Assault Actor intends to cause "harmful or offensive touching" with the person of the other or a third person or imminent apprehension



Download 249.14 Kb.
Page1/3
Date conversion23.02.2016
Size249.14 Kb.
  1   2   3
I. Intentional Torts

A. Assault

1. Actor intends to cause "harmful or offensive touching" with the person of the other or a third person or imminent apprehension of such a contact; or

2. if the actor knows with substantial certainty that the action will cause apprehension of a harmful or offensive touching; and

3. the other is put in such imminent apprehension.

a. Apprehension is different from fright - you don't have to be actually scared (can use self-defense).

b. It is sufficient for apprehension that the π know that the harm will occur unless something else occurs to intervene.

c. It depends more on the apprehension created in the mind of he person assaulted than upon what may be the intent of the person committing the assault.

B. Battery

1. Actor Intends to cause unlawful harmful touching, or knows, or should know, with substantial certainty that his actions will cause such harm.

a. Intent to commit act is what controls not the intent to cause harm.

i. Ex: Boy who puts rubber ball in pool drain he mistakenly believes to be not sucking is liable.

b. Transferred intent - intent to commit harmful act is transferred to a third party who is struck inadvertently.

c. Substantial certainty - Ex: boy pulls chair out from under old woman as she sits.

2. π does not consent to the touching.

a. Implied consent - arises from circumstances.

i. Ex: victim of accident has implied consent to emergency medical services.

ii. Ex: kids playing on playground have implied consent to foreseeable injuries.

iii. Counter Ex: doctor is liable when he performs surgery on left ear when patient consented to right ear.

b. Substituted consent

i. Ex: a parent or guardian can consent for a minor or incompetent to undergo surgery.

ii. Can be overridden if induced by fraud or non-disclosure of material fact.

c. Duty of Disclosure - true consent can not be given in absence of all material facts.

i. Ex: Doctor must disclose reasonable risks and benefits involved in medical treatments and non-treatments.

d. Volunteers cannot recover for the reasonably foreseeable injuries they incur.

i. Ex: Illegal prize fighters cannot recover from each other, but may recover from the promoter as the driving force because they are the intended class of persons to be protected.

ii. Ex: Football player can recover from blatant injuries contrary to the rules which are not inherent risks.

II. Nonconsensual Defenses

A. Insanity

1. Insane persons can be held liable for intentional acts, epileptics are not held liable for uncontrollable acts because as between two innocents, let the actor bear the burden, and guardians of insane persons can be deterred.

B. Self-Defense

1. Actor must be in imminent apprehension of receiving great bodily harm.

2. If the actor wounds a third party inadvertently while taking reasonable steps to defend himself, there is no liability.

a. Ex: shop owner purposefully shoots cop who he thinks is a rioter coming to get him.

C. Defense of property

1. Force may be used to repel actual force.

2. Force may be used to repel intruders when they fail to desist after being requested to stop.

3. Force intended to cause grievous bodily harm.

a. Policy: replaceable property is not as valuable as personal safety.

b. Booby traps or spring guns cannot be used solely to protect personal property because they do not discriminate between innocent trespassers and thieves.

c. Deadly force can be used to protect dwelling places because if the owner were home, he could reasonably construe the breaking and entering to be an assault.

d. Force may be used to protect property which is not replaceable and has enourmous social benefit. Ex: cure for AIDS where there is only one vial.

D. Recapture of Chattels

1. Force is not authorized to get property back from a person who peacefully possesses your property under mistaken claim of right.

a. Policy - a victim cannot be the arbiter of his own claim, public order and peace are of greater weight, right of defense but not redress.

b. Ex: employee who takes $50 back pay from payroll cannot be beaten-up by his employer.

2. Peaceful repossession is allowed when done in "hot-pursuit" against someone who has taken under fraud, force or without claim of right.

E. Necessity

1. Actor who cannot control his movements while exercising a strict right.

a. Ex: mooring a boat to protect life and property during a violent storm is not unlawful.

2. Actor may be liable for damages while protecting his own more valuable property at the expense of another's.

a. Ex: cargo ship moored to dock during storm damages the dock.

b. "Incomplete privilege" - ∆ may cause harm if he pays for it prevents "Unjust enrichment" where the cargo ship owner walks away unscathed.

3. "Public Necessity" -a public official may act with immunity if he damages a person's property to benefit the public at large.

III. Strict Liability v. Negligence.

A. Policy

1. Strict Liability

a. ∆ internalizes the costs imposed on others as if he were the injured party (as between two innocents...)

b. Eliminates difficulty in determining "standard of care"

i. Reduces litigation costs in individual cases; however

ii. Gives incentives for more lawsuits, raising costs overall.

c. Net transfer of wealth from class more likely to reinvest it to a class of victims.

2. Negligence

a. π internalizes the costs he would not have avoided.

b. Requires determination of "standard of care" and "reasonableness".

i. increases cost of litigation in individual cases.

ii. reduces number of lawsuits because costs of litigation outweigh expected compensation.

c. Wealth remains with class who is productive and takes reasonable calculated risks.

B. Strict Liability

1. Rylands v. Fletcher

a. An actor is strictly liable for trespass, even if he was morally innocent and had no knowledge that his actions would cause damage. - Judge Bramwell at court of Exchequer.

b. A person who for his own purposes brings on his lands and collects anything likely to do mischief if it escapes is prima facie liable for all damages which are the natural consequences of its escape. - Judge Blackburn at court of Appeals

i. Proper defenses are contributory negligence, and Acts of God.

c. A person who uses his land for any non-natural purpose, and in consequence of doing so, causes damage to another's property, is liable for the damages arising from the non-natural use. - Judge Cairns at House of Lords.

i. Building owner is not liable when third person causes plumbing to overflow because indoor plumbing is necessary in modern society and not non-natural. Non-natural means not ordinary.

2. Respondeat Superior - an employer is strictly liable when his employees are liable (either strictly or negligently) for damages that they caused while in the course of their employment. Does not include private contractors.

C. Negligence requirements- Duty, Breach, Causation, Damages.

D. Standard of Care determination

1. Objective Standard - did ∆ act reasonably under all the circumstances?

a. more likely to take into account practical circumstances when actions can be deterred.

ii. Ex: blind person will not be held liable for his lack of sight because his blindness can't be deterred.

b. Brings substandard behavior up to the average level because general public safety demands it, otherwise stupid people have built-in defense.

c. Beginners held to an average skill standard because of public reliance and safety.

d. Children a held to an adult standard when they engage in dangerous adult activities. - Ex: teenager driving a car, operating heavy equip., shooting a gun.

2. Subjective Standard - did π act in good faith?

a. Difficult to determine mindset of actor.

b. Policy - do not deter heroism, do not penalize reliance.

3. Foreseeability - negligence not strict liability.

a. Sudden medical afflictions are not foreseeable - Ex: heart attack while driving, therefore no liability.

b. Recurring medical conditions are foreseeable - Ex: sudden mental delusion while driving creates liability only when there is a history of mental delusions.

c. Protecting the disabled - persons are required to take reasonable precautions to prevent harm to those who cannot protect themselves due to physical disabilities - Ex: blind pedestrian falls into un-barricaded hole in sidewalk.

d. Valid lack of knowledge precludes foreseeability - Ex: honking horn in good faith to warn ships is not negligent.

E. Cost-Benefit (Economic) Theory of Negligence

1. Actor is liable if he fails to take precautions where B < P*L (Hand Formula).

a. Ex: barge owner fails to man his barge during daylight in a crowded port - high degree of risk, low cost of labor in comparison.

b. Problems with strict application of this formula:

i. Forget to calculate all possible precautions.

ii. Forget to calculate all possible injuries.

iii. Units discrepancy.

iv. Marginal precautions- it may be that only the first $100 spent was worth the benefit gained, even though $150 spent still satisfies B




v. Assumes a risk neutral person with full knowledge of the costs/benefits.

2. Don't have to take precautions for which the costs outweigh the benefits.

a. Ex: power lines fall on telephone lines and cause shock - too remote a risk, too expensive to prevent.

b. Ex: person falls and burns face on steam pipes under a sink - too remote a risk, not liable for unforeseeable uses.

F. Custom Theory of Negligence

1. Precautions that others in the profession deem necessary.

2. Most representative of good cost/benefit analysis when the custom involves competitive businesses, or one's own safety, but not the safety of strangers.

3. Difficult to determine how to group the profession - frame grouping so as to minimize losses and costs while mazimizing deterrence.

a. Ex: Doctors are held to national standard rather than local standard of care because of modern access to technology.

b. Ex: Should tugboats carry weather radios if they are local tugs, tugs of a certain size, cargo, time of day, etc.

4. Custom may be used as evidence of reasonable care but is not the strict measure of reasonable care.

a. Ex: Opthamologist not performing inexpensive glaucoma test on persons under 40. (risks outweigh the costs.)

b. Ex: Doctor must inform patients of all risks that would affect a prudent patient's decision to undergo surgery, even if his custom is not to inform so he won't scare the patient.

IV. "Per se" Negligence.

A. Negligence becomes a question of law not fact for the jury.

1. Policy - judgment of legislature deemed probably more wise than judgment of an individual or a jury.

2. Policy - reliance on the presence of a stop sign, whether or not it is reasonable.

B. Violation of a statute is negligence per se, unless it can be excused by circumstances such as necessity.

C. The violation of a statute that is technically defective is still negligent because it still represents good social benefit.

D. Old statutes that are no longer enforced are not strict measures of negligence.

1. Policy- Evidence that the ordinary person's judgment was correct over the judgment of the legislature.

2. Policy - there may be reliance on the violation of a statute- Ex: persons crossing a yellow line before they turn because it helps them see better.

E. Only the class of persons intended to be protected by the statute (either express or implied in the statute) can recover and only for the character of injuries it was designed to prevent.

F. Violation of a statute is not negligent if it following it to the letter would put the actor at a greater risk because legislative intent was not to increase risk.

G. Violation of the statute must be proximate cause of injury.

1. Just because a license is required does not mean that practice without a license is per se negligence.

a. Ex: operating a car without a driver's license is probably not per se negligence.

i. Policy: It is easy for a jury to find if a driver is acting negligently, with or without a license, because they all have common driving experience.

b. Counter Ex: practicing medicine without a license is probably per se negligence.

i. Policy: It is very difficult for the trier of fact to determine negligence in medical cases, so a bright line is drawn.

ii. Policy - the legislature thought it so important to regulate the activity that it absolutely prohibited the unlicensed practice of the activity, even though some unlicensed persons may never injure another.

2. An actor may be liable for violation of a statute even if the actual injury is directly caused by a negligent third party.

a. Ex: a person who leaves his car unlocked may be liable for damages caused by a thief - policy is to protect others from negligent behavior of thieves and children.

b. Ex: a host or bartender may be liable in some states for serving alcohol to an intoxicated person who later injures another due to his drunk driving.

i. hinges on whether the proximate cause is the serving of the alcohol, or the consumption by the drinker.

H. A statute that requires determination of reasonableness does NOT aid in a per se negligence case because the same burden of proof (reasonableness) is required to prove negligence.

V. Judge and Jury (Negligence as a matter of law vs. fact)

A. Policy: sending a fact pattern to a jury is risky because they might return a verdict contrary to established principles of law.

B. Judge determines negligence when it is a question of law.

1. Judge can determine what conduct is prima facie evidence of negligence if there is no question of fact of whether the conduct happened or not.

2. An experienced judge should be able to determine many questions of negligence without needing the assistance of a jury.

C. Jury determines negligence when it is a question of fact.

1. Sometimes courts need the assistance of the experience of the community (a jury) to determine negligence as a question of law.

2. According to Holmes, once the jury decides a particular fact pattern is evidence of negligence, then it should become a settled matter of law thereafter, and so not be left to a jury.

a. Ex: it is well established that a person crossing a railroad track should stop, look, and listen for a train coming.

3. However, according to Cardozo, when taking the negligence determination from the jury's hands, the court must be careful to base their rule on standards of common experience.

a. Ex: a person should not have to be required to get out of his car and walk down the tracks to see an oncoming train, only to do what would be ordinarily prudent under the circumstances.

4. When in doubt - go to jury.



VI. Res Ipsa Loquitur (the thing speaks for itself)

A. Aids the π in recovery where he cannot prove negligence because he has circumstantial evidence.

B. Requirements for res ipsa loquitur (Prosser)

1. Must be something which ordinarily does not occur in the absence of someone's negligence.

a. Ex: barrel of flour falling out of storehouse window onto pedestrian below.

2. Caused by someone or something under the exclusive control of the ∆.

a. Ex: a hoist carrying the barrel, operated by ∆'s employees.

b. Counter Ex: an act of God, such as a sinking ship.

3. There must be no contributory negligence.

C. An action related to res ipsa loquitur may be brought against several ∆'s, if there is a "conspiracy of silence" among the ∆'s.

1. Ex: In Ybarra, the patient was allowed to bring suit against several doctors and nurses, because they collectively had exclusive control of his body, even though they did not individually have exclusive control over his body at all times. No Respondeat Superior because they were independent contractors.

a. Policy: to allow a π to get a "foot in the door" so that he can use the power of the court to break up the conspiracy of silence among colleagues.



VII. Contributory Negligence

A. When the injury would not have happened without negligence on the part of the π, the doctrine of contributory negligence used to be a complete defense and a bar to recovery.

1. Not a defense to an intentional tort.

2. Must still show CAUSATION.

a. Ex: When a worker continued to work, and failed to notify his supervisor, even though the fishmeal sacks were stacked dangerously, he could not recover if it could be show that the supervisor would have done something if told.

B. Property Rights: LeRoy Fibre (flax stacks)

1. The property rights of a π cannot be limited by the anticipated negligences of a ∆, so not contributory negligence. - Justice McKenna's rule.

2. Although a π may have the right to use his land in any legal way he wishes, the ∆ is liable for damages only if the π has made a reasonable use of his own land. - Justice Holmes' rule.

a. Policy: Just because we protect property rights doesn't mean we should provide a tort remedy for careless property use.

3. Coase's Theorem: Neighboring parties have "reciprocal duties" to avoid harm to each other. If each party were left to negotiate among themselves, in a perfect market, with no transaction costs, they would reach the most efficient precautions. They would take into account not only the value of what is to be saved, but the cost of saving it. The least cost avoider would pay for the precaution.

a. Ex: A candy maker makes so much noise that it disturbs the doctor's office next door. The social interest is to have better doctor's services, so the candy man would restrict his mfg'ing as the least cost avoider.

b. Policy: Doesn't work well in real world because of high transaction costs and parties being strangers before accident.

C. Avoidable consequences - a π who fails to take ordinary precautions to minimize his own injury - does not mean contributory negligence because it didn't cause the action, only increased the damages.

1. Ex: patient who does not go to the hospital to seek treatment may only recover for damages that were a direct cause of the accident, and not due to the delay in treatment.

2. Ex: person who does not wear seatbelt may have his collision damages reduced because the custom of wearing a seatbelt could be weighed by a jury very heavily.

D. Last Clear Chance is a response to the defense of contributory negligence.

1. Policy: We do not want to reduce the incentive of a person to be careful just because someone else has placed himself at risk first.

2. A helpless π who had negligently submitted himself to a risk of harm from the ∆'s subsequent negligence may recover for harm caused thereby if, immediately preceding the harm:

a. the π is unable to avoid it, AND

b. the ∆ is negligent in failing to avoid it when he:

i. knows of the π's situation and peril; OR

ii. would have discovered the π's situation and peril if he were paying attention.

3. An inattentive π, who by the exercise of reasonable vigilance, could discover the danger created by the ∆'s negligence in time to avoid it, can recover if, but only if, the ∆:

a. actually knows of the π's situation, AND

b. should know that the π is inattentive and therefore unlikely to avoid the harm, AND

c. thereafter is negligent in failing to avoid the harm.

4. Ex: a subway train driver is liable when he fails to stop the train and investigate the emergency stop, and a transient is killed by the train as it keeps going.

5. Policy: Provides a relaxation of the complete bar of contributory negligence when the ∆ could have most easily (and therefore most economically) avoided the harm.



VII. Assumption of Risk - a defense to negligence.

A. Three classical elements:

1. π had knowledge of the specific risk.

2. π appreciated the magnitude of the risk.

3. π voluntarily and freely encountered the risk.

4. NO requirement for negligence by π.

5. NOT a defense to an intentional tort.

B. How broadly should the phrase "specific risk" be interpreted. It depends on how well known or generally understood the risks are and is a task for jury.

1. Ex: A person who falls while stepping onto an amusement ride would be barred from recovery if the injury was due to a risk inherent in the ride, but not if the ride suddenly jerked violently (or blew up).

2. Ex: Being hit by a foul ball at a baseball game would be foreseeable, but being hit by a stray golf ball while standing in a concession line may not be.

C. There are 4 facets of behavior that are normally grouped under assumption of risk:

1. The π contracted out of recovery.

a. Ex: A person signs a waiver form that explicitly limits recovery when obtaining a risky service. (Obstetrician requiring binding arbitration, dry cleaner claiming they are not responsible for damages).

2. Plain old contributory negligence. - π negligently subjects himself to harm.

a. Ex: person at a skating rink continues to skate and is injured even after they become aware that the ice is too slippery.

3. ∆ did not owe a duty in the first place.

a. Ex: kids playing catch with a ball and one is hit in the face.

4. ∆ is negligent, but the π is not contributorily negligent in assuming the risk anyway.

a. Ex: Man darts out in front of runaway train to save a child.

IX. Comparative Negligence

A. Li v. Yellow Cab - a π may recover damages from an injury caused by the negligence of the ∆, even if the negligence of the π was a contributing cause to the injury, but the amount of the recovery shall be reduced proportionally by the amount of the π's negligence as compared to the ∆'s negligence.

B. Explicitly absorbs the last clear chance and assumption of risk rules. Now the π's negligence becomes a matter of fact for the jury to put a number on.

C. Exceptions to the comparative negligence doctrine.

1. Strict liability actions still result in full recovery.

2. Does not apply when the ∆'s negligence is reckless or wanton, because the ∆'s negligence would be of a different kind rather than simply a greater degree.

3. Does not apply to intentional torts.

a. Ex: a negligent person wandering into the highway may get a full recovery against a driver who intentionally runs him down.

4. Does not apply when the π has contracted out of recovery.

D. Uniform Comparative Fault Act:

1. Fault is split only among the parties to claim at the trial, both π and ∆s.

2. Each of multiple ∆'s could pay the maximum under joint-and-several liability.

3. An uncollectable judgment shall be reallocated among the remaining parties (including the π) according to their respective percentages of fault if motion is made in 1yr.

4. There is no set-off of judgments except upon agreement of both parties.

5. Where one party is insured and one is not, the insured party's insurance pays into the court for redistribution to that same party. If judgment exceeds policy limit, ∆ must pay difference.

6. A settlement can be made on behalf of more than one person, but if one settles for too little, the others do not make up the difference, they can make a motion for contribution to the extent that the settlement was unreasonable.



X. Cause in Fact

A. Prevents an injured party from suing anyone who acted negligently and has deep pockets. It is a procedural safeguard that matches injury with compensation.

B. Five theories for actual causation:

1. The "but for" rule - the damage would not have happened without negligence of the ∆.

a. Ex: A person drowns because there was not a life preserver available. The ship owner is liable if it can be shown that the man would have survived long enough to be rescued if there was a life preserver.

b. Ex: A heavy truck drives down a street in violation of a statute, and a neighbor's water pipes in the basement are ruptured. The driver is liable if other causes can be eliminated.

c. Counter-Ex: doesn't apply when the damage was inevitable, such as boy falling from bridge being electrocuted by wires.

2. "Substantial Factor" rule - the ∆ is liable if his negligence was a substantial factor in causing the injury, even though there were other independent forces, each of which would have been sufficient to cause the damage.

a. Ex: a fire negligently started by one person merges with a fire negligently started by another, and then destroys a house. The first person is jointly-and-severally liable even if the other person was unknown. Otherwise perverse incentive to find joint torfeasor.

b. Counter Ex: a negligently started small fire that merges with a large fire of natural origin does not subject the first person to liability, because the other natural fire would have caused the damage anyway.

c. Ex: ∆s that negligently start two succesive fires may both be liable depending on time in between.

3. Summers v. Tice Rule - joint and several liability for 2 negligent parties, even if only one of them could have caused the injury.

a. All causes are negligent- the injury was due to a poorly aimed shot.

b. All negligent parties are defendants - both hunters are present.

c. π, through no fault of his own, cannot prove actual causation of either party - the defendants are in a better position to determine who actually shot, because the π is far away.

4. Sindell v. Abbott Labs Rule - Where several mfgrs of a product could be responsible, and all are negligent, a π can bring an action against less than all possible manufacturers, if he can serve enough that a substantial market share is represented.

a. All ∆'s have to be negligent.

b. Those ∆'s that can disprove causation are dismissed.

c. Each ∆ pays damages according to their market share.

d. Those mfgrs that are readily identifiable will end up paying more in the long run.

e. Policy: don't let negligent manufacturers be protected by their relative anonymity in generic markets.

5. Concert of Action Rule- special case of the "but for" 2 or more persons who are aiding and approving of each other's negligent conduct when only one causes the damage. All are joint and severally liable.

a. Ex: 2 drag racers race, one hits a pedestrian, but both are liable because the race would not have happened without the negligence of either.

b. Applies even if the agreement to act in concert was only implied by their actions.

C. "Bare statistical proof" is not enough to show causation.

1. All evidence is inherently "statistical"; even eyewitnesses have some measurable probability of getting the facts wrong.

2. Just because there is a preponderance of numbers does not mean that there is proximate cause shown.

a. Ex: A pedestrian is hit at a corner by a blue bus that ran a red light. 60% of the blue busses are owned by the Big Company, 40% by the Small Company. The Big company is not necessarily liable. They can show that even though they have more busses, their drivers were less likely to run the red light because of their strict safety training.

D. Preponderance of the Evidence - better than proportional because it results in less error.

1. Kayes analysis of Herskovits rule: When negligence by doctor pays damages for reducing chance of survival of a patient with less than 50% chance anyway, holding doctors liable overdeters ∆ while properly compensating π.


I. Intentional Torts

A. Assault

1. Actor intends to cause "harmful or offensive touching" with the person of the other or a third person or imminent apprehension of such a contact; or

2. if the actor knows with substantial certainty that the action will cause apprehension of a harmful or offensive touching; and

3. the other is put in such imminent apprehension.

a. Apprehension is different from fright - you don't have to be actually scared (can use self-defense).

b. It is sufficient for apprehension that the π know that the harm will occur unless something else occurs to intervene.

c. It depends more on the apprehension created in the mind of he person assaulted than upon what may be the intent of the person committing the assault.

B. Battery

1. Actor Intends to cause unlawful harmful touching, or knows, or should know, with substantial certainty that his actions will cause such harm.

a. Intent to commit act is what controls not the intent to cause harm.

i. Ex: Boy who puts rubber ball in pool drain he mistakenly believes to be not sucking is liable.

b. Transferred intent - intent to commit harmful act is transferred to a third party who is struck inadvertently.

c. Substantial certainty - Ex: boy pulls chair out from under old woman as she sits.

2. π does not consent to the touching.

a. Implied consent - arises from circumstances.

i. Ex: victim of accident has implied consent to emergency medical services.

ii. Ex: kids playing on playground have implied consent to foreseeable injuries.

iii. Counter Ex: doctor is liable when he performs surgery on left ear when patient consented to right ear.

b. Substituted consent

i. Ex: a parent or guardian can consent for a minor or incompetent to undergo surgery.

ii. Can be overridden if induced by fraud or non-disclosure of material fact.

c. Duty of Disclosure - true consent can not be given in absence of all material facts.

i. Ex: Doctor must disclose reasonable risks and benefits involved in medical treatments and non-treatments.

d. Volunteers cannot recover for the reasonably foreseeable injuries they incur.

i. Ex: Illegal prize fighters cannot recover from each other, but may recover from the promoter as the driving force because they are the intended class of persons to be protected.

ii. Ex: Football player can recover from blatant injuries contrary to the rules which are not inherent risks.

II. Nonconsensual Defenses

A. Insanity

1. Insane persons can be held liable for intentional acts, epileptics are not held liable for uncontrollable acts because as between two innocents, let the actor bear the burden, and guardians of insane persons can be deterred.

B. Self-Defense

1. Actor must be in imminent apprehension of receiving great bodily harm.

2. If the actor wounds a third party inadvertently while taking reasonable steps to defend himself, there is no liability.

a. Ex: shop owner purposefully shoots cop who he thinks is a rioter coming to get him.

C. Defense of property

1. Force may be used to repel actual force.

2. Force may be used to repel intruders when they fail to desist after being requested to stop.

3. Force intended to cause grievous bodily harm.

a. Policy: replaceable property is not as valuable as personal safety.

b. Booby traps or spring guns cannot be used solely to protect personal property because they do not discriminate between innocent trespassers and thieves.

c. Deadly force can be used to protect dwelling places because if the owner were home, he could reasonably construe the breaking and entering to be an assault.

d. Force may be used to protect property which is not replaceable and has enourmous social benefit. Ex: cure for AIDS where there is only one vial.

D. Recapture of Chattels

1. Force is not authorized to get property back from a person who peacefully possesses your property under mistaken claim of right.

a. Policy - a victim cannot be the arbiter of his own claim, public order and peace are of greater weight, right of defense but not redress.

b. Ex: employee who takes $50 back pay from payroll cannot be beaten-up by his employer.

2. Peaceful repossession is allowed when done in "hot-pursuit" against someone who has taken under fraud, force or without claim of right.

E. Necessity

1. Actor who cannot control his movements while exercising a strict right.

a. Ex: mooring a boat to protect life and property during a violent storm is not unlawful.

2. Actor may be liable for damages while protecting his own more valuable property at the expense of another's.

a. Ex: cargo ship moored to dock during storm damages the dock.

b. "Incomplete privilege" - ∆ may cause harm if he pays for it prevents "Unjust enrichment" where the cargo ship owner walks away unscathed.

3. "Public Necessity" -a public official may act with immunity if he damages a person's property to benefit the public at large.

III. Strict Liability v. Negligence.

A. Policy

1. Strict Liability

a. ∆ internalizes the costs imposed on others as if he were the injured party (as between two innocents...)

b. Eliminates difficulty in determining "standard of care"

i. Reduces litigation costs in individual cases; however

ii. Gives incentives for more lawsuits, raising costs overall.

c. Net transfer of wealth from class more likely to reinvest it to a class of victims.

2. Negligence

a. π internalizes the costs he would not have avoided.

b. Requires determination of "standard of care" and "reasonableness".

i. increases cost of litigation in individual cases.

ii. reduces number of lawsuits because costs of litigation outweigh expected compensation.

c. Wealth remains with class who is productive and takes reasonable calculated risks.

B. Strict Liability

1. Rylands v. Fletcher

a. An actor is strictly liable for trespass, even if he was morally innocent and had no knowledge that his actions would cause damage. - Judge Bramwell at court of Exchequer.

b. A person who for his own purposes brings on his lands and collects anything likely to do mischief if it escapes is prima facie liable for all damages which are the natural consequences of its escape. - Judge Blackburn at court of Appeals

i. Proper defenses are contributory negligence, and Acts of God.

c. A person who uses his land for any non-natural purpose, and in consequence of doing so, causes damage to another's property, is liable for the damages arising from the non-natural use. - Judge Cairns at House of Lords.

i. Building owner is not liable when third person causes plumbing to overflow because indoor plumbing is necessary in modern society and not non-natural. Non-natural means not ordinary.

2. Respondeat Superior - an employer is strictly liable when his employees are liable (either strictly or negligently) for damages that they caused while in the course of their employment. Does not include private contractors.

C. Negligence requirements- Duty, Breach, Causation, Damages.

D. Standard of Care determination

1. Objective Standard - did ∆ act reasonably under all the circumstances?

a. more likely to take into account practical circumstances when actions can be deterred.

ii. Ex: blind person will not be held liable for his lack of sight because his blindness can't be deterred.

b. Brings substandard behavior up to the average level because general public safety demands it, otherwise stupid people have built-in defense.

c. Beginners held to an average skill standard because of public reliance and safety.

d. Children a held to an adult standard when they engage in dangerous adult activities. - Ex: teenager driving a car, operating heavy equip., shooting a gun.

2. Subjective Standard - did π act in good faith?

a. Difficult to determine mindset of actor.

b. Policy - do not deter heroism, do not penalize reliance.

3. Foreseeability - negligence not strict liability.

a. Sudden medical afflictions are not foreseeable - Ex: heart attack while driving, therefore no liability.

b. Recurring medical conditions are foreseeable - Ex: sudden mental delusion while driving creates liability only when there is a history of mental delusions.

c. Protecting the disabled - persons are required to take reasonable precautions to prevent harm to those who cannot protect themselves due to physical disabilities - Ex: blind pedestrian falls into un-barricaded hole in sidewalk.

d. Valid lack of knowledge precludes foreseeability - Ex: honking horn in good faith to warn ships is not negligent.

E. Cost-Benefit (Economic) Theory of Negligence

1. Actor is liable if he fails to take precautions where B < P*L (Hand Formula).

a. Ex: barge owner fails to man his barge during daylight in a crowded port - high degree of risk, low cost of labor in comparison.

b. Problems with strict application of this formula:

i. Forget to calculate all possible precautions.

ii. Forget to calculate all possible injuries.

iii. Units discrepancy.

iv. Marginal precautions- it may be that only the first $100 spent was worth the benefit gained, even though $150 spent still satisfies B




v. Assumes a risk neutral person with full knowledge of the costs/benefits.

2. Don't have to take precautions for which the costs outweigh the benefits.

a. Ex: power lines fall on telephone lines and cause shock - too remote a risk, too expensive to prevent.

b. Ex: person falls and burns face on steam pipes under a sink - too remote a risk, not liable for unforeseeable uses.

F. Custom Theory of Negligence

1. Precautions that others in the profession deem necessary.

2. Most representative of good cost/benefit analysis when the custom involves competitive businesses, or one's own safety, but not the safety of strangers.

3. Difficult to determine how to group the profession - frame grouping so as to minimize losses and costs while mazimizing deterrence.

a. Ex: Doctors are held to national standard rather than local standard of care because of modern access to technology.

b. Ex: Should tugboats carry weather radios if they are local tugs, tugs of a certain size, cargo, time of day, etc.

4. Custom may be used as evidence of reasonable care but is not the strict measure of reasonable care.

a. Ex: Opthamologist not performing inexpensive glaucoma test on persons under 40. (risks outweigh the costs.)

b. Ex: Doctor must inform patients of all risks that would affect a prudent patient's decision to undergo surgery, even if his custom is not to inform so he won't scare the patient.

IV. "Per se" Negligence.

A. Negligence becomes a question of law not fact for the jury.

1. Policy - judgment of legislature deemed probably more wise than judgment of an individual or a jury.

2. Policy - reliance on the presence of a stop sign, whether or not it is reasonable.

B. Violation of a statute is negligence per se, unless it can be excused by circumstances such as necessity.

C. The violation of a statute that is technically defective is still negligent because it still represents good social benefit.

D. Old statutes that are no longer enforced are not strict measures of negligence.

1. Policy- Evidence that the ordinary person's judgment was correct over the judgment of the legislature.

2. Policy - there may be reliance on the violation of a statute- Ex: persons crossing a yellow line before they turn because it helps them see better.

E. Only the class of persons intended to be protected by the statute (either express or implied in the statute) can recover and only for the character of injuries it was designed to prevent.

F. Violation of a statute is not negligent if it following it to the letter would put the actor at a greater risk because legislative intent was not to increase risk.

G. Violation of the statute must be proximate cause of injury.

1. Just because a license is required does not mean that practice without a license is per se negligence.

a. Ex: operating a car without a driver's license is probably not per se negligence.

i. Policy: It is easy for a jury to find if a driver is acting negligently, with or without a license, because they all have common driving experience.

b. Counter Ex: practicing medicine without a license is probably per se negligence.

i. Policy: It is very difficult for the trier of fact to determine negligence in medical cases, so a bright line is drawn.

ii. Policy - the legislature thought it so important to regulate the activity that it absolutely prohibited the unlicensed practice of the activity, even though some unlicensed persons may never injure another.

2. An actor may be liable for violation of a statute even if the actual injury is directly caused by a negligent third party.

a. Ex: a person who leaves his car unlocked may be liable for damages caused by a thief - policy is to protect others from negligent behavior of thieves and children.

b. Ex: a host or bartender may be liable in some states for serving alcohol to an intoxicated person who later injures another due to his drunk driving.

i. hinges on whether the proximate cause is the serving of the alcohol, or the consumption by the drinker.

H. A statute that requires determination of reasonableness does NOT aid in a per se negligence case because the same burden of proof (reasonableness) is required to prove negligence.

V. Judge and Jury (Negligence as a matter of law vs. fact)

A. Policy: sending a fact pattern to a jury is risky because they might return a verdict contrary to established principles of law.

B. Judge determines negligence when it is a question of law.

1. Judge can determine what conduct is prima facie evidence of negligence if there is no question of fact of whether the conduct happened or not.

2. An experienced judge should be able to determine many questions of negligence without needing the assistance of a jury.

C. Jury determines negligence when it is a question of fact.

1. Sometimes courts need the assistance of the experience of the community (a jury) to determine negligence as a question of law.

2. According to Holmes, once the jury decides a particular fact pattern is evidence of negligence, then it should become a settled matter of law thereafter, and so not be left to a jury.

a. Ex: it is well established that a person crossing a railroad track should stop, look, and listen for a train coming.

3. However, according to Cardozo, when taking the negligence determination from the jury's hands, the court must be careful to base their rule on standards of common experience.

a. Ex: a person should not have to be required to get out of his car and walk down the tracks to see an oncoming train, only to do what would be ordinarily prudent under the circumstances.

4. When in doubt - go to jury.



VI. Res Ipsa Loquitur (the thing speaks for itself)

A. Aids the π in recovery where he cannot prove negligence because he has circumstantial evidence.

B. Requirements for res ipsa loquitur (Prosser)

1. Must be something which ordinarily does not occur in the absence of someone's negligence.

a. Ex: barrel of flour falling out of storehouse window onto pedestrian below.

2. Caused by someone or something under the exclusive control of the ∆.

a. Ex: a hoist carrying the barrel, operated by ∆'s employees.

b. Counter Ex: an act of God, such as a sinking ship.

3. There must be no contributory negligence.

C. An action related to res ipsa loquitur may be brought against several ∆'s, if there is a "conspiracy of silence" among the ∆'s.

1. Ex: In Ybarra, the patient was allowed to bring suit against several doctors and nurses, because they collectively had exclusive control of his body, even though they did not individually have exclusive control over his body at all times. No Respondeat Superior because they were independent contractors.

a. Policy: to allow a π to get a "foot in the door" so that he can use the power of the court to break up the conspiracy of silence among colleagues.



VII. Contributory Negligence

A. When the injury would not have happened without negligence on the part of the π, the doctrine of contributory negligence used to be a complete defense and a bar to recovery.

1. Not a defense to an intentional tort.

2. Must still show CAUSATION.

a. Ex: When a worker continued to work, and failed to notify his supervisor, even though the fishmeal sacks were stacked dangerously, he could not recover if it could be show that the supervisor would have done something if told.

B. Property Rights: LeRoy Fibre (flax stacks)

1. The property rights of a π cannot be limited by the anticipated negligences of a ∆, so not contributory negligence. - Justice McKenna's rule.

2. Although a π may have the right to use his land in any legal way he wishes, the ∆ is liable for damages only if the π has made a reasonable use of his own land. - Justice Holmes' rule.

a. Policy: Just because we protect property rights doesn't mean we should provide a tort remedy for careless property use.

3. Coase's Theorem: Neighboring parties have "reciprocal duties" to avoid harm to each other. If each party were left to negotiate among themselves, in a perfect market, with no transaction costs, they would reach the most efficient precautions. They would take into account not only the value of what is to be saved, but the cost of saving it. The least cost avoider would pay for the precaution.

a. Ex: A candy maker makes so much noise that it disturbs the doctor's office next door. The social interest is to have better doctor's services, so the candy man would restrict his mfg'ing as the least cost avoider.

b. Policy: Doesn't work well in real world because of high transaction costs and parties being strangers before accident.

C. Avoidable consequences - a π who fails to take ordinary precautions to minimize his own injury - does not mean contributory negligence because it didn't cause the action, only increased the damages.

1. Ex: patient who does not go to the hospital to seek treatment may only recover for damages that were a direct cause of the accident, and not due to the delay in treatment.

2. Ex: person who does not wear seatbelt may have his collision damages reduced because the custom of wearing a seatbelt could be weighed by a jury very heavily.

D. Last Clear Chance is a response to the defense of contributory negligence.

1. Policy: We do not want to reduce the incentive of a person to be careful just because someone else has placed himself at risk first.

2. A helpless π who had negligently submitted himself to a risk of harm from the ∆'s subsequent negligence may recover for harm caused thereby if, immediately preceding the harm:

a. the π is unable to avoid it, AND

b. the ∆ is negligent in failing to avoid it when he:

i. knows of the π's situation and peril; OR

ii. would have discovered the π's situation and peril if he were paying attention.

3. An inattentive π, who by the exercise of reasonable vigilance, could discover the danger created by the ∆'s negligence in time to avoid it, can recover if, but only if, the ∆:

a. actually knows of the π's situation, AND

b. should know that the π is inattentive and therefore unlikely to avoid the harm, AND

c. thereafter is negligent in failing to avoid the harm.

4. Ex: a subway train driver is liable when he fails to stop the train and investigate the emergency stop, and a transient is killed by the train as it keeps going.

5. Policy: Provides a relaxation of the complete bar of contributory negligence when the ∆ could have most easily (and therefore most economically) avoided the harm.



VII. Assumption of Risk - a defense to negligence.

A. Three classical elements:

1. π had knowledge of the specific risk.

2. π appreciated the magnitude of the risk.

3. π voluntarily and freely encountered the risk.

4. NO requirement for negligence by π.

5. NOT a defense to an intentional tort.

B. How broadly should the phrase "specific risk" be interpreted. It depends on how well known or generally understood the risks are and is a task for jury.

1. Ex: A person who falls while stepping onto an amusement ride would be barred from recovery if the injury was due to a risk inherent in the ride, but not if the ride suddenly jerked violently (or blew up).

2. Ex: Being hit by a foul ball at a baseball game would be foreseeable, but being hit by a stray golf ball while standing in a concession line may not be.

C. There are 4 facets of behavior that are normally grouped under assumption of risk:

1. The π contracted out of recovery.

a. Ex: A person signs a waiver form that explicitly limits recovery when obtaining a risky service. (Obstetrician requiring binding arbitration, dry cleaner claiming they are not responsible for damages).

2. Plain old contributory negligence. - π negligently subjects himself to harm.

a. Ex: person at a skating rink continues to skate and is injured even after they become aware that the ice is too slippery.

3. ∆ did not owe a duty in the first place.

a. Ex: kids playing catch with a ball and one is hit in the face.

4. ∆ is negligent, but the π is not contributorily negligent in assuming the risk anyway.

a. Ex: Man darts out in front of runaway train to save a child.

IX. Comparative Negligence

A. Li v. Yellow Cab - a π may recover damages from an injury caused by the negligence of the ∆, even if the negligence of the π was a contributing cause to the injury, but the amount of the recovery shall be reduced proportionally by the amount of the π's negligence as compared to the ∆'s negligence.

B. Explicitly absorbs the last clear chance and assumption of risk rules. Now the π's negligence becomes a matter of fact for the jury to put a number on.

C. Exceptions to the comparative negligence doctrine.

1. Strict liability actions still result in full recovery.

2. Does not apply when the ∆'s negligence is reckless or wanton, because the ∆'s negligence would be of a different kind rather than simply a greater degree.

3. Does not apply to intentional torts.

a. Ex: a negligent person wandering into the highway may get a full recovery against a driver who intentionally runs him down.

4. Does not apply when the π has contracted out of recovery.

D. Uniform Comparative Fault Act:

1. Fault is split only among the

  1   2   3


The database is protected by copyright ©essaydocs.org 2016
send message

    Main page