What is Tort Law A formal definition'

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What is Tort Law? A formal definition.

• The body of law that determines when an
  injured party can recover compensation for an
  injury from another party through a civil action.
• Civil, not criminal
• Obligation arising out of law, not out of contract

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What is Tort Law?

• A social system for
• Distributing the costs of injuries that are a
  by-product of a complex society.
• Compensating people who have been injured by
  particular forms of conduct
• OR
• Protecting the rights of those who are injured by
  the conduct of others by requiring wrongdoers to
  make good the harm
• OR
• Deterring wrongful conduct that the criminal law
  doesnt reach

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Why do we need tort law?

• to provide compensation for people who have been
  injured
• to achieve corrective justice by restoring the
  status quo when someones rights have been
  violated
• to deter wrongful behavior
• because it is fair, it is part of the mutual
  expectations we have as members of a civilized
  society
• to redistribute wealth in a more fair way (unjust
  enrichment? You profit, you pay)

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Synthesizing and Organizing the Law
I. Employers are vicariously liable for the torts
of their employees, but not for the torts of
independent contractors. Potential issue what
if youre not sure about status? A. An employee
is ? B. An independent contractor is ? HERES
A GOOD POINT TO CHECK A TREATISE OR SECONDARY
SOURCE
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Synthesizing and Organizing the Law
II. Employers are only liable for acts within the
scope of employment. Issues come up when people
combine personal and business activities. A.
Rule from the case, from the Restatement Be
detailed. Get all the parts. For torts, pay
attention to who decides what. B. Examples of
the rules application 1. Christensen 2.
Others from notes, class discussion
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Synthesizing and Organizing the Law
III. One who contracts with an independent
contractor may be liable for the contractors
torts if A. An ostensible agency or agency by
estoppel is created, 1. Two possible rules
reasonable belief vs. acts that cause
appearance of agency. Issue What kind of a
case would require you to choose between them?
2. Arguments for and against each rule a.
precedent b. policy
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Synthesizing and Organizing the Law
III. One who contracts with an independent
contractor may be liable for the contractors
torts if A. . . . B. OR IF the duty is non
delegable 1. Not hospitals 2. Property owners
and snow removal 3. Mechanics -- division of
authority. 4. What other non delegable duties
might there be? Inherently dangerous
activities! (grave risk of serious bodily harm or
death Maloney at p. 27) Best position to protect
against the risk and insure or insist on solvency
(Valenti, note 4)
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Synthesizing and Organizing the Law
IV. An employer or an independent contractor may
be liable for his / her own negligence in
selecting or training the employee /
contractor. Lost for a rule? check a treatise
or the Restatement!
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Negligence The Cause of Action

• The Prima Facie Case 4 elements
• Duty
• Breach
• Causation
• Damages

• Defenses
• Contributory negligence / comparative fault
• Assumption of the risk

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Negligence B. The Central Concept 1. The
Standard of Care
Negligence is the doing of something which a
reasonably prudent person would not do, or the
failure to do something which a reasonably
prudent person would do, under circumstances
similar to those shown by the evidence. It is
the failure to use ordinary or reasonable
care. Ordinary or reasonable care is that care
which persons of ordinary prudence would use in
order to avoid injury to themselves or others
under circumstances similar to those shown by the
evidence. California BAJI 3.10
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Negligence B. The Central Concept 1. The
Standard of Care

• Ordinary care
• begins with identifying an untaken precaution
• depends on the exigencies of the case
• requires that the risk be foreseeable
• does not require that a lawful activity be
  abandoned because it poses some risk
• however, even a remote risk can require
  precautions if the risk is needless or the
  threatened harm is great
• ability of others to reduce the risk can factor
  in to what is ordinary care

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Negligence B. The Central Concept 2. The
Reasonable Person
The reasonably prudent person standard is 1)
external, and 2) objective.
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Negligence B. The Central Concept 2. The
Reasonable Person

• Reasonably prudent person standard sometimes
  takes the individuals capacity into account
• physical disability
• children / child-appropriate activities
• actor with superior capacity (Restatement view)
• It does not take mental incapacity into
  account.

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Negligence C. The Roles of Judge and Jury 2.
Custom
I. Custom can be evidence of what ordinary care
requires. A. Does not establish as matter of
law. Potential question for jury would a
reasonable person have adhered to the
custom? B. But may be basis for directed
verdict. See note 4 p. 71
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Negligence C. The Roles of Judge and Jury 2.
Custom
II. In order to be admissible as evidence of the
standard of care, a custom must be A.
Relevant to the issue of safety B. Fairly well
defined C. In the same calling or business.
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Negligence C. The Roles of Judge and Jury 2.
Custom
III. Why compliance with a custom is
relevant A. Suggests community judgment has
been that these are all the precautions that are
necessary, B. Suggests that the cost of doing
it differently may be high.
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Negligence C. The Roles of Judge and Jury 2.
Custom
IV. Failure to comply with custom is relevant
because it 1) establishes that a particular
precaution was feasible, and practical, and that
compliance will not have a dramatic effect on the
industry 2) establishes that a reasonable
person would have had notice of the availability
of a particular precaution and of the need
(foreseeability) for the precaution.
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Negligence C. The Roles of Judge and Jury 2.
Custom
V. Custom, even if drawn from another industry,
might be relevant if it helps prove A. That
under these circumstances, harm was
foreseeable B. That there was notice of
available precautions C. That a method of
reducing the risk was technically feasible
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The Standard of Care A Quick Wrap - up
I. What is the standard of care A.
Reasonably prudent person B. Reasonably prudent
child / physically disabled person C. Common
carrier utmost care
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The Standard of Care A Quick Wrap - up
II. What does the standard of care require by
way of specific conduct? Once an untaken
precaution is identified A. Is there a rule
of law? B. Is there a criminal statute that the
court can use to establishes a specific standard
of care? C. Is there a custom? D. What would
the reasonable person do? 1. Evidence about
what the rpp knows / does? 2. Use the LH
formula to evaluate whether a precaution is
reasonable?
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The Standard of Care A Quick Wrap - up
III. The plaintiff bears the burden of proof on
negligence, the defendant on contributory
negligence.
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Res Ipsa LoquiturThe Foundational Facts
If 1) When this type of accident occurs, it is
usually result of negligence, 2) Defendant in
exclusive control of instrumentality, and 3)
Not due to plaintiffs voluntary
contribution Then
Target Fact Defendant failed to use reasonable
care
Evidentiary Fact The accident occurred
Somewhat more likely
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How is the standard of care different in a
medical malpractice case?

• The standard is the reasonably prudent
  professional, or specialist, with the
• Skill,
• Training, and
• Experience commonly held by drs in that field.
• Expert testimony is almost always necessary to
  establish what the standard is.
• Custom is usually dispositive, one way or the
  other.

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Ch. II (E) The Special Case of Medical
Malpractice Informed consent

• Elements of the cause of action
• 1) Existence of a medically recognized risk or
  alternative treatment
• 2) Risk is material.
• Professional standard?
• Reasonable patient standard?
• Subjective standard?
• 3) Causation
• Reasonable patient standard?
• Subjective standard?

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Chapter III Duty Review Summary
The prima facie case in negligence Duty Is
there an obligation to use reasonable
care? Breach What does reasonable care
require? Causation Damages
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Chapter III Duty Review Summary
DUTY Is there an obligation to use reasonable
care? BREACH Under the circumstances, did the
actor behave reasonably?
Question of law, judge decides based on
precedent.
General
Question of fact, jury decides
Specific
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Chapter III Duty Review Summary

• Areas of no duty
• No duty to warn / rescue / protect another
  unless
• Special relationship to injured person
• Undertaking to aid
• Special relationship to person causing harm
• Created risk through
• Affirmative acts
• Negligent misrepresentation
• Negligent entrustment

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Chapter III Duty Review Summary

• Areas of limited duty
• Limited duties of utilities
• Car key cases / special circumstances test
• Limited duty in landowner cases
• For activities or artificial conditions
• For harm threatened by others (crimes on
  property)

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Chapter III Duty Review Summary
The broad themes Even though you had the
ability to prevent the foreseeable harm from
occurring by taking reasonable steps, you are not
liable, OR at least you are not liable to this
particular person Explicit invocation of
policy to justify limitations Tug of war between
judge and jury
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Chapter III Duty The Rowland test a tool
for identifying the policy arguments that matter
We depart from this fundamental principle only
upon the balancing of a number of
considerations 1) foreseeability of harm to the
plaintiff 2) degree of certainty that the
plaintiff suffered injury 3) closeness of
connection between the defendants conduct and
the injury suffered 4) moral blame attached to
the defendants conduct 5) the policy of
preventing future harm 6) the extent of the
burden to the defendant and consequences to the
community of imposing a duty 7) the
availability, cost, and prevalence of insurance
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Chapter IV Emotional Harm

• Who can recover damages for emotional distress?
• Plaintiffs who suffer a physical injury as the
  result of someones negligence?
• Plaintiffs who are in the zone of physical
  danger and fear for their own safety?
• Plaintiffs who are direct victims of anothers
  negligence and who suffer emotional distress?
• Plaintiffs who indirectly suffer emotional
  distress because of a direct injury to another?

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Chapter IV Emotional Harm
Who can recover damages for emotional
distress? Plaintiffs who suffer a physical injury
as the result of someones negligence? Recovery
for the emotional harm that stems from the injury
allowed in all jurisdictions.
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Chapter IV Emotional Harm
Who can recover damages for emotional
distress? Plaintiffs who are in the zone of
danger and fear for their own safety? Old rule
only if there was an impact New rule Recovery
generally allowed. BUT Metro-North only where
physical injury is imminent Lawson (airplane
crash case) disagrees
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Chapter IV Emotional Harm
Who can recover damages for emotional
distress? Plaintiffs who are direct victims of
anothers negligence and who suffer emotional
distress? The dead body and message of death
cases allow recovery. Gammon allows recovery.
California (Molien v. Kaiser Hosp, negligent
diagnosis of syphillis, told to tell
husband). But, Johnson v. Jamaica Hospital
foreseeability standing along does not create a
duty.
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Chapter IV Emotional Harm
Who can recover damages for emotional
distress? Plaintiffs who indirectly suffer
emotional distress because of a direct injury to
another? Portee (and California) allow recovery,
but only where the bystander criteria are
met New York does not allow recovery (Johnson,
Bovsun) unless you are also in the zone of
physical danger.
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Chapter Five Cause in fact

• 1) Burden on the plaintiff
• 2) In a civil case, that means more likely than
  not
• 3) Need not disprove all possible scenarios
• Test is whether, based on the evidence, the
  finder of fact is reasonably certain that among
  all the possible alternative causes, the
  defendants negligence caused the harm.
• Fact that the defendants conduct increased the
  risk of specifically this type of harm may meet
  the burden of producing evidence. See n. 5,n. 6
  p. 358

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Chapter Five Cause in fact Multiple
defendants

• When are multiple defendants jointly and
  severally liable?
• concurrent tortfeasors
• inability to apportion
• acting in concert
• other vicariously liable defendants
• alternative liability (Summers v. Tice)
• alternative liability / twin fires scenario
• market share liability

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Chapter Five Proximate Cause Review
The problem (focusing on the employer, and the
initial injury) Duty Employers have a duty to
provide a safe workplace (special
relationship) Breach What is the untaken
precaution? Why was it negligence to fail to
take it? Causation Actual cause but-for the
defendants negligence, would the accident have
occurred? Proximate cause Did something
unexpected occur? Damage, or injury Physical
injury
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Does the defendants liability extend 1) only
to the foreseeable results of his actions, and no
further? Palsgraf, Wagon Mound 2) to all the
results of his actions, foreseeable or
not? Eggshell skull rule 3) to some, but not
all of the unforeseeable consequences of his
actions? -- Polemis rule all results directly
caused -- not to entirely different
hazards --Secondary harm cases limited to the
normal consequences, and only where a
substantial factor -- Andrews, Kinsman
hindsight approach
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Chapter Five Proximate Cause
Eggshell skull plaintiffs Liable for all harm,
limited by cause in fact Set stage cases Wagon
Mound only liable for foreseeable type of
harm Polemis liable for all harm that
directly results Kinsman same sort of
harm, same physical forces, same class of
persons. Not liable if entirely different
hazard Secondary harm Liable for natural or
normal consequences defined in hindsight, but
must be a substantial factor Intervening
cause Restatement liable if the type of harm
threatened by cases Ds negligence occurs,
even if the manner is unexpected. Cut-off
unforeseeable intl or gross neg Not liable if
intentionally caused, unless those acts were
foreseeable (and there was a duty!) Unforeseeable
Ps Cardozo no duty, not liable Andrews duty
to the world, analyze proximate cause in
hindsight
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• Was the plaintiff foreseeable?
• If not, Cardozo says no duty
• If so, or if you follow the Andrews view
• Was the initial injury unexpected?
• Set-stage cases
• Outside the scope of the risk / different hazard?
• In a close case Wagon Mound or Kinsman?
• Intervening cause cases Foreseeable intervening
  cause, or same type of harm / different manner
• Were there unforeseeable consequences of the
  initial injury?
• Egg-shell skull rule
• Normal consequence / normal efforts rule

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Chapter Six Assumption of the Risk
I. If you arent in Rhode Island If the
defendant argues that the risk was obvious to the
plaintiff, or would have been obvious to a
reasonable person or is inherent in the
activity 1) Did the defendant owe the
plaintiff a duty? -- was it an inherent risk
primary a/r -- is there no duty to protect
from negligence (sports) -- open obvious
danger rule in premises liability, swimming
pool cases -- does the firefighters rule
apply If there was a duty 2) Was the defendant
negligent at all? If so, 3) Was the plaintiff
also at fault because he unreasonably chose to
encounter the risk? Plaintiffs recovery is
reduced.
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Chapter Six Defenses A. The Plaintiffs
Fault 1. Contributory Negligence

• Duty to use due care to protect oneself from
  physical injury
• Breach
• reasonable person standard
• perhaps more willing to take mental capacity into
  account
• Learned Hand formula, role of custom, violation
  of statute,etc. all can be used to establish the
  std of care
• Causation
• actual cause
• proximate cause

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Chapter Six Assumption of the Risk

• II. If you are in Rhode Island? (a jurisdiction
  where a/r is still a complete defense)
• Then, the key is actual awareness consent
• The plaintiff must have knowledge of the facts
  constituting a dangerous condition
• The plaintiff must know that the condition is
  dangerous
• The plaintiff must appreciate the nature and
  extent of the danger
• The plaintiff must voluntarily expose herself to
  the danger, under circumstances that indicate
  that the plaintiff has acquiesced in the risk.

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• Duty
• Breach
• Causation
• Defenses
• Contributory negligence/comparative fault
• Assumption of the risk
• -- express
• -- primary implied a/r
• -- secondary implied a/r Form of comparative
  fault
• Damage or injury

Negate duty, complete defense
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Chapter Seven Strict Liability A. Doctrinal
Development
Restatement Second of Torts, 520 a) existence
of a high degree of risk b) likelihood of great
harm c) inability to eliminate the risk by the
exercise of reasonable care d) not a matter of
common usage e) inappropriateness of activity to
place carried on f) extent to which activitys
value to the community is outweighed by its
dangerous attributes.
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Chapter Seven Strict Liability A. Doctrinal
Development

524A Plaintiff's Abnormally Sensitive Activity
There is no strict liability for harm
caused by an abnormally dangerous activity if the
harm would not have resulted but for the
abnormally sensitive character of the plaintiff's
activity.
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Ch. 8 Liability for Defective
Products Failure to warn Problem
I. Manufacturing, Design, Warning? II.
Manufacturing A. Prove a flaw that existed when
left control 1. Manufacturers intent B.
Creates danger 1. Consumer expectation
test 2. Inherent / intrinsic characteristics of
product C. Causation D. Defenses
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Ch. 8 Liability for Defective
Products Failure to warn Problem
III. Design defect A. Consumer expectation
test 1. Remember failure to warn B. Risk
utility test 1. Reasonable Alternative
Design 2. State of the art 3. Open and
Obvious 4. Ultrahazardous products?? C.
Causation D. Defenses
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Ch. 8 Liability for Defective
Products Failure to warn Problem
IV. Failure to Warn A. Does the lack of a
warning make the product defective. 1. Need for
a warning? 2. Who do you warn? 3. Was the
warning adequate a. content b. appearance.
B. Causation C. Defenses