OUTLINE FOR TORTS I/ PREPARED BY: J. William Snyder, Jr. Term: Fall 1992 Text: Dobbs, Torts and Compensation: Personal Accountability and Social Responsibility (1985 & Supp. 1990). Instructor: Professor Zelenak NOTE: This outline was originally prepared for my own private study, and it is based primarily on my own class notes, handouts, and excerpts from the textbook, either in paraphrase or direct quote. When possible, I tried to indicate material that has been directly quoted, but it is possible that some material from the textbook has been directly quoted without indication. 3 areas of torts 1. intentional torts - intentional tortfeasor is liable for all harm proximately caused by his tort, even if the harm is not foreseen or intended. 2. negligent torts 3. strict liability Damages 1. lost wages 2. medical expenses 3. pain and suffering (P&S) 4. punitive damages in extraordinary cases 3 classic torts to the person I. Battery A.Definition: an intentional infliction of an offensive body contact causing harm B. Elements 1. Intent- battery is an intentional tort- it requires fault Van Camp v. McAfoos a. actual intent- "purpose, intent or design" (1) intent to harm (2) intent to offend b. Substantial certainty (SC) [constructive intent] may serve as intent when a reasonable person in the same circumstances would know with SC that a harm could occur if the contact is made (Garratt v. Dailey). c. Crazy people: if a crazy person manifests the same intent that a sane person could manifest, then a crazy person may be held liable for his intentional torts (McGuire v. Almy). d. Children may be held liable for their intentional torts (Walker v. Kelly). 2. Contact: there must be some sort of physical contact (or something sufficiently analogous to physical contact) for a battery to take place. 3. Harm a. Physical Harm b. Emotional/mental harm (Whitley v. Anderson) C. Doctrine of transferred intent - if you intend a battery to A but "screw up" and commit a battery upon B, you are liable to B for the battery and any harm suffered by B proximate to the battery (White v. Davis). Intent also transfers when you intend an assault on A but batter B instead (Alteri v. Colosso). D. Strict liability for battery 1. statutory, like CT statute making parents liable for their childrens' non-SC intentional torts (Walker v. Kelly). 2. Workers' Compensation a. Employers are strictly liable for injuries on the job b. Injured employees get lost wages and medical expenses, but they cannot get P&S nor can they sue in tort. c. EXCEPTION: Employer still liable in tort for intentional injuries inflicted upon an employee. II. Assault A. Definition- an offer to inflict imminent/immediate offensive body contact intended to cause apprehension and that results in apprehension. ("Uh oh, here comes a battery!) B. Elements 1. Defendant must have intended to create an apprehension of imminent bodily harm (Dickens v. Puryear). 2. Plaintiff was fearful of the impending/promised offensive bodily contact (McCraney v. Flanagan, Holcombe v. Whitaker). C. Transferred intent and SC may also be invoked in cases of assault. III. False imprisonment A. Definition- imprisonment or detainment not authorized by law/ a trespassory tort: liability is imposed even if no harm is caused. B. Elements 1. Intent to confine 2. Actual confinement (Restatement (Second) of torts 3. Plaintiff aware of confinement C. Transferred intent analysis permissible. D. Cases a. Hardy v. Labelle's Distributing Co. (elements not satisfied [especially the last two]) b. Great Atlantic & Pacific Tea Co. v. Paul) (shopkeeper's privilege affirmative defense fails in this case). IV. Intentional infliction of emotional distress- a new tort/ only about 40-50 years old. (aka. the tort of outrage) A. Definition: Acting in such an outrageous an extreme manner as to intentionally cause a person emotional distress. B. Elements 1. Outrageous conduct (where the average person would look at the conduct and exclaim "Outrageous!" Labrier v. Anheuser Ford). 2. Tortfeasor intentionally or recklessly acts to cause emotional distress. 3. Emotional distress, and perhaps bodily harm, actually results C. Liability 1. to target of conduct a. for resulting emotional distress b. for any resulting physical harm 2. to third persons a. to member of immediate family who is present for any ED or physical harm b. to any other person present where bodily harm results. D. Cases 1. Labrier v. Anheuser Ford V. Torts to property: the last 2 of the 5 classic torts (battery, assault, false imprisonment, trespass to property, trespass to chattels) A. Trespass to property 1. Definition: Unauthorized entry into the land of another. Trespass interferes with one's property rights, and not to ownership per se. a. Physical entry with your person b. Entry with a projectile, object, etc. c. Flying too close, subject to the Federal power to regulate the airspace (Congress may set a air space floor, flying below which makes aircraft operators liable for trespass, but above which trespass claims are preempted by the Federal government.) [Doctrine of preemption] d. Digging too far up under property. e. Refusal to leave when one unintentionally enters property. 2. Intent a. Purpose, intent, or design. b. Substantial certainty that entry will take place, even if the intent is not to trespass. c. Mistake as to whether or not you own the land or have a right to be there is no defense. Intent to be on the land is enough. 3. Damages a. Trespass to land is a trespassory/dignitary tort, which means tortfeasors are liable for even nominal damages even if they cause no harm. b. Trespassers are liable for any damage they cause. (1) cost of repair (2) amount of diminished value c. Parasitic damages are also recoverable d. Punitive damages may be recovered if the trespass is malicious or deliberate. e. If owner is not the possessor, but the trespasser inflicts permanent damage, the owner may have a cause of action against the trespasser. B. Trover: Conversion of chattels 1. Definition: The exercise of substantial dominion over an article of personal property that it is effectively converted to the tortfeaser's sole use. Trover is essentially a forced sale to the converter. 2. Intent a. As an intentional tort, intent to exercise substantial dominion over the article is required. (1) purpose, intent, or design (2) Substantial certainty that conversion will take place b. Larcenous intent is not required: Intent to convert the article is sufficient, and it is no defense that one was mistaken as to the ownership of the article. 3. The nature of the conversion a. Destruction b. Misdelivery in cases of bailment c. Purchasing stolen property d. Modification or alteration of the property to the degree that replevin is not feasible 4. Dominion over the property: Factors to consider (according to the ALI) a. Extent and duration of the control b. The tortfeasor's intent to assert a right to the property c. The tortfeasor's good faith (or lack thereof) d. Any harm done e. Expense or incurred inconvenience 5. Type of property that may be converted a. Old common law rule: tangible personal property only b. Modern rule: intangible personal property (stocks, bonds, money, etc) may be converted. 6. Serial conversions Owner -> Thief -> Buyer Owner may sue either or both, since both have intended to exercise substantial dominion over the item, even if the Buyer/Thief transaction is in good faith. EXCEPTION: If Thief tricks Owner into selling her the item, then Thief gets title to the property, and thus is not a converter, though Owner may go to court and get the sale annulled on the grounds of fraud. Buyer would not then be a converter, unless he knew of the fraud perpetrated by Thief. 7. Remedies a. In trover, the damages are usually measured by the value of the item at the time of the loss. b. However, in cases where the item is subject to market fluctuations, like stocks or other valuable commodities, some courts have allowed owners to recover the cost of replacement within the period of time a prudent person would have replaced the converted goods. c. Replevin, or actual return of the converted article, may be available under certain circumstances, like those in b. C. Trespass to chattels 1. Definition: An intermeddling with the chattel of another that is short of a full conversion. 2. Intent a. As an intentional tort, intent to intermeddle with the property rights of another over the article is required. (1) purpose, intent, or design (2) Substantial certainty that trespass will take place b. Larcenous intent is not required: Intent to trespass against the article is sufficient, and it is no defense that one was mistaken as to the ownership of the article. c. Not a dignitary tort: cannot recover nominal damages. 3. Remedies a. Liability is imposed according to the extent of the harm caused. b. Actual damages, not the market value of the article. (1) Loss of rental value (2) Cost of repairs (3) Any other damages short of a forced sale [Work backwards from the remedy to find the proper legal theory on which to proceed.] VI. Defenses to intentional torts: All are affirmative defenses and must be pleaded by the defendant A. Misbehavior on the part of the defendant 1. Self-defense a. Definition: One is privileged to use reasonable force to defend herself from a perceived offensive body contact or false imprisonment. b. Reasonably mistaken belief is permissible, but unreasonably mistakened belief is not permissible. c. Reasonable force: One may use only such force as is necessary to repel or deter the harm in question. (1) As far as deadly force, one is not privileged to use deadly force when one is not threatened with loss of life or serious bodily harm. Otherwise, deadly force is permissible. (2) Retreat before use of force in self defense may be required before force may be used, unless the attack occurs in one's dwelling. (3) Excessive force is unreasonable, and one may be liable for inflicting it. d. Provocation does not invoke the privilege, especially that only of a verbal nature. e. Unlawful arrest may invoke the privilege. f. One may use what otherwise might be considered false imprisonment or assault as a self-defense under certain circumstances. 2. Defense of third persons a. Old common law rule: Defense limited to protect members of one's family or servants. b. Modern rule: One may use such force to defend a third person as he could to defend himself under the rules of self-defense. 3. Arrest and detention (See GA&P v. Paul) a. Shopkeeper's defense of privilege (1) Old common law rule: A shopkeeper is permitted to inflict what otherwise might be a false imprisonment in order to conduct a reasonable investigation into a suspected shoplifting. However, a shopkeeper does so at his own peril should he be mistaken about the shoplifting. (2) Restatement (Second) rule 120A: Same as above, but reasonable mistakes are protected. b. A person may detain another person under the doctrine of citizens' arrest if (MD rule): (1) If the detainee has committed a felony, in the presence of the detainer or not, and the detainer has probable cause to believe that the detainee committed it, or (2) The detainee committed a misdemeanor amounting to a breach of the peace in the presence of the detainer. 4. Defense of property or recapture of chattels a. A possessor of property is privileged to use reasonable force to repel or expel an intruder to his real or personal property. One is privileged to commit what otherwise would be an intentional tort if the action is reasonable under the circumstances and is necessary to expel the intruder. b. The possessor must first warn the intruder to desist before taking any action to repel the intruder unless such a warning would clearly do no good or there is no time to give the warning. c. One may not use deadly force to defend property unless a person's life is in danger. EXCEPTION: Entry into an occupied dwelling may justify the use of deadly force to repel the intrusion. d. Though one may post a sign warning a potential trespasser of infliction of bodily harm should he choose to trespass, such a sign does nor release the owner from liability if he uses deadly force against a trespasser. e. One may threaten to use deadly force to defend property, though one may not be privileged to use such deadly force. f. One may not indirectly do in one's absence what one could not do in person to repel an intrusion to property. See Katko v. Briney (spring gun case) and Brown v. Martinez (use of gun to scare trespassers that ends up injuring one of them) g. Once property is stolen, you may not use any force to reclaim it. EXCEPTION: Hot pursuit to recover goods is permissible. h. Those who use unwarranted deadly force may be liable for punitive damages as well as compensatory damages. 5. Teachers' privilege a. Teachers and other school officials are empowered to use corporal punishment to enforce classroom discipline (Thomas v. Bedford). The privilege arises out of the teachers' status as in loco parentis, but it is not parasitic upon a parent's right to inflict corporal punishment; in other words, a parent cannot object to or bar corporal punishment of her children in school under this rule. (1) This avoids a possible split in the classroom between those kids subject to corporal punishment and those who are not so subject (2) It also focuses on the state's interest in maintaining classroom discipline. b. This privilege is a defense to a claim of battery, unless (1) The punishment inflicted was excessive or caused permanent injury, or (2) The teacher used his privilege as a cover for satisfying his own bad passions, whatever the severity of the punishment. 6. Consent a. Under certain circumstances, consent to a contact is a defense to what otherwise might be deemed a tort. b. Consent is normally treated as an affirmative defense, though it tends to negate a critical element of the offense. If invoked by the defendant, the plaintiff has the BOP to show that the contact was not consented to. c. Bailey v. Belinfante (a plaintiff who consented to only having a set number of teeth extracted wins a battery claim against his doctor after the doctor removed all of his teeth instead. Possible manifestations of consent are rejected by the court.) d. Consent to contact in contact sports (1) Participation in a contact sport is usually regarded as consent to contacts within the rules (2) However, contacts that are outside the rules, even those considered part of the game, are intentional torts and are actionable, though it is usually not considered "macho" to sue for those contacts. (Alternative penalties) B. Defense based on a right 1. Right of entry a. Right to enter public business establishments for the purpose of conducting business therein. b. Right of utilities to enter land pursuant to an easement. 2. Right of necessity a. Release from liability from entering or damaging the property of others based on necessity. b. 196 Doctrine of Public Necessity: A person may commit what otherwise be a tort if the immediate public good requires it. (Surroco v. Geary) c. The government may have the right to do the same thing, but it also may have to compensate the owner for taking the property. d. Ploof v. Putnam and Vincent v. Lake Erie: Economic efficiency and fairness through the imposition of liability (1) Depending on the costs of each possible choice, by imposing or not imposing liability you can force the parties to choose the economically efficient result and the fair result. (2) In Vincent, the efficient result is for the shipowner to tie up, for he stands to lose more by tying up than by not tying up. However, fairness requires that he be held liable for the damages his ship causes to the dock, though he is perfectly justified in keeping his ship tied up. (3) In Ploof, we want to encourage the owner of the dock to permit the boat to stay tied up during the storm, so we impose liability on him for cutting the ship loose during the storm. However, like in Vincent, we would want to hold the boat owner liable for the damages to the dock. (4) Cost internalization: force those who create the costs to bear them (internalizing otherwise external costs). By doing so, we encourage the choosing of the efficient result, and sometimes the fair result. (5) Bargaining (and bribery) can be used to overcome wasteful legal rules, but bargaining is not always possible because of the immediacy of many situations. (6) When efficiency does not dictate, then fairness can take over to point us to the correct result. VII. Negligent torts A. Definition of negligence: Failure to exercise the level of care that would have been exercised by a reasonable person under the same circumstances. B. Wilson v. Sibert and the sudden emergency doctrine: failure to look in the rear view mirror before backing up may have been reasonable under the circumstances. C. The reasonable person standard 1. The "reasonable person" is an abstract paradigm individual who does not exist in reality, but rather is an idealized standard against we measure the conduct of alleged negligent tortfeasors. [We could conceivably use a different standard, like Judge Foster's "moron in a hurry".] Such abstractions have the tendency to move us away from the fault principle. - The standard is NOT what a reasonable juror would have done in the same situation, for even they must recognize that they may be negligent on some occasions. 2. Physical handicaps are generally treated just like any other attendant circumstance. Deaf people are held to the standard of the reasonable deaf person. 3. Non-physical handicaps, like nervousness, are not factors in the reasonable person standard. 4. Intoxication (a) Being drunk is usually not a defense to a tort claim. It is not regarded as a circumstance. (b) In drunk driving situations, you are generally regarded to have gotten yourself into the situation. The reasonable person standard applied even though you were not expecting to drive when you started to consume alcohol (unfair, but that is how the rule is applied). (c) Making yourself functionally deaf, blind, etc. is treated just like intoxication: you brought it on yourself. 5. Insanity - Under 283B, insanity does not count: it is not an attendant circumstance which can be factored into the reasonable person standard. Insane people are held to the standard of the reasonable person, however oxymoronic it sounds. [This reflects more of the compensations perspective (let the causer bear the costs) rather than the fault perspective (unjust to hold someone liable for something they can't help, but if you have foreknowledge of the condition, you may be held liable)]. (Breunig v. AFI Co.) 6. Children and the reasonable persons standard (a) When children are engaged in childlike activities, they are held to the standard of a reasonable child. Being a child is treated like any other circumstance, though age and maturity is irrelevant with regard to adults who are held to the adult standard once they reach majority. (b) When they are engaged in adult activities or inherently dangerous activities (Robinson v. Lindsay for the latter) (50/50 split), they are held to the standard of the reasonable adult. Goal: protect the public- we don't care how old you are. (c) Most child negligence cases arose out of allegations of contributory negligence where the courts were unwilling to hold visibly injured children to the reasonable adult standard. This analysis eventually found its way into ordinary negligence cases. 7. Extra ability or skill - Special knowledge is treated just like any other circumstance, but it does not increase the standard of care: the reasonable person standard still applied. Superman is held to the reasonable Superman standard. (Hills v. Sparks and Fredericks v. Castora) D. Negligence per se 1. Violation of a legislatively (or judicially) declared rule prescribing what constitutes reasonable care constitutes negligence per se. Such rules are usually kidnapped from criminal law and applied to tort law. Though the courts are not obligated to press these rules into service in tort law, they do so based on deference to the legislature, for the courts consider the legislature to be in the better position to evaluate what the proper standard of care should be. 2 limitations (a) Is the person injured within the class of persons intended to be protected by the rule? (Haver v. Hinson) (b) Is the harm the type the statute aims at preventing? (Wright v. Brown) 2. Marshall v. Southern Railroad Co.: Rule- Do not drive so fast so that you cannot see within the range of your headlights to avoid collision. Because the plaintiff rammed into the supports, he violated the rule and is accordingly negligent per se. (Very little weight was given to the fact that the plaintiff was blinded by oncoming high beams.) (Also, it is treated like a rule proper by the court) 3. Chaffin v. Brame: Defendant admits negligence, but also alleges contributory negligence by holding up Marshall and arguing that the only prudent thing to do is to slam on the brakes. However, the court regards that result as too harsh and turn the Marshall headlight rule into a ROT 4. Martin v. Herzog: Cardozo holds that failure to carry a lantern on the vehicle at night in violation of a state statute was negligent per se. The legislature has prescribed what constitutes reasonable care, thus pre-empting the reasonable person standard. 5. 3 ways courts have found ways out of applying negligence per se. (a) By construction: Tedla v. Ellman- Defendants try to argue contributory negligence per se based on Anna and her brother's violation of a state statute requiring pedestrians to walk on the left side of the road (they were walking on the right side of the road). However, the court argued that not in all situations would following the statute be safe, and that one should not have to subrogate common sense to the statute when following the statute stands to put a person at greater risk. The court accordingly construes the statute as an ROT and refuses to apply negligence per se analysis. (b) By excuse: Impson v. SM Inc.- Truck attempts to pass within 100 feet of an intersection in violation of a statute. Plaintiff argues negligence per se, but the Defendant argues that if he has an excuse, he should not be held guilty of negligence per se. The court buys the argument, but it finds he had no valid excuse. The Restatement lists 5 non-exclusive categories of excuses: (1) Incapacity to comply (2) Ignorance of the occasion for compliance (3) Inability to comply after a reasonable attempt to do so (based on a reasonable person trying to comply with the statute) (4) Emergency not caused by the person accused of misconduct (5) Compliance put the person at greater risk of harm (c) By explicit decision: Rudes v. Gottschalk- Kid crosses an expressway and gets hit. Defendant argues contributory negligence per se. The court concludes that it does not believe negligence per se is appropriate in this case. The adult standard does not automatically apply when negligence per se is invoked. The plaintiff could be held to the standard of a reasonable child, and that will be a question for the jury. 6. Other possible tests (1) Stupid laws, like a 3 mph speed limit (2) Ignored laws (3) Children 7. Mundy v. Pirie-Slaughterhouse Motor Co.: Permitting an unlicensed minor to operate a vehicle was negligent per se. 8. Carter v. Sommerville & Son.: Not having a certificate of conveyance was not sufficient to be negligent per se. 9. Wright v. Brown: Dog released prematurely from quarantine in violation of statute. It bit the plaintiff and she sued the dog catcher. (a) Must be within the class of persons intended to be protected (members of the community) (b) The resulting harm must be part of the class of harms intended to be prevented (diseased dogs biting people- a different kind of injury than that which the plaintiff suffered, so no negligence per se). 10. Haver v. Hinson: Parallel parking statute has nothing to do with protecting kids who play under cars, so no negligence per se. 11. Wendland v. Ridgefield Construction: Though OSHA regulations might seem to provide a fertile ground for negligence per se rules, statutory law prevents OSHA regulations from expanding or limiting tort rights (legislature explicitly removes possibility of negligence per se). However, violation of OSHA rules may be deemed evidence of negligence, though not negligence per se (might that still run afoul of the proviso?). (Employer is in the predicament that the person injured is not an employee within the meaning of the workers comp statutes, but he is an employee within in the meaning of the OSHA regulations). E. Concept of negligence: Risk 1. Negligence is a. Conduct b. Involving risks and dangers c. That a reasonable person would not take because of the foreseeable harm. 2. Usually, courts are unwilling to balance the value of life against the value of property, especially where such a risk is patently unnecessary (Indiana Cons. Ins. v. Mathew: court allowed Mathew to choose saving his own life over saving his brother's garage from burning down by not pushing the flaming lawn mower out of the garage [see brief and notes].) 3. Brown v. Steil hypothetical a. Company makes a conscious decision to use steel construction in lieu of concrete construction even though they know it will result in 3 injuries rather than 1 injury by using concrete. Sure enough, after construction begins, a worker is injured and a deli delivery boy making a delivery on the premises is also injured. b. Should they be liable for an intentional tort under some sort of substantial certainty analysis? (1) Statistical certainty: Statistically speaking, 3 injuries will occur if we use steel whereas only one injury will occur if we use concrete, though we have no idea under what circumstances the accidents will happen. (not enough mechanical certainty to raise an intentional tort) (2) Mechanical certainty: i.e. throwing a brick off of a building. You can be substantially certain that action will likely cause someone immediate ascertainable harm. c. Was it negligent for Steil to use steel construction instead of concrete knowing the increased probability of on-site accidents? (1) Can we ever impose additional risks on human life in the name of controlling costs? Yes, that is permissible and the reasonable persons standard reflects this. At some points, safety considerations do not outweigh cost considerations. We can balance the value of human life against the value of property, though courts do it rarely. (a) To our own lives (b) To the lives of others (c) When the analysis gets generalized away from particular situations, it may become reasonable to balance property against human life, but the more particularized the situation, the more unwilling we are to do that. (2) Difficult to trace negligence back to basic decisions. You would have a better argument by tracing the cause to some specific circumstance of the accident. [Under the Federal Tort Claims Act, the government cannot be held liable for discretionary policy actions, but it can be held liable for operational actions putting those policies into practice.] (Dorset Yacht v. Home Office) d. Liability w/o fault 2 goals (1) Risk spreading (with insurance) (a) Workers get slightly reduced wages to cover workers comp expenses, but in return they get protection against serious injuries. This has the effect of spreading out the risk among all employees. (b) Is this paternalistic? Well, people can be short sighted, and because there are inevitably differences in the bargaining power between employers and employees. (2) Cost internalization/efficiency and externalities (a) Adam Smith's invisible hand strives for the efficient result squeezes out inefficiency. When costs exceed potential benefits, a project should not be performed, and vice versa. (b) Generally speaking, projects that yield more benefit than they cost should be performed, while projects where the costs exceed the benefits should not be performed. (c) By imposing liability on employers for employee accidents, we can make them take injury costs into consideration (internalize those costs) when they decide whether or not to work on a given project and to choose the efficient option. Otherwise, employers are not likely to take injury costs into account since they will not have to incur those costs, and accordingly, projects where the real costs exceed the benefits would be performed. (d) In workers comp, the amount of employer liability is limited, so there is not a full internalization of costs. e. Should Steil be made to pay for the injuries to the deli delivery boy? Maybe, but their workers comp does not cover them (If the deli is required to carry workers comp, they might be able to pay, but more than likely that business is too small to be required to carry workers comp. 4. Exceptions to Workers comp (Stinnett v. Buchele : See brief for short discussion) a. Agriculture workers b. Intentional torts c. Casual workers 5. Bernier v. Boston Edison (1) Pedestrian-plaintiffs argue that BE was negligent in the design of their utility poles. They presented expert testimony that for $17.50 more per pole they could have considerably increased the strength of their poles, thus protecting pedestrians from falling poles when vehicles collided with the poles. This pole was shown when hit with vehicles going only 6 mph. The improvements would have made the pole withstand a crash of at least double that speed. (2) Defendants argue that it would have been too expensive to design a better pole. Additionally, sturdier poles increase the possibility of harm to vehicle occupants whose vehicles collide with poles. (3) The court subtly shifts the BOP to the defendants to show that they did not act negligently in designing this pole. They were in a better position to know about pole safety. Additionally, they seem to have given no thought to pedestrian safety when they designed this pole. They conclude that a jury could find that BE was negligent in the design of their utility poles that created an "unjustifiable risk" to pedestrians. 6. Dorset Yacht v. Home Office a. There is nothing inherently negligent about operating a Borstal (reform school for boys where the boys are given a large degree of freedom as part of their rehabilitation). [The decision to run one is basically a policy decision for which the govt. should not be held negligent.] b. However, they may have been negligent with respect to the handling of the particular group of boys that stole the plaintiff's 7. The Hand Formula: US. v Carroll Towing a. The formula B < PL (1) B: The cost of prevention of the harm (2) P: The probability of the harm occurring (3) L: The seriousness of the harm b. If B < PL, then liability should be imposed, for the cost of preventing the harm is less than the severity of the harm discounted by the probability that it will occur. c. If B > PL, then liability should not be imposed because then the cost of prevention of the harm exceeds the severity of the harm discounted by the probability that it will occur. Requiring the preventive measures would amount to economic waste. d. The Hand formula, as an economic analysis of tort liability, works wonderfully in business situations (Stinnett and BE), though it may not work as well in non-business situations e. On the other hand, the numbers necessary for the calculation may not be readily apparent. Additionally, you can run into problems where both sides of the equation are roughly equal in value. For example, it might cost $50 to prevent a given harm, though the harm discounted by its probability is only $49. Strictly speaking, the Hand formula absolves liability, but somehow we might be willing to impose liability in this situation. f. It's not perfect (It doesn't play the piano!), but it is a framework with which you can work. The basic concepts involved may be helpful to a jury trying to decide whether or not to impose liability. 8. The existence of an accident is not automatically evidence of negligent conduct: Gift v. Palmer a. The plaintiff entered no evidence relating to a breach of care. She tried to argue that on balance, he had to have done something wrong in running over her kid. b. Two tensions are apparent from this case: (1) Res ipsa loquitur: the action speaks for itself (deal with later) (2) We want something more than just bare probabilities in order to find someone guilty of negligence. We want to detailed evidence that will point out to us a negligent act or omission. (Smith v. Rapid Transit: plaintiff attempted to have a bus schedule entered into evidence showing a high probability that a bus was at a given location at a given time. This evidence was not admitted.) c. Cases like this are usually decided against the plaintiff since the plaintiff has the BOP. This is essentially a value judgment that in a close case, the party with the BOP ought to lose. 9. Witnesses, conflicting testimony, expert testimony, and custom evidence a. As an advocate, you must give reasons to the jury (1) To believe your witnesses (2) Not to believe your opponent's witnesses b. Reasons to believe/disbelieve a witness (1) Honesty (a) Bias or stake in the case (b) Stronger testimony comes from those with no interest in the case (c) Strongest testimony is testimony given against the interest of the witness (2) Perception of the events (a) Eye sight/hearing/sharpness of sense of the witness (b) Angle the witness had at the time of the accident (obstructed view?) (c) Was there enough light for the witness to see clearly? (3) Memory (a) Probe the quality of the witnesses's memory (b) Does the story remain consistent over time (c) Testimony tends to get more detailed each time the person tells the story. They might have incorporated other things they have been told about the events into their own recollection of what happened. 10. c. More cases than not will come down to witness credibility. (Lode v. Mercanio and the mishmash of conflicting testimony: its the jury's job to sift through it to make findings of fact.) - It is not considered unethical for counsel to coach a friendly witness on delivery of the testimony, for example, to use "power talk", to use a particular voice inflection, to be articulate, etc. - Kibler v. Maddux hypothetical: Showing negligence may be as much a matter of persuasion as proof, and sometime maybe even more so. (See 19-OCT-92 notes for more details) d. Be careful what you say at trial and how you say it. Leave no ambiguities in the testimony. If you misspeak, that misstatement can be used against you later. (Forsyth v. Johnson: Defendant testified that his speed was 55 "at the time of the impact". What he probably meant to say was he was going 55 before he hit the brakes. That testimony was used against him to find him negligent.) e. The role and limitations of opinion and expert testimony (1) Opinion testimony on ultimate issues is usually not permitted from non-expert witnesses. They must instead state the facts to the best of their ability. However, limited expressions of opinion are permissible (estimates of speed based from eyewitnesses, as well as distance, intoxication, etc. Things most people are "experts" on). This forces lawyers to investigate and present the FACTS. - In such situations, expert testimony is not needed. For example, we all know the dangers of a banana on the floor of a supermarket. (2) Rule against opinion testimony is usually waived for expert testimony. Experts may draw inferences from large bodies of facts upon which they are experts at interpreting (doctors, engineers, physicists, etc). However, experts can and do differ, and juries usually are ill equipped to sift through expert testimony to find which expert to believe. Also, there is the risk that the expert witnesses will simply awe the jury into finding for the side for which they testify. (3) Expert testimony has the tendency to take the case from the jury if you allow the expert to testify on an ultimate issue in a case. - A way around the problem of expert testimony is to give the jury enough information on a subject so that they may become "quasi-experts" and be able to make informed inferences. (Hall v. Oregon: sand on onramp case- The state tried to argue that the plaintiff needed to enter expert testimony about the logistics of sand removal in order to make out her prima facie case. The OR S.Ct disagreed with the state and the trial court that the plaintiff needed to introduce expert testimony. The jury was given sufficient information about the logistics of sand removal, the locus in quo (curbed and contained so sand could not blow away) and the other tasks that maintenance crews were working on at the time. (4) In Johnson v. Yates, a highway patrol officer's estimation of the speed of a vehicle based on the skid marks was disallowed because the officer was not an expert witness no was he an eyewitness to the accident, and thus, the evidence was deemed prejudicial to the defendant. Besides, the opinion testimony probably was not needed, as the jury could find on its own from 400+ ft. skid marks and a split tree that the defendant was probably going too fast. (The jury also may have been awed by the officer's uniform). In essence, the officer was drawing conclusion the jury could have drawn itself. - When a jury is capable of drawing an inference on its own, expert testimony is usually not needed. However, if the jury may need help, expert testimony may be allowable (for example, suppose the skid marks were only 137 ft long- there the jury may have a harder time drawing an inference as to speed. Procuring an expert witness that will testify that based on the skid marks the defendant was traveling at over 50 mph (too fast) might be helpful and permissible.) (5) Custom evidence and its admissibility (a) Beals v. Walker: victim was a grain elevator repairman who slipped on a patch of ice while trying to climb the outside ladder of the defendant's grain elevator. The plaintiff tried to have evidence that the custom of the area was to have a ladder on the inside grain elevators, and because the defendant did not have a ladder on the inside of his grain elevator, he should be found negligent. The court found that the plaintiff failed to prove either that the defendant knew of the custom or should have known about the custom. Additionally, in order for the custom to be relevant, it has to be widely used in the local area and its use must be so widespread that the plaintiff either did or should have known about it. Plaintiff did not show that, so he lost for failure to show a breach of duty to keep a safe premises. (b) Custom evidence is irrelevant, unless the custom (1) Concerns safety (2) The harm done was of the type the custom is designed to prevent. (3) The person injured was of the class of persons contemplated to be protected. (c) Just because everyone else does something that is unsafe does not make it admissible "custom" evidence. (DePaola v. Seamour and crossing 40-50 feet from an intersection because a bus stop is nearby). (d) Industry wide safety manuals are usually deemed hearsay evidence because the validity of that evidence cannot be tested by cross-examination. (McComish v. DeSoi: The appeals court held the manuals inadmissible as hearsay, but the S. Ct. reversed and held them to be admissible as evidence of negligence). However, if they are enacted into law, then they are admissible and may be regarded as the standard of care (a la negligence per se). (e) The T.J. Hooper: [another Learned Hand special] Plaintiff argued that the owners of the tug were negligent in not having a radio on board. Had there been a working radio on board, they would have heard a severe weather forecast and could have made the decision to put in to avoid the weather. Defendants tried to argue that having a radio on board was not customary at the time (Is evidence of no industry custom conclusive for a finding for the defendant?) LH: NO, the evidence was not conclusive in the defendants' favor. There was a proper jury question. He insinuated in dicta that an entire industry can be negligent by not having a particular custom. 10. Why not allow people to bargain for additional safety (ie. why should not the plaintiffs in The T.J. Hooper have been required to bargain to have the defendants have a radio on board? a. Contracts have transaction costs associated with them (1) Time (2) Power to bargain (contracts of adhesion) (3) Expertise (4) Identification of the parties to a potential contract (5) Establishing the required "meeting of the minds". (6) Nature of what is contemplated to be contracted for b. Where transaction costs are high and bargaining is difficult or impossible, we are inclined to assume people will act as reasonable persons and allow people to seek remedies in tort. c. Where transaction costs are low and bargaining is both feasible and easy to accomplish, we limit remedies to contract. F. Res Ipsa Loquitur: The act speaks for itself 1. In some situations, the way an accident happened strongly suggests negligence, and the case should get to a jury. 2. Whereas in a standard negligence case the plaintiff includes facts demonstrating negligence, in a res ipsa case the plaintiff excludes all other possible causes and asks the jury to find that there is no way that the defendant could not have been negligent given that the accident occurred the way it did. 3. Why was Gift v. Palmer not a res ipsa case? There were other possible causes that were ruled out as possibilities. 4. Res ipsa is often used as a "smoking out device" to get a tight lipped defendant to talk when he may be withholding information about an accident. The defendant if Gift told all he knew. However, in a majority of jurisdictions, res ipsa applies even when it is not needed as a smoking out device. 5. Res ipsa gives the plaintiff a prima facie case and avoids the defendant's motion for a directed verdict. In some instances, the inference of negligence can be so strong that a plaintiff's directed verdict is warranted (x-ray shot of abdomen showing scissors left in someone after an operation). The procedural rules for res ipsa are much more favorable to the plaintiff. 6. Interpretations of res ipsa a. Majority view: Res ipsa allows the jury to infer negligence on the part of the defendant, but it still does not necessitate a finding of negligence in most cases. b. Minority view: Once res ipsa is shown, the BOP shifts to the defendant to prove himself non-negligent by preponderance of the evidence. c. Minority view: Res ipsa calls for a presumption of negligence on the part of the defendant. (Essentially a directed verdict for the plaintiff) 8. Suppose defendant comes back with a reasonable explanation of what happened. a. If the jury believes it, res ipsa is out the window. b. If it does not believe the explanation, then res ipsa still applies. 9. Byrne v. Boadle: Plaintiff was walking by the defendant's mill when he was hit by a barrel from the mill. He sues under a res ipsa loquitur theory of negligence. The court found that the plaintiff was permitted to employ a res ipsa theory. They held that it was wrong to say that a presumption of negligence was never allowed, and the fact that the barrel from the defendant's mill crashed on the plaintiff could be used as the prima facie case of evidence. 10. Restatement view: 328 (1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when (a) the event is of a kind which ordinarily does not occur in the absence of negligence (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant's duty to the plaintiff (2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury or whether it must necessarily be drawn. (3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached. 11. Control rule: The defendant must be in control of the instrumentality that was the cause of the harm to be liable to the plaintiff for negligence under a res ipsa theory. 12. Modified control rule a. Is the instrumentality within the defendant's power or right to control? (Within his dominion?) b. The time that counts is not the moment of the injury, but rather when the negligence itself occurred. 13. Lowe v. Quick elevator hypothetical: The facts of the situation and the control Quick had over the elevator's operation strongly suggests they were negligent in some way. It probably would go to the jury on res ipsa. 14. Run-away car cases: tampering, mechanical failure, failure to lock, or not putting the car in park and setting the emergency brake. These cases also are likely to go to the jury on res ipsa. (Warren v. Jeffries) G. Cause in fact 1. The negligent act must be the actual cause in fact of the plaintiff's harm in order for the plaintiff to recover. The plaintiff cannot recover simply because the defendant was negligence; that negligence had to have been the cause the accident. 2. Actual cause is usually interpreted as "but-for" causation. That is, but for the defendant's negligent action this accident would not have occurred. (Also have to show proximate causation) 3. Salintero v. Nystrom: Plaintiff went to the defendant doctor for x-rays of her lower back after an auto accident. Neither the doctor nor his staff inquired as to whether or not she was pregnant or even when she had her last period. The doctor took the x-rays. Plaintiff later went to see her gynecologist when she began to suspect that she was pregnant. the gynecologist confirmed she was pregnant, and upon finding out she had been x-rayed, advised her to get an abortion. The fetus turned out to be dead. Held: the doctor's negligence was not the cause of Salintero's harm, so he cannot be held liable. (In fact, according to her own testimony, had she been asked whether she was pregnant she would have responded in the negative.) The plaintiff has not shown that but for the doctor's negligence the harm would not have occurred. 4. But-for cause analysis: both are needed a. Must know the theory of negligence under which you will proceed (What did the defendant do wrong? He at least has to be negligent.) b. Speculative hypothetical element: If the defendant were not negligent, would the accident have happened? (Smack of hypothesis contrary to fact, a logical fallacy) 5. Suppose a car leaves the roadway, crosses onto a sidewalk, and hits a pedestrian a. 2 possible but for causes (1) Plaintiff being on the sidewalk (2) Defendant careening onto the sidewalk b. Cause (1) is irrelevant. The pedestrian was doing nothing wrong being on the sidewalk. c. Cause (2) is the relevant cause, for the defendant's negligent (wrongful) act was probably the cause of this accident. 6. Joint and several liability among several tortfeasors (Bernier v. Boston Edison Co.) a. Each defendant is held liable to the plaintiff for the full amount of the plaintiff's damages, but the plaintiff's recovery cannot exceed the amount of the judgment. Thus, the plaintiff can collect the entire judgment from 1 defendant or from all the defendants. This is useful for the plaintiff in 2 related respects (1) With J&S liability, you can avoid having to sue only an insolvent defendant who is probably judgment proof. (2) Also, you can sue a "deep pocket" party who is likely to have the money to pay on the judgment you get. b. J&S is especially useful in cases with multiple actors and causes. (1) Merged causes: Landers v. East Texas Salt Water Disposal Co.- ETS and Sunoco both had pipes which broke and dumped salt water into the plaintiff's fresh water fishing pond, killing all the fish. He sues them both arguing they are J&S liable. (a) Old Texas rule: For J&S liability there must be commonality of design and/or commonality of action (b) New Texas rule: Where there is an injury that is indivisible as to the respective responsibilities of each identified tortfeasor, both can be held J&S liable. (2) 2 defendant aggravation of injury case: Azure v. City of Billings- Plaintiff got beat up in a bar brawl and was subsequently arrested. Statutory law required that the police administer medical to him, but they failed to do so and his injuries were aggravated as a result. (a) Indivisibility of injury (1) Harm cannot be theoretically divided, or (2) Plaintiff cannot practically divide the harm among the tortfeasors. (b) Once the plaintiff shows that the defendant's negligence contributed to his injuries, the BOP switches to the defendant to prove how much of the injury for which he was responsible, lest he be stuck with paying for the entire injury. c. Rules governing J&S (1) J&S can be invoked when (a) There is concerted action among the tortfeasors or unity of design, or (b) There is indivisibility of the injury. (2) One J&S liable defendant can seek contribution from other J&S defendants in most jurisdictions and recover the pro rata share of damages owed by other defendants. Contribution is usually apportioned as to the degree of fault. (3) Indemnification: In some cases, a defendant is only secondarily liable to the plaintiff, making some other third party liable to the defendant. In these cases, the defendant may seek indemnification from the third party, or 100% contribution. (4) J&S tends to weaken the but for cause rule. 7. Merged causes where one of the causes is undetermined in nature (act of God) - Anderson v. MN St. Paul & Slt. St. Marie RR Fire started in defendant's engine in August and smoldered until October. It then merged with a fire of unknown cause and destroyed the plaintiff's property. (1) This case is distinguished from Landers in that one of the causes is of unknown origin. (2) One party will get a lucky break (a) If court says a but for cause is required, plaintiff loses (his property is likely to have been destroyed anyway by the fire of unknown cause (rule in Cook's case: if fire combines with one of unknown origin and that fire is of superior force, then the defendant cannot be held liable.) (b) If court say that if the defendant's fire was a substantial factor, plaintiff recovers for what otherwise would have been an Act of God (who is not subject to personal jurisdiction in this jurisdiction) 8. Exceptions to strict but-for cause analysis: Dillon v. Twin States Gas & Electrical Co. a. The defendant utility maintained uninsulated wires across a bridge which was habitually climbed by boys in the area. Dillon, a 14 year old boy, lost his balance, and while he was leaning out, he grabbed the defendant's wire and was electrocuted. b. While conceding that the utility may have been negligent carrying electricity through an uninsulated wire across the bridge and that it was the but-for cause of the boy's death, the court hypothesizes what would have happened had the wire not been there. It reasons that he would have fallen to the deck of the bridge, and the fall would have either killed or maimed him. Consequently, because of the wire, he only lost a second or two of life. Thus, he was only damaged for those extra 2 seconds of life he lost. Accordingly, his damages would have been trivial. The court looks to see what damages the decedent would have suffered were it not for the defendant's negligence, and it concludes he would have been severely injured anyway. Accordingly, the plaintiff cannot show he was damages in any significant way because of the defendant's negligence, and so his claim must fail. (The damages he stood to receive were either nothing or the difference between death and a serious injured state (not much at all.)). c. The only negligence the court cites was putting up uninsulated high voltage wires. Other possible theories of negligence (1) Attractive nuisance (they would be suing the party for leaving the bridge in such a condition that boys were tempted to climb it. (2) Failure to insulate the wires 9. Factual uncertainty over the true cause: Summers v. Tice a. Plaintiff was a part of a 3 man quail hunting party. While separated from the plaintiff, the 2 defendants shot at covey which Tice had flushed out and which flew between the defendants and the plaintiff. Both defendants were using the same type of ammunition. Plaintiff was hit by shot from one of the guns, but it was unclear from which gun the injuring shot was fired (in other words, which one of the defendants shot the plaintiff). The trial court found that the defendants were negligent in shooting their shotguns and that the plaintiff was not contributorily negligent. b. It was not possible to pinpoint which defendant caused the injury. The injury was not indivisible because either defendant alone could have caused the injury. c. Under normal BOP rules, since the plaintiff must prove cause in fact, the defendants would win because the plaintiff cannot make out a prima facie case. The chances are exactly 50/50 that one of the defendants was the actual cause, but the plaintiff must prove that it was at least 51% likely that one of them was the cause. (preponderance of the evidence) d. The court resolves this problem by invoking a special rule: it shifts the BOP to the defendants after the plaintiff shows that they were both negligent to show that one of them was not the actual cause. [Again, the court prefers to find for innocent plaintiffs over negligent defendants when other things are equal.] e. Both end up being liable even though we are certain that one of them did not cause the plaintiff's injuries, and therefore is not responsible. Is this fair? Yes- Pretty negligent to fire a gun in the direction of another person. - Non-causal defendant rendered plaintiff incapable of proving that the other defendant was the cause in fact due to his negligence. f. Suppose the court found a potential third party who could have also caused the injury. Could Summers be distinguished? - Probably not. Though the probabilities are no longer 50/50, it would still be more likely than not that the defendants were responsible for Summers's injury, and therefore he is entitled to have the CIF burden shifted to the defendants. 10. Zelenak's matrix 2 defendants 1 defendant, 1 natural cause Merged causes Landers Anderson One cause but uncertain Summers Herskovites as to which it was 11. Herskovits v. Group Health Cooperative a. This wrongful death action was filed against GHC for failing to make a timely diagnosis of cancer in the decedent. Because the decedent's cancer was not diagnosed earlier, his 5 year life expectancy decreased from 39% to 25%. He dies within 5 years, and the estate sues. The trial court granted summary judgment after reasoning that more likely than not (81%) that malpractice was not the cause in fact of the plaintiff's death. b. The WA S.Ct. reverses and allows the case to go to trial. (1) If this case is reasoned similar to Summers in finding that the defendant's negligence obscured the causal issue, then the decision is poorly reasoned: the obscuring of the cause in fact has not deprived the decedent of any right. He cannot sue nature. (2) Majority opinion: The plaintiff might be able to prove that without negligence, he might have lived 4 years, while with negligence he would have lived for three years. The remedy would then be to compensate him for the year of life he lost. (3) Concurring opinion uses the minority rule: Lost chance analysis. Total recovery = $1,000,000 value of plaintiff's life Expected value = (.39)(1,000,000) Received value = (.25)(1,000,000) Damages = $140,000 for his lost chances. However, lost chance analysis works better when the plaintiff is still alive. c. Majority rule: All or nothing 50% test (1) If it was more than 50% likely that the defendant's negligence was the cause in fact, then liability is imposed. (2) If it was not more than 50% likely that the defendant's negligence was the cause in fact, then liability is not imposed. Hyp: A single defendant who has caused much injury to a large group of plaintiffs (1000 people): The defendant gets off because none of them can prove that because of the defendant's negligence that they had a chance of death exceeding 51%. 1000 plaintiffs suing over a drug suspected of causing cancer in them 700- Would have gotten cancer anyway 300- Drug was a but-for cause of their cancer But, since the individuals for whom the drug was a but for cause cannot be identified, the defendant stands to pay nothing. However, this seems unfair. A better result would be to pay 30% of $1,000,000 (life value) to each plaintiff. H. Proximate cause A. Proximate cause is basically legally relevant causation. It is basically a policy decision by the courts concerning where the causality chain should be cut off rather than a logical element. Thus, it is possible that the defendant could have been negligent and to have been the cause in fact of the plaintiff's harm, but for reasons of policy, liability should not be imposed, for otherwise the chain of causality would be too long and the negligence too remote. B. Competing proximate cause analyses: Direct cause vs. Foreseeability analysis (risk rule). 1. Direct cause: Polemis a. Gasoline was stored in the hold of hold of the plaintiff's ship. The gasoline leaked and the hold filled with gasoline vapor. While in port, the defendant negligently knocked planks into the hold. The expected harm was mechanical, but the planks produced a spark which ignited the gasoline, a totally different harm from that which was foreseen. b. Question: Is liability limited to reasonably expected harms or expanded to include all harm, foreseeable or not? c. [If this were negligence per se, and the statute violated was intended to protect people from getting bumped on the head, there would be no liability because the resulting class of harm was not the type intended to be prevented.] d. Direct cause rule: Once negligence is shown, then if the defendant could foresee any harm resulting from his negligence, then he is liable for all ensuing harm, even those harms which are unforeseeable, but so long as the harm was not too remote. "The proximate cause of an injury is that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces an injury, and without which the injury would not have occurred." e. Does Polemis do away with proximate cause analysis? NO- It does reject class of harm theory, but it substitutes in its place direct causation (a particularly vague test.) 2. Foreseeability analysis (Risk rule): Wagon Mound a. The plaintiff was the owner of a timber wharf, and the defendant was the charterer of the Wagon Mound (an oil burning vessel) b. The defendant negligently allowed a large amount of oil to spill into the bay, and it congealed around the defendant's dock (This damage was foreseeable). The defendant had some welding being performed on his dock. The plaintiff asked Caltex oil if it was safe to continue welding, and Caltex gave its assurances of safety, stating that oil on water cannot reach combustion temperature. However, under the oil there was a piece of debris floating. On it was a wad of cotton. Molten metal dripped on it and set it on fire. The burning cotton then set the oil on fire, resulting in severe damage to the wharf. c. The trial court that the defendant did not and could not have reasonably foreseen that the oil would catch fire. But since some damage was foreseeable (congealed oil in the boat slips), the direct causation test from Polemis applied. The court thus imposed liability for the fire damage on the plaintiff. d. On appeal, the trial court's decision was reversed. The court reviewed several cases that appeared to be inconsistent with Polemis. Scholarly theories of causation appear to have distracted the Polemis court. Prior to Polemis, the courts imposed the same damages for breach of contract and tort. In Hadley v. Baxendale, a contract case decided before Polemis, the plaintiff pleaded tort and breach of contract in the alternative. The court would not have imposed liability for unforeseeable damages in breach of contract had they pursued such damages. Polemis did not cite this case. Polemis had been weakened in later cases for its scant and terse discussion. The rule it lays down has been criticized as manifestly unjust in that it holds persons liable for all harm foreseen and unforeseen as a result of negligence that causes some foreseeable harm, so long as the unforeseen harm can be deemed direct. It clashes with the principle of civil liability that a person is responsible for the probable consequences of his acts. Persons are responsible for the foreseeable consequences of their acts because of the reasonable person standard. Foreseeability of harm is a good liability limiting device. e. The court substitutes the direct cause rule for the reasonable foreseeability analysis. Liability cannot be evaluated acontextually from the damage caused. In determining liability for unforeseeable damages, it is irrelevant that he is liable for foreseeable damages. f. Reasonable foreseeability analysis (risk rule) : a defendant is liable only for those harms which are a reasonably foreseeable consequence of his negligence. g. Rationale for the opposite result: Under the court's ruling, an innocent plaintiff is forced to bear the costs resulting from defendant's trivial negligence. As for who should bear the loss ceteris paribus, the defendant should bear it. h. Policy arguments: (1) Polemis encourages excessive overcautiousness; nobody would do anything for fear they would be liable for some unforeseen harm caused by some negligent act they perform. (2) If the fault does not relate to the harm, then there is no connection, and imposing liability dilutes impact and meaningfulness of fault. Fault becomes irrelevant. 3. Circumventing Polemis: Palsgraf v. Long Island Railroad a. [A Judge Cardozo special]. The plaintiff was standing on the defendant's platform waiting for a train. A train stopped, and two men rushed to get on. The first made it, but the second made it only when the train started to move, and he needed to be helped on. While he was being helped on, he dropped his package onto the tracks. The package contained fireworks, and upon contact with the ground the package exploded. The explosion knocked down some scales and injured the plaintiff. b. 1st argument: If this were an intentional tort, plaintiff would lose. Liability for negligent torts can be no higher than that required for intentional torts. Accordingly, he finds no liability. c. 2d argument: Pays lip service to direct cause test in Polemis, but he distinguishes between negligence with respect to whom and what interests. Was the defendant negligent to her? In answering that, did the defendant invade a significant interest in property of hers? NO. There is no such thing as "negligence in the air." The defendant did invade an insignificant interest and that resulted in unforeseeable harm, but that invasion was not negligent. Cardozo goes out of his way to say that this is case turns on negligence and not proximate cause. He thus can avoid having to deal directly with Polemis, which was the rule in NY at the time. Foreseeability of the risk vs. Foreseeability as to the plaintiff. d. Cardozo's analysis is similar to negligence per se analysis (class of persons protected/class of harms prevented) e. [Her theory of negligence should have been that the scales were improperly fixed to the platform. She might have had a better chance as proving negligence towards her under that theory.] - It is important to think hard about your theory of negligence. What exactly did the defendant do wrong? Look for those theories which give you the proximate cause you need along with cause in fact and negligence. f. Negligence towards the plaintiff remained the law in NY for a short time after Palsgraf. Foreseeability analysis (Risk rule) applies to determine the persons within the risk. Once the plaintiff is in the risk and some harm was foreseeable, then Polemis applies, and the defendant is liable for directly caused hard, foreseen and unforeseen. If there is no harm to the plaintiff, then there is no negligence as to the plaintiff and under Palsgraf, the plaintiff loses. g. Under Polemis, if you are negligent towards anyone, then the direct cause requirement is satisfied. 4. Why spend time discussing both these rules? It is not clear that either is the dominant rule in the US. In no jurisdiction is either completely the law. It is usually unclear which rule applies. 5. Hughes v. Lord Advocate: Applying Polemis with a vengeance. a. Defendant was a municipality whose employees left a manhole open. The plaintiff was a boy burned shortly after crawling in the manhole by ignited kerosene vapor from a lamp that had fallen into the manhole. b. The court found that the burning was foreseeable and thus in the risk, but the explosion was not, and thus outside the risk. c. At what level of generality do we describe the harm? The court concluded that the proper level of generality is the harm from burning. "This accident was caused by a known source of danger, but caused in a way which could not have been foreseen...[and] that [should afford] no defense." An explosion was just one of the ways that burning could have been caused by a defective kerosene lamp. 6. Restatement 435(1) Pg 212 "If the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable." - Extent of harm: irrelevant - Manner of harm: irrelevant - General nature of the harm: RELEVANT This rule is consistent with Hughes: choose the broader class of harm of "burning" in lieu of more narrow class of harm of "explosion". Unfortunately, nothing as a matter logic tells us what the proper level of generality should be. It may come down to intuition, common sense, and possible who can file the first brief defining the class of harm. 7. Doughty v. Turner Manufacturing a. Defendant maintained two vats of molten liquid at 800 degrees C for his manufacturing process. The vats were covered by lids made of asbestos and cement. One of the workers knocked a cover into one of the vats, and the lid sank without splashing any molten liquid. However, the heat caused the material in the lid to undergo a chemical reaction producing a burst of water vapor. The water vapor erupted, sending molten liquid onto the plaintiff. b. On appeal, the court reasoned that though splashes were a reasonably foreseeable consequence of a falling cover, eruption due to the obscure chemical reaction was not foreseeable. Though the plaintiff argues that the eruption was merely a "variant of the foreseeable" and therefore liability should be imposed, the court disagrees by saying such a holding would be unrealistic. It therefore affirmed the judgment for the defendant. c. [This case is similar to Hughes in that it has to do with how broadly or narrowly the class of harm is defined. By narrowing the scope of harm to splashes, as the only foreseeable harm, the court essentially makes it impossible for the plaintiff to prove proximate cause. However, had the court described the general nature of harm as the possibility that molten liquid would be thrown up on the plaintiff causing burns, either by splash or eruption, then the court might have been able to find the defendant liable by holding that the general nature of harm was foreseeable. Indeed, the plaintiff essentially tried to argue this, but the court was unconvinced.] 8. Thin skull rule: If you are negligent in any way which would have resulted in injury to a normal person, but the person had a special susceptibility to injury (eggshell skull), you are liable for all injuries sustained by the plaintiff. Essentially, the rule says that tortfeasors take their victims as they find them. - The thin skull rule can be viewed as consistent with the risk rule if you consider that the rule merely broadens the definition of the class of harm (Broad: head injury/Narrow: death from a caved in skull). Otherwise, the thin skull rule appears to be an exception to the risk rule. - The thin skull rule seems to be an unfair rule. The plaintiff's thin skull ends up being the defendant's problem. It is not the defendant's fault that the plaintiff has a thin skull. Should not damages be limited by fault as well as the harm done? Additionally, the life of a plaintiff with a thin skull is not worth as much as the life of a normal person without the same condition, so the thin skilled plaintiff has not lost much. 9. Fire cases a. Defendant negligently causes a fire. Some damages are foreseeable, but the damage expands far beyond what was foreseeable. For instance, the fire may destroy adjacent property. According to the fire rule, the defendant ought to be liable, since the ensuing damage was a direct cause of the defendant's negligence (Polemis). b. The counterargument to this rule would be to argue that under Palsgraf, the defendant should not be liable for the damage to the adjacent property since the defendant was negligent towards the first plaintiff only and not towards the second defendant. (Draw an exclusive class of persons subject to harm rather than a broad class.) 10. Applying and qualifying the direct cause rule a. In practice, the direct cause rule comes down to a question of whether after the defendant's negligent act, does another person commit a wrongful act that becomes an "efficient intervening cause" that may cut off the 1st tortfeasor's liability. b. Foreseeability and liability for the intentional/reckless/wilful/wanton intervening causes of others. (1) Watson v. KY and IN Bridge and Railroad (a) A man throws a match into a derailed gasoline car, causing it to explode and injure the plaintiff. (b) The court holds that as a matter of law, you are not required to foresee the intentional torts of others, and accordingly, you are not liable for the ensuing damages. (2) Walker v. Burgdorf (a) Burgdorf was draining gas that had been contaminated with water from a gas tank onto the ground. Burgdorf observed Shaw who was smoking and he asked the man not to smoke in such a close proximity to the gasoline. Shaw defiantly rejoined that Gas and water would not burn, and to prove his point he threw a match into the mixture. The match set the gasoline on fire, destroying the plaintiff's truck. (b) The court held Shaw's act was not a supervening cause, and Burgdorf was liable for the damages. The court invoked the principle of concurrent negligence and held that the negligence of both persons contributed to the plaintiff's harm. Even though Burgdorf could not have foreseen Shaw's reckless act, the danger that gasoline drained upon the ground might be ignited from some source was perfectly obvious. (3) Distinguishing the two cases (a) Intentional torts vs. reckless (negligent) torts As far as who should bear the loss, the person with the most fault ought to have to bear it. This would mean since Shaw acted recklessly, he ought to have to bear the loss. However, if Shaw is judgment proof, the next culpable tortfeasor in line is Burgdorf, and between an innocent plaintiff and a negligent defendant, the court is more likely than not to make the negligent party bear the loss. But is all are solvent, Shaw ends up bearing the loss. (b) Burgdorf could always implead Shaw as a joint and several tortfeasor and require that he make a contribution towards the plaintiff's damages. He also might seek indemnification from Shaw. (c) Walker appears to be applying a hybrid proximate cause analysis (foreseeability of intervening cause) The general nature of the intervening cause must be foreseeable. If you spill gas, it is possible that something could ignite it causing damage. (4) Foreseeability of intervening cause: Was it foreseeable that the general nature of the intervening cause might occur? (5) With respect to Watson, though you are never required to anticipate the intentional wrongful acts of others, that is not enough to cut off liability. The unforseeability of the intentional torts of others no longer eliminates proximate cause. [Hotel security cases: the defendant is almost always held liable.] b. General nature of the harm vs. Specific cause of harm (1) Deridian v. Felix Contracting Corp (a) Felix was installing a gas main under a roadway. Bayside was hired to seal the main. Felix told Deridian, a Bayside employee, to set up the enamel near the oncoming traffic. Deridian did so, but under protest. The place where Felix had him set up the enamel pot was unprotected from oncoming traffic. An epileptic driver had a seizure, and his car careened out of control into the worksite, knocking over the enamel pot, seriously injuring the plaintiff. (b) The plaintiff pressed three theories of negligence: No physical barricade (dirt pile or truck), insufficient number of flagmen, and no warning signs. The last two could not be causes in fact of an epileptic's car careening into the work area. (c) Test: Was the general nature of the harm caused by the intervening event a foreseeable consequence of the defendant's negligent act of not providing a barricade? Instead of keying on the particular manner of the harm (an epileptic careening out of control), the court focuses on the general nature of the harm (a car entering the work area at high speed) and finds that the general nature of the intervening cause was foreseeable. But for not providing a barricade this accident probably would not have happened. The court refuses to break the harm down into particular manners. [Similar reasoning should be used for proximate cause analysis.] (2) Pacific T&T case: Plaintiff was using one of the defendant's phone booths, and this phone booth happened to be situated near a street. A car left the roadway and collided with the phone booth, injuring the plaintiff. Plaintiff argued that this sort of harm was foreseeable since the phone booth was so close to the street and that the phone booth was so designed that it was difficult for the occupant to exit in an emergency. The court held the defendant liable. [Reagan held up this case as ridiculous.] (3) Sheehan v. NYC (a) A city bus was stopped in a lane of traffic, a violation of a local ordinance (negligence per se). A city sanitation truck with defective brakes collided with the rear end of the bus. The jury decided against the transit authority and the city, but the judge set aside the verdict against the transit authority. (b) As a matter of law, proximate cause was absent. Class of harm prevented by ordinance (1) Guard against rear end collisions (favors plaintiff) (2) Protect persons boarding and deboarding (favors defendant) (3) Prevent traffic obstructions (no safety purpose) The court concludes that though the manner of harm was within the range of the foreseeable, there was no proximate cause. [This case is in contrast to Deridian where the manner of harm was deemed to be irrelevant; only the general nature of the harm mattered in the analysis.] (c) Intervening causes (1) Concurring causes: J&S liability (2) Supervening causes: Only the second tortfeasor is liable. c. Casting the class of harm in narrow terms (1) Ventricelli v. Kinney System Rent a Car (a) Plaintiff leased a car from the defendant. The car had a defective trunk lid which would pop up from time to time. The plaintiff went behind the car to close the trunk lid. The car behind him lurched forward and seriously injured the plaintiff. The plaintiff sues Kinney for damages. (b) The trial court held Kinney liable, but the court of appeals reverses. The court invoked position of the risk analysis. The plaintiff was standing somewhere he might have been standing anyway. The court thus describes the class of harm in extremely narrow terms. Narrow: Plaintiff might get hit while fixing the trunk lid. Broad: Plaintiff might get hit while fixing the trunk lid while standing in a parking place. This court bucks the usual practice of broadly describing the class of harm by opting for a narrow description and decides that it was not foreseeable. It argues that he was in a relative place of safety at the time (as opposed to being on the shoulder of a superhighway), and that negates proximate cause. (c) Judge Fuchsberg dissents: he would hold opted for the broad description of the class of harm and held that it was foreseeable. (2) Copple v. Warner: Collision between plaintiff and defendant. Plaintiff not injured. While at the scene, another car comes along, crosses lanes, and collides with plaintiff's car injuring her. The court holds that it was not foreseeable that someone would cross the center line and crash (narrow description of harm/no position of increased risk with regard to this injury) [Was it foreseeable that the general type of harm might result? Probably.] (3) What is the appeal of the narrow description? (a) 2d defendant's action was totally bizarre. (b) Wrongfulness of 2d defendant's act: it is not fair to force his wrongfulness onto the 1st defendant. *** Most of the time when there is a close proximate cause question, who wins depends on how broadly the court describes the class of harm (manner vs. general nature). If you can get the court to accept your description of the class of harm, you have a good chance of winning, especially if you can get the first word in. d. Position of risk/zone of danger analysis (1) Marshall v. Nugent: Snowy December day in NH; the road was packed with snow and ice. As the plaintiff's vehicle was approaching the apex of a hill, the defendant's truck came over the hill straddling the center line, and it forced the plaintiff off the road. While the defendant was attempting to get the plaintiff's car back on the road, the plaintiff went out on the road to warn other drivers of the defendant's truck. Another truck swerved to avoid the defendant's truck hitting the plaintiff. Plaintiff sues the first truck driver. Observations (a) The court adopts risk analysis. The plaintiff was put into a position of high risk by the defendant's negligence. [The defendant's negligence created a zone of danger whereby the plaintiff was put at increased risk.] The court held the defendant liable. (b) 1st observation: If this accident had occurred 5 miles down the road, there would be no proximate cause (plaintiff no longer within zone of danger/increased risk created by the defendant.) (c) 2nd observation: Relationship to the rescue doctrine- any negligence creates a situation inviting rescue and potential injury to a rescuer even though rescue is not foreseeable. Rescue rule not needed: - The second defendant was also negligent. The plaintiff was within the primary risk. It was foreseeable that a flagman would be needed. (d) 3rd observation: This is a well- reasoned case, according to Zelenak. - Magic words do not solve cases. Hypothetical in (a) Gives us reasoning and analysis, not just personal opinion. e. Hypothetical on page 226: Boys steal the defendant's car. Defendant has negligently left his keys in the ignition. 100 miles away the boys run over a pedestrian killing him. Is the defendant car owner liable? (1) Arguments for the defendant (a) Termination of the risk: Accident happened too far away (b) Narrow the class of harm: define it narrowly and conclude that it was not foreseeable. (c) To whom is leaving the keys in the ignition being negligent? Only the driver. (2) Plaintiff's argument (a) Paint the class of harm in broad terms (general nature of the harm). Are thieves by nature more dangerous drivers? (3) Termination of the risk (a) Getaway period over (b) Sooner or later, thief will get the car. Special risk created by the defendant's negligence is voided after a decent interval. f. Lynch v. Fisher (1) Defendant left truck parked on the right side of the highway, and Gunter was injured when he collided with it. The plaintiff stopped and helped Gunter out of the car. After finding Gunter's gun, the plaintiff hands it to Gunter. Deranged from shock, Gunter fires the gun at the plaintiff, injuring him. Plaintiff sued the owner of the truck. (2) Not an intentional tort- does not cut off the defendant's liability even if it is not foreseeable (The court does not apply foreseeability analysis. Under foreseeability analysis, it will depend on how broadly the class of harm is described. - Possibility of rescuer injury -> Defendant loses. - Possibility of intentional tort to rescuer -> Defendant wins. (3) The rescue doctrine is inapplicable: the rescue is over, and the plaintiff was not injured during the course of the rescue. g. Second injury doctrine (1) The plaintiff is injured by the defendant's negligence, and the plaintiff is given substandard medical care that aggravates the injury. Established law: The original defendant is liable for the entire injury, including the aggravation. Negligent medical care is deemed to be foreseeable. (2) This rule is similar to the thin skull rule: it avoids the need for the jury to apportion damages according to the amount of injury the defendant actually causes. I. Defenses to negligent conduct 1. Contributory negligence a. Contributory negligence is the failure to exercise due care for your own safety. Where the classic implementation is still used, a finding of contributory negligence completely bars the plaintiff from recovering. b. Butterfield v. Forester: Defendant negligently left several poles across a roadway, and the poles were visible from 100 yards distant. The plaintiff came along riding at full gallop, ran into the poles, and was seriously injured. The court bars the plaintiff from recovering by holding that the accident was partly the plaintiff's own fault. He failed to exercise due care for his own safety (contributorily negligent). (This case is considered to be the first contributory negligence case.) Three questions (1) If both are negligent, does the fault principle justify making the plaintiff bear the entire cost of his own injuries? NO. The remedy is not apportioned according to fault. Contributory negligence bars recovery completely. The regime of comparative negligence is more in line with the fault principle in that it apportions liability according to the fault of each party. (2) Are there any other fault analyses that would justify contributory negligence? (a) Stinett v. Buchele where there is no negligence on the part of the defendant. (b) Polemis brand direct cause? (c) Supervening causes? (d) If neither are at fault, the loss should stay where it was incurred and the judicial machinery should not be cranked up. We shift liability only if one party is more at fault than the other. (3) Proximate cause question: suppose an innocent child is injured by the plaintiff's horse falling, and the child sued both Butterfield and Forester Forester: Was it reasonably foreseeable that some nut riding at full gallop would fall over the pole? NO Butterfield: Was the rider negligent? [I would say so. Riding at full gallop can be dangerous to people in the roadway.] b. Borland v. Gillespie: Defendant negligently collides with the plaintiff's car and then flees. Though her car is damaged, the plaintiff attempts to pursue the defendant to get his license plate. She loses control of her vehicle and collides with a tree. The court holds that there was not proximate cause, and so she must lose. But, the court could have applied contributory negligence and arrived at the same result. (However, if NE were a comparative negligence state, it would matter which analysis the court used. Under comparative negligence she may have gotten some recovery, but under the proximate cause analysis, she would be completely barred from recovery. c. Doctrines to ameliorate the harsh result of the contributory negligence rule. (1) Last clear chance/discoverable peril rule: If the defendant had the last clear chance to avoid injuring the plaintiff, then the plaintiff may recover despite his own contributory negligence. This rule applies when a plaintiff is rendered helpless, even through his own contributory negligence, and the defendant is negligent after he should have detected the plaintiff. Accordingly, the defendant is liable for failing to detect the plaintiff and taking action to save his life. (2) Discovered peril doctrine: Similar to last clear chance, but the defendant's duty accrues only after he actually discovers the helpless plaintiff. - Why these two rules? - Still stuck in the liability/no liability mindset- This was an early ameliorative rule. - Does not fit easily under proximate cause analysis. If this were a proximate cause doctrine, we would want to know about foreseeability of the defendant's actions (train coming). LCC does not ask this question. *** However, if the plaintiff is not helpless and is able to remove himself from the impending danger, and the defendant has not actually discovered the plaintiff, LCC does not apply. BUT IF the defendant discovers the plaintiff in time but he fails to take action to avoid hitting the plaintiff, then the plaintiff may recover despite his own inattentiveness. (3) Wilful/wanton misconduct (the culpability ladder): If the culpabilities of both parties are equal, then they offset, but if the defendant's culpability is higher than the plaintiff's, then the plaintiff may recover. (4) Policy consideration: Duty upon the defendant to foresee the plaintiff's contributory negligence and to protect against it. To allow the defendant to invoke contributory negligence would in effect nullify the duty of the defendant to exercise due care for the plaintiff's safety. Bexiga v. Havir Manufacturing (a) The plaintiff's son was injured while operating a machine press made by the defendant. The machine had no safety devices. An expert testified that two safety devises could have prevented the accident (guard rail, separated buttons). The defendant plead contributory negligence. (b) The court held that the defendant could not raise the defense, for if it could, then the duty upon the defendant to make safe products would be illusory. They are under a duty to foresee the plaintiff's own contributory negligence (through the fatigue of repetitive motion) and to design their products so as to prevent the plaintiff from injuring himself. In order to make the duty meaningful, we must deny the defense of contributory negligence. - Higher level of culpability: Cost cutting at the expense of safety. - How to develop a rule that minimizes the losses of hands: the parties will respond to legal rules - The plaintiff is already deterred from being unsafe: if he is not safe, he loses his hand. - Company: They lose a worker if he loses a hand, but the worker is probably replaceable. However, by imposing liability on the manufacturer as opposed to the operating company, we can better protect against machine operators losing their hands. (c) Bexiga was probably a suit in addition to Workers Comp. THINK!!! MULTIPLE CAUSES OF ACTION AND SOURCES OF LIABILITY. (d) Distilled Bexiga rule: If it is reasonable to impose a duty on the defendant to protect the plaintiff against his own contributory negligence, then contributory negligence is not a defense, for allowing the defense would negate the duty we just decided to impose. Rue v. State Dept. of Highways (a) Plaintiff accidentally drove off the side of the highway. She struck a dangerous rut and flipped over. The question was whether or not it was foreseeable that she would flip if she drove off the highway. (b) 2 arguments (1) NO: not foreseeable (prox cause/Wagon Mound) (2) NO: Bexiga principle. If you were arguing for the state, you would cast the class of harm broadly (not necessarily just car flip, but any other damage as well.) (???????) Warner v. Kiowa City Hospital (a) Plaintiff had herself admitted to the hospital so they would protect her from herself. She ends up injuring herself because the staff does not have her restrained. After she sues, the hospital has the gaul to plead contributory negligence. The court applies Bexiga and the plaintiff wins: duty to protect the plaintiff from her own contributory negligence. 2 features of the Bexiga type case: (a) The risks are non-reciprocal (Defendant imposes risks on plaintiff, but plaintiff imposes no risks on defendant.) (b) The defendant has notice of the plaintiff's special vulnerability. LeRoy Fibre v. CM&S RR (a) This was the case of the "stacked flax near the tracks." The plaintiff piles flax on his own property but near some railroad tracks. A train belonging to the defendant comes along, throws off sparks, and sets the flax on fire destroying it. The plaintiff sues, and the defendant pleads contributory negligence. (b) The court finds for the plaintiff: to require him to look out for the negligence of others on his own land would effectively deprive him of his property rights. Contributory negligence is not available as a defense under these circumstances. (c) Efficiency vs. fairness: more economic analysis in the world of tort liability: The Coase theorem. - Suppose it would cost LRF less to rent a warehouse for his flax than it would for the RR to pay damages. Then LRF becomes the cheapest cost avoider, and it would be economically inefficient to impose liability of the RR. Imposing contributory negligence would bring about the economically efficient result. - However, even though the court reaches the inefficient result, the parties can reach efficiency through bargaining or flat out bribery. The RR would simply offer to pay LRF a dollar amount between the cost of renting a warehouse but less than the cost of damages in order to persuade him to move the flax away from the tracks. As long as the parties can bargain costlessly, then the efficient result will be reached despite the inefficient placement of liability. *** However, efficiency is not the only concern in the imposition of liability. Fairness also plays a role (in this case, LRF's property rights). *** Also, transaction costs are often high, so the court had better get it right in the first place. Impose liability on the cheapest cost avoider if efficiency is all you are after. *** The Hand formula cannot be applied until you have made a primary determination of property rights. $2000 (cost of warehouse < $15000 -> impose contributory negligence $2000 (cost of warehouse) not< $0 -> do not impose contributory negligence (Property rights serve to negate any costs the RR might bear. Property rights trump the costs of others.) 2. Comparative negligence a. Comparative negligence is a reformed version of contributory negligence where the plaintiff is permitted to recover full damages minus the percentage of those damages attributable to his own fault. Two forms of contributory negligence (1) Pure comparative negligence: Recovery = (damages)(percentage of defendant's fault) = (damages)(100%-% of plaintiff's fault) The NY Comparative negligence statute adopts this formula. (2) Modified comparative negligence If the plaintiff's fault is below X% of the total negligence, then apply the comparative negligence formula above. However, if plaintiff's negligence exceeds X%, the apply old-fashioned contributory negligence and bar recovery. Split between those jurisdictions fixing X at 50% and those fixing it at 49.999% WI's comparative negligence statute is an example of modified comparative negligence. b. Brittain v. Booth: Plaintiff, an employee of Hartsook, entered an excavation which he knew not to be sloped or shored up. It caved in on him and he suffered severe injuries. The jury found that the supervising employee was negligent in sending or permitting the plaintiff to enter the excavation, but it also felt that the plaintiff was partly to blame. It thus set the plaintiff's fault at 49% and fixed total damages at $10,000. The court entered judgment for $5,100. That determination was affirmed upon appeal. [This is a case where the jury probably played with the percentage of the plaintiff's fault in order to make sure he got at least something despite his fault. As it turns out, WY was a modified comparative negligence with a cut off of 50% of the fault, so it makes sense why the jury chose the percentage they did.] c. Hypothetical: Two drivers collide head on: both are negligent and contributorily negligent. A- $100 damages/60% of the fault B- $50 damages/40% of the fault. A recovers $40 from B B recovers $30 from A These figures are NOT TO BE OFFSET: The insurance companies will be the ones paying, not the parties involved, so an offset would end up helping the insurance companies at the expense of the parties. d. Wassel v. Adams: Rape of sailor's wife in a motel room by a stronger. She charges the motel with negligence and they counter with comparative negligence. The jury allocates 97% of the fault to the plaintiff (for opening the door at 1 AM without first trying to verify who was at the door). Both parties are but for causes, so it does not make much sense to use relative causation. Rather, we should use relative fault and see if one was more at fault than the other. Judge Poser's proposal: Use Hand formula and impose liability on the cheapest cost avoider. In this case, the plaintiff turns out to be in excess of 90% at fault. - Question: was it reasonable for the jury to conclude the defendant's negligence was 1/32d of the plaintiff's? Well, the theory of negligence was that the motel provided no security guard and gave her no warning (not a cause in fact given that she probably would have opened the door anyway thinking it was her husband)). A jury could have found her 32 times as negligent. - Problem: can we put a $ value on the cost of being smarter? This does not work very well. It's not amenable to analysis in economic terms. Carelessness does not lend itself well to the hand formula. e. Survival of the contributory negligence ameliorative doctrine in a regime of comparative negligence. (1) LCC: Majority rule: LCC does NOT survive to comparative negligence. It is no longer necessary with the sliding scale set up by comparative negligence. It was merely a way of mitigating the harshness of the contributory negligence rule. Problem: Irrational results from states with modified comparative negligence formula: It would be possible with LCC that a plaintiff whose negligence is below 50% receives a partial recovery while a plaintiff whose negligence exceeds 50% but where the defendant had the LCC to avoid the injury could end up with full recovery. (2) Willul/wanton misconduct: Split (a) Some jurisdictions hold that a plaintiff may make a full recovery if the defendant has engaged in wilful/wanton misconduct. (b) Others hold that comparative negligence still applies, only the defendant's fault will be in the 90% range because of his wilful misconduct. (3) Bexiga: Bexiga survives in comparative negligence, but this may not be right. No nullification of the duty on the defendant. In the NJ case Suter v. San Angelo, the court upheld Bexiga. The fault was split 50/50, and so the court applied Bexiga. f. Seat belt defenses a. This defense arises in automobile injury cases where the defendant argues that some of the plaintiff's injuries were the result of not wearing a seat belt. b. In most states, the seat belt defense is not allowed. (1) Common law exclusion is some (2) Statutory in others: legislatures have either specified that violation of the seat belt statute is not negligence per se or have specified that it is not civilly negligent not to wear a seat belt. - The primary reasons for not permitting the defense lie in the harsh application of the contributory negligence rule. Courts and others have regarded it as unfair that a plaintiff should be barred from recovery simply because he was not wearing a seat belt. However, under a regime of comparative negligence, these reasons lose their force. c. A minority of states allow the defense; so in those jurisdictions where comparative negligence is the rule and the defense is allowed, the plaintiff's recovery is reduced for those injuries reasonably attributable to not wearing a seat belt. d. [See pages 20-23 in the supplement for a discussion of the seat belt defenses. 3. Assumption of the risk a. Assumption of the risk is a defense which states essentially that the plaintiff has rendered consent, either express (though contract) or implicit (by other actions), to relieve the defendant of liability for negligent conduct. b. Rehash of T.J. Hooper: Why was this not a case in contract? Since the parties could bargain relatively costlessly, why could the party contracting for the barge have bargained for the additional measure of safety of having a working radio on board? Well, there may have been relative inequalities of bargaining power as well as a lack of information and experience. It may not be reasonable to bargain for safety when other things have been bargained for. - Suppose they had bargained for safety, and the tug owner offered 2 contracts (a) $5 a mile without a radio (b) $6 a mile with a radio - If the promisee chose contract (a), the case would be over. He has assumed the risk associated with barging without a radio. If there is such a contract, it makes sense for the courts to enforce it. c. Voluntariness is a key feature of consent and assumption of the risk. Negligence is the key feature of contributory/comparative negligence. d. Express assumption of the risk (Contract) (1) Public policy and assumption of the risk: Tunkl v. Regents of UC (a) When the plaintiff entered the defendant's hospital for an emergency operation, she was required to sign a waiver releasing the hospital from liability for negligent and other wrongful acts committed by its employees. (b) Though the jury held the release to be valid, the App. Ct. stamps it violative of public policy. It argues that as a matter of public policy, hospitals should not be able to put their patients over a barrel and make them sign release forms in times of dire need. It is not reasonable to think she voluntarily signed. Hospitals simply should not require their patients to execute such releases: everyone may need to go into the hospital at some time. You are in an extremely vulnerable position when you are sick and in dire need of medical care. - Should patients be required to shop around for hospitals without negligence waivers, even if no other hospital in town has a waiver policy? The inequality of bargaining power situations where one party is more vulnerable than another is ripe for economic coercion. - Doctors and other health care providers are professionals that should be held to a high standard of care. As part of that standard of care, there should be duties upon these professionals which should not be able to be contracted away. [In my opinion, allowing an assumption of the risk defense here would turn the Hippocratic oath into an illusory promise.] (2) The limits of the public policy arguments: Ciofalo v. Vic Tanney Gyms (a) Plaintiff was a member of the defendant's health club. She fell near the edge of the defendant's swimming pool and sued the defendant for negligent maintenance of the area. The defendant moved for summary judgment based on a waiver the defendant had signed releasing the defendant from injuries due to the defendant's negligence. SJ was granted. (b) SJ was affirmed on appeal (1) Clear and express language (2) No special relationship-nature of the service (like common carriers) (3) No overriding public interest/duty to the public: Health clubs are not nearly as important and critical as hospitals. (4) [Contract fairly into] - The NY legislature overruled this decision by enacting a statute stamping as null and void release clauses absolving the owner of pools, gymnasiums, or other places of amusement of recreation from liability when the owner is compensated for use of the facilities. (3) The riskier the activity and the less the risk can be justified, the more likely the court will deem releases to be valid: Jones v. Dressel (a) Plaintiff entered into a contract with the defendant for use of his skydiving facilities and aircraft. Plaintiff was injured when one of the defendant's planes crashed shortly after takeoff. The contract included a waiver provision absolving the defendant from liability for negligence. The trial court granted summary judgment for the defendant, and the plaintiff appealed. The decision of the trial court was affirmed. (b) Distinguishing this case from the health club case (1) Health club: Shifting the responsibility for safety. It can be reasonable to require one to look out for his own safety in certain circumstances. (2) Plane: Eliminating responsibility for safety. Passengers cannot inspect the inner workings of the plane for defects. Indeed, may persons would not know how to spot defects even if they could examine the aircraft. (c) Skydiving is not such a critical and vital service as to justify not allowing exculpatory waivers, so a key characteristic of an adhesion contract is missing. (d) The court applied the same factors used in Tunkl and Ciofalo and concluded that the waiver provisions of the contract were valid. (e) It is not good public policy to allow relationships where the plaintiff cannot take steps towards his own safety and where the defendant has no responsibility to ensure safety or has no incentive to do so. This sort of situation encourages accidents. (4) Public athletic events almost always have waivers. e. Implied assumption of the risk (1) Touchstone: Does the plaintiff's conduct constitute consent to assume the risk? - The consent must be explicit and real, though it need not be express. The consent need not be contractual, so there is no need to find the consideration. So long as the consent is real and there is no overriding public policy against allowing assumption of the risk, the courts will allow the defense. (2) Rickey v. Boden (a) An elevator operator was climbing a spiral staircase with no outside railing in order to get up to the coffee room to take her break. She walks on the inside of the staircase where the stairs are narrower. She falls and sues the owner of the building, who pleads implied assumption of the risk. (b) The court decides against the plaintiff. It argues that it was reasonable for her to go somewhere else to get her coffee. She was not required to stay on the premises for her coffee break, and she could have easily left to find coffee elsewhere and avoided what was obviously a dangerous staircase. (c) Could this have been a contributory negligence case? (1) Contributory negligence involves fault and reasonableness (2) Assumption of the risk involves consent and voluntariness. In this case, the two are almost indistinguishable, but this is not always so. However, in this case the court's analysis resembles that used for contributory negligence. If this were a comparative negligence state, assumption of the risk offers the hope of a complete bar to recovery instead of a decrease of the award through an allocation of negligence. This appears to be a way around comparative negligence, but this area of the law is in a considerable state of flux. (3) Consent to risks during the course of employment: Siragusa v. Sweedish Hospital (a) Plaintiff worked as a nurse in the defendant's hospital. While standing in front of a sink behind a door with a hook attached to it, someone opened the door, and the hook stabbed her in the back. She sued the hospital for negligence, and the defendant pleaded assumption of the risk. The judge granted a directed verdict. (b) On appeal, the directed verdict was reversed. The plaintiff really did not have a choice but to encounter the risk. She had no choice but to stand there to do her job. The court was unwilling to hinge voluntariness on staying with her job or not. That is, they were unwilling to take her continuing to work for the hospital as the sign of consent indicative of her assumption of the risk. [Under contributory/comparative negligence analysis, she reasonably encountered the risk.] (c) The employer must make the job as safe as possible. Getting stabbed in the back by a hook is nit a reasonable risk that an employee should run the risk of while working. f. AR and sports: Risks that are inherent in the sport that occur without negligence on the defendant's part. (1) Sandy v. Stratten: Snowskiing (a) A novice skier runs over a bush obscured in the snow and is injured. the skier sues for negligence, and the defendant pleads assumption of the risk. (b) Distinction: (1) Encountering known risks of an inherently dangerous activity, and (2) Encountering risks made worse by the defendant's negligence. The plaintiff does not assume the risk of a hidden bush, as it is not an inherent risk in a well groomed slope. g. What does [implied] assumption of the risk mean? (1) Plaintiff unreasonably chose to encounter a known danger. (Rickey v. Boden). This interpretation is not fundamentally different from contributory negligence. (2) Defendant has a duty of care, but he has not breached, and therefore is not negligent. (Sunday v. Stratton). (3) Defendant owes no duty of care whatsoever. (Akins, Turcotte v. Fell) - (2) and (3) attack elements of the plaintiff's prima facie case, so strictly speaking AR under those interpretations in not an affirmative defense. h. Foul ball case: Akins v. Glen Falls City School Dst. (1) [If a plaintiff is hit by a foul ball while at a baseball park, he will almost always lose; what differs is the explanation. Never take a foul ball case [unless the plaintiff is willing to retain you on a billable hours basis.] (2) Plaintiff attended a baseball game on a field owned by the defendant. Plaintiff forewent a seat behind the backstop in favor of a seat on the baseline. He was hit in the eye by a sharp foul ball. He sued and won a $100,000 jury verdict on a 65/35 split on the negligence issue. (3) The court points out that before comparative negligence, cases involving plaintiffs injured by baseballs in baseball parks was handled under assumption of the risk, but since the advent of comparative negligence, the duty of the owner of a baseball park has not been defined. - The park owner is under no duty to screen the entire playing area. The majority rule requires a screened area - behind home plate, and enough screened seats must be provided for as many spectators who can reasonably be anticipated to desire screened seating. - When the owner has provided adequate screening behind home plate and adequate seating behind the screened area, he has met his duty of care and cannot be held liable for negligence. - Defendant actually met his duty of care by providing adequate screening. He was not required to screen the baseline, and the plaintiff assumed the risk of getting hit by sitting along the baseline. (4) It is not negligent to provide people with a somewhat dangerous but pleasurable activity. Some people may want to get a better view of the game by sitting in a non-screened area, but then they incur the risk of getting hit by a stray ball. It is not as much fun to watch a baseball game from behind the backstop, but it certainly is safer. (5) If the ball park owner (a) Puts up adequate screening behind home plate and other vulnerable areas, (b) Provides adequate seating in the protected area, and (c) Leaves unprotected seating for those who want it, Then the defendant has fulfilled his duty of care is accordingly not negligent. (6) NY's comparative negligence statute mentioned AR as well, so AR would have operated merely reduce and not eliminate the plaintiff's recovery. Sensing the right result would not be achieved by AR in this case, the court is forced to take a closer look at the duties involved in order to arrive at the correct result. Here, the court finds that the defendant was not negligent in the first place, so the plaintiff cannot recover at all. The advent of comparative negligence has meant that the courts now have to look a little closer at the duties involved in order to reach the correct result. They can no longer afford to be sloppy by labeling cases like this "assumption of the risk" and baring recovery. i. Horse racing case: Turcotte v. Fell (1) Plaintiff was a jockey racing in a horse race when he was thrown off his mount and permanently disabled. He charged the other riders with negligence by engaging in what is known as "rough riding" (Apparently, one of these riders veered in front of the plaintiff without leaving him enough room.). He proceeded under an ordinary negligence theory and under a negligence per se theory (regulation banning "rough riding"). (2) Before comparative negligence, this case would have been labeled "AR" and the plaintiff would have been denied recovery. Like Akins, the correct result would not be achieved if the case were labeled AR, because then the plaintiff would recover something when he ought not to recover anything. (3) The court decides against the plaintiff. This is a case where the defendant owed the plaintiff no duty of care in the first place. The defendant was negligent, but the plaintiff agreed to run the risk of foreseeable negligent acts, like rough riding, though not intentional torts. Consent to incur foreseeable negligence from others means that others owe you no duty to refrain from negligent conduct towards you. (4) In states with comparative negligence, it really matters whether you call something AR or CN. Not so in states retaining contributory negligence, where recovery is barred in either case. J. Special duties and standards of care that differ from the RPS. 1. Higher standards of care a. Professionals who are aware of certain risks but who fail to take steps to mitigate those risks: Blue Flame v. Van Hoose (1) Plaintiff was severely injured when he attempted to light his hot water heater and gas that had leaked exploded. Plaintiff detected no odor of gas, and the gas had not been odorized (the usual practice with certain types of gas that are normally odorless.). (2) The trial court instructed the jury on the RPS, and the jury found for the defendant, but on appeal, the court held that the gas company was under a higher standard of care, and it breached the higher standard by failing to odorize the gas as it should have. (3) Arguably, this was not the correct decision. The RPS already provides that if a person is endowed with certain knowledge, skills, and experience, then it is not reasonable not to use those endowments to avoid causing harm to others. These endowments can be labeled attendant circumstances (dangerous condition) and figured into the RPS. The RPS varies the amount of care required with the amount of danger. b. Common carriers: Posner v. Interstate Power (1) Plaintiff was a passenger on the defendant's bus. She was injured when the bus was involved in an accident. (2) The court holds that the company was under a duty not just to live up to the RPS, but additionally it was under a duty to render extreme care as a carrier of passengers for hire. Under extreme care, the defendant is liable for even slight negligence. This is a genuinely higher standard that stops just short of ensuring complete safety (SL). Once the plaintiff shows that she was injured while she was a passenger on the defendant's bus, the burden shifts to the defendant to prove itself non-negligent. (3) Slight negligence does not work well with the Hand formula. The Hand formula focuses on costs and not acts or states of mind per se. The burden of proof is shifted the defendant to prove non- negligence by using the Hand formula. Ties go to the plaintiff and not to the defendant in cases involving slight negligence. (4) Should there be a higher standard of care for bus drivers where the higher skills of the bus drivers are taken into account? (1) It could encourage companies to hire drivers with higher skills in order to avoid liability. (2) It could also encourage bus drivers to be extremely careful. Such a rule would promote extra safety. But, would the RPS get you to that point anyway? (Higher standard of care with normal BOP vs. extension of the RPS with the BOP shifted to the defendant: Who ought to win in a close case will govern on which party the BOP ends up.) (5) In short, it appears a higher duty is owed to paying passengers (the duty on school bus drivers is expanded somewhat.). 2. Lower standards of care a. Host driver statutes (1) These statutes were enacted in the 1920's and 1930's in about 30 states. Basically, they said that if you were a non-paying passenger in a private car and you were injured, you had no cause of action for ordinary negligence. (2) By 1988, only three states retained their host- driver statutes. in the other states, the statutes had either been repealed of stamped unconstitutional under state constitutions. (3) Problems with the statute (a) Does cost sharing or nominal payment make someone a paying passenger? (b) How bad must the driver's conduct be before liability will be allowed? The statutes practically enact the "moron in a hurry" standard. (4) 2 [alleged] justifications (a) Promoted hospitality by encouraging drivers to give rides by removing the fear that their passengers would sue them in the event of an accident. (b) Prevented collusion in order to get a higher recovery from the insurer. Drivers would be forestalled from making false concessions of negligence so their passengers could collect from the driver's insurer. (There are better ways to deal with this kind of collusion, like accident investigation.) (5) 2 final comments (a) The rationality standards used by state courts to declare the host driver statutes unconstitutional under state constitutions would be insufficient to strike the statutes down under the EPC or DPC. The "rational basis" prong of ordinary scrutiny is much less exacting than the rationality tests used by state courts. (b) These statutes resemble the different standards of care placed on landowners, yet the host driver statutes have been eliminated as fundamentally unfair. Why do we retain the limits on liability for landowners when the limits on liability for host drivers have been eliminated? b. Duties of care on landowners *** Generally speaking, the duty of care owed to each class of entrant has to with dangerous conditions on the land and not dangerous activities. (1) Duties to trespassers - Trespassers are owed the least duty of care. (a) Duty to warn a known trespasser of a known danger. (b) "Footpath exception": If a landowner (1) Has reason to know that trespassers frequent an area, and (2) The landowner knows of a hidden danger in that area Then the landowner is under a duty of care to warn such trespassers of hidden and unknown dangers in that area. But this duty applies only in those areas in which trespassers actually frequent; deviation from those areas by trespassers may void the duty. (c) Deviation from public ways exception: A landowner owes a duty of care to trespassers who deviate in minor ways from public ways onto the land and to trespassers who are induced to enter either by misleading appearances that make the land appear as if it is part of the public way. - Hypothetical on page 286: 2 friends who live adjacent to some RR tracks get drunk and pass out on the tracks. A train comes, but its headlight is substandard and the train is not traveling so fast that it could not stop in time. One friend makes it off the tracks, but the other does not. The train runs over the other friend, severing a leg. (1) Without the trespasser standard, you might be able to get the RR company for negligence per se, since it was in violation of a regulation when it operated the train with a substandard headlight. (2) There is but for cause. (3) Failure to keep a proper lookout. If the defendant alleges contributory negligence, the plaintiff could make an argument for last clear chance and avoid the total bar of contributory negligence. Comparative negligence would serve to reduce the plaintiff's recovery, but not eliminate it. (4) Landowner rule usually apply to conditions and not activities, except in the case of railroads. * Footpath exception: the plaintiff would have had to prove that (1) It was common for drunks to pass out on the tracks at this spot, and (2) The RR company knew or had reason to know this. The plaintiff would probably have insufficient proof to make this argument stick, but he probably has enough for the failure to keep a proper lookout theory of liability. ** He would probably lose under the deviation from public ways exception as well. *** Overall, the plaintiff would probably lose his case. He has an extremely tough case to make out under the rules regarding trespassers. (2) Attractive nuisance doctrine (a) A landowner owes a duty of care to protect (1) Foreseeable child trespassers (2) From dangers of which the landowner knows or has reason to know (foreseeable dangers), and (3) The landowner has reason to think that a child of tender years will not be able to protect himself from the danger. (Bexiga) (b) Christie v. Emory hypothetical (1) Defendant owns a garbage dump which is unfenced in an area with children. The local kids enter to get old comic books, and the owners knew this. There are also cases of spontaneous fires in the dump. Christie, while walking through the dump looking for old toys or comic books, fell through what appeared to be solid ground and burned herself on some hot coals. (2) All three elements of the attractive nuisance doctrine are satisfied: Child trespassers were foreseeable, there was a known danger of fire, and an 11 year old is still of "tender years". (3) Another mode of analysis would be using proximate cause: The general nature of the harm is fire though the specific manner of harm was falling through unfirm ground and getting burned. (4) The plaintiff should get to the jury. (c) Originally, the doctrine applied only to those nuisances that induced trespass in the first place. This is no longer true. (d) Common hazard doctrine- an exception to the attractive nuisance doctrine: If the child trespasser is injured by common hazards with which children of her age usually are usually familiar (fire, standing water), the attractive nuisance doctrine does not apply. This exception can cut into the "tender years" prong of the attractive nuisance doctrine. But in the Christie hypothetical the danger is hidden. (There apparently is a "hidden embers" exception to the common hazard doctrine.) (3) Duty to licensees (a) A licensee is an entrant somewhere between a trespasser and a business invitee (essentially social guests) (b) Landowners have a duty of care to warn licensees of (1) Known dangers, or (2) Dangers of which the landowner should have known (This is more lenient that the RPS; it's closer to reckless disregard, but it certainly more than just simple negligence.) (c) Paget v. Owen hypothetical (1) Plaintiff asks defendant for permission to enter and fish in the defendant's pond, and the defendant consents. Defendant knew that the south road had been undermined by a creek that had overflowed. However, he was not aware of a similar danger on the north road. Plaintiff entered via the north road, but he ran across a section of the road that was undermined, and his car overturned injuring him. (2) Defendant believed that plaintiff would enter via the north road. He was also aware of a heavy rain which cause the creek running across the south road to overflow and undermine the road, and he was aware of a similar creek across the north road. (3) Questions: (A) Did the north road flood in the past? (B) Did the defendant have reason to know that the north road was subject to flooding and undermining? (4) Plaintiff probably could get to the jury. (4) Duty to invitees (a) Invitee: a business customer or member of the public invited on to the premises for a business or quasi-business purpose. (b) Invitees are owed a duty of ordinary care. Warning may be sufficient to fulfil this duty in some situations, but in others affirmative action may be required to make the premises safe for the invitee, especially where the invitee may be distracted and thus unable to look out for her own safety even when she knows the danger. (c) Slipping and falling on foreign matter: Once the plaintiff proves she fell on foreign matter on the defendant's premises, then she must show either that (1) The landowner was responsible for the presence of the foreign matter in the first place, or (2) The landowner should have known it was there (like, it has been there awhile). (d) Landowners owe a duty of care to passersby in public ways to protect them from dangers coming from the property of which the landowner knows or should know (trees, power lines). The standard of care will be akin to the RPS. [However, there may be no duty if the condition appears to be dangerous to the passerby.] (e) EXCEPTION: Obvious danger rule. Sherman v. Platte County (1) Plaintiff was purchasing license tags for her car at the courthouse. While walking with the sheriff out to her car, she slipped on a patch of ice in the parking lot, breaking her ankle (Plaintiff was pregnant at the time.) The sheriff had warned her about the possibility of slipping, but she replied that she was wearing her "special shoes". (2) The jury was instructed that as a business invitee, the defendant owed her (A) No duty to warn plaintiff of obvious dangers, and (B) No duty to warn plaintiff of dangers known to the plaintiff. (No duty to remove ice and snow from natural accumulation.) The jury ruled for the defendant. On appeal, the plaintiff argued that there should be an exception to the obvious danger rule when the defendant should anticipate harm, even from an obvious condition. She also argued that the ODR was abrogated by the comparative negligence statute. (This reasoning is similar to that used in Stinnett v. Buchele: The doctor was not negligent because he could reasonably rely on the plaintiff's own expertise to protect himself.) The dangers of ice are so clear that the defendant should know about them. (3) The court found that the danger was obvious and known to the plaintiff, and also, CpN abrogated absolute defenses to the plaintiff's own negligence. Since there is no duty to warn of obvious dangers or dangers known to the plaintiff, the defendant cannot be negligent, so CN or CpN is irrelevant. (4) In some instances, plaintiff might be expected to take care of herself, but not always, especially when the danger is unreasonable. (5) If an obvious danger exists, then (A) The plaintiff can avoid the danger altogether, or (B) The plaintiff can encounter the danger with care. But, suppose the entire lot is iced over and this is the one and only source for license plates. Even if she is extra careful the danger might be too unreasonable to allow it to exist. However, the court does not care about (C) Unavoidability, or (D) Unreasonable danger (6) No duty to remove natural accumulation of snow and ice, so plaintiff loses. (7) Many states have adopted the exception sought by the plaintiff, but not Wyoming. If a plaintiff has no real choice but to encounter the danger, then a higher duty of care should be imposed on the defendant. (f) EXCEPTION: Firefighters' rule. Krauth v. Geller (1) Plaintiff, a firefighter, was responding to a call at the defendant's house (which was under construction) where a fire caused by an oil stove/smoker used to dry plaster and provide heat in the basement had caught on fire due to the defendant's negligence. The house was full of smoke. The smoke was due to negligent adjustment of the stove, and the defendant had the same problem a few days earlier. The house was unlighted. The plaintiff stepped where he though a step was, but nothing was there. He fell. The smoke had led him to believe a step existed where none did. (2) Questions (A) What duty of care does a landowner owe to a firefighter who is fighting a fire on the premises? (B) Is the defendant liable to the plaintiff is the firefighter is injured by the defendants negligently caused fire? (3) Into what classification does a firefighter fit? (A) Not a trespasser (B) Not a licensee or invitee since he had no explicit invitation to enter. Though there was some economic benefit, he had no express permission to enter [Actually he might be a licensee or an invitee, since he may have an invitation or permission implied by law.] The court refuses to pigeon hole the firefighter into a category of entrant. (4) Instead, the court delves into policy concerns and articulates the firefighters' rule. (A) No liability for injury caused to a firefighter by negligence that was the cause of the fire when the fire caused the injury. (B) It is the firefighters' job to assume this risk. He is paid and trained to encounter the risk, and he is insured by his employer against injury. Therefore there is no duty on the defendant to warn or protect firemen against such dangers. (The court seems to think most fires are due to negligence, and it thinks it strange that the very people who give the plaintiff a job owe the defendant a duty of care. (5) This rule does not apply to non- professional rescuers, as they are reasonably foreseeable (proximate cause), and so the defendant is liable to them. (6) Arsonists might be liable since they start fires intentionally, wilfully, or wantonly. However, AR analysis might let the arsonist off the hook. But, should the liability of the arsonist to the fireman be consistent with the liability of the criminal who kills a cop? (7) What about the volunteer firefighter who is paid nothing or only nominal amounts of money to fight fires? He is not a fully paid firefighter, but nor is he a non-professional rescuer. It is unclear how the courts might rule since the compensation feature of the paid firefighter is not present. However, I would play up the training aspect of the court's argument and argue that since volunteer firefighters are trained to encounter the risk and they knowingly encounter the risk that the firefighters' rule should apply. (8) Is it too burdensome to impose liability on the defendant? Who else bears the costs of the injury? The firefighter? The Taxpayer? (both innocent parties). Insurance can spread out the risk. (9) Liability to police and other professional rescuers has developed along the same lines. (10) By shifting to policy analysis (like in this case), you scuttle the importance of the landowner status. (11) Preposterous rubbish: Discouraging people from calling the fire department when their house is on fire for fear of tort liability. People do not think about avoiding tort liability when their houses are on fire. (12) EXCEPTION to the firefighters' rule: If the firefighter is on the premises to inspect it with the owner's permission, then the firefighter is a business invitee and is owed a duty of care according to the RPS (Warning and active effort to make the premises safe, especially where the invitee may be distracted even though the invitee may be aware of the danger.) (Walsh v. Madison Park) (13) EXCEPTION: Firefighter does not assume the risk of harms unforeseeable to him or those not normally associated with firefighting, and the landowner is under a duty of care to warn the firefighter about them (boilover in the chemical plant case.) (5) Abolition of the entrant classifications (a) Rowland v. Christian (CA case) (1) Plaintiff was a social guest (licensee) at the defendant's apartment. While using the bathroom, he severely injured himself when the porcelain handle on the faucet broke. The defendant was aware of the danger, but she gave no warning to the plaintiff (she had told the landlord, though). (2) The CA S.Ct. uses this case as an excuse to abolish the CL entrant categories and replace them with an across the board RPS. It believes that they are no longer justified in light of the values of modern society. The CL rules ignore the major factors in the determination if the landowner should be granted immunity. (3) The court would regard trespasser status as an attendant circumstance when applying the RPS. (4) However, the plaintiff in this case was a licensee who was entitled to be warned of a known danger, so the defendant would have owed the plaintiff a duty of care and the plaintiff would have won for its breach. Thus, this was an inappropriate case to scuttle the CL entrant classifications since the change was not decisive for the result. (5) The dissent objects to the abolition of the CL rules. He argues that the CL classifications provide a workable approach to solving problems of this kind. (A) Rules v. Standards: The dissenter prefers the predictability and stability of rules, while the majority prefers the flexibility and fairness of the RPS. (B) The dissenter's argument also smacks of an argument for the value of precedent. (b) Where the entrant classifications stand (1) In the 15 years after Rowland, which was handed down in 1968, there has been a movement to abolish the entrant classifications (2) Some followed CA and abolished the categories in favor of an across the board application of the RPS. (3) Others kept the trespasser category and replaced the other two with the RPS, as it seems to comport with society's values regarding trespassers (Schofield v. Merrill (the rock-quarry case)). (4) But a majority have retained the CL entrant classifications. Some have even enacted legislation reestablishing the entrant classifications and adding new one, like non-paying recreational user categories which call for a standard of slight care (liable for gross negligence only). (c) Zelenak's comments (1) Trespasser category is warranted. (2) L/I distinction: why should social guests be treated differently than business guests? (A) To obvious dangers, the dissenter's argument is ok. (B) To unknown dangers, his argument does not wash. (3) Comparison to the host-driver statutes, where passengers were accorded less than the RPS. (A) Host-driver statutes were wrong. (B) Licensee distinction retained. Why? (1) Injuries in cars more likely. (2) It's more common for a car driver to be insured against negligently caused harms. They are insured against harm to their passengers. (3) Passengers are helpless to protect themselves. (4) Greater antiquity of the categories. They have precedential value. (5) The licensee standard is not much lower than the RPS. Different results are less likely. But the RPS yields grossly different results between the host-driver statutes and the RPS. c. Medical malpractice (1) We must throw out what we know about negligence rules in medical malpractice cases; they simply do not apply. (2) The standard of care in medical malpractice cases is what is the standard medical practice regarding this procedure or operation. The standard must be established by an expert witness, and the expert generally must testify that the accident that occurred usually does not happen in the absence of negligence, that is, if the standard practice had been followed. (a) Walski v. Tiesenga (1) Defendant operated to remove the plaintiff's thyroid. One of the risks is that the nerves going to the vocal cords could be severed leaving the patient "speechless". There are 2 solutions to the problem: 1. locate the nerves and segregate them prior to removing the thyroid, or 2. make a wide cut to avoid the nerves. The defendant chose the latter since the plaintiff has lots of scar tissue in the area. However, the nerves were cut, and the plaintiff lost his voice permanently. (2) The expert testifies as to his own opinion as to what he would have done in the same situation, but he concedes that which technique is used depends on the doctor. (3) If it is acceptable in the industry to do the wide cut, then that is conclusive evidence that the Dr. did not deviate from the standard medical practice. [Contrast to TJ Hooper where Judge Hand insinuates that an entire industry (industry custom) could be negligent for failure to take a certain precaution.] (4) "Medicine is not an exact science". It calls for reliance on training and judgment (Experimentation with new procedures). Cut and dry answers in other fields. Unpersuasive: (A) Is medicine really all that complicated in comparison to other professions? (5) It is not hard to educate the jury on tugboats, but educating juries on thyroidectomies is tough: the court would have to put the jurors through medical school in order to fully educate them (impractical). Unpersuasive: (A) We don't need to put jurors through medical school. We can provide them with enough information upon which to render a decision. (6) Even if the standard procedure is twice as risky, that is irrelevant in medical malpractice cases. (7) Jury control: keep juries from confusing malpractice with maloccurance. (Rules v. Standards: rules specific to the industry. Jury control is an advantage of rules.) (b) Pro-plaintiff and pro-defendant sides of the accepted medical practice standard. (1) Pro-defendant: Compliance with custom is an absolute defense (No prima facie case) (Contra Judge Hand) (2) Pro-plaintiff: Dr. held to an objective standard of the medical community. This is consistent with the RPS (If you have special skills, you must use them.) (3) How come doctors get treated better than everyone else? Well, the law is not as clearly defined in other professional malpractice cases, but the tendency is also to give them the defense of custom as well. (4) Geography (a) Look at the standard of care in that locale. (b) Problem for plaintiffs in small towns and isolated areas: Conspiracy of silence: Unwillingness of doctors to testify against each other. But, some professionals make their living as "hired gun" expert witnesses. (c) In response to the conspiracy of silence, some jurisdictions have broadened the rule: Same or similar locality rule: Taking into account the population and proximity of a similar area, a plaintiff may draw an expert witness from a similar locality, and thus, circumvent the code of silence. (d) A minority of jurisdictions recognize a national standard of care, especially with regard to recognized specialties. (Any expert in the country in the recognized specialty may testify as an expert witness.) (1) But, since there is a tendency in the medical profession to specialize, will this tendency swallow the local standard rule in favor of the national standard rule? (2) Is the national standard rule fair to small town doctors? (A) No, they may do the best job they can do with the equipment they have. (B) With modern communications, small town doctors conceivably have access to the latest in medical technique and practice: no longer are doctors in outlying areas isolated from the rest of the medical community. (5) Cutting corners in medical malpractice cases can lead to charges of legal malpractice! Smith v. Knowles (a) Plaintiff's wife and unborn baby died from a rare complication of pregnancy. Plaintiff charges that the doctor (1) Failed to make a timely diagnosis, and (2) Failed to treat properly his wife after diagnosis. (b) The plaintiff must prove the acceptable medical practice and that it was breached in order to win his case. (c) The plaintiff's attorney attempts to cross examine the defendant doctor instead of calling an expert witness. He also has a medical treatise admitted as substantive evidence. (1) Under older rules of evidence, such treatises were inadmissible as hearsay (not subject to cross examination) evidence. (2) Under the Federal Rules of Evidence and some state rules of evidence, these treatises are not admissible. (d) The court throws the plaintiff's case out of court for failure to make a sufficient showing of malpractice. (e) "As a general rule..." in a treatise is insufficient to get to the jury. Treatises are usually too general to establish the requisite standard of care. Also, you need an expert to establish but-for causation. (Even without proper treatment, would she have died anyway?) (f) Admissibility of the treatise vs. sufficiency to get to the jury: The treatise rule may have been so novel a the time of this case that the attorney forgot this distinction. You MUST put a live medical expert witness on the stand. (6) Res ipsa loquitur and medical malpractice (a) Layperson res ipsa - Malpractice is so obvious that a lay person would conclude that this injury was due to negligence: No expert testimony is required. (b) Expert res ipsa - The jury is not qualified on its own to draw the inference, but after expert testimony it can. The jury is then permitted to draw the res ipsa inference. (c) Kelly v. Hartford Insurance (enema- hemorrhoid case): The court rules that this is not a layperson res ipsa case, and an expert witness is needed. (d) It is easier to find a doctor willing to give res ipsa testimony that standard testimony, and thus, break the conspiracy of silence. (e) You must ask the right questions to get the right groundwork for the res ipsa inference. (i.e. Question: Does this sort of harm usually occur in the absence of negligence? Answer: No.)