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Torts IProfessor KaltGoals of Torts:(1) to compensate victims of accidents; (2) to allocate liability fairly among the responsible parties; and (3) to minimize the cost of accidents, of avoiding accidents, and of administering the tort systemBased on common law but Statutes always override common law Intentional Torts (no damages required)The Nature of IntentIntentA person has intent when:Purpose was to bring about those consequencesKnows with substantial certainty that the consequences will result from the actionsSome states have age limits for how young a person can be and be sued for an ITTransfer of IntentCan transfer between peopleCan transfer between intentional torts- Intended Assault and committed any of the other 5.Intend a tort and commit a different tort it is still intended MistakeDoes not vitiate intentA mistake is not an accident because there is still intent- ex. Guy hunting mistook a mans dog for a wolf and shot it. Intended to shoot- mistake that it wasn’t a wolf- liableInsanityDoes not vitiate intentso 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 worldThis does not mean that insane people always have intent; it just means that people with intent might be basing it on something insane-liableEX: crazy woman threw a chair at her employee in a state of insanity but she wanted to throw the chair she wasn’t just flailing around“Classic” Personal Intentional TortsBattery- intent transfers – nominal damagesDefendant acted with an intent to cause a harmful or offensive touching to the plaintiff’s person and that intended act CAUSED a harmful or offensive touching to the plaintiff’s personthe plaintiff must also find the intended act to be harmful or offensiveDefendant doesn’t have to “touch” just has to cause the “touching”Ex- pulling a chair out from someone. ? touched the chair but the painful or offensive touching was π’s butt hitting the ground because there was no chair- ? still caused a “harmful or offensive touching”Once ? has the intent to commit and commits a battery the fact that the actual damages are far more serious that ? intended is irrelevant- Egg Shell SkullAssault- intent transfers- nominal damagesDefendant acted with an intent to cause a reasonable apprehention in plaintiff of an imminent battery; and that intentional act caused plaintiff to suffer a reasonable apprehension of an imminent batteryif plaintiff was not actually in danger of suffering a battery, it might still be an assault if plaintiff reasonably thought otherwiseFor assault, imminent means imminent 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“Apprehension”- plaintiff reasonably expected the imminent battery, not necessarily that they feared itFalse Imprisonment- intent transfers- nominal damagesDefendant acted with an intent to confine or restrain plaintiff in a bounded area; that act caused plaintiff to KNOWINGLY be confined or restrained in a bounded area; and defendant lacked legal authority to do this.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.Knowledge: aware of the imprisonment while it happenedSome states allow Injury to substitute for Knowledge- no majorityPlaintiff is not confined if he or she knows or reasonably should know of a reasonable means of escapeNot able to escape with reasonable safetyReasonable means of escape; escape has to be apparent If a π doesn’t know about the escape opportunity but ? thinks π does- ? might not have intentFI does not apply if π stayed on their own volition EXAMPLE: Elderly man was “FI” in his nursing home- tried to escape many timesFalse Arrest- subset of false imprisonment Defendant can show that an arrest was proper if he or she had lawful authority to arrest and plaintiff was later convicted of the offense for which he was arrested. Not the only way:There are many reasons why plaintiff might not be guilty of the crime even if the arrest was properdefendant can also prevail by showing he or she had a warrant, or that he or she had probable cause.EXAMPLE: Women arrested for not giving her Driver’s license but was convicted for a dog leash statute infraction not DL because it’s not a real crime- she was therefore falsely imprisoned even thought she had a guilty verdict for the dog leash.New Personal Intentional Tort (Damages Required)Intentional Infliction of Emotional DistressPlaintiff must show: extreme and outrageous conduct by the defendant with intent to cause plaintiff to suffer severe emotional distress causes plaintiff severe emotional distressCourts set the bar for this tort VERY high- can’t claim another tort as causationTransferred intent does NOT apply –Defendant must intent to commit THIS tort against THIS plaintiffSOME jurisdictions: Recklessness (lower standard than intent) suffices for the intent element of IIED- NO MAJORITY RULEON TEST- Does this met ALL the elements of IIED? - ARE YOU SURE! —argue both intent or recklessness Property Intentional TortsTrespass to Land- intent transfers – nominal damagesIntent by defendant to invade real property who then invades the real property without the plaintiff’s (the possessor of the land or owner of the land if there is no possessor) authorizationTrespass includes invasions of small zones of air above the land and ground belowDistance above and below subject to balancing the extent of the interference with π’s use or enjoyment of the land. Intent to trespass not necessary- just intent to enter on the landTrespass to Chattelsintent by defendant to use or intermeddle with a chattel (chattel was in possession of another) this results in either impairing the chattel’s condition, quality, or valuedepriving plaintiff of the use of the chattel for a substantial period of time or completely dispossessing plaintiff of the chattelharm to plaintiff or a legally protected interest of plaintiff’sDoes not need to intend the harm but merely intend to the act which causes the trespass to chattels Conversion- NOT a classic TORT- damages required- no intent transfer?Conversion?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.Conversion is distinct from trespass to chattels because of the remedy:?forced sale?instead of just recovering the amount of the diminution in value. Conversion is also not a classic intentional tort, so transferred intent does not apply. Note that in several sorts of cases, the remedy will be the same for trespass to chattels as it is for conversion. If defendant completely dispossesses plaintiff of the chattel and there are no other damages, for instance, the remedy in both cases will be for the full value of the chattel. The same is true if defendant completely destroys the chattel. The difference is that trespass to chattels can encompass less-than-complete dispossession or destruction as well, and it can more easily give rise to other damages (emotional harm, etc.) that result from the tort. Conversion will always involve complete dispossession or complete or near-complete damage to the chattelIf they give it back- can’t sue anymoreGood Faith Purchases: Doesn’t matter if it was stolen purchaser will loose to the person the item was stolen from unless:it was bought from a reputable dealer If it was acquired through fraud from original owner PrivilegesGeneralPrivileges are Affirmative Defense for an action that would otherwise be an intentional tortthe force used must be reasonable, and more things are reasonable to defend a person than are reasonable to defend property. Recovering property allows for even less force, all other things being equal.Consent and Defense of PeopleConsent: defendant is not liable for an otherwise tortious act if plaintiff?consented?to defendant’s actquestion is whether defendant reasonably thought plaintiff consented Consent can be expressly spoken or written, but it can also be implied by contextConsent given by mistake is valid – unless defendant induced the mistake or otherwise should have known that π was giving consent based on a false pretense Consent to Criminal Acts is not valid (Majority Rule) Consent without consent in emergency situations when π can’t speak and situation is life threatening- medical personal Patient is unable to give consentRisk of serious bodily harm of treatment is delayed A reasonable person would consent to treatment under the circumstancesPhysician has no reason to believe the patient would refuse treatment under the circumstancesSelf-defense: defendant is not liable for an otherwise tortious act--usually battery--if it was performed under a reasonable belief by defendant that he or she is being attacked or is about to be attacked; and it constituted reasonable force Reasonable force means two things: that it was reasonable to use force, and that the amount of force used was reasonable. Retaliation is not allowedverbal provocation is 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 formal/automatic retreat requirement, a jury might still find defendant acted unreasonably in a particular case by failing to retreat.)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 behalfMistake is a valid defense if the mistake was reasonableDefense and Recovery of PropertyDefense 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 instead)The amount of force that is reasonable will be less than that for self-defense deadly force will almost never be reasonable for property.Recovery of property: Defendant may be privileged to use reasonable force to recover a chattel, as opposed to relying on legal process. Defendant must be in an uninterrupted “fresh pursuit” of plaintiff mistake--even a reasonable one--vitiates the privilege, except for shopkeepers who reasonably suspect shopliftingNecessityNecessity: Defendant may commit an intentional tort against plaintiff if reasonably necessary to avoid injury or damage. 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)Public Necessity: If defendant is acting to prevent threatened damage to the public at large privilege is an absolute one and defendant need not pay for damages caused to plaintiff’s property. Private Necessity If defendant is acting to protect a personal interest he must compensate plaintiff for actual damage to plaintiff’s property, but under the law he is still “privileged” to act as he did. That last part is the key; any privilege that plaintiff would otherwise have had to eject defendant will be trumped by defendant’s necessity.Authority of Law and DisciplineOtherwise tortious acts may be rendered non-tortious if performed pursuant to legal?authority?(such as by police or wardens). Similarly, the common law permits parents, teachers, etc., to use reasonable force to?discipline?their children, students, etc., without being liable for intentional torts.NegligenceElementsA duty of care Breach of that dutyCausationDamagesA duty and a breach of duty constitute negligence; causation and damages create liability Most common level of care is that of a Reasonable, Prudent PersonLearned HandLearned Hand Teststates that conduct falls below reasonable care when B < PL. If the burden for the party of avoiding a risk of harm was less than the risk itself, then the party is negligent for not undertaking that burden. The burden (B) equals both the cost of taking steps to avoid the risk and the benefits sacrificed as a result. Risk (L) of harm equals the product of the magnitude of harm if it occurs (MULTIPLIED BY) the probability of it occurring (P). 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).The Learned Hand Test is not about precise numerical quantification. There are too many costs and benefits that are impossible to quantify. The best we can do is compare costs to benefits and determine which is larger.Learned Hand Test is only one way to determine reasonable care. If a case doesn’t lend itself to using the Learned Hand Test, you can just find a different way to assess what a reasonable person would do.Reasonable Person- Duty of CareWhat the Reasonable Prudent Person (RPP) would do in the same or similar situationstandard is?objective, with some?subjective?componentsThe reasonable person has ordinary intelligence, perception, and memory, and physical characteristics, abilities, and disabilities of the actor, and any relevant additional specialized knowledge, skills, or experience that the actor has. In other words, the actor’s general mental characteristics are not taken into account, and neither are any deficiencies in the actor’s specific knowledge and experience.The context of the specific situation must also be accounted forOBJECTIVE: Reasonable mental characteristics; based on what should have been knownSUBJECTIVE: Special Knowledge or Skill, Circumstances, Training, Physical Characteristics (disabilities or other abilities)insanity?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 (most states)Children and the RPPheld to a mostly subjective standard the level of care of a reasonable child of similar age, intelligence, maturity, and experience. in many states children under a certain age cannot be considered negligent at allChildren engaged in?adult activities?(usually things involving motorized vehicles or heavy equipment) are held to the (more objective) adult standardCUSTOMSEvidence of a standard of caredoes not form the standard itself--it is neither necessary nor sufficient evidence as a matter of lawBut it can be persuasive evidence it may be enough for some juries in some instances, even though it will not enough to support a directed verdictProfessional’s Standard of CareProfessionals: doctors, nurses, lawyers, pharmacists, accountants, pilots, and others in?jobs that require lots of training and education and are governed by detailed and coherent internal standardssubject to an objective standard instead of reasonablenessheld to the standard of an ordinary member of the profession not an “average” member; that would make about half of the profession always negligentexpected to exercise the skill, knowledge, and care normally possessed and exercised by other members of their profession.Specialists are subject to the standards of other ordinary members of their specialty, if the specialty is relevant to the case.Custom: generally dispositive?of the issue of the duty of a professional, regardless of its reasonablenessThose who comply with the professional custom are not negligent and those who do not comply are negligentThe standard is purely objectiveEstablishing this standard typically requires an expert witness\Medical Malpractice: Liability for malpractice cannot be premised on a mere disagreement over, or a failure of, technique or tacticsprofessional 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 resourcesMAJORITY RULE: “Same or Similar community in Same or Similar circumstances”minority of states use a national standard instead.Both are established by expert witnessesINFORMED CONSENT- sub sect of Medical Malpracticea 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. Baseline Standard: In some states, doctors in IC cases are held to the baseline professional duty of care: 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.Canterbury Standard: Other states subscribe instead to a “reasonable patient” rule under which a doctor must disclose material risks (i.e., those that a reasonable patient would want to know and would carefully consider). THERE IS NO MAJORITY RULEcausation--after duty and breach have been found--to see whether disclosure would have changed a patient’s decision Almost all states require that 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 baseline subjective showing (that the patient herself would have changed her mind had the disclosure occurred).Doctors also have a duty to disclose any profit or research interests of theirs underlying their treatment.Duty of the LegislatureNegligence Per Se- Violation of a Statute may be sufficient to establish the duty and breach elements of the negligence ****Alternative method to establish negligence not exclusive (sue everyone for EVERYTHING) Even if a statute doesn’t work for NPS it can be used as evidence for negligence as a RPPCourt has to decideif Statute was enacted to prevent such an issue and that the victim is of the sort that the Statute was meant to protectif the Statute can be considered a civic duty by looking at:whether it creates difficulty in proving causationwhether it creates a new duty [this is the most important and oft-confused factor]whether it provides liability that is too strict (i.e., too detached from defendant’s level of care)whether it provides for disproportionate liabilitywhether it represents too vague of a dutyEffect:majority of states, duty and breach are established automatically for unexcused violations of a usable statute. Excuses, which the defendant would then have the burden of proving, include: incapacity or reasonable inability to comply, reasonable lack of knowledge of violation (ignorance of facts, not law), emergency, and greater harm from compliance than violation. minority of states, the burden shifts to defendant to show more generally that he exercised reasonable care (which does not, in practice, lead to results that are all that different from the majority rule) small minority of states, NPS is only ever evidence of pliance?with a statute may be evidence of reasonable care, but it will not establish any sort of “non-negligence?per se.”EvidenceEvidence- direct evidence is not needed to prove the elements of the tort Circumstantial EvidenceOkay to use but just proves a point through inference a reasonable jury could draw the inferences (or chain of inferences) that a party is trying to establish, then it is permissible for the jury to rest its decision on the evidence that produced those inferences, however circumstantial the evidence may beRes ipsa loquitur: If plaintiff cannot allege what exactly defendant has done, it may suffice to allege defendant’s negligence through negative inferencethe accident is of a type that normally would not occur unless someone was negligentdefendant exercised substantial control over whatever caused the injury, so it wasn’t someone else’s negligence herethe accident more likely than not was caused by defendant’s negligence. helps plaintiff survive a motion to dismiss or motion for summary judgmentmay win a Directed Verdict on RIL argument but not necessarily CausationCausation-in-FactBut-For CauseTest showing that BUT-FOR the party’s tort the damages would not have occurredCONVERSLEY: Even if the party committed the tort the damages would have still occurredThere can be more than one cause-in-fact it doesn’t matter whether a cause is?sufficient?or not; what matters is that it was?necessaryCausal Link: negligence at issue must be something that makes the result more likely – “but for” is not a coincidence *** cases of coincidence are rare- don’t discuss unless casual link is relevant to the case****Plaintiff must provide evidence that defendant more likely than not cause the injury Need at least some evidence that ?’s tort DID cause the injury? can use any evidence of possibility, probability, etc. to cast doubt on π’s argumentMutual Cancellation Rare but used when But-for cause doesn’t work because there are 2 causes sufficient to cause the injury and cancel each other out so that neither is a but-for cause and would thus avoid liability Substantial Factor: whether an individual cause was a substantial factor in causing the harmMultiple Tort causes and no possible way for π to know which it was the court may shift the burden of proof on causation to the multiple negligent defendants- if they can’t find the offensive party they all share in the burden of negligence- SHOOTING CASE Market Share- used to apportion liability based on the company’s share of the market at the time-Rare and only used in certain cases – NOT A MAJORITYProximate CauseScope of Liability: less of a matter of fact and more how broadly the court wants to allow the defendant to be held responsible for damages caused in-fact. FORESEEABILITY: Was the injury a foreseeable result of the ?’s negligence- often a jury questionMajority: the type of accident must be foreseeable not the precise method it happened or the magnitude of the injuryMore Foreseeability = More likely it was a proximate cause Palsgraf, we may also ask whether the scope of the risk extends to plaintiff in a positional senseEX. 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 injured by, say, shattering glass is less likely to be within the scope of risk?INTERVEINING CAUSES--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 injuryAn intervening cause is?more likely?to be superseding if it is?unforeseeableForeseeability deals with the scope of the risk and ask whether the occurrence of the intervening cause is within the scope of risk of defendant’s negligence.An intervening cause is?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. EX: 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 though 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.Criminal Acts or Intentional Tortious Acts are not necessary superseding but are very likely to beRescue is not superseding if it is reasonable to rescue (want people to rescue) Firefighter Rule: professional rescuers cannot sue in their professional scopeReasonable attempts to escape are not superseding Subsequent Malpractice: malpractice is foreseeable and is rarely going to be a superseding cause, 2nd Injury caused by weakened condition- if the 1st injury is a cause of the 2nd injury from the original ?s negligence it is rarely a superseding cause 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).PUBLIC POLICY- there might be proximate cause but the court declares there is not as a matter of public policy Social Hosts cannot be proximate causes of the harms to a victim of a guest’s drunk driving No proximate cause on a plaintiff who hasn’t been conceived yet Proximate Cause is not about cause. It is better understood as scope of liability DefensesPlaintiff’s ConductContributory Negligence (MINORITY RULE)If plaintiff was also negligent in causing his injuries he is not entitled to recover Exception – Last Clear Chance: if ? had the last clear chance to prevent the injury Exception – Remote Contributory Negligence: ?Comparative NegligencePlaintiff can still recover if π was negligent but the award is reduced by the percentage of the π’s fault Pure Comparative: plaintiff can recover 1%- 100% of the damages depending on the percentage of their negligence Modified Comparative: plaintiff’s recovery is reduced according to π’s percentage of fault to a point – some states more than 50% ≈ other states 50% or moreNo exceptions in modified MAJORITY RULEMitigate Damages- if a plaintiff fails to mitigate their damages, they cannot recover for the resulting incremental increase in damages Express assumption of the risk:?If plaintiff is injured but had contracted not to hold defendant responsible for such injuries, the contract will be enforced to bar suit, unless: the contract contravenes public policy--this mainly includes contracts for essential services where plaintiff had no real bargaining power; or defendant’s tort was an intentional or wanton-and-willful one the injury was medical malpracticethe contract waived application of a safety statute.Implied assumption of risk:?used almost nowhereRequirementsplaintiff must have?actual?knowledge of the riskhave an appreciation of its magnitudemust 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 applyAssumption of the risk is all or nothing; if it applies, plaintiff’s claim is completely barred.contributory negligence states still use implied assumption of the risk, almost all comparative negligence states--and thus almost all states--have?rejected the doctrine of implied assumption of the risk.?Statutes of limitations?are procedural rules limiting the time plaintiff has to file a lawsuit The SOL is subject to waiver and equitable tolling. Tolling often used for latent injuries--most states begin the SOL clock only upon plaintiff’s constructive knowledge of the injury and enough facts that would start a reasonable plaintiff toward discovering defendant’s apparent tortious causation of it. (Some states require more, others less.) Tolling used where the victim is a minor childTolling used when defendant has fraudulently concealed the injury or his own conduct.Continuing tort doctrine?allows suit for an entire continuous tort, starting the SOL count only when the tort ends.?Statutes of repose?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 tortious action in question, regardless of when the injury occurs or is discovered.ImmunitiesSpousalMost state have gotten rid of spousal immunity Minority- partially eliminated for things like intentional torts, car accidents, or obvious exceptions where the beneficial relationship that immunity attempts to protect is absentParent/ ChildMost states partially removed this immunityMost keep the immunity (or alternatively limit any duty) for actions that are core parental activitiesOthers eliminate immunity only for things like intentional torts, car accidents, and obvious exceptions where the beneficial relationship that immunity purports to protect is ernmental State Statues give state immunity Generally states waive their immunity if another person could be sued for same claimIf state’s purchase liability insurance they may have waived liability LocalMunicipalities do not typically waive their immunity Court may step in and waive their immunityMajority rule – states will waive local immunity for proprietary functions (Minority rule – there is a general waiver for all functions Discretionary acts receive more immunity with less duty (don’t want to deter officials from making decisions)Ministerial acts will receive less immunity with more duty (acts are necessary acts that were done wrong) FederalFederal Torts Claim Act does not waive immunity for discretionary acts only ministerial acts Waives immunity for negligence but not strict liability Cannot sue a governmental employee if in the scope of employee’s service No punitive damagesLegislators and judges get absolute immunity for torts committed in scope of their positionJoint and Several Liability Joint and several liabilities: each defendant is liable for all the damages defendants are liable for more than just their particular individual “fair share” of the liability3 situations where J&S applies defendants acting in concertvicarious liability indivisible harmComparative negligence has lead to the “scaling back of J&S liability for indivisible harm” No majority rule for indivisible harm – most states still have concert and vicariousFull Satisfaction: a plaintiff has collected full payment If it is collected from 1 of the joint tortfeasors or through a settlement, plaintiff can’t proceed against the other joint tortfeasors Partial Satisfaction: does not preclude π suit or collection against remaining tortfeasors but the partial satisfaction is subtractedPro tanto: dollar for dollar- risk of an initial settlement being good or bad on the ?Pro rata: by percentage – risk of an initial settlement being good or bad on the πMoney received from a collateral source IN MOST STATES is not subtracted as partial satisfactionContribution- defendant who paid more than their “fair share” can ask to be paid back for those who paid less than their “fair share”Can seek contribution from joint tortfeasors π could have sued even if π didn’t sue themIntentional Tortfeasors can not seek contributionGood Faith Settlement: settler is immune from contribution actions(MAJORITY)*****DutyDuty to RescueMAJORITY- no dutyexcept: businesses toward their customersbosses and their helpless employeesperson creating the harm (even if not negligent)person controlling the instrumentality of harmperson who has undertaken a rescueOnce a duty applies defendant only needs to be reasonable (RPP)Duty to Protect People from OthersMAJORITY- no dutyExcept for:a special relationship between defendant and plaintiff (e.g., defendant is a common carrier, custodian, parent, employer) 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)Negligent Infliction of Emotional Distressplaintiffs no longer need to have a contemporaneous physical impact from the thing that upset themif there are not contemporaneous physical injuries, the emotional reaction must manifest itself with definite and objective physical effects before plaintiff can recovermust be shown that a normal person would suffer an emotional reaction passing that same threshold though once that is shown, plaintiff can recover for the entirety of his emotional reaction to defendant’s tortNIED Witness: many states require that plaintiff herself have been in the?zone of danger?of physical injury A strong trend 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 wouldThere is no majority ruleUnborn ChildrenGenerallyA viable fetus can recover for injuries suffered in utero IF it is born aliveMost states recovery can occur even if not born alive (post viable and possibly even pre-viability) if there is sufficient evidence of causationParents can recover for the damages they suffer from the loss of the fetus in both situations“Wrongful Birth”A child is born and BUT FOR the ?’s negligence the parents would have aborted the fetus because of a defect- Parents are the PlaintiffDamages may include emotional injury, extra cost of child-rearing or even the entire cost of child rearing “pluses of parenting” are subtracted from these damages“Wrongful Life” Minority of states allow this suitChild sues saying that BUT FOR ?’s negligence child’s parents would have aborted the pregnancy because of a defectStates that allow limit damages to medical expenses cause by the defect – do not allow damages for the existential torment of a traumatic life because the alternative is non-existence which is considered to be worse as a matter of law“Wrongful Pregnancy”usually because of informed consent violations or botched sterilizationsdamages: cost (pain and suffering included) of pregnancy and labor and sometimes the cost of child rearing (usually only when the reason for not wanting a child was economic)Owners and Occupiers of LandOutside the Premises On Owned LandDefendant landowner has no duty to protect a?plaintiff off of the premises?from natural occurrences on/from defendant’s landdefendant owes a duty of reasonable care for things involving human agency Trees --defendant owes a duty of ordinary care if he has knowledge or constructive knowledge that a tree may cause damageOn the Premises Trespassers? owes a duty of care to known or anticipated trespassers duty of care ranges from duty to not wantonly injure up to a duty of reasonable careMAJORITY require a duty of ordinary care doe active operations to actually known trespassers Defendant’s limited duty to trespassers may be heightened as to children under the?attractive nuisance?doctrineThe dangerous condition must be artificial and have actual or constructive knowledge that children are likely to be on the premises (attracted by the attractive nuisance, which is not necessarily the thing that is dangerous); and 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.Licensee: someone on defendant’s property for his own purpose, licensees include social guests, solicitors, and basically anyone who is not an inviteeduty to a licensee: to not be willful or wanton and 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.A third part of the duty owed to licensees is that when defendant is conducting “active operations” on his property, he owes a duty of reasonable care not only to invitees but to licensees (and also to actually-known trespassers)A social guest does not become an invitee merely by providing an incidental service to defendant, but at a certain point licensees can become invitees (or even trespassers) and vice versa.Invitees: 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 (OCCUPIER) owes invitees an unreduced duty—typically, ordinary care?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).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, abolish the trespasser/non-trespasser distinction too (put another way, a majority still apply a reduced duty toward trespassers). 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.LandlordsIn most jurisdictions, landlords owe no duty to guests of their tenants other than in certain exceptional situations. this doctrine has been largely swept away and the landlord owes the general duty of reasonable care in some statesCoase Theorem: (1) Assuming no transaction costs, the same final result in a system will occur regardless of the initial allocation of rights/duties/liability. (2) In the real world there are transaction costs, so it makes sense to impose liability on the “least cost avoider” (the party with the lower transaction costs associated with it).DamagesGeneral DamagesTort law redresses injuries though lump-sum money damages Future Damages 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 damagesSome 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. Personal injury damages generally are not?taxable, but other compensatory damages are, and punitive damages generally are.Excessive DamagesUpon an arguably?excessive damages?award, on defendant’s motion, a court can order a new trial or remittitur giving plaintiff the option of accepting a lower, reasonable award, or rejecting it and opting instead for a new trial The standard for excessiveness in damages is whether a?reasonable jury?could have awarded this amountCourts 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.Property Damages for physical?harm to property?are based on fair market value--assuming an open market, voluntary sale, leisurely seller, and willing buyer--at time and place of injuryA reasonable additional amount is allowed for sentimental value for some itemsPunitive DamagesThe purpose of?punitive damages?is to punish defendant and deter defendant and others from similar actionsIn most states, punitives require plaintiff to prove wanton and willful conduct by defendant, by clear and convincing evidenceThe jury generally weighs how bad the conduct was, and how effective a deterrent punitives would be.In reviewing punitive damages awards, courts use the same standard for excessiveness as for compensatory damages, but also look to proportionality between punitives and compensatoriesMany states do not allow?insurance coverage?for punitives.Wrongful DeathEvery state now allows suits for wrongful death. Depending on the jurisdiction, either the personal representative of the estate or the next of kin bring the suit. Damages may be measuredfrom the decedent’s perspective (mainly lost earnings) from the survivors’ (mainly lost support and services, and, in some states, emotional damages)- MAJORITY RULESurvivalUsing “survival” statutes, most states no longer terminate a cause of action upon the death of one of the partiesThis applies both to cases in which the death is related to the issue of the suit, and those where it is notIn the former cases, some states combine survival and wrongful death to allow decedent to recover in a single claim for losses and suffering before death as well as post-mortem damagesVicarious Liability“Respondeat superior”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.employee can be sued for the tort as wellAs a?separate (non-vicarious) matter, the employer may be liable directly under a regular negligence theory (e.g., negligent hiring or supervision) in addition to or instead of vicarious liabilityFROLIC V DETOUR frolic—during work hours, but too far outside the scope of the enterprise—the employer is not liableminor?detour?of a sort that the employer expects or tolerates- employer is liable There is only vicarious liability for an?intentional tort?by an employee when it was more directly within the scope of the employment than with negligence (e.g., battery by a bouncer at a bar). Independent ContractorsEmployers are not vicariously liableunless the tort was in the scope of the IC doing something “non-delegable” Examples: car repair, property maintenance, building design, inherently dangerous activities, and crimes.Joint Enterprisevicariously liable for the torts of other participants if the tortious act is within the scope of the enterpriseThe vicariously liable person must generally have some control over the negligent party’s actions, as opposed to being a merely “silent” partner in the enterpriseThe joint enterprise must also be a commercial oneCarsIn most states, the owner of a?car?is vicariously liable for the torts committed by someone to whom he or she lent itAS LONG AS IT IS in the scope of the lending.Vicarious liability not only imputes negligence but also may?impute comparative negligence. That is, if X would be liable for Y’s negligence vicariously were X a defendant, he will also be saddled 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 to vicarious liability relationships involving control (i.e. respondeat superior, non-delegable duties, and joint enterprise, but not car owner/lender).Strict LiabilityAnimalsWild AnimalsOwners are strictly liable for the damage the animal doesDamage has to be done while animal is doing “animal things”Domestic AnimalsFor there to be strict liability the owner must know or should have known that the animal had dangerous tendencies Damage has to be done by the animal doing “animal things”Owner doesn’t know of dangerous tenancies then RPP standard appliesUltra-hazardous ConditionsAbnormally Dangerous Activitiessubjects the performer to strict liability for damages they causeThe determination of abnormal danger based on Restatement § 520, risk and magnitude of harm, location, commonness, value to the community, and—most importantly—whether there would be serious risk of harm even after the exercise of reasonable care. 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. because we want the activity to continue, but we also want it to cover the costs it inflicts on others A?theoretical explanation?of the last point: 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 regardless.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 liableProximate cause is harder to establish for strict liability than it is for negligence Defenses to Strict Liability Comparative negligence implied assumption of the risk Contributory negligence is not a DefenseProduct LiabilityNegligence The negligence standard for products liability is that the manufacturer owes a duty of care to foreseeable users of the product if the product would be likely to cause injury if negligently madeIf that duty is breached, causing damages, defendant is liableRegardless of privity of contractExpress WarrantyManufacturers making material representations about their products that turn out to be false are, effectively, strictly liable for damages caused by reasonable reliance on those representationsPrivity is irrelevantImplied Warrantya seller or manufacturer impliedly warrants that an item sold is reasonably fit for the general purpose for which it is manufactured and soldThe manufacturer is strictly liable for damages caused when this warranty is brokenPrivity 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 choiceIn?most?states, though, implied warranty is?not?available anymore in tort.Strict Liability402A, 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).?Third Restatement— MAJORITY—distinguishes between manufacturing, design, and warning defects maintains?strict liability for only manufacturing defects?which are defects in which there is a material deviation from the intended design of a productNegligence is available for all three types of defects ................
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