Negligent Torts Flashcards
negligence purpose
ensuring the right level of risk in society and protecting people from the carelessness of others
negligence policy goals
- disincentivizing unreasonable behavior (determine)
- keep others safe (protecting people)
- ordering the world so people can move through it reasonably safe
elements of negligence
Duty
Breach
Causation
Damages
** all four elements must be satisfied for P to have a negligence claim **
duty
D must owe P a duty to act in a certain way
Breach
D must breach that duty by failing to act as well as the duty required
- what standard should we recruit (RPS, a departure from RPS, professional?)
- how do we determine if a breach occurred (B</>P*M; neg per se; industry custom; res ipsa)
causation
D must have actually and proximately caused the harm to P
damages
D must have done legally cognizable harm to P or P’s property
the reasonable person standard
its objective and its a construct
- not an avg person
- reasonable person = always acts prudent
does not require any inquiries about the individual
- deviations do exist
a reasonable person (Parrot)
- knows what a reasonable person knows – within the scope of general knowledge
- knows about foreseeable risks in light of the utility of the conduct
breaching RPS
if D acted as a reasonable person in the context would have (or with more care), then the defendant has not breached
if D acted with less care than a reasonable person in context would have, then the D has breached
learned hand formula (determining breach)
negligent if = burden of prevention (P) < [prob of harm] x [magnitude of harm]
if the burden of prevention by taking an action is less than the probability and magnitude of the harms taking that action would prevent, a person has acted unreasonably and has breached
especially dangerous instrumentalities
standard of care never varies because of especially dangerous instrumentalities
- reasonable person standard is a reasonable person under the circumstances
the care which a reasonable person takes is proportional to the danger involved in the circumstances (from Stewart)
ex of especially dangerous instrumentalities: gas, guns, chemicals
emergencies and the reasonable person standard
a sudden emergency instruction reduces the standard of care to less than that which a reasonable person with time to deliberate would be charged with – not a standard, its a jury instruction
emergency jury instruction
only given (Myhaver)
- party seeking the instruction on their behalf has not been negligent prior to emergency
- emergency came about suddenly and without warning
- reaction to emergency was spontaneous and without time for reflection
special knowledge and the reasonable person standard
if a person has special knowledge, skill, or experience that is relevant to the situation at hand, they are held to a standard of care higher than the reasonable person standard
standard of care becomes a person with such superior relevant attributes (Cervelli)
** special knowledge and skill must be relevant to the situation at hand **
experience and credentials are good indicators of special knowledge
special knowledge policy rationale
holding people with superior qualities to a higher standard will help make society even safer
we do two things in breach
identify the standard (reasonable person)
proving (hand formula)
child standard
downward departure from the reasonable person standard
what a reasonable child of like age, experience, maturity, intelligence does
- more subjective standard for children
ex: child with low IQ gets a lower standard than a child with a higer IQ
policy = let’s kids be kids
rule of sevens
birth to 7 = child cannot be negligent
7-14 = standard of care = child of like age, intelligence, experience, maturity
14+ = reasonable person standard
exceptions to the child standard of care
reverts back to reasonable persons standard if activity involved is:
- adult activity (not our standard)
- inherently dangerous (THIS IS OUR STANDARD)
inherently dangerous activities exception
reverts back to reasonable person standard instead of child standard when a child is engaging in an inherently dangerous activity
ex: hunting, skiing
higher the risk/probably of harm, more likely inherently dangerous
policy = protect the public
robinson v. lindsay
physical disability
standard = what a reasonable person with that disability would do
Roberts v. Louisana: blind man working the concession stand
Roberts v. Lousiana – D is blind, operates a concession stand in the Post office. Leaves to go to the bathroom, walks without cane, bumps into P, causing him to fall and injure hip
RULE = standard of a reasonable person with a physical disability
- determine what a reasonable blind person would do with expert testimony
holding = D is not negligent
reasoning = he acted as reasonably prudent blind person would in situation; relied on facial sense, normal for getting around familiar space in blind community
mental disability
standard = reasonable person (with a narrow exception)
the exception: if sudden onset (only first time of onset)/not foreseeable
bruenig v. american family insur
bruenig v. american family insurance – P struck by car driven on wrong side of road by Veith, who at time of accident had insane delusion affecting ability to drive. (saw light on car in front of her and followed)
RULE = only get exception to reasonable person standard during the first episode of mental illness if no clue/reason to believe it was going to happen
holding: no exception - pre-existing duty, held to a reasonable person standard
professional standard of care
Standard of care for professional is defined by actual or accepted practice within their profession
- not a construct, proven by expert testimony
Evidence of custom and practice, proved by expert testimony, is dispositive in proving the professional standard of care
- “does a reasonable blood bank test blood for AIDS?”
policy regarding professional standard of care
Policy in favor of applying PS: worried about hindsight bias for juries
Policy against applying the PS: does not incentivize innovation; removes agency of patient as decision maker (paternalistic)
professional standard of care majority
custom standard (THIS IS OUR RULE) majority
- actual or accepted practice within a profession, rather than theories about what ‘should’ have been done (osborn)
- experts used to prove/establish custom and practice in that context
professional standard of care minority
reasonable professional (this is NOT OUR RULE)
experts used to demonstrate what a reasonable professional would do in similar circumstances (discussing probability, magnitude, harms, burden)
who gets the professional standard?
- those specified by statute
- possess special knowledge AND have a relationship with their clients including a fiduciary duty (think about having a contractual duty to an individual like doctors, investors, lawyers)
other things to consider: an obligation to maintain confidences; handling of sensitive or confidential information
- “decision making in conditions of uncertainty”
Professional must have been acting in their capacity as a professional for the standard to apply
Companies in competitive industries are generally not given a professional standard to prevent collusion to that status quo. (Russel)
professional standard: informed consent
reasonable patient (OUR STANDARD)
- disclose all risks material to reasonable patient’s decision
- its objective! would a reasonable patient have the procedure anyway?
- policy – patient autonomy
- our RULE (largey v. rothman)
reasonable physician (NOT our standard)
- disclose all info a reasonable doctor would
- policy – docs know best, too much info for patients to get
what makes something material?
if it potentially affects the decision to go through with procedure, etc
causation for informed consent
P must show the reasonable patient would have decided differently if adequately informed
- if they would have had the procedure anyway –> not cause
failure to inform of material issue has to cause of harm
causation of informed consent our jurisdiction
MAJORITY (our rule)
- a reasonable patient would not have had procedure if properly informed
- objective
other jurisdictions - minority
- the actual patient would not have had procedure if properly informed
- subjective
toolbox for proving breach
hand formula
violation of statute
industry custom
res ipsa loquitor
hand formula
burden of prevention < [magnitude of the harms] x [probability of the harms]
b < pm = breach
b > pm = not likely breach
violation of statute (negligence per se)
what is it? martin v. herzog
how it is proven? thomas v. mcdonald
when a statute imposes a duty on a person and person fails to perform the duty, he is negligent if both: (violation of statue)
- harm occurred to someone in the class of people intended to be protected by the statute
- harm caused was the type of harm the statute was intended to protect against
three ways of interpreting violation of statute
- absolute negligence per se
- rebuttable presumption
- some evidence
absolute negligence per se
unexcused violation of statute is negligence per se and D is negligent as a matter of law
truck case
rebuttable presumption
unexcused violation of statute establishes prima facie case of negligence and D bears burden to show he was not negligent
if D fails to produce evidence he was not negligent, he is negligent as a matter of law
zeni case
some evidence
unexcused violation of statute is merely evidence of negligence; no prima facie case established. P gets a ‘little boost’ and may or may not satisfy burden of proof
industry custom
what those in the industry actually do
only provides some evidence of breach
customary way of doing things is generally ‘well-known and probably affordable and reliable as well’ TJ hooper
its possible an entire industry may lag in adoption of new and available tech and methods
Internal quality manuals of corporation are some evidence of breach but do NOT become the standard of care (Walmart)
Evidence of custom can be very relevant and persuasive; think of it as another tool to use to prove breach (industry custom)
- an industry may never set its own tests for what is reasonable in a given circumstance, but it’s custom may be persuasive
- if new tech is developed and is widely used and accepted, then it is negligent not to use it
res ipsa loquitor
establishing a prima facie breach
- Type of injury is usually associated with negligence
- The defendant had exclusive legal or physical control of whatever caused the injury
thing speaks for itself
Using circumstantial evidence as proof of breach (when no direct evidence/don’t know what exact breach is)
res ipsa applies if BOTH:
- the type of injury more likely than not occurs as a result of negligence
- If greater than 50% likelihood that this is the result of negligence = breach - the instrumentality that caused the harm was in the defendant’s exclusive control at the time of negligence
- Then it’s 100% on defendant that something negligent was the D’s responsibility
requirements for causation
- cause-in-fact
- proximate cause
cause-in-fact
the producing cause
the plaintiff must show the defendant’s negligent act was a cause in fact of the plaintiff’s harm
proving cause in fact
- but-for test
- alternative to but-for (alternative liability, lost chance, concert of action)
but for test
would P have been free from harm but for D’s breach?
- did this breach cause the harm? (be specific about breach)
- remove the breach, would that harm still have happened? if yes, breach is not the but for cause
can be multiple but-for causes
Cay v. Louisiana
Lyons v. Midnight
cay v. louisiana
If railing was 36’ instead of 32’, P would likely not have fallen over and died = height of railing is but-for cause
***Gives us but-for
RULE: the plaintiff must show by a preponderance of evidence that the defendant’s action or inaction was a cause in fact of the plaintiff’s injuries
lyons v. midnight
Collision would have occurred EVEN IF D had not been speeding, because P pulled car out of lot right in front of him = D’s speeding is not but-for cause
- Gonna happen anyway case
RULE: a negligent defendant cannot be held liable for a plaintiff’s injuries if the defendant’s negligence was not the legal cause of the injuries
alternative liability
when two actors acted unreasonably but only ONE caused the harm and defendant does not know who actually caused the harm
lost chance
liability for medical malpractice when act took away chance of survival
- ONLY applies when P already had less than a 50% chance of survival
concert of action (kinda)
ONLY applies if agreement between actors or tortious act OR a second actor substantially encourages or assists first actor
- Does a tortious act in concert with the other or pursuant to a common design; or
- D expressly or impliedly agrees to cooperate in a particular conduct or to accomplish a particular result - Knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other
- five relevant elements
5 relevant elements (concert of action)
- Nature of the wrongful act
- The kind and amount of the assistance
- The relation of the defendant and actor
- Presence or absence of D at the occurrence of the wrongful act
- D’s state of mind
concert of action application steps
- Full negligence analysis on the primary actor
- Full negligence analysis on the secondary actor for that actor’s own duty, breach, causation, and damages (determine if this actor can be held liable independently)
- Negligence analysis on the secondary actor determining whether there was an agreement with or substantial encouragement of the primary actor
alternative liability
Applies when multiple actors acted similarly unreasonably but only one or some of them (not all) caused the harm
- P must prove each D breached a duty to him
- burden of proof then switches to the D to provide evidence of who caused the P’s harm
- all D’s are liable if they cannot prove more likely than not which D caused P’s harm
Alternative liability is limited to two Ds in most courts; a minority allow the theory to be applied to three Ds
Policy: don’t want to prevent a P from recovering because they lack knowledge about the cause of injury
Summers v. Tice
lost chance
ONLY used in medical malpractice when P’s already less than 50% chance of survival is further reduced
P must prove by preponderance of evidence physician’s negligence (professional standard) caused likelihood of achieving a more favorable outcome to be diminished
Matsuyama case
Policy: incentivize doctors to provide best medical care for patients, even those with small chance of survival (advances in science and tech allow for precise calculations of impacts of medical treatment)
lost chance calculating damages
T$ * (CoSP - CoSA) = damages award
T$ = total amount of damages allowable for wrongful death/injury
CoSP = patient’s chance of survival immediately preceding the medical malpractice
CoSA = patient’s chance of survival after the medical malpractice
Summers v. Tice
RULE: two independent tortfeasors may be held jointly liable if it is impossible to tell which one caused the plaintiff’s injuries, and the burden of proof will shift to the defendants to either absolve themselves of liability or apportion the damages between them
P standing ahead of Ds when both Ds shot at quail in the direction of P, knowing he was there, and two pellets hit and injured P
- All acted unreasonably, but only ONE actually caused harm
- Ds left to prove own innocence to get out of liability – BOTH LIABLE bc neither proves
matsuyama case
doctor’s negligent misdiagnosis killed P with medical condition who had 37.5% chance of survival. Courts said while cancer was 62.5% (more likely than not) the cause of death, the misdiagnosis is 100% (more likely than not) teh cause of the loss of 37.5% chance of survival
RULE: a physician may be liable for damages when his negligence diminishes or destroys a patient’s likelihood of achieving a more favorable medical outcome
proximate cause
D’s conduct and P’s harm must have a connection that is reasonably close to justify imposing liability on the defendant
To be proximate cause, D’s conduct must satisfy the policy criteria used by a jurisdiction to determine they should pay for the harm they caused
purpose: Circumscribes liability to only defendants we think SHOULD be held accountable
three tests for proximate cause
each jurisdiction selects on these three tests to apply
1. directness - Polemis case
2. substantial factor - American truck leasing case
3. foreseeability - Tieder case
directness
whether the Plaintiff’s damage is directly traceable to the defendant’s negligence, rather than the result of independent causes having no connection with the negligent act
Factors evaluated for the directness test are:
- The time between defendant’s conduct and plaintiff’s harm
- The distance/space between defendant’s conduct and plaintiff’s harm
- The intervention of another actor between the defendant’s conduct and plaintiff’s harm
- The mechanism of the plaintiff’s harm
emphasis on natural sequence
the exact harm does not need to be foreseen under Polemis!
substantial factor
whether the contribution of a party’s act was relatively important compared with other but-for causes in producing the plaintiff’s harm
Factors evaluated in the substantial factor test:
- The number of other factors which contributed in producing the harm
- Whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm or has created a situation harmless unless acted upon by other forces for which the actor is not responsible
- The lapse of time between the actor’s conduct and the plaintiff’s harm
primary test for proximate cause in PA
foreseeability
whether the type of harm inflicted on the P was a reasonably foreseeable consequence of the D’s conduct
- Put yourself in the shoes of the negligent actor at the time of the alleged negligence and consider the salient possibilities (avoid hindsight bias)
Determine whether the type of harm, NOT the mechanism of harm would have been foreseeable
- all about how you cast your net
- P’s want type of harm to be broad, D’s want type of harm to be narrow
eggshell skull
a consideration for proximate cause, not a test
- applies in all proximate cause jurisdictions
Imposes liability when pre-existing conditions of the plaintiff are acted upon by the D’s negligence
Actor liable for all harms to P, regardless of whether those harms were foreseeable
- concerned about the extent of the harm (not type)
- D must take P as they find him
intervening and superseding causes
applies for all three proximate cause theories
all superseding causes are intervening causes; BUT not all intervening causes are superseding
generally, an intervening act is a superseding act when the act was not foreseeable
intervening cause
- 3rd party act that comes after D’s tortious act but before the plaintiff’s injury
- Must be factual cause to plaintiff’s harm and contribute to it
- Does not necessarily prevent liability
superseding cause
- An intervening act that prevents the defendant from being liable
- Breaks the chain of proximate cause
- Generally a criminal or intentional act
intervening and superseding reminders
- Applies regardless of proximate cause jurisdiction
- Chain remains unbroken when the third party’s act is reasonably foreseeable
- When is conduct unforeseeable? When it is criminal or intentional (generally)
- Suicide is always unforeseeable! Always superseding
- Medical malpractice is always foreseeable
directness factors evaluted
is P’s damage directly traceable to D’s negligence?
time,
space/distance,
sequence,
intervention of actor,
mechanism of harm,
foreseeability of harm to P
substantial factor evaluated
is D’s act relatively important to causing P’s harm relative to other but-for causes
of contributory factors + the extend of their effect;
whether the conduct has created a series of continuous forces acting up until time of harm; lapse of time
foreseeability evaluated
is the general type of harm inflicted on P a reasonably foreseeable consequence of D’s conduct?
Put yourself in the shoes of the negligent actor –> is it foreseeable this act would cause harm to the plaintiff?
Determine whether the type of harm, NOT the mechanism of harm would have been foreseeable
duty
legal obligation of an actor for the benefit of an injured person that arises between actor and injured person
people have a duty to exercise reasonable care
generally, there is no duty to act affirmatively or to rescue
- except if you created the risk or if a special relationship exists
Duty - Palsgraf
Cardozo (majority) – role of judge
- duty is relational
- duty to the foreseeable plaintiff (Was it foreseeable that some kind of harm would result to the plaintiff as a result of the defendant’s action?)
Andrews (dissent) – role of jury
- Owe a duty to everyone
- foreseeability treated as one of many components of a causation analysis once a defendant’s negligence has been established
- duty to act reasonably under the circumstances to all
- ** current standard **
foreseeability and the negligence analysis
Duty
- is there a foreseeable plaintiff?
- circumscribes scope of duty
Breach
- what is the probability (foreseeability) of harm? BPM
- assessing how much care a RP would take
Causation
- was the type of harm foreseeable?
- limits a defendant’s liability
act/omission (duty)
generally no duty to act affirmatively or rescue (if you did not create the risk)
if you do not create the risk, you do not need to act
special relationship (duty)
when (1) you control the mechanism that creates the risk of harm and (2) a party reasonably relies on your careful control to protect them from harm
- contract relationship is dispositive of reasonable reliance
- ex: innkeeper-guest, landlord-tenant, employer-employee, invitor-invitee
courts balance: social interests, severity of risk, burden on D, likelihood of occurrence, and relationship between parties, foreseeability to P, D’s ability to comply with duty, P’s inability to protect themselves, costs of protection
pure emotional harm
Cases where D’s negligence causes P to suffer no physical injury, only emotional injury
D who causes contemporaneous physical harm to a plaintiff will be liable in damages for both that physical harm and any emotional consequences of the harm
Places an artificial limitation on liability
- Must circumscribe somehow, despite number of people that could be hurt
- Court ensures family members, most likely to be hurt, can recover
direct emotional harm
for individuals who suffer emotional distress because of D’s negligence (P was in imminent bodily harm)
test: zone of danger
Policy rationale: fear of fraudulent suits, administrability, and judicial resources.
- Zone of danger broadens scope so plaintiffs have better ability to recover for harms
zone of danger (Robb case)
- person must be within the immediate area of physical danger presented by the negligence
- What harms were foreseeable as the result of the negligence?
- Could the plaintiff have been harmed physically? - person must have a physical manifestation of the emotional harm
- ex: lost bladder control, fainting, vomiting, PTSD
P still must prove causation and damages, even if pass zone of danger test
indirect emotional harm
For individuals who suffer emotional distress because of D’s negligence, rather than being personally in peril themselves
- You need to look at who you are analyzing to determine whether to use indirect or direct emotional harm!
test: modified dillon test (James case)
modified dillon test
- bystander must have marital or intimate familial relationship to victim
- most crucial factor
- Specific degree of consanguinity not required, but heavier burden of proving significant attachment the farther apart in consanguinity - bystander must have a sensory and contemporaneous observance of the incident
- Considers nearness in time and space of observer to incident
- Cannot rush onto scene after incident occurred or find them in hospital
- Cannot learn of events from others
- zoom/facetime – unclear if this would suffice - victim of physical harm observed must suffer serious injury or death
- minor injuries trigger sorrow/anxiety, but death/serious injury product profound grief, fright, shock
** physical injury resulting from emotional trauma is NOT required to satisfy dillon test **
pure economic harm
Defendant’s negligent conduct has caused P to suffer harms that are entirely economic
- If there is any contemporaneous property damage or personal injury because of the negligence, plaintiffs may recover for personal injury or property damage, as well as the economic harm suffered
foreseeability of the harm does not define duty
pure economic harm 532 Madison Ave
courts rationale:
- Avoid driving business to bankruptcy with ruinous liability (preventing any recovery)
- Ensuring people have jobs and economy grows
- Concerns that we won’t have essential businesses
- Should cover such risks with business insurance
- Good policy case!!!!
wrongful birth/life
Birth of healthy child → not a legally recognizable injury; contrary to public policy to award damages for birth or rearing of healthy child
- Cannot claim birth and rearing of healthy child resulted in damages to him
Failed sterilization procedure resulting in the birth of healthy child? → can recover for damages for hospital and medical expenses incurred with the sterilization procedures and pregnancy, pain and suffering of pregnancy, and loss of earning by mother during pregnancy
Birth of an unhealthy child? → damages for birth of unhealthy child born as the result of professional negligence shall be limited to damages associated with disease, defect, or handicap suffered by the child
special duty rules
unforeseeable plaintiff
- no, to cardozo
pure emotional harm
- impact rule
- zone of danger
- dillon test
pure economic harm
- limited to situations where there is personal injury or property damages
wrongful birth/life
- Birth of normal, healthy child?
- Failed sterilization procedure?
- Birth of unhealthy child?
duty summary
- Plaintiff (Palsgraf) - duty to only foreseeable plaintiff (cardozo) OR duty to all (andrews)
- act/omission - no duty to act
- exception: special relationship
- social host = no duty - special duty - emotional/economic/landowner
- Emotional = zone of danger, modified dillon test
- Economic = no recovery unless property damage/personal injury
- Landowner = licensee, invitee, trespasser (criminal, noncriminal, tolerated, attractive nuisance
landowner liability approaches
traditional – tripartite system (trespasser, licensee, invitee)
- degree of care designated by status of entrant at the time of injury
modern approach (USE THIS ONE)
- abandons tripartite system
- keeps distinction between trespassers
- abolishes licensee and invitee
- rationale: concerns about differentiating between members of three categories (lines blurry!). Want to take degree of reasonable care towards everyone (except certain kinds of trespassers)
trespasser definition
one who enters or remains on the land without permission or consent
wantonness
conscious doing of some act or omission of some duty under the knowledge of the existing conditions, conscious that injury will likely result
attractive nuisance
liable for harm caused by artificial condition upon the land if (usually kids cases)
(1) the place the condition exists is one upon which possessor knows or should know children are likely to trespass
(2) the condition is one which the possessor knows or should know and realizes or should realize will involve an unreasonable risk of death or serious bodily harm to children
(3) the children, because of their youth, do not realize the risk involved
(4) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight compared with the risk to children involved
(5) the possessor fails to exercise reasonable care to eliminate the danger or protect the children
discovered/frequent/tolerated
about what occupier of the land knows (not mental state of trespasser when entered land)
types of conduct for trespassers
Active conduct: ex: operating a machine
Passive condition: ex: presence of a cliff
trespasser with criminal intent (standard of care)
landowner must not intentionally injure
trespasser without criminal intent (standard of care)
landowner must refrain from willfully, wantonly, or recklessly injuring them
trespassers that are discovered/frequent/tolerated (standard of care)
reasonable care to protect the trespasser from injuries caused either by the landowner’s activities or by artificial conditions on the land
- Higher duty when landowner is engaged in active conduct than the passive conditions
trespasser that is a child drawn to attractive nuisance (standard of care)
reasonable care to eliminate known artificial hazards or protect children against them
has to be attractive to a kid
licensees
one who enters the land for their individual benefit or convenience with the owner’s consent; a social guest
Traditional standard of care – not to injure by willful, wanton, or grossly negligent conduct
- Must use ordinary care to warn of or make reasonably safe conditions if owners are aware of and licensees are not
Modern standard of care – reasonable care under the circumstances
invitees
one who enters land for a public business purpose for the mutual benefit or advantage of the landowner and the entrant
Invitee, rather than licensee, if person and landowner confer a mutual economic benefit on one another
Traditional standard of care – exercise ordinary care to protect from risks owner is aware of or should be aware or after reasonable inspection
Modern standard of care – reasonable care under the circumstances
public invitee
person who is invited to enter or remain on land as a member of public for purposes for which the land is held open to the public
business visitor
person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land
Nelson (landowner liability case)
modern courts have removed the distinction between licensee and invitee.
The duty of care owed by a landowner to a person legally present on their land is to exercise reasonable care under the circumstances
types of damages
compensatory
- General (“non-economic” e.g. pain and suffering)
- Specific (“economic” e.g. medical expenses)
punitive
- Meant to punish, provide deterrence
- Typically intentional/reckless cases
nominal
- Token amount signifying D committed a tort
damages reminders
Status quo - want to make the plaintiff whole - bring plaintiff to status quo before harm occurred
One shot - only have one chance to establish damages
- You deal with uncertainty at times, so it all depends on the quality of the evidence
Damages are all about proof
survival statutes
NOT a new cause of action
Allows P’s estate to sue on his/her behalf as if plaintiff survived and asserted plaintiff’s rights, even though plaintiff is dead
** P’s cannot double recover under wrongful death and survival **
wrongful death statutes
NEW cause of action for survivors of victim
Allows people who have suffered losses because of another’s tortiously caused death to recover any kind of pecuniary damages
Permits two types of recoveries:
1. Recovery for injuries sustained from time of injury to death (funeral expenses, medical expenses)
2. Recovery for incidental damages suffered by next of kin (loss of consortium)
calculating damages principles
- judges and juries have a lot of discretion
- awards are only disturbed if clear abuse of discretion
- prior awards under similar circumstances
- test = whether present award grossly disproportionate to mass of past awards for truly similar injuries
calculating medical expenses
past
- Rule: tortfeasor required to pay medical expenses of victim
- How to prove: P can give evidence of what he spent
future
- Rule: must be necessary and inevitable, burden includes P proving he wants/accepts the tx
- How to prove: put expert doctor on stand
calculating lost wages
past
- Rule: need to prove length of time missed from work and past lost earnings and residual disability causally related to accident
future
- Rule: need to prove above + reasonable degree of certainty
apportionment and allocation
Remember → we do not get to the point of apportioning fault for a party unless there was a duty that was breached that caused harm!
We only allocate between liable parties
Lacy v. CSX Transportation
Lacy v. CSX Transportation
Both defendants were 1% responsible for the harm but because the plaintiff was the sole proximate cause of harm; it is not possible to apportion in this way unless each person was the cause of harm
joint and several liability
Each defendant is liable for the entire judgment awarded to the plaintiff regardless of defendant’s percentage of responsibility
Plaintiff will often seek to collect entire judgment from wealthiest defendant
policy; making P whole, ensure P recovers even if one of the D’s cannot pay their share
right of contribution
right of contribution
after defendant pays whole judgment to plaintiff, a cause of action arises at moment of overpayment for unjust enrichment against defendants who have not paid
contributory negligence
defendant must prove plaintiff had a duty to him/herself, plaintiff breached that duty, and plaintiff’s breach caused him/her to suffer damages
Requires FULL NEGLIGENCE ANALYSIS on the plaintiff
A defense in joint and several liability jurisdiction
If jury finds that the plaintiff is ANY PERCENT contributorily negligent = FULL DEFENSE
Plaintiff cannot recover anything if even 1% liable
comparative fault
defendant must prove plaintiff had a duty to him/herself, plaintiff breached that duty, and plaintiff’s breach caused him/her to suffer damages
DEFENSE: modified comparative fault
comparative fault categories
traditional contributory fault
- Plaintiff’s negligent conduct is a total bar to recovery if it was one of the legal causes of plaintiff’s injury = NO RECOVERY IF PLAINTIFF IS AT ALL LIABLE
- Negligent defendant(s) shielded from all liability
49% rule (modified comparative fault - OUR JURISDICTION)
- McIntyre case
- Negligent plaintiff recovers damages only if their negligence is LESS THAN that of the defendant or other defendants
- Plaintiff is 49% responsible for own harm = can recover
50% rule
- Negligent plaintiff can recover damages only if their negligence is LESS THAN OR EQUAL TO that of the defendant or defendants
- Plaintiff 50% responsible for own harm = can recover
pure
- Each party liable only for their apportioned responsibility
- If one of the liable defendants cannot pay, plaintiff bears the loss
- If plaintiff is liable, sum of judgment collectible from defendants is total judgment less plaintiff’s contribution
more defenses to negligence
Protects defendant from liability for negligence even if plaintiff can establish a prima facie case of negligence against the defendant
contrib neg (J+S) = full defense
modified comparative fault
assumption of the risk = full defense
sovereign immunity = full defense
statute of limitations
assumption of the risk
Courts characterize this as venturesomeness (Whereas contrib neg = carelessness)
Can assume risk AND be contributorily negligent (or just one or neither)
Giving up the right to sue a defendant for harms that might be caused in the future by the defendant’s negligence
expressed (written) or implied (inferred from circumstances)
a full defense!
express assumption of the risk
Involves a written release where P accepts risks created by activity
Courts are reluctant to allow those charged with a public duty to rid themselves of that obligation by contract (ex: common carrier, innkeeper, public utility)
Odessa/Wagenblast test to determine if written releases should be upheld
Odessa/Wagenblast test
- Does public policy permit releases in connection with this activity?
if yes, go to step 2. if no, release = invalid - If public policy permits assumption of the risk, does the actual release furnished to the plaintiff merit enforcement
if yes, release is valid. if no, release = invalid
** necessity and monopoly are two most important factors **
- Releases signed under conditions not providing the plaintiff with an informed voluntary choice or that contain oppressive terms are unenforceable
- Releases typically construed by courts in favor of plaintiff
odessa/wagenblast step 1 factors
(1) agreement concerns an endeavor generally suitable for public regulation
(2) performing a service of great public importance, often a matter of practical necessity for some of public
(3) willing to perform service for general public, or any member within established standard
(4) decisive advantage in bargaining strength against public because of the essential nature of the service
(5) standardized adhesion contract with no provision to pay reasonable fees for protection
(6) person/property is under the control of the furnisher of services, subject to carelessness of the furnisher
implied assumption of the risk
inferred by the circumstances when no contract is present
two part test
1. P must have actual knowledge of the particular risk
2. P must voluntarily encounter the risk
*** be precise about the risk
- what risk does P actually know exists? did he voluntarily encounter it?
