Torts Outline. Battery: intentional infliction of harmful or offensive contact to the person.

Transcription

1 Torts Outline Battery: intentional infliction of harmful or offensive contact to the person. *Elements 1.) Act was volitional: - Was a voluntary act (not involuntary). 2.) Intent: - For the purpose of causing or knowing with substantial certainty: 1.) Harmful or offensive contact, OR 2.) Apprehension of harmful or offensive contact *Rule: Evil motive not required; sufficient to intend a (minimal) amount of harmful contact. 3.) Contact was that harmful and/or offensive - Contact w/person or w/the person by extension. - Ex: Fisher v. Carrousel; Garratt v. Dailey - Offensive: would a reasonable person be offended by the contact or would find it offensive to their personal dignity. - Ex: Leichtman v. Jacor Communications, Inc. (blowing smoke in face..) *Causation: "But for" test. - Contact w/person: - Physical contact with another or contact with an object closely associated with person. Ex: Something a person is holding counts (e.g. a plate). - Intangible contact is not enough - Ex: Loud sound waves can be offensive to someone; but do not constitute contact. - Substantial certainty: - More than consciously disregarding a high probability. - More than risking a chance (that's negligence). - Defendant must be pretty sure (95%(?)) the harmful/offensive contact will occur. - Is a subjective standard - but can use objective evidence to prove it. (Ex: What a reasonable person would know about the consequences of an act). - Acting for the purpose of: - More about the motive behind the act than the knowing kind of intent. Ex: Georgie kicked for the purpose of causing a minimally harmful contact. - Harmful: - Causes harm (in some way) or a change in bodily condition to the plaintiff. - Objective standard. - Offensive: - Whether a reasonable person would be offended by the contact, or would find it offensive to their personal dignity. - Objective standard. *Policy: Protects Pl's interest in freedom from intentional harmful or offensive contact w/her person. Majority: - Defendant knows with substantial harmful or offensive contact to Plaintiff's person. - Defendant desires harmful or Offensive contact to third party's. - Policy: Intent is considered an evil state of mind in torts, so liability is broad. - Don't want it to be too broad to allow people to recover for anything.

2 Minority: - Intent inferred from unlawful act. - Rule: If D is acting unlawfully, Court infers intent unlawful act. - Policy: This kind of intent opens the floodgates to zillions of intentional torts claims; can argue most anything is unlawful. Assault: violent threat with intent and ability to immediately carry out that threat. *Elements: 1) Intent: purpose of or knowing w/substantial certainty 2.) Ability: capacity to carry out the action (words themselves are not enough). Ex: Tutor says "I'm going to kill Daggett" is not enough... 3.) Immanency: must be imminent - is there a step towards actually carrying out the act. - Mere words threatening to carry out the act are not enough. - Conditional threat can suffice if it's an actionable threat. 4.) Apprehension: fear that act was actually going to be carried out. - Harm: fear can be the harm. - Subjective interpretation of the act by the plaintiff. - Ex: if 6'5 guy threatens small girl, then it's more threatening (wouldn't work for the other way around). *Causation: "But for" test. False Imprisonment: *Elements: 1.) Physical confinement: must be a physical confinement. - Confinement in fact: are you actually confined? - Moral restraint is not enough. 2.) Intent: for the purpose of and substantial certainty that was confining. 3.) Harm or awareness: must be harmed or aware of the confinement. - Ex: If you're locked in a room but don't realize it or it doesn't both you, it's not false imprisonment. 4.) Causation: BUT FOR test. Defenses: 1.) Merchant's privilege: -Seller has privilege to search if there is reasonable cause to suspect shoplifting. (Only applies to shoplifting and is a privilege to confine). Rules: -"Reasonableness cubed" -Reasonably suspect plaintiff of shoplifting -If above is met, can detain suspect in a reasonable manner -For a reasonable amount of time. Ex: Stopping suspect and searching them? -Should get the cops to do this; you may not have the right to do this - as it might not be reasonable. 2.) Justification/necessity:

3 - Who has this privilege? -Page 740: "Generally", "teachers, guardians, or parents, who are entrusted with caring and supervision of children." (Bus driver's included). 3.) Consent: Ex: If Magician tells you to lock him in a coffin. - Voluntary: Voluntarily consented to certain actions at issue. - Informed: Did someone know entirely what they were consenting to - Reasonable: scope of the implied consent (surgery). - Strongest case is when there is an emergency. Ex: Malpractice suits: surgeons have implied consent to reasonably act to address medical problems that arise during surgery. - Scope: Consent to punch someone in stomach and then you punch them in the face. - Capacity: Less ability to consent if unintelligent or drunk (for example). - Express v. Implied: Whether it's explicit or assumed. - Conditional: Only consented under certain conditions. - Revoked: Consent can be revoked at any point before the event happens. - Subjective or objective? - Objective consent is sufficient. - If it can be reasonably implied that consent was given, that is sufficient. Ex: Daggett can't speak English points to face = consent (objective). Ex: Daggett say don't punch me (but really actually wants you to) = consent (subjective consent). Self-Defense: - If you honestly and reasonably think you are facing an intentional and imminent contact when you do not have time to reflect, then you can use physical force as reasonably necessary to defend. *Elements: 1.) Defendant honestly and reasonably believes that he is facing imminent harmful or offensive contact. - Lack of an actual threat is not a deal breaker, as long as defendant honestly and reasonably thinks he is facing imminent threat. 2.) Perceived harm or threat must be imminent (no time to reflect). 3.) Can use physical force as is reasonable to defend self. Deadly Force: - Can use when: you reasonably and honestly believe that you are facing an intentional and imminent serious bodily injury or deadly threat. - Must be used as a last resort. - Other steps that must be first taken/considered: 1. If you can safely retreat and avoid the threat, you are required to. 2. If you can safely avoid the threat by complying with an order, you must. 3. Could you have used a lesser level of force? *All judged on a reasonable basis. - Death or serious bodily harm needs to be imminent. Except: - Must have been able to retreat w/complete safety. - If defendant was attacked in his/her home.

4 Defense of 3rd party: - Can defend them to the extent they would be legally privileged to defend themselves. *Majority: Can only have privilege of 3rd party defense if the victim that defendant is defending has self defense privilege. (Even reasonable and honest mistakes are not allowed). *Minority: Can make mistake - as long as it honest and reasonable. *Policy: Self-Defense must be permitted, but only as a last resort. - Self protection right must be enforced, without giving too much leeway. Defense of property: - Before any reasonable physical force is used, must make a verbal command if feasible. - If only property is at risk, deadly force is not permissible. - Steps: 1. Must give a verbal demand. 2. Reasonably necessary for the use of force. Castle Doctrine: - Defense of home: can stand your ground. - This is your own home (not the attacker's home). - Place where you sleep on a regular basis (*Not applicable to business setting or school). - You are allowed to stay. - Mistake is OK, but belief needs to be reasonable. *Policy: value of human life over property. - Can protect your property, but only within reason and without holding property as equal to life. Intentional Infliction of Emotional Distress: *Defendant acts in an extreme and outrageous manner with the subjective purpose of causing severe emotional distress. *Elements: 1.) Extreme or Outrageous conduct. - Conduct must be so repulsive to the point that it offends all notions of decency. 2.) Intent or recklessness: (state of mind requirement). - Conscious disregard of a high probability of harmful result. - Subjective intent to cause severe emotional distress. 3.) Causation (cause-in-fact and proximate cause): - Defendant's conduct needs to have caused the harm. - "But for" test - Foreseeability (proximate cause). 4.) Severe emotional distress (harm): - Harder to measure than physical harm. - Can use doctor's testimony and evidence of mental health issues (depression, anxiety, etc.). - Can provide evidence of change in lifestyle (eating/sleeping problems, social reclusiveness, etc). *Policy: - Courts don't want this to be a "runaway" tort where people can easily recover. - High threshold: extreme and outrageous conduct only, and must be a demonstrated harm that resulted from the extreme and outrageous conduct. *Defenses: - 1st Amendment (if only speech was involved).. - Public figures have higher burden of proof. - Employers are directly and vicariously

5 *Other factors: - Known susceptibility and the existence of a special power relationship between defendant and plaintiff may create additional extreme and outrageous nature of the conduct. 3rd Party Liability: - Present for the extreme and outrageous conduct and have (physical) tangible effects from it. - Immediate family member. Employer Liability: - Vicarious liability: available if employee acts in the scope of employment. - Respondent superior - Employer owns the employee's torts. - Direct or independent liability. - Same elements as regular defendant - Remember: asserts and insurance make employer a more attractive defendant. Section 1983: - Tort claim arising out of federal (instead of state) law. *Elements apply to local govt. as well; defenses do not. *Elements: 1.) The defendant acted under the color of state law: - Limited to defendants who "act w/badge of authority from the state." (not private persons). - When defendant is a public agency, public employee or public official, this requirement is satisfied. - Merely receiving govt. funds/being regulated by govt. is insufficient. - Ex: Private Schools usually do not qualify as under the color of state law. 2.) General intent is required: - Negligence is not enough. - Specific intent to deprive the plaintiff of a constitutional right is not required; deliberate behavior is sufficient. 3.) Causation: - "But for test" and reasonably foreseeability 4.) Deprivation of rights secured under the Constitution or other Federal Law: - Common Const claims (1st, 4th, 14th Amendment). - Statutory claims are also allowed under Section In order for a physical act to deprive Const. right, it must shock the consciousness. *Under 1983, there is no vicarious liability. - Only entity liability if the action is pursuant to official policy or custom. - Ex: Principle strip-searching kids at School - Only defendant is the principle. - The entity (the school) is not liable because the principle was acting against official policy or custom. *1983 Defenses: 1.) 11th Amendment Immunity: - States (including state agencies and employees in their official capacities, and, sometimes, school districts and school employees) may not be sued under 1983 because: - 11th Amendment or sovereign immunity or because they are not included as person under the statute, unless:

6 a.) a state has waived this immunity, OR b.) the relief granted is prospective and injunctive in nature. 2.) Good faith and absolute immunities for individual defendants: - When defendants are individuals rather than govt. agencies, they have other immunities. - Acting in objective good faith grants immunity. - Certain public officials (e.g. judges and legislators) have absolute immunity. 3.) Adequate state remedy where plaintiff asserts a deprivation of property w/o procedural due process: - Where plaintiff has an adequate remedy under state law, a Section 1983 claim asserting deprivation of property without due process is not available. - Often a plaintiff's state law tort claim will be defeated by a state law govt. immunity defense. Defendants/Defenses: - Suing actors instead of entities (b/c no vicarious liability). - Entity is usually liable if actor acting pursuant to official policy. - 11th Amendment/sovereign - Local defendant doesn't apply - State level defendant (11th Amendment applies) - Private plaintiff can't get money from a state enterprise (state treasury). *Damages: nominal and compensatory. *Policy: - Civil Rights, if violated, have a recourse. - Availability of claims against individuals can serve to deter individuals from unlawful behavior. Trespass: - Defendant enters (or causes entry) onto plaintiff's land. *Elements: 1.) Intent: on the land deliberately. - Does not matter if you don't know you are trespassing; if you deliberately were on the land (even unknowingly) it is a trespass. 2.) Causation: - BUT FOR test. *There is NOT a harm requirement: - Mere entrance on another's land is sufficient, assuming all other elements are met. *Defenses: - Necessity - Consent *Remedies: injunction, compensatory, punitive - Trespass to chattels: damage to one's personal property. - Conversion: taking one's property. Nuisance: Deliberate action that unreasonably interferes w/plaintiff's enjoyment of their land. - Interference that results from an intangible factor. 1.) State of Mind: reckless or negligence. 2.) Harm: damage to property. - Devalue the property, and/or - Detracts from the plaintiffs enjoyment and use of land. 3.) Causation: did nuisance on land cause the alleged harm? (BUT FOR test).

7 Gravity vs. Utility: - An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if the harm resulting from the invasion is severe and greater than the other should be required to bear w/o compensation. *Gravity of Harm: a.) The extent of the harm involved. b.) The nature of the harm involved. c.) The social utility which the law attaches to the type of use or enjoyment invaded. d.) The suitability of the particular use of enjoyment invaded to the character of the locality. e.) The burden on the person harmed on avoiding the harm. *Utility of Conduct: a.) The social utility that the law attaches to the primary purpose of the conduct. b.) The suitability of the conduct to the character of the locality. c.) The impracticability of preventing or avoiding the invasion. *Coming to Nuisance: - The fact that the plaintiff has acquired or improved his land after a nuisance interfering w/it has come into existence is not in itself sufficient to bar action, but it is a factor to be considered in determining whether the nuisance is actionable. - The "coming to the nuisance" will not bar the plaintiff's recovery. - The Defendant is required and expect the possibility that the adjoining land may be settled, sold or otherwise transferred and that a condition originally harmless may result in an actionable nuisance when there is later development. Intentional Tort Defenses: - Consent, merchant privilege, and self-defense are complete defenses. - Necessity is an incomplete defense. Negligence: *Elements: 1.) Breach of Duty *** General duty: reasonable or ordinary care. A.) Hypothetical reasonable person standard: (and how they should act). - K.E.E.P.M.E. - Kids - Held to the standard of a kid their age and experiences. - Considered adults if engaging in an adult activity. - Emergencies - Considered reasonable with in the emergency context. - Not applicable if the Defendant created the emergency themselves. - External Circumstances - Physical Characteristics of the Defendant - Intoxication and voluntarily induced states are not considered. (It's not, "what would the reasonable BA level.25 driver do.") - Physical disabilities are considered. - Mental Characteristics of the Defendant - Mental characteristics of the defendant not considered. Example:

8 - If defendant has down-syndrome, he is still held to of a reasonable person standard; not a reasonable person w/a mental disability. - Expertise/Experience of Defendant - If defendant has a relevant expertise, they are held to a higher standard. B.) B < P x L - B = Burden of what plaintiff is asserting the defendant's reasonable care is. - P = Probability of harm (risk of harm) - L = Size of harm (largeness) *If odds of P x L is larger than the burden, then it is a part of reasonable care. - Argue massaging and weakening the B. C.) Violation of Statute: *Majority: violation of statute is negligence per-se in itself, where there is no objective excuse under public policy for that violation based on specific case circumstances. - Does the statute and violation fit the case: - Excused violation - Does it set a standard of care? - Were defendant's actions and Plaintiff's harm within legislative intent? - Right kind of statute and right kind of harm. *Minority: Violation is part of the evidence (can be used as a defense). D.) Custom: - P will try to assert D's deviation from custom; D will attempt to argue that custom is unreasonable. - Held to the customary standard of the industry (custom is at least considered). - Micro-custom: very strong evidence of breach of duty. - Held to a higher standard. - If people are relying on your custom, then cannot remove it without warning. E.) Res Ipsa Loquitor: ("the thing speaks for itself") - In situations where there is an evidentiary gap in proving negligence, and the facts clearly indicate that the defendant was negligence. - If someone was likely negligent and defendant controlled the instrumentality of negligence. 2 main rules: 1.) Defendant had exclusive control of the thing causing the injury 2.) The accident is of such nature that it ordinarily would not occur in the absence of negligence by the defendant. *Majority: if above is established, then jury gets case and is instructed that they may infer Defendant did not use reasonable care. - Burden of Proof is still w/plaintiff and jury can find Defendant did exercise reasonable care. *Minority: - Direct evidence destroys Res Ipsa. - Presumption. F.) Experts: - Used to prove a breach of duty (or disprove the existence of such a breach). - Can give opinions on the issue (where regular witnesses cannot). - Ex: Doctor testifying a medical malpractice suit. 2.) Cause in Fact:

9 - BUT FOR test. 3.) Proximate Cause: - Legal Cause: reasonable foreseeability 4.) Harm: - Plaintiff must have been harmed. Remedies: - Compensatory: - Declaratory: - Punitive - Injunctions - Nominal is different (applies more to torts that do not require harm). - Applies to battery, assault, trespass. - Negligence: compensatory (and must have actual harm) - No punitive. Duty for different actors: - Common Carriers: owe a higher duty of care ("highest standard of care.") - Large probability of harm and largeness of harm - so big burden is assumed. - Auto passengers: reasonable care - If there is an honorable guest statute, owe merely the same standard that you owe for you own safety. - Majority: abandon these statutes - Premises Liability: - Scope: Plaintiff on Defendant's premises is injured by a defective condition on those premises. Invitee: (public and business). *An invitee is a person who enters onto the premises in response to an express or implied invitation of the landowner. (For business purposes, directly or indirectly). - Duty owed: full reasonable care - Knows or should know Licensee: (social guests) *Licensee is one who enters onto the premises with the possessor's permission, express or implied, for his or her own purpose or business rather than for the possessor's benefit. - Duty owed: limited; less than reasonable care - Defects that defendant knows about or has reason to know (obvious defects) Trespasser: *Trespasser is a person who enters the premises without the landowner's permission. A landowner has no duty towards trespasser except to avoid intentional torts and recklessness. - Duty owed: no reasonable care duty *Exceptions: - Known or constant trespassers of dangerous or artificial. - Kids and attractive nuisances. Duty to rescue: - General rule: No duty to rescue. - Exceptions: 1.) If the defendant's tort caused the plaintiff's peril 2.) If the defendant's actions increased the plaintiff's risk of harm 3.) If the defendant has already begun to help 4.) Innkeeper

10 5.) Reliance - Liability of (mandatory and voluntary) rescuers - Good Samaritan statutes. - It's not about a moral obligation, it's about a legal duty. - Responsibility for foreseeable occurrences to the victim after the initial tort-feasor's actions. - Negligence will not cut off. Vicarious Liability: policy is for employers to hire and supervise carefully - If an employee and their conduct is within the scope of employment, the employer can be held vicariously liable. - If actor is acting pursuant to relevant job goals. - If employee is acting negligently on the job = almost certainly vicarious liability. Ex: UPS driver runs a red light *Elements: 1.) Tortious Conduct by employee. 2.) Employer must control, or have right to control, the servant's harmful behavior. - Example: - Control when you can show up and can be held responsible if you don't. *Policy: - Sue employer because they have deeper pockets. - Provides incentives for employers to be careful in the hiring and supervising process. Direct liability: employer themselves commit a tort e.g. Revlon case Detour and frolic: deviating from the purpose of employment. Detour: minor trip w/primary purpose for business. Frolic: long trip out of the way of business. - Often occurs when employee along the way detours for personal reason - Factors: - What is the primary purpose of the trip? (Predominantly to serve master?) - How far (time and space) was the detour? Apparent agency: way to get vicarious liability for an independent contractor. - Should the employer be held liable (if become so intertwined with their company). - Plaintiffs reasonably believes that the person was an employee (objective + subjective). Agents/Employees vs. Independent Contractor: *Most important factor: principal has control (or at least a right to control) over the actor. - Ex: Contracting plumber: employer does not have control over how the plumber is carrying out a toilet repair Independent Contractor: - General rule: no vicarious liability. *Exceptions: (know these) a.) Non-delegable duties (you can't contract certain duties away). - Even if it is carried out by a contractor. - Ex: Government to maintain safe roads. b.) Extremely dangerous activities. c.) Apparent agency. Employee: - Unpaid agent can be an employee (e.g. volunteer at a school). - Parents are not vicariously liable for their kids.

11 - More common approach: to sue parents in negligent parenting -Joint enterprise: the negligent conduct of each participant in a joint enterprise are spread to every participant, assuming the negligent conduct was committed in course of enterprise. Ex: Bake sale w/daggett and her brownies have poison = if both sides are in the sale together, then both are liable - Family purpose doctrine: using for family purpose in an authorized way (access to insurance $$) Jointly and Several Liability: someone has to bear the loss and it shouldn t be the P *2 triggers: 1. Multiple defendants acting in concert 2. Defendants acting independently but cause is indivisible. 2 ways to divide liability: - Pro rata: 3 defendants, each gets a 1/3 - Fault percentage: jury is going to allocate liability *If But For test against each D doesn t work and each D breached a duty, then P can do the But For test against D s as a group; BOP is on each D to prove they were not the CIF* - remaining D s are jointly and severally liable - Amount liable varies on wealth (Ex: Donald Trump vs. 1L) - Minority: 1. No joint and several liability: you pay your share of the liability, and that's it (ID) 2. Modified version (WA): take the remaining share of $ that can t be paid and reallocate to remaining parties at fault - Intentional tortfeasors: - Ex: Car hits someone and takes off' another person then beats up victim afterwards - Not applied to punitive damages: - Purpose of punitive damages is to punish that person; if make another pay one's punitive damages it defeats the purpose - Settlement: (what if one party settles?) *Majority: usually cuts the amount down to the amount that was settled (not the original amount that settled defendant was liable for; look at your state statute Death to Plaintiffs: Survival Statutes: - Death does not extinguish pending or pre-death claims. - Collection on damages goes to the estate (estate would bring claim as estate assets). - Any claims that could have been brought before death can be still be brought. Wrongful death claims: - Wrongful death statutes make cause of action available for wrongly caused deaths. - Can be brought by beneficiaries: spouse, kids, parents, siblings - immediate family). - If negligence caused death, at common law, there was no claim. What can be recovered?(2 kinds): a.) Lost contributions (economic) to the beneficiaries: - Surviving spouse can obtain lost earnings that are no longer coming in. b.) Loss of consortium - Widowed spouse and kids loss of relationship. - Can get money for this intangible loss. c.) Burial costs

12 Cause in Fact: B of P is on the P to prove by a preponderance of the evidence (not 100%) - Plan A: "But For" test - Plan B: Multiple defendants, divisible harm, indivisible harm. - Concurrent case: where each cause was sufficient to cause the harm, courts have allowed them to use the but for test against defendants collectively. Ex: 2 fires, each sufficient to cause the harm. - Substantial factor test (cumulative cause): to the extent defendant was a substantial factor in causing the harm, the collection against them can occur accordingly; they were collective CIF do collective But For test jointly and severally liable - Successive causes: defendant 1 does the tort well before defendant 2 does the same. - Some harm occurred from D1's actions; some more from D2's actions. - The later tortfeasor, in general, does not cutoff or reduce D1's liability - D1 and D2 are liable for the second harm - Market share liability: must be a substantial part of the market share. - Must be a dangerous fungible product (not readily identifiable); most asbestos, DES, lead paint - Cannot collect on harm if cannot find one identifiable defendant. Ex: generic drug that you can't trace back to one person. - B of P is on each D to prove they were not the one who did the harm - some D s may be innocent; better than punishing an innocent P - Loss of Chance: award proportionally based on plaintiff's loss of a chance to live. e.g. D s neg failure to diagnose P dies; expert says prompt diagnosis would have chance at survival - Majority: not adopted loss of chance. - Minority: - Must show that chance of survival was over 50% - Use when cause in fact would not work; limited to medical malpractice - Circumstantial Evidence: if p<.10% Proximate Cause: Cause in Law ; policy driven; have to put a cap on it somewhere - Forseeability: what would a reasonable person foresee at the time of the accident? - Foreseeable plaintiff, foreseeable harm, foreseeable manner in which harm occurred - Remoteness in time and space would factor in - Criminal or intentional torts do cut off liability (but only if those crimes/intentional torts were unforeseeable) Hypo: D is doing construction; digs hole, leaves it unlit; blind P walks by and falls in PC: could foresee someone falling in CIF: But For P would still be harmed (blind P wouldn t have seen it) Eggshell Skull Twist: policy: someone has to bear the loss - If some harm is foreseeable and the victim is vulnerable to harm, you take victim as you found them. *Trigger: 1.) Some foreseeable harm. 2.) Plaintiff is medically fragile. *Twist: - Defendant is liable for all bodily harm. *Majority: physical, not mental, fragility. - Only for foreseeable mental harm. - Does not apply to lost earnings (except temporary earning - like for that day). Ex: Hit Usain Bolt of day of big race; he can't make it to race and loses $1 million - You would not owe Usain Bolt full amount in loses.

13 Rescue Twist: - If negligence causes emergency, tortfeasor (not rescuer) can be liable for rescuers caused injuries - If rescue effort is negligent still is foreseeable *Professional rescuers: injuries incurred during rescue are not the responsibility of the original tortfeasor 3rd party twist: - When does 3rd party cut off liability of the original tortfeasor? - Majority: for 3rd party to cut off proximate cause: - Have to be an intentional tort or criminal behavior, and - The 3rd party's behavior must be unforeseeable Ex: Random person tries to improvise a brain surgery - Negligence won't end liability or original defendant Violation of Statute Twist: - If you are prove BOP have to prove it was what the leg intended - Legislative intent and foreseeability. - Is the violation the type the legislature was trying to prevent or foreseen Damages: *Purpose of damages is to restore the plaintiff to their condition that existed before the tort *All damages must be foreseeable (otherwise proximate cause) *Must prove actual harm for damages - No Punitive damages for negligence - Punitive damages require a worse state of mind (reckless, evil intent) Compensatory damages: - Medical Costs: past, present, and future - Would likely need a medical expert to testify for your need of future medical costs (surgery, PT, etc) - Property Damage: based on the market value of the property at issue - Objectively discover - Emotional Damages: - Mental harm: many different kinds in torts - Mental suffering pursuant to disfigurement - Loss of enjoyment - Mental trauma - If no physical harm, NIED claims can be asserted (incident to the harm) - Economic Damages: - Difficult to measure - Lost earnings (past, present, future) - Loss of companionship - Loss of Consortium: - Loss of society, spouse, love, household family matter, sex partner, etc. - Not for surviving spouse grief or injury - Kids could recover for loss of dead parent - What the injured spouse's role was (household, sexually, etc) before and after *Majority: legal spouses can bring loss of consortium claims; state by state - Bright-line rule: must be a legal spouse (no exceptions) - Civil Unions, Domestic partnerships, can count in some states (depends) - policy: slippery slope; floodgates *Majority: one recovery - Minority: parents and kids can recover separately

14 - Kids cannot recover in many states (sex is a big factor) Economic Harm: - Loss of earnings are straightforward to recover for (Bring paychecks and prove future earning capacity) - Claims for purely business losses: probably will not be successful - Can recover if business losses are incident to property damages (loss of profits from damage to property) - economic loss rue: if you have econ losses and from damaged property, no other property damage, no physical injury, then your recovery in in K law Majority: cannot collect in negligence solely for business losses - Should deal with it in K law; not what tort law is forec - Minority: takes into account foreseeability. Prenatal Harm: *In utero: fetus is still in the womb, and there's an injury in this stage - Fetal injury: can recover for injury to the fetus (as long as you can prove causation/negligence) Ex: Car accident injures mom and injures the fetus - Statute of limitations is on hold until the kid is 18 (has 3 years after that) - Fetal death: - Majority: when the fetus is viable (if the birth occurred now, the fetus could survive independently of the uterus) - Minority: baby has to be born alive - Wrongful birth: where the parents are the plaintiffs - Parents are unable to make the decision to have baby; neg in the way that contraception was delivered Ex: botched vasectomy and holy condoms - Wrongful life: where the child is the plaintiff (your negligence caused my birth) - CANNOT sue parents; courts don t like intra-family cases - Post 18 recovery for special disability related expenses - Wrongful life and birth usually arise as a result of negligent parenting Ex: Alcohol and Meth when the mom is pregnant *Harms: - Normal child raising expenses - Special disability: related expenses (ct. rules only get these related damages) - Child can recover for damages specific to his disability (not pain and suffering, lost earnings, etc) *Policy: damages offset by joy of new child compared to difficulties raising a child w/disabilities Defenses: Contributory Negligence: (Historical Approach) *Historical approach: - Can be a complete defense, but that led to harsh outcomes Exceptions: - Not wearing a seatbelt (exceptions allowed in some states, still allowed recovery) Comparative Negligence: (not an intentional torts defense)

15 - Affirmative defense - Not a complete defense: e.g. P is 20% neg = reduce damages by 20% - Must prove that plaintiff had a duty of reasonable care and breached it To Prove: *BPL, Violation of Statute, Custom, Expert, But for, Prox Cause* - Must prove that plaintiff was a cause in fact and proximate cause of own harm - Assert liability in proportion to the damage caused by each party - Majority: pure comparative negligence (pay the percentage of guilt) - Different approaches: - Under 50% fault = use comparative negligence to determine degree of fault. - Over 50% fault = contributory negligence (judgment for defendant). - In 50/50 cases: a.) How bad was plaintiff and defendant's behavior? b.) How bad was each party's state of mind? - Uniform Comparative Fault Act: modified approach; take what s unpaid an reallocate it in proportion to % at fault among the parties (HANDOUT) - For 3 parties: divide up recovery proportionally among 3 parties. Assumption of the Risk: - Certain cases where you agree you are not owed a duty of reasonable care (express or implied) *Reasonableness analysis of the assumption of the risk Voluntary element: where there other options (e.g. joining a certain gym) - Not essential service; no time pressure to sign this waiver MAJ: enough that it was voluntary MIN: not enough that it was voluntary Informed element: conspicuous language, plain language Policy consideration: would it be against the public interest not to enforce this? Ex: Does the contract further (or is it inconsistent to) public health in case of a gym membership? MAJ: certain duties you cannot delegate away e.g. kids on a field trip *About whether the waiver agreements are enforceable: - Does it sufficiently inform, and is it sufficiently voluntary? Ex: Upfront waivers (before surgery or skydiving, etc) Ex: Football case where someone steps on head - Scope issues: what have you agreed to? (Any activity related to the game) Ex: Get in the car with someone you know is drunk = two defenses - Comparative Negligence: not using reasonable care to get in the car - Assumption of Risk: she knew that he was drunk Uniform (minority): proportionate remaining share among defendants - Not applicable in intentional torts or punitive damages - Settlement Immunity: status based defense; not a good use of taxpayer money - Defense to all torts, including negligence. - 3 types of persons: 1. Charity: - Historically, widespread charitable immunity - Modern: charitable organization can harm just as easily as anyone else - Majority: no such thing as charitable immunity 2. Family:

16 Strict Liability *Husband-wife: - Majority: family (husband-wife) gone in most states - Debate was that allowing negligence was not workable w/a good marriage and collusion concerns were a problem *Parent-child: - Majority: works for negligence, not for intentional torts - child abuse, etc. - Recognized constitutional right to parenting 3. Government: - General trend is to limit govt. immunity *Federal: FTCA governs tort suits against fed. govt. - Federal agent can't give consent to intentional torts - Possible to suit feds for non-discretionary act (cannot sue for discretionary actions) - Discretionary decisions involve policy considerations *State: - 2 ways to limit: 1.) Only immunity for discretionary acts (in some states) 2.) Only for govt. acts (running a jail, for example) - Proprietary acts: run by both private and govt. entities (hospitals, schools, etc) - No immunity for these types of actions Animals: Defendants for these claims: animal owners. 3 types of animals: 1.) Livestock: Cows, pigs, chickens, sheep, goats, horses, etc. Rule: - Get loose, trespass, damage land and property (strict liability) 2.) Wild: Monkeys, zoo animals (for the most part) snakes, etc. Rule: - Animals have dangerous propensity. - You are liable for harm that relates to the dangerous propensity of that animal. *Backdoor immunity: zookeeper not strictly liable for harm caused by animals. 3.) Domestic: Dogs and cats. Rule: - Common Law Approach: 1.) To extent it is a domestic species that has a known (or should be known) dangerous propensity, 2.) which could come from breed or individual animal, and 3.) Causes harm of the nature relating to that propensity, there is strict liability. Example: Peaceful golden retriever bites someone, who has never bitten anyone = no strict liability. - No knowledge of propensity: no history to indicate this. - Rottweiler, pit-bull, Dobermans could be exceptions to this. *Many states have dog-bite (strict liability) on the first bite.

17 Defenses: *Plaintiff's negligence (comparative negligence) is NOT a defense. Assumption of the risk: - Ex: You hop into a tiger cage at the zoo. Provocation: - Ex: Neighbor tortures your elephant and it snaps, injuring neighbor. Trespassers: - For domestic animals. Fence statutes: burden is on you to keep trespassing livestock out (in ranch country). Dangerous propensity: did not know/there was no dangerous propensity. - For domestic animals. Most states have dog bite statutes: be bites, you are liable. Abnormally Dangerous Activities: Multi-factor Approach: a.) Whether the activity involves a high degree of risk of some harm to the person, land or chattels b.) Whether the gravity of the harm which may result from it is likely to be great. c.) Whether the risk cannot be eliminated by exercise of reasonable care. d.) Whether the activity is not a matter of common usage. e.) Whether the activity is inappropriate to the place where it is carried on f.) The value of the activity to the community. Ex: Transporting gasoline as freight by truck along public highways and streets. - Involves high risk, and cannot be eliminated by using reasonable care. Harm required: limited to the kind of harm which makes the activity abnormally dangerous. Prima Facie Case: - Strict liability for abnormally dangerous activities if the harm caused if of related nature. - Cause in fact. - Proximate cause. Defenses: - Not strict liability in cases where the plaintiff actively seeks to benefit from the allegedly hazardous activity. - Assumption of the risk. Negligence Claims: Plaintiffs: - Foreseeable plaintiffs that suffered foreseeable harm. - 3rd parties who are harmed by negligence. - Available to multiple parties with the same rules as negligence claims. Transactions: - Does NOT have to be a certain type of transaction. Prima Facie Case: - Breach of Duty - Proximate cause

18 - Cause in fact - Harm Remedies: - Compensatory damages (no punitive damages) Warranty claims: *3 types: 1. Express: affirmative promise about the goods (written, oral, picture, etc). - can be made by private persons or sellers (anyone) 2. Implied: (2 kinds) a.) Merchantability: the goods are fit for their ordinary purpose. - Limited to merchants who have implied warranties in their sales transactions. - Garage sale seller not responsible under these claims. b.) It is fit for practical purpose: - Only made by merchants. - If told product would be suited for specific purpose. Prima Facie Case: 1. Warranty (express or implied) 2. Breach 3. Breach caused the harm Potential Plaintiffs: - Anyone who is a foreseeably injured plaintiff. Ex: Buy car (your family members are foreseeable users of the car) Potential Defendants: - Manufacturers or distributors (who made the product/the warranty). - Anyone who made an express warranty. Defenses: 1. Warranty disclaimer: - Can disclaim, but must be conspicuous and use "magic words" - Magic words: express, implied, etc. (as is...) 2. Limitation of remedies: - Limit recourse Ex: Lawnmower: within 90 days, limited to repair or replacement (can only get repair of a replacement). - Consumer product: must allow for personal injury Remedies: *When Especially helpful? - Goods transactions and consumer goods. - Economic damages (contract claims) - Express warranty (lifetime guarantee example). *Can't use warranty for service transactions. Worker's Compensation: by statute - A type of no-fault liability

19 - Only recourse against employer (because you waive tort claims against employer) - Get medical expenses and lost earnings (only w/low cap) - Don't get pain and suffering, etc. - Limited recovery compared to collecting on a tort claim - No court needed, but get less than you would in court 402 Strict liability Claims: *Majority: strict liability for defective products. Possible Plaintiffs: - Privity not required - Foreseeable is the limit (gift recipients, guest of user, etc). - Harmed by the product's defect. Ex: At Daggett's for breakfast; toaster causes both of you injury - both have claims. Possible Defendants: - Manufacturer, retailer, distributor (can sue the whole chain). (*Must be in the business or selling these goods - or hold themselves as expert). - Jointly and severally liable. - Manufacturer is likely going to pay the damages. *Policy: - Manufacturer is the one with chance to avoid defective production. - Other parties just passing on the defective product (no chance to amend). Transactions: Must be in the sale or distribution of goods. Services transactions not applicable (e.g. plumber fixing toilet does not count). Mixed sales and services could count (depends). Used goods: major causation issues (e.g. car w/30,000 miles hard to prove defect was present at the time of the sale) Manufacturing Defect: Defect: bad unit or batch. - Departs from the intended design of manufacturer and/or is unreasonably dangerous. - Must be dangerous beyond reasonable consumer expectations. Ex: Knife expected to be dangerous; toaster is not. *How to prove expectations beyond a reasonable person: - Reasonable person wouldn't expect user of that product to face danger. - Could use expert testimony if it's specific type of product (e.g. surgeon's tool). - Issue decided by jury. Harm: - Personal injury or property damage. - Do not usually bring this claim for emotional or economic harm. - Can collect for emotional harm incident to the physical harm (but not by itself). Cause in fact: bur for test Proximate Cause: - Similar foreseeability analysis as negligence. - Would reasonable manufacturer expect this defect to cause the type of harm that resulted. - Ex: Toaster (could burn people - foreseeable). *Policy: Advantages and Disadvantages of Plaintiff friendly tort: Advantages: - Manufacturing is the cause of harm.

20 - Incentive for reasonable care. - Manufacturer (w/deep pockets) can afford it. Disadvantages: - Societal costs and product prices. - Small business and newer businesses may be at a disadvantage. Design Defect: Prima Facie case: 1. Defendant sold or distributed product with a design defect. 2. Proximate cause 3. Cause in fact 4. Harm to plaintiff Defective if: 1.) As designed, product risks outweigh utility (consider social usefulness/popularity) AND 2.) At time, reasonable safer alternative was available - If reasonably feasible (Technologically and economically feasible). - Would consumers still buy it. *Narrow exceptions: so "unreasonably dangerous" that are unacceptable. Example: SUV risks/utility from class. - Warn about all foreseeable risks, that you knew about or reaosnably should have known about, even include warning about foreseeable misuses of the product (in a reasonable way: conspicuous and targets the right audience). Majority Test: Risk-utility - At the time of the product's design: - What types of risks does it present? - How socially useful is the product? *Examine the probability and size of the risks, and how generally known and avoidable the risks. - Could producer build the cost of the design into the price? *Minority: consumer expectation test. Some products have dangers but they are popular: (e.g. Alcohol, cigarettes, guns, prescriptions drugs, etc) - "The market has spoken" (Cannot argue that these products cannot be in the market at all). Cause in fact twist: shifts burden of proof onto the defendant. - But plaintiff doesn't read the warning, then there's a presumption for the defendant. Product misuse: manufacturer liable for foreseeable misuse. *Example of unsuccessful claim: Daggett picking ear w/knife, and knife comes apart/injures her. - Issues: - Proximate cause (plaintiff caused own harm) - But For (plaintiff caused harm, even if knife came apart). - Foreseeability (not foreseeable that someone would use a knife that way). *Example of successful claim: Daggett uses knife to open package in mail, and it falls apart and injures her = reasonable foreseeable misuse w/no causation issues.

21 Defenses: *Majority: - No defect - It is not unreasonably dangerous under normal use. - Assumption of the risk. - Comparative negligence does NOT work. *Minority: - Percent of responsibility on plaintiff (similar to proving comparative negligence, but don't have to prove negligence elements). Federal preemption: federal actions preempt state laws. Ex: Vaccines (give vaccine manufacturers immunity from defects) - Vein balloon popped during an operation. - SC ruled that safe harbor provided by federal statute providing immunity. Warning Defect: must warn about all risks that are foreseeable. *Majority: Must warn of risks that arise from foreseeable alternative uses and misuses of the product. Defects that you know or should know about. Must warn the users directly by putting the warning on the product itself. Do not have to warn about obvious risks (Ex: Warning that knives are sharp). *What type of warning owed? - Reasonable: using plain language (not overly technical). *Minority: consumer expectation - Dangerous beyond reasonable expectation of the consumer. Prima Facie: 1. Defendant sold or otherwise distributing a product with a warning defect. 2. Proximate cause 3. Cause in fact 4. Harm Defenses: - Assumption of the risk (ex: canned goods - defective looking product). - Federal statute that preemptively regulates this issue (over your state tort claim). - Misuse is in an unforeseeable manner. Remedies: - Compensatory - Not punitive - No nominal (need harm) Insurance: *Types of insurance: - First party: health, car, homeowners/renters. - Third party: car, homeowners/renters insurance, malpractice, business liability. Insured obligations: Give notice of potential claims: don't wait until served with a complaint. - Policy gives insurance company right to know ahead of time so they can properly prepare. Cooperate in resolving claims. Insurer obligations:

22 Defend and process claim with diligence. Have a duty of reasonable care (good faith) to their client. Pay judgment (within the bounds of the policy). Insurer Rights (contractual relationship): Insurance company chooses the attorney (because it's their money at stake). Insurance company decides how to go about with the suit. Insurance company makes decisions on how and when to settle - Though if settlement is for more than the policy, insurance company must get the consent of their client. Parties to a suit: the client (the insured) is the party to the suit, not the insurance company. *Policy: - Biases against insurance companies. - Principal: if you don't comply with tort duties, you are the liable party. - Provides incentive for party to show more reasonable care in the future. *Minority: can directly sue the insurance company. Claims for more than policy limits: Excess claim letters: party is liable past amount that the insurance company covers in the policy. Insured can fight the rest of it with their own attorney, or just settle/concede and pay amount. Evidence at trial: Evidence regarding the existence or amount of defendant's insurance is not admissible evidence. Evidence of 3rd party paying (insurance company paying for certain amount of the claimed damages) is not admissible evidence. Collateral source rule: jury won't hear about the damages that a third party (e.g. health insurance) paid; inadmissible evidence. Subrogation language in policy: may have to fork over some of the damages over to the insurance company. - If pain and suffering, don't have to pay back; if medical expenses (that health insurance has already covered) you do. Settlement of Claims: - Insurance companies call on when/how to settle (except need consent if over the policy limit). - If don't show reasonable care in settling within scope of policy, insurance company may have to pay for the entire claim. (If breach duty to client, they own it). Claims against Insurance Company - Negligence: - Duty of reasonable care and good faith. Insurance impact on Tort Law: - More cases settled: insurance don't like risk, and trials are risky. (95+ percent of cases are settled). - Settlements are a sure thing, and save transactional costs. - Insurance companies are the ones paying the money. - Cheaper to pay $10k in settlement than pay $50K to go to trial and maybe lose. - Has helped make negligence coverable by insurance.