TORTSI. Intentional torts

For all intentional torts, need to establish both intent, and actualization of intent.

Intent

To establish tortious intent, must show that regarding the act in question, the defendant either:

a. Desired natural and probable consequences of act OR b. Had knowledge that there was a substantial certainty the consequences of act would

occur. -This means close to 100% likely, otherwise might be looking at negligence-Subjective (whether defendant knew)

NOTE: Motive is not intent (e.g. self-defense – doesn’t negate intent, is a separate defense)

Mistake:

Mistake of fact does NOT negate intent. If you intend consequences of your act, it doesn’t matter if a mistake made you think you weren’t committing a tort (or thought you were committing it toward a different party). This goes to the fact that motive and intent are different. So: meant to throw brick at a dummy, threw it, hit the dummy but the dummy was actually a person – you had intent. Meant to throw at A, turns out A was actually B – you had intent.

Transferred Intent:

In intentional torts ALONE (so not negligence), tortious intent toward one party can transfer to damage caused to another party as a result of that intent. E.g. meant to throw brick at A, missed and hit B instead, committed tort against B with intent transferred from A.

NOTE: If original act is PRIVELEGED (see section on privilege), no transferred intent because original intent NOT TORTIOUS.

NOTE: IIED is slightly different.

Youth:-A child may be capable of developing level of intent necessary. Because it is subjective,

it is based on the child’s maturity level, etc.-In most jurisdictions (but not all), parents not automatically liable for their children

(unlike employers).

Differences in Outcome Compared to Negligent Torts: -Insurance may cover one type of tort and not the other-Employer liability may vary between the two-Statute of Limitations may be different (if shorter for intentional tort, D might actually

argue was intentional rather than negligent in order to say SOL has run out)-Punative damages may be different between the two

Battery

A battery occurs where there is:

1. Intent to cause a harmful or offensive contact to P or 3rd party, OR to create imminent apprehension of such contact AND

2. Harmful or offensive contact to P occurs directly or indirectly

Harmful contact:

Any physical impairment to any part of a person’s body (severity of harm reflected in damages).

Offensive contact:

An objectively reasonable person would be offended under the circumstances. The contact is unwarranted by social usage prevalent at the time and place.

-Context, setting and relationships are important in determining reasonableness-Knowledge of consent, revocation of consent, lack of informed consent effect

reasonableness

Eggshell plaintiff:

Don’t need to intend the exact damage that actually occurs, just need to intend to make harmful or offensive contact and then do so. So, if intentionally slap someone and unknown to you, they have condition that makes it so your slap breaks their arm, you are still liable even though you didn’t intend to break the arm, because you did intend to make harmful contact.

Idiosyncratic plaintiff:

If the only way to establish tort is to take into account idiosyncrasy of plaintiff, no tort because objectively reasonable person wouldn’t have found contact offensive (and there was no physical impairment). Different from eggshell because that is about unexpected level of damage, rather than whether there is a tort in the first place.

Indirect contact:

a. D contacts P through use of another object (throw brick at P), OR b. D comes into object that is itself intimately connected to P’s body such as

something being worn or held (such as a plate he is holding – tearing it from his hands because “we don’t serve your kind”).

-Courts divides on smells, gasses, and light counting as objects, though most now consider smoke an object so long as D desired it to

contact P (e.g. blow it in face of neighbor)

Assault

An assault occurs where there is:

1. Intent to cause a harmful or offensive contact to P or 3rd party, OR to create imminent apprehension of such contact AND

2. P is placed in imminent apprehension of harmful or offensive contact

Sometimes assault and battery will occur during same incident. Sometimes, assault only (apprehension occurs but there is no actual contact), sometimes battery only (offensive contact occurs but P wasn’t placed in apprehension).

Apprehension:

Whether P was on alert for contact at the time – so even if later don’t remember the incident because got knocked out, etc., if can show that were placed in apprehension AT THE TIME (through evidence of struggle, witnesses, etc.), then there was an assault.

-NOTE: standard is on alert for possible contact, not fear (so if think can easily defend self, it is still assault because you have been put on alert of possible contact)

-Don’t need evidence that D could actually could/would have followed through with act, just that P thought he would/could

-Standard of proof is preponderance of the evidence (greater than 50%).

Imminence:

Not apprehension of immediate contact, but contact that will happen fairly soon, without significant delay. Matter of moments. If any longer than this, imminence standard is not met (because P should have found a way out of the situation given time).

Conditional and future threats:

Adding a condition to a threat (“do this or I will…” ), or threatening future harm (“this afternoon I will…”) removes imminence, so there is no assault. Also, P has to

believe that he is the one who will be harmed, not anther party (e.g. threaten to hit sister – no assault against P).

Reasonableness:

Under circumstances, P needs to have reasonably believed in the imminence of harmful contact.

Words vs. acts:

Usually, words alone insufficient. Generally would also need some act like leaning, moving hand, etc. This goes to establishing the imminence of the apprehension.

Rarely, words may be enough alone.

Respondeat superior:

Employer will only be liable for assault by employee if the assault grows out of or is related to scope of employment. Usually, assault while at workplace would be sufficient, although in some rare cases, would have to also prove that the employer intended the employee to commit the tort.

False Imprisonment

False imprisonment occurs where:

1. D acts intending to confine P or 3rd party,2. P is actually confined as direct or indirect result of act, AND3. P is aware of confinement

RESTATEMENT:

P’s awareness is not a required element if physical injury results from the confinement. However, this is NOT the rule in most jurisdictions, which require all elements in all cases.

Intent:

Motive doesn’t matter to satisfy intent; can have a good reason to want to keep someone and it is still false imprisonment (but can defend against it with privilege)

Actual Confinement:

-Size of area of confinement can be small or large (whole city)-Keeping someone out of an area isn’t confinement, it is keeping them IN an area that is

confinement.-If P can easily escape by reasonable means, no confinement.-Don’t necessarily need to use physical barriers; e.g could strand in desert with no car

Coercion:

-Making threat usually counts as confinement, though it may need to be an imminent threat (e.g. if you leave I will shoot you, rather than if you leave, one day I will

do something to you)-Grabbing property of reasonable value and using that to make person stay in place

counts as confinement in most jurisdictions -Threat with loss of job insufficient to show false imprisonment, because job is not

property right (so can say go to room to talk about your alleged theft or you will lose job)

-If you accuse someone of something and they remain in order to clear their reputation (e.g. you call police and person stays to explain self), no false imprisonment

Privilege:

If person has lawful right to confine another, there is no false imprisonment.

Shopkeeper’s Privilege:Most states have statutes allowing merchants to detain suspected shoplifters (if

suspicion is reasonable) in a reasonable manner and for a reasonable amount of time to investigate whether they have stolen property.

Duration:

Doesn’t matter how long confinement is, though this will be reflected in damages.

Intentional Infliction of Emotional Distress

Intentional Infliction of Emotional Distress occurs where:

1. Extreme and outrageous conduct2. Intentionally or recklessly 3. Causes4. Severe emotional distress

Intent/Recklessness:

In IIED, intent is not just to act, but to cause the severe emotional distress. Reckless means disregarding serious likelihood that the harm will occur – measured by extent and likelihood of harm.

Extreme and Outrageous:

Conduct goes beyond all bounds of decency in society. Criminal behavior might not necessarily always meet this burden. Average person would need to be shocked to a GREAT degree.

Factors:-What is said and done-Duration/repetitiveness of conduct-Relationship of power & control between victim and actor-D’s awareness of P’s particular sensitivity under circumstances

Severe Emotional Distress:

This is different from usual emotional damages allowed for with other intentional torts. Where there is emotional distress as result of ANOTHER tort (battery, false imprisonment, etc.), court

usually allows P to collect on this as a parasitic damage, that is, there is other injury and this results from that. In IIED, the emotional damages are not parasitic, they are the basis of the whole tort, so courts have tougher standards of proof, and require greater severity.

-MOST STATES require proof of physical symptoms resulting from the emotional harm (e.g ulcer). Not the case with Restatement, but most don’t follow it.

-Most of these states count psychological conditions as physical harm, but will need a doctor’s diagnosis of a medically recognized condition.

Causation:

If symptom existed prior to conduct, then those symptoms don’t prove causation.

Transferred Intent:

Generally does not apply to IIED. Under Restatement, cannot transfer intent from other type of tort to IIED, but may transfer IIED intent from one person to another.

3rd Party Plaintiff:

If conduct was toward another but 3rd party is the one claiming IIED, most states require physical manifestation of severe emotional distress, Restatement also does UNLESS the party who was victim of the conduct was a family member or the party claiming IIED. Depending on jurisdiction, may need to show that D knew or should have known of presence of 3rd party (Restatement requires this).

II. Privileges/Defenses

For most of these, the defendant must raise the defense and prove it. Consent is the one exception, where if the defendant raises, plaintiff must DISPROVE it.

A. Consent

If plaintiff is willing for conduct to occur, there is consent. Can either show that person was subjectively willing (actual consent) or that their behavior was such that the defendant was reasonable in thinking they consented.

Apparent consent:

If the words or conduct of plaintiff would be reasonably understood to be intended as consent, then this counts as consent in the eyes of the law.

Implied Consent:

There are a few kinds.-In one, an established relationship plus history of behavior can imply consent, but

this can be revoked. -In another, engaging in a certain activity creates implied consent which you cannot

revoke without disengaging from activity (e.g. get on rollercoaster – need to get back off to revoke consent to being scared).

Line of implied consent may be hard with engaging in sports. Some courts might say activity outside of rulebook is outside scope of consent, others would say if outside rulebook but within custom, it is still within scope of consent.

Ineffective Consent

Consent is not effective under the following conditions (and possibly others where D has cause to know P’s consent isn’t valid):

-Duress: consent given under threat of force, usually needs to be imminent-Fraud: consent given as result of misrepresentation or concealment of material

element of agreement-Age: person too young or too old to consent (relative to other party – needs to be

imbalance; state may also look at factors including education and maturity)-Mental incapacitation: person consented while mentally incapacitated

Scope of Consent for Medical Procedures

When a patient consents to a medical procedure, the consent is either (depending on court):

- Specifically the procedure you agree to, OR-What the doctor thinks is medically necessary in the area of the body the doctor is

working on

Consent forms may have you specifically agree to anything the Dr. thinks is necessary, so long as it is a reasonable decision.

If Dr. does LESS invasive procedure than the one discussed with the patient, while it may be malpractice it is not battery because patient agreed to a greater contact, so less contact is covered.

Informed Consent in Medical Procedures

If doctor didn’t give critical information especially regarding risks, consent is not viewed as totally negated anymore (used to), but rather it is viewed as negligence to fail

to disclose this information.

Elements to prove negligence based on lack of informed consent:

1. There was duty to inform patient of risk, and 2. Physician failed to do so, and3. Failure to inform was the cause of injury (because would not have consented to

procedure if had known of risks)

Duty to inform:

There are two standards for when a Doctor has a duty to inform a patient about risks (depends on jurisdiction).

1. Reasonable patient standard: All material risks that would be relevant to reasonable patient making a decision (slight effect or likelihood may mean not material, however combining two such as big effect small likelihood is more tricky).

2. Reasonable doctor standard: Reasonable doctor would consider the information important to the patient’s decision-making (look at custom, evidence from other doctors).

Causation:

There are two standards to show that injury was caused by failure to inform:

1. Objective (Reasonable person) test: if a reasonable person would have made the decision to forgo the procedure had he known of the risks (MAJORITY of jurisdictions)

2. Subjective test: If the specific plaintiff can show that HE would have made the decision to forgo the procedure had he known of the risks

Exceptions to duty to inform:

1. Risks already known to patient or ought to be known by everyone2. Emergency situations3. Full disclosure would be detrimental to a patient’s best interest (even

emotional harm – this is BIG exception because it almost undoes the subjective test)

Duty to disclose information about the doctor:

This generally only arises in jurisdictions that use the reasonable patient standard. Some courts will say that a patient has a right to know certain things about the doctor, not just the procedure, including financial interests, success rate, etc.

B. Self Defense

May use a level of force that is reasonable under the circumstances to prevent someone from committing a tort against your person if:

a. Tort is already happening, orb. Threat is imminent OR you reasonably believe it is (if mistaken)

Imminence:

Don’t need to wait until tort is in progress, but it needs to be just about to happen, rather than a future threat (because you should do something else to prevent that). Cannot act after a tort is complete (out of danger of more harm) because that is retaliation.

Mistake:

A mistake regarding the imminence of the threat of a tort is allowed in self-defense, so long as under the circumstances the mistake was reasonable.

Level of Force:

Level of force must be reasonable under circumstances. This means you cannot use greater force than:

1. You are faced with or reasonably believe you are, AND2. You believe is necessary to defend yourself (e.g. if know can disarm someone based

on your skill level, need to do that rather than use deadly force)

-Deadly force and serious bodily injury are same force level (b/c either outcome could occur at that level)

-Even if you cannot stop a battery without using more serious force than what you are receiving, may not escalate to deadly/serious injury force unless you reasonably believe that you will be killed or seriously injured.

-In some jurisdictions, may threaten to use deadly/serious injury force in order to stop battery, but others do not even allow this threat because of escalation risk

Initial aggressor:

Most jurisdictions to not allow initial aggressors to respond to threat of escalated force with equally escalated force unless they first withdraw and announce intent to do so, and other party refuses to stand down, or other party actually uses the escalated level of force.

Duty to retreat:

-No duty to retreat from non-deadly force.

-In case of deadly force, Restatement rule is that there is a duty to retreat, except within your own dwelling or one you share with your attacker, so long as you reasonably believe you can do so in safety. But that is minority – MOST states have no duty to retreat from deadly force anywhere.

Injuring 3rd Party:

Jurisdiction split. If use self-defense to protect from one party and accidentally injure another party (e.g. miss with shot):

-Majority of jurisdictions say you did not commit a tort because your original act was privileged and therefore there is not tortious intent to transfer.

-Minority view is you did commit a tort because your privilege only extended to the original party, so there is tortious intent that can be transferred since you HAD the intent in the first place (it was just excused toward the one person)

C. Defense of Others

Same rules as for self-defense only involving tort/threat of tort happening to someone other than yourself, EXCEPT a difference (depending on jurisdiction) regarding mistake.

Mistake:

If mistake leads you to believe someone is in danger when they were not, or that an apparent aggressor was not privileged to act but they actually were, some jurisdictions will NOT allow you to use force. Others will.

D. Defense of Property

-May use force to defend your own property, BUT NOT deadly/serious bodily injury force even if that is the only way to protect property (usually).

-May not even indirectly use deadly/SI force (e.g. by setting up deadly traps).

-May use deadly/SI force if situation turns into one of self-defense, or if there is a “violent felony” occurring, which is defined by jurisdiction.

Mistake:

No force is privileged if you are mistaken about a person’s right to be on your property (e.g. it is dark and you think your roommate is a robber).

Signs:

Deadly/SI force may be used, in some jurisdictions (not all) if you have first posted signs warning trespassers that they will be shot/dogs will attack, etc.

Recovering property:

May only use force to recover stolen property if the theft JUST occurred and you are in hot pursuit. If you are mistaken about theft, force is not privileged (unless you are shopkeeper, in some states).

E. Necessity

Similar to self-defense, except tort is privileged against innocent third party rather than person who created the danger. Act is privileged if actor reasonably believes it is necessary to prevent a greater harm. There are two types of necessity:

1. Public necessity:

-Individual commits tort to protect the public (group of people (or their property)).

-Act is privileged, and actor does not have to pay damages to injured party.

-If property is at issue, may not be strictly a question of weighing dollar value – e.g. one property may be worth more than all the homes in neighborhood but it would

be OK to destroy that property to protect the homes

2. Private necessity:

-Individual commits tort to protect himself (or his property)

-Act is privileged, but actor has to pay damages to injured party. Benefit is right to avoid the greater harm (e.g. person can’t kick you off your property if you are hiding

there to stay safe from killer, but if you damage the property you do have to pay for it later).

-If attempting to save property rather than people, need to weigh dollar value of harms to see which is greater – only privileged to act if preventing greater harm.

Lives for lives:

If kill others in order to save lives, generally this is not allowed on a small scale, but it is generally allowed on a large scale (e.g. government shooting down plane to stop it from flying into tower).

III. Negligence

No intent required, no different types of negligence torts. Just a tort based on acting unreasonably under circumstances.

A. Elements

1. Duty for defendant to act with certain level of care toward plaintiff (usually level is reasonable care)

2. Breach of duty (if there is duty & breach, negligence is established but not necessarily liability without other elements)

3. Causation: But-for and proximate cause of injury required4. Harm (no recovery without actual injury)

B. Proving a Negligent Act (Duty & Breach)

How do you determine what a reasonable level of care is under circumstances, and that it was breached? Look at several factors. Generally, a jury is just told to look at how a reasonable person under circumstances would act.

Reasonable person test:

-How would a reasonable person act, what would a reasonable person know, how would a reasonable person balance factors?

-Reasonable person might act in several ways (alternatives possible)

Reasonable care in dangerous activity:

In general, defendant’s actual level of skill/experience is irrelevant because there is a minimum standard to skill required. But, if someone has superior skill, THAT

higher standard is the standard they will be held to under the Restatement (not all states follow this, and will just follow the minimum standard)

Risk-Utility Balancing:

Sometimes a court will have jury measure whether a person behaved reasonably by weighing the following factors:

1. Reasonably foreseeable risk of harm 2. Reasonably foreseeable gravity of harm3. Cost to avoid the harm 4. Availability of alternative5. Social utility of defendant’s conduct

-Some jurisdictions require alternative conduct where alternatives exist to the risky conduct, others do not.

-This test is also used to determine when there is a duty to warn about risks.

Knowledge:

Actual knowledge of a risk is not always the standard; sometimes, there are things you have a duty to know are risky (e.g. that flame burns skin, that bald

tires can explode, etc.), and have a duty to check if the risk exists.

Emergency:

If act unreasonably in response to an emergency situation, there is no negligence (this is unlike intentional tort, where action is allowed but there may still be liability)

Disabilities:

1. Physical challenges : will be taken into account in determining reasonableness, but look at accommodation and notice to others

2. Mental challenges : will generally not be taken into account in determining reasonableness (other than developmental delays)

3. Age : youth (under 18) will be taken into account in determining reasonableness, along with the mental and physical capacity of the person in question

4. Religious belief : it is unclear whether it will be taken into account, but where it is considered, it is usually just one factor (not the deciding one) in determining reasonableness

NOTE: If a child is engaged in an activity usually engaged in by adults, the child will be held to the standard of care of an adult (e.g. driving). BUT, determining what an

“adult activity” is may vary by custom of states, so may look at level of dangerousness of activity instead. So, child held to adult standard of care where partaking in a dangerous activity.

Custom:

-May look at custom (e.g. in industry) to help determine reasonableness, but then also have to show that custom itself is reasonable (following custom alone may not

be sufficient to prove D was reasonable).

-And if plaintiff shows defendant did not follow custom, that may also be a factor, but again it is not dispositive in determining reasonableness.

-The more specialized a profession, the less likely it is for custom to be declared unreasonable. But still may happen where risk of harm low, but gravity of harm

high, and cost of burden is low.

Professionals:

-All professionals muse have and use the knowledge, skill, and care ordinarily possessed and employed by members of their profession in good standing. This is

MINIMUM standard, because if based negligence on average, 50% of professionals would be negligent.

-“Good standing” used to be defined by geographic region, now it is a national standard.

-Requires expert testimony regarding industry standard (not just what expert himself would have done).

Negligence Per Se:

If harm caused by D’s violation of criminal statute, may not need to weigh factors to determine reasonableness in negligence per se jurisdictions. MUST find breach

of duty, either if specific criminal statute violated says it can be used to prove civil negligence, OR if:

1. The statute was intended to prevent the harm P suffered, AND2. The statute was intended to protect this class of P

If elements not met, P may not bring up violation of statute at trial because it may prejudice jury.

Intended to prevent harm plaintiff suffered:

If hurt because of violation of statute intended to prevent other harm (e.g. firework swallowed vs. exploding), no negligence per se. If multiple reasons for statute and even ONE was intended to prevent type of harm suffered, that will suffice.

Intended to protect this class of plaintiff:

If statute violated was intended to protect other class (e.g. employees vs. visitors), no negligence per se. Again, if multiple classes intended to be protected, this is met if one class is that of P.

Some states have a third required element:

If statute creates a duty rather than quantifying pre-existing duty, can’t be used to prove negligence per se.

NOTE: Reverse of negligence per se doesn’t work, that is, just because you didn’t violate a statute doesn’t mean you acted reasonably according to traditional standard.

Causation in negligence per se:

Still need to prove causation! If violation of statute did not cause harm, no liability. Negligence per se only establishes breach of duty, not causation. Need both.

Defenses to negligence per se:

1. Actor’s incapacity (e.g. age) makes violation of statute reasonable2. Actor didn’t know AND shouldn’t have known of occasion for compliance3. Actor was unable after reasonable diligence/care to comply with statute4. Actor was confronted by an emergency he didn’t cause, which caused

noncompliance5. Compliance would involve greater risk of harm to the actor or others

Res Ipsa Loquitur

Judge may allow a res ipsa instruction to jury where there is no evidence of negligence, but the situation is such that negligence must have occurred. Plaintiff must

show:1. Event ordinarily (more likely than not) does not happen absent someone’s

negligence, AND2. More likely than not (greater than 50%), the defendant was the one who was

negligent

Once judge allows instruction, in MOST jurisdictions, jury then decides whether D negligent, based on same 2 elements. So first judge decides whether a jury

COULD find res ipsa (based on elements), and then jury makes final decision. MINORITY of jurisdictions say that once judge allows res ipsa instruction, jury must find it to be true.

Restatement only allows for res ipsa in case of physical injury, but this is not followed in all jurisdictions.

Defendant more likely than not negligent:

-Exclusive control of product at time when negligence probably occurred may be used to show element #2, especially in chain of commerce

-If more than one defendant could have been the one who was negligent, and cannot show which one it was, this element is not met, UNLESS:

-P unconscious, all possible Ds have duty of care – burden shifts to D to prove NOT negligent. This is in a minority of states, and is limited to medical

malpractice

C. Causation

For a defendant to be liable for negligence, his negligence must have been both the actual cause and the proximate cause of the plaintiff’s injury. If have more than one theory of negligence, need to show causation for each theory.

Actual Causation

But-for Causation

But for the defendant’s negligence, the defendant’s injury would not have occurred. P needs to show not just conceivable that injury wouldn’t

have happened without negligence, but that it is MORE LIKELY THAN NOT that injury wouldn’t have happened without negligence (greater

than 50%).

D can’t show no negligence just by saying MIGHT have happened without negligence – again, the threshold is 50%

Factors to help prove more likely than not:

-Negligence multiplies the chances of type of injury-Kind of negligence alleged naturally leads to type of injury

Duty to Warn

Generally there is duty to warn of risks you know or should know of. Exceptions include: -P knows about risk form other source-P failed to read warning/wouldn’t have read

When P tries to show lack of warning caused injury, need to show would have read and heeded warning. Generally there is presumption this is

the case, but D may rebut in which case P must prove otherwise.

Probabilities

If cannot show more than 50% chance causation for individual P, May use statistics for class of Ps in class action suit.

Where % of injury in class is greater than it is in general population (at least double), and there is a large class of P’s, judge will allow

case to go forward.

Expert testimony regarding scientific experiments

If experiments indicating causation don’t pre-exist injury, they may not be allowed (Federal rule, many states follow it)

because of questions of objectivity.

Loss of Chance

Medical malpractice issue. Where there is chance won’t recover from surgery, and therefore cannot use traditional but-for causation

due to odds, but may use loss of chance so long as chance not too slim.

Negligence takes away chance (whatever percent it was) of recovery, and THAT is the harm.

Jurisdictional split on measuring damages:

1. Multiply chance of success by total damages caused by injury, only in cases where chance is less than 50% (MAJORITY)

2. Multipy chance of success by total damages even in cases of 50% or greater chance. MINORITY view because this appears to apply loss of chance to case where but-for-causation is established (because there was greater than 505 chance would have survived w/out negligence).

If negligence merely reduces chance from already low chance of recovery, there is split over whether to look at difference

between those two percentages, or to look at what percentage of the original percentage the difference constitutes.

Multiple Negligent Defendants ALL causing Plaintiff’s Harm

More than one D negligent, and both HAD to be negligent for injury to occur. Two kinds of these joint tortfeasors:

Acting in concert – were in agreement, both liable for all injurySuccessive tortfeasors- one act comes before other, not planned/agreed on, so injury and damages may or may not be severable

Divisible injuries: Different D’s negligence caused separate injuries that don’t merge together into one whole greater injury, so injury can be split (and damages are therefore split as well).

Indivisible injuries: Negligence of both defendants caused whole/all injuries, so injury cannot be split. Sometimes separate injuries create indivisible injury (e.g. each D damages one of P’s eyes, blindness is injury which cannot be divided)

Joint & Several Liability: In some jurisdictions, in case of indivisible injuries, P can choose to collect full amount from either D.

Several Liability: Jury apportions fault for indivisible injuries.

Multiple Negligent Defendants NOT ALL causing Plaintiff’s Harm

-Multiple sufficient causes: More than one negligent D, both caused harm, yet harm would have occurred if either weren’t negligent

because the other one still caused harm. Doesn’t matter – both considered factual cause of harm.

-BUT, where 2 or more parties were negligent, only 1 caused harm, but P cannot show which one it was, burden shifts to D to show did

NOT cause harm where:

1. Both D’s more likely than not negligent and one caused harm,

2. No fault of P that cannot prove which D caused harm, AND3. Ds in better position to determine who was at fault

At trial, each D will try to prove other was cause of harm. If not all possible Ds are involved in case (so, could have been D not at

trial who was cause), court may use market share liability:

-P must show what % of market at time of injury controlled by each D

-If D cannot prove was not cause of harm, damages capped at % of market share (though may change if some other Ds prove

they weren’t cause)

NOTE: most states do not use market share liability, will only shift burden where all possible Ds are involved in case.

Proximate Causation

At a certain point, where effects of acts continue to ripple, liability is cut off even where there is but-for causation. Need both but-for and proximate cause to be liable.

Liability is not cut off the moment an act ends. Reasonably foreseeable consequences are also proximately caused by negligent acts.

Liability Limited to Reasonably Foreseeable Consequences

Jury generally decides what is reasonably foreseeable under the circumstances. Doesn’t mean more likely than not to occur, just that it is a risk that a

reasonable person would be aware of, even if slim risk. 2 elements:

1. Type of harm must be reasonably foreseeable2. Person injured must be reasonably foreseeable

Foreseeable Type of Harm:

If the type of harm is foreseeable, but it occurs in an unlikely manner, doesn’t defeat foreseeability (e.g. unsafe conditions in factory make fire likely,

and fire happens when rat catches on fire and runs into wall – still foreseeable, b/c it is the fire that is foreseeable given conditions).

If general type of harm foreseeable though the specific type was not, that is sufficient (e.g. violent act in general rather than rape specifically).

Thin Skull Rule:

Once you have caused injury, if it becomes more severe due to pre-existing condition you are responsible.

Foreseeable Plaintiff:

-Rescue is foreseeable, so someone injured while rescuing someone endangered by negligence can sue, even if also negligent in rescue.

Palsgraff

If person is outside foreseeable “zone of danger,” they are not a foreseeable plaintiff (e.g. negligence of train operators causes

passenger to drop unmarked bag, it contains fireworks, they explode, woman 25 feet away is injured – not foreseeable that type of negligence would have created 25-foot zone of danger)

Superseding Causes

If intervening action of another is foreseeable, it does not cut of liability. If the intervening action WAS NOT foreseeable, it is a superseding cause of

injury and cuts off liability.

-Ordinary negligence of another actor is foreseeable.

-Accidental act of another is foreseeable

-GROSS negligence or recklessness of another is not foreseeable.

-Intentional tort or criminal act is not foreseeable UNLESS procedure anticipated its likelihood (e.g. procedure which was negligently violated created specifically

to prevent crime)

-Acts of nature may or may not be superseding causes, depending on foreseeability (e.g. lots of earthquakes in area)

D. Negligent Infliction of Emotional Distress

Direct NIED (Restatement)

a. P was in zone of danger of physical harm, ORb. P and D had special relationship

ZOPD:

P was in danger zone, wasn’t actually inured, but was emotionally distressed by the situation.

What about phobia? E.g. worried that incident will cause outcome (chemical exposure and cancer). Some courts will allow if there

is 50%+ chance that thing you are afraid of will actually occur. Others will not.

Special relationship:

-Negligent handling of genetic material-Negligent handling of corpse-Dr/patient or Dr/next of kin where to physical harm to P but there was

duty of care (usually having to do with delivery of baby, e.g. dropped baby but it was OK and patient was OK)

Bystander NIED

a. Zone of physical danger (some jurisdictions only allow this)b. Dillon factors (most jurisdictions also allow this)

ZOPD:

P was in danger zone, wasn’t actually inured, but was emotionally distressed by the situation.

Dillon Factors:

If were not in zone of danger, may still recover where:1. Person injured was close family member2. P was on the scene at the time of the event3. P actually witnessed the injury as it occurred (some courts count

watching on TV)

Proving Emotional Distress

Physical manifestation of emotional distress required in some jurisdictions. To prove, can show anything that shows up in x-ray/MRI, etc., have

psychiatrist testify to mental issue. If only proof is plaintiff’s testimony (e.g. nerves), some courts accept that as proof and some don’t.

Other jurisdiction follow Restatement which does not require physical manifestation. Jury decides whether circumstances were such that a

reasonable person would suffer emotional distress.

E. Limited Duty to Rescue

Where bystander can foresee harm happening to another, do they have a duty to act to prevent/lessen the harm?

Pure bystander:

Not special category of person, did not cause harm, usually no duty to rescue (a few states require it if can do so without risking own safety)

Begin to rescue but stop:

-If start rescue but stop because it becomes unreasonable to continue, may stop without breach in duty

-If start rescue but stop without reason, may do so without breach UNLESS there is reliance by person being rescued or another party (e.g. other person doesn’t help because they think you are helping)

Negligent rescue:

If you perform rescue negligently, liable if harm wouldn’t have happened without your negligence, not if it would. HOWEVER, most states have Good Samaritan Laws that eliminate all liability in the case of simple negligence on the part of rescuers.

Special relationship:

Duty to act reasonably to help others is created where there is special relationship between parties, e.g.:

-Business employees and patrons in the place of business-Empoloyers and employess-Bus driver and passengers-Fireman and public

Created the danger:

If you create the danger, even if not through negligence, you have duty to act reasonably to help others.

Duty to warn of the danger:

There may be a duty to protect a third party from a wrongdoer if there is a special relationship between the defendant and the WRONGDOER, as opposed to between defendant and plaintiff. E.g. husband/wife, therapist/patient.

There needs to be an IDENTIFIABLE person at risk.

Court will balance interests at stake, e.g. patient confidentiality or marital stability, with gravity of harm. Factors:

1. Nature of risk (foreseeability and severity – NEED ACTUAL or SPECIAL knowledge rather than reasonable belief)

2. Opportunity/ability to do something to prevent harm (need to do something SUFFICIENT – may need to warn actual victim, may not – depends on court)

3. Comparative interests of/relationship between parties4. Public policy

F. Duties Owed by Owners of Land

Property owner’s duty of care toward people on property depends on the status of those people:

Trespassers:

In general, no duty to avoid ordinary negligence injuring a trespasser. 3 exceptions:

1. Discovered trespasser – if notice a trespasser in peril, have duty to warn2. Frequent trespasser – if know people routinely trespass (e.g to get to beach), duty

to warn even if don’t see them at time3. Attractive nuisance – if know or have reason to know that children may trespass and

suffer physical harm due to an artificial condition on property (e.g. pool or trampoline), have duty to act reasonably (WARNING MAY BE INSUFFICIENT)

Licensees:

People on land with consent of owner, but there for own purposes (social guests, solicitors, etc.).

Similar to exceptions for discovered/frequent trespassers. Act reasonably, warn of danger.

Invitees:

1. People invited to come on land for purpose connected to business of possessor2. People who come on land as member of public for a purpose for which land is held

open to public

Owner has full duty of reasonable care toward invitees. E.g. inspect for dangers, act to protect invitees from risks, warn against dangers.

NOTE: Some jurisdictions are eliminating distinction between licensees and invitees, meaning both generate full duty of care. Others eliminated ALL categories, and

simply limit liability based on whether it is foreseeable the person would be on property.

IV. Affirmative Defenses

A. Contributory & Comparative Negligence

Contributory negligence is a rule stating that if a plaintiff’s negligence was even slightly the cause of his harm, he was totally barred from recovery. Other than in 4 states, rule was replaced by the 1960’s with:

Comparative Negligence:Modified form (MAJORITY): P recovers, with damages reduced by percentage of

negligence apportioned to him, ONLY if he is either 50% or 49% (depending on jurisdiction) or less at fault. Otherwise, recovery is barred.

Pure form (Minority, Restatement): P recovers with damages reduced by percentage of negligence apportioned to him, no matter how high that percentage (less than

100%)

Assigning Fault:

Conduct only considered if it caused (but-for and proximate) the harm. Factors to consider:

a. Nature of conduct: E.g. unreasonableness under circumstances, failure to meet legal standard, abilities/disabilities, awareness/indifference/intent regarding risks

b. Comparative strength of causal connection to harm: e.g. timing, how attenuated, comparison of risks created to actual harm

Modified Comparative Fault and Multiple Defendants:

Majority of states allow recovery if P’s fault is less than that of D’s COMBINED (even if not separate). Minority will not allow recovery unless P’s fault is less than D’s individually.

Negligent Rescuer and Comparative Fault

If rescuer is injured in part due to her own negligence, most courts won’t reduce recovery based on comparative fault unless conduct is grossly negligent.

B. Assumption of Risk

Where plaintiff voluntarily assumed a known risk, recovery is barred.

Express Assumption of Risk

Plaintiff expressly agrees (contract) not to hold defendant liable, and defendant acts in reliance on that agreement.

Exceptions:

-Some states will not allow clauses excusing gross negligence-Some states will not allow clauses for certain enterprises (e.g. pools)-Some states will not allow parents to sign away rights of children

Implied Assumption of Risk

Person voluntarily exposes self to a known risk.

If act is reasonable under circumstances, many courts won’t bar recovery. And if unreasonable, many won’t totally bar but will instead consider it comparative

negligence. Some states will bar recovery in either circumstance.

C. Statutes of Limitations and Repose

SOLs vary from state to state, and an action can’t be brought after the limit is passed. Most states set it at 2-3 years after injury for negligence.

When does injury occur?

Most states say that injury occurs when it is DISCOVERED by plaintiff: when she knows or reasonably should have known about injury. Repression of a memory does not delay triggering of SOL, though, in some states, while in others it does.

Some states will not trigger SOL right when P discovers injury, but rather when appreciates magnitude of injury.

If P discovers symptoms of less serious disease caused by D’s action, that triggers SOL on an action for any fatal disease also LATER caused by it, EXCEPT in case of asbestos.

Cause of injury

If P discovers injury but not cause, most courts will not trigger Sol until P makes or should reasonably have made the causal connection between D’s conduct/product and injury. Once that happens, it is triggered EVEN if didn’t know D’s conduct was negligent (Majority – very minority view only starts it if knew D was negligent).

Some states won’t start SOL even if P has found cause of injury, until P knows or should know the identity of D (e.g. if found out it was pill but not who made pill, SOL doesn’t start until find maker).

Minors

Most states do not begin SOL for injured minor until minor reaches age of majority

Statutes of Repose

Protect Ds from long-tailed liability. E.g., protecting architects from liability after x number of years past completing a building.

Some courts find these unconstitutional under state const., others do not.

V. Joint Tortfeasors

A. Joint & Several Liability Under Comparative Fault

In wake of comparative fault, most states abolished joint & several liability. Some still have it in all cases, some apply it to economic harm only, and some apply it only under other specific circumstances.

In states without joint and several liability, D’s only liable for their percentage of fault for harm rather than whole harm, even if other party insolvent. However, most will still follow this Restatement exception:

-Where party who intentionally injured P is unidentified or insolvent, but party who breached duty to protect P from that harm is available, the available D is liable

for the full amount of damage.

Minority of states still limit liability to available D’s % share of fault, even in this instance.

In states that KEPT joint and several liability, while a jury will apportion fault to D’s, either D may still be liable for full damages (but not both, because not double-dipping). This is minus P’s amount, in comparative negligence jurisdictions.

B. Satisfaction, Contribution, and Indemnity

Judgement is “satisfied” once P gets 100% of award. It is “partially satisfied” if P gets portion of award.

-In several liability jurisdiction, there is separate satisfaction for each D based on portion of fault (e.g. 100% of amount entitled from D1, 100% of amount entitled from D2, those add up to 100% of total damages).

-In joint and several liability jurisdiction, P can get satisfaction of full damages from either D, no matter percentage of fault (though ONLY for

indivisible injuries – divisible injuries must be satisfied separately).

Contribution:

This exists ONLY in joint and several liability jurisdictions. D may request contribution from other D (again, only for indivisible injuries). How much may D request?

-Most states say contribution shares should be based on apportionment of fault

-A few states say shares should be “pro rata,” meaning you simply divide the full amount of damages by the number of Ds, and no one D may be asked to contribute more than one of those shares

Indemnification:

This exists in BOTH join and several liability states and several liability states. Rather than asking for a portion of damages, D may request other D FULLY reimburse for all damages.

This right arises either through a contract, or where there is vicarious liability (was held liable for act of other D, e.g. employer for employee through respondeat superior).

C. Settlement and Release

Settlements:

If P settles with 1 D but goes to trial with other D, the amount of the settlement will be subtracted from the full amount of damages awarded at trial.

-If settlement was bigger than damages assessed at trial, D2 does not have to pay.

-Some jurs. allow non-settling D to collect contribution from settling D, but most do not.

VI. Damages

Intentional torts: may recover even without showing ACTUAL damagesNegligence: need to show actual damage (emotional, physical, property) in order to recover

May recover for past, present, and future damages (in fact NEED to collect for future due to claim preclusion), but harder to calculate future.

Compensatory Damages

Goal is to “make P whole.” Status of D’s income IRRELEVANT as a result.

A. Special Damages

Capable of ready financial calculation, b/c dollar amount is actually associated w/harm

1. Lost income (look at past income, though still somewhat speculative b/c changes in sector)

2. Medical costs (submit past bills, get expert testimony)

-COLLATERAL SOURCE rule says even if insurance company paid for bills, can collect as if directly paid

3. Service costs (bring in bills)

To predict future damages, jury will look at how long can’t work, what age would retire, health for life expectancy, type of operations and care that will be needed, etc. BUT:

Reduction to present value: Reduce amount of damages by extra that would be gained through investment, so don’t get extra. SOME states will then

also increase for inflation.

B. General Damages

Emotional, so harder to calculate. Can be included even when not IED case when parasitic on other injury.

1. Pain & suffering2. Disfigurement3. Shame4. Hedonistic (can’t enjoy pleasures of life anymore – only allowed in a FEW states)

-Need to demonstrate P is conscious and therefore experiencing emotional harm.

-Most states cap emotional damages

Measure by:

-Per diem approach – divide injury into units of time, assign monetary value to each unit, then multiply by units P has and will endure-Or, whatever jury deems reasonable

Remittor: Judge finds award too high, grants motion for new trial or simply reduces amount

Additor: Judge finds award too low, grants motion for new trial

Punitive Damages

Goal is to punish D, and deter others from similar acts. Status of D’s income is RELEVANT b/c/ punishment is relative based on economic status.