Torts Notes and Briefs PDF

Transcribed Notes from Torts Readings, briefs and class **[Assignment 1: pp 63, 77-81]** Topic: Strict liability and negligence: historic and analytic foundations - The most contested topic in torts is when is a defendant liable for the physical harm he inadvertently causes to the plaintiff? - Traditional strict liability: defendant is liable no matter what - Competing with that is the defendant can recover only if they acted with insufficient care/negligence - Objective terms: those that ignore what the individual did or circumstance - Subjective terms: those based on the distinctive characteristics of the individual and situation (makes more sense) - Ordinary care: the kind of degree of care, which prudent and cautious men would use that is necessary to guard against danger and depends on the context. This is what we ordinarily expect people in society to do. - Extraordinary care: some level or extra care you can take - Preponderance of evidence: greater than 50% chance of being truthful (more likely than not). *Brown v Kendall (Mass., 1850)* - Facts: Brown and Kendall's dogs were fighting, Kendall tried to break it up with a stick and Brown was behind him. He accidentally hit him in the eye causing severe damage. Plaintiff won an assault and battery case and won. The defendant appealed and received a new trial in the end. - Issue: Can a defendant be held liable if he acted with lawful intent and without fault? - Rule/holding: If the defendant acts with ordinary care and an accident still occurs then the plaintiff will not recover damages. - Reasoning: burden of proof is on the plaintiff to show that the defendant was acting unlawfully and without ordinary care, which Kendall could not. - Dicta: The court also instructed the jury that if it was not a necessary act or the defendant was not duty bound (He could have or have not interfered) then he would be responsible for the damage. However, this is not what happened in our case. - Prof notes: if there is a duty ordinary care must be taken (if action is done then burden of proof is on the plaintiff as in our case), if you don't have a dutyextraordinary care must be taken (if action is taken and a wrong is done then burden of proof is on the defendant) - If you exercise fail to practice ordinary care liable - If you exercise/practice ordinary care not liable **[Assignment 2: pp 81-92]** Topic: Strict Liability and Negligence in the 2^nd^ half of the 19^th^ century Notes: - Strict liability: You act and that causes harm so you pay for it. Doesn't matter if you knowingly did so or not. - If you exercise fail to practice ordinary care liable - If you exercise/practice ordinary care not liable - This rylands v fletcher kind of bounces around. *Fletcher v Rylands (England 1865)* - Facts: The defendant---Rylands---hired engineers to create a reservoir on his property. His neighbor Fletcher---the plaintiff---had a coal mine next door. Unbeknownst to Rylands and his engineers, there were old mine shafts underneath where the reservoir was. The engineers saw it, but didn't think it would be a problem. Once the water went in, a seal broke and flooded the old mines which flooded Fletchers working mines as well. He sues and ends up winning, but ultimately losing. - Issue: may a defendant whose lawful conduct on his liable land be held liable even if his conduct was not necessarily negligent? - Judges Bramwell and Martin right differing points of view. Judge Pollock ends up siding with Martin and the case is in favor of Ryland 2-1 at the trial level. - Trespass back then meant: direct hit to you, a direct injury whether it was intentional or not. - Bramwell said: as a rule that ignorance is immaterial and the burden of proof is on the defendant (Rylands). He doesn't believe there was any trespass, nuisance or negligence so Fletcher should win. - Bramwell's rule is no, you can't be held liable unless he was negligent. - Martin and chief pollock said: there's no trespass because the rule is trespass is the act of the damage must be immediate. If the damage is not immediate then its not trespass. There's no nuisance because they could not have foreseen the issue and they didn't act negligently. Real property/ personal property rule: there must be negligence in the party doing the damage to make him responsible for it. - So Rylands wins at the trial level because he was not negligent = strict liability. *Fletcher v Rylands II (England 1866)* - Facts: Fletcher appeals again. Justice Blackburn writes the opinion - Issue: What obligation does the law have when someone brings something onto their land, that if it were to escape, could cause significant damage elsewhere? - \*\*\*Rule: if someone is in this situation, they must do all they can to keep it on their land. If not, then he's responsible for the damages strict liability - Exceptions to the rule: if the neighbor caused his own damage or an act of God caused the damage then it's a different story. - Fletcher wins now. - Hypo: we don't use this type of rule on a highway, what makes this different? On a highway we practice negligence because you assume the risk every time you get out there. *Rylands v Fletcher III (1868). Not finished from here---finish up after next class* - now Rylands is appealing to the highest of courts - Cairns: the defendant (Fletcher whose mine was ruined) should have put some barrier up between his mines and the old mines if he was practicing ordinary care to prevent the laws of nature. He didn't. Thus the plaintiff (Rylands---reservoir guy) wins. - Cramworth: he agrees with Blackburn Torts TA brief: - What's a tort? A claim/wrong/violation of an obligation we have that is non-contractual (social agreement) - Elements of negligence: duty breach causation damages - Limits on liability: natural events, third party actions and plaintiffs culpability (affirmative defense) - Preponderance= greater than 50%, more likely than not - Break down all the judges opinions to a sentence of the rylands case bc Tidmarsh loves it - Prima facie: court will assume - Key takeaway from rylands: strict liability and negligence is confusing and this case is the start of the debate for the rest of the semester - Brown v collins overrules strict liability an**d** an exclusive rejection of fletcher v rylands. America rejects strict liability in the early days to boost economic growth in our new country. - If oliver Wendell holmes says something its normally pretty useful Have to input week 2 assignments TA notes: - Stone v bolton: corrective justice at its core - Blyth v Birmingham: - Cooley v public service co: balancing of interests - - - - - - - - Prof recap: who is the reasonable person? Care that a reasonable person would engage in. it's an objective standard of care. It is an expectation of how a reasonable person would have behaved. - Characteristics: stupidity is not one, above average intelligence could be, age, youth we account for age, elderly we do not, disabilities-physical we account for, mental we do not, if it objectively verifiable physical disability then they get the standard of a person with that disability, we normally do not account for unique characteristics like race, gender etc. - Why do we do this\^: - assumption of the risk-certain people assume certain risks that others do not (driving instructor with teen) - ease of proof: we cant really figure out if people actually have mental disabilities, has to be apparent and objectively verifiable disability to make it easier - overarching argument: whether or not we want to give incentives to certain to people (we let kids be kids too grow), but can work the other way (breunig case) **[ASSIGNMENT 7 PP 128-139 BREACH CTD]** Chapter 3: negligence, section c. calculus of risk \- Prof notes: What does the reasonable person do? Calculation of risk -this section tries to figure out what judges can apply when figuring out reasonable care. Theres two approaches, the common sense interpretation and the calculus of risk interpretation that is attempting to more precise. - is the cost of trying to avoid an injury relevnt in deciding on how a reasonable person would behave. Yes - p x l \> B - p x l is the expected loss from action. - In stone v bolton- in order to determine if the cricket club was negligent you must consider the likelihood and the magnitude of the injury. But he didn't think the cost of the burden mattered. So in that case its basically just P x L. B is irrelevant. He is rejecting judge hands formula. - Torts TA: factors affecting the reasonable man - 1-Physical: Age, disability, etc. - 2-mental: mentally ill, this one doesn't adjust things too much - 3- knowledge: expertise, beginner v expert - These economic formulas are not to really be applied, they're more of a theory on how we look at the economics of torts *Blythe v Birmingham waterworks (Eng 1856)* - Facts: the defendant laid pipes down in the city 25 years ago. An accident occurs in which the pipe freezes and floods the plaintiffs house. Plaintiff sues with the argument the defendants were negligent and should have cleared the pipes. The defendant argues they could not have foreseen this record setting frost coming and it was an accident not negligence. Defendant wins on appeal. - Issue: May a defendant be liable for negligence if the defendant does what a person taking reasonable precautions would do under the circumstances? - Rule: no, A defendant may not be liable for negligence if the defendant does what a person taking reasonable precautions would do under the circumstances. - Reasoning: the defendant could not have possibly foreseen this record setting frost coming. They were not obliged to clear the pipes anymore than the plaintiff was. *Osborne v Montgomery (wis 1931)* - Facts: the plaintiff was riding his bike when the defendant opened his car door while his car was parked and caught the plaintiff on his bike. He was injured in the incident and trial court found the plaintiff won. On appeal the decisions reversed in the case of the damages awarded. they assume he's negligent, but the instruction was wrong. - Issue: do we weigh social interests when considering if someone is negligent? - Rule: yes, Negligence liability is about balancing the interests of society in each case to decide if someone should be held responsible for the natural results of their actions. - Reasoning: There must be standards to measure care. The ordinary-care standard is used to see if someone acted like most people would in the same situation. But, this standard can change based on the situation. *Cooley v public service co (NH 1940)* - Facts: a telephone company and a power company had wires that intersected. The telephone companies wires were insulated well, the power companies not so much. There was a storm that knocked the power companies lines down and it caused miss cooley to hear a very loud noise on her phone and now shes suing for damages because of traumatic neuroses and extreme fight. She ends up losing. - Issue: The question is whether a person who is careful and follows the right steps for a situation has to pay for any accidental harm that happens to others because of what they did? - Rule: no, if a person is careful and follows the right steps for a situation, they won\'t have to pay for any accidental harm that happens to others because of what they did. - Holding: The company was careful and did what was best for most people, even though it accidentally hurt Cooley. The court said it\'s important to think about what\'s best for everyone, not just a few people who might get hurt. Cooley said the company could have used a different design for its wires, but the court said that design could have caused other problems. Cooley didn\'t show that there was a better way to do things, so the electric company doesn\'t have to pay her. Prof: these cases reflect the way courts use a cost benefit analysis when determining how a reasonable person should behave= negligence. *United states v carrol towing co (2^nd^ circ 1947) most important case in all of law* - Facts: the US had flour stored on the Anna C, which was a barge owned by the Conners Company. The co hired carrol towing to tow the barge, the towing company tried a risky maneuver and the Anna sunk. The defendant, carrol, argued that Conners was contributory negligent because they didn't have any employees on the barge. The court agrees with this and awards conners only half of the damages. - Issue: Whether liability for failure to take precautions to avoid harm depends upon the probability of injury and the gravity of any resulting injury. - Rule: Liability for negligence due to failure to take safety precautions exists if the burden of taking such precautions is less than the probability of injury multiplied by the gravity of any resulting injury, symbolized by B \< PL = negligence liability. - Reasoning: Yes. Connors is contributorily negligent for its failure to take safety precautions by having an employee aboard the barge during the daylight hours. Liability for negligence due to failure to take safety precautions exists if the burden of taking such precautions is less than the probability of injury multiplied by the gravity of any resulting injury. This formula may be symbolized mathematically by B \< PL = negligence liability, where "B" is the burden of adequate precautions, "P" is the probability of injury, and "L" is the injury itself. The burden of taking precautions for Connors was nothing more than paying its employee to remain on the barge during normal working hours, when the incident occurred. If he had been on board, he could have called for help from the tug boats when the barge broke free and possibly avoided the damage. The likelihood of a barge breaking free is relatively high, especially in instances of severe weather. This likelihood is increased when the employee tasked with manning the barge is absent. The potential injury resulting from a barge breaking free is quite significant and may, as with the Anna C, result in total loss of the barge. Thus, compared with the relatively high risk of injury multiplied by the gravity of the injury, the burden on Connors to take precautions is relatively low. Connors is thus contributorily negligent for its failure to take safety precautions by having an employee aboard the barge during the daylight working hours. - Mostly a concept, wont need to apply it - **[Assignment: September 11: 140--43; 146--50 Breach ctd]** - Restatement of torts on negligence: a person acts negligently if a person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the persons' conduct lacks reasonable care are the foreseeable likelihood that the persons' conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm. - Section D: custom: this case looks into the role of customs in negligence cases. Does local custom or industry practice provide a decent proxy for a standard of reasonable care? - ***Customary business practices*** *Titus v bradford (pa, 1890) customs are cool let it fly* - Facts: titus worked at the railroad, the company normally used a hoist to transfer train cars to other tracks. One day, they were dealing with a slightly more pesky rounded bottom car that needed some extra safety precautions to make it safer. The car wasn't tied down properly, it flipped and killed titus. Plaintiff sues and wins at trial but defendant wins on appeal. - Issue: Are customs, such as business practice, considered when deciding on the reasonable ordinary care? - Rule: The standard of care for business practices is that of the average prudent man engaged in that particular trade considering the usages, habits, and ordinary risks of the business. - Reasoning: titus knew of the risks, juries cannot dictate business practices. If a particular activity is customarily performed in a business trade, even if it is inherently dangerous, that activity may be held within the standard of care that would be exercised by a reasonably prudent person engaged in that trade. - Prof: you know if you follow the custom, you wont be negligent. If you don't comply with the custom then you are negligent. *Mayhew v Sullivan mining co (maine, 1884) Opposite view of titus- custom is entirely out* - Facts: Sullivan was hired to help mine, they messed with his platform without telling him and he fell and got hurt. Defense argues its standard operating procedure to not use guard rails so they can't be negligent. Plaintiff wins. - Issue: can standard business practices be a defense to negligence? - Rule: no, industry custom is not a defense to negligence. - Reasoning: If a business acts according to "custom" and the custom itself constitutes "gross negligence," compliance with custom cannot excuse liability. - Prof: custom is completely irrelevant Prof recap: - general negligence: defined on top of page 140-influenced by hand formula, but not buying into the hand formula fully. Third restatement is not very good - problem 2 on the handout was there to show you theres no perfect way between negligence and SL WEEK 4: Breach Ctd - September 17: 150--62; 164 (starting with note 2) -- 166 ***Customary business practices continued*** *The TJ Hooper (Southern district 1931)* - Facts: two tugboats didn't get the radio message of bad weather and lost their haul. Other boats nearby, got the message and were able to dock safely. They didn't have functioning radios and there is some discussion that other boats were starting to make this a custom. They are liable. - Issue: May a business be liable for failing to adopt new technology, even if the industry has not widely adopted it, if the use of the technology constitutes reasonable prudence? - Rule: yes they are, A business may be liable for failing to adopt new technology, even if the industry has not widely adopted it, if the use of the technology constitutes reasonable prudence. - Reasoning: An industry as a whole may at times be lagging behind, but this is no excuse for the failure to take reasonable precautions. In this case, the tugboat operator is liable for negligence due to its failure to use useful, safety-promoting radio technology, regardless of whether the technology is widely adopted within the navigation community. Radios are used by some ships and not by others throughout the industry, but using radios is not the general industry custom. However, this is irrelevant given the extreme usefulness of radios in promoting safety. - Prof: hands interpretation is good, district court not so much - Hand seems to think that custom is a piece of evidence to consider, but its not bound by custom. - Hand: compliance with custom? We give it evidentiary weight but don't make it conclusive, but it has pretty good weight. - However, when theres a DEPARTURE from a custom, that deviation, while not conclusive is probably going to way more. - Generally speaking, custom doesn't get us all the way to negligence. - Notes: this was a strict departure from the customary business practice approach to a new approach that basically rectifies an industry for not behaving safely and tells them they have to act reasonably - (RST 13)- customs are relevant but not necessarily determinative for negligence. *Lama v Borras (PR 1985) (in medical malpractice, custom may be more important)* - Facts: Lama had a bad back, borras performed some surgeries that ended up causing long lasting injury to lama. - Issue: Whether proof of a national standard of care (business customs) and causation is required - Rule: yes, plaintiff must demonstrate basic industry customs, proof someone failed those customs and causal relationship of injury. (Causal must be proven in medical mal) - Reasoning: a plaintiff must demonstrate the basic norms of knowledge and medical care applicable to general practitioners or specialists, proof that the medical personnel failed to follow these basic norms in the treatment of the patient and a causal relation between the act or omission of the physician and the injury suffered by the patient. - Prof: doctors get the benefit of custom Notes: - The conformity test in medical malpractice is probably the only reasonable one because judges and juries are really not capable of judging a doctors negligence. Thus we have to compare them to each other. - Recap: a board certified brain surgeon is judged as a board certified brain surgeon - With doctors: we have malpractice and informed consent=doctors obligations to patients Assignment: September 18: 166--78 breach continued \- ***Informed consent*** *Canterbury v spence (DC 1957) general common law consideration* - Facts: plaintiff is suing after a he received a failed back surgery, which led to serious injury- incontinence and paralysis. Defendant is the doctor who won at the trial level, but then lost on appeal because he did not inform the patient that there was a 1% chance of paralysis. - Issue: Is a physician, prior to a medical procedure, under a duty to disclose all risks that a reasonable person would find significant in making an informed decision whether to undergo the specific procedure? - Rule: yes, Prior to a medical procedure, a physician is under a duty to disclose all risks that a reasonable person would find significant in making an informed decision whether to undergo the specific procedure. Adequate disclosure= informed consent=reasonable info - Must give a reasonable amount of info that the reasonable person would want, must provide alternative treatments and the risk of what would happen if you didn't do anything. - Reasoning: It is the right of the patient, not the physician, to decide for himself whether to pursue a proposed therapy or operation recommended by the physician. However, the average patient does not possess the skill or medical knowledge to make an informed decision about proposed medical care. That is the responsibility of the physician to explain. It is only when the patient has received sufficient information from the physician regarding all aspects of the proposed treatment that he can provide the necessary informed consent. A physician's noncompliance with a professional custom to reveal necessary information may give rise to liability. However, we do not agree that a uniform standard can be applied across the entire medical profession regarding the degree of information that must be supplied to a particular patient. Respect for the patient's right of self-determination demands a legal standard for physicians to follow, not a self-regulating standard. Thus, a physician's duty to disclose is governed by conduct that is reasonable under the circumstances. Once that duty arises, the next question is the scope of the required disclosure by the physician. The appropriate scope is any information that is sufficient and material for the patient to make an informed decision regarding a proposed course of treatment. The scope is objective, providing due regard for the patient's informational needs with leeway for the physician if he is unable, through discussions with the patient, to determine the patient's questions and concerns. Notes: More modern approaches allow for reasonable practice and reasonable consent-general negligence standard of reasonable care. - Exceptions: - emergency situation with an unconscious patient and - a very narrow look at "physologically damged" patients- sometimes people cant handle the truth of a certain medical outlook - you must also show causation: the negligence let to a breach of duty - informed consent isn't based on custom, but custom works for malpractice Section E: Statutes and Regulations -Statutes can add more precision to the general negligence standard of reasonable care. - Statutes role in determining if there were negligence: - If you're injured, you can argue a violation of a statute - Plaintiff can bring a common law negligence claim - Even if the defendant is not negligent, plaintiff can argue that their underlying conduct was negligent - *Public Wrong and Private Action* by Ezra Ripley Thayer - Basically, statutes make it much easier for juries to find negligence, much easier than the search for "ordinary prudent man." - Non compliance with a statute is negligence Assignment: September 20: 179--86; 188--92 BREACH - Recap: should we give lawyers same benefit as doctors? Lawyers get the benefit just like doctors do- must meet the standard of care. not life and death. Monetarily a lawyers fuck up could cost millions, most deaths aren't worth millions. ***How much weight do we give statutes*** *Osborne v mcmasters (Minn 1889) negligence per se-statutes are conclusive-minority* - Facts: A clerk employed at a drug store owned by McMasters (defendant) sold to the intestate of Osborne (plaintiff) a bottle of poison. The bottle was not labeled as such, and Osborne's decedent ingested it without knowing it was poison. She died. Osborne brought suit against McMasters for negligence on the ground that he violated a statute requiring warning labels to be placed on all poisonous substances. The trial court granted judgment for Osborne, and McMasters appealed. - Issue: Whether an individual is liable for injuries proximately caused by his actions if he violates a statute imposing upon him a duty to protect or benefit others. - Rule: If a statute or municipal ordinance imposes upon an individual a duty to protect or benefit others, and he neglects to perform that duty, the individual is liable for negligence per se and must pay damages for injuries that are proximately caused by his actions if they are of the type the statute was designed to prevent. - Reasoning: Yes. McMasters violated his statutorily-imposed legal duty to warn the public about poisonous substances, and is liable for negligence. If a statute or municipal ordinance imposes upon an individual a duty to protect or benefit others, and he neglects to perform that duty, the individual is liable for injuries that are proximately caused by his actions if they are of the type the statute was designed to prevent. It does not matter if there is no corresponding common law right that is violated by the individual's actions. As long as a right is statutorily prescribed, an individual may have a legal remedy if the statute is violated. The statute itself fixes a legal duty, and thus violation of the statute itself is negligence per se. Based on the relevant statute, McMasters had a duty to provide warning labels to protect the public from poisonous substances. He failed to fulfill this duty, and is thus liable for negligence per se and damages caused to Osborne. The decision of the trial court is affirmed. - Key rule: RST 14: an actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actors conduct causes, and if the accident victim is within the class of persons the statute is designed to protect. - Private right of action: violates a direct action given by legislation in a statute-not a tort claim - Key: Court says a statutory violation is conclusive - Negligence per se doctrine: is a violation of a statute negligence in itself (per se) - Most states use negligence as evidence and not a conclusive violation of a statute - Step 1: must have [violation] of a statute or regulation (breach) - Step 2: statute/regulation must be [intended to] protect people like the plaintiff (duty-palsgraf) - Step 3: statute/regulation must again be [intended to protect against the type of harm] from which the plaintiff suffers (proximate cause) - Step 4: [statute violation must cause the harm] (cause in fact) - Step 5: damages occurred (damages) - It looks a lot like breach, duty (palsgraf), proximate cause, cause in fact, damages *Martin v Herzog (NY 1920) contributory negligence, negligence per se with excuse doctrine-majority* - Facts: The decedent of Martin (plaintiff) was killed when a buggy he was driving collided with an automobile driven by Herzog (defendant). A statute required all buggies to be operated with headlights at night. At the time of the accident, Martin's decedent was violating this statute by not driving a buggy with headlights. Martin brought suit against Herzog for negligence. Herzog countered by stating that Martin's decedent was liable for contributory negligence based on his violation of the headlight statute. At trial, the jury held for Martin and found Herzog liable for negligence. The appellate court reversed, and Martin appealed. - Issue: Whether the failure to perform an act required by statute constitutes negligence per se. - Rule: An omission, or failure to perform an act required by statute, constitutes negligence per se. - Reason: Herzog is not liable for damages because Martin's decedent engaged in contributory negligence by violating the headlight statute. An omission, or failure to perform an act required by statute, constitutes negligence per se. When a statute requires an affirmative action, the failure to perform that action constitutes a violation of a legal duty. It is negligence per se. The violator may be liable for damages, but only if the omission is the proximate cause of the injury. Thus, with the headlight statute, Martin's decedent will only be liable for contributory negligence for failing to use headlights if that omission was the proximate cause of the disaster. If Martin's decedent had been using the headlights as required, Herzog likely would have seen his buggy in the night and would have been able to avoid the fatal accident. Thus, the decedent's failure to use lights constitutes negligence per se. It does not matter that Martin's decedent is not the defendant. Violating a statute may be contributory negligence just as it may be negligence. Herzog is not liable for damages because Martin's decedent engaged in contributory negligence by violating the headlight statute. The decision of the appellate court is affirmed. - Cardozo does believe that this was an unexcused fuck up, but he believes there are excuses to break a statute. Do what is reasonable under the circumstances - Excuses: - Attempting to comply with a statute is an interesting excuse. - Risk of compliance is greater than the risk of non compliance - In non negligence per se cases the statute violation is just evidence-minority - Most states believe statutory violations without an excuse is negligence per se-majority - What happens if I comply with a statute? Generally its evidence and not conclusive - OUTLINED UP TO HERE - Section F: judge and jury: - Juries cannot be given complete discretion because: - 1- juries may decide cases in a way that acts against established law - 2- unlimited jury discretion will ruin the principle of distributive justice-that like cases should be treated alike - Forms of judicial control: - Judge instructions: only base findings on relevant law - Inadmissible evidence: courts can keep certain questions of fact from the jury - Oliver Wendell holmes - The court aides itself by taking on a panel of 12 ordinary men to find what the reasonable man will do. - Judges with experience should be able to decide matters without a jury after a while -- this would get rid of the jury issues\* We are now done with negligence- can outline from here- we don't have a good definition of negligence, we only have a process of figuring out what is negligence- it involves juries, which raises a whole other set of questions over juries. - Assignment: September 24: 192--204 Negligence ctd, section F. judge and jury - Prof: do we give it to the judge because it's a legal question or to the jury because it's a factual question: was the D negligent? - Certain controls on juries *Baltimore and ohio RR v Goodman (1927) Holmes case, "stop look and listen rule"* - Facts: goodman was killed by a train, his family sued and they won damages. Train co appeals and wins because they found goodman to be contributorily negligent. - Rule: A plaintiff's failure to take reasonable precautions, such as get out of his car and look for oncoming trains at a railroad track, constitutes contributory negligence that may operate as a complete bar to recovery. - Reasoning: There was some evidence to suggest that he could not see the train, but the courts opinion that a reasonable man would have found another way to find out if it was safe, like get out and look. - n ormally the question of whether due care was exercised is one for the jury. However, if the required standard of conduct is clear, it may be articulated by the courts without being submitted to the jury. It is clear that when a driver approaches railroad tracks, there is a risk of coming into contact with a moving train. Thus, it is incumbent upon the driver to take all reasonable precautions to ensure a train is not coming before crossing the tracks. - *Pokora v Wabash railway (1934) cardozo case overruling stop look and listen* - facts: Wabash Railway Company (Wabash) (defendant) operated four railroad tracks that came together at a single crossing. As John Pokora (plaintiff) approached the tracks in his truck, he could not see the main track. He stopped, tried to look and listen for a train, but heard nothing. He did not get out of his truck to try to obtain a better view. As Pokora crossed the railroad tracks, he was hit by an unseen train. Pokora brought suit against Wabash for negligence. At trial, the trial court directed a verdict for Wabash on the ground that Pokora displayed contributory negligence. The court of appeals affirmed. The United States Supreme Court considered the case. - Rule: A reasonable individual approaching a railroad track in a private car is not required to stop, get out of the car, and look for oncoming trains before crossing the track if doing so is not customary and may ultimately be more dangerous. The reasonable person standard is completely up to the circumstances - Reasoning: overturning Ohio RR v Goodman To the extent that *Baltimore & Ohio R.R. v. Goodman*,* *275 U.S. 66 (1927), holds otherwise, it is limited. Whether stopping, getting out, and looking for trains is the required standard of care is ultimately a factual question for the jury, not the judge, and must be determined based on the facts of each case. A jury may well find that stopping and getting out of one's car to adequately survey railroad tracks may actually be more dangerous than just quickly driving through the tracks. - Prof: do you like juries figuring out the facts? - Jury trials are disappearing, but it is the system we have - There is a 7^th^ amend constitutional guarantee of a jury trial Section G: proof of negligence - Doctrine of res ipsa loquitur- the thing speaks for itself- is frequently invoked when a P seeks to establish the d's negligence by circumstantial evidence. - It argues that juries should infer negligence from the very accident or injury itself. - You don't have to determine what the defendant did precisely - You don't use this doctrine if you know what the defendant did wrong!!! - 5 types of evidence: P usually exhausted all types of proof once he has shown: - 1- what the defendant did - 2-how dangerous it was - 3-d's opporuntiy to discern danger - 4- availability of safer alternatives - 5- d's opportunity to know about safer alternatives - You wont always have all these elements, but this is the information, you will look for. *Bryne v boadle (Eng 1863)* - Facts: Byrne (plaintiff) alleged that as he was passing along a highway in front of a building owned by Boadle (defendant), he was struck and badly injured by a barrel of flour that was being lowered from a window above. Byrne brought suit against Boadle, a dealer of flour, for negligence. The trial court found no evidence of Boadle's negligence, and granted judgment for Boadle. On appeal, Byrne argued that the presumption is that Boadle's servants were handling the flour when it fell and injured Byrne, and if they were not, Boadle has the burden of proving this. The court of appeals held for Byrne, and Boadle appealed. - Rule: If injury of a type that does not typically occur without negligence does occur, negligence is presumed from the mere fact of the occurrence. - Reason: barrels typically do not fall out of windows without some sort of accompanying negligence. Thus, negligence on behalf of Boadle is presumed. Boadle presented no evidence rebutting this presumption, and the judgment for Byrne is affirmed. - These are the elements - Couldn't identify what exactly the defendant did wrong, so we can use the RIL test. - P must show this kind of injury doesn't happen ordinarily without negligence and the D is the one who controls it and the P didn't do anything to cause it so: - With these things, we can infer that he was negligent. **\*\*\*Prosser test: (only if you don't know for sure the D did something wrong) Look up prossers tort 5^th^ edition- he has rules bro!** - 1- the event must be one that doesn't ordinarily occur without negligence - 2- it must be caused by the defendant or someone within their control - 3- plaintiff must not have any voluntary action or contribution (this factor is pretty much implied by 2 besides pointing toward some type of contributory negligence, so in some states, this third factor has fallen off) - Once rIL is brought up the defendant must bring up evidence that he is not negligent, it doesn't necessarily shift the burden of evidence though, they just have to describe that the doctrine doesn't apply. Plaintiff still had to prove that this ordinarly doesn't happen without negligence. - It does sometimes raise the possibility that when people are actually exercising due care they can still be blamed for negligence. So in a way it is a bit of strict liability. **RST 17: Res ipsa loquitour** - Basically the same as prosser - - Assignment: September 25: 204--18 ***RIL in use*** *Colmenares vivas v sun alliance insurance co (1^st^ circ, 1986)* - Facts: the Colmenares fell on an escalator at the aiport and were hurt. The escalator malfunctioned. They sued using RIL, trial court found they didn't hit on the second requirement*- exclusive control must be the defendants*. District court overturned this. - Rule: Negligence on the part of a defendant may be presumed from the mere occurrence of an accident if the accident is of a kind which ordinarily does not occur in the absence of someone's negligence, is caused by an agency or instrumentality within the exclusive control of the defendant, and is not due to any voluntary action on the part of the plaintiff. - Reason: All three requirements for an action based on res ipsa loquitur were met, and thus the trial court erred in refusing to submit the question of the airport's liability on this theory to the jury. Negligence on the part of a defendant may be presumed from the mere occurrence of an accident if the accident is of a kind which ordinarily does not occur in the absence of someone's negligence, is caused by an agency or instrumentality within the exclusive control of the defendant, and is not due to any voluntary action on the part of the plaintiff. - 2^nd^ requirement : The second requirement that the instrumentality be within the exclusive control of the airport was also met. For this requirement, it is not necessary for a defendant to have actual physical control of an instrumentality. Rather, it is enough for the defendant to have enough control to eliminate the possibility that the accident was caused by a third party. This requirement was met here because the airport controlled a public area and thus had a nondelegable duty to maintain its facilities in a safe condition. The airport could not delegate its duty to Westinghouse to take over all responsibility for inspecting, maintaining, and ensuring escalator safety. The fact that the escalator existed within a public area owned by the airport is enough to make it within the "exclusive" control of the airport as required for res ipsa loquitur. - Prosser: - 1- court rules this doesn't *ORDINARALLY* happen without negligence - 2- it was definitely in the D's control, they delegated some control to the 3^rd^ party, but it doesn't matter because it was still under their control - 3- P was not in the wrong - Rule 1 is where there can be more argumentation - Prof: isn't this just a poor mans strict liability? *Ybarra v spangard (cal 1944)* about as far as RIL has been extended before - Facts: p went to D to get his appendicitis fixed, he woke up with a whole other issue- his arms atrophied as a result of some injury during the operation when he was unconscious. He sues us RIL. Court used the prosser test to find the doc negligent under RIL. Defendant argues that there was too many people to invoke RIL and p never showed evidence of how he was injured. - Rule: Where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities that might have caused the injuries may be held liable in an action based on res ipsa loquitur. - Reason: The judgment of nonsuit is improper. Ybarra should not be precluded from bringing an action for res ipsa loquitur simply because multiple defendants and instrumentalities may have been involved in causing his injuries. Where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may be held liable in an action based on res ipsa loquitur. The number of those in whose care the patient is placed should not be a factor in determining whether he is entitled to all reasonable opportunities to recover for negligence. As long as the plaintiff can show an injury resulting from some external force and occurring while he was unconscious in the hospital, he should be entitled to an action based on res ipsa loquitur. - Cant prove an exact act that caused negligence, and cant prove causation either- normally he would lose, but he uses RIL- - 1- this would not ordinarally happen except for the absence of negligence, - 2- no voluntary action by the p, - 3- the element of instrumentality was in the exclusive control of the D (bit harder to prove in our case) - 3^rd^ element: court found that the collective group of doctors and nurses were in exclusive control. So they find negligence on element 3 - Finding everyone negligent can seem to be pretty unfair, but that's the point of the doctrine - However, They are also using the doctrine to prove causation- is this not too far? Strict liability even requires that theres a causal connection-that the defendant caused the harm - this is a really controversial case, seems to really take far - prof recap on all of negligence: we still don't know what it means in totality. It's all about "reasonable." **[New subject: causation]** - Pg 289-98 - Rst 26: factual cause/ same as cause in effect (but for) pretty standard form - Tortious conduct must be a factual cause for liability to be imposed. It is a factual cause when the conduct would not have occurred absent the conduct... - "but for" standard - Tortious conduct need only be one of the factual causes of harm - But for the p's action, the d would not have sustained damage - Proximate cause: once the facts are laid out, for what harms is the defendant responsible when his own actions are combined, often in long and tortious chains, with those of other persons or natural events. - Two ways of looking at this: - Forward looking: was the chain of events that occurred significantly forseeable to the ordinary person - Backward looking: older, traces the chain backwards looking at all possibilities to see who broke the chain. - Duty, breach, CAUSATION, injury - Causation: the plaintiff needs to traditionally prove both - A- cause in fact/ but for: - B- proximate (lots of different words they also use): was it proximate - After a car accident on the corner, can we sue Christopher columbus? If he didn't come here, we wouldn't be here. That's obviously too far away- not proximate. - Plaintiff must prove that the defednats negligent action was MORE LIKELY THAN NOT THE BUT FOR CAUSE, that's where we begin, we will see where we go **[The But For test]** *NY Central RR v Grimstad 1920 ny* - Facts: grimstad fell overboard while working on a barge owned by the company and drowned. His wife is suing for negligence stating there should have been life preservers or buoys on board. Jury found in favor of grimstad. Court uses the but for test and decides for the company. - Rule: A defendant's actions must be the cause in fact of a plaintiff's injuries for the defendant to be held liable for those injuries. - Reasoning: n act is the cause in fact of an injury if either (1) the injury would not have happened but for the defendant's act, or (2) the defendant's act was a substantial factor in causing the injury. In this case, Grimstad's fall into the water was the cause in fact of his drowning. The jury could only speculate as to whether having a life preserver aboard the *Grayton* would have saved Grimstad from drowning. No one could know whether Grimstad's wife would have found the life preserver in time, thrown it accurately to Grimstad, or if Grimstad could have caught it. For these reasons, the trial court improperly denied New York Central's motion to dismiss. The judgment of the trial court is reversed. - Whats the negligence: not supplying life preservers or buoys. - What about a reenactment? See how good of a arm she has and get on the boat with a stop watch. Accident reconstruction expert- like sully sullenberg sitch bringing in flight simulators to show no one else could have saved them. - Prof thinks the grimstads lawyer sucks - Problem here is what is the causation: too many factors, he might not have lived if he had a buoy or a preserver. Its speculative whether he would have used it or the wife could have got it to him. *Zuchowitz v US (1998)* - Facts: Miss zuchowitz died when she was given an overdose of the drug danocrine. She was prescribed the double than normal amount and got a rare pulmonary disease despite being young and able bodied after the overdose occurred. She dies and her husband sues and wins at the district court and then again on appeal. - Rule: If a negligent act is deemed wrongful because that act increases the chances that a particular type of accident will occur, and a harm of that very sort does occur, there is adequate support for a finding by the trier of fact that but for the negligent act, the harm would not have occurred. - Reason: The burden of proof in establishing this causal link rests with the plaintiff. However, once it is established, the burden shifts to the negligent party to produce evidence denying the "but for" cause and showing its conduct was not a substantial factor in bringing about the harm. In the case of prescription drugs, certain effects can be expected when the drugs are taken at their recommended doses. This is because the drugs have been significantly tested by their manufacturers and the United States government. However, if the drugs are consumed at above their recommended dosages, very little is known about the effects and harm that may result. Thus, if a plaintiff demonstrates that a negative side effect is the direct result of a drug, and the drug was wrongly prescribed in either an unauthorized or excessive dosage, the plaintiff has met its burden of proof of showing that the excessive dosage was a substantial factor in causing the harm. A finder of fact can conclude negligence occurred based on this causal link. In this case, Zuchowicz presented reliable expert testimony that his wife's PPH was not only caused by her exposure to Danocrine, but by her exposure to a wrongly prescribed dosage of Danocrine. Zuchowicz has met his burden of proof, and a reasonable judge or jury can properly conclude there is a substantial causal link between the Danocrine and the PPH. But for her exposure to an erroneously prescribed dosage of Danocrine, Mrs. Zuchowicz likely would not have developed PPH, and thus causation is established sufficient to find the United States liable for negligence. The decision of the trial court is affirmed. - Definitely negligent, question is causation. How do we demonstrate it was the drug that caused it. - Have to show the D negligence caused the harm, not just his conduct- it must be negligent - Plaintiff lawyer trying to figure out it was the D who caused the injury can be hard. *Haft v lone palm hotel* - Facts: No lifeguard sign, no lifeguard, father and son drown - Rule: we can switch the burden of proof onto the D to demonstrate the but for cause - Reason: D could have put a lifeguard there or puit a sign there to avoid negligence. What's the causation? When you don't do any of them, we are going to instead hold you to the higher standard- the lifeguard. So now, if a lifeguard was present, more likely or not, would that have prevented the death? Burden of proof is now on the D. - (Problem of contribution and indemnity -- law doesn't need you to be THE cause of harm, it could sometimes be A cause of harm. Neither person alone would have caused the harm, but the combination causes harm. Multiple negligent actors. Multiple causes of harm. ) - Doesn't have much to do with causation, just a hard thing to put somewhere in the book - Two possible doctrines: there are two or more persons who contribute to an injury. P can sue one of them, both of em. - Contribution: partial, seems the most fair, the breakdown can be 50/50, 70/30, doesn't matter. - Indemnity: total - Common law indemnity: someone being held vicariously for the negligence of another, employers playing for their employees torts - Contractual indemnity: there was a K agreement ahead of time, basically insurance - Contribution: partial, did not exist under common law because how do we figure out the breakdown, and because people who have done something wrong shouldn't go to the legal system to get a benefit. - This changes over the course of the century and contribution plays a bigger role. - Contribution is unnecessary if im held liuable only for my own share already. So contribution assumes a party is being held for the hole share. - Several liability: I can only be liable for my own share, so I can never ask for someone else to contribute - Joint liability: makes me responsible for the actions of another defendant. Restricted an usually only applied to partnerships. - Joint and several liability: the parties have no relationship to eachother you are liable 100 percent of the damages even if someone elses conduct caused the injury. - Several liability: D is liable for his own share of the injury - So if the D only uses one of the D's they are only entitled to recover that specific share. They would have to look elsewhere to get fully satisfied, multiple suits, etc. - Joint liability: either D is liable for 100%, so you can sue one of the two and get 100% from one, very rare. Typically for pre existing relationship parties - Joint and several liability: works just like joint liability- makes any D responsible for 100% of the P's injuries. This is standard tort sitch with two tortfeasors who are unrelated to each other. - Indemnity: K or Common law, plaintiff sues one defendant, D1 can ask D2 to pay him back. - Contribution: D1 can ask D2 to contribute back to him. Pay your fair share back to me, I shouldn't have to pay 100% by myself. - Figuring out what the defendants percentage is hard to figure out. Common law said theres no good way to figure it out so shut it down - Some people said its unfair for one bad guy to get some leeway by adding in another bad guy - Indemnity was the only one to exist in CL. No contribution at CL - Indemnity and Contribution only exist in Joint and several liability, it doesn't exist in several liability - Every jurisdiction makes a distinction between several and joint and several liability. - Common law approach was joint and several liability without contribution. - Contribution became a thing from statute mostly. - Many states have moved away from classic joint and several liability ***Joint and several liability and multiple causes*** - Facts: a union stock yard employee was injured while working on the RR, the stockyard paid the plaintiff and then is seeking damages from the RR because both were negligent when they didn't find a faulty bolt that they could have found if they did proper inspections. - Rule: If two parties were equally negligent and only one of the parties has been found liable and forced to pay damages to a victim, the party who paid the damages may not seek indemnification from the other negligent party. - Reasoning: this is not the case always. Sometimes the court will rule who is the worst offender will be more negligent and will pay more. As a general rule, if multiple parties engage in culpable conduct together, they may not seek damages from each other, even if one of the parties has been compelled to pay damages based on the harm. There is a narrow exception to this general rule, involving cases in which a party that may be legally liable to the victim may seek indemnification from the party that is principally responsible for the victim\'s injury. - October 1: 302--317 Causation Ctd. *American Motrocycle Association v. Superior Court (Cal 1978)* - Glen Gregos (plaintiff), a minor, was injured in a novice motorcycle race that was allegedly negligently organized and run by the American Motorcycle Association (AMA) (defendant) and the Viking Motorcycle Club (Viking). AMA sought leave to file a cross-complaint against Gregos' parents alleging their negligence and improper supervision of their son. AMA also requested the damages assessed against it be reduced in proportion to the "allocable negligence" of Gregos' parents. The trial court denied AMA's request for leave, and AMA appealed. - Rule: Under the modified doctrine of equitable indemnity (AKA contribution), a concurrent tortfeasor may obtain partial indemnity from other concurrent tortfeasors on a comparative fault basis. - Reasoning: A modification to common law is needed to promote fairness and ease of application of the doctrine. Additionally, a modification is need to ensure one concurrent tortfeasor is not unfairly saddled with complete liability when he is only partially at fault. Based on the holding in *Li* and general equitable principles, a modified doctrine of equitable indemnity should be established which permits a concurrent tortfeasor to obtain partial indemnity from other concurrent tortfeasors on a comparative fault basis. This rule permits AMA leave to seek partial indemnity from Gregos' parents on a comparative fault basis. The decision of the trial court is reversed. - Notes: - Does this mean if one defendant can't pay, then the other who was jointly responsible must pay their share? It seems likely. - Other cases have fixed this issue by reallocating the percentages to the remaining parties to make it more equitable. - Rst 2nd 886a- there are 3 solutions for the situation in which one tortfeasor pays a sum to the injured party and takes a release not to sue that does not purport to be a full satisfaction of the claim- each one has drawbacks - Comparative negligence: P is 10% negligent, so he's responsible for that 10%, D is responsible for the 90%. - Joint and Several liability case, but now the D1 is trying to recover some from D2= contribution. But they did it by \# of defendants divided by percentage. So if theres 2 D's its 50/50, if its 3 then its 33.3%. - Here, cali is asking to actually figure out the percentage of negligence. - So in this case: Cali is saying we are adopting an approach that says each defendant is liable based on there share of responsibility. - Its contribution, but they called it partial equity indemnity because cali is whacked. - Note on page 308-309 Choice of settlement rules: - 3 positions, 3^rd^ rule is the biggest- not gonna be on the final exam, don't [sweat it. ] - *Kingston v Chicago RR (wisc 1927)* - P owned property that was damaged from a northeast and a northwestern fire. One of which was definitely caused by the D. D argues that they cant be held liable because they can't prove who started the other fire. Burden of proof to figure out who started that fire would be on the D. They never figure it out. P wins - Rule: When two or more human entities both proximately cause injury to a plaintiff, and only one is identified, the plaintiff may recover the full amount of damages suffered from the one known wrongdoer. - Reason: The northeast fire was started by the railroad, and this is enough to hold that entity fully liable for the entire amount of Kingston's damages. When two or more human entities both proximately cause injury to a plaintiff, and only one is identified, the plaintiff may recover the full amount of damages suffered from the one known wrongdoer. The known wrongdoer may not be held fully liable, however, when the full extent of injury was also proximately caused by an "act of God" or natural disaster. In the case of the two fires which destroyed Kingston's property, one was conclusively started by the railroad. There is no evidence suggesting that the other fire could have been started by anything other than a human. No weather conditions or acts of God were reported. Thus, it can be assumed with "moral certainty" that the property damage was caused by two tortfeasors; one known and one unknown. When two torteafsors are both shown to be the proximate cause of an injury, either may be held liable for the full amount of the injury. Thus, the railroad may appropriately be held liable for all of Kingston's property damage. The railroad may have a defense if it shows that its own actions were not the proximate cause of the damage. However, this burden of proof rests entirely on the railroad. - Notes: - Kingston sets out two rules: - 1-where there are multiple human parties who cause an issue, one of them is necessary for payment - 2-when it is a human and an act of god- burden is on D to show that the act of God was the proximate cause. - If you just apply the but for test here, the defendant wins, but they don't, why? - Unusual situation of two sufficient causes- each cause in and of itself would have been enough to cause an injury. -prof: plaintiffs must prove the harm would not have happened but for the D negligence. Plaintiff has to provide the evidence What are the exceptions: ***Indeterminate liability*** ***Alternative liability*** *Summers v tice (cal 1948)* - Tice and another D both negligently shot in the plaintiffs direction during a bird hunt and he was hit in the eye and upper lip. D argues that because you cant tell who actually shot him that they cant be held liable. Court disagrees - Rule: Under the doctrine of alternative liability, two independent tortfeasors may be held jointly liable if it is impossible to tell which one caused the plaintiff\'s injuries, and the burden of proof will shift to the defendants to either absolve themselves of liability or apportion the damages between them. - Reasoning: Both Tice and Simonson may be held fully liable for the extent of Summers' injuries, and should determine a fair apportionment of damages among themselves. When two defendants not acting together both serve as a proximate cause of a plaintiff's injuries, both may be held liable for the full extent of the damage and the burden of proof shifts to each defendant to work out a fair apportionment of damages among themselves. When it is impossible to know which defendant was the actual cause of an injury, both must be held liable to protect the plaintiff. Otherwise, the plaintiff risks not receiving full recovery for his injuries. The defendants are usually in a much better position than the plaintiff to present evidence to exonerate themselves, and thus should bear the burden of working out a fair apportionment of damages. - Under the trad but for, p must prove it was one or the others negligence that caused it- more likely than not- greater than 50% chance. - There was a 50/50 probabiulity it was tice or his buddy so under the trad rule he loses - but the P wins, because the court shifts the burden of proof to the D's to prove that they weren't negligent. - If they cant disprove then they're jointly liable - Seen this switching of proof before in the HAFT case-I believe it was a note case - why did the courts do this? - Because we know the D's are negligent and we are not here to help negligent people get off the hook and if we switch the burden over to them there will be better incentive for them to say who did it. - As long as joint and several liability applies: the plaintiff can decide who he wants to collect from. - Also, a plaintiff doesn't have to bring all the defendants forward to start this suit. - Summers rule received immediate acceptance, but it's a very rare situation - It is immortalized in RST 28B page 316- it also believes that you must sue all the defendants Assignment: October 2: 317--331 ***Market share liability*** *Sindell v. Abbott Labs* - Facts: P is suing 5 defendants for their production of a pregnancy drug that her mother took, which caused cancer. There were over 200 companies producing the identical drug and often pharmacies would give whichever drug they had available. So it would be impossible for the P to point to an exact drug manufacturer. D argues that since the P cannot point to a specific company, then they are not liable. Court overrules this and introduces the market share liability doctrine. - Rule: If multiple manufacturers of fungible goods are named as defendants in a negligence action and it cannot be determined which manufacturer caused the precise harm complained of, the manufacturers will be held proportionately liable in accordance with their market share in the market of the good that caused the injury. - Reasoning: In today's society, advances in technology allow multiple manufacturers to produce fungible goods that cannot be traced to any single manufacturer. When such a good causes injury, it would be unjust to allow the manufacturers to avoid liability simply because direct fault cannot be proven, especially when the harmful effects of the goods may not be known for a number of years. In these types of situations, each manufacturer may be held severally liable according to its share of the market for the injurious product. Accordingly, in this case, each of the defendant manufacturers is liable according to its market share of DES, unless a manufacturer can show that it could not have produced the drug that Sindell's mother took. The judgment of the trial court is reversed. - Dissent: a tradition of tort liability is to prove proximate causation- just did away with that. Also, you're allowing the P to sue whichever company she sees fit. - This is another adaptation of the adaptive summers rule. We are moving away from but for and moving toward market share liability. - Sindell doesn't have to sue everyone just the substantial marketshare companies. - Whats substantial? Here the 5 cos she ended up suing took up 90% of the marketshare and each D is responsible for its market share. - What about the other 10%? You don't get that final 10%. The plaintiff eats it. - Just like in summers, the court switches the burden of proof over to the D to get out of it and some did by saying they hadn't produced it until after the mother took it. - this went down because the chemical formulation or the active ingredients are identical. - A common modification is the burden of proof shift. ***Loss of chance of survival*** *Herskovits v group health cooperative 1983* - Facts: P's estate is suing the hospital D for not finding his lung cancer on checkups which led to a 14% decrease in his overall life expectancy after they finally found it. The Estate argued that the reduction in the chance of survival from 39 percent to 25 percent was sufficient evidence to allow a jury to consider the proximate cause issue. GHH argued that the Estate was unable to produce expert testimony that the delay in Herskovits's diagnosis "probably" or "more likely than not" caused his death. The trial court granted GHH's motion for summary judgment, and the Estate appealed. And estate wins. - Rule: proof that the defendant's conduct increased the risk by decreasing the chances of survival of a plaintiff is sufficient as to the issue of proximate cause. - The core issue presented is one of first impression. Does a patient with less than a 50 percent chance of survival have a cause of action against a hospital and its physicians if they are negligent in diagnosing a deadly form of lung cancer that reduces the patient\'s chances for survival for five years by 14 percent? Under § 323(a) of the Restatement (Second) of Torts \[1965\], proof that the defendant's conduct increased the risk of death by decreasing the chances of survival is sufficient to take the issue of proximate cause to the jury. Some jurisdictions have accepted this as proximate cause in cases where a defendant's conduct deprived a plaintiff of a "significant" chance to survive. Other jurisdictions have flatly rejected this approach, generally holding that a plaintiff is required to show that it was "more likely than not" that the harm sustained was caused by the defendant's negligence. Such an approach is too strict and would send the message that physicians and hospitals would not be liable any time there was less than a 50 percent chance of survival, regardless of how flagrantly negligent the act is. - This is called the Loss chance of survival action, pretty 50/50 on what courts have instituted this doctrine and its pretty stuck on medical malpractice - Damages: Compensation is for the loss of a chance to survive- - majority- pay for medical expenses, lost wages, pain and suffering. - Concurring opinion -figure out what the p's life is worth and give them 14% of that. - if the jump was 70-15% because of the negligence, then they get 100% of the damages because it fits the traditional rule of factual causation - Policy: there is a movement to limit risk instead of compensating harm. - The more regulatory system it is becoming - If you want the tort system to be less regulatory, you must insist on torts being very strict on the factual causation. - If you want the tort system to more regulatory, you can broaden the rules a bit more. October 4: 338--45 [Proximate Cause Causation] - Whos responsible = proximate cause - prox cause: - Francis bacon= law is only responsible for immediate cause = old - You are not responsible if you are a remote cause = unexpected - It was not part of the ordinary course then you're not liable - Was it natural or probable = not responsible - Prox cause = the natural and probable result of the defendants negligence - *Ryan v. NY Central RR (1866)* - On July 15, 1854, New York Central R.R. (railroad) (defendant) negligently set fire to one of its woodsheds. Ryan (plaintiff) owned a house nearby. The fire spread and destroyed Ryan's house, as well as other neighboring houses. Ryan brought suit against the railroad for negligence, but the trial court granted a nonsuit. Ryan appealed and lost - Rule: A negligent person is liable in damages for the proximate results of his own acts, but not for remote damages. - Reasoning: The damage to Ryan's house was remote and could not have been anticipated by the railroad. Thus, the railroad is not liable for damages. A negligent person is liable in damages for the proximate results of his own acts, but not for remote damages. Damage is the "proximate result" of an act if it is of the type that could reasonably be anticipated to be caused by the act, or if it is the type that ordinarily and naturally flows from such acts. When a fire is negligently started within a building, it can reasonably be anticipated that the fire will destroy that building. This is the ordinary and natural result. However, it is not always ordinary and natural for the fire to spread and destroy multiple other buildings. When the railroad negligently started the fire, it could have reasonably expected the flames to consume its own woodshed. However, the damage to Ryan's house could not be expected [and was thus remote]. The railroad may not be held liable for such remote damages, and the decision of the trial court is affirmed. - Policy: court thinks there is some policy here in regards to the RR not being held responsible for all the burnt down houses. Should they be responsible for all ex 26 houses? Do you cut it off after the 2^nd^ house? - Only the immediate injured gets damages. Its very narrow, not clear it sets the standard correctly. - At some point, the D is no longer responsible for certain injuries. ***Prox cause and contributory negligence*** *Berry v sugarnotch borough (Pa 1899)* - Facts: P sues the D for injuries he sustained while driving a car on the cities street. He was driving faster than the 8mph provision when a large chestnut tree fell on his car. He sues and wins. D argues that his speed brought him to the tree sooner and if he wasn't going so fast he would have even been there so hes contributorily negligent - Rule: A plaintiff's contributory negligence that is not a proximate cause of his injury will not bar him from recovering for an injury occurring purely by chance. - Reasoning: Berry's own negligent driving did nothing to increase the risk of this particular harm, and is thus not a bar to his recovery. A plaintiff's contributory negligence that is not a proximate cause of his injury will not bar him from recovering for an injury occurring purely by chance. Even though Berry was speeding in violation of the ordinance, this had nothing to do with the tree falling down on him and causing his injuries. This injury could have happened to a person driving at the speed limit, below it, or even faster than Berry. Berry's violation of the statute cannot be said to be a proximate cause of his injury because it did nothing to increase his risk of being crushed by a falling tree. The accident happened as a pure coincidence, and thus Berry should not be barred from recovery due to his own actions. The decision of the trial court is affirmed. - Read to 349 *Brower v ny central RR (NJ 1918)* - Facts: P is suing D because his wagon was struck by the train and then its contents were stolen by thieves. He wants damages for his contents. P wins even though there was a third party who took his goods. - Issue: a D can be held liable when they're not the last wrongdoer/proximate cause if it reasonably foreseeable. - Reasoning: A negligent defendant may be held liable for all reasonably foreseeable damages, even if caused by another person, unless the other person's actions constitute an intervening cause. To qualify as an intervening cause, a third party's actions must not be reasonably foreseeable, and they must rise to the level of a proximate cause of the additional injuries. Only then will the intervening cause relieve the original defendant of further liability. The existence of an intervening cause is ordinarily a jury question. Here, theft of unattended property is reasonably foreseeable in a big city. The railroad foresaw that theft could be a problem; it employed detectives to protect the railroad's property and cargo. The railroad and the detectives should have foreseen that Brower's cargo, left unguarded, was likely to be stolen. The railroad was therefore liable for the value of the stolen property. The jury\'s verdict is affirmed. - Goes with the foreseeability approach. - RST 431: the actors negligent conduct is a legal cause of harm if: - His conduct is a substantial factor in bringing about the harm (substantial factor test) - There is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm. - Rst 448: intentionally tortious or criminal acts done under opportunity afforded by actor's negligence: - The act of a third party in committing an intentional tort is a superseding cause of harm to another resulting therefrom, although the actors negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created. - RST 449: tortious or criminal acts the probability of which makes actors conduct negligent - If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, etc. does not prevent the actor from being liable for harm. - The RST say the D should be liable because a third party did a harm and they should have reasonably foresaw such harm occurring. Following Monday will be starting on 351-360 **Proximate cause continued** *In re polemis 1921* - Facts: polemis chartered a vessel that ended up catching fire when a plank struck a liquid and caused an explosion. The owner of the ship says they were negligent that inhibits them from claiming "fire" which was part of the mutually excepted language. The charter guys are found to be negligent and do not win, despite not being able to forsee such an issue. - Rule: A negligent actor can be held liable for all damages his negligent act caused, even if not reasonably foreseeable as long as he is the proximate cause. - Reasoning: The defendants' employees were negligent, and damage resulted from that negligence. Even though a fire is not reasonably foreseeable from dropping a plank, the damage that the employee foresaw as a result of the falling plank is irrelevant. The damage does not have to be reasonably foreseeable; it simply has to be caused by the negligence. - You have negligence and factual causation so whats the issue? - The D doesn't have to pay unless it was foreseeability to the reasonable person - Foreseeability approach: Foreseeability of type of harm that occurs - Directness approach: proximate cause - Judges here reject the foreseeability approach to proximate. They think foreseeability is not relevant to proximate cause, only to negligence itself. - Barry v Borogh: no liability there because you cant foresee the harm that arises from the negligence of speeding. This is the foreseeability approach - Ryan is definitely the directness approach. *Overseas tankship v morts dock and engineering wagamond 1961* - Facts: P is suing the D saying the oil they left in the harbor led to their welders causing a fire and damaging a wharf. The plaintiff loses. - Rule: A defendant is only liable for the consequences flowing from his negligent act that are foreseeable to a reasonable person at the time of the negligent act. - Reasoning: overruling polemis. the fire was not a reasonably foreseeable consequence of the oil spill, and Tankship is not liable for the damage to Morts' wharf. A defendant is only liable for the consequences flowing from his negligent act that are foreseeable to a reasonable person at the time of the negligent act. This rule is adopted instead of another rule which states that the defendant is liable for all "direct" consequences of his negligent acts, regardless of their foreseeability. The latter rule is unfair to defendants because it exposes them to potentially limitless liability so long as the consequences are "direct." - On a directness approach: - Negligence is definitely there, discharge of oil is factual cause, was the discharge of the oil direct cause? Maybe not. - Court went with the foreseeability approach but still doesn't find the D responsible, because the court doesn't think it's the type of harm that is foreseeable. - Here the court is overruling polemis. - Eggshell skull rule: when it comes to foreseeing the EXTENT of a type of harm, you can be negligent. It's the foreseeability test, but it's the extent. Dropping pennies off a building, it is likely to bruise some people, turns out it goes right through someones eggshell skull and kills him. Hes liable. - Both approaches seem to have some use. So where are we today? YES. Its still a debate. - Traditionally (Ryan) tended to determine foreseeability on a directness approach. It isn't until wagamond that we get to a more definitive test. Tends to be more associated with criminal law and intentional torts. - More cases finding proximate cause through foreseeability today. This is more common. - Other approaches tend to blur the line between the two. We cant always have a single test to determine this question. - The strongest approach comes from 2^nd^ restatement section 431 on the bottom of page 347. Define it. Got rid of proximate cause and called it legal cause. It doesn't really mean anything different, nobody calls it legal cause. But it also adds in the "substantial factor" arena. - So now we have proximate cause, legal cause or substantial factor. Either way its two words, one word is about cause, the other is about limiting that cause. - Theyre all just words to describe the same problem which is where do u cut out responsibility. - Law today is a fit of all three approaches: foreseeability, directness and substantial factor. - The 4^th^ approach comes from the 3^rd^ restatement-garbage- is called: scope of liability (proximate cause). Their approach is basically to get rid of foreseeability and they say you're only liable for the type of harm that occurs. So if you drop a nuke on a little kids toe and break their toe, your not liable because that's not the type of harm associated with the device. Tiddies doesn't think its very different from foreseeability. - These are a subset of proximate causes: - Intervening cause: two human agencies and both are but for cause, you act first and then after that some other negligent human being acts and the combination of the two acts of negligence that cause the plaintiffs harm. Some other human action came after yours so should that cut off responsibility? When it's a yes, we call these cases: - Superseding cause: a calim that some other intervening human agency is so dominant we should forgive the other negligence. It's a conclusion, not an analysis - All of these tests work well in certain cases, theres no go to Everything from here on is not gonna be on the practice question V Page 360-371 Causation continued *Palsgraf v. Lirr- Cardozo case 1928 the most famous case in torts* - Facts: a man was boarding a train with a package of fireworks, the train conductors try to help him make the train, in doing so, the man loses the package. The fireworks go off creating a frenzy and the P is injured. She sues for negligence, supreme court reverses and she ends up losing. - Rule: a defendant owes a duty of care to those that could be reasonably foreseen to be harmed. - Reasoning: the woman was standing too far away for her injuries to count. If someone is outside of the range of the reasonably foreseeable consequences of the defendant\'s actions, the defendant generally does not owe that person a duty, and the person therefore may not bring a negligence action against the defendant. - Dissent: D was the but for cause and is thus negligent. - Agrees with polemis case, you don't owe duty to those that can be foreseen, you have a duty to everyone. - He says the test for proximate cause is the but for cause. Refusing to be pinned down by any way of thinking of proximate cause. The sort of questions to ask: was one a substantial factor in causing another, was there a direct connection, and also the question of could the type of harm be foreseen. All these ways are relevant to thinking about prox cause. - Another important matter that determines how we conceive of the palsgrave case, whether this was a duty (Cardozo) or proximate cause (Andrews) is the fact that questions of duty are legal (no jury, just a judge), a question of fact like proximate cause is a jury question. - In many ways Andrews wins the war, this is what we do mostly. - Is this a question of duty or causation? - Cardozo uses duty to stop the chain of causation. - Famous key out of palsgraf -- you only have duties to those who you can reasonably forsee will be harmed by your actions - Difference between duty and proximate causation: - **Duty** toward types of people: people you can foresee will be injured by your negligence - **Proximate cause** is the foreseeability of the type of harm that happens, not to whom it happens to (this comes from wagamond) - Foreseeability of the extent of the harm= **damages** - Cardozo in palsgraf- if u can foresee the person you are putting at risk then you do have a duty of reasonable care. - If defendant can foresee that type of harm then theres proximate cause - Now we have foreseeability of the type of person to the question of duty - Duty is determined by the foreseeability of the type of person the plaintiff is. - Page 389-401 **[Affirmative Duties Chpt 6]** - Generally speaking Andrews was right, we do have a duty to the world, but this chapter jumps into some of the exceptions. What are the limits of duties - Hypo: you come into school, Tidmarsh is in a shallow puddle of water face first, can you keep walking on? And when you do can his widow sue you? - Liability from failure to act. - Good Samaritan rule - Common law rules here was merely to warn of known latent defects and to take reasonable care to both discover danger and to keep premises safe. - Is there an obligation to rescue when you haven't done anything to put the person there? The drowning in puddle example. Man my classmates are negative. - Facts: an 8 year old boy trespasses into a mill and gets his hand mangled. He sues for negligence and loses. - Rule: good Samaritan laws are a moral duty not a legal duty. - Reasoning: there is no legal duty owed to anyone else only a moral duty. In fact the manufacturing company may hold the boy liable if he trespassed and damaged one of their machines lol. *A landowner only has a duty to not intentionally harm or interfere with a trespasser on his property, but has no legal duty to warn the trespasser against hidden or secret dangers arising from the condition of the premises, or to protect the trespasser from any harm he may experience from his own actions or the actions of others.* - There is a duty from landowners owed to those even trespassing. Those duties weren't in play here. *Hurley v eddingfield 1901* - P's decedent is suing the D, a doctor, because he refused to treat the P when he was gravely ill. He then died. Trial court sided with the doctor and supreme court affirmed. - Rule: a doctor does not have to treat everyone, it is a moral duty not a legal one - Reasoning: Eddingfield did not have a legal duty to provide assistance to Hurley's decedent, and thus is not liable for damages based on a theory of wrongful death. A physician does not have a legal duty to provide medical assistance whenever and to whomever he is asked. Any obligation of the physician to render assistance is only moral in nature. The decision to provide such assistance is a decision to enter into an employment contract. A physician may not be compelled to do so against his will. - Ames' rule is basically the good Samaritan rule: if you fail to interfere to save another, when there is little or no inconvenience to you, then you can be held responsible criminally and can pay damages. - Epstein argues that Ames rule would not be easy to discern because it would make it impossible to tell where liberty ends and obligation begins; where contract ends and tort begins. - Posner argues that in the contract sense, the consideration is actually the fact that one day you might be in this situation and others will be compelled to help you. - In common law there is no legal duty to intervene, there are a few special relationship exceptions: - parent has a duty to rescue a child. - Hotels have a duty to their patrons. - Employers toward employees. - Restaurant to patrons - Jailor toward prisoner - School to students - Defense of the rule: - Defense of autonomy- very grounded in causation - If I trip you then I have to do something because I caused it. - October 15: 401--12 *Montgomery v national convoy and trucking co* - Facts: D trucks had slid during icy conditions causing a traffic stop on a highway, they had ample time to warn other travellers by placing a caution sign before the curve in the road. They never did this and the P crashed into them. The D knew there was a serious issue and took precautions such as putting out flare and turning on their lights but this wasn't enough. P wins. - Rule: if a plaintiffs omission of a duty is the proximate cause for an injury then they are liable. - Reasoning: National failed to fulfill its legal duty to warn Montgomery of the dangerous conditions, and is thus liable for negligence based on this act of omission. A defendant's act of omission of a legal duty owed to a plaintiff may be the proximate cause of the plaintiff's injuries and thus result in negligence liability for the defendant. National failed to warn approaching motorists such as Montgomery of dangerous conditions existing at the base of the hill. National not only had a duty to place warning lights at the place where the trucks blocked the highway, but also at a place where they would be reasonably calculated to prevent injury. Due to the icy road conditions, motorists seeing the obstacle for the first time after driving over the hill did not have enough time to stop and avoid it. Thus, National had an obligation to place warning lights at the top of the hill so approaching motorists would have adequate time to react and prevent collisions. National failed to provide any sort of warning at the top of the hill, and thus is liable for negligence based on this act of omission. The decision of the trial court is affirmed. - Defendants did nothing wrong, but they created a risk so there is a duty of care imposed on the truck drivers to rectify it. *Robert addie and sons v dumbreck* - Facts: P's 4 year old son was playing on the D's machinery and was killed. The D's had put up signs and told people to stay away but no one ever listened before the accident occurred. At trial the D loses, he appeals and wins. - Rule: If an individual is a trespasser on a piece of land, the landowner only has a legal duty to avoid willful harm to the trespasser, and nothing more. - Reasoning: Dumbreck's son was a trespasser, and thus the colliery only had a legal duty to avoid willful harm to him. The colliery did not neglect this duty, and thus is not liable for damages to Dumbreck. If an individual is a trespasser on a piece of land, the landowner only has a legal duty to avoid willful harm to the trespasser, and nothing more. There are three categories of entrants onto land. The first category includes express invitees, who are actually invited onto the land by the landowner for some business or other purpose. The second category includes licensees, who are given leave or license by the landowner to enter and use the land. The third category includes trespassers, who have no permission by the landowner to use the land. The landowner owes varying duties of care to different individuals based upon the class in which they fall. The highest duty exists for express invitees, as the landowner must take all reasonable precautions to ensure the premises are safe from known or unknown defects. For licensees, the landowner does not have a duty to ensure the premises are safe, but must not create a trap or allow a known, hidden danger to exist on the property. For trespassers, *the landowner has no duty to take reasonable care to provide protection even from hidden dangers, but is only liable for willful harm involving something greater than the absence of reasonable care.* The colliery took many opportunities to warn children and adults that they should not enter the field or go near the wheel. Warnings were communicated verbally, as well as through signs and closed gates. Thus, when Dumbreck's child entered the field against the warnings of both the colliery and his father, he was merely a trespasser. As such, the colliery had only a duty to avoid willful harm to him. There is no evidence that the starting of the wheel in the normal operation of the colliery's hauling business constituted willful harm to the boy. Thus, the colliery is not liable for damages to Dumbreck for the death of his son, and the decision of the trial court is reversed. - Trespasser- duty not to willfully or wantonly injure, other than that no duty. Lowest duty owed - Wantonly is when you are showing a particularly high degree of risk- still unintentional but still a high risk - Invitee: you owe this person a duty of reasonable care, this is the highest degree - Someone who has been invited over: - 1- business invitee - 2- public invitee: premises are open to the public (museum) - Licensee: you owe a duty to warn of dangers known to you, middle of the road duty - People who you invite over (like a friend)(social guest) October 16: 412--22; 425 (from Note 2) -- 31 - Prof recap: general takeaway is that you are going to owe some reasonable care to licensee and trespassers- its not no care, its some care, you cant intentionally injure them. So sometimes you can have duties of less than reasonable care. - You have to figure out whos who. - Hes applying for mcdonalds and he slips and falls on the banana peel- hes a business invitee at that point. - If he went in because hes hungry, then hes a business invitee too. - What if he just went into mcdonalds to use the bathroom and gets hurt-prob a licensee - Shopping with friends, you have no intention to buy anything, you go into the store, what are you? A business invitee- prospect that you may buy something *Rowland v Christian 1968* - Facts: P was invited over to the D's house, he used the bathroom and there was a non obvious, dangerous defect that he cut his hand on pretty bad. The D did not warn him. He sues and loses at trial, wins on appeal. - Rule: The proper test to be applied for determining the liability of a landowner is whether in the management of his property he has acted as a reasonable man given the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may have some bearing on the question of the landowner's liability, this status alone is not determinative. - Reason: The old ways of distinguishing between licensee, trespasser and invitees is old, archaic and doesn't work with modern society. The best way to do it is a classic case by case analysis based on negligence principles. Christian was aware of the dangerous bathroom fixture and could have reasonably expected Rowland to come into contact with it. Thus, her failure to warn Rowland of the hidden danger constitutes negligence, and she is liable to Rowland for damages. The proper test to be applied for determining the liability of a landowner is whether in the management of his property he has acted as a reasonable man given the probability of injury to others. Although the plaintiff's status as a trespasser, licensee, or invitee may have some bearing on the question of the landowner's liability, this status alone is not determinative. - James was a licensee, duty owed to warn him, middle of the road duty - Key point here: status doesn't matter anymore, you owe anyone on your property reasonable care if you can foresee a danger. Sounds very much so like Andrews dissent - You have a duty of reasonable care to all people under all circumstances. - 7 factors to consider to depart: - 1- foreseeability of harm to the P (majority of palsgrave) - 2- degree of certainty - 3-closness of connection (prox cause) - 4- moral blame - 5- policy of preventing future harm - 6- extent of the burden the D and the consequences on society (hand formula) - 7- availability and cost of insurance - Court ultimately says these factor

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