Torts 2

Tuesday, September 13, 2011 2:48 PM

Class Notes 9/13 Announcements Make ups Sept 30 and Oct 21st from 9-10:30 in normal room Office hours: Tuesday afternoons after this class 4:15-5:45 Lunches: Sign up sheet on Sebok's door for lunches that will occur on either Monday or Wednesdays over the semester Brief review: Negligence has four elements Injury Duty Breach Causation Prima facie case = plaintiff establishes all four elements Evolution of theories or principles that underlie the ground of duty Thus far, we have seen what was historically the most primitive (not pejorative) principle underlying the ground of duty in England: duty extended only as far as those parties with whom an injurer had a contractual relationship with Texture as for what this meant for lawyers back then Obviously the answer to the question that a client might pose to you (assuming clients are potential defendants) "who can I be liable to" is "only the people with whom you have contracts" How could you have a tort with someone with whom you have a contract? What wouldn't be covered by contract law? If the defect in the product causes property damage to someone you have privity with e.g. defective wagon falls over and destroys Postmaster General's expensive scale, he can sue under torts MacPherson v. Buick We know there are exceptions to Winterbottom Devlin, Heaven, Thomas, etc Cardozo says the principle of the distinction Holding: If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. Break this down

If defendant places into the world a product or a thing which would probably place life or limb in danger if negligently made or negligently labeled and knows that it will not be subject to further inspections, then the defendant owes a duty to anyone Note: without bolded, this is strict liability, not negligence. What is the normative principle here? Normative principle for Winterbottom standard: I want to know the people to whom I am obliged so that I can minimize or decide on my risk Normative principle for MacPherson standard: Risk is the foundation of relationship. Two people pose a risk to one another, and this risk that each causes the other creates a reciprocal duty for each to mitigate that risk. When does risk generate obligation? "whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger." from Heaven v. Pender, a decision on which MacPherson heavily relies. This is the modern conception of duty Mussivand v. David to Dixie? 510 to Tort of Mussivand David

Alleged duty: David (as STD-haver) had duty to Mussivand to (a) not have sex with his wife (b) use a condom when he has sex with his wife (c) inform Mussivand that he's having sex with his wife Hard question in this case: What about duty to inspect? Analogy: Buick sells to dealer, Buick knows dealer will inspect to see if car ris negligently produced. Therefore, Buick has no duty to potential plaintiffs. But what if Buick knows that the dealer is a negligent inspection? Then, the inspection does not matter...Buick is still liable. (In fact, plaintiff can sue both Buick and dealer) Similarly, what if David tells Dixie that he has an STD, and Dixie tells David I'm not going to tell my husband and I'm gonna keep having sex with both of you Then David still has a duty to Mussivand because the risk is forseeably carried forward. (against ruling in Mussivand?)

Torts 3
Monday, September 19, 2011 2:50 PM

Class Notes 9/19 Review: Mussivand The lesson we can take away The key element is the foreseeability of physical harm to the plaintiff Also note, as in MacPherson, triangle relationship between defendant, third party, and plaintiff Court in Mussivand seems to suggest no. two weak reasons Duty would only extend to foreseeable plaintiffs who were spouses, but no one else This obviously undermines the foreseeability suty What if Dr. Dixie says "I'm still going to have sex with my husband" Not necessarily maliciously What is Dr. David supposed to do at that point?

<<Torts 3.wma>>
Audio recording started: 3:00 PM Monday, September 19, 2011

Limited (Qualified) Duties of care The word limited is supposed to alert you to the fact that the logic of foreseeability gets blocked in numerous cases Statistically, foreseeability represents the only duty you need to know in 99% of personal injury cases But, as always, exceptions are important to know Courts do not always follow foreseeability in negligence cases Four exceptional categories Affirmative duties to rescue or protect EX: I am walking along a river, a child is drowning, it is foreseeable that if I do nothing that the child will suffer harm In 50/51 jurisdictions in the US (Vermont excluded) I have no duty here, don't want to impose affirmative duties Why not? Osterlind v. Hill Prima facie case for the plaintiff Injury: Death Duty: Do not rent canoe to drunk people; rescue people who are drowning in your pond Breach: rented the canoe to them, did not rescue them Causation: Had he not rented them the canoe, or had he rescued them, they would be alive.

Judge grants summary judgment to defendant on grounds that the defendant that there was no duty to rescue drowning people, did not breach duty to not rent canoe to drunk people Baker v. Fenneman Prima facie case: Injury: plaintiff fell, broke teeth, broke vertebra, etc Duty: duty to do something after the first fall Breach: didn't do anything Causation: Had they done something, the second fall wouldn't have occurred. At trial, court said Taco Bell didn't have a duty to do anything "I cannot stress to you enough that every action in the world is a bundle of risk" Premises liability EX: I am crawling on a roof with the intention to jack the house underneath. The roof has never been inspected, and I fall through and am injured. Can I sue? No, I have no duty to trespassers Pure economic loss EX: I am on my way to a job interview, but your careless driving causes me to be stuck and unable to make my appointment and I lose the job (but am not physically injured). No matter how foreseeable economic loss is, if the economic loss is pure (i.e. not attached to personal injury) there is no duty. Handful of people who do owe a duty: people with whom you have a professional relationship e.g. accountants, other financial professionals albeit under very limited circumstances Emotional distress EX: You may know that if you drive carelessly and cause an accident, a stranger observing the accident may suffer PTSD from seeing the grisly effects of the accident. No matter how foreseeable pure emotional distress is, no duty. For these four categories we do not care how weak or strong the foreseeability is. The lack of duty blocks the foreseeability consideration and make it irrelevant A note about foreseeability Foreseeability now basically means "if it is imaginable"...does not need to be "probable"

Class Notes 9/20 Baker v Fenneman cont'd Where d There is a duty to rescue IF (casebook 84-86) D causes "imminent peril" to P (regardless of fault) Example: I offer you a ride home gratuitously from a party, I drive carefully but a deer jumps out across the road in front of my car. If I don't take reasonable steps to rescue you from your injuries, I have violated a duty

D voluntarily undertakes to rescue P Rescue must be reasonably performed (need not be successful) Rescue cannot be unreasonably abandoned once begun Once you begin rescue, you have a duty to do it carefully, and you have a duty to not stop D has a "special relationship" with P Premises liability Variations 50% of states have distinction between invitees & licensees abondoned; trespasser category retained 30% of states retained common law categories 20% of states Categories are abandoned (Rowland) Leffler v. Sharp Prima facie case Injury: fell through the roof Duty: to have inspected/repaired the roof Breach: roof not repaired Causation: simple but-for Leffler argues that he should be considered a licensee because he was a customer of the bar Court rejects this argument because his injury occurred on the rooftop where he had not been in vited to be Three categories P's status = invitee, enters at invitation of possessor in furtherance of possessor's business or misconduct hiiiiiiiii Duty: provide reasonably safe premises P's status = licensee, enters w/ permission of possessor but not in furtherance of possesor's business or mission Duty: warn of hidden dangers about which the possessor knows or traps that she should know about Distinction between invitee and licensee is based on the following idea P's status= trespasser: enters without permission, Duty: no duty of care owed to adults (exception for known trespassers) Duty: duty owed to children not to maintain attractive nuisance/4cbly dangerous condition Pure Economic Loss Aikens v. Debow Facts Overpass hit by a truck driven by defendant Prima Facie Case Injury: Economic loss Duty: duty to not ram our trucks into overpass Breach: did ram truck into overpass Cause: D hitting the overpass caused the overpass to be unusable, preventing people from getting into the hotel Rule No duty to take care to avoid causing even foreseeable economic loss.

Why is there a limitation of duty here Cites Ultramares v Touche - exposure of defendants "to a liability in an indeterminate amount for an indeterminate time to an indeterminate class." Cites In re Exxon Valdez "Legal liability does not always extend to all of the foreseeable consequences of an accident...were it otherwise, we would have a form of organized anarchy in which no one could count on what rule would apply at any given time or in any given situation Further, pure economic loss is a different thing than personal injury. Plaintiffs are in a better position than defendants to get insurance for these sorts of things (i.e. business interruption insurance) Rowland v. Christian Best known case which targets the special rules for landowners Sets up a whole new theoretical framework to conceive of duty Grounds for duty = foreseeability, but with a factor balancing test based on public policy 1. Foreseeability of harm to P 2. Degree of certainty that P would suffer injury 3. Connection between D's conduct and P's injury 4. Moral blame attaching to D's conduct 5. Policy of preventing future harm 6. Burden on D and on the community of imposing a duty 7. Availability and cost of liability insurance. Tarasoff v. Regents The bottom line about Tarasoff is that just like in Taco Bell case, all the plaintiff was saying "I want to talk to a jury" CA SCt's Duty Analysis Duty is (should be?) owed where injury is foreseeable Type of injury is irrelevant

Torts 4
Monday, September 26, 2011 2:49 PM

Class Notes 9/26 Time to briefly revist Tarasoff The most important thing about Tarasoff The structure of the duty argument in the negligence claim Very important to focus on something It is easy to get caught in argument about whether or not the particular defendants therapists did or did not exercise reasonable care However, this is irrelevant

Absent a duty, defendant was "free to act in careless disregard of Tatiana's life and safety" In other words, it doesn't matter if they've exercised reasonable care here. Notice the alternative Treat this case like Mussivand or McPherson and allow a fact-finder to figure out if it reasonableness Process to determine that there was no duty Rowland decision "Whenever one person is by circumstances placed in such a position with regard to another.that if he did not use ordinary care and skill in his own conduct...he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger." (from Heaven v. Pender) Depart from this only on "balancing of a number of considerations" The forseeability of harm to the plaintiff The degree of certainty that the plaintiff suffered injury The closeness of the connection between the defendant's conduct and the injury suffered The moral blame attached to the defendant's conduct The policy of preventing future harm The extent of the burden to the defendant and consequences to the community of imposing a duty to exerise care with resulting liability for breach The availability, cost, and prevalence of insurance for the risk involved. Stress two things about the debate between the dissent and majority Shouldn't juries make these decisions? What is the proper way to understand the modern duty conception? Before McPherson, we lived in a world in which manufacturers of things of danger operated under the following rule: Except for cases involving medicines or things that were "inherently dangerous" they could act in careless disregard of the life and safety of anyone other than a person with whom they had contract. After McPherson, the world changes. Have to act in at least careful regard with regard to anyone who could foreseeably be put in risk of injury by their thing. If you are a potential defendant in the world (like Buick, Taco Bell, whatever), what are your choices? Omit. Stop doing psychiatry (perhaps only for certain kinds of people), stop making cars. Only make things that are less likely to injure people. Don't open restaurant to the public. Invest in safety. Insurance Breach Breach define: a failure to meet the standard of conduct set by the duty owed For negligence, the duty owed is: a duty to conduct oneself toward the P as would a person of ordinary prudence

Highly circumstance-dependent Breach = Jury question Duty v. breach (law v. "fact") Myers v. Heritage Person injured in the nursing home Question relates to the jury instructions: how should negligence be defined One would think that the relationship between the ordinary negligence and "professional" negligence would be bad for defendants. In theory, the defendant is making an argument that seems "superficially insane"Why? Why does defendant want professional standard? A more demanding standard of care can sometimes make it easier to prove that standard of care was met Expert witnesses say Elements Injury: leg injured (not death Duty: owed by provider to client Verdict for D P's main ground for appeal: court Martin v. Evans D evans parks truck in last designated space, returns from restroom (sees nothing behind truck) Upon returning from truck, D sits for 2 minutes in truck, releases brakes (hiss), uses flashers & mirrors, backs up slow P pulls in truck behind D's and then stands between them. Prima facie case Injury: got hit Duty: Reasonable care in driving the truck Breach: Procedural history Verdict for D Tct grants D's new trial motion Int. App. Ct afirms F appeals to PA SCt Issue Is jury's conclusion that D acted as an ordinarily prudent oerson "conscienceshocking" Holding "Resolution of whether Evans was negligent relied upon...the jury's assessment of what constituted ordinary care under the circumstances. Plaintiff is a "lying sack of shit" Class 9/27 Martin v. Evans continued Thing to recognize

Two cases so far where the standard of care is ordinary care In the first case, Myers, ordinary care of a professional In the second case, Martin, ordinary care of a non-professional Ordinary care in perspective: a spectrum of liability standards (1 | | | | > Least onerous duty to take ordinary care Most onerous

Myers and Martin are falling under the "ordinary care" standard right in the middle there. Though one is professional ordinary care and the other is normal ordinary care, they are still asking fundamentally the same question: did the defendant fall within the middle of the bell curve for the population their conduct is being judged against? Pingaro v. Rossi Pingaro is a meter reader for a gas company. She is told there is a dog in Rossi's house and should knock on the door. She does, no one is home, she goes around back, does not see a dog, goes in, is attacked by the dog. New Jersey has a dog bite statute which, in effect, gives dog owners strict liability Because of this, there is no degree of care that will satisfy the obligation the owner owes to the public. This is the most onerous tort obligation imaginable In cases of strict liability, the "invest" option falls away as a legal option to respond to a given level of liability You can only omit (e.g. not own the dog) or insure. You can invest, but only for the practical reason of making insurance cheaper. Not a legal defense in this case. Included in this chapter as a contrast. Jones v. Port Authority Issue: did the trial court err in its jury instruction? Tct instruction: "D owes a duty to passengers...to*exercise+ a degree of care...different than would be for an ordinary person...If D didn't exercise the degree of care that a reasonably prudent person would who's in the position of the PA then [it] would be negligent" Model Instruction: D is a common carrier who is required by law to use a higher degree of care for the safety of its passengers than that ordinarily imposed on others...the highest degree of diligence and care" Traditional rule A common carrier ("a commercial enterprise that holds itself out to the public as offering to transport freight or passengers for a fee") must exercise "the highest degree of diligence and care" in operating its vehicles. Compare "ordinary care" standard in Myers and Martin Plaintiffs wanted the traditional rule to apply: "highest degree of diligence and care." Judge's actual instruction was incoherent, but not totally stupid Important to note: on a practical level, there might not really be an actual differene between a "ordinary professional" and a "extraordinary" care How to fill out the spectrum

Discussion of less onerous standards on pages 154-155 "Gross negligence" - the opposite of ordinary standard of care Only held liable if the plaintiff can show you occupied the bottom 5% "Recklessly" Beausoleil (note case on 155) Least onerous Most onerous <1 | | | 17 Beausoleil Good Samaritan duty to take Duty to avoid statutes ordinary care Recklessly duty to avoid causing Injuring injury through gross negligence Recklessness is pretty close to intentional wrongdoing Why Privilege Juries on Breach Campbell v. Kovich Counterpoint to martin Martin's holding reflects the general rule Breach issue is deterined by the jury, subject to the court's JMOL power Compare Campbell v. Kovich (Mich App. 2006) In Campbell, why isn't the jury permitted to decide breach? Because the plaintiff doesn't offer any evidence. Reminder: plaintiff has the burden of proof on every element. Adams v. Bullock Injury: 12 year old is burned when he's swinging a wire and it comes into contact with trolley wires Duty: To run their trolley wires in a safe and reasonable way Breach: Allegedly, they did not Cause Ruling: nothing for plaintiff, because it was not reasonable for D to take special measures to prevent this sort of conduct that resulted in injury "Only some extraordinary casualty, not fairly within the area of ordinary prevision, could make it a thing of danger. Reasonable care in the use of a destructive agency imports a high degree of vigilance. But no vigilance, however alert, unless fortified by the gift of prophecy, could have predicted the point upon the route where such an accident would occur." Think about this case in the following sense: Is Cardozo really saying that the trolley company owed no duty to the people of this town to protect them from electrocution when they drop conductive material from above the wires? Or did he say that they fulfilled their duty? Class Notes 9/29 The liability standards chart again

Beausoleil

Good Samaritan Myers and Martin

Jones

Pingaro

Reckless

gross negligence

ordinary care

extraordinary strict liability care

In California there is a series of cases trying to establish train rides at amusement parks as common carriers Why Privilege Juries on Breach Martin's holding reflects the general rule Breach issue is determined by the just, subject to the court's JMOL power Compare Campbell v. Kovich In Campbell, why isn't the jury permitted to decide breach? (See also Walter) Defining the Reasonable Person: (Vaughan v. Menlove) We do not test the reasonable person in terms of perfection, we test them in terms of outcomes Not the outcome necessarily in terms of "was it a perfect outcome" but did their outcome fall within the range of outcomes associated with reasonability What is the message of Vaughan Liability is based on your actions, not your intentions. Good intentions do not matter, subjective desire does not matter, subjective capacity doesn't matter. Facts Vaughan built a hayrick which not only was not built well, but dangerously built Defense was not "I actually built a reasonable hayrick," he says that he actually built a very poor hayrick , but that he fulfilled his duty by trying his best...its just that his best is a very terrible hayrick. The Objective Standard Vaughan: "Instead, therefore, of saying that the liability for negligence should be co-extensive with the judgment of each individual...we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe." Holmes (GSZ): "no doubt the hast and awkard man's congential defects will be allowed for in the courts of Heave, but his slips anre no less troublesome to his neighbors than if they sprang from guilty neglect. His neighbors, accordingly, require hin, at his proper peril, to come up to their standard. Two Arguments that do not seal the deal for D on Breach 1. I did my very best 2. 2I u=was neaninglessl The Objective Standard: How Objective? Did D act ith the care that would have been exercised by an ordinarily-constituted person behaving reasonably under the circumstances Adjusting the standard NOT taken into account Flumsiness

Imprudence Mental illness Old age Taken into account Youth Physical disability Including environmental facts (e.g. fogginess, whatever) Expertise (standard adjusted up) Applehans v. McFall 5 year old kid rode his bike into an old man, old man fell down and broke his hip Plaintiff's claims Against Billy (negligence) Dismissed ("tender years doctrine") Against mom and dad (negligent supervision) Dismissed (no evidence of inattention or prior dangerous acts) But isn't this a motion to dismiss Standards for minors (Ill.) 7 years old and younger = tender years doctrine, no duty 8 and up = Duty to act as prudently as a child of like age and experience...UNLESS engaged in "adult activity" Three possible rules at play Treat children like anyone else...if they fall below ordinary care, then hold them liable Illinois rule: Never liable no matter what they do Massachusetts rule: Behavior was reasonable compared with children of like ages Any rule that takes into account circumstances that are internal is a subsidy Treat Billy better than everybody else When anyone takes negligence law out of activities that are familiar into areas that are usually the province of specialized groups of people (e.g. medical care) What is really the most important difference between professional standards of care and ordinary care? "in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages." T.J. Hooper Rules Reasonable care is not identical with custom

customary care

Reading Notes 9/30 Kambat v. St. Francis Hospital Facts A 18-by-18 inch laparotomy pad was discovered in plaintiff's abdomen following a hysterectomy Plaintiff died from infection (maybe or maybe not the fault of the pad) Defendants argue (and lower courts find) res ipsa loquitur cannot apply to medical malpractice cases because jury cannot draw on their own experience Procedural History Trial court and appellate court found that jury could not have found for res ipsa loquitur Issue Are plaintiffs entitled to submit case to jury on theory of res ipsa loquitur Rule of Law "Under the doctrine of res ipsa loquitur a jury may in certain circumstances infer negligence merely from the happening of an event and the defendant's relation to it...res ipsa loquitur 'simply recognizes what we know from our everyday experience: that some accidents by their very nature would ordinarily not happen without negligence" Res ipsa loquitur requires three elements (1) the even must be of a kind that 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

(3) it must not have been due to any voluntary action or contribution on the part of the plaintiff Need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the three conditions afford a rational basis for concluding that "it is more likely than not" that the injury was caused by defendant's negligence. Res ipsa loquitur allows, not compels, the jury to make the inference. Ruling The jury could have inferred res ipsa loquitur Defendant's evidence of due care and alternative causes of injury does not preclude res ipsa loquitur Reasoning Need not answer the question of whether res ipsa loquitur is applicable in medical malpractice cases in which the jury is incapable of determining whether the condition has been met without expert testimony, because the case of a surgeon leaving a foreign object inside a patient is such a fucking obvious thing Disposition Reversed, new trial ordered

Skinner v. Square D Co.

Torts 5
Monday, October 03, 2011 2:48 PM

Class Notes 10/3 Hand test: D must ask ex ante: Is marginal inrease in investment in care "worth it" to society? Which is the same as Does new investment produce more welfare than it costs? If yes, then it is negligent not to make new investment. The idea is not to discover a test that you use like a decoder ring, but rather, a rationale you can use to anticipate future judgment by fact-finders. Can also explain why appellate courts should either uphold judges when they overrule factfinders, or why appellate courts should overrule factfinders themselves for abuse of discretion From Factors to Formula B=$75 (marginal cost of securing bargee's regular presence) P=0.2% (probability that barge w/o bargee will suffer/cause harm)

L=$50,000 (losses expected to result from barge breaking free) B < P*L 75 < (.002)(50,000) 75 < 100 Under these numbers, it is in fact careless not to hire a bargee More numbers (hiring bargee at night) B= $150 (bargees more expensive at night) P=0.1% (accidents less likely because less traffic) L=$50,000 (same shit) In this case, company can argue that it is not efficient, would not have been reasonable for them to hire bargee at night. Problems: Difficulty in operationalizing the above Juries may not like it McCarty v. Pheasant Run Woman attacked in her hotel room because (she claims) there was no deadbolt leading to the outdoor hallway. Jury says it was not unreasonable to not have a deadbolt there On appeal, Posner says that jury's verdict can be justified by the hand test A Real World Example: Rhode Island Hosp. Trust Nat'l Bank v. Zapata Corp. Under RI law, banks are strictly liable for cheks that are forged that they credit, until 14 days after they send a statement to their customers, who must exercise care in reviewing their statement. However, careless customers can switch the burden back to the bank if the bank was careless in checking for forgeries Note a couple things Contracts case, not torts Pure economic loss Did bank (D) fail to exercise ordinary care in monitoring for forged checks? If so, Zapata can't recover from D after the date on which Zapata had reasonable notice of the forgeries. D's previous practice: inspect every check D's current practice: randomly inspect 1% of checks Industry custom: randomly inspect less than 1% of checks B=? $125,000 (bank's expert) P*L=? $0 (move to individual inspection --> no improved detection) $125,000 > $0 --> No fault: reasonable care =/= spending lots for no added safety. Here, handtest is only necessary to point out the obvious. "The Myth of the Ford Pinto Case" Gary Schwartz is good to read Theory of the case was that the tradeoffs Ford made in designing the Pinto

Res Ipsa Loquitur "Some circumstantial evidence is very strong, as when you find a trout in the milk." -Henry David Thoreau Phenomenon Byrne v. Boadle A barrel falls from the sky and hits plaintiff in the head "The thing speaks for itself" P can prevail even without producing evidence as to how D was careless Necessary Prerequisites (1) The type of harm suffered by P generally doesn't occur without carelessness (2) The instrumentality of harm was in D's exclusive control (3) the harm suffered did not result from P's own conduct Res ipsa loquitur tries to describe a universe of actions in which there are careful and careless actions. There is a subset of accidents involving plaintiff's Kambat v. St Francis Hospital Prima facie case Injury: Death Duty: Perform the hysterectomy in a safe and reasonable manner, i.e. don't leave things behind in patients Breach: Left something behind Cause: Simple but-for causation Procedural significance No summary judgment for D on grounds that P hasn't met burden of production Jury ultimately decides D entitled to rebut inference of fault What is the doctrinal problem that the trial judge finds? Cannot have res ipsa loquitur if there's expert testimony Res ipsa loquitur allows juries to use common sense...but how can they be using common sense if they are relying on expert testimony? Appellate judge rejects all this It is common sense What do we take away? The structure of a res ipsa loquitur instruction is to remove the burden of proof The Causation Element Actual Causation Aka "cause in fact" or "factual cause" Did D's carelessness play a role in bringing about P's injury? Foreseeability not talked about in actual causation The actual cause inquiry Isolate actual cause from the broader issue of liability! Prudent driving can be a cause of an injury But under a negligence standard, prudent driving cannot be a basis for driver liabilitly Actual causes of P's broken leg

D drove carelessly D's employer gave them the day off Ford properly built D's car D's parents gave birth to D Only the first matters legally because it is linked to a harm Legal Test for actual causation = "But-For Test" Would P have been injured absent D's carelessness? Yes --> No causation: injury would have happened anyway No --> causation: D's carelessness necessary for P's injury Burden of persuasion = "preponderance of the evidence" P must prove D's breach was PROBABLY necessary for P's injury to have occurred Like breach, this is a jury question. Proximate Causation Aka "legal cause" or "scope of liability" Skinner Prima facie case Injury: die Duty: construct things in a safe and reasonable fashion Breach: The phantom zone on the switch makes you think the switch is off when really its on. Cause: That's the question Was the phantom zone on D's switch necessary for P's electrocution to occur? P: yes! (PZ mislead P - w/o it he wouldn't have been hurt) D: no! (PZ was irrelevant - P knowingly picked up live wires) P's burden :"present substantial evidence from which a jury may conclude that more likely than not, but for D's conduct," no injury would have occurred D's argue it is irrelevant if they could have built a switch w/o phantom zone because he would have electrocuted himself anyways because he knew the switch was on. What is plaintiff's theory of how the phantom zone caused his electricity Goldberg thinks that Skinner is an environmentalist and takes the clips off to save energy ("this is ridiculous" - Sebok) More likely that he accidentally hit the switch into the phantom zone somehow (Begin Class Notes 10/4) bCourt says we can't let something go to the jury unless we think there is some basis on which the jury could choose between these theories "the plaintiff must present substantial evidence from which a jury may conclude that more likely than not, but for the defendant's conduct, the plaintiff's injuries would not have occurred." What showing suffices to permit a jury finding of causation? Howe (1926) Train stopped on a bridge Decedent last seen preparing to alight from the train Did lack of space cause fal, or P's stuble? Not enough No actual causation as a matter of law. Court, not jury, decides Kaminski (1956)

P sees trailer parked beside tracks No object other than the moving train could have moved trailer Conductor hears screech on side of train where trailer & P stood Enough Jury decides whether or not D's carelessness was a cause of injury Schedlbauer (1968) P hears engine "run rough" P's expert opines: engine would rn rough, not stall, if gas entered through fuel pump P's expert opines: any other entry point --> engine stall P's expert opines: fuel pump caused explosion Enough Jury decides whether or not D's carelessness was a cause of injury Rule: P must present a probable, not merely possible, Why require actual causation? Suppose Square d's switch had a phantom zone. If P suffered the kind of injury risked by that defect, why not let P recover? Compensation Doesn't make sense if you take a compensation view, adds hurdle that makes it harder for injured people to be compensated Deterrence It would seem to produce a perverse result, because rational actors can calculate that there will be fewer liability judgments than there "should be" because of causation problems and invest less in safety accordingly Desert We may have a theory that you only deserve to collect damages if you can prove all 4 elements, in which case actual causation is obviously fine. Accountability Falcon v. Memorial Hospital Prima facie case: Injury: died in childbirth Duty: professional standard of care to perform a delivery of birth in a safe and reasonable fashion Breach: did not provide IV of something important Causation: as always, the issue: Actual causation: P's expert N's chance of survival without IV = 0.0% N's chance of survival with IV = 37.5% Issue Under Traditional Rules: Can a reasonable jury find that MD's failure to use IV probably was necessary for Nena's death? Problem for P: Even with IV, only 37.5% chance of living Trial court grants summary judgment because "Falcon's evidence did not show that Nena Falcon probably - defined as more than fifty percent - would have survived if the procedure had not been omitted.

Court of Appeals reversed, stating that Falcon need only "establish that the omitted treatment procedure had the potential for improving the patient's recovery or preventing the patient's death" and "while a plaintiff must show some probability that the treatment would be successful, that probability need not be greater than fifty percent." Injury from medical malpractice is different from other sorts of injuries because a patient goes to a doctor precisely to improve his opportunities. The negligence here took away that opportunity. Thus, even though we do not know that it is more likely than not that the breach caused her death, we can What becomes controversial: The question of whether or not taking away the opportunity is a compensable harm in medical malpractice Isn't this more like a breach of contract case than a medical malpractice case? Court pulls out of the breach of contract a tort obligation Damages: 37.5% times the damages recoverable for wrongful death would be an appropriate measure of damages. Two paths to permitting recovery in Falcon Allow Recovery on Less than Prepoinderance, or without proof of but-for Give jury leeway to conclude that Nena was >50% likely to be among the lucky 37.5% Redefine Injury Claim is not that D's med. Mal. Caused P's death Instead, it deprived P of a m"meaningful chance for life" Is a deprivation of a < 50% chance of life plausibly treated as an injury? Do others (e.g. attorneys) owe a duty to take care against depriving persons of low-odds chances of good outcomes? McDonald v. Robinson An example of a profound point in a very simple story Two defendants Two cars were very unlucky Each

Stuff missed from Thursday Summers Union Pump Company Proximate cause

Torts 6
Monday, October 10, 2011 2:50 PM

Class Notes 10/10

Tests for Proximate Cause P's injury a natural and ordinary CQ? Ryan v. New York Central R.R. Co. It is not natural and ordinary for fire to spread from its source beyond the first structure it ignites (the 'one-leap rule') P's injury directly caused In re: Polemis Fire was an unforeseeable CQ of plank being dropped, but link was direct (munemdiated), ergo proximate cause P's injury foreseeable? The Wagon Mound (No. 1) Fire on water not a reasonably forseeable CQ of oil spill - Polemis rejected The Wagon Mound (No. 2) Same spille & fire, different P; fire damage now deemed foreseeable, ergo proximately caused Why was the court compelled to hold that the burning of the dock was unforeseeable although the mucking of the dock was foreseeable? There was difference in evidence. Lawyers advised in #1 that according to the directness rule, they would lose nothing by not testifying to foreseeability, but if they did, then it would result in contributory negligence finding which would hurt. In #2, no such incentive to say nonsense Jolley v. Sutton Prima facie case Injury: spinal damages Duty: Duty to take care to make sure their premises are reasonably safe for visitors Breach: In order to meet the standard of care, you have to move this dangerous boat, or secure it, or something. D didn't do any of that. Cause: P argues: rotting boat was an "attractive nuisance," D's careless failure to remove boat (2 years!) proximately caused P's injury D argues: Injury, Duty, Breach, and Actual cause perhaps, but definitely no Proximate Cause High Court rukles for P - no jury! - but with reduced damages for P's fault D's carelessness a proximate cause regardless whether P was "playing" or "working" on the boat Court of Appeals reverses: boat was a trap only insofar as it invited play an dthis was not play Woolf: Hughes could help P, but if so it is inconsistent with Wagon Mound. Wagon Mound focused on foreseeability for a reason: if D's duty is to take reasonable care to guard against causing harms to foreseeable victims, D's libaility should be limited to harms resulting from foreseeable scenarios. English: Court concedes that the rotting condition of the boat is the but-for cause of P's injury. But no proximate cause. If P had been playing on the boat, that would Being crushed from above is not an injury which is within the proximate cause of this duty. Must be a distinction between classes of accidents: Group one - all accidents caused by the boat's rotting condition. Group two Why? Court feels a need to apply more precise reasoning to the Wagon Mound reasoning

In Wagon Mound, there are two different classes of injuries: the combustion of the dock and the sliming of the dock In Hughes, the child was injured by a lamp falling into a manhole that he wasn't supposed to be in. Class of injuries immediately foreseeable from an open manhole is people falling in, that's not what the child's injury fell under, but court ruled for the child anyway Woolf wants Hoffman ITC Woolf is not doing this right. All we're interested in is the genus of injury. Here, proper genus is "risks to children while playing" and it doesn't matter what sort of injury you have under that. What would Hoffman exclude? If the children were engaged in criminal activity? Trying to use the boat as a weapon of some sort, or steal it. If children are injured while using the boat for criminal activity, then there would be no proximate cause, probably. Proximate Cause Today: Foreseeability (Jolley) Proximate Cause: Foreseeability and the Scope of the Risk "The present law is that unless the injury is of a description which was reasonably foreseeable, it is (according to taste) 'outside the scope of the duty'" Ventricelli Trunk lid on rental car regularly pops open. P, standing behind car as it is parked curbside, is injured when struck from behind by another car. -Cause argument: if the trunk closed properly, he wouldn't have been standing behind his car fiddling with the trunk, and thus wouldn't have been injured. Held: defect in rental car was not a proximate cause of P's injury; it was not reasonably foreseeable that P would be injured when closing the trunk lid in an appropriate, safe location Alternatively: when the law identifies as careless the renting of a car w/ a trunk lid that flies open, it does so with certain scenarios 'in mind,' and P's was not one of them. "Hey D, you'd better not rent a car in that condition, because if you do _________ [fill in blank]" ."the trunk might fly open while P is driving, blocking his vision, or inducing him to pull over in an unsafe place, or" The Risk Rule: P's injury is proximately caused if it is the realization of one of the risks that rendered D's conduct careless. Break this down analytically: Why do you have a duty to maintain rental cares in a safe and reasonable fashion? Because of the risks if you do not: (insert any standard thing that improper Page 285 - hypotheticals that may shed light on proximate cause B is considered most helpful by professor Adults have a duty to handle dangerous instrumentalities in a safe and reasonable fashion Part of this is making sure minors cannot reach the gun Minors may use guns poorly/not be aware/whatever Risk of guns is that they send dangerous projectiles at high velocity

In the hypothetical, owner carelessly leaves his gun out, and the five year old picks it up and drops it on someone's foot, breaking that person's toe. No proximate causation in this case Homeowner does have a duty to not let his children get a hold of his gun, and homeowner did breach that duty BUT: the injury resulting was not within the scope of risk envisioned by that duty. Three rough families of proximate cause analysis according to Sebok First is the Risk Rule. Clearly captures fact patterns where we have a mismatch between the injury realized and the risk created Expiration of the Risk argument (note 6, page 287) Given short shrift in our casebook because it is crude Courts will allow time and space to do the work of reason Marhsall v. Nugent Driver 1's negligence causes accident. The accident causes Driver 2 to get out of his car and direct traffic In the course of directing traffic, Driver 2 is struck by another car Court allows the question to go to the jury, but notes that there must be a point at which the time passed means that risks in the same class Intervening and Superseding Cause The idea here is that there is something special about the new risk that cuts off the defendant's responsibility Classic place to fight this out is in two areas Subsequent medical malpractice resulting from a car accident It never works for D to do the following Careless driver hits A, breaks his leg, causes A to go the hospital At the hospital, A is subject to malpractice from Doctor Menlove, who cuts off the leg driver broke Driver cannot argue that Dr. Menlove is an intervening cause. Driver is liable for the damage done by Dr. Menlove's menlovianness Unclear if driver will be liable if Dr. Menlove cuts off the wrong leg Criminals can be superseding causes Owner who has no reason to suspect crime will Pollard v. Oklahoma City Ry. Co. Railway company is trying to blow up a mountain, leave explosive cans carelessly around Kid collects powder from explosive cans Kid and friend take powder out into the woods, light it on fire. Friend is crippled for life. Appeals court rules that the negligence wasn't the proximate cause of the injury Prima facie case Injury: maiming Duty: Handle the explosives in a safe and reasonable fashion Breach: Rather than doing that, they left the spent cans around Question here if they actually have breached here, as the small amounts they were leaving around would have had to be collected in order to become particularly dangerous

Perhaps we need extraordinary care with explosive material Cause: but-for causation argument is obvious Proximate cause is where the case is decided There are at least two sources of superseding cause here The parents are a superseding cause because they could have intervened to stop this behavior The kid himself is a superseding cause Thus, no proximate cause Clark v. E.I. du Pont de Nemours Powder Co. Company disposes of nitroglycerin improperly Menlovian person discovers it, hides nitroglycerin in in a hollow Two years pass Menlovian other person discovers it, doesn't know its nitro, hits it with a rock. Nitro blows up, Menlovian #2 is injured. Basic question: was the act of the guy who picks up the nitro and hides it somewhere Why was Menlovian #1 not a superseding cause Did not add to the risk By hiding the nitro somewhere, he doesn't add to (and may subtract from) the risk that someone will discover it and hit it with a rock What is distinction between Menlovian #1 and the boys in Pollard? We now evaluate whether or not an additional efficient cause was foreseeable or not There was a time when courts would take thee position that some acts are unforeseeable, and would therefore cut the chain of causation i.e. someone taking advantage of conditions created by my conduct to engage in criminal activity would be a superseding cause and cut the chain of liability Not the rule any longer It was wholly unforeseeable that someone would come along and collect these bits of explosive powder and put them in a can. It is not unforeseeable, however, that someone might move a ticking time bomb (the nitro) Sebok uncomfortable with this case, he thinks argument #2 might intervene. But, in most argument #2 cases, the passage of time will cause a number of additional risks to be introduced. Not so in this case. Class Notes 10/11 Relationality of Breach of Duty Palsgraf v. Long Island Railroad Co. The odd thing about Palsgraf is that its one of those cases where everyone remembers it, but no one remembers why. Reason for this: it is not clear what significance Palsgraf holds for modern tort law Consensus is that Palsgraf represents a peculiar example of Cardozo having won a certain argument he was having with people on the NY Court of Appeals, but then losing the war he sought to wage. Sebok does believe its worth studying, though not followed, because the argument between Cardozo and Andrews is a good one to understand for the development of negligence law in this country. More curiosity

Cardozo writes "The law of causation, remote or proximate, is thus foreign to the case before us." Why, then, is it in a chapter about Facts Dude jumps aboard a train, in the course of being pulled aboard, his package becomes dislodged and falls. As it turns out, the package has a lot of fireworks in it, they explode Prima facie case Injury: big scales fell on her Duty: for the railroad company to operate the railroad in a safe and reasonable fashion with regard to its passengers, particularly because it is a common carrier (extra duties) Breach: By encouraging to passengers who are trying to jump on to moving trains, they are encouraging people to be unsafe, blah blah Cause: Relationality of breach of duty P suing LIRR is Did P suffer injury? Duty owed by LIRR to P? Was LIRR careless as to P? Causation (actual & prox.)? Contributory Negligence? RESULT a a Column number two: It sounds like the reason Palsgraf fails is because there was no duty owed to her that was breached. Raises the question of "what are the duties owed to her?" What duty would have to be identified for the trial and appellate court to be right? Common carrier? Extraordinary care is not strict liability. Cardozo's argument would be that wrt the risk posed to passengers by a seemingly innocent package, the railroad can invest zero care. Indeed, they could invest negative care (i.e. kicking or something) for sport. The only reason they would owe duty of care to such a package would be because it is the property of a passenger. Package Carrier Yes Yes Reasonable Jury Could Find Reasonable Jury Could Find Yes, as a matter of law P.C. loses a.m.o.l. (contributory neg.) Mrs. Palsgraf Yes Yes No Reasonable Jury Could Find Psgr at Site of Push (hypothetical) Yes Yes Reasonable Jury Could Find

Reasonable Jury Could Find Reasonable Jury Could (dictum) Find No, as a matter of law Mrs. P loses a.m.o.l. (no breach as to her) No, as a matter of law Psgr wins if jury finds for her.

"no outward clue that it posed a risk of injury to anyone." Why does Cardozo's argument strike Sebok as weird? Weird because, unlike Adams, you actually have a pretty easy breach duty case because the railway is a common carrier Not based on risk Common carriers are supposed to behave according to a set a norms, and common carriers have a duty to all the passengers not to breach those duties. It is odd to say all of this Why? Wants to avoid the proximate cause argument. Wants the old categories of negligence to be stripped away in favor of risk Get rid of status categories (common carrier, passenger, whatever) in favor of the idea that relation arises of risk. Table is what Cardozo claims to be doing, not what Sebok thinks Cardozo actually thinks Andrews dissent Negligence "does involve a relationship between man and his fellows, but not merely a relationship between man and those whom he might reasonably expect his act would injure; rather, a relationship between him and those whom he does in fact injure. If his act has a tendency to harm some one, it harms him a mile away as surely as it does those on the scene...Everyone owes to the world at large the duty of refraining fro those acts that may unreasonably threaten the safety of others." "What we...mean by the word "proximate" is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics." Andrews wins one battle BY the end of the 20th Century, there are very few if any cases that find no duty. Andrews loses the other: the realist challenge to proximate cause. Two important dimensions of the Cardozo-Andrews dispute: Cardozo's "transitive approach to negligence: (P mnust prove a wrong to herself) v. Andrew "intranstivive approach to negligence (a careless act is wrong not only to persons within some "radius of danger," but to the public at large) There are two approaches to what happens in a tragedy Among the but-for causes of 9/11 are the carelessness of people in the design of aircraft, in the evacuation plans of buildings, etc etc Boeing gets sued for 9/11 on this theory Move for summary judgment because they do not have a duty to the people in the World Trade Center to put locks on the doors of their airplane Judge Hellerstein disagrees. Claims a transitive duty. Boeing owes a duty to everyone who might be injured because their airplane has been rendered inoperable because someone got into the cockpit because they didn't put locks on the doors ConEd sues 7 World Trade Center company for negligent building design because they lose a valuable substation when 7 WTC catches fire because of Solomon Bros.' backup generator

Petitions of the Kinsman Transit Co. Property owners downstream of the Concrete Elevator sue: D1: Continental (Owner of Concrete Elecator) D2: Kinsman (owner of Shiras) D3: City of Buffalo (owner of Michigan Avenue Bridge) Two issues: Relational duty: Was the carelessness of each D carelessness as to property owners? Friendly: YES. In other wods, there is no Palsgraf problem. Proximate cause: Was the manner in which evens unfolded so unexpected or fortuitous as to render each D's breach a remote rather than proximate cause? For Kinsman and City, the answer easy: NO. The carelessness of each occurred after the Shiras had broken free, and each was on notice of potentioal harm = prox. Cause satisfied. For Continental, it's a bit trickier. Continental's carelessness occurred before the emergency began to unfold. Nevertheless, J. Friendly concludes, it's fair to hold Continental liable since at least some kind of property damage was foreseeable. A marginal case, but prox. Cause satisfied Distinguish from Wagon Mound: Whereas there is a really stark difference between injury: destruction by fire and injury: sliming, the harms that are foreseeable ( damage to property when boat breaks free and runs into things) are of the same class as the harms that were not (damage to property when the river is dammed and causes a flood). He says that only with the aid of hindsight can you "foresee" that making a deadman carelessly will ultimately cause the river to be dammed up and cause a flood. "This sort of post hoc analysis renders the term "foreseeable" pointless."

Torts 7
Monday, October 17, 2011 2:50 PM

Class Notes 10/17 Wrongful Death Acts How do statutes interact with tort common law Statutes can raise the level of care Statutes can lower the level of care Statutes can immunize people from liability that common law courts would otherwise Bunch of other things Ways statutes interact that are less about creating norms of conduct and more about creating rules of the road Much like rules of CivPro Wrongful death statutes are an important "rules of the road" type structure, but are otherwise unique within the law of torts

Taking tort law from its own internal logic, the common law concluded that death erased all claims for compensation and death erased all obligations of redress So, if plaintiffs had cases, but plaintiff died before the case was over, the case was gone. Reason for this: wrongs are personal in nature. Also, deeper point, twofold The purpose of a claim in tort was not just to move money from one place to another, it was to repair a wrong. How can you repair a wrong if the place for the repair is gone. Wrongs are personal to the wrongdoer. If the wrongdoer is not around to appear in court and whatever, then theres no point in going after their assets. Converse: when persons who did personal wrongs to other died, then there was no possibility of suing their estate for compensation either. Tort system imagined a very specific relationship between wrongdoer and victim However, this vision was very useless for the purpose of public policy Unintended consequences "Its cheaper to kill rather than injure a victim" True reason for reform of this in the 19th Century When the a worker is injured and loses wages, he gets money; when he is killed, his family gets nothing. This was an unjust impauperization of families Two legislative solutions Survivorship statutes "It's kind of stupid that when Bob dies, Bob can't sue." "Weird zombie-like quality" Bob's lawsuit will outlive Bob

T0

T1

T0= D causes a tort which injures Bob. Bob is not instantly killed T1= Bob dies from his injuries In between T0 and T1, Bob loses wages, racks up hospital bills, other damages Under Survivorship, the dead tort victim can be represented by a legally cognizable agent to recover for damages. Some torts (defamation, some economic torts) won't survive. Wrongful death statutes Does the reform differently

T0

T0= D causes a tort, which instantly kills Bob Bob has no action under survivorship: no lost wages, because killed instantly. No racked up damages, because killed instantly. Wrongful death comes up with a new idea At T0, when the defendant kills Bob, the defendant has done a wrong not just to Bob, but also to his spouse and his children. No court has ever said in the United States that when the defendant is driving along I-90 and in a drunken moment kills Bob, that he should have known he had a duty to Bob's kids or whatever This is why we need a statute, without it, such claims would fail on element 2 (duty) There is not much internal coherence Note: people who can collect under wrongful death statutes are named by the statutes, its not just whoever Bob names in his will Nelson v. Dolan Prima facie case Note: case brought by his mother, the decedent Injury: Death Duty: Drive in a safe and reasonable manner Breach: Drove the person into a post Causation: But-for, proximate, obvious Point: What if the defendant had been able to prove that the decedent had committed contributory negligence? No recovery Jury finds for plaintiff, awards $38,000. Mother finds this to be insufficient, feels other injuries were improperly excluded Grief of the mother Terror of the boy Pecuniary damages vs. non pecuniary damages Two problems How to distinguish between the two? Why distinguish between the two? Loss of consortium Originally was the loss of household services, eventually grew to include loss of sexual services, finally grew to mean the loss of companionship Why are the courts in 1989 having so much trouble distinguishing between pecuniary/nonpecuniary damages in the face of the presence of loss of consortium, when loss of consortium has been around since the 14th Century One: comfort level with loss of consortium Two things happened Got segregated away, only in injury cases Two: courts didn't want to confront the fact that they were being inconsistent Really really clear: People bring wrongful death suits for the economic income stream that is cut off by death Here: Sebok goes off on an endless tangent in which it is unclear what is relevant, testable material and what is just Sebok gonna Sebok. Read the case.

Survivorship in this case Decedent suffered terror in the 8 second interval between being wronged by the defendant and his instantaneous death Cognizable injury? Typically, pure terror outside of physical injury is not cognizable. IF space aliens rescued decedent in the instant before the impact that caused his death, he would not be able to sue for the terror. But, this is a unique case, because he dies instantly Don't be a schmuck. Implied Rights of Action Both incredibly easy and incredibly slippery Two points Implied rights of action are a very obscure part of tort law, becoming increasingly obscure. The Supreme Court doesn't like them and has been cutting back on them. Good chance that shortly they will only be useful in two areas Securities fraud Case Co. v. Borak (The one area Sebok will not cover with us) Constitutional Torts Implied rights of action implied by the Constitution itself What Sebok cares about: Why is this different from per se negligence Helps illuminate the structure of tort law Class Notes 10/18 Statutes and Torts Statutory Torts - Statute Defines Wrong, Creates Right of Action Myers (C.3) - Nursing Home Care Act Statutory Abolitions - Statute Eliminates a Common Law Tort Mussivand (C. 2) - Anti-Heart Balm Statutes Statutory Substitutes - Workers Compensation Aldridge (C.4) Statutory Extensions - 'Standing' to Sue Expanded Wrongful Death Acts: family can sue for tortious killing of decedent Statutory Standards of Conduct - Displacing Jury Negligence Per Se Regulatory Compliance Defense Implied Right of Action again Texas & Pacific Railway Co. v. Rigsby Rigsby is an employee of the railway company, there was a defect in a car he was working on, causing him to fall and be injured RIGSBY NOT SUING UNDER NEGLIGENCE Rather: action under the Federal Safety Appliance Acts What is this? Railroad cars have to be equipped with secure ladders and running boards Note: not what you have to do, but what has to be No reasonable care defense, no hand test, no nothing

Note: not the government bringing a civil penalty action. This is Rigsby suing. Strict liability standard Don't be fooled by the "defect" element in this case Analogy to Pingaro What is the railroad's objection? Statute only says that the government can get pissed off at you, and fine you, but does not establish liability to people Plaintiff: I can imply a tort claim under federal public law which grounds a claim for damages against you from this statute What Sebok feels is interesting: the Court does not even bat an eyelash at implying a right of action here Borak D owns stock in P's company, which attempts a merger. D claims that P gives false statements in the course of selling the merger to the shareholders. Borak not defrauded: did not rely on the false statements. He was injured, but not by fraud. (Others were defrauded) Borak's theory, because he cannot sue in fraud Suing under 14(a) of Securities Exchange Act, says their violation of this law created his injury But-for the breach of this law, would not have sustained injury Wrong personal to Borak? No. Doesn't matter, SCOTUS finds implied right of action Public policy argument Lots of unproductive economic loss because of the incentive to lie on proxy statements SEC isn't very good at policing proxy statements, if we're going to have effective deterrence then we need this adjunct function Ubi Jus Ibi Remedium Why don't we imply rights of action all the time? Cort v. Ash (note case 376) "The Court refused to find within a criminal law banning certain campaign contributions by corporations an implied right of action of behalf of shareholders that would empower them to revocer for the improper expenditure of corporate funds on campaigns." Question of what the damages are Supreme Court says there is no implied right of action here Four point test Is the plaintiff "one of the class for whose especial benefit the statute was enacted" - that is, does the statute create a federal right Touche Ross & Co. v. Redington No implied right of action here What is the difference between implied right of action and negligence per se Sebok thinks its relatively simple They both use the expression by the public law organ to create a standard of conduct.

But, implied rights of action create a duty where none existed before, while negligence per se piggybacks on existing duties. P's prima facie case vs. D's Affirmative Defenses Four elements Injury Duty Breach Causation P must prove each element D then has the opportunity to make affirmative defenses If established, defeat P's p.f. case Kinds of defenses P's fault Contributory negligence About 5 jurisdictions have this Considered to be a minority rule In 1824 tho, was all the rage. Comparative fault 46 have this Assumption of risk Implicit Explicit Contributory Negligence Smith v. Smith (Mass. 1824) P can prove D's negligence But P was negligent too P's poor driving = carelessness AND P's poor driving = an actual cause of P's injury Rule of contributory negligence --> P loses Why not concurrent negligence? (McDonald yet again) Under CN, contributory carelessness by P is treated as a superseding cause of the injury. If P is at fault, then they are no desrving victims Harsh rule 1% fault of the plaintiff, P still pays for 100% of acccident Admiralty: From divided damages to comparative fault US v. Reliable Transfer Co. Reliable's tanker runs aground D Coast guard's fault = 25% P Reliable's fault = 75% Assume 100k damages Pure CF now the rule in admiralty

Modified CF = proportional recovery until P is at least 50% or 51% at fault, then nocfg Rule Contributory Negligence Divided Damages Pure Comp. Fault Modified Comp. Fault P recovers $0 $50k $25k $0

Sebok wants us to think about the possibility that comparative fault is not fair Comparative Fault in Action Hunt v. Ohio Dept. of Rehabilitation & Corrections Hunt injured hand using snowblower Dep't 60% at fault (poor training) Hunt 40% at fault (misuse of snowblower) Important Ohio does not have a pure comparative fault regime 100

50 P's recovery (% of damages)

0 0 50 P's fault (%) What's the justification for any bright line cut-off? Back to a kind of superseding cause analysis What's so special about 50%? Why not allow partial recovery for any P deemed less than 67% at fault for her injury? Assumption of Risk Traditionally distinct from CN/CF In CN/CF, it is said there is moral significance to the amount of fault that you have Notice there is no "fault" in AoR We are not saying the P In the course of the plaintiff's conduct, they relieved the defendant of a duty Has much more to do with freedom of choice than it does with blaming people 100

Ordinarily a complete bar to recovery Two types Express Agreement (usually written) between D and P whereby P agrees to waive right to sue for injury caused by D's negligence Implied No agreement P's conduct demonstrates that P freely and knowingly chose to encounter a discrete danger posed by D's careless conduct. Class Notes 10/20 Assumption of Risk Traditionally distinct from CN/CF Ordinarily a complete bar to recovery Two types Express Agreement (usually written) between D and P whereby P agrees to waive right to sue for injury caused by D's negligence Implied No Agreement P's conduct demonstrates that P freely and knowingly chose to encounter a discrete danger posed by D's careless conduct Express Assumption of Risk Jones v. Dressel P decided to go sky-diving, signed a contract with D (skydiving company) that included exemption from liability, D's plane crashed Prima facie case Injury: injured in plane crash Duty: operate plane in safe and reaosnable manner Breach: did not Cause: but-for...obvious Slide notes P signs waiver exempting D from liability even for fault D's plane crashes, allegedly because of D's fault, P injured D gains dismissal on basis of waiver; no analysis of p.f.c. (note procedural advantage to D provided by EAoR) Enforceability of waiver turns on two issues Contract-Law Issues (Scope and Validity) Waiver covered this crash P a minor, but raitified No "adhesion contract" P could "buy back" right to sue; skydiving not a "necessary service" Public Policy Policy reasons can count against enforcing an otherwise valid contract (Tunkl factors, see GSZ 408). But not here

"The [P] exempts and releases [Free Flight and its employees and agents] ffrom any and all liability...arising out of any damage, loss or injury to the [P]...while upon the premises or aircraft of [Free Flight] or while participating in any of the activities contemplated by this Agreement, whether this loss...results from the negligence of [Free Flight or its employees or agents] or some other cause." (p.405) Note: The waiver exempts D from its duty to specific person, does not grant right to be careless. Same practical effect, but why is this different. They will still invest in safety at the same level because some people will not sell away their right to sue. But, if they are investing in safety at the same level anyway, but X% of their customers have sold away their right to sue, then they reduce the number of times they are sued by X%. This cheapens their insurance and allows them to lower prices Thus, allowing express assumption of risk in this context results in lower prices for services. Note: this argument will not be allowed in all cases. For example, there will never be, has never been a case where EAoR is allowed in the medical context. Note: any assumption of risk contract will be challenged on the following grounds Capacity Youth, inebriation, duress, compulsion, etc Knowing consent You cannot agree to a risk you don't understand Question of scope What exactly are you granting with the waiver? "Jones claims that summary judgment should not have been granted for three reasons. First, he argues that because exculpatory agreements must be structly contrued against the party seeking exemption, the agreement here does not insulate the defendants from liability for negligence in connection with a crash that occurred prior to the time that Jones made a parachute jump." i.e. he signed away the right to sue in the case of negligence in the jump (ie if the parachute was improperly packed and failed to open) but not in the case of negligence in maintaining the plane so that it crashes shortly after takeoff Duty to the public factor Note: cannot sell the right to sue for willful or wanton behavior, or for intentional tort Note: the defenses in intentional tort are very different No such thing as comparative fault in intentional tort Similarly, no assumption of risk in intentional tort. There is "Consent" which is very different Dalury v. S-K-I, Ltd. P is skiiing, collides with metal pole. Before skiing, signed liability waiver. P sues anyway Trial court grants summary judgment without talking about the public policy argument Key move What does it mean to be "affected by the public factor" "Each ticket sale may be, for some purposes, a purely private transaction. But when a substantial bumber of such sales take place as a result of the seller's general invitation to the public to utilize the facilities and services in question, a legitimate public interest arises." Slide notes Indistinguishable from Jones?

Similar waiver/release, yet this court, applying the same Tunkl factors, voids the waiver as against public policy Which factor(s) if any, distinguish Dalury from Jones? Dalury didn't have "buy back" option? Skiing less dangerous than skydiving? Rugged west v. nanny-state east? Skiing a much more common pastime? If so, so what? MacPherson: We have put the source of the obligation where it ought to be. We have iput its source its source in the law." On page 412, cheapest cost-avoider argument "Defendants, not recreational skiers, have the expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone can properly maintain and inspect their premises, and train their employees in risk management. They alone can insure against rikss and effectively spread the cost of insurance among their thousands of customers. Skiers, on the other hand, are not in a position to discover and correct risks of harm, and they cannot insure against the ski area's negligence." Implied Assumption of Risk Here's what you need to understand about IAoR Third Restatement has argued that IAoR should be abandoned Smollet v. Skayting Dev. Corp. P was rollerskating at a rink with no guard rails. P has a conversation with owner about the fact that there are no guard rails beforehand. While skating, she inadvertently went off the rink and fell, allegedly because the difference in surfaces was so shocking. D argues that there was implied assumption of risk because she knowingly went skating here. Trial judge takes away the assumption of risk argument, forces D to make comparative fault argument D appeals

's

Torts 8
Monday, October 24, 2011 2:51 PM

Class Notes 10/24 Smollett continued What is the problem? Form If you have something that looks like a contract, that people in theory have had the opportunity to walk away from or negotiate for, we call that explicit assumption of risk. We essentially privilege the volition of the risk-taker. So long as their assumption of risk is voluntary and not against public policy, its gonna be OK. But then we get to implicit assumption of risk. Its a world in which plaintiff encounters unreasonable conduct by the defendant, typically after the unreasonable conduct has occurred or has been set in motion. What is her option at that point? Go home or skate. But there is no indicia of consent to encounter the risk posed by defendant's unreasonable conduct. In such a case, we have only her action to judge. This world is thrown into disarray by the introduction of comparative fault, which focuses The problem implicit assumption of risk raises is not that there should be some times when a plaintiff's conduct The problem is whether or not there is ever something called reasonable voluntary embrace of the defendant's carelessness. We know there can be unreasonable embrace, that's comparative fault. Remember, one of the virtues of explicit assumption of risk is that we get to look under the hood and see the waiver. In Smollet, the court concludes that she did assume the risk Two observations: The court doesn't actually say that she knew there was a breach of duty towards her There is something ironic in that if you believe in this kind of approach that preserves some sliver of implied assumption of risk in the face of comparative fault, there is this irony that plaintiffs who are Menloves

have a shot of recovering something while plaintiffs who are not Menloves get zero. Slide Implied AoR v. No Duty, No Breach N.B. Before the era of comparative fault D's choice of affirmative defense - contributory negligence or assumption of risk - made no difference wrt P's recovery Rrestatement (Third) of Torts Apportionment of Liability Section 3, cmo. c: Statutes of Limitations and Repose Moving on from affirmative defenses that are in some ways linked to the individual plaintiff's own subjective choices to those which are independent of those subjective choices, and which are instead objective. Slide The basic idea P must commence suit within a prescribed period of time, often 2 or 3 years Otherwise, P's claim is barred Why have such a rule? Arguments for the necessity of finality, difficulty of having fair trials with An affirmative defense D's burden to prove that limitation period has been exceeded. Example statute incl. repose period AND limitations period The key thing Sebok wants to stress: they are generally the sort of thing that sophisticated legal scholars find incredibly boring If you remember nothing else from my class, please remember this: There is nothing so dangerous as a lawyer who is too smart to remember the statute of limitations. Here's the problem: You get no second chance. There is virtually nothing to appeal on statute of limitations. Rules about statutes of limitations Note the distinction between statute of repose and statute of limitation Not every action has a statute of repose, all of them have a statute of limitations. Statute of repose: at the time of the wrong the clock starts ticking Highly controversial Statute of limitations: usually extend shorter periods of time, but start ticking when the plaintiff discovers the injury (or when the injury should have been discovered). Repose Limitations

time D acts negligently P is injured

Ranney v. Parawax Co.

Ranney worked for Parawax from 1975 through 1981. Was exposed to toxic materials. Became ill and was diagnosed with Hodgkin's disease in 1985. Doctors tell him that they can't confirm any connection between his disease of Slide 1981 1992 1985 1988 1991

P's last exposure confirms link

initial diagnosis

P's wife tells him of law school cases

new doctor

When did the 2-year limitations period begin? As soon as P had "knowledge of the nature, seriousness and probable compensable nature of his disease" (p. 426) "Inquiry notice" = when you learn sufficient facts that would cause a reasonable person to believe they have grounds to inquire as to whether you have a compensable thing. Once you are on inquiry notice, your statute begins running and P's duty to investigate the causes of his disease kicked in by 1988 Would a reaonable investigation have revealed D's causal role? Majority: YES, and P's claim is thus barred. Dissent: Wrong question! The point is that P's actual reasonable investigation didnt reveal D's role; thus P's claim should be allowed. P argues it wasn't his fault that he wasn't able to make the connection to the defendant because he reasonably relied on (Sebok's stipulation) a careless doctor who failed to give him that information, and therefore his inquiry Rule: Bad luck on the plaintiff's part even if reasonably relied upon will not toll the statute of limitations. "It is well settled that the statute of limitations is not toled by mistake or misunderstanding. Also, a diligent investigation may require one to seek further medical examination as well as competent legal representation." Note: if the defendant actively misled the plaintiff or committed other misdeeds to prevent the plaintiff from suing before the statute of limitations ran Immunitites and Exemptions: Intrafamilial and Charitable Immunities Many different kinds of immunities Slide Spouses At common law, wives could not sue their husbands for intentional torts (e.g. battery) Domestic spousal relations as "private" Likewise for negligence Worry that spouses could collude to defraud auto insurers By the 1970s, a majority of states had rejected blanket spusal immunity But see, e.g. Heinze v. Heinze (Neb. 2007) (husband's suit barred by a 'guest statute')

Charities Old rule of blanket immunity for charitable orgs. Has been changed in most states Most importantly, today charitable hospitals can generally can be sued for their physicians' negligence (respondeat superior) Parents Most states have cut back on (but haven't abolished) parental immunity Again a worry that parents and children could collude to defraud auto insurers Most important area of immunity: Sovereign Immunity Riley v. United States Riley was stopped waiting to turn onto a busy highway. View was obscured by mailboxes. Sues Postal Service for negligently placing P's prima facie case Injury: hit by a car Duty: place mailboxes in a safe and reasonable fashion Breach: Did not, even after being warned it was dangerous Cause: but-for, obvious Federal Tort Claims Act of 1946 Significantly scales back the common law rule of sovereign immunity But retains it for government's "discretionary functions" Berkowitz test: two parts Must involve an element of discretion Example: the government may not hide behind sovereign immunity if a VA nurse accidentally pricks someone with an AIDS-infected needle. But if the Secretary of Health and Human Services decides the VA won't screen any blood for AIDS, then they have immunity for torts coming from that decision. The judgment at issue must be of the kind that the discretionary function exception was designed to shield." Incorporates substantive standards of liability set by state tort law No punitive damages No jury trial Prior to FTCA, you couldn't sue the state at all. How apply to this case?

P brings suit

Torts 9
Monday, October 31, 2011 2:52 PM

Class Notes 10/31 Punitive Damages National By-Products Inc. v. Searcy House Moving co. Two important lessons to draw out of this case that are not in this case Don't allow punitive damages for negligence or for strict liability. They only exist in intentional torts and in "a problematic area" between negligence and intentional tort. Note: most intentional torts will also fall into the category of crimes. Recklessness - the murky area Some jurisdictions will have areas of negligence that do not constitute recklessness, e.g. gross negligence. Example: West Virginia has "gross negligence" which is worse than negligence, and then recklessness which is even worse than this All jurisdictions distinguish between recklessness and intent Two kinds of recklessness Recklessness - presenting an extreme risk to the people around you, but not necessarily knowingly Conscious indifference - presenting an extreme risk to the people around you, knowing that you're doing so, and not caring about the fact that you know that that's what you're doing. Mathais v. Accor Economy Lodging, Inc. Prima facie case Intention tort - battery D intended or was substantially certain to cause harm to the body of the plaintiff Note: because of punitive damages, you can go for token compensatory damages and big punitive damages Jury awards 5k compensatory damages, 186k punitive. State law question: is 186k too much given the 5k damages? Virtually no real law on this Next layer of review: Constitutional Developing SCOTUS jurisprudence on the guidelines for any state court on punitive damages

Vicarious Liability Taber v. Maine Maine, a Navy serviceman, gets drunk on base, drives, injures Taber. Joint liability and Contribution Ravo v. Rogatnick Class Notes 11/1 Ravo v. Rogatnick Doctors are sued for medical malpractice, jury finds one to be 80% at fault, the other 20% at fault. The one who is 80% at fault can't pay, the one that's 20% at fault doesn't want to be a joint tortfeasor because he doesn't want to pay for the whole judgment. Argument: The injury occurred through the confluence of two separate acts of carelessness. First doctor was careless in not ordering a C-section in the birth, second doctor was careless in not providing postbirth treatment that may have ameliorated or completely wiped out the damage done by the improper birth. Both doctors are but-for causes of the injury. Looking at the facts at trial # of Menlovian acts Pre-birth: Rogatnick Post-birth: Harris 8 3

Why have comparative thing? So that defendants can sue each other Court tells the 20% doctor to GTFO. Joint-tortfeasing means joint tortfeasing From the notes After this case, many jurisdictions passed laws calling for strict apportionment among all parties. Bencivegna v. J.J.A.M.M. Plaintiff suing the hitter (unnamed) and the bouncers (unnamed) and the club. Suing for negligence in controlling the crowd Prima facie case Injury: broken nose Duty: Operate in safe and reasonable fashion Breach: Did not by doing all these things But-for the breach Cause: duh Damages: 40,000 Issue on appeal: club says judge erred in not asking jury to rule on the contribution of the unnamed hitter. Goal: get under 60% threshold in New Jersey (above 60% pay for the whole, below, pay for your apportionment) Judge didn't allow it because the hitter is not a party to the lawsuit.

Interinsurance E Question for summary judgment: Battery Cecarelli v. Maher; Paul v. Holbrook Extended personality concept (look up again) Prima facie case for Battery Actor A is subject to liability to other person P for battery if: (1) A acts (2) intending to cause a contact with P of a type that is harmful or offensive; and (3) A's act causes such a contact Proximate cause in intentional torts "Pretty much a black hole" Nelson v. Carrol Carroll pistol-whips Nelson, a bullet discharges, Nelson in coma for months Two Weird things Why Nelson doesn't sue in negligence? Can't be statute of limitations The problem: why is it insufficient to have a factfinding by the jury that it was not Carroll's intention to actually shoot Nelson? "The intent element of battery requires not a specific desire to bring about a certain result, but rather a general intent to unlawfully invade another's physical well-being through a harmgul or offensive contact or an apprehension of such a contact*I+nnocent conduct that accidentally or inadvertently results in a harmful or offensive contact with another will not give rise to liability, but one will be liable for such contact if it comes about as a result of the actor's volitional conduct where there is an intent to invade the other person's legall protected interests." Because he intended to hit Nelson with a gun, he had the requisite intent. Irrelevant that he intended to hit him with a gun rather than shooting him with a gun Does raise an interesting question about proximate cause. Not raised in this case. But later, are you liable for unforeseeable consequences? Sometimes not Norman v. Insurance Co. (cited in Nelson) D shot at the floor, bullet ricocheted and hit P. Liable. Wagner v. State Mrs. Wagner was injured when a mentally handicapped man attacked her while he was in the custody of state employees. Mrs. Wagner sues the state of Utah, though not in battery Not in battery because you would have to go after them in some sort of respondeat superior theory, but Giese is not an agent of the state, so that's not really going to apply. Also, even if he were, very hard to get respondeat superior in intentional tort

What is Wagner suing under? Negligence. Negligent supervision At trial, judge grants summary judgment for the state Rules that Wagner's injury arose out of a battery, "a tort for which the government is immune from suit," under the Governmental Immunity Act "Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment except if the injury arises out of(2) assault, battery, or false imprisonment "The Wagners argue that Mr. Giese's attack could not legally constitute a battery because that intentional tort requires the actor to intend harm or offense through his deliberate contact, an intent Mr. Giese was mentally incompetent to form. Argument rejected. "The plain language of the comments makes clear that the only intent required to commit a battery is the intent to make a contact, not an intent to harm, injure, or offend through that contact...So long as the actor intended the contact, "it is immaterial that the actor is not inspired by any personal hostility to the other, or a desire to injure him." The linchpin to liability for battery is not a gugilty mind, but rather an intent to make a contact the law forbids." The law of trespass There are interests which are inviolable and if you violate them, then gg Assault Prima facie case (1) A acts (2) Intending to cause in P the apprehension of an imminent harmful or offensive contact with P; and (3) A's act causes P reasonably to apprehend such a contact Beach v. Hancock Prima facie case Act - points the gun Intent to cause apprehension of an imminent harmful or offensive contact - He pointed a gun, yarks A's act causes P reasonably to apprehend such a contact - he had a gun pointed at him, yarks D appeals saying that the gun wasn't loaded Narks, not gonna fly "Not relevant that he didn't have the present ability to cause the offensive contact threatened" Brooker v. Silverthorne Prima facie case Act - D spoke over the phone in a threatening way Intent to cause apprehension - This is where the case falls apart. Because he wasn't there and didn't say "I'm gonna come there and hurt you," there is no imminence here. Vetter v. Morgan Suit against Gaither Gets settled

Suit against Morgan Act - Violent gestures, shouting Intent - Obvious Fear caused - yarks Appeal D argues he did not intend to put her in fear because he was far away in a separate vehicle, windows were rolled up, locks, etc. "There was evidence of a threat. Vetter testified in her deposition that Morgan verbally threatened to take her from her van. Ordinarily, words alone cannot be an assault. However, words can consittute assault if "together with other acts or circumstances they put the other in reasonable apprehension of imminent harmful or offensive contact with his person." The record is sufficient to support an inference that Morgan's threat and the acts and circumstances surrounding it could reasonably put someone in Vetter's position in apprehension" "Although Vetter may have had the ability to flee by turning right, backing up, or running the red light, her ability to preent the threatened harm by flight or self-defense does not preclude an assault."

Torts 10
Monday, November 07, 2011 2:50 PM

Other intentional torts Statutes of limitations are typically shorter for intentional torts Affirmative defenses Consent Defense of a right Defense of yourself, property, a third party Koffman v. Garnett Negligence argument Gets dismissed, not really important Battery prima facie case (1) A acts: Picks up P and slams him to the ground (2) intending to cause a contact with P of a type that is harmful or offensive: He slammed him to the ground (3) A's act causes such a contact: no shit Consent defense Its a football team, kids consent to being tackled Response: consent to being tackled by other kids "of like age and experience Issues in consent

Whether or not there is consent Objective manifestation of consent Scope of consent Do you consent to injury being visited on you *in this way* Classic case Doctors who go off reservation and starts working on areas of the body not originally intended. Note 9 - Consent to illegal activities Official and unofficial story Officially A consent to an illegal activity will function as a consent One very powerful exception When criminal law has been written specifically to protect the class of person P belongs to e.g. minors victims can sue in statutory rape laws Defense of one's rights Haeussler v. De Loretto "One who is involved in an altercation with another has the right to use such force as is necessary to protect himself from bodily injury and the question of the amount of force justifiable under the circumstances of a particular case is also one for the trier of fact." From the casebook "Self-defense is available to a victim who actually and reasonably believes it is necessary to injure another to avoid imminent injuries to herself such as harmful contact or confinement." Two step process You are privileged to use lethal force or force calculated to or substantially certain to cause grievous bodily injury ONLY IF the other person is acting in a way that threatens imminent lethal attack, grievous bodily injury, or sexual assault. Failing that imminent threat of lethal attack, grievous bodily harm, or sexual assault, you may not use such force. Not clear what "grievous bodily harm" means Not privileged to use lethal force if you have the possibility of safe retreat. EXCEPTION: If you are in your home, you can kill them Defense and Recapture of Property Katko v. Briney D's rigged a shotgun to shoot people who break into their house Never permitted to use lethal force to protect property Cannot use force intended to cause injury to protect property Quoting Restatement of Torts The value of human life and limb, not only to the individual concerned but also to society, so outweighs the interest of a possessor of land in excluding from it those whom he is not willing to admit thereto that a possessor of land has, as is stated in Section 79, no privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious harm to the occupieres or users of t he premises. Reasonable mistake does not excuse

Intent Revisited Vosburg v. Putney Classic case where we have a number of issues at play D who lightly taps P in the classroom. Unknown to D, P has opaque invisible weakness. As a result, the otherwise harmless tap becomes First argument: proximate cause Second argument: evidentiary (don't want to touch) Third argument: did not intend any harmful or offensive contact, contact was not offensive Cole v. Hibberd Hibberd kicks Cole in the butt, Cole brings a negligence suit Injury: kicking in the butt Duty: to engage in friendly horseplay in a safe and reasonable fashion Breach: did not do so, kicked too hard Cause: whatever Class Notes 11/8 Intent in tort law State of mind of intending to bring about offensive consequences Includes two very distinct states of mind both of which satisfy the element of intent for any intentional tort. Either (1) Acting with the intention of bringing about a harmful or offensive contact with another person i.e. acting with subjective desire (2) Acting with knowledge on the part of the actor that such contact is substantially certain to be produced. Potential distinction between the desire prong and the substantial certainty prong This is what Garrett v. Daley is about P is a child who pulls the chair out from under an old person, causing the old person to fall Defense: child says his object was innocent, he just wanted the chair, didn't want to hurt anyone STILL SATISFIES definition of intent. Substantial certainty. Whether or not it was your desire is irrelevant In re: White Transferred intent Bankruptcy case at the trial level, stemming from a judgment in tort "Under the doctrine of transferred intent one who intends a battery is liable for that battery when he unexpectedly hits a stranger instead of the intended victim. If one intentionally commits an assault or battery at another and by mistake strikes a third person, he is guilty of an assault and battery of the third person if "defendant's intention, in such a case, is to strike an unlawful blow, to injure some person by his act, and it is not essential that the injury be to the one intended."" Note on transferred intent: you can transfer intent across intentional torts. I can intend an assault but accomplish a battery and be liable for that battery. Does not apply to Intentional Infliction of Emotional Distress Note 4 on 625: Lind v. Burnett False Imprisonment Prima facie case for False Imprisonment

Actor A is subject to liability to other person P for false imprisonment if: (1) A acts; (2) intending to confine P; (3) A's act causes P to be confined; and (4) P is aware of her confinement Fojtik v. Charter Med. Corp P voluntarily commits himself to rehab. Requests passes to leave, is denied. Eventually figures out that he can just leave, does so. Sues for false imprisonment Prima facie case (1) Act: Didn't give him passes (2) Intending to confine P: yarks, don't want him to leave (3) A's act causes P to be confined: So he thought (4) P is aware: yarks Dismissed on summary judgment because they did not act, he was there on his own Black v. Kroger 18 year old woman with 10th grade education and 2 year old daughter accused by employers of stealing. Held in small windowless room, repeatedly told they knew she was stealing, and if she did not admit to stealing they would take her to jail. "The court noted the woman's lack of business experience and the harsh and intimidating nature of her questioning. The court held that under these facts the jury could have reasonably concluded that the threats to the woman intimidated her to the point where she was not free to leave and was unreasonably detained. Skillern & Sons v. Stewart Female employee accused of stealing, taken into a room, intimidated, physically pushed back into her chair, threatened with imprisonment. False imprisonment. If physical confinement, pretty easy case. More difficult when we have nonphysical confinement. Shopkeeper's privilege People who are deemed merchants have special rights. It is not realistic and not desirable to hold shopkeepers strictly liable. Allowed to make reasonable mistakes. Grant v. Stop-N-Go Market of Texas, Inc. Shopkeeper detains kid for stealing chips, is wrong about that. Here the question is whether or not, given that as a matter of fact Grant did not actually take away the shopkeeper's chattel, the shopkeeper's error was reasonable Videotape of the event was missing

Class notes 11/10 Infliction of Emotional Distress IIED is the most recently recognized new tort. Recognized by the 2nd Restatement, based on articles published in 1940s and 1950s Dickens v. Puryear Dickens is beaten to shit, mortally threatened by Puryear and assailants. Statute of limitations runs on assault and battery, Dickens files suit under IIED. Summary judgment for defendant Prima facie case for IIED

Extreme and outrageous conduct Intentionally or recklessly causes severe emotional distress to another Notes on this It is possible to do something extreme and outrageous that causes severe emotional distress and not be liable for IIED if the actor is not intentionally or recklessly causing the emotional distress If you don't actually suffer the severe emotional distress Three cases Littlefield v. McGuffey Defendant is a landlord, doesn't want to lease to a black woman, harasses her P does not need to show bodily harm Stockett v. Tolin Wilson v. Monarch 164 Mulberry Street Corp. v. Columbia University CBS Two actions Plaintiff 1 is Da Nico IIED dismissed, libel allowed Plaintiff 2 is Jospehine IIED allowed, libel dismissed Defendant appeals allowing IIED, but P2 prevails Jury could find conduct is outrageous Each has actions in IIED and libel No transferred intent in IIED Negligent IED - if it were completely developed D owed duty to P D acted unreasonably wrt that duty But-for unreasonable conduct, P would not have suffered emotional distress The recognition for liability for emotional distress has never been met with full acceptance. Wyman v. Leavitt A snapshot of what pedestrian tort law looked like in the 19th century wrt emotional distress D is blasting a mountain, causing a rock to fly into the Wymans' property Two very distinct wrongs Mr. Wyman has had property violated, trespass Mrs. Wyman had the shit scared out of her because it almost hit her Court: Mrs. Wyman can gtfo Impact rule: you don't get recovery for your injury of emotional distress unless your body is touched. Historical origins of NIED Maginot lines Impact rule - Wyman Zone of danger rule -

Only get emotional distress if you were in a "zone of danger" where you were almost hurt Bystander rule You're a bystander and you see someone with whom you're in a special relationship in (child, spouse) get injured. Reasonable foreseeablity No one has this Why? Justice Thomas' opinion in Gotschal

Torts 11
Monday, November 14, 2011 2:51 PM

Class notes 11/14 More Negligent Infliction of Emotional Distress Used to be limited a lot by the impact rule Could monkey around with this if very slight physical contact but severe emotional distress Robb v. Pennsylvania R.R. Corp Prima facie case Injury: Emotional distress Duty: Conduct your railroad in a safe and reasonable fashion Breach: Did not, allowed a ditch to develop which could stick cars on the tracks Cause: actually somewhat problematic; not obvious that severe emotional distress is within the risk, but not obvious that its outside the risk either At trial, summary judgment for the defendant Impact rule Holding: impact rule rejected Reasoning "WE hold, therefore, that where negligence proximately caused fright, in one within the immediate area of physical danger from that negligence, which in turn produced physical consequences such as would be elements of damage if a bodily injury had been suffered, the injured party is entitled to recover under an application of the prevailing principles of law as to negligence and proximate causation. Otherwise stated, where results, which are regarded as proper elements of recovery as a consequence of physical injury, are proximately caused by fright due to negligence, recovery by one in the immediate zone of physical risk should be permitted." This rule has at least two ways in which it can be grudging Can be a rule that only entitled to recovery if you were **Actually** in the zone of danger, barring recovery if you reasonably believed or sincerely believed you were in the zone of danger.

Most obvious alternative to zone of danger rule Take out the condition that the plaintiff has to themselves believe they are in danger of imminent physical peril What would be the argument for that Other ways to suffer emotional distress besides almost getting hit by soemthing Consolidated Rail Corp v. Gottshall Gottshall (P1) saw best friend have a heart attack and die from negligent worksite operation Physical consequences: nausea, nightmares, anxiety, suicidal thoughts etc etc etc Carlisle (P2) suffered stress, insomnia, anxiety, from the same. Summary judgment against Gottshall, Jury awards $386,500 to Carlisle Supreme Court Rejects test created by 3rd Circuit Test was two parts: (1) whether there was convincing evidence of the genuineness of the emotional injury claim and (2) whether the injury was foreseeable " A more significant problem is the prospect that allowing such suits can lead to unpredictable and nearly infinitel ibaility for defendants.this concern underlying the common-law tests has nothing to do with the potential for fraudulent claims; on the contrary, it is based upon the recognized possibility of genuine claims from the essentially infinite number of persons, in an infinite variety of situations, who might suffer real emotional harm as a result of a single instance of negligent conduct." Picks Zone of Danger rule Fits FELA's focus on physical perils Bystander rule Dillon v. Legg Factors (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. One of the paradoxes of the bystander rule: (comes up in Dillon v. Legg) If the child hit in Dillon v. Legg was contributorily negligent in her own death Beul v. ASSE Int'l The question is: what was the duty owed by the defendant to the plaintiff? P is international exchange student, D is an exchange student company Duty is to perform the duties of an international exchange student company in a safe and reasonable fashion The duty was to monitor the family so that if there was a risk of injury it could be prevented. Where does the duty to prevent foreseeable emotional distress come from? Case would be easy if personal injury. There are at least two reasons why there is a duty to avoid that species of pure emotional distress

Interesting illustration of comparative fault at work Jury finds that the agency is a but-for cause, but also the 16 year old The only rule that it makes sense to explain this decision is the foreseeability rule the Third Circuit uses in Carlisle. But that's not good law. Two arguments Impact rule Dubious Special relationship Where there's a special relationship between plaintiff and defendant, there is a duty to avoid foreseeable pure emotional distress, independent and separate from impact, zone of danger, or bystander rules. Strict Liability Not all the torts in Chapter 11 properly classified as strict liability torts Classic example about what was at stake with this choice Brown v. Kendall "A stupid case" - someone puts someone's eye out with a stick At trial, plaintiff wins. Its much easier to look at defendant's jury instructions. These were not adopted by the trial judge. D appeals on this basis What jury instructions? Ordinary care Negligence

OC Defendant wins Plaintiff's Conduct Plaintiff wins

Negligence

Defendant wins

Defendant wins

Plaintiff's instructions OC

Neg

OC Plaintiff wins Plaintiff wins

Neg

Red circle = the key point Who pays when accidents happen out of no ones fault? Shaw rules that strict liability will be a special little island that will have to be justified, not the default rule. An example of progress in which we go from a plaintiff-friendly rule, to a defendant-friendly rule. The old rules made it too easy for NY Central R.R. Co. v. White "No person has a vested interest in any rule of law, entitling to insist that it shall remain unchanged for his benefit." Property torts Burns Philp Food, Inc. v. Cavalea Cot'l Freight

Defendant wins Defendant wins Car

BP Dotted line = actual property line Solid line = fence BP built BP discovers its been paying Cavalea's property taxes, sues for unjust enrichment Cavalea countersues for trespass because of the fence BP basically says we didn't mean to Doesn't matter, trespass = strict liability Very important to read Note 9 Defense to trespass: necessity Note case (783) Ploof v. Putnam P is on a boat, storm happens, P tries to dock on D's dock, D unties the boat sending P's back out into the storm. Boat is wrecked, injuries to P. D's defense: defense of property P: necessity tho. Was privileged because of the necessity created by the storm. Vincent v. Lake Erie Transp. Co. Defendant has contract to be on P's dock to unload passengers from their steamship. D is so unloading passengers when a storm comes up, so D stays tied to the dock. In the course of the storm, the boat smashes up the dock P wants damages. D says, if I was acting reasonably by staying at the dock, how can I be wrong? Ruling: D has to pay for damage to the dock. Interesting in that we are having strict liability for activity we want to encourage. Why?

Could be strict liability in a trespassing case. Privilege to stay at the dock, but not privileged to consume the dock. Privilege to trespass is incomplete. This will bring us to the tort of conversion. Class Notes 11/17 Why Sebok thinks Vincent v. Lake Erie Transp. Co. is important

Hr

D1 tied to P's dock, uses it out of necessity in the storm, does damage as a result of the storm, D1 held liable for those damages. Notes: If D1's rope slips and his boat floats off and damages docks H1 or H2, D1 will not be liable for that damage. If D2 does nothing and injures any of those docks, will not be liable for the damage. Conversion Thyroff v. Nationwide Mut. Ins. Co. Nationwide fires Thyroff and takes his computer, Thyroff claims his files are on the computer and Nationwide is wrongfully converting his data. Thyroff wants his fata back. How is conversion distinguishable from trespass Trespass seems to be about both land and chattel. Conversion does not apply to land, does apply to chattel. With chattel, you must have real damages Damage can come in one of two ways Breaking the chattel Taking away the chattel In conversion you have a choice of remedy Conversion is like trespass in the following way: It requires intent, but not necessarily intent to deny another's legal rights. When we have significant intangible interests which are attached to moveable property, we will treat them as moveable property . Merger rule Consent Copeland v. Hubbard Veterinary student secretly videotapes a vet's methods, broadcasts them on TV. Vet gets mad, sues for trespass

Argument (P): gave permission ot be in my property, did not give permission to videotape stuff there tho Argument(D): But I had consent to be there Court finds for P Nuisance Sturges v. Birdgman D is engaged in an industrial activity which creates a lot of noise, is preventing P from using a consulting room he just built next door. The most important thing about nuisance: Nuisance is insensitive to the reasonableness of the conduct, it is only sensitive to the reasonableness of the infringement Penland v. Redwood Sanitary Sewer Sewage treatment plant was modified to be more environmentally friendly, created horrible smells. Notice how unreasonable interference is evaluated Next, notice how they evaluate the question of whether "the hardship caused to the defendant by the injunction would greatly outweigh the benefit resulting to the plaintiff"

H,

Torts 12
Tuesday, November 22, 2011 2:51 PM

Class Notes 11/22 Ultrahazardous activity Klein v. Pyrodyne Corp D is a contractor that puts on fireworks displays. One of their mortars was knocked horizontally, fired its firework, and exploded amid the crowd. People sue. Is D strictly liable? Section 519 of Restatement of Torts : any party carrying on an "abnormally dangerous activity" is strictly liable for ensuing damages Section 520 of Restatement of Torts: six factors to be considered in determining whether an activity is "abnormally dangerous."

(a) existence of a high degree of 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 How to evaluate these factors Any one of them is not necessarily sufficient. Ordinarily several will be required. However, not necessary that each of them be present, especially if others weigh heavily. "The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it Highlighting in book is gonna start on page 830 Products Liability Prima Facie Case Actor A is subject to liability to person P in products liability if P has suffered an injury A sold a product A is a commercial seller of such products At the time it was sold by A, the product was in an defective condition The defect functioned as an actual and proximate cause of P's injury

Torts 13
Monday, November 28, 2011 2:52 PM

Class Notes 11/28 Let's appreciate what's happening with post-Greenman Retailers? On what basis would they be held liable? Get swept in under the same tort concept of products liability as manufacturers (Vandermark v. Ford) Who is the protected class? (Elmore v. Amerian Motors Corp) bystanders are protected class as well. The move off of contract and into tort opens up a whole new possibility of protecting bystanders. Never could have occurred if products liability were handled under contract theories. Cronin v. J.B.E. Olson Corp Bread truck crashes, thingy holding back the bread breaks and mashes the P. SCOCA finds that plaintiff need only prove a product is "defective" not that it is also "unreasonably dangerous" Reasoning "A bifurcated standard is of necessity more difficult to prove than a unitary one."

The reason why the Restatement put those words in was to make sure than trivial defects did not give rise to defendant liability. For instance, if the hasp in this case was effective because Consumer Expectations Test - Sebok hates it, no one uses it, WHY ARE WE TALKING ABOUT IT Products liability cannot be grounded on contracts theories or on strict liability grounds. It is essentially an extension of negligence. Restatement of Torts section 402A Section 1 - Liability of commercial seller or distributor for harm caused by defective products. One engaged in the business of selling or otherwise distributing products who sells or distrbutes a defective product is subject to liability for harm to persons or porperty caused by the defect. Definition of design defect (Section 2(b) of restatement) - a defect which render's the product "not reasonably safe."]] Prima facie case for products liability P has suffered an injury A has sold a product A is a commercial seller of such products At the time it was sold by A, the product was in a defective condition; and The defect functioned as an actual and proximate cause of P's injury. Gower v. Savage Arms, Inc. Guy shoots himself in the foot. Says there are 3 thigns wrong with your product 1. No warning not to point it down at my foot while unloading the cartridge 2. Should have designed it so there's an audible clicking noise when the safety is on 3. The safety should have felt like it snugly fit in Court says Class Notes 12/1 What Sebok thinks the course is about; why is torts important? "I could see some of you wanting to go on to teach Torts; which I think is a very interesting thing to do, much in the same way you might want to be a geologist without having any desire to be a miner." About the exam Completely open-book...bring anything you want into the exam room Can you use the vague statements, general principles of law, and cases from your casebook to make a persuasive argument about who should prevail Questions will be essays, maybe some short answer There are right answers Expects some precision, anaswer can't just be "smart" Doesn't really take off for spelling mistakes or presentation, but he also doesn't have much patience. Once you've demonstrated you know something, don't need to keep repeating it. e.g. put the prima facie case for (x) in once

Review stuff Foreseeability The modern rule is that in personal injury/damage to property, foreseeability plays a large role in establishing duty. Don't think there's confusion Definition of duty from Third Restatement (A)An actor ordinarily has a duty to exercise reasonable care when his activity creates a risk of harm. Risks are assumed to be foreseeable. (B) When an articulated, countervailing principle of policy...no duty Foreseeability plays almost no relevant, useful role in establishing element 2 (of prima facie negligence case) Plays very significant role in breach of duty (element 3) Hand test We're going to refer to the hand test, but he's yet to see an exam that has a full hand test analysis Note: will talk about states that we've discussed in class (e.g. New Jersey, California) Rowland factors for California, may be useful elsewhere Risk rule Wrt the thin skull rule Exception to modern doctrine of proximate cause. Thin skull wrt property? Two levels What physical consequences are within the risk rule? Basically, all of them What do you do with unforeseeable emotional distress? Court makes interesting distinction between the nature of the consequence and the extent of the consequence Not responsible for emotional distress the nature of which is not foreseeable However, responsible for extension For example, plaintiff suffers a nearmiss accident that would have given rise to emotional distress in anyone but has an extreme reaction that a normal person wouldn't suffer. D is still on the hook for the extreme reaction as an extension of the normal reaction. Focuses on the way NIED Courts have gotten rid of the physical manifestation rule Bystander rule or zone of danger rule Transitoriness not important Clarification: Kept referring to Wisconsin as the one state that has some rule, see753 IIED Difference in that one of the elements is the victim must suffer extreme emotional distress Marrying the risk rule to foreseeable consequences test Think about if the risk that is realized in the case of a consequence is one that is within the scope of the risk? What about the foreseeable consequence produced of an unforeseeable means Outside the scope of the risk. Implied Assumption of Risk

Has been viewed by most jurisdictions as an artifact of the past Doctrine which can only be saved by erecting somewhat arbitrary categories. Jurisdictions which want to preserve it (New Jersey, California) have to adopt pretty arbitrary lines NJ: keeping it for reasonable CA: primary and secondary IAoR, acts in which the plaintiff chooses to engage in an activity with inherent risk Consent to illegal activities The plaintiff's knowing and voluntary consent to illegal activity is consent and allows D to escape liability, unless the statute governing the illegal activity protects the class of people to which the plaintiff belongs. Example: statutory rape Transferred intent No transferred intent in IIED If the D directs an activity D points a gun at A. Lots of things A can do. What about the 3rd party B watching D point gun at A? If B is not related to A and observes it, must show physical manifestation for IIED If B is related to A, then basically transferred intent rule