Torts Final New Flashcards
Intentional Torts
Battery Assault False Imprisonment Intentional Infliction of Emotional Distress Trespass to Land Trespass to Chattels
Defenses to Intentional Torts
Privilege Consent Insanity Defense of Property Recapture of Chattels Private Necessity
General Rule of Extent of Damages for Intentional Torts
● You are liable for what results from the action, not just what is foreseeable
● Once you have the intent to commit, you are liable for any harm that flows directly from that tort, whether foreseeable or not
Battery Rule
battery occurs when an actor intends to make a harmful or offensive contact with another AND that harmful or offensive contact occurs
Battery Intent
acting with the purpose of producing the consequence or knowing that the consequence is substantially certain to result
In a SINGLE INTENT jurisdiction, a person must act ONLY act with intent to make contact, regardless if that contact is harmful or offensive
In a DUAL INTENT jurisdiction, a person must act with the intent to make contact AND for that contact to be harmful or offensive
TRANSFERRED INTENT: if A intends to hit B, but A unintentionally hits C, then A is liable to C as the intent to hit B transfers
• The required intent is to contact a person, but regardless which person is actually hit you are liable
Battery Conduct
any voluntary act that leads to contact with a person, or to an object that closely identifies with that person (can be direct or indirect)
Battery Result
harmful or offensive contact to a person, or to an object that closely identifies with that person
HARMFUL CONTACT: causes actual injury, pain, or disfigurement
OFFENSIVE CONTACT: contact that would be considered offensive by a reasonable person of ordinary sensibilities
Battery Other Rules
o Causing contact to occur between a person and a third party, or a person and an object can still constitute a battery
o Plaintiff does not need to know/have knowledge of the battery in order to make a prima facie case
Assault Rule
assault occurs when the actor intends to cause harmful or offensive contact OR an imminent apprehension of such a contact AND the person is put in such imminent apprehension
Assault Intent
is acting with the purpose of producing the consequence or knowing that the consequence is substantially certain to result
Intent to cause imminent apprehension (intent to make P anticipate the contact) OR intent to cause harmful or offensive contact (intent to inflict an actual battery)
TRANSFERRED INTENT
Assault Conduct
an offer or attempt (attempt to strike- could miss) to make contact
Assault Result
imminent apprehension of harmful or offensive contact
Assault Other Rules
o Mere words/threats or future threats are not assault
o Plaintiff must have knowledge of the assault in order to make the prima facie case
o Imminent: with no significant delay
o Apprehension: believing that the actor is going to inflict contact (anticipation of contact)
Assault is designed to protect
your peace of mind & your anticipation of force against you
Attempt to contact, person put in imminent apprehension, but miss
Assault
Attempt to contact, person put in imminent apprehension, contact occurs
Assault and Battery
Contact from behind, person not put in imminent apprehension, contact occurs
Battery
False Imprisonment Rule
actor intends to confine another in an enclosed space, resulting in total involuntary confinement of another & the other is aware of confinement
False Imprisonment Intent
Intent to confine
False Imprisonment Conduct
the act that directly or indirectly leads to a total confinement
Even if there is a means of escape, if that means is unreasonable it is confinement (injury to yourself, or others, or harm your dignity)
False Imprisonment Result
total and involuntary confinement, and the person is aware of that confinement
Not False Imprisonment
o As long as there is a safe alternative that the person knows about or there is a reasonable means to escape, you are not imprisoned
o Partial obstruction or disturbance
o Plaintiff has reasonable means to escape
o An area of confinement so large (i.e. United States)- The larger the area, the more likely a court will say you have freedom of movement
o Voluntary submission to confinement (consent)
o Plaintiff’s mere belief that they are confined (without knowledge for sure)
o Restraint that is reasonable under the circumstances
Shopkeeper’s Exemption to False Imprisonment
If a shopkeeper suspects someone is shoplifting and detains that person to determine whether they are, no false imprisonment; has to be reasonable suspicion, reasonable circumstances, and reasonable manner
Confinement by Omission
failure to release someone when they have an obligation to be freed
Intentional Infliction of Emotional Distress Rule
there is IIED when the actor by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another
Intentional Infliction of Emotional Distress Intent
intentionally or recklessly causes emotional distress to a person or knows with substantial certainty that emotional distress will occur
TRANSFERRED INTENT- has to be a family member, and that family member has to be there to witness it- EXTREMELY LIMITED
RECKLESS- blatant/deliberate disregard to high risk of injury
Intentional Infliction of Emotional Distress Conduct
so extreme and outrageous that no reasonable person would expect you to endure such a thing; goes beyond decency in a civilized society
SPECIAL SENSIBILITY- if you know someone is particularly susceptible
NOT: mere insult without that person having special sensibility
Intentional Infliction of Emotional Distress Result
the plaintiff has to suffer severe emotional distress, and if bodily harm results you can recover for that as well
Very narrow; difficult to prove- many courts have implied that medical testimony is necessary except in the most egregious cases
Intentional Infliction of Emotional Distress Other Rules
o Mere insults, threats, or indignities are not IIED (but possibly if they effect livelihood, & are continuous harassments)
o Usually fails because conduct has to be such a high degree of outrageous
o Can be detected if a person falls within a class or people (ex. minorities) who would be known to be especially susceptible to emotional distress
Trespass to Land Rule
The actor intends to enter or cause an object to enter another’s land without permission, resulting in the unauthorized entry of the other’s land.
Trespass to Land Intent
intent to act (do the thing that makes you end up in that location; ex. step onto land), not necessarily knowing that it is someone’s land in particular
You only have to intend to enter the piece of property you in fact enter, do not have to have intent to trespass
Very low level of intent needed- only need intent to want to be at the place you end up being
STRICT LIABILITY TORT- even without purpose, if your intent to take the step that puts you on the property, that satisfies the intent element necessary
TRANSFERRED INTENT
Trespass to Land Conduct
Any voluntary act which causes the actor to unlawfully enter another’s land.
A voluntary act interfering with another’s property rights
Trespass to Land Result
unauthorized entry onto another’s land
Trespass to Land Mistake
intent to enter land which happens to be someone else’s property makes you liable
Plaintiff who mistakenly believes that a land is public, voluntarily enters that land, but the land is actually private property is liable for trespass to land
• You still have the intent to enter onto that specific land
Trespass to Land Accident
If you accidentally enter onto someone’s property (ex. icy road) you aren’t liable for trespass.
• You did not have the intent to enter onto that specific land (pure accidents are not trespass to land)
Trespass to Land Protects
exclusive possession of land and its improvement, discourages breach of the peace to protect one’s personal property
Trespass to Chattels Rule
The actor intends to physically interfere with, dispossess, or destroy another’s chattel, such interference, dispossession, or destruction occurs, and the other is deprived of the use of his chattel.
Trespass to Chattels Intent
an actor must intend to interfere with, dispossess, or destroy another’s chattel, with a purpose of causing trespass or with substantial certainty that a trespass will result
Trespass to Chattels Conduct
a voluntary act that interferes with, dispossesses, or destroys another’s chattel
Even if no physical damages, there can be trespass if unpermitted use is for an extended time
If the chattel is destroyed, the tort of conversion results and the person has to pay for the value of the chattel
Trespass to Chattels Result
chattel is dispossessed or impaired, or the possessor is deprived of the use of the chattel for a substantial time
Trespass Other Rules
o Plaintiff must prove actual damage to the chattel (physical damage or loss of use of the chattel for a substantial period of time)
o Reasonable belief that a property is one’s own is not a defense
o an accident is not trespass
o Plaintiff will have to prove that actual damages resulted if their chattels were only interfered with. If they were dispossessed, trespass to chattels will lie for both nominal and actual damages
Privilege as a Defense to Intentional Torts
a tort does occur, but it does not matter because it was within the scope because the actor is privileged (prima facie case is met, but defendant has a right to the conduct)
o Defenses to torts are normally called privileges
o A circumstance that justifies and excuses tort liability
Consent as a Defense to Intentional Torts
totally negates a tort from occurring, a tort cannot happen if you say you are okay with something
Types of Consent as a Defense to Intentional Torts
Express Consent General Doctrine of Privilege Pleasantry Implied Consent Apparent Consent Consent to Criminal Conduct Promoter Liability
Express Consent as a Defense to Intentional Torts
can be expressed when the plaintiff has expressly shown a willingness to submit to the defendant’s conduct
General Doctrine of Privilege as a Defense to Intentional Torts
any circumstance that justifies or excuses a prima facie tort
Pleasantry as a Defense to Intentional Torts
any friendly or casual touching indecent to everyday life
Implied Consent as a Defense to Intentional Torts
could occur in the case of major internal operations and in sports settings
Implied Consent Emergency Rule as a Defense to Intentional Torts
medical treatment will be lawful when an emergency requires acting to preserve the health or life of the patient
• The plaintiff is not capable of consent and consent cannot be obtained from someone who has the authority to consent for the plaintiff
Silence and Action within the Scope of the Situation of Implied Consent as a Defense to Intentional Torts
if everyone else is gesturing a certain way for a certain reason, & you make the same gesture, consent is implied
• if custom or social norms would lead a reasonable person to believe that the plaintiff had given consent
Sports as Implied Consent as a Defense to Intentional Torts
if the conduct is such that is within the normal practices of the game
Apparent Consent as a Defense to Intentional Torts
in which a reasonable person would infer consent from the plaintiff’s conduct
Words, actions, or inactions may reasonably manifest consent
Silence may manifest consent when a reasonable person would have spoken up
Consent to Criminal Conduct as Consent as a Defense to Intentional Torts
you cannot consent to a violation of criminal law EXCEPTION: "Where it is a crime to inflict a particular invasion of an interest of personality upon a particular class of persons, irrespective of their assent, and the policy of the law is primarily to protect the interests of such a class of persons from their inability to appreciate the consequences of such an invasion, and it is not solely to protect the interests of the public, the assent of such a person to such an invasion is not a consent thereto" • Protects classes if they cannot appreciate the consequences
Promoter Liability as part of Consent as a Defense to Intentional Torts
Promoter is liable where he conducts something in violation of statutory provisions, regardless of the rights as between the contestants, and that the consent of the combatants does not relieve him of liability
Other Rules of Consent as a Defense to Intentional Torts
o Consent is not considered a privilege, but it is a defense
o If you consent to a particular kind of contact, the contact is valid and will be the action even if it results in injury
Insanity as a Defense to Intentional Torts
generally, not a defense to tortious conduct, but where an insane person, by his act, does intentional damage to the person or property of another, he is liable for that damage in the same circumstances in which a normal person would be liable
o In order to be liable, the insane person must have been capable of entertaining the same intent and must have entertained it in fact (similar to dual intent)
o The intent of an insane person does not need to be rational in order to find him liable
o An insane person can be found liable for their torts, mental insanity is not a complete defense
Defense of Property as a Defense to Intentional Torts
one may use reasonable force to prevent the commission of a tort against his property
o If an actor enters without force, the possessor must request that the actor leaves before using actual, reasonable force
You have to request him to leave and if he does not, then you can use reasonable force to eject him
o If one comes in with force, the possessor does not need to ask him to leave but is allowed to lay hands on his immediately
It is returning violence with comparable violation
o A possessor may not wound or cause serious bodily harm to another in defense of property
Recapture of Chattels as a Defense to Intentional Torts
• RULE: you have a privilege to use reasonable force to recapture your chattels or property taken unlawfully
o Has to be reasonable force, cannot wound or use serious force merely in defense of property
o No violence is necessary or required unless the person used violence
o The dispossession must be by force or fraud, not something you voluntarily gave up
o MISTAKE: your mistake eliminates your privilege
If you run after someone who you think has stolen something and they have not done anything wrong, you lose the privilege of using reasonable force to recapture the chattel
Once you are out in public you are upsetting the status quo of the streets, you look like you are putting people in danger, so you better be right
o REQUIREMENT OF HOT PURSUIT: only a valid defense under hot pursuit; you have to immediately go after you notice
Private Necessity as a Defense to Intentional Torts
• RULE: a person has the right to enter another’s land without permission in order to avoid imminent serious harm to his life or his property by naturally occurring causes or human causes
o The doctrine of necessity applies with special force to the preservation of human life
(personal livelihood > personal property)
• CIRUMSTANCES FOR NECESSITY
o Permission to remain on the land of another in response to the threat of imminent harm to person or property; must be reasonable
• OTHER RULES:
o a party who damages property of others while acting with private necessity must compensate the property owner for the resulting damages
o Necessity, actions required to save lives or property, justifies entry upon land and interference with personal property that would otherwise have been trespass.
o You can use other people’s property if it is going to save you or your family or your personal property
General Rule of Extent of Damages for Intentional Torts
● You are liable for what results from the action, not just what is foreseeable
● Once you have the intent to commit, you are liable for any harm that flows directly from that tort, whether foreseeable or not
General Rule of Extent of Damages for Intentional Torts
● You are liable for what results from the action, not just what is foreseeable
● Once you have the intent to commit, you are liable for any harm that flows directly from that tort, whether foreseeable or not
Negligence Definition
CONDUCT, THROUGH ACT OR OMISSION, THAT FAILS TO CONFORM TO A PARTICULAR STANDARD OF CARE NECESSARY TO AVOID UNREASONABLE RISKS OF HARM TO OTHERS
Duty Rule
A LEGAL OBLIGATION TO CONFORM ONE’S CONDUCT TO A STANDARD OF CARE NECESSARY TO AVOID CREATING UNREASONABLE RISK OF HARM TO OTHERS
The general rule of duty
to conform one’s conduct to a standard necessary to avoid an unnecessary risk of harm
Two Views on Duty
Cardozo: a duty is owed to the reasonably foreseeable plaintiff; must be close enough in time and space to owe a duty
Andrews: a duty to one is a duty to all; there is a duty to society as a whole; a duty to everyone
Affirmative Duties
Nonfeasance- failure to act
Misfeasance- wrongful act
Exceptions to Duty
when conduct regularly or negligently created the situation and nothing was done to minimize the risk
gratuitous undertakings: either began to act on a promise or promised to act, and then they do it either negligently or through stopped performance
General Info on Duty
no duty to aid when you did no create the situation
duty is not a standard, it is a legal obligation/requirement to line up to the standard of care
Duty: Good Samaritan Doctrine
there is no legal duty to protect/rescue a stranger from injury where the defendant was in no way responsible for creating the dangerous situation in the first place
o No duty to render affirmative aid; no duty to act affirmatively to aid of a stranger in an emergency
Duty: Exceptions to Good Samaritan Doctrine
§ 39: when the actor’s prior conduct, even if not negligent, creates a risk of harm
• Not liable for initial injuries when conduct was not negligent, just for injuries that result from not exercising reasonable care after non-negligent conduct
§ 327: cannot prevent others from providing aid
• Do not have to affirmatively help, but cannot prevent others from an act of misfeasance
§ 44: taking charge to assist another, despite no duty to do so; must exercise reasonable care
• Cannot worsen the situation for the person
Duty: Gratuitous Undertakings
when one owes no duty to act affirmatively to another but gratuitously chooses to, he assumes a duty to exercise reasonable care in performing his undertaking
Duty: Undertaking
- UNDERTAKING- performance of a task/rendering a task OR promise/agreement to perform a task voluntarily
- Must not increase the risk of harm to the other
- Must not cause the other to suffer harm in reliance on the undertaking
Duty: Exceptions to Gratuitous Undertaking
an actor has no duty to aid EXCEPT when the actor takes charge of another who reasonably appears to be imperiled and helpless/unable to protect himself
o Then, the actor has a duty to exercise reasonable care while the other is within the actor’s charge
o If the actor discontinues aid, they must refrain from putting the person in a worse position than they were prior to when they took charge
o AND if the other person reasonably appears to be in imminent peril of serious harm at the time the actor wants to stop rescuing, they must exercise reasonable care in regard to that peril before stopping
Special Relationships Duty
a duty arises to prevent physical harm when there is a special relationship between the actor and the third person which imposes a duty to control, or a special relationship between the actor and the other which imposes a duty to protect
• Generally, a duty arises only if the criminal act was reasonably foreseeable
Duty: 4 different tests to determine when a risk is foreseeable/affirmative duty is owed
o Specific Harm- only liable if aware of specific imminent harm
o Prior Similar Incidence- notice of repeated criminal assaults on the same premises; foreseeability is established by incidents on or near the premises
o Totality of Circumstances Test- most commonly used test; takes nature, condition, location of land, and other relevant circumstances into consideration
o Balancing Test- balance foreseeability of harm against the burden of imposing a duty to protect against the criminal act; foreseeability used as a synonym to probability; similar to the hand formula (used in breach)
Duty: Owners and Occupiers: 2 ways a Duty can Arise
Active conduct and passive conditions on the premises
Duty: Owners and Occupiers: Dealing with Limited Duty
What category does the person fall into?
What duty is owed to someone in that category? And was the duty owed breached?
Categories on Entrants on Land
Invitee
Licensee
Trespasser
Invitee
a business visitor who is invited or permitted to enter or remain on the land for a purpose directly or indirectly connected with business dealings between them; if owner and occupier have a joint interest
• By invitation, express or implied, of the occupier
• Inducement/encouragement to use by the public makes them invitees even without explicitly saying to come
• Owed the Highest Level of Duty
o Occupier has a duty to take reasonable care that premises are safe and not cause unreasonable risk of harm to others; including reasonable inspections to find defects (there has to be sufficient time for the owner to make the premises reasonably safe), and to warn the invitee of any non-open and obvious defects (or making the defects reasonably safe if the warning would not be sufficient)
Licensee
a social guest who is not an invitee, but who is privileged to enter or remain upon land by the possessor’s consent; someone invited to enter/remain on land for a purpose, or under a legal privilege
• With the leave and license, express or implied, of the occupier
• Silence implies consent OR if a reasonable person would think that failure of the homeowner to say anything is his consent
• Owed a Less Stringent Level of Duty
o Occupier has no duty to ensure that premises are safe, but is bound to not create traps or injure a licensee by negligent conduct
o There is a duty to warn a licensee of latent concealed dangerous conditions that the owner knows of or should know about and possibly a duty to remedy it
Trespassers
someone who enters or remains on the land of another without consent of the owner or without privilege to do so; come onto the premises at their own risk
• If you are originally barred from land by signs you are a trespasser, but no further actions taken against you make you a licensee (as long as the landowner knows you have been habitually trespassing)
• No Duty of Reasonable Care Owed
o Only duty owed is to refrain from acting intentionally or recklessly to harm the trespasser; the trespasser comes onto the premise at his own risk
o Definition of Reckless: actor knows of facts that would lead a reasonable person to find that risk is substantially greater
A person acts recklessly in engaging in conduct if the person knows of the risk of harm created by the conduct or knows of facts that make the risk obvious to another in the person’s situation AND the precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk.
When an Occupier is Liable:
o Where the injury is due to some willful act involving something more than the absence of reasonable care
There must be some act done with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the trespasser
Exceptions to Owner/Occupier Duty
Recklessness
Attractive Nuisance
Discovered/Known Trespasser
Frequent Trespasser on Limited Area
Recklessness as an Exception to Owner/Occupier Duty
If the trespasser’s presence is actually known then there is a duty not to injure by using reasonable conduct
Attractive Nuisance as an Exception to Owner/Occupier Duty
there is a duty to eliminate danger or otherwise protect children when there are highly dangerous, artificial things on the land because children are too immature to appreciate the dangers
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
Excludes: risks that are obvious to children; known to be dangerous
Discovered/Known Trespassers as an Exception to Owner/Occupier Duty
if the owner is aware of the trespasser, the owner has a duty to not injure the trespasser by negligent conduct or to warn the trespasser of non-obvious artificial conditions
Frequent Trespassers on Limited Area as an Exception to Owner/Occupier Duty
if the owner is aware that trespassers frequently come on the land in large numbers in a limited area, they are owed a reasonable duty of care; a duty arises not to injure the trespasser by negligent conduct and to warn the trespasser of non-obvious conditions.
Negligent Infliction of Emotional Distress
there is generally no duty owed to avoid the negligent infliction of emotional distress (fright or physical injuries resulting from fright) to another. A duty may arise under the following circumstances: Impact Rule 1 Impact Rule 2 Zone of Danger Dillon test
Impact Rule 1 as a Duty under NIOED
immediate physical personal injury that results from fright following physical contact (along with injuries that result from that fright)
Can recover damages and parasitic damages
How you can recover:
Physical Contact–> Immediate Physical Injury –> Fright from anticipating contact, Emotional Distress from fright/injury or physical injuries from emotional distress
Impact Rule 2 as a Duty under NIOED
immediate physical personal injury that results from fright following physical contact, BUT contact that results in fright does not have to be that extreme
Contact can be very slight (ex. slight jolt in a minor crash, mouse hair in a spoonful of soup that touched the roof of P’s mouth)
Zone of Danger as a Duty under NIOED
you have to personally potentially be in danger of being struck; fright for yourself and your own personal safety
Dillon Test (for bystanders) as a Duty under NIOED
a bystander can now recover if the injury was foreseeable
The main determinant if a duty is owed: foreseeability
3 factors to determine whether there was a foreseeable risk to this particular bystander (factors balanced by the court and determined as a matter of law):
• Bystander was located near the scene of the accident
• Bystander suffered shock soon after as a result from the direct emotional impact from observing the accident
o restatement 3d says hearing about the accident and coming on the scene right away/right after should be okay as well
• Bystander was closely related to the victim
Problem with the foreseeability test for Dillon test
open-endedness to the factors
P’s cause of action is based on an actual physical injury by the original victim
• The ALMOST accident does not count, OR
• If the victim is seen as contributorily negligent then there would be no cause of action
Dillon Test: Thing Case Alternative: Bright-Line Rule:
Restricts categories of who can recover and where they need to be BUT also requires severe emotional distress (not physical injury)
• Turns the factors into elements
Breach Rule
CONDUCT, BY ACT OR OMISSION, THAT FALLS BELOW THE RELEVANT STANDARD OF CARE NECESSARY TO AVOID UNREASONABLE RISKS OF HARM
Elements of Breach
o Standard of Care
o Foreseeability of Risk
o Unreasonableness of Risk
Hand Formula
Breach: Standard of Care
o Reasonable Prudent Person- the general standard of care is the kind and degree of care that a reasonable prudent person would use under the same or similar circumstances to prevent foreseeable risk of harm
Hypothetical person with average mental capacity, abilities, intelligence, perception, memory under similar circumstances
Breach: Standard of Care: Special Rules
Children Physically Disabled Insanity Expert/Specialized Knowledge Beginner Elderly Custom Wavering Standard of Care Statutes and Regulations
Breach Special Rules: Children
a minor is held to exercise the standard of care of the reasonable person of the same age, intelligence (wisdom), and experience.
• Adult Activity Rule- children are held to the Reasonable Prudent Person standard of care of adults engaged in that activity, when they are practicing adult activities
• EXCEPTION: Rule of Sevens- minority rule
o Children under 7: cannot be liable/are incapable of negligence
o Children 7-14: presumed incapable of negligence until evidence proves
o Children 14+: presumed capable of negligence but can be rebutted
Breach Special Rules: Physically Disabled
a person with a physical disability is required to exercise the same degree of care as a reasonable and prudent person with the same or similar physical disability under the same or similar circumstances
Breach Special Rules: Insanity
a person who is mentally insane must exercise the kind & degree of a RPP (insanity not a defense except in intentional torts)
• EXCEPTIONS: a complete defense to negligence
o A sudden mental aberration or hallucination without any forewarning that affects a person’s ability to understand & appreciate the duty of ordinary care or to control his actions
Breach Special Rules: Expert/Specialized Knowledge
a person who is an expert in his field is expected to exercise the skill & knowledge of an expert in the same field with similar knowledge and skill
Breach Special Rules: Beginner
beginners are generally required to exercise the standard of care of those who are reasonably skilled and practiced in the area
Breach Special Rules: Elderly
a person of old age is held to the standard of care of a reasonable prudent person, but physical infirmities associated with old age may be taken into consideration
Breach Special Rules: Custom
A custom is a way of performing a particular activity that is very well-defined and widely accepted amongst a group of people, trade, or profession
• “the usual practices and methods of a given industry in ordinary/common use”
• custom may be used as evidence of the standard of care but does not set the standard of care.
• Evidentiary weight of custom: custom is used as evidence that the defendant is negligent when the defendant does not comply with custom; custom is used as evidence that D was not negligent when D complies with custom.
• Rule: A general custom, use, or practice by those in the same business or trade may be considered some evidence of what constitutes reasonable conduct in that trade or business.
o An actor’s compliance with or departure from the custom of the community is evidence that the actor’s conduct is or is not negligent but does not conclusively determine the actor’s negligence.
• Either party may want to show custom
o P- to show D failed to conform OR D- to show conformity & use of reasonable care
Breach Special Rules: Custom: Medical Malpractice
in the medical field, custom sets the standard of care
o The standard of care for medical professionals is set by customs in the field, and established through expert testimony
o Physicians are held to the degree of care, skill, and learning possessed and used by physicians of good standing in a similar practice
Physicians have a duty to disclose information to a patient regarding the procedure in order for consent to be given; unless it is an open and obvious result that could occur (such as an infection)
Breach Special Rules: Custom: Medical Malpractice: Locality Rule
Modern age of national medical standards have made the “similar locality” requirement obsolete, Drs. are judged by national standard of custom
Quasi-exception: Drs. with limited resources (e.g. rural locale) may be exempted from custom in certain emergencies
Breach Special Rules: Custom: Medical Malpractice Elements
The basic norms of knowledge and medical care applicable to general practitioners or specialists (must be by expert testimony)
• Dr. must “possess and use the knowledge and skill common to members of the profession in good standing, in a similar practice, & under like circumstances”
proof that the medical professional failed to follow these basic norms in the treatment of the patient (breach of customary standard)
• here may be more than one acceptable custom – ∆ can introduce his own expert evidence to establish alternative methods of treatment as long as the alternate approach is “accepted by a significant number of other Drs., and reputable”
a causal relation between the act or omission of the medical professional & the patient’s injury (established only through expert testimony)
• If more than one acceptable custom is shown through expert testimony - jury does not decide which school of thought is better - Jury only decides which expert’s testimony is more credible
• Relevant school of thought can be a minority; if Doctor’s conduct falls within one of the schools then he is not liable.
Breach Special Rules: Custom: Two Schools Ideas
Competing customs of procedures
As long as you proceed in a way that is acceptable to a recognized school of thought, that is a complete defense
School of thought: a respected minority; NOT just one person
Breach Special Rules: Custom: Breach of Informed Consent (“Duty to Disclose”)
ormed Consent: Medical professionals have a duty to disclose material risks of procedures to patients in order to obtain their consent.
• A risk is material when a reasonable person in what the medical professional knows or should know to be the patient’s position would be likely to attach significance to the risk in deciding whether to undergo the procedure.
o If the patient would have changed his mind and foregone the procedure had he known the risk, then the risk is material.
Breach Special Rules: Custom: Breach of Informed Consent (“Duty to Disclose”) Elements
Nondisclosure: Medical professional must inform the patient of the risks of the proposed treatment, any alternatives to the proposed treatment, and the results if the patient remains untreated.
Causation: Must show that the nondisclosure of the risk resulted in the patient having the procedure.
Patient cannot recover if disclosing the risk would not have changed his mind.
Injury: Procedure resulted in the patient’s injury.
Breach Special Rules: Custom: Breach of Informed Consent (“Duty to Disclose”): Decision Causation
(if P was informed of the risk, she has to say she wouldn’t have had the procedure before the procedure) and Injury Causation (P must suffer kind of harm from risk she was not warned of) are both needed
Breach Special Rules: Custom: Breach of Informed Consent (“Duty to Disclose”): Prima Facie case of malpractice by failure to disclose a risk when:
- Defendant physician does not disclose risk
- Harm to plaintiff
- Harm is directly from the risks that defendant did not disclose to plaintiff or warn plaintiff of
- Defendant’s nondisclosure must be cause in fact of plaintiff’s injury- no cause of action for malpractice if plaintiff would have had the procedure with or without the disclosure of risk
- Reasonably prudent person in plaintiff’s position would have refused treatment if informed of the risk
Breach Special Rules: Custom: Breach of Informed Consent (“Duty to Disclose”): General Rule
All material risks of a procedure must be disclosed by doctors (patient does not have to ask)
• Material Risk: “The reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk(s) in deciding whether or not to forego the proposed therapy”
o If divulging the risks would have changed the patient’s mind in having the procedure, then it’s material
o reasonable person in the patient’s circumstances - e.g. if a procedure risks a 1/10,000 chance of paralysis of the left index finger, this may be material to a concert pianist, but not to ordinary persons
• What should be disclosed: hazards of proposed treatment, benefits of treatment, alternatives to treatment, risks of non-treatment
• Material Risks, e.g.: any risk of death; small chance of blindness or hearing loss; a 40% chance of paralysis
• Immaterial risks, ex: a chance of infection; 1/400,000 chance of kidney failure (you have 2 kidneys); loss of hair from chemotherapy
Breach Special Rules: Custom: Breach of Informed Consent (“Duty to Disclose”): Exceptions to informed consent/disclosure:
- Emergency Situation – plaintiff is unconscious and needs emergency procedure (consent from someone in the family should be sought, if available; otherwise okay)
- “Therapeutic Privilege” – Dr. determines that a “complete and candid disclosure” would have a detrimental effect on the psychological/physical well-being of patient - disclosure would prevent plaintiff from helpful treatment
Breach Special Rules: Custom: Breach of Informed Consent (“Duty to Disclose”): Topics that do not have to be disclosed
• infection & if a person of average sophistication would be aware of the possibility
Breach Special Rules: Wavering Standard of Care
• Sudden Emergency Doctrine- a person in a sudden emergency has the same standard of care as a reasonable prudent person would in the same sudden emergency
o A very narrowly applied doctrine, the person must make an IMMEDIATE decision
Breach Special Rules: Statutes and Regulations
statutes and regulations set the applicable standard of care when (1) the Plaintiff is in the class of people that the statute was intended to protect and (2) the plaintiff suffered the type of harm that the statute was intended to prevent • A jurisdiction may use a regulation to set the standard of care or just of evidence of the standard of care
Breach Special Rules: Statutes and Regulations: Negligence Per Se
federal and state statutes that satisfy both of the requirements are treated by courts as negligence per se, which is negligence as a matter of law or conclusive evidence of negligence
o Local ordinances that satisfy both requirements are usually treated by the courts as some evidence of negligence
o Even if a statute isn’t accepted as the standard of care, the statute can still be used as evidence of common law negligence
o Statute- provides a measure of legal duty; establishes a standard of reasonable care and replaces the general reasonable prudent person standard
If the court finds the statute inapplicable, the standard of care shifts back to that of a reasonably prudent person standard
Does not give rise to a legal action, the court just adopts is to set a standard of reasonable care
Without a statute, there still may be a cause of action
Breach Special Rules: Statutes and Regulations: Negligence Per Se: What Plaintiff must prove with statutory negligence:
Violation of a statute (a regulation of public entity)
The violation proximately caused death or injury
The harm that actually occurred was the type of harm that the statute intended to protect against
The person who suffered harm was the person/property that was the class of people who the statute was adopted to protect
Breach Special Rules: Statutes and Regulations: Negligence Per Se: Excuses for Violations of Statute
the actor exercises reasonable care in attempting to comply with the statute
the actor’s violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public
the actor’s compliance with the statute would involve a greater risk of physical harm to the actor or to others than noncompliance
the actor is confronted by an emergency not due to his own misconduct
Breach Special Rules: Statutes and Regulations: Negligence Per Se 2nd
Uses a statute to set the standard of care. Under negligence per se, a defendant’s violation of a statute results in conclusive liability of negligence if: o The plaintiff is in the class of people the statute intended to protect. o The resulting harm was of the type the statute sought to prevent.
Breach Special Rules: Statutes and Regulations: Exceptions to Negligence Per Se
The violation is reasonable in light of the actor’s childhood, physical disability, or physical incapacitation
The actor exercises reasonable care in attempting to comply with the statute
The actor neither knows nor should know of the factual circumstances that render the statute applicable
The actor’s violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public
The actor’s compliance with the statute would involve a greater risk of physical harm to the actor or to others than noncompliance
The actor is confronted by an emergency not due to his own misconduct
Breach Special Rules: Statutes and Regulations: • Presumption/Prima Facie Evidence
A defendant’s violation of a statute results in conclusive liability of negligence unless the defendant can rebut with sufficient evidence of his exercising reasonable care.
Breach Special Rules: Statutes and Regulations: Inference
A defendant’s violation of the statute is only some evidence of negligence and does not conclusively set the standard of care. A jury may find for the defendant even if he presents no rebutting evidence.
Breach Special Rules: Judge and Jury
A judge can control the standard of care through its jury instructions or by a determination of sufficient evidence to go to a jury.
Breach: Calculus of Risk: Foreseeable Risk/Foreseeability
was the risk foreseeable?
A risk is foreseeable
• when it is more probable than not that the risk would occur
• a reasonably prudent person could expect some kind of harm to result from his conduct
A person cannot breach a standard of care if the risk would be unforeseeable by a reasonably prudent person
Breach: Calculus of Risk: Unreasonable Risk
was the risk unreasonable?
an unreasonable risk occurs based on the probability and gravity of the situation
Breach: Calculus of Risk: Unreasonable Risk: Hand Formula
the main method courts use to determine whether a risk is unreasonable
• Elements of the Hand Formula:
o Burden of Precaution (B)- can be determined by looking at the steps the actor must take to avoid the harm and how burdensome those precautions would be
Measures the value of the interest to be sacrificed to avoid the harm
• Consider: the costs of avoidance, alternatives and their feasibility, inconvenience of avoiding, etc.
• Defendant does not need to take all possible precautions- only reasonable ones to make the activity safer and lower the risk of harm
Social Utility of Taking a Risk (B2)- social utility of non-avoidance
• Posner believed that social utility should be added to the Hand Formula as B1 + B2
o The social utility of saving a life is much too important to exclude from the calculus of risk
o Probability of the Risk (P)- can be determined by looking at how likely/foreseeable it is that injury occurs
If P is minute, there will be no breach even if a harm occurs
o Gravity/Severity of the Harm (L)- can be determined by examining how serious the consequences might be
Measures the likely harm, and the potential extent thereof, that would follow from the injury-causing event if it occurred
What a reasonable person would foresee as the likely harm- the likely harm, NOT the actual harm that occurred
If P is low, this may not matter much
• Reasonable Risk- when the burden of precaution is higher than the probability of risk times the gravity of harm, the risk is not unreasonable
• Unreasonable Risk- defendant’s conduct is unreasonable if the burden of avoiding harm (B) is less than the probability of the harm (P) multiplied by the likely severity/gravity of the harm (L)
o B < P*L
Breach: Res Ipsa Loquitor
“the thing speaks for itself”
o a doctrine of law that one is presumed to be negligent if he had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened.
o RULE: when there is a lack of evidence, a jury can infer negligence from the very fact that the accident or injury occurred
a type of circumstantial evidence used to establish proof of defendant’s negligence
you sue for negligence and use RIL as evidence to prove it
used to aid the plaintiff in proving breach of duty
o a doctrine of proof of defendant’s negligence not a theory of liability itself
establishes a presumption of evidence and it is up to the defendant to prove that it was not negligent
o A Defendant charged with a nondelegable duty of care to maintain an instrumentality in a safe condition effectively has exclusive control over it for the purposes of applying RIL
Breach: Res Ipsa Loquitor: At trial, plaintiff needs evidence to make out a prima facie case to get to the jury
Direct evidence/eyewitness testimony
Documentary/physical evidence
Circumstantial evidence
Breach: Res Ipsa Loquitor: Multiple Parties
P cannot always get a RIL against multiple parties. Even if you assume one party was negligence you do not know which had control without more evidence so you cannot conclude either party was negligent
Exception: P did not have to prove which D or who had exclusive control- P was unconscious, at some point all D had control of one or more instrumentality
Breach: Res Ipsa Loquitor: RIL establishes…
a presumption of evidence and it is up to the defendant to prove that they were not negligent
o There is no inference of negligence simply from a slip and fall
Breach: Res Ipsa Loquitor: Elements
- Event does not ordinarily occur unless someone has been negligent
• When this event occurs- most probable explanation is someone is negligent
• More probable than not, negligence of some kind is the cause
• If it is just as likely or more likely to be a cause, then the first element is not met - Defendant must be in exclusive control of the instrumentality or agency
• Rule out other causes
• Merely one way of proving defendant’s responsibility - Event not due to contribution of conduct/voluntary act from plaintiff
• Actions 2 and 3 are a causal element and rules out plaintiff as a cause of the injury
• Not just someone but the defendant is causally negligent
Technology: higher/newer safety technology makes RIL cases easier to prove because they rule out many alternatives
Most jurisdictions say that if RIL is in the case, the jury is permitted but not required to infer defendant’s negligence from the circumstantial evidence (if all factors are met)
• If defendant can demonstrate exactly how the accident occurred and that it had nothing to do with their negligence, then RIL can be rebutted
Cause in Fact Rule
BUT-FOR RULE: CAUSE IN FACT EXISTS IF BUT FOR THE DEFENDANT’S NEGLIGENT CONDUCT THE HARM/INJURY TO THE PLAINTIFF WOULD NOT HAVE OCCURRED
Cause in Fact: But-For Test
cause in fact exists if plaintiff’s injury would not have occurred BUT FOR defendant’s negligent conduct
o But-For has to be by a preponderance of evidence (51%+)- more probable than not
o Includes: defendant’s conduct as a cause when harm would not have occurred if defendant was not acting negligent
o NOT: when the harm/accident would have occurred even if defendant was not acting negligently
o Tortious conduct needs to only be one of the factual “but-for” causes; not necessarily the only
o When the negligence of the defendant greatly multiplies the chance of accident to the plaintiff, and it is something that would naturally lead to injury to the plaintiff, that is enough
o If negligent conduct creates a foreseeable risk of a kind of harm, and that harm occurs, that is enough
o it is up to the negligent party to bring a rebuttable presumption
rebuttable presumption: evidence denying “but-for” cause and suggesting that wrongful conduct was not a substantial factor
Cause in Fact: Multiple Sufficient Causes
more than one possible cause of plaintiff’s injury
o AKA: more than one possible defendant
o burden of proof shifts to the defendants to prove that one & not the other was the cause of the injury
if multiple acts occur, each of which would have been sufficient causes of the physical harm, each act is regarded as a factual cause of the harm
Cause in Fact: Joint Liability
where there are multiple defendants whose conduct caused the plaintiff’s indivisible harm each may be liable for plaintiff’s entire damage award
plaintiff may recover her whole award from any one defendant or part from each
plaintiff may not recover their whole damage award more than once; she cannot recover her whole damage award two or more times
Cause in Fact: Several Liability
where there are multiple defendants whose negligent conduct caused plaintiff’s injury each defendant would be liable to plaintiff for only a proportionate share of damages
Apportionment of damages among defendants may be done on the basis of causation where the harm to plaintiff is capable of division (i.e. where each defendant has caused only a separable part of the plaintiff’s injuries)
o If there are 2 human, or 1 human & 1 natural cause of harm: the negligent human known should be held liable
Cause in Fact: Indeterminate Causes
Alternative Liability
General Rule
Loss of Chance of Survival
Cause in Fact: Indeterminate Causes: Alternative Liability
when one or the other party is the cause of the injury to the plaintiff, but NOT BOTH, if neither defendant was held liable it would be unfair to the plaintiff to let two negligent parties off the hook
If defendant cannot prove by a preponderance of the evidence that they were not the cause, then they can both be found liable
The more parties, the less the probability that any particular party was the cause
Cause in Fact: Indeterminate Causes: General Rule
you have to identify which defendant caused the injury
Cause in Fact: Indeterminate Causes: General Rule: Market Share Liability
When there are two or more negligent defendants but only one was the cause in fact of plaintiff’s harm and the plaintiff cannot identify which defendant caused the harm, the burden of proof of causation shifts to the defendant to prove that they were not the cause
• joint defendants must have a significant market share
• Plaintiff proved all parties were negligent but could not prove causation (which defendant caused the injury)
Cause in Fact: Indeterminate Causes: General Rule: Market Share Liability Theory
measures the likelihood that any defendant was the one who caused the injury
o % of the market is the probability that any one of the multiple defendants was the one who caused the harm to the plaintiff
o plaintiff has to join in the action by bringing together defendants whose total market share added together is a substantial share of the market
this is so the likelihood that one of the defendants is liable is higher than not
it avoids finding a defendant liable who most likely was not the cause
o from there, the burden of proof is shifted to each defendant to prove they were not the cause
o each defendant is liable for the % of the market they own
it also dictates the amount of damages each defendant owes and gives the probability of the odds that each defendant is liable
Cause in Fact: Indeterminate Causes: General Rule: Market Share Liability Theory: Limitations on Recovery
product needs to be generic/fungible/each unit identical to others
plaintiff has to prove each defendant was a tortfeasor
plaintiff has to join a substantial share of the market before the court
Cause in Fact: Indeterminate Causes: Loss of Chance of Survival
courts are split on this
Majority- a plaintiff who establishes that but for the defendant’s negligence, the decedent had a 51% (more probable than not) chance of survival, can recover.
• on the other hand, a plaintiff who establishes that but for the defendant’s negligence, the decedent had a 49% chance of survival, plaintiff recovers nothing
Minority- an issue of loss of chance survival may go to the jury if the defendants deprived the decedents of a significant chance to survive and recover
Cause in Fact: Indeterminate Causes: Loss of Chance of Survival: Damages Calculated: Types of Damages that can be Recovered
• Types of damages that can be recovered:
o Lost earnings and additional medical expenses
o You do not necessarily get 100% of the damages (not a total recovery) but 100% of the damages you can recover
o Does not work where injury has not occurred yet
• just because something may be a cause in fact, does not automatically make it a proximate cause
Proximate Cause (Scope of Liability): Rule
Proximate cause exists if there is a sufficiently close relationship between the defendant’s negligent conduct and the plaintiff’s injury or harm.
Proximate Cause (Scope of Liability): General Notes
o Relationship must be close enough between defendant’s negligence and the plaintiff’s injury that the court will believe it is just or useful to impose liability
o Must first determine that defendant is negligent (breached their duty) and then that there was a sufficient relationship between the negligence and the harm
o It is a doctrine of policy and fairness
o Harm that comes from a risk different than the harm that was a “but-for” cause, resulting from the negligence
o Note - Exam: the proximate cause issue may not arise in some cases; e.g. if someone runs a red light and rams into a car, he is liable for negligence because this is the very foreseeable result or risk that made the defendant’s conduct negligent in the first place, so proximate cause not a relevant issue to discuss here
Proximate Cause (Scope of Liability): Intervening Cause
an independent act that occurs after the defendant’s negligent conduct but before the plaintiff’s injury (not a preexisting condition)
Proximate Cause (Scope of Liability): Intervening Cause: Superseding Cause
If the intervening cause breaks the chain of causation between the defendant’s negligent conduct and the plaintiff’s injury, it is a superseding cause
o All superseding causes are intervening causes but not all intervening causes are superseding
Proximate Cause (Scope of Liability): Intervening Cause: Superseding Cause: Intervening acts that do not break the chain of causation:
Criminal acts that the negligent actor could have reasonably foreseen/intentional or deliberate acts of a third party
• Rule: The act of a third person intervening & contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen
Foreseeable negligent acts of a third party (negligence is generally foreseeable)
An intervening plaintiff acting in good faith to minimize the risk from defendant’s negligent conduct
Proximate Cause (Scope of Liability): Intervening Cause: Rescuer Doctrine
The negligent actor owes a duty and is liable to the injured person’s rescuer, just as he is liable to the injured, so long as the rescuer does not act rashly or recklessly (it’s foreseeable someone will try and rescue someone imperiled by defendant’s negligence - “danger invites rescue”)
Proximate Cause (Scope of Liability): Direct Causation
requires the plaintiff’s injury to be a direct result of the defendant’s negligent conduct without any superseding acts
Proximate Cause (Scope of Liability): Foreseeable Causation
a negligent defendant is the proximate cause for all the general kinds of harm that he should have reasonably foreseen as a risk of his conduct (does not have to be the first immediate cause before the harm happens)
o Rule: proximate cause exists if defendant’s negligence caused harm IF BUT ONLY IF the particular type of injury to plaintiff was foreseeable to the reasonable person
Extent of harm need not be foreseeable
Manner/Method in which foreseeable harm occurs need not be foreseeable (need not foresee the way/chain of events that lead to the harm)
o Note: Only the general nature of the harm needs to be foreseeable (ex. burning- general type, 3rd degree- extent)
Proximate Cause (Scope of Liability): Foreseeable Causation: Sub Rules
Rescue
Third Party
Proximate Cause (Scope of Liability): Foreseeable Causation: Sub Rules: Rescue
A tortfeasor is liable to everyone injured in reasonable rescue attempt resulting from their negligent conduct
• Defendant may be liable for injuries suffered by 3rd party attempting to rescue because rescue is a foreseeable act
• If you injure someone/put them in danger, it’s foreseeable someone will rescue them
• Act of rescue- not a superseding cause
• Must be one transaction; rescue must be immediate
o If not, then the causal chain is broken
Proximate Cause (Scope of Liability): Foreseeable Causation: Sub Rules: Third Parties
defendant is liable for the extent of damages caused by intervening 3rd party when their negligent conduct injures P and the injuries are worsened by foreseeable action
Proximate Cause (Scope of Liability): Takeaway
Plaintiff is going to define harm as broadly as possible- minimize the unusualness
Defendant is going to try to define harm as narrowly as possible, arguing that they could not have possibly foreseen any of the results
Proximate Cause (Scope of Liability): Thin Skull Rule
defendant is liable for aggravation of preexisting injuries or conditions.
if defendant’s negligence causes greater extent or different harm than defendant could have foreseen because it aggravates a plaintiff’s preexisting condition- defendant is still liable for all harm
if the kind of harm is foreseeable, the extent of harm by defendant’s negligent conduct is irrelevant and the conduct is still the proximate cause
Defendant must “take the plaintiff as he finds him” aka: defendant is still liable even if plaintiff’s injury ends up way more serious than was anticipated
Note: the thin skull rule only comes into play if defendant has been negligent. It does not increase the duty of care owed to a (unknown) vulnerable plaintiff
Proximate Cause (Scope of Liability): Harm within the Risk
defendant’s liability for negligent conduct is limited to harms that result from the operation of the risks, or a bundle of risks, that made the conduct negligent
No proximate cause if the risk that materialized was unrelated to the general harm that is foreseeable from that object
A plaintiff’s breach may not be causally connected to their injuries if the breach did not increase the risk of harm occurring (the harm of the injury was not within the risk of the negligent conduct)
With a bundle of risks, it must be determined when the risk is over
• Risk can be seen as ongoing if all consequences are related to the negligent conduct
Proximate Cause (Scope of Liability): Unforeseeable Plaintiff Test (Palsgraf)
defendant is liable only to those plaintiffs who he reasonably could have foreseen would be harmed by the risks his negligent conduct created
Proximate Cause (Scope of Liability): Unforeseeable Plaintiff Test (Palsgraf): Zone of Danger
dangerous area created by defendant’s negligent conduct, whether or not the risk was perceived to be foreseeable (how far the danger extends)
Proximate Cause (Scope of Liability): Unforeseeable Plaintiff Test (Palsgraf): Majority
analyzed through breach of duty element; never reached proximate cause element
• Cardozo said: a duty is owed to the foreseeable plaintiffs; it is not enough that a duty was owed to another person, it must be a duty owed to that person specifically
• No duty to someone unless there is a foreseeable risk (within the scope of the risk)
• Cardozo takes foreseeability away from the jury and makes it a duty issue for the court
Proximate Cause (Scope of Liability): Unforeseeable Plaintiff Test (Palsgraf): Dissent
analyzed in terms of proximate cause, with direct causation, determining that the duty element was satisfied because a defendant owes a duty of due care to all of society
• Andrews said: he does not agree that you have to have a duty to a particular plaintiff
• Restatement 3d adopted his view
• Duty exists to prevent unreasonable risk of harm to others as a whole
• There only has to be negligence towards someone
• In order to recover for proximate cause, you need direct causation
o You can recover from something unforeseeable as long as there is no superseding events
• Proximate cause is a question of public policy and the fairness of imposing liability on defendants
Cause in Fact v Proximate Cause
● Cause in Fact ○ Prove it is a But-For Cause ○ Does not prove liability ● Then go to Proximate Cause- Scope of Liability (To Prove Liability) ○ Foreseeability ○ Direct causation
Damages Rule
RESULT FROM A LOSS IN PROPERTY OR INJURY
Affirmative Defenses to Negligence Rule
CONDUCT OF PLAINTIFF THAT MAY CONSTITUTE A DEFENSE EVEN WHEN DEFENDANT MAY BE LIABLE OF NEGLIGENCE
Affirmative Defenses to Negligence
Contributory Negligence by Plaintiff
Comparative Negligence
Assumption of Risk
Implied Assumption of Risk
Affirmative Defenses to Negligence: Contributory Negligence by Plaintiff
conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection and is a legally contributing cause to his injury
o Plaintiff’s negligence must be both cause in fact and proximate cause
Plaintiff’s negligence must still be a harm within the risk
o Not a defense to intentional torts and generally not to recklessness
o Refers to plaintiff’s negligence that is both a cause in fact and proximate cause of plaintiff’s injury
o Just because plaintiff’s negligence was the cause does not mean defendants cannot be the cause too
o Defendant has the burden of proof on plaintiff’s negligence and the causal relation of that negligence
o Plaintiff was barred completely at common law if he was found contributorily negligent, it was complete defense for the defendant (likely not summary judgement for D, ends up being a jury issue)
It was thought to be too hard to apportion loss, so the loss must fall on one party- did not want to give the negligent plaintiff 100% recovery when he was proven responsible for some
o Plaintiff’s negligence is analyzed in the same way as defendant: under the reasonably prudent person objective standard
Affirmative Defenses to Negligence: Contributory Negligence by Plaintiff: If defendant violates a statute, does that statutory violation (negligence per se) mean that defendant cannot raise the defense of contributory negligence?
YES: if statute is found to establish a general standard of reasonable care
NO: special kinds of statutes result in absolute protection & banning contributory negligence
Affirmative Defenses to Negligence: Contributory Negligence by Plaintiff: Two Issues
Was plaintiff negligent?
Did plaintiff’s negligence causally contribute to injury?
Affirmative Defenses to Negligence: Contributory Negligence by Plaintiff: Belt Defense
A plaintiff’s failure to wear a seatbelt is usually not contributory negligence because the absence of a fastened seatbelt did not contribute to the accident itself
As a practical matter, plaintiff’s contributory negligence cannot occur before defendant’s negligence
Affirmative Defenses to Negligence: Contributory Negligence by Plaintiff: Exception: Last Clear Chance Doctrine:
the party who has the last clear chance of avoiding that accident, notwithstanding the negligence of the other, is considered solely responsible
this doctrine will bar a defendant from raising the defense of contributory negligence
when the plaintiff, through his own negligence, has gotten into a helpless position and the defendant, after becoming aware of the plaintiff’s helpless position, fails to exercise reasonable care to avoid injuring the plaintiff, the plaintiff can recover all damages
this is abolished in comparative negligence jurisdictions because there is no need when damages can be apportioned
Affirmative Defenses to Negligence: Comparative Negligence
used by most states rather than contributory negligence
o What is it? Apportions plaintiff’s damages relative to his negligent contribution to the accident
Plaintiff and defendant’s negligence is compared
Plaintiff reward is reduced depending on their % of negligence
Assesses liability in proportion to fault. Plaintiff’s recovery is the amount that the defendant is responsible for his injury
Affirmative Defenses to Negligence: Comparative Negligence: Why adopt this standard?
Fairness- under a regime of contributory negligence, an only slightly negligent plaintiff was barred from any recovery
Logic- each party should be responsible for the harm that they are responsible for
Practical experience- juries are already practicing a form of comparative negligence by finding for only slightly negligent plaintiffs.
Affirmative Defenses to Negligence: Comparative Negligence: Pure Form
apportions liability on a pure percent basis of damage for which you caused regardless of if the plaintiff caused over 50%. (ex. if P caused 75% of damages, they recover 25% of damages)
Affirmative Defenses to Negligence: Comparative Negligence: Modified Form
(majority of states use one of these forms)- apportions liability based on fault up to the point where the plaintiff’s negligence is equal to or greater than the defendant’s negligence
Affirmative Defenses to Negligence: Comparative Negligence: Modified Form: Greater Fault Bar System
plaintiff may only recover if their negligence is less than or equal to the defendant’s (plaintiff’s negligence has to be < 50%)
• Plaintiff is not barred if 50%, barred at 51%
Affirmative Defenses to Negligence: Comparative Negligence: Modified Form: Equal Fault Bar System
plaintiff may only recover if their negligence is less than the defendant’s (plaintiff’s negligence < 50%)
• Plaintiff is barred if her % negligence equals or exceeds defendants (50% bar)
Affirmative Defenses to Negligence: Comparative Negligence: Modified Form: Examples: A, who is 10% negligent, suffers $10,000; B, who is 90% negligent, suffers no damage
o Pure: A recovers $9,000 (90% of her damages)
o EFB and GFB: A recovers $9,000
Affirmative Defenses to Negligence: Comparative Negligence: Modified Form: Examples: A, who is 30% negligent, suffers $2,000; B, who is 70% negligent, suffers $8,000
o Pure: A recovers $1,400 (70% of damages), B recovers $2,400 (30% of damages)
o EFB and GFB: A recovers $1,400; B recovers nothing
Affirmative Defenses to Negligence: Comparative Negligence: Modified Form: Examples: A and B are equally negligent; A suffers $10,000 damages, while B suffers no damage
o Pure: A recovers $5,000
o GFB: A recovers $5,000
o EFG: A recovers $0
Affirmative Defenses to Negligence: Assumption of Risk: Traditional Assumption of Risk Elements
(a) Plaintiff must know of specific risk
(b) Plaintiff must understand/appreciate the specific risk that causes the harm.
(c) Plaintiff must voluntarily encounter risk (Marshall v. Ranne where P was hurt by D’s boar but risk was not voluntary b/c P either had to face the danger or surrender his rights to leave his home)
(d) (Under all the circumstances, plaintiff consents to affirmative risk) – Only some courts hold this
Affirmative Defenses to Negligence: Assumption of Risk: A subjective defense:
Not would a reasonable person know of the risk, but whether this person knew in this instance?
Affirmative Defenses to Negligence: Assumption of Risk
In theory, P must consent, but traditional assumption of the risk has been applied as a matter of law to situations like spectators at baseball games (apply Hand formula to putting nets up to impeding spectators’ enjoyment/thrill of seeing open filed)
Affirmative Defenses to Negligence: Implied Assumption of Risk
is a defense that bars recovery when the plaintiff knows of the risk, understands and appreciates the nature of the risk, and voluntarily encounters the risk
Affirmative Defenses to Negligence: Implied Assumption of Risk: Volenti Non Fit Injuria
to the willing no harm is suffered; one who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary
Affirmative Defenses to Negligence: Implied Assumption of Risk: Volenti Non Fit Injuria: Primary Assumption of Risk
• Actually, not an affirmative defense, but a failure of plaintiff to make out his prima facie case of negligence because the defendant either (a) had no duty or (b) did not breach the duty he had
• A plaintiff who cannot prove that the defendant owed her a duty of care or breached that duty cannot recover
• Plaintiff engages in an activity with a knowledge that it entails certain risks by its inherent nature and that it cannot be conducted without risk of some injury
o EG: Horseback riding, ice skating rink, amusement park ride, rock climbing
• By choosing to engage in inherently risky activity, they assume the risk of injury, D not liable or negligent
• It is accurate to say P assumed the risk whether or not he was at fault.
• If P can prove D owed and breached a duty of care, then P is said to “negate” primary assumption of risk, and P potentially can recover.
Affirmative Defenses to Negligence: Implied Assumption of Risk: Volenti Non Fit Injuria: Secondary Assumption of Risk
(is objective)
• The true affirmative defense where defendant has been negligent by breaching the standard of due care by creating an unreasonable risk, and plaintiff has either made an unreasonable or reasonable choice to encounter the risk, anyway
o Ex: D gives P his car, she notices car swerves to left while braking, drives anyway, crashes (D negligent for lending messed up car, P negligent for driving in face of obvious malfunction)
o D waxes part of floor while open for biz, P sees wet floor, but anxious to get food, rushes across the floor and falls
• A plaintiff who has proved that the defendant breached a duty owed, but knowingly and voluntarily encountered the risk created cannot recover
• It is incorrect to say P assumed the risk whether or not he was at fault.
• If P does prove that the duty was owe and breached, this defense is still available.
• D’s argument: P’s free choice to encounter the negligently created risk should bar her
o Policy: Individualistic common law held P, by knowingly encountering a danger created by D’s neg., “assumed the risk” of resulting injury and thus barred
Affirmative Defenses to Negligence: Implied Assumption of Risk: Can have assumption of risk alone without contributory negligence
(if P sees a slippery sidewalk as she walks into the mall but decides to walk over it carefully and falls rather than go another way)
Affirmative Defenses to Negligence: Implied Assumption of Risk: can have contributory negligence without assumption of risk
(P doesn’t see ice but an RPP would have and decides to unnecessarily run in the mall when there is low temperatures)
Affirmative Defenses to Negligence: Implied Assumption of Risk: can have contributory negligence AND assumption of risk
(P sees ice and runs across it unnecessarily). BUT it can be argued that D owed P (as a business invitee a duty to remedy the dangerous condition so D breached that duty of care toward P i.e., primary assumption of risk is negated, and P would not be barred by assumption of risk.
Affirmative Defenses to Negligence: Implied Assumption of Risk: Elements of Traditional Approach
(subjectively assessed, relative to the specific plaintiff)
The plaintiff must know of the risk
The plaintiff must appreciate and understand the risk
The plaintiff must have knowledge of the specific risk involved
The plaintiff’s engagement in the activity must be voluntary
Affirmative Defenses to Negligence: Implied Assumption of Risk: Primary Assumption of Risk
A plaintiff who cannot prove that the defendant owed her a duty of care or breached that duty cannot recover.
Affirmative Defenses to Negligence: Implied Assumption of Risk: Secondary Assumption of Risk
A plaintiff who has proved that the defendant breached a duty owed, but knowingly and voluntarily encountered the risk created cannot recover.
Affirmative Defenses to Negligence: Implied Assumption of Risk: Example: There is an icy walkway with a sign posted that says, “Be careful, icy.” The plaintiff sees and reads the sign but walks across the walkway anyway.
Traditional Approach: The plaintiff is barred from recovery due to the elements above.
Primary Assumption of Risk: Even though the risk is obvious with the warning sign, there may be a higher duty to protect against the known risk.
Affirmative Defenses to Negligence: Contributory Negligence and Assumption of Risk Compared Example
Assumption of Risk: There is an icy walkway, you see it, you walk across it
Contributory Negligence: There is any icy walkway, you don’t see it, you run across it
Both: There is any icy walkway, you see it, you run across it
Strict Liability Definition and Rule
- Liability without fault
- Rule: One who carries out an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels resulting from the activity, although he has exercised the utmost care to prevent the harm. This strict liability is limited to the kind of harm which makes the activity abnormally dangerous.
Strict Liability: Factors to be balanced to determine if an activity is abnormally dangerous:
Existence of a high degree of risk of harm to the person, land, or chattels of others
Likelihood that the harm that results will be great
Inability to eliminate the risk by the exercise of reasonable care
Extent to which the activity is not a matter or common usage
• Common usage of activities has been broadened, resulting in less strict liability
Inappropriateness of the activity to the place where it is carried on
Extent to which its value to the community is outweighed by its dangerous attributes
Strict Liability: One carrying on an abnormally dangerous activity is subject to strict liability for the resulting harm, although it is caused by the un-expectable
Innocent, negligent, or reckless conduct of a third person, or
Action of an animal, or
Operation of a force of nature
Defenses to Strict Liability
Assumption of Risk
Proximate Cause
Contributory Negligence
Comparative Responsibility
Defenses to Strict Liability: Assumption of Risk
The plaintiff’s assumption of the risk of harm from an abnormally dangerous activity bars his recovery for the harm.
Defenses to Strict Liability: Proximate Cause
This strict liability is limited to the kind of harm which makes the activity abnormally dangerous.
Defenses to Strict Liability: Contributory Negligence
Generally, not a defense to strict liability.
However, there is a defense to strict liability if the plaintiff knowingly and unreasonably subjected himself to the risk of harm from the activity.
Defenses to Strict Liability: Comparative Responsibility
If the plaintiff has been contributorily negligent in failing to take reasonable precautions, the plaintiff’s recovery in a strict liability claim for physical or emotional harm is reduced in accordance with the share of comparative responsibility assigned to the plaintiff.
Vicarious Liability General Rule
A master is liable for the torts committed by his servants when the tort is committed within the scope of the employment, serving a purpose of the master.
Vicarious Liability: Foreseeability Rule
Vicarious liability should be imposed on the master when the risks imposed by the servants were foreseeable.
Vicarious Liability: Frolic vs. Detour Test:
o There is vicarious liability for brief detours taken from work
Example: Deliveryman commits a tort while traveling a few blocks from his route
o There is no vicarious liability for “frolicking”
Example: Deliveryman commits a tort while traveling several miles from his route
Vicarious Liability: Independent Contractors
Generally, there is no vicarious liability for torts committed by independent contractors.
o Must ask:
Who has control over the details of the work?
How are they getting paid?
Who has the right to fire the employees?
o Exception: There is vicarious liability if the independent contractor is hired for unusually dangerous activities where there is a special risk due to the way the job is performed.
The traditional defense of assumption of risk requires that the plaintiff
(1) know of the specific risk that results in her injury, (2) understand (appreciate) the nature of the risk, (3) voluntarily encounter the risk, and (some courts would add) that (4) plaintiff’s conduct under all the circumstances indicates that she consents to relieve defendant of the duty to protect her
• If plaintiff both sees the ice & unnecessarily runs across it, she may have both assumed the risk & been contributorily negligent.
