NOTE:
This is a collection of the explanatory notes
Taken from the Visual Outline
They are in alphabetical order
49%
The major difference among modified comparative negligence systems is whether or not they adopt a formula that allows the plaintiff to recover when the plaintiff is fifty percent at fault or whether such claims are barred. It depends upon the statutory formulation. If the statute permits the plaintiff the recover so long as the plaintiff's negligence is less than that of the defendant, then the plaintiff's claim will be barred if both are equally at fault. Since this allows the plaintiff to be a maximum of forty-nine percent at fault, these jurisdictions are sometimes referred to as forty-nine percent jurisdictions.
50%
Another common statutory formulation is to permit the plaintiff to recover so long as the plaintiff's negligence is not greater than the negligence of the defendant's. These jurisdictions are called fifty percent, since it allows the plaintiff to be as much as fifty percent at fault and still recover.
Abnormally Dangerous Activities
Some activities carried on in society are useful, but carry with them a very high degree of danger. These activities may produce injury even when reasonable care is used, and the magnitude of the harm is often so great that the plaintiff would have no way of avoiding the risk. For example, tankers that carry large quantities of gasoline, or companies that manufacture explosives, rarely cause injury, but when they do the effect is often catastrophic. Whether or not an activity is abnormally dangerous is judged by the criteria established in the Restatement of Torts. These criteria are: (1) whether the activity poses a high risk of harm; (2) whether the harm, if it occurs, is likely to be great; (3) whether accidents occur even when reasonable care is exercised; (4) whether the activity is commonly engaged in; (5) whether the activity is appropriate to the place where it is carried on; and (6) whether the activity is of low value to the community.
Even where a defendant is engaged in an abnormally dangerous activity, he is only responsible for that which makes the activity abnormally dangerous; for example, a tanker carrying gasoline may strike and injure a child on a bicycle. The plaintiff would still have to show that the plaintiff acted negligently, because the risk of harm did not arise from the release or ignition of the flammable cargo that made the activity abnormally dangerous.
Abolishing Status Classifications
Most jurisdictions use the status classifications, but some reject the categories as being out of step with modern negligence principles.
Reasonable Care Considering the Circumstances. In place of the rigid classifications, jurisdictions like California use a standard of "reasonable care under all the circumstances." Instead of creating separate duties of care based upon status, this standard uses status simply as an indicator of what would be reasonable under the circumstances. Thus, a couple that invites their neighbors over for a barbecue owe them reasonable care, just as the supermarket owes a duty of reasonable care, but more will be expected of the grocery store because of the business nature of the transaction and because of the higher volume of traffic that uses the premises. The net effect obviously is that the results in a California-type jurisdiction will often resemble those that are produced by a status-classification jurisdiction. However, it will tend to be more of a jury question.
Absolute Privilege
An absolute privilege is enjoyed by participants in official proceedings. Litigants and witnesses enjoy an absolute privilege for statements made during the course of a judicial or other governmental proceeding, so long as the statements have potential relevance to the issues addressed. Similarly, government officials have an absolute privilege for statements made while discharging their duties as public officials.
Actual Damages
Even if the plaintiff is allowed to recover general damages, the award is limited to damages actually proven. This still allows for subjective damages, such as pain and suffering or loss to reputation generally, but such injuries must be established by competent testimony; it is not permissible for the jury to award presumptive damages or in effect punitive damages unless malice is shown.
Actual Malice
To recover damages, a public official or public figure must prove that the defendant published the defamatory material with "actual malice"--that is, with knowing or reckless disregard of the probable falsity of its content. It is not enough that the plaintiff can show the defendant wanted to "get" the plaintiff (e.g. through hard-hitting investigative reporting); the issue is whether there were such serious doubts about the truth of the allegation that the defendant was reckless in publishing anyway.
Additional Parties Who Can Recover Damages
Most tort suits involve a claim by the person who was directly injured by the defendant's negligence: in an intersection collision case, the person struck and injured by the defendant will seek recovery for her injuries. In addition to the party directly injured, other parties may claim damages as a result of the defendant's negligence. The need to recognize such claims is most apparent in wrongful death cases, where the direct victim is incapable of being compensated. In addition, however, tort law has tried to strike an appropriate balance between compensating real injuries on the one hand and avoiding the extension of tort liability beyond manageable limits. For example, most jurisdictions recognize the right of a spouse to recover for loss of consortium--the society and companionship of the spouse, along with the economic and social costs that are associated. On the other hand, to extend the came right of recovery to any member of the immediate victim's family would greatly multiply the number of lawsuits handled by the system.
Alternative Liability
The classic case applying alternative liability was Summers v. Tice. In that case two defendants negligently shot in the plaintiff's direction, but the evidence was insufficient to determine which defendant's shot caused the damage to the plaintiff. The court shifted the burden of proof to the defendants to establish which of them was not the responsible party. Courts apply this doctrine of alternative liability where (1) each of the defendants negligently created a risk of harm toward the plaintiff; (2) all of the potential defendants are present in the court room; and (3) the plaintiff's harm probably resulted from one of the defendant's conduct. The effect of the application of this doctrine is to shift the burden of proof to the defendants; if they do not carry the burden of proof, all will be held jointly and severally liable. If one or more defendants persuades the jury that he was not responsible, the liability will shift to the remaining defendants.
Alternative Therapies
Another important piece of information for the patient is what alternatives there are to the proposed course of treatment. Sometimes an alternative is simply to do nothing; in other cases there are less aggressive (or more aggressive) ways to treat the same condition. Unless the patient knows how the proposed course of treatment compares with other alternatives, an informed choice cannot be made.
Animals
A traditional source of strict liability is injury inflicted by animals that escape from the custody of the owner. However, an owner is not liable for such injuries unless the owner knows the animal is dangerous. Some animals (tigers, for example) are presumed dangerous. Others, such as domestic animals like dogs, are presumed docile, but once the owner has reason to know of the animal's ferocity, the owner becomes strictly liable even is he uses reasonable care to restrain the animal from causing injury.
Answer
The defendant's answer must responds to each of the allegations of the plaintiff's complaint. In addition, it may asserts any affirmative defenses (or claims against third parties) that the defendant thinks might apply to the case. Like the complaint, it also sets forth the defendant's request for relief, usually that the plaintiff's complaint be dismissed, and/or that some third party be required to pay for the damage.
Assumption of Risk
At common law a plaintiff's claim was barred not only where the plaintiff was negligent, but also where the plaintiff voluntarily assumed a known risk. One way of viewing assumption of risk is to treat it like a mirror image of strict liability for defendants: just as a defendant is ordinarily made responsible for an injury based upon negligent conduct, so a plaintiff's conduct is usually judged in light of the standard of reasonable care. However, just as a defendant can sometimes be held responsible regardless of fault--where the defendant has made a conscious choice to engage in unusually risky behavior (such as transporting large quantities of gasoline), so a plaintiff can be made responsible for an injury because the plaintiff made a conscious choice to engage in the behavior (for example, bungee jumping). One of the major issues is figuring out whether assumption of risk operates as a bar to recovery or only reduces the recovery proportionately.
Primary vs. Secondary. One distinction courts recognize is between primary assumption of risk (whereby a plaintiff relieves the defendant of the duty to use reasonable care) and secondary assumption of risk (whereby a plaintiff, having recognized that the defendant has created a risk, chooses to encounter the risk.
Battery
Intent to Cause Harmful or Offensive Touching. In both battery and assault the defendant must have intended to cause either a harmful or offensive contact with the plaintiff, or the apprehension of such contact. What is harmful or offensive is judged by how a reasonable person in the plaintiff's position would have felt about the contact. In addition, there is a doctrine of transferred intent, which provides that if the defendant in effect "aims" a battery or an assault at one person, but the injury "lands" on another person, the intent requirement is satisfied even if the defendant did not intend to hit the person who was actually injured.
Assault. The intent requirement for an assault is the same as the intent requirement for a battery. If the defendant intends an assault but causes a battery, or intends a battery but causes an assault, either one will satisfy for the intent requirement. An assault occurs when the plaintiff suffers apprehension or fear of an imminent contact. It is not enough that the defendant creates apprehension of some future contact; there must be fear of imminent contact. While an assault often accompanies a battery, it is possible to have a battery without an assault (if no fear precedes the contact); it is also of course possible to have an assault without a battery (where no touching occurs, but fear is created).
Battery. The distinguishing feature of a battery (as opposed to an assault) is that some sort of harmful or offensive contact occurs. The touching of the plaintiff's person may be indirect, for example by a rock striking them or the clothing they are wearing, but there must be physical contact as opposed to the fear of such contact.
Breach of Duty
The first step in establishing liability is to show that there is something about what the defendant did that justifies imposing the cost of the plaintiff's injury upon the defendant rather than the plaintiff. It may be, for example, that the defendant acted negligently; alternatively, the defendant may have acted with reasonable care, but was engaged in an activity that creates such a high risk of danger that accidents caused by that activity should be borne by the defendant rather than the innocent victims. In most cases the plaintiff can establish a breach of duty either by showing that the defendant was negligent OR by establishing that the defendant is subject to strict liability.
"But-For” Cause Exceptions
Although the more probable than not standard for "but-for" causation applies in most cases, courts sometimes permit exceptions where justice requires it. These exceptions apply in three distinct types of cases: (1) where the actor's identity is unknown; (2) where the plaintiff would probably have been injured anyway, but lost a chance to avoid the injury; and (3) where an accumulation of causes resulted in injury, and a strict application of the but-for test would exonerate all defendants.
But-For Cause (a.k.a. Cause in Fact or Actual Cause)
Tort law ordinarily does not permit a plaintiff to recover damages unless the defendant's conduct was a cause of the plaintiff's injury. The first part of that test is that the injury would not have occurred but for the defendant's negligence. A defendant's behavior (driving while intoxicated, for example) may be quite dangerous and greatly increase the chance of accidents in general. However, unless the plaintiff's injury would have been prevented by someone who was not behaving negligently (e.g., by driving sober), the negligence cannot be said to have caused the injury.
Bystanders
Bystanders. Those who were are present at a gruesome accident and are emotionally traumatized often claim damages even if they themselves were not physically hurt. These claims are sometimes called "parasitic" because they depend upon the existence of a valid claim by the direct victim of the accident. Over time the law for bystanders has evolved from an impact rule (requiring the plaintiff to be touched in order to be eligible to recover) to a zone of danger rule (allowing a recovery to those who could have been injured by the defendant's negligence) to one which weighs the factual circumstances to determine foreseeability (e.g., Dillon v. Legg). However, the law in this area is unsettled.
Consortium. Most jurisdictions permit recovery by a spouse for loss of "consortium"--literally, the society (and companionship) with the direct victim. Claims for loss of consortium have also been brought by other family members, but with less success in most jurisdictions. Claims by family members other than spouses are often tied in with bystander claims; the family member can recover if they were present at the accident scene.
Calculating the Amount of Damages
Even where the categories of recoverable damages have been determined, and the eligible parties have been identified, it remains to set an actual dollar amount. Several factors come into play to affect this calculation.
Child Trespassers
Most jurisdictions make an exception for children in applying the rule that a landowner owes no duty to trespassers. The doctrine is often known as "attractive nuisance," but neither term is really apt. The Restatement test (adopted by most jurisdictions) imposes liability for artificial conditions (those that are created by the owner rather than a natural feature of the landscape) when five conditions apply: (1) the owner must have reason to believe that children will trespass on the property; (2) the owner must know of an artificial condition on the property that is dangerous to children; (3) the danger must be one that the children will not appreciate because of their youth; (4) there must be an inexpensive way to eliminate the risk; and (5) the owner must have failed to exercise reasonable care to implement the inexpensive safety measure. Some jurisdictions also follow Holmes in requiring that the condition be one that attracts to the property--"causing" them to trespass. Most jurisdictions, however, reject this "allurement" doctrine.
Collateral Source
If the plaintiff is compensated from a source other than a tortfeasor, the traditional rule in most jurisdictions was that the defendants should not be allowed to reduce their liability by such amounts. For example, if the plaintiff received health insurance benefits to pay for the medical costs following an accident, the defendant would still be required to pay as though they had never been received. This sounds like "double dipping," but in most cases the insurer was able to recover (through subrogation) whatever they had advanced. Reform statutes often altered that rule, allowing the jury to hear evidence concerning benefits the plaintiff had already received to pay for the injury, and reduce the defendant's liability accordingly.
Company Rulebooks
One useful way to establish that the defendant was negligent is to point to some policy adopted by the defendant that would have prevented the injury if it had been followed in the plaintiff's case. These efforts are treated differently, depending upon whether they are adopted before or after the accident. For example, where a street car company adopts a policy prior to the accident that street car conductors should ring a bell before entering an intersection, the plaintiff can use the "disobedient servant" as evidence that reasonable care required use of that safety precaution. On the other hand, courts as a policy matter have excluded evidence of safety measures adopted by the defendant after the accident. Evidence of post-accident repairs or subsequent remedial measures is usually inadmissible. The concern in the case of post-accident repairs is that a rule allowing their use as evidence of pre-accident negligence would discourage defendants from adopting measures that might be very important for public safety. While one might construct an argument that a similar disincentive would attach to defendants who are composing company rulebooks, courts have allowed the pre-accident repair measures (where disobeyed), but not the post-accident repair measures.
Comparative Fault
All but a handful of jurisdictions have adopted some form of comparative fault that allows the jury to apportion damages according to the relative fault of the parties. The statutory formula varies, depending upon whether the statute is "pure" or "modified," whether it permits joint and several liability, and how it approaches settlement.
Complaint
The complaint is usually the first step (after the lawyer's investigation) to begin a personal injury suit. The complaint sets forth the facts upon which the plaintiff bases her claim for relief, and then asks ("prays") for the relief sought, such as damages, an injunction, etc.
Concerted Action
Where two or more defendants act in concert to create a risk of harm toward the plaintiff, each will be liable for the plaintiff's injury even if it cannot be determined which of the defendants actually caused the injurious consequence. For example, if two teenagers engage in a drag race and one of the vehicles strikes a pedestrian, both may be held liable on the theory that each is an agent of the other. Where the defendants do act in concert, they become jointly and severally liable for the injuries that each inflicts upon the plaintiff.
Conditional Privileges
As the term implies, a conditional privilege is held only so long as the defendant acted in good faith. If a bad motive is shown, the defendant will be stripped of the privilege and will be liable if a prima facie case is made out.
a. Matter of Concern. A defendant has a privilege to publish defamatory falsehoods if there is a legitimate matter of concern that the publisher shares with another. For example, if a former employer is asked for a reference by a new employer, the former employer has an interest in avoiding suits for failure to disclose. Thus, even defamatory material may be communicated if it is done in good faith.
b. Fair Report of Official Proceeding. Where the publisher is providing an accurate report of an official proceeding, whether judicial or otherwise, the publisher may republish defamatory falsehoods that occurred during the official proceeding.
Consent
The plaintiff's consent to the defendant's conduct is a defense to an intentional tort claim. However, this defense is unavailable in two circumstances: (1) where the conduct was illegal and the court will refuse to recognize the plaintiff's waiver of the law's protection; and (2) where the defendant's behavior exceeds the scope of the consent given.
1. Courts May not Recognize Consent to Illegal Conduct. If the plaintiff and defendant agree to engage in illegal conduct (for example, illegal fighting, dueling, or use of unlawful drugs) and the behavior leads to injury, the plaintiff has sometimes been permitted to pursue a tort claim despite apparent consent to the defendant's conduct. Courts are ambivalent about the appropriate treatment of such cases. Some courts (in some cases) believe that the defendant should not get the benefit of the defense of consent, because it would give judicial recognition to what an illegal contract. On the other hand, other courts (in other cases) hold that the plaintiff should not be shielded from the consequences of his illegal conduct and the defense should therefore be sustained. It is difficult to find a principled distinction between the two kinds of cases.
2. Injury Beyond the Scope of Consent. Even if the plaintiff has consented to some form of conduct that would otherwise be unlawful (such as a hockey player who consents to vigorous "checking" that may result in injury), the plaintiff may receive injuries from conduct outside the scope of consent (for example, being hit by a hockey stick after play has ended). It is often a close question of fact as to what the plaintiff agreed to and whether or not the defendant's conduct conformed to that agreement. Where it does not, the defense of consent will not shield the defendant from liability.
Contribution and Indemnity
Where a defendant pays more than his percentage share, he would like to recoup this overpayment from his codefendant. At common law, tortfeasors were not allowed to recover contribution from one another, but modern comparative fault systems usually permit a defendant to recover contribution. This only comes into play in a system permitting some form of joint and several liability, where a defendant can be forced to pay more than his percentage share. Indemnity is simply an extreme form of contribution, permitting the indemnitee to recover one hundred percent of his payment from the indemnitor.
Contributory Fault
The term "contributory fault" applies to any form of behavior on the part of the plaintiff that results in a reduction of the plaintiff's award. Just as the defendant is made responsible for a breach of duty resulting in damages, so the plaintiff can be required to pay for that portion of the injury resulting from his or her contributory fault. While most forms of fault (as with defendants) are based on negligent conduct, contributory fault can also arise from the plaintiff's conscious decision to engage in risky behavior. This latter concept is referred to as assumption of risk.
Contributory Negligence Bar
At common law, a finding that the plaintiff was negligent barred any recovery, even though the result was to allow a negligent defendant to escape any responsibility for the accident. Approximately six states still follow this rule. The majority of states, however, have abandoned the common law rule.
Contributory Negligence
The term "contributory negligence" refers to negligence on the part of the plaintiff. Just as the defendant is negligent when she fails to exercise reasonable care for the safety of others, a plaintiff is considered negligent when he fails to exercise reasonable care for his own safety. Similar rules with respect to causation apply to contributory negligence as well as to a finding that the defendant was negligent. The term "contributory negligence" has a specific legal meaning referring to negligence by the plaintiff. The use of that term doesn't by itself indicate whether the jurisdiction will treat such negligence as a complete bar or not. When someone refers to the contributory negligence rule they usually mean a rule that would bar the plaintiff's claim entirely, as opposed to a comparative fault system of some kind.
Custom of the Industry
In many tort cases the defendant was engaged at the time of the accident in an activity that was common to the industry to which he belonged. For example, in the T.J. Hooper case the defendant operated a tugboat that transported barges along the Eastern seaboard. In deciding whether or not the defendant was using reasonable care in that operation, the court would ordinarily consider how other people, situated similarly to the defendant, conduct their operations. If a safety measure is in common use, it suggests that it is one that reasonable people would take, and the converse is also true. However, the court in T.J. Hooper announced that the custom of the industry is not dispositive of the liability issue; the plaintiff can always argue that the whole industry was lax in adopting appropriate safety measures (in the tugboat case, radios that would warn of adverse weather).
Damage Limitations to Sovereign Immunity Waiver
Some state statutes allow an injured victim to sue the sovereign for damages, but create an upper limit on the amount that the victim can recover. Thus, for example, if the limit is $50,000, then an injured victim can at best recover $50,000 from the state regardless of the amount of actual injury.
Dangerous Propensity
A parent’s liability for harms caused by a child is limited to cases where the parent knows of a dangerous propensity on the part of the child. Even where the child is ill behaved and one might question the reasonableness of the parent's actions, unless a specific danger is presented, and the parent has an ability to control the risk through the use of reasonable care, no liability will be found.
Types of Recoverable Damages
The first task in assessing damages is to determine the types of damages that a plaintiff can recover. To some extent this section also involves a determination of the threshold requirements for recovering any damages at all. The basic types of damages are:
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Compensatory Damages
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Punitive Damages |
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Economic Damages · Property Damage · Lost Wages · Medical Expenses |
Non-economic damages · Pain and Suffering |
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In addition to these categories, there are the costs of litigation that the winning party would like to recover as part of the loss suffered by the plaintiff. However, such costs are typically not recoverable (see “Litigation Costs”)
Deadly Force
A distinction is drawn between the circumstances under which it is permissible to use deadly force and those where only non-deadly force is permissible. Although the standard in each case is whether the defendant acted reasonably, greater specificity is provided in the Restatement to guide the use of force, both deadly and otherwise.
Deadly Force May Only be used to Prevent Loss of Life. Deadly force may be used when the defendant reasonably believes that use of such force is necessary to prevent the loss of his own life or that of another. This standard incorporates both a subjective and an objective component; the defendant must genuinely believe that use of deadly force is necessary, and in addition that force must be objectively reasonable. However, the reasonableness of the belief is based upon the circumstances as they appeared to the defendant at the time, and a showing that such force was in fact unreasonable (for example, because the attacker was unarmed) will not defeat the privilege if the circumstances appeared otherwise to the defendant. Decisions about the reasonableness of the defendant's use of force are classic jury questions, particularly in view of the credibility issues surrounding different versions of the same events.
2. Even Non-Deadly Force Must be Reasonable. Non-deadly force may be used to protect the defendant against simple assault or property, but the force used must be reasonable in relation to the threat posed.
Defamation Damages
Even if the plaintiff has met the test for recovery of damages described in the liability section, those damages may be limited by common law or constitutional principles.
Defamation
The tort of defamation remedies unprivileged damage to the plaintiff's reputation. The basic principles of defamation were developed early in the common law, but they have been radically altered by the application of the First Amendment to protect the major targets of defamation claims, media defendants.
Liability. In order to recover damages, a defamation plaintiff must establish three elements: first, that the defendant made a defamatory statement concerning the plaintiff; second, that the statement was false; and third, that the statement was made with (depending upon whether the plaintiff was a public figure or a private figure) either actual malice or simple negligence.
Defamation--Culpability
The standard is either negligence or recklessness, depending upon whether the plaintiff was a public figure or a private figure.
Defamation--Defenses
Defenses to defamation include both absolute privileges (which are not defeasible even when malice is shown) and conditional privileges (which can be lost if the defendant exhibits bad faith).
Defamation--Punitive Damages
If the defendant has acted maliciously, the plaintiff is entitled to recover punitive damages. This includes both traditional malice (spite or ill will toward the plaintiff) as well as actual malice (reckless disregard of probable falsity).
Defamatory Statement
In a defamation action the plaintiff must first establish that the defendant's statement concerned the plaintiff; if a general statement is made about politicians in general, for example, an individual politician may be unable to establish that the statement was about him. Similarly, a statement that uses pseudonyms or disguised references will not affect the plaintiff unless the readers are able to identify the plaintiff as the object of the statement. In addition, the statement must result in damage to the plaintiff's reputation among a significant segment of the community; statements that hold the plaintiff up to ridicule or disparagement meet this test. Even statements that would otherwise be honorific (e.g., that the plaintiff was a war hero) may be defamatory if the plaintiff's community (e.g., a Mennonite farming community) would think ill of the plaintiff as a consequence.
Defense of Property
Force may be used to defend one's property, but two qualifications are in order: first, the force used must be reasonable under the circumstances and proportionate to the property interest that is at stake. Second, to the extent there is a genuine dispute over the ownership of a piece of property, the one who is not in possession is required to seek a judicial determination of ownership before attempting to seize control. Thus, a "repo" man can repossess a car if the purchaser has failed to make payments required under the contract, but he may not use force if the owner continues to assert ownership. Similarly, once the lienholder has repossess the property, the purchaser may not use force to recapture it. Instead, the dispossessed party must ask a court to make a determination as to the proper owner of the property.
Defense of Others
Essentially the same privileges apply in defending the life or safety of another as apply in self-defense. However, the potential for mistake is greater and a jury may question the reasonableness of a defendant's actions when he intervenes for another, particularly when the circumstances are more difficult to evaluate accurately.
Design Defect
A design defect occurs when the product was made according to the manufacturer's specifications, but the plaintiff alleges that the design itself was unreasonably dangerous. For example, a can of household drain cleaner may be defective if it is designed and sold without a childproof cap to reduce the chance of injury. Design defect cases are more difficult than manufacturing defect cases because there is no single standard with which to compare the product as it was designed. For example, if an aluminum hard hat fails to prevent a head injury from a falling tree, how can the jury decide whether the helmet was reasonably safe as designed?
Mixing Strict Liability and Negligence. In both design defect and warning cases, the courts (and even product liability reform legislation) are confused over whether to impose strict liability or use a negligence standard. In many cases there is no recognizable difference; the only time it really matters is when there is new information about the risk presented by a product: if a reasonable person would not have been able to predict a particular hazard (e.g. the risk of toxic shock from a superabsorbent tampon), then the defendant will win under a negligence standard, but lose if we apply strict liability based upon what we know today about the product.
Discovery
Lawyers use the time interval between initial pleadings and trial to conduct discovery and to file any motions that might help them prepare for trial. Discovery is the opportunity for each side to learn what evidence the other party has that might be relevant to the case. There are several different forms of permissible discovery. One is interrogatories, which are written questions addressed to the other party. For example, the defendant's attorney, might send a set of interrogatories to the plaintiff asking for information about her work history, the nature of her medical complaints, the names of witnesses who have knowledge of the accident, etc. Another commonly used form of discovery is the deposition, which is testimony by a witness in front of a court reporter. The plaintiff's lawyer might schedule the defendant's deposition to find out his account of the accident. In a deposition the lawyer asks questions, and the witness must answer them, and the testimony is taken down by a court reporter, who later transcribes it. The lawyers can also send a request for production of documents, which requires the party to respond with any relevant documents such as photographs of the accident scene, medical records, etc.
Discretionary Function
Statutes waiving sovereign immunity typically remove from liability particular activities of the government that might otherwise be the target of lawsuits. For example, police protection or fire protection may be exempted from liability. In the federal statute intentional torts are excluded, except when committed by law enforcement personnel. Highway maintenance or other areas may be targeted for protection.
Most statutes include a specific exclusion from liability for policy decisions made by the government. In the federal statute this is referred to as the performance of a "discretionary function" by the government. One reason for excluding liability is to protect the separation of powers between the branches of government; if policy decisions could be subject to tort liability, the courts would be involved in second guessing policy decisions of the legislative or executive branch. It is often difficult to identify the dividing line between policymaking (which is typically exempt) and the implementation of policy (which is subject to liability). This issue must be decided on a case-by-case basis.
Dollar Method of Claim Reduction
The simplest approach is to allow the plaintiff to recover the full damages from the non-settling party, minus the dollar amount of whatever has been received in settlement from the tortfeasor who has been released. This provides the plaintiff with a full recovery, but it creates the potential for a non-settling defendant to pay a disproportionate share of the liability. When the plaintiff releases the defendant, the defendant is also released from liability for contribution from a codefendant. Without a full release, few defendant's would enter into a settlement agreement.
Duty to Rescue
In most of the cases we assume the defendant has a duty to use reasonable care toward the plaintiff, because in most cases the defendant has created the risk that injured the plaintiff. However, sometimes the defendant can successfully argue that he owed no duty to the plaintiff. When the argument is raised, we have to examine whether the duty to use reasonable care has been triggered. In general, the duty to use reasonable care is owed in two kinds of cases: (1) those where the defendant is accused of "misfeasance": plaintiff is alleging that the defendant's actions caused harm to the plaintiff. Or (2) the plaintiff may be alleging that the defendant is guilty of nonfeasance, of negligently failing to act to protect the plaintiff. Each kind of case is handled differently.
The Concept of Defect
While there is strict liability for a defect, it should not be confused with absolute liability, such as can be imposed for abnormally dangerous activities such as using dynamite. If you make a product (e.g. a car) and it causes injury, you won't be held liable unless the plaintiff can prove that the car was defective in some way. The defect must be one that makes the product unreasonably dangerous, and the defect must be present at the time the product left the manufacturer's hands, as opposed to being a result of negligence by a middleman.
There are three kinds of defects: manufacturing, design, and warning.
Eggshell plaintiff
Where a plaintiff has established the right to recover from the defendant, the plaintiff is entitled to recover the full amount of damages actually caused by the defendant's fault, even if the extent of the injury is unusual because of the plaintiff's unusual susceptibility to injury. This is often referred to as the "eggshell plaintiff" or "thin-skulled plaintiff" doctrine. Remember that if it is unforeseeable that the plaintiff will suffer any injury (for example, if the plaintiff is located miles away from the scene of the accident), then there may be a problem with proximate cause. However, if the plaintiff is otherwise entitled to recover, the defendant isn't able to reduce the damages by showing that a "reasonable" person would have suffered much less.
Employer Immunity
Employers enjoy immunity in most states as a result of the worker's comp system. Early in the development of the common law there was no worker's comp system, and many industrial injuries resulted in tort suits alleging that the employer had behaved carelessly. Many defenses were available to the employer, including assumption of risk, negligence of a "fellow servant," etc. Dissatisfaction with this system led to the adoption of the worker's compensation system, which operates like an insurance fund. In other words, the employee's right to recover is based upon the occurrence of an injury subject to the coverage provided under the worker's comp policy. No proof of fault on the part of the employer is required.
Worker's Compensation Exclusion
Most jurisdictions have a mandatory system where all employers are required to participate in the worker's compensation program, whereby the employer pays insurance premiums and receives coverage for worker injuries, regardless of fault. The employer's premiums are based upon loss experience, giving the employer incentive to reduce work place injuries. Some jurisdictions permit an election of remedies, whereby the employer or the employee (depending upon the system) may choose to be covered by the workers comp system or not.
No Immunity for Intentional Torts
The worker's compensation immunity extends to accidental injuries in the work place. Where the injury is caused intentionally by the employer, no immunity applies. Suits for racial or sexual harassment often fall into this category.
Enterprise Liability
Enterprise liability can be applied where the members of an industry or enterprise (such as the blasting manufacturers in Hall v. DuPont) control the standards setting process which could have mandated (but negligently failed to mandate) safety measures to prevent the injury to the plaintiff. This differs from concert of action in that none of the defendants is an agent of the other, and it differs from alternative liability in that not all of the defendants need be present in the court room. However, it does require a showing that the defendants had it within their power as a collective entity to take the safety steps that the plaintiff claims they negligently failed to do. Note also that enterprise liability is a means of establishing causation; it does not eliminate the need for the plaintiff to show that the defendants acted negligently in failing to adopt safety measures.
Equal Shares Method
One of the earliest approaches to the problem of claim reduction was the 1939 Uniform Contribution Among Joint Tortfeasors Act. It provided that the plaintiff's claim would be reduced by an arbitrarily set percentage based upon the number of defendant's in the lawsuit. Thus, when a plaintiff released a defendant in a two-defendant case, the plaintiff would be giving up one-half of the damages, regardless of whether the settling defendant was rightly at fault or only a peripheral party. While this has the disadvantage of being arbitrary, it has the advantage of being predictable, unlike the percentage method which is difficult for the plaintiff to evaluate in advance.
Excessive Awards
A major emphasis of the tort reform movement was the claim that awards in personal injury suits were excessive. Many jurisdictions responded by enacting limitations on the total amount of damages that could be recovered, particularly for pain and suffering. Some of these "caps" were held to be unconstitutional, either because of the right to a trial by jury, or because they violated an "open courts" promise in the state constitution. Still other jurisdictions found them an appropriate legislative response to the tort crisis.
Excuse
Even in jurisdictions that recognize Cardozo's doctrine of negligence per se, there is room for the defendant to escape a finding of negligence based upon a statutory violation if she can establish that her violation of the statute was excused. The Restatement sets out five criteria for a valid excuse for a statutory violation, including ignorance of the facts giving rise to the need to comply with the statute (e.g., the defendant's car had no working tail-lights, but she was excusably unaware of that fact); or that compliance with the statute would have actually created a greater danger than violating it (e.g., the plaintiffs in Tedla v. Ellman who walked on the "wrong" side of the road because it was safer).
False Imprisonment
The tort of false imprisonment often occurs in conjunction with the use of force already considered in the discussion of battery and assault. However, the tort of false imprisonment doesn't require the use of force, but rather the constraint of an individual against his will.
1. Confinement. To establish the tort of false imprisonment, the plaintiff must show that the defendant intentionally acted to confine the plaintiff. The defendant need not use physical force, but may accomplish the confinement by claiming legal authority. For example, a security guard who shows a badge and asks the plaintiff to accompany her back to the store may intentionally create in the plaintiff the impression that the plaintiff is legally required to do as requested, even if no physical force or threat of force is used.
2. Fixed Boundaries. The defendant must confine the plaintiff within an area characterized by fixed boundaries. The area may be large (for example, a football stadium), but the plaintiff must not be free to go outside the boundaries. Simply preventing the plaintiff from going where the plaintiff wants to go is not confinement unless the restriction is complete.
3. Awareness or Damage. The plaintiff must either be aware of the fact of confinement as it occurs or else suffer damage as a consequence of being confined. For example, if a group of students are intentionally confined in a classroom but are unaware that they are so confined, they cannot recover for false imprisonment unless they can show that they were damaged by the period of confinement.
Falsity
The plaintiff must also show that there was a false statement of fact made about him. Statements of opinion (e.g., Madonna has no acting ability) are not actionable, whereas statements of fact (e.g., Madonna flunked out of acting school) are. Parody or hyperbole, which an audience would not treat as a statement of fact, is not actionable. Minor discrepancies that do not affect the "sting" of the statement also are not actionable (e.g., stating that a person had three convictions for burglary when in fact they had had only one).
Fault
The term "fault" is usually used as a synonym for "negligence." When a party is said to be "at fault" that usually means that they are considered "negligent." Modern comparative fault statutes often use "fault" to mean something broader--any kind of behavior that will trigger liability, including traditional "no-fault" forms of liability like strict liability. However, the casual use of the term "fault" usually just means "negligence."
Foreseeable Plaintiff
In the classic case of Mrs. Palsgraf, Justice Cardozo held that a railroad could not be found liable for injuries to a person who was so far removed from the defendant's negligent act that an injury to her was unforeseeable. Cardozo held that a defendant's duty to reasonable care extends only so far as a reasonable person would expect the consequences of his negligent act to reach. To people beyond that "zone of danger" the defendant could anticipate no injury, and therefore would not be under an obligation to use reasonable care. Andrews, dissenting in that case, thought the issue was less a matter of whether the defendant owed a duty of care, and more a question of whether the defendant's negligent act was a proximate cause of the injury. Andrews thought that the question of proximate cause was less a matter of legal doctrine and more a pragmatic weighing of policy concerns and issues of fairness. Most jurisdictions have adopted an approach closer to Andrews' reasoning than Cardozo's.
Good Samaritan
Some jurisdictions have enacted statutes that are designed to encourage people who are inclined to be a "good Samaritan" by promising them that they won't be subject to potential tort liability if they don't use reasonable care. Typically these statutes provide that the person who comes to the aid of another will only be liable if they are guilty of gross negligence, or of something worse than simply failing to do what a reasonable person would do. Thus, for example, a doctor who is on his way home may stop and assist a victim of a highway accident and not face ordinary malpractice standards. Otherwise, the doctor might be inclined to just keep driving.
It's important to note that the Good Samaritan statutes don't create any legal duties (neither the doctor nor anyone else faces legal liability if they decide not to stop).
Good-Faith Hearing
To ameliorate the potential for "sweetheart" settlements that don't protect the right of the non-settling party, jurisdictions that reduce the plaintiff's claim against nonsettling defendants by a dollar amount usually require some sort of hearing to determine the good faith of the settlement agreement.
Identifying the Correction Limitations Period
When you look at a jurisdiction's statute of limitations, it will often contain several discrete statutes that provide different limitations period for different kinds of actions. The first step in analyzing a statute of limitations problem is to determine which limitation period applies to the case. The limitation period depends on the kind of claim being asserted (e.g., medical malpractice, assault, general personal injury, breach of warranty, etc.).
Increased Risk
A defendant's negligence may be a but-for cause of the injury, but the relationship between the two events may be "mere chance." For example, if a defendant negligently drives an automobile or practices medicine without the proper license, he may be negligent per se, and such negligence could be said to be a but-for cause of the injury. However, unless the defendant's negligence made this type of accident more likely to happen, it cannot be said to be a legal cause of the injury.
Indivisible injury
A plaintiff who is injured by the conduct of more than one defendant will seek to hold each of them jointly and severally liable. Ordinarily, tortfeasors can be held only jointly and severally liable for an indivisible injury. The distinction is between a single injury with multiple causes and multiple injuries. For example, suppose two cars drive negligently, leading to a collision that injures the plaintiff. The plaintiff's injuries are attributable to two causes: the negligence of the first driver and the negligence of the second driver. But there is no way to divide their responsibility in terms of the injury that was caused. The two causes have combined to produce a single result. On the other hand, suppose the plaintiff is struck is an automobile accident on Wednesday, damaging the left side of the car, and on Friday the plaintiff is involved in another accident in which the right side of the car is injured. It is possible to divide the injuries into damages suffered as a result of the first collision and the damages suffered by the second collision. Under the latter circumstance, the injury is not indivisible and the defendants causing each part of the accident will not be held jointly and severally liable.
Informed Consent
Physicians (and patients) do not always agree on the best procedure to use when confronting illness. For example, in the treatment of heart disease, some physicians favor an aggressive approach that features surgical bypass of blocked arteries. By contrast, other physicians favor a more conservative approach that removes the blockage through catheterization, turning to surgery as a last resort. Neither of these is "right"; but either can be "wrong" if the patient is not given the background information (about material risks and alternative therapies that would permit a choice between them. In a way, failure to give informed consent is simply another form of negligence, since a reasonably prudent physician would inform her patient of available options. On the other hand, informed consent has survived as an independent branch of medical malpractice to differentiate between performing a procedure well and performing a procedure with proper authorization.
Statutory Changes to the Informed Consent Doctrine. Many states also enacted explicit standards for informed consent that specified the kind of information that had to be disclosed to the patient, along with a requirement concerning proximate cause: patients cannot recover under informed consent unless they show that a reasonable person would not have consented to the procedure if adequate information had been provided.
Intentional Tort Defenses
Even if the plaintiff establishes all the elements of a prima facie case, the defendant may be able to defeat liability based on the doctrines of consent, self-defense, defense of others, defense of property, or statutory privilege.
Intentional Torts
Most tort cases deal with accidental injury; the issue is who (the defendant or the plaintiff) will have to pay for an injury that neither party wanted. Some cases, however, involve injury that is intentionally inflicted upon the plaintiff. In the law enforcement context, for example, charges of excessive force can lead to tort liability. Part IV deals with the intentional torts of battery, assault, false imprisonment, and intentionally inflicted emotional distress. It also covers the defenses: consent, protection of self, protection of others, and protection of property.
Prima Facie Case. Most intentional torts are clearly described in terms of elements that the plaintiff must establish in order to create liability. These torts differ from a standard negligence case in that the plaintiff must prove much more in terms of culpability, but is not required to prove as much in the way of damages. Thus, an injury that is inflicted accidentally may not deserve compensation, but if the same injury is inflicted intentionally, the plaintiff will be allowed to recover. This serves the interest of protecting the bodily integrity of the individual and deters antisocial conduct.
Joint Liability Overpayment
Most contribution claims are brought by a defendant who has been forced to pay more than his percentage share of liability. Most jurisdictions permit a defendant in that situation to sue the codefendants for their "fair share." It is to the defendant's advantage to establish the right to contribution in the same action that determines liability. However, if that has not been done the defendant against who liability is entered may seek contribution by filing an action within one year of the time the judgment is entered.
Joint & Several Liability
The plaintiff wants the ability to recover all of his damages from any defendant who participated in causing his injury. This minimizes the chance that the plaintiff will go uncompensated because one or more of the defendants doesn't have a deep enough pocket to pay for the portion he caused. Jurisdictions have struggled with the question of whether to place the burden of insult on defendants upon the plaintiff or upon the codefendants. If all of the defendants are completely solvent, joint and several liability is not a significant issue, since each will be able to pay his own share. On the other hand, to solve the problem of the insolvent defendant, different jurisdictions have taken a variety of approaches. They range from pure joint liability to mixed systems to pure several liability.
Juror Experience
One way for the plaintiff to establish negligence is to appeal to the jurors' sense of what is reasonable behavior based on their own experience. For example, if the defendant loses control of his car because he is trying to swat a wasp that flew in the window, the jurors may have enough familiarity with the situation to decide on their own what constitutes reasonable care, and whether the defendant met that standard.
Learned Hand
Oftentimes there is no established pattern against which to measure the defendant's behavior. In such circumstances the finder of fact should consider the relative cost of accident prevention formulated as B<P*L: Is burden of preventing the injury) compared with the average loss to be suffered if the injury occurs, multiplied by the probability that the injury will occur. This test has often been referred to as a test of economic efficiency, since it suggests that a deefendant is expected to employ measures only when they are cost efficient.
Legal Cause
In addition proving that the defendant's negligence was a but-for cause of his injury, the plaintiff must also show that it was a legal cause. Whereas the but-for test revolves around the question of probabilities, the legal cause test revolves around questions of policy--whether it is fair in a given circumstance to require the defendant to pay for the plaintiff's injury. A defendant's negligence is not a legal cause of the plaintiff's injury if any of three conditions is present: (1) the defendant did not increase the chance of the plaintiff being injured; (2) the defendant's negligence was too remote from the injury because of a superseding cause; or (3) the chain of events resulting in the plaintiff's injury made the plaintiff an unforeseeable victim of the defendant's negligence.
Litigation Costs
Although the tort system strives to calculate an award that will put the plaintiff back to as good a position as he or she would have been in but for the injury, one expense is routinely undercompensated: the cost of bringing a lawsuit to obtain compensation. The "American Rule" regarding attorney's fees requires each party in the litigation to pay its own attorney's fees, whether they are successful or unsuccessful. This has the effect of making it a less risky venture to bring a lawsuit, or defend one, but it means that a victory is less than complete: a defendant who successfully establishes his lack of liability will still pay for the cost of defending himself; a plaintiff who establishes that the defendant wrongfully caused him injury will still have to pay his lawyer the cost of bringing the case. Some tort reform proposals have suggested moving closer to the "English Rule," which would require the loser to pay the winner's legal fees.
Locality
In medical malpractice cases, a key issue is what kind of expert will be allowed to testify on the plaintiff's behalf. In an earlier day the only experts who were qualified to testify were those who were familiar with the practice of medicine in the particular locality where the alleged malpractice occurred. In all but the larger cities this restricted the qualified expert to a handful of doctors, and they would likely be reluctant to testify because of their close working relationship. Most jurisdictions have now replaced the locality rule with a provision that experts must be familiar with the practice in the state where the medical care was provided.
Less than 50% probability
In the ordinary case the plaintiff is required to show that more probably than not the injury would not have occurred but for the defendant's negligence. In some cases the defendant clearly acted negligently, but the evidence may indicate that the plaintiff more probably than not would have been injured anyway. Under a traditional application of the burden of proof, the plaintiff would lose such a case. However, in a limited number of circumstances an exception may be made based upon "loss of a chance."
Loss of a Chance
If the jurisdiction recognizes the loss of a chance theory, it will permit a plaintiff to recover the value of a chance that is lost when a defendant acts negligently, the plaintiff is injured, but the evidence shows that the plaintiff more probably than not would have been injured anyway. This theory is used most often in medical malpractice cases, on the theory that, in the absence of such a rule, defendants would be immunized from liability for cases where the plaintiff's chance of recovery was less than 50% when the procedure began.
Malpractice
One who offers professional services (medicine, law, engineering) is held to the standard of reasonable care; one problem in such cases is to adapt the standard of reasonable care to a professional setting that juries may have a hard time evaluating. In addition, unique issues arise such as the duty of the professional to third parties (not clients of the professional) and the special requirements of informed consent.
Malpractice Statutes of Limitations
In an effort to reduce the length of time that a physician remains vulnerable to a malpractice suit, some jurisdictions have adopted a relatively fixed time limitation on bringing suit. In most areas of tort law a discovery rule is applied, which starts the statute of limitations only when the plaintiff could realistically be expected to bring a lawsuit, rather than arbitrarily start the statute of limitations running at the time of the accident. This was applied in medical malpractice cases on a regular basis. Under tort reform, however, this doctrine came under attack, because it means that a physician must be prepared to defend a medical malpractice lawsuit years after the physician last treated a patient. In response to physician complaints about this situation, many jurisdictions placed an outer limit (typically eight years) on the time a patient may bring a medical malpractice claim, even if a reasonable person could not have discovered the existence of medical malpractice prior to that time.
Malpractice—Outside of Medicine
While medical malpractice gets most of the attention, other professions are also sued for negligence in the delivery of professional services. As in the case of medical care, plaintiffs must usually supply expert testimony that establishes whether the defendant was negligent.
Legal Malpractice. In a legal malpractice case, the plaintiff must show that the lawyer was negligent. In addition, the plaintiff must show that the lawyer's negligence was a proximate cause of injury. In a litigation setting, it results in a "case within a case": the plaintiff must not only establish negligence, but must retry the case as it would have been tried, leaving out the negligence, to establish that the plaintiff would have won but for the negligent act.
Accountant Malpractice. Accountants are often relied upon by third parties for a reliable picture of the financial condition of a company for purposes of investment. One difficult aside from the question of negligence, which is common to other professional cases, is whether accountant owes a duty to people who don't pay his bill. This is the issue of "privity" which is reminiscent of the privity question in product liability. The modern trend is to relax the requirements of privity to make a professional, in law as well as in accounting, responsible for those who are expected to rely on the quality of the professional services, or who were intended (as in the case of a will drawn up by a lawyer) to benefit from the professional services.
Realtors, etc. Among the other professionals who have been sued are: real estate brokers, clergy, educators, etc. While the issue of negligence is often similar to those raised above, there are often additional issues about privity, deference (owed to educational institutions or religious institutions), etc.
Manufacturing
The easiest cases are those based on a manufacturing defect, also known as a construction defect. These cases are easy for two reasons: first, the determination of whether the defect exists is a simple question of whether or not the product was different from the product as it was designed by the manufacturer. In other words, was the product "out of spec"? Examples include a coke bottle that explodes because it is cracked or overfilled; a car that suddenly veers out of control because of a steering mechanism that fails; or an airplane with warning lights that are miswired.
True Strict Liability. The second reason these cases are easy is because true strict liability is imposed: the plaintiff need not prove that the defect resulted from lack of reasonable care on the manufacturer's part. Nonetheless, it is sometimes difficult to know whether the injury was due to a manufacturing defect or some other cause; for example, if a grinding wheel suddenly shatters while the plaintiff is sharpening a chisel (or a coke bottle explodes while a waitress is opening it), the existence of a defect (as opposed to carelessness on the part of the plaintiff or a repairman) is for the jury to decide.
Market Share Liability
This is essentially a limited version of alternative liability. Where the plaintiff is injured by a generic product manufactured by several of the defendants, and the specific injury-causing agent cannot be identified, a plaintiff may be able to recover from the defendants on the basis of their market share of the market for the generic product. This still requires a showing that the defendant acted negligently in marketing the product, and limits the defendant's liability to the percentage of the plaintiff's damages corresponding to the defendant's percentage share of the product market.
Material Risks
The first obligation of the physician is to disclose the risks that are proposed by the proposed procedure. Even relatively safe procedures occasionally result in bad outcomes (circumcision, for example, has a complication rate of 1 in 10,000), and the threshold for requiring a physician to provide the information is a relatively low one: would a reasonable person want to have that information before making a choice.
Medical Malpractice Reform
As in the product liability area, medical malpractice has been a frequent target of the tort reform movement. Changes have been made designed to reduce the cost of medical malpractice insurance, and thus lower the cost of medical care. Several states have adopted either caps on damages, or have made changes to the collateral source rule, both of which are discussed in Chapter Four. In addition, two unique changes have been made that apply to specifically to medical malpractice: changes to the malpractice statutes of limitation and changes to the law of informed consent.
Medical Malpractice
Suits for professional malpractice are more common in the medical profession than elsewhere, not because doctors are more prone to make mistakes, but because the mistakes are more readily identified and have more tangible effects. Most negligence concepts translate fairly directly to the medical context. First, particular attention must be paid to the standard of care that is expected of the defendant; second, even if the procedure is performed with reasonable care, it will lead to liability if the patient did not consent after an adequate explanation of the risks of the procedure. Finally, medical malpractice has also been a popular target of tort reform legislation.
Medical Expenses
In most personal injury cases the plaintiff incurs medical expenses. The expenses prior to trial are easily calculated, and are subject only to a reasonableness test. On the other hand, the expenses projected for the future, especially in a serious case, are hard to calculate. Escalating medical costs make it all the more difficult. Seven-figure medical expense awards are not uncommon in cases of brain damage or paraplegia. Like wage loss, a medical expense award must first be calculated in terms of future dollars, and then that sum must be discounted to present value to determine the jury award.
Misfeasance
Most cases fall under the heading of misfeasance; that is, the defendant engaged in an activity that created a risk toward the plaintiff, and he acted negligently. That "model" applies to cases where the defendant drives down the street and is accused of negligently running over the plaintiff, or the defendant manufactures an airplane that crashes because of a defect, or the surgeon negligently lacerates a kidney, the plaintiff is arguing that the defendant behaved in a risky way. When one acts in a way that creates a risk to others, one owes a duty of reasonable care.
Actionable Nonfeasance. Ordinarily it was the defendant's act that caused injury to the plaintiff. Sometimes, however, the plaintiff sues the defendant not for acting negligently, but instead for not acting at all. To put it another way, the plaintiff argues that the defendant didn't use reasonable care because the defendant didn't come to the plaintiff's rescue. What distinguishes these cases is that the risk to the plaintiff was created by some force other than the defendant's conduct, and the only role of the defendant is in somehow ameliorating the risk to the plaintiff. Typical cases involve an ambulance service that promises to provide emergency medical transportation; a security service that agrees to patrol a housing development; or a psychiatrist who learns of a patient's intent to harm a specific victim. In these cases the defendant may resist liability by arguing that he wasn't responsible for bringing about the condition that injured the plaintiff, and he owed no duty affirmatively to protect the plaintiff.
General Rule. The general rule is that one does NOT have a duty to act affirmatively to help another member of society, unless either of two conditions applies: (1) the defendant induced justifiable reliance by the plaintiff; or (2) a special relationship exists that requires the defendant to act for the plaintiff's benefit.
Exception for Justifiable Reliance. A defendant is held to a duty to use reasonable care toward the plaintiff where the defendant has led the plaintiff to believe that the plaintiff can rely on the defendant to use reasonable care for the plaintiff's safety. Examples given above include the physician who provides medical care, or an ambulance service that agrees to provide emergency services to the plaintiff. The issue in such cases is whether the plaintiff has in fact relied upon the defendant, but more importantly, whether the defendant acted in a way that induced justifiable reliance by the plaintiff.
Exception for Special Relationship. Courts have sometimes imposed a duty on a defendant to use reasonable care toward the plaintiff where strong public policy reasons favor the imposition of such a duty. Since this is an exception to the general rule that a person doesn't owe a duty to be a "good samaritan" courts are cautious in extending such duties. It is most common where the defendant already owes some kind of duty (statutory or otherwise) to exercise reasonable care. A famous example is in the Tarasoff case where a psychiatrist who had reported his patient's dangerous behavior was accused of acting negligently in failing to warn the intended victim of the patient. It is also important to distinguish those cases where issues of sovereign immunity arise (such as the duty of the weather service to forecast with reasonable care) from questions of duty (for example, if a television news broadcast negligently forecasts the weather).
Mixed Systems
Midway between pure joint liability and pure several liability is the land of compromise, where the decision as to who will bear the insolvent defendant's shares a share is made dependent upon the circumstances of the case.
Plaintiff's Percentage of Fault
In deciding whether to impose joint and several liability some jurisdictions look (at least in part) to whether the plaintiff was at fault; fault-free plaintiffs, just as in the days before the adoption of comparative fault, can recover in full against any defendant found responsible for the plaintiff's fault (as between the negligent defendant and the fault-free plaintiff, the plaintiff has a good claim to avoiding financial responsibility for the loss). On the other hand, a plaintiff who is at fault may be left with the loss resulting from an uncollectible liability against one of the defendants.
Economic v. Noneconomic Damages
An additional test used by some jurisdictions in deciding on joint and several liability is to distinguish economic (out-of-pocket) damages from non-economic (pain and suffering) damages. The plaintiff may be able to recover economic damages in full, whereas non-economic damages will be recoverable only to the extent that the culpable defendants can actually pay their percentage shares.
Reallocation
A final solution to the dilemma of joint and several liability is to reallocate the share of the insolvent defendant among the plaintiff and the solvent defendants, in proportion to fault. Thus, if the defendant is found to be three times more at fault than the plaintiff, then the share of the insolvent defendant should be reallocated so that the ratio between solvent defendant and plaintiff remains three to one. Thus, where the plaintiff is ten percent at fault, the solvent defendant is 30 percent at fault, and the insolvent defendant is 60 percent at fault, the shares can be reallocated so that the plaintiff winds up bearing 25 percent of the loss and the solvent defendant pays 75 percent.
Modified Comparative Fault
Most states adopted comparative fault by legislative enactment. As a compromise with those who wanted to retain contributory negligence as a complete bar to recovery, proponents of comparative fault drafted legislation that would permit recovery except in situation where the plaintiff was more at fault than the defendant. So long as the plaintiff's negligence is less than that of the defendant, the modified comparative negligence system operates in exactly the same way as the pure comparative negligence system. On the other hand, where the plaintiff's negligence is more than that of the defendant's, the system operates just like the common-law rule barring recovery. Another issue to be resolved is whether or not the comparison is made between the plaintiff's negligence and that of the defendants as a group, or whether the comparison is made with each individual defendant. In other words, if a plaintiff is found to be forty percent at fault and two defendants are each found to be thirty percent at fault, is the plaintiff less negligent than the defendants? Most jurisdictions would say "yes."
More-Probable-Than-Not
The standard used for "but-for" causation is whether or not the accident more probably than not would have been prevented through the exercise of reasonable care. This standard does not require certainty that the accident would have been avoided in the absence of negligence, but rather a standard similar to the burden of proof used elsewhere in tort law: a preponderance of the evidence. A plaintiff must produce evidence (rather than mere conjecture) that the accident would not have occurred but for the defendant's negligence; however, all analyses of but-for causation inevitably involve comparing a hypothetical world in which the defendant did not act negligently with the real world in which the plaintiff was injured. Unless the jury finds by a preponderance of the evidence that in that hypothetical world the plaintiff would not have been injured, the court ordinarily will deny recovery. However, note the exceptions to this rule below.
Multiple Tortfeasors
Some tort cases involve a single defendant whose negligence or other breach of duty caused injury to the plaintiff. It is increasingly common, however, that the plaintiff seeks to recover from two or more defendants for the same injury. Even if the plaintiff sues only one defendant, that defendant will frequently attempt to bring another defendant into the lawsuit to reduce liability. This chapter addresses the problems of how to allocate liability when two or more defendants are found responsible for the same injury.
Negligence per se (Statutory Violation)
A very effective way for the plaintiff to establish negligence is by showing that the defendant was violating a statute when the accident occurred--for example, by speeding or driving at night without proper lights. Some courts have held that an unexcused statutory violation is more than just evidence of negligence; it is negligence per se or negligence as a matter of law. What this means is that it is no longer for the jury to decide whether the defendant used reasonable care--the judge will declare the defendant negligent as a matter of law. This requires proof that (1) a statute was in fact violated (dispute over how fast the defendant was going, for example, will be left for the jury to decide); (2) the statute was designed to protect against this kind of injury (rather than, for example, collecting taxes or avoiding a different kind of harm); and (3) the violation was unexcused. Note that even if the defendant is negligent as a matter of law, it doesn't necessarily show that such negligence caused the injury.
Negligence (Defining Reasonable Care)
Negligence is defined as the failure to use ordinary care. Ordinary care is what a reasonably prudent person would do in the same or similar circumstances. Ordinary care is also referred to as reasonable care. Because the standard of reasonable care is so general, it is usually necessary to examine the facts and circumstances of the particular case to determine whether reasonable care was used.
Non-Premises Liability Cases
Even when an injury occurs to someone who is a visitor on someone else's property, that does not necessarily mean that the tort liability must be analyzed according to premises liability principles. The question is whether or not the case is an ordinarily negligence case (in which a duty of reasonable care will be held) or a premises liability case (in which the duty will depend upon the plaintiff's status). The most obvious example is where the plaintiff sues someone who is not an owner of the premises, but who has left a dangerous condition (such as a utility company that negligently allows a transmission line to electrocute the plaintiff while the plaintiff was traveling across a third party's property.
Injuries Arising from Breach of Duty Other than Obligation to Maintain Safe Premises. Even if the plaintiff is suing the owner whose property the plaintiff was visiting when the accident occurred, it doesn't necessarily mean it is a premises liability case. Where the defendant owes a duty to the plaintiff independent of the ownership of the premises (such as a duty not to swing a golf club negligently while demonstrating to the plaintiff how to play golf), the plaintiff's status on the property becomes irrelevant. Of course, the plaintiff would always prefer to sue on a basis other than premises liability, since he would prefer to qualify for reasonable care rather than prove it by means of status as an invitee. However, the analysis of the case depends upon the basis of the duty that the plaintiff claims the defendant owes him.
Nuisance
A defendant is subject to strict liability for injuries caused to an owner of real property where that owner has suffered an unreasonable interference with his property rights. The main difference between this standard and the negligence standard is that some interference may be unreasonable (for example, the drifting of noxious odors or cement dust), even though the defendant is using reasonable care in operating the facility. Most nuisance cases today are governed in the first instance by zoning ordinances that specify the uses of property that are appropriate to a given area.
If a plaintiff establishes that the defendant's activities constitute a nuisance, the plaintiff is usually entitled to have the court order injunctive relief as well as damages. The court's power to enjoin a nuisance is subject to general equitable rules, and where the situation warrants a creative remedy, the court may split the damage and injunctive relief, such as was done in Boomer v. Atlantic Cement.
Coming to the nuisance. In determining whether the defendant's activity is a nuisance, courts have looked in part to the expectations of the parties when they purchased their property. Long-standing use of the property for some purpose that would otherwise be noxious (e.g., conducting a cattle feedlot or operating an airport that produces loud noise and vibration) may make it difficult for a plaintiff who moves into the environment to establish that the defendant's activity is a nuisance. However, even if the plaintiff is guilty of "coming to the nuisance," that is only one factor to consider in determining the parties' reasonable expectations and in balancing the equities.
Other Exclusions
[Change this in the web version to “Form of Sovereign Immunity Waiver”]
Statutes typically come in two basic forms: one is a broad waiver of immunity, subject to certain exceptions (the FTCA is an example); the other form is a retention of sovereign immunity with permission to bring tort claims that fall within enumerated categories: e.g., motor vehicle accidents, injuries resulting from negligent maintenance of a building, medical malpractice in a state-run health facility, etc. The point is that each statute must be examined to determine both the basic form of the waiver as well as unique inclusions or exclusions of liability.
Outrage
As a catch-all category to compensate for the intentional infliction of emotional distress, the tort of outrage was created at the time the Second Restatement of Torts was drafted. While emotional distress is commonly inflicted, even intentionally, in the course of daily life, this tort is available only for serious injuries that do not fall within previously established categories of tortious behavior.
1. Intentional or Reckless Conduct. A defendant is not liable for causing emotional distress unless the defendant either intended to cause the emotional distress or his conduct was reckless with respect to the risk that emotional distress might result.
2. Outrageous Conduct. A defendant is not liable for conduct that is merely rude or offensive. Only extreme and outrageous behavior that is utterly intolerable in a civilized community satisfies this element.
3. Severe Emotional Distress. It is not enough that a plaintiff suffered emotional injury as a result of the defendant's conduct; the plaintiff must establish severe emotional distress.
Pain and Suffering
In addition to the out-of-pocket costs suffered by the plaintiff, there are usually emotional damages, including physical pain, emotional trauma caused by the loss of the ability to engage in activities formerly enjoyed, etc. Unless the compensation for the plaintiff's injury includes these amounts, there will not be adequate compensation. Juries have a difficult time assessing pain and suffering, in part because the injuries are less amenable to verification, and also because it is hard to put a dollar value on feelings.
Emotional Damages without accompanying physical harm. Traditional tort law did not allow a recovery for "just" emotional harm. For example, in Spade v. Lynn the plaintiff was badly frightened on a train because of the defendant's negligence, but she was unable to recover anything. Courts have justified such a rule because of its administrative convenience and because of a fear of litigation over trivial injuries. On the other hand, some cases have allowed recovery where the damage is severe and otherwise deserving of recovery. For example, in Johnson v. State of New York, the defendant hospital negligently informed the plaintiff that her mother had died, when instead it was a different Mrs. Johnson. Despite the lack of any physical injury, the court held that there was a "guarantee of genuineness" that would allow recovery for the emotional as well as out-of-pocket expenses.
Parental Immunity
At one time parents were immune from tort liability. The reasons included a concern that family harmony would be disrupted, and there was a risk of collusion. Over time, most jurisdictions permitted some suits for negligent acts by a parent toward a child. It is important to distinguish the type of suit in order to assess the state of parental immunity. The basic difference is between suits brought by a child claiming negligent behavior toward the child herself; on the other hand are cases brought by third parties who allege negligent supervision of the child resulting in injury to a third person.
Parent’s Liability To a Child
Where a child sues its parent alleging that the parent's negligence resulted in injury to the child, most courts have distinguished between cases which claim that the parent breached a duty to exercise the parental function with reasonable care, contrasted with cases in which the child alleges a breach of duty that is owed independent of the family relation. For example, if a parent allows a child to play in the street, and the child is run over by a car, the child may claim that a reasonably prudent parent would have exercised more control. This claim is owed to the child because of the parental relationship. On the other hand, if the child is a passenger in the parent's car and the parent drives negligently, causing injury to the child, the child may base the claim not on the parental relationship but upon the obligations that a driver owes to a passenger, related or not.
Parent’s Liability For a Child
Liability to Third Parties for Poor Supervision. While a parent's parenting decisions may not be questioned by the child, in extreme circumstances they may be questioned by third parties who are injured by a negligently supervised child. Where the parent knows of a dangerous propensity on the part of the child and takes no reasonable steps to prevent the child from injuring others, the parent may be liable to such third persons. This is not a form of vicarious liability (which would make the parent liable irrespective of fault), but rather focuses upon the parent's obligation to use reasonable care when confronted with a situation posing an unreasonable risk of harm to others.
No Parental Liability for Bad Parenting
In most jurisdictions a parent is immune from tort liability if based upon a claim of negligent parenting. This immunity extends not only to the parent for claims brought by the child, but also bars any claim by third parties who are accused of negligently causing injury to a child. Thus, if a driver runs over a child, the driver cannot sue the parent for contribution, any more than the child itself could sue the parent for negligence. (On the other hand, some jurisdictions permit the allocation of fault to an immune party, thus in effect providing to the codefendants a chance to reduce their liability in proportion to the amount the parents are found at fault.)
Parental Liability for Non-Parental Functions
While a parent cannot be sued because he is a parent, he is also not entitled to immunity just because he is a parent. For example, if a parent owes a duty to a child independent of the parental relationship, such as to use reasonable care when driving an automobile, then a child who is injured by such negligence in most jurisdictions may sue the parents. There are several reasons for treating this differently from suits based on bad parenting: first, the jury is not called upon to determine what constitutes good parenting or bad parenting. Like the discretionary function, the parental function deserves some freedom from judicial second-guessing. On the other hand, to find a parent negligent as a driver does not invoke this problem. Second, to the extent the parent is carrying on a function not unique to parenting (such as driving), there may be insurance coverage which will make the imposition of liability less onerous.
Percentage Method
The modern trend is to allow the plaintiff to recover his damages from the non-settling defendant, but only after the percentage share of the settling defendant has been subtracted. Thus, regardless of how much the plaintiff has received as a dollar amount from the settling tortfeasor, his claim will be reduced to reflect the "value" of the settling defendant's share. Just as the dollar method benefits the plaintiff by assuring a full recovery, the percentage method favors the non-settling defendant, who can take advantage of the fact that the settling defendant, who no longer has a stake in the outcome, can be blamed for the lion's share of responsibility for the injury.
Permissible Jury Arguments
Plaintiffs understandably want to get the jury to award as high an amount as possible. To influence the jury the plaintiff's bar developed persuasive arguments. One suggested that the jury imagine a single day in the plaintiff's condition and award the amount that would fairly compensate for that one unit; to calculate the whole award the number of days would then be multiplied by the amount of time the plaintiff was projected to suffer the disability. This "per diem" argument has been held by some courts to be misleading and therefore impermissible. Similarly, lawyers who want the jury use the award to "send a message" to others in the defendant's industry have been forced to focus on compensatory rather than punitive measurements.
Pleadings
After the plaintiff's complaint has been filed, the defendant often tries to defeat the claim by filing a motion that asks the judge to dismiss the case outright. If the defendant doesn't think that the plaintiff has stated enough facts in the complaint—even assuming the facts were true—to justify the relief requested, then he may file a motion to dismiss for failure to state a claim. In older cases this motion was called a demurrer. The judge would look at the facts alleged in the complaint and determine whether (if proven) they would justify compensation by the defendant. Appellate cases dealing with motions to dismiss or demurrers are commonly found in first-year casebooks, since in such cases the court will frequently attempt to articulate the dividing line between a case that adequately states a claim for negligence (or some other theory) and one that does not.
Another way to get a court's ruling on the law to be applied to the case is through a motion for judgment on the pleadings. This motion is similar to the demurrer, except that it can be made by plaintiff as well as the defendant. Finally, either party may ask for summary judgment. Modern rules of procedure allow either party to test whether their opponent has enough evidence to support the claims made in the pleadings.
Post-Accident Repairs
Evidence of post-accident repairs or subsequent remedial measures are usually inadmissible. The concern in the case of post-accident repairs is that a rule allowing their use as evidence of pre-accident negligence would discourage defendants from adopting measures that might be very important for public safety. While one might construct an argument that a similar disincentive would attach to defendants who are composing company rulebooks, courts have allowed the pre-accident repair measures (where disobeyed), but not the post-accident repair measures.
Pre-emptive Settlement
Most jurisdictions permit a defendant who wants to settle the plaintiff's entire claim (as opposed to seeking a release only for his percentage share) to "buy up" the liability of the remaining defendants and then recover the "fair share" of the defendants whose liability has been eliminated. To retain the right of contribution after settling with the plaintiff, a defendant must: (1) extinguish the plaintiff's claim against the co-defendants; and (2) settle the claim for a reasonable amount.
Premises Liability
When the plaintiff sustains injury as a result of visiting the defendant's premises, the plaintiff's right to recover is affected by the nature of the relationship between the owner of the premises and visitor. Higher duties are owed to those invited to the premises for business purposes than those who are not. One of the difficulties is to distinguish claims v. a property owner that are governed by premises liability from those that are based on some other kind of duty that is owed. For an explanation of the different duties owed under premises liability, see also status classifications
“Primary" Assumption of Risk
Primary assumption of risk applies when the plaintiff has consciously chosen to relieve the defendant of a duty he would otherwise have to use reasonable care. For example, the patrons at a baseball game may choose to sit in unscreened seats and relieve the defendant of an obligation he might otherwise have to protect them from the risk of flying baseballs. Similarly, a Jehovah's Witness may choose to undergo surgery without the benefit of blood transfusions. Although the doctor performing the surgery might otherwise have a duty to save her life by performing a blood transfusion, he will not be negligent if, following her instructions, he allows her to bleed to death. The net result of a finding of primary assumption of risk is that the plaintiff relieved the defendant of a duty to use reasonable care and thus the defendant was not negligent. It is important to note that many tort cases involve a combination of the inherent risk of a sport (such as steep ski slopes) which the plaintiff has accepted, combined with a negligent act on the part of the defendant (for example, failing to light a portion of the ski slope during night skiing). The net result is that assumption of risk prevents a claim based on the aspect of the activity which was consciously chosen by the plaintiff (the steepness of the ski slopes) but should not bar a claim for negligent conduct that was not chosen by the plaintiff.
Private Figures
Private figures include those who are neither public officials or public figures. One may even be a public figure for some purposes (e.g., a policeman who is involved in a controversial shooting) and yet be a private figure with respect to some aspect of the plaintiff's life that does not invite public scrutiny.
Negligence Standard. Those who are not public officials or public figures need only prove that the defendant acted negligently in publishing the defamatory material. Reasonable care is presumably a question for the jury based upon expert testimony describing customs of the industry, etc.
Privity
Early in product liability law, courts held that a manufacturer owed no duty to anyone who was not in privity with the manufacturer. Thus, if the manufacturer negligently made a toaster and then sold it to a dealer, who in turn sold it to the plaintiff, the plaintiff could not sue the manufacturer for a defect in the product. This requirements has since been eliminated from product liability law, but it affected the evolution of product liability law in its early years.
Product Liability Reform
Product liability has been heavily affected by the tort reform movement. Many states have adopted new standards that are designed to produce a more "balanced" approach to product liability. In analyzing a product liability case it is important to investigate whether common-law standards have been altered.
Statutes of Repose. Some product liability reform bills contain a doctrine unique to product liability: in order to protect manufacturers from an unlimited "tail" of liability, the manufacturer is liable only for the "useful safe life" of the product.
Negligence Standard. One focus of product liability reform is to move away from strict liability for design defects toward an explicit adoption of the negligence standard. This same concept can also be found in such cases as Brown v. Superior Court, in which the California Supreme Court adopted a negligence standard for prescription drugs. The Restatement (3d), over the protest of the plaintiffs bar, adopted a negligence standard for design defects.
Retailer Relief. Under § 402A of the Restatement liability was imposed upon any "seller" of a defective product. This meant that a retailer such as K-Mart would be subject to liability even if they had no role in creating the defect. In response, some legislation removes the retailer as a proper defendant except in cases where the retailer has some independent role in causing the injury, or where the plaintiff would not be able to recover from the manufacturer (because of bankruptcy, lack of jurisdiction, etc.).
Product Liability
When a plaintiff is injured as a result of using a product manufactured by the defendant, the plaintiff's right to recover damages is affected by the contractual understanding that surrounded the sale of the product. Most product liability law gives the plaintiff the benefit of a higher standard of care, based on the assumption that the plaintiff in purchasing the produce received an assurance from the manufacturer that the product would be defect-free. However, the extent to which product liability differs from the familiar standard of reasonable care continues to be a source of controversy.
Professional Negligence
In theory, medical malpractice cases would be no different from any other negligence case, since the standard that is imposed is one of reasonable care. The only reason for isolating it is the difficulty that a jury would have in evaluating what a reasonably prudent person would do in the highly specialized world of medical practice. To insure that physicians are fairly treated, courts have required the plaintiff to provide qualified, expert testimony that the physician did not act with reasonable care. There must also be expert testimony that the failure to exercise reasonable care caused the plaintiff's injury.
Establishing the Standard of Care. Plaintiffs and defendants frequently clash over the proper standard of care to which the defendant's care should be compared. In general, physicians are to be held to the standard of a reasonably prudent physician in the same or similar circumstances. This requires a determination of whether the physician was acting as a specialist (in which case her care should be compared to that of a specialist in that branch of medicine) or a general practitioner, in which case a lower level of competence will be imposed.
Property Damage
When a plaintiff's property is damaged or destroyed as a result of defendant's negligence, the plaintiff can recover the amount of the property loss, measured in one of two ways, whichever is the smaller: (1) the cost to repair the property to its pre-accident condition; or (2) the difference in the fair market value before and after the accident. For example, if the plaintiff's Mercedes was struck from behind by a defendant who was following too closely, the plaintiff can recover the cost to restore the car to its pre-accident condition. On the other hand, if the plaintiff's Pinto is broadsided, it will probably be "totaled"--meaning it is not economically feasible to repair the car; instead, the defendant will pay what the car was worth before the accident and let the plaintiff replace it. In theory (if not always in practice), this puts the plaintiff in as good a position as he would have been but for the accident.
Proximate Cause
In order to recover, the plaintiff must establish that the defendant's negligence (or other breach of duty) was a proximate cause of the plaintiff's injury. This means that both but-for cause AND legal cause can be established.
Public Figures
The highest constitutional protection is given to statements made about a person who is either a public official or a public figure. A public official is anyone who holds public office or even public employment where the statements are relevant to their performance of official duties. Thus, an employee of the county assessor's office is a public official for purposes of statements that such employees took part in a bribery ring. Public figures are those who either thrust themselves into the public arena (for example, entertainers or sports figures) or become a fitting subject for public debate (e.g. the child of a presidential candidate).
Punitive Damages
In an ordinary negligence case, the plaintiff is entitled to be compensated for the injury, that is, put back in as good a position as he or she was before the accident, to the extent that is possible. In some cases, however, the plaintiff is entitled to do more than seek compensation; the plaintiff may use the opportunity of the lawsuit to punish the defendant for antisocial conduct. An award of punitive damages may only be made where the conduct of the defendant is either malicious (reflecting an intent to cause harm) or so lacking in regard for the plaintiff's safety to require a punitive award.
Pure Several Liability
The most defendant-friendly solution to the problem of joint and several liability is to leave the plaintiff responsible for the liability of any defendant whose percentage share cannot be collected. This is done by limiting the defendant's liability to that defendant’s percentage share. Thus, if a drunk driver and a negligent highway crew combine to produce the plaintiff's injury, and the drunk driver has no insurance, the highway crew (if found, say, 15% at fault) will only be required to pay 15% of the damages. Under pure several liability (such as found, with minor exceptions, in the Idaho statute), even if the plaintiff is free from fault, the loss resulting from an insolvent defendant must be borne by the plaintiff rather than shifted to the (partially) negligent co-defendant(s).
Pure Comparative Fault
Where political compromise was not necessary, a pure comparative negligence system has been recommended or adopted. Under a pure comparative negligence system, the plaintiff can recover no matter how much at fault he is. However, the recovery is reduced by the percentage of fault, so that a plaintiff who was eighty percent at fault will forfeit eighty percent of his damages. Critics of pure comparative fault would want a plaintiff who is overwhelmingly at fault to be barred from recovery. On the other hand, defenders of pure comparative fault point out that such a plaintiff will only recover a small fraction of the damages suffered.
Pure Joint Liability
One solution to the problem is to throw all of the liability on the codefendants. Under such a system, regardless of whether the plaintiff is at fault, each defendant is responsible for paying the plaintiff's damages (minus whatever deduction must be made for the plaintiff's own contributory fault). On the other hand, it means that defendants who are only a small percentage at fault must pay for the liability of codefendants who are largely responsible for the accident but have no resources to satisfy a judgment.
Reasonable Person
The standard of reasonable care is based upon determining what a reasonable person would do in the same or similar circumstances. Because it is based upon the peculiar factual circumstances of each case the jury must exercise its own judgment about what was appropriate. Some characteristics of the defendant may be considered part of the "circumstances"; for example, if a child is accused of negligence, the question for the jury may be, "What would a reasonable [child] do in those circumstances?" On the other hand, where children engage in adult activities, such as operating motorized vehicles, they may be held to an adult standard.
Res Ipsa Loquitur
The plaintiff has the burden to show that the defendant was negligent. This must be based upon evidence—testimony from a witness who saw the defendant speeding; skid marks; the defendant's own description of what he did, etc. Sometimes, however, the evidence of negligence is destroyed in the accident—for example, where a skywalk collapses, or a powder factory blows up, or a gasoline truck crashes and burns. In such cases it is logical to infer negligence, but there is no proof that would tell one way or another. In such cases the plaintiff may ask the judge to infer negligence based upon the maxim res ipsa loquitur—“the thing speaks for itself.” To qualify for a res ipsa instruction, the plaintiff must show (1) that the accident was the type of accident that ordinarily doesn't occur except where there has been negligence; (2) the defendant had exclusive control of the instrumentality or process that caused the injury; and (3) other potential causes, such as negligence on the part of the plaintiff or third parties, have been sufficiently eliminated.
Rescuers
Some of the most difficult questions in tort law arise from situations where we aren't even sure whether to impose a duty of reasonable care upon the defendant. For example, if the defendant is a parole board that releases a person who later murders the plaintiff's husband, should the parole board be expected to use reasonable care toward the plaintiff? How do we know when one person owes a duty to use reasonable care toward another?
Secondary (Unreasonable) Assumption of Risk
In addition to the division between primary and secondary assumption of risk, courts have distinguished between unreasonable and reasonable secondary assumption of risk.
Unreasonable. If a plaintiff proceeds to encounter a risk negligently created by the defendant, a court may also denominate a plaintiff's behavior "assumption of risk". However, it differs from primary assumption of risk in that the plaintiff did not consciously choose to relieve the defendant of an obligation he would otherwise owe to use reasonable care. The issue is whether or not the plaintiff's conduct in proceeding despite the existence of the risk was reasonable. If it was not, the plaintiff's conduct is negligent, and should be treated the same way as other forms of contributory negligence, namely by reducing damages on a percentage basis.
Secondary (Reasonable) Assumption of Risk
Secondary Assumption of Risk--Reasonable. A final category of assumption of risk concerns cases where the defendant acted negligently, but the plaintiff consciously chose to engage in a risky behavior. This differs from secondary unreasonable assumption of risk in that the plaintiff's behavior in carrying on the risky activity is not negligent. Jurisdictions differ on how to treat secondary reasonable assumption of risk. Some accept the argument that since the behavior is reasonable it should not be classified as fault, and should not therefore reduce the recovery in any way. Other courts take the position that the conscious decision to engage in risky behavior is an agreement by the plaintiff to accept the risk of injury, and therefore operates as a bar to recovery. A third group of jurisdictions treat secondary reasonable assumption of risk as a damage reducing form of fault. It can be considered parallel to primary assumption of risk, where primary assumption of risk combines with negligence on the part of the defendant to produce an injury. In other words, where the plaintiff has consciously chosen risky behavior--whether the risk was created by design or by accident--the plaintiff can fairly be expected to bear that portion of the risk.
??? (Secondary Reasonable Assumption of Risk)
A final category of assumption of risk concerns cases where the defendant acted negligently, but the plaintiff consciously chose to engage in a risky behavior. This differs from secondary unreasonable assumption of risk in that the plaintiff's behavior in carrying on the risky activity is not negligent. Jurisdictions differ on how to treat secondary, reasonable assumption of risk. Some accept the argument that since the behavior is reasonable it should not be classified as fault, and should not therefore reduce the recovery in any way. Other courts take the position that the conscious decision to engage in risky behavior is more culpable than mere negligence, and therefore this form of assumption of risk should bar any recovery at all. A third group of jurisdictions treat secondary reasonable assumption of risk as a damage reducing form of fault. It can be considered parallel to primary assumption of risk, where primary assumption of risk combines with negligence on the part of the defendant to produce an injury. In other words, where the plaintiff has consciously chosen risky behavior whether the risk was created by design or by accident the plaintiff can fairly be expected to bear that portion of the risk.
Self-Defense
An actor is privileged to use force to defend himself so long as the force used is reasonable. What is reasonable depends upon the circumstances of each case. The actor must not only use reasonable care in assessing the need for the use of force, but must also exercise reasonable care in the use of such force.
Settlement Credit
A second problem in dealing with multiple tortfeasors is how to handle the allocation of liability when one of the parties is released from liability through settlement. As with the problem with the insolvent defendant, the problem of claim reduction involves balancing the needs of the plaintiff (who wants a full recovery) and the non-settling defendant (who wants to limit his liability to his percentage share). As in the problem of joint and several liability, different jurisdictions have tried different approaches in an attempt to deal fairly with each of the parties. Since most cases are resolved through settlement, it is particularly important to understand the effect of releasing one party in a multi-party case.
Several liability
If a plaintiff recovers a judgment against more than one defendant, the plaintiff would prefer to be able to recover all of his damages from each defendant, thus avoiding a problem if any defendant lacks the financial resources to pay his share. However, the defendants would obviously prefer to have their liability limited to the share for which they are held responsible; for example, in a situation where two defendants are found equally negligent in causing the injury to the plaintiff, each would be held 50% responsible. If the plaintiff can only recover each defendant's individual share, this is referred to as several liability.
Slander
The common law rule was that slander by itself did not justify a recovery unless the slander was the cause of special damages (e.g., lost wages or profits). To recover without proof of special damages, the plaintiff had to show that the case met the standard of slander per se, which included accusations that (1) the plaintiff committed a crime; (2) had a loathsome disease; or (3) committed an act incompatible with the plaintiff's business or profession. (A fourth category—unchastity (in a woman)—is no longer operative.) Since most cases today involve libel, which required no proof of special damages, this rule is rarely invoked.
Sovereign (Governmental) Immunity
The original rule at common law was that the sovereign was completely immune from liability. Over time that immunity was eroded, both because of the availability of insurance and because of a distinction between proprietary and governmental functions. Today most jurisdictions have adopted specific statutes that waive sovereign immunity in whole or in part. See also Statutory Waiver.
Special damages
Special Damages refer to those damages that result in an out-of-pocket loss to the plaintiff. For example, wage loss and medical expenses are considered "special damages," as opposed to general damages, mostly pain and suffering damages. (There is some confusion on this point, since sometimes the term "general damages" is used to include future medical expense, as distinguished from what has been paid out in the past). In the language of insurance claims adjusters, "specials"--shorthand for "special damages"--refers to what the plaintiff has already paid in medical expenses and wage loss, and is used as a rough rule of thumb to evaluate the amount of pain and suffering damages that can be expected.
Status Classifications
Most jurisdictions recognize a system for analyzing tort cases that depends upon the relationship between the visitor and the owner of the premises. The theory is that the owner can justifiably condition the plaintiff's entry onto the land upon an acceptance of the premises as the owner has prepared them. Although this system of classifications has been criticized as an archaic holdover from medieval obsession with hierarchy, most jurisdictions have retained the status classifications as a useful means of taking into account the differences in the reasonable expectations of the parties. The following table, reproduced with detail on the following pages, shows each status classification, the characteristics which apply to that status, and the duty that is owed once it is determined which status fits the plaintiff.
|
Status |
How determined |
Duty Owed |
|
Business or public invitee |
Owner has business purpose OR entity (charitable or govt) holds open to public |
Reasonable care |
|
Licensee |
Social guest OR Bare permission |
Warn of hidden perils known to Owner |
|
Trespasser (Adult) |
No permission |
Don’t Shoot! |
An invitee is one who was invited onto the premises by the owner for a purpose connected with the owner's business; or in the case of a non-profit institution like a school or a library, the entity holds out the premises to the public on much the same terms as would be expected when visiting a commercial establishment. An owner owes the invitee a duty to use reasonable care in maintaining the premises.
A licensee (typically a social guest) is one who has permission to be on the premises but isn't there pursuant to a business purpose. The owner owes a licensee the obligation to warn of hidden dangers that the owner either knows about or has reason to know about. Unlike the case of an invitee, however, the owner does not have to repair the danger, nor is he under a duty to inspect the premises to discover dangers.
A trespasser has no permission, either express or implied. The owner need not do anything to make the premises safe to the trespasser, nor warn of dangers, even hidden ones known to the owner. However, the owner can't take affirmative action to inflict injury on the trespasser (like setting a spring‑gun). For child trespassers, see Child Trespassers
Statute of Limitations
Many jurisdictions have adopted a statute of limitations that incorporates the "discovery rule," allowing the plaintiff to bring suit against the manufacturer long after the use of the product (or the injury) occurred, so long as a reasonable person would not have discovered the harm and its cause until later. For example, asbestos workers who suffered lung damage twenty, thirty, even forty years ago may still be able to sue if they file a claim within three years of the time that the disease manifests itself and the plaintiff recognizes the role of the product in causing the injury.
Statutory Waiver
The text of the statutory waiver should be carefully scrutinized to determine which kinds of tortious behavior are subject to suit. A leading influence in this area has been the Federal Tort Claims Act, passed in 1946. However, each jurisdiction is sovereign, so that the fact that the federal government has waived immunity in a certain area doesn't mean that a state (or Native American tribe) has permitted suits on the same basis.
Negligence Only?
One key element in the statute is whether liability is based upon proof of fault, or covers any kind of tortious behavior, even strict liability. The federal statute has been interpreted to limit liability to cases where fault can be established, despite language that makes the standard equivalent to what is used against private persons. Again, the language of the particular statute should be scrutinized.
Statutory Privilege
In some instances there are specific statutory privileges to use force. Where the statute is complied with, there is a complete defense to intentional tort claims.
1. Shopkeepers and Law Enforcement Officers. One common privilege is given to a shopkeeper, who is entitled to detain for a reasonable length of time and upon reasonable suspicion persons who appear to have taken goods belonging to the shopkeeper. A perfectly innocent person may suffer battery, assault, and false imprisonment and yet have no claim if a jury finds that there were reasonable grounds to suspect theft and that the detention was carried out in a reasonable way for a reasonable period of time.
2. Requirement of Reasonable Grounds. The availability of a privilege is contingent upon a jury finding that the defendant had reasonable grounds to use force against or detain the plaintiff. In this way, despite their appearance, the intentional torts have come to resemble ordinary negligence cases.
Strict Liability
While most cases require proof of negligence on the part of the defendant, some injuries lead to strict liability. In order to qualify for strict liability, the plaintiff must show that the case falls within one of the designated classes of cases where strict liability has been permitted.
Strict Liability for Products
In 1965 the ALI adopted § 402A of the Restatement of Torts, which created strict liability in tort for defective products. The two significant features of § 402A were that (1) liability was imposed even where the defendant had used reasonable care; and (2) privity requirements were eliminated. Most jurisdictions quickly adopted § 402A as the standard for product liability cases.
Substantial Factor (Multiple Redundant Causes)
Occasionally the but-for test would work an injustice where more than one defendant has injured the plaintiff, and the injuries accumulate in such a way that collectively they cause serious injury, but no one injury by itself made a significant different. For example, in the asbestos cases an asbestos worker typically inhaled asbestos from as many as twenty different suppliers. It cannot be said more probably than not that but for the conduct of any one of the them the injury would be avoided. However, if the but-for test were applied individually, all the defendants would escape liability. Therefore, the courts carve out a different rule: the substantial factor test.
In the kinds of cases where the defendants' collective behavior results in the plaintiff's injury, but no one can be said to be a but-for cause of the injury, the courts will ask in place of the but-for test whether the defendant's conduct was a "substantial factor" in causing the injury.
Substantial Factor--California Test
California has rejected the traditional proximate cause test in favor of a test requiring only that the plaintiff show that the defendant's negligence was a substantial factor in causing the plaintiff's injury. The California Supreme Court was persuaded by the critics of the traditional test, who thought it was too confusing for average jurors. Thus, in California a plaintiff doesn't have to show but-for causation, nor legal causation.
However, most jurisdictions use the "substantial factor" test only as an alternative to the but-for causation test, and they employ it only when circumstances make the traditional but-for test unworkable, such as in cases involving multiple redundant causes (like asbestos exposure).
Superseding Cause
In order to be a legal cause of the plaintiff's injury, the defendant's negligence must be connected to the injury by a "direct and unbroken sequence." While the direct sequence may include intervening causes, the causal chain is broken if the intervening force is so different from the defendant's original act of negligence so as to characterized as a superseding cause. Courts have difficulty providing reliable criteria by which to distinguish "merely" intervening causes (which will not destroy the causal chain) from superseding causes (which do break the causal chain). Like other questions of legal cause, this goes to the issue of whether it is fair to hold a defendant liable for consequences that may have been largely due to the intentional, even criminal, acts of a third party.
Unknown Identity
Sometimes a plaintiff is injured by a negligent party, but the evidence does not permit a determination of which of several parties caused the injury. Courts have used four different doctrines to deal with cases of known negligence but unknown identity of the responsible defendant.
Useful Evidence of Negligence
Even if we have carefully defined what constitutes reasonable care (or the lack thereof), we must decide what kinds of evidence will be relevant to the determination of reasonable care, and what effect that evidence will have.
Jury instructions
Jurors are responsible for deciding the factual issues in a tort case. To do so, they must apply the law that is given to them by the judge in the form of a jury instruction.
Vicarious Liability
While there are many different ways of establishing that a person was negligent, the doctrine of vicarious liability is a means of attributing such negligence to a pocket deeper than that of the person who committed the act of negligence. For example, where a truck driver goes through a red light, and the plaintiff can establish negligence, the plaintiff would like to recover not just what the driver can pay from his own assets; the plaintiff would like to tap the assets of the company for which he works. Under the doctrine of vicarious liability (also known as respondeat superior--let the master answer), an employer is liable for the acts of an employee committed while during the course and scope of employment. Note that the acts of an employee outside the course and scope of employment, or of an independent contractor (one who is paid to provide services, but is not paid on an hourly basis and over whose work the contracting party has no control), do not lead to vicarious liability.
Wage Loss
If the plaintiff's injury causes the plaintiff's earning capacity to suffer, the plaintiff can recover the value of the lost income. Sometimes this is a temporary phenomenon, and the amount of wages that are lost can be easily calculated. However, where the injury is permanent and the jury must assess the difference between the plaintiff's earning capacity before the accident and that same capacity after the accident, a good deal of imagination (if not speculation) is required. The jury must in effect make an educated guess as to what the plaintiff would have done but for the accident, and compare it to what the plaintiff will likely do in his or her present condition. Additionally, to the extent that an award is made for future lost income, the award must be "discounted" to present value, reflecting the fact that the plaintiff will be able to invest the award to earn interest. Economists are often employed as expert witnesses to help calculate the value of lost income.
Warning Defects
Another form of defect is if the product is sold without adequate warnings to allow safe use of the product. For example, if a bottle of baby oil is sold without a warning of the danger of aspirating (inhaling) the oil, a jury may find that the product is unreasonably dangerous. The advantage for the plaintiff of a warning theory is that it costs virtually nothing for the manufacturer to add warnings, and even if the risk of injury is remote, the plaintiff can argue that it is worth it to include warnings that could prevent injury. The plaintiff must still show that the lack of a warning was a but-for cause of the injury: if the warning had been in place, the plaintiff would not have been injured.
Mixing Strict Liability and Negligence. In both design defect and warning cases, the courts (and even product liability reform legislation) are confused over whether to impose strict liability or use a negligence standard. In many cases there is no recognizable difference; the only time it really matters is when there is new information about the risk presented by a product: if a reasonable person would not have been able to predict a particular hazard (e.g. the risk of toxic shock from a superabsorbent tampon), then the defendant will win under a negligence standard, but lose if we apply strict liability based upon what we know today about the product.
Warranty
One of the few advantages to plaintiffs that accrued from the application of contract law was that liability could be imposed without proof of fault. After all, in most contract cases it is irrelevant how the breach came about; the party who fails to perform as promised must make good the difference to the contracting party. Many product liability cases were brought claiming a breach of an express or implied warranty that the product was free of defects. Thus, when strict liability came to be used later as a tort theory, it was not a radical departure.
Wrongful Death
In cases where the defendant's negligence results in a person's death, the tort system must create a suitable remedy to measure the damage. The earliest historical approach to wrongful death was essentially to ignore it, since the state's punishment of wrongful death (execution and forfeiture of goods) left nothing to be used for compensation. However, after courts declared their inability to create their remedy for wrongful death, legislatures responded by enacting one of two types of statutes: so-called "wrongful death" statutes focused on the injury suffered by the immediate family of the decedent, and usually measured the economic loss suffered by the spouse or children (even the parents) of the decedent as a result of his or her premature death. On the other hand, other jurisdictions enacted "survival" statutes, which provide for the SURVIVAL of the cause of action. In other words, a legal entity was created (actually, simply recognized in the form of the decedent's estate) that had a right to sue for compensation. The measurement in survival act statutes tends to be the kind of damages the decedent would have been able to collect had he lived. Again, wage loss was a prime consideration. In addition, statutes sometimes provide for recovery for emotional harms, either in the form of the loss of relationship suffered by the family members, or in the form of the ability to enjoy life that was lost by the decedent through his premature death. Since remedies for wrongful death are creatures of statute for the most part, careful attention must be paid to the specific provisions in the jurisdiction governing each case.
Wrongful Birth / Wrongful Life
Most tort cases involve a clearcut injury such as a broken arm or a facial scar. Where the defendant's negligence results in an unplanned pregnancy, however, damages are more difficult to assess. A typical case involves the failure of a sterilization or birth control measure, or the failure of a healthcare professional to provide timely advice. The claim is that if the defendant had used reasonable care, the pregnancy would not have occurred. Courts are divided on how to assess damages where the child is born otherwise healthy. Some jurisdictions have stated as a matter of policy that, while the expense of being pregnant and having the child, along with the associated pain and suffering, can be compensated, no compensation is required for the cost (both financial and emotional) of rearing a child, since as a matter of law those costs are outweighed by the benefit of the new family member. Other jurisdictions have permitted the jury on a case-by-case basis to assess the positive as well as the negative features of having a child and (using the Restatement test of imputed benefit) come up with a net damages assessment.
In the case of a child born with disabilities, however, most jurisdictions recognize the right of the parents to recover for the extraordinary costs associated with the child's disability. Finally, most jurisdictions refuse to recognize (or provide minimal recovery for) the child's claim that he would have been better off never to have been born. This claim is raised only by a child born with significant disabilities, and most courts--recognizing the metaphysical difficulty of evaluating life versus non-life--have either refused to recognize the cause of action or have granted only nominal damages.
The concept "zone of danger" refers to a couple of different concepts in tort law.
Cardozo and the Zone of Foreseeable Danger. Cardozo used the term "zone of danger" to refer to the foreseeable range of potential injury that would require a person to use reasonable care. For example, a person who is walking by himself down the street wouldn't be negligent for stepping on a cardboard box--even if the box contained explosives and injured a person 50 feet away--because the "zone of danger" wouldn't extend the duty of care to such a person.
Bystanders and the Zone of Danger. Early rules governing bystander cases (where the plaintiff claims injury because a person nearby was seriously hurt and they suffered emotional trauma) sometimes employed a rule called the "zone of danger": only those people who were at risk of being hurt themselves could recover. Thus, in Dillon v. Legg the sister of the decedent could recover because she was in the same crosswalk when the defendant's car struck her sister; on the other hand, the mother was initially denied recovery because she was in complete safety on her porch. Modern cases have tended to abandon any requirement for bystanders that they be in the "zone of danger."
Nature of the Cause of Action
In some kinds of claims (for example, medical malpractice or product liability), there may be a choice of theory to plead. Obviously, if the statute of limitations is a problem under one theory, the plaintiff will try to plead another. For example, contracts are often governed by a 6-year limitation period. Torts, on the other hand, are often governed by a 3-year limitation period.
Time of Accrual
The statute of limitations does not begin to run until the cause of action has accrued. The cause of action accrues on the earliest date when the plaintiff is legally entitled to seek compensation, that is, when all of the elements of the cause of action have come together. In some cases this is easy to determine, because the cause of action accrues on the date when the plaintiff is injured. Automobile accident cases are a typical example. However, many tort cases present much more complex questions of when the cause of action has accrued.