Post on 09-May-2017
transcript
Torts Outline 10/12/13 8:10 PM
Intentional Torts
Battery
Rule: Intent to cause a harmful or offensive contact, or an apprehension thereof,
and the harmful or offensive contact occurs. Restatement §13 and §18
Elements:
Intent
o Actual: Purpose to bring about the harmful or offensive contact; or
Constructive: Having knowledge that the harmful and offensive
contact is substantially certain to result.
Caudle v. Betts: A harmful or offensive contact with a person,
resulting from an act intended to cause him to suffer such a
contact, is a battery.
Gragg v. Calandra: Intent to do good does not eliminate liability for
battery.
o Transferred Intent
Rule: If a harmful or offensive contact (or an apprehension thereof) is
intended against one person, and that contact is made with a third
person, then the first actor is liable for batter against the third person.
Davis v. White
o Facts: Plaintiff was hit by a bullet fired by the defendant,
intended to hit someone else.
o Rule: If an actor intents to cause a harmful or offensive contact
on one person, and ends up making the contact with another,
he is still liable for battery.
Contact
o Direct or indirect
o Extension of the Person
Fisher v. Carrousel Motor Home: Actual physical contact is not
necessary to constitute a batter so long as there is contact with
clothing or an object closely identified with the body.
o Harmful, or
o Offensive: A bodily contact is offensive if it offends reasonable sense of
personal dignity. Restatement §19.
McCracken v. Sloan: “Glass-case argument.”
Leichtman v. WLW Jacor: Changing times can affect whether or not
something is considered offensive.
Assault
Rule: An actor is liable for assault if he acts intending to cause a harmful or
offensive contact with a person or a third person, or an imminent apprehension
there of, and the other person is thereby put in such an imminent apprehension.
Restatement §21.
Elements
Intent
Imminent Apprehension: for an actor to be liable for assault, he must put the
other in an apprehension of an imminent contact. Restatement §29.
o The person put in the imminent apprehension need not be fearful, upset
or scared, they only need to anticipate the contact,
o A threat for a future contact does not make an actor liable for assault.
o Imminence requires the ability to complete the act.
False Imprisonment
Rule: An actor is liable for false imprisonment if he intended to confine another
or third person within boundaries fixed by the actor, and the action directly or
indirectly results in the confinement that the other is conscious of the
confinement or is harmed by it. Restatement §35.
Elements
o Intent
o Direct or indirect confinement
Confinement must be total
Physical force is not necessary if there is a threat of force.
o Other’s conscious awareness of the confinement or harm by the confinement.
o Shopkeeper’s Privilege”
Coblyn v. Kennedy’s Inc.
Facts: Plaintiff shopped at defendant’s store. He was wearing an ascot
which he put in his pocket while in the store. Right before exiting, he
stopped, pulled it out of his pocket and put it on. An employee of the store
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who believed he had stolen the ascot stopped him. The employee, who
grabbed the plaintiff’s arm, and told to go upstairs to the manager,
physically stopped him.
Defendant claimed “shopkeeper’s privilege” as a defense.
Shopkeeper’s Privilege: A merchant, or an authorized agent may detain
any person suspected of committing a larceny if 1) the person was
detained in a reasonable manner, 2) for a reasonable amount of time and
3) there were reasonable grounds for believing that person detained was
committing or attempting to commit a larceny.
o To act in a reasonable manner, the actor must identify him or
herself and behave appropriately.
o To determine if an actor has reasonable grounds to detain
someone, objective standards must be used. The “Prudent and
cautious man rule” is to be used when considering this issue.
Intentional Infliction of Emotional Distress
Rule: One who by extreme or outrageous conduct intentionally or recklessly
causes severe emotional distress to another is liable for the distress and if bodily
harm is caused, the actor is subject to the harm. Restatement §46.
Elements
o Extreme or outrageous conduct
Objective Standard
Must be so outrageous that upon hearing of it, one exclaims
“Outrageous!”
o Intentional or reckless
o Resulting in severe emotional distress
Only intentional tort which requires that damages be pleaded.
State Rubbish Collectors Association v. Siliznoff
o Facts: Siliznoff took a rubbish collector job while not part of the union.
The union threatened to harm him unless he met their demands.
o Rule: Threatening injury is an outrageous and extreme conduct
intentionally performed and if it results in emotional distress, the actor is
liable.
Logan v. Sears
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o Facts: Plaintiff received a call about his Sears bill. He overheard the
telephone operator calling him “queer as a three dollar bill.” Plaintiff
claimed IIED.
o Court relies on the reasoning that the word “queer” is not extreme and
outrageous, and thus fails to establish IIED.
Snyder v. Phelps
o Facts: Phelps, of the infamous Westboro Baptist Church, protested a
soldier’s funeral with signs with hateful, clearly extreme and outrageous
messages. The conditions for IIED were clearly met.
o Issue: Were the church members protected from liability under the First
Amendment?
o Rule: If the extreme and outrageous speech is in a public place on a
matter of public concern, it is protected under the First Amendment, and
the actor cannot be held liable for IIED.
Privileges
ConsentRule: Willingness in fact for conduct to occur. It may be manifested by action or
inaction and need not be communicated to the actor. If the words or conduct are
reasonably understood by another to be intended as consent, they constitute
apparent consent and are as effective as consent in fact. Restatement §892
Bang v. Charles T. Miller Hospital
Facts: Defendant was operating on the plaintiff to fix a prostate problem. The
defendant did more than the plaintiff had consented to and ended up
sterilizing the plaintiff.
Rule: Where a physician or surgeon can ascertain in advance of an operation
alternative situations and no immediate emergency exists, a patient should
be informed of the alternative possibilities and given a chance to decide
before the doctor proceeds with the operation.
Hackbart v. Bengals
Facts: Plaintiff was injured by an opposing player during a football game. The
defendant intended to cause harm beyond that which is typical for the game.
Rule: A player consents to those actions which might be expected in the
course of the game. However, if the rules prohibit such an action, then the
player’s consent does not extend to that action.
Self-Defense
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By force not threatening death or serious bodily harm
Rule:
(1) an actor is privileged to use reasonable force, not intended or likely to
cause death or serious bodily harm, to defend himself against unprivileged
harmful or offensive contact or other bodily harm which he reasonably
believes that another is about to inflict intentionally upon him.
(2) Self-defense is privileged under the conditions stated in Subsection (1)
although the actor correctly or reasonably believes that he can avoid the
necessity of so defending himself,
(a) by retreating or otherwise giving up a right or privilege, or
(b) by complying with a command with which the actor is under no
duty to comply or which the other is not privileged to enforce by the
means threatened.
o Reasonable force and reasonable belief are both objective standards.
o At the same time, you actually need to hold the belief that the intentional
infliction of contact will occur.
o You do not need to retreat or give up rights.
By force threatening death or serious bodily harm
Rule:
(1) Subject to the statements in Subsection (3), an actor is privileged to
defend himself against another by force intended or likely to cause death or
serious bodily harm, when he reasonably believes that
(a) the other is about to inflict upon him an intentional contact or
other bodily harm and that.
(b) he is thereby in peril of death or serious bodily harm or
ravishment, which can safely be prevented only by the immediate use
of such force.
(2) The privilege stated in subsection (1) exists although the actor correctly
or reasonably believes that he can safely avoid the necessity of so defending
himself by
(a) retreating if he is attacked within his dwelling place, which is not
also the dwelling place of the other, or
(b) permitting the other to intrude upon or dispossess him of his
dwelling place, or
(c) abandoning an attempt to effect a lawful arrest.
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(3) The privilege stated in subsection (1) does not exist if the actor correctly
or reasonably believes that he can with complete safety avoid the necessity
of so defending himself by
(a) retreating if attacked in any place other than his dwelling place, or
in a place which is also the dwelling place of the other, or
(b) relinquishes the exercise of any right or privilege other than his
privilege to prevent intrusion upon or dispossession of his dwelling
place or to effect lawful arrest.
o Needs to be a reasonable belief that the only way to stop the harm is to use
such force.
o Subjective in that he needs to hold the belief, objective in that the belief
needs to be reasonable.
o Must be a last resort. If you can avoid the necessity by retreating, you must
do so.
Character and extent of force permissible
Restatement §70: The actor is not privileged to use any means of self-
defense which is intended or likely to cause a bodily harm…in excess of
that which the actor correctly or reasonably believes to be necessary for
his protection.
Defense of Others
An actor generally has authority to defend others, including strangers.
If that person didn’t have the right to defend themselves, then you
typically can’t use the force to defend them.
In some cases, if you reasonably believed they were in need of defense
and acted on that belief, you might be privileged to use such force.
Defense of Property
Defense of possession by force not threatening death or serious bodily
harm
Rule: An actor is privileged to use reasonable force, not intended or likely
to cause death or serious bodily harm, to prevent or terminate another's
intrusion upon the actor's land or chattels, if
(a) the intrusion is not privileged or the other intentionally or
negligently causes the actor to believe that it is not privileged,
and
(b) the actor reasonably believes that the intrusion can be
prevented or terminated only by the force used, and
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(c) the actor has first requested the other to desist and the
other has disregarded the request, or the actor reasonably
believes that a request will be useless or that substantial harm
will be done before it can be made.
Restatement §77
Defense of possession by force threatening death or serious bodily
harm
Rule: The intentional infliction upon another of a harmful or offensive
contact or other bodily harm by a means which is intended or likely to
cause death or serious bodily harm, for the purpose of preventing or
terminating the other's intrusion upon the actor's possession of land or
chattels, is privileged if, but only if, the actor reasonably believes that the
intruder, unless expelled or excluded, is likely to cause death or serious
bodily harm to the actor or to a third person whom the actor is privileged
to protect.
o Similar application as in §65. There isn’t a heightened ability to
defend property.
Katko v. Briney
o Use of deadly force is only acceptable if the actor is present and
being threatened.
o The spring gun used by the plaintiff was not a reasonable means of
defense.
o Dissent says that intent of the party defending himself natters.
Negligence
Elements of Negligence
Duty
Breach of the Standard of Care
Cause-in-fact
Proximate cause
Damages
Economic Theory of Negligence In the absence of tort liability, precaution costs would be low and injury costs
would be high.
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Reasonable precautions must be taken. One way to do this is by requiring people
to take cost effective options
Breach of the Standard of Reasonable Care
Reasonable Care
General Standard: Ordinary, prudent person
Other standards based on violations of statutes, custom, etc.
Must prove breach. Factual question. Can use res ipsa.
Hand FormulaRule: When B (burden) is less than P(probability) x L(Loss), there is a
duty to take on the burden.
Not a mathematical formula in a strict sense. It’s a standard
for judging reasonable care.
Restatement (Second) of Torts §291
Where an act is one which a reasonable man would recognize
as involving risk of harm to another, the risk is unreasonable
and the act is negligent is the risk is such magnitude as to
outweigh what the law regards as the utility of the act or of the
particular manner in which it is done.
Restatement (third) of Torts §3 (Risk-benefit test)
A person acts negligently if the person does not exercise
reasonable care under all the circumstances. Primary factors to
consider in ascertaining whether the person’s conduct lack
reasonable care are the foreseeable likelihood that the
person’s conduct will result in harm, the foreseeable severity
of any harm that may ensure and the burden of precautions to
eliminate or reduce the risk of harm.
Restatement (second) of torts §292
Factors considered in determining the utility of Actor’s
conduct:
A) social value attached to the interest which it to be
advanced
B) Extent of chance this interest will be advanced.
C) Extent of chance that such interest can be adequately
advanced by less dangerous course of conduct.
Washington v. Louisiana Power and Light
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Facts: Decedent, plaintiff’s father, hit an uncovered power line
with the antenna of a ham radio and died. He had previously
asked the power company to cover the line to make it safer.
Rule: Hand formula. If the burden to move the power line is
less than the loss times the probability, then the power
company has a duty to act.
Factors to consider when choosing a rule
1. Fairness – about individuals, or generalized individuals,
2. Policy – general societal concerns
3. Institutional or process concerns – concerns of the court.
Reasonable Care Case LawCharbonneau v. MacRury
Minor gets into a car accident while driving a car. Should the standard
be that of a reasonable prudent person, or a reasonable prudent
minor?
When weighing the factors, the court decided it was unfair to children
to hold them to the same standard as adults.
Daniels v. Evans
Same general facts as Charbonneau.
Court decides that when a minor is engaging in adult related activities,
he should be held to the same standard as an adult. It’s unfair to
drivers who can’t reasonably tell if a minor or an adult is driving.
Breuing v. American Family Ins Co
Woman driving when she is overcome by momentary insanity and
crashes the car as a result.
Should the court use a ordinary, prudent person standard or that of
someone overcome with momentary sanity?
Typically, insane people are liable for torts they commit. However,
when a person has no way of knowing that they would be overcome
with insanity, they are not liable. Same for a physical illness, such as a
stroke or heart attack.
Cordas v. Peerless transporation
Cab driver was driving a criminal running from his muggee. Criminal
threatened cab driver with a gun. Cab driver fled the vehicle while it
was running and the car hit people.
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Should the cab driver be held to the standard of an ordinary, prudent
person, or an ordinary prudent person in an emergency?
He should be held to the standard of an ordinary person in an
emergency. Unfair to ask people to go against instinct.
Violation of StatutesRule: Restatement § 286 When Standard of Conduct Defined by Legislation or
Regulation Will Be Adopted
The court may adopt as the standard of conduct of a reasonable man
the requirements of a legislative enactment or an administrative
regulation whose purpose is found to be exclusively or in part
(a) to protect a class of persons which includes the one whose interest
is invaded, and
(b) to protect the particular interest which is invaded, and
(c) to protect that interest against the kind of harm which has
resulted, and
(d) to protect that interest against the particular hazard from which
the harm results.
If you have a safety statute aimed at keeping people safe and the plaintiff
was in the class of people being protected and the harm was the kind of
harm trying to be prevented, then you may have an exception to the
prima facie negligence case.
Not following a statute is not automatically negligence.
Exception: Where it is unsafe to follow a safety rule, you may be excused
from following the safety rule.
Statutory Rules
Speculate as to the purpose of the rule
The statute might state its purpose. Need to make an argument based on
intent
Make justified inferences about intent.
Custom Sometimes, reasonableness can be based on custom. When there is a custom
to do something one way, it’s usually because that is what ought to be done.
Plaintiff can assert defendant’s deviation from custom to demonstrate
negligence, and defendant may show compliance with a custom to avoid
liability.
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Evidence of the custom is important. Look at expert testimony, publications
from the government and industry.
The custom must be one related to safety and the harm has to be the kind
being protected against.
Use local standards of custom, unless it’s a med mal case, then use national.
In determining whether reasonableness is based on a custom:
o Look at whether the custom is well known in the industry
o Put people on the stand who would know about the custom.
o Look at publications from the government or the industry .
TJ Hooper
Sometimes even when the step a defendant should have taken isn’t a
custom, the court will set a higher standard of reasonableness based on
safety needs.
Meeting a statute or a custom doesn’t necessarily show that you were
reasonable.
Res Ipsa Loquitur Rule: To use Res Ipsa, you must show 1) exclusive control and management by
the defendant and 2) it would not have happened without negligence.
o Using the test shifts the burden to the defendant.
o Means “the thing speaks for itself.”
Acts as a shortcut to proving negligence.
If there isn’t good evidence, sometime negligence can be established based on
what was observed.
Escola
o If evidence shows that the issue happened while in exclusive control and
nothing has changed since it left control, res ipsa applies.
Breach of the Standard
Factual question.
Proven by
o Res Ipsa
o Circumstantial evidence
o Direct evidence
Duty
General Rules for the Existence of a duty
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Base rule: When your conduct creates a risk of injury to others, you have a
duty of reasonable care (ordinary prudent person) to those others. We don’t
general impose duties on non-actors.
You have no duty when your conduct has not created a risk to others.
When your conduct does create a risk of injury, use Rowland factors
to determine duty.
Duty is a question of law, not of fact.
Might have a duty to act, even when your conduct does not create a
risk of injury, in some cases.
o Misfeasance: Defendant affirmatively acts in some way which injures the
plaintiff.
o Nonfeasance: Defendant failed to act, resulting in harm to the plaintiff.
Contractso Winterbottom v. Wright
A defendant who is in a contract with someone owes a duty to
whomever they are in a contract with.
Under Winterbottom, If duty arises from a contract, outside that
contract, there is no duty.
If there is no contract, there is no duty.
o MacPherson v. Buick Motor Co.
Liable to those who are foreseeably in danger.
Where you put something dangerous into the stream of commerce,
you hare liable where someone is injured and that person is
foreseeable as a potential plaintiff.
o Moch v. Rensselaer Water Co.
Public policy may play a role in cutting off duty where doing so is
beneficial to society as a whole.
o Palsgraf v. Long Island RR
Foreseeable zone of danger; Duty to those who are foreseeably
injured by negligence.
You owe a duty to specific people when there is privity.
Duty of Possessors of Lando Categories of land users
Invitee: On the land for a purpose related the purpose of the land.
Public Invitee: Land is open to the public and the person is
there for the purpose that the land is open.
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Business Visitor: The invitee is on the land for purposes related
to the business activities.
Licensee: Person who enters and remains on the land with the owners
express consent. The possessor’s social guest.
Trespasser: enters or remains on land without privilege of the
possessor
Children
Known
Unknown
Constant
Committing a Crime
o Types of Land Conditions
Artificial conditions
Natural conditions
Known conditions
Unknown conditions
o Duties to an invitee
When a condition on the land causes harm, possessor is liable to an
invitee when he or she
Knew, or
by exercise of reasonable care would have known, and
should realize that the condition poses an unreasonable risk of harm,
and
Should expect that the invitee will not discover the danger,
And fails to exercise reasonable care to protect the invitee.
Restatement §343
o Duties to a Licensee
When a condition on the land causes harm, the possessor of land is
liable to an invitee if
The possessor knows or has reason to know of the conditions
and should realize that it involves an unreasonable risk of
harm to such licensees, and should expect that they will not
discover or realize the danger, and
He fails to exercise reasonable care to make the condition safe,
or to warn the licensees of the condition and the risk involved,
and
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The licensees do not know or have reason to know of the
condition and the risk involved.
o Restatement §342
o Duties to Trespassers
Children
A possessor of land is subject to liability for physical harm to
children trespassing thereon caused by an artificial condition
upon the land if
o The place where the condition exists is one upon which
the possessor knows or has reason to know that
children are likely to trespass, and
o The condition is one which the possessor knows or has
reason to know and which he realizes or should realize
will involve an unreasonable risk of death or serious
bodily harm, and
o The children, because of their youth, do not discover the
conditions or realize the risk involved in intermeddling
with it or in coming within the area made dangerous by
it, and
o The utility to the possessor of maintaining the condition
and the burden of eliminating the danger are slight as
compared with the risk to children involved, and
o The possessor fails to exercise reasonable care to
eliminate the danger or otherwise protect the children.
o Restatement §339
o Constant Trespasser
Where a land occupier actually is aware of the presence of a
trespasser and knows that the trespasser is approaching a non-
evident artificial (human-made) condition, the land occupied is
obligated to warn the trespasser if there is danger of serious bodily
harm or death.
Possessor is liable if
Possessor has knowledge that the condition is likely to cause
death or serious harm and
Possessor has failed to exercise reasonable care to eliminate
the danger or otherwise protect the trespasser.
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o Known Trespasser
Where a land occupier actually is aware of the presence of a
trespasser and knows that the trespasser is approaching a non-
evident artificial (human-made) condition, the land occupied is
obligated to warn the trespasser if there is danger of serious bodily
harm or death.
A possessor of land who maintains on the land an artificial condition
which involves a risk of death or serious bodily harm to persons
coming in contact with it is subject to liability for bodily harm caused
to trespassers by his failure to exercise reasonable care to warn them
of the condition if
The possessor knows or has reason to know of their presence
in dangerous proximity to the condition, and
The condition is of such a nature that he has reason to believe
that the trespasser will not discover it or realize the risk
involved.
A land possessor has no duty to protect a known trespasser
from natural conditions on the land.
Restatement 337
o Trespasser committing a crime
General duty is to refrain from wanton and willful conduct.
o Unknown Trespasser
General duty is to refrain from wanton and willful conduct.
o Rowland v. Christian
Factors for determining a duty
Foreseeability of the harm to the plaintiff
Degree of certainty
Closeness of connection between defendant’s conduct and
injury suffered
Moral blame attached to the defendant’s conduct
Policy of preventing future harm
Extent of burden to the defendant and the consequences of the
community of imposing a duty to exercise care
Availability, cost and prevalence of insurance for the risk.
Duty to Rescue General Rule: No duty to rescue
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Exceptions:
o Duty arises when the instrumentality causing the injury
is under the exclusive control of the defendant.
o Duty arises when the defendant undertakes to act and
the plaintiff relies on the defendant’s undertaking.
o Duty arises when the defendant causes a plaintiff’s
injury
o Duty where you’ve taken charge of someone who is
incapacitated.
o Duty where you’ve created the risk, which ultimately
puts a person in peril.
o Duty arises when there is a special relationship
between the plaintiff and the defendant.
Common carrier/passenger
Innkeeper/guest
Landowner/invitee
Custodian/ward
Employer/Employee
Duties to Protect General Rule: No duty to protect to protect from injury caused by a
third party
Exceptions
o Where the defendant has a unique level of control over
the risk and a unique knowledge of the risk, there is a
duty to protect.
o Where a special relationship exists, you have a duty to
protect
Doctor/patient
Parent/Child
School/Student
Duty to warn can be a part of duty to protect.
Cause-in-Fact
Defining Cause “But-For” Causation – But for the defendant’s conduct, the injury
would not have occurred.
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There must be a chain of cause and effect
The cause the plaintiff asserts must flow from the defendant’s
negligence.
Burden of proof for cause in fact is on the plaintiff.
Not “the cause,” but “a cause.” There can be many causes.
Multiple Tortfeasors Joint and Several Liability
Way in which we add up the liability of tortfeasors who are
involved.
Can sue the multiple tortfeasors together for the same action,
and each are individually liable for the whole of the damages to
the plaintiff.
Plaintiff cannot get more than their total damages.
Concurrent and Preemptive Causal Conditions
Kingston v. Chicago
o Majority Rule
If negligence is a substantial factor in the injury,
then the actor is liable. Use where causal factors
have combined. Where but-for fails.
Where one tortfeasors is known and the other is
unknown, the known tortfeasors is liable for all
damages if their negligence is a substantial factor
in the damages.
o Minority Rule
If your negligent act, combined with an act of
God are the cause of thekm injury, the actor is
not liable.
Dillon v. Twin State Gas and Electric Co.
o Look specifically at what was caused and tie the damage
directly to the injury.
Casual Uncertainty and Apportionment
Summers v. Tice
If the plaintiff can show that two or more defendants were at
fault, but only one could have caused the injury, the defendants
assume the burden of proving that they weren’t the but-for
cause, otherwise they would be held liable.
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Ybarra v. Spangard
When a group of defendants has knowledge and control, the
burden of proof shifts to the defendants. There needs to be
some sort of shared responsibility of that control.
Contribution Every defendant who is jointly and severely liable is liable to
the plaintiff for the whole of the injury.
A plaintiff can sue any individual regardless of the significance
of their responsibility and can recover in full from that
defendant.
Each defendant can recover from other defendants for their
portion of the injury as determined by the jury.
A defendant who pays above their share to a plaintiff can
recover from the other defendants, but only up to the
defendant’s share.
Intentional tortfeasors and defendants who settle cannot seek
contribution from other defendants.
New York’s Contribution Rule
Where there are two or more defendants and a defendant is
50% or less responsible, then that defend ant is only liable for
his or her proportion of noneconomic damages.
Defendant cannot seek contribution from other defendants for
noneconomic harm.
This does not apply to economic harm.
Market-share liability
Arose out of a basic notion that there are policy reasons
justifying the imposition of liability when cause in fact can’t be
proven.
Rule (Sindell)
o Where a significant share of the market can be joined in
the suit, each defendant is responsible for damages
equal to the percentage of their market share.
It doesn’t matter how small your share is, you’ll still be held
liable.
where plaintiffs have no knowledge of which tortfeasor,
among many, directly caused the injury and the defendants
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themselves are unable to prove that they did not cause the
injury.
Elements of Risk Contribution (Thomas)
Functionally interchangeably goods
Physically interchangeable goods
Uniformity of risk
Vicarious Liability General Principle
Masters are vicariously liable for the torts of their servants committed while
the latter are acting within the scope of their employment (respondeat
superior).
Servant – Restatement (Second) of Agency §220
(1) A servant is a person employed to perform services in the affairs of
another and who with respect to the physical conduct in the performance of
the services is subject to the other's control or right to control.
(2) In determining whether one acting for another is a servant or an
independent contractor, the following matters of fact, among others, are
considered:
(a) the extent of control which, by the agreement, the master may
exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct
occupation or business;
(c) the kind of occupation, with reference to whether, in the locality,
the work is usually done under the direction of the employer or by a
specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the person doing the
work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the
employer;
(i) whether or not the parties believe they are creating the relation of
master and servant; and
(j) whether the principal is or is not in business.
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Scope of Employment – Restatement (Second) of Agency §226
(1) To be within the scope of the employment, conduct must be of the same
general nature as that authorized, or incidental to the conduct authorized.
(2) In determining whether or not the conduct, although not authorized, is
nevertheless so similar to or incidental to the conduct authorized as to be
within the scope of employment, the following matters of fact are to be
considered:
(a) whether or not the act is one commonly done by such servants;
(b) the time, place and purpose of the act;
(c) the previous relations between the master and the servant;
(d) the extent to which the business of the master is apportioned
between different servants;
(e) whether or not the act is outside the enterprise of the master or, if
within the enterprise, has not been entrusted to any servant;
(f) whether or not the master has reason to expect that such an act
will be done;
(g) the similarity in quality of the act done to the act authorized;
(h) whether or not the instrumentality by which the harm is done has
been furnished by the master to the servant;
(i) the extent of departure from the normal method of accomplishing
an authorized result; and
(j) whether or not the act is seriously criminal.
o Independent Contractors
Generally, masters are not liable for the negligence of independent
contractors hired.
Exceptions
Employer is negligent in selecting, instructing or supervising
the independent contractor;
The duty of the employer, arising out of some relation to the
public or to the particular plaintiff, is nondelegable; or
The work is specifically, peculiarly, or inherently dangerous.
o “Frolic and Detour”
Phrase often used to describe a type of conduct that falls outside of
the scope of employment.
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Typically arises when an employee is sent out to accomplish an
objective of the employer and along the way, the servant also
runs an error personal in nature.
In determining whether the servant engaged in a frolic and
detour, look at how far off what the servant was doing from
what they were to do as part of the job.
If the servant significantly deviated from the route strictly
necessary to serve the purpose of the master, then the master
is not liable for the servant’s negligence.
Proximate Cause
Defining Proximate Causeo Proximate Cause: A sufficiently close causal connection between the
defendant’s act of negligence and the harm suffered by the plaintiff that it’s
fair to hold the defendant liable for, as a matter of policy.
o Direct Cause Test: Consequences which follow in unbroken sequence,
without an intervening efficient cause, from the original negligent act are
natural and proximate.
o Foreseeability test: Defendant liable only for those consequences of the
negligence which are reasonably foreseeable at the time of the action. The
extent and precise manner in which the harm occurs need not be foreseeable,
just the harm.
o Palsgraf multifactor test for proximate cause:
Natural and continuous sequence between cause and effect,
Directness of the connection between cause and effect, without too
many intervening causes
The effect of the cause on the result is not too attenuated
The result is likely to be produced by the cause
Result is foreseen by exercise of prudent foresight
Too remote from the cause, considering time and space
o Thin Skull Rule: A defendant takes a plaintiff as he finds him and is liable in
damages for aggravation of a preexisting condition.
Intervening Causeso Intervening, superseding causes: subsequent acts of independent third-
parties or forces, which are the immediate cause of the harm, but the original
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negligence of the defendant is also a cause in fact of the harm. Intervening,
superseding causes generally cut off liability of the original negligent actor.
o Watson Rule: Criminal, malicious, or intentional acts are intervening,
superseding causes which cut off the liability of the original negligent
tortfeasor.
o Kush Rule: Where the criminal, malicious, or intentional intervening act is a
natural and foreseeable consequence of a circumstance created by the
defendant, the defendant will be liable.
o Herrera Rule: Where your act of negligence enables a tortfeasor, it is not an
intervening superseding cause where the damaging act is foreseeable.
o Rescue – Wager Rule:
Where it is foreseeable that your negligent act will invite rescue of a
third party, and the plaintiff is injured in the process of that rescue,
you are liable.
You will be liable for creating the dangerous situation from which a
party must be rescued when the rescuer is hurt.
Damages
Torts system endeavors to make a plaintiff whole in relation to damage suffered in a
way that is really unsatisfying. You can’t always make someone whole using
damages. You can’t bring a loved one back to life, you can’t un-break a leg, etc.
Types of Damageso Medical Costs
A plaintiff can recover reasonable medical expenses.
A plaintiff must mitigate damages. They need to take reasonable
harm-reducing measures.
Needs to be done even if there is some sort of religious opposition to
those measures.
o Loss of earnings
Out of pocket
Earnings lost by the plaintiff by the date of trial.
Anticipated
Future costs, set amounts based on potential earnings.
These are paid when they are awarded.
Determined by using
o Basic earning capacity
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o Percentage by which the plaintiff’s earning capacity has
been diminished
o Expected duration of the disability
o Life expectancy of the plaintiff
o Emotional Harm – Negligent infliction of emotional harm
Starting Rule – Waube v. Warrington
An actor whose negligent conduct causes serious emotional
disturbance to another is subject to liability to the other if the
conduct:
o (1) places the other in immediate danger of bodily harm
and the emotional disturbance results from the danger
and
o (2) occurs in the course of specified categories of
activities, undertakings, or relationships in which
negligent conduct is especially likely to cause serious
emotional disturbance.
Factors for NIEH, based on injury to a third party
Dillon v. Legg
o (1) whether the plaintiff was located near the scene of
the accident
o (2) Whether the shock resulted from a direct emotion
impact upon the plaintiff from the contemporaneous
observance of the accident
o (3) Whether plaintiff and the victim were closely related
Thing v. La Chusa
o (1) Close relation to the victim
o (2) present at the scene of the accident and aware that
it is occurring
o (3) suffers emotional distress as a result.
Restatement 47
An actor who negligently causes serious bodily injury to
a third person is subject to liability for serious
emotional disturbance, thereby caused to a person who
(a) perceives the event contemporaneously and (b) is a
close family member of the person suffering the bodily
injury
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