Torts

Introduction

Assignment 1: Introduction Inventing Tort Law

  1. Introduction to Torts
    1. Tort law is the law about certain types of wrong people do each other
    2. Covers every other kind of civil wrongdoing not otherwise granted by government statutes regulations
    3. Tort law is a system for allocating the risks of non-criminal harm that arise in everyday life
    4. Remains Common Law
    5. Restatements of Torts published, The Restatements are NOT the law
    6. Example of No smoking within 25 feet
    7. Development of “case method” by HLS professor Langdell
  2. How to Learn the Law in Three Easy Steps
    1. Step 1: Learning what the rules are
    2. Step 2: Understanding what the rules mean and when they apply
    3. Step 3: Identify legal issues hidden in a complex set of facts and knowing how to apply those facts to  whether the requirements of the rule are met
  3. About this Course
    1. Tells what the rules are
    2. We will read cases, but not many
    3. Number of lawyering problems
      1. Goals:

a)Learn key rule of torts

b)Be sensitive to facts

c)To work on art of making an argument

  1. How to Prepare for This Class
    1. Learning to work not just hard but also smart
    2. Best way to prepare for this class is to:
      1. Read all the material
      2. Study, to memorize, and think about the rules presented at the beginning of the section
      3. Attempt the Class Preparation questions following cases
      4. Review continuously
  2. Final thoughts
    1. Wants to teach where elements of the law are clear and will give opportunities to apply the rules like a lawyer

Assignment 2: Fault

  1. Compensation for Injuries
    1. Compensate for injuries.
      1. We do want to compensate people for their injuries.
    2. Loss Sharing
      1. If possible, you don’t want to directly shift the cost from the plaintiff to the defendant.
      2. If you have a corporation, where they could engage in loss sharing. It is much easier for society to shift the costs broader.
        1. Example: Hammon v. Jenn 20 N.W App. 3D 528
          1. We would want the plaintiff to get covered for the injuries, we would not want her to bear the cost alone
  2. Deterrence or Prevention Injuries
    1. Products liability as an example.
      1. By imposing liability on manufacturers, and it’s strict liability.
        1. The manufacturers will always bear the cost
        2. Hammon v. Jenn 20 N.W App. 3D 528 (Northwestern 2019)
          1. Imposing liability on someone like that would not have deterrence
  3. Redress of Rights Violations Caused by Wrongful Conduct
    1. Make sure rights are protected
    2. Retributive purpose. We want to punish you for doing wrongful conduct.
      1. Ie. Punitive damages. But very limited, and rare

Assignment 3: Battery: Intent

  1. What are the prima facie elements of battery?
    1. Defendant acted
      1. “External manifestation of the actor’s will.”
    2. The act was intentional, or the defendant was substantially certain the harmful consequence would occur
    3. The act caused contact with the plaintiff or something physically connected to the plaintiff’s body
    4. The contact was harmful or offensive to the plaintiff
  2. The two ways of defining the intent?
    1. Single/Dual Intent. What is the single vs Dual intent standard?
      1. Single is the intent to make contact; Single intent.
      2. Dual is the intent to make contact and that it be harmful or offensive.
  3. The difference between subjective and objective standards?
    1. Objective standard. What is the objective standard?
      1. What an ordinary reasonable person would have known or understood.
    2. Subjective standard. What is a subjective standard?
      1. We are considering what the specific defendant actually knew or understood, might happen.
  4. The impact of the plaintiff’s consent to the contact on the defendant liability for battery?
    1. Consent is an affirmative defense that may be available if you are being sued for an intentional tort. Under this theory, a person who voluntarily consents to a particular act cannot also claim that the same act is an intentional tort. The law generally recognizes that “to one who is willing, no harm is done.” Consent can be given expressly in writing or verbally, and can also be implied by a person’s conduct. Whether consent was given is judged on an objective standard, namely, if a “reasonable person” could conclude that consent was given.?
  5. The concept of the assumption of risk?
    1. Assumption of risk is a defense in the law of torts, which bars or reduces a plaintiff’s right to recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity in which he was participating at the time of his or her injury.?
  6. The concept of transferred intent
    1. Transferred Intent. What is transferred intent?
      1. If Δ acts intending to cause harm to a person, the Δ is liable if that harm occurs to another person, even if the other person and resulting harm unexpected.
  7. The eggshell skull plaintiff rule
    1. A fundamental principle of tort law is that we take the victim as we find them. If a person acts in a way that hurts someone, then the wrongdoer is responsible for all of the victim’s damages, even if a different victim might not have been as susceptible or gotten as hurt from the same action.

Assignment 4: Battery: Contact

  1. What sorts of contact constitute a battery?
    1. batteries courts require the defendant to intend to cause EITHER harmful(Injury, pain, or illness) or offensive contact (outside of social norms/offensive if it would offend their personal dignity)
  2. How do we decide what is offensive contact?
    1. The Second Restatement, for example, defines contact as offensive if it “offends a reasonable sense of personal dignity.”
  3. What is the reasonable person standard for offensive contact, and the subjective exception?
    1. Reasonable person standard for offensive contact. The reasonable person standard for offensive contact is whether a reasonable person in the position of the victim would find the contact offensive.
      1. Subjective Exception. If the defendant knows that the plaintiff would find the contact offensive, even if a reasonable person in the same circumstances would not, then the defendant is liable for battery.
  4. How much physical contact with the plaintiff’s person is required for a battery?
    1. Two answers:
      1. None. It can be in contact with something the plaintiff is holding or touching. But it is still offensive. Can either direct or indirect.
      2. At least some physical contact  Can either direct or indirect.
  5. What is the role of consent in negating the tort?
    1. Consent by the injured party can negate the existence of a tort as is apparent in the Latin phrase “volenti non fit injuria” – to one who is willing, no wrong is done. Consent is judged by its objective manifestation: if a reasonable person would believe that the injured party consented there will be no tort, even if there was no willingness in fact.
  6. What is the distinction between motive and intent?
    1. Intention. Intention refers to purposeful action and a conscious decision to perform an act.
      1. Objective, and expressed
    2. Motive.  (Not an element of any intentional tort). Motive alludes to the ulterior cause, that induces a person to do or abstain from doing a particular act.
      1. Driving force, implied
      2. (It can be helpful in establishing intent).

Eichenwald v Rivello – Case shows that for an extreme case, Judge looks at broader goals of tort law.

Assignment 5: Assault

  1. The prima facie elements of assault
    1. The defendant acted
    2. The act was intentional
    3. The act caused the plaintiff to have a reasonable apprehension of or the defendant was substantially certain that conduct would place the plaintiff in reasonable apprehension of an imminent battery
    4. An imminent harmful or offensive contact (a battery)
  2. The meaning of apprehension
    1. Apprehension. The knowledge that the plaintiff was aware of the defendant’s imminent harmful or offensive acts.
      1. Subjective. The victim has to perceive the conduct. (They actually have to proceed it.)
      2. Objective. Would a reasonable person apprehend the conduct as imminent, in light of that.
  3. The relationship between assault and battery?
    1. Definition of assault. The tort of acting intentionally, that is with either general or specific intent, causing the reasonable apprehension of an immediate harmful or offensive contact.
    2. Definition of battery. Voluntarily bringing about an unconsented harmful or offensive contact with a person or to something closely associated with them
      1. The difference between the two is assault does not need to involve actual contact; someone needs to have that battery is imminent
  4. The sort of act that amounts to an assault
    1. The act does not need to cause contact with the victim
    2. That act needs to be more than mere words but not that much more (Vetter v. Morgan)
    3. Making someone think that they are going to experience a battery.
  5. The way transfer of intent works from tort-to-tort and person-to-person
    1. Transferred intent can work from assault to battery.
      1. Intended an assault but actually commit to a battery. It’s a battery
      2. Intended a battery but actually commit to assault. It’s assault.
      3. Intended to a battery person A, but hit person B.
        1. The battery would be against person B
        2. Intent to cause the battery to person A would transfer to the person B
      4. Intended to assault person A, but assaults person B.

Assignment 6: False imprisonment

  1. The elements of false imprisonment:
    1. Defendant acted
    2. With intent
    3. To confine, or instigate the confinement of, the plaintiff
    4. Within a bounded area established by the defendant
    5. Against plaintiff’s will, and
    6. Plaintiff is aware of the confinement or is injured by it
  2. The concept of bounded space
    1. The defendant must confine the victim completely within a defined area, although the size of the area of confinement may be small, like a moving car, or perhaps as large as an entire state.
      1. Some situations where it’s a metaphysical bounded area
        1. Don’t move or I’ll shoot.
          1. The bounded area is the space where you are standing
  3. How and when confinement does and does not occur
    1. Physical confinement. Being trapped in a space.
    2. By force. In the owners store, every time you want to leave the guard to the door, the guard pushes you down by force.
    3. By threat. A threat is sufficient if it would overcome the will of someone with normal resistance.
      1. Boundaries fixed by the actor must be complete. If you have a means of escape, you are not confined unless you don’t know about the means of escape. The actor does not become liable for false imprisonment by intentionally preventing another from going in a particular direction in which he has a right or privilege to go.
      2. Two common ways:
        1. The defendant claims a privilege to confine, and the plaintiff either disputes the privilege or claims that the defendant exceeded it
        2. The second situation is purely wrongful confinement, without any pretense of a right to confine
  4. Differentiating between motive and intent
    1. Prank scenario. Prank kidnapping for a bachelor party. A guy is kidnapped by a bunch of his buddies. No one has hinted to him in advance. But he acts these guys to do his bachelor party.
      1. Intention. Intention refers to purposeful action and a conscious decision to perform an act.
        1. Objective, and expressed
      2. Motive.  (Not an element of any intentional tort). Motive alludes to the ulterior cause, that induces a person to do or abstain from doing a particular act.
        1. Driving force, implied
        2. (It can be helpful in establishing intent)
  5. The shopkeeper’s privilege and false arrest situation
    1. Shopkeeper’s privilege: Shopkeeper’s privilege: Reasonable belief that something is stolen or not paid for and detention only lasts for a reasonable time. It only applies to chattels (personal property) or failure to pay for a service.
      1. Shopkeeper’s privilege: As long as the detention is based on good faith and justified suspicions and the detention is not onerous or overly long.
    2. False arrest: Just like the shopkeeper, the police officer has to have a reasonable cause to arrest someone (warrant or probable) cause, if not they may be liable for battery and false imprisonment charges.
  6. The role and limit of consent as a defense to false imprisonment
    1. The plaintiff cannot have consented to the confinement.
    2. Consent must be 1) Voluntary, 2) Plaintiff must appreciate nature of act they are consenting to, 3) Act that occurred was within the scope of what was initially agreed upon
      1. You can treat consent as a defense or it does not meet the requirements of the tort.

Assignment 7: Intentional Infliction of Emotional Distress

  1. The prima facie elements of intentional infliction of emotional distress
    1. The defendant acted in an extreme and outrageous way,
    2. With either the intent to cause severe distress or at least reckless disregard for the emotional harm caused to the plaintiff, and
    3. The plaintiff suffers severe distress due to the defendant’s conduct
  2. What sorts of wrongs IIED addresses
    1. Historical prelude, having the tort for IIED, battery for unwanted contact, assault is for fear of unwanted contact, false imprisonment protects for space. There was a gap in the sort of things that could be covered under tort law, IIED comes into place for protecting your emotional well being.
  3. The concept of recklessness
    1. Standard of recklessness – you consciously disregard a known risk. It has to be an unjustifiable risk. A risk of the magnitude that presents a sufficient chance of harm, if there is an easy way to avoid it you should.
      1. You are acting in such a way where the risk is so great and it could have been easily avoided, but you choose not to avoid it, your conduct will result in someone suffering in emotional distress.
  4. The level of wrong necessary to meet the extreme and outrageous conduct and severe harm requirements

a. Defined:  Rest 2d §46 – Conduct that is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

b. Aggravating Factors:  Conduct not otherwise viewed as extreme and outrageous may still satisfy the element if:

    1.   D abused a position of power over P
    2.   D took advantage of a P known by D to be especially vulnerable
    3. D’s conduct is sustained, and in an environment from which P has no escape
    4.  Conduct involves acts of physical violence
      1. Protected Conduct:
        1. D has a legal right to the conduct (e.g. runaway bride)
        2. Conduct is speech protected by the First Amendment (e.g. Westboro Baptist picket signs, which related to matters of public concern rather than personal matters)      
  1. The uncertainty about how courts and juries will rule on IIED claims
    1. It is subjective and goes along with the “community standard.” The courts are supposed to do a gatekeeping for the fact-finding: 1) conduct element and 2) mental distress element. Only let it go to a jury if reasonable minds can differ.
  2. The problem of the value judgments inherent in the rule
    1. The distress should be so severe that no reasonable person would be expected to endure it.
    2. To determine conduct that is “offensive” is a value judgment.

Assignment 8: Trespass

  1. Elements of trespass to property, and conversion.
      1. Trespass to Land, Elements
        1. Defendant had the intent to enter, or cause tangible entry onto,
        2. Property in the possession of the plaintiff, and
        3. Defendant did enter, or cause something to enter onto the property.
          1. Trespass to Land definition
            1. Enters land in the possession of the other, or causes a thing or a third person to do so, or
            2. Remains on the land, or
            3. Fails to remove from the land a thing which he is under a duty to remove
      2. Trespass to Chattels, Elements
        1. Defendant intended
        2. To interfere with the plaintiff’s tangible personal property,
        3. And did interfere with it
        4. Causing harm to the property
          1. Trespass to Chattels definition
            1. Defendant commits a trespass to chattel when she intentionally interferes with the personal property of the plaintiff in a way that causes legally-cognizable harm
      3. Conversion, Elements
        1. Defendant intended
        2. To exercise substantial  control over plaintiff’s tangible personal property and
        3. Defendant did exercise substantial control
          1. Conversion definition
            1. Defendant converts plaintiff’s property when defendant intentionally exercises substantial control over the property and thereby significantly interferes with plaintiff’s rights in the property.
  1. The special concept of intent in these property torts.
    1. The main difference in intent for property torts versus these intentional torts that we have studied.
      1. With battery and the other intentional torts, you intend the result and you intend the conduct.
      2. Whereas in property torts, it is the conduct you intend. You do not have to intend the result. Or if your conduct was reckless, and your result was a trespass. You would be liable.
  2. The limits in consent in excusing the torts.
    1. You have to be attentive to the scope of the consent.
      1. Trespass to land. If someone invites you to there house for dinner, it is clear that the scope of the consent is limited. Once you stay beyond that, it is trespassing.
      2. Trespass to property. Car example. I let you borrow my car and you drive it to Indiana, whereas consent was just to be local.
      3. Conversion. I let you borrow the car and you total the car. Consent to use the car did not include permission to total the car. You owe me the car.
      4. Implied consent. Look at the persons conduct in addition to what they have said to see if there is consent. If you have a car that you had a car unlocked in the driveway and let people in the neighborhood use it. And there’s one guy in the neighborhood that has wrecked all the cars in the neighborhood. Until you tell him, you cannot drive the car the implied consent would hold.
  3. The different requirements for harm between trespass to land and trespass to property.
    1. The big difference between trespass to land and trespass to chattels is that for the latter most courts require the defendant to harm the property.
      1. Trespass to land. No harm is required.
      2. Trespass to chattels. The defendant must have caused actual harm significant enough to be recognized by the court.
        1. Damage to property harm. (CompuServe Case, harm to the servers)
        2. Causing the plaintiff to lose the use of or access to the property
        3. Or (physical) harm to the plaintiff or person or thing in which the plaintiff had a legal interest caused by the interference. (CompuServe Case, harm to the goodwill of customers)
  4. The difference in the levels of interference with the property required between trespass to property and conversion.
    1. The bottom line is the harm to the chattel that is fair that they pay the whole value of it. A forced sale of the property.
      1. The extent and duration of the actor’s exercise of dominion or control;
      2. The actor’s intent to assert a right in fact inconsistent with the other’s right of control;
      3. The actor’s good faith;
      4. The extent and duration of the resulting interference with the other’s right of control;
      5. The harm done to the chattel;
      6. The inconvenience and expense caused to the other;

Assignment 9: Nuisance

  1. Distinction between a public nuisance and private nuisance.
    1. Private nuisance normally involves adjoining or nearby plots of land in which one landowner is using a property in a way that interferes with the neighbor’s use or enjoyment of her property.
    2. Public nuisance which is an activity that significantly and unreasonably interferes with some common rights held to the general public to healthy, safety, or convenience. 
  2. Elements of a private nuisance.
    1. Private nuisance, Elements
      1. Defendant’s non-trespassory activity
      2. Unreasonably invaded property
      3. Possessed by plaintiff
      4. Causing significant harm to plaintiff in the use or enjoyment of the property
        1. Private nuisance, definition
          1. Nuisance is a non-trespassory condition or activity that unreasonably interferes with the plaintiff’s right to use and enjoy her real property.
  3. How nuisance differs from trespass to land.
    1. Trespass to land is a physical presence. Nuisance is more of diffuse impact  (non-physical) noise, smell, light.
  4. Meaning of the interest.
    1. Different types of harms for use and enjoyment.
      1. Use. Use connotes something that is tangible and calculable, an economic consideration. Like use-value can decrease.
      2. Enjoyment. The right to use their property without annoyance or discomfort.
  5. Factors to weigh in considering nuisance claims.
    1. The character of the location.
    2. All the particulars of the conduct.
      1. Frequency
      2. Duration
      3. Intensity
    3. Social utility (cost-benefit)
  6. Importance of the severity of the harm and unreasonableness of the activity.
    1. The severity of harm. The law uses an objective standard to measure severity: would a reasonable person in the neighborhood regard the intrusion as severely bothersome, annoying, or intolerable.
  7. Coming to nuisance
    1. If the use is established when you get there, it will be hard for you to bring a nuisance claim because the business will have a coming to the nuisance defense.
    2. It’s going to be a defense when one person or two people come. The tipping point, when so many people have come that the character of the area has changed, defense isn’t likely to hold.

Assignment 10: Defenses

  1. The limits of consent.
    1. Scope. Is the conduct within the scope of the consent?
    2. Capacity. Did the person who supposedly consented have the capacity to consent?
    3. Expressed and Implied Consent. You have to look at conduct and circumstances.
  2. The two approaches to the finding of consent.
    1. Expressed/Objective. Consent is evaluated from the defendant’s perspective. Someone in the defendant’s shoes would understand that the plaintiff consented.
    2. Implied Consent/Subjective. Consent is evaluated from the plaintiff’s perspective. The defendant would have with evidence that the plaintiff intended to consent, like expressed language.
  3. The rules about the privileges of self-defense, defense of others, and defense of property (see 4).
  4. The proportionality rule in self-defense and defense of others.
    1. Background
      1. You can always use proportional non-deadly force.
      2. If you are in a deadly force context outside your home, in minority jurisdictions, if you can safely flee you have to flee instead of using deadly force.
      3. If you are in a deadly force context inside your home, in majority jurisdictions, if you can respond with deadly force, even if you can safely flee.
    2. Self-defense.
      1. The belief that harm is imminent
      2. Belief is an honest and reasonable belief
        1. Then you can use proportional response
          1. Only if the period that the threat is active
    3. Deadly Self-Defense
      1. The belief that the use of deadly force is imminent
      2. Belief is an honest and reasonable belief
        1. Then you can use deadly proportional response
          1. Only if the period that the threat is active
    4. Defense of others.
      1. In the majority jurisdictions, you take the perspective of the person coming to the aid. You ask if the person coming to the aid in those circumstances had an honest and reasonable belief that the victim was in imminent harm.
      2. In the minority jurisdictions, you take the perspective of the victim. You ask if the victim in those circumstances had an honest and reasonable belief that imminent others.
      3. All other rules apply:
        1. The belief that harm to others is imminent
        2. Belief is an honest and reasonable belief
          1. Then you can use proportional response
            1. Only if the period that the threat is active
    5. Defense of property.
      1. If you believe that your property is going to be harmed or stolen, you cannot use deadly force.
      2. Deadly force is never a proportional force for a property.
  5. The difference between public and private necessity.
    1. Public necessity. Sacrifice one person’s private property for the sake of the common good.
      1. No damages.
    2. Private necessity. Allowed to cause harm to someone else’s property, if it is necessary to prevent much greater harm to your own private property.
      1. Damages. You pay to the harm to their property.
  6. The logical basis of necessity doctrine.
    1. Under the necessity doctrine, there is a weighing of interests: the act of invasion of another’s property is justified under the necessity doctrine only if done to protect or advance some private or public interest of a value greater than, or at least equal to, that of the interest invaded.
  7. The liability rule in Vincent v. Lake Erie Transportation.
    1. You can cause harm to another person’s property if it is necessary to prevent greater harm to your property.

Assignment 11: Duty rules

1. The elements of the tort of negligence.

  1. Plaintiff suffered an injury.
  2. Defendant had a duty of care to plaintiff to act according to a certain standard of care.
  3. Defendant breached the duty by not acting according to the standard of care owed to the plaintiff.
  4. Defendant’s breach was the but-for cause of the plaintiff’s harm (cause-in- fact).
  5. Plaintiff’s harm was within defendant’s scope of liability.

2. The difference between intentional torts and the tort of negligence.

a.Differing statement of mind between the intentional torts and tort of negligence, and the concept that negligence crosses into every interest that is covered by intentional torts.

b.Negligence covers what the intentional torts cover (bodily integrity, fear of losing bodily integrity, etc.).

3. The two meanings of “negligence.”

a.On the one hand “negligence” is the name of the tort, which you would have to prove all elements.

b.On the other hand, the court goes through the elements of negligence and goes through “duty” and “breach” courts will describe that the conduct was negligent. Just because conduct was negligent doesn’t mean that they committed the tort of negligence.

4. The concept of duty of care.

a.Regularly, the obligation that a person has to be careful. The obligation will be different depending on the circumstances. Whether someone has a duty of care, is whether, in the scenario, someone can see foresee types of people that can be harmed and potential harms.

5. The limitations imposed on duty of creating the risk and foreseeability.

A.These two concepts inform the limitations of concept.

a.First, it is when their conduct creates the risk.          

b.Second, it is when you can foresee harm happening to someone.

6. The special duty relationships.

a.Special duty relationships, you have to protect people from risks that arise within the scope of the relationship. Obligation to exercise care.

b.***Memorize the special relationships in the Restatements

i.Invitees.

ii.Licensees.

iii.Trespassers.

iv.Attractive Nuisance.

1.***Memorize the special relationships

a.What type of guest falls in each category and the property owners’ relationship to them.

7. “Tarasoff” duty to warn.

a.When a therapist learns from his patient about intent to do harm to a third party, the therapist has a duty to take reasonable precautions given the circumstances to warn the potential victim of danger.

A.Therapist/psychiatrist held to the standard of care in their profession.

B.The threat has to be specific, has to indicate immediate and serious bodily harm

C.The victim has to be identifiable by name or described in a way that’s readily available. 

D.Reasonable care under the circumstances and reveal the least amount of information necessary to provide the warning.

Assignment 12: Duty: policy issues

1. The policy considerations that go into determining when a defendant has a

duty of care.

  1. the foreseeability of harm to the plaintiff
  2. the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered,
  3. the moral blame attached to the defendant’s conduct
  4. the policy of preventing future harm
  5. the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach
  6. The availability, cost, and prevalence of insurance for the risk involved,
  7. whether alternative means of protecting the plaintiff exist other than imposing a duty on the defendant
  8. How much the plaintiff’s safety will increase by imposing the duty
  9. how difficult it will be to prove whether or not the defendant fulfilled the duty
  10. whether imposing the duty will chill defendant’s otherwise socially useful conduct.

2. How courts might differ in their application of these factors.

  1. The point is the courts come out differently on these policy considerations. If it is a policy judgment, is it really a decision the court should be making. It could come out differently from jurisdiction to another state.

Assignment 13: Reasonably prudent person standard of care

1. The reasonably prudent person standard of care.

  1. The default standard of care is for everybody other than professionals or special relationships. The standard of care has three components
    1. Level of care you have to exercise, care that a reasonably prudent would take
    2. Under the circumstances,
    3. To Avoid Risk.

2. The objective elements of the reasonably prudent person standard.

  1. The reasonably prudent person standard is an objective standard.

3. The subjective elements of the reasonably prudent person standard.

  1. In many circumstances, the standard is modified to account for particular aspects of the defendant (reasonably prudent doctor, or reasonably prudent blind person, etc.)

4. The importance of the “under the circumstances” element of the reasonably

prudent person standard.

  1. The circumstances are critically important under every negligence case.

5. The child standard of care and its subjective elements.

  1. Children [above the statutory age for negligence liability] owe a duty of care of a child of a similar age, experience, and intelligence acting under the same or similar circumstances.

6. The generality of the negligence standard means juries may not decide like cases alike.

  1. There is variance because juries think differently

Assignment 14: Professional standard of care

1. The professional standard of care.

  1. “The skill and knowledge normally possessed by members of that profession or trade-in good standing in similar communities.”
    1. A professional has to use the skill and knowledge of a reasonably prudent ________ in the community under similar circumstances.

2. How the professional standard of care differs from the reasonable person standard of care.

  1. In the default standard of care, the jury considers the hypothetical reasonably prudent person under the same or similar circumstances.
  2. In the professional standard of care, juries consider how actual professionals in the same field as the defendant, and perhaps in the same general location, would have acted under the same circumstances.

3. The role of experts in establishing a professional standard of care.

  1. The expert is essential in establishing a professional standard of care.

4. The locality rule in medical and legal malpractice cases.

a.For lawyers: usually, the state in which the defendant practices. Except in very specialized areas of law, in which case the “locality” may be a national standard.

b. For doctors: for internists and general practitioners the locality is usually the area where the defendant practices. For specialists, the comparable locality is the whole nation.

5. The relationship of malpractice and ethical violations.

  1. Who are professionals that will be held to a professional standard of care?
    1. Has special training and expertise, acquired through formal training, in a complex field or trade; and who
    2. Uses their skill and expertise to render services to others
    3. In a situation involving an obligation of trust;
    4. And generally who is part of a community with a governing body, and a code of ethics.

Assignment 15: Negligence per se standard of care

1. Concept of negligence per se

    1. The use of non-tort statutes to create tort duties.

2. The relationship between the usual reasonable person standard of care a negligence per se.

  1. In the case of negligence per se, the statute determines what a person of a reasonable person would do from the plaintiffs perspective

3. When negligence per se can and cannot be applied.

  1. Remember that the negligence per se rule presupposes the existence of a statute or regulation that 1) makes certain conduct unlawful, but that 2) does not by its terms create a private cause of action. If the statute creates a civil remedy, like the statute about harm to vulnerable adults quoted above, you are not dealing with negligence per se. Negligence Per se is a judicial creation, applying a statute for the purpose about which it is silent and for which it may not have truly been intended.

4. The requirements that must be met before a statute can be used to provide negligence per se standard.

  1. The statute was designed to protect a class of people which the plaintiff is a member, and
  2. The statute was intended to protect against the sort of harm that the defendant’s actions caused

Assignment 16: Measuring breach of duty: custom

  1. Concept of custom
    1. The usages, habits, and ordinary risks of a business. These may be considered when determining the standard of care required for employees and business owners engaged in a particular trade.
  2. How custom provides a definition for what constitutes reasonable care.
    1. Where an employer is using business practices that constitute customary practice throughout the industry, he is not liable in negligence for any injury that may result from such practices
    2. Even when a custom is universal, it may still fail to meet the standard of ordinary care required by an employer
  3. The limits of the application of custom to determining reasonable care.
    1. Industry may lag behind safety standards—lag behind technological advances and thus seen as too rigid/deters innovation
    2. Not best balance of risk/benefits since employer has unequal bargaining power
    3. Not always easy to determine because custom may be controversial
    4. Differences between local and national custom standards
  4. The evidentiary value of self-made custom.
    1. When an employer advertises itself to a higher standard than is customary, a jury may find the defendant liable for failing to meet this higher standard.
  5. The role of custom in evaluating the professional standard of care.
    1.  Custom demonstrates what most people think is the best way to do something.
    2.  Custom demonstrates what most people think is the most feasible way to do something. 
      1. Problem: people may do something because it is cheap (for instance) rather than because it is safe. In other words, the way people define “best” might be in their own interest rather than in the interest of reducing risk.

Assignment 17, Measuring breach of duty: hand formula

  1. The hand formula and how it works.
    1. PL>B The probability of harm occurring times the amount of loss possible measured against the burden of protecting against risk.
  2. How the hand formula gives meaning to the reasonably prudent person standard of care.
    1. Hand Formula—There is a duty of care to protect others from the harm when the burden (B) of taking adequate care is less than the product of the probability (P) of the resulting harm and the loss (L) of that harm.  If B < PL, then defendant is negligent.
  3. Criticism of the hand formula.
    1. i.          Hindsight Bias—The jury may have a hard time distinguishing between ex post and ex ante. 
    2. They will have trouble considering the ex ante perspective of the D who have correctly believed that the risk was too low to merit precautions.
    3. Difficulty in calculating B, P, L
    4. Assumes that parties are risk neutral as opposed to risk-adverse or risk-preferred
    5. Fairness concerns for injured party who may have suffered harm even though burden was high.
    6. Standard creates a “cliff” that fails to punish people just above standard line and punishes those below severely.
    7. Not necessarily applied evenly in court where injury may very high but risk very low—courts don’t always weigh evenly.
  4. The relationship of the hand formula to custom.
    1. ask whether the defendant could have taken greater care before that care became more expensive than the risk prevented by it versus the cost is baked into the custom.

Assignment 18: Proof of breach: res ipsa loquitur

  1. Circumstantial evidence versus direct evidence.
    1. Evidence that tends to prove an asserted fact by proving other events or circumstances that, according to common human experience, usually or always attend the asserted fact, thereby supporting an inference that the asserted fact is true.
    2. Evidence that supports an asserted fact without requiring an inference to be made between the evidence and the fact.
  2. The doctrine of res ispa loquitur.
    1. Latin for “the thing speaks for itself,” an evidentiary doctrine providing that, under certain circumstances, the very fact that an accident occurred leads to an inference that the accident was caused by negligence.
  3. The factors useful for evaluating whether res ipsa loquitur applies.
    1. The event that caused the harm was the sort that only happens if someone had been careless
    2. The thing causing the harm was within the sole control of the defendant
    3. The plaintiff’s conduct did not contribute to the event that caused the harm.
  4. Why courts could disagree about the applicability of res ipsa loquitur in particular cases.
    1. Courts are careful about when they apply the res ipsa loquitur doctrine. The factors above attempt to separate res ipsa loquitur situations from ordinary provable negligence situations. The requirement that the harm caused be the sort that happens only without the defendant’s negligence limits this doctrine to those situations in which either some other non-negligent explanation is possible or in which the event occurred but its occurrence was not negligent.

Assignment 19: Cause-in-fact

  1. The but-for-test
    1. That it is more likely than not that if the defendant had not acted carelessly the plaintiff would not have suffered the harm.
    2. The harm would not have occurred but for the defendant’s act.
  2. Carelessness is necessary but not sufficient to find liability.
    1. The action is a necessary condition, but may not be a sufficient condition, for the resulting injury
  3. How the but-for test deals with multiple causes.
    1. Concurrent multiple causes. (several negligent causes occur at the same time).
    2. Successive multiple causes. (a negligent act causes loss and a subsequent negligent act causes the same loss, or greater loss)
    3. Cumulative multiple causes. (where several negligent acts contribute over time to the claimant’s loss, but it may be inconclusive which of the multiple negligent acts actually caused the loss.)
  4. We do not need to find “the” but for cause; we do need to find “a” but-for cause.
    1. Some but-for causes are not the result of carelessness, and therefore not the cause of liability.
    2. Some but-for causes share in liability—e.g., two careless drivers who together cause an accident.

Assignment 20, Complicated cause in-fact

No Checklist

Assignment 21, Scope of liability & supervening events

  1. The concept of scope of liability, also called proximate cause.
    1. Scope of liability asks, “given that a certain harm happened, and that the defendant was the but-for cause of that harm, should the defendant be liable for the harm, or is the harm such an unexpected result of the defendant’s actions that, as a matter of policy we will not hold the defendant liable?
      1. ON AN EXAM, OF COURSE, YOU SHOULD BRIEFLY POINT OUT THAT PROXIMATE CAUSE IS MET, BUT YOU DO NOT NEED TO ARGUE ABOUT IT.
  2. The test of foreseeability in determining the scope of liability.
    1. A defendant is only liable for those harms to foreseeable victims that are foreseeable consequences of the defendant’s careless act or omission.
  3. The ways to address a scope of liability problem.
    1. The “risk rule” test is a little bit more precise than the foreseeability test, but functionally will usually get to the same place The defendant took a risk; the normal possible harm from the risk either is or is not the harm that actually resulted from the risk.
  4. The three situations in which scope of liability most often comes up as an issue and how to treat those situations. 
    1. Unforeseeable extent of harm. When the resulting harm is greater than the defendant anticipated.
    2. Unforeseeable type of harm. A harm occurs, but it is not the risk that a reasonable person would have foreseen.
    3. Unforeseeable manner of being harmed. Situations in which the harm is entirely foreseeable but the exact way in which the victim was not.
  5. The problem of supervening events and how to handle it.
    1. Supervening events – an actor acts without due care, thus setting off a chain of events that results in the plaintiff’s harm.
      1. A criminal act occurs that is not foreseeable to the careless actor and was not within that actor’s duty to prevent.
      2. The injury occurs because of the superseding event but it is not the sort of injury that was a foreseeable result of the original negligent act
  6. The imprecision of scope of liability determinations and the reason for it.
    1. Assessing what risks and victims are foreseeable is an inexact science, which is why courts can decide like cases differently. The assessment has to be more exact than, “if you do that risky activity, people will get hurt.” That does not help us draw the line on the scope of liability. Who will get hurt? What will hurt them? Depending upon how the parties frame the question of what risk is foreseeable or what risk does the law anticipate, the law scope of liability could be rendered very broad or very narrow.

Assignment 22, Scope of liability: Palsgraf

  1. Relational duty.
    1. a.     relational concept of duty is between parties AND act (not just between parties); with respect to a different act, D might have had a relational duty to P
  2. What element of negligence each opinion uses to answer the question in the same case.
    1. Palsgraf

                                               i.           Cardozo

1.frames as a duty question: relational

a.includes foreseeability in duty analysis

2.act must be negligent with respect to P

a.relational concept of duty is between parties AND act (not just between parties); with respect to a different act, D might have had a relational duty to P

b.parties must sue on their own behalf; if a wrong is committed that’s not a wrong in relation to them, no recovery, even if they were harmed

                                             ii.            Andrews

1.         duty to the world (rejects relational duty)

a.         criticism: drops the duty leg out of negligence altogether

2.         frames as proximate cause question

3.     “all things considered” approach: common sense – is it good or bad for society to recognize these claims?

  1. The problems with each opinion in Palsgraf.
    1. ?

Assignment 23, Affirmative defenses

  1. The traditional concepts of contributory negligence and implied assumption of the risk.
    1. The plaintiff’s own negligence which, depending on its extent and the jurisdiction, could operate to preclude or reduce the plaintiff’s recovery.
    2.  A tort defense that arises if a victim knowingly and voluntarily participates in activities that carry inherent risks. In that event, a court will deem the victim to have agreed to assume any risks reasonably understood to be inherent aspects of the activity. Primary implied assumption of the risk frequently involves situations in which a plaintiff either engages in a dangerous line of work or participates in a risky sport or recreational activity.
  2. The concept of comparative negligence and its modified versions.
    1. In its pure form, this doctrine is very simple: each party bears the responsibility for the amount of the risk it created.
      1. Comparative negligence, therefore, differs from contributory negligence in that comparative negligence does not completely bar recovery by the plaintiff due to his own negligence.
      2. Only 12 states (including CA and New York) follow this type of so-called “pure” comparative negligence.
      3. Another 33 states use some form of  a modified comparative negligence rule.
        1. Under this system, once the plaintiff’s negligence reaches a certain level, he can no longer recover.
        2. In ten states that bar is 50% — if the plaintiff’s negligence is less than 50% responsible for his harm, he can recover a percentage of damages corresponding to the defendant’s proportion of the harm.
      4. Remaining 23 states (including Illinois) raise the bar to 51%, meaning plaintiff can recover if he is 50% or less responsible for his injury.
      5. One state, South Dakota, uses a modified contributory negligence approach in which the plaintiff can only recover if his negligence is “slight” and the defendant’s negligence is “gross”
  1. The Wisconsin rule and the unit rule.
    1. Wisconsin rule – we could compare the plaintiff to every other negligent party separately.
    2. Unit Rule — aggregate D’s fault and compare with P’s fault. (in above ex. there would be recovery)—majority position
  2. How to read a comparative negligence statute
    1. ?
  3. The influences on juries in allocating fault.
    1. Juries can vary.

Assignment 24, Damages

  1. The types of compensatory damages.
    1. Economic damages, (“special damages”) include past & future medical expenses as well as actual and expected lost earnings.
    2. Non-economic damages(“general damages”) include pain and suffering as well as hedonic damages (in some states).
  2. How compensatory damages are measured.
    1. (see above)
  3. The problems with measuring compensatory damages.
    1. Hard to measure compensatory damages.
  4. The plaintiff’s duty to mitigate.
    1. The duty to mitigate damages requires a plaintiff to act in a way that an ordinary and reasonable person would have acted in a similar situation. This includes acting in good faith and with due diligence when choosing a doctor or treatment and possibly looking for another job.
  5. Punitive damages, the criticisms of them, and the current limitations on them.
    1. Punitive damages — also known as “exemplary” or “vindictive” damages are at the center of contemporary battles over tort law and tort reform.
  6. The concepts of joint and several liability and contribution.
    1. Joint and several liability.
      1. Liability that may be apportioned among two or more parties, or just one, such that each liable defendant is deemed responsible for the entirety of damages, subject to a potential right of contribution from joint defendants and a bar against plaintiff recovering more than 100 percent of the total damages awarded.
      2. The right of a defendant who is adjudged jointly and severally liable with other tortfeasors to recover from those other tortfeasors, amounts paid by the defendant in excess of the defendant’s share as determined by the percentage of fault assigned.

Assignment 25, Strict Liability: Animals

  1. The concept of strict liability.
    1. In tort law, strict liability exists when a defendant is liable for committing an action, regardless of what his/her intent or mental state was when committing the action.
  2. How strict liability differs from negligence.
    1. Strict liability differs from ordinary negligence because strict liability establishes liability without fault. In other words, when a defendant is held strictly liable for harm caused to the plaintiff, he is held liable simply because the injury happened. The fact that the harm that the plaintiff suffered is not the defendant’s fault makes no difference.
  3. The elements of strict liability for harms caused by the three categories of animals.
    1. Animals that trespassed onto another’s property.
      1. An owner or possessor of livestock or other animals, except for dogs and cats, that intrude upon the land of another is subject to strict liability for physical harm caused by the intrusion.
    2. Abnormally dangerous domestic animals.
      1. An owner or possessor of an animal that the owner or possessor knows or has reason to know has dangerous tendencies abnormal for the animal’s category is subject to strict liability for physical harm caused by the animal if the harm ensues from the dangerous tendency.
        1. The strict liability exception kicks in only when the animal 1) abnormally dangerous, and 2) the owner or possessor of the animal 3) knows or had constructive knowledge about the danger the animal poses.
    3. Wild animals.
      1. 1) The defendant owns or possess 2) a wild animal; 3) the animal causes harm, and 4) the harm results from the animal being wild or having dangerous characteristics.
  4. The application of strict liability for harms caused by the three categories of animals.

Assignment 26, Strict Liability: Abnormally dangerous activities

  1. Elements of strict liability for abnormally dangerous activities
    1. Plaintiff suffers an injury
    2. That is caused by the defendant’s activity.
    3. The defendant’s activity is abnormally dangerous, and
    4. Uncommon in the area.
    5. The injury is the sort risked by the activity.
  2. The application of strict liability for abnormally dangerous activities.
    1. Restatement (Third) of Torts 20 refocused attention on the two fundamental questions: commonality and dangerousness, leaving out factor (f) entirely:
      1. An actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity.
      2. An activity is abnormally dangerous if:
        1. The activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and
        2. The activity is not one of common usage.
  3. The scope of liability element in strict liability situations.
    1. In the context of strict liability, however, the scope of liability has a slightly different meaning. Foreseeability is still the key test, but here, the activity had to cause the sort of harm which is a foreseeable risk of that sort of abnormally dangerous activity.
  4. The lack of the element of duty in strict liability for abnormally dangerous activities.
    1. You do not need to find duty, because we have essentially defined the category of people to whom the duty is owed by narrowly defining the elements of the tort. And, this being strict liability, you also do not need to find a lack of due care or worry about the reasonably prudent person standard.

Assignment 27, Products liability: Doctrinal development

  1. The concept of privity of contract and how it intersects with the tort concept of duty.
    1. A relationship between two entities, usually as the result of being parties to a contract, such that the entities may sue or be sued by one another.
    2. For centuries, the common law did not recognize that contractual duties flowed from manufacturers, through the retailer, and ultimately the buyer. These duties flowed only to the entity with whom the manufacturer had a direct contractual relationship — to put it in technical terms, with whom the manufacturer was in privity of contract. This was only the party whom the manufacturer had sold the goods.
  2. The historical development of products liability law, and how law develops over time as courts catch up with the economy.
    1. The problem with strict privity of contract is that the world was, by the mid-eighteenth century, changing rapidly. But a strict privity makes less sense in an economy based on mass-produced, mass-marketed goods sold by retailers that serve merely to channel the products from manufacturer to user.
  3. How Justice Cardozo pulls rabbits out of hats and creates new law.
    1. Justice Cardozo uses rhetoric to convince the reader his opinion is not only right but is also the natural conclusion of the law.
  4. The concepts of the “least cost avoider” and “cost spreading”
    1. “Least cost avoider” – Liability should be placed on party who can most cheaply avoid the loss, not on wrongdoer.
    2. “Cost spreading” — Place liability on party best able to spread the cost over the greatest number of people
  5. The elements of the tort of products liability
    1. Defendant is injured by the product
    2. Defendant is in the business of selling the product
    3. Defendant sold the product that injured the plaintiff
    4. The product was [dangerously] defective when sold
    5. The product caused plaintiff’s injury
    6. The injury is within the defendant’s scope of liability
  6. The limitations on “selling” and “harm”
    1. Who is a seller? One problem the courts had to work out was which of the parties in the supply chain were liable in tort for product defects, and should any sellers be excluded.
    2. Products liability covers harm-caused defects in the products themselves.
    3. Ultimately, we want to use the legal regime that can most effectively address the wrong.
    4. The harm is actual, physical injury, to the user.

Assignment 28, Products liability: Modern law

  1. The three uses of the term “defect”
    1. Manufacturing defects
    2. Design defects
    3. Failure to warn (defects in the warnings or instructions provided with the products).
  2. Strict liability for manufacturing defects
    1. Restatement applies a negligence standard to design defect claims, while retaining strict liability for manufacturing defects.
  3. The two tests for design defects
    1. The Restatement (Second) suggests a test for unreasonable danger. Called the “consumer expectations test,” it asks whether the product sold was “dangerous to an extent beyond which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.
    2. In light of the problems with the Restatement (Second) test, the Restatement (Third) adopted what is known as the “risk/utility test” This test recognizes that juries, in evaluating unreasonable danger, were instinctively performing a balancing test: does the danger in this design outweigh other factors, such as the added cost of safety features or functionality?
  4. Why failure to warn is an odd defect
    1. Failure to warn fits strangely into products liability law, which focuses on the defect in the product.
  5. When the manufacturer has to give warnings
    1. The Restatement (Third) § 2(c) says that a product is defective because of inadequate instructions or warnings when the foreseeable risks of harm
  6. The test for failure to warn
    1. The lastn, and most controversial, defect is the failure to warn users of the risks that might arise when using the product.
  7. What makes warnings adequate
    1. The Restatement (Third) § 2(c) says that instructions and warnings must be adequate, and Comment (i) adds that “sellers must provide reasonable instructions and warnings about risks and injuries posed by products.”
  8. The causation problem in failure to warn and the learned intermediaries doctrine
    1. The law about failure to warn gets really weird with causation. To meet the element of but-for cause, plaintiff has to prove that if the warning had existed, she would have heeded it.
    2. Given the difficulty of proving causation, some courts have simply avoided it by creating what is known as the “heeding presumption” This allows the court to instruct the jury to assume that the plaintiff would have heeded the warnings or instructions.
    3. According to this “learned intermediaries doctrine,” the commercial seller of prescription drugs meets its duty to warn if it has provided a warning to the doctor who prescribes the drugs, even if the doctor did not pass the warning onto the patient and the label on the drugs contains no warnings information.
  9. Where modern products liability has landed on the spectrum between strict liability and negligence.
    1. Rather than focus on the behavior of the manufacturer (as in negligence), strict liability claims focus on the product itself. Under strict liability, the manufacturer is liable if the product is defective, even if the manufacturer was not negligent in making that product defective.
    2. The difficulty with negligence is that it still requires the plaintiff to prove that the defendant’s conduct fell below the relevant standard of care. However, if an entire industry tacitly settles on a somewhat careless standard of conduct (that is, as analyzed from the perspective of a layperson), then the plaintiff may not be able to recover even though he or she is severely injured, because although the defendant’s conduct caused his or her injuries, such conduct was not negligent in the legal sense (if everyone within the trade would inevitably testify that the defendant’s conduct conformed to that of a reasonable tradesperson in such circumstances). As a practical matter, with the increasing complexity of products, injuries, and medical care (which made many formerly fatal injuries survivable), it is quite a difficult and expensive task to find and retain good expert witnesses who can establish the standard of care, breach, and causation.