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 high value to the community.

 

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.

 

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.  Traditionally courts have divided the cases between primary assumption of risk and secondary assumption of 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

            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. 

 

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.  See Post-Accident Repairs

 

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

            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).

 

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:

 

  ╔═══════════════════════════════════════════════════════╤════════════════╗

 ║                  Compensatory Damages                 │    Punitive    ║

 ╟──────────────────────────┬────────────────────────────┤                ║

 ║  Economic Damages        │   Non-economic Damages     │                ║

 ║      * Property Damage   │      * Pain & Suffering    │                ║

 ║      * Lost Wages        │                            │                ║

 ║      * Medical Expenses  │                            │                ║

 ╚══════════════════════════╧════════════════════════════╧════════════════╝

 

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 ^Hself-defense^H.  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 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

            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 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 statements 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

            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. 

 

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.

 

Loss of a Chance