.