Professional Documents
Culture Documents
SPRING 2013 1
INTENTIONAL
TORTS
GENERAL
DUTY
NOT
TO
INTEND
HARM
TO
OTHERS
BATTERY
− PHYSICAL
CONTACT
Cases
− Vosburg
Rule:
Single
Intent—Must
intend
the
contact,
don’t
have
Vosburg
to
intend
the
harm
− Restatement:
Dual
Intent—Intend
the
Contact
and
the
Harm
− Thin
Skull/Thin
Shin:
liable
for
all
bodily
harm
to
P,
even
if
it
was
unreasonable,
as
long
as
it
was
foreseeable
that
there
would
be
Policy
some
harm
Social
Justice
Corrective
Justice
Single
Intent
Easier
to
Prove
Punitive
Damages
ASSAULT
− NO
PHYSICAL
CONTACT
Cases
− Rule: Mere
words
are
not
enough.
Context
matters.
Tuberville
− Do
not
need
fear,
just
apprehension
and
anticipation
Brower
− Key
Issues:
Immediate
and
Extra
Sensitive
P
I.
de.
S
Policy
Private
Attorney
General
INTENTIONAL
INFLICTION
OF
EMOTIONAL
DISTRESS
− Rule
–
Wilkinson:
Extreme
and
outrageous
conduct
which
causes
Cases
physical
harm
or
mental
distress
creates
a
valid
cause
of
action
Wilkinson
v.
Downton
Westboro
Church
− Two
Requirements:
(1) Extreme
outrageousness
of
defendant’s
conduct
Policy
(2) Severity
of
plaintiff’s
distress
Judicial
Economy
Rules
vs.
Standards
WHEN
DO
INTENTIONAL
TORTS
MATTER?
1. Establishing
a
record
for
repeat
offenders
(public
record/safety)
2. 2A
Compensatory
damages
(bodily)
–
intentional
may
create
sympathy
for
P
→
higher
damages
3. 2B
Pain
and
suffering
compensatory
damages
–
intentionality
increases
4. Punitive
damages:
usually
not
in
negligence
since
depends
on
reprehensibility
5. Contributory
negligence
–
“trump
card”
–
what
you
did
is
intentional
–
worse
comparatively
6. Multiple
defendants
//
Children:
get
around
reasonableness
standards
7. Expressive
function
–
values,
social
justice,
redress,
corrective
justice
TORTS
SPRING
2013
2
DUTY
(ON)
Is
there
a
duty?
Is
so
what
is
the
legal
standard
for
liability
in
this
case?
1. Duty
not
to
intend
harm?
Not
to
be
reckless?
2. Duty
not
to
be
negligent/
duty
to
act
reasonably?
3. Duty
to
pay
for
any
harm
done?
(strict
liability)
4. Duty
of
utmost
care
as
an
innkeeper
or
common
carrier
–
heightened
duty?
5. 5.
Limited
Duty
(misfeasance)?
Limits
not
to
exercise
reasonable
care?
Is
there
a
DUTY
TO
RESCUE?
− Always
have
a
duty
not
to
intend
harm
to
others
Cases
− Rule
-‐
Hurly:
In
absence
of
special
circumstance
or
a
special
Hurley
v.
Eddingfield
relationship,
one
person
has
no
affirmative
duty
to
rescue
another
Yania
v.
Bigan
person
from
a
position
of
danger,
either
by
action
or
warning
− Nonfeasance:
no
duty,
no
liability;
tort
law
gives
individuals
the
Policy
freedom
to
act
“unreasonably”
and
not
rescue
or
warn
Economy
(manageable
rules)
Corrective
justice
What
triggers
a
DUTY
TO
ACT?
− BUT
a
duty
can
be
created
by:
negligent/unreasonable
action,
Cases
starting
rescue
but
abandoning,
feasance,
special
relationships,
Montgomery
v.
National
enabling
torts
Convoy
− Feasance:
reasonable
“non-‐tortious”
risk-‐creation
-‐
when
risk
Newton
v.
Ellis
happens,
have
duty
to
prepare
or
warn;
duty
of
reasonable
care
to
Stockberger
v.
US
prevent
or
minimize
harm
Policy
− Misfeasance:
unreasonably
risky;
liable
for
foreseeable
Corrective
justice
consequences;
duty
to
mitigate
damages
Best
cost
avoider
Is
there
a
DUTY
TO
THIRD
PARTIES?
− Restatement
Section
315
Cases
− special
relation
exists
between
the
actor
and
third
person
Weirum
v.
RKO
which
imposes
duty
upon
actor
to
control
third’s
conduct
Tarasoff
− a
special
relation
exists
between
the
actor
and
the
other
which
gives
to
the
other
a
right
to
protection
Policy
− Weirum:
An
intervening
actor
can
be
just
an
instrument
of
Best
Cost
Avoider
increased
risk
created.
TORTS
SPRING
2013
4
BREACH
(ON)
PROOF
OF
NEGLIGENCE:
FAILURE
TO
ACT
REASONABLY
FORESEEABILITY
− Once
we
know
which
duty
or
standard
of
care
which
applies
to
the
case
Cases
generally,
did
the
actor
breach
that
level
of
care
in
this
specific
case?
Blyth
v
Birmingham
− Foreseeability
Test:
know
or
knowable
possible
that
there
exists
a
Policy
possibility
of
risk
of
harm
Also
test
for
prox
cause
COST
BENEFIT
− Burden,
Probability,
Injury
=
Learned
Hand
Test
Cases
− B
=
Cost
or
burden
of
the
untaken
precaution
Carroll
Towing
− P
=
Probability
of
accident
Cooley
− L
=
Gravity
of
loss
or
Injury
Andrews
v.
United
Airlines
− Rule:
Take
the
precaution
when
B
<
PL
Policy
− Care
level:
the
specifics
of
care
in
how
one
conducts
an
activity.
Ross
Settled
Out
of
Court
− Activity
level:
the
general
activity
Costs/Benefits
− Untaken
Precaution
CUSTOM
− Rule:
custom
is
admissible,
but
not
dispositive
–
not
a
“slam
dunk”
Cases
− Medical
Malpractice:
Custom
is
dispositive
TJ
Hooper
− Strict
Locality
Rule:
“conspiracy
of
silence”
Medical
Malpractice
− Abandoned
with
nationwide
standards
Policy
− Respectable
Minority:
if
followed
by
respectable
minority
of
Advantages/Disadvantages
professionals,
not
malpractice
Malpractice
Reform
NEGLIGENCE
PER
SE/STATUTES
− Rule:
Negligence
as
a
matter
of
law;
R2d
§286,
Cases
− Minority
Rule:
not
per
se
but
still
admissible
Osborne
v.
McMasters
Martin
− R3d
§14
Statutory
violations
as
negligence
per
se..if
designed
to
present
v.
Herzog
against
(1)
type
of
accident
(2)
victim
within
class
of
persons
protected
by
Tedla
v.
Ellman
(bad)
statute
Uhr
v.
Greenbush
− Statutory
violation
supplements
existing
case
w.
dispositive
evidence
Stimpson,
Gorris
− Considered
by
judge
as
a
matter
of
law
Policy
− Defenses:
Necessity,
emergency,
incapacity,
harm
within
purpose
Stick
it
to
the
breacher
RES
IPSA
LOQUITUR
− Circumstantial
Evidence:
burden
shifting
if
the
plaintiff
doesn’t
have
Cases
enough
evidence
to
defendant
if
the
reasonable
jury
could
infer
negligence
Byrne
v
Boadle
− Restatement
2
and
3:
three
elements,
and
inference
of
negligence
Colmenares
v.
Vivas
− Three
Requirements:
(1)
harm
ordinarily
occurs
because
of
negligence,
(2)
Ybarra
v.
Spangard
instrument
causing
harm
must
be
in
exclusive
control
of
the
defendant
(nondelegable),
(3)
injury
must
not
be
due
to
voluntary
action
or
contribution
of
the
plaintiff
Policy
− When
should
RIL
apply?
(1)
Asymmetrical
information,
(2)
victim
cannot
Burden
shifting
ascertain
cause,
(3)
defendant
creates
the
risk
or
danger
and
has
a
duty
to
Not
really
used
with
modern
control
that
danger,
(4)
or
the
accident
itself
creates
an
inference
of
discovery
negligence
(prima
facie
evidence)
− Smoking
out
the
evidence:
Incentive
for
D
when
multiple
Ds
to
testify
TORTS
SPRING
2013
5
BURDEN
SHIFTING
− SHIFT
the
BURDEN
against
the
NEGLIGENT
PARTY
Cases
− Send
to
jury
and
allow
for
inference
because
lack
of
evidence
is
Haft
because
of
negligence
− If
it
increased
the
risk
of
harm
-‐
negligence
added
insult
to
injury
Policy
− To
require
P
to
prove
further
would
not
feasible
with
evidence
Evidence
LOST
CHANCE
− The
harm
is
redefined,
not
death
but
the
lost
chance
of
survival
Cases
− But
for
the
negligent
diagnosis,
the
lost
chance
would
not
have
Herskovits
happened
Policy
− Majority
of
courts
follow
for
medical
malpractice
Stick
it
to
the
breacher
− Herskovitz
Concurrence:
lost
chance
–
majority
rule
for
damages
Fairness
MULTIPLE
CAUSES
− Where
two
causes
each
attributable
to
the
negligence
of
a
Cases
reasonable
person
concur
in
producing
an
injury
to
another
either
Kingston
v.
Chicago
of
which
would
produce
it
regardless
of
the
other
− Restatement
432
− Three
situations:
o Two
simultaneous:
causes
both
negligent
o Two
simultaneous:
one
negligent
one
not
(most
–
neg.
liable)
o Sequential
causes:
neither
can
be
but
for
but
one
was
the
actual
physical
cause
(if
first
party
is
negligent
then
liable)
TORTS
SPRING
2013
6
ALTERNATIVE
CAUSATION
− Each
was
as
probable
as
not
but
for
cause,
but
not
more
than
Cases
probable
Summers
v
Tice
− Rule:
R2d
-‐
Where
the
conduct
of
two
or
more
actors
is
tortious,
and
it
is
proved
that
harm
has
been
caused
to
the
P
by
only
one
of
them,
but
there
is
uncertainty
as
to
which
one
has
caused
it,
the
Policy
burden
is
upon
each
such
actor
to
prove
that
he
has
not
caused
Often
involves
2
Ds
that
the
harm
know
each
other
MARKET
SHARE
− Main
Issue:
you
cannot
pinpoint
the
defendant
Cases
− Requirements:
Sindell
− Fungible
Hymowitz
− Most
Ts
are
Ds
Lead
Paint
(fungible)
− All
Ds
are
potential
Ts
for
this
P
Policy
− Not
Ps
fault
Moral/Corrective
Justice
− Limitations:
no
signature
disease
(only
one
cause),
relevant
market
Stick
it
to
the
breacher
(D
share
data
not
always
available,
not
always
chemically
identical,
should
bear
cost)
not
always
feasible
to
sue
all
possible
Ds
(out
of
business)
Best
cost
avoider
SUBSTANTIAL
FACTOR
− Minority
Rule
Cases
− Substantial
Factor
Test:
in
bringing
about
P’s
injury
or
damage;
Mitchell
v.
Gonzalez
finding
that
defendant’s
negligence
was
influential
in
some
way;
full
damages
Policy
− Did
the
negligence
substantially
increase
the
risk
of
harm?
Simpler
but
muddier/vague
− Mitchell:
“A
legal
cause
of
injury
is
a
cause
is
a
substantial
factor
in
Lower
threshold
bringing
about
the
injury.”
PUBLIC
POLICY
− whether
the
injury
is
too
remote
from
the
negligence;
− whether
the
injury
is
wholly
out
of
proportion
to
the
culpability
of
the
negligent
tortfeasor;
− whether
in
retrospect
it
appears
too
extraordinary
that
neg.
should
have
brought
about
harm;
− whether
allowance
of
recovery
would
place
an
unreasonable
burden
on
the
negligent
tortfeasor;
− whether
allowance
of
recovery
would
be
too
likely
to
open
the
way
to
fraudulent
claims;
or
− whether
allowance
of
recovery
would
enter
a
field
that
has
no
sensible
or
just
stopping
point
DAMAGES
Functions
of
Damages:
Corrective
Justice,
Deterrence,
Recognizing
D’s
Responsibility
for
Loss
COGNIZABLE
DAMAGES
− Parasitic:
P
can
recover
for
some
emotional
harm
or
economic
harm,
as
Cases
long
as
that
harm
is
“parasitic”
upon
concrete
physical
harm;
ex:
out
of
Pure
Emotional:
pocket
medical,
lost
wages
Mitchell
v.
Rochester
− Pure:
emotional
or
economic
harm
are
claims
by
a
P
with
no
concrete
Dillon
v.
Legg
physical
harm;
limited
Pure
Economic:
− Pure
Economic
Loss:
denies
recovery
for
pure
outright;
only
modest
Union
Oil
v
Oppen
change
away
from
this
rule
People
Express
Airlines
− Pure
Emotional
Loss:
Only
a
limited
duty
to
exercise
reasonable
care
to
avoid
causing
emotional
distress
Policy
− Independent
vs.
Derivative
Duty
<<
Underdeterrence
with
− Dillon:
(1)
Proximity
(2)
Relationship
(3)
Contemporaneous
Observance
wrongful,
etc.
− Normally
an
uninjured
victim
cannot
recovery
− Wrongful
Death,
Survival
Action,
Loss
of
Consortium
COMPENSATORY
DAMAGES
− Rule:
victim
is
to
be
made
whole
(compensated)
from
the
loss
caused
Cases
by
D’s
act
or
omission
McDougald
v.
Garber
− Burden
of
Proof:
P
must
prove
by
a
preponderance
of
evidence
that
has
suffered,
or
will
suffer
in
future,
losses
for
which
claims
damages
Policy
− Non-‐Economic
Damages:
McDougald
–
P&S,
loss
of
enjoyment
Commodified/non
− Economic
Damages:
medical
expenses,
past
lost
wages,
lost
future
Architecture
of
Bias
earning
capacity,
custodial
care,
incidentals,
property
damage
Collateral
source
rule
− Damage
Control:
remittitur,
additur
Subrogation
PUNITIVE
DAMAGES
− Kemezy:
No
burden
of
production
on
P
to
justify
punitive
damages
Cases
− Generally
limited
to
specific
cases
Kemezy,
State
Farm
− State
Farm/BMW:
Three
factors
to
evaluate
constitutionality:
BMW
v.
Gore
o Degree
of
reprehensibility
of
D’s
conduct
o Disparity
or
proportion
between
harm
or
potential
harm
from
D’s
Policy
conduct
and
amount
of
compensatory
damages
awarded
Corrective
justice
State
Farm:
quantified
–
single
digit
ratio
(9:1
or
less)
Deterrence
o Difference
between
this
remedy
and
civil/criminal
penalties
to
Reform
punish
Ds
in
similar
cases
− Non-‐Party
Harm:
a
defendant’s
dissimilar
acts
from
which
liability
was
premised
cannot
be
used
as
a
basis
for
punitive
damages
TORTS
SPRING
2013
9
DEFENSES
(OFF)
Was
the
victim/plaintiff
responsible
for
the
harm
or
assume
the
risk?
CONTRIBUTORY
NEGLIGENCE
− Complete
Defense
Policy
− Failure
of
P
to
exercise
reasonable
care
to
protect
himself
or
his
Fairness
property
from
the
risk
of
harm
or
loss
Check
on
jury
− Exceptions:
(sub-‐crystals)
Subsidy
thesis
o Jury
question
o Last
clear
chance
Rule
vs.
Standards
o Greater
degree
of
blame
o Safety
statute
Incentivize
more
care
COMPARATIVE
NEGLIGENCE
− Contributory
negligence
of
P
doesn’t
necessarily
bar
recovery
Cases
− Recovery
is
reduced
in
proportion
to
amount
attributable
to
him
Li
v.
Yellow
Cab
− Pure:
plaintiff’s
negligence
is
never
a
complete
bar
to
recovery;
applies
regardless
of
how
much
more
negligent
P
was
than
D
− Modified:
party
not
barred
from
recovery
so
long
as
negligence
Policy
doesn’t
equal
or
exceed
combined
negligence
or
fault
of
other
Apples
and
Oranges
parties
involved
(comparative
causation)
NECESSITY
− Public
Necessity:
immunity
is
obsolete;
absolute
privilege
Cases
− Private
Necessity:
between
private
party;
conditional
privilege
Ploof
− Mouse’s:
General
Average
Contribution
Vincent
− Ploof:
Necessity
will
justify
entries
upon
land
and
interference
with
personal
property
that
would
otherwise
have
been
trespass
Policy
− Vincent:
Public
necessity
may
require
taking
of
private
property
for
Coase
Theorem
public
purposes,
but
system
of
jurisprudence
requires
compensation.
Trolley
Problem
Property
vs.
Liability
Rules
TORTS
SPRING
2013
10
STRICT
LIABILITY
Liability
Without
Fault
NUISANCE
− Trespass:
intentional
physical
infringement,
no
damage
requirement
VS.
Cases
− Nuisance:
substantial
and
unreasonable
interference
with
another’s
right
of
use
and
Boomer
v.
Atlantic
enjoyment
of
his
or
her
land;
public
v.
private
Four
Situations
Policy
− No
nuisance nuisancer
gets
property
right
–
D
enjoins
P’s
future
enjoyment
Successive
damages
− Nuisance:
D
compensates
P
and
continues
–
nuisance
gets
property
+
liability
Free
rider
− Nuisance:
P
enjoins
the
D
–
neighbors
get
property
right
Holdout
− Nuisance:
P
compensates
D
for
stopping
–
nuisancee
gets
property
+
liability
rule
WORKERS’
COMPENSATION
− Compensable
Event:
“Arising
out
of
the
course
of
employment”
Cases
− Measure
of
Recovery:
Limited
recovery
–
“average
weekly
wage”
Clogdo
v.
Rentavision
− Payment
Mechanism:
insurance,
deep
pockets
Policy
Employers:
predictable,
avoid
− Broad
S/L
–
fault
replaced
by
cause
as
basis
of
liability
litigation,
PR,
increase
safety,
− Clogdo
Factors:
(1)
extent
and
seriousness
of
deviation;
(2)
completeness
much
lower
award,
social
of
deviation
(abandonment
or
commingled
with
work);
(3)
extent
to
which
benefit
activity
had
become
accepted
part
of
employment;
and
(4)
extent
to
Employees:
get
money
faster,
which
nature
of
employment
may
be
expected
to
include
some
horseplay
no
litigation,
same
cost
− Issues
with
fraud
and
abuse
VS:
less
punitive,
no
defenses
NO-‐FAULT
− No
Fault
Auto:
Pure
vs.
Modified
vs.
Add-‐On
vs.
Choice
Policy
− No
Fault
Medical:
Designated
compensable
events,
Vaccines
How
to
define
compensable
− Funds:
ex:
9/11,
BP
Oil
Spill
event?
STATUTORY
REFORMS
1. Absolute
dollar
ceilings
on
amount
of
wards
for
pain
and
suffering
and
punitive
2. Limitations
on
complete
elimination
of
joint
and
several
liability
3. Abolition
of
collateral
source
rule