Torts Outline PDF

1. Garratt v. Dailey (five-year-old kid pulled chair from under older woman and sat in it, causing the woman to fall on the ground as she sat down) a. Trial court initially ruled for Dailey because they did not think he acted with intention b. Shows different kinds of intent...

1. Garratt v. Dailey (five-year-old kid pulled chair from under older woman and sat in it, causing the woman to fall on the ground as she sat down) a. Trial court initially ruled for Dailey because they did not think he acted with intention b. Shows different kinds of intent c. A minor may be held liable for battery if he acted intentionally, with knowledge that actions would be substantially certain in causing a harmful or offensive contact to another person d. If not substantially certain -> negligence 2. United States v. Carroll Towing (Barge loaded with flour had been chartered to PA railroad co. by Connors Co. Connors Co. was supposed to provide a bargee from 8am-4pm. Carroll Towing owned the tugboat whose servants negligently shifted the barge’s mooring lines, which caused her to break free from the pier. She drifted against a tanker that poked a hole in her bottom. She careened and dumped out the flour. No bargee was aboard to notice she was leaking) a. Hand Formula: Owner’s duty to provide against resulting injuries is a function of 3 variables i. Probability that she’ll break away (p) ii. Gravity of any resulting injury (l) iii. Burden of adequate precautions (b) iv. If b < (l)(p) -> duty 3. Daubert v. Merrell Dow Pharmaceuticals (2 minors sued D for limb reduction birth defects that they alleged came from their mothers taking Bendectin, a drug prescribed for morning sickness to 17.5mm women 1957-1982) a. Two-part analysis: trial court judge is the gatekeeper and decides before expert testifies i. Whether expert’s testimony (pre-trial statements) reflects “scientific knowledge,” whether findings are “derived by scientific method,” and whether it amounts to “good science” ii. Whether proposed expert testimony logically advances a material aspect of proposing party’s case – fit requirement b. Here, none of the experts based testimony on preexisting or independent research conducted prior to being hired to testify. None of the research was published or peer reviewed. c. Plaintiffs didn’t show causation and present circumstantial proof of causation, no statistical proof. 4. Summers v. Tice (P and Ds were members of a hunting party. Both Ds negligently fired at the same time at a quail in P’s direction. P was struck in the eye with the shots from the shotgun, so there was no evidence as to which D shot P) a. Each is liable for the resulting injury, although no one can say definitely who actually shot him. To hold otherwise would be to exonerate both from liability. Both acted negligently, which resulted in the injury b. You’re both liable – figure it out amongst themselves 5. Palsgraf v. Long Island R.R. Co. (P was standing on a train platform going to Rockaway Beach. Train came through and 2 men rushed to catch it before it left. One got on fine, but the other jumped, and guards had to help him on. The man dropped a small package wrapped in newspaper. Package fell on the tracks and exploded. The shock threw some wooden scales at the other end of the platform onto the ground, where they struck P) a. Guard not liable b/c there’s no way anyone could know that the package contained  fireworks, and the guard’s action was reasonable given his level of knowledge. Guard did not have a duty to her if he did not know what it was. She could have claimed that it was an invasion of a legally protected interest, but it was not a battery. b. Andrews: not liable because too remote c. Cardozo: there’s a general duty to exercise care to people who are likely to be injured i. No proximate cause ii. Very similar, likely the same result 6. Tarasoff v. Regents of University of California (Poddar was a patient of Dr. Moore at Cowell Memorial Hospital of the University of California. Dr. Moore learned that Poddar intended to kill Tatiana Tarasoff because she’d rejected his romantic advances. Dr. Moore had campus police detain him at the hospital, but final decision was to release him because he was not a threat. 2 months later, he shot and stabbed Tatiana to death) a. In cases where D has a special relationship to either the person whose conduct must be controlled or in a relationship to the foreseeable victim of that conduct, there is a duty to warn or control the conduct b. Doctors must exert reasonable care to protect foreseeable victims c. No privilege of doctor-patient confidentiality if there’s a real danger to others 7. Exxon Shipping Co. v. Baker (Drunk captain crashed into Alaska. Spilled millions of gallons of crude oil) a. Award should have been limited to an amount equal to the compensatory damages; penalty should be reasonably predictable and peg punitive to compensatory damages using a reasonable ratio b. Should mitigate damages (limits damages owed) 8. Rylands v. Fletcher (D owned mill and built reservoir on nearby land to supply it with water. P worked coal mines nearby. D’s engineers found shafts, but thought they were from the old mine and filled with dirt. After construction was completed, and the reservoir was filled with water, the shafts gave way, and water flooded P’s mine) a. People who bring on their lands anything likely to do mischief if it escapes must keep it in at their peril, and if they don’t, are answerable for all damages that are the natural consequence of the mischief’s escape 9. Mascary v. Boston Elevated Ry. Co. (P was going down flight of stairs and slipped and fell on banana peel. Black as tar. D owned and controlled stairway, but was open to the public) a. D was not negligent b/c public place, and anyone could have dropped it (Goddard) b. Not inconsistent with Anjou 10. Akiona v. United States (Man through grenade in parking lot of a club. Grenade was a part of a shipment to HI during Vietnam War, and government lost records of the shipment b/c of a government policy about destroying records after 2 years. P maintained that govt was negligent but there was no direct evidence of their negligence/if they maintained possession of grenade after shipment) a. No proof that government had exclusive control over grenade so inference of negligence under res ipsa loquitur cannot apply b. Govt made no error in destroying records, and it had been 20 years since shipment. 11. Jenkins v. Arkansas Power & Light Co. (P dove headfirst into Lake Hamilton, AR and hit a submerged island. He had been there previously and taken out a pontoon boat in what he’d thought was sufficiently deep water, but no one had actually checked the depth. D owns lake. Lake is a reservoir operated by FERC and created for purpose of producing hydroelectric power. Submerged island was located about 400 yards from nearest shoreline. Witness Tom Gibbons owned a home on the lake and had seen numerous boats hit the island. Reached out to APL about marking island. Sheriff’s dept had marked it a couple times before with an APL rep, but the buoys disappeared. APL never responded to Gibbons or did anything to mark the area. After the accident, Gibbons planted 2 trees on the island, placed buoys, and a metal warning sign to keep people away) a. There is an obvious danger associated with diving without checking depth, making the shallow area not ultrahazardous; not foreseeable that someone would dive in without checking, so failure to warn was negligent at most (not malicious 12. Restatement § 402A a. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability of physical harm thereby caused to the ultimate user or consumer or to his physical property if i. The seller is engaged in the business of selling such a product and ii. It is expected to and does reach the user of consumer without substantial change in the condition in which it is sold b. The rule stated applies although i. The seller has exercised all possible care in the preparation and sale of his product, and ii. The user or consumer has not brought the product from or entered into any contractual relation with the seller Is there a tort? Privilege/ Immunity/Defense Exception? Damages? Elements of fire: o Heat o Fuel o Oxygen Animals cannot have intent Put appendages in a bag and then on ice! Multiple lines of defense Don’t leave the bar to watch a fight If you go to homecoming, bring your spouse or act like they’re there There’s money in eyes! Never have a deposition near the evidence Overview A. Theories of Liability: Intentional Torts; Negligence; Strict Liability Tort: civil wrong, other than breach of contract, for which the law provides a remedy o Purpose: ▪ Provide a peaceful means for adjusting rights of parties who might otherwise take law into their own hands ▪ Deter wrongful conduct ▪ Encourage socially responsible behavior ▪ Restore injured parties to their original condition by compensating them for their injury ▪ Vindicate individual rights of redress Three possible bases of tort liability: o Intentional torts, negligence, strict liability Intentional Torts Can have multiple Intentional Tort: a tort that requires an intentional act types of intent Types of Intent: 1. General: To do something with substantial certainty that a set of circumstances will occur 2. Specific: To act with purpose of bringing about one or more elements of a tort 3. Transferred: When a party intends to commit an intentional tort against someone but instead commits a different intentional tort against that person, the same tort against another person, or a different tort against different person a. Applies to 5 torts: battery, assault, trespass to land, trespass to chattel, false imprisonment (Talmage) Intentional Torts: 1. Battery a. Elements: 1) Intent; 2) Harmful or offensive touching b. Contact must be harmful or offensive to a reasonable person (Wallace); contact can also be to a thing attached to a person (Fisher); least touching of another in anger (Cole) c. Crowded World: we live in a crowded world, and you should expect some level of inordinate contact 2. Assault a. Elements: 1) intent; 2) apprehension of harmful or offensive touching; 3) apparent ability that one can effectuate the harm (Example: Sleeping Beauty) b. c. Rule of Turnips (Telegraph) 3. False Imprisonment a. Elements: 1) intent; 2) confinement; 3) knowledge of confinement OR caused harm by confinement; 4) P did not consent and not otherwise privileged b. No false imprisonment if one exit is blocked, and there are known other exits; must have no reasonable or apparent means to escape; threats of future action is not sufficient c. DEFENSE: Shopkeeper’s Privilege – person who reasonably believes another person is stealing property may detain that person in a reasonable manner for a reasonable amount of time (Bonkowski) 4. Trespass to Land a. Elements: 1) Intent; 2) unlawful entry onto another’s property (leaving something or remaining there) 5. Trespass to Chattels a. Elements: Person who meddles with chattel of someone else is liable for trespass if 1) chattel is damaged, 2) possessor deprived of its use for a reasonable amount of time, OR 3) bodily harm caused to the possessor 6. Conversion: Intentional assertion of dominion over the property of another a. Elements: 1) Intent; 2) To exercise dominion or control over a chattel which 3) So seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel i. Example: Scientology – paper was converted ii. Factors: 1. Extent and duration of actor’s control 2. Actor’s intent to assert a right inconsistent when other’s right of control 3. Actor’s good faith 4. Extent and duration of resulting interference with other’s right of control  5. Harm done to chattel 6. Inconvenient and expense caused to the other iii. Ways someone may convert chattel 1. Acquiring (stealing) 2. Damaging or altering (running an animal over and killing it) 3. Using it 4. Receiving it (obtaining after a purchase from a thief) 5. Disposing of it (wrongfully selling) 6. Misdelivering it (wrong delivery by mistake so chattel is lost) 7. Refusing to surrender Privileges 1. A special benefit provided to an individual that exempts one’s conduct from liability for damages. 2. Immunity from defendants’ position, status, etc. → cases will use terms interchangeably 3. Consent: defense to a claim of intentional harm based on victim’s voluntary exposure by words or conduct to invasive or offensive contact (can be informed by cultural norms) a. Consent obtained fraudulently is not valid consent b. Fraud on a collateral matter does not undo consent (hooking up w/ someone b/c you think they’re someone else – you still consented to the action) c. Medical care providers may act in the absence of express consent if i. the patient is unable to give consent (unconscious, intoxicated, mentally ill, incompetent) ii. there is a risk of seriously bodily harm if treatment is delayed iii. a reasonable person would consent to treatment under the circumstances iv. physician has no reason to believe this patient would refuse treatment under the circumstances 4. Self-Defense: A person may defend themselves if threatened and reasonably believes that force is necessary to protect against harm, even if there’s no necessity; if threat is no longer imminent, privilege terminates a. No retaliation allowed, ever b. Verbal threats ≠ justify self-defense/battery c. Retreat before use of deadly force: i. Depends on state law ii. Defendant must have reasonable apprehension of loss of life or great bodily injury (generally, burden of proof on defendant) iii. Retreat before use of deadly force (British view) iv. Stand your ground or retreat (majority = dignity with stand ground) d. Injury to third party: Privilege of self-defense carries over and defendant not held liable in absence of some negligence 5. Defense of Others: Recognized for the defense of third parties (family members, household) a. Limited by use of reasonable force b. Reasonable mistake holds that if a person who steps into defend another, self-defense privilege holds (split) 6. Defense of Property: A person is allowed to take reasonable steps to defend their property under certain circumstances a. May not use deadly force; must request that person stop what they’re doing; cannot use force if lawful option is available 7. Recovery of Property: May use force to recover; Self-help limited because it leads to vigilantism; Limited to force reasonable under the circumstances a. Fresh Pursuit: Person trying to recover property has right to use force unless there is a lapse of time  i. Force not justified until a demand has been made for the return of the property (within reason… no danger) b. Shopkeeper’s Privilege 8. Necessity: a. Public: principal of common law; if something is destroyed out of public necessity, no liability (no compensation) b. Private: in an emergency, a person may do what is needed in the moment, but person liable for any damages 9. Authority of Law: Privilege that extends when one engages in conduct that normally would be tortious a. Arrest may be made with or without warrant i. With a warrant: officer only liable if he acts improperly (act in good faith) ii. Without a warrant: can be officer or private citizen 1. Officer must have reasonable grounds for felony; if they’re wrong, full risk is on them (fresh pursuit); Still subject to liability if excessive force was used 10. Discipline a. Parent/child: necessity of orderly discipline gives persons who have the control of others the privilege of exercising reasonable force and restraint upon them i. Covers those who are temporarily responsible for children (Amount of acceptable force is less than what a parent would use) ii. Factors: 1. Age, sex, condition of child 2. Nature of child’s offense and apparent motive 3. Influence of child’s conduct 4. Whether force is reasonably necessary and proportionate to the harm iii. In school, teachers fall under this if they need to maintain order in their classroom; corporeal punishment governed by statutes b. Military/naval officers over subordinates → must be reasonable force given the circumstances 11. Justification: affirmative defense bars P’s claim for damages b/c D was permitted to engage in alleged unlawful conduct; deprogramming! Negligence A. History & Elements 1. Negligence: conduct that falls below the expected standard of care that a reasonable person would have exercised under all the circumstances. a. Elements: i. Duty: obligation to use reasonable care 1. General duty Sometimes #3 is broken into 2. Landowner two separate elements; a. Common law Negligent Behavior is just b. CA law duty/breach c. Exceptions 3. Professional Malpractice a. Standard of care ii. Breach of duty: failure to conform to required standard 1. Whether a duty is owed = question of law for courts to decide 2. Whether a duty was breached = question for jury to decide iii. Causation: 1. Causation in fact 2. Legal or “proximate” causation  iv. Damages: actual loss resulting to interests of another 2. Foreseeability – action or results that are certain/ substantially certain to occur → Primary factors to consider: 1) foreseeable likelihood that person’s conduct will result in harm; 2) the foreseeability that any harm may ensue; 3) the burden of precautions to eliminate or reduce the risk of harm (Hand Formula) 3. Standard of Care: The degree of care required of an individual is that of the Reasonable Prudent Person (objective standard) a. Children: i. Held to the standard of reasonable ordinary children (age, intelligence, experience) ii. If engaging in adult activities, held to the adult standard of care b. Those with disabilities: Person with disability held to the same standard as people with that disability c. Professionals: Held to the same standard of people in that profession (objective test) i. Knowledge, training and skill of an ordinary person in that profession; expert testimony may be required ii. Pharmacists – have duty to warn, but standard is still evolving iii. Standard modified for those who claim they’re specialists iv. Professional providing services pro bono held to similar standard as those who are paid v. Locality Rule: no longer in effect; doctors used be held to different standards of care, depending on their region (now, national standard) d. Drivers: ordinary duty of care to passengers e. uest Statutes: driver has lower duty to refrain from gross or willful misconduct (minority) f. Innkeepers: higher standard of care to passengers and guests g. Emergency Doctrine: lower standard of care owed to others in an emergency; reasonable person would do in the circumstances (cannot be emergency of your own making) h. Affirmative duty to act: generally, no duty unless you have a relationship with that person i. Legal Services: j. Not legal malpractice to fail to advocate for or to anticipate a substantial change in law requiring an overruling of controlling precedent ii. 3 areas where attorney’s conduct may be questioned 1. Possession of knowledge or skill: not expected to know everything just what an ordinary member of the profession does 2. Exercise of best judgment: must be discerning, can be wrong 3. Use of due care: involves professional’s use of due care in the application of the professional’s skill and knowledge iii. P must show they would’ve won if not for attorney’s screw up (causation) 4. Customary Practices a. Violation of: Expert witness must testify that he wouldn’t personally follow D’s practice and that the practice did not conform with the standard of care of an ordinary member of the profession i. Proof that a professional violated the standard of care usually requires expert testimony because negligence wouldn’t be common knowledge to lay jurors 1. All areas (malpractice across professions) ordinary level of profession b. Compliance with: Evidence as to customary practice is admissible and may prove influential 5. Medical Malpractice Crisis and Statutory Change in Common Law a. Late 1970s, mid 80s, and early 00s → sharp increase in malpractice cases and price of insurance went up/became unavailable b. State legislatures responded but actual impact hard to determine i. Result of lobbying, economics of insurance industry ii. Supreme courts have found some unconstitutional though some are still in place 6. Informed Consent: understanding a decision based on adequate information about treatment  a. If physician breaches this duty, patient’s consent is defective, and physician is responsible for the consequences b. Elements: i. Physician failed to inform patient adequately of a material risk before securing his consent to the proposed treatment ii. If he had been informed of the risks, he would not have consented to the treatment iii. The adverse consequences that were not made known did in fact occur and he was injured as a result of submitting to the treatment iv. Exceptions: 1. Risks ought to be known or are known 2. Full disclosure would be detrimental to patient’s total care (emotionally upset) 3. Emergency where patient cannot consent to treatment 7. Aggravated Negligence: a. Degrees of care: care required by standard of the reasonable person will vary according to the risk; some argue no degrees, just that care required is always the same under the traditional “reasonable person under like circumstances” b. Degrees of negligence: broke different conduct down into three types – slight, ordinary, and gross (a fool, a damned fool, and a goddamned fool) → largely discredited now c. Willful, Wanton, and Reckless Conduct: distinction made by some courts based on defendant’s state of mind i. Intermediate class between negligence and international torts ii. Consists of a deliberate and conscious disregard for a known high degree of probability of harm to another iii. Level for punitive damages in many jurisdiction d. Automobile Guest Statutes i. Driver of a care liable only for some form of aggravated misconduct to passenger ii. Legacy: each state’s definition of aggravated negligence and recreational use statute, which today most often arises when juries decide whether to award punitive damages iii. Originated in Massaletti v. Fitzroy 1. Relationship between bailee and bailor (Gratuitous bailor watching stuff for free → no duty to care b/c not getting paid) iv. Courts did not like guest statutes b/c as time went on, getting a ride wasn’t a big deal e. Recreational Use Statute: if you open up your land for free use to the public → you owe a lesser duty to those who come on it 8. Negligence per se: Omission or failure to perform and act required by statute a. Statute/regulation sets fixed standard of care and creates duty b. Test: whether P belongs to that class that statute was designed to protect and whether P’s injury is one that the statute was designed to protect c. Exception: not negligent if there’s a valid excuse for the violation 9. Proof of Negligence a. Negligence shown by: i. Direct Evidence: someone sees what happens ii. Circumstantial Evidence: 1. Can show actual notice if email said as I told you yesterday at 3pm, there’s a bunch of milk split in aisle 6 iii. Res Ipsa Loquitur 1. Can infer 2. Example: ear biting case b. How plaintiff wins: i. Direct evidence ii. Actual notice  iii. Constructive notice (known or should have known) 10. Res Ipsa Loquitur “the thing speaks for itself” a. Such events don’t normally occur unless someone has been negligent b. Basis of conclusion = general knowledge c. Test: Prove i. Actual or constructive knowledge of a condition on the premises ii. Condition posed unreasonable risk of harm iii. Didn’t exercise reasonable care to reduce or eliminate risk iv. Failure to do so proximately caused injury d. When evidence gives rise to multiple reasonable inferences, the jury can choose which inference is the most probable i. Warrants inference of negligence which jury may draw or not as their judgment dictates (most cases) ii. Raises a presumption of negligence which requires the jury to find negligence if defendant does not produce evidence sufficient to rebut the presumption iii. It not only raises such a presumption but also shifts the ultimate burden of proof to defendant and requires him to probe by a preponderance of all the evidence that the injury was not caused by his negligence B. Causation in Fact 1. Causation in Fact: a. Cause in fact: event would not have occurred but for the conduct b. Sin Qua Non: A thing that is absolutely necessary for the event to occur “without which there would be nothing” c. Post Hoc ergo Propter Hoc “after the fact, therefore because of the fact” (logical fallacy; correlation ≠ causation) 2. Expert Testimony Standards (Daubert): Two Prong Analysis → trial court judge is the gatekeeper a. Whether expert’s testimony (pre-trial statements) reflects “scientific knowledge,” whether findings are “derived by scientific method,” and whether it amounts to “good science” b. Whether proposed expert testimony logically advances a material aspect of proposing party’s case – fit requirement 3. Concurrent Causes: where separate negligent acts combine to produce a single injury (each tortfeasor is fully responsible) 4. Alternative Liability Doctrine: when there’s a problem determining which party caused the harm, both are liable (Summers v. Tice) Sine Qua Non (but-for causation) Perkins v. Texas and New Orleans R. Co. (Accident where driver could not see if there was a train coming because of a 500 ft. long warehouse that blocked his view. There was an automatic signal device, stop sign and railroad stop sign. Train had headlights, bells, and whistles. Brakeman and foreman knew of the obstruction and immediately warned engineer when they saw the car on the tracks. Engineer pulled emergency break, but train was going 37 mph in a 25- mph zone and still would have hit the car) o Unlocked lock o Burning man – dog jumped into hot springs; need better fence, not better signs b/c dogs cannot read o Excessive speed of the train was not the cause in fact of the fatal collision o If P fails to prove that negligence of D was a substantial factor in the accident, then the defendant cannot be held responsible C. Proximate Cause 1. Proximate cause: A crime or act of negligence that is so linked to the resulting injury that the law considers it the legal cause of the injury, even if the injury would not have occurred by for some other event. The determination of whether legal liability should be imposed where cause in fact has been established a. Policy decision made by legislature or courts 2. Unforeseen consequences: a. Eggshell Skull Doctrine: D must take P as he finds him; D may be held liable for aggravation of pre- existing condition b. Foreseeability: if a reasonably man would have realized or foreseen and prevented the risk → D liable c. Reasonably Foreseeable: to determine a natural and continuous sequence between cause and effect: i. Substantial factor in producing event ii. Direct connection, without too many intervening causes iii. Cause likely to produce result? iv. Is it too remote (in time and space)? 3. Intervening Causes: a. Intervening act may not relieve actor of liability where the risk of the intervening act is the same risk which renders the actor negligent b. Intervening act will not breach the causal link if it was reasonably foreseeable c. Criminal acts of a third party will break the causal chain 4. Rescue Doctrine: allows injured rescuer to sue party which caused danger in the first place a. Informs tortfeasor that it’s foreseeable that a rescuer will come to the aid of injured party i. Tortfeasor owes rescuer similar duty b. Negates presumption that rescuer assumed risk of injury when he knowingly undertook the dangerous rescue (so long as he doesn’t act rashly or recklessly) c. To achieve rescuer status, demonstrate as follows: i. Defendant was negligent to the person rescued and negligence caused danger or appearance of danger to rescuer ii. Danger or appearance of danger was imminent iii. Reasonably prudent person would have concluded danger or appearance of danger existed iv. Rescuer acted with reasonable care when rescuing d. Firefighter Doctrine: Bars suits under rescue doctrine when firefighters, policeman, etc. act within the scope of their employment D. Duty of Care 1. When one person is placed in a position with regard to another that every reasonable person would recognize that if he did not use ordinary care, he would cause danger of injury to the person or property of another, a duty arises to use ordinary care to avoid such danger a. Privity of Contract: in a contract with someone i. Nonfeasance: when you make a promise and don’t do it → not liable/no duty ii. Misfeasance: when you make a promise and do it badly → liable/duty b. Special Relationships: duty imposed when there normally would not be one i. Employer/employee; innkeeper/guest; carrier/passenger; owner/invitee; landlord/tenant c. Pure Economic Loss: when harm is pure economic loss, courts take more seriously claim that liability should be restricted d. Emotional Distress: where a definite and objective physical injury is produced as the result of economic distress proximately caused by negligent conduct, someone may  recover damages for such physical consequences in the absence of any physical impact on the plaintiff at the time of the mental shock i. Limitations: no recovery for hypersensitivity; burden of proof on plaintiff that harm/illness was the natural result of fright ii. Rule: Someone may recover damages for emotional distress caused by observing the negligently inflicted injury if and only if the person is 1. Closely related to the victim 2. Present at the scene of the injury-producing event 3. As a result, suffers serious emotional distress (beyond what a third party would respond with and not an abnormal response) Damages 1. Overview of Tort-Specific Damages a. Proof of damages = essential part of the plaintiff’s causes of action in negligence and strict liability b. Defendant may be willing to concede liability but will contest amount owed for damages c. Damages calculated the same across different torts d. Money damages most commonly sought 2. Types of damages a. Nominal Damages i. Small sum ($.06-$1) awarded to vindicate rights, make judgment available as a matter of record to prevent the defendant from acquiring prescriptive rights and carry a part of the costs of the action b. Compensatory Damages: Represents the closest possible financial equivalent of the loss or harm suffered (make the plaintiff whole) i. Economic losses 1. Medical expenses: highly variable 2. Lost wages 3. Loss or impairment of future earning capacity 4. Damage Calculation: Present Value 5. Future Inflation 6. Federal Income Tax 7. Interest  ii. Non-economic losses 1. Physical pain and suffering 2. Loss of function or appearance 3. Emotional distress from legal malpractice 4. Litigation-induced stress 5. Loss of enjoyment of life 6. Per-diem argument c. Punitive Damages i. Additional sum, over and above compensation of the plaintiff, awarded to punish defendant, make an example of the defendant, to deter defendant and other from similar tortious activity ii. Not limited, unless by statute or Constitution iii. Tied to compensatory damages; Three guideposts: 1. Degree of reprehensibility 2. Disparity between actual or potential harm and punitive damages awarded 3. Difference between punitive damage award by jury and the civil penalties authorized/imposed in comparable cases d. Equitable Relief: Much less common; P may claim a disgorgement of the unjust enrichment 3. Some underlying themes a. Compensatory damages seek to restore plaintiff to pre-injury status as much as possible b. Jury can only make plaintiff whole again with money c. All damages must be included in one lump sum payment d. Judicial review of jury verdict amounts is limited (usually just in ‘shocks the conscience cases’) e. Punitive damages based on behavior and characteristics of the defendant 4. Collateral Source Rule: Gratuitous or discounted medical services are not to be considered in assessing damages due to a personal injury plaintiff a. Exceptions: i. To rebut P’s testimony that they were compelled by financial necessity to return to work prematurely or to forego additional medical care ii. To show that P attributed condition to some other cause iii. To impeach P’s testimony that he or she had paid his medical expenses iv. To show that P continued to work instead of being out of work 5. Inflation: 3 general methods – SCOTUS has not ruled on preferred method! a. Inflation-discount method: seeks to avoid under-compensation by increasing expected future earnings to account for inflation and then discounting to PV by market interest rate b. Real interest method: assumes real interest rate is stable regardless of level of inflation (between 1-3%) c. Total offset method: assumes as a matter of law that market interest rate is completely offset by inflation in computing lost future income 6. Structured Settlements and Periodic Payment of Judgments a. Traditionally, lump-sum, which is not taxable income, but interest earned on principal is taxable b. Primary advantage of structured settlements is favorable tax treatment (income earned on principal is tax free) 7. Property Damage a. Market value of property is the standard set of value → P can go to open market and replace property by buying other property freely offered for sale i. Highest price that could have been realized ii. If there’s no market at that place, resort to nearest market with allowances made for costs of transportation to and from it iii. Value at the time of the wrong iv. Nominal personal value determined by consideration of whatever factors may be relevant (original cost, use made of it, condition at the time of the wrong) v. Pets – consider training, vet expenses; recovery rooted in pet owner’s feelings is prohibited  b. If property not destroyed or converted → measure is difference in value before and after damage c. Temporary deprivation of use → measure is value of rental value or whatever owner could have obtained in the market by renting it out or the cost of renting similar property for the specified time d. Consequential damage may be recovered of the conversion of the property, or for the harm of it when they are proximately caused Defenses 1. Three types: a. Privileges: avoids liability in certain circumstances – consent, self-defense, defense of others, defense of property, recovery of property, necessity, authority of law, justification b. General Defenses: i. Plaintiff’s conduct: contributory negligence, comparative negligence, assumption of risk ii. Passage of time: statutes of repose and statutes of limitation c. Immunities: bars all claims under which the immunity may apply 2. Contributory Negligence a. If P is negligent → bars claim for recovery if D was negligent, and their negligence brought about the injury b. Objective standard of what a reasonable person would do c. Last Clear Chance Rule: If the D had the chance to avoid the accident last, plaintiff may still recover 3. Joint and Several Liability a. If there are multiple tortfeasors, each one is responsible for the entire amount i. D can seek contribution from other tortfeasors (not available if jdx eliminated joint and several liability b. Indemnity: transfers entire cost to another D i. Mutually exclusive with contribution 4. Comparative Negligence: allows a contributorily negligent plaintiff to recover a percentage of damages a. Types of Comparative Negligence: i. Pure: P’s recovery reduced by percentage fault attributable to P ii. Modified (Plaintiff not as great as): P’s recovery reduced by percentage of fault attributable to P as long as P’s fault is not as great as D’s 1. If greater than or equal → barred from recovery iii. Modified (Plaintiff not greater than): P’s recovery reduced by percentage of fault attributable to P as long as P’s fault not greater than fault of D) 1. If greater than → barred from recovery iv. Slight: SD → P’s negligence slight in comparison with negligence of D; otherwise, barred from recovery 5. Assumption of Risk a. Express: complete defense to negligence; P voluntarily acknowledged they will relieve D of legal duty i. Exculpatory Clause (waiver of liability) b. Implied: arises when victim knowingly and voluntarily participates in activities that carry inherent risk i. Elements: 1) Actual knowledge or risk; 2) Appreciate of magnitude of risk; 3) Voluntarily encountering risk (subjective) 6. Failure to Mitigate a. Before Injury: P’s failure to mitigate before injury should be taken into account unless there’s a statute precluding consideration (not wearing seatbelt) b. After Injury: Doctrine of Avoidable Consequences → no recovery of those damages  allowed if P could have avoided by reasonable conduct on the part of P after a legal wrong has been committed by D 7. Statutes of Repose and Limitations a. Discovery Doctrine: statute of limitations does not being to run until the negligent injury is or should have been discovered b. Ways to toll (stop) statute: age, insanity, fraudulent concealment, military, abroad c. Statute of Repose: repose accrues from the time the produce is made (before cause of action) 8. Immunities a. Family (interspousal, parental – sometimes, mostly gone) b. Charitable: no longer recognized b/c rise of insurance c. Worker’s Comp d. Official i. Public officials have absolute immunity if they’re president, judge, etc. e. Qualified i. Objective: whether D should have known that their act violated constitutional rights f. Sovereign: Rooted in Magna Carta; cannot sue sovereign  i. FTCA 1. Limited waiver of the federal government’s Sovereign Immunity 2. Exclusive Remedy for torts of the U.S. 3. There is an administrative exhaustion requirement 4. There are many procedural hurdles 5. You must be thorough research before taking action ii. Exceptions: 1. Discretionary Function: due care, transmittal of mails, combat, foreign countries, intentional torts a. Two prong analysis: 1) Was the action taken discretionary (“a matter of choice”) → based on an established regulation or statute 2) Was the action grounded in social, economic, and political goals Vicarious Liability 1. A third party is liable for the actions of another even though they played no part in it and may have done all that they could to prevent it 2. Respondeat Superior: Look to the higher up a. Find someone who can pay – reasons the employer out to pay 1) he has control over the business, including the work of the employees; 2) he stands to profit from employee’s services b. Test of Foreseeability: in the context of a particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs for the employers business c. Going and Coming Rule: Employee is outside the scope of employment when commuting to and from work i. Exception: when employee endangers others due to a risk arising from or relating to work d. Slight Deviation Rule: Whether the employee was on a ‘frolic’ or a ‘detour,’ the latter is a deviation that is sufficiently related to the employment to fall within its scope, while the former is the pursuit of the employee’s personal business as a substantial deviation from or an abandonment of the employment i. Factors: 1. Employee’s intent 2. Nature, time, place of deviation 3. Time intent 4. Work for which employee was hired 5. Incidental acts reasonably expected by employer 6. Freedom allowed to employee in performing responsibilities 3. Independent Contractor: those who enter a contract to have work performed are not vicariously responsible for the tortious acts of independent contractors a. Test: Do they control their own schedule 4. Nondelegable Duty: A duty that may not be passed of or assigned to another. When negligently caused harm occurs, the injured party will be compensated by person whose activity caused the harm and who may therefore properly be held liable for the negligence of his agent, whether his agent was an employee or an independent contractor a. Situations where nondelegable duties arise: When a condition involving grave risk of bodily harm to others is created, the duty of landowners to maintain their property in reasonably safe conditions, employers and suppliers to comply with safety provisions, a general contractor to construct a building safely 5. Joint Venture (making D vicariously liable) a. Agreement (express or implied) among members of a group  b. Common purpose c. Community of pecuniary interest in that purpose d. Equal right to voice in direction of enterprise 6. Bailments: delivery of personal property by one person (the bailor) to another (bailee) who holds the property for a certain purpose under express or implied contract o Family Car Doctrine: The owner of a car is liable for the negligent operation of the car by a family member using it with the owner’s permission Joint Tortfeasors 1. Joint and Several Liability: one defendant can be hit with all of the damages a. Acting in concert, fail to perform common duty, independent action and indivisible harm 2. Contribution: one defendant seeks damages from another a. NOT available in states where they’ve gotten rid of joint/several liability 3. Proportionate: a. Per capita b. Comparative fault (by percentage of fault) 4. Indemnity: transfers entire cost of damages from one defendant to another (mutually exclusive with contribution) 5. Concurrent: Defendants acted independently to cause the same injury  6. Successive tortfeasors in unrelated incidents → depends on state law 7. Second injury caused by first injury a. The first person is liable for everything b. Original Tortfeasor Doctrine: One injured by negligence of another is entitled to recover the damages proximately caused by the act of the tortfeasor, and the burden of proof is on the plaintiff to establish that the damages sought were proximately caused by the negligence of the defendant Products Liability 1. Rule: A manufacturer owes a duty of care to users beyond the original purchaser if the manufacturer knows the product (1) is reasonably likely to create a danger if it’s negligently manufactured (ex. collapsing crane), (2) if it will be used by people other than the original purchaser without additional testing 2. Ways to sue: a. Negligence i. Duty  ii. Breach iii. Cause iv. Damages b. Breach of warranty: A guarantee by the seller or manufacturer of goods regarding the quality or performance of those goods. i. Express: expressly stated by parties in written or oral agreement ii. Implied: 1. Rule: Disclaimers of implied warranties for the sale of goods and consequent limitations on liability are invalid if they are unfairly obscured in that they are not brought to the buyer’s attention, or are unclear 2. Warranty for Fitness of Purpose: If something is given to you for a specific purpose and doesn’t work 3. Warranty of Merchantability: This product is like all the other ones. If not, that’s breach of warranty. c. Strict liability i. Manufacturing defects: not fault based, still pure strict liability. A claim that a particular product received a defect during its manufacture resulting in the product’s deviation from its manufacturing specifications and causing injury to the plaintiff. Occurs when a product that injures a person does so because there is a flaw that is not in the general product line ii. Design defects: fault based: must show designer messed up. A design is defective if the product fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or if, in light of all relevant factors, the benefits of the challenged design do not outweigh the risk of danger inherent in the design. Here, the entire product line is challenged. (Prentis) 1. Knowledge that the product could injure someone if defective 2. Other available designs iii. Warning defects fault based. A product has an informational defect if the provision of a reasonable warning could reduce or eliminate the foreseeable risk of harm that the product poses, and the omission of the warning makes the product unreasonably dangerous. Warning must be effective in content and presentation. 1. Rule: A manufacturer must have actual or constructive knowledge of a potential risk or danger inherent in its product before strict liability can be imposed for failure to warn (Anderson) 2. Learned Intermediary Doctrine: The person in the middle must give the adequate warning. Ex. A physician gets the warning from the drug company and gives the warning to the patient 3. Defenses: contributory negligence, misuse A. Restatement § 402A One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability of physical harm thereby caused to the ultimate user or consumer or to his physical property if o The seller is engaged in the business of selling such a product and o It is expected to and does reach the user of consumer without substantial change in the  condition in which it is sold The rule stated applies although o The seller has exercised all possible care in the preparation and sale of his product, and o The user or consumer has not brought the product from or entered into any contractual relation with the seller B. Preemption Whether a state product liability claim is preempted by federal law Express Preemption: o State law preempted by federal law o Manufacturer need only comply with federal statute and regulations issued under it Implied Preemption o Federal law can preempt state law if it pervasively occupies a particular field of law (FAA) o Where Congress hasn’t decided, courts must determine if preemption is warranted, and which claims are to be preempted (gun control) o May also occur when a tort claim would create a situation where it would be impossible for D to comply both with that P in the tort claim is arguing should have been done and what the federal law requires Government Contractor Defense: o Contractor could be immune from liability for an allegedly defective product if the U.S. approved reasonably precise specifications, the equipment confirmed to those specifications, and the contractor warned the U.S. about the dangers in used of the equipment that were known to the contractor but not to the U.S. o Burdon of proof on contractor Graves Amendment: invalidation of state law when it conflicts with federal law; automobile consent statute set up non-delegable duty, so car rental companies are not liable for accidents of drivers Alternative Compensation Systems Worker’s Comp. o Workers injured in course of employment can recover without having to prove employer is at fault o Usually, bars litigation o Challenges: connections between diseases and exposure to toxic substances Auto Accident Injuries o No-fault auto insurance: policyholder compensated by own insurer regardless of his fault in causing his loss ▪ Number of accidents still the same; you don’t usually think about liability when you’re driving o Not wide-spread adoption, popularity ebbs and flows o Don’t surrender right to sue in tort for pain and suffering in exchange for coverage of an economic loss o Add-on Insurance: expanded first party coverage that has first-party, no fault benefits for medical expenses and lost wages but does not restrict lawsuits for pain and suffering o Key determinants: threshold, benefits, offsetting of private insurance, deductible 9/11 Victim Compensation o Free airline of claims and provide quick compensation to victims through public funds ▪ Collateral benefits offset (life insurance, pension funds, death benefit programs, etc.) o Kenneth Feinberg ▪ Individual awards → extremely complex, very divisive ▪ Perhaps, smarter to provide flat award that did not take salary and potential collateral benefits into account