17torts - Kennedy - Spring 2003

Torts Outline, Page 1
TORTS OUTLINE Spring 2003 Professor Duncan Kennedy KENNEDY OUTLINE CASE CITES CHECK SYLLABUS FOR CASES AND RS I. INTRODUCTION TO TORTS A. General Information Torts are not like contracts based off of a breach of contract. A must demonstrate an injury to an interest that fits under one of the causes of action. Burden of proof is preponderance of the evidence which is lower than reasonable doubt. Contract law are damages for what is foreseeable and here are responsible no matter what. Back to Hadley with unintentional torts but much more complicated with the substantial factor test. Damages based more on reliance than expectation. More liability for consequential and punitive damages. Torts have lots of injunctions whereas specific performance in contracts is more limited. Damnum absque injuria Injury that did not involve a legal wrong. For most unintentional torts the cause of action is strict liability or negligence. B. Questions to Consider What is the black letter? What are the gaps in the black letter? What are policy arguments? Judges do law making in some sense as they choose a rule among options offered to them by the parties. Series of rules along spectrum more or less favorable to a party. 1. Policy Discussion a. Times when policy arguments just wont work: Clear statutory authority to contrary. Good CL/ precedent to contrary b. Times when policy is relevant: Gaps, Conflicts, Ambiguities, White Horse: case with essentially same fact situation as another case C. Von Jhering, The Formal Realisability of Law. Formal Realizability means facility and certainty in the process of applying abstract law to concrete cases (administrable). According to whether this operation demands a more or less considerable intellectual effort, and according to whether the results are more or less certain, there is more or less formal realizability. The ease of applying a rule is determined by the rule itself, depending upon whether the criteria of its application are easy or difficult to recognize. Every law attaches to a specified hypothesis, a specific consequence. Applying the law is therefore: (1) to determine whether the hypothesis indeed happens in the case in question; and (2) to express in a concrete manner the purely abstract consequence. The more general and subjective the manner in which the conditions and consequences of a legal rule are expressed, the harder it is to recognized them in a concrete case. Those clauses which are roughly constructed, but which are attached to outside criteria which are easy to recognize in concreto, are better from a practical point of view than those laws which are perfect with respect to form and essence, but which have no formal realizability. The importance of this last quality is not only to facilitate, to simplify and consequently to accelerate the application of the law, but also to insure the uniform application of the law. It often compels the abandonment of the original purity of legal ideas in favor of forms which make them more easily tractable in practice. This deviation from the original legislative idea, this abandonment of a more exact hypothesis in an abstract form, in favor of a less exact and less adequate one more easily recognized in practice is required by one of the laws own purposes by the desirability of facility and certainty in its functioning. This is not a formal v. functional distinction. Torts has never had a formalist strain (adhering to outward expressions and not the inner meaning). 1. Kennedy, Form & Substance
a. Standards v. Rules Standard: One of the substantive objectives of the legal order requires judge both to discover facts of a particular situation and to assess them in terms of the purposes or social values embodied in the standard. Quality of realness = formal realizability. i. Pros of formally realizable rules: restraint of official arbitrariness and certainty ii. Cons of formally realizable rules: sacrifice of precision in the achievement of the objectives behind the rules b. Generality v. Particularity Generality: attempt to deal with as many of the different imaginable fact situations in which a substantive issue may arise as possible. A general rule will be more over- and underinclusive than a particular rule: the wider the scope of the rule, the more serious the imprecision. The multiplication of particular rules undermines their formal realizability by increasing the number of jurisdictional questions. Regime of general rules should reduce the occasions of judicial lawmaking to a minimum: there will be fewer cases of 1st impression and fewer occasions where judge is free to choose between conflicting lines of authority. Application of a standard to a particular fact situation will often generate a particular rule much narrow in scope than that standard. D. Hohfeld, Some Fundamental Legal Concepts as Applied in Judicial Reasoning 1. Jural opposites: right/no-right, privilege/duty, power/disability, immunity/liability. Jural correlatives (single legal relation from the point of view of the two parties): right/duty, privilege/no-right, power/liability, immunity/disability. a. If A has a right to do something then B has a duty to respect that right (allow A to do it). b. If A has a privilege to do something, A is allowed to do it but B can keep A from doing it (perhaps by B doing it herself). c. Privilege/no-right pair = damnum absque injuria (no remedy for harm) 2. Singer, Hohfelds System a. Definitions i. Rights = claims, enforceable by state power, that others act in a certain manner in relation to the rightholder. ii. Privileges = permissions to act in a certain manner without being liable for damages to others and without others being able to summon state power to prevent those acts. iii. No-right = one does not have the power to summon the aid of the state to alter or control the behavior of others. iv. Duties = the absence of permission to act in a certain manner. b. Dual purpose of the analytical system: i. to criticize the claim that rights flowed from privileges as a matter of deductive logic ii. to reject the classical assertion that liberties (privileges) were permitted only to the extent that they did not affect the interests of others II. INTENTIONAL TORTS A. Introduction 1. Intentionally Inflicted Harm: The Prima Facie Case and Defenses a. The law often distinguishes between the intention to do some act that causes harm and the intention to cause the harm itself.
b. Once the s prima facie is made, how does one decide on the types of permissible excuses and justifications and the limitations that may be imposed upon them? c. Most obviously the law guards against obvious physical harm to person or property, but it also extends its protection against affronts to personal dignity and emotional tranquility. B. Tresspass to Land, Conversion , Assault, and Battery 3. No Duty to Act vs. Strict Liability for Injury to the Interest in Bodily Security a. Hurley v. Eddingfield Doctor, who had been longtime family physician of decedent, was approached by messenger saying decedent was seriously ill and needed his care, and that no other doctor was available. Without any reason, the doctor refused to render aid and patient died. By licensing a physician, the State does require that he will practice medicine at all or on any other terms than he chooses to accept. A doctor is not analogous to an innkeeper or common carrier in his obligations to the public. i. Later cases have supported this holding, but once a relationship between doctor and patient has been entered into, it can only be ended by mutual consent or when treatment is no longer needed. ii. Current RS has caveat that it does not have an opinion on whether other relationships, like doctor patient, are or are not special relationships. Policy arguments: autonomy, morality, utility and welfare of people dying, right to be helped if in danger and will cost the aider nothing. iii. Dramatic difference between action torts that are strict liability and omission iv. Epstein believes in strict liability but no duty to act if not mentioned as default
Goldsmith, Vindication, Not Vengeance 1997 article on 1st wife who sued ex-husbands 2nd wife for alienation of affection for stealing her husband. Jury awarded $1M (which 2 nd wife would never be able to pay. Goldsmith says that the case was never about money but about honor, loyalty and the marriage contract. Lawsuit was a way to send a message that what happened to her was neither fair nor appropriate. Changes in divorce law fail to protect women financially or emotionally, so why not use the alienation of affection law? Jurys award was vindication of 1st wifes right to be angry. Herbert, One More Police Victim 1997 article describing numerous cases of police brutality in New York. Although many suits alleging police brutality are filed and settled in NY every year, little is done to prevent the behavior. Mayor and others have, until recent very brutal case, supported the police unwaveringly, resulting in the undermining of the publics trust of police. Maybe only very sensational recent case will prompt mayor to take an honest look at extent of problem. b. Battery Prima Facie case is an act by , intent, harmful or offensive touching, causation, and lack of consent. Two standards of battery.
RS 13(a) generally must show that the did the act with the intent to inflict a harmful or offensive touching on the or a third person. Must intend to do harmful touching that is considered offensive under objective standard of the community. Offensive Battery: RST 18 Battery: Offensive Contact (1) An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a 3rd person, or an imminent apprehension of such a contact, and (b) an offensive contact with the person of the other directly or indirectly results (2) An act which is not done with the intention stated in Subsection (1)(a) does not make the actor liable to the other for a mere offensive contact with the others person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm. Comment: a. Protection covers contact with anything so closely attached [to s person] that it is customarily regarded as a part thereof and which is offensive to a reasonable sense of personal dignity as well as cases of direct contact with s person. b. Knowledge that unpermitted conduct has taken place is not necessarily to establish battery (e.g., if someone kisses you in your sleep w/o harming you or waking you up, he is still liable to you for battery). c. Because of the requirement of a volitional movement, the movements of a person having an epileptic seizure or of persons asleep or under the influence of drugs are not generally sufficient acts for the purpose of establishing liability for intentional torts. i. Intent a. Vosburg v. Putney While in school a 14-year-old boy kicked an 11-yearold boy in the shin, lightly enough so that the kick went unnoticed. But, the had previously injured the leg and the kick triggered a series of problems that led to the loss of use of the leg.. In an action to recover damages for an alleged assault and battery, the rule is that must show either that the intention was unlawful, or that the is in fault. If the intended act is unlawful, the intention to commit it must necessarily be unlawful. If the kicking was an unlawful act, the intention of the to kick was also unlawful. Because the kick took place in school and not on the playground, it was a violation of order and decorum of school, and necessarily unlawful. The rule of damages in actions for torts was held to be that the wrong-doer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him (strict liability). Offended objective standard of the community. How does this fit with RS 13? i. Why? Why is it that what counts is the intent to commit the act? Its a meaningless, circular explanation to simply say that the rules of intentional tort exist because what counts is the intent to commit the act because it doesnt tell you why we have such a generalization in the 1st place. Possible response is that by adopting the generalization is that we eliminate the need for all the defenses to be considered. (Administrability justification). Another response is to justify adopting the generalization by saying that if furthers the basis for tort law, which is to provide compensation (assuming
that is the reason for tort law). This is a problematic justification how do you explain the no duty to act doctrine when not acting results in a harm (Hurley v. Eddingfield) or the fact that intent to harm is a factor in unintentional torts? Rights-type justification: right to security (of self and of property) is a great goal and is thus a basis for tort law, so you have a right to security regardless of who is invading that right or why they are doing it. This sentiment doesnt seem to exist in the realm of domestic A & B b. Whether or not had the requisite intent is measured by whether he acted with the desire to cause the result or believed that the result was substantially certain (i.e. that such a touching was substantially certain to result from his act). Garrat v. Dailey a woman sued a 5-year-old boy for battery, alleging that he moved her chair as she was sitting and she fell and fractured her hip. The court said: A battery would be established if, in addition to s fall, it was proved that, when Brain moved the chair, he knew with substantial certainty that the would attempt to sit down where the chair had been. The mere absence of any intent to injure the or to play a prank or to commit an assault and battery on her would not absolve him from liability if in fact he had such knowledge. i. Not a question of what a reasonable person would have desired or believed but what the particular in fact desired or believed. Subjective rather than objective. ii. In certain circumstances, a different intent is sufficient to make out a prima facie case for battery. Battery arose out of the old common law form of action called trespass along with assault, false imprisonment, trespass to land, and trespass to chattels. If the acts intending to cause any one of the harms of trespass he will be liable on intentional tort theory if any of the five harms of trespass occur to that person or another person even though the other person is unexpected and the harm is unexpected. 1. Although the justification is phrased as involving intent the better explanation for the doctrine is that the court are imposing strict liability on because of serious misbehavior in directing the intentional act against or s property. c. Idaho Supreme Court. Nonconsensual touching and does not matter if the offender meant to commit harmful touching. d. White v. University of Idaho Dont need to intent to do a harmful act as long as you intend to do the act. Prosser interprets that the touching must be nonconsensual. Consent standard is highly flexible and can include implied consent based on relationship. Piano teacher and student. ii. Harmful or Offensive Touching a. Fisher v. Carrousel Motor Hotel (Tex 1967) To make out a case for battery, the must show that the s intentional act resulted in the infliction of a harmful or offensive touching of the s person or something so closely associated with as to make the touching
tantamount to a physical invasion of the s person. Things closely associated with the s person would cover situations where the knocks the s hat off his head, grabs a plate out of his hand, etc. There must be actual physical contact. Coming close is not enough to constitute battery. b. A touching is harmful if it injures, disfigures, impairs or causes pain to any bodily organ or function. A touching is offensive if it would offend a reasonable persons sense of personal dignity. i. RS 19 A touching that would not cause a reasonable person to take offense, but at which the does take offense, is not sufficient to impose liability for battery. 1. RS 27 This rule does not apply in a situation in which the knows of the s hypersensitivity but proceeds anyway. Thus, under circumstances where it might generally be acceptable to gain someones attention by tapping him lightly on the back, the may be liable for battery if he lightly taps the on the back knowing the does not wish such contact. ii. RS 19 The need not have knowledge of the touching at the time thereof (i.e. a kiss while sleeping or something during unconsciousness) iii. Causation Direct or Indirect Results 1. RS 13 The harmful or offensive touching must be caused by the s act or some force that the acts set in motion. The causation element is satisfied if the s conduct directly or indirectly results in the injury. i. The law holds an intentional wrongdoer liable for the direct and indirect consequences of his acts, whether or not forseeable. However in negligence cases, causation rules may operate to terminate liability at an earlier point so that a negligent tortfeasor may be excused from liability for injuries for which an intentional tortfeasor would be held liable. Damages Even if no actual harm is suffered the court will award at least nominal damages. Also compensatory and punitive damages options.
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4. Property Interests: Tresspass to Land and Conversion. a. Trespass The action for trespass to real property is designed to protect the s interest in the exclusive possession of land and its improvements. Like battery, it does not even require a showing of minimal harm. Traditional formula for the action was known as quare clausum fregit. The prima facie case for trespass to land is an act by the , intent, intrusion upon land, in possession or entitled to immediate possession, and causation i. A volitional movement by of some part of his body that results in an intrusion onto anothers land or that sets in motion a force resulting in such intrusion. ii. The must have intended to do the act that causes the intrusion onto the land; however, he need not realize that the land belongs to another. He is liable for an
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intentional entry even though he acts in good faith, believing himself to be the true owner 1. If it appears that the s invasion of the land was not intentional, he might still be liable on a negligence theory if can show damages. Damages are required where liability is based on negligence, but not where trespass is intentional. 2. Certain inversions may be actionable on the theory of strict liability. 3. Transferred intent applies to trespass. s intrusion may be personal entry onto s land or by causing some third person or thing to entry. Alternatively, it may be found in the s failure to either leave the land or remove property therefrom after permission ahs expired. 1. If the intrusion is nonphysical in nature, courts usually treat it as nuisance. At the time of trespass, the s interest in the land must be either actual possession or the right to immediate possession. 1. This includes anyone actually in possession, so it includes even wrongful occupiers like an adverse possessor. 2. If no one is in actual possession t he person who has the right to immediate possession may maintain action. Immediate means the holder of some present possessory estate as contrasted with a future interest. 3. If an owner has been ousted from possession by another the owner cannot maintain a suit for trespass because the dispossessor is in actual possession. The invasion must be caused by the s intentional act or some force set in motion thereby. See discussion of causation for what is sufficient for this element. A trespasser is liable for harm to the person or property of the owner even if the harm was not foreseeable. RS 163 It is immaterial whether any actual damages were caused. Trespass to land is complete upon s intentional intrusion and the will be liable for at least nominal damages. Rationale: The s conduct if repeated might otherwise ripen into a prescriptive right.
b. State v. Shack Could have brought civilly with lower standard of proof and would not have the defense of duress. Whether or not an action is a trespass depends on whether or not the underlying social interests of the institution outweigh the interests of the autonomy interests of the owner. The migrant farmworkers are disadvantaged and communication is vital. But, it is not the purpose of the court to open the land to the general public like peddlers, etc. Creating a rule (normative). Eddingfield sets down a rule with no explanation and more hard and fast (trashy). Court Ruling s Argument s argued that under Marsh, first The growers land was not as public as the company mill towns so the court did amendment rights were violated not want to extend Marsh to this case but did not preclude themselves from doing it in the future. Policy arguments are more protective of farmworkers than constitutional ones and would have gone to the federal supreme court that is
conservative at this time. State court determines because tort law is state law and not federal law. s operating under federal program and federal law so not liable. Analogizes to National Labor Relations Act that sometimes owner may be liable for violation if they prohibit union leaders from entering the premises. And prohibiting them would override the supremacy clause. Analogy to the farmworkers being tenants under state law. Court rejects because not a trespass and therefore do not need to go down that road. The owner, under state law of real property, does not have the right to bar access to these government workers.
Court distinguishes because the law of landlord tenant has never been applied to the landlord-tenant situation. Grower would also be able to just change the circumstances of the lease.
c. Trespass to Chattels: A chattel is an tangible identifiable object but does not include a purely monetary object. RS 218. Some intermeddling with chattel of another person (at times even dispossession), but something short of a conversion. Liability is imposed only if possessor of chattel suffers dispossession or lost use, or if the chattel or the possessor is harmed. Liability is based on actual damage, not on market value of chattel. The prima facie case is an act by , intent, invasion of chattel interest, in possession or entitled to immediate possession, causation, damages (where only intermeddling involved). i. Volition by or part of his body that results in dispossession of or damage to the chattels of another. ii. Necessary for intent only that the have intended to deal with the chattel in the manner in which he did deal. The fat that he may have been acting under a mistaken claim of right, thinking the chattel belonged to him all along, is immaterial 1. If intent to deal with the chattel cannot be shown, negligence or strict liability may possibly be a basis for an alternative cause of action. 2. Transferred intent applies. iii. The s volitional act or some force set in motion thereby must have resulted in either a dispossession or an intermeddling with the chattel of another. This requirement has an impact on damages. 1. Dispossession refers to conduct amount to the s assertion of a proprietary interest in the chattel over the interests of the rightful owner. Examples include theft or destruction of the chattel or even barring the rightful owners access to it. 2. Intermeddling embraces conduct by the that does not challenge the rightful owners interest in the chattel although the may have gone so far as to carry the chattel away. Intermeddling includes throwing a stone at ones car, beating animals, etc. iv. The possession requirement is the same as trespass to land. v. Invasion must have been legally caused by the s intentional act or a force set in motion thereby. See causation discussion below.
vi. If the s conduct amounts to a dispossession or the otherwise deprives the of the chattels use the can recover for loss of possession (i.e. rental value) even if the chattel itself has not been damaged. In cases of dispossession, the may choose to sue for conversion of chattels. But if the s act accomplishes only an intermeddling short of interfering with s possession a trespass action will not lie absent a showing of actual damage to the chattel. d. Conversion (Trover): RS 222A. An intentional tort to exercise substantial dominion over some elses chattel. There must be intent to exercise substantial dominion, but there is no requirement that be conscious of wrong-doing. The buyer is liable even if she is a bona fide purchaser who buys in good faith and without notice of true owners rights. The theory is that you cannot purchase any more than the person has. A prima facie case consists of an act by the , intent, invasion of chattel interest, in possession or entitled to immediate possession, and causation. i. A volitional movement by the or some part of his body that results in an interference with anothers possession of her chattels. ii. The need to have only intended to deal with the chattel in the manner in which he actually did deal with it. RS 244 Thus, if the did to the chattel what he intended to do it is no defense that he was not a conscious wrongdoer as where he mistakenly thought he was the owner. 1. If you buy a stolen watch, you can be held liable for conversion along with the person who stole it, even if you didnt know it was stolen, because you both exercised intentional substantial dominion over the watch. Caveat: If I do not steal a watch but trick someone into selling it to me, I may be guilty of fraud but not of conversion and do get title to the watch (until convicted for fraud). iii. The invasion required for a conversion claims greater than that required for a trespass to chattels claim: serious dispossession of substantial right, destroying or altering, unauthorized use by bailee, buying/receiving/selling/disposing stolen property, misdelivering a chattel, refusing to surrender a chattel on demand. Because of these distinctions one could commit many acts of conversion. 1. What constitutes dominion? American Law Institute says interference should be serious enough to justify imposing such liability and identified a number of important factors, including: Extent and duration of control, s intent to assert a right to the property, s good faith, harm done, expense or inconvenience caused. 2. Traditional CL rule held conversion would lie only for tangible personal property (thus not for land or paper money). Current rules are more liberal one can convert shares of stock or bonds and other documents that are strongly identified with the right itself. 3. UCC provides that if goods are entrusted to the possession of a merchant who deals in goods of that kind, the merchant has legal power to transfer all the rights of the entrustor. This may mean that if a bike repair shop sells a bike only left there for repairs to someone, the purchaser would not be guilty of conversion. iv. The actual possession and causation requirements are the same as above.
v. Usual remedy is damages, measured by the value of chattel at the time of conversion. Where value of chattel may fluctuate in the market, some courts have permitted to recover for highest market value of the chattel that occurs w/in a reasonable time for replacement. United States v. Merchants Mutual Bonding Co. (Iowa 1965) Can also seek replevin or claim and delivery, which is the actual return of the chattel itself. e. Defenses and privileged invasions of land and chattels: consent, privileged invasion of anothers land to reclaim chattels, privilege to exclude or evict trespassing chattels of another, public or private necessity privilege (see Vincent v. Lake Erie and Ploof v. Putnam below), abate a nuisance, misconduct by an actor. 5. Extent of Liability for Unintended Consequences a. McGuire v. Almy (Mass. 1937) was a registered employed to take care of , who was insane. As approached and tried to hold the hand that held the leg, struck on the head, causing injuries. It is enough here to say that where an insane person by his act does intentional damage to the person or property of another he is liable for that damages the same way a normal person would be liable, meaning that so far as particular intent would be necessary in order to render a normal person liable, the insane person must have been capable of entertaining that same intent and must in fact have entertained it. Consistent with the general statements found in cases dealing with infant liability for torts. Most courts say that an insane person is liable for his torts, with the possible exception of torts requiring malice of which the insane person in incapable. Holding limited to cases involving intentional tort. [McGuire probably a second-generation Irish nurse whereas Almy is a rich landowner. Tort law mediates gender, race, and social class although the rules can never be reduced to that. Legal elite have been clamoring for an insanity defense as they want faulty analysis.] Court seems to believe that if two people are blameless, we should still punish the one that did harmful acts. i. Maxims of tort liability: No liability for faultless. Between two innocents, he who caused the harm should pay. Capable of maxing a crazy choice. ii. RS assault requires intent to harm or offend which is less protection than Vosberg and Idaho. a. Intent and seriousness of harm determines liability. RS 435B The choice of this rule or the Vosberg and Idaho rules would make a difference in whether or not liability exists. b. Cauverien v. DeMetz s refused to return or purchase the diamond, even though they knew such refusal would destroy s reputation and ability to earn his livelihood. committed suicide, and his executrix brought an action for wrongful death against s. Most authority says a suicide absent insanity precludes an action under the wrongful death statutes by breaking the causal connection between the wrongful act and death. However, it has been recognized that where the suicide is committed in a state of insanity in response to an uncontrollable impulse, recovery is possible if the deceaseds mental state was caused by s wrongful act. Uncontrollable impulse is directly caused because no intervention of free will. B. The Limited Expansion of Legal Protection of Rights of Personal Security
1. Assault Imminent or immediate threats that you believe may be acted on and attempts that you believe might succeed (victims believe they are about to be victims of A&B). Different LPI than battery and is much more limited. Protection of freedom from apprehension. Mental and emotion tranquility interest. Damages likely to be punitive. May not be any emotional issues, just really scared. Threats and attempts give rise to apprehension. a. Requirements for a prima facie case: Act by , intent, apprehension, causation, and lack of consent. i. The act required is the same type of act as is required for battery a volitional movement of some portion of the body. 1. Because of the requirement that the act create in the an apprehension of an immediate touching words alone are generally not enough to constitute an assault. There must also be some volitional movement of the body, however slight. a. Tuberville v. Savage (Eng. 1669): Court said it was not an assault for to say If it were not assize-time, I would not take such language from you, saying that it is the intention as well as the act that makes an assault. Thus, striking another on the hand in ordinary discourse is not an assault b/c there is no such intention; however, if one intends to assault and misses, there is still an assault and if someone holds up his hand against another in a threatening way and says nothing, it is also an assault. b. Brooker v. Silverthorne (S.C. 1918): Court refused to uphold jury award for , a night operator of a telephone exchange, for mental anguish and nervous shock caused when verbally abused her over the phone, saying If I were there, I would break your God damned neck. Court said s conduct merited severest condemnation but did not amount to a threat. A threat only promises a future injury, and court said here there was no expression of an intention to injure in the future and therefore no threat. (Example of the reasonable requirement may be unreasonable to anticipate the threat was imminent and immediate when made from a distance.) 2. Words may be enough however to impose liability for IIED. ii. Must show that intended to either inflict a harmful or offensive touching on the or a third person or put the or third person in apprehension of an imminent harmful or offensive touching. 1. The s intent is measured by the desire or belief in substantial certainty test. No malice need be shown. 2. Transferred intent is also applicable. iii. must be put in a state of expectation or apprehension of an imminent harmful or offensive touching of her person. 1. Fear is not required. 2. s awareness must be at the time thereof. No actionable assault if, for example, the silently pointed a gun at the while her back was turned.
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a. Different than battery where the need not have knowledge of the touching at the time. must show apprehension of a touching to her own person. a. Those to others may impose IIED or false imprisonment if own family. Normally the source of harm is the but a may be liable where he arouses apprehension of harm from someone else or even an act of God. RS 25 You must show that you anticipated you were about to be battered in order to recover, Has to be imminent. Threats of future harm are insufficient, but may be for IIED. Conditional threats may be sufficient provided the condition is one that the is not privileged to assert as to the circumstances under which one person is privileged to use or threaten harm to another (i.e. selfdefense or privilege of arrest. It is immaterial that a reasonable person would not have been placed in apprehension by the s act. Actual (subjective) apprehension is the test. RS 27. a. Reasonable requirement for claims of apprehension of immediate contact. If this is shown, then is guilty for any unforeseen consequences that may result (like Vosburg). Caveat: if knew about s special problems/apprehensions, then may be liable even though s apprehension is not necessarily reasonable. b. Apparent ability of the to inflict the touching is sufficient. Allen v. Hannaford (Wash. 1926) stated dangers to social fabric from demonstrations of force. hired moving men to remove furniture claimed she had a lien to, and when discovered the furniture being removed she threatened to shoot the moving men with a pistol and then aimed the pistol and the and threatened to shoot her. Court affirmed a verdict for over s argument that she could not be guilty of assault since the gun was unloaded, saying that as far as the was concerned the could make good on her threat to shoot whether there is an assault in a given case depends upon the apprehensions created in the mind of the person assaulted than the secret intentions of the person committing the assault.
iv. The s apprehension must have been caused by the s act or something the set in motion. As to sufficient causation, see the discussion above for battery. v. The damage rules discussed above under battery generally apply to assault as well. need not have suffered any emotional distress, physical injuries, or other damages (although these are recoverable if sustained.) b. CL tort of assault is much more narrow than modern tort rules that have surfaced to give people increased protection against threats. The number of circumstances in which you can
recover for emotional injuries that assault doesnt remedy has grown under new causes of action (CL and statutory). i. Pattern of expansion: 1) compensating people for physical injuries that derive from emotional circumstances you dont want them to suffer; 2) Allow them to recover for both physical and emotional injury when there has been a physical injury; 3) Allow recovery for emotional injury even w/o physical injury. (see also parasitic damages, below) c. RS 21: Assault (1) An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a 3rd person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension. 2. Intentional Infliction of Emotional Distress: Extreme and Outrageous Conduct a. RS 46 Outrageous Conduct Causing Severe Emotional Distress One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. (1) Where such conduct is directed at a 3 rd person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress (a) to a member of such persons immediate family who is present at the time, whether or not such distress results in bodily harm, or (b) to any other person who is present at the time, if such distress results in bodily harm. b. Prima facie case of an act by the - extreme and outrageous conduct, intent, causation, and severe emotional distres i. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. 1. Words alone may be sufficient along with gestures and other actions. 2. Courts will look to the totality of the circumstances and not each isolated incident. 3. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. a. Exception for common carriers and public utilities b. Cases involving insults or attacks based on race or gender may be actionable harassment claims even if not amounting to the traditional tort of IIED. Meritor Savings Bank v. Vinson (D.C. Cir 1992). 4. Even if the s conduct was aimed only at a particular person, the will also be liable for IIED to members of that persons family if present at the time of the conduct and the knew of their presence. Rationale: Under the circumstances, the must have known that his conduct towards the first person was substantially certain the hurt the family member or the conduct was at least reckless. Note that this is not transferred intent.
ii. The must have intended to cause severe emotional distress or mental anguish to the . Reckless conduct will also suffice. 1. Intent may be inferred from actors knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. 2. No transferred intent among torts. If the intended to cause bodily harm or property damage to the but did not succeed, and only unintended and unexpected emotional distress resulted, the is not liable for IIED because transferred intent does not apply to this tort. iii. Early cases held that the s act had to cause a severe emotional disturbance in the which in turn caused demonstrable physical injuries to assure against fraudulent claims. Wilkinson v. Downton (Q.B. 1897). The modern view is that if the intentionally and successfully causes severe emotional distress to the recovery is allowed even if the suffered no demonstratable physical injuries. Rationale: The outrageous nature of the conduct may be a more reliable indication of damage to the that actual physical injury. RS 46. 1. Whether the s conduct is sufficiently outrageous to cause mental anguish is a fact question in each case. Changing attitudes and social conditions are relevant to this issue. iv. Although theoretically the common law defenses available to other intentional torts should apply here in reality these defenses are not available because the prima facie case requires such an extreme level of misbehavior. Therefore, based on good faith or reasonable mistake are not relevant to this tort. Some defenses arise under the first amendment freedom of speech or free exercise of religion. v. In addition to compensatory damages, punitive damages may be recoverable in states that permit them because of the nature of the s act. d. Overlaps with assault. 1. RS 46 Must be outrageous and cause extreme emotional distress so broader. Physical harms caused by vehicle of emotions but cant recover for emotional alone. 2. IIED does not require imminence. Assault does not require outrageousness. Can recover emotional and punitive damages for IIED. 3. RS 312 is broader and narrower than RS 46. Only liable for physical harm but doesnt require extreme and outrageous or likely to cause emotional distress. 4. RS 312 intentionally and unreasonably subject which should recognize as likely to result in illness or other bodily harm even if no intention to actually do so. Only physical harm. RS 46 Extreme and outrageous. Physical and emotional harm. 5. Does not expand liability. No case in which there would not have been liability under the common law because still requirement that creates a threat of imminent bodily harm, which would be an assault. 6. Liability in assault is complete upon occurrence of the apprehension whether or not any mental anguish, emotional distress, or physical injury results. e. Rule Spectrum for Massachusetts Anti-Stalking Laws. Sets a minimum for tort liability and judges could go beyond to establish civil liability. Latin tag. A remedy which is no legal remedy, but now does. The statute has redefined imminence (in comparison to Massachusetts) to include some mere words and at a distance, but may not necessarily expand liability because have other limits of a knowing pattern of action over a period of
time. Intent is enough. Fear has to be of death or bodily injury whereas assault is fear of harmful or offensive contact even if know that death or bodily injury would not occur because you could defend yourself. Plus, substantial emotional distress and has to seriously alarm or annoy. No transferred intent. b. Parasitic Damages. Emotional damages added on to physical damages. Liable even if not extreme and outrageous or foreseeable. Way of expanding protection and compensating injuries we dont think people should have to suffer, even though there are no ways under tort law that the injuries can be compensated by themselves. c. Wilkinson v. Downton , playing a practical joke on , told that her husband was seriously injured in an accident and that should go directly to him. As a result, suffered a violent shock to her nervous system that produced serious and permanent physical consequences. Court refused to treat it as a case of parasitic damages, saying it could not be allowed on theory of fraud and deceit the way the transportation costs were. However, court found that willfully committed an act calculated to cause physical harm to the -- to infringe her legal right to personal safety and thereby caused her physical harm. It doesnt matter that more harm was done than anticipated, and the effect was not too remote to be regarded as a consequence for which the is answerable. 1. Liable for physical damage if you know or should have reason to is this 312. d. Dawson v. Zayre Dawson entered Zayres department store to pick-up layaway item and became involved in a dispute with a store employee. The employee called Dawson a nigger and Dawson filed a complaint in trespass alleging that she suffered severe emotional distress as a result. Although the namecalling was derogatory and offensive, no recovery can be had for mere offensive namecalling. This is not a case involving continuous malicious actions or a case where there is a special relationship between the parties RST 48s special liability has not been extended to conduct affecting an ordinary business invitee. e. Bouillon v. Laclede Gaslight Co. Court allowed s cause of action for miscarriage and physical impairments allegedly caused when s meter reader tried to force his way through the front door of s apartment while was pregnant and fought with s nurse within earshot of the . Court said that although the assault occurred only on the nurse, the could bring her action as a consequence of trespass a trespasser is liable to respond in damages for such injuries as may result naturally, necessarily, directly, and proximately in consequence of his unwarranted intrusion. f. Constitutional Implications CL tort rules are subject to constitutional scrutiny in the S. Ct., especially in the intersection between the tort of intentional infliction of emotional distress and protection of freedom of speech. Hustler Magazine v. Falwell In the world of political debate, many things done with motives that are less than admirable are protected by the 1st Amendment; otherwise, political cartoonists and satirists would be subjected to damages awards wihout any showing that their work falsely defamed its subject. g. Matsuda, Public Response to Racist Speech: Considering the Victims Story Racist hate message can cause real damage and emotional distress. In order to both respect 1st Amendment values and prevent such harm from occurring, the worst forms of racist speech should be treated as outside the realm of protected discourse. The application of absolutist free speech principles to hate speech is a choice to burden one group with a disproportionate share of the costs of speech promotion. You can distinguish the worst racist hate messages by
3 identifying characteristics each element is a prerequisite to prosecution, preventing widespread censorship (satire, stereotyping that avoids persecutorial language is protected, as are verbal attacks on dominant group by victims): 1. Message is of racial inferiority. 2. Message is directed against a historically oppressed group. 3. Message is persecutorial, hateful, and degrading. Legal protection of racism is seen in doctrinal elements: 1. Limits of doctrinal imagination in creating 1st Amendment exceptions for racist hate speech. 2. Refusal to recognize competing values of liberty and equality at stake in the case of hate speech. 3.Refusal to view the protection of racist speech as a form of state action 3. Privacy v. Spouses Sexuality a. Historical Background of Right to Privacy 1. Warren and Brandeis, The Right to Privacy (1890) The common law evolves according to political social and economic changes, and new rights come into being, expanding on the existing ones. The prevalence of instantaneous photos, newspapers and more advanced mechanical listening devices represent new encroachments on private lives, and the courts will soon have to recognize a right to privacy. Widespread gossipmongering is eroding social morality and taking the place of legitimate discourse. a. This was one of the most influential law review articles ever. b. The authors locate the right to privacy in the common law as analogous to copyright law. It is not a principle of property, but of inviolate personality. c. They limit their right to privacy as follows: It does not apply to oral communications in the absence of special damages; it inherits all the privileges of defamation, and in addition a privilege for matter which is of public or general interest; truth is not a defense; malice is not required; and right ceases upon voluntary publication. 2. Prosser on Torts, Social Engineering Torts is the battleground for social policy, and society may have an interest in private disputes. Social engineering results when interests of society swing the balance in favor of one party or another, and it uses law to promote the maximum social welfare. We struggle to arrive at the appropriate balance between FR and EF, and law must coincide with public opinion. Prossers attempt to outline the right to privacy. Privacy encompasses 4 different invasions of 4 different interests loosely related to the right to be let alone. 1) Intrusion upon Ps solitude or private affairs. 2) Public disclosure of embarrassing private facts about P. 3) Publicity portraying in false light in the public eye. 4) Appropriation of Ps likeness for Ds advantage (or commercial gain). Different rules may apply to each type of invasion. Prossers formulation has been attacked for overlooking the unifying interest in human dignity that underlies all four. 2. RS 652A General principle of invasion of right of privacy through (a) unreasonable intrustion, (b) appropriation of the others name or likeness, (c) unreasonable publicity, or (d) publicity that unreasonably places the other in a false light before the public. RS 652B Liability for intentionally intruding on anothers solitude or seclusion is laible ifthe intrusion is highly offensive to a reasonable person. 3. RS 685 Liability for invasion of legally protected marital interests.
4. Four different solutions to criminal conversations. Should know the options and how to use legal research to find out what applies in a jurisdiction and arguments for expanding and contracting the law. Keep as is, equalize or not, mistake and seduction defenses. 5. Originally only a husband could bring a suit against a man who had sexual intercourse with a woman who was at the time his wife. In the 1950s, expanded on equality grounds extending protections to wives. Could have moved to DAI less protection without abolishing it by requiring the partner knew the person was married or continuous activity as there is no defense of mistake or that the spouse initiated the contact. Counter argument that would be underinclusive as anyone could claim they did not know. Seduction would not be administrable. a. Fadgen v. Lenkner Tort of criminal conversation hereby abolished. The tort (a form of trespass) was designed to protect against interference with the marital relationship and required only a single act of intercourse for liability. Absolute defenses were: (1) There was no sex, and (2) consented. Neither seduction by Ps spouse nor ignorance of the marital relationship were defenses. This action was prone to abuse and malicious litigation. It is within the courts power to abolish an anachronistic judge-made cause of action. i. Dissent. Court has no authority to abolish the cause of action. Conjugal rights and the marital relationship are still deserving of legal protection, and society still considers marital infidelity unreasonable. The trend has been to expand causes of action, not abolish them. The inquiry should be (1) whether there is an interest society should protect, (2) has it been invaded w/o justification, and (3) has the invasion caused an injury? Only the legislature should decide if an interest should no longer be protected. 4. Sexual Harassment in the Workplace a. Both racial and sexual harassment are forbidden by Title VII of the Civil Rights Act of 1964. The EEOC was created to deal with claims resulting from the new federal regulations, important because according to the provisions of the statute, must exhaust administrative remedies before bringing a claim in court. In workplace environments where blacks and Latinos employees were mistreated by fellow employees via racial slurs and harassment, the employer was in violation of Title VII ban on employers doing it. Statute only creates liability for employer. The criteria of violation under the race cases was that the employer either knew about it or should have known. 1. Definitions: i. Racial Harassment defined in terms of abuse: language or practices that are denigrating, assaultive, or racially subordinating. ii. Sexual Harassment falls into two categories: iii. Quid pro quo: demands for sexual favors in return for job benefits iv. Hostile environment: 2 elements go together: 1) denigration of women 2) sexual compliments, sexual criticism, or highly sexualized environment that is unwelcome, irrespective of victims consent (Meritor Savings Bank v. Vinson). No need to show duress according to criminal definition, simply that would have preferred to be left alone. 2. Liability of employer:
i. Snell: an employer is required to take all practicable steps to prevent a hostile environment created by its employees. An employer is liable if it knew or should have known about an abusive or discriminatory environment. s prima facie case is established by showing: 1) a pattern of harassing activity 2) failure of employer to stop pattern of harassing activity ii. Meritor Savings Bank v. Vinson: a per se rule that automatically holds employers responsible for the acts of employees is inappropriate under Title VII. However, the mere existence of a grievance procedure is not enough to insulate employer from liability.
3. Remedies: i. No explicit damage remedy in statute idea is to enjoin employers from discriminating. ii. Bundy Damages could be awarded for emotional harm, even where no tangible job benefits were lost as a result of discrimination. iii. Title VII amended in 1991: s can now recover damages under statute for emotional and dignitary harm in sexual harassment cases. Result: legal services became more available because suits were more profitable. 4. Litigation i. Must go to commission who will bring action unless employee unsatisfied and then the employee brings it. Injunction to stop action or create future structures to prevent sexual harassment. But employee brought action can only get back pay or be rehired. Model does not include compensatory damages, i.e. pain and suffering or psychological and medical injury. General rule that parties bear own litigation costs. ii. Three elements. Lead to far more litigation than in other countries and more victories. a. Contingency and class action are unique features of US system. Class action has a named lawsuit with one but if it is shown to represent persons similarly situation then the can get via the judge to certify a class then the lawyers for the initial named s can become lawyers for class without those s being joined. Possible rewards divided up among class by contingency fee theory. The s bar is not associated with any large corporate structures that make money by taking Ps cases under contingency fee/class action but could get attorneys fees if a small case. bar is significant category of large corporations and firms. i. There has been expansion and contractions of different liabilities during recent years via litigation. b. Legislation is another feature of the US system. Lobby of state legislatures and sometimes Congress to modify judge-made rules that favor s. 1983 creates a civil cause of action against a person or organization that deprives constitutional rights under color of law. Dramatic modification in 1990. Supreme Courts attempt to cut back liability was boomeranged via Civil Rights Act of 1991. Filings go up but not as many cases are tried.
c. Constitutional judicial review of legislative product. Congressional law and state common law. Questions of due process to s or violation of equal protection of different treatment of different types of s. Common law restrictions on IIED via first amendment (Falwell v. Hustler). i. American courts have been taking extra-territorial claims (i.e. Holocaust victims suing Swiss and German banks).An asymmetrical system because other countries dont do and are more pro . Americanization of world tort law. b. Snell v. Suffolk County See Above. Although the court recognizes that racial or ethnic joking cannot be protected in all circumstances, Title VII requires it to be banned in the workplace. Whether or not certain comments are hostile depends on the context. c. Bundy v. Jackson Bundys supervisor began propositioning her. She complainted but was consistently denied relief. Court extends Barnes holding by saying that an employer violates Title VII merely by subjecting female employees to sexual harassment, even if the employees resistance does not result in loss of tangible benefits. Social good for employees to be able to sue to stop or prevent harassment, without having to prove they resisted and then lost benefits. Court finds support in an article by Catharine MacKinnon that expresses how often, unwelcome advances require neither acceptance nor rejection, and these must just be endured. MacKinnon points out the absurdity of making victims wait for an occasion on which they can forcefully reject advances (at the risk of suffering the consequences) before they can be granted any relief. The court adopts the Equal Opportunity Commissions definition of such an environment. Defines sexual harassment using the federal guidelines on 947. Court also defines discrimination as sex discrimination whenever sex is for no legitimate reason a substantial factor in the discrimination Hostile environment is (3). Specific rule choice that is not highly formally realizable or administrable but better that conditionalIt is unlawful for an employer to discriminate in the terms, conditions, and privileges of employment on the basis of sex. Courts have forbidden a hostile environment and qui pro quo. 1. Sexual insults, not just a sexually suggestive gesture, can count under this definition. Similar to racial slurs under racial discrimination as well as hostile environment. In many cases gender protection goes beyond race protection although a different category. 2. Resolution of ambiguity of definition is the basis of the holding in the Paula Jones case. Implicitly states that one unwelcome sexual advance cannot have this impact. And was not quid pro quo either (quid pro quo does not require multiple acts, can prove with only one). 3. Arguments against this decision. Unwelcome advances and other sexual conduct are discrimination on the basis of sex in the work environment. Some may think too broad because could be pursuing a relationship. If singled out on the basis of race, nationality or religion it is directed to all probably and with gender its not solely because of gender. i. Workplace is less productive because have to take more precautions. ii. Invites too many claims that will burden the justice system. iii. Under-inclusive because of restriction of multiple advances. Over-inclusive of people who may not view their actions as unwelcome or harassing and also include the harmless employer 1. Counter argument that must be offensive to a reasonable woman standard in Harris Its the battery standard and not the Vosberg eggshell standard. iv. Infringement on free speech rights. Havent been developed yet but soon will be. Falwell could be applied.
v. People want to flirt. People spend more time in the workplace and that is where they are meeting people. When break ups occur, one party can claim harassment. vi. Discriminates against men. Black men propositioning white women would be leery and the gay-straight dimension. vii. Employers wont want to hire women. d. Meritor Savings Bank v. Vinson Vinson was hired by Taylor, who allegedly fondled her, exposed himself to her, and even raped her while acting as her supervisor. She refused his advances at first, but later accepted. It is enough to prove that sexual advances were unwelcome, and the appropriate inquiry is whether or not this was the case, not whether or not the victim consented, since unequal status may influence consent. 2) There is a long discussion on the notion of agency in employer liability, and the court declines to issue a definitive rule on the subject. It does find that the mere existence of a grievance procedure and a policy against discrimination is not enough to insulate employers from liability, saying that the policy needs to be evaluated substantively. 1. Marshall Dissent distinguishes 2 standards for employer liability. When the harassment is between supervisors and staff, there is to be strict liability. However, between employees, the court finds that employers are only liable when they knew about, or reasonably should have known about the harassment and did not take steps to stop it. e. Burlington (which reduced Title VII) by creating affirmative defenses. 5. Equitable Remedies in Domestic Battery a. Prosser & Keeton on Torts Older CL held that upon marriage, wifes legal identity merged w/ her husbands and so neither spouse could maintain a tort action against the other for either personal or property torts (spousal immunity). Married Womens Property Acts were held to allow spouses to maintain property tort actions against each other, but were held not to destroy spousal immunity when it came to personal torts. It now appears that unqualified spousal immunity is on its way to being abolished and that spousal actions for personal injuries will be permitted in a majority of states, at least in some circumstances. 1. Exceptions to immunity (in some jurisdictions) demonstrate that trend toward spousal liability for torts will continue: 1) Spouse may recover against others spouse for pre-marital torts 2) Recovery for torts during or before marriage once marriage is terminated by divorce 3) Wrongful death action against surviving spouse when one spouse dies 4) Intentional torts by a spouse are actionable even where negligent torts are not 2. Remnants of immunity: in the absence of intended harm, little protection will be given in the case of purely economic or other intangible loss where -spouse suffers to accompanying physical injury c. Consent (understood from past conduct or spouses way of doing things and understood from social habits generally) is an important defense as to some intentional torts (although gross abuse of normal privilege receives no protection) 3. Abolition of immunity does not mean automatic liability: courts will respect the subtle ebb and f low of married life and will leave some matters to be adjusted by parties themselves. b. Types of Injunctions 1. Permanent Injunction (in adversary proceeding)
2. Temporary restraining order: theory is that an irreparable harm is likely to occur before resolution on the merits of a motion for permanent injunctionprohibits from doing something. Subcategory of preliminary injunctions. 3. Ex Parte injunction/Temporary Restraining Orders: proceeding where only one side is represented issued against a party w/o that party mounting a defense. There is a date by which the temp. restraining order will expire. Notice is then served to the other party and they have an opportunity to protest. Possible to then sue for a permanent injunction with both parties present c. In theory, any threatened tort (including spousal battery) can be enjoined if is able to demonstrate the basis for equitable relief (need to make compelling policy arguments). Generally, a must show certain things in order to obtain an injunction (no administrable rule extreme example of a standard): 1. That there is threatened or existing harm, 2. That there is no adequate remedy at law for the harm, 3. The balance of conveniences favors issuance of the injunction (equity consideration), 4. Public interest is served by issuing the injunction (equity consideration) 5. Historically, a fault comparison is a factor in issuing an injunction (clean hands cant be as guilty as the other person and laches unreasonable delay doctrines) 6. Courts must be assured that enforcement is possible and formally realizable (cheap and relatively easy for court to enforce) d. RS 936: Factors in Determining Appropriateness of Injunction (1) The appropriateness of the remedy of injunction against tort depends upon a comparative appraisal of all the factors in the case, including the following primary factors: (a) the nature of the interest to be protected, (b) the relative adequacy to the of injunction and of other remedies, (c) any unreasonable delay by the in bringing the suit, (d) any misconduct on the part of the , (e) the relative hardship likely to result to if injunction is granted and to if it is denied, (f) the interests of 3rd persons and of the public, and (g) the practicability of framing and enforcing the order or judgment. Consideration of the adequacy of alternatives open to the victims of domestic violence provides a useful opportunity to confront courts explicit legal questions and hidden hesitations. Material is available to demonstrate that criminal, other civil, and self-help remedies are at best complementary to equitable relief and at worst illusory. Under these circumstances, the comparative adequacy test is met. e. Enforcing an injunction: The enforceability, and thus practicability, of injunctive orders against battering (like other equitable relief), depends first on a credible threat of contempt proceedings for violation of the injunction. Careful drafting and the inclusion of declaratory language and traditional equitable devices may make such orders more persuasive to both s and peace officers. 1. After a violation: Appeal to the court that issued the injunction as ask for contempt proceedings (civil or criminal) to be initiated i. Criminal: higher standard, harder to get, have a sense of punishment/retribution/deterrence
ii. Civil: goal is to persuade them to comply with the injunction in the future (determinate period of confinement/money) 2. Before a violation: (threat of violation is imminent) attempt to get police intervention. What is an officer obliged to do absent an injunction against abuse? Issues involve federal and state law rules regarding propriety of arrests (when its okay w/o warrant, etc.). No legal requirement to respond/arrest, even though rules exist for when it is okay to do so. What is the significance of an injunction in such a situation? Typically, there were no explicit rules authorizing/forbidding police officers when question was that an injunction exists and its being violated (especially in domestic violence situations), but abuse prevention statutes have attempted to reduce police discretion concerning reactions to injunction violations. f. Mass. Gender Bias Study (see Mass Act of Abuse Prevention 209A) While the enactment of the Mass. statute marked an explicit recognition by the legal system that victims and potential victims of domestic violence are entitled to govt protection (in the civil system rather than the criminal), there is a disparity between the protection afforded to victims by Mass. Act 209A and the reality as the statute is actually applied. 1. What difference (from victims point of view) does enactment of 209A make? a. Goes beyond creating a civil injunctive remedy against abuse: 6 enlarges powers of police even without an injunction police shall use all reasonable means to prevent further abuse when they have reason to believe a family or household member has been abused or is in danger of being abused. b. 7 makes violation of an injunctive order a criminal offense how does that add to, modify or change existing criminal protections? c. Theres an unbelievably long distance between a civil legal order that prohibits battery and the enforcement through legal mechanisms of an anti-battery regime. The statute helps turn the legal wrongs into orders that can be and are enforced. g. Giovine v. Giovine (1995) Battered woman wants to sue husband but has statute of limitations problems from the first battery. Argues she was insane and could not file and that it was a continuous tort. Arguing that continuous tort like trespass. Not going to recover for battered womens syndrome. That makes it possible to bring action. Recovering for pattern of behavior with damages for medical injury, emotion, psychological, and pain and suffering. Dissent argues that there are already cuases of action for battery, IIED, and we should not be creating a cause of action unless justice needs to do so. It would give rise to non-physical action that did not rise to the level of outrageousness that would meet IIED. Majority argues that it only helps out in cases of the similar facts as in a statute of limitations problems. Note on dissent supports majority because it does not clarify. Can acts of cruelty go to proving battered womens syndrome so that we can go against toll of statute of limitations or does it swap battered womens syndrome with assault and battery. Wriggins. Hughes.
C. Judicial Definition of Legally Protected Interests As Social Engineering 1. LPIs And Economic Power a. Introduction to Economic Harms Three instances of economic harms to strangers:
Tort actions (by breach-ee) against third parties who have induced a party to a contract to breach, (2) Protection of advantageous (non-contractual) relationships with third parties that hopes to maintain or enter into, and (3) Protection of valuable information. Fears leading to limited liability in these contexts: (1) endless litigation, and (2) expansion of unfair competition will undermine healthy competition necessary for capitalism.
(1)
2. The Tort of Fraud Misrepresentation: K restitution remedy requires lesser standard based on materiality, reliance, non-disclosure and fact/opinion than tortious fraud elements of: 1) representation 2) falsity 3) scienter 4) deception 5) injury. Statement of fact, not of opinion or puffing, which the speaker knows (intentional) to be false which is intended to and is reasonably relied upon to cause pecuniary damage. Fraud does not protect you against physical or emotional harm unless financial damage is there. a. Restatement of Torts 525: Misrepresentation One who fraudulently makes a representation of fact, opinion, intention or law for the purpose of inducing another to act or refrain from action in reliance upon it, is subject to liability to the other in deceit for pecuniary loss caused to him by his justifiable reliance upon the misrepresentation. c. Pasley v. Freeman knowingly lied to that third party was a good credit risk. Deceit is more than a mere lie b/c intent to injure. Focus on damage to . must tell truth or give no answer. Presumption that then wins then the injury is Latin Tag damnumi. Plainitffs response in the English system is that if the case was new in principle then the legislature alone would be able to create a new cause of action but if the case is not new in principle but simply a new background situation with the same principle then it is open to the court to go ahead and grant the action this is more restrictive than the American version (American would be judges should adopt with the changing times). 1. Dissent: Credit risk not a fact uniquely known by , so grossly negligent in relying on s opinion, especially where has no interest in K. 2. Scalia response would be that judges go beyond what the legislature intended. He is smarter and more moderate than most judges by going on common law and what the constitution says (can we find it in the constitution). Judges should narrow or expand precedents or if all else fails overrule in order to make the Constituion mean what it ought to mean. d. Puffing Distinguishes sellers misrepresentation of fact (illegal) statement of opinion (legal puffing) from
e. Restatement of Torts 551: Latent Defect Requires disclosure of facts basic to the transaction, if seller knows that buyer is about to enter into it under a mistake as to them, and that buyer, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect disclosure of those facts. 1. Swinton v. Whitinsville Savings Bank knowingly sold termite-infested house to without disclosing condition. Absent false representation, there is no duty to
disclose to buyer condition of termite-infested house? Court fears creating infinite seller liability for any nonapparent defects. BUT see 551. 3. The Tort of Interference With Contractual Relations a. RS 766 Liability for intentionally and improperly interfering with performance of a contract by causing the third person not to perform. RS 766B Interference can consist of inducing one not to enter into or continue prospective relation or preventing the other from acquiring or continuing the prospective relation. 1. RS 767 Factors in Determining Whether Interference is Improper b. Lumley v. Gye contracted with opera singer to perform. , with knowledge of the K, successfully induced singer to breach. may recover damages. Case is not under formal master/servant relationship, but tort should be expanded to employer/employee relationship to yield liability when a person maliciously and with notice interrupts a service K by enticing the servant away, even if the service has not yet begun. 1. Dissent: Remedies for breaches of K are confined to the contracting parties, and for consequential damages. Master/servant was an exception to the rule. Breaching party is a free actor, and breach of K is the cause of damage. Someone who merely persuades the breach does not proximately cause the damage, and there are major line-drawing problems concerning the difference between encouragement and inducement. c. NOTES 1. Later decisions expanded this to all contractual relationships, identifying malice when the persuasion was for the purpose of injuring , or benefiting at s expense. This tort was used against organized labor: Defendant Mineworkers Union induced miners at Ps mine to join union and continue working, in breach of yellow-dog (no-union) contract. (Later overturned by statutes outlawing yellow dog Ks) a. Tort may still be available when underlying K is problematic, unenforceable, or terminable at will. b. must have knowledge of the K, which renders him similar to bad-faith purchaser of bailed goods. c. Privileges for tort of inducement: disinterested desire to protect breach-er, furtherance of public morals, lawyer giving legal advice to breach d. Conflict exists over whether a contracting party can be liable for conspiracy to induce breach of its own contract. (Uniting with a third party to interfere in the contract to avoid particularly onerous penalties under the contract) 1) Argument that tort of inducement undermines the calculation of efficient breaches, which are good for society. (Depends on ability of expectation damages to truly compensate, and applicability of expectation damages in the particular case) 2) Billion-dollar award for inducement when Texaco out-bid Pennzoil for takeover of Getty Oil, after Getty had made agreement with Pennzoil. d. Green, et al, Trade Relations Freedom of enterprise is an economic liberty imbedded in our society, and most depend on it for their livelihood. Traders relations are intangible bonds of reputation, good will, custom, credit, etc., and they are of utmost
value to him. These intangible relations require flexible protection of the law, not realized in the property context. Because competition can be socially desirable, not all interference with trade relations should be condemned. Line between fair and unfair competition must be drawn carefully and flexibly. e. Singer, The Legal Rights Debate [Damnum Absque Injuria] Damnum Absque Injuria, or a Hohfeldian no-right, was considered an anomaly in the legal system, until its pervasiveness in the legal system was recognized. It is simply not true that our system compensates all invasions of legal interests. 4. Tort of Monopolization a. Historical Notes 1. Common Law: There is a privilege to impose economic harm on others when competing for trade advantages. 2. Expansion of tort of interference with a contractual relationship: originally only interference with a master/servant relationship, then interference with independent contractor contract, then all binding contracts, and now tort includes non-binding business relationships (at will contract). 3. Evolution of tort of unfair competition (antitrust): Common Law was Mogul. Now, there are statutes: Sherman and Clayton Antitrust Acts. Under Sherman, one cannot act in (unreasonable) restraint of trade or monopolize. Clayton provides for threefold damages to injured businesses. There policy behind these statutes is competition. Dont have to wait like in Title VIII for EEOC to not doing anything before doing so. Can take case to US District Court directly with private cause of action clauses. b. Mogul Several shipping companies combined to exclude new companies from the trade. Among other tactics, the companies refused to carry the cargo of any merchant who shipped with the company. Tactic is justified by the pursuit of self-interest and gain in business competition. Their combination was also legal as long as it was for the purposes of trade and competition. c. Allen v. Flood The s were at will, non-union employees. The was the union representative. The union threatened to stop working if the employer didnt fire the s. The employer fired them. It is not unlawful for the union to compete with the s as the case is just like Mogul. d. Quinn v. Leathem Leathem ran a non-unionized slaughter farm. Munce owned a unionized butcher business which bought its meat from Leathem. The union told Munce that if he didnt stop buying Leathems meat until Leathem unionizes, the union would call out its workers. Allen v. Flood was an aberration. The pursuit of self-interest and gain through the exercise of harmful economic pressures by a combination is a privilege denied to labor unionists and reserved for businessmen. 1. Hohfeld uses the privilege/right distinction to critique Lord Lindleys opinion in Quinn v. Leathem. Hohfeld argues that the merely had a privilege not a right and therefore that the court wrongly deduced that the defendant had a
duty of non-interference. reasoning. 5. Unfair Competition a. Blackletter Summary
Hohfeld is critiquing the courts deductive
1. Unfair Competition Taking material that has acquired through expenditure of labor, skill, and money and which is saleable by for money. 2. Classic Case is attempting to reap what it hasnt sown in appropriating s material and selling it as its own. This process amounts to an unauthorized interference with the normal operation of s legitimate business precisely at a time when profit is to be reaped. This is unfair competition in business. b. International News Service v. Associated Press AP () gathered info about news and current events and distributed it daily to its members. filed suit to restrain from pirating s material in 3 ways: 1) By bribing employees of newspapers to give AP news to before publication so could transmit it to clients via telegraph and telephone; 2) By inducing AP members to violate its by-laws and permit to obtain news before publication; 3) By copying news from bulletin boards and from early editions of s newspapers and selling it to s customers (on the west coast). s conduct differs from the ordinary case of unfair competition in trade in that instead of selling its own goods as that of , it substitutes misappropriation in place of misrepresentation and sells s goods as its own. The news must be regarded as quasi property between them, regardless of the rights of either of them against the public. An unauthorized interference with the normal operation of s legitimate business precisely at a time when profit is to be reaped. This is unfair competition in business. It is not protected on the west coast because published and in window placards. Liberal court justices appointed by T. 1. Roosevelt and Wilson and conservative judges from the last twenty years of conservative Democrats and Republicans. Court had been striking down liberal state statutes. 2. Hohfeldian Argument:Until the news has lost its commercial value, the producer of it has against the competitor a right not to have it appropriated. It is quasi-property because it is not an absolute property right in which it would be protected from interference by anyone except just competitors. It is limited by competitors to one use of selling it. The right to security in possession of the news against the competitor and the competitor has a duty not to use. If it was a privilege then the competitor would have protection of its freedom of action. This is a rule, not arguments! A rights argument is that this is a correct outcome or not. 3. Arguments in opinion i. 1. P has a right to protect their intellectual creation and monetary investment. 2. We should reward people for going out to get the story; that reward makes the news compete and brings better news.
3. Right against unauthorized interference with their business. ii. Defendant 4. Once AP puts it into the public domain, INS has the right to use it just like anyone else would. 5. Defendant has the right to inform people; we want people to be aware of the news without limits. 4. Policy arguments in the cases. Policy argument was just developing. It is the direct ancestor of State v. Shack where it is post-WWII very developed policy arguments. i. 1. (Syllogism) We have property rights. This is property. Therefore I have a right to it and it is a tort to take it away - In our system we have rights to property. We have respect for property rights because they are natural rights that are highly desirable. Property rights are the cornerstone of the system. This particular piece of news is property so it is protected. Property has value to the person who spent money and efforts to obtain it. This information fits this definition of property. ii. Defendant 1. Concede that it is a property right in the abstract and then argue that under the particular circumstances the right does not exist The legislature has not defined it as such under copyright laws. (The following arguments are more paramount). 2. On the contrary, it is the freedom of action right that governs this case. 3. Accept that this news is property, but cannot assert it because it has been sold to the public and is abandoned, alienated, or forfeited. 4. Of course there are property rights, but the did not show that this news was property. s definition does not hit it. There are many similar actions that are not treated as aright. i. Brandeis states that some of the creations that are the best of the human mind are free to public use (except as much as it is protected by Congress). Pitneys definition of property was something that you invest your time, money, or labor in as it is something of value (Lockean labor theory). Brandeis says that this definition is no good. In our system the definition of property is not because it is value and investing time and money in it; one must comply with the statutes. Property is created by statute and this is not included. There is an interest In competition (b). Some of the noblest creations of the human mind are free as air to common use. They were abandoned/bequeathed to common use. 1. Competition through reverse injury. Competition is Latin Tag injury if it is not copyright or patented. 2. First Amendment allows publication of things that could destroy. ii. (Holmes) Rights are qualified and need to balance them.. 6. Lower courts have been divided about soundness of INS
c. Cheney Bros. v. Doris Silk Corp. was a silk manufacturer that put out new patterns each season. The patterns were not patented. sued to enjoin when copied one of s popular patterns and sold it for less than . To exclude others from the enjoyment of a chattel is one thing; to prevent any imitation of it, to set up a monopoly in the plan of its structure, gives the author a power which the Constitution only allows Congress to create. 1. This opinion by Learned Hand and Brandeis dissent are leading arguments for and Pitney for the . Learned Hand is a big believer in the reduction of liability for policy reasons. d. Vandevelde, The New Property of the 19th Century 1 Dephysicalization of Property a. Courts found that protecting the possession of a tangible thing rather than intangible wealth was pointless, if not counterproductive, and thus began to define property as the right to value rather than to some thing. The collective effect was the creation of numerous species of nonphysical property such as business goodwill and accessories. b. By end of 19th century, courts no longer conceived of property rights as relative to the thing; they concluded that legal property rights of property protected the value rather than the thing. New property rights were developed where no tangible thing was involved in order to protect the value of an investment (trademarks, trade secrets). c. Property was no longer solely rights over things, but rights to any valuable interest. 2. Limiting Property Rights a. By the end of 19th century, both trademarks and trade secrets were considered property, but courts decided that extending them absolute protection was undesirable. b. Courts limited property protection by limiting the categories of people against whom an infringement action could be brought. For example, the owner of the trade secret was limited to bringing an action for violation of the secret only against persons in breach of trust. c. Limitations sometimes occurred gradually, after an early period of absolute protection (trademarks) or were sometimes created simultaneously with the property rights (trade secrets). d. Common element: By end of 19th century, it was impossible to believe Blackstones thesis that property rights were absolute. e. Chafee, Unfair Competition 1. In 1410, a new schoolmaster started a rival school in a town that caused the prior schools tuition fees to drop. The old masters sued the new, and the judge declared that It would be against reason for a master to be hindered from keeping school where he pleases. 2. In 1706, English law held that he that hinders another in his trade or livelihood is liable to an action for so hindering him. While competition was not actionable, purposely frustrating anothers trade (by scaring ducks away so another couldnt get any fowl for his trade) was actionable.
3. All competition is prima facie tortious in that it injures , and only desirable methods of rivalry are encouraged by social policy, so competition by any undesirable means in theory should be actionable. But this is not always the case because other considerations factor in. 4. Federal Trade Commissions guidelines: Unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce are unlawful. 5. Examples of unfair methods: misrepresentation of the quality and character of goods; misrepresentation of quantity; fictitious price reductions and other misleading price claims; misrepresentation of business status; misrepresentation of geographical origin; false claims to testimonials and endorsements; sale of rebuilt or 2nd-rate articles as new. 6. Four reasons of social policy that render judges cautious in enjoining trade injuries: 7. Scope of protection should be capable of reasonable accurate definition. s interest should be of such a nature that it can be cut out from the general texture of ideas. 8 Policy Arguments a. Policy against monopolies. Courts are reluctant to create new and perpetual monopolies of their own by enjoining non-passing-off appropriation of unpatented and uncopyrighted material. The way to protect originality is to patent or copyright. b. Policy in favor of centralizing the protection in the government (in a prosecuting attorney or FTC). How far do we want to encourage snooping into the methods of competitors? is not the guardian of public morals. c. Some trade practices are better handled by administrative agencies than by courts. Sometimes a wise solution of the problem demands a careful investigation of the entire industry to see how problem arose and how it can best be stopped. Administrative agencies like the FTC can handle such investigation. 6. The Tort of Interference With Prospective Contractual Relations a. Early 1900s: Courts willing to intervene to police every aspect of employer/labor relations striking, picketing, set up shops, secondary boycotts, etc), and regulate union behavior through injunctions. But there was no judicial intervention to protect labors right to organize. National Labor Relations Act: Federal statute eliminates lots of CL labor torts & created some tort-entitlements to protect unions that courts had refused to create (including right to unionize). Labor law history illustrates how a legistatures statutory regime can partially displace judge-made CL tort rules. b. Holmes, Privilege, Malice, & Intent When you cause temporal harm to another, you are subject to tort liability unless you can show some justification for causing the harm. A privilege is often such justification. Its existence and scope is typically defined by a legislature and refined & followed by the judiciary. Privilege is born out of policy considerations -- choosing benefits for one at the expense of anothers interests. The policy question is about the merit of a particular benefit versus the costs it imposes on other regardless of each actors motives. Therefore, a privilege may protect you even if youve caused harm maliciously. Some jurisdictions may take motive (malice) into account, but only because theyve deemed that a relevant
policy consideration after weighing the advantages to the community on both sides. Because the extent and degree of a privilege varies according to the facts of each case, judges may decide cases about the same privilege differently based on their sympathies. There in no outcome-determinative method of legal reasoning for resolving cases of this kind, so that judges inevitably decide according to their views of policy. [Duncan says this is second most important idea in course].When the black letter tort rules dont clearly settle an issue, both sides then invoke policy arguments. Property rights are meaningless unless court protects them. c. Vegelahn v. Guntner workmen striking against s business conspired to prevent him from getting new workmen unless he should adopt a certain price schedule. The means originally adopted by s were persuasion & social pressure, threats of personal injury or harm to those employed or seeking employment w/ , and a 2-man patrol picketing s factory during business hour on busy Boston street. Reinstate terms of preliminary injunction. Employer has right in engage all persons who are willing to work for him, at prices they mutually agree upon; and persons employed or seeking employment have right to enter into or remain in employment of any person willing to employ them. s cannot interfere w/ this right. Their motive of securing better wages doesnt justify illegal patrol as part of their conspiracy to interfere w/ s rights. i. Syllogism that there is a legal right and this is within it and is protected. Constitutional cases establish right of freedom of contract. Workers are trying to interfere, therefore it is a tort. Freedom of contract is a right against the government; the duty is against the government but not against private parties. 1. Counter argument that only a legislative statute interfering with freedom of contract is not the same situation as a private party picketing. It is a privilege to enter into contract under these circumstance so no one has the right to stop us. Thinking that even a constitutionally protected privilege requires the existence of a right. Majority thinks that because the employer has a privilege to enter into contracts the contractor must have a Hohfeldian right to sue (a privilege gives a right of freedom of action) 2. Lord Lindey says that it is a tort. Hohfeld would say that a liberty and a privilege are not the same. You could have a privilege without having a right. That does not mean that the target has a right that the union refrain from trying to persuade the supplier to stop having a relationship wit the supplier. All there is a privilege and not a right and therefore the union can do as it wants to interfere. Whether there is such a right is a matter of justice and policy an internal critique that ends up helping the . Cannot infer a right of interference against privilege to enter contract that does not mean that there is no right. Lindey committed a Hohfeldian error of inferring a legal relation from another when you can have one without the other i. Dissent: Majority opinion goes too far by reinstating overly broad preliminary injunction based on wrongful assumptions that the picket constitutes threat of violence (no evidence to support that) and that the terms of the final injunction would be violated. Though s are NOT allowed to induce individuals to
breach Ks, the majoritys injunction bars even peaceful, organized argument by s to try to persuade individuals not to enter Ks. Final injunction already makes violence punishable, and thereby achieves same objective as majority. Businesses are allowed to interfere w/ other businesses for sake of competition. Labor & employer relations are a form of competition that should likewise be protected by privilege. Labor has same right to act in combination to achieve their objectives as other businesses. 2. The majority opinion wrongfully characterizes the employers Hohfeldian PRIVILEGE to K w/ potential employees as a Hohfeldian RIGHT, thereby creating a tort for luring away potential workers. d. Summers & Wellington, Cases and Materials on Labor Law Summarizes trend in Supreme Courts treatment of picketing cases. i. Pierce v. Stablemans Union Picketing, by its very nature, is form of illegal coercion/physical intimidation designed to induce fear. No such thing as a peaceful picket. ii. People v. Nixon Quiet & orderly picket is not disorderly conduct. No suggestion that the s behavior was threatening/abusive, and absent evidence of such, court cant assume a threat by mere act of picketing. iii. Keith Threatre v. Vachon Even peaceful picketing is coercive; it attempts to use public as cudgel to force employer to comply w/ s demands. Losing customers deprives employer of right to manage & control & save his business. e. Gorman, Basic Text on Labor Law: Unionization & Collective Bargaining Courts have become more willing to uphold restrictions on peaceful pickets, characterizing picketing as form of speech plus. Specific local policy objectives render interference w/ picketing immune to constitutional attack. Courts refusal to use 1st and 14th Amendments to protect picketing continues today, despite policy argument that public benefits from being educated by the discourse of the labor debate. Supreme Court decisions thus protected state anti-picketing laws, until eventually, federal legislation (the Labor Act) trumped all state legislation by protecting some picketing (7 of Act) or prohibiting it (8). f. Kennedy, The Stakes of Law, or Hale and Foucalt Legal rules set out by the state legislature & courts are implicated in the outcome of a conflict, because all bargaining between parties revolves around those background rules. Labor law history illustrates this process, as judges & legislatures have set ground rules within which labor conflict is conducted. Hale describes two important types of rules: 1) Rules structuring bargaining conduct (ex. labor torts); 2) Rules structuring alternatives to remaining in the bargaining situation. Hales theory of analyzing legal rules based on their effect on bargaining & the distribution of wealth assigns much more importance to legal rules than marxists or liberals do. Things the law permits are just as important to distributive analysis as things law prohibits. Thereby, inaction by judges/legislatures is a form of policy also. Legal innovation is built into the system, as both sides of conflict originate new methods of trying to acquire power, & rules must then be constructed to address those new methods. In a
bargaining crisis, small changes in legal rules can have dramatic effect. Mere choice of rules doesnt settle all questions that will arise about those rules in a particular situation, & its often hard to determine how change in rules will affect distribution. Hales same brand of analysis works on labor relations, as well as racial & gender conflict. [Duncans outline says the most important idea of the course is that the law of intentional torts sets the ground rules for economic combat]. Which Arguments are Liberal, Which Conservative? 7. Right to Picket an Abortion Clinic a. Federal First Amendment--Bill of Rights--is not about the states. 14 th Amendment says no state should deny any citizen the due process of law. Supreme Court decided that the first 10 Amendments (addressed to Federal government and not to the states) are also applied to the states through the 14th Amendment. Expands quickly to cover local ordinances, i.e. cities regulating leafleting on public streets, billboards, etc. A local ordinance passed by a town can violate the 1st Amendment. Third body of rules are injunctions by state court judges. So a judicial injunction limiting speech can violate the 1st Amendment. b. Bering v. SHARE Physicians and owners of a medical office building got an injunction against the anti-abortion organization "SHARE." Share was not supposed to picket in front of the medical building. Share violated the injunction. Court is obviously doing a balancing test of right to abortion against right to free speech. First, that place restrictions prohibiting picketing in front of the main entrance to the medical building did not violate free speech and served compelling state interests in providing access to necessary medical care and in protecting a woman's constitutional right to privacy. Second, that the content restriction prohibiting all use of words "murder," "kill", etc. also served compelling state interest in prohibiting children from overhearing those words--but only had to be observed when around children under 12 years old. Third, that injunction was not prior restraint and thus permitted by the WA state constitution. Fourth/Fifth, established damages and attorney fees. i. The syllogism is not easy as (b). To limit speech need a compelling state interest and the injunction must be narrowly tailored to meet state interest with alternative methods of expression. Balancing in the Holmesian tradition. 1. State interest in womens right of privacy via Roe v. Wade 2. Court embraces flexibility/judicial activism. ii. Analytic parallel with labor cases in which progressives argue there is no logical compulsion that there is a tort of picketing as it is a matter of justice and policy. We should balance interests. But they cite opposite probable political views. iii. Critique of majority opinion: Majority says that its injunction is valid because there's a right to abortion that counters the demonstrators' right of free speech. Court is obviously doing a balancing test of right to abortion against right to free speech. Dissent attacks this balancing test. Kennedy strongly emphasized the dissent's objection to the majority's huge First Amendment error. It is a "monumental error" to infer that, because a state statute limiting abortions is unconstitutional because there's a privilege of the woman to get an abortion, that means that there she also has a right that other people refrain from trying to impede her from getting an abortion--or that those people like SHARE have
a duty to not try to dissuade her from having an abortion. The only thing that Roe says is that you can't make it illegal to get the abortion; it's Constitutionally privileged. But that privilege doesnt imply a right that other people not try to prevent you from getting an abortion, all it means is that they have no right to stop you from doing so. The majority has made a Hohfeldian error. 1. Court determined that federal agencies which provide medical services or private services with federal funding do not have a requirement to provide abortion services. Hohfeldian error analysis that all Roe established a privilege that one can do it if he or she can afford it. No Duty to Act as a General Limit on LPIs 8. No Duty to Act Absent Special Relationship No duty to rescue exists absent a special relationship (contract, fiduciary obligation, public service corporation, creator of danger). The distinction between misfeasance and nonfeasance depends on the degree of complexity with which one treats the act in question. RS 322 If you render a person helpless, and knows or has reason to know his act whether tortuous or innocent, one is under a duty to act to prevent further harm. If do an act and subsequently realize or should realize that a risk has taken effect even though at time of act did not know of the risk, one has a duty to rescue if necessary and take care to avoid injury. RS 315 Have a duty to prevent a third person who wants to injure the based on a relationship with the third person or a. Buch v. Amory Manufacturing Co. trespassed in defendant's mill, did not understand warnings to leave, and got his hand stuck in a machine and that his brother was showing him how to operate. No duty of care exists absent a special relationship. The landowner has no duty of due care towards a trespasser. Not laible for negligent operat ions and cannot intend to do something. 2) Hurley v. Eddingfield No duty to rescue. If no duty to rescue stranger on the street, there should not be one here Montgomery v. National Convoy & Trucking Co. s truck had stalled on road and s had not lighted surrounding area; hit s truck. Failure to take a self-evident necessary precautions is an omission for which a jury could reasonably find negligence. Tarasoff v. Regents of University of California s psychologist failed to warn murder victim of patients desire to kill her. Family of victim sued, saying psychologist was under a duty to warn. A physician has a duty to reveal confidences if it is necessary in order to protect the welfare of the individual or community. i. Dissent: Relative value of effective treatment to warning system should be decided by legislature. ii. The effect of Tarasoff has been limited in California by subsequent decisions, and by statute. Influence has extended beyond California, with some states allowing more of a privilege, and some allowing less.
b.
c.
9. Duty to Act of Police, Civil Servants, and Judges
a. Federalization of Tort Law Federal courts interpreted the employment provision of the Civil Rights Act to create liability for employers. Originally, recovery was strictly limited to back pay, loss of promotions, injunctions, etc. Eventually it was expanded to include compensatory damages like pain and suffering. According to CRA Sec. 1982, 1983, & 1986 no state shall deprive anyone of their rights under color of state law. This creates a federal damage action for people who've been deprived of federal civil rights under color of state law. To establish a claim, one must demonstrate that an individual acting in official capacity, but doing something illegal, violated a federal constitutional provision to the right not to be deprived of civil rights. CWCR states do not federalize all of state tort law in cases where the tort is committed by someone acting under color of state law because federal courts have held that in order to violated constitutional rights, the violation must be more than a technical violation of state tort law. Fourteenth amendment and the 1983 Civil Rights Act of 1866 are both part of the radical abolitionist Republican agenda. The emancipation declaration that abolished slavery would not transform southern society. It was not just a legal status but also a social phenomenon that involved a system of political, economic, and social subordination. Produce integrated interpretation and through 1983 makes it a crime to deprive a person of their rights, privileges, or immunities. Also creates a private cause of action. There is no money is suing the police officer; use the tort doctrine of responsibility for ones agents to hold municipal/state government financially responsible. Attorneys fees, punitive damages. The federal due process clause in the fifth amendment incorporates the general process of due process in the fourteenth amendment so that the federal government is bound as is the states 1. Ambiguity about the responsibility of the employee (acting as a state actor) and the agency when does responsibility begin? What acts and what omissions? No other rights than can sue in tort law if other rights are violated in the US Constitution? Must show deprivation of life, liberty, and property without due process of the law. i. Equal protection cant not do it if state official has the practice of offering a particular level of protection that they stop doing. 2. Can also sue for emotional damages when punitive damages are there. 3. Substantive due process is more expansive than procedural. To what extent will creating it limit state autonomy. Defense of state legal autonomy after WWII (liberals used to argue this earlier). Does the state provide meaningful remedies (i.e. not having a state immunity law). If there are substantive limitations on federal tort law. b. DeShaney v. Winnebago County DSS received complaints of abuse and attempted to protect him, but never removed him from his father's custody. Finally the father beat him so badly that he suffered permanent brain damage. The Due Process Clause does not impose a duty on the state to provide the general public with adequate protection services. Although it does forbid the state to deprive individuals of life, liberty and property without due process, it imposes no affirmative obligation on the state to ensure that these interests are not harmed by other means. No special relationship is created by virtue of the state's knowledge of petitioner's danger and its expression of willingness to protect him from it. The state played no role in creating the dangerous situation. An affirmative duty to protect only arises when the state places limitations on an individual's freedom to act on his own behalf. Although the state may have acquired a duty to protect Joshua under state tort law, the DPC doesn't transform every such state tort law duty into a constitutional violation. i. Dissent: (Brennan) The Court should focus on the action rather than inaction. The action here consists of the state's establishment of a state child-welfare program with
a duty to investigate incidences of child abuse, specifically designed to help children like Joshua. This initial action can serve to render people helpless to help themselves. If a state cuts off private sources of aid and then refuses aid itself, it cannot wash its hands of the harm that results from its inaction.. c. Calumet City A significant victory after DeChaney cuts back on it. The cause of action is equal protection clause (cannot be failure to deliver police services because no constitutional right to it) An underlying deprivation resulting from a municipal or custom can make the city liable. What do you have to do to prove selective denial? Dont need to show history; just remarks showing sexism. What do you need to show that the municipality has done? Dont need to show that a policy or practice existed, just a custom. 1. For personal liability show deprivation and acting under color of the law. a. A police department is liable for damages under the CR statutes if it is implicated in the actions of the officer: b. If department policy is unconstitutional c. If there is an informal policy or practice that the department is aware of or that it has condemned. a) (You must prove more than the violation of 's constitutional right for serious damages--the department or policy must be implicated} D. Defenses in Intentional Torts 1. Defense of Official Privilege a. Arrest Without a Warrant, Prosser & Keeton on Torts: Police & civilians have limited powers of warrantless arrest, depending on severity of the crime (felony, breach of peace, or misdemeanor). They can use reasonable force to effectuate arrest, proportionate to the threat. Cant use more force than reasonably appears to be necessary, & cant expose suspect to unnecessary risk of harm. All agree deadly force can be used to arrest dangerous criminal whose offense has threatened human life. Big controversy @ use of deadly force when human life is not at stake; in defense of property; when in pursuit, etc. Arrest for misdemeanor doesnt justify use of deadly force, even if suspect is in flight. Officer may use deadly force in self-defense if necessary against suspect resisting arrest. b. Tennessee v. Garner TN statute allows officer to use all the necessary means to effect the arrest criminal suspect once officer gives notice of intent to arrests & suspect flees or forcibly resists. Under authority of statute, officer shoots & kills suspect of burglary who attempted to flee over fence after being told to halt. Officer killed him even though he was reasonably sure suspect was unarmed, of slight build, age 17 or 18. TN statute unconstitutional insofar as it authorizes deadly force against an apparently unarmed, nondangerous fleeing suspect. Such force may not be used unless necessary to prevent escape & officer has reasonable cause to believe suspect poses significant threat of death or serious physical injury to officer or others. Balancing extent of intrusion on suspects rights under 4th Amendment against govts interest in effective law enforcement, deadly force to prevent escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. 1. Majority has wrongly created a 4th Am right allowing burglary suspects to flee unimpeded from officer who has probable cause to arrest, who has ordered suspect to halt, & who has no means short of firing weapon to prevent escape.
Issue is whether Const. allows use of deadly force to apprehend suspect who resists arrest by attempting to flee scene of nighttime burglary of a residence (issue not whether TN statute is constitutionally valid on its face). Shooting Garner was a seizure, but was reasonable under circumstances. Public interest involved in use of deadly force as a last resort to fleeing burglary suspect relates primarily to seriousness of the crime. Household burglaries pose real risk of serious harm to others and are dangerous felonies. Effectiveness or popularity of a particular police practice doesnt determine its constitutionality. Reasonableness of officers conduct for 4th Am purposes cant be evaluated by what later appears to have been a preferable course of police action. This case was tragic, but officers conduct wasnt unreasonable. Majority gives no guidelines for how police should determine which suspects pose significant threat of physical injury. Even if you accept that class, burglars should be among them. Argues that majority standard is hopeless vague and this one is formal realizibility. c. Defense to tort of false imprisonment is that the police have an official privilege to prevent someone from escaping from custody. 1. Two elements: show official and could engage in law enforcement activity; the battery or false imprisonment met the rule of reasonableness and other standards that guide the official conduct under the circumstances, Latin Tag there was physical injury but used no force short of deadly force that was unreasonable to maintain custody and safety. Hohfeldian privilege. Right and freedom of action. 2. There are also state statutes and departmental regulations to consider. Violating department regulations does not end privilege of official capacity because they are not from the common law like state statutes. d. Federal Tort Law under 1983 Show deprivation by the office of a constitutional right, the fourth amendment right to unreasonable search and seizure incorporated to the states via the fourteenth amendment. Problem if all he has to show is an unreasonable seizure and use of force to make out a 1983 case because it would make 1983 tort protection exactly correspond to state common law private protection. State tort law tortuous exercise of arrest not within official privilege is unreasonable. Institutional competence argument that it would be unwise and a policy disfavored interpretation for federalism reasons (the federal courts will start overtaking state courts). Could respond that the whole point of 1983 was to overtake state tort law in this area; counter-argument that this was true for cases like the Klu Klux Klan which was a specific action; and then respond that it is analogous. This argument has lost because 1983 is premised on the rejection of the notion to exactly replace state standards. Standard is different as it only outlaws conduct that is really bad. e. Black Letter Law 1. If the officer who has acted under color of law to deprive of constitutional rights is in good faith relying on a regulation or law, there is no personal liability. 2. Government is liable only if the officer is acting in a accordance with a custom, practice, policy, or formal rule of the supervisory agency. State liable if commands or permits constitutional infringement or has a statute or policy. This makes it harder for because want to sue here where the money is. 3. If it is a custom ,both the department and the officer are liable under Jane Doe. Custom link to equal protection,
i. Showing racial discrimination would require social science data. 2. Defense of Consent The s consent to the a. There are two types of consent i. Consent based on behavior 1. Actual express consent. When the actually communicates to the a willingness to submit to the s conduct. 2. Apparent consent implied from the s conduct in light of the circumstances. For example, by conduct has led reasonably to believe that is willing to submit to s act. a. s failure to object to a vaccination that sees preparing for conveys apparent consent to the injection. OBrein v. Cunard (Mass. 1891). ii. Consent implied by law. s consent may be implied by law to bodily contact that is necessary to save life or some other cardinal interest if 1. is unconscious or otherwise unable to consider to matter and grant or withhold consent 2. An immediate decision is necessary 3. There is no reason to believe would withhold consent if able to do so and 4. A reasonable person in s position would consent b. Consent is not a defense under circumstances in which i. If the invasion goes beyond the limits of the consent given ii. If procured by fraud 1. Barbara A. v. John G. (Cal 1983) Knowingly misrepresents his sterility and as a reason not to wear condom. Appellant specifically conditions her consent to sex on the assurance that she will not get pregnant. Appellant subsequently suffers an ectopic pregnancy and attendant physical and emotional injuries. Trial court granted the respondents motion for judgment on the proceedings. Appellant introduces other grounds which she claims invalidate her consent: 1. The act of impregnation exceeded the scope of the consent. 2. The consent was fraudulently induced. Respondent argued that 1. seduction cases should be barred as they are often used to harass and extort defendants, and 2. that allowing this type of action represents an intrusion into privacy. Appellants claim was properly pleaded. This is not a case of seduction, as intercourse was agreed to. Further, the prudential grounds and the right of the state to enact laws for the public welfare that invade privacy lend support to the invasive nature of this cause of action. Dissent: The cause of action is not a battery, but a seduction, intercourse induced by false representation. Seduction actions are barred in California. Also, the court is here trying to regulate an individuals conduct in the privacy of the bedroom.
iii. If given under duress (physical force or threats thereof) against the or a member of s family iv. If given due to a mistake and either the mistake was caused by the or the was award of the mistake 1. Cobbs v. Grant (Cal 1972) Where asserts that she consented to the surgical procedure performed, but that she had not been adequately informed of the risks and benefits of the procedure the claim is generally treated as one for negligence rather than an intentional tort. v. If the is known to be a person incapable of giving consent (i.e. infant, drunk, or mentally incompetent). This requirement of capacity differes from the rule for intent of intentional torts. Everyone has the capacity to commit a tort but not everyone has the capacity to consent to a tort. vi. There is a split of authority on whether the s consent is effective if the act consented to is a crime. Restatement and minority want to give effect to two legal principles: the volunteer suffers no wrong, and no action shall arise from immoral cause. consent effective in any case unless it is an exception for a member of a protected class. 1. Majority View Teeters v. Frost (Okla. 1930) Most cases distinguish between criminal acts that involve breaches of the peace and those that do not. If no breach of the peace was involved (i.e. illegal abortion), the s consent is effective. On the other hand, if the consented-to-act involved a breach of the peace (i.e. fight in the streets), these courts hold the s consent not effective, thus permitting the to recover from the for any injuries sustained. Rationale: If a breach of the peace is involved, there is a public interest in seeing that the participants bear full liability criminal and civil for their acts. 2. Minority View Hart v. Geysel (Wash. 1930) Some courts hold the s consent effective in any case thus barring any later claims by the based on the illegal act. Rationale: No reason is seen to invalidate the s consent and thus allow a cause of action merely because the act consented to was a crime. Moreover, participants in criminal acts should be left in the status quo; if they are allowed to recover from each other one might profit from her own wrongdoing. a. Exception: is a member of a protected class. Hudson v. Craft (Cal. 1949) 18 year old boy enters a boxing contest at a carnival stand and is injured. The organizers of the carnival, had no license to run the boxing stand. Here, the states urgent, explicit and comprehensive policy to protect its citizens from unregulated fighting, and the statutes it has passed to ensure this, lead the court to make the finding that: 1. A promoter of boxing matches is liable as the chief offender where he holds prize fights without a licence, regardless of the liability as between the two boxers. 2. The exception in the restatement applies here [assent prevents a battery from being tortious, but with an exception to this rule where it is public policy to protect a particular class of people], and the consent of the combatants does not relieve him of liability.
c. Mohr v. Williams (Minn. 1905) gives consent to defendant to operate on her right ear. During the operation, examines her left ear, finds that it is diseased and, after consulting with his patients family physician, decides to operate on the left ear instead, without the consent the patient herself. No negligence or wrongful intent. Although court is sympathetic to the argument, it holds that there is sufficient evidence of an assault and battery to warrant the question going to the jury; civil law does not require unlawful intent to find an act unlawful. Court cites Vosburg to show that no intent to cause the harm is required for liability. Certain circumstances may justify or excuse the invasion without consent (an emergency), but failing this, the may recover. Court holds however that any damages awarded must reflect the actual harm suffered. Notes on Medical Consent Standardized consent forms have solved some of these difficulties; however, problems still arise when it is not the patient herself who has signed the form. In cases of medical emergency, an unauthorized operation is justified under consent implied from the circumstances. Consent may also be implied where the surgeon finds a condition which requires treatment in the original area of the incision. Consent may also be inferred from conduct, eg a woman holds her arm out to receive a smallpox vaccination (OBrien v. Cunard Steamship Co.) Parents and guardians may substitute their own consent for that of children and incompetents. Substantial debate about end-of-life, terminal situations should doctors or relatives seek judicial approval? Defense of consent to physical contact can be defeated by a showing of fraud or nondisclosure of material fact. (Eg. Maharam v. Maharam, where Husband infected Wife with a STD which he contracted extramaritally. Court holds that husband is liable if he misrepresented his condition or failed affirmatively to disclose it, in light of their long marriage.) d. Prosser and Keeton on Torts Duress not often seen in tort law When the issue does arise, it is normally held that duress invalidates any consent given and permits any tort action which would arise if there were no duress, eg false imprisonment, battery, trespass, conversion. Duress is occasionally held to be a tort in itself A threat to s immediate family or valuable property may be counted as duress. Less direct threats, such as future arrest, economic duress, probably wont invalidate consent. Growing trend to recognize intentional infliction of emotional harm as a separate cause of action may go some way to remedy this unfairness. e. Factors Prohbiting Effectiveness of Consent Consent prohibits tort liability. Volentinon fir injuria a person who has consented is not legally wronged by the act. Paternalism and makes us not believe in consent. There are some cases when lack of consent does not
give rise to liability (i.e. doctor operation while unconscious). There are also defenses which the consenter must show exist: 1. Lack of capacity is a counter to consent but burden of proof is on . i. Minor or insane 2. Under duress. Which requires an act by the actor not a third party or circumstance. 3. Fraud (reference to the elements of a cause of action). 4. Undue influence. i. Power balance v. personal autonomy (HLS Sexual Harassment Policy). 3. Defense of Mistake a. Coblyn v. Kennedy (Mass. 1971) Old man is (mistakenly) accused of stealing an ascot from the store. The old man is so upset and embarrassed that he experiences heart problems and is hospitalized. He sues for false imprisonment A defense of reasonable grounds in Mass. Statute is same as probable cause defense in common law. Reasonableness is to be determined according to the objective criteria of the prudent and cautious man. This situation was not reasonable. b. Courvoisier v. Raymond (Colo. 1896) Store-owner, roused from bed by people breaking in to his store below, chases intruders and shoots a policeman who had come to his aid. Claims he thought policeman was a threat. If the jury finds that such a mistake was reasonable in light of the circumstances, is entitled to a judgment. c. Whittier, Mistake in the Law of Torts Article In general law follows no liability without fault theory, but that in mistake there can be liability even where there is no fault. No liability for accident, but some liability for honest, non-negligent mistake. No adequate distinction can be drawn between two lines of cases. More leeway is given when the supposed injury is very serious (i.e. grievous harm to the defendant or criminal entry into the home). In cases of injury to realty, accident causes no liability but in mistake the defendant is held responsible. d. Harper and James, Mistake Use of force in self-defense is allowed only where there is both an objective and subjective reason to perceive a threat of bodily harm or confinement. However, the threat itself need not be real. Reasonable belief of the impending peril is sufficient. Mistake must be not only honest but also reasonable. Actor is not required to behave with extra courage nor allowed to act from extra timidity. Threat which creates privilege must be one which is immediate threat to actors interests. If danger is past, privilege is terminated. Vengeance is not allowed; action must avert peril. e. Prosser on Torts While unavoidable accident is generally held to be a defense against liability, unavoidable mistake is generally no defense at all. One who interferes with the person or property of another does so at his peril. Distinction is often criticized; anomalous and unreasonable. can be free from blame, but rights of others are protected at his expense.However, one who reasonably believes he is being attacked is privileged to defend himself; cops with mistaken warrant are privileged. Where interest is very important, more freedom of action is allowed. Mistake is often privileged when
defendant must act quickly or for public interest. (Private citizens are not privileged for arrests as cops are.) f. and Arguments in Courversier 1. Arguments i. Harper and James Mistake is a good defense in criminal law but in Torts there is a mistake of self-defense but that rule is bad because it should be an objective rather than a good faith, subjective standard. Goal of tort law is to compensate victims. 1. Could make a formal realzability rule so that victims know when they should expect compensation. ii. Epstein The should bear all the cost and benefits of his action and there will be no need to try to calculate ex post facto what level of risk existed ex ante. Arguments i. Whittier If there is no fault there should be no liability. Mistake is a defense for some types of causes of actions but not for all, but it should be all based on fault. Judges should prevent the spread of the rule and eventually a misfortune between two innocents should be split. Institutional competence argument that it is not the role of the judge once the rule is settled to flip it around even when they believe it is irrational. 1. Would not be in favor of RS 164 where the strict liability for mistake in trespass but would favor RS 166 whether one is not liable if one behaves without abnormal activity, nonlnegligently, and unintentionally. ii. Prosser The distinctions between when mistake is allowed and not is appropriate. The distinctions should be based on when the has a privilege. Social welfare argument to encourage desirable actions not reassuring to the victim who may have very strong interests at stake. g. Defense of Third Parties: Restatement of Torts 76 says defense of third parties is allowable as self-defense where 1) third party is entitled to use force in self-defense and 2) defendant must intervene to protect the third party. 4. Defense of Necessity Absolute ABI Rights. Discourage carelessness. No liability without fault. Encourage action
a. Ploof v. Putnam A sloop moored to a privately owned dock on a private island during a storm. The servant of the docks owner unmoored the sloop during the storm, and the boat was damaged. Liable for boat damage. Necessity provided an excuse to the sloop owner for what would otherwise have been a trespass to dock owners property. In particular, where human life is endangered through an act of God, the doctrine of necessity applies with special force. The servant had no duty to lend a helping hand (no duty to save), but he did have a duty not to interfere with sloops entry. The law of general average contribution will apply in cases where some property must be sacrificed to save the remainder of the property. If some peoples property is jettisoned, for example, they may receive pro rata compensation from other interested parties so that the economic loss is borne equally by all of the parties. In effect, at the time of emergency, all are treated as joint owners of all the property in question. b. Vincent v. Lake Erie Transportation Co. A steamship was discharging cargo at a dock when an exceptionally violent storm broke out and caused the ship to remain there longer than intended. During the stay, the violence of the storm caused the ship to damage the dock. Liable for damage to the dock. Although necessity provides a defense against trespass, it does not provide a defense against liability for damage done. The Vincent court finds that although the damage was initially caused by an act of God, the steamship was tied to the dock through a deliberate act of its master. He may have been justified in doing this, but it would be unfair for the dock owner to bear the cost of the damage. The taking of private property is allowed when necessary, but compensation must be made. i. Not guilty of intentional tort unless acting acting to bring about a substantially certain. Here it is an accident because of law percentages and legal system does not treat it as done on purpose. Because of the percentages can have much more expensive docks destroyed. Juries arent going to do a mathematical calculation but takes costs into account. Low standard of review that no reasonable jury could have found this way. Dissent: The dissent finds that s act was entirely justified and that injury to was the result of inevitable accident. The K between the dock owner and the steamship owner allocates the risk of any injury to the dock caused by the steamship to the dock owner, provided that the steamship master was not negligent (which he was clearly not in this case). 5. Theories of the Necessity Defense a. Morris on Torts Holding in Ploof is justifiable liability for injuries caused by misconduct. The mariner in Vincent consumed the dock, but he was not enriched; he merely escaped impoverishment. Court gives no policy reason for shifting the loss to the mariner. He is not necessarily the superior risk bearer. The policy that might justify distinctions is that in cases in which cooperation is desired, we should find for the . That is, we dont want the to cut the boat loose because he will gamble that the boat will weather the storm, and avoid the certainty that it would destroy the dock. b. Bohlen, Incomplete Privilege When damage is uncertain ex ante: Often the actor invades the others interests knowing that there is a mere probability of destroying the property, and the chances of the harm occurring should be taken into account by courts in deciding whether to assign liability. This probability of harm may even properly be used
as a discount of the valuation of the interest to be invaded (5% chance of destroying $100 dock = $5 value, compared with a $25 boat). c. Keeton, Conditional Fault in the Law of Torts Explaining Vincent under unjust enrichment might lead to major doctrinal expansion, defining enrichment not only as gain and avoidance of loss, but also avoidance of risk of loss. If we do not consider avoidance of risk of loss to be a gain, then the enrichment justification vanishes. If we take risk into account, then even if the boat sinks, the boat-owner still avoided greater risk of loss by tying up to the dock. Almost anything that reallocates risk is enrichment, but what makes it unjust? Possible distinction between using anothers property for protection and causing a risk of harm to anothers property without using it. Vincent was actually using the dock, and so liability may be justifiable under this typology. The concept of conditional fault explains Vincent and is similar to general tort law concepts. Our moral intuition tells us that actors who make no ex ante provisions for compensating forseeable victims of their acts are blameworthy and should be made to compensate victims. Nonnegligent, risky conduct forseeably endangers others, and liability should be found in these cases. e. Epstein, A Theory of Strict Liability Neither moral explanations of fault nor economic ideas of negligence explain the result in Vincent. If the company had owned both ship and dock, they would have been forced to absorb the loss, and there is no reason they should be able to shift the loss just because someone else owns the dock. The defendant should enjoy all the benefits and bear all the costs of his action, and there will be no need to try to calculate ex post facto what level of risk existed ex ante. f. Policy Arguments Having to pay (incomplete privilege) is a strict liability rule (no fault basis) and is a choice just like Vosburg and Kennedys. All of these have the same policy arguments. Here it is just an economic situation. 1. Right of freedom of action and life for shipowner v. right of property of dock owner 2. Formal realizability that if you have an absolute privilege of necessity then every time a captain wastes a dock you are going to have to decide whether the ship was worth more than the dock or not. Strict liability by imposing liability regardless reduces having to determine whether or not the dock was worth more still have to pay regardless. i. Will still be a punitive damages question if worth less no necessity and then may sue for punitive damages. 3. Epstein doesnt want courts to decide what the most efficient outcome would be it is not realizable. Believes Courvesier, Kennedys, Erie are wrongly decided but Vosburg is. 4. Strict liability will create negative incentives when what we want people to do is minimize waste and take the risk people will take excess precautions. 6. Self Defense a. RS 63 Non-Deadly Force When acting in self-defense, a is privileged to use force that is not likely to cause death or serious bodily harm, subject to the following conditions:
1. The must have acted in a way that lead the to reasonably believe either correctly or by reasonable mistake that the was about to inflict an imminent harmful or offensive contact upon him; and 2. The used only those means that appeared reasonably necessary to avoid or prevent the contact threatened. 3. The must not have a duty to retreat. There is generally no duty to retreat or comply with any demand made by the person threatening the force, except that i. If the recognizes that the is not intentionally creating the risk, there is a duty to retreat if he can safely do so; and ii. If the recognizes that the has mistaken the s identity, the must make reasonable efforts to resolve the matter instead of using force in selfdefense. b. RS 65 Deadly Force The is privileged to use force likely to cause death or substantial bodily harm when acting in self-defense, subject to the following conditions: 1. The must have acted in a way that led the to reasonably believe that the was about to inflict an imminent harmful or offensive contact upon him and the reasonably believed that such contact would inflict death or serious bodily harm. 2. There is a split over whether a must retreat if it is safe to do so. i. Most courts hold that there is not duty to retreat as an alternative to using deadly force that would otherwise be permissible Rationale: When one is threatened with deadly force, the feasibility of retreat should not be second-guessed by courts after the event. Also, as between the actor and the person threatening him the actor ahs the right to be where he is. ii. A minority of courts impose a duty to retreat before using deadly force if it can be done safety. RS 65. Rationale: The social interest in preventing deadly affrays outweighs the actors right to stand his ground when threatened. There is usually no safe means to do so when guns are involved so the minority rule will not apply. There are also exceptions with no duty to retreat if the is in his own home or place of business in some states, retreating would endanger a third party, or the is attempting a valid arrest. c. RS 70 Threats of Force The is privileged to threaten more force than he would in fact be privileged to use in self-defense, provided he has no reason to believe his threats will do more than place the in apprehension. This protects the d from liability for assault based on such threats. d. Limitations on Self-Defense: i. When the knows that the danger has terminated ii. RS 71 No privilege to use force in excess of what the is privileged to use to defend himself. When excessive force is used the is liable for whatever amount of the force is excessive and the then has a privilege of self-defense to protect herself against the degree of force being inflicted by the . iii. The is using privileged force
iv. RS 73 Does not justify the s intentional use of harmful force against a third person. But if the defendant acts unintentionally he will be liable only if negligent. e. Self-defense rules are couched in terms of reasonableness. This is an objective test of how a reasonable person, not the , would act. f. Defense of a third person allowed when using the force that the person defended would have been privileged to use. One can defend anyone endangered. i. Courts are split on whether the is privileged if the person defended was not actually entitled to defend himself. 1. Older View If intervenes he must stand in the shoes of the person he is defending so that unless the person being helped was actually privileged to defend himself is subject to tort liability. Thus privilege could not be based on the s mistake, no matter how reasonable. 2. Modern View RS 76 and cases allow a reasonable mistake in exercise in mistake. Hence is privileged to use force to defend a third person as long as the actor correctly or reasonably believes that the third person was privileged to defend himself and to use the means of defense and amount of force that used and s intervention was necessary to protect the third person. g. Defense of land or chattels does not allow deadly force. He is privileged to use force not likely to cause death or serious bodily harm but only if i. The intrusion by the is not privileged or is conducted so as to lead to reasonably believe that is not privileged; and ii. reasonably believes that force is necessary to prevent or terminate s intrusions; and iii. , priod to the use of force, demands that desist or leave and the demand is ignored. No demand need be made however where it reasonably appears that it would be futile or would further endanger the s property. II. UNINTENTIONAL TORTS Intentional torts have either an action or a relationship. If injure the interest negligently not liable: interference with contractual relations. These legally protected interests under intentional torts are not so under unintentional torts. Not liable for trespassers. When is it intentional and what categories are unintentional. Have done an intentional injury if you know that the consequences will be x or if it is overwhelmingly likely that it will happen you are liable even if you do not intent it to happen. Also have elements of no duty and strict liability. In unintentional torts one does not intend to cause the injury, there was perhaps a chance it could happen, but out of carelessness or disregarding the very small risk but held accountable if one took too great a risk given the possible injury to the . General rule is negligence and then there are exceptions. Unintentional torts is divided into three realms: no duty, negligence, and strict liability. 2 types of gaps, conflicts, and ambiguities in unintentional torts: (1) on the borders between the 3 realms, (2) within the realms.
A. NEGLIGENCE: HISTORY & DEFINITION 1. Blackletter Summary: a. For unintentional tort, the basis of liability is negligence (the failure of the defendant to exercise reasonable care). Sometimes strict liability. a. Five Elements of Tort of Negligence: i. Act or Actionable Ommission ii. Duty: Did owe a duty to conform conduct to a standard necessary to avoid an unreasonable risk of harm to others? ii. Breach: Did s conduct, by act or omission, fall below the applicable standard of care set by law? iii. Causation (Actual and Proximate): Was s failure to meet the standard of care causally connected to s harm? 1) Cause in fact 2) Proximate causation iv. Damages: Did suffer harm? b. Negligence Test: requires a balancing of interests to determine whether the risks taken by the are justified by ends sought. Study of negligence is said to be study of mistakes a reasonable person might make. i. To recover, the must prove each element by a preponderance of the evidence. 2. Prosser on Torts Tort liability is concerned with the intent to bring about a result which will invade the interests of another in a way that the law will not sanction, not a hostile intent or the intent to do harm. A voluntary act, reduced to its lowest terms, is a contraction of the muscles. Intent extends not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what he does. The mere knowledge and appreciation of a risk, short of substantial certainty, is not the equivalent of intent. A person who acts in the belief or consciousness that he is causing an appreciable risk of harm may be negligent. 3. Brown v. Kendall (Mass. 1850) While trying to break up two fighting dogs with a stick, the defendant unintentionally strikes the and injures him. For unintentional tort, the basis of liability is negligence (the failure of the defendant to exercise reasonable care). If the defendants act was unintentional and otherwise lawful, then the defendant is not liable unless the defendant did not exercise due/ordinary/reasonable care. Ordinary care is the kind and degree of care that a prudent and cautious person would use. The has the burden of proving that the defendant was negligent. 4. Ames, Law and Morals (1908) For unintentional torts, early common law merely asked, Did the defendant do the physical act which damaged the ? Modern common law asks a further question, Was the act blameworthy? The ethical standard of reasonable conduct (negligence) has replaced the unmoral standard of acting at ones peril (strict liability). 7. Holmes, The Common Law (1881) Austin developed the theory of negligence. For Austin, a feature of law is a sanction or detriment threatened and imposed by the sovereign for disobedience to the sovereigns commands. Thus, liability should only be based on personal fault (negligence). Pro-strict liability argument: As between the two, the party whose
voluntary conduct has caused the damage should suffer, rather than one who has had no share in producing it. Pro-negligence response: As action cannot be avoided, and tends to the public good, there is obviously no policy in throwing the hazard of what is at once desirable and inevitable upon the actor. Under negligence theory, a defendant is liable only for those consequences which he was bound as a reasonable person to contemplate (reasonably foreseeable consequences). Holmes is the major advocate of negligence and objective standards. B. REASONABLE PERSON 1. Vaughan v. Menlove (Eng. 1837) had placed building and a haystack near s cottages. was told his haystack was dangerous and could catch fire but said he would chance it. He made a chimney through the stack, but despite (or because) of it the stack caught fire and the fire spread and destroyed s cottages. argued that the reasonable man standard was the only rule that could give any kind of certainty, while argued that a person could only be held to act to the best of his abilities and so gross negligence should be determined by individual faculties rather than those of other men. Ordinary prudence. Best judgment rule is too vague it would be no rule at all because each individuals judgment could vary infinitely. Reasonable man standard as always been used and juries have always been able to apply it. Thus, the rule should require in all cases to consider the standard of ordinary prudence. Concur: Facts of this case fall within the well-established principle that a man must use his own property so as not to injure that of others. Concur: Reject s argument that he has no duty to exercise prudence everyone takes upon himself the duty of using his own property as not to injure the property of others. Here, the jury consideration was too lenient, if anything, towards -- all evidence established that was grossly negligent. 2. Note, Liability for fire at common law a. Beaulieu v. Finglam (Eng. 1401): alleged that his house had been destroyed by a carelessly tended fire that had been set by one of the s servants in the course of his duties. Held: For . A man shall answer to his neighbor for any persons who enters my house w/my knowledge or is his guest through him or through his servant, if he does any act whereby a neighbors house is burnt. b. Tuberville v. Stamp (Eng. 1697): was careless watching his fire and it burnt s field. General law is that every man must so use his own property so as not injure another. This is as true of a fire one makes in the fields as of a fire one makes in ones house. 3. Holmes, The Common Law (1881) a. Standards of law are standards of general application. The reasonable man standard thus has two benefits: i. Can ascertain knowledge of law more easily than measuring a mans powers and limitations ii. In societies, a certain average of conduct and sacrifice of individual peculiarities is necessary to the general welfare.
b. Thus, the law considered what would be blameworthy in the average man, the man of ordinary intelligence and prudence, and determines liability by that. i. If you fall below this level, you are at your peril because of the above reasons. ii. If, however, you have a distinct defect that all recognize as making certain precautions impossible, then you arent liable for not taking them. iii. Insanity is a difficult matter to deal with, and no general rule can be laid down about it. 4. Roberts v. Ring (MN 1919) s son, 7 years old, was hit by s car. Jury found for . appealed. said he wasnt negligent as a matter of law the boy was. was 77 with defective hearing and sight; the boy ran in front of s car. Both were proper issues for the jury. If was negligent, it was in failing to keep a proper lookout and failing to stop his car in time. If he saw the boy, he was not alert in stopping the car. If he didnt , he wasnt keeping a proper lookout. The evidence raises an issue of fact as to s negligence. As for the boy, a boy of 7 is not held to the same standard of care. In considering his contributory negligence, the standard is the degree of care commonly exercised by the ordinary boy of his age and maturity. If he had caused injury to someone else, however, then he would be held to the normal adult standard. The s age and physical infirmities should be considered only to give reason why shouldnt have been driving at all. When one, by acts or omissions, causes injury to others, his negligence is to be judged by the standard of care usually exercised by the ordinarily prudent normal man. a. Contrasting View: Johnson v. St. Paul City Ry.Co. (MN 1897): was an elderly woman in the backseat of a buggy. The buggy was struck by a streetcar driven by s servant. admitted not looking or listening for approaching cars. Some allowance should be made for s age and condition in considering contributory negligence. All that the law requires of an infant is a degree commensurate w/its age and discretion. The same rule should apply to old people. b. Rule for Beginners: held to standard of care of those reasonably skilled in the art. i. Exception: not liable when has assumed the risk that will exercise lower standard of care (like drivers ed instructors) ii. Daniels v. Evans (NH 1966) s deceased, a 19-year-old boy, was killed when his motorcycle collided with s car. A minor operating a motor vehicle must be judged by the same standard of care as an adult. The reasons for this adult standard are 1) public safety, 2) protecting others who have no way of knowing it is a minor at the wheel and so cant take appropriate measures; 3) legislative intent since the driving laws pertain to any person. To apply to minors a more lenient standard than that applied to adults is unrealistic, contrary to expressed legislative policy, and inimical to public safety. 1. Charbonneau v. MacRury (NH 1931): Overruled by Daniels. Held that children could not be held to the same standards as adults b/c for the law to do so would be to shut its eyes, ostrich-like, to the facts of life and burden unduly the childs growth to majority. iii. There are a lot of cases over what is an adult activity and what isnt. The line isnt clear. iv. Double Standard: Some people have advocated a dual standard of care for minors in adult activities one for s and one for s. The theory is that there should be a
reasonable person standard for a s negligence and a more relaxed, subjective standard for s contributory negligence. Dual standards increase administrative costs of both settlement and litigation. A lot of cases have rejected this rationale. c. Rule for Experts: required to exercise skill normally had by members or trade or profession in good standing. i. Caveat: Above is true unless represents that he has greater or less skill than average. 5. Prosser, On Torts Standard must be an external one based on what society demands of the individual, not what individual thinks is proper. Conduct must be unreasonable in light of risk in order to be negligent. The whole theory of negligence presupposes some uniform standard of behavior: the reasonable man of ordinary prudence. The actor is required to do what such an ideal individual would do in his place. a. Negligence: Conduct that falls below the standard of conduct established by law for protection of others against unreasonable risk of harm. b. Risk: 1) Recognizable danger; 2) reasonable belief that harm will follow. c. Objective/Subjective When gaps, conflict and ambiguities arose the courts expanded strict liability. How do we define reasonable person? Usually just examine physical attributes subjectively like disability (when and how does it count?), gender issues about how strong the reasonable person is, dexterity. For mental capacity the court selfconscious adopt the opposite approach which is objective whereas the circumstances surrounding the reasonable person include the preceding the three categories mental capacity does not. Prosser says the reasonable person standard must be objective. Physical attributes are important because cannot ask one to adhere to standards he cannot meet and should be allowed to live in the world as he is. For mental incapacities. Mental incapacity a person is a fool. Children cannot meet the standard. i. Temporary mental incapacity is a circumstance. ii. Children treated as a physical attribute; ultra subjective because examines the actual childs mental ability. Considered under adult standard if conducting adult activities. iii. Contributory negligence. fell below their duty to take care of themselves and that failure contributed to the damage. In that case there was no recovery at all. But when the contributory person was mentally ill or a child, in this case the court would use subjective standard by finding mental illness made no contributory negligence. d. In general, the reasonableness of a persons behavior (negligence) will be a jury question as a mixed question of law and fact. The general form of debate is the extent to which reasonable person standard should be individualized/subjective versus being objective/abstract. It should be noted that judges have exercised a lot of power over determining reasonableness by deciding what characteristics the jury can take into account and what they cant. C. CALCULUS OF RISK 1. US v. Carroll Towing, Inc. (1947, opinion by Learned Hand) barge owner sues barge towing co. for damages after his barge came loose from moorings of tow boat, struck a tanker, and began to leak. If a bargee had been aboard the barge at the time, the barge might
have been saved by an early discovery of the damage to the hull. It was a fair requirement that the should have a bargee aboard during the working hours of daylight. Its not enough that the bargee made fast his barge to the pier before leaving her, as there are always occasions where a barge will come loose of her moorings. The owners duty to provide against resulting injuries to others or his own property is a function of 1) the probability that shell break away (P); 2) the gravity of the resulting injury if she does (L); and 3) the burden of adequate precautions (B). Negligent risks are those in which B<PL. If B>PL, youre not negligent for not taking the precaution. c. PROBLEMS w/ Hand Formula for the Negligence Standard : B, P, & L values arent always possible to quantify. Formula doesnt account for marginal precautions (whereby extra dollar spent on precautions doesnt produce a corresponding reduction in the expected costs of injury). Hand Formula assumes all actors are risk-neutral in attitude & behavior; in reality, some actors are risk averse, others prefer risk. Also could be affected like factors of legal strength or jury misunderstandings in which the potential s would not take as many precautions. Could also manipulate the formula to place higher prices on things like life. d. Relationship to Discussion about Absolute v. Conditional Privilege of Necessity: 1. Hand Negligence Formula favors absolute privilege. Hand would say if the ship were worth more than the dock, you dont pay. 2. Strict Liability Formula favors conditional privilege. If ship is worth more than dock, you have a privilege to moor there but must pay for consequent damage. 2. Restatement 291: Unreasonable risks are those of such magnitude as to outweigh what the law regards as the utility of the act. Magnitude = the cost or burden of a risk. Utility = the benefit of taking the risk. 6. Ross, Settled Out of Court The Social Process of Insurance Claims Adjustment Adjusters tend to define a claim as one of liability or no liability depending only on whether a traffic rule was violated, regardless of intention, knowledge, necessity, or other qualifications. Such a determination takes the negligence doctrine to the extreme, but provides an easier assessment of liability than the task proposed in theory by the formal law of negligence. 8. Shavell, Strict Liability v. Negligence Article compares strict liability and negligence rules on the basis of the incentives they provide to appropriately reduce accident losses. Shavell first looks at the Unilateral Case, where only the incentives of the injurer are considered. In the unilateral case, including accidents between strangers and accidents between sellers and strangers, negligence rules create an inefficient result. If the injurer must only exercise due care to avoid liability, then he has incentive to exercise such care but not to reduce the level at which to engage in his activity. He will choose his level of activity in accordance only w/ the personal benefits so derived, creating an increased level of activity and consequent increase in expected accident losses. However, under a strict liability rule, he will have incentive to exercise due care and reduce his level of activity, producing an efficient result. In the bilateral case, where both the injurer and the victims incentives are evaluated, there is no conceivable liability rule dependent on the level of harm and care, which promotes efficiency. A negligence rule makes injurers exercise due care but not reduce activity level; while victims both exercise due care and reduce activity levels. A strict liability standard w/ contributory negligence makes injurers both exercise due care and reduce activity levels, while victims only exercise due care.
Negligence better than strict liability. Posner argues the Hand formula gets the precautions unless the above factors come into play. The only justification for imposing liability is to avoid wasteful behavior. Can avoid was with negligence standard. Without or without negligence or strict liability, contributory negligence defense is not the right result. If strong contributory negligence, the defendants will calculate in those costs and made a reduction in their precautions down the point where it is still better to pay for legal costs than it is to put in any more precautions. . will not take good care of themselves with no contributory negligence. We have imperative negligence in US, the negligence comes into account to reduce the amount of recovery. Should it be cost benefits or reasonable person Counter argument that intentional torts are strict liability and we have other strict liability domains so in an intermediate argument there is also an efficiency arguments for strict liability as well as morality, legal rights, and institutional competence arguments. Basic Point of Shevell: We ought to consider the incentive system established by one rule over another. There will be a reason not to take precautions even with strict liability [Still would not take wasteful precautions because would just pay compensatory damages increase precautions up to the point where any more precautions are not efficient. These arguments dont apply to many individual situations like driving. Also could be affected like factors of legal strength or jury misunderstandings in which the potential s would not take as many precautions. Could also manipulate the formula to place higher prices on things like life]. 9. Calabresi, Risk Distribution Its often been suggested that distributing the risk of accidents requires drivers rather than pedestrians, or employers rather than employees to pay for accidents. Advocates of such a system of loss allocation cannot justify such risk distribution as self-explanatory. The aims they seek through such a system (1. spreading losses; 2. placing losses on those best able to pay; or 3. placing losses on those persons or activities that engender them) are not always consistent w/ one another. They involve separate aims of compensation or secondary accident cost avoidance (1& 2) and general deterrence (3). 10. Calabresi, General Deterrence General Deterrence Approach says that if all activities reflect the accident costs they cause, each individual will be able to choose for himself whether an activity is worth the accident costs it causes. The sum of these choices by individuals will determine the degree to which accident-prone activities are engaged in, how they are engaged in, and who engages in them. When individuals dont bear the accident costs of their activities, then resources are misallocated as goods are produced that the consumer would not want if he had to pay the full extent of their costs to society. For example, if the govt. started paying the costs of all auto accidents, people who otherwise wouldnt drive would be buying cars w/o having to pay for accidents, and # of accidents would rise. General Deterrence theory isnt totally acceptable today, but is attractive theory cuz it says each man knows what is best for him. Also, it operates to reduce accident costs by 1) creating incentives to engage in safer activities and 2) encouraging us to make activities safer, as it creates market for costsaving safety innovations. 11. Calabresi, Secondary Accident Cost Avoidance the Loss Spreading and Deep Pocket Methods Most common justifications for allocation of accident losses on non-fault basis is
that accident losses will be least burdensome if they are spread broadly among people and over time (loss spreading) or if theyre placed on the categories of people least likely to suffer substantial social or economic dislocations as a result (deep pockets). Loss spreading assumes that taking a large sum of money from one is more likely to result in secondary or avoidable losses than taking a series of small sums from many people, and that many small losses cause less pain to people than one person losing a large sum. Deep pockets method assumes secondary costs are better reduced by partial spreading of losses than total spreading if the right people are made to pay. Secondary cost reduction cannot be the sole aim of accident law though, because it does nothing to reduce the primary costs of accidents themselves. 11. Debate about cost benefit analysis: Further assumptions that a negligence standard with lower liability would have different results for someone like a doctor who has different incentives than companies. Argue against assumptions by saying that they are unrealistic. The cost analysis is overall social welfare and utility analysis. In the 1970s, started arguing Institutional competence argument that cost benefit analysis is best as it is objective. Legislatures should make those value judgments. There is not a majority of judges like this but there are a good number of judges appointed in the last thirty years who believe this way although they are not the majority. Want to produce least wasteful results without regard to distribution, rights concepts, and fairness. Cost benefit analysis though can often not produce a simple answer. D. CUSTOM AND STATUTES In proving that a risk is unreasonable, the three most common methods of proof are: 1. Custom 2. Violation of a statute prescribing a more precise standard of care 3. Res Ipsa Loquitor 1. Custom a. Background: The position that custom defines negligence appeared in cases in which large industrial enterprises were s, arguing that custom should be an insulation against as suit by a worker in a workplace accident. i. Pro-relying on custom argument is that the reasonable person is the statistically ordinary person. Therefore, what people ordinarily or customarily do should be regarded as reasonable. ii. Counter to that argument is stronger---that negligence is a normative standard, not a statistical standard. The reasonable person may be better than the ordinary person. So, in the TJ Hooper case, even if every tugboat owner, being "ordinary" in that capacity, fails to equip his boat with a radio receiving set, the failure of the whole industry could still be negligent even though not statistically negligent. Custom in the community is admissible as evidence of the standard of care owed but it is never conclusive (indeed some customs may be found to be negligent). The test is still the reasonable person standard. b. Blackletter--Restatement 2d 295(a)--though custom is not controlling, it is nonetheless admissible evidence on the issue of negligence. i. BUT---custom IS virtually controlling in the field of malpractice. Those who hold themselves out as practitioners of a trade or profession are held to the standard of "the
skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities." (Restatement 2d 299(a)) So you can prove medical cases by showing that other physicians "in similar communities" would not have taken the same risk in treating the patient. has to show that violated the prevailing custom of the profession. ii. Main debate is re: the community whose customs should be controlling. Small town? Big city? iii. Modern rule refers to customary practice "in similar communities." iv. But expert testimony is NOT limited to the particular community in which the practices. c. Titus v. Bradford, B. & K. R. Co. (PA. 1890; old view case) Titus was a brakeman for and killed while switching a car to another track. Evidence showed that this was an industry-wide custom and that Titus knew of the dangers involved an accepted those risks as part of his employment was not negligent. The standard of negligence in this case is what the industry custom is. is not obligated to a higher standard of care than imposed by that custom. knew of the dangers involved and accepted them as part of his employment. Following custom, or common use, exempts a defendant from liability in a negligence case. d. Mayhew v. Sullivan Mining Co. (modern view case) Mayhew is an employee of . He fell through an unguarded and unlighted ladder hole cut in a platform of a mine owned by . wanted to introduce evidence that unguarded ladder holes were an industry-wide custom. Trial court refused to allow that evidence to be produced and returned a verdict for . Evidence of the industry custom should not be admitted; the trial court was correct. Negligence is negligence, regardless of how great a portion of an entire industry believes otherwise. Even if the D had been able to prove that, from the beginning of time, it was the custom in this industry to cut such holes and leave them unprotected, that action would still be negligent. One does not exercise care by following industry custom if the industry custom is itself negligent. Custom is no excuse for a lack of ordinary care. e. The T.J. Hooper (modern view) owned and operated two tugs to tow barges owned by Tugs were not equipped with a radio receiver and the tug master was unaware of reports of an impending storm. Storm sank the tugs and destroyed the cargo and barges. that, had the tug master heard the weather report, he would have turned back. Most tugs in the industry were not equipped with radio receivers. There is a duty to supply radios. Moreover, the fact that most tugs were not equipped with them (exception: many tug masters used their own radios), does not mean that D was non-negligent in not having installed them. Industry may not set its own standards for reasonable prudence! Custom is relevant but not dispositive. Courts must in the end say what is required; not the industry leaders. "Even universal disregard will not excuse the omission of certain precautions." Debate: Moving toward Strict Liability for workers cases? f. Brune v. Belinkoff sued D, a physician, for injuries resulting from an overdose of anesthetic administered by D during the birth of P's child. Trial judge instructed the jury that D must measure up to the standard of professional care in the community where he practices, regardless of higher standards of care and ordinary skill in other localities. Jury
found for D. claims on appeal that modern medical standards require overruling the "locality rule." Judgment for D reversed. Medical practitioners are no longer held to the "locality rule." Modern society no longer witnesses such gulfs between doctors in urban areas and doctors in small communities. All doctors have opportunities to learn of medical advances. i. Current Rule/Standard: The proper standard now is whether the physician has exercised the degree of care/skill of the average qualified practitioner, taking into account advances in the profession. Doctors should be held to the national standard of care in their specialty. 1) A specialist should be held to the standard of care of the average practitioner engaged in that specialty. 2) BUT---medical resources available to the physician may be considered as one circumstance in determining the care required of him. ii. Locality Rule: In the past, under the locality rule, was required to produce a doctor from that very town to testify that the doctor was guilty of malpractice. That never ever happened, due to the "conspiracy of silence." So this new national standard disintegrates local solidarity completely. Expert testimony is now universally available. iii. Epstein hates this. Gigantic malpractice settlements make malpractice insurance skyrocket and the economy is destroyed by overregulation. 1) Epstein's position: "Customs lack the generality of the basic reasonable care standard, but within their specific area of application they promise greater direction than any broader standard can provide." (pro- Titus rule). Customs are better than cost-benefit analysis. Sympathetic to Titus. It is dangerous to allow courts and the government to determine industry standards; why not allow industry to set industry standards? Custom vs. ordinary standard of negligence is a choice between markets and courts setting standard of negligence (level of intervention of courts in market). 2. Statutes a. Introduction: i. Where there is a criminal statute that is silent on the issue of private action, you may be able to use that in a private civil action. ii. One of the most powerful arguments that a can make is that the D's conduct violates a criminal statute or safety ordinance. If the can do this successfully, then she is entitled to a directed verdict that the D is liable. This is negligence per se. But to show that the D's conduct violates the statute, has to get through five "hurdles." iii. However, even if doesnt get through all of the hurdles, she hasn't necessarily lost the case; just the directed verdict opportunity. Also, if the D has complied with all statutory safety requirements he is not necessarily immune to negligence charges---because the reasonable prudent person may do more than the statutory law requires. b. Requirements: If can show all five, then she will probably be entitled to a directed verdict. This follows from the theory that it is the legislature that sets the standard of care in these cases.
1) Must show that the statute's purpose is to protect people from accidents--not anything else. 2) Must show that is among the class of people protected by the statute. 3) Must show that the P's injury was of the sort that the statute was designed to prevent. 4) Must determine whether the D's violation is excused. Only unexcused violations of statutes will be held to be negligence per se. 5) Causation c. Summary: i. Minority view: holds that violation of statute merely raises a presumption of (prima facie) negligence. All that means is that, instead of getting a directed verdict, the question of negligence will just go to the jury. ii. But Restatement 288(b) says that if all the requirements are satisfied, then the violation is negligence per se. iii. Sometimes the courts will refuse to enforce a criminal statute in a tort case if it is ridiculously out of date. I.e. stating the speed limit is 6mph. Restatement 286, comment c. a. In Tedla v. Ellman, court refused to apply a statute requiring pedestrians to walk on right side of the highway because walking on the left side was safer under the circumstances and therefore faithful to the purpose of the statute. iv. Excuse Doctrine: In any jurisdiction where you can get a directed verdict for violation of the statute, if you can show there is a customary exception to violating the statute if technical observance would endanger your safety then you can go to the jury. v. Burden: The has the burden of proof to show that violation of the statute was excused by (say) necessity. So, s prima facie case means that he gets his case before a jury, but excuse doctrine means that also gets his excuse before the jury. d. Difference between prima facie and directed verdict jurisdiction: i. If you have directed verdict + excuse with burden on , after has gotten a directed verdict on the issue of negligence, then bears burden of convincing jury that no criminal liability should have been found. ii. If you have prima facie evidence of negligence, then it is not necessary for the to mount an excuse at the level of criminal law. Jury is permitted to find negligence, not obliged, on the basis of the violation of a criminal statute. iii. Debate: whether courts in civil actions should treat violation of a criminal statute as excused only if the violator would be excused in a criminal action (under a standard more favorable to the D). Or, rather, should they employ a broader doctrine of excuse that would favor the more than in a criminal action (at civil standard of preponderance of evidence)? a. Arguments supporting statutory violation as a major factor in determining tort liability are similar to arguments in support of an objective reasonable person standard. b. Arguments for treating statutory violation as at most mere evidence of negligence resemble arguments for a more subjective version of the reasonable person standard.
e. Duncan's outline on court choices re: the role of violation of a statute in determination of negligence. (What courts have chosen is in italics.) Negligence------------------------------------------------------Strict Liability | | | Subjective------------------------------Objective | | | Violation of ---------------------Violation of statute Statute is mere is more than mere Evidence of evidence of Negligence negligence | | | Sometimes------------------------Always | | Violation is prima facie------------------Violation is Evidence of negligence negligence per se f. Osborne v. McMasters (Minn. 1889) D's drugstore clerk sold decedent poison without a poison label that was required by statute. took the poison and died. A statutory right of action exists here. D failed to use reasonable care and is thus chargeable with negligence on the theory of respondeat superior. There was a breach of a statutory duty meant to protect this class of people from this type of injury. The injury was the proximate cause of death. i. Common law gives a right of action to everyone sustaining injuries caused proximately by the negligence of another. This, too, is a common law action, involving D's negligence. It does not matter whether the duty breached by negligence is one imposed by common law rule or by a statute. ii. The statute established a fixed standard by which the fact of negligence may be determined.
g. Gorris v. Scott (1874) Statute required that vessels carrying animals across the ocean must keep them in separate pens. The purpose of that statute was only to protect against the spread of disease from animal to animal. P's sheep are washed overboard because D didn't keep them in separate pens. Statutory violation cannot be relied on because the damage is of such a nature as was not contemplated by that statute, and as to which it was not intended to confer any benefit on the P's. Only way for to recover would have been if P's sheep had been lost through disease due to the overcrowding and lack of pens. h. Martin v. Herzog (NY 1920) (decedent) was thrown from the wagon he drove and was killed when D failed to drive his cart to the right of the road. Wagon had no lights, which was a statutory violation. D was denied a jury instruction that the absence of a light on the wagon was prima facie evidence of contributory negligence by the P. P's unexcused
violation of the statute was negligence per se; trial court erred in giving the jury the power to relax the duty that owed to other travelers. BUT---see Brown v. Shyne, below. i. Brown v. Shyne (NY 1926) D practicing without a license as a chiropractor; in so doing he was automatically guilty of a misdemeanor. became paralyzed after 9 months of treatment from D. sued for damages on a negligence action. D appeals; saying the jury instructions were improper. Negligence may not be inferred from a practitioner's violation of the statute requiring medical licensing.There was no showing of any malpractice, even though D was not licensed. This fails to get through the "hurdle" of whether this was an injury of the type that the statute was trying to prevent. (it wasn't.) Statute was only intended to protect the public from unskilled practitioners. Here, violation of the statute was not the cause of P's injuries. must prove that D ailed to exercise the care that would have been exercised by a qualified practitioner. This may not be inferred solely from the fact that D was unlicensed. E. RES IPSA LOQUITUR provides that in some circumstances the mere fact of an accidents occurrence raises an inference of negligence os as to establish a prima facie case. Designed to aid s improving the elements of a negligence case by circumstantial evidence. 1. Three statements of the doctrine of res ipsa loquitur: a. English: requires reasonable evidence, management of the defendant or servants, an accident which would not normally happen without negligence, and no explanation by defendant. b. American (Prosser): 1. The event must be of a kind which ordinarily does not occur in the absence of someone's negligence; 2. It must be caused by an agency or instrumentality within the exclusive control of the defendant; and 3. It must not have been due to any involuntary action or contribution on the part of the . c. American (Restatement (2d) of Torts): Requires that (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant's duty to the . i. If the accident is one that normally does not occur in the absence of negligence, courts hold that the occurrence itself will permit the conclusion that someone was negligent. ii. Negligence attributable to the requires that it appear more likely than not that the inference of negligence arising from proof of the first factor can be focused on the . 1. Whether a showing of control by the is essential for res ipsa loquitur purposes and if so what the nature of that control must be is a subject of divergent views a. Exclusive control is satisfied if a defendant is legally responsible -can't escape by contracting out for maintenance, etc. (non -delegable duty of care -- question of breadth of delegability decides exclusive control). The nature of b. Control is only one factor to consider. The essential question is
whether the injury to the was one that the owed a duty to guard against. Corcoran v. Banner Super Market (N.Y. 1967) c. Some courts have purported to find exclusive control in a group of physicians and nurses when an unconscious patent with whom each had some contact suffers harms of a type that might be found attributable to someones negligence. Rather than nonsuit the for failure to identify the specific person whose negligence caused the harm, the courts sympathizing with the s inability to obtain such proof have treated the individual potentially as members of a joint enterprise and imposed responsibility for the harm upon each who cannot exculpate himself. Ybarra v. Spangard (Cal. 1944). Rationale: Each was charged with a duty to guard against injury to . Some courts rely on the s special access to information in denying motions for nonsutis where the s have done the best they can to identify the cause of the accident even if the traditional elements of res ipsa are absent. This is probably the explanation for unconscious suits, though courts often try to squeeze them into the three part test. In speculative cases, courts often allow finding that negligence caused accident for 3 reasons: We prefer a stricter standard. Res ipsa loquitur is a "smoking out" device -- overcome his defendant's covering/stalling tactics. Negligence shouldn't be necessary for compensation iii. There is no inference of negligence if it appears that the s own conduct or that of some person for whom is not responsible was as likely a cause of the accident as was s conduct. 2. Most courts hold that if the above three elements are met, the doctrine will apply even if the cannot add any evidence on the issue of what happened. Also, a who attempts to prove specific acts of negligence to explain what happened may still use res ipsa loquitur as long as the test is met. The jury may reject the s specific proof but may accept the general inference of negligence from the happening of the accident. 3. Result: If the res ipsa loquitur cases made successfully, a jury is guaranteed. If the case is made strongly enough, a directed verdict follows. a. Majority View Most courts treat it as creating only a permissible inference of negligence. A conclusion that the trier may or may not choose to draw from the facts, the strength of the inference depending on and varying with the circumstances of each case. Even in inference states, facts may be so strong that an inference must be drawn if not rebutted. b. Minority View A few courts give it the status of a rebuttable presumption of breach of duty owed. It shifts the burden of going forward with the evidence to the to give a satisfactory explanation of how the injuries occurred by a preponderance of the evidence. If the fails to do so, the would be entitled to a directed verdict on liability. c. Alternative Minority View Some states classify it as a presumption but one that is dispelled by counterevidence. Thus, if the can simply produce evidence sufficient
to sustain a finding of fact in his favor, the presumption has no further evidentiary effect. The burden of proof is back on the to persuade the trier of fact that the breached his duty of care under the circumstances. 4. Byrne v. Boadle (England1863) was struck and badly hurt by a barrel of flour that was being lowered from a window. No other evidence of negligence existed. When an accident could not have occurred without negligence, the accident's occurrence is prima facie evidence of negligence. Similarly, a spare tire coming loose from its cradle underneath a tractor-trailor and crashing into the vehicle following it is the type of accident that does not occur but for the failure of someone to exercise reasonable care. McDougald v. Perry (Fla. 1998). 5. Galbraith v. Busch (NY 1935) was a guest in an automobile driven by defendant, which swerved off the highway, injuring . Guests assume the risk of any defect and could not prove negligence. Therefore, res ipsa loquitur does not apply. a. Compare Pfaffenbach v. White Plains Express Corp. (N.Y. 1966) apparently overruled Galbraith. was injured when defendant's truck skidded across midline of highway. Non-guests assume no structural risk, nor can they observe defendant's level of care; a prima facie negligence case exists whenever a vehicle swerves onto the wrong side of the road. 6. Larson v. St. Francis Hotel (Cal App. 1948) was hit by a chair thrown out of one of the hotel windows by a guest during V-J Day celebration. Since a guest through the chair as part of a spontaneous celebration, exclusive control did not exist -- res ipsa loquitur does not apply. a. Compare Connolly v. Nicollet Hotel (KY 1960) was struck by some falling object on hotel premises. A convention had taken over defendants hotel, and management had ample notice of revelry.Larson case distinguished because it involved a surprise celebration, res ipsa loquitur allowed. 7. Colmenares Vivas v. Sun Alliance Insurance Co. (1st Cir 1986) Suit to recover damages for injuries suffered in an accident while riding in escalator. Owners have a non-delegable duty to keep premises safe for invitees; all elements of res ipsa loquitur are met Dissent: Negligence conclusion unwarranted, thus res ipsa loquitur misplaced. 8. Brown v. Racket Club of Bricktown (1984) were injured when stairway pulled away from wall and collapsed. Duty to inspect includes duty to discover latent defects. F. CAUSATION 1. Cause in Fact a. Summary i. 's negligent risk must cause the 's injuries. (Usually determined on a case-by-case basis.) ii. In order to prove causation, must show two things: 1) 's conduct was the cause in fact of 's injuries (sometimes understood as but for cause). New York Central R.R. v. Grimstad (2nd Cir. 1920) Grimstad's husband, captain of a barge owned by the railroad, fell into the water and drowned. The boat was not equipped with life preservers, and the victim did
not know how to swim. Mrs. Grimstad alleged that his death was the result of 's negligence in failing to equip the barge with life-preservers and life buoys. The jury found for , but appealed, arguing that its negligence was inconsequential because decedent would have died regardless. A negligent party is liable only for those damages which were actually caused by her negligence, not responsible for all damages. There was no showing that the absence of safety equipment contributed to decedent's death. He might not have been saved, even with life buoys. Richardon v. Richardson-Merrell (D.D.C. 1986) Richardson's daughter was born with congenital limb deformities after Richardson took the drug Benedictin. The jury found for , but moved for j.n.o.v. or new trial on the basis that the current state of scientific knowledge could not support the verdict. No reasonable jury could find on the basis of the evidence that the 's birth defects were more likely than not caused by intrauterine exposure to Benedictin; even if such a finding were possible, it is clearly contrary to the weight of the evidence. 's motion of j.n.o.v. or new trial in the alternative should be granted 2) 's conduct was a substantial factor in bringing about 's harm (often this inquiry is done by determining whether the chain of causation was severed). iii. The inquiry often focuses on whether or not any of the human actions or natural events after defendants conduct but before plaintiffs harm severs the causal connection. The problem can be addressed two ways: One is to ask whether the chain of events was sufficiently natural foreseeable or probable at the outset for the defendant to be held liable for the ultimate result, assuming causation can be establish. The second starts with the injury and works back toward the wrongful act of the defendant, trying to determine whether any act of a third party of the plaintiff or any natural event, severed the causal connection. Here the question is only whether you can see the defendant did it. 1. Stimpson v. Wellingon Service Corporation (Mass. 1969) Wellington Service drove its truck over a public way In violation of statutory weight limitations and Stimpson contended this caused his basement pipes to uncouple, resulting in damage. argued that because the uncoupling occurred hours after the truck drove by, no causal connection could be established. It is logical that the pipes fractured several hours after the time when the stress was created and thus the causal connection was not severed. The s were not bound to exclude the operation of other possible causes. It is sufficient if the cause shown is made to appear the probable cause of the accident. iv. Where separate negligent acts of the and a third party concur to cause a single injury, and it appears that the would not have been injured but for the concurrence then both the and the third party are actual causes. 1. Distinguish from similar rules that apply where the injury is inflicted by one of several s jointly engaged in a course of negligent conduct. In such a case, each is liable even though only one of them who can be identified actually inflicted the injury. RS 876. 2. When successive acts of unrelated independent tortfeasors produce harm that is difficult to apportion, the tortfeasors must try to disprove their responsibility for the injury.
v. If the sustains injury as the result of the negligent conduct of two tortfeasors, and it appears that the conduct of either one alone would have been sufficient to cause the injury, both are nevertheless liable if each of their acts was a substantial factor in causing the injury. Note In this type of case it is really not the concurrence that causes damage, because either force by itself would have resulted in the same injuries. Moreover, if the but for rule were strictly applied, both the and the third party would escape liability, since in testing the s liability one would find that the injuries would have occurred despite the s acts. That is why courts have worked out the substantial factor rule to cover this type of case. RS 431-433A vi. If has been injured through the negligence of one of several possible s and it is not clear which one caused the injury but it is clear that only one of them did there are several ways to think about how to prove liability. 1. Application of the but for rule would not work. 2. A better view shifts burden to each . Only a few courts have dealt with this problem. These decisions hold that where cannot show which s negligence was the actual cause of s injuries, the burden of going forward with the evidence shifts to each to show that his negligence was not the actual cause. RS 433B Summers v. Tice (Cal. 1948) Also comparative negligence case. sued 2 s for an injury to his eye and face as a result of being struck by bird shot. and s were hunting. Each had a shotgun. warned them to be careful and stay in line. s could see , and one flushed a quail, which flew between and s. Both s shot at the quail. One shot hit s eye and the other his lip. TC found s injury was a direct result of s shooting, that s were negligent, and that was not contributorily negligent. Can s be jointly and severally liable even though they werent acting in concert and theres not sufficient evidence to show which s negligence caused the injuries? Yes. One view is that both are liable b/c they did act in concert in shooting at the same quail, but this is stretching it a bit. A more reasonable view is that they were acting in concert and liable b/c otherwise s would be free from liability even though each one was negligent and injury resulted from the negligence. Since s were negligent, they have the burden of proof in showing who caused the injury they are in a better position to give evidence. Even in cases of independent tortfeasors or where apportionment is incapable of proof, innocent party is not deprived of redress. have to work out apportionment among themselves. Thus, each here is liable for the whole damage regardless of whether they acted independently or in concert. a. This would be desirable when there is some evidence that both s were acting negligently; however, where there is no evidence as to where culpability lies and it appears from the facts that only one of the two s could have been negligent although the does not know which one application of the shifting may impose a hardship on the innocent who may not be able to prove he was not wrongful without proving the other did so, something the cannot do. 3. Suits against manufacturers of DES have led to a theory of causation called market share liability. This theory is useful in situations where even if all the
s are assumed negligent, it is uncertain which one of them actually caused the s injury due to passage of time and the fact that the s drugs were generally indistinguishable. Courts have agreed that burden shifting does nto apply because there are too many tortfeadors or because not all the tortfeasors are before the court. Several views have emerged that vary both as to the scope of the doctrine and whether it involves joint or several liability. a. New York View Hymowitz v. Eli Lilly & Co.c (N.Y. 1989) All s are liable based on their culpability. Culpability is measured by the risk each imposed on the public at large the risk each caused is measured by tis national market share of the product. s cannot exculpate themselves from liability, even if they can show that they could not have caused the s injury, unless they demonstrate that they did not produce the product for the use that injured the . Liability is several. b. Washington View After the makes out a prima facie case against at least one , all others joined may then exculpate themselves by showing that they could not have caused the injuries. The remaining s may then rebut the presumption of equal market shares by showing their true market shares. s may recover less than full damages if every can prove its true market share and some absent possible causes exist. Liability is several each is liable only for the injuries attributable to that . c. California View Sindell v. Abbot Laboratories (Cal. 1980) If the s in the action represent a substantial share of the market for the product, they will be liable for a percentage of the s injuries equal to their share. s can exculpate themselves if they can show that they could not have caused the s injuries. Liability is several. Brown v. Superior Court (Cal. 1988) narrowed Sindell. It held that each was only responsible for its proportionate share of the loss no joint liability. It also held that there could be no action for fraud or breach of warranty b/c state of mind is an element of those actions. d. Note that some jurisdictions have rejected market share liability in any form and rely on traditional notions of causation. Most states willing to use market share analysis for DES cases have been reluctant to extend the doctrine to other products. Skipworthv. Lead Industries Association (Pa. 1997) A young girl in Philadelphia developed lead poisoning and her guardian tried to sue several lead producing companies on a theory of market share liability. (They had no idea which company manufactured the lead paint used on her home over 100 years ago.) The CA Supreme Court in Sindellv. Abbott Laboratoriessaid market share liability is appropriate where the following factors are present: all the named defendants are possible tortfeasers, the allegedly harmful products are identical and share the same defective qualities (fungible), the plaintiff is unable to identify which defendant cause the injury through no fault of her own and substantially all of the manufacturers which created the defective products during the relevant time as named as defendants. The
rationale for this theory was that each manufacturers liability would approximate its responsibility for the injuries caused by its own products. PAs general rule is that a plaintiff must establish that a particular defendants negligence was the proximate cause of her injuries. This court says market share liability is inappropriate in this case because the test is not met. Appellants failed to state cause of action because they could not identify any of the manufacturers as the wrong doer. e. In toxic torts, three levels of causation must be established: substance - that substance in question can cause the injury source - that was the source of the substance exposure - that was actually exposed to the substance in a way that caused injury 4. If the onset of an injury brings with it the likelihood of future harm, courts have split over whether to award damages for that change of future harm. Most courts have allowed recovery if the can show that it is more than likely not to occur. Mauro v. Raymark Industries, Inc. (NJ 1989) a. When physical injury is present, courts allow recovery for fear of further harm, such as cancer Mauro v. Raymark Industries Inc. (NJ 1989). But where there is no present physical injury, recover for fear about future developments is much less likely. Potter v. Firestone Tire & Rubber (Cal. 1993) 5. Traditionally, a could not recover for a loss unless she could prove that she had lost something that she was more likely than not to have acquire or retained but for the s conduct. In medical cases, courts have recently begun to allow suits for loss of recovery chances that are less than 50%. In some cases, when the risk of contracting a given disease is greater than 50%, damages have been allowed for uncertain future harms from present torts--"probable future consequences." Jackson v. Johns-Manville Sales Corp. (5th Circ. 1986). When the probability of future harm is less than 50% courts will usually disallow an action for enhanced risk, but may award the costs of medical monitoring. Herskovits v. Group Health Cooperative (Wash. 1983) died of lung cancer after negligently failed to diagnose his cancer on his first visit to the hospital and proximately caused a 14% reduction in his chances of survival. 's conduct that increases the risk of death by decreasing the chances of survival is sufficient to take the issue of proximate cause to the jury. The criterion is whether deprived of a significant chance of survival rather than absolute proof that 's conduct caused 's death. The ultimate inquiry is whether the relationship between the increased risk of harm and 's death is sufficient to hold responsible. A 36% reduction in the decedent's chance for survival is sufficient to give the question to the jury. To decide otherwise would be a blanket release from liability anytime there was less than a 50% chance of survival, regardless of how flagrant 's negligence. Concur: A better approach would be to allow recovery even where could not prove that he was denied a cure but could prove that he was denied a chance of a cure. Dissent: A better rule would be one that comports with the
standard of proof of proximate cause: the in a malpractice case must prove that 's negligence, in probability, proximately caused the death. 6. A similar approach may be taken in cases where the finds herself unable to prove but for causation because the s negligence has deprived the of evidence of the actual cause. In such cases, the burden may be shifted to the to prove that his negligence was not the cause in fact of the s injuries. Haft v. Lone Palm Hotel (Cal. 1970) , owner of a hotel, negligently fails to provide a lifeguard at the swimming pool as required by statute. s husband drowns while using the pool, but is unable to show how the drowning occurred because no lifeguard or other witness was present. Under such circumstances, the burden of proof may be shifted to to show that its failure to provide lifeguard service was not the cause of death. Rationale: This is an extension of Summers v. Tice. Unless the burden is shifted to the the s negligence would go unredressed. It is unfair to let profit from 's inability to demonstrate causation adequately. In such cases it is appropriate to switch the burden of demonstrating causation to in order to create the appropriate incentives In a few cases this rationale has been extended to include instances in which negligence by its nature does not become apparent until many years later. Sindell v. Abbott Laboratores. 7. Kingston v. Chicago & N.W. Ry (Wis.1927) Two fires joined together to destroy plaintiffs property. One first was caused by sparks from defendants locomotive. The origin of the other is unknown. It is settled in the law of negligence that when one or more wrongdoers acts cause injury, each are individually responsible for the entire damage. This rule also applies where either of the causes would produce the injury regardless of the other, because each wrongdoer adopts the conduct of his co-actor (even if they never intended to act together) and because its impossible to divide the damage. But that fact that the other fire may have been natural rather than started by a human is a defense. But it is impossible to separate out the injuries caused by the two fires, and because allowing each wrongdoer to use the fact the other contributed as a defense would mean neither would be liable. So the court holds that the fact that the RR company set one of the fires, which was the proximate cause of the damage is sufficient to affirm the judgment. Different case than Tice because there only one could have done it. Kingston Rule: 1) Joint and Several liability when both fires set by human origin 2) No liability when only 1 fire is by human origin. Alternative Rule: Only several liability: liable for the damage no matter what the origin of the other fire. 8. Slip-and-fall cases. When 's negligence greatly multiplies the chances of an accident to and is of a character naturally leading to its occurrence, the mere possibility that an injury might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury. Courts should consider the natural and ordinary course of events. (Reynolds v. Texas & Pacific Ry. Co.); However, damages cannot be
assessed on mere surmise or conjecture as to what probably happened to cause 's injury (McInturff v. Chicago Title and Trust). b. The Supreme Court later rejected the traditional test that only "generally accepted" expert testimony is reliable as too limited since it focused excessively on publication and precedent without considering other measures of reliability. 2. Proximate Cause Some things that are but for causes/ cause in fact are not proximate causes. (But all proximate causes are but for causes). If a reasonable person would not have foreseen injury to anyone from the conduct there is no duty owed to any person who is unexpectedly hurt by the s actions. There is a split of authority, however, if the could have forseen danger to someone. a. Broad View If the s duty of due care is owed to anyone in the world who suffers injuries as a proximate result of the s breach of duty. Where the is injured by the s negligent act, the is responsible regardless of whether the reasonable person would have foreseen a risk of harm in the circumstances to this particular person, as long as the s injuries were proximately caused by the s negligence towards someone. This is the Andrews View, referring to the dissenting opinion in Palsgraf v. Long Island Railroad (N.Y. 1928) b. Narrow View The foreseeable or zone of danger doctrine was espoused by Cardozo in the Palsgraf majority. owes a duty of care only to those persons as to whom the reasonable person would have foreseen a risk of harm under the circumstances. Therefore, before the may be held liable under any duty of care to the , it must appear that the reasonable person would have foreseen a risk of harm to the or a class of person to which the belongs. The was a foreseeable located in a foreseeable zone of danger. RS 281(b) Remember that the proximate cause discussion assumes that the duty question ahs already been resolved in the s favor. Under Cardozos view, an unforseeable loses at the duty stage. Since the owed no duty to the , there is not need to reach the issue of proximate cause at all. If a duty is found owing to the under the Cardozo view and breach is established, two issues remain: was the manner of occurrence foreseeable and as the result foreseeable? Under the Andrews approach forseeability of manner, result, and p are among factors considered in deciding whether the negligent proximately caused the s injury. c. Directness In re Polemis (K.B. 1921) judgment on causation begins with the injury and works back toward the defendant to see if his act or some other act was a direct cause of the injury. But for causal action broken by intervening action (i.e but for getting into the care would not have been injured but intervening cause of crashing the car. Can be broader than forseeability. Even if the s actions were indirect causation, the determinative factor was whether it was reasonably foreseeable that the result occurred would in fact occur. Rationale: The is an innocent victim and thus the having acted negligently should bear the loss.
i. New York Fire Rule Ryan v. New York Central Railway (NY 1866) If a carelessly fails to control a flame or sparks in a populated area, it is foreseeable that such negligence can cause a fire that may spread to adjoining buildings; however, NY courts have held that expansion of the fire beyond burning of the first building is not foreseeable. Rationale: Since potential liability for this type of carelessness could extend almost indefinitely, public policy requires an arbitrary cut-off point. d. Foreseeability Wagon Mound No. 1 (A.C. 1961) Most courts reject the directness approach and its rigid reliance on causation. The majority emphasize forseeability and assert that when an unforeseeable result occurs, it is unfair to hold the liable judgment on causation made from the standpoint of defendant at the time of the tort, i.e., could he then foresee the injury. Moral Fault test in the Bauer article. If it is intentional or unintentional, how far you go down forseeability or directness chain depends on moral culpability of test. RS says that it is never separate from responsibility. Note: Under Vosberg still liable for unforeseeable pre-existing conditions. e. Substantial factor (Andrew, 431): a mush test, similar to the directness test, but only asks if defendants act was a substantial factor, not a direct cause. f. Return to Normal. Nugent Return to normal test. Once returned to normal is there is an unforseeable change of events not liable. Notes 1. Most American jurisdictions have adopted a version of the substantial factor test. Some lean toward the direct test. None have adopted an unaltered foreseeability test. 2. If a defendant proximately cause an injury, he always takes his defendant as he finds him, a rule that resembles the eggshell skull rule of intentional torts (Kinsman Transit). 3. Neither rule necessarily favors plaintiffs or defendants. In one sense, anything is foreseeable if not physically impossible, but in another sense, the most ordinary events are unforeseeable because they always occur under slightly different circumstances. Directness relies on concepts like intervening cause, condition, remoteness, and naturalness, all of which are very vague (outline). 4. Policy, especially moral fault (Bauer), largely determines proximate cause. The policies of risk spreading, deep pockets, and deterrence also influence the issue. G. CONTRIBUTORY NEGLIGENCE NEGLIGENCE/ LAST CLEAR CHANCE/ COMPARATIVE
1. Contributory Negligence a. Introduction: A question of contributory negligence can only arise where has a prima facie case; notwithstanding his own actions, defendant claims that the s negligent actions disentitle him in whole or in part from claiming damages. The prima facie case for contributory negligence is similar to that of negligence except that duty here is not owed to any other person. Also there is no requirement of an act the duty of s elf-
protection always exists and is often violated by unreasonable inaction in the face of danger. i. RS 465 Causal Relation Between Harm and Plaintiffs Negligence (1) The plaintiffs negligence is a legally contributing cause of his harm if, but only if, it is a substantial factor in bringing about his harm and there is no rule restricting his responsibility for it. (2) The rules which determine the causal relation between the plaintiffs negligence conduct and the harm resulting to him are the same as those determining the causal relation between the defendants negligent conduct and resulting harm to others. ii. RS 433A: Apportionment of Harm to Causes Has been extremely influential in apportioning damage when 2 or more s had some causal role in s harm. (1) Damages for harm are to be apportioned among two or more causes where: (a) there are distinct harms, or (b) there is a reasonable basis for determining the contribution of each cause to a single harm. (2) Damages for any other harm cannot be apportioned among two or more causes. Comment: Can apportion damage in private nuisance where different s independently interfere w/s use and enjoyment based on evidence of respective degree of interference caused by each . iii. At CL a s contributory negligence was an absolute and complete bar to any recovery for the negligence of the . And this was true even if the s negligence was very slight when compared to the negligence of the . RS 467. iv. Note that contributory negligence is a defense only to negligence and not to intentional torts. v. Apportionment under CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act) (1) CERCLA imposes strict and joint liability. (2) Do you apportion when it is possible? (a) Restatement approach: not if you cant ascertain all the sources. United States v. Chem-Dyne Corp. (OH 1983) (b) Flexible Rule: can sometimes apportion even when harms are apparently indivisible. Allied Corp. v. Acme Solvents Reclaiming, Inc. (IL 1988) b. Summary: i. Negligence: any one of 2 more joint people whose negligence results in injury are each individually responsible for the entire damage resulting. ii. When 2 causes concur in causing injury, each one adopts the conduct of the other and the loss is treated as an entirety. c. Maddux v. Donaldson (MI 1961) Xs auto crashed into s car, where an oncoming care driven by Y also hit s car. Can successive acts of negligence be treated as a joint tort absent concert of action among s? Yes, even though some say must separate the injuries and even though a may pay more than his share of damages coming from a confused situation he helped create. s jointly and severally liable.
d. Butterfield v. Forrester (KB 1809) was riding his horse at great speed along a road, collided with a pole defendant had placed across the road. Pole was discernible at 100 yards; witnesses claim might have been able to avoid it if he were riding less quickly. Defendant is clearly in fault for obstructing the road. Cannot recover. There are two requirements for s recovery here: the fault of the defendant and no lack of ordinary care in the . e. Gyerman v. United States Lines Co. (Cal 1972) Forklift operator was moving sacks of fishmeal, notices the stacks are not properly arranged to ensure stability. Alerts s marine clerk, but not his own supervisor, as he is required to do by his union contract. A few days later, sacks fall on him. Trial court finds defendants negligence caused the injury, but that was contributorily negligent in continuing to work and failing to report the situation violated the standard of due care for his own safety. Appeal on the issue of contributory negligence. has failed to exercise due care for his own protection, but defendant has not met burden of proof on the issue of causation. Remanded for new trial on issue of contributory negligence. The judge (Sullivan) is trying to narrow the defense of contributory negligence. Here the conduct in question is an omission. (The guy did not report the unsafe conditions.) He was not contributorily negligence in his handling of the fishmeal sacks. Even if the longshoremen had a duty to tell his supervisor about the dangerous conditions, would that have helped? If not, a reasonable person would take the low probability into account. (The longshoreman could also argue that would have violated working class norms.) Sullivan said the trier of fact did not adequately focus on the probability that reporting would have made a difference. It is not obvious employers respond to all complaints. The burden is on the employer to prove that more likely than not, the supervisor would have taken measures to rectify the dangerous condition. Custom is useful but not decisive with respect to standard of due care. General modern rule that burden of proving all aspects of contributory negligence lies with , since it is an affirmative defense. Even if admits his own negligence, still bears the burden of proof of causation. Same process is used to determine both s and defendants proximate cause, if any. Here the substantial factor or lead reasonable men to regard as cause test is used. Restatement (second) of Torts. Can sue any one of the multiple defendants if can show that the single injury is the result of negligence by multiple defendants. Undividable consequence of both negligences. Can sue either for whole amount of damages. Summers allows recovery for the whole giving each the incentive to exculpate themselves. Dont have to show that each was more likely than not. Multiple s and not clear that all were negligence and not all were acting in concert. Think that only one was negligent but dont know which one was. Ibarra allows that when confronting the problem of which was negligent an which caused the injury it is permitted for to recover jointly and severally. Not an extension of res ipsa which requires that the instrumentality be under the control of liable and that more likely than not was the cause/negligence. Here the exclusive control of res ipsa is relaxed. Multiple and multiple . Even if can show that all were negligent, cannot show which injured them individually. Class actions inefficient for compensating but is efficient for business regulations when compared to command and control.
Juries systematically nullify contributory negligence all or nothing and went for strict liability. Move to comparative negligence is not far on the other side though. US is the most friendly in the world. Strong policy reason that if have less tort liability, the market pressure on the enterprises to get people to buy their products will constantly push enterprises to take the appropriate levels of precautions v. so inequitable that it is better to do as government regulation.
f. Matter of Bell Petroleum Services, Inc. (5th Cir. 1993) sued 3 s for chromium contamination. settled w/ 1st 2 s and then sought to hold 3rd liable for past damages as well as jointly and severally liable with the other s for future costs. 3rd argued that costs attributable to the contamination should be apportioned among the s. TC found for s. 3rd appealed. Reversed. Based on Restatement comment, a reasonable ground for apportionment existed. There was no way to determine the specific amount each polluted, but can make a reasonable approximation of each s contribution to the contamination. introduced expert testimony regarding a volumetric approach to apportionment, and that evidence may support a conclusion that a reasonable basis for apportionment exists. Dissent: 3rd met legal burden of showing apportionment is possible, but didnt meet factual burden showing how to do it. g. Eckert v. Long Island Railroad (NY 1871) If the is confronted with an emergency not of her own making, her conduct is compared to what a reasonable person would do in such an emergency. Where the is faced with imminent peril to herself or a third person she may assume extraordinary risks or perform dangerous acts in attempting to avoid the peril without being held contributorily negligent. h. Exemptions from contributory negligence i. Statutory duty: Where has violated statutory duty, there is strict liability, and no defense of contributory negligence. Osborne v. Salvation Army (2nd Circ. 1939) ii. Custodial care:A defense of contributory negligence may be defeated by showing in custodial care had an inability to control his actions. Padula v. State (N.Y. 1979) s were inmates at a drug rehabilitation center and drank copy fluid; no c.n. iii. Necessity: A showing of necessity may make unavailable a defense of contributory negligence. Raimondo v. Harding: runs in front of a negligently operated car to escape gang attack; no c.n.(N.Y. Appellate 1973). iv. Theres a distinction between causation and coincidence. In Mahoney (squib p.320) the plaintiffs contributory negligence in driving too fast did not contribute to the collision, which might just as well have happened has he been driving at 45 mph. v. Common Carrier/Products Liability: In Washington, courts held comparative negligence principles do not apply to strict liability actions brought against a common carrier or product liability actions since applicable statute was meant to apply only where contributory negligence of might otherwise bar recovery. vi. Breach of Warranty Suit: In Massachusetts, Supreme Judicial Court did not allow comparative negligence to be used as a defense in a breach of warranty suit.
i. Allocating loss when both s are present and able to pay (1) Each party pays for a fraction of the loss equal to the probability their act alone would cause the harm divided by the possibility that either act individually would cause the harm. (2) Formula presupposes a reasonably precise way to measure probability of s actions, and doesnt answer the common case where the probability of harm is zero. Note: Insurance complications: When contributory negligence barred actions, then it was almost impossible for both parties to get judgment in accidents where each party was both a victim and a tortfeasor. Now, comparative negligence means each party can recover from the other. Question: Do damages offset or does insurance pay each sides damages? Answer: CA held that setoff was only available when parties werent covered by insurance. Otherwise, insurance responsibility depends as much on extent of injury of insured as much as on amount of damages sustained by person insured injured. Dissent: Argued that court misconstrued statutory language and that it didnt explain the way the rule would operate if either or both parties had limited insurance coverage. j. Contributory negligence creates a set of incentives that are arguably perverse. Defendants may decide even if they are negligent and their negligence causes a lot of damage, they often will end up paying nothing because their lawyers could show was negligent. Ds are often corporations that make rational calculations of what precautions it makes sense to build into the enterprise. Ps are often individual personal injury plaintiffs who have suffered some bodily injury. The standard of care for them is not necessarily the Hand formula. (unlike for the company). The negligence standard for the consumer is the reasonable person. Some percentage of all people will violate that reasonable person standard. The cost of those injuries will be eliminated from the calculations of the enterprise. So the enterprise will calculate their liability too low. i. The enterprise lawyer will usually be better than the personal injury lawyer and hell calculate his expected profits differently. The number of plaintiffs is determined by the availability of legal services. Those personal injury firms are calculating their profits based on contingency fees. (The big firms work on retainer, per hour.) Contributory negligence increases the cost (by decreasing the probability of success) of representation and decreases the supply of personal injury lawyers. So the enterprise will take this into account and calculate its liability too low to reach the optimal level of care. ii. But the system could actually hurt the enterprise - The way the system worked in practice is that juries often disregarded the rule and refused to take contributory negligence into account because they didnt want to get nothing. Under comparative negligence, the jury isnt forced into an all or nothing award to they reduce damages by the amount of Ps contributory negligence. 2. Last Clear Chance Only see this doctrine in older cases. It has now been replaced with comparative negligence. Rationale: To soften the complete defense rule for contributory negligence, courts held that a s contributory negligence would not bar or reduce recovery if the , immediately prior to the accident, had the last clear chance to avoid the accident and
failed to do so. In these cases, the s contributory negligence placed her in a position of either helpless or inattentive peril. a. Fuller v. Illinois Central RR (Miss, 1911) Man crossing railway tracks is hit and killed by oncoming train. Train operator had time to stop before hiting him, or he could have sounded a warning whistle at a sufficient closeness and with sufficient time for the decedent to hear it and get out of the way. The party who has the last clear chance to avoid the harm is held responsible, notwithstanding the contributory negligence of the victim. Railway only has the duty to avoid wanton or willful injury, or gross negligence, in its conduct toward trespassers. However, if it is proved that RR acted wantonly or grossly negligently, the defense of c.n. is not available. [Q: why was not the issue either that RR was not wanton, or that if it was, that c.n. was not available?] b. Restatement of Torts: i. Last Clear Chance: Helpless Where the negligent : 1. has been harmed by the negligence of the defendant, and 2. was unable to avoid the harm by the subsequent exercise of due vigilance and care, may recover if: 1. defendant knew of s situation, and realized, or had reason to realize, the danger involved, or would have known of the situation and realized the danger if he had been exercising due care, and 2. could have avoided the accident with reasonable care and competence, but did not. Note: Knowledge (or would have known with due care for the helpless ) requirement implies that something worse than ordinary negligence is required for Last Clear Chance exception to c.n. For helpless there is a duty to investigate. ii. Last Clear Chance: Inattentive Where the negligent : 1. has been harmed by the negligence of the defendant, but 2. could have avoided the harm by the subsequent exercise of due vigilance and care, may recover only if: 1. defendant knew of s position, and 2. realizes or has reason to realize that the is inattentive and unlikely to be able to save himself, and 3. could have avoided the accident with reasonable care and competence, but did not. 3. Comparative Negligence This doctrine, now adopted by virtually all states by statute or judicially, rejects the notion that contributory negligence is always a complete bar to recovery by the . Instead, this approach attempts to individualize accident recoveries by placing the economic sting on the parties in proportion to their fault. In every case where contributory negligence is known, the trier of fact must make a special finding on the degree
of fault of each partys negligence and s damages are reduced accordingly or sometimes barred. This doctrine does not affect proof of negligence, only the distribution of damages. Comparative negligence subsumes Last Clear Chance and assumption of risk doctrines. rt motivated by basic concerns of fairness, that fault should control liability. It is also empirically borne out that juries often apply an ad hoc comparative negligence standard. Jury is given a very open-ended instruction no mechanism for apportioning percentage fault. a. Li v. Yellow Cab Co. of California (Cal. 1975) Li was crossing lanes of traffic to get to a service station when her car was hit by s driver travelling too fast having run a traffic light. Trial rules for on the issue of contributory negligence. Where fault, or causal responsibility, is shared between and defendant, liability should also be shared. Court adopts a new rule of Comparative Negligence in pure form, replacing the old all or nothing rule of contributory negligence. b. Pure v. Partial Comparative Negligence i. A number of jurisdictions (e.g. CA and NY) have pure comparative negligence which allows the to recover a percentage of her damages even if her own negligence exceeds that of the . So if a jury determines that the was 905 at fault she can still recover 10% of her damages. ii. Most states recognize only partial comparative negligence in that they deny any recovery to a whose own negligence passes some threshold level. Some states deny recovery to the if her negligence equals or exceeds that of the . Thus if the is 49% to blame, she can recover 51% of her damages but receives nothing if it is 50-50. Others turn it around to the so that if the jury finds the 50% at fault she can still recover half of her damages. Opinion states that 50% system is theoretically little different from the old all or nothing rule. iii. Contractual or Primary (Voluntary) Assumption of Risk completely bars s claim. c. American Motorcycle Shouldnt be done by the judges. Stronger institutional competence argument than Li. Up until Li it was contributory negligence and then adopted plaintiff- distribution of contributory negligence. If applied Li would have to get ride of joint and several liability; court should have gotten ride of it wand stated that when multiple , should only be liable for their proportion. Similar model as contributory negligence. First objection, Court is totally in charge. Motorcylce was comparative equitable indemnity and should have allowed. argues that it goes beyond scope of judicial role to change the rule, since the contributory negligence rule is found in the state civil code and also emphasizes the administrability problems with the new rule. Court responds by saying legislature intended further judicial development in this area, and that the rule will not be too hard to administer. d. Relationship to Other Doctrines i. Under any comparative negligence system, the s negligence as a whole is compared to that of the . It should make no difference whether the s negligence occurred before or after discovering s predicament. Consequently, almost all courts hold that the doctrine of last clear chance is abolished under comparative negligence.
ii. Most comparative negligence states that have rule on the issue have held that a negligent s damages can be reduced even if the s conduct was reckless, wanton or grossly negligence. Sorenson v. Allred (Cal. 1980) Of course s negligence will not be considered if the has committee an itnetnional wrong. iii. Most states have concluded that after the introduction of comparative negligence, the need no longer show freedom fro mcontributory negligence as part of the res ipsa case. H. OWNERS AND OCCUPIERS OF LAND 1. Robert Addie & Sons (Colleries), Ltd. v. Dumbreck (Eng. 1929) Mining operation has dangerous pulley-wheel device that is attractive to children. Though miners warn against trespassing, they now many people cross over and play in their field anyway. Child is killed while playing on or near device. Landowner owes different duties to 1) invited guests (duty of reasonable care) 2) licensees (no traps or concealed danger) and 3) trespassers (no duty at all liability only for willful acts). Warnings and signs are enough to make child a trespasser. No duty to fence land or risk letting trespassers become licensees. 4 options RS 333 a. Minority Rule: Excelsior Wire Rope Co. v. Callan (Eng. 1929) went the other way with similar facts. The only distinction was that machine was located next to a playground swarming with kids. It was well known that children would be near the machine, the court held, and so there was a duty. 3. Willful and Wanton exception: Fed. Ct. of Appeals v. DeBeve (D.C. Cir. 1964). An infant fell out the defective window of an apartment that forbade subletters. Infant was a trespasser, but owner of apt. had an obligation to keep the screens functioning their failure was willful and wanton misconduct and created liability. 4. Trespassers on land adjacent to the public way : If public/private division is unclear, and private land is dangerous, can recover if excavation or danger is sufficiently near the highway to be dangerous a fact to be left to the jury. 5. Attractive Nuisance: Infant trespassers can recover when lured on to premises by attractive condition includes fires, explosions, moving parts, but not rivers, creeks, haystacks. Franich v. Great Northern Ry. Co. (9th Cir. 1958) Railroad Co. V. Stout (U.S. 1873) finds in favor of boy injured playing on railroad turntable. 6. Restatement (Second) of Torts, RSC 339: imposes liability for attractive nuisance where 1) place is one where possessor has reason to know children will trespass 2) possessor has reason to know condition is dangerous 3) children do not know risk because of their youth 4) burden of eliminating the danger is slight compared with the risk to children 5) possessor fails to exercise reasonable care
Majority Rule: liability only applies to artificial conditions on the land Loney v. McPhilips (Or. 1974) says ocean cove is not an attractive nuisance. Also, possessor is under no duty to investigate whether kids come not should know, but knows or has reason to know. Risk must not be clear to kids: one who jumps train to train should know regardless of age (Holland v. Baltimore & Ohio RR (DC 1981))
7. Licensee/Invitee: premises generally control, so premises open to the public create obligation to invitees, while private or residential premises are obligated as to licensees. a. RSC 332 Invitee Defined: a) a person invited to enter for purpose for which land is open to the public or b) business visitor invited to remain for purpose connected with business dealing with possessor. b. Duties to public officials: usually treated as business visitors an implied invitee. 8. Rowland v. Christian (Cal. 1968) was a guest in home of Christian, cut his hand on a porcelain faucet that shattered in his hand. knew of the crack and had asked her landlord to fix it.Old rule that social guest is owed no duty is replaced by single duty of reasonable care in all circumstances. Court abandons rigid classifications, uses reasonable care in view of probability of injury to others. Social guest, etc. is not determinative. is entitled to a warning of danger. Most courts have not adopted the Rowland rule. But 15 states have followed Rowland. The greatest resistance has been the extension of the ordinary duty of care to trespassers. Some states distinguish trespasser, but lump social guest and business invitee together. 9. Obvious Conditions: a. RSC 343 A: Possessor is not liable to invitees for activity whose danger is obvious unless harm should be anticipated in spite of obviousness. b. In Ward v. K-Mart Corp. (Ill. 1990), man who runs into concrete post in store can recover because it was foreseeable that customers would have their vision obscured by carrying bulky objects. 10. Strict Liability: California has imposed strict liability for landlords for defects in the dwelling, in Becker v. IRM Corporation (Cal. 1985). Not extended to commercial lessors, only residences. Based on implied warranty of habitability. Almost every other jurisdiction disagrees. 11. Duty to strangers: Post-Rowland, distinction emerges between damage by artificial conditions and damage by natural conditions; there is no act. Most jurisdictions do not allow negligence action for damage by natural conditions. However California would impose affirmative duty to stop mudslide after heavy rain in Sprecher v. Adamson Co. (Cal. 1981) 12. Statutes: Many protect landowners from suits by non-paying guests or trespassers, esp. for recreational activities engaged in on owners land. I. NEGLIGENT INFLICTION OF EMOTIONAL AND ECONOMIC HARM
1. General rules: In order for a to be held liable for negligent infliction of emotional or economic harm 1) The must owe a duty of care to the particular : If injury to the particular or class of s was foreseeable to a reasonable person under the circumstances, owes duty of care. 2) The harm suffered by the must be proximately caused by the negligent conduct of the : Injury was proximately caused by s negligent conduct if it was a natural and probable result 3) Foreseeability is the test. If a reasonable person would have known that its conduct posed a risk to a particular of a particular type of injury, can be held liable to that for that injury. 4) Knowledge: does not need to have actual knowledge of the risk; constructive knowledge will suffice. 2. Dillon v. Legg (Cal. 1968) ran over and killed a child while driving. The childs mother and minor sister brought a suit that included claims for negligent infliction of emotional distress. Trial court, following the Amaya rule, dismissed the mothers claim, but not the sisters, since the sister was in the zone of danger, so that she may have feared for her own death. Court finds that insofar as impact is not necessary for recovery, the zone of danger rule makes no sense, because impact is what the person in the zone of danger would fear. Instead of the old rule, the court imposes a standard for liability: when the injury is foreseeable under the circumstances (according to a case-by-case objective reasonableness standard no recovery for eggshell skull s), the has a duty to the . In this case, the court finds that it is foreseeable that a negligent driver who causes the death of a child would cause emotional harm to close family members, so trial courts decision is reversed. NOTE: This is a minority holding. Most jurisdictions still apply the zone of danger rule, and recovery is limited to fear for ones own safety or from physical manifestations of the trauma. a. Courts in favor of the Dillon say it is in line with current tendency to abandon strict rules and artificial islands of exceptions in favor of standards governing such concepts as negligence, proximate cause, and foreseeability. b. On the other hand, some courts have concluded that the need for certainty and for limiting the scope of people who can recover for emotional harms requires a rule: in CA, damages for emotional distress can only be recovered by a bystander who is: 1. Closely related to victim 2. Present at the scene and aware of the injury being caused 3. Suffering from emotional distress beyond that which an ordinary bystander would not feel under the circumstances.
3. People Express Airliners v. Consolidated Rail (N.J. 1985) negligently spilled chemicals, and was required to close down its operations during cleanup. sued to recover for lost business during the time it had to remain closed. If the has a duty with respect to the particular , and the s action is the proximate cause of s economic loss, then can recover damages even if not physical. The standard for determining proximate causation is that the injury must be the natural and probable consequence of s negligence (reasonably to be anticipated in view of s capacity to have seen the risk created with respect to the particular ). The need not have actual knowledge of the risk posed it is enough that it should reasonably know of the risk. J. RYLANDS V. FLETCHER Series of 3 cases that establish strict liability when a property owner damages a neighbors property by bringing something onto his land that escapes and causes mischief to the neighbors property. 1. General rule: A property owner will be held strictly liable to damages caused to his neighbors land when: 1) He brings something onto his land which he knows or should know will cause harm to his neighbors property if it escapes, or 2) He uses his land in a non-natural way and this use is the proximate cause of injury to neighbors land. 2. Fletcher v. Rylands (1865) s land is flooded when s reservoir leaked through an unknown, abandoned mine. did not know of the mine shafts, and the reservoir was competently built.Court decides that s innocence from a moral point of view is irrelevant; whether the damage was intentional or unintentional, the should be liable for any damage caused. 3. Fletcher v. Rylands (1866) The brings onto his land things that could potentially cause mischief at his own peril. He is thus strictly liable if the things escape, but his liability is limited to injuries that are the natural consequences of the escape and is excused if the escape can be attributed to either the neighbors default or to an act of God. 4. Rylands v. Fletcher (1868) Strict liability applies when a property owner does something unnatural on his land, and this change causes harm to a neighbors property. Once again, proximate causation is all that needs to be proved. 5. Brown v. Collins (NH 1873) s horses got scared and ran into and broke a post on s land. was not negligent in managing his horses. sued for damages. This court rejects the Rylands position, holding that if a has not been negligent, he should not be held liable for the escape against his will of things he has brought onto his property. The reasoning is that strict liability would discourage people from rising above a condition of barbarism and discourage progress and improvement. K. NUISANCE No Duty Exceptions Negligence Strict Liability
DH Nuisance 1. Blackletter Summary Unreasonable interference with (LPI in the quiet enjoyment of land. Useless because so broad. Has to be non-trespassory. Domain of injuries to land: First ask if can make a case of intentional trespass can have strict liability and can recover to all injuries to land (invasion, damages, reduction in value). Then look at nature of activity, if can define as ultra hazardous would be strict liability. Then, ask if can only make out negligence/unintentional. Down to chain to nuisance. The nuisance action you allege that without trespassing on land they engaged in interference of quiet enjoyment. Nuisance is also strict liability but with complex limitations. Law of nuisance is the basis for environmental law. Judges experience intense institutional competence opposition to it. Government by judiciary RS 826. Modern rule follows Boomer which is the change from the old New York Law. a. Cant automatically get an injunction when prove nuisance. If automatically grant an injunction, one is engaged in direct regulatory activity. With no nuisance the injury is Latin Tag and cannot receive an injunction. Two new options for the court: Continue operating without injunction with permanent damage if continue to pay for damages. (Pay for shutting down. No reason why it has to be only this four. Can adjust in any number of different ways as well as the damage payments since the box is already open. Have to decide when to leave it to the government to decide. b. Big distinctions: private or public? No private cause of action for public nuisance which affects members of some public in the same way. Show rights of quiet enjoyment interfered with invade in a unique way in the class which you belong. Has to be particular to individual or class, but not the general public. c. Private is further distinguished per se (might be better than ultra hazardous) and per accidentus. Sets of specific rules about types of activities that give rise to strict liability. 1. Every jurisdiction has a list that do or do not give rise to liability. Typical list would include lateral support (dig out land on ones lot and house next door collapses because lateral support weekend), water rights (suck water out of well and land collapses or mill cant operate because lowered level of river), illegal activities (1800s involved morals situations; differentially affected although all neighbors could sue). Limitations on these rules include in general in American law there is no protection to unimpeded flow of light and air to property or enjoyment of view. (Applies to per se and per accidentus). Classic Situations Shining light (not access), noise, smells, pollution, electric currents. Courts grapple if a nuisance under all the circumstances. RS 826 is a general standard. Use that when what youve got is not part of that list. 2. Per accidentus Unreasonableness is determined case by case. Division between intentional and unintentional (negligence standard used to be very confused but this is now the standard). In most situations the activity is a continuous activity and not a one-time deal. After protest, if know or not to know that more likely than no or virtually certain, substantially certain that inflicting injury, the action becomes intentional. Substantially certain is usually the standard. Restatement adopts the view that unreasonable in nuisance is a
negligence principle, and the invasion is unreasonable if its harms outweigh its benefits. Some cases interpret this reasonableness as a threshold of harm, beyond which a is liable regardless of the benefits. a. Two important rules that establish boundaries of cause of action. 1) Must be reasonable (no Vosburg doctrine; extra sensitive does not recover). 2) Not a coming to the nuisance defense. Psychosexual class overturnes with literary meanings. Sue pig farmers when move into country. Farmers lobbies eventually convince state legislatures to pass laws saying normal agricultural operation that is legal is not a nuisance. Still no common law defense if the state does not have the statute. Definition of reasonable in intentional. Private nuisance per accidentus in RS 826 and that is the only category it applies to. b. Standard articulated in Boomer. Gravity of harm outweighs utility of conduct. Or, consequence of harm is serious and compensation of it and other similar situations would not make the continuation of the harm not feasible. i. Cement plant provides jobs and cement with spillover effect on town. Activity produces injury to everyone within a radius of it. Damages are $200 (solved by (a)). Damages are $100. Loss to shareholders if plant is shut down would be $50 Workers would lose $50 Local business would lose $50 A total loss of $150 In this hypo can only keep operating or be shut down; but in other situations it is possible that precautions could eliminate damage to Loss to plant could be $60 or $40 in two hypos if precautions are taken. ii. RS 826 Worth more that industry has greater utility ($150) than cost of damages ($100). Compensate by paying off victims may cause it to shut down because the company would only be making $50 when damages for the future cost $100. ii. Cannot claim under (a) because benefits outweigh damage. Brutally utilitarian. Epstein considers this the end of the rule of law because the judge considers factors all over the world. Not formally realizable. Prosser believes tort law is social engineering. Could also use non monetary arguments ,but would have to use them for both sides. iii. Could win under (b) by saying the harm is really bad and. Want to shut it down and receive damages. This section is also about utility. With $60 it would not be a nuisance because imposing damages wont cause the plant to shut down which is not a result of general utility to economy as a whole. $60 is more than $50.
Under $40 it is a nuisance and they will have to compensate. There would be no damage and the costs of $40 is less than the $50 profits for a net of $10 (there is also the concern that a factory wont operate for only $10 profit). iv. Could have situation where there is an outweigh but under business standards profit is not enough. No standard on how to deal with this. v. Get an injunction and then ask for damage. In this hypo there is no past damage as $100 is the stream of future damage. vi. Coasean argument asks what difference damages or injunctions would make in liability cases. Very clear that it is not possible to operate when damages are more than utility. Injunction would cause shut down; damages would allow to stay open under (b). Coasean Error Response: In either case, damages or building the stack, the factor will stay open. Under an injunction will not shut down because will build a stay. 2. Morgan v. High Penn Oil Co . (NC 1953) Oil refinery located 1000 feet away from s emitted nauseating gases and odors for several hours 2 or 3 days a week, so as to render persons of ordinary sensitiveness sick. Suit for injunction and damages. Refinery is not nuisance per se. Nuisances in fact are activities that become nuisances because of location, manner of operation, etc, and nuisance in fact does not require a showing of negligence. Nuisance is a field of tort liability focused on invasions of the interest in quiet enjoyment of land. Nuisance may be intentional or unintentional. Intentional: liability when act is unreasonable under circumstance. Unintentional: liability if conduct negligent, reckless, or ultrahazardous. Defendant intentionally and unreasonably caused the invasion of quiet enjoyment. [Evidence considered in light most favorable to P, because this was a motion for nonsuit after a jury verdict.] Damages and injunctive relief granted. 3. Vogel v. Grant-Lafayette Electric Cooperative (Wis. 1996) Plaintiff dairy farmers challenged the decision of the Court of Appeals (Wisconsin), reversing in part a judgment in their favor for damages caused by stray voltage from electricity distributed by defendant electric cooperative and directing the trial court to strike the damages awarded for annoyance and inconvenience attributed to nuisance. The dairy farmers had filed suit against the electric cooperative on theories of negligence and nuisance. Three issues were presented for review by the dairy farmers: (1) whether the doctrine of private nuisance applied to stray voltage claims; (2) whether the trial court erred in refusing to submit the nuisance question to the jury on an intentional invasion theory; and (3) whether damages for annoyance and inconvenience were recoverable in negligence, even if they were not recoverable under a private nuisance theory. The court concluded that private nuisance was a viable cause of action under the facts of the case. The dairy farmers request for electric service itself did not negate the invasion element of nuisance. While the dairy farmers requested electric service, they did not request excessive stray voltage to flow through their farm. The court further concluded that because the stray voltage constituted an unintentional invasion and was otherwise actionable under negligence, the trial court properly considered the dairy farmers' contributory negligence when it reduced the total damage award.
3. Boomer v. Atlantic Cement Co. (N.Y. 1970) Plaintiffs sought review of the denial of an injunction against defendant in an action for nuisance, in the Appellate Division of the Supreme Court in the Third Judicial Department (New York). Plaintiff landowners neighbored defendant's cement factory. Plaintiffs sought an injunction for property damages from the factory's vibration, smoke, and dirt. The lower court found the factory a nuisance and ordered temporary damages, but denied an injunction. The court found it should not try to lay down a policy for the difficult problem of pollution elimination as the byproduct of private litigation. The court determined permanent damages were allowed where the loss recoverable is small in comparison with the cost of removal of the nuisance. The court further indicated permanent damages were appropriate when there was a continuing and recurrent nuisance, as in this case. The court found it equitable to award plaintiffs permanent damages based on the theory of compensation for servitude on the land which precluded future recovery by plaintiffs or their grantees. The court granted an injunction which was vacatable upon defendant's payment of permanent damages. Permanent damages were appropriate because the nuisance was continuing and recurrent, yet the economic costs of removal of the nuisance were too great. 4. Dukmenier & Krier: Standard of Care in Nuisance It is unique among intentional torts that nuisance involves a reasonableness/negligence calculation. Trespass and nuisance are factually similar but doctrinally inconsistent. As for remedies for nuisance, private bargaining over the sale of an injunction will arrive at the efficient, value-maximizing result. The initial assignment of rights matters, though, because assigning the right to the highest-value user eliminates transaction costs and achieves the efficient result. 5. Kennedy, Cost Benefit Analysis of Entitlement Problems Numerous problems arise in cost benefit analysis. Normally, one tries to imagine how affected parties would value them, generally assuming that they do so under their existing budget constraints. The analyst thus usually accepts the existing distribution of income as a powerful factor in the valuation process. But there is no logical reason to avoid valuation based upon some hypothetical budget constraints. Nor is it illogical to consider the projects potential effect on income distribution and evaluate the project based on greater or lesser equality. Cost benefit analysis is a way to determine when market failure has prevented private entrepreneurs from providing a good or service which people would gladly pay if its price were not exaggerated by transaction costs, freeloader problems, etc. If consumers are willing to pay enough above the cost of the project to outweigh the cost to those who value it negatively, then market forces undistorted by these factors would have brought it into existence, an the government can justify stepping in to repair the market failure. Government decisions about what private law rules to enforce are not obviously analogous to decisions about building dams or highways; but the premises of liberal law and economics is that they nonetheless have enough in common to use the same decisions techniques. Cost benefit analysis of entitlements would be necessary in order to decide whether the failure of the private sector to enforce the rule was something that government action should remedy. For example, a lack of enforcement could create a subsidy for a polluting factory that would lead to overproduction. Analyst should balance distributive effects with entitlements and also attempt to correct income inequality. Go to non-efficiency concerns to resolve deadlock
6. Coming to the Nuisance Defense a. General View: Not a defense to say came to the nuisance. is not entitled to acquire by unilateral conduct an easement to cause damage to s property. b. Minority View: uses some version of risk assumption to see how much of the risk of nuisance the assumed. Also tend to hold that if nuisance is allowed under zoning regulations, then court shouldnt override the zoning authority decisions. c. Restatement View: Assumption of risk and coming to the nuisance are factors, but are not controlling in deciding whether the nuisance is actionable. L. COASE THEOREM AND OTHER ARGUMENTS 1. Basic Rule f you adopt one rule rather than the other the result will be the right level of precautions taken by s and s. Used to be only conservative law and economics people. Now everyone needs to know. a. Coasean error would say that a default rule of negligence would increase precautions. It is an error to trust your intuition that default rules make a differences. They do not under pie in the sky assumptions b. Pie in the sky assumptions lead to the conclusion that default rules do not matter because people will pay for what they want and business will adopt the level of precautions that consumers are most willing to pay in spite of any changes in the default rule. c. Respond to pie in the sky assumptions with realistic assumptions. Motives of companies are not pie in the sky the are realistic. Perverse incentives, assymetrical information, cross-elasticity of demand will put the level of precautions that the lowest possible or companies will try and lower default rules. Unless make the duty nondisclaimable. i. Industries compete but not about the specifics of a contract. Companies do compete over warranties (but really only in the car and other selected industries). Neither side wins the argument about what consumers will notice. ii. Also, liability rules, defenses, and procedures may work for or against consumers. 2. Supermarket Case Should s be liable when people slip and fall? would prefer no duty at all, would prefer strict liability for owners and occupiers of commercial settings. Both would say negligence would be better than the others sides propositions. a. Negligence gets both to take adequate level of precautions. However, could say that there is a Coasean Error in negligence rather than no duty because even if the standard is no duty will be incentived to take the same level of precautions as under negligence standards. Customers wont respond to changes (i.e. structural changes or price level) and will invest in safety up to point where it will not bring them more customers. b. Under negligence Hand Theorem. If we make the assumption that there is competition and parties are well informed and there is no cost to making the calculations and lawsuits are free and that jury administers BPL standard correctly and is the same as the calculus of the consumer. c. would say the assumptions are incorrect. Realistic assumptions are that customers are not informed, businesses are not competing especially over something like this, customers have cognizant biases and go for cheap product. Need negligence because
the assumptions are all off. Consumers will radically under-demand safety. Supermarket will then say that the assumptions are unrealistic but the unrealism favors us. Thousands of nuisance suits if we allow negligence and that systemic s which arent admissible in evidence so cant show fraud). To avoid liabilities will take socially unutilizable approach. 3. Hazard on sidewalk through commercial activity. Argument for no duty was based on idea that people are shopping at the store; here no one is shopping at the store. a. Identify Coasean argument as to what very unrealistic assumptions would we be able to conclude that even in the stranger case no liability will produce the same precautions as negligence. Store owners will never win no duty. b. If all pedestrians and drivers are perfectly informed, and there is no transaction costs of bargaining with no risks of holdouts or freeloaders, instant coalitions form to bargain with one another, free Easy Pass systems. Extremely unrealistic assumption that all pedestrians ands drivers will get together and bribe operator to take precautions if the damages are less than precautions costs. We will collectively pay to get all stores up to the level of precautions that is profitable to drivers and pedestrians that will save them $20million. This all occurs under no duty regimes. The bribe will induce owners to take precautions. Transaction costs are large and not all information is available so would respond that negligence should be the standard. i. But could also argue that there are other methods besides a bribe that could work like protesting. 4. Liability to the stranger. Case where courts have already decided for negligence standard. Will the store take more precautions if there is strict liability then negligence? a. Strict liability will produce disastrous overinvestment in safety. Coasean Error argument that under pie in the sky assumptions there will be the same amount of precautions under SL and N.Under SL, owners will not make BPL arguments at the same point. b. Under realistic assumptions in the negligence system there will be various results and some will work and some will not so we should have strict liability so that all consumers will be protected. c. Counter that SL realistic assumptions assume that everyone sues and can afford it (protects those who do not sue and more efficient internalization of the costs by the store). d. But under negligence it will also be more expensive because it is hard to prove. [Replace all of this with strangers]. e. With strict liability there will be too many suits and the stores will take too many precautions because want to avoid expensive suits. Costs of suits plus false positives are great enough we will end up over-deterring. 5. One side will start with first intuitive arguments. Argue doesnt make efficiency any better so go to morals and rights. Or go to Coasean error and say that under better incentives we will win. M. ULTRAHAZARDOUS ACTIVITIES
1. Blackletter Summary: Ultrahazardous activities are the third area of strict liability in the unintentional torts regime. The first two areas are Rylands v. Fletcher and the de minimus test for nuisance. The RS is very influential in this area. RS 519 Liability for Ultrahazardous Activies (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, even though he has exercised the utmost care to prevent the harm. (2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous. Example: for the transportation of dynamite: if the truck blows up there is strict liability. If the truck hits a pedestrian, there is no strict liability. RS 520: The 6 factor Test In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) existence of a high degree of risk of some harm to the person, land or chattels of others (b) likelihood that the harm that results from it will be great (c) inability to eliminate the risk by the exercise of reasonable care (d) extent to which the activity is not a matter of common usage (e) inappropriateness of the activity to the place where it is carried on (f) extent to which its value to the community is outweighed by its dangerous attributes Comments: If the abnormally dangerous activity involves a risk of harm to others that substantially impairs the use and enjoyment of neighboring lands or interferes with rights common to all members of the public, the impairment or interference may be actionable on the basis of nuisance. (absolute nuisance = strict liability) This rule is applicable to cases where there is no pecuniary benefit to the actor from the abnormally dangerous activity. This rule is not limited to activities on the defendants land (applies to public places). An activity is a matter of common usage if it is customarily carried on by the great mass of mankind or by many people in the community. It does not cease to be so because it is carried on for a purpose peculiar to the individual who engages in it. Whether an activity is abnormally dangerous is a question of law to be determined by the court. Fletcher argues that strict liability is imposed in cases in which the defendant generates a disproportionate, excessive risk of harm relative to the victims riskcreating activity. When there are reciprocal risks (victim and defendant subject each other to roughly the same degree of risk), there is no strict liability. Example: airplane owners and pilots are strictly liable for ground damage (Restatement 520A), but not for mid-air collisions. RS 522 Contributing Actions of Third Persons, Animals and Forces of Nature One carrying on an ultra hazardous activity is liable for harm under the rule in RS 519, although the harm is caused by the unexpectable. (a) innocent, negligent or reckless conduct of a third person, or
(b) action of an animal (c) operation of a force of nature. RS 523 Assumption of Risk The s assumption of the risk of harm from an abnormally dangerous activity bars his recovery for the harm. RS 524 Contributory Negligence (1) Except as stated in (2), the contributory negligence of the is not a defense to the strict liability of one who carries on an abnormally dangerous activity. (2) The s contributory negligence in knowingly and unreasonably subjecting himself to the risk of harm from the activity is a defense to the strict liability RS 524(A) s Abnormally Sensitive Activity There is no strict liability for harm caused by an abnormally dangerous activity is the harm would have resulted by for the abnormally sensitive character of the s activity 2. Prosser on Torts In torts, fault is not moral blameworthiness but a departure from a standard of conduct required of a person by society for the protection of his neighbors. If a defendant engages in abnormally dangerous activities, the defendants activity may be tolerated, but the defendant will be strictly liable for any harm which results from them. The basis of liability is the defendants intentional behavior in exposing those around him to a unduly great risk. This is conduct which does not so far depart from social standards that the conduct is per se negligent - usually because the advantages which it offers to the defendant and community outweigh even the abnormal risk. Yet, this conduct is still so socially unreasonable that the defendant is not allowed to carry it on without compensating for any actual harm which it does to his neighbors. Strict liability can also be called conditional fault, meaning that the defendant is not to be regarded as at fault unless or until his conduct causes some harm to others, but he is then at fault and to be held responsible. 3. Spano v. Perini Corp. (N.Y. 1969) The defendants blasting (explosion of dynamite) damaged the s nearby garage. Is the defendant strictly liable for this damage? A person who engages in blasting is strictly liable for any damage he causes to neighboring property. The s right to the undisturbed possession of his property outweighs the defendants liberty to blast because it is better that one man should surrender a particular use of his land, than that another should be deprived of the beneficial use of his property altogether. Since blasting involves a substantial risk of harm no matter what the degree of care exercised, the defendant should not be able to impose this risk on nearby persons or property without assuming responsibility for it. a. Note: The old common law rule: strict liability for blasting only if the blast was accompanied by an actual physical invasion of the damaged property (by rocks or other material being cast upon the premises). 4. Madsen v. East Jordan Irrigation Co. (Utah 1942)
operated a mink farm to breed and raise mink for sale. Defendants blasting caused s mother mink to panic and kill their offspring. Is the defendant strictly liable for the unforeseeable consequences of its blasting? No. Whether there is a physical invasion or not, a non-negligent user of explosives is only responsible for results that ordinarily result from an explosion (that are foreseeable/can be anticipated). Shock, air vibrations, and thrown missiles are anticipated results of explosives. The peculiar mental disposition of nearby mink mothers cannot be anticipated and the defendant is therefore not strictly liable for the damage. a. If damage had been caused by an instinctive act of self-preservation by the animals, then this would have been foreseeable. 5. Restatement (Second) of Torts The Restatement is very influential in this area 6. Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. (7th Cir. 1990) manufactured chemicals, including acrylonitrile. During transportation, 5,000 gallons of this highly toxic chemical were leaked onto the train tracks in the Chicago metropolitan area. Is the transportation of acrylonitrile in bulk through a major metropolitan area an abnormally dangerous activity? No. Posner applies the 6 factor test. A negligence regime could remedy and deter the accidental spillage of this chemical from rail cars. Importantly, the leak was not caused by the inherent properties of the chemical, but by a lack of care in maintaining the rail car. It would be too costly to reroute all trains carrying toxic chemicals around cities because cities are the railroad hubs. Rerouting would lead to an increase in the length of the journey so the probability of an accident would be increased (though accidents would be less costly). a. Argument for strict liability in cases involving the bulk transportation of explosive freight: any explosion is likely to destroy any evidence of negligence. 7. Terry, Legal Duties and Rights a. There are 3 types of legal duties: (1) Peremptory duties: The person must or must not act in such a way as actually to produce a certain consequence. It is not enough that the person subject to the duty has done everything in his power to attain the required result and has failed by no fault of his own. Breach of a peremptory duty leads to strict liability. (2) Duties of reasonableness: The person must not do any act that is unreasonably likely to cause a certain consequence or must do such acts as are reasonably necessary to prevent its happening. These are duties of due care. Breach of a duty of reasonableness leads to liability for negligence. (3) Duties of intention: the person must not act with an intention to produce a certain consequence. Example: false representation with an intent to defraud.
III.LIABILITY FOR INTENTIONAL/UNINTENTIONAL INVASIONS OF LPIS IN SITUATIONS WHERE THERE IS A PRE-EXISTING RELATIONSHIP BETWEEN THE PARTIES A. TRADITIONAL LIMITS ON FREEDOM OF CONTRACT 1. Duress, Unconscionability, Contracts of Adhesion, Misrepresentation, and Fraud
a. Calamari & Perillo, Duress, Unconscionability, Contracts of Adhesion, Misrepresentation i. Duress: any wrongful threat/act (not necessarily illegal per se) that overcomes free will of party. Subjective test, though economic duress requires objective element of no legal alternative. Two views - substance: gross economic imbalance (ends of coercion) v. process: gross inequality of bargaining power (means of coercion). ii. Unconscionability: dual purpose to prevent oppression (substantive) and unfair surprise (nonsubstantive). Exchange may be unconscionable per se where grossly unequal, but usually requires added element of unequal bargaining power. Involves lack of intelligent, knowing and voluntary assent, judged by lack of meaningful choice, ignorance or unsophistication. View overall one-sidedness in conjunction with obligation of good faith. iii. Contracts of Adhesion: Take-it-or-leave-it standard form contract. Creates exception to common-law duty to read. See Weaver v. American Oil (unread indemnification clause in lease for lessors negligence void as contrary to public policy b/c no true, voluntary, understanding assent), Henningsen v. Bloomfield Motors (disclaimer of implied warranty of merchantability for automobile void as contrary to public policy b/c gross disproportionate bargaining power and no freedom of choice), Williams v. Walker-Thomas Furniture (installment sales agreement w/ repossession of all purchased items in event of default void b/c no bargaining power, free choice and terms so unfair). Restatement of K 211: allows standardized terms except where beyond reasonable expectation of party. 2. Backgrounds on Default Rule When trying to determine liability for sellers, lawyers will first look to the contract between the parties. Contract implied in fact in reading from the minds of the parties. Case could be very quickly resolved this way. Turns out that in all of these different contracts Employment, Medical, Product liability, Insurance. Seller will argue it does not have liability under the contract. Buyer will respond that because of x reasons the law should require under consumer law which is about the circumstances. Supposition of freedom of contract. Attack contract with contract default rules that are favorable to the buyer instead of the written contract. Default rules are the rules the courts make to fill in gaps in the contract. a. Example: Buyer assumes all risk of injury for any reason under any circumstances. Not a waiver on the surface but because of mechanisms. Do not waive substantive rights; consumer law issues do not have to deal with default rules. i. When its approach through contract law then the question is whether the disclaimer of liability for the physical injury is or is not binding. Lawyers first invoke contract rules: freedom to contract and duty to read. ii. Products liability has background of implied warranty. iii. Unconscionability is how contracts interlaces with consumer law. Unfairness in negotiating or are courts defining the freedom of contract and the courts rewriting in a way totally inconsistent with market system. Unconcscionability is highly lacking in formal realizability. Subcategory of contract of adhesion has the doctrine that in consumer contracts (not mutual papering) Dont force people to do business. Only take people who sign the form. If there is some inequality of bargaining power, the courts will decide if clause is nonbinding and may resort to default rule. Not as crazed as unconscionability not shocking the conscience much more concrete with ideas of adhesion and
default rules via inequality of bargaining power. Still, it is very difficult to determine inequality of bargaining power. Even if signing a contract of adhesion with corporation, like buying a car, there isnt necessarily unequal bargaining power because of competition. Otherwise would invalidate all consumer contracts. Individual cant change but can go somewhere else. However, if a whole group is powerless then it is not competition and is unequal. Look for those that are radically inequitable under unconscionability and unequal bargaining power. 1. There are a few contracts that consumers cannot get out of. Grew out of tort revolutions. Not a diffuse general unconscionability or bargaining power concepts although they are claimed when there are gaps, conflicts, and ambiguities. They are doctrines that allow the litigant to sue in tort and put burden on contract strong party and maneuver contract law to their rescue. Courts are very resistant to freedom of contract defenses. Freedom of contract is not the general principle of consumer law. It is not that freedom of contract is the rule and unconscionability the exception. Have developed some concrete rules. 2. Contract default rules are often bad for the seller but there are bad contract default rules because you do not get damages; the contract just gets cancelled. Three situations. Contract stream on one side and consumer stream on the others and the relationship is only rationalized to a limited extent in legal scholarship. Policy arguments to expand freedom of contract or B. CONTRACTUAL RELATIONSHIP NEGATIVES TORT LIABILITY 1. Assumption of Risk a. Definition: A is said to have assumed the risk of certain harm if she has voluntarily consented to take her chances that harm will occur. b. Employment Setting: Strict Liability Standard i. Fellow servant Rule ( Negligence): While employer is liable for tort of his servant toward stranger, is not liable for injury to fellow employee. ( if you can prove direct negligence of employer: creating unsafe place, wrong choice of employees, employer liable.) ii. Lamson rule: even if employer negligently maintains the premise, if the employee voluntarily encounters a known risk, employer not liable. iii. Current rule (SL): 1911-1920 progressive era adopted Workmans compensation system abolished the old rules. Allow workers to collect set of injury compensation regardless of fault. It is a compulsory insurance scheme: employer required to join workmans comp. c. Non-employment setting: i. Consumer Law ( negligent Std): 3 types of Assumption of risk. 1) Murphy type: ride accident. Cardozo: overall, burden of precaution > injury x probability; knew the risks involved but took it. And the risk involved is reasonable. (So D didnt commit negligence); sports case; 2) Maistrich: you are an idiot and took a stupid risk, didnt exercise reasonable care for your own safely and therefore law wont protect you. ( D was negligent but has a defense of Ps contributory negligence.)
3) Disclaimer of responsibility for negligence cases. Obtain a waiver from to assume risk of negligent injury from the defendant. Ex) on back of the tix (railroad.), medical context; a) pure disclaimer: no liability b) specify remedy: liquidated damage, ADR ( e.g. Pepper). ii. K of adhesion: court should see if there is enough individualized bargaining of unexpected terms; check subjective consent, bargaining power; unconscionability analysis applied (William v. Walker-Thomas: sets limit on what consumers cant subject them under). c. Kessler & Gilmore: The distinction that tort =duties from law and that K= duties from parties is not exactly true. Objective theory of K near torts. Recently tort is being used to expand K remedies. d. Macneil, Manipulating Manifestations of Assent: Court action can originate from consent principal, gap filling capacity, and social adjustment (with decreasing adherence to the principle of freedom of K.) Play with objective intent contrary to parties intent = regulation. When Court regulate covertly (in the name of consent) it is not about consent anymore, but social adjustment. Adhesion contract non-enforcement (seen often as social adjustment) fits with consent idea. Allow parties to plan their relations. This has social cost as cts interference result in confusion, unpredictability, and deter later effort of true assertion of parties intent. e. Hart and Sacks, Judicial Regulation of Private Law-Making Lots of ways for courts to fill in gaps base on what parties would have wanted or public policy. B/c no private lawmaker accounts for all contingencies, these default rule or Court gap filling established custom and practice and basis of expectation of K parties. For non-repeated transactions, low incentive to make long forms. Are parties free to depart from court-supplied terms? Continental system some common law terms default, others immutable. US traditionally more freedom of K, thus in labor context, when Court step in and impose unwaivable right try to sneak it in by consent principal ( a K principle of what the parties would have wanted or would have reached w/ = bp?) These immutable legal background rules control private law making. U.S. Court less forthright and w/ more limited power. Seems like Court exercises power only if the K contrary to public policy; analysis often based on application to the K parties on case-by-case basis (e.g. their unequal bp) not justified to step in for non-K party ( society, disprivileged class.) US Court is indirect courts interpretation of Bargaining power of parties rather than direct attack on the problems ( e.g. K of adhesion, liability disclaimer, exculpating clause). f. Prosser, Express Agreement Equal parties can agree no liability, but not if power disparity (cast doubt on weaker parties true consent). Unless honest attempt to fix, no liquidated damages or other waiver of liabilities. Court is divided over contracting out of liability for negligence in private K right now but not allowed if strong public interest and reliance (professions that serve general public). But in general: Limits reasonable person must have/ should have known that clause binding, must cover Ds specific conduct, and doesnt cover terrible negligence.
g. Lamson v. American Axe and Tool (MA 1900) Employee assumed risk by working near dangerous hatchet-rack (when he knew of the danger and protested), even though faced with threat of job loss. more than anyone knew danger. He stayed (though option was being fired), took the risk. iv. Industrial accident era. Fellow-servant doctrine first ( very pro D) no liability if harmed by another worker though employer responsible for stranger hurt by their employees ( base on Ps status alone. Even if knew nothing of the risk, by the virtue of his status as co-employee, cant claim). Exploited workers. v. Assumption of risk justified by risk premium ( higher wage for more dangerous job), else unjust enrichment (wages count risk). Much of risk assumption defense gone w/ FELA. If bargained, then worker paid before injury. Would salary be higher? vi. Lamson is a slightly better assumption of risk model actually knew of the danger but continued working. Not that much different from contributory negligence. h. Murphy v. Steeplechase Amusement Co. (NY 1929) Park not liable for Ps fall from interactive ride risk assumed. Fall was foreseen as one of the risks of the adventure. Even though more than normal, fall same injury as that assumed. Sport carries obvious dangers. Not trap for unwary (though most severe injury ever). i. Implied assumption of risk: two types primary (D commits no negligence) or secondary (D commits negligence but has an affirmative defense/contributory negligence). ii. Firemans rule generally assumed risk for public servants like that, unless danger unusual. i. Obstetrics & Gynecologists v. Pepper (NV 1985) (Adhesion K) Patient who unknowingly waived right to sue (ADR only) by signing form contract not bound; adhesion. Clinic bore burden to show valid agreement. Adhesion K no bargaining, take it or leave it, bargaining power disparity. Must notify if the term is unexpected. didnt knowingly consent. Notes: i. What if had known still allow clinic to K out? One case allowed waiver b/c K negotiated by union ( no BP disparity). Various levels of waiver in other contexts less ok if toward consumers. ii. Henrioulle & Tunkl: no exculpatory clause if business regulation in public interest, bargaining power disparity, adhesion format, large risk placed on party. j. Social welfare Arg: ( conservative argument to limit liability) Rule should produce appropriate deterrence level against negligence not over things they cant control. Reducing liability is not at the expense of workers: risk premium paid counter arg: externality; workers werent fully compensated for taking the risk. k. Judicial control of assumption of risk doctrine : areas in which Court set up nondisclaimable duty through judicial actions
disability through work agreement to arbitrate ( close scrutiny, not per se abolition) medical malpractice ( patient consent to waive hospital/Drs liability for his neg wont be upheld.
C. CONTRACTUAL RELATIONSHIP AS A SOURCE OF TORT LIABILITY 1. Insurance Contracts a. The Obligation to Act in Good Faith i. Crisci v. Security Insurance Co. (CA 1967) Crisci owned apartment building where tenant June DiMare fell through staircase, suffering alleged physical and psychological injuries. Crisci had $10,000 insurance coverage through general liability policy w/ Security. The policy obligated Security to defend the suit against Crisci and authorized company to make any settlement it deemed expedient. Lots of controversy as to whether DiMares psychosis was caused by injury. Security believes not, and has experts to agree. So Security refuses settlement offers for $10,000, and $9,000 (w/ Crisci offering to pay $2500 of it). Go to trial, and jury issues $101,000 verdict for DiMare. Security pays $10,000 and Crisci goes broke having to pay $22,000 (settled down from remaining $91,000 owed by Crisci) and it ruins her life & health. She brings suit against Security for failure to settle w/in policy limits. What is liability of insurer in excess of policy limits for failure to accept a settlement offer within those limits? Security breached its duty to consider the interests of Crisci in proposed settlements. Affirm award of $91,000, plus $25,000 for mental suffering. 1. There is an implied good faith & fair dealing covenant in insurance contracts that neither party will do anything that will injure the right of the other to receive the benefits of the agreement. Insurer has control of litigation, but give interests of insured at least as much consideration as it gives its own interests. Liability may exist when the insurer unwarrantly refuses an offered settlement where the most reasonable manner of disposing of the claim is by accepting the settlement. 2. In determining whether insurer has given consideration to the interests of the insured, the test is whether a prudent insurer without policy limits would have accepted the settlement offer. 3. Equivalent of Negligence Standard, calculated similar to the Hand Formula (see Calculus of Risk section). If the probability of losing at trial times the projected jury award at trial (P*L) is greater than the burden cost of settling the case (B), then the insurance company should settle. 4. Insurer can be guilty of breaching this obligation even without being guilty of bad faith dishonesty, fraud, and concealment. 5. Mental suffering damages are appropriate because this breach of K was also a tort, and because Criscis happiness & comfort were directly compromised by s breach. Distress damages are awarded in tort law when they result from personal injury or loss of property (as here). Tort law (unlike K law) is grounded in the notion that victim should be compensated for all consequential losses, including distress, resulting from the tortious breach. 6. Advantages of Suing in Tort Law, rather than K Law: Tort law may offer greater remedy, cuz K actions limit recovery to amount of $ due + interest. In
contrast, tort law permits all consequential damages. Also, unlike K law, tort law permits punitive and mental suffering damages. K damages are limited by those consequences which are foreseeable (Hadley rule), whereas tort law has no such limit. 7. Duncan: Liberal courts are broadening tort liability in these insurance K cases, but make it look like a natural extension of K law (based on implied duties, intention of parties, etc). Court is using tort problem to fill the gaps in K doctrine. 8. DICTA: Court suggests alternative rule to apply would be to impose liability on any insurer who furthers its own interests by rejecting opportunities to settle within the policy limits unless it is also willing to absorb losses which may result from its failure to settle. The proposed rule would eliminate the danger of the insurer will reject a settlement offer at or near policy limits, and gamble w/ insureds money. Where the insurers & insureds interests necessarily conflict, the insurer, which may reap the benefits of its determination not to settle, should also have to suffer the detriments of its decision. This rule would be equivalent of Strict Liability Test. ii. Reading Notes on Crisci: a. Basic problem in insurance Ks is that the insurance co bears all the costs of litigation under the standard policy, even though the insured may bear the bulk of financial loss if liability is established. If the insurance co looks only to its own financial interest, it will compare the costs of defense w/ the policy maximum, regardless of the size of the verdict. The insurers prudential choice may be disastrous for the insured, who will have to pay out the verdict if insurer refuses to settle and liability is established at trial. b. Logic of Good Faith Doctrine: Induce the insurer to act as though it bore the entire costs of all defense and indemnity costs, to overcome this conflict of interests. Doctrine firms the insurers control over litigation, but requires them to consider in good faith the interests of the insured equally w/ its own in evaluating settlement. c. Some states agree w/ Crisci rule. Others require showing of bad faith (conscious wrongdoing of dishonest purpose, etc) to establish insurer liability for failure to settle w/in policy limits. d. Benefits to s: Without rules requiring insurers not to act in bad faith, insurers were able to take extra tough bargaining stance w/ s, without fear of retaliation by insured if tactics failed. This often translated into gains for both insurer and insured, but it came at the expense of the interests of the whose search for the optimal level of tort recovery is frustrated by this device. Bad faith action has thus been defended, less as a mode of protection for the insured, and more to protect the insured party. ii. Kennedy, Notes on Crisci: Duncan uses the concept as a tax as analogy to court imposition of good faith obligation in insurance contracts. Very basically, when there are many buyers & sellers and a rising supply curve, the impact of the imposition of liability will be a rise in prices for buyers, but not by as much as the new obligation costs the seller. There is an assertion that such an imposition adds something to the K that the buyers would not have chosen to pay for, such that the obligation was worth less to the buyers than
it would cost the sellers. This inference is incorrect because it disregards the impact of transaction costs, which may prohibit the buyer from negotiating the obligation into the K. (Read Duncans notes for detailed explanation) a. Imposing compulsory term has 2 effects: It changes incentives to alter behavior of insurance cos. It also forces consumers to buy something better at a higher cost forcing insured to buy protection against the insurer selling him out. Argument against this is that its wrong to force people to buy something (and insurers to provide something) that the insured wouldnt pay for on his own. b. The mere fact that its an adhesion K doesnt take away from this argument, because adhesion Ks still take into account consumer preferences when there are rival sellers offering rival adhesion Ks to numerous consumers. c. Two possible interpretations of a default rule of good faith in this type of consumer contract. There is no black letter rule as there are different standards in each state for good faith in insurance settlement; must know policy arguments. Three alternatives: 1) Liable in every case where they do no settle within time limits of policy. (SL) 2) Whether a prudent insurer without policy limits would accept the settlement? (N) 3) The duty of good faith in insurance contract duty to settle is no duty. (SL) Classic morality argument of fairness. Negligence would allow them to win in this situation. SL would cause insurance company to wimp out and would be very inefficient; refute that would not do so because will only take cases to trial that they know they can win. Will only do if the cost of the trial is more than the cost of the settlement. Will pass costs onto insured and employees of insurance companies (that would not be true if it is a competitive labor market). Warning about SL possibilities in the future. This is a policy consideration it is directed to the ( bar and ( bar. (b) still not over because of the disclaimer. Court basically says that the tort action for breach of duty of good faith in contractual relationship. Cannot disclaim duty as it is imposed by state in every contract. Recovery is not a contract recovery. In contract law it would be damages of money; here you get better damages under torts. Consequential damages beyond the payments and its interest. b. Refusal to Settle a Valid Claim i. Eckenrode v. Life of America Insurance Co.: Holds insurance co. liable for failing to pay life insurance claim where widow sues for emotional distress caused by their failure to pay. Money insurance not paid prior plus interest and IIED damages. 1. Cross elasticity of demand in effect of one product on the others. Same arguments as supermarket flip and fall. IIED cannot disclaim liability for intentional tort. Cannot bring up issue that consent to wrong when one has to consent because of statutory regulations or common law or does not consent because of them. 2. Employment Contracts a. Termination of an At-Will Contract i. Agis v. Howard Johnson (Mass 1976) waitress sues owner/manager of restaurant for infliction of emotional distress caused by summary dismissal when manager, seeking identity of persons responsible
for alleged stealing, began firing all waitresses in alphabetical order. Co- husband sues for loss of consortium. Can sue for infliction of emotional distress absent any attendant physical harm? Yes, but narrowly defined to protect against false claims, it requires 4 criteria determined by jury: 1) intended to inflict emotional distress or should have known emotional distress was likely 2) conduct was extreme and outrageous 3) actions caused s emotional distress 4) emotional distress was severe and such that no reasonable man could be expected to endure it Also, husband can properly sue for loss of consortium arising from wifes emotional distress. ii. Geroge v. Jordan Marsh (Mass 1970) Plaintiff sought to recover damages from defendant creditor and its agents for emotional distress resulting in two heart attacks allegedly caused by defendants' attempts to collect from plaintiff a debt incurred by her emancipated son. Nothing in credit card contract that protects her. No default rules restricting collection tactics. Argument that want debt collection to work because protects big group of consumers as we are paying for bad apples. The lower court sustained defendants' demurrer, and plaintiff appealed. Noting that the case was one of first impression in Massachusetts, the court rejected application of the Spade rule and its progeny prohibiting recovery for emotional distress caused by negligent or grossly negligent conduct when there was no injury to the person from without. Instead, the court held that plaintiff successfully alleged a new cause of action for intentional infliction of emotional distress, holding that a person could be liable when he, without privilege to do so, by extreme and outrageous conduct intentionally caused severe emotional distress to another, with bodily harm resulting from such distress, even though the person committed no recognized common law tort. The court reversed because plaintiff successfully alleged a new cause of action for the intentional infliction of emotional distress, and she was entitled to an opportunity to prove her allegations. Rockhill v. Pollard (Oregon 1970) Plaintiff, her daughter, and her mother-in-law were injured in an automobile accident. A passing motorist took them to be seen by the physician. At trial, plaintiff and the mother-in-law testified that the physician was rude to them from the moment that they met him and that he continually told them that there was nothing wrong with the daughter even though she appeared lifeless and vomited. The trial court granted a nonsuit at the conclusion of plaintiff's case. On appeal, plaintiff argued that she made out a prima facie case that the physician's outrageous conduct caused her severe emotional distress. The court reversed the judgment. The court held that to establish the tort of outrageous conduct in Oregon, the conduct had to have been outrageous in the extreme. Plaintiff was required to show that she suffered severe emotional distress as a result of the physician's conduct. Based on the evidence in the record, the court held that a jury could have found that the physician's conduct was outrageous in the extreme. Also, sufficient prima facie evidence was presented that plaintiff had suffered the requisite severe emotional distress. The court reversed the trial court's decision granting a nonsuit in favor of the physician at the conclusion of plaintiff's case alleging the tort of outrageous conduct. The case was remanded for a new trial. Changes Hurley v. Eddingfield. No contractual remedy here but IIED
iii.
iv.
Cartoon: The Brothers: Satire of how compulsory minimum standards laws may hurt the very class of people they were designed to protect. In keeping with Kennedys focus on distributive impact of background rules of law.
Kennedy, Note on Employment Contracts (see Samuelson, Economics, for basic economics concepts) (1) Law and economics analysis of distributive impact on employer/employee of compulsory good faith discharge obligation in at-will contracts. Distributive impact dependent on economic assumptions and moral calculus. (2) Effect on wages and employment. Impact on demand for labor depends on: 1) replacement cost of labor with other production factors 2) elasticity of consumer demand 3) elasticity of labor supply. (3) Argument that judicial intervention by good faith discharge obligation protects employees from gross inequality of bargaining power highly dependent on economic assumptions. Analogize to buyer-seller relationship: Horizontal supply curve (complete elasticity of supply). Entire burden of imposed obligation falls on consumer, intervention does not rectify inequality of bargaining power. Upward-sloping supply curve. Burden shared by sellers and consumers. Buyers (employees) receive benefits for less than it costs, but at expense of some consumers priced out of market. Monopoly/oligopoly. Again, burden shared by sellers and consumers. The Point: Consumers almost always bear some of the cost and sellers can rarely pass on the entire cost. (4) Moral calculus: some consumers are priced out of market, others required to buy an obligation they dont want, while marginal sellers are forced out of business by higher costs, and others lose profits and/or volume. (5) Kennedy then rejects the following arguments against judicial intervention/imposition of liability: entire cost passed on to consumers, reliance/surprise, freedom of K, judicial restraint, impractical/politically unfeasible. b. Model we have been talking about right now is freedom of contract v. regulating the contract. Workers compensation is the opposite. Across a very large part of the contractual role, we in pursuit of American values abolished freedom of contract 100 years ago in the law of industrial accidents. Employees in these accidents were assumed in contract default rule the risk of risks by other servants or others that could be seen despite negligence of employer. Epsteins position is that it is all wrong in workers received a premium for working under dangerous conditions and it was worth it for them. Safety precautions related to employee preferences. He likes strict liability everywhere but here in employment situations. i. Lots of consumer protection law is statute, contract law; much is torts. Torts law would seem to undermine the idea of freedom of contract. ii. Flopper If disclaimer had not been in there, what would the rule have been. Negligence in situations in which the seller is operating a service with risk to the buyer it is tort law. Defense of assumption of risk means that you were contributorily negligent or comparatively negligent and because you were aware of the negligent condition. (i.e. when realize the ice is too hard and go skate anyway then it is called assumption of risk. Meister says better to say contributorily or comparatively negligent) Continuing negligence in the face of
v.
negligence is negligence. Reasonable person would have stopped. (1) Argument that when customer engaged in activity there should be a default rule that even if no negligence the seller is liable (negligence to strict liability for injuries inflicted in the course of the sale or cause by product or premises). Price of ticket should include non-negligent injuries as well. iii. As a litigator first check into default rule when there are gaps, conflicts, and amibgiuties. If no rule, then litigate what the default rule should be. ( or ( argues that there is a special contract if the default rule goes against them. Now there is a second set of rule after the default rules. These apply to disclaimers that try to change the default rule. If the default rule is SL, tries to make negligence or no duty. If default is negligence, try to make it no duty. In the courts do not start off with a policy argument. Have to have formulation of default rule in the absence of the disclaimer. Then formulate default rules argue what precedence requires. Then say that disclaimer is not freedom of contract via precedence. (1) Suppose that locks at hotel malfunction. Now going to be an issue that despite the warnings. Unconscionabiity and duress if hotel will not bargain on terms if person comes in under dire circumstances. Different if coming in under normal circumstances and could decide to go somewhere else. iv. In chic culture, judiciary would see inequality of bargaining power is meaningless as it will see that no one is going to look into it. Also dont want bargaining in every consumer situation. Sophisticated judges will be trying to figure out policy involved. ( bar argues freedom of contract in disclaimers unless extreme and unusual circumstances. This is more important to ( bar than the default rules because this way can go around default rules. Social welfare argument that it is inefficient because forcing people to buy something that they dont want. Worse than standard contract would be unequal bargaining power, but usually it is the standard contract. Motives of protecting against competitors with lower prices and retaining market share. Cross elasticities of demands for products. Very strong motive to charge the smallest amount that they can. (1) Dorms you are a licensee. No restrictions on termination. Do not need to return your money. Medical treatment taken care of by health fee. Consequential damages of bad grades and not getting job you wanted. Do have bargaining power. Not fair to pay price of license and try to get a lease out of it. v. Freedom of contract imposes no duty and disclaimers when there are some duties with strong duty to read. Progressives want to replace with systems like workmens compensation a contractual employment situation. May also argue for elimination of causation requirement or even a criminal negligence law. Employment compensation important because of distribution, inadequate precautions, and now we buy the insurance because the employer would lower wages if paying for it. (1) Hypo: Conflict of interest between insured and insurance company and is settled in the contract. Settlement process in the contract favors the insurance company with disclaimer for claims not settled within time frame. a. Is the disclaimer valid? If so go to default rule and whether
b.
What is the default rule? Implied duty of good faith under general laws of contract law. ( argue that breach duty of good faith that they would not settle for $25,000 when there was a 10% chance of a $500, 000 award. If would win under default rule or if the rule is ambiguous and might be able to establish one.
3. Residential Leases a. Landlords Duty to Repair i. Simon v. Solomon (Mass 1982) tenant sues landlord to recover damages for breach of 1) implied warranty of habitability 2) implied covenant of quiet enjoyment 3) emotional distress resulting from negligent maintenance and 4) intentional infliction of emotional distress resulting from continued flooding of basement apartment by water and sewage despite numerous complaints. No physical harm was suffered. Can a tenant recover from a landlord for infliction of emotional distress, in the absence of physical harm, resulting from failure to maintain premises? Yes. Awards damages of $35,000 for claim 4) (applying Agis test for reckless infliction of emotional distress), $1,000 for claim 1), and attorneys fees. Claim 4) subsumes claim 3) (court does not rule on tort action for negligently inflicted emotional distress unaccompanied by physical injury) and claim 2) is vacated. ii. Restatement of Torts 315: General Principle (Special Relationships) There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless: a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third persons conduct, or b) a special relation exists between the actor and the other which gives the other a right to protection. iii. Kline v. 1500 Massachusetts Avenue Apartment Corp. (D.C. Cir. 1970_ female tenant, criminally assaulted and robbed in common hallway of apartment house, sues for damages landlord for failure to maintain safety of premises. Main entrance had no doorman, garage entrance generally unguarded, back entrance unlocked all night. Landlord had notice of similar past crimes, including similar attack on another female tenant in same commonway. Does landlord have a duty to protect tenants from foreseeable criminal acts by third parties? Yes. Where risk of criminal assault was foreseeable (probable and predictable) and prevention almost entirely within power of landlord, there is a duty of reasonable care in all the circumstances to maintain safety. Emphasizes special landlord-tenant relationship. vii. Note: Procession of Liability 1) Colleges and universities. Peterson v. San Francisco Community College (duty to protect student against criminal assault on campus in broad daylight given special relation between institution-student). 2) Common carriers. Lopez v. Southern California Rapid Transit District (affirms duty imposed by statute to exercise utmost care by common carriers).
3) Condominiums. Frances T. v. Village Green Owners Association (landlord liability for safety of premises extended to condominium board and its individual members) 4) Shopping malls. Ann M. v. Pacific Plaza Shopping Center (no liability of shopping mall to prevent rape of store employee b/c lacked high degree of foreseeability required, such as prior similar crime). viii. Bellow-Kennedy, Economic Arguments of Strict Liability for Landlord Breach of Implied Covenant Landlord Argument - Strict liability rewrites contract ex post and gives tenants something they didnt pay for. Landlord either will 1) shoulder burden or 2) pass on costs to tenants by higher rents. 1) Landlord shoulders burden: a) Landlord penalized unfairly b) Landlord forced to take needless and undesirable precautions (overinvestment in compliance) c) Abandonment of unprofitable buildings will only intensify housing shortage 2) Landlord passes on higher costs in form of higher rents: a) No redistribution from landlords to tenants b) Tenants forced to buy compulsory breakdown insurance they dont want (paternalism) c) Poorest tenants unable to pay higher rent adversely affected, increasing shortage for least well-off Tenant Argument - Landlord has no valid expectation to escape liability, everyone recognizes duty to maintain. a) Negligence standard would be impractical and lead to massive landlord noncompliance b) Landlord in best position to minimize future violations c) No overinvestment in compliance b/c landlord weigh repair costs v. damages (cost internalization) d) Costs to landlord are legitimate costs of doing business. No reason to believe such costs will make business unprofitable and lead to housing shortage. e) Tenants will receive benefit of insurance against non-negligent violations at less than its cost, since landlords will bear some of the burden. f) Legislative enactment of housing code violations implies non-waivable intent (paternalism). 4. Sale of Goods a. Privity: As Relationship to B Immunizes Her from Suit by C i. Introduction: 1) Privity No tort if no K b/w and seller. 2) Policy reason FR, too many claims. Privity would now be in proximate cause language. Now, test of foreseeability, directness (other ways to limit but for liability). 3) 2 possible rules privity (rule-like, still must show proximate cause) vs. proximate cause (more inclusive b/c always had to show this too)
ii. Getting Rid of Privity Who will Seller be liable to beyond K parties? 1) K law 1850 caveat emptor (only explicitly Kd duties). Development of sales law implied warranty of merchantability unless disclaimed, for purpose sold. 1950s extended diminished view of personal injury disclaimers, though still can do as is. 2) 3 modern K principles: Unless K else, implied warranty of merchantability. This warranty disclaimable, except for personal, physical injuries. Consequential economic loss from breach not covered (unless written into K, Hadley). Damages limited to expectancy of K. 3) Tort Law overtakes K eventually, people sue for personal injuries, even those enforceable in K regime, in tort. Since 1960s, rarely preferable to choose K. K had privity requirement, though soon extended implied warranty beyond immediate buyer (MacPherson). K temporarily better than tort b/c defective product easier to show than negligence. But Tort overtook w/SL privity gone. Tort now better than K implied warranty w/SL all need to show is defect, not what merchantability was, if fit for purpose. Plus, tort statute of limitations, lots of damages (pain and suffering, emotional harm), often non-disclaimable tort duty. But mostly no recovery for economic damages in tort either. K privity eventually relaxed; tort claim still better b/c SL. iii. Note: A case that involves the question of privity: 1) Ps try to sue under 3rd party beneficiary doctrine ( a K doctrine). (When K specifically intended to benefit a 3rd party, 3rd party, though non-K party, has legal rt to sue under K. it must be mentioned in K that ( or its group) are the 3 rd party beneficiary and has cause of action) 2) If fail, then sue under tort (under negligent std) to side-step the privity requirement. iv. Lead to the growth of products liability law: 1st period 1850-to early 20th C Winterbottom (privity prevented suit against remote seller; only against seller if contracted); 2nd period (1916) MacPherson (end privity, general liability for negligence for remote seller with no K relationship); 3rd period Escola (SL) Restatement 402A: SL due to manufacturer role market power, capacity to insure, ability to internalize accident costs. 4th now (defective design/duty to warn cases post-Restatement (1965); Recently: expand liability through negligence law (not SL)). Growing trend favoring Ds or at least the expansion of liability has slowed down. v. Winterbottom v. Wright (UK 1842) Driver has no tort claim for latent defect against coach-maker; maker and post office have K; no privity w/ driver. Maker not liable to all who use car, or all injured will sue. Contain K liability. Driver may be able to sue PO. Accepted in US at the time. Huset (1903) US version tort liability only to those w/K obligations. Fixed sphere of liability with limited Privity exceptions
imminently dangerous, invited by owner, reasonably anticipated unknowing victims of imminent danger. vi. MacPherson v. Buick Motor Co. (NY 1916) P injured by manufacturers negligence. (A tort claim!); is foreseeable. Should there be tort liability despite K? Yes. Car manufacturer liable for preventable, hidden defect for reasonably foreseeable user and danger, even if no K. Underlying principle is foreseeable user, danger (initially tracked privity). Imminently dangerous not just inherently destructive. If reasonably certain to cause danger, and reasonably certain to be used by others. Dont decide liability of component part maker. Duty from law, not K. Here, D knew car dangerous and that dealer would resell. Dont overrule precedent, which makes seller only liable to buyer (K). Same as horse/buggy case! (1) Big case. Began end of privity rule. Analogy to bad food, poisonous drug. Extended to component part makers too. The exceptions devour the rule: Exception used to be only applicable to poisonous drug and food cases. Now set default rule against the manufacturers negligence. viii. In Evaluating imposition of duty: 1) Default rule (waivable) vs. compulsory terms ( non-waivable) 2) Effects of imposing the rules on either side a) information transfer b) efficiency ( insurance/ distribution effects) c) incentives/ deterrence created Liability K party, the city gov, doesnt have identical interests as the homeowner, having myopic interest only for the electoral term not for homeowners true long-term interest. ( but why is Court better than democratic body! ) Default rule should be set against water-company, not homeowner b/c the water company will have the motive to generate information and TRANSFER it to the town as to why they should pay for the extra liability or not. Solution to price of info transfer. No Liability creates inadequate incentives for water company to take precaution. No liability Free market solution/ freedom of K: Inefficiency, paternalism! Institutional role ( judges know less than the parties.) want to create incentives for home-owners to buy their own insurance. K between town and water co. should be the ultimate way to spread risk, allocate liability. Town should have represented the homeowners interests if did not K for 3 rd party liability, signify that the city doesnt want to pay the extra for the insurance. In Moch, the K price doesnt reflect that the K parties want home-owners to have cause of action ( which would be a much higher price.) They K for no duty for fire damages; It is not for the Court to take the role to redistribute money. Caveat emptorif homeowners want the protection, they should buy the rt to sue under 3rd party beneficiary. Added cost of the insurance will inc water price and drive some homeowners out. Private insurance is a better risk-bearer. Everyone pays similar amt for water ( less
responsive to wealth) but the insurance is wealth dependant ( you force the poor to insure for the rich);
b. Basis of Products Liability i. Start with the late 19th C. Privity rule governs. The privity rule was that if you manufacture goods and sell them, you will have a contractual relationship with whoever buys the goods (governed by the laws of sales of goods). No tort liability with respect to injuries caused by the good to anyone. Series of case law developments through which the no duty rule is relaxed. Eminently danegerous exception: there are some products for which you will be liable in tort for injuries to people other than the buyer (ex. scaffold). Many early cases were foodstuffs cases. MacPherson v. Buick: Cardozo makes the exceptions the rule. Cardozo says that instead of the normal privity rule, if the product is sold in a condition that makes it unreasonably dangerous, the negligent manufacturer is liable in tort to the injured user, including one who buys it from a retailer. The plaintiff must be foreseeable (duty to a foreseeable plaintiff). No indication if this is disclaimable. Shift from negligence to SL: begins with Traynors concurrence in Escola v. Coca Cola. The majority goes with res ipsa loquitur (negligence through circumstantial evidence). Traynor argues that this has become a fiction. When the bottle explodes, there is no presumption that more likely than not the manufacturer was not negligent. Traynor says reformulate the doctrine. 1963: Traynors concurrence adopted (Greenberg). Duty becomes non-waivable. Its not open for the seller to declare no liability. Bystander liability also not waivable. Historical situation was that if you were a victim of a defective product (Bidderbottom) could sue the seller in contract law. The success or failure of the suit depends on the default rules in the sales contract between buyer and seller and the attitude of the system towards disclaimers. In contract the laws of agency and third party beneficiaries only allows you to sue seller and not manufacturer. Sales of goods are as is in contract law without warranties of any kind. Caveat Emptor is the default rule. There is no cause of action even for recission without any warranty. When suing in tort there is a rule that there is no tort action for defects in product against anyone except the seller. Contract and tort streams are developing in the same directions sometimes one side will be more favorable to the consumer. Tort wins the race at the end. Today tort liability is the basic liability for defective products. Only exception where contract rules still apply are sales of goods between strong economic parties where economic damages are at issue. Classic examples of liability of trespasser, negligence infliction of emotional distress blanket no duty on contract and tort sides. Starts with development of many exceptions. But when there are many exceptions the rule has become a less formally reliazable than a general standard. Then there is a move from general standard to SL to bring back formal realizability. Good faith UCC requirement gets us away from
caveat emptor. It is a rule of SL with respect of breach. Failure of delivery of gifts that are merchantible are not excused by no negligence. UCC permits disclaimer of all obligations and a sale as is which would resolve the disclaimer issues to allow them for all issues except for another section which says that a disclaimer of liability for physical injuries caused by product defects is unconscionability per se. Offers three alternatives of what to get rid of. Torts RS 402. Compare with contracts revolution. ii. Escola v. Coca-Cola Bottling Co. of Fresno (Cal. 1944) Escola was injured when a coke bottle exploded in her hand. She relied on RIL to prove D's liability for her injuries and was awarded a jury verdict. Coke's expert witness testified that pressure tests performed on new Coke bottles were "nearly infallible." D had only been testing new, not reused, bottles--unless the reused bottles had visible defects. D appeals P's application of RIL.Whether the D's relinquishment of control of the instrumentality prior to the injury prohibits the application of RIL. AND Whether RIL may still apply even if the accident might ordinarily occur without negligence. Just because D gave up control of the bottle prior to the injury, this will not prohibit the application of RIL. And RIL may still apply even if the accident could occur without negligence. RIL can be used so long as D had control at the time of the negligent act if first proves that the condition of the bottle had not changed since it left D's presence and that exercised care in handling it. It must also appear that the accident would not have occurred without negligence. Concur (Traynor) A manufacturer should be absolutely liable when an article that he places on the market knowing that it has not been inspected is defective and causes injury. The manufacturer's negligence should no longer be singled out as the basis of a P's right to recover in cases like this one. A manufacturer incurs an absolute liability when an article that he has placed on the market proves to have a defect that causes injury. The manufacturer is liable for all physical injuries, including pain and suffering. Liable for all injuries caused by a defect in the product that makes it unreasonably dangerous to the consumer. Liability irrespective of fault when a defect in the product causes the injury. Retailers should also be under strict liability to the customer, as the implied warranties of fitness for proposed use and merchantable quality include a warranty of safety of the product. Public policy requires that the buyer be insured at the seller's expense against injury. But considering the inefficiency of litigating the subsequent claim of the retailer against the manufacturer, it is better for the injured to just base her action directly on the manufacturer's warranty; one lawsuit is better than two. The economy has changed; there are now tons of intermediaries between producer and buyer. It's unfair to allow a manufacturer's obligation to the consumer to be escaped merely because the product has gone through the hands of a few retailers who aren't even able to test the product. Manufacturer's liability should be defined in terms of the safety of the product in normal and proper use, and should not extend to injuries that cannot be traced to the product as it reached the market. Loss minimization argument: The manufacturer is in the best position to minimize the losses arising out of the general use of its product. Public policy demands that
responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. The manufacturer can anticipate some of these, but the public has no way to guard against them. Loss spreading argument: The risk of injury can be insured by the manufacturer and distributed among the public as a cost of business. Risk-spreading rationale for strict products liability. Elimination of proof complications argument: Better to circumvent RIL, because it is very difficult for an injured to overcome a D's "clear, positive, uncontradicted" proof of D's non-negligence. (In other words, once the D has shown proper care, negligence cannot be inferred.) Most injured P's are not in a position to refute such evidence or identify the cause of the defect. Anyway, if RIL gives rise to a finding of negligence against the D, it can approach SL for the D, too. Can be given a very narrow or broad interpretation, depending on how hard it is for the manufacturer to refute the claim of negligence. Where the manufacturer can prove that they used the most up to date manufacturing techniques, and to correct the 1/1000 bottle they would have to charge a lot more per bottle, and therefore don't represent negligence by the Hand formula, the employer used to be able to get off. Now, under RST 2, even this won't let the manufacturer off the hook. ii. Kennedy response to Escola: (class lecture) (1) Escola concurrence by Traynor marked the beginning of many elaborations leading up to the "big event" of RST 2's formula. (2) For something to constitute a defect, there are two different types: production defects and design defects. Production defect is a deviation from manufacturer's own specifications; design is that there is something wrong with the manufacturer's specifications even though there were no production errors. (3) RST 2: if there's a defect, then there's liability regardless of whether the manufacturer was at fault for the production of the defect. So even if it wasnt negligent to sell the product with the defect, there is still liability. iii. Mccabe v. Liggett Drug Co. (Mass. 1953) P purchased a coffeemaker from D. used the coffeemaker according to the directions, but it exploded nonetheless, burning P. sued, arguing that the item was not fit for the purpose for which it was sold. now appeals from a verdict for D. This case is pre-UCC. Whether the coffeemaker was of merchantable quality, thus barring a SL claim. No. To be merchantable a product must be reasonably suited for ordinary purposes for which those goods are sold. Merchantability is a question of fact for the jury. Any coffeemaker that can't be used without the likelihood of an explosion is not merchantable. had no duty to inspect, as this defect in design would not be obvious to the ordinary person. The coffee maker's defect was a design defect. If 1/1000 machines had notches that were too small because a cutter didn't use the machine right, then that would be a production defect. A third basis of products liability is inadequate warning. If the coffee maker failed to put a warning of possible scalding, and it were decided that the manufacturer did have a duty to warn, then the could have proceeded on this action, as well. The current trend is to ask whether you need to warn. If you do need to warn (=product without warning creates an
unreasonable risk of injury to the consumer), then you are liable regardless of the reason for which you didn't warn. iv. THE RESTATEMENT, 402A This dominates the law in almost every state. Special Liability of Seller of Product for Physical Harm to User or Consumer: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if: (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. Caveat: The ALI expresses no opinion as to whether the rules stated in this Section may not apply (a) to harm to persons other than users or consumers (b) to the seller of a product expected to be processed or otherwise substantially changed before it reaches the user or consumer or (c) to the seller of a component part of a product to be assembled. v. Kennedy comment: 1) If coffee maker was designed so that it produces a single catastrophic failure every time it is used, then we say it is ineffectively designed. This is easy (=production defect). 2) But much harder for design defects that are not certain to lead to injury, except for those defects that from time to time the design leads to injury. So one usage per million will cause a scalding injury. For this, courts used the second part of the RST 2's test. Requires that there be a defect that renders the product unreasonably dangerous. Use that to develop a cost benefit analysis instead of a SL analysis for the occasional injury with usage. 3) For this subcategory of design defect cases, there is a re-importation of a de facto negligence standard into the SL system. If design defect predictably causes injury, then design defect will not allow a defense. But if it is only the occasional injury, (especially if associated with product misuse), then the courts will apply a cost-benefit analysis to the design. vi. List of areas where core doctrine needed clarification (wasn't clear from initial formulation): 1) SL law versus contractual law of sales under the UCC: 2) Basic sales law background was based on caveat emptor. Used to require warranty of merchantability, but to get it the buyer had to show that that was part of the bargain, that words were exchanged to induce reliance at the time of the sale. 3) In the UCC, warranty of merchantability is the default rule of every sale, so that now if you don't want merchantability then it must be disclaimed. As for the question of physical injuries caused by defects, UCC didn't take a position as to
whether a seller could disclaim liability. Most jurisdictions adopted a rule saying that disclaimers of warranties in sales were permissible except the disclaimer of warranty for physical injuries are prima facie unconscionable. 4) Development of sales law that is parallel to development of tort law. a) Warranty of merchantability is a SL doctrine. Defense of "no negligence" is not available to the breaching promisor. For physical injuries caused by defects, though, tort law quickly displaced sales law. Rare today for a PL suit to be brought under the UCC. Longer statute of limitations in tort than in contract/UCC. More $ available for pain and suffering in tort. In tort, also no limitation of Hadley v. Baxendale. b) Does that render the warranty of merchantability a dead matter? No. In the absence of a disclaimer, it is a basis of recovery of non-physical injuries. Can't recover for economic loss unless you use the warranty of merchantability. Undisclaimable, unlike the strict tort action. c) Under UCC, default rule is an implied warranty of merchantability. This can be disclaimed. ("as is" sale.) But it also attempts to disclaim liability for physical injuries caused (in the absence of a disclaimer?) d) Disclaim injuries for economic harm. vii. Chain of liability: two types of privity issues Buick v. MacPherson: manufacturer is liable to a consumer who buys product from a dealer. Even though no direct K relationship between consumer and manufacturer, manufacturer is liable. From there, two sets of possible expansions: 1) Down the chain expansion: what about the spouse of the buyer? Household members of the buyer. OR---bystanders? May they sue? Yes. Going down the chain, you can recover. 2) Up the chain expansion: subcontractors or suppliers of the manufacturer. If what's provided by the seller is a service, then are the manufacturers of the things used in the provision of the service liable? Going up the chain, doctrinally conflicted whether you can sue or not. People who have contributed to the defect of the product-unclear whether you can sue or not. I.e. American Airlines case. Foreseeable versus foreseeable damages issues here, too. (re: bystander liability. Like Palsgraff.) viii. Defending the right to K out of duties: how regulatory the courts ought to be with consumer contracts: 1) First case: Regulatory advocates have argued as such: say that a basic difficulty with the K law treatment of this topic is the failure to put together the K of adhesion analysis with the unconscionability analysis. If you have default rules and don't let the parties disclaim them, you have to deal with the fact that someone has to pay for the protection. If you want to protect the consumer against certain measures, it will increase the cost of credit. a) Counter: hard to define unconscionability. If you decide to regulate, not sensible to do so without calculations of who's going to pay, and how much. Possible definitions of unequal bargaining power: take it or leave it terms; no bargaining power. Only choice of the buyer is to take it or not to take it. But dickering over terms is highly exceptional, so this is an incredibly broad test. Moreover, if there is competition among sellers, it appears that there is a viable, reasonable
selection set even if there is never any negotiation. So no dickering does not necessarily mean that there's no choice. 2) Second case: Inequality of bargaining power in monopoly situations. This may be rampant, but this does not tell us which duties we want to force the sellers to undertake. DK feels this second strand/case is stronger than the first. 3) Third case: buyers won't acquire information about the comparative values of products. They'll go on buying a product with bad terms attached because they don't have information. So buyers are at the mercy of sellers. So some intervention is justifiable on the grounds of information asymmetry. a) Counter: doesnt tell us which terms to impose. ix. DK proposes in the Maryland article: assume consent doesnt work as an explanation. When should you make consumers have to pay? 1) First, do it when you think it will produce a good re-distribution of income; will be good for poor buyers and shift costs. (buyer-seller distribution or intra-buyer) 2) Second, do it to be paternalistic. Take the choice out of the buyers' hands, because they are not informed anyway. Overrule the market choices of consumers.
c. Product Defects i. Difference between design defects and manufacture defects. Manufacturing defects are deviations from the specifications of the intended character of the product. Bubbles in glass make glass weak and may explode. If manufacturer knows that. Design defect if it was a bad design even if it lives up to manufacturing specifications. No liability Liability Consumer expectation of Safety Strict Liability
Underlying choices start from idea that at a minimum if consumers have well defined expectations about what the product will or can do, how safe it is and how it should operate, and those are deviated from because the design does not do what consumer would expect. Barker v. Lowe. Tradition of warranty of merchantability (default rule that all sales have; in the market of this product there is an expectation of what this product should and should not do when normally used). Could leave it at this with minimum of merchantability and then can add: Second branch of negligent design. So even if cannot show consumers expected a certain type of performance, could still recover. Unreasonable design. Cost benefit analysis. Costs of the design compared to the benefits of the design are such that we would say the design was negligent or unreasonably dangerous and that requires us to take into account alternatives. Compares benefits and costs of product to the consumer, straight cost benefit analysis. Get product off the market. Second cost benefit analysis that it is not bad to sell this particular product but that it could be improved with an alternate design at a cost far less than the cost of the current product. Cost benefit analysis of alternative designs. Choosing burden of proof is like res ipsa loquitor because moves us closer to strict
liability with burden on (. Placing burden on (, which has difficulties of proof of negligence, would underdeter (. Hohfeld rights of security (bodily security) and want to make sure it is justified so want to switch burden to . ii. Pouncey v. Ford Motor Co. (5th Cir. 1972) sues automobile manufacturer for damages for permanent facial disfigurement caused by radiator fan blade breaking off and striking him in face while putting in antifreeze. The steel blade had many inclusions (non-metallic impurities) which caused weakness. Can manufacturers negligence be inferred from circumstantial evidence where there is direct evidence of actual defect in the product? Yes. Jury may infer from evidence of steel blades excessive impurities manufacturer negligence in marketing defective radiator fan that could reasonably be expected to cause injury. iii. Note: Res ipsa loquitur in products liability cases Fact finder may infer manufacturer negligence in construction defect cases without specifying particular defect responsible for the harm where excludes other causes of injury not attributable to . Proposed Third Restatement 3: Allows res ipsa loquitur in construction defect cases brought under 402A. Welge v. Planters Lifesavers Co. ( allowed to sue for injuries suffered when glass peanut jar shattered in his hand by showing that jar sat undisturbed prior to accident). iv. Barker v. Lull Engineering (Cal 1978) injured at construction site while operating high-lift loader alleges defective product design. Lower court ruled for given instruction for strict liability based on unreasonably dangerous standard. What is appropriate standard for defective product design? For . Product defective in design if 1) fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or 2) benefits of challenged design dont outweigh risk of danger inherent in design (risk-utility test). Extends Cronin by rejecting unreasonably dangerous standard of Restatement 402A in design defect cases. Burden of proof on once makes prima facie case that injury proximately caused by products design. v. Wilson v. Piper Aircraft Corp. (Or. 1978) Wrongful death action against airplane manufacturer for defective design due to engines susceptibility to icing. Does have burden of showing reasonable alternative to defective product design? Yes. Rejects Barkers shifting of burden of proof in product design defect cases. has burden of proof of showing reasonable alternative design. Standard adopted by Proposed Third Restatement. v. Bruce v. Martin Marietta (10th Cir. 1976) Product design defect case against manufacturer of airplane seats. In setting product safety standards, is state of the art measured at time product entered stream of commerce or at time of accident? State of the art for product safety standards should be measured at time product entered stream of commerce. Crucial test is expectation of the ordinary consumer.
vi. OBrien v. Muskin Corp. (Mass. 1983) sues above-ground pool manufacturer for design defect in using slippery vinyl lining which caused s hands to slip when he dove into pool and thereby hit his head. Can sue for product design defect where current design is state-of-the-art and in absence of alternative, safer design? Yes. State-of-the-art is not an absolute defense apart from risk-utility analysis. Risk-utility calculus does not require to prove existence of alternative, safer designs. BUT this view is rejected by Proposed Third Restatement and Wilson (see above). vii. Volkswagen v. Young (Md. 1974) The question certified by the order of the lower court was whether or not the definition of the intended use of a motor vehicle included the vehicle's involvement in a collision and, thus, whether a cause of action was stated against the manufacturer in breach of warranty or negligence or absolute liability by allegations that the design and manufacture of the vehicle unreasonably increased the risk of injury to occupants following a collision not caused by any defect of the vehicle. The court concluded that an automobile manufacturer was liable for a defect in design, which the manufacturer could have reasonably foreseen would cause or enhance injuries on impact that was not patent or obvious to the user and that enhanced the injuries in an automobile collision. The complaint was sufficient to set forth a cause of action in negligence under Maryland law. Consequently, the tort liability of a manufacturer or supplier of a motor vehicle for a defective design, which enhanced injuries in a collision, depended upon traditional principles of negligence. The court entered judgment in favor of the mother and the widow of decedent. viii. Proposed Third Restatement 2, comment d (Standards for design defect cases) Factors in determining reasonableness of alternative design: 1) magnitude of foreseeable risks of harm, 2) nature and strength of consumer expectations, 3) effects on costs of product, 4) effects of alternative design on product function, 5) relative advantages and disadvantages of proposed safety features, 6) product longevity, 7) maintenance and repair, 8) esthetics, and 9) marketability. ix. Question of what default rules will be in the absence of explicit contractual liabilities for design of product (how we define warranty of merchantability and how we define the tort regime that applies to the accident). This basic question gets argued out on the assumption that parties have not explicitly argued the risk in the contract. Made a Coasean Errror! If there is perfect information and a costless legal system that perfect calibrates losses to damages and freedom of contract legally without nay transaction costs, why then it should not make any difference whether we adopt no liability or Barker (( burden). Perfectly informed consumers in competitive markets will pay prices that reflect their willingness for safety. Coasean error to assume moving from no liability to Barker rule.
Respond that it is correct to point out a Coasean error but the assumptions are not valid; using realistic assumptions it will make a big difference which form we adopt. Lawyer would respond that information asymmetry is in valid because there is a strong motive for the manufacturer to give out information. Legal system is broken not because ( cannot get lawyers but because trial lawyers convince gullible juries to give out massive awards. Not likely to be a highly determinate calculus. The sides will very often neutralize each other especially if they are equally skilled in these arguments. There is not empirical data and are likely to argue to the draw. Intuition is important. Quickly the argument will shift but if lawyers do not understand these arguments then they will lose out early on. The further one pushes the economic arguments the more complicated but it is an important rhetorical tool. In the history of development of consumer protections doctrines, there is the foreground of immorality of hurting consumers but background of a redistributive model. Will charge more and people will not buy as much. Respond that driving up prices is hurting the people we are trying to help. When the price goes up it goes up because of payouts to consumers under the new liability. Once we make a high standard nondisclaimable we expect a different outcome. Respond that consumers are actually getting protections and costs are borne by several different areas. Maybe consumers dont appreciate the protection but it is good for them and they may have bad judgment or assymetrical information. Respond that it is paternalism. Respond that paternalism is okay. People who are forced out of the market should be out of it anyway. Its better than buying a dangerous product. Just buy a less expensive burden. If on the border between product and no product better off not purchasing a dangerous product when they have such little money. [Can you argue economics and morality in the same token?] The expansion of consumer protection, make it a compulsory term, limit manufacturers defenses produces significant cross subsidies from good people to bad people. Shift from hurt the people trying to help. Careful users should not have to pay higher prices for foreseeable misusers to be compensated. Also a moral hazard argument that once we create this through compulsory terms we have the problem that people may now use it more carelessly because they think they will get compensated if they get hurt. Also people fake injuries. Arent the careless already behaving with a moral hazard? Careless users are not responding to liability in should people be paying more in order to compensate him? This is not a moral hazard argument it is about cross-subsidization.
d. s Conduct i. Daly v. General Motors Corp. (Cal. 1978) Decedent forcibly thrown from car and killed when car struck metal divider. alleged defective door lock design forced door open during collision. car manufacturer showed that decedent did not use seat belt or door lock and was intoxicated at time of collision. Should comparative fault principles be applied to strict products liability cases? Yes. Extends comparative fault principle (here termed equitable apportionment of loss) expressed in Li v. Yellow Cab to strict products liability actions. Abolishes separate defense of assumption of risk, which is merged into comparative fault. BUT see dissent. Dissent Comparative negligence principles have no place in strict products liability, mixing apples and oranges. Should retain assumption of risk as complete defense to liability (e.g., employing power saw to trim fingernails). ii. Proposed Third Restatement, 7, comment d (Comparative fault in products liability) All forms of s failure to conform to applicable standards of care should be presented to the trier of fact for the purpose of apportionment of liability between and product seller. iii. Messick v. General Motors (5th Cir. 1972) , continuing to drive s car after repeated trouble with steering mechanism, had car accident. What is appropriate standard for assumption of risk defense in products liability cases? Held for . Continued use of car was not both voluntary and unreasonable as assumption of risk defense would require. iv. LeBouef v. Goodyear Tire & Rubber Co. (5th Cir. 1980) Decedent bought sports car capable of going 100 mph. s tires tested only for speeds of 85 mph and car manual gave insufficient warning about risk of tread separation. Decedent, intoxicated at time, killed when car veered off road at speed of 100 mph. Should manufacturer be liable in products liability for s foreseeable misuse of product?Yes. Sports car capable of going 100 mph was a reasonably foreseeable use and required duty to provide adequate warning of tread separation at high speeds. (Lower court rejected contributory negligence and assumption of risk defenses, holding that intoxication was not contributory cause.) v. Proposed Third Restatement, 8 (Contracting out of products liability) Disclaimers and limitations of remedies by product sellers, waivers by product purchasers, and other similar contractual exculpations, oral or written, do not bar or reduce otherwise valid products liability claims for harm to persons . . . It is presumed that the lacked sufficient information, bargaining power or bargaining position necessary to execute a fair contractual limitation of rights to recover. NOTE: Does not apply to cases of purely economic loss.
IV. SOCIALIZATION OF RISK A. NO FAULT AND THE SOCIALIZATION OF RISK 1. Compulsory insurance scheme: It displaces the tort system partially: eliminate pain & suffering claims, reduce cap of recovery, reduce types of claims recoverable but can sue separately in severe injury or purchase other insurance. a. 2 types: i. 1st party payer: exist in many jurisdiction for auto-insurance: as condition of registering car, have insurance to cover injuries to yourself (passengers in the car, family members, pedestrians, and other who drives your car). ii. 3rd party payer: proposed in 1960 but never adopted. iii. Note: 1st party reduces your incentive to take care of others it reduces your tort obligation to other people; Economists predict the scheme encourages careless driving. Response: in auto context, primary deterrence for negligent driving is not simply tort liability, but the inconvenience and pain involved in accident; there is no empirical evidence to support either side. b. Elements: 1) Reduction of your vulnerability to be sued in tort but also reduced your ability to recovery injury from others 2) You can still have other forms of insurance: health, catastrophic insurance, or higher coverage; 3) In product liability or medical malpractice context: no-fault compulsory liability scheme would require all sellers ( healthcare providers) to purchase adequate insurance for the products ( medical treatment) you sell 4) Will it induce purchaser/ patient to be less careful? DK: you can avoid the perverse incentive by increasing assumption of risk duty and other mechanisms. 5) This 3rd-party scheme has not been adopted by any state ( for medical & product liability). a. b. c. Other criticism of compulsory insurance: moral hazards compulsory scheme requires everyone to buy insurance increases the cost of owning the car. Distributive consequences: Insurance pool: Private insurance has often taken account of different exposure to risk base on various factors, such as geographic location, economic status of the insured; if strong gov. regulation forbids differential treatment of the poor ( by fixing a lower than actual rate for the poor), create crosssubsidity for all of us to bear cost for those neighborhoods. (or women subsidize mens driving.); insurance pooling exist in health insurance, home-owner insurance systems currently. Red-lining = w/ holding insurance or home-loan to poor neighborhood. i. Note: justification of pooling home-owner insurance: to make sure that insurance is available to the poor so they will not be further deprived ( poor faces higher risk & less insulated to the impact of accident). Activity level & safety precaution problem.
2.
d.
3. Defense of compulsory non-fault insurance in product liability
a.
Conservative crique: inefficiency, distribution ( hurt the poor), & paternalistic ( force them to buy things they dont want. b. Liberal defense: ( for paternalism) 1) Paternalism is propelled by the motives to benefit the poor & to protect them against myopic assessment of risk & benefit. 2) DK wants us to acknowledge and accept the fact that paternalism is pervasive in every aspects of our law system. ( while paternalism has negative connotation, DK believes that we should come to terms with the fact that it is needed ( see his Maryland Article.)) a) Most consumers will not acquire the level of information necessary to be true free-market bargainer with makers; consumer as a group cant adequtely defend their interests. b) Distributive consequence is desired c) Absence of this scheme, will result in perverse incentives for manufactures to lower safely level 3) Emperical consequences if no protection: a) consumers will disclaim tersm w/o knowing the consequences b) encourage products that are unsafe that should have never been made c) poor, uneducated consumers as a class hurt far more than the rich educated since the products they consumed are more likely to be made unsafe 4) It is efficient: wealth care maximize for the market; 5) It doesnt hurt the people who they try to help: $ saved from harm >> money paid for these insurance 4. Automobile No-Fault Insurance: Old concepts of no-fault pay for insurance in fare, see company as insurer not wrongdoer. 1932 3d party no-fault system, some exceptions. 1960s 1st party no fault auto insurance. 5. Keeton, Compensation Systems and Utahs No-Fault Scheme : No-fault (1st party); Liability insurance (3rd party). Now, almost all auto accidents compensated. Periodic benefits, based on actual losses. Partial tort exemption. Look at harm, not fault (fault can affect premiums). Some get fault compensation too (preserve fault-based claims to some extent, serious injuries). Tort system currently helps less injured more than badly injured no-fault allows for better treatment of severely injured. 6. USDOT, MV Crash Losses and Compensation in US (1971): Fault system excludes deserving victims, too little protection, expensive. Better is privately-run 1 st party system giving benefits to all. Victim deals w/ own insurer less fraud, better risk assessment, all get some recovery, allow supplemental benefits by volunteering, waiver of minor benefits if desired. 7. ABA, Auto No Fault Insurance (1978): Tort system unfairly critiqued as uncomprehensive its not meant as insurance system. Other compensation outside fault tort system nearly all are compensated. Deterrence only w/fault-based system. 8. Epstein, Auto No-Fault Plans (1980): Most no-fault plans get universal coverage by compulsory purchase. Allow individual choice as to nature/type of benefits. Get rid of faultbased liability, but dont force insurance not wanted.
9. Pinnick v. Cleary (MA 1971) No- fault auto statutes limiting recovery right in tort for injuries by negligent Ds are constitutional. Certain, prompt recovery, surrender only minimal damages for pain/suffering. Pain/suffering exception for certain injuries meeting minimum $ amount. Pain and suffering $ traded for certainty. No vested rights in old law. DP test rational relation, yes. Extra test Reasonable and Adequate substitute. Yes, still recover, just alternative method lower rates, universal coverage, good deal. Negligence not moral guilt. Notes: 1st big approval of no-fault. Strong presumption for constitutionality of economic legislation. Usually state constitution problem. 1st party compensation. Lots of variety of plans, hard to say how theyve done. Increase in careless driving, maybe, but also more defensive driving. Quebec showed deterrence of tort liability. Coverage disputes not as bad as workers comp. What if hit right after exiting covered car? Some add-on states allow tort actions, others have tort threshold, others have verbal threshold disfigurement required. If $ threshold, Ps inflate costs. Verbal much higher. 10. No-Fault Insurance for Medical and Product Injuries : Allow companies to elect no fault how do they inform consumers? 11. Epstein, Medical Malpractice: The Case for Contract, No-Fault: Still need negligencetype determination in medicine (to see which harms from pre-existing condition, which from treatment, which compensable). Shift to no-fault will increase admin burden to find coverage limits. Fault wont be 1st inquiry, but pile of claims will be weeded through w/ fault-looking damages. One test: Avoidable, averse consequences of treatment. But odd incentives for doctors in no-fault? 12. Weiler, The Case for No-Fault Medical Liaibility : propose no-fault medical liability: compensation by hospital ( rather than dr.) for disability caused by their medical treatment, irrespective of negligent. Periodic compensation for actual financial losses determined by a specialized tribunal. Problems: Will be hard to tell which are compensable, but can use specialized, expert tribunal. Use policy causation (what should have happened) versus factual causation (what did/ might have happened). But to avoid making the scheme general social insurance for diseases by specify what Should have happened narrowly and only diseases that are curable by reasonable care thats negligence/fault-based standard! Note: No fault has been allowed in some states for some grave medical injuries (obstetrics: babies permanent injuries). In practice, since compensation bet/ no-fault & tort remedies differ so much that lawyers often delay in claims to see if disability permanent or not ( if not permanent, tort). Consequently, hard to anticipate the eventual payouts from the fund and to set tax; hard to evaluate. 13. New Zealand Plan: Almost all accidental ( all non-sick accident: e.g. auto accidents, product injury, intentional torts, criminal assults) personal injury & deaths covered by insurance, w/ no attribution of fault. Jurstification: Negligence seen as lottery new system
makes it less random and no reason to just protect workers or to protect them only during work(Self-employed and housewives deserve coverage)everyone and anytime. Principles ( goals): community responsibility, comprehensive entitlement ( covery every citizen), complete rehabilitation, real compensation ( income-related benefits for income loss, payment throughout the whole period of recovery), administrative efficiency. Focus on injury, not cause; Cost, but in past, minor claims have taken away from more serious ones. Exclude sickness/disease. Some industrial diseases, deafness ok. Immediate compensation. Passed in 1972 soon extended to abnormal medical misadventure ( both malpractice & mishaps (bad outcome despite reasonable care)). Needed to carefully define what bad outcomes are compensable to limit the program. Some negligence element for borderline cases. Very costly!
Rules Review a. Liability: In intentional tort, the intent is the intent to do the act, not to cause consequences of the act. You are liable in intentional tort if you commit an act that intentionally invades a LPI. Omitting an act is not a tort generally, no duty to act to protect interests, only a duty not to invade interests (there are, of course, exceptions). i. Foreseeability of consequences: if you intended to commit the act, you are liable for even unforeseeable consequences. ii. Intent to harm: doesnt matter so long as you intended to commit the act that invaded the interest b. Defenses i. Insanity: generally not a defense in intentional tort (McGuire v. Almy) not clear what rule is for unintentional tort at this point. ii. Infancy: children are liable for their intentional torts if they can intend the act iii. Consent iv. Duress: generally not a defense since you still intend to do the act itself, even under threat of death v. Mistake: you still intended to invade the property, even if you thought it was yours vi. Official Privilege vii. Self-Defense c. Remedies i. Damages: in intentional tort can recover for unforeseen and unintended harms caused by the act. ii. Injunction: See RST 936 (below) d. Trespass: Any unauthorized entry onto anothers land. Intentionally entering someone elses land constitutes a trespass, even if you are mistaken about ownership or under duress. LPI = possession, ownership of land i. Caveat: If you are physically carried onto the land against your will by someone else, you are not guilty of trespass since you did not intentionally commit the act of invading someone elses property. e. Assault and Battery: an unauthorized intentional touching or causing a contact with the body of (sometimes referred to only as battery). LPI = bodily integrity/absence of touching f. Conversion: requires exercise of substantial dominion over anothers personal property (real property falls under trespass. LPI= possession, ownership of personal property i. Personal property is divided into 2 categories: chattel and intangible property ii. Liability exists even if there is mistake as to ownership; serial converters can both be held liable, but can recover only once. The reason is that if goods are acquired by
force, the seller does not have title and so cant convey what he doesnt have and thus the subsequent purchaser is also a converter. iii. Remedies 1) Market value at time of conversion plus interest (Trover) 2) Replevin/Claim and delivery: get actual property back iv. Exceptions 1) UCC provides that if goods are entrusted to the possession of a merchant who deals in goods of that kind, the merchant has legal power to transfer all the rights of the entrustor. This may mean that if a bike repair shop sells a bike only left there for repairs to someone, the bona fide purchaser would not be guilty of conversion absent trick or collusion. 2) Fraudulent Transactions: if the non-merchant seller acquired goods not by force, but through a fraudulent transaction (e.g., a misrepresentation), the seller can still convey title and the bona fide purchaser will not be a converter. The reason is that a sale, even if fraudulent, does convey title even though the title is defeasible (voidable) the title passes subject to the power of the original defrauded seller to revoke the transaction for fraud and receive restitution. Thus, when seller conveys to bona fide purchaser, the seller did have title and the purchaser is thus not guilty of conversion (the title is perfected through the sale). g. Trespass to Chattel: some intermeddling with chattel of another person (at times even dispossession), but something short of a conversion. Liability is imposed only if possessor of chattel suffers dispossession or lost use, or if the chattel or the possessor is harmed. Liability is based on actual damage, not on market value of chattel. (see RST 218) Assault: threats and attempts to make unauthorized contact creating an apprehension of immediate touching (see below)

17torts - Kennedy - Spring 2003

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duty of non-interference. reasoning. 5. Unfair Competition a. Blackletter Summary

Hohfeld is critiquing the courts deductive

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9. Duty to Act of Police, Civil Servants, and Judges

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