Torts2023-materials | Colin Doyle | Law Professor

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Welcome to the Spring Semester!

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Midterm Review

Semester Overview

Negligence — Causation —— Factual Causation —— Proximate Cause — Defenses —— Contributory & Comparative Negligence —— Assumption of Risk

Semester Overview

Strict Liability — Traditional view — Products liability —— Manufacturing defects —— Design defects —— Warnings —— Defenses

Semester Overview

Intentional Torts — Types of intentional tort — Defenses

Alternatives to Tort

Causation

Two parts:

Factual cause
Proximate cause

Factual causation is usually straightforward

Adams v. Bullock: “The Swinging Wire and Electric Trolley”

Martin v. Herzog: “The Buggy Without Lights”

Byrne v. Boadle: “The Falling Flour Barrel”

Reynolds v. Hicks: “Underage Drinking and Driving”

Stubbs v. City of Rochester

Two different tests for factual causation

“But for”
Substantial factor

California Jury Instructions

A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.

[Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.]

Zuchowicz v. United States

Four typical scenarios in which factual cause may be contested

Toxic exposure
No idea what happened
Know what happened, but don’t know that it wouldn’t have happened if defendant had behaved reasonably
Know what happened, but don’t know who to blame

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How to Read a Case

Today’s Agenda

Hammontree v. Jenner

ENORMOUS DISCLAIMER!

Before you begin:

Connect with your purpose.
Discern your immediate goal.

Why take this preliminary step?

Connecting to a purpose makes the work easier and more fulfilling.

Discerning a goal allows you to focus your attention on what matters.

There is no escape.

Stress is a very bad, no good motivator.

Purpose

Reading Hammontree v. Jenner for your 1L Torts Class

Goals determine what we pay attention to

Goals when reading a case

Grasp the internal logic and mechanics of the case.
Synthesize within a broader context.

Why read cases?

Gaps,

Contradictions, and

Ambiguity

Internal logic and mechanics of a case

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

Aside: How to take notes

Internal logic and mechanics of a case

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

Three lines of reasoning

Precedent binds us.
Analogy to products liability falls apart.
Analogous authority also binds us.

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Factual Causation:

Multiple Defendants

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Causation

Two parts:

Two different tests for factual causation

Causation

Two parts:

Factual cause
Proximate cause

Two different tests for factual causation

“But for”
Substantial factor

—

Stubbs v. City of Rochester

Zuchowicz v. United States

[fit] What about multiple possible causes?

Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.

“Multiple Fires Whodunnit”

Necessary and Sufficient Conditions

Necessary condition: Result happens ONLY IF condition exists. Put another way: IF NOT condition, then NO result.

Sufficient condition: IF condition exists, then result happens.

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Summers v. Tice

“Hunting Party Whodunnit”

Summers v. Tice

Three reasons for alternative liability:

Almost 51% probability
Fairness
“Smoke out” the real evidence

Summers v. Tice

~~Three~~ reasons for alternative liability:

~~Almost 51% probability~~
Fairness
~~“Smoke out” the real evidence~~

Garcia v. Joseph Vince Co.

“Fencing Sabre Whodunnit”

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Course Overview

Administrative Crap

Office Hours

— New time: Thursdays from 1:00pm to 2:30pm

Thursday’s Reading Assignment

— Has been pushed to next Tuesday

Recap

How to Read a Case

Before you begin:

Connect with your purpose.
Discern your immediate goal.

Internal logic and mechanics of a case

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

Reasoning behind the holding

Three lines of reasoning

Precedent binds us.
Analogy to products liability falls apart.
Supreme Court reasoning in analogous case applies here.

How to answer this kind of question

Course overview

What is torts?

Scope of tort law

What is tort law all about?

Tort Law Concerns

Individual relationship of plaintiff and defendant
Societal efficiency
Distribution of resources and concentration of power

Course roadmap

On the course website under Course Content

Exam question

You are a judge in the state of Loyola tasked with writing the opinion of the court in the following case. No precedent binds you on the legal issues here, but it is customary to reference the reasoning of decisions from other jurisdictions when deciding an issue of first impression. The facts of the case are as follows:

Luna Adams found that her car’s brakes were squeaking. She brought the car in to be seen by her mechanic, Naomi Donald. Donald replaced the brake pads. A week later, Adams was driving when the brakes on her car failed, causing her to run off the road and crash into a tree. Adams sued Donald for personal injuries and property damages. The case went to a jury trial. Adams motioned for summary judgment, under the legal theory that when a car mechanic fixes a part of a car, that mechanic is strictly liable for all injuries proximately caused by that part of the car failing. The trial judge denied the motion, ruling that negligence, not strict liability, governed. The plaintiff appeals the denial of that motion.

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Course Overview

Administrative Crap

Office Hours

— New time: Thursdays from 1:00pm to 2:30pm

Thursday’s Reading Assignment

— Has been pushed to next Tuesday

Recap

How to Read a Case

Before you begin:

Connect with your purpose.
Discern your immediate goal.

Internal logic and mechanics of a case

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

Reasoning behind the holding

Three lines of reasoning

Precedent binds us. (Strict liability doesn’t apply for automobile accidents.)
Analogy to products liability falls apart. (Not the same kind of power imbalance / control as products manufacturers.)
Supreme Court reasoning in analogous case applies here. (Slippery slope, domain of the legislature)

How to answer this kind of question

Course overview

What is torts?

Scope of tort law

What is tort law all about?

Tort Law Concerns

Individual relationship of plaintiff and defendant
Societal efficiency
Distribution of resources and concentration of power

Course roadmap

On the course website under Course Content

Exam question

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Toxic Harms

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Midterm Review Meetings

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In-class exercise

Donald Dawson was murdered in his hotel room while on a business trip to Loyola City. Dawson had eaten breakfast with a business associate, Anastasia Kent, in a coffee shop next to the hotel. Following breakfast, Dawson returned to his room on the eighth floor of the hotel to use the bathroom before beginning his business day. When Dawson did not meet Kent shortly thereafter as arranged and did not answer his phone or door, Kent became concerned and asked a hotel maid to open the door to Dawson’s room. Kent and the maid found Dawson lying face down on the floor, dead. He had been shot twice in the back of the head with a .22 caliber weapon.

Both Dawson’s luggage and Kent’s, which had been left in Dawson’s room because Kent was checking out, had been rifled. Dawson’s wallet was lying on one of the suitcases with the cash missing. Neither Dawson’s Rolex watch nor his credit cards were taken. There was no sign of forced entry into the room and no sign of a struggle other than scratches on Dawson’s arm in the area of his watch. Dawson’s room key was found lying in front of the bathroom door. The murderer was never apprehended.

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At the time of the murder, the hotel had no security cameras or alarms at any of the entrances, in the stairwells, or on any of the guest floors. The hotel only employed a security guard at night, so there was no guard on duty at the time.

Question to Answer:

You are a district court judge ruling on a defendant’s motion for summary judgment. Assuming the plaintiff can prove duty and breach, was the hotel’s negligence a factual cause of the plaintiff’s injuries?

If the plaintiff has not made out a prima facie case, then the motion should be granted.

If the plaintiff has made out a prima facie case, then the question should go to the jury, and the motion for summary judgment should not be granted.

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Sindell v. Abbott Laboratories

“Toxic Harms”

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Possible alternatives for factual causation

Concert liability
Alternative liability
Enterprise liability
Market share liability

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Toxic Harms

Why is the tort system such a poor fit?

Three frequent problems:

Identification of the cause: Can’t be certain that the toxin was a “but for” cause
Boundaries of the harm: Can’t be certain of the extent of the harm
Source of the cause: Can’t be certain who in particular is responsible

Mass Torts

A procedural story in two parts:

The Supreme Court killed the mass tort class action
Multidistrict litigation (MDL) took over

Exercises for Friday…

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Exercise #1

You are an attorney at a plaintiff’s side firm in the state of Loyola.

Luna Waters was driving her car and rolled to a stop at a red light. Just behind her on the road, Joseph Meyer was texting while driving and negligently rear-ended Waters’s car. Minutes later, another driver, Myla Morales, was lost in thought, awestruck by the idea that causation can never be directly observed but is always an inference vulnerable in some way to post hoc ergo propter hoc “since Y followed X, X must have caused Y,” and negligently rear-ended Meyer’s car, which struck Waters’s car a second time.

In one collision or the other, Waters sustained an injury to her neck. She doesn’t know which of the two accidents caused the injury. The doctors that treated her injury cannot determine whether it was the first or second impact that caused it.

Waters visits your office as a prospective client. She wants to know if she has a viable negligence claim against Meyer or Morales, who she should sue, and if she will win. Please advise her.

Exercise 2

Same initial fact pattern as the first exercise. Except now, in addition to being hit by Meyer and Morales, Waters was also hit by two other drivers who fled the scene.

In one of the four collisions, Waters sustained an injury to her neck. She doesn’t know which of the four accidents caused the injury. The doctors that treated her injury cannot determine which of the four impacts caused it.

Waters visits your office as a prospective client. She wants to know if she has a viable negligence claim against Meyer or Morales, who she should sue, and if she will win. Please advise her.

Exercise 3

You are an attorney at a plaintiff’s side firm in the state of Loyola.

A labor activist, Ayla Ross, comes to visit you in your office. She has been organizing workers at a slaughterhouse in the region. She’s learned that the slaughterhouse had been euthanizing chickens with a particular gas, BirdBeGone, for the many years. but stopped using the gas when it was taken off the market six months ago. The gas was banned by state authorities after emerging research indicated that human beings exposed to the gas could develop skin cancer and that the gas could induce miscarriages and result in severe birth defects.

Ross wants to talk with these workers about the possibility of suing the slaughterhouse for negligence. She is particularly interested in the possibility of a class action lawsuit so that the workers don’t need to litigate individual cases, but she knows that issues of causation can be challenging in toxic harm lawsuits.

For this question, assume that duty and breach can be proven. Please advise her on the most pertinent remaining issues.

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Factual Cause Review

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Toxic Harms

Why is the tort system such a poor fit?

Three frequent problems:

Identification of the cause: Can’t be certain that the toxin was a “but for” cause
Boundaries of the harm: Can’t be certain of the extent of the harm
Source of the cause: Can’t be certain who in particular is responsible

Mass Torts

A procedural story in two parts:

The Supreme Court killed the mass tort class action
Multidistrict litigation (MDL) took over

Factual Causation Speedrun

Causation

Two parts:

Two different tests for factual causation

Causation

Two parts:

Factual cause
Proximate cause

Two different tests for factual causation

“But for”
Substantial factor

—

Factual cause is usually straightforward

Make a factual cause argument for the plaintiff in each case

Con Edison was in charge of supplying electricity to New York City but negligently let a major power failure happen leaving New York City without electricity for days. Two days into the blackout, Julius Strauss walked into the unlit basement of his apartment building and fell down the stairs.

Jonathan Carter visited Ronald Kinney’s home for a bible study session, slipped on a patch of ice in Kinney’s driveway, and broke his leg.

Mary Jane Gerstheimer parked her car in front of a pharmacy at the Middletown Psychiatric Center and left it unattended with the keys in the ignition. Stephen Rushink, a patient at the facility, drove away in the car, struck a tree, and died.

—

Possible issues with factual cause

Maybe something other than negligence was the but-for cause.

Multiple possible defendants - Each defendant’s negligence was enough to cause the harm, but remove any one defendant and the harm still happens. - Only one defendant was the but-for cause but can’t figure out which one. — All of the possible defendants were negligent and are before the court. — Some of the possible defendants were negligent and some were not. — It’s a whole industry that was negligent

Exercise #1

You are an attorney at a plaintiff’s side firm in the state of Loyola.

Waters visits your office as a prospective client. She wants to know if she has a viable negligence claim against Meyer or Morales, who she should sue, and if she will win. Please advise her.

Exercise 2

Same initial fact pattern as the first exercise. Except now, in addition to being hit by Meyer and Morales, Waters was also hit by two other drivers who fled the scene.

Waters visits your office as a prospective client. She wants to know if she has a viable negligence claim against Meyer or Morales, who she should sue, and if she will win. Please advise her.

Exercise 3

You are an attorney at a plaintiff’s side firm in the state of Loyola.

For this question, assume that duty and breach can be proven. Please advise her on the most pertinent remaining issues.

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Compensatory Damages

Remedies

The consequences of liability.

Remedies include:

Compensatory damages
Punitive damages
Nominal damages and declaratory judgment
Equitable relief

[fit] Compensatory

[fit] Damages

and punitive damages

Compensatory Damages

The Objective: To restore the plaintiff to the state they were in before the harm caused by the defendant.

Two separate legal inquiries:

Liability
Damages

Single judgment rule

Seffert v. Los Angeles Transit Lines

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

McDougald v. Garber

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

Jury Exercise

You are a jury, determining damages in the following case.

The giant donut at Randy’s Donuts fell down, crushing the plaintif, Cindy Estrada. You have already determined that the proprieters of Randy’s Donuts are liable for negligence and have calculated compensatory damages for expenses that Estrada has already incurred. But your role as factfinder is not over:

You must now determine the plaintiff’s compensatory damages for future economic loss and pain and suffering.

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Proximate Cause

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But first…

Exercise #1

You are an attorney at a plaintiff’s side firm in the state of Loyola.

Waters visits your office as a prospective client. She wants to know if she has a viable negligence claim against Meyer or Morales, who she should sue, and if she will win. Please advise her.

Exercise 2

Same initial fact pattern as the first exercise. Except now, in addition to being hit by Meyer and Morales, Waters was also hit by two other drivers who fled the scene.

Waters visits your office as a prospective client. She wants to know if she has a viable negligence claim against Meyer or Morales, who she should sue, and if she will win. Please advise her.

Exercise 3

You are an attorney at a plaintiff’s side firm in the state of Loyola.

For this question, assume that duty and breach can be proven. Please advise her on the most pertinent remaining issues.

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Three frequent problems:

Identification of the cause: Can’t be certain that the toxin was a “but for” cause
Boundaries of the harm: Can’t be certain of the extent of the harm
Source of the cause: Can’t be certain who in particular is responsible

—

Okay, now Proximate Cause!

But first…

Where are we?

What are we doing?

Torts

~~I. Introduction~~ ~~II. Remedies~~ ~~III. Negligence~~ —~~A. Introduction~~ —~~B. Duty & Breach~~ —~~C. Causation~~ —— ~~- Factual Cause~~ —— - Proximate Cause — D. Defenses IV. Strict Liability V. Intentional Torts VI. Alternatives to Tort

Elements of a Negligence Cause of Action

Duty
Breach
Causation
Harm

Two parts to causation

Factual cause
Proximate cause

Proximate Cause

In re Polemis

“The Plank that Made a Ship Explode”

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Wagner v. International Railway Co.

“The Injured Rescuer”

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Danger invites rescue

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Benn v. Thomas

“The Time-Delayed Heart Attack”

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Steinhauser v. Hertz Corp.

“Sudden Schizophrenia”

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Proximate Cause

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Benn v. Thomas

“The Time-Delayed Heart Attack”

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Steinhauser v. Hertz Corp.

“Sudden Schizophrenia”

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Gibson v. Garcia

“The Rotten Telephone Pole that Fell on the Car”

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Intervening Cause

“a cause which interrupts the natural sequence of events, turns aside their cause, prevents the natural and probable results of the original act or omission, and produces a different result, that could not have been reasonably foreseen.”

Prosser & Keaton, Law of Torts

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Berry v. Borough of Sugar Notch

“The Rotten Tree that Fell on the Speeding Car”

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Palsgraf v. Long Island Railroad Co.

“Fireworks on the Train Platform”

How would you rule in Palsgraf?

Majority opinion (Cardozo)

and

Dissenting opinion (Andrews)

“What we do mean by the word ‘proximate’ is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics.”

- Andrews dissent in Palsgraf

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Punitive Damages

BMW v. Gore

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

14th Amendment

Section 1.

…

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

…

BMW v. Gore: Due Process Concerns

Majority - Jurisdiction - Fair notice - Proportionality

Concurrence - Arbitrary coercion

Three Guideposts

Degree of reprehensibility
Ratio of punitive damages to harm inflicted on plaintiff
Comparison with civil or criminal penalties

State Farm v. Campbell

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

State Farm Reasoning:

Guideposts from BMW v. Gore

Reprehensibility
Disparity between compensatory and punitive damages
Difference between punitive damages and civil penalties

Mathias v. Accor Economy Lodging, Inc.

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

Oral argument: Appealing a Punitive Damages Award

When we reconvene for class on Tuesday, we we will moot oral arguments for a case on appeal before the Loyola Supreme Court: Hershovitz v. Speedy Pete’s Pizza Pies

Odd-numbered groups (1, 3, 5, 7, 9, 11) are attorneys for the plaintiff. Even-numbered groups (2, 4, 6, 8, 10, 12) are attorneys for the defendant.

On Tuesday, I will cold call students at random to present their arguments. I will ask follow-up questions, and I will call on students representing the opposing side to address the points that have been made.

The only legal issue on appeal in this case is whether the punitive damages award in this case is excessive and would deprive the defendant of its property without due process of law.

Use the legal tests we just went over in class. Draw upon and analogize to the reasoning from these cases.

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Vicarious Liability

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But first…

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Palsgraf v. Long Island Railroad Co.

“Fireworks on the Train Platform”

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Majority opinion (Cardozo)

and

Dissenting opinion (Andrews)

- Andrews dissent in Palsgraf

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Vicarious Liability

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Miller v. Reiman-Wuerth Co.

“The Bank Errand”

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Christensen v. Swenson

“The Lunch Break”

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Three criteria

Employee’s conduct must be of the general kind the employee is hired to perform.
Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.
Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

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Kuehn v. Inter-city Freight

“Road Rage”

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Sage Club v. Hunt

“The Violent Bartender”

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Damages Outline

Cases

Seffert
McDougald
Mathias
State Farm

Damages Generally

[Condensed set of notes on values and principles behind damages]

Legal Issues

ONLY IF the Defendant is found liable.

Compensatory Damages

Purpose

Risk

Types: Economic and Non-economic

Compensatory Damages Excessive as a Matter of Law?

Rule: “Shock the conscience” verdict must have been the result of prejudice/whim/caprice/passion (Seffert)

Application:

Very fact-specific, no clear brightline rule of law

Show deference to jury and trial court

Concerns: Consistency and Arbitrariness

Compare with similar cases (if available)
Per diem or funky calculations suspect

Punitive Damages

ONLY IF: Defendant liable & punitive damages allowed at all (e.g., willful and wanton conduct)

Excessive Damages that violate Due Process under the 14th Amendment

Rule:

BMW Guideposts

Reprehensibility
Ratio
Comparison w/ civil and criminal penalties

Sub-issues:

Reprehensibility

Ratio

Rule: Excess of single digit ratio is presumptively unconstitutional (State Farm)

Application:

[Bring in all the good stuff from Mathias]

Comparison

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Oral argument: Appealing a Punitive Damages Award

Hershovitz v. Speedy Pete’s Pizza Pies

When we reconvene for class on Tuesday, we will moot oral arguments for a case on appeal before the Loyola Supreme Court.

Odd-numbered groups (1, 3, 5, 7, 9, 11) are attorneys for the plaintiff.

Even-numbered groups (2, 4, 6, 8, 10, 12) are attorneys for the defendant.

The only legal issue on appeal in this case is whether the punitive damages award is excessive and would deprive the defendant of its property without due process of law.

Use the legal tests we just went over in class.

Draw upon and analogize to the reasoning from these cases.

The facts of the case:

Speedy Pete’s Pizza Pies is a national pizza chain that promises to deliver pizzas within fifteen minutes or it is free. As a result of this policy, their delivery drivers get in a lot of car accidents. The plaintiff, Scott Hershovitz, suffered minor injuries when a Speedy Pete’s delivery driver rear-ended him at a stop sign while out for delivery. The accident occurred in the state of Loyola.

Hershovitz sued Speedy Pete’s in Loyola state court for negligence. A jury found Speedy Pete’s liable and awarded Hershovitz both compensatory and punitive damages.

Compensatory damages: $15,000

Punitive damages: $314,159

For considering punitive damages, the jury heard testimony from Speedy Pete’s workers within the state of Loyola and within the state of Nebraska, where Speedy Pete’s is headquartered. The Loyola-located workers testified to management imposing strict rules about delivery drivers delivering on time, including punishments like docked pay. The Nebraska-located workers testified to the Speedy Pete’s national office instructing managers across the country: 1) to tell their delivery drivers to obey all traffic laws, and to follow up this instruction with a playful wink (or wink emoji if the instruction was communicated over text); and 2) to tell their delivery drivers that if they got in a car accident they should remove the Speedy Pete’s Pizza Pies decal from the side of their vehicle and tell any people they injured, “I’m so sorry. My blood sugar is running low, which is why I bought all of these pizzas that are in my car. I would love to give you a free slice if you could write your signature on this waiver of liability I just happen to have on me.”

The delivery driver who injured Hershovitz testified that she did remember receiving these instructions, but forgot to follow them exactly. After rear-ending Hershovitz, the driver removed the car decal, offered Hershovitze a slice of pizza but did not ask him to sign a waiver of liability. When he asked her why she hit him, she told him that she worked for Speedy Pete’s and had been rushing to deliver a pizza.

In the State of Loyola, Speedy Pete’s could face civil penalties of up to $100,000 for instructing employees to hide that they were working for their employer in the event of an accident. In other states like Nebraska, Speedy Pete’s would not face civil penalties.

The State of Loyola permits a jury to award punitive damages if the defendant’s tortious conduct was “willful and wanton.”

Plaintiff Arguments

Willful & wanton - under Loyola State law necessary

failure to instruct drivers / fraudulent
ask drivers to break law / drive recklessly
encourage employees to lie and misinform, avoid culpability

BMV v. Gore

Reprehensibility

Most important factor (BMW and State Farm (disanalogy from these two cases: details of reprehensibility analysis))

Deviation from normal / reasonable behavior

Company policy creates a huge public risk

Not purely economical

Optimal Deterrence

Evading review b/c it is a fraudulent

Ratio

Not a categorical brightline

Rely on Mathias, bring in concerns of deterrence (huge issue of public safety)

Below ratio in Mathias

Comparison

Civil penalties in State of Loyola demonstrate willful/wanton/reprehensible

Defense Arguments

BMW v. Gore

Reprehensibility

Repetition

No evidence of repetition

Company policy outside the scope

Should be focused on the harm to the plaintiff

DP violation to punish nationwide policy (State Farm)

Nexus of what is defined as reprehensible and the injury that the plaintiff suffered

Ratio

21 : 1 far more than what is allowed in State Farm

Not one of the few that will exceed ratio and satisfy due process

Compensatory damages are big and suffice here

Hiding the logo not particularly egregious

Not a reasonable relationship between harm and punitive damages

Mathias is much closerr to intentional / willful harm

Comparison

$100,000 in sanctions - jury acted arbitrarily

Direct application

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Damages (Student Notes)

Remedies

Two separate legal inquiries in Tort Law:

Liability – is the defendant liable?

Damages – what is it that the defendant owes?

Remedy: consequences of liability

Remedies include…

Compensatory damages: seek to restore the P into the position they were in before the injury, look at P
Punitive damages: seek to punish and deter; look at D

Torts system is primarily about compensatory damages.

Nominal damages & declaratory judgment: Won’t be covered much (at all) – not all cases result in money transferring. Sometimes plaintiffs seek vindication of their rights, but nature of tort law makes this difficult/impossible.

Equitable relief: When court orders party to do or not do something. Harder to administer. Only available when damages won’t suffice.

Single judgement rule:

General rule in American legal system
- When we are going to assign damages, we only do it once
- If the jury finds the defendant liable and assigns damages, then that is the end of the case. There will be no additional future litigation based on the plaintiff’s condition.

Compensatory Damages

The objective: To restore the P to the state they were in before the harm caused by the P

2 Types of Compensatory Damages:

Pecuniary (Economic): economic damages – things easily translated into $$

Nonpecuniary (Noneconomic): emotional/physical pain and suffering – not easily calculable. (i) pain and suffering and (ii) loss of enjoyment. Calculating economic loss and pain and suffering will always have some degree of arbitrariness.

Seffert v. Los Angeles Transit Lines

“Suffering by Bus” (Ca. SC 1961)

Procedure:

The jury awarded Seffert all of her claimed damages, totaling $187,903.75. The trial court denied L.A. Transit’s motion for a new trial based on its claim that these damages are excessive as a matter of law. L.A. Transit appealed.

Issue:

Whether the damages ($187,903.75) assigned by the Jury were excessive as a matter of law

Facts:

Plaintiff was properly entering defendants bus when the doors closed on her catching her right hand and left foot. The bus started driving dragging her and then threw her to the pavement.
Plaintiffs injuries were serious, painful, disabling, and permanent. Medical care is expected for the remainder of the plaintiffs life

Holding:

Trial court affirmed. Not excessive.

Reasoning:

Rule: Damages are excessive if it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.

There is substantial evidence to support the estimates of the awarded damages

Holmes v. Southern Cal. Edison Co.:“The powers and duties of the trial judge in ruling on a motion for a new trial and of an appellate court on an appeal from a judgment are very different when the question of an excessive award of damages arise. The trial judge sits as a thirteenth juror with the power to weigh the evidence and judge the credibility of the witnesses…”

Duty of the appellate court is to uphold the jury and trial judge whenever possible. Judge sits as 13th juror (recurring notion that CoA’s Deference to TC, and TC’s def to Jury is key)

While the court can consider past cases, each case must be decided on its own facts and circumstances.

Court of Appeal believes the nonpecuniary damages assigned here reasonably reflect the Plaintiff’s pain, suffering, humiliation, and anxiety (which were caused by Defendant).

Dissent Reasoning:

(1) consistency and (2) arbitrariness

Consistency: Treating like cases in like ways: The damages in this case are excessive because it is an outlier among other precedent cases (re personal injury)
Arbitrariness: Pain and suffering should not be quantified to some arbitrary economic number (i.e., ratio argument, award for pain and suffering should be proportional to a reasonable economic amount)

McDougald v. Garber

“The Comatose Sufferer” (NY App. 1989)

Procedure:

In an award for malpractice, the jury awarded Plaintiff $9,650,102.00. This included $1 million for conscious pain and suffering and a separate award of $3.5 million for loss of the pleasures and pursuits of life. The balances of the damages were for pecuniary damages, lost earnings and the cost of custodial and nursing care. Plaintiff’s husband was awarded $1.5 million for the loss of his wife’s services.

The Trial Judge reduced the total award to $4,796,728.00 by striking the entire award for future nursing care and by reducing the separate awards for conscious pain and suffering and loss of the pleasures and pursuits of life to a single award of $2,000,000.00. The husband’s award was left in tact. The Appellate Division affirmed. Defendants appealed the amount of the damage award. Defendant’s liability is unchallenged.

Issues:

Whether some degree of cognitive awareness is a prerequisite to recover for loss of enjoyment of life
Whether a jury should be instructed to consider and award damages for loss of enjoyment of life separately for damages for pain and suffering

Facts:

Plaintiff underwent a Caesarian section and tubal ligation. She was thirty-years old at the time of this procedure. Garber (Defendant) performed the surgery. Armengol (Defendant) and Kulkarni (Defendant) provided anesthesia. During the surgery, Plaintiff suffered oxygen deprivation, resulting in severe brain damage, which left her in a permanent comatose condition.

Holding:

Loss of enjoyment requires cognitive awareness.
Pain and suffering and loss of enjoyment are not distinct issues

Reasoning:

Nonpecuniary damages stand on less certain ground than pecuniary damages.

Damages for loss of enjoyment of life to a person who lacks awareness of this loss does not serve a compensatory purpose. Cognitive awareness is a prerequisite to recovery for loss of enjoyment of life.

Traditionally, in this State and elsewhere, this aspect of suffering has not been treated as a separate category of damages; instead, the plaintiff’s inability to enjoy life to its fullest has been considered one type of suffering to be factored into a general award for nonpecuniary damages, commonly known as pain and suffering. Separating it is nontraditional. It would only be supported if it would bring more accuracy.

Dissent:

The rule that the majority adopted is an arbitrary one.

Fundamentally unsound and unfair to deny recovery to those who are completely without cognitive capacity while permitting it for those with a mere spark of awareness.

The compensatory nature of a monetary award for loss of enjoyment of life is not altered or rendered punitive by the fact that the unaware injured plaintiff cannot experience the pleasure of having it.

We can think of pain and suffering and loss of enjoyment are separate.

It’s not about punishing the defendant. It’s still about restoring loss.

Difference between experiencing pain and having a loss

Valuing Black Lives

A Constitutional Challenge to the Use of Race-Based Tables In Calculating Damages

Damages that are significantly lower for black victims than for white victims. Creates incentive for potential tortfeasors to allocate risk disproportionately to minority communities

Introduction

In tort actions both plaintiffs and defendants rely on experts to help courts calculate damages
Black/Hispanic will receive less compensation for lost potential than a white boy with same injuries
Incentive for companies to disproportionately allocate risks to minority communities in order minimize potential tort damages in the future
Use of race based tables in the calculation of tort damages remains both standard and largely unnoticed

How Race Based Tables are Used

Wage data is critical to calculating a victims lost future earning
- Plaintiff does not have an earnings record (children, young adults who have not started their career) Experts rely on the Bureau of Labor Statistics
Duration of work- life expectancy since U.S. has no retirement age
- Tables provide the starting point for experts determinations of work-life expectancy
Life expectancy data in turn is critical for calculating a plaintiffs medical expenses/pain and suffering damages
- Starting point is the U.S. Life Tables
- Statistics for each gender and certain racial categories
Race based tables creates public/private incentive to allocate risk to racial minority communities
- Higher risk projects to minority neighborhoods— ex. Of the truck drivers over 55 and inexperienced
Use of such tables counters society’s commitment to dismantle its legacy of racial discrimination

Argument in favor

Accuracy
Compensatory damages are about what it is, not what is should be

Critiques

Creates harmful incentives for the potential tortfeasors
- Risky behavior within communities that will have lower compensatory damages
Assumes the future= Past
- Historically looking backward and projecting that forward
- Presupposes that society will not change in the future to be a more equitable society
Ignores expressive function of law

Doyle’s own take

We can make predictions we compare a person to a bigger group
Instead, every factor of that person would have to be considered
Ex. When removing things like race for consideration the systemic problem of racialization will exist
Removing explicitly consideration does not eliminate
Compensatory damages is conservative in the fact that it looks backwards. Does not look forward

Punitive Damages

BMW v. Gore

“Punitive Damages and Due Process” ( SCOTUS 1996)

Procedure:

Complaint –> Trial –> Trial judge denied BMW’s post-trial motion and held that the $4M award was not excessive –> Appeal –> Alabama Supreme Court affirmed (but reduced damages from $4M to $2M) –> USSC granted cert.

Issue:

Whether a $2 million punitive damage award to the purchaser of one of these cars violates the Due Process Clause of the 14th amendment?

Can’t deprive person of life, liberty, property without due process…

Facts:

In 1990, Gore (plaintiff) purchased a black BMW car from an Alabama franchise of BMW of North America (defendant). After driving the car for nine months with no problems, Gore took the car into an independent detailer to embellish the car’s paint. The detailer noticed that the car appeared to have been repainted.

At trial, BMW acknowledged that it adopted a nationwide disclosure policy in 1983 concerning cars damaged in the course of manufacture or transportation. Since the cost of repainting Gore’s car was less than 3% of its retail value, it was repainted and sold to him as new.

Holding:

Excessive and violation of DP

Reasoning:

Rule: 14th Amendment: No state shall deprive any person of life. liberty, or property, without due process of law

3 Guideposts for Assessing the Reasonableness of Punitive Damages:

Degree of Reprehensibility: Exemplary damages imposed on a D should reflect “the enormity of the offense”. Punitive damages may not be “grossly out of proportion to the severity of the offense.
Ratio: There should be a reasonable relationship between the punitive damages award and the harm likely to result form the D’s conduct, as well as the harm that has actually occurred.
Comparison with civil or criminal penalties: Sign of excessiveness could be provided by comparing the punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct.

Due Process: Notice + Opportunity to be heard (able to present evidence, provide testimony, etc.)

Due Process Concerns Present In This Case:

Majority:

Jurisdiction
- State sovereignty and comity:
  - State X cannot impose economic sanctions on violators of its laws in order to change tortfeasor’s lawful conduct in State Y
  - If you consider the scope of Alabama’s interest in punishment and deterrence (in other states), it is clear that this award of $2M in damages is grossly excessive
Fair Notice
- Constitutional jurisprudence dictates that a person receive fair notice of: (a) the conduct that will subject him to punishment, and (b) the severity of the penalty that a state may impose. Court says that BMW did not receive adequate notice of the magnitude of Alabama’s
Proportionality
- Reasonable punitive damages award should reflect degree of reprehensibility of defendant’s conduct (i.e., enormity of his offense)

Concurrence:

Arbitrary coercion

Reasoning:

None of the aggravating factors associated with particularly reprehensible conduct is present. The harm BMW inflicted on Dr. Gore was purely economic in nature. Conduct which is sufficiently reprehensible to give rise to tort liability does not establish the high degree of culpability that warrants a substantial punitive damages award.
$2 million in punitive damages is 500 times the amount of his actual harm as determined by the jury. No suggestion that Dr. Gore or any other BMW purchaser was treated with any additional potential harm by BMW’s nondisclosure policy
In this case the $2 million economic sanction imposed on BMW is substantially greater than the statutory fines available in Alabama and elsewhere for similar malfeasance.

Dissent (Scalia):

Scalia at his finest - “Since the constitution does not make that concern any of our business, the court’s activities in this area are an unjustified incursion into the province of state governments.”

Further argument does not believe that SCOTUS should not rule on individual cases (like in this case). SCOTUS argued to to not be well equipped to answer individual cases.

Dissent (Ginsburg):

SCOTUS’ competency is not about error correction in individual cases… about thorny issues of law that MUST be settled across cases… Federal district and appellate courses CANNOT hear these cases now

State Farm v. Campbell:

“More on Punitive Damages and Due Process” (SCOTUS 2003)

Procedure:

A jury found that Campbell was one hundred percent at fault, and a judgment was returned for $185,849. At first, State Farm refused to cover the excess liability of $135,849 over the Campbells’ policy limit of $50,000. However, the Campbells sought independent counsel to appeal the judgment against them and bring a bad faith action against State Farm. The Campbells agreed to be represented by Slusher and Ospital’s lawyers and to pay ninety percent of any verdict received to Slusher and Ospital’s estate. In 1989, the Utah Supreme Court denied Campbell’s appeal in the wrongful death and tort actions. State Farm then paid the entire judgment, including the amounts in excess of the policy limits. However, the Campbells still filed a complaint against State Farm alleging bad faith, fraud, and intentional infliction of emotional distress.

The jury awarded the Campbells $2.6 million in compensatory damages and $145 million in punitive damages, which the trial court reduced to $1 million and $25 million, respectively. Both parties appealed, and the Utah Supreme Court reinstated the $145 million punitive damages award. The United States Supreme Court granted certiorari.

Issue:

Same as BMW: 14thA Due Process concern over excessive punitive damages. Whether, in the circumstances we shall recount, an award of $145 million in punitive damages, where full compensatory damages are $1 million, is excessive and in violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States.

Facts:

In 1981, Campbell (plaintiff) was driving with his wife in Utah and attempted to pass six vans traveling ahead of them on a two-lane highway. Todd Ospital was driving a small car approaching them from the opposite direction. To avoid a head-on collision with Campbell, Ospital swerved into the shoulder. However, he lost control of his car and collided with a vehicle driven by Robert Slusher. Ospital was killed and Slusher was rendered permanently disabled. The Campbells were not injured. In a later wrongful death and tort action, Campbell insisted he was not at fault. Even after investigations pointed to the fact that Campbell’s recklessness caused the crash, his insurance company, State Farm Mutual Automobile Insurance Co. (defendant), decided to contest liability and declined offers by Slusher and Ospital’s estate to settle the claims for the policy limit of $50,000. Additionally, State Farm ignored the advice of its own investigators and took the case to trial, assuring the Campbells that their assets were safe, they were not liable, and State Farm would represent their interests.

Holding:

Awards of punitive damages by state courts that exceed a single-digit ratio between punitive damages and compensatory damages are usually “grossly excessive” and violate the Due Process Clause of the Fourteenth Amendment. The punitive award of $145 million, therefore, was neither reasonable nor proportionate to the wrong committed, and it was an irrational and arbitrary deprivation of the property of the defendant.

Reasoning:

Rule: The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.

Reprehensibility is the most important guidepost.

Uses the same guideposts from BMW v. Gore

“While we do not suggest there was error in awarding punitive damages based upon State Farm’s conduct toward the Campbells, a more modest punishment for this reprehensible conduct could have satisfied the State’s legitimate objectives, and the Utah courts should have gone no further.”

You can still bring in out of state conduct IF (1) it has a nexus to the P’s harm. It has to be used to show culpability in the present case; and (2) the jury should be instructed to not take it account into the punitive damages award

Single-digit multipliers are more likely to comport with due process, while still achieving the State’s goals of deterrence and retribution, than awards with ratios in range of 500 to 1.

Much of the distress was caused by the outrage and humiliation the Campbells suffered at the actions of their insurer; and it is a major role of punitive damages to condemn such conduct. Compensatory damages, however, already contain this punitive element.

The most relevant civil sanction under Utah state law for the wrong done to the Campbells appears to be a $10,000 fine for an act of fraud, 65 P. 3d, at 1154, an amount dwarfed by the $145 million punitive damages award. Court erred in bridging about a broad fraudulent scheme.

Dissent (Thomas, J.):

The Constitution does not constrain the size of punitive damages awards.

Dissent (Scalia, J.):

The Due Process Clause provides no substantive protections against excessive awards of punitive damages. The punitive damages jurisprudence resulting from BMW v. Gore is incapable of being properly applied to future decisions and thus there is no reason to give the case stare decisis effect.

Dissent (Ginsburg, J.):

The state legislature (rather than the judiciary) should regulate a state court’s punitive damages awards.

Mathias v. Accor Economy Lodging, Inc.

“Punishing the Bedbug Hotel” (7th Cir. 2003)

Procedure:

The jury awarded Burl and Desiree $5,000 in compensatory damages and $186,000 in punitive damages. Motel 6 appealed.

Federal Court is applying Illinois state law, not federal law.

This Court is bound by the decisions made in BMW and State Farm.

Issue:

Same as BMW and State Farm: 14thA Due Process concern over excessive punitive damages.

Facts:

Desiree Mathias and her brother Burl, (collectively plaintiffs) checked into a Motel 6 owned and operated by Accor Economy Lodging, Inc. (Motel 6) (defendant). During their stay, Desiree complained of being bitten by bedbugs.
Burl and Desiree filed suit in federal district court against Motel 6 alleging it knew of the bedbug problem and had ignored it, amounting to “willful and wanton conduct.”
At trial, evidence showed that the motel’s exterminating service discovered the bedbugs in 1998 and offered to spray each room for a total of $500. The motel refused and, instead, transferred guests to a different room when they complained of the bedbugs. On other occasions, Motel 6 told guests that the insects were not bedbugs, but rather were ticks.
The jury awarded Burl and Desiree $5,000 in compensatory damages and $186,000 in punitive damages. Motel 6 appealed.

Holding:

Not excessive, constitutional

Reasoning:

Sanctions should be based on the wrong done rather than on the status of the D; a person is punished for what he does, not for who he is.

The punitive damages principle (the punishment should fit the crime) is modified when the probability of detection is very low or the crime is potentially lucrative.

Discusses… (1) Proportionality; (2) Notice; and (3) The Action without regard to the Actor

Punitive damages needed because…

Comp Damages are difficult to determine in the case of acts that inflict largely dignitary harms

Punitive damages provide a substitute for violent retaliation against wrongful injury

To limit the plaintiff to compensatory damages would enable the defendant to commit the offensive act with impunity provided that he was willing to pay, and again there would be a danger that his act would incite a breach of the peace by his victim

The award of punitive damages in this case thus serves the additional purpose of limiting the defendant’s ability to profit from its fraud by escaping detection and (private) prosecution.

·This is something different: SOCIETAL framing for Tort law… looking to how system of tort law functions

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Review

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What you do, you become

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Outlining

What is the purpose of an outline?

[fit] Blueprint

[fit] Roadmap

[fit] Instruction manual

Instructions for
processing unfamiliar facts

Exam writing process

Identify the issue
State the correct legal rule
Apply the rule to the facts
Analyze nuances (like gaps, contradictions, ambiguities)

Structural pattern in outline

Issue — Rule — Application — Nuances

Factual Causation Rule?

Factual Causation Rule: “But for” the defendant’s negligence, the harm to the plaintiff would not have occurred.

Factual Causation Rule: “But for” the defendant’s negligence, the harm to the plaintiff would not have occurred. Application?

Factual Causation Rule: “But for” the defendant’s negligence, the harm to the plaintiff would not have occurred. Application: Imagining that the defendant had not acted negligently, would the harm still have occurred? Nuances: — Multiple sufficient causes —— Rule: —— Application: —— Nuances: — Multiple possible causes —— Rule: —— Application: —— Nuances: — Toxic harms —— Rule: —— Application: —— Nuances:

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In-Class Exercise

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Factual Cause

Stubbs v. City of Rochester: “Sewage in the Drinking Water” Zuchowicz v. United States: “Prescribed Drug Overdose” Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.: “Multiple Fires Whodunnit” Summers v. Tice: “Hunting Party Whodunnit” Garcia v. Joseph Vince Co.: “Fencing Sabre Whodunnit” Sindell v. Abbott Laboratories: “Toxic Harms”

—

Four typical scenarios in which factual cause may be contested

Toxic exposure
No idea what happened
Know what happened, but don’t know that it wouldn’t have happened if defendant had behaved reasonably
Know what happened, but don’t know who to blame

—

Proximate Cause

In re Polemis: “The Plank that Made a Ship Explode” Wagner v. International Railway Co.: “The Injured Rescuer” Benn v. Thomas: “The Time-Delayed Heart Attack” Steinhauser v. Hertz Corp.: “Sudden Schizophrenia” Gibson v. Garcia: “The Rotten Telephone Pole that Fell on the Car” Berry v. Borough of Sugar Notch: “The Rotten Tree that Fell on the Speeding Car” Palsgraf v. Long Island Railway Co.: “Fireworks on the Train Platform”

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Vicarious Liability

Miller v. Reiman-Wuerth Co.: “The Bank Errand” Christensen v. Swenson: “The Lunch Break” Kuehn v. Inter-city Freight: “Road Rage” Sage Club v. Hunt: “The Violent Bartender”

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Three criteria for scope of employment

Employee’s conduct must be of the general kind the employee is hired to perform.
Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.
Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

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Defenses

[fit] Contributory and Comparative Negligence

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In-Class Exercise

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Clarifying “intervening” causes and “superseding” causes

Different terms for the same thing: an event that occurs after the defendant’s negligent act and before the plaintiff’s injury that breaks the chain of causation.

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Factual Cause

—

Four typical scenarios in which factual cause may be contested

Toxic exposure
No idea what happened
Know what happened, but don’t know that it wouldn’t have happened if defendant had behaved reasonably
Know what happened, but don’t know who to blame

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Proximate Cause

—

Vicarious Liability

Miller v. Reiman-Wuerth Co.: “The Bank Errand” Christensen v. Swenson: “The Lunch Break” Kuehn v. Inter-city Freight: “Road Rage” Sage Club v. Hunt: “The Violent Bartender”

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Three criteria for scope of employment

Employee’s conduct must be of the general kind the employee is hired to perform.
Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.
Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

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Where are we?

Negligence ~~Elements of a cause of action:~~ ~~— Duty~~ ~~— Breach~~ ~~— Causation~~ ~~— Harm~~ Defenses: — Contributory or Comparative Negligence — Assumption of risk

Contributory Negligence

Reconciling

Butterfield v. Forrester

“Blocking a Road with a Pole”

and

Davies v. Mann

“The Donkey on the Road”

Contributory Negligence in General:

The defendant is not liable If the plaintiff was also negligent — Duty, — Breach, — Causation, and — Harm Unless an exception applies: — Last clear chance, — Recklessness or willfulness of defendant, or — Statute

Li v. Yellow Cab Company

“Car Accident Comparative Negligence”

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Comparative Negligence

Three forms:

Pure comparative negligence
“Not as great as”
“No greater than”

Comparative Negligence

Three forms:

Pure comparative negligence
“Not as great as” = (Plaintiff less than 50% at fault)
“No greater than” = (Plaintiff 50% or less at fault)

Can the negligent plaintiff recover damages?

[fit] That’s not

[fit] a flowchart!

[fit] It’s cool

Can the negligent plaintiff recover damages?

If multiple defendants are liable, how much are they each paying?

Doctrine of Contribution

Traditional Common Law Approach

Two versions:

Joint and several liability
Several liability

[fit] Apportionment based on factual cause

[fit] Don’t

[fit] forget about

[fit] factual cause!

Don’t forget about factual cause!

Tortfeasors are only liable for the injuries they caused.

Order of operations with multiple injuries and multiple liable defendants

First step: Separate injuries based on factual cause.

Second step: For injuries that multiple defendants caused, sort out liability based on the contribution rule in the jurisdiction.

Fritts v. McKanne

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Introduction to Negligence

But first…

Hershovitz v. Speedy Pete’s Pizza Pies

Arguments
Reflections
Questions

Outlining

Goals for reading cases

Grasp the internal logic and mechanics of the case.
Synthesize within a broader context.

Goals for outlining

Creating and studying an outline should help you to:

Spot issues on the exam
Resolve issues methodically and comprehensively

Outline for damages

Negligence as a Cause of Action

Plaintiff must prove four elements:

Duty
Breach
Causation
Harm

Negligence as a Concept

Relates to the elements of duty and breach

The “fault” principle

Defined as a failure to exercise “reasonable care”

California Negligence Jury Instruction:

Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by the evidence.

It is the failure to use ordinary or reasonable care.

Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence.

1. What is reasonable care?

2. Who is this reasonable person?

Adams v. Bullock

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

Braun v. Buffalo Gen. El. Co.

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

For next class…

Come prepared to:

argue for the opposite holding in Adams and Braun
with foreseeability as the reasoning behind the holding

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Assumption of Risk

Wassell v. Adams

Wassell v. Adams Discussion Questions

Given these facts, what would a just outcome in this case have been?

How capable is our legal system of producing just outcomes in these cases? How does it fall short? What would need to change?

Assumption of Risk

Where are we?

Negligence ~~Elements of a cause of action:~~ ~~— Duty~~ ~~— Breach~~ ~~— Causation~~ ~~— Harm~~ Defenses: ~~— Contributory or Comparative Negligence~~ — Assumption of risk

Assumption of Risk

- Explicit

- Implicit

[fit] Hanks v. Powder Ridge Restaurant Corp.

Two Common Issues

Was the contract clear enough about releasing the defendant from liability?
Will the court enforce contract?

I fully assume all risks associated with [s]nowtubing, even if due to the NEGLIGENCE of [the defendants]
I … agree I will defend, indemnify and hold harmless [the defendants] … from any and all claims, suits or demands … including claims of NEGLIGENCE on the part of [the defendants]
I will not sue [the defendants] … for money damages for personal injury … even if due to the NEGLIGENCE of [the defendants]

Will the court enforce contract?

Various legal tests for determining if liability waiver is against public policy:

- Liability waivers are unenforceable - Totality of the circumstances - Six factors from Tunkl

Tort Law Values

Era	Philosophy	Primary Goal	Concern
Classical	Corrective justice	Individual accountability	Autonomy
Neoliberal	Economics	Maximize utility	Efficiency

Tort Law Values

Era	Philosophy	Primary Goal	Concern
Classical	Corrective justice	Individual accountability	Autonomy
New Deal	Political Economy	Distributive justice	Power
Neoliberal	Economics	Maximize utility	Efficiency

Murphy v. Steeplechase

[fit] volenti non fit injuria

[fit] “to one who is willing, no wrong is done”

Cardozo’s counter-examples

“Obscure and unobserved” dangers
Too many accidents

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Defenses

[fit] Contributory and Comparative Negligence

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Contributory Negligence in General:

—

Comparative Negligence

Three forms:

Pure comparative negligence
“Not as great as” = (Plaintiff less than 50% at fault)
“No greater than” = (Plaintiff 50% or less at fault)

—

Can the negligent plaintiff recover damages?

—

Can the negligent plaintiff recover damages?

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 40%, B - 30%, C - 10%, D - 20%

—

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 40%, B - 30%, C - 10%, D - 20%

Question 1: In a traditional common law jurisdiction, how would damages be allocated? Why?

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 40%, B - 30%, C - 10%, D - 20%

Question 2: Assume instead that we are in a jurisdiction that has “pure” comparative negligence. How would damages be allocated? Why?

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 40%, B - 30%, C - 10%, D - 20%

Question 3: Assume instead that we are in a jurisdiction that has “no greater than” modified comparative negligence. How would damages be allocated? Why?

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 50%, B - 30%, C - 10%, D - 10%

Question 4: Assume the comparative fault of the parties has changed. Under “no greater than” modified comparative negligence, how would damages be allocated? Why?

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 51%, B - 30%, C - 10%, D - 9%

Question 5: Assume the comparative fault of the parties has changed. Under “no greater than” modified comparative negligence, how would damages be allocated? Why?

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 50%, B - 30%, C - 10%, D - 10%

Question 6: Assume the comparative fault of the parties has changed. Under “not as great as” modified comparative negligence, how would damages be allocated? Why?

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 40%, B - 30%, C - 10%, D - 20%

Question 7: Assume the comparative fault of the parties has changed back to the original numbers. Under “not as great as” modified comparative negligence, how would damages be allocated? Why?

If multiple defendants are liable, how much are they each paying?

Doctrine of Contribution

Traditional Common Law Approach

Two versions:

Joint and several liability
Several liability

[fit] Apportionment based on factual cause

[fit] Don’t

[fit] forget about

[fit] factual cause!

Don’t forget about factual cause!

Tortfeasors are only liable for the injuries they caused.

Order of operations with multiple injuries and multiple liable defendants

First step: Separate injuries based on factual cause.

Second step: For injuries that multiple defendants caused, sort out liability based on the contribution rule in the jurisdiction.

—

Doctrine of Contribution

Traditional Common Law Approach

Example: Four defendants (A, B, C, and D) with $100k damages.

Joint and several liability jurisdiction A, B, C, and D have plenty of money

Who pays what?

Doctrine of Contribution

Traditional Common Law Approach

Example: Four defendants (A, B, C, and D) with $100k damages.

Several liability jurisdiction A, B, C, and D have plenty of money

Who pays what?

Doctrine of Contribution

Traditional Common Law Approach

Example: Four defendants (A, B, C, and D) with $100k damages.

Joint and several liability jurisdiction A and B have plenty of money C and D have no money

Who pays what?

Doctrine of Contribution

Traditional Common Law Approach

Example: Four defendants (A, B, C, and D) with $100k damages.

Several liability jurisdiction A and B have plenty of money C and D have no money

Who pays what?

Doctrine of Contribution

Modern Approach

Apportionment based on comparative fault.

Example: Four defendants (A, B, C, and D) with $100k damages. A is 40% at fault. B is 10% at fault. C is 20% at fault. D is 30% at fault.

Doctrine of Contribution

Modern Approach

Apportionment based on comparative fault.

Example: Four defendants (A, B, C, and D) with $100k damages. A is 40% at fault. So A owes $40k. B is 10% at fault. So B owes $10k. C is 20% at fault. So C owes $20k. D is 30% at fault. So D owes $30k.

What about vicarious liability?

—

Vicarious liability and the doctrine of contribution

Modern Approach

Apportionment based on comparative fault.

Example: Four defendants (A, B, C, and D) with $100k damages. A is 40% at fault. B is 10% at fault. C is 20% at fault. D is 30% at fault.

E is vicariously liable for D’s negligence.

—

Vicarious liability and the doctrine of contribution

Modern Approach

Apportionment based on comparative fault.

Example: Four defendants (A, B, C, and D) with $100k damages. A is 40% at fault. So A owes $40k. B is 10% at fault. So B owes $10k. C is 20% at fault. So C owes $20k. D is 30% at fault. E is vicariously liable for D’s negligence. So E owes $30k.

Fritts v. McKinne

“The Doctor Who Blamed the Drunk Driver”

McCarty v. Pheasant Run, Inc.

“Unlocked Hotel Room Door”

and

Wassell v. Adams

“Opened Hotel Room Door”

Discussion Questions

Given the facts of these cases, what would a just outcome in each case have been?

How capable is our legal system of producing just outcomes in these cases? How does it fall short? What would need to change?

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Reasonable Care &

The Reasonable Person

(continued…)

Reasonable care

The principle behind liability/fault

Tools for defining reasonable care include:

Foreseeability
Hand Formula (B < P*L)
The Reasonable Person

Hand Formula

B < PL = Negligent B > PL = Not Negligent

B = Burden of precautionary measures P = Probability of loss/harm L = Magnitude of loss/harm

Hand Formula Critiques:

Incommeasurability
Uncertainty of Quantification

The Reasonable Person Standard

An objective standard¹ designed to clarify what reasonable care requires

Justifications for an objective standard

Administrative feasibility
Consistency & enforcement of community norms
Equality & fairness

Exceptions to objective standard

Physical disability
Children
Expertise

Not exceptions to objective standard

Mental disability
Children engaged in adult activity
Old age & infirmity

Bethel v. New York City Transit Authority

And the standard of utmost care

The Role of Judge & Jury

Baltimore & Ohio Railroad Co. v. Goodman

Pokora v. Wabash Railway Co.

with some exceptions ↩︎

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Assumption of Risk

McCarty v. Pheasant Run, Inc.

“Unlocked Hotel Room Door”

and

Wassell v. Adams

“Opened Hotel Room Door”

—

Discussion Questions

Given the facts of these cases, what would a just outcome in each case have been?

How capable is our legal system of producing just outcomes in these cases? How does it fall short? What would need to change?

—

Assumption of Risk

Where are we?

Negligence ~~Elements of a cause of action:~~ ~~— Duty~~ ~~— Breach~~ ~~— Causation~~ ~~— Harm~~ Defenses: ~~— Contributory or Comparative Negligence~~ — Assumption of risk

[fit] Hanks v. Powder Ridge Restaurant Corp.

“Snowtubing Waiver”

Two Common Issues

Was the contract clear enough about releasing the defendant from liability?
Will the court enforce contract?

I fully assume all risks associated with [s]nowtubing, even if due to the NEGLIGENCE of [the defendants]
I … agree I will defend, indemnify and hold harmless [the defendants] … from any and all claims, suits or demands … including claims of NEGLIGENCE on the part of [the defendants]
I will not sue [the defendants] … for money damages for personal injury … even if due to the NEGLIGENCE of [the defendants]

Will the court enforce contract?

Various legal tests for determining if liability waiver is against public policy:

- Liability waivers are unenforceable - Totality of the circumstances - Six factors from Tunkl

Tort Law Values

Era	Philosophy	Primary Goal	Concern
Classical	Corrective justice	Individual accountability	Autonomy
Neoliberal	Economics	Maximize utility	Efficiency

Tort Law Values

Era	Philosophy	Primary Goal	Concern
Classical	Corrective justice	Individual accountability	Autonomy
New Deal	Political Economy	Distributive justice	Power
Neoliberal	Economics	Maximize utility	Efficiency

Murphy v. Steeplechase

“The Flopper”

[fit] volenti non fit injuria

[fit] “to one who is willing, no wrong is done”

Cardozo’s counter-examples

“Obscure and unobserved” dangers
Too many accidents

—

Knight v. Jewett

“Touch Football Injuries”

—

Explicit assumption of risk

Implicit assumption of risk

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Assumption of Risk

McCarty v. Pheasant Run, Inc.

“Unlocked Hotel Room Door”

and

Wassell v. Adams

“Opened Hotel Room Door”

—

Discussion Questions

Given the facts of these cases, what would a just outcome in each case have been?

How capable is our legal system of producing just outcomes in these cases? How does it fall short? What would need to change?

—

Assumption of Risk

Where are we?

Negligence ~~Elements of a cause of action:~~ ~~— Duty~~ ~~— Breach~~ ~~— Causation~~ ~~— Harm~~ Defenses: ~~— Contributory or Comparative Negligence~~ — Assumption of risk

[fit] Hanks v. Powder Ridge Restaurant Corp.

“Snowtubing Waiver”

Two Common Issues

Was the contract clear enough about releasing the defendant from liability?
Will the court enforce contract?

I fully assume all risks associated with [s]nowtubing, even if due to the NEGLIGENCE of [the defendants]
I … agree I will defend, indemnify and hold harmless [the defendants] … from any and all claims, suits or demands … including claims of NEGLIGENCE on the part of [the defendants]
I will not sue [the defendants] … for money damages for personal injury … even if due to the NEGLIGENCE of [the defendants]

Will the court enforce contract?

Various legal tests for determining if liability waiver is against public policy:

- Liability waivers are unenforceable - Totality of the circumstances - Six factors from Tunkl

Tort Law Values

Era	Philosophy	Primary Goal	Concern
Classical	Corrective justice	Individual accountability	Autonomy
Neoliberal	Economics	Maximize utility	Efficiency

Tort Law Values

Era	Philosophy	Primary Goal	Concern
Classical	Corrective justice	Individual accountability	Autonomy
New Deal	Political Economy	Distributive justice	Power
Neoliberal	Economics	Maximize utility	Efficiency

Murphy v. Steeplechase

“The Flopper”

[fit] volenti non fit injuria

[fit] “to one who is willing, no wrong is done”

Cardozo’s counter-examples

“Obscure and unobserved” dangers
Too many accidents

—

Knight v. Jewett

“Touch Football Injuries”

—

Explicit assumption of risk

Implicit assumption of risk

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Roles of Judge & Jury

Negligence as a Cause of Action

Plaintiff must prove four elements:

??????????
??????????
??????????
??????????

Negligence as a Cause of Action

Plaintiff must prove four elements:

Duty
Breach
Causation
Harm

Reasonable care

Ways to determine reasonable care under the circumstances include:

- Foreseeability

- The Reasonable Person

The Reasonable Person Standard

Objective standard

Exceptions to objective standard: - Physical disability - Children - Expertise

Not exceptions to objective standard - Mental disability - Children engaged in adult activity - Old age & infirmity

Baltimore & Ohio Railroad Co. v. Goodman

and

Pokora v. Wabash Railway Co.

and

Akins v. Glen Falls

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Negligence Defenses Review

Today’s Agenda

Review of Defenses
In-Class Exercise

—

Negligence ~~Elements of a cause of action:~~ ~~— Duty~~ ~~— Breach~~ ~~— Causation~~ ~~— Harm~~ Defenses: — Contributory or Comparative Negligence — Assumption of Risk

The kinds of questions you can now answer

(given the right information about jurisdictional rules and case-specific facts)

- Does the defense of contributory negligence apply? - Was the plaintiff comparatively negligent? - Does the defense of “assumption of risk” apply? - How much can the plaintiff recover? - How much does each defendant owe? - If a particular defendant is absent or insolvent, how much do the other defendants owe?

Contributory Negligence

Comparative Negligence

Assumption of Risk

—

Contributory Negligence in General:

Comparative Negligence

Three forms:

Pure comparative negligence
“Not as great as”
“No greater than”

How much does each defendant pay?

Common Law Approach

Divide up damages by number of liable defendants

Doctrine of contribution:

Joint and several liability, or
Several liability

How much does each defendant pay?

Modern Approach

Divide up damages based on comparative fault

Doctrine of contribution: Variety of rules across jurisdictions, including several liability, joint-and-several liability, and a variety of hybrids.

[fit] Don’t

[fit] forget about

[fit] factual cause!

Order of operations for allocating damages with multiple injuries and multiple defendants

First step: Separate injuries based on factual cause.

Second step: For injuries that multiple defendants caused, sort out who owes what based on jurisdictional rules.

Assumption of Risk

- Explicit / Express - Implicit / Implied

Two Common Issues with Explicit Assumption of Risk

Was the contract clear enough about releasing the defendant from liability?
Will the court enforce contract?

Will the court enforce contract?

Various legal tests for determining if liability waiver is against public policy:

- Liability waivers are unenforceable - Totality of the circumstances - Six factors from Tunkl

Implicit assumption of risk

volenti non fit injuria

“to one who is willing, no wrong is done”

Should assumption of risk persist in a comparative fault world?

For exam questions, how do we know whether to look to assumption of risk or contributory negligence or comparative negligence?

—

In-Class Exercise

Contributory Negligence

Butterfield v. Forrester “Blocking a Road with a Pole”

Davies v. Mann “The Donkey on the Road”

—

Comparative Negligence

Li v. Yellow Cab Company “Car Accident Comparative Negligence”

Fritts v. McKanne “The Doctor Who Blamed the Drunk Driver”

McCarty v. Pheasant Run, Inc. “Unlocked Hotel Room Door”

Wassell v. Adams “Opened Hotel Room Door”

Assumption of Risk

Murphy v. Steeplechase “The Flopper”

Knight v. Jewett “Touch Football Injuries”

Hanks v. Powder Ridge Restaurant Corp. “Snowtubing Waiver”

—

Tunkl factors

Business of a type generally thought suitable for public regulation.
Defendant performs a service of great importance to the public (often a matter of practical necessity for some members of the public)
Defendant willing to perform this service for any member of the public
Defendant has bargaining advantage
Standardized adhesion contract of exculpation
Plaintiff placed under the control of the defendant, subject to the risk of carelessness by the seller or his agents.

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Customs and Statutes

Proving Negligence

To establish that conduct fell below standard of reasonable care, plaintiff needs to prove:

What defendant did or did not do.
What defendant should have done.

How to use customs and statutes

Sword for proving negligence Prove two things:

- Custom or statute = reasonable care - Defendant failed to comply with custom or statute -————————————————— Shield for disproving negligence Prove two things:

- Custom or statute = reasonable care - Defendant complied with custom or statute

Negligence per se

- Actor violates a statute that is designed to protect against this type of accident and harm

AND

- the accident victim is within the class of persons the statute is designed to protect.

Rushink v. Gerstheimer

“Leaving Keys in the Ignition”

In recommending the enactment of section 1210, the Joint Legislative Committee on Motor Vehicle Problems stated that the proposed law was:

“designed to obviate the risk of a vehicle moving from the place where it was left parked and possibly injuring the person and property of others as well as itself being damaged. It serves to lessen the likelihood of theft”

Trimarco v. Klein

“Broken Shower Door”

Robinson v. District of Columbia

“Jaywalking”

Exercise

You are a Supreme Court Justice in the State of Loyola Supreme Court, hearing a case on appeal. Your small group represents the entire Loyola Supreme Court.

How do you rule? You are welcome to have majority opinions, concurring opinons, and dissenting opinions.

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Products Liability

Strict Liability Recap

Fletcher v. Rylands

Rylands v. Fletcher

Liability applies for:

PWFOPBOHL&C&KTALDMIIE

Limits on Strict Liability

Fletcher v. Rylands — PWFOPBOHL&C&KTALDMIIE Rylands v. Fletcher — PWFOPBOHL&C&KTA “non-natural” and LDMIIE First Restatement — “ultrahazardous activity” Second Restatement — “abnormally dangerous activity”

[fit] Indiana Harbor Belt v. American Cyanamid

Strict liability applies for behavior that is:

- Very risky and that risk cannot be eliminated at reasonable cost

AND

- Not susceptible to due care analysis

[fit] Tort law is the law of

[fit] negligence.

[fit] Strict liability is the law of tort law when negligence fails.

MacPherson v. Buick Motor Co.

Macpherson Test

If object can put life and limb in danger if negligently made

And defendant has knowledge of probable danger

And defendant has knowledge that it will be used by people other than the purchaser

And no further tests will be performed

Then manufacturer has a duty and privity is no defense

Escola v. Coca Cola

Rationale

Power dynamics

Cost spreading / insurance

Deterrence

Extensions of Liability

Plaintiffs: Not just consumers but bystanders.

Defendants: Not just manufacturers but retailers.

Defect Requirement

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Economic Theory of Negligence

Exercise

You are a Supreme Court Justice in the State of Loyola Supreme Court, hearing a case on appeal. Your small group represents the entire Loyola Supreme Court.

How do you rule? You are welcome to have majority opinions, concurring opinons, and dissenting opinions.

Proving Negligence

To establish that conduct fell below standard of reasonable care, plaintiff needs to prove:

What defendant did or did not do.
What defendant should have done.

How to use customs and statutes

Sword for proving negligence Prove two things:

- Custom or statute = reasonable care - Defendant failed to comply with custom or statute -————————————————— Shield for disproving negligence Prove two things:

- Custom or statute = reasonable care - Defendant complied with custom or statute

Negligence per se

- Actor violates a statute that is designed to protect against this type of accident and harm

AND

- the accident victim is within the class of persons the statute is designed to protect.

United States v. Carroll Towing Co.

A workable formula for reasonable care?

BPL

B = Burden of precautionary measures P = Probability of loss/harm L = Magnitude of loss/harm

IF B < PL AND defendant did not take on B THEN defendant was negligent

IF B > PL AND defendant did not take on B THEN defendant was NOT negligent

BPL Example

Railroad company with a 50% chance of causing $200k in damage to a farm beside the railroad tracks. (P * L = $100k). Solar panels are available as a possible precaution. Would reduce 100% of the harm to the plaintiff at cost of $200k to railroad company. Railroad company takes no precautions. Was the railroad company negligent?

Possible Precautions for Defendant to Take	Cost of precautionary measure	Expected cost to plaintiff	Total cost to society
No Precaution	$0	$100k	$100k
Solar Panels	$200k	$0	$200k

BPL Example

Same facts as before. But now spark arresters are also available as a possible precaution. Would reduce 50% of the harm to plaintiff at cost of $30k to railroad company. Railroad company takes no precautions. Was the railroad company negligent?

Possible Precautions for Defendant to Take	Cost of precautionary measure	Expected cost to plaintiff	Total cost to society
No Precaution	$0	$100k	$100k
Solar Panels	$200k	$0	$200k
Spark Arresters	$30k	$50k	$80k

Economic Theory of Negligence

Fault = economic inefficiency
Embodies a trust in private ordering and economic incentives
Driven by a goal of maximizing overall economic welfare

Critiques of Economic Theory

Incommeasurability of harms
Uncertainty of cost calculations

What we’ve learned…

Ways to determine reasonable care under the circumstances include:

- Foreseeability - The Reasonable Person - Custom - Statute - Cost-Benefit Analysis (Hand Formula: B < P*L)

Special Considerations - Judge and jury relationship

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Products Liability

Strict Liability Recap

Fletcher v. Rylands

Rylands v. Fletcher

Liability applies for:

PWFOPBOHL&C&KTALDMIIE

Limits on Strict Liability

[fit] Indiana Harbor Belt v. American Cyanamid

Strict liability applies for behavior that is:

- Very risky and that risk cannot be eliminated at reasonable cost

AND

- Not susceptible to due care analysis

[fit] Tort law is the law of

[fit] negligence.

[fit] Strict liability is the law of tort law when negligence fails.

MacPherson v. Buick Motor Co.

Macpherson Test

If object can put life and limb in danger if negligently made

And defendant has knowledge of probable danger

And defendant has knowledge that it will be used by people other than the purchaser

And no further tests will be performed

Then manufacturer has a duty and privity is no defense

Escola v. Coca Cola

Rationale

Power dynamics

Cost spreading / insurance

Deterrence

Extensions of Liability

Plaintiffs: Not just consumers but bystanders.

Defendants: Not just manufacturers but retailers.

Defect Requirement

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Products Liability

Strict Liability Recap

Fletcher v. Rylands

Rylands v. Fletcher

Liability applies for:

PWFOPBOHL&C&KTALDMIIE

Limits on Strict Liability

[fit] Indiana Harbor Belt v. American Cyanamid

Strict liability applies for behavior that is:

- Very risky and that risk cannot be eliminated at reasonable cost

AND

- Not susceptible to due care analysis

[fit] Tort law is the law of

[fit] negligence.

[fit] Strict liability is the law of tort law when negligence fails.

MacPherson v. Buick Motor Co.

Macpherson Test

If object can put life and limb in danger if negligently made

And defendant has knowledge of probable danger

And defendant has knowledge that it will be used by people other than the purchaser

And no further tests will be performed

Then manufacturer has a duty and privity is no defense

Escola v. Coca Cola

Rationale

Power dynamics

Cost spreading / insurance

Deterrence

Extensions of Liability

Plaintiffs: Not just consumers but bystanders.

Defendants: Not just manufacturers but retailers.

Defect Requirement

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Products Liability

Strict Liability Recap

Limits on Strict Liability

[fit] Indiana Harbor Belt v. American Cyanamid

Strict liability applies for behavior that is:

- Very risky and that risk cannot be eliminated at reasonable cost

AND

- Not susceptible to due care analysis

[fit] Tort law is the law of

[fit] negligence.

[fit] Strict liability is the law of tort law when negligence fails.

MacPherson v. Buick Motor Co.

Macpherson Test

If object can put life and limb in danger if negligently made

And defendant has knowledge of probable danger

And defendant has knowledge that it will be used by people other than the purchaser

And no further tests will be performed

Then manufacturer has a duty and privity is no defense

Escola v. Coca Cola

Tort Law Values

Era	Philosophy	Primary Goal	Concern
Classical	Corrective justice	Individual accountability	Autonomy
New Deal	Political Economy	Distributive justice	Power
Neoliberal	Economics	Maximize utility	Efficiency

—

Rationale

Power dynamics

Cost spreading / insurance

Deterrence

Extensions of Liability

Plaintiffs: Not just consumers but bystanders.

Defendants: Not just manufacturers but retailers.

Defect Requirement

—

Products Liability

— Manufacturing defects

— Design defects

— Instructions and warnings

Manufacturing Defects

Design Defects

Barker v. Lull Engineering

Two tests:

Consumer expectations
Excessive preventable danger

—

Soule v. General Motors

—

When does the consumer expectations test apply?

[fit] Not at

[fit] all clear!

It depends upon the “everyday experience of the product’s users”

1) Consumer expectations

2) Excessive preventable danger

[fit]“Reasonable Alternative Design”

“Reasonable Alternative Design” Challenges

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Review of Reasonable Care

Negligence as a Cause of Action

Plaintiff must prove four elements:

??????????
??????????
??????????
??????????

Negligence as a Cause of Action

Plaintiff must prove four elements:

Duty
Breach
Causation
Harm

Prima facie case of negligence

On its face, plaintiff has met the burden of proving duty, breach, causation, and harm.

Doesn’t mean plaintiff wins! Just means that a jury could find for the plaintiff.

Negligence as a Concept

Relates to the elements of duty and breach

The “fault” principle

Defined as a failure to exercise “reasonable care”

Ways to determine reasonable care under the circumstances include:

- ?????????? - ?????????? - ?????????? - ?????????? - ??????????

Special Considerations - ??????????

Ways to determine reasonable care under the circumstances include:

- Foreseeability - The Reasonable Person - Custom - Statute - Cost-Benefit Analysis (Hand Formula: B < P*L)

Special Considerations - Judge and jury relationship

Foreseeability

Foreseeability is a flexible concept.

Define any event in general enough terms and it is foreseeable.

Define any event in narrow enough terms and it is unforeseeable.

Reasonable Person Standard

An objective standard designed to clarify what reasonable care requires.

Exceptions to objective standard: - Physical disability - Children - Expertise

Not exceptions to objective standard - Mental disability - Children engaged in adult activity - Old age & infirmity

How to use customs and statutes

Sword for proving negligence Prove two things:

- Custom or statute = reasonable care - Defendant failed to comply with custom or statute -————————————————— Shield for disproving negligence Prove two things:

- Custom or statute = reasonable care - Defendant complied with custom or statute

Negligence per se

- Actor violates a statute that is designed to protect against this type of accident and harm

AND

- the accident victim is within the class of persons the statute is designed to protect.

Economic theory of negligence

Hand Formula

B = Burden of precautionary measures P = Probability of loss/harm L = Magnitude of loss/harm

IF B < PL AND defendant did not take on B THEN defendant was negligent

IF B > PL AND defendant did not take on B THEN defendant was NOT negligent

BPL Example

Railroad company with a 50% chance of causing $200k in damage to a farm beside the railroad tracks. Solar panels are available as a possible precaution. Would reduce 100% of the harm to the plaintiff at cost of $200k to railroad company. Railroad company takes no precautions. Was the railroad company negligent?

B = $200k P = 50% L = $200k

B > P * L $200k > (50% * $200k)

BPL Example

Same facts as before. Railroad company with a 50% chance of causing $200k in damage to a farm beside the railroad tracks. But now spark arresters are also available as a possible precaution. Would reduce likelihood of the harm to plaintiff by 50% at cost of $30k to railroad company. Railroad company takes no precautions. Was the railroad company negligent?

B = $30k P = 25% L = $200k

B < P * L $30k < (25% * $200k)

BPL Example

Possible precautions	Cost for defendant	Expected cost for plaintiff	Total cost to society
No Precaution	$0	$100k	$100k
Solar Panels	$200k	$0	$200k
Spark Arresters	$30k	$50k	$80k

Economic Theory of Negligence

Fault = economic inefficiency
Embodies a trust in private ordering and economic incentives
Driven by a goal of maximizing overall economic welfare

Critiques of Economic Theory

Incommeasurability of harms
Uncertainty of cost calculations

That’s all, folks!

Ways to determine reasonable care under the circumstances include:

- Foreseeability - The Reasonable Person - Custom - Statute - Cost-Benefit Analysis (Hand Formula: B < P*L)

Special Considerations - Judge and jury relationship

Noriega v. Loyola State Fair

Assignment: Deliver a memo detailing potential theories of negligence that could be argued in this case. For each argument, you should include:

what constituted reasonable care under the circumstances, and why, and how the defendant failed to exercise that duty of reasonable care
what the defense’s best counterarguments would be
in your estimation, how strong of a theory of negligence this is

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Warnings & Defenses

“Reasonable Alternative Design” Challenges

—

You are the lawyer for the plaintiff in a case where the plaintiff has smoked cigarettes since she was 16 years old. She’s now in her 50s and she has terminal lung cancer, and she is suing the cigarette manufacturers for products liability under a design-defect theory. What do you propose as a reasonable alternative design?

Should the plaintiff succeed on this theory? Should the plaintiff succeed on the merits of the case but for different reasons? Should the plaintiff not prevail at all?

—

You are the lawyer for the plaintiff in a case where the plaintiff dove into a 3.5 foot, above-ground pool and broke their spine. What do you propose as a reasonable alternative design?

Should the plaintiff succeed on this theory? Should the plaintiff succeed on the merits of the case but for different reasons? Should the plaintiff not prevail at all?

Warnings

Products Liability Claims

?????????????????
?????????????????
?????????????????

Products Liability Claims

Manufacturing Defects
Design Defects
Failure to Warn

Elements of a Claim

Negligence

Duty
Breach
Causation
Harm

[.column] Strict Liability

Defendant was engaged in the kind of activity where strict liability applies
Causation
Harm

[.column] Products Liability

Defect
Causation
Harm

What are our concerns with the effectiveness of warnings and warning labels?

Clarity of labels
Too much text
Level of detail related to the possible harm
Language and legalese / What languages?
Location of label
Overwarning
Color and font, visibility

—

Hood v. Ryobi American Corp.

Couple nuances

“Heeding Presumption”

Warnings can’t overcome design defects

—

In-Class Performance

Rueben the bear → Raccoon → Turtle → Bigfoot → Dog →

What products liability claims might Reuben the bear assert against the manufacturer of his pants?

We all have an intuition that Reuben should lose his case,
but for what reason?

How can you defend against a strict liability or products liability claim?

—

Plaintiff’s failure to discover a defect

Restatement (Second) of Torts Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence.

Restatement Third [W]hen the defendant claims that the plaintiff failed to discover a defect, there must be evidence that the plaintiff’s conduct in failing to discover a defect did, in fact, fail to meet a standard of reasonable care. In general, a plaintiff has no reason to expect that a new product contains a defect and would have little reason to be on guard to discover it.

—

Comparative Responsibility is Hard

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Warnings & Defenses

“Reasonable Alternative Design” Challenges

—

Should the plaintiff succeed on this theory? Should the plaintiff succeed on the merits of the case but for different reasons? Should the plaintiff not prevail at all?

—

You are the lawyer for the plaintiff in a case where the plaintiff dove into a 3.5 foot, above-ground pool and broke their spine. What do you propose as a reasonable alternative design?

Should the plaintiff succeed on this theory? Should the plaintiff succeed on the merits of the case but for different reasons? Should the plaintiff not prevail at all?

Warnings

Products Liability Claims

?????????????????
?????????????????
?????????????????

Products Liability Claims

Manufacturing Defects
Design Defects
Failure to Warn

Elements of a Claim

Negligence

Duty
Breach
Causation
Harm

[.column] Strict Liability

Defendant was engaged in the kind of activity where strict liability applies
Causation
Harm

[.column] Products Liability

Defect
Causation
Harm

What are our concerns with the effectiveness of warnings and warning labels?

Clarity of labels
Too much text
Level of detail related to the possible harm
Language and legalese / What languages?
Location of label
Overwarning
Color and font, visibility

—

Hood v. Ryobi American Corp.

Couple nuances

“Heeding Presumption”

Warnings can’t overcome design defects

—

In-Class Performance

Rueben the bear → Raccoon → Turtle → Bigfoot → Dog →

What products liability claims might Reuben the bear assert against the manufacturer of his pants?

We all have an intuition that Reuben should lose his case,
but for what reason?

How can you defend against a strict liability or products liability claim?

—

Plaintiff’s failure to discover a defect

—

Comparative Responsibility is Hard

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Res Ipsa Loquitur

But first, something personal

Structuring Arguments

Syllogism for proving duty and breach

D was legally obligated to do X.

D failed to do X.

Therefore, D breached their legal duty.

Detailed version

D had a duty (to the plaintiff) to exercise reasonable care under the circumstances.

Reasonable care under the circumstances was X, because of - foreseeability, - reasonable person standard, - custom, - statute, - or hand formula.

D failed to do X, therefore D acted negligently / breached their legal duty to plaintiff.

Byrne v. Boadle

Larson v. St. Francis

Res Ipsa Loquitur

Two requirements:

Harm results from the kind of situation in which negligence can be inferred
Defendant was responsible for the instrument of harm

Connolly v. Nicollet Hotel

Why Allow Res Ipsa Loquitur?

Probabilistic rationale
Asymmetry and fairness justification

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Res Ipsa Loquitur

Structuring Arguments

Syllogism for proving duty and breach

D was legally obligated to do X.

D failed to do X.

Therefore, D breached their legal duty.

Detailed version

D had a duty (to the plaintiff) to exercise reasonable care under the circumstances.

Reasonable care under the circumstances was X, because of - foreseeability, - reasonable person standard, - custom, - statute, - or hand formula.

D failed to do X, therefore D acted negligently / breached their legal duty to plaintiff.

Byrne v. Boadle

Larson v. St. Francis

Res Ipsa Loquitur

Two requirements:

Harm results from the kind of situation in which negligence can be inferred
Defendant was responsible for the instrument of harm

Connolly v. Nicollet Hotel

Why Allow Res Ipsa Loquitur?

Probabilistic rationale
Asymmetry and fairness justification

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Products Liability Defenses & Review

Products Liability Claims

?????????????????
?????????????????
?????????????????

Products Liability Claims

Manufacturing Defects
Design Defects
Failure to Warn

Elements of a Claim

Negligence

Duty
Breach
Causation
Harm

[.column] Strict Liability

Defendant was engaged in the kind of activity where strict liability applies
Causation
Harm

[.column] Products Liability

Defect
Causation
Harm

Speller v. Sears, Roebuck & Co.

“Refrigerator Fire”

—

Proving product defect without specific evidence

Incident that harmed the plaintiff:

was of a kind that ordinarily occurs as a result of product defect
was not solely the result of other causes

—

Jones v. Ryobi, Ltd.

“The Modified Printing Press”

Anderson v. Nissei ASB Machine Co.

“The Bottle-Making Machine that Amputated an Arm”

—

How can you defend against a strict liability or products liability claim?

—

How can you defend against a strict liability or products liability claim?

Disprove elements of plaintiff’s claim
Affirmative defenses
- Comparative negligence
- Assumption of risk

—

Comparative Responsibility is Hard

Can a plaintiff be negligent for failing to discover a defect?

—

Assumption of Risk

—

Assumption of Risk

~~Express (Disclaimers and waivers)~~

Implied (Knowingly encounter a danger)

—

In-Class Exercise

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Res Ipsa Loquitur

Thursday’s Class Rescheduled

10:30am in the Robinson Moot Courtroom

How does a plaintiff normally prove duty and breach?

D was legally obligated to do X.

D failed to do X.

Therefore, D breached their legal duty.

Detailed version

D had a duty (to the plaintiff) to exercise reasonable care under the circumstances.

Reasonable care under the circumstances was X, because of - foreseeability, - reasonable person standard, - custom, - statute, - or hand formula.

D failed to do X, therefore D acted negligently / breached their legal duty to plaintiff.

What’s so special about res ipsa?

If res ipsa applies, plaintiff can prove duty and breach without establishing a standard of care.

Two requirements for res ipsa to apply:

Harm results from. . . ?
Defendant was. . . ?

Two requirements for res ipsa to apply:

Harm results from the kind of situation in which negligence can be inferred
Defendant was responsible for the instrument of harm

Case Recap

Byrne v. Boadle: “The Falling Flour Barrel”

Larson v. St. Francis: “The Falling Armchair”

Connolly v. Nicollet Hotel: “The Chaotic Convention”

Why Allow Res Ipsa Loquitur?

Probabilistic rationale
Asymmetry and fairness justification

McDougald v. Perry

Ybarra v. Spangard

Ybarra v. Spangard on Remand

- Plaintiff’s expert and court-appointed expert testified that the injury was traumatic in origin and not the result of infection.

- Defendants each testified that they saw nothing occur which could have caused the injury.

If you were the trial judge conducting a bench trial, what would your verdict be?

In-Class Exercse for Res Ipsa Loquitur

You are deciding a case as an appellate court judge.

Organize your notes according to the CREAC method:

Conclusion
Rule
Explanation
Application
Conclusion

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Intentional Torts

Structure for this Part of the Course

Intentional Torts: — Battery — Assault — False imprisonment — Intentional infliction of emotional distress

Defenses: — Consent — Self-defense — Defense of property — Necessity

Garratt v. Dailey

“The Five-Year-Old Who Pulled the Chair Out from Under Her”

—

Alcorn v. Mitchell

“The Angry Spitter”

—

Picard v. Barry Pontiac-Buick, Inc.

“The Camera Toucher”

Wishnatsky v. Huey

“The Offended Interrupter”

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Review: Concept of Negligence

But first…

[fit] Thanksgiving

Supplement Recommendations

For Review:

Understanding Torts

For Practice Problems:

Tort Law and Practice

Course Roadmap

https://www.colin-doyle.net/torts/course-content/roadmap/

Tort of Negligence Plaintiff must prove:

Duty
Breach
Causation
Harm

Concept of Negligence A principle for assigning liability. Primarily informs:

Duty
Breach

Concept of Negligence

The principle behind liability/fault is __________________.

Tools for Identifying Reasonable Care 1. __________________ 2. __________________ 3. __________________ 4. __________________ 5. __________________

Special Considerations 1. __________________ 2. __________________ 3. __________________

Res Ipsa Loquitur

Two requirements:

Medical Malpractice

A medical professional is negligent if they fail to exercise reasonable care when:

performing a medical procedure
informing a patient about potential medical treatment

Reasonable doctor
Reasonable patient

In-Class Exercise: Practice Exam Question

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Review of Negligence So Far…

Supplement Recommendations

For Review:

Understanding Torts

For Practice Problems:

Tort Law and Practice

Course Roadmap

https://www.colin-doyle.net/torts2023/course-content/roadmap/

Ybarra v. Spangard

Two requirements for res ipsa to apply:

Harm results from the kind of situation in which negligence can be inferred
Defendant was responsible for the instrument of harm

Ybarra v. Spangard on Remand

- Plaintiff’s expert and court-appointed expert testified that the injury was traumatic in origin and not the result of infection.

- Defendants each testified that they saw nothing occur which could have caused the injury.

If you were the trial judge conducting a bench trial, what would your verdict be?

In-Class Exercise for Res Ipsa Loquitur

You are deciding a case as an appellate court judge.

Organize your notes according to the CREAC method:

Conclusion
Rule
Explanation
Application
Conclusion

Res Ipsa Cases

Byrne v. Boadle: “The Falling Flour Barrel”

Larson v. St. Francis: “The Falling Armchair”

Connolly v. Nicollet Hotel: “The Chaotic Convention”

McDougald v. Perry: “The Flying Tire”

Ybarra v. Spangard: “The Unconscious Patient”

Two requirements for res ipsa to apply:

Harm results from the kind of situation in which negligence can be inferred
Defendant was responsible for the instrument of harm

Why Allow Res Ipsa Loquitur?

Probabilistic rationale
Asymmetry and fairness justification

In-Class Exercise: New Variation

Ross v. Benson

Same facts as before, but rewind time to before the trial began.

You are a junior attorney working for a law firm defending Idris Benson. A partner at the firm has asked you to produce a memo addressing three issues:

Given the facts that we know, what are our best arguments that Benson exercised reasonable care?
How do we counter the plaintiff’s best arguments that Benson did not exercise reasonable care?
What facts should we try to learn before trial?

How does a plaintiff normally prove duty and breach?

D was legally obligated to do X.

D failed to do X.

Therefore, D breached their legal duty.

Detailed version

D had a duty (to the plaintiff) to exercise reasonable care under the circumstances.

Reasonable care under the circumstances was X, because of - foreseeability, - reasonable person standard, - custom, - statute, - or hand formula.

D failed to do X, therefore D acted negligently / breached their legal duty to plaintiff.

California Negligence Jury Instruction:

It is the failure to use ordinary or reasonable care.

Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence.

Reasonable Person Standard

An objective standard designed to clarify what reasonable care requires.

Exceptions to objective standard: - Physical disability - Children - Expertise

Not exceptions to objective standard - Mental disability - Children engaged in adult activity - Old age & infirmity

Foreseeability

Foreseeability is a flexible concept.

Define any event in general enough terms and it is foreseeable.

Define any event in narrow enough terms and it is unforeseeable.

How to use customs and statutes

Sword for proving negligence Prove two things:

- Custom or statute = reasonable care - Defendant failed to comply with custom or statute -————————————————— Shield for disproving negligence Prove two things:

- Custom or statute = reasonable care - Defendant complied with custom or statute

Negligence per se

- Actor violates a statute that is designed to protect against this type of accident and harm

AND

- the accident victim is within the class of persons the statute is designed to protect.

Hand Formula (BPL)

B = Burden of precautionary measures P = Probability of loss/harm L = Magnitude of loss/harm

IF B < PL AND defendant did not take on B THEN defendant was negligent

IF B > PL AND defendant did not take on B THEN defendant was NOT negligent

Cases for Establishing Reasonable Care

Adams v. Bullock: “The Swinging Wire and Electric Trolley” Braun v. Buffalo General Electric Co.: “Electrocution at a Construction Site” Bethel v. New York City Transit Authority: “Bus Seat Collapse” Baltimore & Ohio Railroad v. Goodman: “Reasonable People and Railroad Crossings” Pokora v. Wabash Railway Co.: “Revisiting Reasonable People and Railroad Crossings” Akins v. Glen Falls: “Baseball Park Injuries” The T.J. Hooper: “Tugboats and Radios” Martin v. Herzog: “The Buggy Without Lights” Tedla v. Ellman: “Walking on the Side of the Highway” Rushink v. Gerstheimer: “Leaving Keys in the Ignition” Trimarco v. Klein: “Broken Shower Door” Robinson v. District of Columbia: “Jaywalking” United States v. Carroll Towing Co., Inc.: “The Hand Formula”

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Intentional Torts

No class on Friday

Office Hours Today from 12pm to 1pm

Student Evaluations At end of class, from 9:50am to 10:00am

Structure

Intentional Torts: ~~— Battery~~ ~~— Assault~~ — False imprisonment — Intentional infliction of emotional distress

Defenses: — Consent — Self-defense — Defense of property — Necessity

Abridged Definition from Restatement (Third) of Torts A person acts with the intent to produce a consequence if: (a) the person acts with the purpose of producing that consequence; or (b) the person acts knowing that the consequence is substantially certain to result.

Abridged Definition from Restatement (Second) of Torts An actor is subject to liability to another for battery if he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and a harmful or offensive contact with the person of the other directly or indirectly results.

Abridged Definition from Restatement (Second) of Torts An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.

False Imprisonment

Lopez v. Winchell’s Donut House

“The Accused Employee Who Freely Left”

[fit] Intentional Infliction of Emotional Distress

Womach v. Eldridge

“The Distressing Accusation of Molestation”

Second Restatement

“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”

Snyder v. Phelps

“Protesting Soldiers’ Funerals”

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Defenses

Makeup Classes

Thursday, April 25th 10:00am until 11:15am in the Hall of the 70s.

Friday April 26th 10:00am until 11:15am in the Hall of the 70s. Immediately followed by office hours in the Hall of the 70s.

Snyder v. Phelps

“Protesting Soldiers’ Funerals”

—

Defenses

Consent Self Defense Defense of Property Necessity

Hart v. Geysel “Consenting to a Prize Fight”

Hackbart v. Cincinnati Bengals “Professional Football Injury”

O’Brien v. Cunard “The Silent Vaccine Objector”

—

Self Help Defenses

Self Defense Defense of Property Necessity

—

Self defense

Courvoisier v. Raymond “Mistaken Self-Defense”

—

Defense of property

Katko v. Briney “The Spring-Gun Boobytrap”

—

Necessity

Ploof v. Putnam “The Private Island in a Storm”

Vincent v. Lake Erie Transportation Company “The Boat Slamming Against the Dock”

—

Hand Formula

B < P*L

Negligence when the burden on the defendant of taking precautions is less than the probability of loss for the plaintiff multiplied by the magnitude of that loss.

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Duty to Act

Harper v. Herman

“The Boat Owner in Shallow Water”

Sidenote: Don’t write like this

On Sunday, August 9, 1986, Jeffrey Harper (“Harper”) was one of four guests on Theodor Herman’s (“Herman”) 26-foot boat…

Because good writers don’t write like that.

Call me Ishmael (“Ishmael”).

It is a truth universally acknowledged, that a single man (“man”) in possession of a good fortune (“fortune”), must be in want of a wife (“wife”).

As Gregor Samsa (“Samsa”) awoke ~~one morning~~ on Sunday, August 9, 1926 from uneasy dreams he found himself transformed in his bed into a gigantic insect (“cockroach”).

But why don’t good writers write like that?

Because they treat the reader like a big, golden baby.

Farwell v. Keaton

“The Fatal Pickup Attempt”

Union Pacific Railway v. Cappier

“The Railroad that Ran Over a Man and Let Him Die”

[fit] The modern rule for non-negligent creation of injury

Maldonado v. Southern Pacific Transp. Co. (Ariz. App. 1981)

Issue: Whether the railroad owed the plaintiff a duty to render aid after he was seriously injured by the train.

Court adopts rule from Restatement (Second) of Torts :

If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.

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Duty to Third Parties

&

Policy Bases for No Duty

Should we write like this?

On Sunday, August 9, 1986, Jeffrey Harper (“Harper”) was one of four guests on Theodor Herman’s (“Herman”) 26-foot boat…

We treat our reader like a big, golden baby.

A duty to

exercise reasonable care

[fit] Tarasoff v. Regents of the University of California

“The Psychiatrist Who Didn’t Warn the Murder Victim”

[fit] Randi W. v. Muroc Joint Unified School District

“The Alleged Sexual Predator’s Recommenders”

Rowland Factors

foreseeability of harm
certainty of plaintiff’s injury
connection between defendant’s conduct and plaintiff’s injury
moral blame
policy of preventing harm
burden to defendant
consequences to community
availability of insurance

Strauss v. Belle Realty

Third Restatement

When determining that no legal duty exists for reasons of public policy, courts should use “categorical, bright-line rules of law applicable to a general class of cases.”

Two Closing Thoughts

Crushing liability has not aged well.
Policy justifications ≠ individual autonomy concerns

Reynolds v. Hicks

Negligence Per Se

Remember Martin v. Herzog?

Negligence Per Se

Under RCW 66.44.270(1) it is a crime to:

give or otherwise supply liquor to any person under the age of twenty-one years or permit any person under that age to consume liquor on his or her premises or on any premises under his or her control.

What the heck?

Two Reasons

Legal
Policy

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Review

Makeup Classes

Thursday, April 25th 10:00am until 11:15am in the Hall of the 70s.

Friday April 26th Tentatively 8:45am until 10:00am in the Hall of the 70s. Office hours at noon.

Vincent v. Lake Erie Transport Co.

Hand Formula

B < P*L

Negligence when the burden on the defendant of taking precautions is less than the probability of loss for the plaintiff multiplied by the magnitude of that loss.

You are a personal injury attorney in the state of Loyola. In Loyola, a protest and counter-protest over gun regulations began to get out of hand. Annie stood at the front lines of the protest arguing for assault weapon regulation, and Bob stood at the front lines of the counter-protest arguing for free assault weapons for public school teachers. The two protests began on opposite sides of city park but grew closer together over the course of the day and were now squaring off face-to-face. Annie started addressing Bob directly. “You think it’s worth it for kids to die so you can pretend you’re a real man? What are you compensating for, buddy? Huh? Wife left you? Maybe instead of buying so many guns, you should buy a gym membership, you fat piece of shit!” As she screamed at him, flecks of spit kept landing on Bob’s face. She pointed her index finger right between his eyes, inches from his face as she said, “No one is ever going to love you.”

Bob drew his SIG Sauer P365 pistol from its holster on his hip and pointed it at the ground by his feet. “Back up. Stop spitting on my face. And stop being so mean to me.” “Are you going to shoot me?” Annie asked. “If I have to.” Bob responded. “I’m calling the cops,” Annie said, and retreated back into the crowd.

Annie did not call the cops. But she did sue Bob for assault. Bob has now hired you as his attorney. Having never been sued before, Bob wants you to advise him on his legal options. Please consider any defenses Bob might raise, any intentional tort claims he might have against Annie, and any defenses she might be able to raise. As you advise Bob, be sure to inform him of how strong or weak these claims or defenses are and why. For the purposes of this question, do not consider any negligence or strict liability claims.

Defenses for Bob

Consent
Self-defense
No prima facie case of assault

Claims that Bob might have against Annie

IIED
Battery
Assault

Structure for this Part of the Course

Intentional Torts: — Battery — Assault — False imprisonment — Intentional infliction of emotional distress

Defenses: — Consent — Self-defense — Defense of property — Necessity

Abridged Definition from Restatement (Second) of Torts An actor is subject to liability to another for false imprisonment if (a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and (b) his act directly or indirectly results in such a confinement of the other, and (c) the other is conscious of the confinement or is harmed by it.

Abridged Definition from Restatement (Second) of Torts One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Defenses

— Consent — Self-defense — Defense of property — Necessity

—

How to Outline

—

With intentional torts, always consider

The legal interest that each intentional tort addresses
The requirements of the defendant
The requirements of the plaintiff
Any objective requirements, including analysis that the judge or jury must conduct

The legal interest that each intentional tort addresses

Battery Freedom from harmful or offensive contact

Assault Freedom from apprehension of harmful or offensive contact

False Imprisonment Freedom from confinement

IIED Freedom from severe emotional distress

Example outline excerpt

False Imprisonment Legal interest: Requirements: — Defendant: — Plaintiff: — Objective:

Nuances:

—

Example outline excerpt

False Imprisonment Legal interest: Freedom from confinement Requirements: — Defendant: Intentional act to confine — Plaintiff: Aware of confinement (or harmed by it) — Objective: Plaintiff confined

Nuances:

—

Example outline excerpt

False Imprisonment Legal interest: Freedom from confinement Requirements: — Defendant: Intentional act to confine —— Threats or physical force / barriers or assertion of legal authority — Plaintiff: Aware of confinement (or harmed by it) — Objective: Plaintiff confined —— Restricted area —— No reasonable way to escape

Nuances:

—

Example outline excerpt

Nuances: Lopez v. Winchell’s Donut House [Insert notes on legal reasoning that may apply to circumstances that don’t neatly fit within the rules] Shen v. Leo A. Daly Co. [Insert notes on legal reasoning that may apply to circumstances that don’t neatly fit within the rules]

—

Example outline structure

Intentional Torts: — Battery — Assault — False imprisonment — Intentional infliction of emotional distress

Defenses: — Consent — Self-defense — Defense of property — Necessity

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Review

Makeup Classes

Thursday, April 25th 10:00am until 11:15am in the Hall of the 70s.

Friday April 26th Tentatively 8:45am until 10:00am in the Hall of the 70s. Office hours at noon.

Vincent v. Lake Erie Transport Co.

Hand Formula

B < P*L

Negligence when the burden on the defendant of taking precautions is less than the probability of loss for the plaintiff multiplied by the magnitude of that loss.

Defenses for Bob

Consent
Self-defense
No prima facie case of assault

Claims that Bob might have against Annie

IIED
Battery
Assault

Structure for this Part of the Course

Intentional Torts: — Battery — Assault — False imprisonment — Intentional infliction of emotional distress

Defenses: — Consent — Self-defense — Defense of property — Necessity

Defenses

— Consent — Self-defense — Defense of property — Necessity

—

How to Outline

—

With intentional torts, always consider

The legal interest that each intentional tort addresses
The requirements of the defendant
The requirements of the plaintiff
Any objective requirements, including analysis that the judge or jury must conduct

The legal interest that each intentional tort addresses

Battery Freedom from harmful or offensive contact

Assault Freedom from apprehension of harmful or offensive contact

False Imprisonment Freedom from confinement

IIED Freedom from severe emotional distress

Example outline excerpt

False Imprisonment Legal interest: Requirements: — Defendant: — Plaintiff: — Objective:

Nuances:

—

Example outline excerpt

Nuances:

—

Example outline excerpt

Nuances:

—

Example outline excerpt

—

Example outline structure

Intentional Torts: — Battery — Assault — False imprisonment — Intentional infliction of emotional distress

Defenses: — Consent — Self-defense — Defense of property — Necessity

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Alternatives to Tort Law

Insurance

Classes Next Week

Tuesday, April 23rd 8:45am to 10:00am in the Hall of the 70s.

Thursday, April 25th 8:45am to 10:00am in the Hall of the 70s.

Friday April 26th 10:00am to 11:15am in the Hall of the 70s. Office hours immediately following the end of class.

Website Updates

Past final exam and memo
Notes and part of draft answer for in-class exercise

—

Supplemental Reading

—

The Big Picture

~~Torts~~ ~~— Remedies~~ ~~— Negligence~~ ~~—— Breach~~ ~~—— Duty~~ ~~—— Causation~~ ~~—— Defenses~~ ~~— Strict Liability~~ ~~—— Traditional view~~ ~~—— Products liability~~ ~~— Intentional Torts~~ Not Torts —— Insurance —— Workers’ Compensation —— Alternatives to Tort

Why are we learning this?

—

[fit] 1) Positive and Negative Space

Napoleon Leading the Army over the Alps Kehinde Wiley

2) Tort concepts are infectious.

3) I want you to look smart.

But it’s not torts.

First party insurance

versus

Third party (liability) insurance

—

Collateral source rule
Subrogation

Understanding these rules in combination

A defendant injures a plaintiff. The plaintiff’s health insurance provider covers most of the plaintiff’s medical bills. The plaintiff wins a lawsuit against the defendant. Consider the process and outcomes for this case under three different legal regimes. What potential problems arise?

Only the collateral source rule exists — no subrogation
Only subrogation exists — no collateral source rule
Both the collateral source rule and subrogation exist (our actual legal regime)

Straightforward example: a house fire

But it gets complicated with:

Personal injury
Settlement

Liability Insurance

How does liability insurance affect tort law?

Changes how damages are paid.
Changes what lawsuits are filed.
Can affect substantive tort law itself.
Can affect policy rationale / justification for legal rules.

Remember the Rowland Factors?

foreseeability of harm
certainty of plaintiff’s injury
connection between defendant’s conduct and plaintiff’s injury
moral blame
policy of preventing harm
burden to defendant
consequences to community
availability of liability insurance

Hypos on Impact of Insurance

First party insurance for plaintiff in Vincent v. Lake Erie Transport Co.

Liability insurance for defendants in Randi W. v. Muroc Joint Unified School District

Pavia v. State Farm

“Insurance Bad Faith”

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Policy Bases for No Duty

&

Duties of Landowners & Occupiers

Some logistics

Makeup Class: Tuesday, November 28 from 8:15am-9:30am in this classroom.

No office hours today

Additional office hours on Tuesdays: Tuesday, November 14 from 12pm to 1pm Tuesday, November 21 from 12pm to 1pm Tuesday, November 28 from 12pm to 1pm

Strauss v. Belle Realty

Third Restatement

When determining that no legal duty exists for reasons of public policy, courts should use “categorical, bright-line rules of law applicable to a general class of cases.”

Two Closing Thoughts

Crushing liability has not aged well.
Policy justifications ≠ individual autonomy concerns

Reynolds v. Hicks

Negligence Per Se

Remember Martin v. Herzog?

Negligence Per Se

Under RCW 66.44.270(1) it is a crime to:

What the heck?

Two Reasons

Legal
Policy

Landowners & Occupiers

Carter v. Kinney

Traditional View

Type of Visitor	Definition
???	???
???	???
???	???

Traditional View

Type of Visitor	Definition
Trespasser	???
Licensee	???
Invitee	???

Traditional View

Type of Visitor	Definition
Trespasser	Intruder
Licensee	Social guest
Invitee	Business guest or general public (if land opened to public)

Duties Owed — Traditional View

Trespasser

duty not to intentionally or wantonly cause injury
no duty of reasonable care (with handful of exceptions)

Licensee

no duty to inspect or discover dangerous conditions
duty to warn or make known conditions safe

Invitee

duty to inspect and discover dangerous conditions
duty to warn or make conditions safe

Heins v. Webster County

Modern View

Type of Visitor	Definition
???	???
???	???

Modern View

Type of Visitor	Definition
Trespasser	Intruder
Everybody else	Not a trespasser

Duties Owed — Modern View

Trespasser¹

duty not to intentionally or wantonly cause injury
no duty of reasonable care (with handful of exceptions)

Everybody Else

duty of reasonable care

Traditional View

vs.

Modern View

Two exercises for Tuesday

Both on Scratchpad on course website

Both really fun puzzles

Or in California and the Third Restatement, a “flagrant” trespasser rather than just a plain old trespasser ↩︎

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Workers’ Compensation

Classes Next Week

Tuesday, April 23rd 8:45am to 10:00am in the Hall of the 70s.

Thursday, April 25th 8:45am to 10:00am in the Hall of the 70s.

Friday April 26th 10:00am to 11:15am in the Hall of the 70s. Office hours immediately following the end of class.

—

[fit] How do alternatives to tort law teach us about tort law?

They influence tort litigation
They affect substantive doctrine
Alternatives to tort help us to understand assumptions and latent choices within the common law of torts

Hypos on Impact of Insurance

First party insurance for plaintiff in Vincent v. Lake Erie Transport Co.

Liability insurance for defendants in Randi W. v. Muroc Joint Unified School District

Pavia v. State Farm

Workers’ Compensation

Lamson v. American Axe & Tool Co.

“The Axe that Fell on the Employee”

—

[fit] The “Unholy Trinity” of Common Law Defenses

Fellow servant rule
Contributory negligence
Assumption of risk

[fit] The Bargain of Workers’ Compensation

No fault

and

Exclusive remedy

Workers’ Compensation Requirements

Only compensates for work-related injuries

Benefits include: —— Medical coverage —— Percent of lost wages —— Vocational rehabilitation —— Survivor benefits

Employers must buy workers’ comp insurance

[fit] When would an employee not file a workers’ comp claim?

Injury didn’t occur while in scope of employment

Injury resulted from employer’s intentional tort

Non-disabling injury

Employee was not an employee but an independent contractor

Third-party claims

Rule: Employee can file a workers’ compensation claim against their employer but workers compensation’ does not cover third parties.

Hypothetical:

Gladys Escola is a waitress. While serving a Coca-Cola beverage at work, the bottle explodes in her hand, injuring her hand. She needs surgery and will be unable to work for months.

What’s your legal advice for her?

Big Picture: Workers’ Comp vs. Tort Law

Deterrence

Compensation

Administrative Cost

Equity

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No-Fault and Beyond

Classes this week

Thursday, April 25th 8:45am to 10:00am in the Hall of the 70s.

Friday April 26th 10:00am to 11:15am in the Hall of the 70s. Office hours immediately following the end of class.

—

Workers’ Compensation

—

[fit] The “Unholy Trinity” of Common Law Defenses

Fellow servant rule
Contributory negligence
Assumption of risk

[fit] The Bargain of Workers’ Compensation

No fault

and

Exclusive remedy

Workers’ Compensation Requirements

Only compensates for work-related injuries

Benefits include: —— Medical coverage —— Percent of lost wages —— Vocational rehabilitation —— Survivor benefits

Employers must buy workers’ comp insurance

Lamson v. American Axe & Tool Co.

“The Axe that Fell on the Employee”

Scenarios to consider:

Facts of actual case
Hypothetical employee who didn’t assume the risk

—

Big Picture: Workers’ Comp vs. Tort Law

Deterrence

Compensation

Administrative Cost

Equity

Ideology

Does tort law have an ideology?

-	Negligence	Strict Liability	Intentional Torts
Type of Conduct	???	??? ???	???
Causal Connection	??? ???	??? ???	??? ???
Affirmative Defenses	??? ???	??? ???	??? ??? ???
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal Connection	??? ???	??? ???	??? ???
Affirmative Defenses	??? ???	??? ???	??? ??? ???
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause
Affirmative Defenses	??? ???	??? ???	??? ??? ???
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	???
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Injury must be “work-related”
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Injury must be “work-related”
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	- Employee was outside “scope of employment”
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Injury must be “work-related”
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	- Employee was outside “scope of employment”
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)

No-Fault Systems / Compensation Funds

Common features:

Narrow category of injury
Reduced fact-finding and proof requirements
Fixed recovery amounts
Insurance-like funding rather than individual defendant-to-plaintiff payouts

-	Torts	Workers’ Comp	No-Fault Funds
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available at all

9-11 Fund

Unique characteristics:

created after the harm, not in anticipation of harm
individualized approach to economic loss
tort-like awards for noneconomic loss
low administrative costs

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	???
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available at all	???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	-???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	- Injury happened in “zone of danger” of the terrorist attacks
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	- Injury happened in “zone of danger” of the terrorist attacks
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	- Terrorism
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	- Injury happened in “zone of danger” of the terrorist attacks
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	- Terrorism
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	- Full economic damages up to 98th percentile of wage earners - Noneconomic losses compensated in full

New Zealand

Total tort reform Common law torts for accidental injury are abolished All accidental injuries now covered under a no-fault scheme: — unlimited medical expenses — fixed compensation for lost earnings — lump sums for lost body parts and pain and suffering

In-Class Exercise

You are a wise federal trial judge with experience managing multidistrict litigation for toxic harms. Policymakers are considering establishing a compensation fund for victims of toxic harms. You have been asked to advise the group that is drafting the proposal.

Here are some features of the current plan. To receive compensation, the plaintiff must prove that she was sufficiently exposed to a toxic substance such that the toxic substance could have caused her injury. If there are multiple possible defendants, the plaintiff is not required to prove which defendants are responsible for her injuries. The plaintiff is not required to prove that the defendant was at fault. The plaintiff can receive unlimited compensaton for medical expenses (including medical monitoring) in installments over time, but the plaintiff cannot be compensated for other losses. If the plaintiff receives compensation from this fund, the plaintiff is barred from pursuing any common law tort action related to the injury.

What are the strengths and weaknesses of this plan? What are your suggestions for revision?

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No-Fault and Beyond

Classes this week

Thursday, April 25th 8:45am to 10:00am in the Hall of the 70s.

Friday April 26th 10:00am to 11:15am in the Hall of the 70s. Office hours immediately following the end of class.

—

Workers’ Compensation

—

[fit] The “Unholy Trinity” of Common Law Defenses

Fellow servant rule
Contributory negligence
Assumption of risk

[fit] The Bargain of Workers’ Compensation

No fault

and

Exclusive remedy

Workers’ Compensation Requirements

Only compensates for work-related injuries

Benefits include: —— Medical coverage —— Percent of lost wages —— Vocational rehabilitation —— Survivor benefits

Employers must buy workers’ comp insurance

Lamson v. American Axe & Tool Co.

“The Axe that Fell on the Employee”

Scenarios to consider:

Facts of actual case
Hypothetical employee who didn’t assume the risk

—

Big Picture: Workers’ Comp vs. Tort Law

Deterrence

Compensation

Administrative Cost

Equity

Ideology

Does tort law have an ideology?

-	Negligence	Strict Liability	Intentional Torts
Type of Conduct	???	??? ???	???
Causal Connection	??? ???	??? ???	??? ???
Affirmative Defenses	??? ???	??? ???	??? ??? ???
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal Connection	??? ???	??? ???	??? ???
Affirmative Defenses	??? ???	??? ???	??? ??? ???
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause
Affirmative Defenses	??? ???	??? ???	??? ??? ???
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	???
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Injury must be “work-related”
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Injury must be “work-related”
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	- Employee was outside “scope of employment”
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Injury must be “work-related”
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	- Employee was outside “scope of employment”
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)

No-Fault Systems / Compensation Funds

Common features:

Narrow category of injury
Reduced fact-finding and proof requirements
Fixed recovery amounts
Insurance-like funding rather than individual defendant-to-plaintiff payouts

-	Torts	Workers’ Comp	No-Fault Funds
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available at all

9-11 Fund

Unique characteristics:

created after the harm, not in anticipation of harm
individualized approach to economic loss
tort-like awards for noneconomic loss
low administrative costs

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	???
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available at all	???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	-???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	- Injury happened in “zone of danger” of the terrorist attacks
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	- Injury happened in “zone of danger” of the terrorist attacks
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	- Terrorism
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	- Injury happened in “zone of danger” of the terrorist attacks
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	- Terrorism
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	- Full economic damages up to 98th percentile of wage earners - Noneconomic losses compensated in full

New Zealand

In-Class Exercise

What are the strengths and weaknesses of this plan? What are your suggestions for revision?

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No-Fault and Beyond

Class tomorrow

Friday April 26th 10:00am to 11:15am in the Hall of the 70s. Office hours immediately following the end of class.

—

[fit] Why are we studying this?

—

For alternatives to tort, what types of questions are fair game?

—

Insurance

For a given fact pattern:

How does insurance affect (or not affect) the tort litigation?
How does insurance change incentives of the parties?
How does insurance change our assessment of the fairness and efficacy of a particular tort law rule?

—

Workers’ Compensation

For a given fact pattern:

Can the plaintiff pursue a tort claim or is workers’ compensation the exclusive remedy?
What can the plaintiff recover from workers’ compensation compared to tort?
With multiple defendants, what are the plaintiff’s options for redress?

—

Policy Questions

For a given aspect of tort law:

How does an alternative to tort fare at addressing a particular problem compared to tort law?
Should tort law adopt this policy or rule from an alternative to tort?
In crafting law that addresses personal injury and accidents, what should our values and goals be? What rules should we adopt?

[fit] The Bargain of Workers’ Compensation

No fault

and

Exclusive remedy

Workers’ Compensation Requirements

Only compensates for work-related injuries

Benefits include: —— Medical coverage —— Percent of lost wages —— Vocational rehabilitation —— Survivor benefits

Employers must buy workers’ comp insurance

—

-	Negligence	Strict Liability	Intentional Torts
Type of Conduct	???	??? ???	???
Causal Connection	??? ???	??? ???	??? ???
Affirmative Defenses	??? ???	??? ???	??? ??? ???
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal Connection	??? ???	??? ???	??? ???
Affirmative Defenses	??? ???	??? ???	??? ??? ???
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause
Affirmative Defenses	??? ???	??? ???	??? ??? ???
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	???
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Injury must be “work-related”
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Injury must be “work-related”
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	- Employee was outside “scope of employment”
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Injury must be “work-related”
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	- Employee was outside “scope of employment”
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)

No-Fault Systems / Compensation Funds

Common features:

Narrow category of injury
Reduced fact-finding and proof requirements
Fixed recovery amounts
Insurance-like funding rather than individual defendant-to-plaintiff payouts

-	Torts	Workers’ Comp	No-Fault Funds
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available at all

9-11 Fund

Unique characteristics:

created after the harm, not in anticipation of harm
individualized approach to economic loss
tort-like awards for noneconomic loss
low administrative costs

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	???
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available at all	???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	-???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	- Injury happened in “zone of danger” of the terrorist attacks
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	- Injury happened in “zone of danger” of the terrorist attacks
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	- Terrorism
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	- Injury happened in “zone of danger” of the terrorist attacks
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	- Terrorism
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	- Full economic damages up to 98th percentile of wage earners - Noneconomic losses compensated in full

New Zealand

Doing Away with Tort Law

Stephen D. Sugarman

Proposal:

No more tort law
Compensation: Expanded safety net (public and private)
Deterrence: Regulatory state

—

[fit] Muss Es Sein? Not Necessarily, Says Tort Law

Anita Bernstein

A defense of tort law as progressive. How so?

Compared to all other fields of law, tort law

empowers the vulnerable to challenge the powerful
gives plaintiffs space for creative pleading
imposes individual accountability on the powerful

—

In-Class Exercise

What are the strengths and weaknesses of this plan? What are your suggestions for revision?

—

Some unsolicited advice…

Befriend anxiety

Care for each other

Kick some ass

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Final Review

Last night, a friend from law school reminded me of this text I sent him back when we were in law school were studying for finals…

—

I forgot something important in my mushy speech at the end of last class!

—

You can use laptops today

—

Final Exam Info:

Four-hour in-class exam

Parts I, II, III, and IV are essay questions that involve the same fact pattern. Part V has a separate fact pattern and essay question.

Each part has a character limit of 5,000 characters.

—

Questions: General Questions

When talking about parties, can we say “P” or “D” or will that work against us in the character count?

What rules/case law do we use for IRACing the “harm” element of a negligence cause of action?

Can you go over burden-shifting between plaintiffs and defendants? As I’m reviewing, I’m confused when the courts holding only means the burden should shift, and when it is enough to prove/disapprove liability.

In the burnt refrigerator case, the plaintiff had the burden of proof that the defective wiring was the but for cause of the fire. But when the defendant also shows an alternative cause, then the burden shifts again? How does the burden move around in absence of evidence?

—

For a couple of our cases (Hood v Ryobi and the vaccine one off the top of my head) you’ve mentioned “alternate holdings.” Can alternate holdings be treated as persuasive in the same way that dissents are for the purpose of the exam?

Are there instances where we should use the actual term, “crushing liability”?

Now that we have studied all the elements of negligence as a cause of action, what should we do with negligence as a concept? It’s not just an abstract concept anymore!

I’m getting confused on where reasonable care and foreseeability factors into everything we’ve learned beyond negligence. I feel like we talk about it in terms of each topic, but I am confused on when it is or is not a factor we should/can use to determining liability.

—

I’m also getting confused on what things are decided as a matter of law v. a matter of fact. Will you tell us within the text of the exam question whether something is to be determined as a matter of law or a matter of fact?

I’m also getting tripped up on what a Judge needs to rule on in order to send a case to a jury. For instance, in the scratch pad exercise about factual cause from 1/24 you note: “If the plaintiff has made out a prima facie case, then the question should go to the jury, and the motion for summary judgment should not be granted.”

Would the appropriate answer to a question like that on the final, when analyzed from the judge’s perspective, be that from the facts presented a reasonable jury could find either way on whether the hotel was the factual cause and thus the case should go to a jury?

I guess what gets me confused is that seems like kind of an ’easy way out’ answer, so I would be nervous to deploy it on an exam.

—

Damages

Two separate legal inquiries:

Liability
Damages

[fit] Compensatory

[fit] Damages

and punitive damages

Compensatory Damages

The Objective: To restore the plaintiff to the state they were in before the harm caused by the defendant.

Punitive Damages

BMW v. Gore Guideposts

Degree of reprehensibility
Ratio of punitive damages to harm inflicted on plaintiff
Comparison with civil or criminal penalties

State Farm Excess of single digit ratio is presumptively unconstitutional

—

Questions: Negligence

Can please review the Hand Formula again? For some reason I’m having difficulty applying it to a fact pattern.

I know that we have the Rowland factors as an affirmative duty exception, but I’nm not sure how I would apply them in a case.

Especially seeing that the last Rowland factor is insurance.. If possible can you please touch on how to apply the factors tomorrow during our review?

Negligence as a Cause of Action

Plaintiff must prove four elements:

Duty
Breach
Causation
Harm

Negligence as a Concept

Relates to the elements of duty and breach

The “fault” principle

Defined as a failure to exercise “reasonable care”

—

How does a plaintiff normally prove duty and breach?

D was legally obligated to do X.

D failed to do X.

Therefore, D breached their legal duty.

—

Detailed version

D had a duty (to the plaintiff) to exercise reasonable care under the circumstances. Reasonable care under the circumstances was X, because of - foreseeability, - reasonable person standard, - custom, - statute, - or hand formula.

D failed to do X.

Therefore D acted negligently / breached their legal duty to plaintiff.

—

Reasonable Person Standard

Objective standard

Exceptions to objective standard: - Physical disability - Children - Expertise

Not exceptions to objective standard - Mental disability - Children engaged in adult activity - Old age & infirmity

—

Foreseeability

Foreseeability is a flexible concept.

Define any event in general enough terms and it is foreseeable.

Define any event in narrow enough terms and it is unforeseeable.

How to use customs and statutes

Sword for proving negligence Prove two things:

- Custom or statute = reasonable care - Defendant failed to comply with custom or statute -————————————————— Shield for disproving negligence Prove two things:

- Custom or statute = reasonable care - Defendant complied with custom or statute

Negligence per se

- Actor violates a statute that is designed to protect against this type of accident and harm

AND

- the accident victim is within the class of persons the statute is designed to protect.

Hand Formula (BPL)

B = Burden of precautionary measures P = Probability of loss/harm L = Magnitude of loss/harm

IF B < PL AND defendant did not take on B THEN defendant was negligent

IF B > PL AND defendant did not take on B THEN defendant was NOT negligent

Res ipsa requirements:

Harm results from the kind of situation in which negligence can be inferred
Defendant was responsible for the instrument of harm

—

Rowland Factors

foreseeability of harm
certainty of plaintiff’s injury
connection between defendant’s conduct and plaintiff’s injury
moral blame
policy of preventing harm
burden to defendant
consequences to community
availability of insurance

—

Duties of Landowners and Occupiers

—

Traditional View

Type of Visitor	Definition
Trespasser	Intruder
Licensee	Social guest
Invitee	Business guest or general public (if land opened to public)

Duties Owed — Traditional View

Trespasser

duty not to intentionally or wantonly cause injury
no duty of reasonable care (with handful of exceptions)

Licensee

no duty to inspect or discover dangerous conditions
duty to warn or make known conditions safe

Invitee

duty to inspect and discover dangerous conditions
duty to warn or make conditions safe

Duties Owed — Modern View

Trespasser¹

duty not to intentionally or wantonly cause injury
no duty of reasonable care (with handful of exceptions)

Everybody Else

duty of reasonable care

—

Questions: Duty of Landowners and Occupiers

More examples of Licensee v invitee?

—

Medical Malpractice

—

Two types of medical malpractice claims:

Medical operation was negligently performed

Medical professional failed to obtain patient’s informed consent

—

NIED rules varies across jurisdictions. Examples include:

“Impact” Rule

Zone of Danger requires a reasonable fear of immediate physical injury

Bystander Liability (1) the death or serious physical injury of another caused by defendant’s negligence; (2) a marital or intimate, familial relationship between plaintiff and the injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting severe emotional distress

Special Circumstances (like corpse mishandling)

—

Questions: NIED

—

Causation

Two parts:

Factual cause
Proximate cause

Questions: Factual Cause

Could you come back a little on the differences between the possible alternatives for factual causation: how do we differenciate between concert liability from alternate, and from enterprise to market share?

I am having trouble understanding the difference between applying multiple defendants and alternative liability. Is “Multiple Defendants” just the main topic that covers alternative liability and toxic harm?

Can you please go over multiple sufficient causes and multiple possible causes and how each handles alternative liability for causation again?

What is the appropriate definition for a toxic harm? Is toxic harm only applicable in class action/MDL cases?

—

Factual Cause

Two different tests for factual causation

“But for”
Substantial factor

—

Four tricky factual cause scenarios

Toxic exposure
No idea what happened
Know what happened, but don’t know that it wouldn’t have happened if defendant had behaved reasonably
Know what happened, but don’t know who to blame

Possible alternatives for factual causation

Concert liability
Alternative liability
Enterprise liability
Market share liability

—

Marketshare liability

Variations: — size of market — time of market — defenses in individual cases — several or joint-and-several liability

—

Toxic Harms

Three frequent problems:

Identification of the cause: Can’t be certain that the toxin was a “but for” cause
Boundaries of the harm: Can’t be certain of the extent of the harm
Source of the cause: Can’t be certain who in particular is responsible

Questions: Proximate Cause

For Polemis, I just don’t really understand why the spark that blew up the ship was not sufficiently remote to get the defendants off the hook. The rule I have for Polemis seems to directly contradict my rule from Palsgraf regarding the importance of foreseeability. I don’t have anything in my notes saying Polemis is an outdated rule or was overruled though, so I’m not sure.

Can you go over how damages are awarded for eggshell plaintiff cases?

For eggshell plaintiffs and additional harm situations under proximate cause, does the specific injury have to be foreseeable?

How should we bring in foreseeability for proximate cause analysis?

Can we review proximate cause for Gibson v. Garcia “Rotten Telephone Pole” and Berry v. Sugar Notch Borough?

Can you explain intervening causes and unexpected victims?

—

Proximate Cause

Not about causation

Unexpected harm Additional harm Intervening causes Unexpected victim

—

Questions: Vicarious Liability

When looking at Miller v. Reiman and Christensen v. Swenson, why is it that we can not apply the ruling/reasoning from Miller to Christensen?

Vicarious Liability

Scope of employment:

Employee’s conduct must be of the general kind the employee is hired to perform.
Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.
Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

—

Defenses to Negligence

Questions: Contributory & Comparative Negligence

Can you provide definitions and examples for the contributory negligence affirmative defense exceptions of last chance, recklessness or willfulness, and statute?

Can we review the different negligence regimes?

Non-negligent injury: Does affirmative duty exception of non-negligent injury not apply if the plaintiff’s injury was caused by their own negligence?

In the Li Yellow taxi case the court mentioned that in some situations the assumption of risk doctrine would be subsumed into the comparative negligence doctrine, and in other cases it would not be appropriate to do so. I’m a little confused on when that would apply and when it wouldn’t.

—

Contributory negligence

Comparative negligence

Questions: Doctrine of Contribution

What is the difference between the traditional and modern doctrine of contribution?

If the employer does not have money under comparative negligence, does the employee step in and he owes $ or do the other parties pick up his share?

—

Doctrine of Contribution

Traditional Common Law Approach

Two versions:

Joint and several liability
Several liability

—

Questions: Assumption of Risk

Would you want us to discuss both assumption of risk and comparative negligence defenses regardless of whether a fact pattern indicates a recreational activity?

When talking about The Flopper case in class, we talked about how a plaintiff may assume risk, but we want to look at what types of risk they were assuming. If we see a fact pattern similar to The Flopper, could we argue that the plaintiff did not assume the specific types of risk that caused their harm and thus the assumption of risk defense does not apply?

Do we need to know what the Tunkl factors are or just that they are used sometimes?

In Li v. Yellow Cab they cited Knight v Jewett and differenciate between primary assumption of risk and secondary. I don’t understand the concept of primary assumption of risk that should impose no duty from D to P and that would completely bars P’s recovery ?

—

Assumption of Risk

volenti non fit injuria

- Explicit / Express - Implicit

Should assumption of risk persist in a comparative fault world?

- Explicit / Express → Duty - Implicit -— Primary → Duty -— Secondary → Comparative Fault

Questions: Strict Liability

Because we looked at a few different RST rules, want to confirm that SL applies to ultrahazardous activity, abnormally dangerous activity and Rylands situations. Just these 3 categories.

From the chemical spill in Chicago case, we discussed how negligence analysis on an “activity” is too burdensome, so we focus on an “act.” In strict liability analysis, we focus on an activity. Is that how I should frame my analysis on the exam, too?

Strict Liability

- Very dangerous activity that cannot be made safe by exercising reasonable care —— PWFOPBOHL&C&KTALDMIIE —— PWFOPBOHL&C&KTA “non-natural” and LDMIIE —— “ultrahazardous activity” —— “abnormally dangerous activity” - Products

—

Questions: Products Liability

Is Speller v. Sears a design defect or manufacturing defect case? Does the restatement rule for proving product defect without specific evidence apply for both design defect and manufacturing defect cases?

^ Manufacturing defect

Anderson v. Nissei and Jones v. Ryobi and 3p modifications to a product relieves a manufacturer of liability (just want to make sure I have the right take-away for these two).

^ No, Anderson a bit more specific. Manufacturer relieved of liability only if modification is unforeseeable.

In a product liability defense claim, what would be an example for P’s comparative negligence on the manufacturing and failure to warn side if there is any ? Can a plaintiff be negligent for failure to discover defect?

—

Design defects: all we need to know are the 2 tests and 2 cases?

Is it correct that reasonable alternative design is not always required for the risk utility test, and that a product may be just defective, and manufacturers can be held liable for it if causation and harm are proven?

What does implied assumption of risk look like as an affirmative defense for strict liability/ products liability? Is there an example or case that illustrates this?

^ Hood v. Ryobi. Implied assumption of risk and comparative negligence are going to overlap a lot.

—

In the Anderson case, the court briefly touches on the express warnings defense. They mention that Anderson was aware of the dangers of putting his hand there. In the opinion, they acknowledge this, but they equate it more with a comparative negligence standard. When I reread it just now, it sounded more like an implicit assumption of risk to me. Why did they decide this was comparative negligence when he knowingly took the risk?

In the warning part of PL, you talked about a couple of nuances, including the “heeding presumption”. Can you come back on when to use that ?

—

Products liability

- Manufacturing defect - Design defect — Two tests: — 1) Consumer expectations — 2) Excessive preventable danger - Failure to warn

Defenses

- Contributory and comparative negligence - Disclaimers and waivers (basically assumption of risk) — Not a valid defense in most jurisdictions! But a handful do allow it.

Questions: Intentional Torts

If we’re analyzing an intentional tort claim and conclude that we cannot prove a required element, should we wrap up our analysis for that claim?

Is a proximate/factual cause analysis required for intentional torts?

When thinking about intent, do we solely analyze the defendant’s intended action and not the result of that action?

—

For a battery claim, because there is no imminence requirement , could we have a touching that would harm later ? Like a medication that would take some time to kick-in ?

Are Garratt, Alcorn, Picard, and Wishnatsky applicable for both assault and battery? Or should I be categorizing these cases as falling under separate torts?

Should O’Brien be categorized as a defense (consent) or should I put it under assault?

For defining “outrageous” conduct, is the actual rule that “the conduct would make someone literally say ‘outrageous’”?

Are there defenses to IIED?

—

In the in-class exercise, we did the whole assault analysis for Sara’s spitting but not necessarily her screaming. Would there have been a case for battery for Sara screaming in Bob’s face, as an intentional act resulting in offensive harm? While not physically touching him, screaming does involve hurting the eardrums and while it might not be physical harm if it didn’t damage Bob’s ears, would it have been an offensive harm?

My friends and I had a tricky question where we disagreed … For false imprisonment, what about P was showering and D wanted to haze him by stealing his clothes ? We can argue that there was no reasonable way to escape (under the circumstances) because that would be shameful. But can P assert that his intent was exactly to have D going outside? But for me, P still had substantial knowledge that D could not go out without embarassing himself, therefore was falsely imprisonned ? And of course, he could assert a IIED claim as well ?

—

Intentional torts

Intentional Torts: — Battery — Assault — False imprisonment — Intentional infliction of emotional distress

Defenses: — Consent — Self-defense — Defense of property — Necessity

IIED

NIED

Questions: Insurance

How do the collateral source rule and subrogation interact?

Can you quickly come back on the Rowland factor and why insurance liability is a factor in determining a duty ?

—

Insurance

First party insurance Third party (liability insurance)

Collateral source rule Subrogation

Questions: Workers’ Compensation

Can we please go over this idea that WC is about preventing total wipeout/liability for employers?

How should we reconcile old cases like Christen v. Swenson with the new information on WC? Is it just that if these injuries definitively happened within the scope of employment, the P would bring them under WC and not negligence? Does the scope of employment analysis remain the same? So no vicarious liability analysis, just a WC claim?

Can we please go over the situations where the WC fund would begin issuing payment installments and then stop?

—

Workers Comp

- No fault - Exclusive remedy for work-related injuries

Benefits include: —— Medical coverage —— Percent of lost wages —— Vocational rehabilitation —— Survivor benefits

No-Fault and Beyond

Common features:

Narrow category of injury
Reduced fact-finding and proof requirements
Fixed recovery amounts
Insurance-like funding rather than individual defendant-to-plaintiff payouts

9-11 fund’s unique characteristics:

created after the harm, not in anticipation of harm
individualized approach to economic loss
tort-like awards for noneconomic loss
low administrative costs

Big Picture

What is tort law about?

What values should guide this part of our legal system? — Corrective justice? — Optimal deterrence? — Distributive justice?

Or in California and the Third Restatement, a “flagrant” trespasser rather than just a plain old trespasser ↩︎

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Will we be tested on dissenting opinions?

How important are addressing policy grounds in a court’s majority in our answers?

Do we need to discuss a case’s facts, reasoning, and holding every time we use analogical reasoning? Or does it depend on the situation?

May we reference class hypotheticals in our exam responses? If so, should we approach our analysis the same way that we would for a case?

Just as a confirmation, does both contributory negligence and strict liability not matter for our midterm?

In the sample midterm, you wrote “With regard to res ipsa loquitur, the state of Loyola is a “presumption” jurisdiction, not an “inference” jurisdiction.” What are the differences between “presumption” and “inference” jurisdiction?

Is cognitive awareness a pre requisite for all non pecuniary damages or just loss of enjoyment of life/pain and suffering?

Are there any other non pecuniary damages besides pain and suffering and loss of enjoyment?

Do negative feelings like depression or embarrassment fall under pain and suffering or loss of enjoyment (assuming they are being treated as separate categories)? Or both?

Why do excessive damages violate due process?

Is there a situation where punitive damages are not allowed? If a state statute does not mention if plaintiff can recover punitive damages, do we assume that punitive damages in that state is not allowed?

In the case BMW v. Gore, the court was worried about the jurisdiction. Was the court saying that the punishment (damages) should deter these actions in the state that it happened in?

In State Farm v. Campbell, what did the court mean when it said the defendant cannot be punished for “dissimilar conduct?”Can you clarify the difference between being negligent and being liable? Can you be negligent but not liable, or the other way around?

Negligence as a cause of action vs. prima facie negligence, how are they different?

Prima facie negligence - what do you do next after you show its on its face? I’m confused about next steps

Should a factfinder ever take a defendant’s own physical characteristics, intelligence, or skill? Is there a subjective element to this standard?

Negligence per se as a “short cut” – If we have a negligence per se case, do we not have to do the reasonable care analysis?

From Robinson v. D.C., is the rule that you can’t rebut negligence per se unless you tried to follow the rule?

How should I integrate into my outline. Baltimore and Ohio R.R. v. Goodman, Pokora v. Wabash Railway Co., and Akins v. Glens Falls City School District? I’m still confused on the difference between the train cases (Baltimore and Pakora), if we could go over how they differentiate again that would be great.

When should a judge decide negligence as a matter of law? When are rules better than standards? From my understanding, negligence as a matter of law is when it’s so obvious that it doesn’t require a jury, HOWEVER, we also know that judges can overreach in their abilities and that sometimes it should have gone to a jury. Is negligence as a matter of law hardline or does it depend on the judge?

In terms of the steps of “Do you have a legal duty?” where exactly does res ipsa stand? Does it bypass the steps completely or does it come after “Do your actions create a risk of physical harm?” or after “Does an affirmative duty exception apply?”

What is the differences between res ipsa and prima facie negligence? If I (plaintiff) prove the two elements of res ipsa, do I have a prima facie case of negligence? If I have duty, breach, causation, and harm, do I also have prima facie case of negligence?

Can we please also go over in more detail the “creation of harm” aspect for determination of duty?

Appendix A lists Maldonado v. Southern Pacific Transp. Co. but I don’t think that case was ever assigned for reading?

What is the difference between undertaking and non-negligent injury? It seems that they both require reasonable care to be exercised when rendering aid.

Could you please provide examples of non-negligent injury and non-negligent creation of risk as an affirmative duty exception?

For Tarasoff, did the court say NO special relationship but there is a duty to a third party under the Rowland factors, or did it say there is a special relationship under the Rowland factors?

When and how do we apply the Rowland factors? Should I be thinking of the Rowland Factors as another step in the Duty flowchart? If I do not find an exception, should I always then look to the Rowland Factors? Or are there only some certain circumstances that merit an analysis of the Rowland factors?

Will we need to know the traditional view of duties owed to different types of visitors or will the modern view suffice?

On the exam, if we are asked about landowners and occupiers, would you give us an instruction on whether to follow the traditional view or the modern view?

Can you please clarify the difference between a licensee and invitee and what a “material benefit” would be? Regarding invitee and licensee: I understand a major distinction is that an invitee provides a material benefit to the property owner whereas a licensee does not, but where does the idea of open to the general public come in? Is it a characteristic that falls under one of the categories?

From the Falzone v Busch case, we got a list of policy reasons for the impact rule and were told New Jersey rejected these rules, should we know the policy reasons for the impact rule? Will it count or do they not matter, as New Jersey rejected it along with other states?

How does foreseeability tie into the Bystander Liability rule from Portee v. Jaffee?

With bystander liability, some cases use three factors and some use four, which should we use?

What about reasonable fear? If one witness an accident, reasonably believes that a closed related has died and eventually emerges with only minor injuries, can the witness who would suffer physical consequences or illness due to this trauma recover? Can we establish a parallel based on Falzone where reasonable fear that you could have died was enough?

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Res Ipsa Exercise

Ross v. Benson

You are an appellate court judge in the state of Loyola. The following case comes to you on appeal from a trial court. You should take notes on the opinion that you would write in this case and be prepared to share your thoughts with the class.

The plaintiff, a nine-year-old named Ronnie Ross, was injured when an SUV belonging to the defendant, Idris Benson, ran him over, causing serious physical injury. The Benson family — Idris, his husband, and their twin nine-year-old children — was visiting the Ross family — Ronnie and his parents — at their home for lunch. Both families planned to attend a children’s birthday party at another family’s home later that afternoon. After eating lunch, the Bensons offered to drive Ronnie to the birthday party so that Ronnie’s parents could take their time cleaning up from lunch and could join them later. The Ross family agreed and told Ronnie to behave himself.

As the Benson family and Ronnie left the house, Idris Benson remotely unlocked his car, a 4-door SUV, that was parked in the Ross’s driveway, directly behind the Ross’s car. The driveway is on a moderate incline, and there was about five feet of space between the back of Benson’s car and a residential street. As the adults gathered birthday presents from the Ross’s house, the three children ran ahead and hopped in the backseat of the car. At trial, the children each testified that none of them got in the front seat, that none of them touched any of the control mechanisms of the car, and that “something clicked in the front and the car started rolling” backwards in the direction of the street. One of the Benson children opened the door and told the others to jump out. All three of the children jumped out. When Ronnie jumped out, he fell, and the front wheel of the SUV ran over him, causing serious injury.

At trial, the plaintiff introduced no evidence as to the condition of the brakes, whether the handbrake had been set, or what gear the car was in. The plaintiff alleged that the defendant was negligent and that the doctrine of res ipsa loquitur applies. At the close of the plaintiff’s case, the trial court ordered a directed verdict for the defendant finding that res ipsa loquitur does not apply and that the plaintiff failed to present a prima facie case of negligence. The plaintiff now appeals.

How do you rule and why? Organize your notes for each issue according to the CREAC method:

Conclusion
Rule
Explanation
Application
Conclusion

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Intentional Torts

Products Liability Exercise Part 1

You are a junior associate at a plaintiff-side firm. A partner at the firm has brought you in to work on an interesting new case. The potential plaintiff, a nine-year-old boy named Augustus Gloop, choked on a hot dog during lunch in his elementary school cafeteria. The child survived — thanks to a gym teacher’s training in first aid and CPR — but suffered serious injuries. His family is now interested in suing Oscar Mayer Weiner, the company that produced this hot dog.

The partner at your firm doesn’t typically litigate products liability cases, so she wants you to catch her up to speed. She’d like you to sketch out arguments supporting a failure to warn claim, a design defect claim, and a manufacturing defect claim. For each claim, provide an example of a piece of evidence that would help our client win. And let her know which claims have the best chance of success. On the failure to warn claim, you should know that Oscar Mayer Weiner will seek protection from the “learned intermediary” doctrine as the company does inform elementary schools that hot dogs are a choking hazard.

Products Liability Exercise Part 2

You are a junior associate at a firm representing Oscar Mayer Weiner.

Same set of facts. A potential plaintiff, a nine-year-old boy named Augustus Gloop, choked on a hot dog during lunch in his elementary school cafeteria. The child survived — thanks to a gym teacher’s training in first aid and CPR — but suffered serious injuries. His family is now interested in suing Oscar Mayer Weiner, the company that produced this hot dog.

A partner at your firm would like you to sketch out arguments defending Oscar Mayer Weiner the plaintiff’s potential failure to warn claim, design defect claim, and manufacturing defect claim.

Products Liability Exercise

Manufacturing defect

Design defect — Consumer expectations — Excessive preventable danger (requires reasonable alternative design)

Failure to warn -————————————- Defenses — Not a prima facie case — Contributory or comparative negligence, assumption of risk

Intentional Torts

Structure for this Part of the Course

Intentional Torts: — Battery — Assault — False imprisonment — Intentional infliction of emotional distress

Defenses: — Consent — Self-defense — Defense of property — Necessity

Garratt v. Dailey

The Issue of Certainty

Picard v. Barry Pontiac-Buick, Inc.

Wishnatsky v. Huey

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Alternatives to Tort Law

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Insurance

Classes Next Week

Tuesday, April 23rd 8:45am to 10:00am in the Hall of the 70s.

Thursday, April 25th 8:45am to 10:00am in the Hall of the 70s.

Friday April 26th 10:00am to 11:15am in the Hall of the 70s. Office hours immediately following the end of class.

Website Updates

Past final exam and memo
Notes and part of draft answer for in-class exercise

—

Supplemental Reading

—

The Big Picture

~~Torts~~

~~— Remedies~~

~~— Negligence~~

~~—— Breach~~

~~—— Duty~~

~~—— Causation~~

~~—— Defenses~~

~~— Strict Liability~~

~~—— Traditional view~~

~~—— Products liability~~

~~— Intentional Torts~~

Not Torts

—— Insurance

—— Workers’ Compensation

—— Alternatives to Tort

Why are we learning this?

—

1) Positive and Negative Space

Napoleon Leading the Army over the Alps

Kehinde Wiley

2) Tort concepts are infectious.

3) I want you to look smart.

But it’s not torts.

First party insurance

versus

Third party (liability) insurance

—

Collateral source rule
Subrogation

Understanding these rules in combination

Only the collateral source rule exists — no subrogation
Only subrogation exists — no collateral source rule
Both the collateral source rule and subrogation exist (our actual legal regime)

Straightforward example: a house fire

But it gets complicated with:

Personal injury
Settlement

Liability Insurance

How does liability insurance affect tort law?

Changes how damages are paid.
Changes what lawsuits are filed.
Can affect substantive tort law itself.
Can affect policy rationale / justification for legal rules.

Remember the Rowland Factors?

foreseeability of harm
certainty of plaintiff’s injury
connection between defendant’s conduct and plaintiff’s injury
moral blame
policy of preventing harm
burden to defendant
consequences to community
availability of liability insurance

Hypos on Impact of Insurance

First party insurance for plaintiff in

Vincent v. Lake Erie Transport Co.

Liability insurance for defendants in

Randi W. v. Muroc Joint Unified School District

Pavia v. State Farm

“Insurance Bad Faith”

Assumption of Risk

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McCarty v. Pheasant Run, Inc.

“Unlocked Hotel Room Door”

and

Wassell v. Adams

“Opened Hotel Room Door”

—

Discussion Questions

Given the facts of these cases, what would a just outcome in each case have been?

How capable is our legal system of producing just outcomes in these cases? How does it fall short? What would need to change?

—

Assumption of Risk

Where are we?

Negligence

~~Elements of a cause of action:~~

~~— Duty~~

~~— Breach~~

~~— Causation~~

~~— Harm~~

Defenses:

~~— Contributory or Comparative Negligence~~

— Assumption of risk

Hanks v. Powder Ridge Restaurant Corp.

“Snowtubing Waiver”

Two Common Issues

Was the contract clear enough about releasing the defendant from liability?
Will the court enforce contract?

I fully assume all risks associated with [s]nowtubing, even if due to the NEGLIGENCE of [the defendants]
I … agree I will defend, indemnify and hold harmless [the defendants] … from any and all claims, suits or demands … including claims of NEGLIGENCE on the part of [the defendants]
I will not sue [the defendants] … for money damages for personal injury … even if due to the NEGLIGENCE of [the defendants]

Will the court enforce contract?

Various legal tests for determining if liability waiver is against public policy:

- Liability waivers are unenforceable

- Totality of the circumstances

- Six factors from Tunkl

Tort Law Values

Era	Philosophy	Primary Goal	Concern
Classical	Corrective justice	Individual accountability	Autonomy
Neoliberal	Economics	Maximize utility	Efficiency

Tort Law Values

Era	Philosophy	Primary Goal	Concern
Classical	Corrective justice	Individual accountability	Autonomy
New Deal	Political Economy	Distributive justice	Power
Neoliberal	Economics	Maximize utility	Efficiency

Murphy v. Steeplechase

“The Flopper”

volenti non fit injuria

“to one who is willing, no wrong is done”

Cardozo’s counter-examples

“Obscure and unobserved” dangers
Too many accidents

—

Knight v. Jewett

“Touch Football Injuries”

—

Explicit assumption of risk

Implicit assumption of risk

Causation

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Welcome to the Spring Semester!

—

Midterm Review

Semester Overview

Negligence

— Causation

—— Factual Causation

—— Proximate Cause

— Defenses

—— Contributory & Comparative Negligence

—— Assumption of Risk

Semester Overview

Strict Liability

— Traditional view

— Products liability

—— Manufacturing defects

—— Design defects

—— Warnings

—— Defenses

Semester Overview

Intentional Torts

— Types of intentional tort

— Defenses

Alternatives to Tort

Causation

Two parts:

Factual cause
Proximate cause

Factual causation is usually straightforward

Adams v. Bullock: “The Swinging Wire and Electric Trolley”

Martin v. Herzog: “The Buggy Without Lights”

Byrne v. Boadle: “The Falling Flour Barrel”

Reynolds v. Hicks: “Underage Drinking and Driving”

Stubbs v. City of Rochester

Two different tests for factual causation

“But for”
Substantial factor

California Jury Instructions

[Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.]

Zuchowicz v. United States

Four typical scenarios in which factual cause may be contested

Toxic exposure
No idea what happened
Know what happened, but don’t know that it wouldn’t have happened if defendant had behaved reasonably
Know what happened, but don’t know who to blame

Compensatory Damages

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Remedies

The consequences of liability.

Remedies include:

Compensatory damages
Punitive damages
Nominal damages and declaratory judgment
Equitable relief

[fit] Compensatory

[fit] Damages

and punitive damages

Compensatory Damages

The Objective: To restore the plaintiff to the state they were in before the harm caused by the defendant.

Two separate legal inquiries:

Liability
Damages

Single judgment rule

Seffert v. Los Angeles Transit Lines

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

McDougald v. Garber

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

Jury Exercise

You are a jury, determining damages in the following case.

You must now determine the plaintiff’s compensatory damages for future economic loss and pain and suffering.

Contributory and Comparative Negligence

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—

In-Class Exercise

—

Clarifying “intervening” causes and “superseding” causes

Different terms for the same thing: an event that occurs after the defendant’s negligent act and before the plaintiff’s injury that breaks the chain of causation.

—

Factual Cause

Stubbs v. City of Rochester: “Sewage in the Drinking Water”

Zuchowicz v. United States: “Prescribed Drug Overdose”

Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.: “Multiple Fires Whodunnit”

Summers v. Tice: “Hunting Party Whodunnit”

Garcia v. Joseph Vince Co.: “Fencing Sabre Whodunnit”

Sindell v. Abbott Laboratories: “Toxic Harms”

—

Four typical scenarios in which factual cause may be contested

Toxic exposure
No idea what happened
Know what happened, but don’t know that it wouldn’t have happened if defendant had behaved reasonably
Know what happened, but don’t know who to blame

—

Proximate Cause

In re Polemis: “The Plank that Made a Ship Explode”

Wagner v. International Railway Co.: “The Injured Rescuer”

Benn v. Thomas: “The Time-Delayed Heart Attack”

Steinhauser v. Hertz Corp.: “Sudden Schizophrenia”

Gibson v. Garcia: “The Rotten Telephone Pole that Fell on the Car”

Berry v. Borough of Sugar Notch: “The Rotten Tree that Fell on the Speeding Car”

Palsgraf v. Long Island Railway Co.: “Fireworks on the Train Platform”

—

Vicarious Liability

Miller v. Reiman-Wuerth Co.: “The Bank Errand”

Christensen v. Swenson: “The Lunch Break”

Kuehn v. Inter-city Freight: “Road Rage”

Sage Club v. Hunt: “The Violent Bartender”

—

Three criteria for scope of employment

Employee’s conduct must be of the general kind the employee is hired to perform.
Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.
Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

—

Where are we?

Negligence

~~Elements of a cause of action:~~

~~— Duty~~

~~— Breach~~

~~— Causation~~

~~— Harm~~

Defenses:

— Contributory or Comparative Negligence

— Assumption of risk

Contributory Negligence

Reconciling

Butterfield v. Forrester

“Blocking a Road with a Pole”

and

Davies v. Mann

“The Donkey on the Road”

Contributory Negligence in General:

The defendant is not liable

If the plaintiff was also negligent

— Duty,

— Breach,

— Causation, and

— Harm

Unless an exception applies:

— Last clear chance,

— Recklessness or willfulness of defendant, or

— Statute

Li v. Yellow Cab Company

“Car Accident Comparative Negligence”

—

Comparative Negligence

Three forms:

Pure comparative negligence
“Not as great as”
“No greater than”

Comparative Negligence

Three forms:

Pure comparative negligence
“Not as great as” = (Plaintiff less than 50% at fault)
“No greater than” = (Plaintiff 50% or less at fault)

Can the negligent plaintiff recover damages?

That’s not

a flowchart!

It’s cool

Can the negligent plaintiff recover damages?

If multiple defendants are liable, how much are they each paying?

Doctrine of Contribution

Traditional Common Law Approach

Two versions:

Joint and several liability
Several liability

Apportionment based on factual cause

Don’t

forget about

factual cause!

Don’t forget about factual cause!

Tortfeasors are only liable for the injuries they caused.

Order of operations with multiple injuries and multiple liable defendants

First step:

Separate injuries based on factual cause.

Second step:

For injuries that multiple defendants caused, sort out liability based on the contribution rule in the jurisdiction.

Fritts v. McKanne

Contributory and Comparative Negligence

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Contributory Negligence in General:

The defendant is not liable

If the plaintiff was also negligent

— Duty,

— Breach,

— Causation, and

— Harm

Unless an exception applies:

— Last clear chance,

— Recklessness or willfulness of defendant, or

— Statute

—

Comparative Negligence

Three forms:

Pure comparative negligence
“Not as great as” = (Plaintiff less than 50% at fault)
“No greater than” = (Plaintiff 50% or less at fault)

—

Can the negligent plaintiff recover damages?

—

Can the negligent plaintiff recover damages?

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 40%, B - 30%, C - 10%, D - 20%

—

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 40%, B - 30%, C - 10%, D - 20%

Question 1: In a traditional common law jurisdiction, how would damages be allocated? Why?

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 40%, B - 30%, C - 10%, D - 20%

Question 2: Assume instead that we are in a jurisdiction that has “pure” comparative negligence. How would damages be allocated? Why?

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 40%, B - 30%, C - 10%, D - 20%

Question 3: Assume instead that we are in a jurisdiction that has “no greater than” modified comparative negligence. How would damages be allocated? Why?

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 50%, B - 30%, C - 10%, D - 10%

Question 4: Assume the comparative fault of the parties has changed. Under “no greater than” modified comparative negligence, how would damages be allocated? Why?

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 51%, B - 30%, C - 10%, D - 9%

Question 5: Assume the comparative fault of the parties has changed. Under “no greater than” modified comparative negligence, how would damages be allocated? Why?

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 50%, B - 30%, C - 10%, D - 10%

Question 6: Assume the comparative fault of the parties has changed. Under “not as great as” modified comparative negligence, how would damages be allocated? Why?

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 40%, B - 30%, C - 10%, D - 20%

Question 7: Assume the comparative fault of the parties has changed back to the original numbers. Under “not as great as” modified comparative negligence, how would damages be allocated? Why?

—

If multiple defendants are liable, how much are they each paying?

Doctrine of Contribution

Traditional Common Law Approach

Two versions:

Joint and several liability
Several liability

Apportionment based on factual cause

Don’t

forget about

factual cause!

Don’t forget about factual cause!

Tortfeasors are only liable for the injuries they caused.

Order of operations with multiple injuries and multiple liable defendants

First step:

Separate injuries based on factual cause.

Second step:

For injuries that multiple defendants caused, sort out liability based on the contribution rule in the jurisdiction.

—

Doctrine of Contribution

Traditional Common Law Approach

Example:

Four defendants (A, B, C, and D) with $100k damages.

Joint and several liability jurisdiction

A, B, C, and D have plenty of money

Who pays what?

Doctrine of Contribution

Traditional Common Law Approach

Example:

Four defendants (A, B, C, and D) with $100k damages.

Several liability jurisdiction

A, B, C, and D have plenty of money

Who pays what?

Doctrine of Contribution

Traditional Common Law Approach

Example:

Four defendants (A, B, C, and D) with $100k damages.

Joint and several liability jurisdiction

A and B have plenty of money

C and D have no money

Who pays what?

Doctrine of Contribution

Traditional Common Law Approach

Example:

Four defendants (A, B, C, and D) with $100k damages.

Several liability jurisdiction

A and B have plenty of money

C and D have no money

Who pays what?

Doctrine of Contribution

Modern Approach

Apportionment based on comparative fault.

Example: Four defendants (A, B, C, and D) with $100k damages.

A is 40% at fault.

B is 10% at fault.

C is 20% at fault.

D is 30% at fault.

Doctrine of Contribution

Modern Approach

Apportionment based on comparative fault.

Example: Four defendants (A, B, C, and D) with $100k damages.

A is 40% at fault. So A owes $40k.

B is 10% at fault. So B owes $10k.

C is 20% at fault. So C owes $20k.

D is 30% at fault. So D owes $30k.

What about vicarious liability?

—

Vicarious liability and the doctrine of contribution

Modern Approach

Apportionment based on comparative fault.

Example: Four defendants (A, B, C, and D) with $100k damages.

A is 40% at fault.

B is 10% at fault.

C is 20% at fault.

D is 30% at fault.

E is vicariously liable for D’s negligence.

—

Vicarious liability and the doctrine of contribution

Modern Approach

Apportionment based on comparative fault.

Example: Four defendants (A, B, C, and D) with $100k damages.

A is 40% at fault. So A owes $40k.

B is 10% at fault. So B owes $10k.

C is 20% at fault. So C owes $20k.

D is 30% at fault. E is vicariously liable for D’s negligence. So E owes $30k.

—

Fritts v. McKinne

“The Doctor Who Blamed the Drunk Driver”

McCarty v. Pheasant Run, Inc.

“Unlocked Hotel Room Door”

and

Wassell v. Adams

“Opened Hotel Room Door”

—

Discussion Questions

Given the facts of these cases, what would a just outcome in each case have been?

How capable is our legal system of producing just outcomes in these cases? How does it fall short? What would need to change?

Course Overview

Mon, 01 Jan 0001 00:00:00 +0000

Administrative Crap

Office Hours

— New time: Thursdays from 1:00pm to 2:30pm

Thursday’s Reading Assignment

— Has been pushed to next Tuesday

Recap

How to Read a Case

Before you begin:

Connect with your purpose.
Discern your immediate goal.

Internal logic and mechanics of a case

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

Reasoning behind the holding

Three lines of reasoning

Precedent binds us.
Analogy to products liability falls apart.
Supreme Court reasoning in analogous case applies here.

How to answer this kind of question

Course overview

What is torts?

Scope of tort law

What is tort law all about?

Tort Law Concerns

Individual relationship of plaintiff and defendant
Societal efficiency
Distribution of resources and concentration of power

Course roadmap

On the course website under Course Content

Exam question

Customs & Statutes

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Negligence as a Cause of Action

Plaintiff must prove four elements:

??????????
??????????
??????????
??????????

Negligence as a Cause of Action

Plaintiff must prove four elements:

Duty
Breach
Causation
Harm

Proving Negligence

To establish that the defendant’s conduct fell below standard of reasonable care, plaintiff needs to prove:

What defendant did or did not do.
What defendant should have done.

Ways to determine reasonable care under the circumstances include:

- Foreseeability - The Reasonable Person - Custom - Statute

Special Considerations - Judge and jury relationship

Judges & Juries

Rules vs. Standards

Rules are rigid, bright-line tests that are easily applied to facts

Standards offer guidance for decisions but allow discretion

Tradeoffs

Rules Promote predictability, certainty, consistency Helpful for guiding future behavior

Standards Promote fairness, flexibility, sensitivity to circumstances Helpful for individualized judging of past behavior

The T.J. Hooper

“Tugboats and Radios”

Martin v. Herzog

“The Buggy Without Lights”

Legal jargon

Prima facie case of negligence

Negligence per se

- Actor violates a statute that is designed to protect against this type of accident and harm

AND

- the accident victim is within the class of persons the statute is designed to protect.

Tedla v. Ellman

“Walking on the Side of the Highway”

How to use customs and statutes

Sword for proving negligence Prove two things:

- Custom or statute = reasonable care - Defendant failed to comply with custom or statute -————————————————— Shield for disproving negligence Prove two things:

- Custom or statute = reasonable care - Defendant complied with custom or statute

Short exercise

Write the dissent in Tedla v. Ellman.

Explain why Martin v. Herzog controls and therefore plaintiffs were negligent as a matter of law.

Customs & Statutes

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Proving Negligence

To establish that conduct fell below standard of reasonable care, plaintiff needs to prove:

What defendant did or did not do.
What defendant should have done.

How to use customs and statutes

Sword for proving negligence Prove two things:

- Custom or statute = reasonable care - Defendant failed to comply with custom or statute -————————————————— Shield for disproving negligence Prove two things:

- Custom or statute = reasonable care - Defendant complied with custom or statute

Negligence per se

- Actor violates a statute that is designed to protect against this type of accident and harm

AND

- the accident victim is within the class of persons the statute is designed to protect.

Rushink v. Gerstheimer

“Leaving Keys in the Ignition”

In recommending the enactment of section 1210, the Joint Legislative Committee on Motor Vehicle Problems stated that the proposed law was:

Trimarco v. Klein

“Broken Shower Door”

Robinson v. District of Columbia

“Jaywalking”

Exercise

You are a Supreme Court Justice in the State of Loyola Supreme Court, hearing a case on appeal. Your small group represents the entire Loyola Supreme Court.

How do you rule? You are welcome to have majority opinions, concurring opinons, and dissenting opinions.

Damages

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Recap

Remedies

The consequences of liability.

Remedies include:

?????????? damages
?????????? damages
Nominal damages and declaratory judgment
Equitable relief

Remedies include:

Compensatory damages
Punitive damages
Nominal damages and declaratory judgment
Equitable relief

[fit] Compensatory

[fit] Damages

and punitive damages

Compensatory Damages

The Objective: ???????????????

Compensatory Damages

The Objective: To restore the plaintiff to the state they were in before the harm caused by the defendant.

Seffert v. Los Angeles Transit Lines

Rule for excessive damages?

Seffert v. Los Angeles Transit Lines

Rule for excessive damages:

Damages award must shock the conscience, be the result of “passion,” “prejudice,” “whim,” “caprice”

McDougald v. Garber

Two legal issues?

McDougald v. Garber

Two legal issues:

Are “pain and suffering” and “loss of enjoyment” distinct issues?
Does “loss of enjoyment” require cognitive awareness?

Holding?

McDougald v. Garber

Two legal issues:

Are “pain and suffering” and “loss of enjoyment” distinct issues?
Does “loss of enjoyment” require cognitive awareness?

Holding:

“Pain and suffering” and “loss of enjoyment” are not distinct issues.
“Loss of enjoyment” requires cognitive awareness.

Jury Exercise

Confer with group for 10 minutes.

Come back with:

Dollar amount for compensatory damages for future economic loss and pain and suffering
Breakdown of how that was calculated

Jury Exercise:

Group 01: $2,250,000 Group 02: $825,000 Group 03: $790,000 Group 04: $3,480,000 Group 05: $3,600,000 Group 06: $3,100,000 + pain and suffering Group 07: $4,200,000 Group 08: $2.5 million + pain and suffering Group 09: $2,000,000 Group 10: $4,200,000 Group 11: $2,420,000 Group 12: $1,960,000

Systemic Inequality & Damages Calculations

Consideration of race, gender, national origin, and immigration status.

Argument in favor

Accuracy

Compensatory damages are about what is, not what should be

Critiques

Creates harmful incentives for potential tortfeasors

Assumes the future = the past

Ignores expressive function of law

My own take

Accuracy argument weaker than it appears

What is individual accuracy?
Statistical modeling always involves normative choices

Elimination of explicit consideration of race and gender does not eliminate influence of systemic inequality on damages awards:

Proxies persist
Compensatory damages in an unequal society restores inequality

California Law:

Estimations, measures, or calculations of past, present, or future damages for lost earnings or impaired earning capacity resulting from personal injury or wrongful death shall not be reduced based on race, ethnicity, or gender.

CA Civ Code § 3361 (2022)

BMW v. Gore

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

14th Amendment

Section 1.

…

Three Guideposts

Degree of reprehensibility
Ratio of punitive damages to harm inflicted on plaintiff
Comparison with civil or criminal penalties

Damages Recap

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In-Class Exercise

Oral argument: Appealing a Punitive Damages Award

Issue

Rule

[fit] Argument

Conclusion (optional)

I - Does the punitive damages award violate the 14th Amendment by depriving the defendant of its property without due process of law ?

R - BMW v. Gore guideposts

A - Argument

C - Conclusion

I - Does the punitive damages award violate the 14th Amendment by depriving the defendant of its property without due process of law ? R - BMW v. Gore guideposts A - Argument

-– IRAC - Reprehensability -– IRAC - Ratio -– IRAC - Civil and criminal penalties

C - Conclusion

Legal Authority

Two Legal Tests

State Farm Anything outside of single digit ratio of punitive to compensatory damages is presumed unconstitutional.

BMW v. Gore 1 - Reprehensibility 2 - Disparity between compensatory damages and harm inflicted on plaintiff 3 - Comparison with civil or criminal penalties

One Persuasive Case

Mathias v. Accor Economy Lodging, Inc.

Outlining

Goals for reading cases

Grasp the internal logic and mechanics of the case.
Synthesize within a broader context.

Goals for outlining

Creating and studying an outline should help you to:

Spot issues on the exam
Resolve issues methodically and comprehensively

Outline for damages

Defenses

Mon, 01 Jan 0001 00:00:00 +0000

Makeup Classes

Thursday, April 25th 10:00am until 11:15am in the Hall of the 70s.

Friday April 26th 10:00am until 11:15am in the Hall of the 70s. Immediately followed by office hours in the Hall of the 70s.

Snyder v. Phelps

“Protesting Soldiers’ Funerals”

—

Defenses

Consent

Self Defense

Defense of Property

Necessity

Hart v. Geysel

“Consenting to a Prize Fight”

Hackbart v. Cincinnati Bengals

“Professional Football Injury”

O’Brien v. Cunard

“The Silent Vaccine Objector”

—

Self Help Defenses

Self Defense

Defense of Property

Necessity

—

Self defense

Courvoisier v. Raymond

“Mistaken Self-Defense”

—

Defense of property

Katko v. Briney

“The Spring-Gun Boobytrap”

—

Necessity

Ploof v. Putnam

“The Private Island in a Storm”

Vincent v. Lake Erie Transportation Company

“The Boat Slamming Against the Dock”

—

Hand Formula

B < P*L

Negligence when the burden on the defendant of taking precautions is less than the probability of loss for the plaintiff multiplied by the magnitude of that loss.

Duty to Act

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Harper v. Herman

“The Boat Owner in Shallow Water”

Sidenote: Don’t write like this

On Sunday, August 9, 1986, Jeffrey Harper (“Harper”) was one of four guests on Theodor Herman’s (“Herman”) 26-foot boat…

Because good writers don’t write like that.

Call me Ishmael (“Ishmael”).

It is a truth universally acknowledged, that a single man (“man”) in possession of a good fortune (“fortune”), must be in want of a wife (“wife”).

As Gregor Samsa (“Samsa”) awoke ~~one morning~~ on Sunday, August 9, 1926 from uneasy dreams he found himself transformed in his bed into a gigantic insect (“cockroach”).

But why don’t good writers write like that?

Because they treat the reader like a big, golden baby.

Farwell v. Keaton

“The Fatal Pickup Attempt”

Union Pacific Railway v. Cappier

“The Railroad that Ran Over a Man and Let Him Die”

The modern rule for non-negligent creation of injury

Maldonado v. Southern Pacific Transp. Co. (Ariz. App. 1981)

Issue: Whether the railroad owed the plaintiff a duty to render aid after he was seriously injured by the train.

Court adopts rule from Restatement (Second) of Torts :

Duty to Third Parties & Policy Bases for No Duty

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Should we write like this?

On Sunday, August 9, 1986, Jeffrey Harper (“Harper”) was one of four guests on Theodor Herman’s (“Herman”) 26-foot boat…

We treat our reader like a big, golden baby.

A duty to

exercise reasonable care

[fit] Tarasoff v. Regents of the University of California

“The Psychiatrist Who Didn’t Warn the Murder Victim”

[fit] Randi W. v. Muroc Joint Unified School District

“The Alleged Sexual Predator’s Recommenders”

Rowland Factors

foreseeability of harm
certainty of plaintiff’s injury
connection between defendant’s conduct and plaintiff’s injury
moral blame
policy of preventing harm
burden to defendant
consequences to community
availability of insurance

Strauss v. Belle Realty

Third Restatement

When determining that no legal duty exists for reasons of public policy, courts should use “categorical, bright-line rules of law applicable to a general class of cases.”

Two Closing Thoughts

Crushing liability has not aged well.
Policy justifications ≠ individual autonomy concerns

Reynolds v. Hicks

Negligence Per Se

Remember Martin v. Herzog?

Negligence Per Se

Under RCW 66.44.270(1) it is a crime to:

What the heck?

Two Reasons

Legal
Policy

Economic Theory of Negligence

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Exercise

You are a Supreme Court Justice in the State of Loyola Supreme Court, hearing a case on appeal. Your small group represents the entire Loyola Supreme Court.

How do you rule? You are welcome to have majority opinions, concurring opinons, and dissenting opinions.

Proving Negligence

To establish that conduct fell below standard of reasonable care, plaintiff needs to prove:

What defendant did or did not do.
What defendant should have done.

How to use customs and statutes

Sword for proving negligence Prove two things:

- Custom or statute = reasonable care - Defendant failed to comply with custom or statute -————————————————— Shield for disproving negligence Prove two things:

- Custom or statute = reasonable care - Defendant complied with custom or statute

Negligence per se

- Actor violates a statute that is designed to protect against this type of accident and harm

AND

- the accident victim is within the class of persons the statute is designed to protect.

United States v. Carroll Towing Co.

A workable formula for reasonable care?

BPL

B = Burden of precautionary measures P = Probability of loss/harm L = Magnitude of loss/harm

IF B < PL AND defendant did not take on B THEN defendant was negligent

IF B > PL AND defendant did not take on B THEN defendant was NOT negligent

BPL Example

Possible Precautions for Defendant to Take	Cost of precautionary measure	Expected cost to plaintiff	Total cost to society
No Precaution	$0	$100k	$100k
Solar Panels	$200k	$0	$200k

BPL Example

Possible Precautions for Defendant to Take	Cost of precautionary measure	Expected cost to plaintiff	Total cost to society
No Precaution	$0	$100k	$100k
Solar Panels	$200k	$0	$200k
Spark Arresters	$30k	$50k	$80k

Economic Theory of Negligence

Fault = economic inefficiency
Embodies a trust in private ordering and economic incentives
Driven by a goal of maximizing overall economic welfare

Critiques of Economic Theory

Incommeasurability of harms
Uncertainty of cost calculations

What we’ve learned…

Ways to determine reasonable care under the circumstances include:

- Foreseeability - The Reasonable Person - Custom - Statute - Cost-Benefit Analysis (Hand Formula: B < P*L)

Special Considerations - Judge and jury relationship

Factual Cause Review

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Toxic Harms

Why is the tort system such a poor fit?

Three frequent problems:

Identification of the cause: Can’t be certain that the toxin was a “but for” cause
Boundaries of the harm: Can’t be certain of the extent of the harm
Source of the cause: Can’t be certain who in particular is responsible

Mass Torts

A procedural story in two parts:

The Supreme Court killed the mass tort class action
Multidistrict litigation (MDL) took over

Factual Causation Speedrun

Causation

Two parts:

Two different tests for factual causation

Causation

Two parts:

Factual cause
Proximate cause

Two different tests for factual causation

“But for”
Substantial factor

—

Factual cause is usually straightforward

Make a factual cause argument for the plaintiff in each case

Jonathan Carter visited Ronald Kinney’s home for a bible study session, slipped on a patch of ice in Kinney’s driveway, and broke his leg.

—

Possible issues with factual cause

Maybe something other than negligence was the but-for cause.

Multiple possible defendants

- Each defendant’s negligence was enough to cause the harm, but remove any one defendant and the harm still happens.

- Only one defendant was the but-for cause but can’t figure out which one.

— All of the possible defendants were negligent and are before the court.

— Some of the possible defendants were negligent and some were not.

— It’s a whole industry that was negligent

Exercise #1

You are an attorney at a plaintiff’s side firm in the state of Loyola.

Waters visits your office as a prospective client. She wants to know if she has a viable negligence claim against Meyer or Morales, who she should sue, and if she will win. Please advise her.

Exercise 2

Same initial fact pattern as the first exercise. Except now, in addition to being hit by Meyer and Morales, Waters was also hit by two other drivers who fled the scene.

Waters visits your office as a prospective client. She wants to know if she has a viable negligence claim against Meyer or Morales, who she should sue, and if she will win. Please advise her.

Exercise 3

You are an attorney at a plaintiff’s side firm in the state of Loyola.

For this question, assume that duty and breach can be proven. Please advise her on the most pertinent remaining issues.

Final Review

Mon, 01 Jan 0001 00:00:00 +0000

Last night, a friend from law school reminded me of this text I sent him back when we were in law school were studying for finals…

—

I forgot something important in my mushy speech at the end of last class!

—

You can use laptops today

—

Final Exam Info:

Four-hour in-class exam

Parts I, II, III, and IV are essay questions that involve the same fact pattern. Part V has a separate fact pattern and essay question.

Each part has a character limit of 5,000 characters.

—

Questions: General Questions

When talking about parties, can we say “P” or “D” or will that work against us in the character count?

What rules/case law do we use for IRACing the “harm” element of a negligence cause of action?

—

Are there instances where we should use the actual term, “crushing liability”?

Now that we have studied all the elements of negligence as a cause of action, what should we do with negligence as a concept? It’s not just an abstract concept anymore!

—

I guess what gets me confused is that seems like kind of an ’easy way out’ answer, so I would be nervous to deploy it on an exam.

—

Damages

Two separate legal inquiries:

Liability
Damages

Compensatory

Damages

and punitive damages

Compensatory Damages

The Objective: To restore the plaintiff to the state they were in before the harm caused by the defendant.

Punitive Damages

BMW v. Gore Guideposts

Degree of reprehensibility
Ratio of punitive damages to harm inflicted on plaintiff
Comparison with civil or criminal penalties

State Farm

Excess of single digit ratio is presumptively unconstitutional

—

Questions: Negligence

Can please review the Hand Formula again? For some reason I’m having difficulty applying it to a fact pattern.

I know that we have the Rowland factors as an affirmative duty exception, but I’nm not sure how I would apply them in a case.

Especially seeing that the last Rowland factor is insurance.. If possible can you please touch on how to apply the factors tomorrow during our review?

Negligence as a Cause of Action

Plaintiff must prove four elements:

Duty
Breach
Causation
Harm

Negligence as a Concept

Relates to the elements of duty and breach

The “fault” principle

Defined as a failure to exercise “reasonable care”

—

How does a plaintiff normally prove duty and breach?

D was legally obligated to do X.

D failed to do X.

Therefore, D breached their legal duty.

—

Detailed version

D had a duty (to the plaintiff) to exercise reasonable care under the circumstances. Reasonable care under the circumstances was X, because of

- foreseeability,

- reasonable person standard,

- custom,

- statute,

- or hand formula.

D failed to do X.

Therefore D acted negligently / breached their legal duty to plaintiff.

—

Reasonable Person Standard

Objective standard

Exceptions to objective standard:

- Physical disability

- Children

- Expertise

Not exceptions to objective standard

- Mental disability

- Children engaged in adult activity

- Old age & infirmity

—

Foreseeability

Foreseeability is a flexible concept.

Define any event in general enough terms and it is foreseeable.

Define any event in narrow enough terms and it is unforeseeable.

How to use customs and statutes

Sword for proving negligence

Prove two things:

- Custom or statute = reasonable care

- Defendant failed to comply with custom or statute

-—————————————————

Shield for disproving negligence

Prove two things:

- Custom or statute = reasonable care

- Defendant complied with custom or statute

Negligence per se

- Actor violates a statute that is designed to protect against this type of accident and harm

AND

- the accident victim is within the class of persons the statute is designed to protect.

Hand Formula (BPL)

B = Burden of precautionary measures

P = Probability of loss/harm

L = Magnitude of loss/harm

IF B < PL

AND defendant did not take on B

THEN defendant was negligent

IF B > PL

AND defendant did not take on B

THEN defendant was NOT negligent

Res ipsa requirements:

Harm results from the kind of situation in which negligence can be inferred
Defendant was responsible for the instrument of harm

—

Rowland Factors

foreseeability of harm
certainty of plaintiff’s injury
connection between defendant’s conduct and plaintiff’s injury
moral blame
policy of preventing harm
burden to defendant
consequences to community
availability of insurance

—

Duties of Landowners and Occupiers

—

Traditional View

Type of Visitor	Definition
Trespasser	Intruder
Licensee	Social guest
Invitee	Business guest or general public (if land opened to public)

Duties Owed — Traditional View

Trespasser

duty not to intentionally or wantonly cause injury
no duty of reasonable care (with handful of exceptions)

Licensee

no duty to inspect or discover dangerous conditions
duty to warn or make known conditions safe

Invitee

duty to inspect and discover dangerous conditions
duty to warn or make conditions safe

Duties Owed — Modern View

Trespasser¹

duty not to intentionally or wantonly cause injury
no duty of reasonable care (with handful of exceptions)

Everybody Else

duty of reasonable care

—

Questions: Duty of Landowners and Occupiers

More examples of Licensee v invitee?

—

Medical Malpractice

—

Two types of medical malpractice claims:

Medical operation was negligently performed

Medical professional failed to obtain patient’s informed consent

—

NIED rules varies across jurisdictions. Examples include:

“Impact” Rule

Zone of Danger

requires a reasonable fear of immediate physical injury

Bystander Liability

(1) the death or serious physical injury of another caused by defendant’s negligence;

(2) a marital or intimate, familial relationship between plaintiff and the injured person;

(3) observation of the death or injury at the scene of the accident; and

(4) resulting severe emotional distress

Special Circumstances (like corpse mishandling)

—

Questions: NIED

—

Causation

Two parts:

Factual cause
Proximate cause

Questions: Factual Cause

Can you please go over multiple sufficient causes and multiple possible causes and how each handles alternative liability for causation again?

What is the appropriate definition for a toxic harm? Is toxic harm only applicable in class action/MDL cases?

—

Factual Cause

Two different tests for factual causation

“But for”
Substantial factor

—

Four tricky factual cause scenarios

Toxic exposure
No idea what happened
Know what happened, but don’t know that it wouldn’t have happened if defendant had behaved reasonably
Know what happened, but don’t know who to blame

Possible alternatives for factual causation

Concert liability
Alternative liability
Enterprise liability
Market share liability

—

Marketshare liability

Variations:

— size of market

— time of market

— defenses in individual cases

— several or joint-and-several liability

—

Toxic Harms

Three frequent problems:

Identification of the cause: Can’t be certain that the toxin was a “but for” cause
Boundaries of the harm: Can’t be certain of the extent of the harm
Source of the cause: Can’t be certain who in particular is responsible

Questions: Proximate Cause

Can you go over how damages are awarded for eggshell plaintiff cases?

For eggshell plaintiffs and additional harm situations under proximate cause, does the specific injury have to be foreseeable?

How should we bring in foreseeability for proximate cause analysis?

Can we review proximate cause for Gibson v. Garcia “Rotten Telephone Pole” and Berry v. Sugar Notch Borough?

Can you explain intervening causes and unexpected victims?

—

Proximate Cause

Not about causation

Unexpected harm

Additional harm

Intervening causes

Unexpected victim

—

Questions: Vicarious Liability

When looking at Miller v. Reiman and Christensen v. Swenson, why is it that we can not apply the ruling/reasoning from Miller to Christensen?

Vicarious Liability

Scope of employment:

Employee’s conduct must be of the general kind the employee is hired to perform.
Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.
Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

—

Defenses to Negligence

Questions: Contributory & Comparative Negligence

Can you provide definitions and examples for the contributory negligence affirmative defense exceptions of last chance, recklessness or willfulness, and statute?

Can we review the different negligence regimes?

Non-negligent injury: Does affirmative duty exception of non-negligent injury not apply if the plaintiff’s injury was caused by their own negligence?

—

Contributory negligence

The defendant is not liable

If the plaintiff was also negligent

— Duty,

— Breach,

— Causation, and

— Harm

Unless an exception applies:

— Last clear chance,

— Recklessness or willfulness of defendant, or

— Statute

Comparative negligence

Questions: Doctrine of Contribution

What is the difference between the traditional and modern doctrine of contribution?

If the employer does not have money under comparative negligence, does the employee step in and he owes $ or do the other parties pick up his share?

—

Doctrine of Contribution

Traditional Common Law Approach

Two versions:

Joint and several liability
Several liability

—

Questions: Assumption of Risk

Would you want us to discuss both assumption of risk and comparative negligence defenses regardless of whether a fact pattern indicates a recreational activity?

Do we need to know what the Tunkl factors are or just that they are used sometimes?

—

Assumption of Risk

volenti non fit injuria

- Explicit / Express

- Implicit

Should assumption of risk persist in a comparative fault world?

- Explicit / Express → Duty

- Implicit

-— Primary → Duty

-— Secondary → Comparative Fault

Questions: Strict Liability

Because we looked at a few different RST rules, want to confirm that SL applies to ultrahazardous activity, abnormally dangerous activity and Rylands situations. Just these 3 categories.

Strict Liability

- Very dangerous activity that cannot be made safe by exercising reasonable care

—— PWFOPBOHL&C&KTALDMIIE

—— PWFOPBOHL&C&KTA “non-natural” and LDMIIE

—— “ultrahazardous activity”

—— “abnormally dangerous activity”

- Products

—

Questions: Products Liability

^ Manufacturing defect

Anderson v. Nissei and Jones v. Ryobi and 3p modifications to a product relieves a manufacturer of liability (just want to make sure I have the right take-away for these two).

^ No, Anderson a bit more specific. Manufacturer relieved of liability only if modification is unforeseeable.

—

Design defects: all we need to know are the 2 tests and 2 cases?

What does implied assumption of risk look like as an affirmative defense for strict liability/ products liability? Is there an example or case that illustrates this?

^ Hood v. Ryobi. Implied assumption of risk and comparative negligence are going to overlap a lot.

—

In the warning part of PL, you talked about a couple of nuances, including the “heeding presumption”. Can you come back on when to use that ?

—

Products liability

- Manufacturing defect

- Design defect

— Two tests:

— 1) Consumer expectations

— 2) Excessive preventable danger

- Failure to warn

Defenses

- Contributory and comparative negligence

- Disclaimers and waivers (basically assumption of risk)

— Not a valid defense in most jurisdictions! But a handful do allow it.

Questions: Intentional Torts

If we’re analyzing an intentional tort claim and conclude that we cannot prove a required element, should we wrap up our analysis for that claim?

Is a proximate/factual cause analysis required for intentional torts?

When thinking about intent, do we solely analyze the defendant’s intended action and not the result of that action?

—

For a battery claim, because there is no imminence requirement , could we have a touching that would harm later ? Like a medication that would take some time to kick-in ?

Are Garratt, Alcorn, Picard, and Wishnatsky applicable for both assault and battery? Or should I be categorizing these cases as falling under separate torts?

Should O’Brien be categorized as a defense (consent) or should I put it under assault?

For defining “outrageous” conduct, is the actual rule that “the conduct would make someone literally say ‘outrageous’”?

Are there defenses to IIED?

—

Intentional torts

Intentional Torts:

— Battery

— Assault

— False imprisonment

— Intentional infliction of emotional distress

Defenses:

— Consent

— Self-defense

— Defense of property

— Necessity

IIED

NIED

Questions: Insurance

How do the collateral source rule and subrogation interact?

Can you quickly come back on the Rowland factor and why insurance liability is a factor in determining a duty ?

—

Insurance

First party insurance

Third party (liability insurance)

Collateral source rule

Subrogation

Questions: Workers’ Compensation

Can we please go over this idea that WC is about preventing total wipeout/liability for employers?

Can we please go over the situations where the WC fund would begin issuing payment installments and then stop?

—

Workers Comp

- No fault

- Exclusive remedy for work-related injuries

Benefits include:

—— Medical coverage

—— Percent of lost wages

—— Vocational rehabilitation

—— Survivor benefits

No-Fault and Beyond

Common features:

Narrow category of injury
Reduced fact-finding and proof requirements
Fixed recovery amounts
Insurance-like funding rather than individual defendant-to-plaintiff payouts

9-11 fund’s unique characteristics:

created after the harm, not in anticipation of harm
individualized approach to economic loss
tort-like awards for noneconomic loss
low administrative costs

Big Picture

What is tort law about?

What values should guide this part of our legal system?

— Corrective justice?

— Optimal deterrence?

— Distributive justice?

Or in California and the Third Restatement, a “flagrant” trespasser rather than just a plain old trespasser ↩︎

How to Read a Case

Mon, 01 Jan 0001 00:00:00 +0000

Today’s Agenda

Hammontree v. Jenner

ENORMOUS DISCLAIMER!

Before you begin:

Connect with your purpose.
Discern your immediate goal.

Why take this preliminary step?

Connecting to a purpose makes the work easier and more fulfilling.

Discerning a goal allows you to focus your attention on what matters.

There is no escape.

Stress is a very bad, no good motivator.

Purpose

Reading Hammontree v. Jenner for your 1L Torts Class

Goals determine what we pay attention to

Goals when reading a case

Grasp the internal logic and mechanics of the case.
Synthesize within a broader context.

Why read cases?

Gaps,

Contradictions, and

Ambiguity

Internal logic and mechanics of a case

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

Aside: How to take notes

Internal logic and mechanics of a case

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

Three lines of reasoning

Precedent binds us.
Analogy to products liability falls apart.
Analogous authority also binds us.

Intentional Torts

Mon, 01 Jan 0001 00:00:00 +0000

Structure for this Part of the Course

Intentional Torts: — Battery — Assault — False imprisonment — Intentional infliction of emotional distress

Defenses: — Consent — Self-defense — Defense of property — Necessity

Garratt v. Dailey

“The Five-Year-Old Who Pulled the Chair Out from Under Her”

—

Alcorn v. Mitchell

“The Angry Spitter”

—

Picard v. Barry Pontiac-Buick, Inc.

“The Camera Toucher”

Wishnatsky v. Huey

“The Offended Interrupter”

Intentional Torts

Mon, 01 Jan 0001 00:00:00 +0000

No class on Friday

Office Hours Today from 12pm to 1pm

Student Evaluations At end of class, from 9:50am to 10:00am

Structure

Intentional Torts: ~~— Battery~~ ~~— Assault~~ — False imprisonment — Intentional infliction of emotional distress

Defenses: — Consent — Self-defense — Defense of property — Necessity

False Imprisonment

Lopez v. Winchell’s Donut House

“The Accused Employee Who Freely Left”

[fit] Intentional Infliction of Emotional Distress

Womach v. Eldridge

“The Distressing Accusation of Molestation”

Second Restatement

Snyder v. Phelps

“Protesting Soldiers’ Funerals”

Introduction to Negligence

Mon, 01 Jan 0001 00:00:00 +0000

But first…

Hershovitz v. Speedy Pete’s Pizza Pies

Arguments
Reflections
Questions

Outlining

Goals for reading cases

Grasp the internal logic and mechanics of the case.
Synthesize within a broader context.

Goals for outlining

Creating and studying an outline should help you to:

Spot issues on the exam
Resolve issues methodically and comprehensively

Outline for damages

Negligence as a Cause of Action

Plaintiff must prove four elements:

Duty
Breach
Causation
Harm

Negligence as a Concept

Relates to the elements of duty and breach

The “fault” principle

Defined as a failure to exercise “reasonable care”

California Negligence Jury Instruction:

It is the failure to use ordinary or reasonable care.

Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence.

1. What is reasonable care?

2. Who is this reasonable person?

Adams v. Bullock

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

Braun v. Buffalo Gen. El. Co.

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

For next class…

Come prepared to:

argue for the opposite holding in Adams and Braun
with foreseeability as the reasoning behind the holding

Medical Malpractice

Mon, 01 Jan 0001 00:00:00 +0000

Typical Negligence Case

![inline](images/Res Ipsa Loquitur.jpeg)

Medical Malpractice Case

![inline](images/Medical Malpractice.jpeg)

Sheeley v. Memorial Hospital

Geography

&

Experience

In medical malpractice, the ultimate question is still:

[fit] Reasonable Care

Matthies v. Mostromonaco

Cause of action could stem from either:

Battery or Negligence

California Rule

![inline](images/CA Informed consent.jpeg)

Reasonable doctor
Reasonable patient

Midterm Review

Mon, 01 Jan 0001 00:00:00 +0000

Office hours today at 12pm.

Goals for outlining

Creating and studying an outline should help you to:

Spot issues on the exam
Resolve issues methodically and comprehensively

—

The Exam Itself

—

Questions

Will we be tested on dissenting opinions?

How important are addressing policy grounds in a court’s majority in our answers?

Do we need to discuss a case’s facts, reasoning, and holding every time we use analogical reasoning? Or does it depend on the situation?

—

Questions

May we reference class hypotheticals in our exam responses? If so, should we approach our analysis the same way that we would for a case?

Just as a confirmation, does both contributory negligence and strict liability not matter for our midterm?

Damages

Two separate legal inquiries:

Liability
Damages

[fit] Compensatory

[fit] Damages

and punitive damages

Compensatory Damages

The Objective: To restore the plaintiff to the state they were in before the harm caused by the defendant.

Questions

Is cognitive awareness a pre requisite for all non pecuniary damages or just loss of enjoyment of life/pain and suffering?

Are there any other non pecuniary damages besides pain and suffering and loss of enjoyment?

Do negative feelings like depression or embarrassment fall under pain and suffering or loss of enjoyment (assuming they are being treated as separate categories)? Or both?

—

Punitive Damages

BMW v. Gore Guideposts

Degree of reprehensibility
Ratio of punitive damages to harm inflicted on plaintiff
Comparison with civil or criminal penalties

State Farm Excess of single digit ratio is presumptively unconstitutional

—

Questions

Why do excessive damages violate due process?

In the case BMW v. Gore, the court was worried about the jurisdiction. Was the court saying that the punishment (damages) should deter these actions in the state that it happened in?

In State Farm v. Campbell, what did the court mean when it said the defendant cannot be punished for “dissimilar conduct?”

Negligence

Negligence as a Cause of Action

Plaintiff must prove four elements:

Duty
Breach
Causation
Harm

Negligence as a Concept

Relates to the elements of duty and breach

The “fault” principle

Defined as a failure to exercise “reasonable care”

—

Questions

Can you clarify the difference between being negligent and being liable? Can you be negligent but not liable, or the other way around?

Negligence as a cause of action vs. prima facie negligence, how are they different?

Prima facie negligence - what do you do next after you show its on its face? I’m confused about next steps

—

How does a plaintiff normally prove duty and breach?

D was legally obligated to do X.

D failed to do X.

Therefore, D breached their legal duty.

—

Detailed version

D failed to do X.

Therefore D acted negligently / breached their legal duty to plaintiff.

—

Reasonable Person Standard

Objective standard

Exceptions to objective standard: - Physical disability - Children - Expertise

Not exceptions to objective standard - Mental disability - Children engaged in adult activity - Old age & infirmity

—

Question

Should a factfinder ever take a defendant’s own physical characteristics, intelligence, or skill? Is there a subjective element to this standard?

—

Foreseeability

Foreseeability is a flexible concept.

Define any event in general enough terms and it is foreseeable.

Define any event in narrow enough terms and it is unforeseeable.

How to use customs and statutes

Sword for proving negligence Prove two things:

- Custom or statute = reasonable care - Defendant failed to comply with custom or statute -————————————————— Shield for disproving negligence Prove two things:

- Custom or statute = reasonable care - Defendant complied with custom or statute

Negligence per se

- Actor violates a statute that is designed to protect against this type of accident and harm

AND

- the accident victim is within the class of persons the statute is designed to protect.

Question

Negligence per se as a “short cut” – If we have a negligence per se case, do we not have to do the reasonable care analysis?

From Robinson v. D.C., is the rule that you can’t rebut negligence per se unless you tried to follow the rule?

—

Hand Formula (BPL)

B = Burden of precautionary measures P = Probability of loss/harm L = Magnitude of loss/harm

IF B < PL AND defendant did not take on B THEN defendant was negligent

IF B > PL AND defendant did not take on B THEN defendant was NOT negligent

Questions: Role of Judge & Jury

When should a judge decide negligence as a matter of law? When are rules better than standards?From my understanding, negligence as a matter of law is when it’s so obvious that it doesn’t require a jury, HOWEVER, we also know that judges can overreach in their abilities and that sometimes it should have gone to a jury. Is negligence as a matter of law hardline or does it depend on the judge?

—

Proving negligence

![inline](images/Res Ipsa Loquitur.jpeg)

—

Res ipsa requirements:

Harm results from the kind of situation in which negligence can be inferred
Defendant was responsible for the instrument of harm

—

Questions: Res Ipsa

—

Rowland Factors

foreseeability of harm
certainty of plaintiff’s injury
connection between defendant’s conduct and plaintiff’s injury
moral blame
policy of preventing harm
burden to defendant
consequences to community
availability of insurance

—

Questions: Affirmative Duty Exceptions

Can we please also go over in more detail the “creation of harm” aspect for determination of duty?

Appendix A lists Maldonado v. Southern Pacific Transp. Co. but I don’t think that case was ever assigned for reading?

What is the difference between undertaking and non-negligent injury? It seems that they both require reasonable care to be exercised when rendering aid.

Could you please provide examples of non-negligent injury and non-negligent creation of risk as an affirmative duty exception?

—

[fit] The modern rule for non-negligent creation of injury

Maldonado v. Southern Pacific Transp. Co. (Ariz. App. 1981)

Issue: Whether the railroad owed the plaintiff a duty to render aid after he was seriously injured by the train.

Court adopts rule from Restatement (Second) of Torts :

—

Questions: Duty to Third Parties

For Tarasoff, did the court say NO special relationship but there is a duty to a third party under the Rowland factors, or did it say there is a special relationship under the Rowland factors?

—

Duties of Landowners and Occupiers

—

Traditional View

Type of Visitor	Definition
Trespasser	Intruder
Licensee	Social guest
Invitee	Business guest or general public (if land opened to public)

Duties Owed — Traditional View

Trespasser

duty not to intentionally or wantonly cause injury
no duty of reasonable care (with handful of exceptions)

Licensee

no duty to inspect or discover dangerous conditions
duty to warn or make known conditions safe

Invitee

duty to inspect and discover dangerous conditions
duty to warn or make conditions safe

Modern View

Type of Visitor	Definition
Trespasser	Intruder
Everybody else	Not a trespasser

Duties Owed — Modern View

Trespasser¹

duty not to intentionally or wantonly cause injury
no duty of reasonable care (with handful of exceptions)

Everybody Else

duty of reasonable care

—

Questions: Duty of Landowners and Occupiers

Will we need to know the traditional view of duties owed to different types of visitors or will the modern view suffice?

On the exam, if we are asked about landowners and occupiers, would you give us an instruction on whether to follow the traditional view or the modern view?

—

Questions: Duty of Landowners and Occupiers

About the distinction between invitee and licensee, we learnt that the Heins case overruled the traditional classification and that now a duty of care should be determined based on foreseeability. Therefore, I wonder: won’t foreseeability always impose a duty? Would this mean that a landowner will be responsible for the failure to warn about every known danger that might be on the entrant of the land way? And that a landowner will often be held responsible for failure to inspect and warn the entrant (for example in the Carter v. Kinney it is foreseeable that more snow can form over a long period, like during the night and make the ground slippery)?

—

Medical Malpractice

![inline](images/Medical Malpractice.jpeg)

—

Two types of medical malpractice claims:

Medical operation was negligently performed

Medical professional failed to obtain patient’s informed consent

—

NIED rules varies across jurisdictions. Examples include:

“Impact” Rule

Zone of Danger requires a reasonable fear of immediate physical injury

Special Circumstances (like corpse mishandling)

—

Questions: NIED

How does foreseeability tie into the Bystander Liability rule from Portee v. Jaffee?

With bystander liability, some cases use three factors and some use four, which should we use?

Or in California and the Third Restatement, a “flagrant” trespasser rather than just a plain old trespasser ↩︎

Multiple Defendants

Mon, 01 Jan 0001 00:00:00 +0000

Causation

Two parts:

Two different tests for factual causation

Causation

Two parts:

Factual cause
Proximate cause

Two different tests for factual causation

“But for”
Substantial factor

—

Stubbs v. City of Rochester

Zuchowicz v. United States

What about multiple possible causes?

—

Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.

“Multiple Fires Whodunnit”

Necessary and Sufficient Conditions

Necessary condition:

Result happens ONLY IF condition exists.

Put another way:

IF NOT condition, then NO result.

Sufficient condition:

IF condition exists, then result happens.

—

Summers v. Tice

“Hunting Party Whodunnit”

Summers v. Tice

Three reasons for alternative liability:

Almost 51% probability
Fairness
“Smoke out” the real evidence

Summers v. Tice

~~Three~~ reasons for alternative liability:

~~Almost 51% probability~~
Fairness
~~“Smoke out” the real evidence~~

Garcia v. Joseph Vince Co.

“Fencing Sabre Whodunnit”

Negligence Defenses Review

Mon, 01 Jan 0001 00:00:00 +0000

Today’s Agenda

Review of Defenses
In-Class Exercise

—

Negligence ~~Elements of a cause of action:~~

~~— Duty~~

~~— Breach~~

~~— Causation~~

~~— Harm~~

Defenses:

— Contributory or Comparative

Negligence

— Assumption of Risk

The kinds of questions you can now answer

(given the right information about jurisdictional rules and case-specific facts)

- Does the defense of contributory negligence apply?

- Was the plaintiff comparatively negligent?

- Does the defense of “assumption of risk” apply?

- How much can the plaintiff recover?

- How much does each defendant owe?

- If a particular defendant is absent or insolvent, how much do the other defendants owe?

Contributory Negligence

Comparative Negligence

Assumption of Risk

—

Contributory Negligence in General:

The defendant is not liable

If the plaintiff was also negligent

— Duty,

— Breach,

— Causation, and

— Harm

Unless an exception applies:

— Last clear chance,

— Recklessness or willfulness of defendant, or

— Statute

Comparative Negligence

Three forms:

Pure comparative negligence
“Not as great as”
“No greater than”

How much does each defendant pay?

Common Law Approach

Divide up damages by number of liable defendants

Doctrine of contribution:

Joint and several liability, or
Several liability

How much does each defendant pay?

Modern Approach

Divide up damages based on comparative fault

Doctrine of contribution:

Variety of rules across jurisdictions, including several liability, joint-and-several liability, and a variety of hybrids.

Don’t

forget about

factual cause!

Order of operations for allocating damages with multiple injuries and multiple defendants

First step:

Separate injuries based on factual cause.

Second step:

For injuries that multiple defendants caused, sort out who owes what based on jurisdictional rules.

Assumption of Risk

- Explicit / Express

- Implicit / Implied

Two Common Issues with Explicit Assumption of Risk

Was the contract clear enough about releasing the defendant from liability?
Will the court enforce contract?

Will the court enforce contract?

Various legal tests for determining if liability waiver is against public policy:

- Liability waivers are unenforceable

- Totality of the circumstances

- Six factors from Tunkl

Implicit assumption of risk

volenti non fit injuria

“to one who is willing, no wrong is done”

Should assumption of risk persist in a comparative fault world?

For exam questions, how do we know whether to look to assumption of risk or contributory negligence or comparative negligence?

—

In-Class Exercise

—

Contributory Negligence

Butterfield v. Forrester

“Blocking a Road with a Pole”

Davies v. Mann

“The Donkey on the Road”

—

Comparative Negligence

Li v. Yellow Cab Company

“Car Accident Comparative Negligence”

Fritts v. McKanne

“The Doctor Who Blamed the Drunk Driver”

McCarty v. Pheasant Run, Inc.

“Unlocked Hotel Room Door”

Wassell v. Adams

“Opened Hotel Room Door”

Assumption of Risk

Murphy v. Steeplechase

“The Flopper”

Knight v. Jewett

“Touch Football Injuries”

Hanks v. Powder Ridge Restaurant Corp.

“Snowtubing Waiver”

—

Tunkl factors

Business of a type generally thought suitable for public regulation.
Defendant performs a service of great importance to the public (often a matter of practical necessity for some members of the public)
Defendant willing to perform this service for any member of the public
Defendant has bargaining advantage
Standardized adhesion contract of exculpation
Plaintiff placed under the control of the defendant, subject to the risk of carelessness by the seller or his agents.

No Duty to Rescue or Protect

Mon, 01 Jan 0001 00:00:00 +0000

Proving Negligence

![inline](images/Res Ipsa Loquitur.jpeg)

In-Class Exercise: New Variation

Same facts as before, but rewind time to before the trial began.

You are a junior attorney working for a law firm defending Idris Benson. A partner at the firm has asked you to produce a memo addressing three issues:

Given the facts that we know, what are our best arguments that Benson exercised reasonable care?
How do we counter the plaintiff’s best arguments that Benson did not exercise reasonable care?
What facts should we try to learn before trial?

How does a plaintiff normally prove duty and breach?

D was legally obligated to do X.

D failed to do X.

Therefore, D breached their legal duty.

Detailed version

D had a duty (to the plaintiff) to exercise reasonable care under the circumstances.

Reasonable care under the circumstances was X, because of - foreseeability, - reasonable person standard, - custom, - statute, - or hand formula.

D failed to do X, therefore D acted negligently / breached their legal duty to plaintiff.

California Negligence Jury Instruction:

It is the failure to use ordinary or reasonable care.

Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence.

Reasonable Person Standard

An objective standard designed to clarify what reasonable care requires.

Exceptions to objective standard: - Physical disability - Children - Expertise

Not exceptions to objective standard - Mental disability - Children engaged in adult activity - Old age & infirmity

Foreseeability

Foreseeability is a flexible concept.

Define any event in general enough terms and it is foreseeable.

Define any event in narrow enough terms and it is unforeseeable.

How to use customs and statutes

Sword for proving negligence Prove two things:

- Custom or statute = reasonable care - Defendant failed to comply with custom or statute -————————————————— Shield for disproving negligence Prove two things:

- Custom or statute = reasonable care - Defendant complied with custom or statute

Negligence per se

- Actor violates a statute that is designed to protect against this type of accident and harm

AND

- the accident victim is within the class of persons the statute is designed to protect.

Hand Formula (BPL)

B = Burden of precautionary measures P = Probability of loss/harm L = Magnitude of loss/harm

IF B < PL AND defendant did not take on B THEN defendant was negligent

IF B > PL AND defendant did not take on B THEN defendant was NOT negligent

Cases for Establishing Reasonable Care

Existence of a Legal Duty

No Duty to Rescue or Protect

Harper v. Herman

“The Boat Owner in Shallow Water”

No-Fault and Beyond

Mon, 01 Jan 0001 00:00:00 +0000

Classes this week

Thursday, April 25th

8:45am to 10:00am in the Hall of the 70s.

Friday April 26th

10:00am to 11:15am in the Hall of the 70s.

Office hours immediately following the end of class.

—

Workers’ Compensation

—

The “Unholy Trinity” of Common Law Defenses

Fellow servant rule
Contributory negligence
Assumption of risk

The Bargain of Workers’ Compensation

No fault

and

Exclusive remedy

Workers’ Compensation Requirements

Only compensates for work-related injuries

Benefits include:

—— Medical coverage

—— Percent of lost wages

—— Vocational rehabilitation

—— Survivor benefits

Employers must buy workers’ comp insurance

Lamson v. American Axe & Tool Co.

“The Axe that Fell on the Employee”

Scenarios to consider:

Facts of actual case
Hypothetical employee who didn’t assume the risk

—

Big Picture: Workers’ Comp vs. Tort Law

Deterrence

Compensation

Administrative Cost

Equity

Ideology

Does tort law have an ideology?

-	Negligence	Strict Liability	Intentional Torts
Type of Conduct	???	??? ???	???
Causal Connection	??? ???	??? ???	??? ???
Affirmative Defenses	??? ???	??? ???	??? ??? ???
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal Connection	??? ???	??? ???	??? ???
Affirmative Defenses	??? ???	??? ???	??? ??? ???
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause
Affirmative Defenses	??? ???	??? ???	??? ??? ???
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	???
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Injury must be “work-related”
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Injury must be “work-related”
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	- Employee was outside “scope of employment”
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Injury must be “work-related”
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	- Employee was outside “scope of employment”
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)

No-Fault Systems / Compensation Funds

Common features:

Narrow category of injury
Reduced fact-finding and proof requirements
Fixed recovery amounts
Insurance-like funding rather than individual defendant-to-plaintiff payouts

-	Torts	Workers’ Comp	No-Fault Funds
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available at all

9-11 Fund

Unique characteristics:

created after the harm, not in anticipation of harm
individualized approach to economic loss
tort-like awards for noneconomic loss
low administrative costs

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	???
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available at all	???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	-???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	- Injury happened in “zone of danger” of the terrorist attacks
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	- Injury happened in “zone of danger” of the terrorist attacks
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	- Terrorism
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	- Injury happened in “zone of danger” of the terrorist attacks
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	- Terrorism
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	- Full economic damages up to 98th percentile of wage earners - Noneconomic losses compensated in full

New Zealand

Total tort reform

Common law torts for accidental injury are abolished

All accidental injuries now covered under a no-fault scheme:

— unlimited medical expenses

— fixed compensation for lost earnings

— lump sums for lost body parts and pain and suffering

In-Class Exercise

What are the strengths and weaknesses of this plan? What are your suggestions for revision?

No-Fault and Beyond

Mon, 01 Jan 0001 00:00:00 +0000

Class tomorrow

Friday April 26th

10:00am to 11:15am in the Hall of the 70s.

Office hours immediately following the end of class.

—

Why are we studying this?

—

For alternatives to tort, what types of questions are fair game?

—

Insurance

For a given fact pattern:

How does insurance affect (or not affect) the tort litigation?
How does insurance change incentives of the parties?
How does insurance change our assessment of the fairness and efficacy of a particular tort law rule?

—

Workers’ Compensation

For a given fact pattern:

Can the plaintiff pursue a tort claim or is workers’ compensation the exclusive remedy?
What can the plaintiff recover from workers’ compensation compared to tort?
With multiple defendants, what are the plaintiff’s options for redress?

—

Policy Questions

For a given aspect of tort law:

How does an alternative to tort fare at addressing a particular problem compared to tort law?
Should tort law adopt this policy or rule from an alternative to tort?
In crafting law that addresses personal injury and accidents, what should our values and goals be? What rules should we adopt?

The Bargain of Workers’ Compensation

No fault

and

Exclusive remedy

Workers’ Compensation Requirements

Only compensates for work-related injuries

Benefits include:

—— Medical coverage

—— Percent of lost wages

—— Vocational rehabilitation

—— Survivor benefits

Employers must buy workers’ comp insurance

—

-	Negligence	Strict Liability	Intentional Torts
Type of Conduct	???	??? ???	???
Causal Connection	??? ???	??? ???	??? ???
Affirmative Defenses	??? ???	??? ???	??? ??? ???
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal Connection	??? ???	??? ???	??? ???
Affirmative Defenses	??? ???	??? ???	??? ??? ???
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause
Affirmative Defenses	??? ???	??? ???	??? ??? ???
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	???
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Injury must be “work-related”
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Injury must be “work-related”
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	- Employee was outside “scope of employment”
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Injury must be “work-related”
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	- Employee was outside “scope of employment”
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)

No-Fault Systems / Compensation Funds

Common features:

Narrow category of injury
Reduced fact-finding and proof requirements
Fixed recovery amounts
Insurance-like funding rather than individual defendant-to-plaintiff payouts

-	Torts	Workers’ Comp	No-Fault Funds
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available at all

9-11 Fund

Unique characteristics:

created after the harm, not in anticipation of harm
individualized approach to economic loss
tort-like awards for noneconomic loss
low administrative costs

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	???
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available at all	???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	-???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	- Injury happened in “zone of danger” of the terrorist attacks
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	- Injury happened in “zone of danger” of the terrorist attacks
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	- Terrorism
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	- Injury happened in “zone of danger” of the terrorist attacks
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	- Terrorism
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	- Full economic damages up to 98th percentile of wage earners - Noneconomic losses compensated in full

New Zealand

Total tort reform

Common law torts for accidental injury are abolished

All accidental injuries now covered under a no-fault scheme: — unlimited medical expenses — fixed compensation for lost earnings — lump sums for lost body parts and pain and suffering

Doing Away with Tort Law

Stephen D. Sugarman

Proposal:

No more tort law
Compensation: Expanded safety net (public and private)
Deterrence: Regulatory state

—

Muss Es Sein? Not Necessarily, Says Tort Law

Anita Bernstein

A defense of tort law as progressive. How so?

Compared to all other fields of law, tort law

empowers the vulnerable to challenge the powerful
gives plaintiffs space for creative pleading
imposes individual accountability on the powerful

—

In-Class Exercise

What are the strengths and weaknesses of this plan? What are your suggestions for revision?

—

Some unsolicited advice…

Befriend anxiety

Care for each other

Kick some ass

Policy Bases for No Duty & Duties of Landowners & Occupiers

Mon, 01 Jan 0001 00:00:00 +0000

Some logistics

Makeup Class: Tuesday, November 28 from 8:15am-9:30am in this classroom.

No office hours today

Additional office hours on Tuesdays: Tuesday, November 14 from 12pm to 1pm Tuesday, November 21 from 12pm to 1pm Tuesday, November 28 from 12pm to 1pm

Strauss v. Belle Realty

Third Restatement

When determining that no legal duty exists for reasons of public policy, courts should use “categorical, bright-line rules of law applicable to a general class of cases.”

Two Closing Thoughts

Crushing liability has not aged well.
Policy justifications ≠ individual autonomy concerns

Reynolds v. Hicks

Negligence Per Se

Remember Martin v. Herzog?

Negligence Per Se

Under RCW 66.44.270(1) it is a crime to:

What the heck?

Two Reasons

Legal
Policy

Landowners & Occupiers

Carter v. Kinney

Traditional View

Type of Visitor	Definition
???	???
???	???
???	???

Traditional View

Type of Visitor	Definition
Trespasser	???
Licensee	???
Invitee	???

Traditional View

Type of Visitor	Definition
Trespasser	Intruder
Licensee	Social guest
Invitee	Business guest or general public (if land opened to public)

Duties Owed — Traditional View

Trespasser

duty not to intentionally or wantonly cause injury
no duty of reasonable care (with handful of exceptions)

Licensee

no duty to inspect or discover dangerous conditions
duty to warn or make known conditions safe

Invitee

duty to inspect and discover dangerous conditions
duty to warn or make conditions safe

Heins v. Webster County

Modern View

Type of Visitor	Definition
???	???
???	???

Modern View

Type of Visitor	Definition
Trespasser	Intruder
Everybody else	Not a trespasser

Duties Owed — Modern View

Trespasser¹

duty not to intentionally or wantonly cause injury
no duty of reasonable care (with handful of exceptions)

Everybody Else

duty of reasonable care

Traditional View

vs.

Modern View

Two exercises for Tuesday

Both on Scratchpad on course website

Both really fun puzzles

Or in California and the Third Restatement, a “flagrant” trespasser rather than just a plain old trespasser ↩︎

Products Liability

Mon, 01 Jan 0001 00:00:00 +0000

Strict Liability Recap

Limits on Strict Liability

Fletcher v. Rylands

— PWFOPBOHL&C&KTALDMIIE

Rylands v. Fletcher

— PWFOPBOHL&C&KTA “non-natural” and LDMIIE

First Restatement

— “ultrahazardous activity”

Second Restatement

— “abnormally dangerous activity”

Indiana Harbor Belt v. American Cyanamid

Strict liability applies for behavior that is:

- Very risky and that risk cannot be eliminated at reasonable cost

AND

- Not susceptible to due care analysis

Tort law is the law of

negligence.

Strict liability is the law of tort law when negligence fails.

MacPherson v. Buick Motor Co.

Macpherson Test

If object can put life and limb in danger if negligently made

And defendant has knowledge of probable danger

And defendant has knowledge that it will be used by people other than the purchaser

And no further tests will be performed

Then manufacturer has a duty and privity is no defense

Escola v. Coca Cola

Tort Law Values

Era	Philosophy	Primary Goal	Concern
Classical	Corrective justice	Individual accountability	Autonomy
New Deal	Political Economy	Distributive justice	Power
Neoliberal	Economics	Maximize utility	Efficiency

—

Rationale

Power dynamics

Cost spreading / insurance

Deterrence

Extensions of Liability

Plaintiffs: Not just consumers but bystanders.

Defendants: Not just manufacturers but retailers.

Defect Requirement

—

Products Liability

— Manufacturing defects

— Design defects

— Instructions and warnings

Manufacturing Defects

Design Defects

Barker v. Lull Engineering

Two tests:

Consumer expectations
Excessive preventable danger

—

Soule v. General Motors

—

When does the consumer expectations test apply?

Not at

all clear!

It depends upon the “everyday experience of the product’s users”

1) Consumer expectations

2) Excessive preventable danger

[fit]“Reasonable Alternative Design”

“Reasonable Alternative Design” Challenges

Products Liability Defenses & Review

Mon, 01 Jan 0001 00:00:00 +0000

Products Liability Claims

?????????????????
?????????????????
?????????????????

Products Liability Claims

Manufacturing Defects
Design Defects
Failure to Warn

Elements of a Claim

Negligence

Duty
Breach
Causation
Harm

[.column] Strict Liability

Defendant was engaged in the kind of activity where strict liability applies
Causation
Harm

[.column] Products Liability

Defect
Causation
Harm

Speller v. Sears, Roebuck & Co.

“Refrigerator Fire”

—

Proving product defect without specific evidence

Incident that harmed the plaintiff:

was of a kind that ordinarily occurs as a result of product defect
was not solely the result of other causes

—

Jones v. Ryobi, Ltd.

“The Modified Printing Press”

Anderson v. Nissei ASB Machine Co.

“The Bottle-Making Machine that Amputated an Arm”

—

How can you defend against a strict liability or products liability claim?

—

How can you defend against a strict liability or products liability claim?

Disprove elements of plaintiff’s claim
Affirmative defenses
- Comparative negligence
- Assumption of risk

—

Comparative Responsibility is Hard

Can a plaintiff be negligent for failing to discover a defect?

Restatement (Second) of Torts

Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence.

Restatement Third

[W]hen the defendant claims that the plaintiff failed to discover a defect, there must be evidence that the plaintiff’s conduct in failing to discover a defect did, in fact, fail to meet a standard of reasonable care. In general, a plaintiff has no reason to expect that a new product contains a defect and would have little reason to be on guard to discover it.

—

Assumption of Risk

—

Assumption of Risk

~~Express (Disclaimers and waivers)~~

Implied (Knowingly encounter a danger)

—

In-Class Exercise

Proximate Cause

Mon, 01 Jan 0001 00:00:00 +0000

But first…

Exercise #1

You are an attorney at a plaintiff’s side firm in the state of Loyola.

Waters visits your office as a prospective client. She wants to know if she has a viable negligence claim against Meyer or Morales, who she should sue, and if she will win. Please advise her.

Exercise 2

Same initial fact pattern as the first exercise. Except now, in addition to being hit by Meyer and Morales, Waters was also hit by two other drivers who fled the scene.

Waters visits your office as a prospective client. She wants to know if she has a viable negligence claim against Meyer or Morales, who she should sue, and if she will win. Please advise her.

Exercise 3

You are an attorney at a plaintiff’s side firm in the state of Loyola.

For this question, assume that duty and breach can be proven. Please advise her on the most pertinent remaining issues.

—

Three frequent problems:

Identification of the cause: Can’t be certain that the toxin was a “but for” cause
Boundaries of the harm: Can’t be certain of the extent of the harm
Source of the cause: Can’t be certain who in particular is responsible

—

Okay, now Proximate Cause!

But first…

Where are we?

What are we doing?

Torts

~~I. Introduction~~

~~II. Remedies~~

~~III. Negligence~~

—~~A. Introduction~~

—~~B. Duty & Breach~~

—~~C. Causation~~

—— ~~- Factual Cause~~

—— - Proximate Cause

— D. Defenses

IV. Strict Liability

V. Intentional Torts

VI. Alternatives to Tort

Elements of a Negligence Cause of Action

Duty
Breach
Causation
Harm

Two parts to causation

Factual cause
Proximate cause

Proximate Cause

In re Polemis

“The Plank that Made a Ship Explode”

—

Wagner v. International Railway Co.

“The Injured Rescuer”

—

Danger invites rescue

—

Benn v. Thomas

“The Time-Delayed Heart Attack”

—

Steinhauser v. Hertz Corp.

“Sudden Schizophrenia”

—

Proximate Cause

Mon, 01 Jan 0001 00:00:00 +0000

Benn v. Thomas

“The Time-Delayed Heart Attack”

—

Steinhauser v. Hertz Corp.

“Sudden Schizophrenia”

—

Gibson v. Garcia

“The Rotten Telephone Pole that Fell on the Car”

—

Intervening Cause

Prosser & Keaton, Law of Torts

—

Berry v. Borough of Sugar Notch

“The Rotten Tree that Fell on the Speeding Car”

—

Palsgraf v. Long Island Railroad Co.

“Fireworks on the Train Platform”

How would you rule in Palsgraf?

Majority opinion (Cardozo)

and

Dissenting opinion (Andrews)

- Andrews dissent in Palsgraf

Punitive Damages

Mon, 01 Jan 0001 00:00:00 +0000

BMW v. Gore

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

14th Amendment

Section 1.

…

BMW v. Gore: Due Process Concerns

Majority - Jurisdiction - Fair notice - Proportionality

Concurrence - Arbitrary coercion

Three Guideposts

Degree of reprehensibility
Ratio of punitive damages to harm inflicted on plaintiff
Comparison with civil or criminal penalties

State Farm v. Campbell

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

State Farm Reasoning:

Guideposts from BMW v. Gore

Reprehensibility
Disparity between compensatory and punitive damages
Difference between punitive damages and civil penalties

Mathias v. Accor Economy Lodging, Inc.

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

Oral argument: Appealing a Punitive Damages Award

When we reconvene for class on Tuesday, we we will moot oral arguments for a case on appeal before the Loyola Supreme Court: Hershovitz v. Speedy Pete’s Pizza Pies

Odd-numbered groups (1, 3, 5, 7, 9, 11) are attorneys for the plaintiff. Even-numbered groups (2, 4, 6, 8, 10, 12) are attorneys for the defendant.

The only legal issue on appeal in this case is whether the punitive damages award in this case is excessive and would deprive the defendant of its property without due process of law.

Use the legal tests we just went over in class. Draw upon and analogize to the reasoning from these cases.

Purely Emotional Harm

Mon, 01 Jan 0001 00:00:00 +0000

Falzone v. Busch

Policy Reasons for “Impact” Rule

Flood of litigation
Fake claims
Problems of proof

“Zone of Danger”

Requires a reasonable fear of immediate physical injury

Two Lingering Questions

How is emotional harm different than damages for pain and suffering?
Why is this a duty question?

Portee v. Jaffee

Few notions anywhere in the law are more vague than

the fundamental concept of the law of negligence:

the duty of reasonable care.

Court’s framing of question before it:

“one formulation of the issue before us is whether it was foreseeable that the mother would be observing the death of her young child”

“more directly stated, we must determine whether defendants owed a duty to the plaintiff that was violated when her child became trapped in the elevator”

“Bystander liability”

(1) the death or serious physical injury of another caused by defendant’s negligence;

(2) a marital or intimate, familial relationship between plaintiff and the injured person;

(3) observation of the death or injury at the scene of the accident; and

(4) resulting severe emotional distress

Gammon v. Osteopathic Hospital of Maine

Traditional Requirements for Allowing Recovery for an NIED Claim (in Maine)

physical impact
objective manifestation
underlying or accompanying tort
special circumstances

Midterm

Review session on Tuesday, November 28

Email me your questions by Monday, November 27 at 5:00pm

Office hours at 12:00pm on Tuesday, November 28 is your last chance for questions.

Midterm Format

Mix of short answer and essay questions

Four hours long

Strict character limit for each question

Instructions and appendices will be posted to class website this week. — Appendix A: List of cases from class — Appendix B: List of legal rules for reference

Past midterm and midterm memo are already on class website.

Reading Cases, Answering Questions

Mon, 01 Jan 0001 00:00:00 +0000

Office Hours

Today from 1:00pm to 2:30pm

Vosburg v. Putney

Internal logic and mechanics of a case

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

Vosburg v. Putney and underlying tort law values

Corrective justice: determining liability based on the wrongfulness of the defendant’s actions within this particular case
Efficiency: determining liability based on what will promote overall societal welfare (balancing costs and benefits)
Power: determining liability based upon who is best positioned to prevent harm

Exam question

Three lines of reasoning from Hammontree

Precedent binds us. (Strict liability doesn’t apply for automobile accidents.)
Analogy to products liability falls apart. (Not the same kind of power imbalance / control as products manufacturers.)
Supreme Court reasoning in analogous case applies here. (Slippery slope, domain of the legislature)

Reasonable Care and The Reasonable Person

Mon, 01 Jan 0001 00:00:00 +0000

Adams v. Bullock

and

Braun v. Buffalo Gen. El. Co.

For next this class…

Come prepared to:

argue for the opposite holding in Adams and Braun
with foreseeability as the reasoning behind the holding

The Reasonable Person Standard

An objective standard¹ designed to clarify what reasonable care requires

Justifications for an objective standard

Administrative feasibility
Consistency & enforcement of community norms
Equality & fairness

Exceptions to objective standard

Physical disability
Children
Expertise

Not exceptions to objective standard

Mental disability
Children engaged in adult activity
Old age & infirmity

Bethel v. New York City Transit Authority

The standard of the highest degree of care

versus

the standard of reasonable care

Readings

Sex and Gender: The Reasonable Woman?

The Right to Live in the World: The Disabled in the Law of Torts

with some exceptions ↩︎

Res Ipsa Loquitur

Mon, 01 Jan 0001 00:00:00 +0000

Structuring Arguments

Syllogism for proving duty and breach

D was legally obligated to do X.

D failed to do X.

Therefore, D breached their legal duty.

Detailed version

D had a duty (to the plaintiff) to exercise reasonable care under the circumstances.

Reasonable care under the circumstances was X, because of

- foreseeability,

- reasonable person standard,

- custom,

- statute,

- or hand formula.

D failed to do X, therefore D acted negligently / breached their legal duty to plaintiff.

Byrne v. Boadle

Larson v. St. Francis

Res Ipsa Loquitur

Two requirements:

Harm results from the kind of situation in which negligence can be inferred
Defendant was responsible for the instrument of harm

Connolly v. Nicollet Hotel

Why Allow Res Ipsa Loquitur?

Probabilistic rationale
Asymmetry and fairness justification

Res Ipsa Loquitur

Mon, 01 Jan 0001 00:00:00 +0000

Thursday’s Class Rescheduled

10:30am in the Robinson Moot Courtroom

How does a plaintiff normally prove duty and breach?

D was legally obligated to do X.

D failed to do X.

Therefore, D breached their legal duty.

Detailed version

D had a duty (to the plaintiff) to exercise reasonable care under the circumstances.

Reasonable care under the circumstances was X, because of - foreseeability, - reasonable person standard, - custom, - statute, - or hand formula.

D failed to do X, therefore D acted negligently / breached their legal duty to plaintiff.

What’s so special about res ipsa?

If res ipsa applies, plaintiff can prove duty and breach without establishing a standard of care.

Two requirements for res ipsa to apply:

Harm results from. . . ?
Defendant was. . . ?

Two requirements for res ipsa to apply:

Harm results from the kind of situation in which negligence can be inferred
Defendant was responsible for the instrument of harm

Case Recap

Byrne v. Boadle: “The Falling Flour Barrel”

Larson v. St. Francis: “The Falling Armchair”

Connolly v. Nicollet Hotel: “The Chaotic Convention”

Why Allow Res Ipsa Loquitur?

Probabilistic rationale
Asymmetry and fairness justification

McDougald v. Perry

Ybarra v. Spangard

Ybarra v. Spangard on Remand

- Plaintiff’s expert and court-appointed expert testified that the injury was traumatic in origin and not the result of infection.

- Defendants each testified that they saw nothing occur which could have caused the injury.

If you were the trial judge conducting a bench trial, what would your verdict be?

In-Class Exercse for Res Ipsa Loquitur

You are deciding a case as an appellate court judge.

Organize your notes according to the CREAC method:

Conclusion
Rule
Explanation
Application
Conclusion

Review

Mon, 01 Jan 0001 00:00:00 +0000

What you do, you become

—

Outlining

What is the purpose of an outline?

[fit] Blueprint

[fit] Roadmap

[fit] Instruction manual

Instructions for
processing unfamiliar facts

Exam writing process

Identify the issue
State the correct legal rule
Apply the rule to the facts
Analyze nuances (like gaps, contradictions, ambiguities)

Structural pattern in outline

Issue — Rule — Application — Nuances

Factual Causation Rule?

Factual Causation Rule: “But for” the defendant’s negligence, the harm to the plaintiff would not have occurred.

Factual Causation Rule: “But for” the defendant’s negligence, the harm to the plaintiff would not have occurred. Application?

—

In-Class Exercise

—

Factual Cause

—

Four typical scenarios in which factual cause may be contested

Toxic exposure
No idea what happened
Know what happened, but don’t know that it wouldn’t have happened if defendant had behaved reasonably
Know what happened, but don’t know who to blame

—

Proximate Cause

—

Vicarious Liability

Miller v. Reiman-Wuerth Co.: “The Bank Errand” Christensen v. Swenson: “The Lunch Break” Kuehn v. Inter-city Freight: “Road Rage” Sage Club v. Hunt: “The Violent Bartender”

—

Three criteria for scope of employment

Employee’s conduct must be of the general kind the employee is hired to perform.
Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.
Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

Review

Mon, 01 Jan 0001 00:00:00 +0000

Makeup Classes

Thursday, April 25th

10:00am until 11:15am in the Hall of the 70s.

Friday April 26th

Tentatively 8:45am until 10:00am in the Hall of the 70s. Office hours at noon.

Vincent v. Lake Erie Transport Co.

Hand Formula

B < P*L

Negligence when the burden on the defendant of taking precautions is less than the probability of loss for the plaintiff multiplied by the magnitude of that loss.

Defenses for Bob

Consent
Self-defense
No prima facie case of assault

Claims that Bob might have against Annie

IIED
Battery
Assault

Structure for this Part of the Course

Intentional Torts:

— Battery

— Assault

— False imprisonment

— Intentional infliction of emotional distress

Defenses:

— Consent

— Self-defense

— Defense of property

— Necessity

Abridged Definition from Restatement (Third) of Torts

A person acts with the intent to produce a consequence if:

(a) the person acts with the purpose of producing that consequence; or

(b) the person acts knowing that the consequence is substantially certain to result.

Abridged Definition from Restatement (Second) of Torts

An actor is subject to liability to another for battery if he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and a harmful or offensive contact with the person of the other directly or indirectly results.

Abridged Definition from Restatement (Second) of Torts

An actor is subject to liability to another for assault if

(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

(b) the other is thereby put in such imminent apprehension.

Abridged Definition from Restatement (Second) of Torts

An actor is subject to liability to another for false imprisonment if

(a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and

(b) his act directly or indirectly results in such a confinement of the other, and

Defenses

— Consent

— Self-defense

— Defense of property

— Necessity

—

How to Outline

—

With intentional torts, always consider

The legal interest that each intentional tort addresses
The requirements of the defendant
The requirements of the plaintiff
Any objective requirements, including analysis that the judge or jury must conduct

The legal interest that each intentional tort addresses

Battery

Freedom from harmful or offensive contact

Assault

Freedom from apprehension of harmful or offensive contact

False Imprisonment

Freedom from confinement

IIED

Freedom from severe emotional distress

Example outline excerpt

False Imprisonment

Legal interest:

Requirements:

— Defendant:

— Plaintiff:

— Objective:

Nuances:

—

Example outline excerpt

False Imprisonment Legal interest: Freedom from confinement

Requirements:

— Defendant: Intentional act to confine

— Plaintiff: Aware of confinement (or harmed by it)

— Objective: Plaintiff confined

Nuances:

—

Example outline excerpt

False Imprisonment

Legal interest: Freedom from confinement

Requirements:

— Defendant: Intentional act to confine

—— Threats or physical force / barriers or assertion of legal authority

— Plaintiff: Aware of confinement (or harmed by it)

— Objective: Plaintiff confined

—— Restricted area

—— No reasonable way to escape

Nuances:

—

Example outline excerpt

False Imprisonment

Legal interest: Freedom from confinement

Requirements:

— Defendant: Intentional act to confine

—— Threats or physical force / barriers or assertion of legal authority

— Plaintiff: Aware of confinement (or harmed by it)

— Objective: Plaintiff confined

—— Restricted area

—— No reasonable way to escape

Nuances:

Lopez v. Winchell’s Donut House

[Insert notes on legal reasoning that may apply to circumstances that don’t neatly fit within the rules]

Shen v. Leo A. Daly Co.

[Insert notes on legal reasoning that may apply to circumstances that don’t neatly fit within the rules]

—

Example outline structure

Intentional Torts:

— Battery

— Assault

— False imprisonment

— Intentional infliction of emotional distress

Defenses:

— Consent

— Self-defense

— Defense of property

— Necessity

Review Exercises

Mon, 01 Jan 0001 00:00:00 +0000

Some logistics

Makeup Class: Tuesday, November 28 from 8:15am-9:30am in this classroom.

Office hours today 12pm to 1pm

Additional office hours on Tuesdays: Tuesday, November 21 from 12pm to 1pm Tuesday, November 28 from 12pm to 1pm

Midterm information

4 hour exam on December 4, 2023. Worth 25% of your grade.

Mix of short answer and essay questions. No multiple choice.

You will be provided with an appendix that includes:

— A list of major cases

— Legal rules that you are not expected to have memorized

[fit] You should be worried.

As you study:

Connect with your core values.
Discern your immediate goal.

Why take this preliminary step?

Connecting to core values makes the work easier and more fulfilling.

Discerning a goal allows you to focus your attention on what matters.

There is no escape.

Anxiety is a very bad, no good motivator.

Exercise 1

You are a Justice in the Supreme Court of Nebraska who was part of the majority in Heins v. Webster County. You receive a letter from a colleague, Dale Fahrnbruch, who was part of the dissenting opinion in Heins (which we did not read for class). The letter describes a case that is now being litigated in the wake of the Heins opinion.

A plaintiff was playing on an outdoor asphalt YMCA basketball court, fell, and was injured. The plaintiff was not a member of the YMCA and did not pay dues to the YMCA. The plaintiff sued the YMCA. The YMCA motioned for summary judgment, contending that the YMCA did not owe the plaintiff a duty of care. Prior to the Heins ruling, the trial court would have followed the traditional rule, found the plaintiff to be a licensee, and granted the defendant’s motion for summary judgment. Instead, the trial court followed the Heins ruling, found that the YMCA owed the plaintiff a duty of reasonable care, and denied the defendant’s motion for summary judgment.

Your colleague, Dale, has written you this letter to remind you that the Heins opinion now subjects the YMCA to lawsuits holding them to a duty to treat uninvited users of their facilities with the same standard of care as the paying members of their institutions. He tells you that this case is “more than enough proof that the Heins opinion was wrongly decided and has had the expected effect of socializing the use of privately owned property. As a result, public and private institutions, as well as residential homeowners, must be especially aware of unknown, uninvited individuals who take advantage of their land and facilities.” Dale implores you to reconsider your position in Heins and to cast your vote the other way if the issue comes before the court again.

How do you respond?

Please note that your response here is a letter to a colleague. You are not writing a legal opinion. You are writing a response to a colleague who is concerned about the social consequences of the Heins opinion. Assume that your letter will be preserved and may be made public at some point in the future.

Traditional View

Type of Visitor	Definition
Trespasser	Intruder
Licensee	Social guest
Invitee	Business guest or general public (if land opened to public)

Duties Owed — Traditional View

Trespasser

duty not to intentionally or wantonly cause injury
no duty of reasonable care (with handful of exceptions)

Licensee

no duty to inspect or discover dangerous conditions
duty to warn or make known conditions safe

Invitee

duty to inspect and discover dangerous conditions
duty to warn or make conditions safe

Modern View

Type of Visitor	Definition
Trespasser	Intruder
Everybody else	Not a trespasser

Duties Owed — Modern View

Trespasser¹

duty not to intentionally or wantonly cause injury
no duty of reasonable care (with handful of exceptions)

Everybody Else

duty of reasonable care

Exercise 2

You are a trial court judge in the state of Loyola. The facts of a case before you are as follows. A patient had been diagnosed as legally blind and had stopped driving as a result. At a routine eye appointment, the patient’s optometrist told him that his vision had improved enough for him to drive again. The patient resumed driving and shortly thereafter crashed into a horse-drawn hay trailer, killing one passenger and injuring the other four.

The passengers have sued the optometrist for negligence. The optometrist has moved for summary judgment on the grounds that she had no duty to the plaintiffs.

How would you rule on the motion? Include your reasoning. You should be aware that the Supreme Court of Loyola recently adopted the holding and reasoning of the Tarasoff opinion regarding a psychiatrist’s duty to third parties. Loyola has likewise adopted the Rowland factors for determining whether an affirmative duty exists beyond the traditional common law exceptions.

Rowland Factors

foreseeability of harm
certainty of plaintiff’s injury
connection between defendant’s conduct and plaintiff’s injury
moral blame
policy of preventing harm
burden to defendant
consequences to community
availability of insurance

Or in California and the Third Restatement, a “flagrant” trespasser rather than just a plain old trespasser ↩︎

Review of Negligence So Far…

Mon, 01 Jan 0001 00:00:00 +0000

Supplement Recommendations

For Review:

Understanding Torts

For Practice Problems:

Tort Law and Practice

Course Roadmap

https://www.colin-doyle.net/torts2023/course-content/roadmap/

Ybarra v. Spangard

Two requirements for res ipsa to apply:

Harm results from the kind of situation in which negligence can be inferred
Defendant was responsible for the instrument of harm

Ybarra v. Spangard on Remand

- Plaintiff’s expert and court-appointed expert testified that the injury was traumatic in origin and not the result of infection.

- Defendants each testified that they saw nothing occur which could have caused the injury.

If you were the trial judge conducting a bench trial, what would your verdict be?

In-Class Exercise for Res Ipsa Loquitur

You are deciding a case as an appellate court judge.

Organize your notes according to the CREAC method:

Conclusion
Rule
Explanation
Application
Conclusion

Res Ipsa Cases

Byrne v. Boadle: “The Falling Flour Barrel”

Larson v. St. Francis: “The Falling Armchair”

Connolly v. Nicollet Hotel: “The Chaotic Convention”

McDougald v. Perry: “The Flying Tire”

Ybarra v. Spangard: “The Unconscious Patient”

Two requirements for res ipsa to apply:

Harm results from the kind of situation in which negligence can be inferred
Defendant was responsible for the instrument of harm

Why Allow Res Ipsa Loquitur?

Probabilistic rationale
Asymmetry and fairness justification

In-Class Exercise: New Variation

Ross v. Benson

Same facts as before, but rewind time to before the trial began.

You are a junior attorney working for a law firm defending Idris Benson. A partner at the firm has asked you to produce a memo addressing three issues:

Given the facts that we know, what are our best arguments that Benson exercised reasonable care?
How do we counter the plaintiff’s best arguments that Benson did not exercise reasonable care?
What facts should we try to learn before trial?

How does a plaintiff normally prove duty and breach?

D was legally obligated to do X.

D failed to do X.

Therefore, D breached their legal duty.

Detailed version

D had a duty (to the plaintiff) to exercise reasonable care under the circumstances.

Reasonable care under the circumstances was X, because of - foreseeability, - reasonable person standard, - custom, - statute, - or hand formula.

D failed to do X, therefore D acted negligently / breached their legal duty to plaintiff.

California Negligence Jury Instruction:

It is the failure to use ordinary or reasonable care.

Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence.

Reasonable Person Standard

An objective standard designed to clarify what reasonable care requires.

Exceptions to objective standard: - Physical disability - Children - Expertise

Not exceptions to objective standard - Mental disability - Children engaged in adult activity - Old age & infirmity

Foreseeability

Foreseeability is a flexible concept.

Define any event in general enough terms and it is foreseeable.

Define any event in narrow enough terms and it is unforeseeable.

How to use customs and statutes

Sword for proving negligence Prove two things:

- Custom or statute = reasonable care - Defendant failed to comply with custom or statute -————————————————— Shield for disproving negligence Prove two things:

- Custom or statute = reasonable care - Defendant complied with custom or statute

Negligence per se

- Actor violates a statute that is designed to protect against this type of accident and harm

AND

- the accident victim is within the class of persons the statute is designed to protect.

Hand Formula (BPL)

B = Burden of precautionary measures P = Probability of loss/harm L = Magnitude of loss/harm

IF B < PL AND defendant did not take on B THEN defendant was negligent

IF B > PL AND defendant did not take on B THEN defendant was NOT negligent

Cases for Establishing Reasonable Care

Review of Reasonable Care

Mon, 01 Jan 0001 00:00:00 +0000

Negligence as a Cause of Action

Plaintiff must prove four elements:

??????????
??????????
??????????
??????????

Negligence as a Cause of Action

Plaintiff must prove four elements:

Duty
Breach
Causation
Harm

Prima facie case of negligence

On its face, plaintiff has met the burden of proving duty, breach, causation, and harm.

Doesn’t mean plaintiff wins! Just means that a jury could find for the plaintiff.

Negligence as a Concept

Relates to the elements of duty and breach

The “fault” principle

Defined as a failure to exercise “reasonable care”

Ways to determine reasonable care under the circumstances include:

- ?????????? - ?????????? - ?????????? - ?????????? - ??????????

Special Considerations - ??????????

Ways to determine reasonable care under the circumstances include:

- Foreseeability - The Reasonable Person - Custom - Statute - Cost-Benefit Analysis (Hand Formula: B < P*L)

Special Considerations - Judge and jury relationship

Foreseeability

Foreseeability is a flexible concept.

Define any event in general enough terms and it is foreseeable.

Define any event in narrow enough terms and it is unforeseeable.

Reasonable Person Standard

An objective standard designed to clarify what reasonable care requires.

Exceptions to objective standard: - Physical disability - Children - Expertise

Not exceptions to objective standard - Mental disability - Children engaged in adult activity - Old age & infirmity

How to use customs and statutes

Sword for proving negligence Prove two things:

- Custom or statute = reasonable care - Defendant failed to comply with custom or statute -————————————————— Shield for disproving negligence Prove two things:

- Custom or statute = reasonable care - Defendant complied with custom or statute

Negligence per se

- Actor violates a statute that is designed to protect against this type of accident and harm

AND

- the accident victim is within the class of persons the statute is designed to protect.

Economic theory of negligence

Hand Formula

B = Burden of precautionary measures P = Probability of loss/harm L = Magnitude of loss/harm

IF B < PL AND defendant did not take on B THEN defendant was negligent

IF B > PL AND defendant did not take on B THEN defendant was NOT negligent

BPL Example

B = $200k P = 50% L = $200k

B > P * L $200k > (50% * $200k)

BPL Example

B = $30k P = 25% L = $200k

B < P * L $30k < (25% * $200k)

BPL Example

Possible precautions	Cost for defendant	Expected cost for plaintiff	Total cost to society
No Precaution	$0	$100k	$100k
Solar Panels	$200k	$0	$200k
Spark Arresters	$30k	$50k	$80k

Economic Theory of Negligence

Fault = economic inefficiency
Embodies a trust in private ordering and economic incentives
Driven by a goal of maximizing overall economic welfare

Critiques of Economic Theory

Incommeasurability of harms
Uncertainty of cost calculations

That’s all, folks!

Ways to determine reasonable care under the circumstances include:

- Foreseeability - The Reasonable Person - Custom - Statute - Cost-Benefit Analysis (Hand Formula: B < P*L)

Special Considerations - Judge and jury relationship

Noriega v. Loyola State Fair

Assignment: Deliver a memo detailing potential theories of negligence that could be argued in this case. For each argument, you should include:

what constituted reasonable care under the circumstances, and why, and how the defendant failed to exercise that duty of reasonable care
what the defense’s best counterarguments would be
in your estimation, how strong of a theory of negligence this is

Roles of Judge & Jury

Mon, 01 Jan 0001 00:00:00 +0000

Negligence as a Cause of Action

Plaintiff must prove four elements:

??????????
??????????
??????????
??????????

Negligence as a Cause of Action

Plaintiff must prove four elements:

Duty
Breach
Causation
Harm

Reasonable care

Ways to determine reasonable care under the circumstances include:

- Foreseeability

- The Reasonable Person

The Reasonable Person Standard

Objective standard

Exceptions to objective standard: - Physical disability - Children - Expertise

Not exceptions to objective standard - Mental disability - Children engaged in adult activity - Old age & infirmity

Baltimore & Ohio Railroad Co. v. Goodman

and

Pokora v. Wabash Railway Co.

and

Akins v. Glen Falls

Strict Liability

Mon, 01 Jan 0001 00:00:00 +0000

In-Class Exercise

—

Strict Liability

—

Fletcher v. Rylands

Rylands v. Fletcher

Liability applies for:

PWFOPBOHL&C&KTALDMIIE

Liability applies for:

PWFOPBOHL&C&KTALDMIIE

A person who for his own purpose brings onto his land and collects and keeps there anything likely to do mischief if it escapes

Limits on Strict Liability

Fletcher v. Rylands

— PWFOPBOHL&C&KTALDMIIE

Rylands v. Fletcher

— PWFOPBOHL&C&KTA “non-natural” and LDMIIE

First Restatement

— “ultrahazardous activity”

Second and Third Restatements

— “abnormally dangerous activity”

Indiana Harbor Belt v. American Cyanamid

Strict liability applies for behavior that is:

- Very risky and that risk cannot be eliminated at reasonable cost

AND

- Not susceptible to due care analysis

Activities, not Acts

—

Restatement Definitions

“In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.” Restatement (Second) of Torts § 520 (1977).

“An activity is abnormally dangerous if: (1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and (2) the activity is not one of common usage.” Restatement (Third) Torts: Liability for Physical and Emotional Harm § 20 (2010).

—

Tort law is the law of

negligence.

Strict liability is the law of tort law when negligence fails.

Toxic Harms

Mon, 01 Jan 0001 00:00:00 +0000

Midterm Review Meetings

—

In-class exercise

—

Question to Answer:

If the plaintiff has not made out a prima facie case, then the motion should be granted.

If the plaintiff has made out a prima facie case, then the question should go to the jury, and the motion for summary judgment should not be granted.

—

Sindell v. Abbott Laboratories

“Toxic Harms”

—

Possible alternatives for factual causation

Concert liability
Alternative liability
Enterprise liability
Market share liability

—

Toxic Harms

Why is the tort system such a poor fit?

Three frequent problems:

Identification of the cause: Can’t be certain that the toxin was a “but for” cause
Boundaries of the harm: Can’t be certain of the extent of the harm
Source of the cause: Can’t be certain who in particular is responsible

Mass Torts

A procedural story in two parts:

The Supreme Court killed the mass tort class action
Multidistrict litigation (MDL) took over

Exercises for Friday…

—

Exercise #1

You are an attorney at a plaintiff’s side firm in the state of Loyola.

Waters visits your office as a prospective client. She wants to know if she has a viable negligence claim against Meyer or Morales, who she should sue, and if she will win. Please advise her.

Exercise 2

Same initial fact pattern as the first exercise. Except now, in addition to being hit by Meyer and Morales, Waters was also hit by two other drivers who fled the scene.

Waters visits your office as a prospective client. She wants to know if she has a viable negligence claim against Meyer or Morales, who she should sue, and if she will win. Please advise her.

Exercise 3

You are an attorney at a plaintiff’s side firm in the state of Loyola.

For this question, assume that duty and breach can be proven. Please advise her on the most pertinent remaining issues.

Vicarious Liability

Mon, 01 Jan 0001 00:00:00 +0000

But first…

—

Palsgraf v. Long Island Railroad Co.

“Fireworks on the Train Platform”

—

Majority opinion (Cardozo)

and

Dissenting opinion (Andrews)

- Andrews dissent in Palsgraf

—

Vicarious Liability

—

Miller v. Reiman-Wuerth Co.

“The Bank Errand”

—

Christensen v. Swenson

“The Lunch Break”

—

Three criteria

Employee’s conduct must be of the general kind the employee is hired to perform.
Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.
Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

—

Kuehn v. Inter-city Freight

“Road Rage”

—

Sage Club v. Hunt

“The Violent Bartender”

Warnings & Defenses

Mon, 01 Jan 0001 00:00:00 +0000

“Reasonable Alternative Design” Challenges

—

Should the plaintiff succeed on this theory? Should the plaintiff succeed on the merits of the case but for different reasons? Should the plaintiff not prevail at all?

—

You are the lawyer for the plaintiff in a case where the plaintiff dove into a 3.5 foot, above-ground pool and broke their spine. What do you propose as a reasonable alternative design?

Should the plaintiff succeed on this theory? Should the plaintiff succeed on the merits of the case but for different reasons? Should the plaintiff not prevail at all?

Warnings

Products Liability Claims

?????????????????
?????????????????
?????????????????

Products Liability Claims

Manufacturing Defects
Design Defects
Failure to Warn

Elements of a Claim

Negligence

Duty
Breach
Causation
Harm

[.column] Strict Liability

Defendant was engaged in the kind of activity where strict liability applies
Causation
Harm

[.column] Products Liability

Defect
Causation
Harm

What are our concerns with the effectiveness of warnings and warning labels?

Clarity of labels
Too much text
Level of detail related to the possible harm
Language and legalese / What languages?
Location of label
Overwarning
Color and font, visibility

—

Hood v. Ryobi American Corp.

Couple nuances

“Heeding Presumption”

Warnings can’t overcome design defects

—

In-Class Performance

Rueben the bear →

Raccoon →

Turtle →

Bigfoot →

Dog →

What products liability claims might Reuben the bear assert against the manufacturer of his pants?

We all have an intuition that Reuben should lose his case,
but for what reason?

How can you defend against a strict liability or products liability claim?

—

Plaintiff’s failure to discover a defect

Restatement (Second) of Torts

Restatement Third

—

Comparative Responsibility is Hard

Welcome to Torts!

Mon, 01 Jan 0001 00:00:00 +0000

Agenda

Syllabus highlights
What is a tort?
Small group exercise: Litigating your first torts case

Syllabus highlights

Logistics

Contact information Colin.Doyle@lls.edu Office: Burns 315 Telephone: 213-736-1148

Class schedule Tuesdays & Thursdays 8:15am to 9:30am Hall of the 70s

Open office hours Tentative Schedule: Thursdays 12:00pm to 1:30pm Outside the Robinson Moot Courtroom

Reading Assignments

Class Policies

Attendance

Preparation and participation

Qwickly Attendance App

The law school is piloting a new class attendance app called Qwickly.

To use Qwickly, you will need to download the app to your smartphone from the App Store or Google Play.

Once the app is downloaded, you will log in using your LLS/LMU email and password.

Recordings & Slides

Video

Audio with transcripts

Slides

Classroom Norms

Professionalism

Generosity

We can give each other the opportunity to be wrong.

We can disagree with ideas, not with people.

Accommodations

Student Accessibility Services in the Office of Student Affairs

I want this class to be accessible for you.

Exams and Grading

Midterm Exam (Fall Semester): 25%

Final Exam (Spring Semester): 75%

Questions about the syllabus

In-Class Exercise

Logistics

Small groups.

You will be lawyers for either the plaintiff or one of the potential defendants.

Be prepared to share with the class your strongest arguments.

The Facts

On a Tuesday afternoon, Thomas Jenner lost control of the car he was driving and crashed into the side of a bicycle shop. His car went through the wall of the bicycle shop, injuring the owner of the bicycle shop, Maxine Hammontree.

Thomas Jenner had a history of epilepsy. On this day, he lost control of his car because he had an epileptic seizure and became unconscious. Jenner has no memory of the incident. He remembers driving, and then he remembers being pulled from the vehicle by EMT’s. Jenner reports that prior to the accident there were no warning signs that he was about to have a seizure.

Jenner first began receiving treatment for epilepsy fifteen years ago. He regularly takes anti-seizure medication and has done everything his doctors have advised him to do to address his epilepsy. As a result of his condition, he needs a doctor to sign off yearly with the DMV for him to have a license. His doctor has signed off with the DMV.

Many new cars have automatic collision avoidance systems that can help prevent these kinds of accidents from occurring. The car will automatically brake to prevent a forward collision from happening. Thomas Jenner was driving a 2020 GM Spark that did not have this anti-collision system as an available feature.

The Legal Questions

Who — if anyone — should be held liable for these injuries to the plaintiff?
What kind of remedy should the plaintiff receive?

Potential Defendants:

Thomas Jenner
Thomas Jenner’s Doctor
General Motors

Group Assignments

Plaintiff’s Lawyers

Groups 01 & 09: Suing Thomas Jenner Groups 02 & 10: Suing Thomas Jenner’s Doctor Groups 03 & 11: Suing General Motors

Defendant’s Lawyers

Groups 04 & 12: Defending Thomas Jenner Groups 05 & 07: Defending Thomas Jenner’s Doctor Groups 06 & 08: Defending General Motors

The Lawyers for the Plaintiff

Why should this defendant be held liable for the injuries to Maxine Hammontree?

What remedy does the defendant owe Ms. Hammontree?

The Lawyers for the Defendants

Why should your client not be held liable for the injuries to Maxine Hammontree?

If your client is found liable, what remedy should they owe Ms. Hammontree?

Explain your reasoning

You must appeal to some kind of general rule or principle that would apply in similar cases.

In-Class Scratchpad

On the course website, link is on the bottom of the left sidebar

https://www.colin-doyle.net/torts2023/scratchpad/

Report back

Workers’ Compensation

Mon, 01 Jan 0001 00:00:00 +0000

Classes Next Week

Tuesday, April 23rd

8:45am to 10:00am in the Hall of the 70s.

Thursday, April 25th

8:45am to 10:00am in the Hall of the 70s.

Friday April 26th

10:00am to 11:15am in the Hall of the 70s.

Office hours immediately following the end of class.

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How do alternatives to tort law teach us about tort law?

They influence tort litigation
They affect substantive doctrine
Alternatives to tort help us to understand assumptions and latent choices within the common law of torts

Hypos on Impact of Insurance

First party insurance for plaintiff in

Vincent v. Lake Erie Transport Co.

Liability insurance for defendants in

Randi W. v. Muroc Joint Unified School District

Pavia v. State Farm

Workers’ Compensation

Lamson v. American Axe & Tool Co.

“The Axe that Fell on the Employee”

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The “Unholy Trinity” of Common Law Defenses

Fellow servant rule
Contributory negligence
Assumption of risk

The Bargain of Workers’ Compensation

No fault

and

Exclusive remedy

Workers’ Compensation Requirements

Only compensates for work-related injuries

Benefits include: —— Medical coverage —— Percent of lost wages —— Vocational rehabilitation —— Survivor benefits

Employers must buy workers’ comp insurance

When would an employee not file a workers’ comp claim?

Injury didn’t occur while in scope of employment

Injury resulted from employer’s intentional tort

Non-disabling injury

Employee was not an employee but an independent contractor

Third-party claims

Rule: Employee can file a workers’ compensation claim against their employer but workers compensation’ does not cover third parties.

Hypothetical:

Gladys Escola is a waitress. While serving a Coca-Cola beverage at work, the bottle explodes in her hand, injuring her hand. She needs surgery and will be unable to work for months.

What’s your legal advice for her?

Big Picture: Workers’ Comp vs. Tort Law

Deterrence

Compensation

Administrative Cost

Equity