Tort of Negligence

Question 1

Elements for Prima Facie Negligence Claim

Answer 1

A.K.A. Tort of Negligence

1. Act or Omission
2. Duty to Conform to a Standard of Care (Due Care)
3. Breach of that Duty
4. Cause in Fact
5. Proximate Cause
6. Actual Damages

Must show all for a claim of negligence

Question 2

Negligence Per Se

Answer 2

A.K.A. Concept of Negligence

Breach of the standard of reasonable care (elements 2 & 3 of prima facie negligence)

Question 3

Adams v. Bullock, 1919

Answer 3

Standard of Care

F: Young boy (P) walking over bridge, playing with wire that touched the trolley line a boy was burned.

I: Was trolley company (D) exercising due care?

H: Yes. Case dismissed. No way for D to foresee accident. Only extraordinary circumstance would case wires to be dangerous. Use of reasonable care standard is determined by the circumstances Case would likely go other way today –> would probs go to jury

Question 4

Hand Test

Answer 4

Standard of Care (United States v. Carrol Towing - case where barge was negligently fastened and broke away and caused damage)

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<p>B: Burden of precaution</p>

<p>P: Probability</p>

<p>L: Loss/Injury</p>

<p>The reasonable person would take the precaution if it were less than the probability of injury </p>

<p>Instruction is almost never given to juries - too difficult to calculate</p>

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Question 5

Reasonable Person Standard

Answer 5

General average of the community

• What the average person of a community thinks ought to be done not necessarily what is ordinarily done

Most common jury instruction

Question 6

Categories of Standard of Care

Answer 6

1. General Duty of Care - everyone owes it and is expected to act reasonably
2. Reasonable Person Standard
3. Individuating Circumstances
4. Special Standards of Care

Question 7

Individuating Circumstances for Standards of Care

What are/aren’t?

Answer 7

What is considered an individuating circumstance?

1. Physical defects - what a reasonable person with that defect would do (blind person could walk out in front of car)
2. Children - judged by a reasonable child of that age, but not children doing adult activities (like driving)
3. Sudden Illness (w/o warning)
4. Emergency Doctrine: person confronting an emergency (not of their making) only an honest exercise of judgment required
5. Superior Capacities (doctors, professionals)

What is not considered an individuating circumstance?

1. Mental disabilities - burden is shifted to caretaker (exception for extreme cases)
2. Drunks - judged by sober standards
3. Poor - judged by same standards as rich (but wealth and resources may be taken into account)
4. Beginners - held to standard of reasonably skilled
5. Intelligence
6. State of Mind - we are only interested in conduct

Question 8

Special Standards of Care

Answer 8

Some individuals are held to a higher standard of care than the “reasonable man” standard.

Professionals are held to the standard of a reasonable professional in the field (like doctors, lifeguards, etc.)

Question 9

Common Carriers Standard of Care

Answer 9

Old Standard: Highest degree of care that human caution and foresight can suggest

New Standard: Held to the same standard as the “reasonable man”

Question 10

Bethel v. NYC Transit Authority, 1998

Common Carriers

Answer 10

Standard of Care - Common Carriers

F: P was injured on bus when wheelchair accessible seat collapsed. P sued bus driver (D)

I: Was D (common carrier) held to the heightened standard of care (highest degree of care that human caution and foresight can suggest?

H: No. Technological advances have gotten rid of the need for highest standard of care for common carriers. (Used to be high b/c of steam railroads that were really dangerous, now not as dangerous). It is just as safe to travel on public transportation as is private transportation

Question 11

Pokora v. Wabash Railway Co. 1934

Cardozo

Answer 11

Standard of Care - Reasonable Person

F: P attempted to cross the train tracks of an obscured intersection (obstructed by RR car). He did not get out of his vehicle to get a better view and was hit by a train and died.

I: Is an individual required to get out of their car and check to see if a train is coming before crossing a track?

H: No. Driver must act with reasonable care (standard). Essentially overrules Baltimore RR v Goodman, says that Goodman case only applies to those specific facts. P and RR have a relational aspect of care, they both should yield for each other. Question of whether each party exercised due care should be left to the jury. (P may have been found to be responsible under Holme’s Rule and RR would prevail. Rule would be “Stop, look, listen”)

Question 12

Baltimore & Ohio RR v. Goodman 1927

Holmes

Answer 12

Standard of Care - Rules v. Standards

F: P was driving and crossed an RR track with an obstructed view (obstructed by a house). He did not get out of his vehicle to check if a train was coming and was struck and killed.

I: Is an individual required to get out of their car and check to see if a train is coming before they cross the tracks?

H: Yes. There is a rule of “Stop, look, and listen” and if you fail to perform those actions, you are responsible for any injuries incurred. P needs to adjust their behavior for the train, not the other way around. (If this was under the Cardozo approach, a standard would be applied and D RR would be liable)

Question 13

Rules v. Standards

Holmes v. Cardozo

Answer 13

Holmes Rule

+’s: objective, clear, uniform, specific

-‘s: arbitrary, rigid, unrealistic, narrow – encourages behavior that is questionable (right up to the line of the rule)

Policy: if you distrust juries, you might find rules more favorable

Cardozo Standard

+’s: flexible, adaptable, individualized, allows for greater justice

-‘s: vague, overly subjective, inconsistent

Question 14

Andrews v. United Airlines, Inc.

1994

Answer 14

Judge, Jury, & Custom

F: While on a United Flight, a briefcase fell from overhead and badly injured P. United had a warning in their pre-flight announcements drawing attention to possible items stored in overhead might have shifted during flight. Court found no issue of fact in dispute (no way for P to establish a lack of utmost care)

I: Should United have been granted summary judgment?

H: No. P made a sufficient case to overcome summary judgment. P didn’t need to prove United was negligent, just that could be negligent based on the utmost standard of care instruction. It is up to a jury to decide whether an airline has a duty beyond warning passengers about falling luggage

Question 15

Trimarco v. Klein

1982

Answer 15

Judge, Jury, & Custom

F: P was injured when his bathtub enclosure’ glass door shattered. P sued the D (owner of building) for not following custom and replacing the enclosure with shatterproof glass as they had come into common use. the other glass no longer conformed to accepted safety standards.

I: Was D’s failure to use shatterproof glass conclusive proof that they have not acted with due care as to warrant liability?

H: No. It’s a jury question whether one has acted with due care under particular circumstances. Custom may be used as evidence that one has failed to act as is required, but it’s not conclusive.

Question 16

Roles of Custom

Answer 16

1. If an industry adheres to a single way of doing something, the court may be wary of a P’s assertion that there are safer ways to do that thing
2. Even if the P can show a feasible alternative, the fact that it may not have been in use anywhere may suggest that it wasn’t unreasonable for the D to be unaware of the possibility
3. The existence of a custom that involves large fixed costs may warn the court of the social impact of a jury or court decision that determines the custom to be unreasonalbe

Question 17

Is Custom a Standard of Care?

Answer 17

No.

(only in medical malpractice cases)

It can be used as a good indicator of a standard of care (used by juries)

Can also be used as evidence for feasibility and practicality

• Ex: if all airlines except for United had retrofitted and added nettings to their overhead compartments, United wouldn’t be able to argue that adding these things wasn’t feasible

Question 18

How do we determine what is reasonable, in terms of the reasonable person?

Answer 18

1. Putting the jury in the shoes of the plaintiff/defendant
2. Custom
3. Statutes and Regulations

Question 19

Martin v. Herzog, 1920

Answer 19

Statutes for Standard of Reasonable Care

F: P driving without lights, got into car crash with D, who was drifting into the other side of the road.

I: Did the failure to use headlights constitute negligence per se?

H: Yes. The violation of a statute can be negligence per se and the violator may be required to pay damages if it results in an accident.

Question 20

When can a statute be adopted as a standard of care?

Answer 20

When the purpose of the statute is:

1. To protect a class of person
2. the interest invaded must be that which is protected by the statute
3. the harm must result from the kind of hazard sought to be avoided by the statute
4. the statute must protect from the kind of harm

Licensing statutes are generally not used as standards of care (unlicensed driver –> lack of license is irrelevant to tort claim)

Question 21

Tedla v. Ellman, 1939

Answer 21

Statutes

F: Ps were walking along the wrong side of the highway, in violation of New York statute, and were hit from behind by D where one P was killed and the other badly injured.

I: If a pedestrian who at the time of the accident violated a statute is automatically negligent.

H: No. Does not constitute negligence as a matter of law where observance would subject a person to danger which could be avoided by disregard of the general rule.

Question 22

Excuses for Negligence Per Se (RS3 Section 15)

Answer 22

1. the violation is reasonable in light of the actor’s childhood, physical disability, or physical incapacitation
2. the actor exercises reasonable care in attempting to comply with the statute
3. the actor neither knows nor should know of the factual circumstances that render the statute applicable
4. the actor’s violation of the statute is due to the confusing way in which they are presented
5. the actor’s compliance with the statute would involve a greater risk of physical harm to the actor or to others than noncompliance

Question 23

Negri v. Stop & Shop, Inc., 1985

Answer 23

Proving Negligence with Circumstantial Evidence & Constructive Notice

F: involved a slip and fall case where broken jars of baby food were found on the floor and likely the cause of the fall

I: Was there sufficient evidence that the D was negligent?

H: Yes. There was circumstantial evidence (witness said they didn’t hear the jars fall in the 15-20 minutes before P fell) that the D had constructive notice of the dangerous condition of the floor, and didn’t do anything to clean it up.

Question 24

Gordon v. American Museum of Natural History, 1986

Answer 24

Constructive Notice

F: P fell on the D’s (Museum) front steps and while falling said that he observed a piece of white, waxy paper near his foot and claims that the paper came from the D’s contracted concession stand. P said D had actual or constructive notice that the stairs were in a dangerous condition b/c of the paper.

I: Did D have constructive notice of the waxy paper, which caused the P’s accident?

H: No. There was no evidence that anyone, including P, observed the piece of waxy paper prior to the accident. Paper could’ve landed there a few seconds before P fell.

Question 25

Constructive Notice

Answer 25

Notice that is presumed by law to have been received on account of existing facts and circumstances, in contrast to direct notice.

Question 26

Byrne v. Boadle, 1863

Answer 26

Res Ipsa Loquitur

F: P was injured when a barrel of flour fell out of the D’s window and knocked P down. Originally the court ruled in favor of the D b/c there was no evidence of negligence

I: Did the D’s negligence cause the barrel of flour to fall out of his shop window?

H: It can be assumed that it did. Even though there wasn’t any evidence to support that D’s negligence caused the accident, the barrel didn’t fall out of the window on its own without some kind of negligence. The fact that the accident took place is enough to show negligence

Question 27

Res Ipsa Loquitur (just definition)

Answer 27

Latin for “the thing speaks for itself,” an evidentiary doctrine providing that, under certain circumstances, the very fact that an accident occurred leads to an inference that the accident was caused by negligence.

You don’t want to do too much discovery when claiming res ipsa, b/c you may discover yourself out of a case.

Question 28

Qualifications of Res Ipsa (Jury Instructions)

Answer 28

1. The accident would not have occurred absent someone’s negligence
2. The plaintiff has to show that the defendant was in the exclusive control of the damaging device
3. Plaintiff didn’t contribute to her own harm

• Not always part of the Res Ipsa test, but often brought in.
• All elements burden of proof is different depending on jurisdiction
• If res ipsa requirements are met, the burden goes to the defendant to produce some credible evidence that there wasn’t any negligence

Question 29

McDougald v. Perry, 1998

Answer 29

Res Ipsa

F: P was driving behind D’s car when a spare tire of D’s car came loose and crashed into P’s windshield. P filed claim of negligence against D without providing any evidence.

I: Did res ipsa loquitur apply in this case?

H: Yes. Res Ipsa is applicable to wayward car wheel accidents. The spare tire falling out of its cradle would not have occurred but for respondent’s failure to exercise reasonable care.

Question 30

Burdens to Prove that there wasn’t Negligence (D’s defense for Res Ipsa)

Answer 30

1. Burden of Inference: accidents happen, sometimes without any negligence.
2. Burden of Production: party needs at least some credible evidence to show that there wasn’t negligence (doesn’t need a preponderance)
3. Burden of Persuasion: party needs to show enough credible evidence that there wasn’t negligence by the preponderance of evidence

If defendant can’t satisfy these burdens, the jury must find for the plaintiff

Question 31

Sheeley v. Memorial Hospital, 1998

Answer 31

Standard of Care for Experts - Expert Witnesses

F: D (doctor) performed an episiotomy on the P after P gave birth. D botched it and caused severe damages. P wanted to introduce expert witness to testify how easy this procedure was, but had way more qualifications that D.

I: To testify regarding the standard of care in a medical malpractice case, must an expert witness be of the same skill and locality as the D?

H: No. It doesn’t matter that the expert was more qualified than the D, just requires prerequisite knowledge, skill, experience, etc. in the field of the alleged malpractice. Additionally, locality rules no longer fit the present-day medical malpractice case. Instead adopt the national standard.

Question 32

Matthies v. Mastromonaco, 1999

Answer 32

Medical Malpractice - Standard of Care

This case represents the movement of failure to obtain informed consent from a tort of battery (based on a patient’s right to refuse the kind of nonconsensual touching) to a tort of negligence where the doctor as breached the medical standards of care.

F: P broker her hip and the D (doctor) prescribed bed rest instead of surgery. D did not inform P of the surgery option or that her quality of life would worsen. P got worse and eventually had to go to a nursing home.

I: Does the doctrine of informed consent require a doctor to obtain consent before implementing a nonsurgical course of treatment?

H: Yes. Failure to obtain informed consent is a form of medical negligence

Question 33

Duty Analysis

Answer 33

1. Basis for Duty - Is there a duty?
2. Trigger - What events gave rise to the duty?
3. Scope - What limits, if any, on the exercise of reasonable care?
4. Extinction - What suffices to discharge or satisfy the duty?

Question 34

Basis for Duty - Classical Approach

Answer 34

1. Generalized duty of due care (might not go in this list)
2. Affirmative Conduct that poses risk to another party (like driving, you have a duty to drive with reasonable care)
3. Reliance
4. Undertaking (similar to affirmative conduct)
5. Special Relationship
6. Statute as a source of duty
7. Non-Negligent Injury
8. Non-Negligent Risk Creation

Some of these may also be a trigger (undertaking and special relationship, for example)

Question 35

Modern Approach to Basis for Duty

Answer 35

Majority: Foreseeable duty of care - duty to those that you could foresee hurting based on your action

Minority: Generalized duty of due care toward everyone and then there are some No Duty exceptions

Question 36

Limits to Duty (Scope)

Answer 36

Example: Power Plant that caused the power to go out in New York City. The number of people arguably injured because of this could be astronomical (tons of litigation), so the court does not impose a duty toward all of those affected by the power outage.

Question 37

Why don’t we just say that everyone should operate with reasonable care at all times?

Answer 37

Could easily get out of hand.

• You can’t buy a new car or go on vacation because it would be more reasonable to spend that money on groceries or savings.

Question 38

What constitutes a “Special Relationship”? What doesn’t?

Answer 38

Special Relationship:

• Innkeeper – Hotel Guest
• Prison Guard – Prisoner
• Common Carrier – Rider
• Parent – Child

Not a Special Relationship:

• Companions in a social venture (could maybe be argued, though)

Question 39

Reliance (Basis for Duty)

Answer 39

The injured person relies on one individual to save him

If the person is not aware of what’s going on (unconscious, for example) there is no reliance

Question 40

Undertaking

Answer 40

Where one person undertakes to help the injured person (example: when the D in Farewell v. Keaton provided an ice pack to the P, that was an undertaking)

Question 41

Extinction (Analysis of Duty)

Answer 41

Example: In Farewell v. Keaton if the D had informed the grandparents that the P was severely injured, or if D had brought P to the hospital, that likely would have extinguished his duty.

Question 42

Farwell v. Keaton, 1976

Answer 42

Duty

F: Two friends were out drinking and got into fight. One friend was severely injured (P). The other friend (D) provided P an icepack and drove around a while. While P was unconscious in the backseat, D dropped the car off at P’s GP’s house and didn’t tell them P was hurt.

I: Did the duty to aid exist in this circumstance?

H: Yes. Where a person voluntarily attempts to aid someone in peril, or where a person knows that someone is in peril and there is a special relationship between the parties, an affirmative duty arises to exercise reasonable care in rendering aid.

Question 43

Randi W. v. Muroc Joint Unified School District

Answer 43

Duty

F: ∆s wrote a positive letter of recommendation for Grahams, despite knowing there were complaints against him for sexual misconduct. Π’s school district relied on those letters in hiring Graham, who then assaulted the π.

I: Did the ∆ have a duty to the π?

H: Yes. Everyone has a general duty to use ordinary care to prevent injury to others from their conduct (modern approach). This court looked at exceptions to that rule (look at flashcard) and found that this case was not one of those. Also considered: foreseeability of harm, moral blame, availability of insurance or alternative courses of conduct, and public policy.

Question 44

Arguments for No Duty under the Classical Approach

Answer 44

Basically rule out all of the basis’ for duty listed under the classical approach.

1. There was no generalized duty of care (fix if not supposed to be under classical)
2. There was no affirmative duty present
3. There was no special relationship between the parties
4. There was no reliance on the part of the injured party
5. No undertaking by the defendants
6. There was no non-negligent injury or risk creation

Question 45

Factors that influence if Duty exists under the Modern Approach (Basis of Duty)

Answer 45

These are all just considerations for the court to look at when determining whether a duty exists.

1. Foreseeability of harm to the P
2. The degree of certainty that the P suffered injury
3. Closeness of the connection between the D’s conduct and P’s injury
4. Moral Blame
5. Policy of preventing future harm
6. The extent of the burden to the D and consequences to the community of imposing a duty to exercise care with resulting liability breach
7. The availability, cost and prevalence of insurance (or alternative conduct) for the risk involved

Question 46

Tarasoff v. Regents of the University of California

Answer 46

Modern Approach to Duty - Therapists

F: Ds (therapist and University employees) did not warn victim of patient’s intentions to kill her. Patient killed victim.

I: Does a psychiatrist or therapist have a duty to exercise reasonable care to protect others from the dangers his patients pose?

H: Yes. Under the modern approach for duty, the court considered those factors and found that the duty imposed was in the scope of generalized duty. Under the classical approach, Ds likely wouldn’t have a duty to the victim (she was not a patient of theirs, no reliance (probably didn’t know there was a threat), and no undertaking by the Ds).

Warning the victim likely would have extinguished D’s duty. Duty to warn is important for health care professionals (hospitals have duty warn of contagious patient in the building)

Question 47

Strauss v. Belle Realty. Co., 1985

Answer 47

Policy for invoking No Duty

F: P was injured during a power outage. P didn’t directly have a contract with the utility company, rather it was his landlord.

I: Do utility companies owe a duty of care to persons lacking a contractual relationship with them?

H: No. Court said that as a matter of public policy, liability for injuries in a building’s common areas should be limited by the contractual relationship. Allowing relief would violate the court’s responsibility to define an orbit of duty that placed a controllable limit on liability

Question 48

Ruling from Moch Case

Answer 48

F: P sued city for insufficient water in a fire hydrant to put out a fire. P had a contract with the city to supply water for various purposes.

I: Did the city owe P a duty?

H: No. The failure in such circumstancies to furnish an adequate supply of water is at most the denial of a benefit not the commission of a wrong

Question 49

Reynolds v. Hicks

Answer 49

Policy for Invoking No Duty

F: Underage kid was drinking at the D’s wedding. Kid drove while under the influence and hit the Ps. Ps sued the D’s because they were social hosts and provided the alcohol.

I: Are social hosts liable to third parties where one of their guests injuries that party?

H: No. Commercial vendor liability should not be extended to social hosts. Social hosts are not expected to exercise the level of supervision as expected for commercial vendors. Also, commercial vendors have a profit motive.

Question 50

If there isn’t a duty then…

Answer 50

we don’t have to tackle the question of reasonable care

Question 51

Vince v. Wilson

Answer 51

Policy for Invoking No Duty

F: D provided funding for grandnephew to buy a car even though he knew that the grandnephew didn’t have a drivers license and had failed the test several times. Nephew got into an accident and injured the P. P filed suit against D.

I: Was D liable to P for negligent entrustment?

H: Maybe (will go to jury trial). D knew that grandnephew shouldn’t drive and provided the money anyway which created the unreasonable risk.

Question 52

Negligent Entrustment

Answer 52

Where one party (the entrustor) is held liable for negligence because they negligently provided another party (the entrustee) with a dangerous instrumentality, and the entrusted party caused injury to a third party with that instrumentality.

Question 53

Trespasser (Land Occupier Liability)

Answer 53

Person who enters or remains on the premises without permission.

The duty owed: refrain from willful harm or maintaining a trap, no obligation to keep the land in “reasonably safe conditions” and no obligation to carry on activities so as to avoid endangering a trespasser.

Exceptions: known trespassers (may have a duty to warn of artificial, human made, and hidden dangers) and child trespassers

Question 54

Licensee (Land Occupier Liability)

Answer 54

Person who enters with express or implied consent of the owner.

Duty owed: warn of concealed, artificial, or natural dangers on the property known or foreseeable to the land possessor, and to carry out activities with reasonable care.

Question 55

Invitee (Land Occupier Liability)

Answer 55

Person who enters the premises with express or implied consent and they are on the premises for a potential benefit of the land occupier (business invitee) or they are on the premises that are held open to the general public (hospital/library) with the plaintiff being there for the purposes the premises are held open.

Duty Owed: duty of reasonable care as to premises and activities, if the occupier knows or should know of the danger - they must warn or remedy the condition - must also look for and remedy the condition

Just because someone is invited over, that doesn’t automatically make that person an invitee

Question 56

Traditional Approach to Landowner Duties

Answer 56

Classic approach.

Duty of the landowner depends on the person entering the premises

Functions as a rule (not a standard)

Recognizes three broad class of plaintiffs:

1. Trespasser
2. Licensee
3. Invitee

Question 57

Carter v. Kinney, 1995

Answer 57

Traditional Approach to Landowner Duties

F: P signed up at church for a home bible study at the D’s home. P slipped on a patch of ice at D’s house and sued Ds for negligence.

I: Was P an invitee or a licensee and what was D’s duty to him?

H: Licensee. Licensee b/c P did not provide a material benefit to the D’s, and D’s home was not open to the public. The hosts did not have a duty to the licensee with respect to a dangerous condition of which they had no knowledge.

Question 58

Modern Approach to Landowner Duties

Answer 58

No longer a distinction between licensee and invitee and establishes a duty of reasonable care for all lawful visitors (not trespassers, though).

Justification: reasonable people don’t ordinarily change their conduct based on the reason for their visit (Ex: if someone goes into a hospital to buy something from a vending machine, he would be entitled to recovery, but not if he was there to visit his daughter)

• instead of entrant status, the foreseeability of the injury should be the controlling factor in determining liability of the landowner

Dissent:

• puts a heightened standard on the landowner (ex: YMCA would have to treat uninvited users of its facilities the same as paying customers)
• gets rid of predictability of the common law

Question 59

Heins v. Webster County, 1996

Answer 59

Landowner Liability - Got rid of distinction between licensees and invitees to establish a duty of reasonable care for all lawful visitors

F: P was visiting his daughter at the hospital (D) when he slipped and fell on an ice patch. P sued D

I: Was D liable for P’s injury?

H: Yes. Court decided to do away with the distinction between licensee and invitees and instead require landowners to apply a duty of reasonable care fro all lawful visitors. Modern society doesn’t take into account those distinctions, so it’s not fair to provide different levels of recovery.

Question 60

Tort Liability for Public Entities

Answer 60

Two themes pervade the different treatment of tort liability for public entities:

1. Governmental officials make many policy choices, balancing costs and benefits for public or political gain
2. Much of governmental activity is in the affirmative duty sphere: protecting the public from risk created by others

Question 61

When is a landlord liable to a tenant?

Answer 61

If the injury is attributable to:

1. A hidden danger in the premises of which the landlord but not the tenant is aware
2. Premises leased for public use
3. Premises retained under the landlords control, such as a common stairway
4. Premises negligently repaired by the landlord

• Landlord must act as a reasonable person under all circumstances
• Landlord is in the best position to avoid harm to people so some argue that they should be given a higher standard of duty

Question 62

Riss v. City of New York, 1968

Answer 62

Municipal and State Liability

F: A rejected suitor terrorized P by threatening to kill or maim her if she didn’t date him. P went to the police (D) for protection which was refused. The rejected suitor later threw lye in P’s face permanently scarring her face and leaving her blind in one eye and lost a portion of vision in her other eye. P sued D for failure to protect her.

I: Are the police liable for failure to protect a member of the public?

H: No. Because police have a duty to everyone, they don’t have a duty to anyone in particular. They have limited resources so they can’t possibly deal with that duty standard. Distinguished from the situation where the police undertake responsibilities to particular members of the public and expose them to risks (administer care really poorly).

Question 63

Dissent from Riss v. City of New York

Answer 63

Regarding municipal liability.

1. They should remove immunity for municipalities.
2. Police would not be sued everytime there is a crime, police just need to act as a reasonable man, plus proximate cause & foreseeability would keep liability within reasonable bounds
3. Municipalities cannot escape liability for damages caused by their failure to do even a minimally adequate job of it
4. Regarding the judge’s role, judges examine administrative-legislative decisions all the time and have made determinations of how resources should be allocated before.
5. Imposing liability for failure to protect is just like imposing liability for negligent maintenance of highways or hospitals.

Question 64

Lauer v. City of New York, 2000

Answer 64

Municipal and Government Immunity

F: P’s son died and the medical examiner ruled the death as a homicide. Police investigated the P. Weeks later the ME determined that the child’s death was not due to homicide, but failed to correct the record (could be considered a non-negligent injury). Police continued the investigation for another 17 months. P brought claims against city.

I: Does a medical examiner owe a duty to individual members of the public who may become subjects of a criminal investigation into a death?

H: No. A municipality is immune from liability for a public employee’s discretionary act but may be subject to liability for a public employee’s ministerial acts. This was a ministerial act, but for municipal liability there must be a duty owed directly to a particular person and not to the public generally. Here, the ME didn’t owe a duty directly to P. MEs perform autopsies and prepare reports for the benefit of the public generally, not a particular person. Court declined to enlarge the orbit of duty to include P and subjects like P.

Dissent: This ruling regard alleged misconduct gives government agents an incentive to hide their wrongdoings.

Question 65

Difference between the government’s discretionary acts and ministerial acts

Answer 65

• Discretionary: conduct involving the exercise of reasoned judgment – municipality is immune from claims involving discretionary conduct (even if negligent)
• Ministerial: conduct requiring adherence to a governing rule, with a compulsory result – removes immunity from the municipality, but P’s still need to be within the municipalities orbit of duty to successfully bring a claim for negligence. (ex: Medical Examiner’s orbit of duty is to the public generally, not to individual members of the public)

Question 66

Factual Causation/Cause in Fact

Answer 66

The D’s negligence (or other tortious conduct) caused the harm for which the P is suing.

• The D’s negligence does not need to be the only cause of P’s injuries, but needs to be a necessary one.

Question 67

“But for” Test

Answer 67

Cause in Fact/Factual Causation

Main Test for Cause in Fact

“But for” the defendant’s conduct, the plaintiff would not have been injured

• Doesn’t always work (sometimes produces the wrong result)
• Ex: If two fires negligently made cause a house fire, this test would result in no cause in fact and both would get off the hook (see “substantial contributing factor” test to resolve this)

Question 68

Substantial Factor Test

Answer 68

Cause in Fact/Factual Causation

Use this test when the “but for” test fails (when there is more than one cause)

Defendant is liable because they had a substantial contribution to plaintiff’s injury

Question 69

Stubbs v. City of Rochester, 1919

Answer 69

Cause in Fact/Factual Causation

F: City (D) had two separate water systems: one for drinking, and the other for firefighting. The drinking system became contaminated with the firefighting system which had sewage present. P drank water from the drinking system while he was at work and became ill with typhoid fever. P sued D for negligence.

I: Where there were several possible causes for P’s injury, to show that the D caused the injury, must the P first eliminate all other possible causes?

H: No. Where there are several possible causes for P’s injury, the P must show that his injury was a direct result of D’s conduct, but this doesn’t mean that P must eliminate all other possible causes. This would require P to eliminate causes that haven’t even been discovered yet. Where an injury has two or more possible causes, a P must only establish with reasonable certainty that his injury was directly caused by one of the causes for which the D was liable.

Question 70

Matsuyama v. Birnbaum, 2008

Answer 70

Cause in Fact - Last Chance Doctrine

F: P had been seeing a doctor (D) for a number of years complaining of stomach pain. D continued to diagnose and treat P for heartburn. Years later, they discovered that it was actually stomach cancer and P’s chance of survival had significantly declined from the first time he approached D. P died shortly after cancer diagnosis.

I: Is a physician liable for damages when his negligence reduces a patient’s chance of a more favorable result, even where the chances were low to begin with?

H: Yes. Court applied the Loss of Chance Doctrine and determined that D’s negligence significantly reduced P’s chance of survival.

If the court had applied the “but for” test, P would still likely die based on the percentage chance of survival in the first place - but that would not lead to justice.

Question 71

Loss of Chance Doctrine

Answer 71

Cause in Fact - Medical Malpractice

Doctrine: If a D’s negligence reduces a P’s chance of survival, the P has suffered a real injury.

To succeed under the Loss of Chance Doctrine, the P must prove by a preponderance of evidence that:

• The physician’s negligence caused the injury of diminished likelihood of a more favorable medical outcome

Replaced the “all-or-nothing” doctrine: which said that when a P first came to a doctor and his chances of survival were 50% or more, he could recover full damages. But if his survival chances at first were less than 50%, he couldn’t recover anything (b/c courts couldn’t accurately apply the “but for” test)

-LoC Doc. doesn’t change the standards of causation. This doctrine is a theory of injury, not of causation.

Question 72

Steps to Calculate Damages under Loss of Chance Doctrine

Answer 72

1. Calculate the total damages allowed for the injury or death,
2. Calculate the patient’s chance of survival before the negligence,
3. Calculate the chance of survival resulting from the negligence,
4. Subtract the amount in Step 3 from Step 2, and
5. Multiply the amount in Step 1 by the percentage in Step 4

Question 73

Joint and Several Liability

Answer 73

Liability that may be apportioned among two or more parties, or just one such that each liable defendant is deemed responsible for the entirety of damages, subject to a potential right of contribution from joint defendants and a bar against plaintiff recovering more than 100 percent of the total damages awarded

Plaintiff can allocate the percentage damage owed by each D however the plaintiff wants - so they’ll probably choose the defendant from who the damages are easiest to collect

Question 74

Several Liability

Answer 74

Plaintiff can make each defendant liable for only its “share” of the plaintiff’s harm when multiple acts of negligence combine to directly cause a single injury.

Question 75

Contribution

Answer 75

If only one defendant was sued when there was another defendant, the defendant that was sued could - in a separate suit - sue the other defendant for their contribution to the accident

Question 76

Summers v. Tice, 1948

Answer 76

Joint and Several Liability

F: Three men were hunting quail. One of them (P) was shot, but no one knows which of the remaining two men were responsible.

I: Can both Ds be held liable when only one actually caused the injury to the P?

H: Yes. Both Ds acted negligently and that as a direct and proximate result of the shots fired by Ds, P was injured. Court held them jointly and severally liable under alternative liability theory.

Question 77

Alternative Liability

Answer 77

Liability imposed on multiple tortfeasors who have all breach a duty to the plaintiff, but there exists uncertainty as to which tortfeasor proximately caused the plaintiff’s harm.

Exemplified in Summers v. Tice

Question 78

Hymowitz v. Eli Lilly & Co

Answer 78

Several Liability - Market Share Theory

F: Ps injured by drug, but don’t know which manufacturer made that particular drug.

I: Should the Ds be held liable when the Ps are unable to identify which manufacturer caused their injuries?

H: Partially, Yes. The court adopted the Market Share Theory (several liability based on market share) because under the “but for” test, the Ps wouldn’t get anything b/c not one of the companies can be found to be solely liable.

Dissent: Should use joint and several liability instead and give each company a chance to come in and prove that they were not the cause of the injury.

Question 79

Market Share Liability

Answer 79

Type of Several Liability

So if a company had a 20% share of the market, they probably cause 20% of the injuries (considering that there was no difference between each of the products that they put into the market)

Because a number of companies no longer exist, plaintiff may not necessarily get 100% of their damages

Problems with it:

If not all jurisdictions adopt the national market share theory, then the company will not actually be held liable for the percent of damages that they likely cuased.

Question 80

Proximate Cause

Answer 80

A.K.A. Scope of Liability (by Third Restatement)

A crime or act of negligence that is so linked to the resulting injury that the law considers it the legal cause of the injury, even if the injury wouldn’t have happened but for some other event

Generally, becomes an issue when there is some unexpected event/interference that either contributed to the harm or its severity

You’ll know on an exam if there’s a proximate cause issue b/c the way in which the accident happened was weird.. or some other bizarre scenario like the way the person was injured.

Question 81

Three Approaches to Proximate Cause

Answer 81

1. Direct/Indirect Causation - Polemis : is there a kind of lack of proportionality between lack of due care and the harm that actually occurred?
2. Reasonable Foreseeability - Wagonmound: Was the harm reasonably foreseeable?
3. Scope of Risk - Palsgraf: was this within orbit of defendant’s duty

Question 82

Third Restatement Test for Cause in Fact

Answer 82

If multiple acts occur, each of which under section 26 (but for test) alone would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each act is regarded as a factual cause of the harm

Question 83

Direct v. Indirect in Legal Sense

Answer 83

Direct: nothing needs to be added to the scenario for injuries to occur after the initial negligence.

• Can also be thought of as an independent intervening force

Indirect: something else needs to happen for injury to occur

• Can be thought of as a dependent intervening force
• The dependent force is set in motion by the initial person’s lack of due care which then triggers something else which causes the injury

Question 84

Benn v. Thomas, 1994

Answer 84

Proximate Cause - Eggshell Plaintiff

F: P suffered a bruised chest and broken ankle after D rear-ended him. P had a history of heart issues and P died of a heart attack six days later.

I: May a negligent D be held liable for the full amount of damages, where the P’s prior latent condition results in a greater injury than an ordinary person would have suffered?

H: Yes. Under the eggshell plaintiff rule, where the negligent act results in injury to a person with a prior latent condition, it is the act, and not the condition, that is the proximate cause of the injury. This rule imposes liability regardless of whether the particular harm suffered was foreseeable.

Question 85

Eggshell Plaintiff Rule

Answer 85

From Benn v. Thomas

Under the eggshell plaintiff rule, a defendant may be liable for all damages resulting from his negligence, even if the plaintiff suffers injuries greater than what an ordinary person would have suffered

This rule imposes liability regardless of whether the particular harm suffered was foreseeable

Only applies to people, not property

Question 86

In re an Arbitration Between Polemis and Furness

Answer 86

Proximate Cause

F: D rented a ship from P to carry a shipment of benzine. While cargo was been unloaded a heavy plank fell which created a spark and caused a fire which exploded and destroyed the ship.

I: Was D liable for such an unforeseeable event?

H: Yes. The damage to the ship was a direct result of a negligent act, with no other cause independent of the negligent act to blame. The fact that the damage actually caused was not the damage anticipated doesn’t alter the liability for a negligent act

Question 87

Wagon Mound Case

Answer 87

Proximate Cause

F: Ps owned a wharf where the ship (Wagonmound) was taking on oil. Some of the oil spilled into the bay. Ds left without cleaning up the oil. The oil was ignited two days later when a rogue cotton rag had caught fire from the molten metal falling from the wharf.

I: Should the Ds be held liable for the fire damages?

H: No. This is an example of indirect causation. The court relies on the foreseeability test. It held that in this case, the fire was not reasonably foreseeable b/c the D couldn’t anticipate that the oil would catch fire on water.

Question 88

Types of Dependent Intervening Forces

Answer 88

1. Rescue Forces: P’s initial harm caused by the D’s negligence, one tries to relieve but it doesn’t help the situation - the rescue was dependent on the D’s negligence, so the defendant remains liable
2. Escape Force: when the D’s negligence results in a mass escape - where someone is injured b/c of the escape, D is still liable
3. Checking Force: where a person is injured b/c of the D’s negligence, then further injured b/c the ambulance gets in an accident - the D remains liable

Question 89

Palsgraf v. Long Island Railroad Co.

Cardozo v. Andrews

Answer 89

Proximate Cause - Scope of the Risk

F: P was hit by scales that fell when fireworks went off b/c guard (employee of D) pushed man carrying fireworks onto the train, causing man to drop them.

I: Should the D be held liable for an unforeseeable consequence?

H: No. Cardozo prefers the standard of the scope of the risk of negligent conduct rather than proximate cause. The P was not within the D’s scope of the risk. There was no negligence on D’s part b/c there was no way the RR could have reasonably foreseen that its employee’s conduct would have resulted in injury to P and there was no legal duty owed to P.

Dissent: we should deal in terms of proximate cause, not negligence nor scope of the risk. Regardless of whether something is unusual, unexpected, or unforeseen, you should still be held negligent if the damage that happens is the proximate cause of the negligence. (if the sequence between the act and injury was “natural and continuous”. Also looks at duty as a duty of reasonable care to everyone, not just within a scope.

Cardozo: Scope of the risk approach seems easier to draw a line somewhere. But Prof thinks this is illusory - how can you define the scope of the risk?

Andrews: Proximate cause approach is also arbitrary, you need to draw the line somewhere otherwise we have the butterfly effect. But that line is difficult to draw

Question 90

Restatement 3rd Section 29 - Proximate Cause

Answer 90

An actor’s liability is limited to those that result from the risks that made the actor’s conduct tortious

Question 91

Contributory Negligence

Answer 91

NO LONGER THE STANDARD APPROACH (ended around the 1960s)

Used to be a complete defense for accused parties.

The plaintiff got nothing if they were found contributorily negligent (even if their negligence only slightly contributed to their injuries)

Question 92

Comparative Negligence

Pure v. Modified

Answer 92

A negligent plaintiff’s recovery depends on how serious plaintiff’s negligence was compared to the defendant’s

Pure Comparative Negligence: If a plaintiff is 99% at fault for their injuries, can still recover that 1% from the defendant

Modified Comparative Negligence: The plaintiff can only get damages for negligence if their fault is “no greater than” the defendant’s fault. (if it’s 50/50 fault, P gets recovery)

• Mod. 2: same as above, but plaintiff can recover as long as their fault is “not as great as” defendant’s. (if it’s 50/50 fault, P gets no recovery)

Comparative > Contributory:

• Uniform Comparative Fault Act (UCFA) sought to establish an apportionment of liability that was more flexible than the all-or-nothing standard under contributory negligence and last clear chance doctrines
  
  • Especially true for car accidents, where everyone is a little bit at fault

Question 93

Reckless v. Negligent Conduct

Answer 93

Most states with pure versions of comparative negligence compare negligence and recklessness, many courts also refuse to impose liability where plaintiff’s underlying conduct was criminal, although not all courts have taken this approach

Question 94

Fritts v. McKinne, 1996

Answer 94

Contributory & Comparative Negligence

F: P was seriously injured while drinking and driving. D (doctor) operated on P for 5 days to repair facial bones and severed an artery during the surgery, causing P’s death. D claimed that the artery was in the neck area when it should have been in the chest.

I: Should P’s negligent behavior of drinking and driving be permitted in the D’s negligent medical malpractice case?

H: No. Court determined that P’s negligence in the car accident was unrelated to the medical malpractice case and that this wasn’t a case for comparative negligence. A doctor can’t avoid liability for negligent treatment by asserting that the patient’s injuries were originally caused by the patient’s own negligence. Those patients are still entitled to non-negligent medical treatment.

Question 95

Circumstance where reasonableness of patient conduct could be considered in medical negligence case

Answer 95

If the patient failed to reveal medical history that would have been helpful for the doctor

Question 96

Express Assumption of Risk

Answer 96

Assumption of Risk: Complete defense to negligence liability that arises if a victim actually knows of the existence and the nature of a risk yet voluntarily choose to proceed in the face of that risk

Express:

Generally done with a written contract, usually called an exculpatory or hold-harmless agreement

• Issues emerge with regard to whether the D should be exculpated in certain activities or it the contract was sufficiently clear

Question 97

Implied Assumption of Risk

Answer 97

• Primary: P can accept risk simply by engaging in an activity with knowledge that it entails certain risk
  
  • Duty of D is limited
  • Not a true affirmative defense - instead focuses on the D’s general duty of care
  • P will not be barred from recovery unless his negligence exceeds the D’s negligence (Davenport)
• Secondary: D was negligent and the negligence created a dangerous situation. P was aware of the negligently created risk, encountered it anyway, and suffered injury
  
  • If P’s choice to encounter risk was an unreasonable one, this is negligent conduct
  • Affirmative Defense (admit to doing the act, but for some reason, you were allowed to do so)

Question 98

Hanks v. Powder Ridge Restaurant Corp, 2005

Answer 98

Assumption of Risk

F: P was injured after signing release from liability for snow tubing. Snow tubing was open to the public generally, with only age and height restriction. P signed a hold-harmless agreement for himself and the kids.

I: Was the agreement sufficiently clear in expressly releasing the D from liability for negligence? Is the agreement unenforceable b/c it violates public policy?

H: Yes & No. The writing was very clear and was written in all caps so that guests should not have missed it. But, the agreement was unenforceable b/c it violated public policy according to the Tunkl Factors b/c an operator that offers its services to the public generally cannot do that. Also because snowtubing is understood to be a family activity, most assume that it’s safe and Ps were under the control of the D.

Dissent: looked at the same Tunkl factors and found that more factors support the D (emphasized that snow tubing doesn’t serve an essential social function)

Question 99

Tunkl Factors

Answer 99

Assumption of Risk

1. Business generally suitable for public regulation
2. Defendant is engaged in a service very important to the public
3. Service can be used by the general public
4. Defendant has superior bargaining power
5. Involved in standard adhesion contract
6. The plaintiff is under the control of the defendant

Question 100

Murphy v. Steeplechase Amusement Co

Answer 100

Implied Assumption of Risk

F: P visited D’s amusement park and stepped on the moving belt of “The Flopper” (a ride that designed to make people lose their balance and fall). P was thrown to the ground and suffered a fractured kneecap then sued D for damages.

I: Is a D liable for damages to P who is hurt in a way that is reasonably foreseeable that some danger is involved?

H: No. P knew he was subjecting himself to a ride that made you fall and he fell (just as he was expected to). One who takes part in a sport accepts the dangers that are obvious and necessary. This was primary, implied assumption of risk.

Prof: Cardozo misses all the evidence that the sudden violent jerk was abnormal.

Question 101

Statute of Limitations for Tort Claims

Answer 101

Usually about 2-3 years and start when the party is injured

Makes it difficult for latent disease cases

Question 102

Davenport v. Cotton Hope Plantation Horizontal Property Regime, 1998

Answer 102

Primary Implied Assumption of Risk - Comparative Negligence

F: P was injured after attempting to descend a stairway where the landlord had failed to change the lightbulb (after numerous requests to landlord to change it).

I: Is recovery barred for P under the assumption of risk doctrine if the P’s negligence in assuming the risk is less than the D’s?

H: No. Assumption of risk doesn’t automatically bar recovery (only when the P’s assumption of risk is greater than the D’s). Court found that P’s negligence in using the stairway despite the broken light didn’t exceed the negligence of the building operators (after going through SC requirements - see flash card)

Question 103

South Carolina’s four requirements to establish a defense of assumption of risk

Answer 103

1. P must have knowledge of the facts constituting a dangerous condition
2. P must know the condition is dangerous
3. P must appreciate the nature and extent of the danger
4. P must voluntarily expose himself to the danger

Question 104

How to Test for Foreseeability of Duty

Answer 104

• Pretend you can talk to the tortfeasor just before they take an action.
• Tell them that their next action could hurt someone
• Ask them who they think could get hurt from that action