Strategies Identify elements and match them to facts

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Evidence of due care – NOT enough for a directed verdict; will still go to jury

Rebuttal of res ipsa requirements - ∆ can get direct verdict of no other prima facie case

Causation

Causation In FACT
1. Even if there was duty and breach, Π must show that the breach was a “but for” cause of his injury; if ∆ had not acted negligently, Π’s injuries wouldn’t have resulted.
  1. No causation in not throwing life preserver if Π wouldn’t have been saved anyway.
  2. There is still “but for” causation when there are multiple tortfeasors
2. Less than 50% chance Π would’ve been saved: (life saving cases);
  1. Minority rule allows for discounted recovery.
  2. “If D’s conduct increases risk of harm, and P suffers injury of the type that would have been caused by that harm, then it goes to the jury”
  3. Beswick – (corrupt 911 operator case). Must simply prove more likely than not (51% chance) that there would have been a 34% chance of survival if ∆ was not negligent.
  4. Proportional damages - ∆ should only pay for expected value of non-negligent action. Example: 3 sailors go overboard and precaution would’ve enabled ∆ to save one – pay 1/3 of each life.
  5. Tension between risk compensation and injury compensation
  6. Med/mal rule  compensate patient for chances of survival w/o negligence. Over 100 case, doctor (theoretically) will be liable for all lives lost.
    1. Rule justified by systematic defect. If there was a 37.5% chance of survival with added procedure, doctors will never pay for failing to perform.
    2. Minority Rule  most argue unfair for doctors to have to cover 100% of loss in cases where probability of survival was 51%.
3. Concurrent causes: Can meet “cause in fact” inquiry, but not the “but for” cause inquiry – two evens occur simultaneously, one of which is sufficient to cause damage (e.g. two fires joining). Each is deemed a cuase in fact.
4. Counterfactual Inquiry: Difficulty with finding cause in fact is that it requires construction of a fictional world without the cause present. This can sometimes lead to difficult evidentiary burdens.

Multiple Tortfeasors  Joint and Several Liability
1. Theoretical justification for liability of multiple ∆’s
  1. Each D owed a duty to P
  2. Each D breached that duty to P
  3. Each D was a substantial factor, or contributed to the injury suffered by P
2. Joint Liability  both D’s are liable, join in paying damages.
3. Several liability  In principle, doesn’t require ∆ to pay for full damages. D may only be liable for his share of damages.
4. Joint and several liability  If more than one person is in proximate cuase of Π’s harms, and harm is indivisible, each ∆ is liable for entire harm. can sue either all or one of defendants. Can’t get over 100% compensation (one can pay all damages, or multiple D’s can split damages).
  1. Π cannot recover twice – entitled to “single satisfaction”
  2. If harms are divisible, they will be apportioned amongst the tortfeasors
5. Apportionment
  1. Action in concert: ∆’s acting in concert each liabile for injuries directly caused by other (no apportionment)  e.g. drag racers
  2. Successive injuries separated by substantial periods of time leads to apportionment.
  3. Overlapping: ∆ who caused initial harm is liable for whole thing; ∆ who caused later harm is only liable for amount by which he worsened harm; e.g. ∆₁ negligently breaks Π’s arm; ∆₂ negligently sets it so it has to be amputated. ∆₁liable for everything; ∆₂liable for difference between broken and amputated arm.
  4. Death and fire are paradigmatic indivisible harms
6. Contribution  If one ∆ pays more than his pro rata share, the other can obtain partial reimbursement. Usually limited to unintentional torts; Contribution ∆ must be liable; split about what to do if D₁ settles and D₂sue for contribution after subsequent judgment.
7. Action for indemnity  D₁ sues and D₂covers D₁ in full
8. Joint and severable liability allocates risk that one D is judgment-proof to the other D’s instead of allocating risk to Π
  1. Allocating risk of insolvency to culpable D, rather than P who suffered injury
  2. Fair to impose liability on ∆; w/o his negligence, there wouldn’t have been injury.

Market Share Liability
1. Alternative Liability  Multiple Fault
  1. If one of two ∆’s injured Π, but can’t prove which particular ∆ caused the harm; ∆’s must split the damages equally.
  2. Each ∆ pays share of damages relative to his membership in group
  3. Requires Joinder of all potential ∆s
  4. Reconceptualize identity of ∆ – must prove (51%) that group caused injury
  5. Burden shifts to each ∆ to show that others caused harm
  6. In Summers, man was negligently shot, but impossible to prove which ∆ actually hit him – they split damages.

Market Share theory  Products liability (prescription drugs)
1. Π cannot prove which of 3 or more producers of defective products caused his injury
2. Can show that each of ∆s made defective product
3. Court will assign liability for % of injuries proportional to ∆’s % of market sales of product at time of injury.
4. Courts split on exculpation by proving that ∆ did not make particular item in question (e.g. Π’s pharmacy used another brand)
5. Court use national market share to determine share of liability
6. NOT JOINT  Don’t need all tortfeasors to take action
7. NOT joint-and-several liability  Π can only collect from any one ∆ that ∆’s share
8. Socially value cuts against market share; e.g. courts likely to reject in case of vaccine
9. Controversial  Only accepted in half the jurisdictions in which it’s been argued. Still, if you don’t accept this analysis, then there must be some other justification for Summers.

Vicarious liability
1. Elements:
  1. Principal – agent relationship: Employer/employee; master/servant
  2. Agent acting for w/in scope of enterprise (intent to further employer’s business interest); or
  3. Risk characteristic of business enterprise
2. Liability for reasonably foreseeable detours (5 min trip to buy cigarettes)
3. Liable for forbidden acts done in furtherance of employment
4. NOT liable for intentional acts done for personal motives
5. Theory: Since agent can bind principal by acts, then principal ought to be bound by torts committed by agents
6. Early courts thought exclusively in terms of agency law
  1. as long as agent was actingw/in scope of agency
  2. Had to be operating for benefit of employer
7. Narrow view rejected in Bushey
  1. drunken sailor comes back to Brooklyn from drinking in Manhattan and damages dry dock
  2. Clearly sailor was not acting for benefit of US gov’t, nor to further any purpose
8. Characteristic risk  What does this mean?
  1. Example: military leave. Relief of job stress leads to excess drinking.
9. Employee Compensation perspective: There are inherent risks of tortuous action in job (e.g. road rage for FedEx driver. Employer covers liability as compensation (instead of paying employees more money)
10. Vicariously liable employer can sue employee for contribution or indemnity
  1. Any vicariously liable principle has an action against agent that causes torts
  2. In practice action is rarely exercised Empirical proof of claim that employees would want additional compensation if they were to be held liable.

Proximate Cause

Policy Decision
1. Tortious actions have far-reaching and improbable consequences
2. Proximate cause says that ∆ should NOT be responsible for all causes that are unforeseeable; e.g.∆ hits car – happens to be full of dynamite, which causes explosion - nurse 10 blocks away drops a baby. ∆ not liable to baby
3. Can be multiple proximate causes

Directness Test
1. Indirect cause it NOT the proximate cause of the injury
2. Is there a difference between directness and proximity test?
3. Differ for risks that are direct results but nor foreseeability.
4. Polemus Cause
  1. FACTS: Plank being raised by a winch falls. Boat full of benzene. Spark from fall starts explosion and ship burns
  2. Cause of fire is direct. Plank falling causes spark that starts fire
  3. But unforeseeable that plank falling would cause a spark and start a fire
  4. Conduct was unreasonable because of a certain kind of risk, but not the risk of what happened

Foreseeability Test
1. Consequences must be foreseeable.
  1. If risk is not of the type that makes conduct negligent, then there is no liability
  2. Risk is outside duty of ∆; It’s an unforeseeable risk – breach not proximate cause.
  3. To impose liability for unforeseeable risks is out of line with duty (B
2. Wagon Mound: Oil spill is ignited by workers repairing another boat in the harbor using torches. Spilling oil was tortuous conduct. Held that burning dock was not foreseeable; overturned Polemus
3. Union Pump  Defective pump causes fire. Fire is put out, but P slips and falls afterwards because of water on the floor. Most helpful way to conceptualize  we don’t want fires because people could get hurt putting the out. Outer bounds: but still engaged in putting gout
4. Problem: Foreseeability is already a test for duty. Isn’t this redundant. Difference is consequences of inquiry  duty question goes to judge; causation goes to jury.

Foreseeable Plaintiff  Palsgraff

∆ is only liabile for injury to foreseeable plaintiff.

Geistfeld: Look at risk that rendered the conduct negligent – different than risk that caused harm to Mrs. P.

No connection to risk that made the conduct negligent and risk that caused in jury

No different than can of nitroglycerin falling on somebody’s foot, or snow swirl case.

Opinions framed in terms of duty: Cardozo (majority) says this is a case about foreseeable victim; Andrews (dissent) says this is about universal duty – RR had a duty to Π as a customer.

Common interpretation  Cordozo gets right result, but it’s about proximate cause/foreseeability.

Geistfeld  politics: does question go before judge or jury?

Risk Rule

Once you push the risk rule, it’s hard to understand difference between directness test and foreseeability test.

Easier than counterfactual inquiry required for cause in fact inquiry

Is the type of risk the duty to take reasonable precaution was meant to prevent?

No liability if there’s mismatch between kind of risk and actual injury.

Example #1: Mislabeled can of poison case in P’s kitchen explodes because it’s near a stove.

Cause in fact: Same accident would have happened if properly labeled can of poison was left above the stove.

∆ shouldn’t be liable for mislabeling

Example #2: Can of nitroglycerin on edge of table that falls off and breaks Π’s foot.

Cause in fact: It would not have been negligent to put a heavy can on the edge of a table. Negligent conduct isn’t a cause of the injury.

Risk of explosion is the main concern

Still liable if injury is general class of harms but it occurred in an unusual manner:

E.g. If ∆ gives pistol to child X, and X drops it. He is liable to Π who is hit by shot (getting shot is type of risk), despite that it occurred in strange manner. ∆ is not liable to Y whose foot was broken because child dropped pistol on it.

See Kinsman  flooding of town was a concern when ship got loose, despite strange manner in which scenario played out

Intervening cause 

Force which takes effect after ∆’s negligence and contributes to producing Π’s injury

not always clear how intervening cause differs from “direct cause”

If intervening cause if foreseeable, D is liable

“superseding cause”  intervening cuase that is sufficient to prevent ∆ from being negligent. Unforeseeable intervening cause.

Often an unforeseeable intervention with unforeseeable results

Extraordinary Act of Nature

A third person’s criminal or negligent behavior may be considered foreseeable and might not exonerate ∆ (e.g. foreseeable that care will be stolen if you leave keys in ignition

Natural responses are often NOT superseding causes

Escape

Rescue – may be liable to rescuer or rescued as long as rescue was not performed in a grossly careless manner.

Aggravation of injury from medical treatment: liable unless gross mistreatment

Liable for unforeseeable intervention with foreseeable result.

Defenses to Negligence
Contributory Negligence  Comparative Fault

Contributory negligence

Originally Common Law Denied Remedy to any Π who was found to have contributed to the injury through his own negligent behavior

Complete defense

Conceptually: Single tortuous cause of injury

Smith v. Smith – wood pile negligently left in middle of road. No liability because Π was driving carelessly

Analysis of Multiple causes

matrix

D_n + P_n = Injury

D_n+ P_rc= No Injury

D_rc + Pn = No Injury

Drc + Prc = No injury

SymmetryAny argument D could make, P could make in reverse

∆ says consider rows three and four

Π says consider rows 2 and 4

To single out the P as being the cause would be unfair, because D caused it to the same degree

That unfairness led to establishment of comparatively responsibility

Last Clear Chance

Early answer to contributory negligence

If D has last clear chance, then he is responsible

D comes upon P, knows that P was contributory negligent, D has last clear chance to avoid accident

temporal relation of actions

Actors must make an assumptions about what other actors are doing.

Ordinarily, when decisions are made, neither side knows what the other is doing

In last clear chance, one side knows what the other party has already done.

Since ∆ cannot say he thought Π was acting cautiously; e.g. conductor saw pedestrian on the railroad tracks

Last Clear chance is no longer majority rule  only needed in jurisdictions that still have contributory negligence.

Comparative responsibility

Unfairness results from Cont. Neg. - Recognizes that last clear chance is just an exception

Impure comparative responsibility  Once P is over 50% responsible, there is no recovery at all

Pure approach  Even is P is 99% at fault, can still recover

Equal division rule  each party pays 50%; Easy rule to apply

Comparative fault is a misnomer: We’re not comparing fault; we’re comparing responsibility (degree of risk creation) – both are at fault.

Problem: no concrete formula to apportion damages. How do you divide it up?

Theory: B >PL  ∆ assumes risk because he is getting some type of subjective benefit

Assumption of Risk

Elements

Knowledge of risk

Voluntary choice to face it

Analysis: Row three gets knocked out. Think about case in terms of Row 1 and Row 2.

Analogous to last clear chance doctrine - Asymmetry of knowledge

∆’s knowledge of Π’s plight in last clear chance

Π’s knowledge of what ∆ is doing in assumption of risk

Contracts: Assumption of risk must be implied by circumstances surrounding contract (Π must have knowledge of risk)

Primary vs. Secondary Implied Assumption of Risk

Primary: get in car knowing that the brakes don’t work well  bars recovery

Secondary: I’m in car already, and I find out breaks don’t work. I can get out w/o endangering self, but I stay in  not a defense in comparative responsibility jurisdiction

voluntary informed choice

D already breached duty

SAR Shows that courts want to throw this all into comparative fault, but in PAR cases, they just can’t get there

Not a defensible distinction, but it’s still invoked.

Policy Argument  no assumption of risk creates uniformity of precaution which is socially undesireable (e.g. no Black Diamonds).

Allow reasonable actors to make informed decisions

Charitable Immunity

Quid pro quo rationale:

non-profit must be giving me a gift

quid pro quo is they get off from neg liability

Faulty Rationale:

Non-profits benefit society.

Liability causes bankruptcy and denies benefit to society

Discourages charitable activity

How does this differ from private organizations w/ socially valuable activities?

Courts end up abolishing immunity (hard to justify)

Analog to duty of rescue

Must rescue w/ reasonable care (if you have no duty)

Jurisdictions are hesitant to impose negligence liability (e.g. doctor is conferring gift on person in need) - threat of liability will deter people from rescuing

Likewise, we are worried that negligence will deter charitable acts

relief from ordinary negligence (not gross negligence, intentional torts)

Abolished in over 30 states; other cut back on doctrine (e.g. abolished for charity hospitals)

Family Immunity

Two common Law immunities: between husband and wife (Interspousal) and parent child. Neither side can bring tort action against the other.

Spousal abolished in over half of states; other states partially abolished (e.g. not applicable for personal injury)

Parent Child abolished in many (thought not most) states

Sovereign (government) Immunity

Reasoning:

don’t want court to have power over governmental officials

In effect common law court would determine policy decisions by exec officials and legislators

Discretionary Function  No liability for high level policy-making decisions

Priprietary function  no immunity for revenue generating function such as hospital, airporst

Acting w/in scope of duty: Legislators and judges usually get broad immunity

Must be waived through statute

Routinely waived to extent that conduct was ordinary conduct

Question: When is conduct legislative or executive, and when is it “ordinary conduct?” “discretionary choices” are the hard cases

Questions:

Was gov’t actor involved in discretionary function (policy judgment)?

Was gov’t actor involved in other function?

Arguments for D focus on liability impact on policy decisions

courts are more prone to find sovereign immunity

Determine argument by understanding reason for immunity

Damages

Evidentiary standard

Must show with reasonably available evidence that physical injury caused the damages in question

Foreseeability and directness are irrelevant

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