Temporary Web version of Tort Tree (Visual Outline)

Fall 2009

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.

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/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 unhealthy child, 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 court--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.

Bystander / Loss of Consortium

A final category of related parties who seek compensation includes those who were either present at a gruesome, and were emotionally traumatized by observing the accident, or relatives who suffer significant losses because of their dependence on the direct victim. Most jurisdictions permit recovery by a spouse for loss of "consortium"--literally, the society (and companionship) with the direct victim. In most jurisdictions a family member other than a spouse can recover only emotional damages if they were present at the accident scene. However, the law in this area is unsettled.

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 effect this calculation.

“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 non-economic damages (such as pain and suffering). Some of these statutes were held constitutional; other cases held that such limitations violated a variety of state constitutional rights, such as the open access of the courts, or the right to a jury trial.

Collateral Sources

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.

Permissible Jury Arguments

Some forms of argument are impermissible because they tend to inflame the passion of juries beyond just compensatory damage considerations. Two common examples are the "send a message" argument (suggesting that the size of the jury's award should be calculated to "send a message" to the defendant's industry to avoid such behavior in the future) or the "per diem" argument, which tells juries to calculate pain and suffering awards by setting a "per diem" cost of, for example, losing an arm, and then extending that to the number of days that the plaintiff will suffer that loss. Of course, plaintiffs' lawyers are constantly in search of arguments that will help the jury award larger sums.

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.

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.

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.

Form of Sovereign Immunity WaiverOther Exclusions

            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.

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.

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.

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.

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

            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.

Common Law 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. 

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. 

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."

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.

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. 

“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. 

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.

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. 

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.

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.

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.

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.

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. 

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.

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. 

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.

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.

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.

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 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.

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.

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.

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.).  

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.

“Gravamen” of Claims

One approach to deciding between competing theories of recovery (and whether or not the claim has been barred) is to rely upon a test of what the "gravamen" of the claim is. While some jurisdictions will simply allow those claims to go forward which are based upon theories whose limitation period has not run, many jurisdictions will bar all claims where the predominant theory is one whose limitation period has already run.

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.       

Discovery Rule

In cases where the plaintiff isn’t aware of the injury suffered, or where the plaintiff doesn’t know the role of the defendant in causing the injury, courts have applied a “discovery rule,” which delays the accrual of the cause of action until the plaintiff knows – or in the exercise of reasonable, should have known – the harm and its cause. Thus, a patient who is the victim of medical malpractice, but doesn’t become aware of it until much later in life, will be able to file a claim for medical malpractice even though the complaint is filed well beyond the 3-year statute of limitations for such claims.

Product Liability

In product liability cases, the cause of action may accrue many years after the product was sold. For example, daughters of women who took the drug DES (diethylstilbesterol) first found out that they were affected by the drug decades after the product was marketed. It is often difficult to determine exactly when the plaintiff was legally entitled to seek compensation. Was it the first date that they learned of problems connected with use of the product? Or the first date when they realized they were legally entitled to compensation?

Construction Statutes

Some jurisdictions have adopted special statutes that do not permit an action against an architect or ontractor unless the cause of action accrues within a certain time period after the construction was complete. This prevents the contractor from being exposed to litigation long after the work was complete. Of course, it also has the potential effect of eliminating otherwise meritorious claims.

Statutes of Repose

In some jurisdictions the legislature as part of tort reform have made it more difficult for plaintiffs to sue long after the defendant has acted. A statute of LIMITATION regulates the amount of time that a plaintiff has after the accident has occurred to commence the cause of action. However, a statute of REPOSE sets an outer limit on the amount of time that a defendant is subject to suit. For example, statutes of repose for architects, contractors, and other building trades may provide "repose"--that is, freedom from suit--for any construction project for which a claim has not accrued within six years. Similarly, in the area of product liability a statute may prevent the plaintiff from suing for a product defect unless the injury occurred within the "useful safe life" of the product.

Tolling

Even if the statute would ordinarily have run, it may have been tolled by conduct on the part of the defendant that would make it inequitable to bar the claim. For example, if a foreign object is left by a doctor, or if the

defendant has fraudulently concealed the negligent act from the plaintiff, the statute of limitations will typically not commence running until the plaintiff has had a reasonable opportunity to commence the action.

Infancy

A typical ground for tolling the statute of limitation (at one time, at least) was the infancy of the plaintiff. In many cases the statute of limitations would not run on a claim for injury of a child until the child turned 21. Obviously, this permitted a claim to be brought years after the statute would have run against an adult.

Fraudulent Concealment

Another basis for tolling the statute of limitations has been the fraudulent concealment by the defendant of the existence of the cause of action. If a physician, for example, commits an act of negligence resulting in injury to the patient, but fraudulently tells the patient that the condition is normal, then the statute of limitations will not commence running until the patient is in a position to know the true cause of the injury.

Statutory Change?

Some states have modified the traditional tolling rule for infancy and have allowed the statute of limitations to run on a child's claim so long as the PARENT was on notice of the existence of the claim and the right to sue. In effect, the parents are made agents for the child, and their default in pursuing a claim on the child's behalf will result in the running of the statute of limitations. Again, this is a creature of statute, so pay attention to jurisdictional differences.

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.

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.

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.

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

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

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.

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.

Manufacturing Defects

            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.

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.

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. 

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.

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.

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.

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.

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—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.

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.

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. 

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.

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).

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).

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? 

Battery and Assault

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.

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.

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.

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.