main torts updated outline

8/8/2019 Main Torts Updated Outline

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Everyone owes a duty to everyone

Exceptions: Creasy v. Rusk for public policy reasons, relationship between parties

(pub policy come into play when people have certain relationships)

General duty owed to everyone else based on circumstances. Some things may

trigger different level of duty. Court rejected it in dangerous instrumentalities and

emergency situations. Different duty owed by children, and by those with physical

disabilities. People with mental disabilities held to ordinary standard though. Also

takes away intoxication as a standard.

(1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person

injured; and (3) public policy considerations.

Reasonable Person Standard

RULE: WWRPD?

RP is objective (compare to everyone) not subjective (personal)

General RP: What is reasonable and prudent for general person to do. We tell people

to meet RPS and move yourself up, pay, or get out of business

CASE: Vaughn v. Menlove: Haystack fire, they elim best judgment rule and

set a minimum standard for a reasonable person

Golden rule, from Parrot case, putting yourself in persons shoes, moral formula.

Parrot established what it means to be reasonable.

CASE: Parrot v. Wells Fargo: Package blows up buildings, Golden rule is

used here. A reasonably prudent person would act in such a way that

potential loss would be your own.golden rule

B


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Rule: amount of care needs to be look at in context with

circumstances and danger involved

Emergencies ASK KIM!!!

CASE: Myhaver v. Knutson: Man swerves to avoid another car and hits

another.

Sudden emergency standard:

1. The emergency has to come about suddenly without warning

2. The party seeking had not been negligent prior to emergency

3. Reaction was spontaneous without time for reflection

An Actors Knowledge and Skill (Different level of care NOT different standard)

CASE: Cervelli v. Graves: Truck driver with years of experience tries to

drive around a car, fishtails, collides.

Rule: As a policy it makes sense to say RP is minimal standard, but

if you can do better, the law will hold you to it. What theyve done

is basically combined the best judgment with RP while setting a

floor. Superior skill of individual is a factor in determining whats

reasonable under circumstances.

Differing Standard level

Application to Children (Lower Standard of duty)

CASE: Robinson v. Lindsay: 13 year old crashes snowmobile and 11 year

old loses use of thumb

Rule: Care depends on capacity of child. rule lets kids be kids, but

discourages dangerous behavior. The operation of a snowmobile requires

adult care and competence. Since defendant had operated these for 2 years,

he should know the care required.

Some states use reasonable child others use under 7 rule (where not

negligent at all). In this case standard raised by inherently dangerous or

adult activity so held to adult standard

Physical/mental disabilities

Physical Disability:

CASE: Poyner v. Loftus: Blind man misses bush and falls

o He asks for reasonable blind man standard, doesnt get

one because contrib. negligent

o Lower standard of duty

Mental Disability:


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CASE: Creasy v. Rusk: Man with alzheimers is violent to

caregiver,

Rule: A persons mental capacity, whether that person is a child or

an adult, must not be factored into the determination of whether a

legal duty exists. Not lower standard for duty.

Recklessness

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

2. Breach

Failure to execute or live up to ones duty

1. General evidence, who what when where(most cases here can tell what happened and why it was

unreasonable)

2. Statute violation: negligence per se

An act is considered negligent because it violates a statute (or regulation). In order to prove

negligence per se, the plaintiff must show that (1) the defendant violated the statute, (2) the

statute is a safety statute, (3) the act caused the kind of harm the statute was designed to

prevent, and (4) the plaintiff was within the zone of risk. In some jurisdictions, negligence per

se creates merely a presumption of negligence.

Definitions within Jurisdictions

Negligence per se: definitely goes to jury

When stat violation in juris that treats it as neg per se, you must find duty

breach causation damages if no excuse. If excuse must find breach unless

excuse is valid. Basically when no excuse being offered jury loses

discretion

Prima facie: evidence of stat violation goes to jury

You dont even have to give any other evidence to meet RPS, if evidence of

stat violation than enough to go to jury and can, if it wants, find breach.

They retain discretion to not find breach even if stat violation

Some Evidence of breach: evidence of stat violation may not get to jury b/c may not

be sufficient for jury to find breach

Weakest effect given to stat violations. Were not sure if its enough for

jury to consider by itself for breach. You will have to show violation and

all evidence to show not reasonable.

CASE: Martin v. Herzog: Buggy with no light, P is killed in accident D is negligent.


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Rule: The unexcused violation of a statutory duty is negligence per se and a jury may not

relax the duty that one traveler owes under a statute to another. Negligent conduct is not

actionable by itself unless there is a showing that such conduct was the cause of the injuries

incurred. So must still show causation and damages even if negligent by statute. You have to

rely on leg. Reasoning

CASE: Thomas v. McDonald: Man crashes pickup into a gang truck broken down on road with no

signs.

General rule: When two cars traveling, duty of avoid in collision is placed on second driver

absent of unusual condition or emergency.

Negligence per se rule: When stat is violated the injured party is entitled to an instuction that

the party violating is guilty of negligence, and if neg proximately cause or contributed to

injury, then injured party entitled to recover

In order for doctrine of negligence to apply P must show he is member of class that

stat was designed to protet and that harm he suffered was type of harm which stat

was intended to prevent. He was part of class and no signs, so they reverse for him.

What happens when violation of a statute?

CASE: Wawansea: Boys buy cigarettes and one drops it lighting wood and and causing

damages.

Statute cited had to do with teen cigarette smoking so does not apply to type of harm

caused here. Has to be same harm that occurred in this case prop. Damage

Legitimate Excuses

CASE: Sikora v. Wenzel: Deck attached to condo collapses. Landlord didnt know not up to

code. Neg per se creates strict liability so doesnt matter if know or should have known but

here there was legit excuse.

Lack of notice: not knowing is not enough, needs to be one of two things

1. Actual Notice

Do they know based on fact (ex. City tells him about code, or tenants say

wobbly)

2. Constructive Notice

Is notice never actually given but assume they should know like records at

city hall. If info is available and reasonable p would have found it, then

even if didnt look it is constructive

Like claiming you dont know about statutes, here they had bad

record so no notice.

3. Custom


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Relevant evidence; not negligence per se, its just relevant and pretty persuasive depending on

case

High vs. Low, difference of wal mart and tj hooper

CASE: TJ Hooper: Tugboats crashed didnt have radios that could call out which was

standard

Cant use custom as a defense, a reasonable person would have had the radios. Do a

B


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Many difficult rules/confusing terminology. Make sure words are what we mean and when rules apply

along with substance of why rule and why it exists. Burden of causation always starts with P.

Actual Cause: Cause in Fact

Physical or historical cause of accident, what made it happen, linking breach of duty to damages

1. But for test (surest/most simple way of proving cause) Not about finding one and only cause but

about finding cause to look to. Burden on P not that high, doesnt have to be sufficient cause just a

cause

CASE: Cay v. Louisiana: Drunk man falls over side of traffic bridge.

Court had to prove accident and no other things to show fall was cause of death

based on height of wall. This case shows there can be multiple causes in fact

(darkness, walking on wring side, intoxicated which does indiciate contrib. neg.)

RULE: But for the Ds negligence, this would not have happened.

HYPO: Pam on cruise ship, Bob hits her, she falls in and drowns. He is cause in

fact.

Alternatives to But For

2. Multiple sufficient causes (shifting burden to D)

Looks at whether D is substantial factor, he has to prove hes not. Some states by stat decided

all P has to show is D substantial factor which is not the same as this exception to but for,

dont use this unless told.

Each cause would have to be sufficient alone to cause the harm.

CASE: Kingston v. Chicago: Fire from train and natural fire consumer mans house after

meeting up.

Ps burden is to prove that nw and ne fire sufficient to cause entire damage of

property. If P can show multiple sufficient causes for damage, then burden shifts to

D to show that they were not substantial factor to the cause. If they cannot prove

this, jury gets the case to prove whether actual causation.

Here as long as P proves MSC, D has burden to show not substantial factor.

Goes to jury to decide D substantial.

Wisco and other states have substantial factor rule, not but for, just show

this and as long as enough evidence, can go to jury. Exam start with But for

and work through it.

CASE: Brisboy v. Fibre: Man develops lung cancer, says it was from working for one comp

for a few months.

Dont have to show dominance, just have to show substantial factor of his lung

cancer.


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3. Concert of Action

Not enough for But For or MSC so move to concert of action

3 types of concerted action:

1.. common design, the one who designed this w/actor just as bad

2. knows the other is engaging in tortious behavior, Substantially Assist them you are

bad

3. Substantial Assistance and own tortious conduct, your own act is negligence in

and of itself

These are elements and not rules, dont have to prove all.

5 factors need to prove substantial assistance: dont need to list them just know they had a

relationship had to know the act was bad, didnt stop them. Its basically trying to make you

partially responsible for friends behaviors.

CASE: Shinn v. Allen: 2 buddies drinking, didnt eat, asks for ride home, kill her husband.

4. Alternative Liability

When P has to rely on this, P is generally required to show the parties hes bringing into court

acted negligently with similar risk, that they basically did the same thing so we can say well

probably it was one or the other. Some juries only allow with 2 ds, some dont allow this

at all.

CASE: Summers v. Tice (big case): Guys hunting, quail flies up, both men shoot and hit

summers in eye and mouth. Both of those so firing are liable for the injury suffered by the

third person although only one of them could have caused the injury.

For harm resulting to a third person from the tortious conduct of another, a person is liable if

1. He knows that the others conduct constitutes a breach of duty and gives substantial

assistance or encouragement

2. OR Gives substantial assistance to the other in accomplishing a tortious result and

his own conduct separately considered constitutes a breach of duty to the third

person

Alternative liability shifts burden to Ds to prove. Summers doesnt have to prove at

all in this situation. D has to prove causation since more than one cause. It is unjust

for summers not to be compensated. We know one of you did it but going to hold

both liable. This is possible with the thought that both of them are negligent bc

summers was innocent. Maybe only one hit him, but both were negligent, so

allowing to go forward without showing causation out of fairness. Up to tice and

simonson to prove the other is the soul cause. If cannot prove it, both liable. As a

matter of law both are treated as causes in fact, not because they both are, but bc both

engaged in negligent activity we dont want summers to be without compensation.


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Cant prove under but for because dont know who hit him. Not concerted

action bc didnt get together to plan this, didnt substantially assist, they

both independently wanted to shoot the quail, no common design. Two

different damages, so two different lawsuits. Bullets hit different things.

5. Market Share Liability

Mass torts like fertility drug ex. Merck 30%, Pfizer 10% etc. When Ps won the suits, each

had to pay percentage of market share. Really not popular and only available in jurisdictions

which liberally favor P.

6. Lost Chance of Recovery

Generally 3 approaches to lost chance

1. All or nothing: more traditional approaches a result of negligence, needed better than or

equal to 51% chance of better outcome

Suggest more likely than not, with this rule you get all the damages if prove since

you would have had a different life

2. Difference (most likely needs to be substantial), still all or nothing pay out, then we want to

make sure these cases created a substantial difference in the outcome of the case

3. Lost opportunity for a better outcome, difference substantial most likely, in percentage

attributable to doctor, with proper care she would have had 40% chance of walking, but her

chances dropped to 20% with negligence, so recovery would be 20% of value of walking.

This says basically doctor was a but-for cause in the 20%, the loss of the opportunity to walk.

CASE: Lord v. Lovett: Mistreated her spinal injuries, she sufferes slight paralysis, wants lost

chance of opportunity

Only in medical

CASE: Petriello v. Kalman: This case the bowel obstruction hadnt happened yet like lord

case where she couldnt walk.

If P can prove there exists a 51% chance that his injury is permanent or that future injury will

result, he may receive full compensation for that injury. If only 49 percent, recover nothing.

All or nothing standard. Here have to show increased risk of harm. Lord case was

already lost chance.

Proximate Cause (seen in limiting liability section)

Superseding Cause (See later)

Limiting Liability:

CASE: Palsgraf Case (most important cases in torts): Man tries to get on train, drops package of

fireworks causes chain where scales fall on woman.

Two different approaches to limiting liability based on duty or proximate cause


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Judge Cardozo talks about duty to foreseeable plaintiff, Palsgraf is not, limits on

level of duty. Foreseeability jurisdiction

Forseeable Ps are the only ones we can impose duty for, we care about

what can reasonably anticipate danger because it defines who our duties are

to and what our conduct should be. Who is in danger and what kind of

danger are we dealing with to decide actions. Have to be able to see at

moment of conduct the care that is needed to be able to indentify who the

duty is to.zone of danger Here limited to immediate people.

Duty should be restricted by forseeability

Judge Andrews: duty is to everyone; (foreseeability of harm) limits on level of

causation Directness jurisdiction

Duty isnt limited to foreseeable ps. You owe duty to the world, so guard

owed duty to palsgraf b/c negligence caused a chain of things. Any person

should be able to come back using causation principles to come back and

sue beginning negligent party.

Cardozo argues duty to the world with scare people from doing anything,

too big of a burden of liability. Andrews does say there is stopping point

somewhere by limiting causation

Look at directness of harm, substantial factor of causing harm,

remoteness of harm, foreseeability, continuous natural sequence

etc.

WISCO FOLLOWS ANDREWS!

Cardozo looks from moment before the push, Andrews looks from

explosion of package

We should look at moment before push bc in torts we want a duty

for actions we can control. They really should have come out with

same judgment with different views.

If it should have same outcome anyway, whats the point?

You need to look at what is foreseeable in each torts cause, the harm or the plaintiff.

Formal difference of limiting liability through different avenues

Duty is a question of law and prox cause is a question of fact. If there is a prob with

duty then palsgrafs cause is dismissed before a jury. A legal question decided by

judge related to forseeability of plaintiff. So no case. If we allow Andrews

perspective, and look through prox cause case does go forward and jury has the

chance to decided whether foreseeable harm through perspective of railroad guard.


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Philosophical issue: we owe duty to the world says Andrew, cardozo says only duty

to foreseeable p and not to the rest of the world. Big diff in world view. States

adopting the different views basically adopt a philosophical life view.

Both are active theories, P has to prove duty and proximate cause

Limiting Liability: Duty

CASE: Hegyes: Files suit for injuries to fetus that were cause by an old accident.

RULE: Persons are required to use ordinary care for the protection of those to whom

harm can be reasonably forseen. It establishes and limits the principle of negligence

liability.

Following Cardozos rule, looks at foreseeability of Ps. Could not reasonably

foresee harm to a fetus years from the accident. No duty to baby because never a

foreseeable P. Even though cause in fact of babys harm, not foreseeable.

CASE: Graff v. Beard: Party guest leaves drunk, hits motorcyclist.

Many pub policy considerations: Making something strict liability is bad, effects

everyday actions, assuming you can control a guest or recognize intoxication means

you patrol everyone and not fair to ask of them. There are exceptions based on

relationship like we talked about in blinka which could also cause concert in action,

but they are not related or anything.

Rule: In absence of a relationship b.w the parties giving rise to right of control, one

person is under no legal duty to control the conduct of another, even if there exists

practical ability to do so.

Limiting Liability: Proximate Cause (Andrews view)

Directness

CASE: In Re Polemis

Whether ds negligent act was continuous natural sequence to ps harm.

That is are there any intervening acts, acts that breack the chain of

causation, that resulted in the ps harm.

You can have superseding or intervening

Foreseeability: doesnt care about directness, looks at foreseeability of harm

Reasonably aware that damages to the p are possible based due to ds negligent

actions or omissions

Superseeding cause over rules it because the harm was not foreseeable

CASE: Tieder v. Little:

Eggshell w/foreseeability

CASE: Schafer/Hoffman:

Substantial Factor Test


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Know it exists, not tested on it

Intervening/Superseding Causes

4. Damages

END OF WHAT PLAINTIFF HAS TO PROVE

Defenses

Affirmative Defenses

Defenses basically say, yes P proved all elements of torts, but I should still have to pay less or be less

liabile to defeat Ps lawsuit in whole or in part. Not attacking substance, these are on the D to prove.

Contributory or Comparative Fault/Negligence Defense

Contributory Negligence

Only a small number if jurisdictions

CASE: Wright v. Norfolk: Dump truck and train collide. Contributory negligence

you get all or nothing.

Since the jury knows you get all or nothing, they may manipulate findings to

basically help out the victim and ignore his contribution out of sympathy.

This style lets the plaintiff pay for it all and the d pay for nothing when he

was also at fault

Comparative Negligence

Pure Comparative

Court says well if both are negligent the jury needs to decide their percentages and

the d pays the P the portion of damages attributable to him. Ex. D 45% negligent, P

55% responsible, the P gets 45% of damages in this type of jurisidiction.

As long as P can prove D is at least 1% responsible based on duty, breach,

etc., they get 1%. The only way a case gets dismissed is if P cant prove D

negligent at all

CASE: Dobson v. LA: Wrongful death suit by treetrimmers family/elec. Wire.

They do a B


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P can be no more than 49% responsible. Still gets percentage of damages the d

caused. Wisco is this type but modified?

CASE: McIntyre v. Ballentine: Two men drinking/driving collide.

RULE: So long as a pl negligence remains less than the dfs negligence the

pl may recover; in such a case, pls damages are to be reduced in proportion

to the percentage of the toal negligence attributable to the pl.

Trying to change the law from contributory to comparative. They end up

adopting 49%. Why this rule? Thought it was most compatible with fault-

based tort system. Important for them that if p will recover anything he

needs to be less at fault than the d. P cant be more than 49% responsible.

Have to retry when the jury decides they are equally at fault because before

it didnt really matter percentages.

A jury assigns percentage still!!!!

o Verdict: negligent by X percent, and negligent by Y

percent. They can still manipulate percentages because

they know the 1% difference can mean 0 money or some

money.

CASE: Jensen v. Intermountain???????

Recklessness:Higher level of negligence, gross negligence. Willful and wanton. You are aware of

risk but take no steps to avoid it. Because you have actual awareness, higher level of culpability and of

wrongness.

Contributory Jurisdiction

CASE: Coleman v. Hines: Drinking, boss offers to drive, still drinking accident and

death

This woman says she was negligent but driver was reckless/grossly negligent, wants

to be compared on different levels. They say no, they were both willful/wanton

She triesLast Clear Chance rule (which she fails)

1. p by own negligence placed herself in position of peril from

which she could not escape

2. d saw or by exercise of reasonable care should have seen and

understood the perilous position of the p

3. D had the time and the means to avoid the accident if d had seen

or discovered ps perilous position

4. D failed or refused to use every reasonable means at his

command to avoid impending injury to p


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5. P was injured as a result of ds failure or refusal to avoid

impending injury

LCC Doctine mostly for breaking ties in contrib. juris but also used in

comparative to allocate fault percentage.

Comparative Jurisdiction

CASE: Downing auto: Pit crew member pinned by car, use Burke/Mendenhall cases

to decide. Court chooses Mendenhall case. PURE JURIS

Mendenhall says sometimes recklessness looks like intent sometimes little

bit worse than negligent and it depends on facts of each specific case. And

if it is a factual decision and degree of badness is for jury to decided and to

allocate the percentages.

MENDHALL IS THE MAJORITY APPROACH UNDER

REASONING THAT IT IS CASE BY CASE DETRMINATION

AND COMPARATIVE FAULT IS MEANT TO ALLOW FOR

COMPARISONS AND NOT ALL OR NOTHING DECISIONS

ESPECIALLY IN A PURE JURIS LIKE THIS. MINORITY

JURIS USE BURKE LOGIC. Burke says jury cannot allocated

fault since at their core, recklessness and normal negligence are on

two different fault levels.

Assumption of Risk Defense

Primary Assumption of Risk

Clover ski case, no duty on part of d when p is held to have taken assumption of risk when

inherent in actions. This says no duty, so no breach can be there so cannot go forward

Secondary Assumption of Risk

It does not disturb the 4 elements, can still prove all but then say regardless of everything, I still

shouldnt have to pay

Express assumption of risk: Some party literally agreed to take on risk and release liability of

defendant, like a waiver, oral agreement, release

Here a court will look at type of assumption of risk to see if okay per public policy

and also if the release is defective by own purpose.

CASE: Turnbough v. Ladner: Scuba diving injury

Not a matter of public policy because of nature of activity

BUT this is a broad release which is bad because it lets them ut of gross

negligence and too broad of language

3 THINGS TO LOOK AT:

1. One of the problems is standard k


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No negotiation and mutual agreement between parties

2. Court here focuses on intent/language of K

Here negligence of instructor not listed specifically

3. Control is final factor

He had no control, relied on her and was hurt

Implied assumption of risk: no agreement explicitly made but actions of p show they

assumed the risk and should be held to own damages

Jurisdictions will treat this differently based on compara. or contrib.

3 elements

1. Awareness/know of risk

2. Appreciation for the risk

3. Voluntary acceptance of risk

Generally assumption of risk is a matter of fact not law and should got to jury. It is

also not really a duty issue but can have the effect of negating duty.

CASE: Schroyer v. MeNeal: Woman walking to room slips on ice and breaks ankle,

Contributory Juris.

Here we look at the 3 elements of assumption of risk because ct says lower

ct confused contrib. negligence with assumption of risk

CASE: Davenport v. Cotton: Falls when floodlight he reported being out is out in

stairwell 50% Negligence Juris.

Have to look again at the 3 factors

Ct says when they adopted compara they did basically did away with

assumption of risk (Wisconsin) and are deciding what to do with it

Rhode island says assumption of risk remains a valid defense, and

even when compara, the P gets barred from injury because when

you know the risk and voluntarily accept the risk you consent to

your injury basically. Has the same effect as express or implied in

other juris. Barred from recovery. Assumption of rish means yoou

get nothing, but if contributory, they will compare and you could

recover.


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West Virginia says what they used to call assumption of risk is just

another way to determine fault in negligence. And the whoel point

of comparative fault is to determine who did how much. Basically

you can still recover. Here they can find contrib. neg and/or

assumption of risk. Assumption is reasonable or unreasonable type

of fault contrib. is also a type of fault, both of these faults can be

compared against ds fault which is negeligence and we can

allocate percentage compared to that.

The problem with these differing views is the careful v. careless

person, in RI the woman who steps around spill pop and still falls

gets nothing because she took risk, could recover in WV for

something. Carelss person texting while driving doesnt know the

risk exists so they will recover in RI and not WV.

CASE: Wagenblast: School requiring a release to be signed before playing sports

Issue: Void for public policy?

Ct. lists 6 things that would make it void for public policy: what they are getting at

with the releases, what kind of business party engaged in, does public policy forbid

us from enforcing it

Major problems because publicly regulated activity, ct worried about unusual

bargaining power, control of duty, ct concrerned bc students under control of the

coaches who are not liable. Just factors, dont have to meet them all to void.

Mitigation Defenses do these apply to particular jurisdictions?

The law doesnt want you to sit at home and do nothing just to collect more from other people

Fault approach: Comparative jurisdictions

Here a D has to show they did everything reasonably possible to help injuries.

For this one you have to show unreasonable behavior and failure to mitigate.

This is breach and causation, an incation after the accident that causes further

damages

Based on causation, you have to show Ds actions caused further injuries or at least didnt

prevent them

Causation approach: contributory jurisdictions

This looks at how much failure to mitigate caused the further damages or injuries.

Ex. P owes 100k, his causation makes 30k, then they owe him 70k BUT subtract his

percent of negligence here

In contributory jurisdiction:


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Only gives P what D negligently cause. Just about reducing damages based

on the mitigation.

Seat belt doctrine

APPORTIONMENT OF DAMAGES

Joint and several liability rule

Common law rule

Both Ds responsible for the money (say 100k) and P has option to go to either one for it. The

law doesnt care who pays as long as innocent party gets the money.

BUT later, joint tortfeasors can sue another to get some money back

Pro Tanto: Contribution b/w two ds comes in here and can divide the

damages between them. Basically: D can sue another for half they owe

This was all based off contributory system where P was innocent and we want to protect the

innocent and let the guilty figure it out later

Several Liability Rule

Wisconsin Rule:

Limited to amount of negligence attributed to person

51% fault threshold rule, you are severally liable up to 50% but once your reach 51%

the judgement against you is for full amount of damages. You become jointly and

severally liable. If responsible by majority share, not unfair to make you pay for

whole amount. Allows to shift risk of insolvency to defendant.

In Wisconsin if jones 51%, Richardson 30@, piner 19%, 1mill reduced by

piner, and jones pays the rest with r paying like the rest, 300k or something.

VICARIOUS LIABILITY

Employer-employee relationship (Cant really sue for company both because they differ on who is

negligent?)

Respondeat Superior

P does not have to sue employee as well. BUT does have to prove ALL three elements

1. Negligence

2. Of employee

3. w/in scope of employment

This rule says the employee was negligent and the employer is liable for his

actions

It gets tricky in that if it is intentional negligence of employee then this

doesnt apply but if its someone like a bouncer and in scope of job and

benefits employer then its okay

ALL THREE ELEMENTS NEEDED FOR IT TO APPLY!


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Negligent Supervision (negligence of the employee)

This is not vicarious!!! You are suing employer directly

Here you say the company owed the person a duty to supervise their employees better and

they owe him.

1. Negligence

2. Of employer

Other issues:

Independent contractor:

Employers are not liable under Respondeat Superior for the actions of ICs, you

cant meet the employee prong

In the case we did in class, the IC met enough of the 8 factors to show he was more

near an employee so they counted him as such

Off the clock:

Not within the scope of employment

Coming and going rule:

Not within scope of employment when punch in and out. Commute is not part of the

benefit of employer.

Special errand:

Exception to coming and going rule to allow respondeat superior. Even if

off the clock, employee is still within scope of employement because

coming and going from special errand. Employer is benefiting from you,

and you are on the road per the employers request.

Complete departure:

If you make a complete departure from the errand, a frolic then

it is for your benefit and not the employers because they shouldnt

have to pay for your mistakes

If you engage in a detour, they are still responsible.

For these two you need to look at a few things like intent of employee, the

nature, time, and place of employees conduct, and the work the employee

was hired to do to determine whether it was a frolic or a detour

Employers in some jurisdictions can pullIndemnification

They pay it all now and expect it back 100%. Companies say, I didt do anything wrong an

legally I may have to pay for you now, but I want back what you really owe.

Theories of paymentwhat are these theories about? Do some juris use one or the other?

Deep Pocket Theory:


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most of the time an employee is probably unable to pay a p, so we allow p to get to the deeper

pocket of the employer. Maximize chances of p being able to recover. This is one way to

justify respondeat superior. Here it is about who has the money.

Indemnification would really apply under here so unless a jurisdiction is really

for DP, indemnification isnt really allowed

Risk spreading theory:

employer is better situated to get money to p. Here it is about who is able to spread the loss

better. Employee can only go to bank account but businesses can go to mulptiple ways to get

costs, like customers etc. Everyone pays a little bit and not as damaging as when one person

has to pay all. They also have insurance, premiums go up, proxy agent.

Enterprise risk theory:

paying for employees negligence is a cost of business basically. It is foreseeable that

employees may be negligent and you should guard against it. If you want employees who

give you benefits, you should have to pay if they do something.

Risk avoidance theory:

encourages employers to minimiize risk. Employer is in a better place of control, to exercise

control in reasonable manner. They have control over equipment, tasks, workplace, they

should get an incentive to try to minimize risk, which is created by saying you are responsible

for negligence of employees. Not directly responsible like negligent supervision but kind of.

PROFESSIONALS (MALPRACTICE SUITS AND STANDARDS APPLYING TO

PROFESSIONALS)

Professional standards are one of the big exceptions to reasonable person!!

Custom standard

D has to prove actions were custom for practice at the time. NOT REASONABLE

STANDARD!

In case, no other blood banks run those tests, what is custom for a blood bank to do?

When D can prove custom, they win on a matter of law

It seems like a lower standard but it fluxuates depending on what is customary in the area or

industry, generally a higher standard

We dont want to question in hindsight, the choices of the doctors

Can potentially use BPL of you want to show cost analysis.

3 types of standards for customs we looked at under this

Strict locality rule:


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In old says, this was the rule, custom is only standard of the doctors in that

locality. Think Little House on the Prairie or Baby Boom, only one doctor

who is also a vet, you can only compare to doctors around there b/c small

towns with limited resources.

This can be problematic if only 1 doctor SO!....(MOD LOCAL RULE)

Modified locality rule:

Look at other localities of similar size and economic makeup and compare

their activities to the small town doctor, youd have anoter doctor or expert

to explain those customs

Concern: maybe theyd get together to set small town standards low,

probably not though

National rule:

Courts then moved to this because technological advances so far along and

concern was still low standards that court decided to compare doctors in

similar practices on similar scale

Jurisdictions differ as to which they apply, some with small town doctors

still choose modified locality, BUT majority of the situations national rule

applies.

Wisconsin applied this one?

Reasonable Doctor standard

Wisconsin follow this, most follow custom

They operate on their own codes and laws that are higher than the reasonable person and these

customary. Follow what is reasonable for a doctor in this situation

Informed consent:

Two standards:

Prudent doctor standard

If done with custom standard, or prudent doctor standard (same thing), you would

look at what other doctors in this field customarily or actually do in these circs. Here

we look at materiality in what probability of risk to occur.

Risk focused

Prudent patient standard (wisco uses this)

Disclosing all material risks to patientand taking into account what best for

individual patient to make decision, focused more on patient. Take a look at patients

history to disclose which risks are likely, you need to disclose all the things of

materiality that may change their mind in either way, to give consent or not give

consent.


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So something that would be a risk that would allow them to choose either way.

Consent focused. Increasingly jurisdictions are looking at this.

This gives jury more discretion because more subjective by taking in circs of this

particular patient based on their medical, emotional, psychiatric. Would a person in

similar circs need to here these risks to make an informed decision?

Patient focused

Doctor subjectively decides what patient needs to now and juries will

objectively look at what a prudent patient under these circumstances needed

to know and would have consented to

Have to show causation? Would prudent patient have undergone with what

they knew or should have known?

Wisconsin disregards custom! Thats why we use reasonable doctor and prudent patient

How do custom/reasonable doctor match up with prudent standards?

LANDOWNER LIABILITY

Considers the status of the P - who was the person that was injured

2 standards fortrespassers

Mere trespassers = recklessness

Criminal trespassers = intentional harm

Rationale for different rule

Don't want to give trespassers an incentive

Implied Assumption: Burden of prevention is on the party who has more knowledge of the

area

Allows for 1) foreseeability and 2) a flexible RPS

Reasonable not to warn a trespasser when you don't know they're there.

The burden of foreseeing a trespasser is great

Exception to trespassers

Attractive Nuisance Doctrine = Child

Common law: Child is attracted to an artificial condition

Why different?

Children will be children

They can't protect themselves or appreciate risks in the same manner

HOWEVER, when a child appreciates the risk, the reason for the standard is gone,

he is now treated like an adult.

Restatement

Artificial condition that caused the harm, does not have to attract the child.

Animals - domesticated; more commonly artificial


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Presence is unusual

Foreseeably dangerous

Swimming pools

Not usually an attractive nuisance, unless painted to look shallow when it's no

Invitee:

Owed ordinary care

Who:

Public (land opened to the public)

business guest (people there for business transaction that benefits businessowner or land

owner)

Not subjective to simply what owner knows, its what the ownershould know.

You have a duty of inspection to discover conditions on your land

Licensee:

Owed duty that landowner will not recklessly harm them

Who: Social guest (anyone outside of first two conditions that you invited), you know them and they

have permission

Courts have said in addition to reckless notion, this says the landowner knows of dangerous condition

and owes licensee to reasonably warn licensee of dangerous condition known to landowner and not

licensee, or fix the problem.

Wisconsin approach:

They get rid of the categories basically, but there is enough of a distinction to leave trespassers etc. in

their own categories. They make a distinction between people with and without permission

Ordinary care?

Duties from the commodore case?

Rescuer duties

Firefighter rule

Not allowed to sue and recover for negligence for an act that they normally would be doing

during the job. In the line of duty

Rescuer doctrine

good Samaritan, if you go to help the person you are helping cant sue you unless you were

grossly negligent

the casino had the duty, owners of hotels etc., you are required to get help as fast as

possible for patrons that need medical attention, and the casino did.

NIED

NIED - Negligent Infliction of Emotional Distress

1. Traditional Rule: Physical harm that causes pain and suffering is all recoverable


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"Impact Rule"

Can't recover unless there is some sort of impact

Reasons for impact rule

Prevents fraudulent claims

Causation - how do you know it was caused by the negligent act of the D

Tradition - didn't allow people to collect money for fright

2. NIED: Emotional harm that led to physical damage

"Zone of danger rule" is adopted

Fright must be the proximate cause of the harm

P has to be in the immediate area of physical danger - could have suffered an impact

Physical manifestation - emotional harm must have led to some physical injury

Reasons for Zone of Danger Rule

Fraudulent claims - limits those allowed to recover for fright

Additions to Zone of Danger

Foreseeable Ps - foreseeable that close relationship causes more shock.

Several Factors for bystander recovery

Proximity to the scene (kind of close)

Direct observation

Familial relationship

Above are the Dillon rule (about foreseeability) and some jurisdictions add serious

injury or death AND no physical manifestation needed.

Economic Loss Rule

If your losses are merely economic, they are not recoverable

Rationale: About drawing the line (ex - cars stuck in traffic and late for job

interview)

Exception: If you can reasonably foresee the loss (ex - termite inspector)

Strict Liability

Two types of cases

1. Animals

3 ways SL applies to damage by animals

1. If wild animal

As long as your wild animal causes harm, you are strictly liable

2. Domestic animals with vicious tendencies

Owner knew about vicious tendencies and knew about them, if

they are there and known then there is strict liability

Ps burden to prove the D had notice of the tendencies


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3. Domesticated animal in wrongful place

Not where it is supposed to be and causes harm, the right place

being the pen or land etc.

She mentioned something about propensities of the animal?

2. Ultra hazardous activity

There are 6 factors according to the restatement (dont have to meet all to go

forward)

With this you dont have to prove fault, just show causation and harm and

that is sufficient

Why have strict liability?

1. Reciprocal risk theory

we impose SL because on party is imposing an unusual risk to others that that person

is not faced with himself, the other party is not imposing same kind or level of risk

Driving is reciprocal, we all impose same risks on each other

When ultrahazardous, this is rare, and uncommon risk we impose

strict liability because one person engaging in activity others do

not

2. Best cost avoider theory

who between the two parties is best cost avoider?

The person who engages in unusually risky activity is one who

knows about risk and can best guard against it. P typically has less

knowledge than one engaging in activity. One taking the risk is

best to avoid costs of injuries etc.

Generally in case of animals.

The negative though, people who act as carefully as possible and doing utmost

still liable

Defenses in SL

In comparative negligence

Most defenses dont work

In contributory negligence

Contributory defense doesnt work

Assumption of risk may

INTENTIONAL TORTS

Battery

2 required elements


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1. Intent to cause a harmful (usually physical) or offensive contact (imminent apprehension of

a harmful or offensive contact)

2. make contact OR make person think you are going to contact

A contact usually occurs that is harmful or offensive - still contact if touching a piece

of clothing that is touching the person's body

General intent crime, not specific

Any harm will do, don't need the specific kind of contact that ultimately results

Requirements

Some sort of intent to cause harmful or offensive contact

D is liable for unforeseeable unintended harm

**Diff from negligence - negligence is cut off at foreseeability

Focus of battery

Focus is on the intent

Want to get at the intentional wrongdoers

"Offensive contact"

Objective test - reasonable sense of personal dignity

Can consider subjective to say that they wouldn't be offended

Punitive damages are awarded when the court finds:

Some sort of malice

Depraved indifference

Court usually considers the size of company or individuals income

Extra knowledge about an individual may create offensive conduct

"Intent"

A minority of jurisdictions say there has to be a hostile intent. They have dual intent:

An intent to make contact

An intent for the contact to be harmful or offensive

+ still need contact to occur

The majority of jurisdictions (WI) has only one intent

Intent to make contact - does not need to be harmful or offensive contact

Contact causes harmful or offensive contact

Have to take into account the context of the contact.

Has he threatened other people before?

Has he done other things to make you scared?


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Number of people involved, time of day?

"contact"

With the body of a person or something attached or closely associated to the person's

body. Does not need actual awareness of the contact at the time that it occurs.

Assault

What is assault?

Imminent apprehension of a battery felt by the victim. You fear you will be harmed

basically.

You have to suffer emotional distress

You have to show intent: an intentional act to intimidate or cause apprehension of batter

An intentional act designed to cause fear and actually causing fear

2 required elements of assault

1. Intent

2. Injury: emotional distress

ED is determined by what is reasonable for someone to feel

Cant just be words alone

"Imminent apprehension"

Almost like you're flinching because it's about to happen

If there is a belief that you should be able to continue doing or not do something then

conditional language is no longer conditional.

Even with conditional language you must take context into account (words

are not enough).

"Intent"

Intent for battery and assault are the same.

Intent will transfer from victims


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Intent to commit an assault can transfer to satisfy intent to commit a battery

Basically just need an intent to do the action and then look at what happened

Ex) intent to hit Bob but he ducks - assault

Intent to scare him but you hit him - battery

Swing at bob but miss him and hit pam - battery to pam

Even with wrong victim or different intent you can still sue.

Swing at bob and miss him and he doesnt know - nothing

Defenses to intentional torts

Neccessity

Proportionality: self defense, defense of others, defense of property

Can never use deadly force defending property

Consent Defense

The defense of consent is determined by the objective test.

Look at the P's behavior from the D's point of view

The other person has to be able to rely on your consent

Express consent - say you consent

Implied consent - from his behavior it looks like he is consenting

Consent is only for those actions which are "within the rules of the game"

Determine what is objectively reasonable for that game.

Why is consent a defense?

Public policy concern - we may value the activity eg) sports


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Value trying to promote free will

If consent is present it takes away the intended harmful contact

Withdrawal of consent

Have to communicate the withdrawal; similar to how you have to communicate the

original consent

Scope of consent

Consent must be based on the nature of the activity that the P is being involved in.

Have to know what you're consenting to

Fraudulently obtained consent is equal to no consent at all

Only for those things within "the rules of the game"

Amount of force

Factors to consider

Peer pressure - may not be as voluntary anymore

"rules of the game" - what is usually expected in this situation

Relationship

Nature of the activity

Ds knowledge of the circumstance and concealing it from the P

Self Defense

2 main elements

Necessity - must be necessary to prevent or avoid the harm

You must believe that the other person is going to come back at you.

It's not about a past punch, it's about being hit again


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Proportionality - proportional to the harm towards you

Consider retreat, location, non-aggressor

Intentional Infliction of Emotional Distress

"Outrageous" Conduct Tort

It's not limited to fear of physical contact like assault, IIED is more general

Elements

Intent to cause severe emotional distress through extreme and outrageous conduct

Severe emotional distress occurs

"Outrageous conduct"

Unusual, extreme, beyond all possible bounds of decency in a civilized society, type of

behavior normal people wouldn't want to deal with.

Look at the totality of the circumstances

Power over the D; know of individual's susceptibility; length of time

What test?

Ordinary person with ordinary sensibilities

Ordinary person = someone who is similar to a member of the community

Objective standard localized to the community to which it applies.

"Severe Emotional Distress"

Some courts require an expert to come in and explain why the P has emotional distress

Prevents fraudulent claims - requirement is severe emotional distress

Other courts say expert testimony is not needed.


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12. Apportionment of Damages

13. Vicarious Liability

14. Professionals

15. Landowners

16. Duty to Rescue/Rescuers 17. NIED

C. STRICT LIABILITY 639-41, 648-51

D. INTENTIONAL TORTS

1. Battery15-17, 23-30

2. Assault 39-43, 46-49

3. Consent 49-52

4. IIED 72-85

E. TRESPASS & CONVERSION

Trespass to Land 729-31

Trespass to Chattel & Conversion 736-41

Necessity 742-45


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End of affirmative defense


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3 defenses

contributorty negligence: unreasoanbel behavior to p in casuing of

accident, in tradition contrib. juris p gets zero even if d negligent as well,

in comparative have to look at rules 49/50/pure to see if zero fo some

percent

Some rules: recklessness (reply to claim or can act as further

defense of ds recklessness, can come into calculation); last clear

chance (contribu neg juris, the p can still recover if d had last clear

chance. More of a concept rather than a doctrine to show d might

have been more negligent than p); also sometimes peoples

percentages Unit rule,

Assumption of risk

Secondary assumption of risk

Divides into express and implied

Express: language of release/waiver/oral

Implied: looking at assumption of risk based on

behavior of p, have to answer whether p knew of

risk, appreciated risk, and voluntarily accepted.

If contrib. and they assume, p gets zero. Compara

some say assumption of risk is basically consent like

express assumption so they get zero. Most treat it

simply as another aspect of fault to assign damages

o Wisco v. unit rule

o Fault v. consent

Mitigation

Causes increased damages after accident rather than before like

contrib. In comparative they may follow causation rule or fault

approach and treat it as another way to allocate percentage.

Contrib use it as a way to lower damages

Other rule: Seat belt defense, some treat it as mitigation

even though maybe not. Some juris may cap, some see it

as a duty.


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Big issue: We have to separate this from primary case of p. P sues a d and has

to show duty breach etc. If show all four, a d may defend by attacking one of

four elements or may bring up affirmative defenses to avoid or reduce amount of

damages. When resort to affirmative defense, they say even if you prove all

these things against me, I shouldnt have to pay or should pay less. After all of

this we apply our damages rules, 50/49/pure/contrib.


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12/11/2009 11:33:00

main torts updated outline

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