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The Law of Torts

by: Clyde Watsica

The Law of Torts PLA 3277

Clyde Watsica
University of Central Florida
GPA 3.99


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This 33 page Class Notes was uploaded by Clyde Watsica on Thursday October 22, 2015. The Class Notes belongs to PLA 3277 at University of Central Florida taught by Staff in Fall. Since its upload, it has received 27 views. For similar materials see /class/227551/pla-3277-university-of-central-florida in Business at University of Central Florida.

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Date Created: 10/22/15
Duty FamilyPurpose Doctrine Doctrine that makes the owner of a car liable for the tortious acts of family members committed while driving Professional Rescuers Doctrine Limits or bars the liability of tortfeasors to professional rescuers such as police of cers and re ghters who sustained injuries as a result of ordinary negligence Rescue Doctrine Doctrine under which one who negligently causes harm to a person or property may be liable to one who is injured in an effort to rescue the imperiled person or property RespondentSuperior Doctrine Doctrine that makes an employer liable for the tortious acts of employees committed in the scope and furtherance of their employment Possessor Owes Duty to Trespassers EXCEPT Attractive Nuisance Dangerous condition on the defendant39s property that is likely to induce children to pass Rescuers A person that enters the property to render aid injury must be real dangerous and imminent Known Trespasser Possessor makes known of the trespassers Limited Trespass Possessor knows of section of the land is being trespassed Licensees V InVitees Licensees is a person who has possessor39s consent to be present on land Two types of InVitees Business Invitee is on the property for business purposes Public Invitees are on property without business purposes Under Licensee the possessor is required to warn for hazards Under InVitees the possessor is required to SEARCH for hazards AND warn Breach ReasonablyPrudent Man Person held to the highest standard always is aware of dangers Negligence Per Se Defendant who breaches duty and breaches a law and causes injury Res Ipsa Loquitur Latin quotthing speaks for itself 4 Elements Event that resulted in plaintiff s injuries does not usually happen except as a result of negligence Instrument that caused plainti s injuries were under the defendant39s exclusive control PlaintiffdidNOT cause his own injuries Defendant is in better position to explain events causing plainti quots injuries than is plainti Causation Actual Cause Cause in fact of the plainti s injuries Sin Qua Non Latin ButFor test But for the fact the defendant acted negligently the plainti sustained injuries actual causation SubstantialFactor Test Two or more concurrent or successive events combine to cause the plainti s injury and each of them is a substantial factor in producing the injury RiskContribution Theory Theory to relax the plainti s burden of proof to establish causation in a mass tort case in which multiple defendants can be the causation MarketShare Liability Allows recovery to the plaintiffwho can show that the defendants were negligent but cannot prove which of the defendants caused the injury Alternate Liability Each negligent tortfeasor must prove that his actions did not cause the plainti quots injuries ifeither onefails to they will both be held liable JointandSeveral Liability If more than one defendant is negligent and only one is named in the suit the judgment will be awarded and the defendant will be responsible to sue the other defendant for the rest of the balance ABOLISHED IN FLORIDA AS OF APRIL 26TH 2006 Cardozo Rule Coined the quotzone of danger quot Defendant is liable for all reasonably foreseeable consequences of his negligence He owes a duty of care to the reasonably foreseeable plainti Majority Rule 4 Exceptions quotEggshell Skull quot rule states the defendant must take plainti as he finds him AIDS is a subsection Defendant is liable for harm occurring in an unforeseen manner ifharm is of the same general type that made defendant39s conduct negligent Defendant is liable if plainti is member of class to which there is general foreseeability of harm even if plainti was not particularly foreseeable Defendant is liable even ifthere is an unforeseeable intervening cause leading to same type of harm threatened by defendant39s negligence Andrews Rule Defendant owes a duty to world at large and nut just those in the quotzone of danger quot Similar to direct causation defendant is liable for all consequences owing directly from his actions no matter how unforeseeable Minority Rule Direct Causation Defendant is liable for all consequences of his negligent acts no matter how unforeseeable those consequences may be so long as they flow directly from his actions Proximate Cause Legal cause to the plainti quots injuries emphasis is on the concept of foreseeability Superseding Cause Act that contributes to the plaintiff s injuries to the extent that the defendant is relieved of liability Force Majeure Latin act of god Superseding cause Intervening Cause Anything that occurs after the defendant39s negligent act and that contributes to the plaintiffs injuries Damages Compensatory Damages Compensate the victim for her losses and restore her to the position she was in before she sustained her injuries Punitive Damages Intended to punish the defendant for reckless or egregious misconduct and deter others from engaging in the same or similar wrongful misconduct not intended to make party whole Exemplary Damages Designed to punish the tortfeasor for egregious misconduct and to deter similarly situated wrongdoers F airMarket Value The amount that the property could have been sold for on the open market Nominal Damages Occurs in when a tortious act has occurred but the plainti has no injuries to remedy defendant must be punished but judgment is usually less than 500 awarded in strict and product liability cases General Damages Damages that generally result from the kind of conduct engaged in by the defendant compensation in pain and suffering Special Damages Damages specific or unique to the plaintijf39 medical expenses Loss of Consortium Encompasses recovery for lost of services such as companionship sex earnings outside the household etc Husband can sue under consortium for loss of wife but wife CANNOT sue under consortium for loss of husband in older common law has changed since Derivative Claim Claim that is derived from the spouse 39s underlying claim husband sues for negligence wife sues for consortium Survival Action Action that remains available after the decedent39s death damages awarded to deceased39s estate WrongfulDeath Statues Action brought by third parties to recover for losses they su ered as a result of the decedent39s death Parasitic Damages Damages attached to physical injury Subrogation Right of party making payment on plainti s behalf to be reimbursed out of judgment plainti receives AvoidableConsequences Rule Obligation for a plainti to mitigate damages Res Judicata Latin Issue Preclusion Adjudicated issues cannot be relitigated CollateralSource Rule Collateral source rule precludes the admission of evidence to the jury regarding payment of benefits such as SS Medicare pension vacation and sick time to the injured party from a source other than the tortfeasor rule gives the plainti the ability to violate res judicata Structured Settlement Agreement to pay damages in installments rather than a lump sum Discounting An Award Prevents the plainti from realizing an unwarranted windfall and reduces losses to the defendant Defenses Contributory Negligence Defense that the plainti contributed to his own injuries and should therefore be barred from recovery must be proved and pleaded by the DEFENDANT plaintiffs negligence must meet the standards for the sin non qua or substantial factor test characterized as quotrecklessness quot and plaintiffis compared to a reasonably prudent man and is NOT a defense in strict liability cases Comparative Negligence Defense that the plainti quots recovery should be reduced in direct proportion to the plainti s percentage of contribution to her own injuries Assumption of Risk Defense that the plainti voluntarily consented to take the chance that harm would occur if he engaged in certain conduct both implied and consensual characterized by quotadventurousnessquot subjectively standard test to assert if the plainti understood the risks and IS a defense in strict liability cases LastClearChance Doctrine Doctrine that allows the plaintiffto recover in a contributory negligence system despite the plaintiffs negligence Proprietary Function Function performed by the government that would just as easily be performed by a private entity Statute of Limitations Statute that limits the timeperiod in which a claim can befiled Statute of Repose Statute oflimitation in product liability cases that limits the timeperiod during which suit can be filed Discretionary Function Act of a governmental employee requiring the use of judgment no liability exists SOPercent Approach A plainti who is more than half contri butorily negligent is barred from recovery Pure ComparativeNegligence Regardless of how much the percentage of the contributory negligence of the plainti quot that percentage will be taken off the judgment Not as Great As Rule Plaintiff s claim is barred as soon as her negligence is as great as the defendant39s negligence Not Greater Than 49 Rule Plaintiff is barred only when her negligence is greater than the defendants l Duty a Duty is a legal obligation to act reasonably and arises out of our relationship to others b Simply the defendant must exercise the degree of care that any reasonably prudent man would exercise under similar circumstances c Threshold question in every negligence case because a defendant is not liable not matter how reckless his conduct unless he owes a duty to the plaintiff d Generally legal obligation only exists when a direct relationship between the plaintiff and the defendant exists i Duty may also arise if a relationship between the defendant and a third party whose negligence causes injury to plaintiff 2 Possessors of Land a The purpose of limiting the liability of possessors was to encourage full utilization of the land unhampered by burdensome legal obligations to others b There are three tiers of plaintiff39s i Trespassers 1 Law bars possessors from booby trapping property possessors of land must refrain from willfully or intentionally injuring trespassers a A trespasser assumes the risks for entering land and is responsible for his own safety 2 If the possessor is pursuing dangerous activities on the property she need NOT WARN the trespasser in any way NOR avoid carrying on such activities Plaintiff has NO DUTY to make land safe unless one of the four exceptions applies a Attractive nuisance i Knows children are likely to trespass ii Knows condition poses unreasonable risk of injury to children iii Child is UNAWARE of danger posed by condition iv Benefit in maintaining conditions is slight compared to risk posed LA Fquot 0 V Possessor fails to use reasonable care to protect children 1 Example Suppose a child 2 years of age is left unattended and wanders into a neighbor39s backyard and falls into pool and drowns if the pool is NOT fenced the possessor can be held liable POOL is an ATTRACTIVE NUISANCE 2 Determination of attractive nuisance falls into the court age experience and intellect of the child determines nuisance 3 IF THE DEFENDANT can prove that the child was aware of and appreciated the danger the court will bar their recovery Natural v Arti cial Conditions 1 Natural are conditions that are quotnaturallyquot occurring and the courts are less likely to rule in favor of plaintiff for recovery 1 Lake pond etc Arti cial conditions are conditions that were built in which the courts can rule heavily against defendant 1 Pools RescuersRescue Doctrine i Possessor negligently causes harm to person or property ii Harm must be imminent real and require immediate action to save life Anyone who negligently causes harm to a person or property may be liable to one who is injured in an effort to rescue the imperiled person OR property Cardozo Opinion 1 quotDanger Invites Rescuequot doctrine v Example Motorist negligently ran into bicyclist another drive stops to render aid and was run over during the process or aiding the motorist causing the action would be held liable for the rescuers damages vi N iii iv vi Example Driver takes no preventative action or slows down in a children zone child darts into the road and mother lunges into the road and is hit but saves child driver is held liable for mother39s injuries because the mother is a foreseeable victim vii If either the defendant39s conduct is negligent nor intentionally tortious the rescue doctrine is not applied Known Trespassers i Possessor is aware oftrespasser ii Possessor is aware of dangerous condition iii Once a possessor is aware of a particular person trespassing on his property he owes a duty of reasonable care to that person ii iv This duty arises when the danger to the trespasser arises out of something the possessor has done 1 Nature of duty is lessened when the condition is natural V Justification The possessor39s continuing tolerance of the trespass constitutes implied permission to use the land trespasser is now a licensee vi Example Plaintiff ran into an unmarked barbed wire fence while riding on the defendant39s property court founded that the evidence justified a nding that the fence was quotdangerously invisible and could not be reasonably discovered by trespassers Limited Trespass i Trespasser uses only limited portion of land ii Example A farmer knows of a wellwom path across the edge of his property created by children taking a shortcut to school the possessor would be expected to anticipate the traversal of these children and would be required to use reasonable care in his activities for their protection 3 1 Licensee39s 1 One step up from a trespasser 2 Has possessors consent to be on the property but does not have business purpose for being there 3 SOCIAL GUESTS are examples 4 The duty a possessor owes to a licensee is to warn her of any dangerous conditions IF the possessor is aware of that condition and should reasonably anticipate that the licensee may not discover it 5 Example Dinner guest trips on a top left unattended by a child if you failed to warn about the presence of the toy and the lighting conditions were such that the guest could NOT reasonably by expected to see if you would be held liable for injuries 6 The most frequently litigated issue in reference to licensees pertains to the obviousness of a hazardous condition and the warning that is required to prevent harm a A warning given to an adult may NOT be adequate for a child 7 A posted warning ofa danger is NOT sufficient when the possessor knows that a licensee is unable to read 8 Possessor is under no duty to inspect for unknown dangers when dealing with a licensee 9 Automobile a Social guests in an automobile are due the same standard of care as a licensee on land most courts have held that the guest is owed NO duty to inspection i If the owner of a vehicle fails to inspect the car39s breaks which fail and cause injuries the owner will NOT be liable for failure to inspect Exception Unless inspections are required by statute in the state and either 1 Automobile has failed inspection and the owner knows of it or 2 The automobile has NOT been inspected and has been expired iii InVitees 1 Persons invited by the possessor onto her land to conduct business 2 Two types a Public InVitee i One who is invited and enters the land for the purpose for which the land is held open to the public ii IE If a business owner maintains a free telephone for public use anyone who enters the premises for the telephone purpose is a public inVitee iii If open to public the Visitor need NOT PAY ADMISSION to be considered a public inVitee Business InVitee i One who enters the land for a purpose connected with the business dealings ofthe possessor ii IE Grocery shopper 3 Even if the plaintiff is not engaged in business at the time of his injury he is considered an invitee so long as he has a general business relationship with possessor a Campbell v Weathers i Plaintiff had longstanding relationship with owner who operated a lunch counter and cigar stand in an of ce building after standing next to stand the plainti used the bathroom in the back of the building and fell into a open trap door in a dark hallway def argued since plainti didn39t make any purchases he was NOT an inVitee courts dissented and ruled in favor of plainti ii Rationale Court noted that many people shop for hours without making any purchase Note a social guest does NOT rise to the status of an inVitee even by performing an incidental service for her host such as repairing something why a Host must gain some type of economic bene t quotSlipandFallquot causes involve invitees a The plaintiff must establish that the proprietor i Caused the condition ii The proprietor was aware of the condition and failed to rake reasonable measures to remove the hazard Losing InVitee Status a An inVitee may become a licensee or trespasser is he Fquot 4 UI 0 i Goes to parts of the premises that extend beyond his invitation or ii Staying on the premises for longer than is reasonably necessary to conduct business b IF a visitor receives explicit authorization from possessor to go onto a private portion of the premises he will LOSE his invitee states if he enters PURELY for his own bene t c Example Customer came into a store with intent of shopping was given permission to enter an alteration room reserved for employees when she entered she fell down a stairway and the court held that she was a licensee because she entered the room for her OWN BENEFIT and WITHOUT INVITATION OF THE OWNER 7 Nature of Duty to Invitee a A possessor owes a higher duty of care to an invitee than he does to either a licensee or a trespasser and furthermore has a duty to inspect his premises for hidden dangers although he has no duty to ferret outALL hidden dangers he must use reasonable care in making inspections b A possessor may also be liable for a dangerous condition resulting from faulty construction or design even if the condition existed before he came into possession of the property c Example If a store owner knows that customers will be distracted by goods on display and probably not notice a warning sign warning them of danger the sign is NOT suf cient d EVEN if the invitee is AWARE OF AND APPRECIATES the danger involved the possessor may be obligated to take reasonable steps to reduce the danger iv Duty of Possessor of Land Review Trespasser No duty to make land safe unless Attractive Nuisance Rescuers Known Trespasser Limited Trespass l Licensee Duty to WARN of dangerous conditions KNOWN to possessor and will NOT be found by licensee Invitee Duty to WARN AND INSPECT for hidden dangers 3 Outside the Possessor s Property a Possessors are generally found liable for conditions that pose an unreasonable risk of harm to persons outside the premises i Higher level when the condition is arti cially made by possessor ii If the condition is natural the possessor is under not duty to remove it or protect others from it even if it poses an unreasonable danger of harm to people outside the property 4 LandlordTenant Liabilities a Fquot 0 3 1 Limiting a possessor s liability was to promote the possessor s right to use the land to its fullest potential with minimal interference from others Duties of Tenant V Landlord Tenant Landlord Liable for dangers he knows or should know about and tenant has NO reason to know about it Same duties as possessor of land Duty does NOT extend to common areas IE Elevators corridors etc Duty to inspect for dangers when landlord knows property is to be held open to the public Must use reasonable care if he contracts with tenant to keep premises in good repair If landlord begins to make repairs he must perform them reasonably In some cases has a duty to take security precautions to protect tenants from criminal activity 7 If the tenant is aware that the repairs were incomplete or were done in a negligent manner the tenant and NOT the landlord will be held liable If the landlord hires an independent contractor to do repairs the landlord is mostly responsible for contractors negligence i Rationale Landlord can NOT delegate his responsibility to a third party Circumstances in which a landlord MUST protect tenants from criminal activity i Implied Warranty of Habitability 1 An agreement for the rental contains an quotimplied wa1ranty that the apartment is habitable and t for livingquot does NOT apply to criminal activity ii Special Relationships landlordtenant quotespecial temptation and opportunity for criminal misconduct brought about by the defendant will call upon him to take precautions against itquot Overriding foreseeability V One who voluntarily assumes a duty thereafter has a duty to act with reasonable care 1 Landlords who contractually provide security have been found liable for removing the security in the face of a foreseeable threat 5 Sellers of Land a In general the seller of land is released from tort liability once the buyer takes possession of the property i Exception Ifthe seller fails to disclose a dangerous condition of which she is or should be aware and which she could realize that the buyer will NOT discover she will e held liable to anyone injured as a result of that condition b 1 Exception Liability will CEASE when the buyer has a quotreasonable opportunityquot to nd and correct the defect even if the buyer does not in fact discover it ii Ifthe seller hides the defect or intentionally misleads the buyer into not looking for it the seller39s liability will continue until the buyer 1 Discovers the condition AND 2 Has a reasonable opportunity to x it If the seller of a house is also its builder some courts hold the seller liable for any injuries caused by defects in the house 6 Duty to Protect or Aid Others a b C 3 1 Common Law NoDuty Rule i Under common law the defendant has NO legal obligation to aid a plaintiff in distress unless a special relationship exists between the plaintiff and the defendant 1 Rule applies even though the defendant could assist the plaintiff without causing any harm to himself Special Relationships i Relationships that are special mother child husband wife etc Defendant s Relationships with Third Parties i IE The guardian of a mentally ill patient who is potentially dangerous may be held liable for injuries in icted by his dangerous charge ii This is where the patientcon dentiality is questioned upon revelation of dangerous activity medical professionals are obligated to report act to authorities Ifa person loans her car to an intoxicated person she will be held liable for any and all damages that occur DramShop Laws 1 Tavern owner who sells liquor to an obviously intoxicated patron may be liable for injuries in icted as a result of the patron s negligence Emergency Assistance i Duty arises out of the special relationship that is created when a defendant begins to render assistance to a person in need 1 Once assistance is begun it must be administered under reasonable care ii Good Samaritan Statutes 1 Anyone providing emergency medical assistance is NOT liable for damages arising from that assistance as long as care is provided in good faith and does not constitute gross negligence Professional Rescuer Doctrine PoliceFire ghter s Doctrine iii iv iii 1 Limits the liability of landowners whose property conditions resulted in an injury to re ghters or police of cers responding to an emergency 2 Public policy rationale underlying the rule is that professional rescuers are public servants trained at public expense who receive workers compensation and or disability bene ts if they are injured a Doctrine of assumption of the risk is another reason justifying the doctrine 3 A tortfeasor has NO legal duty to protect the professional rescuer from the very danger that they are employed to confront e VoluntaryUndertaking Doctrine i iii A defendant may be found liable even though it has NO legal duty to protect the plaintiff 1 Example The defendant railroad company constructed a fence across one side of a track that had NOT been used for almost a decade Plaintiff was injured when the car in which he was a passenger collided with several railcars blocking the road appellate court remanded the case finding that the plaintiff could potentially establish that the railroad had a duty to maintain a safe crossing and to warn that the crossing was in use the railroad might have voluntarily assumed such duty when it erected the fence warning tra ic that the road was no longer is use Example Court found an insurance company liable for negligently carrying out a gratuitously undertaken safety inspection and concluded that liability was not restricted to those to relied upon ht inspection but extended to quotsuch persons as defendant could reasonably have foreseen would be endangered as the result of negligent performance Some courts have allowed a plaintiff who relied ona defendant39s promise to recover even if the defendant made no overt act of assisting the plaintiff 1 Example A sheriffs department was held liable when they failed to warn a woman who helped get a man arrested was freed from prison that he was out Prisoner returned and killed the woman a Defendant was held liable even though it had done nothing overtly to assist them Defendant s may be liable to third parties as well when they undertake a service they have no legal duty to perform and perform the service negligently 1 Suppose a business hires a company to inspect its elevators and the company negligently reports that the elevators are in good condition when they are not the company owes a duty of care to the injured person N f Public Entities 1 ii Theory of duty applies to both private AND public entities City Duties 1 Providing police and fire protection 2 Keeping streets safe for purposes of transportation 7 Unborn Children a Controversial Whether a duty of care is owed to an unborn child b Defendant assaults a pregnant woman injuring the fetus and causing eventual physical defects upon birth 1 ii Common law does not allow for relief Modern law reversed the noduty rule and have allowed recovery in most instances where a CAUSAL link between the defendant39s act and fetus39 injury can be proven l Requires CONVINCING evidence of causation c Controversy arises also from the wrongful death of a fetus caused by external factors i Recovery should NOT be allowed UNLESS quotthe applicable wrongful death statute so providesquot 1 Issue Does quotpersonsquot refer to quotfetus39quot 8 Vicarious Liability a Defendant is liable for the tortious acts of another even though he is NOT at fault b Two types i Respondent Superior 1 Employer is vicariously liable for the tortious acts of her employees during the scope and furtherance of his employment quotLet the superior respond quot Employer can escape liability if they can successfully prove that the employee acted on own behalf Rationale Employers rather than employees should bear the expense of any accidents resulting from doing business such expense should be considered part of the price of doing business ii Family PurposeDoctrine 1 Holds the owner of a car vicariously liable for the torts committed by those members of his household whom he allows drive his car 1 What is Reasonable Conduct a Breach of duty occurs when the defendant fails to conform to the required standard of care b Determination ofBreach i Determination of the relevant standard of care ii Evaluation of the defendants conduct in light of the standard 2 Learned Hand Formula a Judge Learned Hand devised the equation F X L gt B i P is the probability that harm would occur as a result of the defendant39s conduct ii L is the gravity of the potential harm iii B is the burden or precautions that would have to be borne by the defendant to avoid the risk 1 If the product of P and L is greater than the constant B then the defendant is liable 2 In analyzing B the courts look not only to the cost involved in taking precautions but also at the social utility of the defendant39s conduct Application of the Learned Hand Formula i Automobile manufacturer discovers a defect in the design of its automobile that under certain circumstances has the potential of creating harm to the occupants of the vehicle 1 Calculate statistical probability of crashes 2 Gravity of types of injuries caused and burden to the manufacturer of altering the design ii Note The more serious the potential injury that could be incurred the less probable its occurrence must be before the defendant is obligated to guard against it 3 ReasonablePerson Standard Objective v Subjective wzw 4k Fquot 57 f The question put before a jury in a negligence case is whether a reasonable person of ordinary prudence standing in the defendant39s shoes would have done the same thing the defendant did Objective Standard i Defendant s conduct is compared to that of a hypothetical reasonable person Subjective Standard i Whether Defendant believed that she was behaving in some reasonable manner Example Driver pulls out in front of oncoming traffic causing an accident i Objectively Standard 1 One would ask whether a reasonable driver of her ordinary prudence would have pulled in front of traf c 2 Negligent ii Subjective Standard 1 One would ask whether the driver himself perceived any risks if NOT then he would but not liable Special Characteristic i Children 1 Not held to the standard of care expected of an adult but instead are held to the standard of a quotreasonable person of like age intelligence and experience under like circumstancesquot evaluation is subjective 2 Held to an adult standard when they engage in potentially dangerous activities that are normally reserved for adults a Driving is a key example 3 Contention Does a child hunting be held to the standard of care as adult or child a Some courts rule that hunting is a fun child activity and some rule it39s a dangerous adult activity Mentally challenged persons are held to the same standard to reasonably prudent person 4 Emergencies a In addition to considering the age and characteristics of the defendant courts look at the circumstances in which the defendant was operating 5 Negligence Per Se Negligent in itself a b 0 3 1 In some cases reasonable conduct is established by statute A defendant who violates a statute and causes injury as a direct result of the violation of the statute is negligent per se Requirements i Violated statute be applicable to the facts of the case ii Causal link between the act constituting a violation of the statute and the plaintiffs injury be established Questions to establish per se i Is violated statute applicable to the facts of the case 1 Yes ii Is plaintiff a member of a class protected by a statute 1 Yes gender nationality NOT orientation iii Is act causing injury a violation of the statute Fquot quot1 W Pquot 1 Yes Is harm that occurred intended to be prevented by statute 1 Yes a Example Posted speed limit signs To prove negligence the plaintiff must show first that he is a protected member from the statutes and also show that the statute was designed to protect against the kind of harm that was sustained The determination as to whether the type of harm that occurred was that anticipated by statute has been particularly problematic in cases involving keys left in cars i Some statutes state it is illegal to leave keys in car ii If a person commits auto theft should owner be held liable for damages occurred therein 1 If statute exists then yes In some cases statute in question is criminal penal statutes speci cally provide that their violation will result in civil liability but ambiguity exists when no reference to civil liability is made i Under the majority rule and out of deference to the legislature the courts will apply the criminal statutory standard to civil cases as a matter of law Defenses i Some courts have ruled that no exceptions can occur in reference to negligence per se even if made on a goodfaith effort ii Excuse approach attempts to explain a violation of the statute if any of these is present then the violation is excused 1 The violation is reasonable because of the actor39s incapacity 2 He neither known nor should know of the occasion for compliance 3 He is unable after reasonable diligence or care to comply 4 He is confronted by an emergency not due to his own misconduct 5 Compliance would involve a greater risk of harm to the actor or to others If negligence per se is established defendant can still assert l Contributory negligence 2 Assumption of the risk a So long as the statute does NOT impose on absolute duty on the defendant iv iii 6 AutomobileGuest Statutes Fr 0 3 1 This has been used to limit the duty of care Statutes hold a driver of a vehicle liable to a guest in his car only under circumstances of extreme misconduct i Requires that the drivers misconduct be willful and wanton grossly negligent or reckless Rationale i At the time these statutes were enacted automobile liability insurance was not widely available so drivers who were successfully sued by their guests had to bear the costs themselves ii When insurance was available collusion between driver and guest was feared 1 Owner and victim concede to scam the courts Hardest question is defining what a quotguestquot is in a car e Since the 70s most statutes were either repealed or found unconstitutional 7 Res Ipsa Loquitur a b 0 3 1 FD Mostly medical malpractice cases Elements i Event that resulted in plaintiff39s injuries does NOT usually happen except as a result of negligence ii Instrument that caused plaintiffs injury was under the defendant39s exclusive control Plaintiff did not cause own injuries nor is contributorily negligent Defendant is in better position to explain events causing plaintiff39s injuries than is plaintiff Defendant s in Control i Older courts required the plaintiff to show that the instrumentality that caused the harm was under the exclusive control of the defendant ii Modern courts have required the plaintiff show that the negligence was due to the defendant and not to someone else 1 Plaintiff must often produce evidence demonstrating that it is more probable than not that the defendant caused the plaintiffs injuries than that someone else did Falling Chair 1 Plaintiff was hurt when she was struck by a falling armchair that hit her while walking near a hotel Court concluded that res ipsa loquitur is inapplicable because the hotel did NOT have exclusive control over its furniture and the quotmishap would quite as likely be due to the fault of a guest or other personquot Garbage Slip 1 Plaintiff slipped and fell on garbage in the back end of a restaurant courts ruled res ipsa loquitur applies because the trash was controllable by the employees on the shift v Proving responsibility is the hardest portion when multiple defendants exist Exception to the element 1 If a plaintiff is unconscious surgery and experiences injury from negligence res ipsa applies because of the inability to effectively establish who exactly was negligent due to anesthesia Injury is Consequences of Negligence i Plaintiff must demonstrate that the accident would have been unlikely to occur in the absence of negligence ii He is not required to show that only negligence is the cause of such events but must prove that such events are generally a consequence of negligence Case Plane disappears in the Pacific and is not seen plaintiff sues under res ipsa and although unable to produce evidence establishing negligence it is assumed that negligence was more likely than not the cause of the plane accident Lack of Contributory Negligence i Plaintiff must also provide evidence that he she acted properly ii IF contributory negligence can be established res ipsa IS MOSTLY INVALID iii iv iii 1 Example I a Boiler on a locomotive explodes killing the engineer whose job includes keeping the right amount of water in the boiler testimony is offered that the engineer properly tended the boiler and did nothing to cause the explosion the doctrine applies IF EVIDENCE IS APPLIED ONLY 2 Example II a If the engineer was negligent in running the train at an unsafe speed but that negligence had nothing to do with the explosion the doctrine could still apply f Evidence More Available to Defendant i Some courts require the plaintiff to show that evidence of negligence was more available to the defendants than to the plaintiff ii Most courts apply the doctrine of res ipsa loquitur even when evidence is no more available to the defendant than to the plaintiff g Procedural Consequences i In a res ipsa case the jury is allowed to infer negligence ii Meeting the requirements of the doctrine creatse a presumption of negligence which the defendant must rebut to avoid a directed verdict most prove by preponderance of the evidence that they did NOT act negligently 1 Two Types of Cause a Actual Cause i The defendants actions were the direct factual cause of the plaintiff s injuries ii Two Tests 1 ButFor Test a The question of whether the defendant was the actual cause of the plaintiff39s injuries is usually a factual one b The quotbutforquot or quotsine qua nonquot is usually used to determine actual cause c Under this test if the plaintiff39s injuries would NOT have occurred but for the defendant39s negligence the defendant will be deemed the actual cause of the plaintiff39s injury d Modern cases state that actual cause arises in cases involving tavern owners who negligently service liquor to patrons who are obviously intoxicated 2 Substantial Factor Test a Two or more concurrent or successive events combine to cause the plaintiffs injury and each of them is a substantial factor in producing the injury b Concurrent causes are those events that combine to cause the plaintiffs harm although either one of them alone could cause the harm without any contribution from the other c The question is whether the defendant was a substantial factor in producing the plaintiff s injury i If the concurrent causes produce a single indivisible harm in which the damage from one event cannot be separated from that caused by the other the courts have generally found both events to be a substantial factor in producing the plainti s injuries d Example Horsedrawn car is down a one lane road and two motorcycles pass them on either side both scaring the horse causing injury to the horse driver granted one of them would be enough to scare the horse but both acted together The problem in cases of sorts is proving that the quottoxinquot at issue and not some other factor was the cause of the plaintiff39s injuries i Toxic tort cases nuclear radiation fallout cancer injuries ii To prove causation plaintiffs in cases must often rely on expert testimony epidemiological studies and experimental studies conducted on humans and animals that measure and observe the effects of exposure to chemicals iii MUST prove that the toxin in question is capable of producing the type of injury suffered by the plaintiffs but also that each individual plaintiff39s injuries were caused by that particular toxin iii Causation Problems in Mass Tort Cases 1 Risk Contribution Theory has been used to relax plaintiffs burden of proof to establish causation in amass tort case where a young boy ingested lead paint resulting in brain damage a Plaintiff was NOT able to identify the manufacturer of the paint b Applying the riskcontribution theory to the case the court found that many of the individual defendants knew of the harm caused by white lead carbonate pigments and continued production and promotion of the product iv Proof of Actual Cause 1 The plaintiff bears the burden of proof by preponderance of the evidence 2 Exceptions a Altemate Liability i If two defendants are negligent but only one could have caused the plaintiff39s injury the burden of proof will be thrust back on the defendants to show who actually caused the harm ii Each negligent tortfeasor must prove that his actions did not cause the plainti s injuries iii IF one fails to make such proof BOTH defendants will be found liable iv Summers v Tice 1 Plaintiff and two defendants went hunting together Defendants simultaneously shot quail and the plaintiff was struck by one of the shots since it could NOT be established from which gun the bullet was red the court held that each of the defendants had the burden to show that it was the other s shot that wounded the plaintiff b MarketShare Liability FD b Proxi i iii Theory to account for three or more defendants under alternate liability Allowed recovery to the plaintiff who can show that the defendants were negligent but cannot prove which of the defendant39s caused injury Sindell V Abbott Laboratories 1 200 manufacturers used an identical formula to produce diethylstilbestrol DES plaintiff39s mother took it while pregnant and alleged her cancer was a direct result of her compensation of ingestion of the drug sued five drug companies and maintained that 90 manufacturing rate was produce but was unable to show which one specifically she ingested Differs from res ipsa loquitur in that the latter is used when a plaintiff has no way of proving the nature of the defendant39s conduct 1 If Plaintiff can meet the proof requirements of res ipsa loquitur the defendant39s negligence can be inferred 2 With marketshare liability the plaintiff can show that all of the defendants were negligent but is unable to pin the injuries on one specific defendant c ConcertedAction Theory i Plaintiff must show that a tactic agreement existed among the defendants to perform a tortious act 1 Plaintiff must show the existence of a common plan or that the defendants assisted or encouraged each other in accomplishing a tortious result 3 Proof of actual cause can be particularly problematic in medical malpractice suits in which a doctor fails to diagnose and may have contributed to a patients death a In a case where a doctor failed to diagnose gastric cancer courts rejected the butfor and substantialfactor tests because of the impossibility of the plaintiff being able to prove causation under either of these tests Developed alternative theory of recovery the quotlost chance of recoveryquot i Theory allows medical malpractice plaintiffs to recover if they can prove a loss of the chance to recover even if they cannot prove that the doctor s negligence resulted in a loss of life mate Cause Legal Cause If the plaintiff is successful in showing that the defendant39s negligence was the actual cause of the injury she must then show that the defendant proximately caused the injury Arises from the sense that a defendant sho r or A y Foreseeability iii uld NOT BE LIABLE for a highly stemming from his negligence 1 1 iv Palsgraf V Long Island Rail Co 1 A N Question of proximate cause is primarily foreseeability Was the plaintiff39s injury a reasonably f 39 39 A ofthe J f J quots conduct d f d railroad39s mp1 J to assist a man running to board the train accidentally dislodged a package from the passenger s aim the package contained fireworks which then exploded on impact the shells from the blast injured plaintiff on the other end of the platform the employee is negligent because of the pushing of the man onto a train question was the plaintiff39s injuries foreseeable NO therefore she can not recover Cardozo a Reasoning defendant39s conduct did not react an unreasonable risk of harm to the plaintiff and that the injury she sustained was NOT A FORESEEABLE one quotproof of negligence in the airquot quotwill not doquot Establishment of the Cardozo Rule quota wrong is defined in terms of the natural and probable at least when unintentionalquot Cardozo coined the quotzone of danger testquot a Exceptions to the Cardozo Rule i quotEggshell Skullquot Rule 1 First exception requires that a defendant quottake his plaintiff as he finds himquot 2 Case set forth this rule Watson V Rinderknecht l Sixty year old plaintiff who was receiving a pension resulting from injuries sustained during a war was assaulted by a much younger and more vigorous defendant court held the defendant liable for the full extent of the plaintiff39s injuries even though the average person in the same conformation would have suffered much lesser injuries 3 Under this rule quotif the plainti su ers any foreseeable injury the defendant is also liable for any additional unforeseen physical consequencesquot 4 AIDS falls in this category ii Same General Type of Harm but Unusual Manner l A defendant is liable if the harm suffered by the plaintiff is of the general type that made the defendant s conduct negligent even if the harm occurs in an unusual manner 2 Example Defendant hands loaded pistolto a child child gives to plaintiff but in the process drops the gun and it discharges defendant is liable l Rationale The risk of accidental discharge is the same kind of general risk that made the defendant39s conduct negligent initially the fact that the charge occurs by an unforeseeable means is irrelevant 2 NOTE SHOULD the gun have been dropped on someone s foot and caused injury WITHOUT discharge the defendant would NOT BE LIABLE 0 3 1 because that is not a risk that makes the defendant39s conduct negligent iii Plaintiff Member of Foreseeable Class 1 Same rationale is applicable when injury occurs to a plaintiff who is NOT a particularly foreseeable plaintiff so long as the plaintiff is a member of a class who which there is a general foreseeability of harm the defendant is liable Example Defendant driVing negligently collides with a car full of dynamite and detonates the pedestrian plaintiff is injured and sues defendant is held liable even though he didn t know about the dynamite he knows that negligent driVing can be hazardous and cause injuries to the foreseeable class pedestrians 3 Andrew39s dissented claiming defendant had a duty to quotprotect society from unnecessary danger not to protect A B or C alonequot quotevery one owes to the world at large the duty or refraining from those acts that may unreasonably threaten the safety to othersquot Direct Causation i Andrew39s position parallels that of a View known as direct causation 1 Under this View a defendant is liable for ALL consequences of his negligent acts no matter how unforeseeable those consequences may be so long as they flow directly from his actions 2 Example a Defendants were unloading a ship which they had chartered from the plaintiffs they negligently dropped a plank onto the hold somehow the plank struck a spark which ignited petroleum the sup was carrying and the ship was then destroyed defendants were held liable because the fire was the direct result of their negligent act Duty V Proximate Cause i In the Pals graf opinion the question proposed by Cardozo was whether the defendant had a duty to care to the plaintiff whether phrased in terms of duty or proximate cause ii A defendant is liable ONLY if her conduct poses a FORESEEABLE risk to the plaintiff contrasting the defendant owes a DUTY OF CARE only IF THERE IS a F ORESEEABLE risk to the plaintiff N 2 Causation Defined a Intervening Causes i Anything that occurs after the defendant39s negligent act and that contributes to the plainti s injury ii Intervening Acts 1 Accidents Medical Malpractice of doctor occurring after defendant39s negligence Escape attempts Rescue F oreseeable negligence of others MKWN 6 F oreseeable criminal or intentionally tortious conduct b Superseding Cause i Intervening cause rises to such a level of importance that it precludes the defendant39s negligence from being the proximate cause of the injury to the plaintiff this causation applies ii Superseding Acts in which defendant is NOT LIABLE 1 Force Majeure 2 Gross medical malpractice of doctor occuring after defendant39s negligent 3 Bizarre escape response to defendant39s negligence 4 Grossly careless acts of rescuer 5 Unforeseeable negligence of others 6 Unforeseeable criminal or intentionally tortious conduct c Unforeseeable Intervention i If the intervention was nor foreseeable but in fact led to the same type of harm as that quot J by the J r J quots quot the courts typically find the intervention not be a superseding cause 1 Reasoning the defendant exposed the plaintiff to an unreasonable risk of harm of the same type as that which occurred allowing the defendant to escape liability simply because the harm was produced by an unforeseeable intervention would be unfair 1 Categories of Damages a Compensatory Damages i Designed to compensate the victim for her losses and restore her to the position she was in before she sustained her injuries ii Two Types 1 General Damages a Type that generally result from the kind of conduct engaged in by the defendant b Example compensation for pain and suffering 2 Special Damages a Specific or unique to the plaintiff b Example Medical expenses lost wages and future impairment of earnings b Punitive Damages i Intended to punish defendant for reckless or egregious misconduct and deter others from engaging in the same or similar wrongful conduct ii Not intended to make the plaintiff whole but instead are used to punish defendants who have acted with ill will or in conscious disregard for the welfare of others iii It also deters future misconduct by the defendant and similarly situated defendants c Nominal Damages i Awarded when no actual damages are proved but a tort is shown to have committed not available in negligence suits iii Awarded in intentional and strict liability causes in which h liability is established but where no actual harm occurred Although negligence hasn t occurred the defendant must be punished somehow 2 Illustration of Damages a Pain and Suffering i iii In Anderson v Sears Roebuck the plaintiff was severely burned and hospitalized she sued and her compensatory damages were divided into four categories with the amounts won 1 Past and future medical expenses 250000 2 Past physical and Mental Pain 600000 3 Future physical and mental pain 750000 4 Permanent disability and disfigurement 1 Million quotDayinthelifequot videos are often used by plaintiffs attorneys to graphically represent the plaintiff39s suffering l Criticized by defense attomey s as unfairly appealing the jurors sympathies and prejudicing them against the defendant quotPerdiemquot technique multiplies the total number of days hours or minutes the pain is expected to last usually not admissible because of high numbers Criticism of Pain and Suffering Awards 1 The problem of subjectivity in reference to the awarding of damages for pain and suffering has been the subject of debate quantification of such damages is often difficult 2 Some argue however that if the law is able to redress a businessperson who sustains commercial damage it can do no less for those who have a suffered a quotmore poignant in ictionquot 3 Sentiment is an element in all damages 4 Reasoning goes the lack of precision in assessing damages should not preclude their approximate measurement and they should be submitted to the best judgment of the jury 5 Some state that pain and suffering should ONLY be awarded when there is a physiological basis for the pain 6 Argument given to justify compensation is that compensation brings consolation to one who has suffered b Impaired Earning Capacity i ii In Anderson the court concluded that the plaintiff s injuries would prevent her from earning a living for the rest of her life and that therefore the jury39s award of 330000 for impaired earning capacity was appropriate Two types 1 Recovery for past earnings a Relatively easy to calculate if the plaintiff was working at a fix wage income b If unemployed or ea1nings cannot be computed exactly the plaintiff will have to use circumstantial evidence to show impairment of earning capacity 2 Recovery for prospective future losses a More difficult to prove b Mortality tables are published by insurance actuaries and take into consideration the plaintiff39s personal habits prior health and individual characteristics in determining the plaintiff39s projected life 0 pan ONLY applicable when the plaintiff can show that the injuries are permanent 3 Shortened Life Expectancy a Remedies for the plaintiffs life expectancy traditionally have been DENIED b Under common law damages for loss of life were precluded unless provided for by statute there has been a desire to avoid an issue so fraught with incalculable variables as well as fear that such compensation would result in a duplication of damages 4 CollateralSource Rule Plaintiff is often reimbursed outofpocket expenses from her insurance company such as lost wages medical care payments etc Under the CollateralSource Rule she is entitled to recover these damages AGAIN from the defendant Medicare payments welfare SSI and free help from friends and family are still taken into account The rule PRECLUDES the admission of evidence to the jury regarding payment of benefits to the injured party from a source other than the tortfeasor i In many cases the benefits are one for which the plaintiff has directly or indirectly paid Legal actions today no longer favors the double recovery for the same injury res judicata f In many cases the company making the plaintiff39s payment has a right of reimbursement out of and judgment the plaintiff receives known as subrogation i A medical insurance plan typically requires that the plaintiff reimburse the company out of any judgment he receives thereby preventing double recovery most courts have held that evidence of collateral benefits is inadmissible 5 Expenses of Litigation a Inthe US you are not entitled to your expenses for litigation and attorney s fees b Fees are generally 3313 percent for settlement and 40 percent of the final judgment 6 Damages for Physical Harm to Property a Damages for physical harm to property are tied to the value of the property i If the property is completely damaged damages are measured according the value of the property at the time and place the tort occurred ii If the property is damaged but not destroyed the damages are measured by the difference in value before and after the tort although the amount cannot exceed the replacement cost iii If the plaintiff is merely deprived of use of the property damages consist of the value of the use of which the plaintiff was deprived b Reference to value of property is alluding to it s fair market value i The amount that the property could have been sold for on the open market E Fquot 0 3 1 D ii The market value is usually determined on the basis of the market at the place and time that the wrong occurred 7 Damages in the context of product liability cases require special consideration discussed in Product Liability 8 Punitive Damages a Sometimes referred to as exemplary damages are designed to punish the tortfeasor for egregious misconduct and to determine similarly situated wrongdoers b Some jurisdictions require that the jury nd defendant39s conduct was i quotrecklessquot ii quotwillful or wanton or iii quotwith an evil mind c Punitive damages are permitted when the defendant commits an intentional tort such as assault or intentional in iction of emotional harm d Punitive damages are often appealed and reduced or remitted by the judge OR can increase the award termed additur e The most frequently stated benefits of permitting punitive damage awards are i To provide a plaintiff who has suffered only nominal damages with an incentive to litigate ii To punish the defendant for the transgression iii To deter the defendant and others from committing similar acts in the future f Ford Pinto Case i Defendant Ford Motor Company argued that it should not be liable for punitive damages because no evidence of corporate rati cation of the alleged misconduct was represented plaintiff bought a Ford Pinto in which after stalling it erupted in ames due to an accident and were severely injured the driver died later due to burn related injuries but passenger survived awarded 35 million in punitive damages which far exceeded state statute 9 Recovery for Loss of Consortium Loss of the Relationship a Under law husband and wife were considered one therefore if the wife were injured the husband could recover for loss of consortium i Recovers for loss of companionship sex earnings outside the house etc b Because the wife had no right to services from her husband she could recover nothing if he were injured c Loss of Consortium is a derivative claim in that it is derived from the spouse s underlying claim Argument Wife is injured and both win violation of double recovery i Most states state that the actions must be brought together Res judicata 10 Assessment of Damages a Medical Lost Wages Property Damage H Pain and Suffering Expenses l What type of How much money What is the cost of What is the nature treatment was would the plaintiff repairing damaged and extent of received have earned but for property injuries being injured For how long How much work has If a vehicle had to be To what extent is was the the plaintiff lost as a rented what is the cost the plaintiff treatment result of being of that rental incapacitated by received injured Including permanent injuries vacation time sick or dis gurement time taken while recovering Was the Is the number of lost What personal items To what extent are treatment work hours were lost or destroyed the plaintiff39s daily recognized in reasonable in light as a result of the activities curtailed the medical of the nature and defendant39s actions or made more community extent of the injuries and what is the cost of difficult as a result sustained replacing those items of being injured based on their fair market value Who Has the plaintiff lost What is the fair market What kinds of performed the potential pay value of any items that recoveries have ltreatment increases as a result cannot be replaced been awarded in of lost work cases involving injuries of comparable nature and degree ll WrongfulDeath and Survival Actions a Under common law when a plaintiff died as a consequence of injuries in icted on him by the defendant his tort action died along with him i At this point his spouse and children are barred from Consortium ii Rationale It was immoral to put a monetary value on human life Lord Campbell39s Act was passed in England i Allows recovery to families or individuals killed by tortious conduct ii In accordance with this act all states has passed statutes allowing some kind of survival action so that the injured party s claim survives his death 1 Cause of death is irrelevant in most states statutes provide that a cause of action for injury to tangible property survives the plaintiff39s death a Some states permit claims pertaining to intangible interest such as in iction of emotional distress and defamation iii Damages are awarded to deceased estate Statutes allowing wrongfuldeath actions have been also passed so that third persons usually the decedent39s spouse and children can recover for losses they sustained as a result of the decedent39s death i Issue of wrongful death is unique in the field of tort law because it centers around the interpretation of statutes litigants in this area are forced to engage in statutory construction and determination of legislative intent d Types of Recovery Allowed Fquot 0 i When a survival action is led separately from a wrongfuldeath action double recovery is a possibility I To prevent this statues limit survivor actions to those losses occurring prior to the decedent39s death 2 Damages are restricted therefore to the decedent s medical expenses lost earnings prior to death and pain and suffering IF the death is instantaneous then no survival action exists because no damages occurred prior to death ii Under Campbell39s Act and the wrongful death legislation patterned after that act damagers were to be limited to pecuniary or economic losses caused by the decedent s death 1 Loss is measured monetarily iii Several states allow recovery for grief and other mental suffering of the survivors but have imposed a cap on damages to protect against quotbonanzaquot iv Recovery for a wrongfuldeath of a child is difficult I Usually the expense of raising a child is far more expensive than the child can bring home most courts reward Consortium few reward potential income e Disclosure of Remarriage i Issue is whether a plaintiff who is remarried should be allowed to disclose that information from the jury l Concern is whether jury will be less giving 2 Most courts refuse to allow evidence of remarriage even if used for limited purpose f Who Recovers i Survival actions are usually brought by the executor or administrator of an estate 1 Recovery becomes an asset to the estate 2 Recovery for pain and suffering is allowed ONLY if the decedent was conscious ofpain l2 Discounting Future Damages a The present value is the current value of money that is to be paid in the future b Recognition of the earning power of money has resulted in many courts requiring juries to reduct or discont awards to the present value of lost future earnings c Discounting an award prevents the plainti from realizing an unwarranted windfall and reduces losses to the defendant d Life expectancy tables annuity tables and work expectancy tables are used for determining earning expectancy i To calculate judgment in ation must be taken into consideration 13 Structured Settlements a Under common law past and future damages were paid in one lump sum recently large future damages have been paid using a periodicpayment settlemtn b Three reasons are generally given for the use of a structured settlements i The plaintiff does not have the responsibility of making arrangements to invest the money if he receives periodic payments 0 ver a long period of time 1 Money will be available to cover basic human needs LA ii A large amount of the money will be prudently invested and will not be squandered through ignorance had advice or frivolity iii The income tax that the plaintiff has to pay is usually minimized using a structured settlement c Downside i Inability to freely spend the moneies ii The unvertainty of the real present cash value of the settlement iii Fixed nature of the payments iv Possibility of insolvency of the company responsible for the payments d Structured Settlements is widely used in product liability cases and can bridge the gap between a plaintiff s nal settlement demand and a defendant39s nal offer 14 Mitigation of Damages a Contractual and Tortious Cases b Duty to mitigate damages required under contract law applies to tortious law i Avoidableconsequences rule 1 A plainti cannot recover for any damages she could reasonably have acoided 2 Example a plainti cannot recover for the additional medical expenses necessary to treat an infection incured by the plainti s failure to seek prompt medical care for a wound caused by the defendant39s negligence burden of proof is on the defendant to prove that ii Can be used to argue that the plaintiff had the duty to avoid the damages 15 Mental Suffering a A plaintiff need not show that he suffered some kind of physical harm to recover for mental suffering b Parasitic damages are damages that are from a physical injury mental damages c When the plaintiff sustains no physical injury the courts are reluctant to permit recovery for emotional suffering because of a fear that the suffering may be feigned d Impact Rule i Predicating recovery for mental suffering on the plaintiff experiencing some type of physical quotimpactquot e Attempts to Circumvent the PhysicalHarm Requirement i IF the defendant39s conduct was intentional or willful the courts have been much more willing to allow recovery for pure emotional distress ii IF the plaintiff suffers emotional distress that subsequently manifests in the form of physical consequences the vast majority of courts also allow recovery even if the manifestation of physical consequences is no immediate iii Some states have abandoned the rule completely when the facts are such that one could readily believe there could have been actual mental distress iv Example Plaintiff was allowed to recover against the defendant doctors and hospital who had mistakenly told his wife that she had syphilis sued over dissolution of marriage and court rejected the artificial physical harm requirement for two reasons 1 Classification is both over inclusive and under inclusive when viewed in the light of its purported purpose of screening false alarms N Defect in the requirement of physical injury is that it encourages extravagant pleading and distorted testimony a Court concluded that the jurors were in the best position to determine whether the defendant39s conduct could have cause emotional distress States have started to abandon the physicalharm requirement if the plaintiff was near the scene of the accident personally observed it and was closely related to the victim 1 Viewing a death personally is an example 1 Defenses Three Types a Contributory Negligence 1 iii The defense of contribotyr negligence in essence shifts the loss from the defendnat to the plaintiff by completely barring the negligent plaintiff from recovery The plaintiff is barred even though the defendant was negligent and in most cases was more negligent than the plaintiff Rationale negligent plaintiff39s should be punished for failing to protect their own safety additionally some courts have argued that the plaintiff39s negligence bcause the proximate cause of her injuries thus removing the defendant as the proximate cause Exceptions 1 Requirement that contributory negligence be proved and specifically pleaded by the defendant 2 The question of contributory negligence is left to the jury a Most states require that the plaintiff s negligence meet the standards of the butfor or substantialfactor test of actual causation in order to be barred from recovering 3 The same rules that apply in determining proximate cause in terms of the defendant39s conduct also apply to the plaintiff 4 Proximate cause in construed more narrowly in the case of contributory negligence than it is in the cause of the defendant39s negligence 5 LastClearChance Doctrine a The most significant way in which the contributory negligence defense has been limited has been through the use of the doctrine Under this doctrine if the defendant has an opportunity that is unavailable to the plainti to prevent the harm that occurs and does not take advantage of it the defendant will remain liable despite the plainti s contributory negligence i The defendant39s failure to take advantage of an opportunity to prevent the harm negates the plaintiff39s contributory negligence 0quot Plaintiff is Helpless and Plaintiff can recover in all courts Defendant discovers danger but negligent fails to avoid it Defendant fails to discover danger Plaintiff can recover in because he is inattentive most courts Plaintiff is inattentive but not Helpless and Defendant discovers danger but Plaintiff can recover in negligently fails to avoid it most courts Defendant fails to discover danger Plaintiff can NOT recover because he is inattentive Defendant is unable to avoid harming Plaintiff cannot recover in plaintiff most courts v When Contributory Negligence is Not A Defense 1 Contributory negligence is NOT a defense to an INTENTIONAL TORT 2 Contributory negligence is NOT a defense if the defendant39s conduct was quotwillful and wantonquot or quotrecklessquot UNLESS the plaintiff39s conduct was also willful and wanton or reckless 3 A defendant who is negligent per se might not be able to raise the defense of contributory negligence b Comparative Negligence i Compartive negligence was created as an alternative to the allornothing approach of the contributory negligence system ii The plaintiffs recovery is reduced in direct proportion to her degree of negligent contribution to her own injuries 1 If a plaintiff is found to be resonsible for n of her injuries and suffers 1 million in damages she will be awarded n of 1 million dollars iii Types of Comparative Negligence 1 Pure comparative 50 approach a Plaintiff can recover no matter how extensive his negligence provided his contribution to negligence is 50 of less 2 Not as great as49 rule a The plaintiff39s claim is barred as soon as her negligence is as great as the defendant39s negligence 3 Not greater than a Plaintiff is barred only when her negligence is greater than the defendants iv Administrative Problems 1 The comparativefault system creates practical problems a How should the percentage of fault be assigned to the plaintiff and defendant b Should fault be based on the extent that the party s conduct contributed to the resulting harm as suggested by the Uniform Comparative Fault Act c Should fault be based on the extent to which the plaintiff39s conduct deviated from a reasonable standard of care V Other Issues Affecting Comparative Negligence 1 Is the lastclearchance doctrine J J quot 39 39 system a Most states have not recognized the lastclearchance doctrine after adopting comparative negligence b Few have abolished the lastclearchance doctrine c Few have retained the doctrine either reasoning that last clear chance is not incompatible with comparative negligence or not questioning the compatibility i The Uniform Comparative Fault Act expressly rejects its use d Comparative negligence generally is not used in reference to intentional torts to reduce the plaintiff39s damages a defendant who commits an intentional tory may not use the argument that the plaintiff contributed to his own injuries 2 Most states adopting the comparativenegligence approach have allowed for the reduction of the negligent plaintiffs recovery in cases in which the defendant violated a safety statute and was therefore negligent per se 3 Unlike contributory negligence the same stance is taken even when the statute is designed to protect members of the plaintiffs class and to place all responsibility on the defendant a Some states have denied apportionment arguing that it would defeat the purpose of the statute in question ina r 2 Assumption of the Risk a po A plaintiffwho volunteers to take the chance that harm will occur is said to have assumed the risk Under common law the plaintiff is completely barred from recovery Comparison to Contributory Negligence i Some states have abolished the doctrine and considered assumption of risk to be a form of contributory negligence l Justification behind this merger is that often a plaintiff who has assumed the risk has also been contributorily negligent ii In some situations a plaintiff is NOT negligent simply because he has assumed the risk 1 Ifthe plaintiff s decision to entertain a risk is reasonable in light of the circumstances he will not be considered negligent particularly if few options are available to him other than engaging in risky behavior Differences Between Contributory Negligence and Assumption of Risk i Some states have extended assumption of risk to any situation in which the plaintiff voluntarily exposes herself to a known risk 1 Definition of voluntary exposure goes beyond the concept of consenting to a risk and further blurs the distinction between assumption of the risk and contributory negligence a To avoid this ambiguity some courts have characterized contributory negligence as quotcarelessnessquot and assumption of the risk as quotadventurousnessquot Contributory Negligence Assumption of the Risk Characterized as quotrecklessnessquot Characterized as quotadventurousness39 Plaintiff compared to reasonable person Did plaintiff understand risk objective standard subjective standard Not a defense to reckless misconduct Is a defense to reckless misconduct Not generally a defense in strict liability Is a defense in strict liability cases cases Ifthe conduct of the plaintiff constitutes both assumption of risk and contributory negligence the defendant can choose to assert either defense or in some jurisdictions both Comparitive Negligence and Assumption of Risk i Those states that have adopted comparativenegligence sattutes have removed assumption of risk as a separate defense and have merged it in part at least into the defense of comparative negligence ii A plaintiff who unreasonably places himself in danger is considered negligent and his recovery is reduced although not barred completely Express Assumption of Risk i A plaintiff can either expressly or impliedly assume the risk 1 Signature constitutes a expression of assumption of the risk ii A plaintiff must actually be aware of any risk he is said to have assumed if a limitation on liability is buried in fine print where the plaintiff is unlikely to see it it will not be binding on him iii Waivers of liability are valid only in reference to the defendant39s negligence and not for his intentional tortious acts nor for his gross or willful and wanton negligence iv For a release to be enforceable the court said it must be expressed in quotunmistakable languagequot and it must be plainly and precisely apparent that quotthe limitation of liability extends to negligence or other fault of the party attempting to shed his ordinary ordinary responsibilitiesquot Implied Assumption of the Risk i A plaintiff is said to have impliedly assumed the risk when her conduct shows that she was aware of the risk in question and coluntarily agreed to bear that risk herself 1 Plaintiff mounts a horse and is bucked off plaintiff mounts same horse implied assumption of any injuries ii What if the plaintiff protests against being asked to assume a risk but ultimately agrees to take that risk 1 Most courts hold that he waived his objection and assumed the risk 3 Statutes of Limitations and Statutes of Repose a Statute of limitations is the statute limiting the time in which an action can be brought i Any action not commenced within that time period is barred ii Most statutes of limitations begin to run when a cause of action accrues question is when the accrual takes place quot1 9 Pquot b 0 1 Most courts held that accrual occurs when there has been an actual injury to the plaintiff39s person or property a Problem when the plaintiff could not reasonably have discovered her injury until after the statute had run To mitigate the harshness of a statue that precludes recovery in a case such as furthered medical malpractice many courts have created the discovery doctrine i Provides that the statute does not begin to run until the injury is or should have been discovered ii Arguments state that the doctrine contributes to the rising cost of medical malpractice insurance Statute of Repose i Begins to run at the date of sale of a product ii Statutes designed to 1 Limit a manufacturer39s liability 2 Lower insurance costs for manufacturer39s 3 To introduce a sense of certainty in the area of product liability litigation a Most statutes of repose are five to twelve years an in some cases may bar suit even before injury occurs iii The effects such as injuries by DES or asbestos are affected by this doctrine which was then found unconstitutional


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