inpromissum

Prettiest little thing you ever did see

My torts outline! I'm so proud. It's like my baby. I'm going to post it here just for Scott so he can decide if he likes the looks of law school. ;)

Now how do I work the extended entry thingy?

Places where trial judges make tort-law mistakes:
1. Granting or denying motions to dismiss
2. Granting or denying motions for summary judgment
3. Permitting improper statements by counsel (or squelching property ones) during jury selection, or opening or closing statements
4. Excluding relevant evidence or admitting improper evidence
5. Granting or denying motions for directed verdict
6. Erroneous jury instructions
7. Granting or denying motions ofr judgment NOV
8. Granting or denying motions for new trial, additurs, or remittiturs

INTENTIONAL HARMS TO PERSONS AND PROPERTY

ALL intentional torts require a VOLITIONAL ACT and INTENT or SUBSTANTIAL CERTAINTY that harm will result.

Transferred intent: Doesn’t imply to distress.

1. BATTERY
a. Intent
i. Volitional Act
ii. Specific intent or substantial certainty that harm would result (foreseeability)
b. Harmful or Offensive Touching
c. Causation
Note: Proof of damages not necessary

2. ASSAULT
a. Intent
b. Reasonable apprehension of immediate battery
i. Apparent ability to cause harm
ii. Mental invasion of a person’s state of mind
c. Causation
Note: Proof of damages not necessary

3. FALSE IMPRISONMENT
a. Intent to confine P, or substantial certainty that P would be confined
b. Actual confinement by way of force, threat, or legal authority
c. P must be aware that he is confined or actually harmed
Note: A reasonable means of escape will invalidate the tort.

4. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
a. Intent or wreckless disregard
b. Act of extreme or outrageous conduct
c. Causation of extreme emotional distress
d. Emotional distress or harm (evidence of actual physical harm, outrage, or emotional distress)

5. TRESPASS TO LAND
a. Intent (not an accidental trespass)
b. Actual invasion of land that is not yours
c. (damages need not be proven)
Note: Proven damages by particles can count as trespass, but particles floating by without damage will not suffice.

6. TRESPASS TO CHATTELS AND CONVERSION
a. Intent
b. Wrongful interference with person property
c. Actual Damage (or deprivation of use in the case of conversion)
Note: Information can be a chattel if it has been gathered for the purpose of creating commercial value or is a scientific/creative creation.

7. DEFENSES
a. Consent: Law is guided by the objective manifestation of this state of mind – you should look like you are consenting or not. The law will also make exceptions for Rules of the Game (think Hockey). Consent can be exceeded. Two men in a fist fight lose their claims to non-consent.
i. Exception to Consent: If consent is a result of fraudulent misrepresentation it is voided/voidable (baby delivery case)
b. Self-Defense: You must reasonably believe that you are in danger and then must use a reasonable means of defense. If you have a reasonable means of escape you should not use self-defense. HOWEVER, you will not be expected to use a reasonable means of escape from your home or place of business – you have an instinctual right to protect said places.
i. Belief that threatened attack is real must be reasonable
ii. Can use no more force than a reasonably prudent person under similar circumstances
iii. Privilege ends when aggressor is disarmed or helpless, or when all danger has clearly passed.
c. Defense of Others: Not allowed at common law, though most states will not allow this if you believed that your intervention was necessary.
d. Defense of Property: Reasonable means are acceptable, but human health and life will be given more weight than property (even important property). If you feel that you are also defending your personal safety you have a better argument. [most states have shopkeeper privileges that allow the customer to be reasonable detained and questioned][UCC privilege of creditor to repossess without a breach of the peace]
e. Private Necessity: Without a breach of the peace you can repossess your property if:
i. You were wrongfully dispossessed
ii. In hot pursuit, and
iii. Only using reasonable force
iv. SHOPKEEPERS: Can hold someone they reasonably believe to be shoplifting until the police arrive.
f. Public Necessity: Bomb squad, maybe? Government at common law does not have to pay for damages, but this is slowly changing.
g. Residual “Justification” Privilege: Catch-all

NEGLIGENCE GENERALLY

Prima Facie Elements:
1. Duty to conform conduct to a certain standard
2. Breach, or failure in that duty (things to consider listed below)
a. Custom (if cheap and prudent to take precautions you may be expected to do so even if its not an industry standard)
b. Compliance with applicable statutes
(Violation of a statute is negligence per se)
i. Some states find NPS to be evidentiary, while most consider it conclusive.
ii. Limits of NPS:
1. If the judge thinks you had a good reason to violate the statute you may be off the hook under “The Excuse Doctrine”
2. You must be in the group protected by the statute, or your must be subject to the kind of harm that the statute is trying to remedy

c. Foreseeability
i. Magnitude of harm possible
ii. Probability of foreseeable risk
iii. Benefit of activity
iv. Burden of reducing the risk
v. Cost Benefit Analysis
vi. Learned Hand’s Rule: Someone is negligent if the Benefit is less than the Probability of harm multiplied by the potential loss. B

d. Totality of the circumstances
e. Benefits < Probability x Loss

3. D’s substandard conduct was a factual cause, or cause in fact of P’s injuries
4. D’s substandard conduct was the legal cause, or proximate causation of P’s injuries
5. P must prove actual damages

STRICT LIABILITY

1. Animals
a. Domesticated Animals: You are liable if you know or have reason to know that your animal has a tendency to cause harm based on that particular animal’s characteristics. Requires foreseeability.
b. Wild animals: There is strict liability for any damage that results from a dangerous propensity of the species. Requires foreseeability.

2. Abnormally Dangerous Activities: One who carries out an abnormally dangerous activity is strictly liable (without regard to fault) for any damage that proximately results from the dangerous nature of the activity. Factors to consider:
a. High degree of risk of some harm
b. Likelihood than any resulting harm would be great
c. Inability to eliminate the risk by reasonable care
d. Unusualness of the activity
e. Inappropriateness of the activity to the place where it is carried out
f. Extend to which its value it outweighed by its dangers

Activities that are usually considered abnormally dangerous
• Blasting of explosives
• Operation of a nuclear power plant
• Researching viruses and biochemical weapons
• Transporting flammable or very toxic liquids

PRODUCTS LIABILITY: One who negligently manufactures a product is liable for any personal injuries proximately caused by his negligence. Privity is out the window these days. Classes of people who find themselves in trouble:
1. Manufacturers
a. Careless design
b. Careless manufacture
c. Careless inspections
d. Careless packing or shipping
e. Careless acquisition of components
2. Retailers, on the other hand, are usually indemnified by the manufacturer and will generally not be held liable in products liability cases.
3. Other suppliers, such as bailors, sellers, lessors, and suppliers of product related services (such as hospitals doing blood transfusions) may all be sued.

STRICT PRODUCTS LIABILITY: A seller of a product is liable without fault for personal injuries or other physical harm caused by the produce if the product is sold in a defective condition. Once the defect is shown the seller is liable even though he used all possible care, and even though the plaintiff did not buy the product from or have nay contractual relationships with the seller.
Note: Many states apply their comparative responsibility scheme to strict products liability and hold that a P’s negligence which constitutes MORE than a mere failure to discover or guard against a produce defect justifies the fact finder in assigning a percentage of responsibility to the plaintiff. Other jurisdictions have said that ALL forms of P negligence are relevant for a fact finder’s assignment of responsibility.

DUTY

NOTE: Duty is decided by the court or judge; the other four elements are decided by the jury. Judges can establish the other elements as well if they are certain that a reasonable person could not decide otherwise. Tort reform judges who are trying to “rein in” the system have a tendency to find no duty.
1. Heaven v. Pender Principle: In the usual run of cases, a general duty to avoid negligence is assumed (reasonable care), and there is no need for the court to undertake detailed analysis of precedent and policy in order to conclude that a duty exists. There are two justifications:
a. Corrective Justice: Imposing liability remedies an injustice done by the D to the P
b. Incentivizes Safe Conduct

Substandard Care: Care which is not “ordinary” or “reasonable”
• “Ordinary care” is that degree of care which would be used by a person of ordinary prudence under the same or similar circumstances
• “Reasonable care” requires only that a person take reasonable precautions with respect to risks that a reasonable person would foresee.
The “Reasonable Person”
• Generally: An objective standard of reasonable care. It’s still better for a dumb tortfeasor to pay than an innocent victim
• The Disabled: What would a reasonable prudent blind/deaf/one-legged person think or do in this situation?
• Children: What is reasonable for a child of that age? We thing that juries have a sense for the capacities of children just as we think they have a sense for the capacities of the disabled.
• Mentally Disabled: Common law says that we don’t care about mental disability; they are held to the regular standard.

2. Privity of Contract: The old English rule, and the rules in some cases still, is that there must be privity of contract between parties. This assists in the goal of “extending D’s duty to cover specifically foreseeable parties but at the same time containing liability to manageable levels”
a. Exception: An owner accepting a piece of construction work that is dangerously defective, inherently dangerous, or imminently dangerous does not take on responsibility for all accidents that result from the construction just because the invitee or licensee is not in privity of contract with the builder. The builder continues to have liability because this possibility of harm is foreseeable.

3. Sometimes/Often no duty to unforeseeable plaintiffs: Palsgraff indicate that you are not going to be found to have a duty to people so far down the chain of events that you wouldn’t at all expect their harm.

4. Duty to Act - Nonfeasance vs. Misfeasance
a. NO DUTY: No person is under a duty to another unless he has entered upon some course of conduct towards such other. You have no right to be rescued. Some states change this rule by way of statute. EXCEPTIONS:
i. The “Good Samaritan” Rule. One who volunteers to assist another thereby undertakes a duty of reasonable care not the make the situation worse.
ii. The Prior Conduct Exception. An actor who does an act, and subsequently realizes or should realize that is has created an unreasonable risk of causing physical harm to another is under a duty to exercise reasonable care to prevent the risk from taking effect. If you drop a banana peel, pick it up.
iii. Special Relationship (custodians, parents, wives, schools) to victim or perpetrator.
iv. Control of Instrumentality

5. Mental and Emotional harm: Often considered “parasitic” to the physical injury. To recover for NIED you need to show PHYSICAL HARM. Courts have moved from a no-duty rule in terms of emotional/mental harm to cautious recognition. Three reasons we’ve been afraid of expanding this bit of the law: Difficulty in proving mental harm, fear of fraudulent or exaggerated claims, and a flood of litigation. Now we will let you recover if you show us physical harm and foreseeability by way of:
a. Zone of Danger
b. Dillon v. Legg: Measuring foreseeability of harm to a stander-by
i. Proximity
ii. Sensory and contemporaneous experience
iii. Close relationship

Physical injuries CAUSED by emotional distress don’t count; the physical harm or witnessing or fear of physical harm must come PRIOR to the physical harm for recovery under NIED unless the heart attack is from a zone of danger or legitimate bystander recover situation.
Fear of disease: Even if you were exposed and have great fear you will not be able to recover for NIED until you come down with something. There may be a few rebel states, but this is the majority opinion.

6. Economic Loss without Physical Injury: When a person who has not suffered an injury to his person or tangible property seeks recover for financial detriment allegedly produced by D’s negligent conduct. Friction and gravity dictate that physical objects eventually come to rest. Exceptions:
a. Plaintiff shows a COMMERCIAL interest in what happened (Fishermen)
b. Malpractice of professionals – they need to be held liable somehow

7. Owners and Occupiers of Land:
a. Off-Property Problems
i. Artificial hazards are the duty of the landowner to deal with
ii. Natural hazards, such as trees falling on the sidewalk, traditionally created no duty for the land owner. Now, in urban or thickly settled areas, courts are less likely to apply the traditional rule and will impose a “reasonable care” standard.

b. Trespassers: No duty except to not be wanton and willful.
i. Exception: If part of your land is trespassed on frequently and you know this you will have a duty (probably equal to that toward invitees)

c. Child Trespassers: You have a duty to protect attractive nuisances, defined below:
i. Kids are likely to be there
ii. Know or should know the instrumentality could cause serious harm
iii. Children will not realize the danger
iv. Trouble of eliminating or addressing the danger would be sling in comparison to the risk to children

d. Licensees (social guests): Must use reasonable care and warn of known hazards (or hazards you should know of).

e. Invitees: People on business OR members of the public on the property because the property is for some reason being held open to the public (like church).
i. Duty to reasonably investigate to find hidden dangers
ii. Duty to warn
iii. Duty to take affirmative action to remedy the dangerous situation
1. May even require exerting control over a third party on the premises

8. Duty to Protect Against Third-Party Torts and Crimes:

9. Ad Hoc Duty Decisions: Judges turn breach and turn it into duty

10. Violation of Statute: Negligence per se: Establishes breach. With certain exceptions, the violation of a statutory standard of conduct does not differ from ordinary negligence – the only difference is that the DUTY IMPOSED BY STATUTE IS FIXED. To create absolute liability or establish negligence per se it must be clear that the person harmed is part of the class of people the statute was written to protect (a limited class of persons) from their own inexperience, lack of judgment, inability to protect themselves or resist pressure, or tendency toward negligence.

11. Groups with a heightened standard of care:
a. Inn Keepers
b. Common carriers of people
c. Doctors
d. Lawyers

PROFESSIONAL DUTY – A DISTINCT DUTY ANIMAL
1. Components:
a. Skill and knowledge of an ordinary profession in the field
b. That reasonable care be used
c. Profession must act in best interest of client or patient

2. Professional Standard of Care: Established by professionals of the same kind in the same community. Some courts will allow testimony by the same kind of professionals who are similar situated in a similar (but not the same) location. More and more courts are now using a national standard. Novices get no breaks

3. MEDICAL: Informed Consent: The doctor must disclose to the patient all risks inherent in the proposed treatment which are sufficiently material that a reasonable patient would take them into account in deciding whether to undergo treatment. Subjective – what does this patient think? Objective – what does a reasonable patient think? If consent is due to misrepresentation you are back at battery.

CAUSE IN FACT

1. THE BUT-FOR TEST (PRIMARY TEST) – sine qua non- without which not
The Five-Step Approach to the But-For Test
i. Identify the injury
ii. Identify D’s wrongful conduct
iii. Imagine a counter-factual hypothesis in which D meets all of this legal duties
iv. Ask yourself if P still got hurt
v. If the answer is no, you have CIF, if yes, P still would have been hurt had D done everything property, then you do not have CIF
NOTE: When the outcome of the but-for inquiry is honestly debatable the jury’s answer should be respected.

2. LIMITED-PURPOSE SUBSTITUTES FOR THE STANDARD BUT-FOR TEST
a. The Substantial Factor Test: When an actor’s tortuous conduct is not a factual cause of physical harm under the bur-for test ONLY because another causal set exists that is also sufficient to cause the physical harm at the same time, the actor’s conduct is a factual cause of the harm. For instance, a forest fire and an arson converge on a home; the arsonist’s actions will be a substantial factor even though the forest fire would have burned down the house had he not been there.
b. Alternative Liability: When we have a small set of defendants and you prove that they ALL acted negligently, but only ONE caused the harm and we don’t know who it was. We shift the burden of proof to the defendants and hold them jointly and severally liable. Two men shoot at a quail but miss and one bullet puts out P’s eye; we’re not sure whose bullet it was, but we will call it a concerted action.
c. Concerted Action: Conspiracy of sorts – two men go to rob a store and one shoots the checker in the process. Both will be held liable.
d. Market Share Theories: Only adopted by a minority of the states. When we don’t which women took Ortho Evra and which took Micronor (both of which caused an outbreak of fetal deformities) but they have the exact same produce on the market. We will hold them both accountable for the share of the market they were responsible for. Used when:
i. You cannot prove concerted action or alternative liability
ii. All manufacturers involved are wrongdoers
iii. Products are exactly the same.
e. Enterprise Theory: When evidence of who did the negligent act is destroyed but the industy standard indicates that all products are identical then the entire industry can be help liable. (Only one state uses this)
f. Lost Opportunity Doctrine: If you had a certain chance on not contracting a disease (say 30%), but you weren’t given that 30% at all, then you should be able to recover damages for that amount (30% of the costs of fighting the disease, etc.). Most states require improved chances of 50.1% to apply this doctrine.
g. Extended J&S Liability: If a minor injury causes a major injury due to a pre-existing condition, then so long as there is proof that injury hastened death and destruction the P can recover. The Eggshell P Rule establishes that a tortfeasor takes his victim as he finds him.

1. RES IPSA LOQUITUR – THE THING SPEAKS FOR ITSELF: Requirements to establish this kind of breach:
i. Accident must be of a kind that does not generally happen without someone being negligent. Inference of Negligence.
ii. Must be caused by an agency or instrumentality in the exclusive control of the D. Exclusive Control.
iii. Must not be due to any voluntary action on the part of the P. The Plaintiff’s Actions.

3. DAMAGES ACCORDING TO CAUSATION
a. Indivisible Injuries and Joint and Several Liability: When experts cannot say who caused the injury, or who is liable for what portion of it, tort feasors will be held jointly and severally liable, meaning they are both liable for the full amount of damages to the defendant and he has his choice as to whom to collect from.
b. Comparable Fault: The new J&S. Let’s have people pay what they owe!

LEGAL CAUSE

Types of Legal Cause Rules (limiting liability). Restatement: A D is “not liable for harm different from the harms whose risk made the D’s conduct tortuous.”

1. Policy based rules (DES Granddaughters)

2. Unforeseeable Consequences (see harm tests): Was the P’s injury among the array of risks the creation or exacerbation of which led to the conclusion that the defendant’s conduct was negligent? Legal causation is a limit on liability. We will evaluate the foreseeability of the:
a. Kind of harm
i. Direct consequences/remoteness test: Harm result directly, not remotely, from the negligent act. This is a HINDSIGHT analysis and is reducing in popularity.
ii. Foreseeability test: Wagon Mound. If D could foresee the damages caused he is liable.
b. Extent of harm – No limit on extent! Eggshell P Rule. If the P was foreseeable and the kind of harm was foreseeable, we don’t care if the extent of harm is huge.
c. Manner of harm – a strained differentiation
d. Plaintiff – Palsgraf. If you did not foresee a duty to a certain plaintiff you cannot breach it.

3. Crystallized Rules
i. Suicide: No liability to tortfeasor. Suicidie is supervening.
ii. Medical Negligence: You are/not liable for subsequent negligence by a medical provider to a person you harmed
iii. Rescuers: If rescuer is negligent, its still original wrongdoer’s fault

4. Intentional torts: We’re not very concerned with limiting liability (you bastard!)

5. Intervening/Superseding Cause: An act that happens between the negligent conduct and the injury is an intervening cause. Some, but not all, intervening causes are sufficient to prevent D’s negligence from being held to be the proximate cause of the injury. Where these are sufficient to prevent D from being negligent, they are called “superseding” causes, since they supersede or cancel D’s liability.
a. Intervening Cause: Human action after defendant's action which is arguably the more direct cause of the plaintiff's injury. If a guy who lights his cigar over a pool of spilled oil accidently the railroad will be liable.
b. Superceding Cause: Guy lights his cigarette and throws it into the pool of oil to be a destructive jerk; railroad will not be held liable.

Note: Palsgraf Case Bugs the Whole Thing Up: Cardozo says that Palsgraf was not a foreseeable plaintiff. He expresses it as a duty issues - there was no duty because the plaintiff was not foreseeable. Andrews, however, says that we should account for foreseeability, but we should also address directness (she was injured instantly when bad juju happened on the railroad). Andrews thinks we should let the jury decide on this sort of issue (and therefore he considers it a legal causation questions rather than a judge-only duty question). A judge can still take away Breach, Cause in Fact, Legal Cause, or Damages if he believes that no reasonable person could find the other way.

Note: Remember that legal cause is all about limits! Ask yourself the following:
• Are we dealing with a crystallized rule or is it up in the air?
• Are there policy considerations at play?
• What the plaintiff foreseeable? Most states say no liability unless P was foreseeable
• Were the unforeseen consequences a greater extent or harm or a different type?
• If the mechanism was unexpected, was the injury at least foreseeable? (Old hindsight rule or new foresight rule)
• Are there intervening or superseding causes at work?

VICARIOUS LIABILITY

Relationships that lead to vicarious liability
1. Respondeat superior (master and servant, employer and employee). If the employer exercises or had the right or exercise control over the physical conduct (manner and means) of the work, the one employed is an employee or servant.
a. General Rule: If the relationship is such that the employers directs only the result, and they party employed is free to determine the manner and means, then the relationship is one of independent contracts, and the respondeat superior relationship does not apply.
i. Exceptions to the "Not Responsible for Contract Employees" Rule
1. Affirmative duties that are imposed on the employer by statute, contract, franchise, charter, or common law and
2. Inherently dangerous work makes a non-delegable Duty: Duties imposed on the employers that arise out of the work itself because its performance creates dangers to others, i.e. inherently dangerous work. Whether something is "inherently dangerous" should be a question of fact for the jury. If the work to be performed falls into one of these categories the employer may delegate the work, but not the duty.

The Three Part Test for Respondeat Superior
1. Happens at the time and in the place of employment,
2. Act of the type the person was hired to perform, AND
3. At least a partial interest to serve the employer while the act was committed (the OR SC has said that we don't need to look at the exact moment, but rather the events that lead up to the tort)

Judge Friendly's Opinion
We need to make the person who is most able to make changes liable - we should evaluate foreseeability. "Men do not discard their personal qualities when they go to work." He basically takes a fairness/justice approach - a gut feeling. A Seaman with a record who is left to go break shit will likely cause a DIRECT negligence tort for his employer whereas a Seaman without a record will cause a vicarious liability negligence tort for his employer

What Remedy Does an Employer Have?
It can come back and seek indemnity, dollar for dollar, against the employee, but they rarely do this because it's not a cost-effective move. It's also bad for morale - people don't want to work for an employer that will sue them.

2. Parents and children in some jurisdictions and only then in certain age ranges
3. Sometimes partnerships and joint enterprises
4. Sometimes people who loan their cars to others
DAMAGES

Three kinds of damages . . .
1. Pecuniary (Economic, special damages – all are past, present, and future expenses)
a. Loss of income
i. Hard for parents to prove this about children
b. Costs of care
c. Medical expenses

2. Non-pecuniary (non-economic)
a. Pain and suffering
b. Loss of enjoyment of life (hedonistic)
i. Courts are split on whether this requires consciousness
c. Loss of consortium, society, and companionship

3. Punitive Damages: Damages usually awarded against a corporation in cases of “negligence plus”, which is willful or wanton bad behavior. Many states limit these, several to a ratio.
a. The Corporate Problem: Punishing a corporation punishes the shareholders – some states are moving to allow P’s to sue individuals in the corporation.
b. Due Process Limits: Three guideposts a la Supreme Court
i. Reprehensibility
ii. Ratio with compensatory damages
iii. Penalties for similar conduct under state law

If a judge doesn’t like the award he can do one of three things:
1. Call for a new trial
2. Hold a new trial on damages only
3. Remittitur; offer a lower verdict (if not accepted, then a new trial)

• Collateral Source Rule: Common law says you cannot subtract collateral sources from what you owe. It would be unjust for the bad guy to pay less and the innocent man’s insurance company to pay and then likely raise him premium. However, usually there will be an arrangement between the insured and insurer than payments made by the defendant will be used to cover what the insurance company has already paid.
• Single (and Future) Recovery Rule: All damages must be recovered in one settlement
• Attorneys Fees: Not put into the award. P’s attorney gets a percentage; D’s gets paid by the hour.
• Present Value Calculation: Discount damages to the future according to how much money could be made by the plaintiff if they invested the money wisely.
• Taxation on awards: Punitive are taxed, economic and non-economic are not.
• Structured Settlements: Present value can be put into an annuity to protect the P from himself.
• Caps: Many states have a $500,000 limit on non-economic damages.

Wrongful Death Statute: Allows certain names beneficiaries to sue, generally spouses and children for loss of support. This is usually limited to pecuniary losses, although some states are expanding it to loss of companionships and the pain of suffering of the decedent. Look out for imputation!
Survival Statute: Allows lawsuits for damages suffered by the decedent up until the time of death – pain and suffering, lost wages, loss of enjoyment of life. One form allows already filed law suits to survive, and another allows law suits to be filed after the death. Look out for imputation!

AFFIRMATIVE DEFENSES

1. Contributory Negligence: If you contributed in any way to the accident you are legally unable to recover. Juries and judges found this unnecessarily harsh and came up with assorted doctrines to subvert it.
a. Last Clear Chance Doctrine: If the D had the last clear chance to avoid the injury juries would allow him to be held liable (despite contributory negligence).
b. Negligence Plus: Willful and wanton conduct will eliminate any chance you had to save yourself by pegging a portion of the blame on the plaintiff.

2. Comparative Negligence: You are able to recover based on how much of the accident you were not responsible for.
a. Pure Comparative Negligence lets you recover for even a very small percent, assuming you were liable for most of the accident.
b. Modified Comp. Negligence states will say that you must be less than 51% or 50% liable in order to recover. Oregon is a 50/50 state.
c. Many states will not let insurance companies off under either of these rules

3. Failure to Mitigate Damages
a. Submit to medical treatment (most courts require this)
b. Mitigate income loss

4. Failure to take advance precautions doctrine (aka avoid consequences). Most common context is failure to wear a seatbelt or a helmet.
a. Traditional law: The failure of the plaintiff to wear a seatbelt was not evidence (or even allowed as evidence) of the plaintiff's contributory negligence. Courts were convinced that juries would punish the plaintiff, and that in modified comparative negligence statutes they would not recover at all because they'd be found 51% at fault.
b. The Seatbelt/Helmet Rule Currently: If the defense can show that the plaintiff was not wearing a seatbelt then the jury will be instructed to figure out what percentage of the harm is done by the failure to wear it.

5. Assumption of the Risk
a. Implied Assumption of Risk: Five states and DC apply this, and it should really be thought of as a limited duty doctrine. If P answers yes to these question he does NOT recover. Required elements:
i. Appreciation of the danger, and
ii. Voluntary encountering of the risk.
b. Express Assumption of Risk (written or verbal waiver)
i. Does the EAR agreement cover the situation at issue? What is the scope of the release? Ambiguities are construed against the drafter.
ii. Does public policy require that we invalidate the waiver? Usually we will assume that you knew what you were signing. A release cannot excuse willful or wanton torts.

6. Imputed Contributory Negligence: The modern rule, adopted by a vast majority of states, will only impute if the relationship is one which would make the plaintiff vicariously liable if he were a defendant.
a. Both Ways Rule – Contributory negligence will be imputed where plaintiff would be liable for another's activity under vicarious liability
i. Exception: Car rental companies because they have no control over the vehicles
b. Derivative Claims like consortium, wrongful death. Wrongful death, for instance - a child recovering for wrongful death will be imputed with the negligence of their father (in his own death). Consortium claims are derivative because a husband would have no claim for loss if the wife had not been hurt.

7. Worker’s Comp Exclusivity/Immunity.
a. Exceptions
i. Intentional torts – purpose OR substantial certainty along with a volitional act.
ii. “Red Tags” – a mark by a gov. agency saying something is particularly dangerous – if the company fails to make the condition safer the worker might be able to get around the WC system.

8. Charitable Immunity – Most states have now abolished this, but the funds given to charities used to be thought of as funds held in a quasi-trust for the recipients, and therefore untouchable.

9. Government Immunity: A distinction is made between governmental acts and proprietary acts. Proprietary acts are often not immune. Exceptions to strict governmental immunity:
a. State and local governments usually have their own Tort Claims Act (TCA), which include shorter SOL’s, caps on liability, no punitive damages, and discretionary functions defenses (judgment calls in the capacity of the job should not be second guessed in court)
b. Federal Tort Claims Act
c. Public Duty Doctrine: Government must make voices to protect the public as a whole and therefore has no duty to any one particular person.

10. Family Immunity
a. Spousal: Largely abolished, and usually used to tap insurance policies. Generally seen in cases of intentional torts, torts before marriage or after divorce, and automobile cases (seeking insurance).
b. Parental: Less abolished, and usually used to tap insurance policies. Often a jury will assign the duty of a reasonably prudent parent in trying to figure out where parental discretion comes into play.

11. Statute of Repose: Statutory time limits that trigger from the time of the tort. Look out!

COMPARATIVE RESPONSIBILITY IN MULTIPARTY LITIGATION

Joint and Several Liability: Everyone who helped commit the accident is liable for the entire cost. Usually the defendant will recover from the plaintiff with the deepest pockets and then that plaintiff will be responsible for recovering from D2, D3, etc. This is called contribution. This scenario comes up in three kinds of cases:
a. Two people Conspire to create the risk, aka acting in concert, i.e. racing
b. Common Duty Situation i.e. Owner and driver are both liable when the brakes on a car don’t work
c. Independent acts of D1 and D2 come together to cause in face the P’s injury (this is where the hubbub is), i.e. Two car accidents in a row – major whiplash – who caused it?
i. Unfair when: One D is a turnip
ii. Unfair when: One D is missing
NOTE: The common law had a nice balance – joint and several liabilities were as strict as contributory negligence. Both D and P had a big stake in the final decision. Now we have comparative negligence and comparative fault (We ask how much the P is responsible for, AND divide the responsibility of all D’s and make them pay accordingly).

Comparative Fault: Which D’s caused which part of the injury? Many states will now do their math based on this finding rather than resort to J&S and put a large burden on the D with the deep pockets.

Partial Settlements: Watch your back! A release used to let all D’s in a claim off the hook. Now, when carefully drafted, you can let off the D’s that want to settle and not those who don’t’.

Mary Carter Agreements: A pretrial settlement between P and one or more D’s, wherein the P says they will return some of the money they get when they recover from the non-settling D’s.
• For instance: D1 settles with P for $400,000, but a verdict over $1m would lead to a dollar for dollar return. Gives D1 a very strong interest in getting a huge settlement against the other D’s. P gets a war chest. So… what if everyone starts pointing at D2? The jury might not see the economic interests of the other D’s. Some courts don’t allow these, and some courts require that it is disclosed to the jury that D1 has an economic interest in a large settlement against D2

Comparative Negligence for non-negligent actions: This is not the majority rule (applying comparative responsibility to intention torts), but it “commands significant support”.

Apportionment by Causations and Fault in the Same Case: Whose fault was it and then who directly caused it? The motorist, the defective wheel, and the rash. One suggestion is to divide by cause in fact and by fault in one step. Doctor is liable for the rash. Wheel is liable for the hand injury and the rash. Motorcycle dude is liable for the back injury, the hand injury, and the rash.

Posted by Kara at May 8, 2006 05:57 PM | TrackBack