Torts Outline. Contents

Transcription

1 Torts Outline For cases relating to legal malpractice claims, see Attorneys Outline. For cases relating to damages, see Damages Outline. For cases relating to trespass, see Property Outline. For cases relating to the right of the free press in libel cases, see Civil Rights Outline. For cases relating to the liability of a principal for the torts of an agent, see Principal and Agent Outline. For cases relating to workers compensation and torts, see Workers Compensation Outline. Contents I. General issues relating to torts... 1 A. Assignments prohibited... 1 B. Intentional torts not attributed to spouse... 1 II. Specific torts... 1 A. Conversion... 1 B. Wrongful death... 1 C. Fraud and misrepresentation Elements of fraud Pleading requirements No presumption of fraud Burden of proof Fraud as an affirmative defense Sovereign immunity issues Negligent misrepresentation... 3 D. Defamation General right of recovery Defamatory statements defined Publication requirement Special protection for public officials Privilege Press is not free to print libel... 5 E. Battery... 5 F. Alienation of affection... 5 i

2 G. False imprisonment... 6 H. Excessive force... 6 I. Malicious prosecution... 6 III. Diné Bi Beenahaz áanii... 6 A. Nályééh as a procedure for restoring relationships after injuries... 6 B. Duty to set things right... 6 C. Symbolic material payments... 6 D. Wrongful death... 7 IV. Comparative fault... 7 A. Navajo Nation recognizes comparative fault as a defense... 7 B. No requirement to join joint tortfeasor... 7 C. Diné Bi Beenahaz áanii... 7 V. Negligence... 8 A. General descriptions of negligence... 8 B. Duty of care General requirement Forseeability Duty of care in specific situations Related to danger involved in the conduct Discretion of the trial court Compare defendant to the standard used in their trade or profession C. Foreseeability and proximate cause VI. Premises liability A. Duty of reasonable care B. Duty of lessees C. Elements of tort VII. Federal Tort Claims Act (FTCA) A. Entities with contracts under the Indian Self-Determination and Education Assistance Act 11 B. Requirements for bringing FTCA claims ii

3 I. General issues relating to torts A. Assignments prohibited It is the general rule that injured parties cannot assign away their personal injury claims. Largo v. Eaton, 8 Nav. R. 96 (Nav. Sup. Ct. 2001). B. Intentional torts not attributed to spouse The intentional torts of the husband will not be attributed to the wife. Rockwell v. MacDonald, 6 Nav. R. 451 (W.R. Dist. Ct. 1988). II. Specific torts A. Conversion Conversion takes place when a person takes the property of another for his or her own use with the intent of permanently depriving the owner of such property. Navajo Tribe v. Jones, 5 Nav. R. 235 (W.R. Dist. Ct. 1986). B. Wrongful death Navajo law recognizes wrongful death actions. In the Matter of the Estate of Tsinahnajinnie, 8 Nav. R. 69 (Nav. Sup. Ct. 2001). Navajo Nation courts are courts of general jurisdiction, and all actions which are generally recognized in the U.S. are available in the Navajo Nation. In the Matter of the Estate of Tsinahnajinnie, 8 Nav. R. 69 (Nav. Sup. Ct. 2001). It is not necessary to open a probate to appoint an administrator to bring a wrongful death claim. Any person who has a claim may bring his or her own claim. In the Matter of the Estate of Tsinahnajinnie, 8 Nav. R. 69 (Nav. Sup. Ct. 2001). A personal representative who brings a wrongful death action on behalf of heirs is a nominal party and that person holds recovery in trust for the named beneficiaries. In the Matter of the Estate of Tsinahnajinnie, 8 Nav. R. 69 (Nav. Sup. Ct. 2001). A wrongful death action is brought by a deceased person s beneficiaries alleging that the death was caused by the willful or negligent act of another. Benally v. Navajo Nation, 5 Nav. R. 209 (W.R. Dist. Ct. 1986). Navajo courts recognize a cause of action for wrongful death. Benally v. Navajo Nation, 5 Nav. R. 209 (W.R. Dist. Ct. 1986). C. Fraud and misrepresentation 1. Elements of fraud Plaintiff must prove (1) defendant made a false representation; (2) defendant knows or believes that the representation is not as the defendant represented, or that the representation was recklessly made; (3) the defendant intended to deceive or to induce the other party to act or refrain from action in reliance upon the misrepresentation; (4) the plaintiff relied upon the misrepresentation to 1

4 his or her detriment. Eastern Enterprises Ltd. v. Miller Engineers, Inc., 7 Nav. R. 558 (Ship. Dist. Ct. 1997). Plaintiff must prove (1) defendant made a false representation; (2) defendant knows or believes that the representation is not as the defendant represented, or that the representation was recklessly made; (3) the defendant intended to deceive or to induce the other party to act or refrain from action in reliance upon the misrepresentation; (4) the plaintiff relied upon the misrepresentation to his or her detriment. Agricredit Acceptance v. Henderson, 7 Nav. R. 529 (Ship. Dist. Ct. 1997). Plaintiff must prove (1) defendant made a false representation; (2) defendant knows or believes that the representation is not as the defendant represented, or that the representation was recklessly made; (3) the defendant intended to deceive or to induce the other party to act or refrain from action in reliance upon the misrepresentation; (4) the plaintiff relied upon the misrepresentation to his or her detriment. GMAC v. Bitah, 6 Nav. R. 45 (Nav. Ct. App. 1988). 2. Pleading requirements Fraud must be pleaded with particularity. Black v. Bigman, 8 Nav. R. 177 (Nav. Sup. Ct. 2001). A fraud complaint should state to whom the allegations were made, what the fraudulent statements were, and how the fraud was perpetrated. The complaint must include nature, time and place of the fraud. Black v. Bigman, 8 Nav. R. 177 (Nav. Sup. Ct. 2001). 3. No presumption of fraud Fraud actions are not favored, and fraud is never presumed. Black v. Bigman, 8 Nav. R. 177 (Nav. Sup. Ct. 2001). Fraud is never presumed nor should it rest on suspicion or surmise. Eastern Enterprises Ltd. v. Miller Engineers, Inc., 7 Nav. R. 558 (Ship. Dist. Ct. 1997). Fraud is never presumed nor should it rest on suspicion or surmise. Agricredit Acceptance v. Henderson, 7 Nav. R. 529 (Ship. Dist. Ct. 1997). Fraud is never presumed nor should it rest on suspicion or surmise. GMAC v. Bitah, 6 Nav. R. 45 (Nav. Ct. App. 1988). 4. Burden of proof Each element must be proven with clear and convincing evidence. Eastern Enterprises Ltd. v. Miller Engineers, Inc., 7 Nav. R. 558 (Ship. Dist. Ct. 1997). The standard of clear and convincing evidence must be strictly adhered to because of the damage to reputation. Eastern Enterprises Ltd. v. Miller Engineers, Inc., 7 Nav. R. 558 (Ship. Dist. Ct. 1997). Each element must be proven with clear and convincing evidence. Agricredit Acceptance v. Henderson, 7 Nav. R. 529 (Ship. Dist. Ct. 1997). The standard of clear and convincing evidence must be strictly adhered to because of the damage to reputation. Agricredit Acceptance v. Henderson, 7 Nav. R. 529 (Ship. Dist. Ct. 1997). Each element must be proven with clear and convincing evidence. GMAC v. Bitah, 6 Nav. R. 45 (Nav. Ct. App. 1988). The standard of clear and convincing evidence must be strictly adhered to because of the damage to reputation. GMAC v. Bitah, 6 Nav. R. 45 (Nav. Ct. App. 1988). 2

5 5. Fraud as an affirmative defense Fraud must be pleaded at the time the answer is filed. Agricredit Acceptance v. Henderson, 7 Nav. R. 529 (Ship. Dist. Ct. 1997). 6. Sovereign immunity issues NAPI s insurance policy includes misrepresentation, and thus is excluded from sovereign immunity. Raymond v. NAPI, 7 Nav. R. 142 (Nav. Sup. Ct. 1995). 7. Negligent misrepresentation The elements of negligent misrepresentation, according to New Mexico law, are that 1) the defendant made a material misrepresentation of fact to the plaintiff, 2) the plaintiff relied upon it, 3) the defendants knew that the representation was false at the time it was made, or made it recklessly, and 4) that defendant intended to induce plaintiff to rely on such representation. Navajo Housing Auth. v. Bluffview Resident Mgt. Corp., 8 Nav. R. 891 (Crwn. Dist. Ct. 2006). Traditional Navajo law requires that people think carefully about what they say before they say it. This concept is referred to by the phrase Diné Bizaad Diyin, which literally translated means that the language of the Navajo people is sacred. As a matter of Navajo tradition and custom, people speak with caution and respect, choosing their words carefully to avoid harm to others. This is nothing more than freedom with responsibility, a fundamental Navajo traditional principle. Navajo Housing Auth. v. Bluffview Resident Mgt. Corp., 8 Nav. R. 891 (Crwn. Dist. Ct. 2006). Speech should be delivered with respect and honesty. This requirement arises from the concept of k é, which is the glue that creates and binds relationships between people. In addition, the Navajo common law concept of nályééh, would require that upon a finding that one s misstatements harmed another, that the parties talk things out and make things right, which would include possible restitution to make the injured party whole. All of these traditional Navajo concepts seem to apply almost on point to the cause of negligent misrepresentation making things right after the use harmful misstated language. Navajo Housing Auth. v. Bluffview Resident Mgt. Corp., 8 Nav. R. 891 (Crwn. Dist. Ct. 2006). District Court will recognize the New Mexico common law tort of negligent misrepresentation pursuant to 7 N.N.C. 204(D), because comports with Diné bi beenahaz áanii as required by 7 N.N.C. 204(A). Navajo Housing Auth. v. Bluffview Resident Mgt. Corp., 8 Nav. R. 891 (Crwn. Dist. Ct. 2006). D. Defamation 1. General right of recovery A person who proves libel or slander may recover monetary damages for the actual harm suffered. Chavez v. Tome, 5 Nav. R. 183 (1987). The remedy for libel is an action for damages. Chavez v. Tome, 5 Nav. R. 183 (1987). 3

6 2. Defamatory statements defined a) Slander defined Slander is the speaking of base and defamatory words which prejudice another s reputation, office, trade, business, or means of livelihood. Hosteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). b) Must lower the plaintiff in the estimation of the community In order to be defamatory, a publication must tend to lower the Plaintiffs in the opinion of men whose standard of opinion the Court can properly recognize or a publication must tend to induce the public to entertain an ill opinion of harm regarding the Plaintiff s. Hosteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). To serve as the basis of an action for defamation, the language should be of such a nature as to harass the plaintiff's reputation by lowering him in the estimation of the community or deterring third persons from associating or dealing with him. If it does not, it is not actionable in such a suit, even though it is unpleasant, annoying, irksome, or subjects the Plaintiff to jests or barter, so as to affect his feelings. Hosteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). c) Court must look at social context of statement The actionability of words alleged to be defamatory depends to a large extent on the temper of the times and the current of contemporary opinion, so that what may be actionable in one age will not be in another and vice versa. The Courts are likely, unless controlled by precedent, to decide in accordance with the general and fixed opinion of the particular locality or to the damaging effect of the charge contained in the words. Hence the decisions are apt to vary with the moral and social conditions and views of different communities. Hosteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). The test is whether the words, taken in the sense in which they are reasonably understood under the circumstances by persons familiar with the language used, are capable of a defamatory construction. Hosteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). 3. Publication requirement To be defamatory, a statement must be published to an unprivileged third person and must be false. Hosteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). To constitute publication, the defamatory statement must be communicated to someone other than the defamed. Hosteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). 4. Special protection for public officials In a defamation case, public officials are not protected the same as private individuals. Hosteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). Public officials may only recover for slander if the defendant had actual knowledge or recklessly disregarded falsity. Hosteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). When a public official is suing for slander, recklessness exists where there is a high degree of awareness of probable falsity or where there is serious doubt as to its truth. Hosteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). 4

7 Pervasive fame or notoriety makes them public figures for all purposes and in all contexts. The United States Supreme Court has drawn a distinction between the public figure of general fame or notoriety in the community who has pervasive involvement in the affairs of the society, and the person who voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In the latter description the issues are public and engage the public's attention in regard to them as well as assume special prominence in their resolution. Hosteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). 5. Privilege A statement is privileged if it s made under a reasonable belief that it involves the well-being of a family member and the statement is believed to protect a family member. Hosteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). Statements made at a peacemaking session are privileged and not actionable. Hosteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). A party to a private litigation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter concerning another in communication preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of a judicial proceeding in which he participates, if the matter has some relation to the proceeding. Hosteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). An occasion which makes a publication privileged if the circumstances induce a covert or reasonable belief that: (1) There is information that affects the well-being of a member of the immediate family of the publisher; and (2) The recipient s knowledge of the defamatory matter will be of service in the lawful protection of the well-being of the member of the family. Hosteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). 6. Press is not free to print libel The press is not free to print libelous material; because the government does have a legitimate interest in protecting an individual's good name. Chavez v. Tome, 5 Nav. R. 183 (1987). Financial liability for libel will serve as a deterrent and help assure that the press acts in a responsible manner. Chavez v. Tome, 5 Nav. R. 183 (1987). E. Battery Battery is harmful contact in which the offender intended to cause harmful or offensive contact or imminent apprehension of such contact and a harmful contact directly or indirectly results. Benally v. Benally, 7 Nav. R. 503 (Ship. Dist. Ct. 1996). Under Navajo law, if a person physically harms another, the tortfeaser is responsible for the injury to that person. Rockwell v. MacDonald, 6 Nav. R. 451 (W.R. Dist. Ct. 1988). F. Alienation of affection One suing for alienation of affection must establish he was not at fault for the spouse s alienation. Begay v. Benally, 1 Nav. R. 132 (Nav. Ct. App. 1977). One suing for alienation of affection must establish he was not at fault for the spouse s alienation. Maloney v. Russell, 1 Nav. R. 91 (Nav. Ct. App. 1974). 5

8 G. False imprisonment Question of false imprisonment turns on whether the arresting officer was justified in making the arrest. Keeswood v. Navajo Tribe, 1 Nav. R. 362 (Ship. Dist. Ct. 1978). H. Excessive force Questions of excessive force depend on the facts of the case. Keeswood v. Navajo Tribe, 1 Nav. R. 362 (Ship. Dist. Ct. 1978). Where party did not resist arrest, force used must be minimal. Keeswood v. Navajo Tribe, 1 Nav. R. 362 (Ship. Dist. Ct. 1978). I. Malicious prosecution Prosecutor is not absolutely immune from malicious prosecution where there was an unconstitutional suppression of exculpatory evidence. Keeswood v. Navajo Tribe, 1 Nav. R. 362 (Ship. Dist. Ct. 1978). III. Diné Bi Beenahaz áanii A. Nályééh as a procedure for restoring relationships after injuries Nályééh is the process for restoring relationships between the injured party and the tortfeasors. Joe v. Black, No. SC-CV-62-06, slip op. (Nav. Sup. Ct. November 29, 2007). The principle of nályééh includes a requirement of good faith; the person seeking nályééh from another must honestly represent to that party that he or she is liable for some or all of the injured person's injuries. Joe v. Black, No. SC-CV-62-06, slip op. (Nav. Sup. Ct. November 29, 2007). Where party attempted to recover full damages from two separate tortfeasors without informing the respective courts of the pendency of the other cases, dismissal was appropriate due to the lack of good faith. Joe v. Black, No. SC-CV-62-06, slip op. (Nav. Sup. Ct. November 29, 2007). If someone is injured by another, the victim has the right to demand nályééh or compensation for the injury. Jensen v. Giant Industries, 8 Nav. R. 203 (Nav. Sup. Ct. 2002). B. Duty to set things right After an injury, the tortfeasor and his or her relatives are expected to set things right in accordance with the hurt. Largo v. Eaton, 8 Nav. R. 96 (Nav. Sup. Ct. 2001). Where the tortfeaser causes harm to another, he is wholly responsible for the harm he caused. Rockwell v. MacDonald, 6 Nav. R. 451 (W.R. Dist. Ct. 1988). In that respect, the tortfeasor would not only be held liable for the injury but also for the damages he caused. Rockwell v. MacDonald, 6 Nav. R. 451 (W.R. Dist. Ct. 1988). C. Symbolic material payments What is expected in all cases of injuries that arise between traditional Navajos is that the person who did the injury will make a symbolic material payment for the loss that he has caused. Benally v. Navajo Nation, 5 Nav. R. 209 (W.R. Dist. Ct. 1986). 6

9 D. Wrongful death Traditionally, when a Navajo died from the careless conduct of another, the person responsible for the death paid the immediate family livestock and silver jewelry. The closer relative would be given sheep to relieve the person from loneliness. How many sheep would be given depends on what will fix the victim s mind. Benally v. Navajo Nation, 5 Nav. R. 209 (W.R. Dist. Ct. 1986). In some cases of wrongful death, survivors would get together and discuss what compensation should be given to make up for the wrongdoing. Payment may be made by giving sheep, a belt, or even one strand of beads. Sometimes, survivors may object and demand that more should be given. Benally v. Navajo Nation, 5 Nav. R. 209 (W.R. Dist. Ct. 1986). If a child was run over by a car, payment for funeral expenses would be expected. Benally v. Navajo Nation, 5 Nav. R. 209 (W.R. Dist. Ct. 1986). IV. Comparative fault A. Navajo Nation recognizes comparative fault as a defense The Navajo Nation Code mandates the application of negligence principles, including comparative negligence. Joe v. Black, No. SC-CV-62-06, slip op. (Nav. Sup. Ct. November 29, 2007). The Navajo Nation is a pure comparative negligence jurisdiction. Benally v. Mobil Oil Corp., 8 Nav. R. 387 (Nav. Sup. Ct. 2003). 7 N.N.C. 701(D) states that if the injury was an accident or if both are at fault, the party shall recover a reasonable part of the loss. Singer v. Nez, No. SC-CV-04-99, slip op. (Nav. Sup. Ct. July 16, 2001). Note: this holding is in strikeout format because 7 N.N.C 701(D) has been abrogated. Comparative fault is now covered by 7 N.N.C. 701(B). Navajo courts recognize comparative negligence. State Farm v. Lambert, 7 Nav. R. 473 (Ship. Dist. Ct. 1995). Under the Navajo law of comparative negligence, if a party is at fault for an accident, the party should bear some percentage of the burden of compensating the injured party. Begay v. Karty, 5 Nav. R. 267 (W.R. Dist. Ct. 1987). The court adopts pure comparative negligence where defendant is only liable for his percentage share of the fault. Cadman v. Hubbard, 5 Nav. R. 226 (Crwn. Dist. Ct. 1986). B. No requirement to join joint tortfeasor There is no absolute prohibition on hearing a comparative negligence/nályééh case against a tortfeasor if other tortfeasors cannot be joined in the action. Joe v. Black, No. SC-CV-62-06, slip op. (Nav. Sup. Ct. November 29, 2007). Denying an injured person the opportunity to seek redress is clearly inconsistent with nályééh. The Supreme Court will not endorse a rule that absolutely bars comparative negligence claims simply because one or more tortfeasors are outside the jurisdiction of the Nation s courts. Joe v. Black, No. SC-CV-62-06, slip op. (Nav. Sup. Ct. November 29, 2007). C. Diné Bi Beenahaz áanii There is no conflict between comparative negligence and nályééh. Comparative negligence serves the purposes of identifying who is responsible to make the injured party whole, and allocating the responsibility for the injury between them. The doctrine assures that an individual tortfeasor is 7

10 V. Negligence responsible only for his or her actions, and is not responsible for the conduct of others. This is a Navajo principle, even if the Court uses Anglo-American legal language to describe it. Nályééh defines how the responsible parties, once identified and once their collective responsibility is allocated, make the injured party whole. They are indeed then not incompatible doctrines, but work together to bring people back into harmony. Joe v. Black, No. SC-CV-62-06, slip op. (Nav. Sup. Ct. November 29, 2007). It is inconsistent with nályééh for an injured party to receive more compensation than what the party in the wrong should be liable to pay. Casaus v. Diné College, No. SC-CV-48-05, slip op. (Nav. Sup. Ct. March 8, 2007). Allowing Defendant to present evidence to reduce Plaintiff s damages is consistent with Navajo concepts of fault, by apportioning fault so that the Defendant is responsible for its wrongful conduct, but is not held responsible for Plaintiff s conduct. Casaus v. Diné College, No. SC-CV , slip op. (Nav. Sup. Ct. March 8, 2007). A. General descriptions of negligence Elements of negligence: duty, breach, causation and damages. Jensen v. Giant Industries, 8 Nav. R. 203 (Nav. Sup. Ct. 2002). Elements of negligence: duty and breach proximately causing injury. Cummings v. Yazzie, 7 Nav. R. 476 (Ship. Dist. Ct. 1996). Elements of negligence: duty and breach proximately causing injury. Castillo v. Charlie, 7 Nav. R. 181 (Nav. Sup. Ct. 1995). Failure to exercise ordinary care in avoiding foreseeable harm to others constitutes negligence. Castillo v. Charlie, 7 Nav. R. 181 (Nav. Sup. Ct. 1995). 7 N.N.C. 701 states that if injury is caused by carelessness, a judgment shall fairly compensate the injured for his loss. Wilson v. Begay, 6 Nav. R. 1 (Nav. Sup. Ct. 1988). Note: 7 N.N.C. 701 now refers to negligence instead of carelessness. Carelessness is the same as negligence. Wilson v. Begay, 6 Nav. R. 1 (Nav. Sup. Ct. 1988). Negligence is the failure to exercise ordinary care in avoiding foreseeable harm to others. Wilson v. Begay, 6 Nav. R. 1 (Nav. Sup. Ct. 1988). The elements of negligence are (1) duty; (2) breach; and (3) the breach proximately causes an injury. Navajo Tribe v. Jones, 5 Nav. R. 235 (W.R. Dist. Ct. 1986). Negligence is the failure to exercise the duty of care owed to the injured party, thereby proximately causing injury. Benally v. Navajo Nation, 5 Nav. R. 209 (W.R. Dist. Ct. 1986). There can be no legal liability unless there is carelessness. Mann v. The Navajo Tribe, 4 Nav. R. 83 (Nav. Ct. App. 1983). Carelessness is the same as negligence. Mann v. The Navajo Tribe, 4 Nav. R. 83 (Nav. Ct. App. 1983). Plaintiff must prove a breach of a legal duty proximately causing the injury. Mann v. The Navajo Tribe, 4 Nav. R. 83 (Nav. Ct. App. 1983). 8

11 B. Duty of care 1. General requirement In case of negligence, to be held liable, a party must owe the injured party a duty of care. The extent of the duty depends on the circumstances. Benally v. Mobil Oil Corp., 8 Nav. R. 387 (Nav. Sup. Ct. 2003). Plaintiff alleging negligence must prove duty of care. Wilson v. Begay, 6 Nav. R. 1 (Nav. Sup. Ct. 1988). The extent of duty depends on the circumstances. Wilson v. Begay, 6 Nav. R. 1 (Nav. Sup. Ct. 1988). 2. Forseeability Duty of care is closely related to foreseeability of injury. Wilson v. Begay, 6 Nav. R. 1 (Nav. Sup. Ct. 1988). 3. Duty of care in specific situations a) Contractors Where a general contractor exerts or retains enough control over the independent contractors work to give rise to a limited duty of care, reasonable care must be shown to the degree of the control. Benally v. Mobil Oil Corp., 8 Nav. R. 387 (Nav. Sup. Ct. 2003). b) Drivers There is a heightened standard of care for drivers in open range areas on the Navajo Nation. Castillo v. Charlie, 7 Nav. R. 181 (Nav. Sup. Ct. 1995). Persons operating a vehicle on Navajo roads must exercise a higher standard of care. Benally v. Navajo Nation, 5 Nav. R. 209 (W.R. Dist. Ct. 1986). c) Police officers Police officer s duty was to carry out the police patrol duties in a careful manner, considering the circumstances. Mann v. The Navajo Tribe, 4 Nav. R. 83 (Nav. Ct. App. 1983). 4. Related to danger involved in the conduct Where the danger is higher, so is the duty of care. Wilson v. Begay, 6 Nav. R. 1 (Nav. Sup. Ct. 1988). 5. Discretion of the trial court Absent expert testimony, the Trial Court had discretion to draw its own conclusions about the standard of care. Wilson v. Begay, 6 Nav. R. 1 (Nav. Sup. Ct. 1988). 9

12 6. Compare defendant to the standard used in their trade or profession The duty of care is not the reasonableness standard, but the standard applicable to similar defendants in the trade where defendants held themselves out to be experienced and trained. Navajo Tribe v. Jones, 5 Nav. R. 235 (W.R. Dist. Ct. 1986). C. Foreseeability and proximate cause Liability for the lack of reasonable care to protect the public against another s foreseeable acts depends on changed social conditions. Jensen v. Giant Industries, 8 Nav. R. 203 (Nav. Sup. Ct. 2002). Negligence is grounded in the ability to foresee an injury. Jensen v. Giant Industries, 8 Nav. R. 203 (Nav. Sup. Ct. 2002). Damages should not include any losses that were not proximately caused by the defendant s conduct. Cummings v. Yazzie, 7 Nav. R. 476 (Ship. Dist. Ct. 1996). For conduct to be proximate cause of injury, injury must have been one that could be reasonably foreseen by defendant under the circumstances. Castillo v. Charlie, 7 Nav. R. 181 (Nav. Sup. Ct. 1995). Navajo courts view proximate cause in terms of foreseeability. Thomas v. Succo, 7 Nav. R. 63 (Nav. Sup. Ct. 1993). For conduct to be proximate cause of injury, injury must have been one that could be reasonably foreseen by defendant under the circumstances. Thomas v. Succo, 7 Nav. R. 63 (Nav. Sup. Ct. 1993). No liability may be found where resulting injury could not have been reasonably foreseen by defendant. Thomas v. Succo, 7 Nav. R. 63 (Nav. Sup. Ct. 1993). VI. Premises liability A. Duty of reasonable care Under premises liability, a possessor of land owes a duty to use reasonable care in providing a safe place to work for employees of a contractor or others that are business invitees. Benally v. Mobil Oil Corp., 8 Nav. R. 387 (Nav. Sup. Ct. 2003). B. Duty of lessees A possessor of land does not have to be the record owner of the land, but can be the lessee when the lessee has control of the property. Benally v. Mobil Oil Corp., 8 Nav. R. 387 (Nav. Sup. Ct. 2003). C. Elements of tort To establish the liability of a lessee, plaintiff must show (1) control; (2) proximate cause; (3) lessee s knowledge or failure to exercise reasonable care; (4) unreasonable risk of harm; and (5) lessee must expect plaintiff would not discover danger. Benally v. Mobil Oil Corp., 8 Nav. R. 387 (Nav. Sup. Ct. 2003). 10

13 A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public for foreseeable harm while they are on the property for the business. Jensen v. Giant Industries, 8 Nav. R. 203 (Nav. Sup. Ct. 2002). VII. Federal Tort Claims Act (FTCA) A. Entities with contracts under the Indian Self-Determination and Education Assistance Act Tort cases against entities who have contracts pursuant to the Indian Self-Determination and Education Assistance Act will be deemed an action of the United States will be defended by the Attorney General and will be covered by the FTCA. Stago v. Wide Ruins Community School, 8 Nav. R. 259 (Nav. Sup. Ct. 2002). Congress intended Section 314 of the Indian Self-Determination and Education Assistance Act to cover the same claims as the FTCA. Stago v. Wide Ruins Community School, 8 Nav. R. 259 (Nav. Sup. Ct. 2002). B. Requirements for bringing FTCA claims By waiving sovereign immunity in the FTCA, the federal government makes it possible for a Plaintiff to sue the government, with significant restrictions. First, claims brought under it may only be brought in federal district court. Second, those claims must be brought, [1] against the United States, [2] for money damages, [3] for injury or loss of property, or personal injury or death, [4] caused by the negligent or wrongful act or omission of any employee of Government, [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. Finally, some claims which involve a discretionary function are specifically excluded from the waiver of sovereign immunity. Stago v. Wide Ruins Community School, 8 Nav. R. 259 (Nav. Sup. Ct. 2002). A claim may be brought under the FTCA only if it is "cognizable" meaning that it alleges each of the six elements. Stago v. Wide Ruins Community School, 8 Nav. R. 259 (Nav. Sup. Ct. 2002). If a claim is cognizable, then the FTCA provides the exclusive remedy as the general rule. Stago v. Wide Ruins Community School, 8 Nav. R. 259 (Nav. Sup. Ct. 2002). One exception to the exclusiveness of the FTCA is the narrowly drawn statute rule. Where conduct is covered by a specific statute, the claim should be brought under that statute even if it could have been brought under the FTCA. Stago v. Wide Ruins Community School, 8 Nav. R. 259 (Nav. Sup. Ct. 2002). 11