TORTS IN PREP OF MIDTERM - Webs



SFPIF – i’m pretty sure this was the final outline, my computer ate some stuff, so i’m not sure if this is the one that covered everything, but it is what i’ve got. good luck.

Torts in prep of midterm

I. Intro to Tort Liability

a. Hammontree v. Jenner

b. Christensen v. Swenson

II. Negligence Principle

A. Historical Development of Fault Liability

a. Tort Law and the Economy in 19th Century America

b. Brown v. Kendall

B. The Central Concept

1. The Standard of Care

a. Adams v. Bullock [39]

b. U.S. v. Carroll Towing Co.

2. The Reasonable Person

a. Bethel v. NYC Transit Authority

C. The Roles of Judge and Jury

1. In General

a. Baltimore & Ohio Railroad v. Goodman

b. Pokora v. Wabash Railway Co.

c. Andrews v. United Airlines, Inc.

2. The Role of Custom

a. Trimarco v. Klein

3. The Role of Statutes

a. Martin v. Herzog

b. Tedla v. Ellman

D. Proof of Negligence

a. Negri v. Stop and Shop, Inc.

b. Gordon v. American Museum of Natural History

c. Byrne v. Boadle

d. McDougald v. Perry

e. Ybarra v. Spangard

E. The Special Case of Medical Malpractice

a. Sheeley v. Memorial Hospital

b. Connors University Associates In Obstetrics & Gynecology, Inc.

c. Matthies v. Mastromonaco

III The Duty of Requirement: physical injuries

A. Introduction

B. Obligations to others

a. Harper v. Herman

b. Farwell v. Keaton

c. Stauss v. Belle Realty Co.

C. Obligations to Control the Conduct of others

a. Tarasoff v. Regents of University of California

b. Randi W. v. Muroc Joint Unified School District

D. Landowners and Occupiers

a. Carter v. Kinney

b. Heins v. Webster County

c. Posecai v. Wal-Mart Stores, Inc.

IV. The Duty Requirement: non-Physical Harm

A. Emotional Harm

a. Falzone v. Busch

b. Metro-North Communter R.R. Co. v. Buckley

c. Gammon v. Osteopathic Hospital of Maine, Inc.

d. Portee v. Jaffee

V. Causation

A. Cause in Fact

1. Introduction

a. Stubbs v. City Rochester

b. Zuchowicz v. United States

c. Alberts v. Schultz

2. Introduction to Joint and Several Liability

3. Multiple Defendants

a. Summers v. Tice

b. Hymowitz v. Eli Lily

B. Proximate Cause

1. What if Unexpected Harm Occurs?

a. Benn v. Thomas

b. Overseas Tankship Ltd. V. Morts Docks

c. Wagonmound I and II

2. Unexpected Manner

a. Palsgraf v. Long Island RR

b. Kinsman I and II

VI. Defenses

A. The Plaintiff’s Fault

1. Contributory Negligence

2. Comparative Negligence

a. Fritts v. McKenna

3. Avoidable Consequences

B. Assumption of Risk

1. Express Agreements

a. Dalury v. S-K-I Ltd.

2. Implied Assumption of Risk

a. Murphy v. Steeplechase Amusement Co.

VII. Strict liability

a. Fletcher v. Rylands

b. Rylands v. Fletcher

c. Sullivan v. Dunham

d. Indiana Harbor Belt Railroad Co. v American Cyanamid Co.

VIII. Liability for Defective products

a. MacPherson v. Buick Motor Co.

b. Escola v. Coca-Cola Bottling Co. of Fresno

X. Damages

A. Compensatory Damages

a. Seffert v. Los Angeles

B. Punitive Damages

b. Taylor v. Superior Court

c. BMW v. Gore

XI. Intentional Harm

A. Intent

a. Garrat v. Dailey

B. Assault and Battery

a. Picard v. Barry Pontiac Buick Inc.

C. False Imprisonment

a. Lopez v. Winchell Donuts

D. Intentional Infliction of Emotional Harm

a. Womack v. Eldridge

b. Hustler v. Falwell

E. Defense and Privileges

1. Consent

a. Hart v. Geysel

2. Self Defense

a. Courvoisier v. Raymond

3. Protection of Property

a. Katko v. Briney

4. Private Necessity

a. Vincent v. Lake Erie Transportation Co.

b. Ploof

Perspectives

1. Law and Economics

2. Pragmatism

3. Feminist Legal Theory

4. Critical Legal Studies

I. Intro to Tort Liability

Book – The primary concern of tort law has been whether one whose actions harm another should be required to pay compensation for harm done.

The fundamental issue addressed by a system of tort liability for unintended injury is when losses should be shifted from an injury victim to an injurer or some other source of compensation. … the courts have developed a complex network of liability rules for determining the allocation of losses in cases of unintended harm. These rules, located in an intermediate zone between no-liability and universal compensation, reflect not only the influence of those polar positions, but perhaps even more importantly, a tension between two court-fashioned liability principles – strict liability and negligence – that will be a pervasive concern of ours in this course.

Hammontree v. Jenner [3]

Cali Ct of Appeals, ’71

J. Lillie

Jenner, (defendant) had history of epileptic seizures. He was on meds. The DMV allows him to drive. Doctor says he is good. Had seizure while driving. Ran into Hammontree’s store and hurt Maxine H. and caused damages to shop.

At one point they moved for summary judgment on issue of liability and judge found no strict liability. The issue then moved to jury instructions.

Lower ct in favor of D. suit brought based on negligence and strict liability. Reason for strict liability – based on absolute liability which comes from idea of product liability. Court of Appeals – judgment affirmed. P wanted jury instructions based on absolute liability – denied. Jury instructions were given on regular negligence. Judge refused to instruct jury on strict liability on the grounds that the theory was not applicable to sudden illnesses that strike a driver rendering him unconscious – jury found for D. (kind of a quote form book).

Chance that this lawyer was using this as a test case of strict liability, he waived normal neg to go for strict – seems like he was trying to establish the boundaries.

Holding – you can’t hold someone to strict liability in this kind of situation (history doesn’t count because he took all reasonable precautions and had been cleared by necessary people). Isn’t like product liability where there is obviously someone at fault.

Negligence – conduct falling below the standard of care that reasonable person would demonstrate under similar situations or similar conditions. Have to find fault, injury enough doesn’t prove neg.

Strict Liability – liability for all injuries caused by a parties conducting of certain dangerous activities without regard to negligence or fault. All you have to do is prove injury and liability necessarily follows.

Holmes v. Posner [6,7]

Holmes thinks that if too much is strict liability no one would leave their house, have to be careful not to unduly burden existence. [“he must act somehow…public generally profits from individual activity”] Posner puts it in terms of economics (surprise), negligence is an attempt to approach cost effectiveness. [If measures for averting accident would consume “excessive resources” can’t blame ( for not taking them.]

Christensen v. Swenson et al [18]

Supreme Ct of Utah, 1994

J. Durham

Woman guard Swenson at Geneva Steel Plant (Burns employee – security guard), left her post to get lunch, on drive back got in car accident – hit plaintiff’s motorcycle, just outside Geneva property. Under respondeat superior – employers are vicariously liable for torts committed by employees while acting within the scope of their employment. Question here is, was she acting in scope of employment at time of accident – who else can P sue?

Burns was moving for summary judgment saying that she wasn’t in scope and that they should be removed from D. Trial ct granted the motion and the court of appeals affirmed.

Ct relied on Birkner criterion to establish if within scope. 1. the employee’s conduct must be of the general kind the employee is hired to perform, 2. it must occur within the hours and ordinary special boundaries of the employment. 3. must be motivated, at least in part, by the purpose of serving the employer’s interest. CT of appeals said she wasn’t within the ordinary spatial boundaries because it wasn’t on the property and then they didn’t look at anything else. This court found that reasonable minds could differ on all three so they reverse summary judgment and remand for further proceedings, with Burns as D. Reasonable minds could differ = a jury question.

Public policy concerns of strict liability for employers found in respondeat superior – deeper pockets (someone should pay), spread damages around larger group, fairness, safety (deterrence/award for good hiring), agency rational (at work, extension of employer.

II. The Negligence Principle

A. Historical development of fault liability

b. Brown v. Kendall [33]

Supreme Judicial Court of Mass, 1850

CJ Shaw

Kendall was trying to separate two dogs with a stick and hit the other dog owner (brown) in the eyeball with the stick. Now he can’t see. Brings up the issue of intentionality. Brought action in trespass for assault in battery. Three issues. 1. was the interference necessary or proper. 2. if called for, was it done in the proper manner. 3. what degree of care was exercised by each party.

Initially the jury found for Plaintiff. Based on trial judge’s instructions. They found that if it wasn’t a necessary act (no duty to do it and could choose) then D responsible unless he was exercising extraordinary care, so that the accident was inevitable.

This court ordered a new trial. They said the P had the burden of proof to show that the D did not use ordinary care and the P did not show that. Does and unintentional action make someone liable for damages? Fault is basis of liability.

Shaw comes up with three situations where P can’t recover based on placement of negligence. Page 35

1. P and D both use ordinary care – there would be no negligence

2. D uses ordinary care and P doesn’t – P has contributory negligence

3. P and D both don’t use ordinary care – D has negligence, but barred by

P’s contributory neg.

Her big thing with B v K was that fault forms the basis of liability.

B. The Central Concept

1. The Standard of Care

a. Adams v. Bullock [38]

Court of Appeals of NY, 1919

J Cardozo

This is the trolley line case, where the kid hangs a wire off a bridge and hits the overhead (but under bridge) wire system. He shocked and burned himself. The wire was protected so you couldn’t reach it from the bridge without some other tool.

P alleged neg on part of D (bullock, owner of trolley) and sued to recover damages. Procedural history – P got judgment at trial court and appellate. Appealed again. Cardozo overturned and found for D. D shouldn’t be found neg if they have taken reasonable precautions to avoid predicted dangers. He had not way to predict this. This was such an extraordinary accident, the only thing that would have prevented this would be to run it underground, which would be outside duty. “facility of protection may impose a duty to protect.” Here we are talking about really hard things for very unlikely injuries.

There is some sense that this decision was to make it easier for these businesses to avoid too much liability – greater good of transportation, more imp than one unforeseeable injury.

Three possibilities:

1. Jury must find negligence

2. Jury may find negligence – reasonable minds could differ. Has to be a jury question. Braun case – where the carpenter was working over vacant lot, 25 year old wires with 3 years worth of insulation, he got shocked and died. Should they have thought of that. It used to be abandoned, now being built up. There are reasonable issues here, should go to jury. Based on question of due care and reasonable measures.

3. Jury can’t find negligence – Cardozo thinks that is what Adams v. Bullock is, that is why he reversed the decision. Eg. Greene v Sibley [n3, p40] Where guy didn’t tell woman he was leaning over and she tripped over him. Do we have to notify everyone of everything all the time. Nope.

California Jury instructions: [41]

“Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by the evidence. It is the failure to use ordinary or reasonable care. Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence.”

b. U.S. v. Carroll Towing Co [41]

US Court of Appeals, 2nd Circuit, 1947

L. Hand

The attendant of the Anna C. (barge – what else could my namesake vessel be?), left the vessel unwatched for 21 hours, during period when harbor was full of vessels. Barge broke loose from pier through the negl of Carroll Towing company when it was shifting the lines. The Barge sunk. Feds are plaintiff because they were stowing stuff on the Conner’s company boat (the Anna C). Carroll towing wants reduced damages because bargee was absent and had he been there he could have saved the boat.

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