Torts Outline PDF

**[Torts Outline]** **[Torts]** **Set of legal rules establishing liability and compensation for personal injury and death caused by the intentional or careless conduct of an actor.** Can be Harm to people AND PROPERTY Lower burden to prove your case than a criminal case breach **[Range of Torts]** - Negligence (unintentional harm) - Intentional torts (assault, battery trespass to land) - Products liability (defective products) - Abnormally dangerous activities liability (blasting, aerial pesticide spraying) - Nuisance (air, water, and noise pollution) - Defamation (Libel and slander) - Privacy invasion (private area intrusion and personal autonomy interference) - Fraud (misrepresentation) - Mental health harm In the U.S., tort law and particularly negligence law deal primarily with accidents. The leading cause of accidental deaths and disabling injuries in the U.S. are poisoning (ingesting harmful substances including overdoses of drugs), motor vehicle accidents, falls suffocation, drowning, and fires. Accidents are defined as unintentional events resulting in injuries, death, and property damage, and can occur with or without the fault of one or more of the parties involved. Five Ways our Society has used to reduce accident levels and their consequences: 1. Safety Statutes and Administrative Regulations such as statutory and regulatory controls on unsafe conduct (speeding and texting distraction) 2. Public Education 3. Safety Devices 4. Medical and Rehabilitation Treatment 5. Tort Law -- use as a deterrence to unsafe practices through civil liability for careless conduct **[Chapter 2: Negligence]** **[Negligence]** Negligence -- breach of duty creating a foreseeable risk of harm (careless) either by commission or omission. Claim of Negligence -- Duty, Breach, Causation, Damages Element of Breach -- "negligent" **A negligent claim requires proof of a negligent act that violates the standard of care (when a duty of care is present).** **Intentional Tort**: An assault and battery **Recklessness**: A Conscious disregard of a substantial and unjustifiable risk. **Grossly negligent**: Require proof of a negligent act done with a "callous disregard" of a risk of harm **[4 Elements of Negligence]** **I. Duty** **History of Duty in the U.S.** - Duty in torts is tied to the development of the American economy and its social fabric - Early CL doctrine expressly stating "no duty" - It then moves to affirm special duty for various callings for employers \[Mercantile Age\] - 1800s and early 1900s adopted a "general duty of care" to the public; and some heightened duties (common carriers) \[Industrial Revolution and Gilded Age\] - Today Consumer protection statutes create duties or provide that there is no duty or limited duty \[Digital and Multinational age\] - Modern consumer protection statutes hold large corporations strictly accountable, while the corporations successfully lobby government to be "opted out of" liability schemes (tobacco, firearms, rideshares, online misconduct, pharma, fracking, asbestos, AI, opioids) "All to help the American Economy" - Did the defendant have a legal obligation to exercise some level of care to avoid the risk of harming persons or property - Courts will consider customs in a case as a guide to determining the reasonableness of a parties' conduct - For example, in Hagerman Construction, Inc. v. Copeland, Hagerman argued that the trial court erred in admitting testimony regarding construction industry customs and practice, the evidence to which Hagerman objected to consists of two expert witnesses and three construction workers. - Policies and Practices that are already in place and could be based on tradition - A custom need not be universal to be established as a custom just needs to be "fairly, well-defined." - Custom is an important factor that the court will weigh, and the jury judges based on a reasonable person standard. The standard can be rebutted with evidence - For example, in [TJ Hooper], compliance with poor industry standards is not a defense, by not having a working radio on board to avoid a gale - It is up to the jury to decide if the custom is relevant to consider in the reasonable person standards and up to them to decide if there is a breach in duty **Privity** In tort law, privity can be relevant in the context of a third party being injured by a negligent act. - For example, if a third party is injured by a negligent act of a party who was contracted to perform a service, the third party may not have rights against the party who performed the service. This is because the third party is not in privity with the party who performed the service. - Not considered in modern day Duty element **Duty Under the Restatement (Third) of Torts: Disagreements Over the Role of Foresight in Duty Analysis** - Duty -- A duty of reasonable care owed to others to avoid [foreseeable] harm - Section 7(a) An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm. - Section 6. Duty... Findings of no duty are unusual and are based on judicial recognition of special problems of principle or policy that justify the withholding of liability. **Restatement (3d) on Duty** - Restatement does not recognize a universal duty to exercise reasonable care to all others in all circumstances. - **Unless a special or limited duty applies, an actor ordinarily has a duty to exercise reasonable care when the actor\'s conduct creates a foreseeable risk of harm to persons or property** - A no-duty determination is a ruling that represents a determination that no liability should be imposed on actors in a category of cases. **However**, there exists an exception to that when there is an articulated countervailing principle or policy that denies or limits the liability in a particular class of cases. A court may then decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification. - General duty principle of reasonable care: - **General duty exists if foreseeable** - **A person has a duty to exercise reasonable care to those persons or their property with regard to foreseeable risks of harm arising from that actor's conduct** - Exceptions to the general duty principle that establishes limited duty rules - Judge decides on the law and asks if there is a duty - A duty of conduct to foreseeable plaintiffs to exercise reasonable care with regard to foreseeable risks of harm arising from that conduct - **Duty cannot arise out of omission** if there is not a special relationship - Special Relationships can arise from legal relationships for example contracts - Special Relationships create a duty to act for another's benefit - **General Duty Rule** - In [Rudolf], Plaintiff was unforeseeable, therefore no duty owed - Duty around a foreseeable plaintiff depends on jurisdiction, compares the lake to public highways - In Arizona, "there is no requirement that a foreseeable plaintiff must be connected with or personally known to the defendant for a duty to exist." In response to the tournament organizers claiming they owed no duty to the plaintiff because they "did not know them." - **Implicit Foreseeability** exists if the site where the incident happened is a public domain. - Applies the general duty rule arising from owner/occupier conduct in use of land that impacts those traveling on public ways adjacent to property -- streets, alleys, sidewalks, parks, bike paths - Includes unintentional and intentional momentary diversions - If the person remains, then apply special duty rules regarding guests, trespassers, etc. - A question of fact would be pondered if the person remains for "too long" or "not long enough" to be considered a trespasser - However, a lack of foreseeable risk does not preclude the no-duty determination. Duty is to be decided by policy. - **In the U.S., there is a no-duty rule to assist someone else, unless a special relationship exception** - **General standard of care:** owed by a defendant to a plaintiff is that of a reasonable person of average intelligence, knowledge, and skill and with the defendant's physical attributes **Limited Duty Rule** **Land occupier limited duty rule:** Landowners would have limited duty toward invitees, licensees, trespassers **The status of an occupant of land may change from an invitee or licensee to a trespasser, or from an invitee to a licensee, if the occupant exceeds the scope of his invitation or license while on the premises. ** +-----------------------+-----------------------+-----------------------+ | **[Invitees]{.underli | **[Licensee]{.underli | **[Trespasser]{.under | | ne}** | ne}** | line}** | +=======================+=======================+=======================+ | Clear mutual benefit, | Consented (can be | Not consented to be | | is anticipated by the | implied consent) or | allowed on the | | landowner, Access to | privileged by the | premise. Entered | | public domain. | landowner or invited, | another's property | | | encouraged to enter | without any lawful | | Typically if you | or remain. | authorizations, | | accompany the | **Typically for their | permissions, or | | invitee, it is likely | own benefit** or they | invitations | | that you would also | had business with | | | be an invitee if it | someone else on the | | | was necessary that | property | | | you went as well. | | | +-----------------------+-----------------------+-----------------------+ | Ex. Customer in a | Ex. Guest in one's | Ex. Squatters | | store, visitor to a | home, police warrant | | | public beach, | to search | | | lodgers, clubs, | | | | employees, deliveries | | | +-----------------------+-----------------------+-----------------------+ | **[Duty]* | **[Duty]* | **[Duty]* | | * | * | * | | | | | | The landowner owes | Landowners owe the | Landowner owes the | | the duty to inspect | duty to use ordinary | duty to not create a | | and repair premises | care to protect from | deliberately | | to ensure safety. | unsafe/known | dangerous situation, | | | conditions. No | injure willfully, | | Rendering aid to | general duty of care. | wantonly, or through | | foreseeable third | Still liable for | gross negligence | | parties, invitees and | gross Neg., | | | those who are | intentional, wilful | No Intentional traps | | lawfully there. | or wanton conduct | | +-----------------------+-----------------------+-----------------------+ - Failure of Constructive notice (should've have known) for invitees and all warnings given about latent items for invitees or else the landowner would be liable - Actually, know about latent (Hidden) "Items" on the premise for **licensees** to be liable but if there are latent items on the premise that the homeowner does not know about, the landowner is not held liable. - Can't set trap but don't have to warn of latent dangers for trespassers The difference between the two is that the licensee must take premises as they find them, except have a duty to reasonably warn licensees (not actual trespassers) of **actually** known latent hazards **There is duty to "Known" Trespassers to warn/assist and to warn them of latent hazards** Duty to "Unknown" Trespassers are to avoid intentionally or recklessly injuring them **[Trespasser Duty Exception]:** **Attractive Nuisance Doctrine** Duty to warn, put up a sign and a balancing test is used: Natural "Items," the landowner is not held liable unless children is involved, **But will have liability for physical harm** to children trespassing theron caused by an **artificial condition** upon the land if: a. The place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and b. The condition is one of which the possessor knows or has reason to know and which eh realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children or serious mental trauma, and c. The children because of their youth do not discover the condition or realize the rusk involved in intermeddling with it or in coming within the area made dangerous by it, and d. The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and e. The possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children. **[No Duty Rule: To Act or Not to Act]** Restatement Section 37 -- "No duty of care with respect to risks not created by actor" **No duty of care to intervene to protect third parties when the risk of harm did not arise out of one's conduct** Misfeasance -- Risk of harm **arose** out of one's conduct, an improper performance of a lawful act, resulting in harm or injury to another person or entity Nonfeasance -- Risk of harm **did not arise** out of one's conduct, failure to act when a duty requires action **Special relationship exceptions** where duty to act is **IMPOSED even if it was NONFEASANCE (did not arise out of one's conduct)** **Exceptions include (Duty to prevent or to render aid):** 1. **Situations where a party has voluntarily begun to assist and also a duty to not make the situation worse** 2. **Situations where a statute imposes a duty to assist** **Common Law** **Other than Common Law** ----------------------------- ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Parent/Child Contractual Relationships -- Teacher/Student, Babysitter/Child, Medical facility/patient Employment Relationships Statutory Duty -- duty to report caregiver abuse (child or adult) Duty to render aid in an accident (minority of states) Law Enforcement/detainee, Filial Responsibility Laws Common Carrier -- High duty Inn Keeper-Guest High duty Invitees All 50 U.S. States have statutes requiring a motorist to remain at the scene of an accident, and some of these statutes also require assistance to injured persons, also all 50 States require the reporting of child physical and sexual abuse by certain categories of persons. **Landlord/Tenant Duty (Specifically latent hazards the landlord does not have the duty to warn something or fix something "in plain sight.")** - Owes a limited duty in N to tenants or guests from dangerous conditions on leased premises for actual knowledge of **latent hazards**, or for common areas, or if landlord breached a contractual duty in regard to **latent hazards** (Duty to inspect, to warn, to repair) - Domestic animals causing injury if: (1) animal was dangerous or possessing a vicious propensity, such that (2) owner could foresee injury to person or property if animal not restrained **Common Carrier and Inn Keeper-Guest Duty** - Owe an extraordinarily high degree of care to passengers beyond reasonable care, must protect passengers as much as humanly possible - Exercise the utmost care to ensure safe transportation and lodging because of how vulnerable the passenger/guest is in the situation - Includes the duty to protect against foreseeable harm from third parties**, (for example crime and other guests)** **Masters/Crewman (maritime)** **Wardens/Prisoners** **Adjacent Duty** - Landowner to utilize his property in a reasonable manner avoiding injury to the adjoining property or causing unreasonable harm to others in the vicinity (re: artificial features on property-not natural conditions) **Psychotherapist/Patient Duty** - *Tarasoff*, Duty to warn the public when **imminent threat posed by patient weighed against public interest and confidentiality** between psychotherapist and patient - Restatement (Third) Section 41(a) "an actor in a [special relationship] with another owes a duty of reasonable care to third persons with regard to risks posed by the other that [arise within the scope of their relationship]" - *Estates of Morgan*, Duty to protect and control balanced by public interest, confidentiality **Alcohol Provider (Dram Shop Laws)** - Duty to not provide more alcohol to those who are noticeably drunk or minors and could hurt themselves or others - Not responsible for drunk adult but to third parties they hurt - Responsible for drunk minor and to third parties they hurt **Social host/guest** - **Similar to Dram Shop** **Negligent Entrustment separate from the ordinary negligence of a chattel such as a car or gun** 1. The defendant supplied a third party with the chattel in question for the use of the third party; 2. That the supplier of the chattel knew or should have known that the third party would use the chattel in a manner involving an unreasonable risk of harm; and 3. That harm resulted from the use of the chattel Tennessee case where the gas station employee refused to sell alcohol to drunk drivers but pumped their gas for them, negligent entrustment **Duty to Protect Against Fear of Future Disease** **[Common Law Doctrine for Gov'T Nonfeasance Imposed Duty]** **Public Duty Doctrine** -- Government owes a general duty of care to the public at large, not to any one individual -- for example, you can't sue gov't if first responder late to the scene. **CL Police Power** -- authorizes government with power for intervention for public health and welfare (local health department, animal control, liquor licensing board, law enforcement) - Overrides individual constitutional rights **Parens Patriae** -- Imposes a duty when government has assumed the care of a person (Warden-prisoners, CPS agency-foster child, state mental health facility-patient) **[Assumption of Duty of Care]** - Examples: Rendering CPR, Law enforcement telling crime victim to "wait there, we're on our way," exception to Public Duty Doctrine (promised to help a singular individual and would cause Public Duty Doctrine to be "pierced") and [Farwell] **[When taking on or agree to aid]** - Knew or should have known of peril to other, capable of rendering aid, without unduly endangering themselves - **Liability arises if left in worse position** - **Even with medical professionals, if they were intervening forces that cause the injury to become worse, they can be held liable** **II. Breach of Duty** - Did the defendant's conduct fall below the level of care owed to the plaintiff? In light of the foreseeable risks created by the conduct, was the defendant's conduct unreasonable under the circumstances - **A breach of duty is established when the tortfeasor (Defendant) acted below the standard of a reasonable, prudent person under the circumstances and that such conduct created an unreasonable risk of foreseeable harm.** i. We test whether the conduct is foreseeable and unreasonable by evaluating it against what a reasonable person would have foreseen and done under the circumstances ii. The jury decides on the fact and asks if there is a breach of duty iii. The court or judge can create a policy consideration for torts (in creating a policy, as to whom the law should protect from harm, informed by "precedent and principles." **[Reasonable Person Standard]**: What would a reasonably prudent person do, at minimum, to avoid foreseeable harm under the same or similar circumstances? - We look at conduct, and not thought, personality, intelligence, wealth or education **[Person]:** - **Superior Skills:** If say a doctor should be held to a higher standard **(to be judged by the jury on whether negligence occurred)** - **Physical Disability:** Impacts the individual directly causing them to breach a reasonable person's standard of care - A physically disabled person is held to the standard of a reasonable person with a like disability. - **Maturity/Age:** **[Circumstances]:** **Sudden Emergency** - **Sudden Emergency:** Circumstance that impacts a person causing them to breach a reasonable person's standard of care **[Negligence caused by a Child]** - **Infancy:** Impacts the individual directly causing them to breach a reasonable person\'s standard of care unless they were engaged in highly dangerous activities - Tender Age Doctrine (Majority Rule): "AIME" Age, Intelligence, Maturity, Experience (**This is the Standard, then we look at the conduct and apply the standard**) - Rule of 7 (**Tennessee's adoption of the Minority Rule**): From ages 0-7, complete defense for negligent acts of a child. From 7-14, children are presumed to be incapable of negligence but can be rebutted by evidence of capacity. 14 to Maturity are capable of negligence. Tennessee Maturity is 18 - **Highly dangerous activities:** Circumstance that impacts a person causing them to breach a reasonable person's standard of care - **However** states apparently do not believe that a child discharging a firearm is considered a highly dangerous activity - **Typoically when driving or using motorized vehicles and tools** **The law presumes as a general rule that "every person is presumed to possess ordinary capacity to avoid harm to their neighbors.** **[B. Negligence per se]** Defendant violated a state statute in a negligent manner where the plaintiff: \(1) is amongst the protected class the state statute was designed to protect; - **Rebuttable presumption** **[Excuses or exceptions to Negligence per se]** i\. The violation is reasonable because of the actor's **incapacity**; ii\. he/she neither **knows nor should know of the occasion for compliance**; **Statutory Standard of Care Approaches (Procedural Effects)** ***Res Ipsa Loquitur*** (Part of Breach) Circumstantial Evidence "This stuff doesn't happen." - Presumption of negligence - Can be established as prima facie evidence of negligence - Permissible inference of negligence from the circumstances ***Res Ipsa Loquitur*** can be satisfied under these conditions: a. The accident which produced a person's injury was one which ordinarily does not happen unless someone was negligent; b. The instrumentality or agent which caused the accident was under the exclusive control of the defendant, and; c. The circumstances indicated that the untoward event was not caused or contributed to by any act or neglect on the part of the injured person; i\. disprove that a third party is responsible negligently; To argue for the defendant in a RIL claim, argue **constructive notice** When this is applied, the inference of negligence can satisfy the plaintiff's burden of proof thereby surviving a motion to dismiss at the close of his or her case. **Note**: the burden of proof does not shift - May be rebutted with evidence of due care **Difference between N per se and Statutory Tort is that there is a codified statute for statutory tort but common law is the basis for N per se** III. **Cause-in-fact** - Did a causal connection exist between the defendant's unreasonable conduct and the plaintiff's harm? iv. "But For" test "Butterfly Effect" v. "Substantial factor" test vi. Causation is a question for the jury IV. **Damages** - What legally recognized losses has the plaintiff suffered as a result of the defendant's breach of duty i. Requires the plaintiff to establish actual damages ii. The goal of damages is to make the plaintiff "whole" or his/her pre-injury position iii. Damages include: past and future earnings, medical lump sum expenses, and pain and suffering. Typically, lump sum - Negligence requires a "mental" state - Carelessness on the defendant's part Examples of Negligent cases: - Wrongful Death - Medical Malpractice - Legal Malpractice - Negligent hiring, supervision, entrustment - **Important to note** that negligence does not have to be proven beyond reasonable doubt (in criminal cases). All that is needed is a "preponderance of the evidence," for all four elements: duty, breach, causation, damages. It only requires the jury to find that it is more likely than not that each element favors the plaintiff - **DAMAGES is typically looked at first in reality** - Plaintiff has the burden of proof: - Burden of proof to come forward with evidence - Burden of persuading the jury - Contributory Negligence- if the plaintiff is at fault more than 50%, there is not a claim **[In Negligent Emotional Distress Injuries]** - Generally, if no physical injury accompanies the emotional injuries, the victim cannot recover - Originally, damages were for physical harm only to "make the Plaintiff whole again." **[Recovering for\ ]** **[(If the State adopts the Rule)]** **Minority Rule** - **Impact Rule (Self)**: Allowing for recovery where there was physical impact **but later allowed** for no physical injury if there was maifestation (even the slightest touching) - **Includes touch but also any physical manifestation from the emotional distress** **Majority Rule** - **Zone of Physical Danger Rule 1 (Self)**: - A rule that allowed a party to recover for pure emotional distress (trauma) if the party was in the foreseeable zone of physical danger but escaped without physical injury where the distress arose from a **fear for the plaintiff's own safety** - **Zone of Physical Danger Rule 2 (Third Parties)**: - Fear for the physical well-being of another. Courts allowed recovery **where a family member was killed or seriously injured in an accident AND the plaintiff was within the zone of danger but not physically injured**. - **Zone of Danger** is the geographic space within which a party is at foreseeable risk of physical injury. - **Bystander Recovery (Family Member)**: - **Ordinary Bystander Recovery** - Even when a plaintiff is not within the zone of danger, the plaintiff could still recover from emotional distress when the plaintiff feared for the safety of another - Generally, the plaintiff has some form of familiar relationship with the injured person for bystander recovery to be actionable - The elements to allow for bystander recovery: - \(1) The Plaintiff must be closely related to the victim of the injury - \(2) The Plaintiff's emotional injury must be caused by the sensory perception of the event or conduct that causes the injury - \(3) The injury to the victim must be **substantial that it either causes death or serious physical injury**, so much that it can reasonably be expected that one in the plaintiff's position would suffer serious mental anguish - \(4) **Plaintiff must suffer serious emotional injury**, "a reaction beyond that which would be anticipated in a disinterested witness, and which is not an abnormal response to the circumstances. - **Dillon's Rule** (Third Parties) was based on foreseeability of injury and not limiting enough for a NIED claim because it could still allow a flood of frivolous and feigned emotional injuries - **See/hear/perceive risk of harm to a close family member while nearby but not in zone of danger and suffers serious emotional distress to that bystander is reasonably foreseeable.** - Reliance on foreseeability (whether emotional harm could be suffered by different people and the degree of emotional harm) alone to determine duty and thus a right to recover us not adequate when the damages sought are for an intangible injury. - **Special or affirmative duty to protect against emotional trauma** - Parental duties and acting in best interests of raising children - Death notifications and handling remains - Medical and mental health providers (Certain Contractual Relationships) - Care Facilities - Etc. varies across States - Physician's duties to both mother and fetus/child (both are "direct victims") - Overprescribed meds to 2 month old patient (duty only to patient, not to parent) **[The Professional Standard of Care]** "An increased recognition of human dignity and personal autonomy." **[Negligent Medical Performance *(Medical Malpractice)* ]** **A failure to foresee and protect patients from probable harm arising from a breach of care of standards established by either similar medical professionals or failure to receive informed consent from patients** **Leans toward a National Standard of care rather than state/local** - In medical malpractice cases, the majority of courts have decided that the plaintiff has to provide expert testimony to show both the customary practice and the medical professional defendant's conduct deviates from the customary practice. - "The rationale for requiring expert testimony in medical malpractice cases is that a doctor is not required to always provide a correct diagnosis or positive result, but merely to conform to the accepted degree of skill, care, and judgment required of a reasonable physician." [Jeckell v. Burnside] - Certain states still employ a "same or similar locality" test as the standard of accepted degree of skill, care and judgment required of a reasonable physician. Limiting the standard to the locality and would be fairer to physicians in the rural areas compared to urban where there may be more experience/expertise or better equipment. - Certain states have adopted more national standards since all board-certified specialists had to take the same exams to be certified. **Recovering under the COA [Medical performance negligence]** - Carelessness arising out of the care of patients, such as mistakes in diagnoses, surgery, office treatment, prescriptions, testing, surgical procedures, etc. - **GENERALLY, without an expert witness, the plaintiff may not pursue a malpractice action** - **EXCEPTION: Where the malpractice was SO evident enough** **Recovery under the COA [Doctrine of informed consent]** - Providing patients with information related to their medical problems, the proposed treatments, material risks, involved, and alternative procedures so that the patient may decide to consent to proposed treatment - **Two Standards** - Traditional Standard (Professional Medical Standard) - Disclose information a reasonable medical practitioner of like training would disclose under the same or similar circumstances **(By Doctor)** - Lay Standard (Materiality of risk or prudent patient standard) - A physician's duty to disclose is tailored to the patient's need for information **(Any information that would be sought by a reasonable patient)** - Does not require expert testimony but rather it is for jury to determine a reasonable person in the patient's position would have considered the risk significant in making his or her decision - **Courts have ruled that a patient is entitled to be informed by a physician not only about risks and benefits of undergoing a particular medical intervention, but also information about risks and benefits of not undergoing it** - Doctors may refuse to accept patients except in emergency care at hospitals - Doctors may refuse to take Medicaid and Medicare patients and rarely screen patients for their ability to pay otherwise **No Educational Malpractice as a COA under common law** **Negligent Supervision** - Employer is responsible in tort for employee's negligence within the scope of employment, **if employer has actual or constructive knowledge of employee's unfitness for the job.** - Excessive Force -- Parents of son shot by deputy sued deputy and County Sheriff - [White v. Bradley Co. Gov't] (Tenn. Ct. App. 2021). - In Tennessee Negligence is not covered under immunity for government workers - Remember [Spearmen] (Shot Put case - Negligent Hiring and Negligent Retention? Keep suing upwards? **Legal Malpractice** - Lawyers have a fiduciary duty where the relationships with power imbalance and high stakes impose a legal duty of loyalty and trust (There is a tort claim where fiduciary duty is breached) - Some other fields include: - Lawyers - CPAs - Engineers - Trustees - Executors - Some Financial Advisors - Breach of duty, Whether unreasonable conduct creates a risk of foreseeable harm to the plaintiff, measured in a professional standard among attorneys to exercise reasonable care in representation as an ordinary, prudent attorney would under the circumstances - Attorney's conduct must have been a substantial factor in causing the harm - **Leans toward a state standard because of the licensure, the Bar Exam which is localized within the state and limits where an attorney may practice law** **U.S. Constitution does not provide an individual right to health care** **[Negligent Reproductive Health Care and Rights to Bodily Autonomy]** - [In Burgess], Mother as direct foreseeable plaintiff when med malpractice caused harm to fetus in delivery and mother was a bystander NIED, case had to recognize the fetus as a person (California Case) **[Wrongful Birth and Wrongful Life ]** - Wrongful death claim on behalf of viable fetus is an actionable COA in majority of states - Wrongful life claim on behalf of disabled fetus is in the minority of states - As a crime, fetal homicide is measured from the earliest stages of conception - If no privity for example, Father in the case of [Greco], he does not have any recoverable damages **Loss of Consortium Claims** - Loss of Consortium Claims Majority of States - Loss of Spousal Consortium Claims Majority - Loss of Cohabitant Consortium Split - Loss of Child's Consortium Split **[Developing the Reasonable Care Standard]** Hand's Risk Calculus: B(Burden) \< P (Probability)\* L (Injury) if PL\>B then it is unreasonable 1. P -- Likelihood of Harm: What is the probability of harm relevant in determining whether the conduct was reasonable? 2. L -- Seriousness of Injury: Should Injury be determined by: - Actual damages suffered - Possible worst-case scenario - What a reasonable person decides is the likely injury that would occur if the harm causing event comes about? 3. B -- Burden of Adequate Precautions: Interest that must be sacrificed to avoid the risk. - In the Third Restatement, it states that the "**primary factors to consider in ascertaining whether a person's conduct lacks reasonable care are the foreseeable likelihood that it will result in harm, the foreseeable severity of the harm that may ensue, and the burden that would be borne by the person and others if the person takes precautions that eliminate or reduce the possibility of harm.**" *The Hand Formula in the Draft Restatement (Third) of Torts: Encompassing Fairness as Well as Efficiency Values*, 54 VAND. L. REV. 901 (2001). - However, attorneys for both plaintiff and defendant find the risk/burden balance test helpful in analyzing and preparing negligence cases. Generally used with businesses to gauge risk. **[Mentally Disabled Individuals]** ***Cohen* rule** "California has approved the rule of *Cohen v. Petty* (D.C. Cir. 1933) 65 F.2d 820, that as between an innocent passenger and an innocent fainting driver, the former must suffer." **Restatement Second of Torts, published in 1965, which provides in section 283 B:** The court cites 4 reasons from Section 283 B 1. Difficulty to impose liability for damage done when mental deficiencies are at play 2. Determining the mental deficiencies and whether they were feigned. 3. If those with mental deficiencies are to live in our society, they should still pay for the damages done and what better than with their wealth 4. The belief that the reprehensibility of their act by the law may encourage their care takers to be more careful in keeping them in order and see that they do not do any harm **[Chapter 4 Causation]** **Basis for Causation (Tests)** **But For Breach proven beyond preponderance** A. **But for Causation (But for the breach of duty, negligence would not have occurred)** a. If a defendant could not, by the exercise of due care, have prevented the accident (or conduct that led to the claim) from occurring, the plaintiff cannot recover [Sowles v. Moore] (Vt. 1893). b. In [New York Central R.R. Co. v. Grimstad], the plaintiff had sued for negligence on the defendant's part for failure to keep lifebuoy on the barge. The court found that there was no evidence whether had the plaintiff toss the lifebuoy to her husband (the barge captain and decedent) it would've saved his life, therefore the "But For" test could not completely determine whether a reasonable person would've been able to use the lifebuoy when the decedent did not know how to swim. i. In order to discount the "But For" you would need to form your own natural and reasonable inferences c. **Typically, single plaintiff/single defendant** d. **Jury determines if the defendant's alleged wrongful conduct was a contributing factor in the resulting harm, and without which the harm would not have occurred** ii. **Interesting to note is that the "But For" test seems to indicate that causation is either an absolute "yes or no" answer.** B. **The Substantial Factor Test** e. The substantial factor test asks whether the defendant's negligent conduct was a substantial factor in contributing to the plaintiff's injuries iii. Raises the adequacy of the proof brought before the jury in difficult causation cases, iv. In [Corey v. Havener], the court found that if each defendant was found to have equally contributed to the injury, it is enough to bind all the defendants under the Substantial Factor Test. However, one satisfaction is enough from the defendants. v. In [Smith v. J.C. Penney Co., Inc.], even if one party of defendants can be found to have conducted in a way more predominantly to cause the injuries to the plaintiff, it does not mean that the conducts of another party of defendant who contributed to the injuries is not "substantial." C. **Proof of Causation** f. Cumulating Proof to Identify the Cause vi. Proving Causation may require careful investigation, consultation with experts, accumulation of evidence, and skillful, persuasive arguments. vii. In [Ingersoll v. Liberty Bank of Buffalo], the court pondered if the plaintiff would have to disprove other causes when two or more causes could have been the cause that contributed to the decedent's death. When there is such an impasse, the case should not be dismissed and that should be a question for the jury. viii. **From that case, the court holds that it is enough that the plaintiff shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred. The plaintiff need not disprove other causes.** ix. **Natural and Reasonable Inference** g. Burden to proceed to trial: "Is P's evidence sufficient to permit a rational factfinder to infer causation?" x. "Therefore whether or not the particular defendant is liable to the particular plaintiff is merely an educated guess." -- E.J. Kionka, Torts in a Nutshell h. Untaken Precaution: Proving the Counterfactual i. **Multiple Parties: Apportionment of Damages or Joint Liability** xi. Courts generally opt to holding each defendant liable for the entire harm when there are multiple defendants but caused a single indivisible harm 1. **Where it is impossible to determine who caused the harm** xii. However, the plaintiff is only limited to recovery from one defendant xiii. **Plaintiff does not have the burden of proof to apportion the harm caused by the defendants if it was a multiple impact situation, where the conducts of the defendants combine to bring harm to the defendant** 2. The defendants have to argue amongst each other in order to prove who was more liable. ***"Ball is in their court."*** D. **Proving Who Caused the Harm** j. Alternative Liability ([Summers v. Tice]) xiv. Single Indivisible Harm by multiple defendant's act, all defendants are liable, burden of proof on defendant xv. **Burden Shifting Rule** 3. **Where it was impossible to prove which defendant was responsible for the proximate cause that resulted in the plaintiff's injury, all were then to be tried for negligence and then it would be between the defendants to apportion the damages thus there would be a shift in burden under the Burden Shifting Rule** k. Joint and Several Liability xvi. Two or more identifiable tortfeasors may be subject to liability for the same harm and may be sued by the plaintiff, together or separately xvii. Parties may join (implead) defendants in same cause of action, or Defendant found liable may later file contribution (indemnification) action against the other wrongdoer (or file for liability insurance coverage) xviii. Defendant's burden to determine apportionment of damages among wrongdoers -- but Plaintiff only recovers once +-----------------------+-----------------------+-----------------------+ | **Joint & Several | **Examples** | | | Liability (CIA)** | | | +=======================+=======================+=======================+ | [Complicity]{.underli | Def A and B play ball | - Most states (29) | | ne} | together, ball then | have a modified | | "True: Joint | hits a pedestrian | J&S liability if | | Liability | | above % of fault | | | | fully liable | | | | | | | | - 7 states with | | | | Full J&S | | | | | | | | - 14 states | | | | abolished J&S | +-----------------------+-----------------------+-----------------------+ | Concurring | Separate Pollution | | | [Independent]{.underl | sources merge; the | | | ine} | combined pollution | | | Actions | harms the plaintiff | | | | **(Tennessee does not | | | | recognize this | | | | COA),** **OR** if | | | | each alone is not | | | | enough to cause harm | | | | to the plaintiff (IF | | | | each "But For" cause | | | | is enough) | | +-----------------------+-----------------------+-----------------------+ | Principal and | Server spills very | In Tennessee, "If two | | [Agent] | hot latte on customer | forces are actively | | (Employer and | (Sue them all) | operating, one | | Employee) | | because of the | | | | actor's negligence, | | Employer could be | | the other not because | | vicariously liable | | of any misconduct on | | | | his part, and each of | | | | itself is sufficient | | | | to bring about harm | | | | to another, **the | | | | actor's negligence | | | | may be found to be a | | | | substantial factor | | | | in** | | | | | | | | **bringing it | | | | about**." | +-----------------------+-----------------------+-----------------------+ | **Actual Causation** | | | +-----------------------+-----------------------+-----------------------+ | But For, the Harm | | For one defendant | | would not have | | | | occurred | | | +-----------------------+-----------------------+-----------------------+ | Substantial Factor | | If multiple | | | | defendants | +-----------------------+-----------------------+-----------------------+ | **Alternative | | | | Liability** | | | +-----------------------+-----------------------+-----------------------+ | Summers v. Tice | Either defendant | | | | could have injured | | | | the plaintiff, but | | | | impossible to tell | | | | who did. Courts will | | | | allow the defendants | | | | to figure it out on | | | | their own. | | +-----------------------+-----------------------+-----------------------+ | **Proximate | **Cause, which, in | | | Causation** | natural and | | | | continuous sequence, | | | | produces plaintiff's | | | | injury, and such | | | | injury was reasonably | | | | foreseeable and | | | | unbroken by an | | | | intervening cause** | | +-----------------------+-----------------------+-----------------------+ l. Market Share Liability (Eli Lilly Co. DES Cases) xix. Typically, Pharmaceutical Products Consumer Goods xx. Mass litigation but not class action xxi. When it is IMPOSSIBLE to determine which manufacturer made the dangerous or defect goods m. Lost Chance Doctrine xxii. Policy to permit holding liable (generally in medical malpractice) where a plaintiff could have had a better chance of surviving an illness but the defendant did not properly diagnose the illness in time xxiii. How much the Defendant is liable 4. If there was a loss of chance of at least 50% 5. Or if there substantial factor D Liable **Proximate Cause (Question of Fact and up to Jury)** A. **A Limitation on actual causation as a matter of policy** a. Proximate cause is a cause in which (1) in natural and continuous sequence produces a plaintiff's injuries and (2) one from which a person of ordinary prudence could have reasonably foreseen that such a result or similar injurious result was probably." (Keith NC 2022)) B. **Unforeseeable Plaintiffs** b. In [Palsgraf v. Long Island R.R. Co.], where Palsgraf sued for the negligence of the Railroad company, when fireworks were discharged in the station causing a scale to fall on her. **The NY Court of Appeals ruled that the defendant is only liable for damages to a plaintiff to whom the defendant foreseeably owes the duty of care** C. **Unforeseeable Consequences** c. In [Juisti v. Hyatt Hotel Corp. of Maryland], Maryland court determined that the scope of liability question should've been "Might the hotel have anticipated that the **plaintiff might suffer injury as a consequence of evacuating the hotel by taking the stairs when the hotel's negligence caused the fire alarm to go off**, and **not should the hotel have anticipated that the plaintiff might suffer a collapsed lung."** i. **Dissent in the case thought that the reasoning of the Circuit Court was too attenuated** ii. **Attenuated -- Stretched, remote, too broad** d. **Tennessee's Proximate Cause Elements** ([State v. Kim], 622 S.W.3d 753 (Tn. Ct. App. 2020). iii. The Tortfeasor's conduct must have been a "substantial factor" in bringing about the harm being complained of; and iv. There is no rule or policy that should relieve the wrongdoer from liability because of the manner in which the negligence has resulted in the harm; and v. The harm giving rise to the action could have been foreseen or anticipated by a person of ordinary intelligence and prudence 1. "General Manner" of how the injury came to be, need not be the exact manner in which it occurred 2. Reasonably foreseen means more than a remote possibility or "it's possible" 3. Prove "But for" causation and proximate cause by a preponderance vi. Tennessee law, Innkeepers do not have a heightened duty of care to children, similarly, Schools also do not have a heightened duty of care to children vii. **COULD THE TYPE OF HARM HAVE BEEN FORESEEN** **In proving causation, there must be actual and proximate causation** **Proximate Causation** [**Intervening Force would negate proximate cause and it requires**:] **(2) That "breaks up the chain" of defendant's proximate cause** **These are a question of fact decided by jury** a. In [McClenahan v. Cooley], the court limited intervening forces (events that break up the causation chain) in favor of plaintiffs who brought cases where incidents could have been foreseen to have happened. b. Because this case involved a safety statute T.C.A Section 55-8-162, where the automobile when stopped must have the ignition turned off, it was apparent that the state had an interest and could have foreseen there to be great public harm if the automobile was allowed to keep running while unattended. c. "An intervening act will not exculpate the original wrongdoer unless it appears that the negligent intervening act could not have been reasonably anticipated." [Evridge v. American Honda Motor Co.] d. "**An intervening act**, which is a normal response created by negligence, **is not a superseding, intervening cause** so as to relive the original wrongdoer of liability, provided: **(1) the intervening act could have reasonably been foreseen** **and** **(2)** **the conduct was a substantial factor in bring about the harm.** **(3) The act was independent and not of the defendant's own conduct.** viii. The court in Price, concluded that a genuine issue of material fact remains with respect to the issue of the legal and proximate cause of Price's injuries and therefore, reverse the district court's entry of summary judgment and remand for a trial D. **General and Special Causation (Proof)** e. Complex causation standards in certain cases, epidemiological issues (toxic torts, chemical and pharmaceutical) requiring experts ix. [Christian v. Gray], in a mass tort, it would require expert testimony as a **general causation** (the circumstances CAN cause this type of injury) AND **special causation** (the specific circumstances caused the plaintiff's injury) and needs **differential diagnosis** (ruling out causes) x. Examples: Deepwater Horizon -- Federal oil spill cases and Memphis IL Central RR cases -- worker exposure to cancer-causing toxins **Exceptions to the Foresight Rule** **(1) Medical Malpractice Complication Rules** - In [ARC v. Fletcher], the law regards the negligence of the wrongdoer in causing the original injury as the proximate cause of the damages flowing from the subsequent negligent or unskillful treatment thereof, **and holds the original wrongdoer liable**. [Emory v. Florida Freedom Newspapers] - The court further interprets this rule to apply to those parties who negligently contributed to the infliction of the plaintiff's initial injury, not to medical providers who subsequently aggravated the injury. - **Essentially, the medical professionals that arrive later within the sequence of events do not serve as a valid intervening force that negates liability for the original wrongdoers.** - **Florida statute categorized medical malpractice as not an intervening force because it is foreseeable** **(2) Eggshell Plaintiff Rule** - A tortfeasor runs the risk that the person whom he injures may be in such condition that the injury will be far more serious than had such person been strong. 22 American Jurisprudence 2d (1988), Damages, Section 281 - **The rule is, the defendant takes the plaintiff as he finds him** - The negligent actor is subject to liability for harm to another although a physical condition of the other which is neither known nor should be known to the actor **makes the injury greater than that which the actor as a reasonable man should have foreseen as a probably result of his conduct.** Restatement (Second) OF THE LAW OF TORTS section 461 (1965) **(3)** **The Rescuer Rule** - Under the rescue doctrine, an actor is usually liable for injuries sustained by a rescuer attempting to help another person placed in danger by the actor's negligent conduct. - **However, where a person has negligently managed his or her own person, he or she is liable for the foreseeable consequences**, when "Danger invites Rescue," it is foreseeable that another person will attempt to rescue the one in danger. - "If the actor's negligent conduct threatens harm to another's person, land, or chattels, the normal efforts of the other or a third person to avert the threatened harm are not a superseding cause of harm resulting from such efforts." - Firefighters rule bars firefighters and police officers, on public policy or assumption of risk grounds, from recovering for injuries caused by the inherent risks of their jobs **(applies only to negligent conducts and not intentional for example, if there was an intentional tort where the individual seeking help intentionally set up a trap, etc.)** **[Damages]** **1. Damages under Negligence: FTCA** - Under the Federal Tort Claims Act (FTCA), the law of the state where the misconduct occurred governs tort liability, including the nature and measure of damages. 2\. **Components of Compensatory Damages in Personal Injury** - Objective: To make the plaintiff whole (monetarily) for actual harm - Courts base compensatory damages awards on substantial evidence, avoiding speculative calculations. - Considers past and anticipated future costs from a reasonable and objective perspective - **Mitigating Defense**, if the plaintiff has done what a reasonable plaintiff would have done like a reasonable plaintiff would have done to ameliorate harm/mitigate damages - **Actual harm must be proven. Nominal or symbolic damages are not valid** - **Jury considers less so of demographic factors than in the past due to constitutional challenges** 3\. **Types of Compensatory Damages** **[Economic Damages]** A. **Medical Treatment Expenses** - Includes both current and future medical costs associated with the injury. - Covers necessary treatments, therapies, and potential future medical needs related to permanent disabilities. B. **Loss of Future Wages** - When the plaintiff has chosen a livelihood, courts estimate lost earnings based on projected career income. - For plaintiffs without a chosen career path, courts evaluate potential earnings based on: - Individual characteristics (e.g., age, sex, socio-economic status, family characteristics, criminal behavior, academic record, intelligence, dexterity). - Calculations are discounted to present value, considering inflation and "safest" investments. - Employment recovery widely varying based on class and disability C. **Property** **[Non-Economic Damages]** **A. Pain and Suffering** - Includes physical and emotional distress caused by the injury. - **Recoverable only** if the plaintiff is conscious; unconscious plaintiffs are generally not awarded pain and suffering damages. - **Eggshell Doctrine still applies** - **Limits damages for shortened life or unconscious plaintiffs** **B. Loss of Consortium Damages** - Available to immediate family or individuals in close familial-like relationships for loss of companionship, services, affection, or sexual relations. - Courts sometimes extend claims to cohabiting partners, fiancés, and grandparents with limited success. **DO not permit punitive damages for negligence unless it is found that there was wanton and willful/reckless/intentional torts** 4\. **Collateral Source Rule** - Under this rule, compensatory damages are not reduced by payments the injured party receives from other sources. - Rule applies if: - The benefit source is independent of the tortfeasor. - The plaintiff arranged for a potential double recovery. 5\. **Additional Guidelines and Considerations for Damages** - Courts typically award damages up to the initially requested amount. - Example: If a plaintiff initially requests \$20 million, this amount may cap the award even if total damages calculated are higher. - Congress waives sovereign immunity in negligence claims under FTCA with the condition of a bench trial rather than a jury trial. - Courts assess life expectancy, often with input from forensic economists using mortality tables. - Used to calculate losses for future earnings and work-life expectancy. - Federal and state tax laws exclude damages for physical injuries or sickness from taxable income. - However, generally legal verdicts and settlements are taxable as income. - Question: Are damages for mental health-related injuries taxable as employment income? - Non-physical injury is usually taxable **In Tennessee, a party can contract away negligence liability, but the party cannot avoid gross negligence or negligence based on public duty** **In Tennessee, a person acts recklessly when they have a conscious disregard of a substantial and unjustifiable risk that is gross deviation from the standard of care** **Gross Negligence a negligent act or omission, more than ordinary negligence but less than willful and wanton conduct,** **Criminal Law - a "failure to perceive a substantial and unjustifiable risk which constitutes a gross negligence of standard of care** Malice (Might warrant punitive damages) -- Malicious wanton, willful, reckless - Drunk Driving - Shooting gun - Falsely telling journalist that a political candidate had a drug problem - Calling a school with a false bomb threat - Lending motorcycle with faulty breaks **[Fraud Elements (civil and criminal) (Never Negligent)]** - **To make a false representation of a material fact, knowing that it was false or with reckless disregard as to its falsity, with the intent to deceive or induce reliance on the part of the Plaintiff** 7\. **Additional Recognized Compensable Damages** - Permanent Disabilities or Impairments (e.g., loss of a limb or vision). - Recognized as separate damages due to their significant impact on the plaintiff's life. - Loss of Enjoyment of Life (LOEL) - Proved by testimonies from those close to the plaintiff on how the injury impacted the plaintiff's activities and enjoyment. 8\. **Loss of Life Expectancy** - Most U.S. courts do not explicitly allow a separate category for foreshortened life expectancy. - **Exception**: If the plaintiff experiences distress over foreshortened life expectancy, that distress may be considered under pain and suffering damages. **[Defenses and Immunities]** Legal Doctrines that bar or limit a plaintiff's right of recovery **major affirmative defenses of** **(1) [Contributory negligence, (2) Comparative fault, (3) Assumption of risk/Consent, and (4) Statutes of limitation (5) Statute of Repose ]** **(5) Statute of Repose (Ultimate deadline for filing a claim after a Statute of Limitation had been extended (tolled) is a judicial question for judges to decide whether to extend** **(Examples for why there could be a tolling, the time between a child and adult making the decision, disability like comas that does not allow the injured party to pursue a claim)** **These are all COMPLETE DEFENSES** **[You can never consent to harm to yourself!!!]** **[Contributory Negligence]** **Definition:** Contributory negligence is a legal doctrine that bars a plaintiff from recovering damages if they are found to be even partially at fault for the injury or harm they suffered. Under this strict approach, if the plaintiff is even 1% responsible for their own injury, they are completely barred from any compensation from the defendant. **Variations of Contributory Negligence:** 1. **All-or-Nothing Outcome:** Under contributory negligence, if a plaintiff is found to have contributed to their injury in any way, they lose the right to recover any damages. 2. **\"Last Clear Chance\" Doctrine:** Some contributory negligence jurisdictions allow plaintiffs to recover if they can prove the defendant had the "last clear chance" to avoid the injury, despite the plaintiff's negligence. **Defendant-Friendly Approach:** This doctrine favors defendants since it absolves them of liability if the plaintiff shares any degree of fault. Defense in Contributory N Per Se **Example:** Suppose a pedestrian jaywalks and gets hit by a driver who was speeding. If the pedestrian sues, contributory negligence would prevent them from recovering any damages because their act of jaywalking contributed to their injury. **Criticism and Decline in Use:**\ The all-or-nothing nature of contributory negligence has often been criticized as overly harsh and unjust, as it denies compensation even when the plaintiff's fault is minor. Because of this, most U.S. jurisdictions have replaced or modified contributory negligence with the more flexible **comparative fault** system. **[Comparative Fault (Comparative Negligence) (No Joint and Several in this case)]** **Definition:** Comparative fault, or comparative negligence, is a more flexible doctrine that allows for apportioning damages based on each party's degree of fault. Under comparative fault, both the plaintiff and the defendant's actions are considered, and any awarded damages are reduced proportionally to the plaintiff's percentage of fault. **Types of Comparative Fault:** 1. **Pure Comparative Fault (Minority):** - Allows a plaintiff to recover damages even if they are 99% at fault. The plaintiff's recovery is simply reduced by their percentage of fault. - For example, if a plaintiff is 80% responsible for an accident and the total damages are \$10,000, they could still recover \$2,000. 2. **Modified Comparative Fault (50% or 51% Bar Rules) (MAJORITY RULE):** - **50% Bar Rule:** The plaintiff can only recover damages if they are less than 50% at fault. If the plaintiff is 50% or more at fault, they are barred from recovery. - **51% Bar Rule:** The plaintiff can recover as long as they are not more than 51% responsible. If their fault is equal to or greater than the defendant's, they cannot recover damages. - These modified rules aim to balance the interests of fair compensation and discouraging claims when the plaintiff is substantially at fault. **Example:** Suppose a car accident occurs where one driver is 40% at fault and the other is 60% at fault. In a **pure comparative fault** jurisdiction, both parties could recover based on their percentage of responsibility. If damages total \$10,000, the 40%-at-fault driver would recover \$6,000, and the 60%-at-fault driver would recover \$4,000. FOR both contributory and comparative fault, these are affirmative defenses that can only be established after the prima facie of negligence is established. By definition an affirmative defense is accepting that there is liability but there were mitigating factors. **Public Policy Behind Comparative Fault** The shift from contributory negligence to comparative fault aligns with modern legal principles of fairness, efficiency, and the promotion of accountability. Here are the key public policy reasons supporting comparative fault: 1. **Fairer Allocation of Responsibility:** Comparative fault provides a more equitable method for allocating responsibility among parties. By proportionally reducing damages based on fault, it reflects the actual degree of responsibility each party has for the injury or harm. 2. **Encourages Personal Responsibility:** Since plaintiffs' recoveries are reduced by their percentage of fault, comparative fault encourages individuals to take responsibility for their own actions. This incentivizes safer behavior and encourages people to avoid reckless or negligent actions that could harm others or themselves. 3. **Reduces Harsh Outcomes of Contributory Negligence:** Comparative fault prevents the often harsh consequences seen in contributory negligence, where plaintiffs could be entirely barred from recovery even for minor fault. This more nuanced approach recognizes that accidents and injuries often have shared fault, promoting a fairer justice system. 4. **Promotes Judicial Efficiency and Reduces Litigation Costs:** Comparative fault reduces litigation costs by encouraging settlements. Since both parties can expect damages to be proportionally reduced by their respective degrees of fault, there is less incentive to litigate for an all-or-nothing outcome. This framework promotes negotiation and fair settlements outside court. 5. **Aligns with Modern Social Values of Equity and Compassion:** Comparative fault reflects society's view that compensation should align with the harm each party suffered and caused, rather than punishing plaintiffs for minor mistakes. It embodies a more compassionate approach, especially in cases where the plaintiff is a victim of a serious injury but shares slight responsibility. 6. **Judicial Flexibility:** Comparative fault allows judges and juries to consider the unique facts of each case and distribute fault accordingly. It recognizes that most accidents are multifactorial and that a rigid rule may fail to deliver just outcomes. Consent would be a defense for intentional torts **Assumption of Risk in Tort Law: Comprehensive Outline** **I. Introduction to Assumption of Risk (Complete Defense similar to Contributory Negligence)** - **Definition**: A legal doctrine where the plaintiff may be barred or limited in recovering damages if they voluntarily and knowingly assumed the risks inherent in a dangerous activity. - **Types**: 1. **Express Assumption of Risk**: Explicitly stated in a contract or waiver. **(Consent)** 2. **Implied Assumption of Risk**: Inferred from the plaintiff's conduct, without an express agreement. **(Consent through action)** **II. Express Assumption of Risk** - **Overview**: Plaintiff explicitly agrees to assume risk through a contractual waiver or release form. **(Ex. Sign Release form, or Contract exculpatory clause)** - **Manifest and "Clear and Unambiguous"** - **Voluntary** - **Risks are known when signed by participants** - **Can't waive serious bodily harm** **Express Waiver: Manifest and clear, unambiguous, voluntary, risks are known Waivers of Negligence** - **Requires all of these elements if not, you could say the waiver was no manifest or clear or unambiguous, not voluntary, etc...** However Intentional Torts can also be waived if "Gladiator Sports" - **HOWEVER, the release must also be valid:** - **Validity of Exculpatory Clauses**: An exculpatory clause waiving liability may be invalidated if contrary to public policy. **Court will weigh these Criteria to Evaluate Exculpatory Clauses** (California Supreme Court Standard): **(Waivers will be a complete defense if found to be valid)** **1. Public Interest Involved**: Service is of significant importance (necessity to the public, suitable for regulation, defendant willing to provide service (e.g., medical services). - **Generally Recreational sports release** are valid because they are not necessary to the public - **Rescuer Rule for Firemen** and other public service careers -- Rescuer cannot sue the rescued, - **Legal Malpractice Waiver** are invalid (void and against public policy) because they are at the "mercy" of lawyers, because lawyers typically have greater knowledge in drafting this contract. 3. **Contract of Adhesion**: A take-it-or-leave-it agreement where terms cannot be negotiated, release of liability by exculpatory clauses, and no option for plaintiff to be protected against Negligence - Release of liability in **parking lot thefts** (generally valid to release liability) Covid-19 Risk Waiver is not determined, "Public Relation?" - **The underlying tort claim of negligence can survive if these are weighed in favor of plaintiff and override the contract** **III. Implied Assumption of Risk** - **Definition**: Assumption of risk inferred from the plaintiff's actions, without an explicit agreement. **IV. Three Elements of Implied Assumption of Risk** To establish implied assumption of risk, the defendant must prove: **(SUBJECTIVE STANDARD for Assumption of Risk)** 1. **Knowledge of the Risk**: - The plaintiff must have actual, subjective knowledge of the specific risk. - **Example**: A person who sees warning signs at a ski slope understands the risk of falling. 2. **Appreciation of the Risk**: - The plaintiff must fully understand the nature and magnitude of the risk involved. - **Example**: A diver recognizes the dangers of diving in shallow water. 3. **Voluntary Exposure of Risk**: - The plaintiff must voluntarily choose to face the risk, without any external coercion. - **Example**: A spectator sitting in an unscreened area at a baseball game. 4. **A MISCALCULATION OF RISK CONSTITUTES A CONTRIBUTORY NEGLIGENCE** **V. Primary Assumption of Risk -- Limited Duty** - **Under** **Primary Assumption of Risk:** - The plaintiff is unable to establish the prima facie case for negligence either because the defendant does not owe a duty of reasonable care to the plaintiff or; - The plaintiff cannot show unreasonable conduct on the part of the defendant. - This is a complete defense and bars recovery of plaintiff if raised successfully **Primary Assumption of Risk**: - **No Duty Owed or affirmative duty to warn**: The defendant owes no duty of care for inherent risks in an activity. In these cases, plaintiff has made no express agreement to release the defendant from future liability **but is presumed to have consented to such a release because he has voluntarily participated in a "particular activity or situation" which involves inherent and well known risks.** - **"The risks are so foreseeable yet the plaintiff participated and was injured anyways, that it becomes a superseding event that defendant does not owe a duty to because it is unforeseeable."** - **Example**: A participant in a contact sport like football assumes the risk of minor injuries. - **Defeats duty and or proximate cause** **Secondary Assumption of Risk**: - **Duty of Care Exists**: The defendant owes a duty of care, but the plaintiff knowingly encounters a risk created by the defendant's negligence. - **Most common law courts now agree that the plaintiff conduct involved in these cases is nothing more and nothing less than contributory negligence** - **Example**: A customer notices a wet floor sign but chooses to walk on the slippery surface. - **This is the situation where the both plaintiff and Defendant was negligent** **Murray v. Ramada Inn** - Unpreventable risk, no duty to prevent the unpreventable - Arguably no breach if comparative **VI. Legal Implications in Different Jurisdictions** - **Contributory Negligence Jurisdictions**: - If assumption of risk is proven, it acts as a complete defense, barring any recovery by the plaintiff. - **Comparative Negligence Jurisdictions**: - Assumption of risk may reduce the plaintiff's recovery proportionally based on their share of fault. **VII. Defenses to Assumption of Risk** - **Lack of Knowledge**: Plaintiff was unaware of the specific risks involved in the activity. - **Involuntariness**: Plaintiff did not willingly accept the risk (e.g., due to coercion or lack of alternatives). - **Risks Outside the Scope**: The risks encountered were beyond what the plaintiff implicitly or explicitly agreed to. **VIII. Application in Case Law** - **Sports and Recreational Activities**: - **Example**: Participants in activities like skiing or skydiving typically assume inherent risks. - **Medical Procedures**: - Patients may sign waivers acknowledging risks associated with surgery. - **Commercial and Recreational Waivers**: - **Example**: A gym membership agreement may include a waiver for injuries sustained while using gym equipment. **IX. Limitations and Exceptions** - **Public Policy Concerns**: - Courts may void waivers if they involve essential services or significant public interest. - Exculpatory clauses may not be enforceable when there is gross negligence, willful misconduct, or intentional harm by the defendant. - **Minors and Capacity**: - Minors or individuals lacking capacity may not be able to validly waive their rights through express assumption of risk agreements. **X. Courts now conclude that assumption of risk is broken into three parts:** - Express assumption of risk - No duty or limited duty situations - A form of contributory negligence **Statute of Limitations (Affirmative Defense) Complete Defense** **Statute of Limitations starts to accrue when it is legally COGNIZABLE** - **Tennessee SOL Tort Contract**: That the gravamen (weight) of the action rather than its designation as an action for tort or contract, determines the applicable statute of limitations - **Tennessee PI (Negligent) has a SOL of 1 year unless Crim charges also filed then 2 years** - **Injury of Real Property 3 Years** - **Fraud and Misrepresentation 3 Years** - **Breach of Contract 6 Years** - **6 Principal Rationales** (Mostly to the benefit of defendants) **Discovery Rule** Many courts, in order to prevent harsh results, read a discovery rule into a statute of limitations, thus a discovery rule may postpone the commencement of the limitation period **until the claimant actually knows or reasonably should know of the existence of the CLAIM but also knowledge of facts that would support that CLAIM** **Elements of the Discovery Rule** - **Statute of Limitations** begins to run when the plaintiff knows or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility that each of the three elements exists \(1) Occurrence of the harm \(3) The identity of the person committing the wrongful act. **Court's discretion on how detailed the claimant's knowledge of each of the elements must be for the discovery rule to be satisfied** **In Gaston v. Parsons** **Informed Consent and Negligent Surgical performance began accruing against the plaintiff at different times.** - **Informed Consent** - **Factual Basis Difference**: A defendant did not warn a plaintiff before surgery of certain risks and that, regardless of what degree of care was exercised by the defendant, the plaintiff was harmed because, with more complete information, he or she would not have consented to the surgery - **Legal Difference**: Concerns a plaintiff's right to control what is done to his or her body - **Negligent Surgical Performance** - **Factual Basis Difference**: A Negligent surgery claim is based on a defendant's failure to exercise the appropriate degree of care in the performance of surgery, regardless of the risks of which the plaintiff has been warned. - **Legal Difference**: Concerns a plaintiff's right to be free from physical harm resulting from negligence in the performance of surgery **In [Berry v. Branner]** - Statute of Limitations does not begin to run until the plaintiff can "reasonably be expected to have knowledge of ***any*** wrong inflicted. - **An objective test, the inquiry will concern what a plaintiff should have known in the exercise of reasonable care to when the accrual begins a question of fact for the jury** - *More than a mere suspicion* **Harm is legally cognizable when there is:** \(1) harm, \(2) causation, \(3) tortious conduct \(4) Defendant is known **[4 Immunities]** Charitable, Spousal, Parental, and Governmental **When there is a possibility of Immunity and when there is immunity, it is a complete defense** **Interfamilial Immunities** - **Spousal Immunity:** (Delaware and Hawaii) (**Majority says no one sided spousal immunity so suit can be brought**) - **Child care Immunity:** Tennessee case law extends parental immunity to acts constituting the exercise of parenting -- e.g., would not include immunity for negligence while driving - **If it is inherent to "Parenting" (Constitutional right to care, custody, and control of their children) then children cannot sue, however negligence can be sued for by the child\ ** - **Other Families** - ABSOLUTELY SUE UNCLE GEORGE - **30 States in the US have filial support law,** (If there was debt from parents, the kids now inherit that debt) **Majority** **Charitable Organization Immunities** - Can sue the charitable organization but not the employee/volunteers - Questionable now because charitable organizations began to obtain insurances - Federal Volunteer Protection Act of 1997 limits liability for N to government and charitable volunteers, with exceptions for: - Gross N, willful and criminal conduct, reckless misconduct - Charitable organizations generally had immunity to negligence but not for intentional torts such as fraudulent concealment - Church obtaining liability insurance did not waive immunity because policy did not cover intentional acts of abuse - Tennessee judiciary maintains a limited charitable immunities, depends on the case **Governmental Immunity** **Functions of Government** +-----------------------+-----------------------+-----------------------+ | **Governmental (What | **Proprietary (What | **Ministerial (Day to | | the government does | the government does | Day Management)** | | for the common | to make Money)** | | | good)** | | | +=======================+=======================+=======================+ | Ex: Zoning Ordinance | Ex. Sale of Water to | Ex. Police Department | | or Restaurant | residents or charging | hiring and benefits | | Inspection | fee for public | administration, | | | parking | recording deeds, | | | | registering voters | +-----------------------+-----------------------+-----------------------+ | **For the Public | **Action Similar to a | **Administrative** | | Good** | private enterprise, | | | | business, | | | | corporation** | | +-----------------------+-----------------------+-----------------------+ | Exercise of police | Similar to a business | | | power for public | "proprietor" | | | health, safety, and | | | | welfare | | | +-----------------------+-----------------------+-----------------------+ | Sovereign immunity | Sovereign immunity | Sovereign immunity | | may apply | waived | waived | | | | | | | Can be sued | Can be sued | +-----------------------+-----------------------+-----------------------+ - **Discretionary Function Exception: The questions to ask** - Does the actor have legal authority to decide/choose? - If the actor have the legal authority to decide then... - Did Legislature intend to protect/immunize the government actor's decision as a discretionary function? - If it is intended to protect/immunize the government actor's decision as a discretionary function then immunity is not waived - If there is goal to protect planning and public policy for the people - Then Immunity is not waived - **Feres Doctrine** - Can military personnel sue the government for negligence act of the U.S.A? - **Answer: No** - 1950 USSC case **precluding government liability** in tort under the FTCA for injuries to active-duty military personnel - Most litigation seeking to bypass or pierce the doctrine relates to medical malpractice -- should the VA be protected? - **Government carves out an exception allowing for medical malpractice claims (National Defense Authorization Act of 2020)** - Technically under the Feres Doctrine, people not affiliated with the military (ex. Dependents, retires, civilian employees and unaffiliated civilians) can sue for the military member **Qualified Immunity** - Limited Immunity, complex and statutory - Treatment of qualified immunity for Law enforcement in particular, varies according to civil rights claim against them **Official Immunity** Actors acting within their official capacity enjoy near absolute immunity from criminal and civil liability - Presidents - Claims may be tolled after the presidency if the claim is not within their official capacity - Jury decides whether something is within the scope of their official capacity - Legislators - Judges - Presidents **[Chapter 1]** **[Culpability Spectrum]** - Modern concept of fault has expanded to beyond personal moral culpability to include notions of social fault. - Social Fault- societal standards of reasonable conduct. - Fault/negligence is based primarily on "**social fault**" instead of personal moral shortcoming, that is, a defendant's conduct is measured against the conduct of what a reasonable person would have done in the circumstances **Strict Liability** -Just merely showing causation between the activity and the harm. Strict Liability \< Negligence \< Recklessness \< Intentional Misconduct The Spectrum moves to the right, the more difficult it is to establish a successful claim. - Intentional torts and recklessness require proof of mental states of mind by the defendant the levels of willfulness must prove a purpose or desire to invade the protected interest of another - Recklessness requires a showing of conscious disregard of a high degree of risk or injury. - Negligence premised on a standard of what a reasonable person's conduct would have been under the circumstances and breach of standard is proven without reference to the defendant's mental state. OBJECTIVE Reasonable person standard - Strict liability standard has no culpability requirement, proof of causation between the activity and harm **[Intentional Harm: Intentional Torts]** **[Unintended Harm]** 1. Negligence 2. Recklessness 3. Strict Liability **Function and Goals of Negligence Law** - Potential victim -- Interested in compensation for harms - Potential Injurer -- Concerned with his or her freedom to engage in person and business activities without facing potential liability for harm arising out of those activities. - Overall Society's interest is to create a proper balance between liability and unacceptable risks of injury and furthering economic development and productivity. **Balancing Test in court** Nature and Gravity of the Harm to the Plaintiff versus Defendant's burden to prevent harm; utility of the Defendant's conduct Five Functions and Goals of Negligence Law 1. Deterrence and Accident Prevention a. If there is compensation there should also be financial deterrence 2. Compensation b. Lost earnings and future earning capacity should be compensated c. Medical care, earning losses, pain and suffering, loss of enjoyment of life, and inability to maintain family relationships 3. Avoidance of Undue Burdens on Economic Activities d. Accident Law should not unnecessarily or unduly burden economically productive endeavors 4. Effective and Efficient Legal Process e. 5. Fairness **[Chapter 9: Public and Private Nuisance]** Public and Private Nuisance - Not part of the culpability spectrum - Nuisance per se is to be proven if criminal statute is involved - Social value of defendants's conduct - Suitability of conduct to the local, How appropriate is the conduct there - Defendant proves the utility of the elements contended in the private nuisance claim **[Land-related claims]** Trespass- an intentional encroachment on the exclusive property interest of another - Intent is needed Private Nuisance - substantial and unreasonable interference with another's use and enjoyment of land **Exception**: Natural Animals or things out of control Present suit of private nuisance can be brought - Intent is not needed - Tangible intrusion is not needed - Unreasonable interference is a subrule, determined by balancing test where the gravity and nature of the harm to Plaintiff outweighs the utility of Defendant's conduct and the burden to ameliorate the harm - Utility is determined by factors including the social value of Defendant's conduct and its appropriateness to the locale. - Weigh Plaintiff's gravity of harm with the Defendant's Utility and Burden - Is it within the defendant's control? (Alligator Case) - An Actionable Nuisance means you can file a claim - Action vs. Omission (Failure to Act) **[Public Nuisance]** - **Unreasonable interference with a right common to the general public** - Common Law Tort stated in Restatement (2d) of Torts 821B: - Interference with the legally protected interests of the community at large (public health, safety, morals, peace, comfort, and convenience) - Keeping diseased animals, pond breeding mosquitos, improper storage of explosives, residential fireworks, indecent exposure, loud music, dust and smoke, obstructing navigable stream **Standing to sue for public nuisance** - Need to prove that you were harmed in some way more particularly compared to the public if you file as a single plaintiff - Public Nuisance had criminal law origins in 12^th^ century England - Keep in mind, that it still has to be in control **[United States v. Causby ]** - Plane case where the U.S. determined the skies above Causby's land to be federal air space. - "cujus est solum, ejus est usque ad coelum et ad infernos," **[Nuisance Examples]**: - Loud parties, noise, generators, floodlights, dusts, fracking causing earthquakes, confederate flags flown from rooftops, **Inter vivos Gift** "Between the living gifts." 1. For a gift to be legally effective to transfer ownership a. Donative intent by the donor b. Donor must deliver the object of the gift i. Constructive or Symbolic delivery will suffice c. Donee must accept the object of the gift **[Terms]** **Survival Actions is** a typybgte of personal injury claim that seeks compensation for injuries sustained by a victim who dies from the injuries caused by another party. Survival actions differ from wrongful death claims, which focus on the losses suffered by the deceased\'s surviving loved ones. **Wrongful death** is a civil lawsuit filed by a deceased person\'s family or dependents against a person or entity responsible for the death. The goal of a wrongful death claim is to hold the responsible party accountable and compensate the survivors for their financial and emotional losses. A. **Direct Consequences Test (DO NOT USE)** a. A person is liable for all direct consequences of their wrongful act, even if they could not have foreseen them. This is because consequences that directly follow a wrongful act are not considered too remote. b. **Not commonly used in courts now** B. **Foresight Test (DO NOT USE)** c. Sets the limit of liability based on the risks that made conduct unreasonable (negligent) in the first place d. The core idea is that a defendant is liable for the consequences of their actions only if those consequences were reasonably foreseeable at the time of the act or omission. **If the harm is too remote or unexpected, the defendant may not be held liable because the harm was not within the scope of foreseeable risk.** C. **Whether a scope of liability issue exist? (DO NOT USE)** e. Is there an arguably unforeseeable plaintiff? f. Are there arguably unforeseeable consequences? g. Is there arguably intervening conduct? **Intentional Torts** Difference between Negligence and Intentional Torts - Punitive damages are allowed - Consent is a defense

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