Torts- Spring
Semester Outline (Professor Pruitt)
I. Proximate Cause
v
Proximate Cause
o
Negligence
§
Duty
§
Breach of Duty
§
Actual Cause
§
Proximate Cause
§
Damages
o
Not all actual causes are proximate causes
o
Proximate cause is about consideration of
fairness and justice. Juries are making
the decision whether it is fair the hold the ∆ liable for Π’s injuries.
o
Proximate cause checklist:
§
Substantial factor
§
Reasonable foreseeability of...
§
Direct connection between breach of duty and the
harm done—as opposed to intervening or superseding causes
§
Natural and continuous sequence
§
Remoteness (in time an place)
§
Risk- or loss-spreading function of tort law
(availability of insurance)
§
Common Sense
o
Foreseeability
§
Reasonable foreseeability= liability (Weirum)
·
Exceptions to the rule, no foreseeability needed
with regard to extent of injuries or damages (remember Vosburg- Eggshell
Π)
o
But does not apply to property damages
o
Ford
v. Trident Fisheries Co.
§
Π’s
husband killed when thrown overboard. Π claims that the ship owner was negligent in
not having proper lifeboat equipment.
§
Court
ruled that even though ∆ was negligent, but the husband disappeared in
water right away and the life boat couldn’t have saved him even if had proper
equipment.
o
§
Π’s
wife killed when she suddenly backed up her car from the driveway to the street
and was struck by ∆’s truck
§
Jury
found that ∆ was speeding at the time but his negligence was not the
legal (proximate) cause of the death.
·
Proximate
Cause Question: “But for D’s breach of duty in driving 53 in a 35 mph
zone, would the accident have occurred.”
§
Court
upheld. Even if ∆ was going within
the speed limit, the accident would have occurred anyways.
o
Loss of Chance Doctrine
§
Doctrine comes up often in medical malpractice
cases
§
“Loss of chance doctrine reflects an inescapable
tension between traditional demands of causation on the one hand and, on the
other, a concern for plaintiffs who, by the very nature of the claim, will
never have available to them anything but probabilities.”
§
Hamlin v. Bashline
·
Doctor failed to give EKG and expert testified
that patient would have had 75% chance of surviving if doctor had acted
properly.
·
“Whereas typically a plaintiff alleges that a
defendant’s act or omission set in motion a force which resulted in harm, the
theory of the present case is that the defendant’s act or omission failed in a
duty to protect against harm from another source.”
·
To resolve such issued, you have to ask whether
the harm would have resulted from the independent source even if ∆ had
performed his service in a non-negligent manner.
§
Restatement
323
·
One who
undertakes, gratuitously or for consideration, to render services to another
which he should recognize as necessary for the protection of the other’s person
or things is subject to liability to the other for physical harm resulting from
his failure to exercise reasonable care to perform his undertaking if:
o
His
failure to exercise such reasonable care increases the risk of such harm, or
o
The harm is suffered because of the other’s
reliance upon the undertaking.
§
Weymers v. Khera
·
Π
sick and admitted to ∆’s hospital and condition gets worse and Π has to go through kidney
transplant operation
·
Expert witness testified Π would have had 30 to 40 percent
chances of retaining the functions of her kidneys if propert care given by ∆
·
Supreme court ruled that loss of chance doctrine
cannot be applied to cases where death does not result.
·
Loss of chance is used as a substitute to
causation and extending it to this case will lower the importance of causation
in negligence actions
§
3 areas under loss of chance doctrine
·
Pure lost chance[1]
o
P can recover even though it was more likely
than tnot that he would have suffered the injury if the D had not been
negligent. But P must show only that D’s
care diminished his chance of survival or injury avoidance, no matter how
slight that diminution.
·
Proportional Approach
o
Like pure lost chance but P’s recovery is
limited to percent of chance lost multiplied by total amount of damages (e.g.
if 30% chance physical could have saved patient by rendering proper care,
decedent’s family gets 30% of the value of decedent’s life.
·
Substantial probability Approach
o
P must show substantial possibility that D’s
negligence caused his injury or death.
Substantial in most jurisdictions does not mean >50%
o
Foreseeability with regard to duty vs.
……….proximate cause
§
Duty element focuses on whether D’s conduct
foreseeably created a broader zone of risk that poses a general threat of harm
to others
§
Foreseeability with regard to proximate cause is
concerned with whether and to what extent the D’s conduct foreseeably and
substantially caused the specific injury that actually occurred.
o
Palsgraf v.
§
D’s guards pushed a man in the train who was
about to fall. The man’s package fell
and unbeknownst to anyone, it contained fireworks that exploded.
§
P who was standing on the other side of the
station was hit with scales loosened with the sound of the explosion.
§
Justice Cardozo’s majority opinion stated that
guards were negligent towards the man and not the plaintiff. D’s conduct did not involve any unreasonable
risk of harm towards the P.
§
Justice Andrew’s dissent: D had duty of due care
towards the whole society and such duty was breached when P was injured. This argument is similar to the “direct
causation” view.
o
§
D negligently caused an accident but no one
injured. P went to warn others but hit
by another driver.
§
D was held to be the proximate cause of P’s
injures because the other driver was not superseding. The waters had not calmed and P was still in
the zone of danger when injuries occurred.
§
The purpose of proximate cause is “to confine
the liability of a negligent actor to those harmful consequences which result
from the operation of the risk, or of a risk, the foreseeabiity of which
rendered the D’s conduct negligent.”
§
Class example: If P was attacked by a bear, then
D wasn’t going to be held liable because not foreseeable. Bear was going to be the superseding
intervening actor.
o
When a tough issue of proximate cause arises,
the court should leave it up to the jury to decide.
o
Texas & Pacific Ry v. McCleery
§
P injured when his truck hit by a train. Train at some point had speeded.
§
P argued that speeding was actual and proximate
cause of accident because if not speeded then wouldn’t have been there at that
time.
§
Court ruled actual cause but not proximate
cause.
o
Watson v.
§
Due to D’s negligence, its train derailed and
gasoline leaked to the streets. On
person threw match in the gasoline and fire erupted and P was injured.
§
Court said if the actor’s conduct was negligent
but innocent, then foreseeable and proximate cause. But if criminal conduct, then not foreseeable
and no proximate cause.
§
“If the intervening acts or conditions were of a
nature reasonably to have been anticipated, though they may have been acts of
the plaintiff himself, they do not cut off liability for D1. But if the intervening agency is so
unexpected or extraordinary as that he could not or ought not to have anticipated
it, he will not be liable and certainly he is not bound to anticipate the
criminal acts of others by which damage is inflicted.”
o
Subsequent Injuries
§
Subsequent accidental injuries are generally
considered foreseeable
§
E.g. D liable for further injuries suffered by P
when ambulance taking P to hospital for treatment, following collision with D,
was itself in a collision.
§
Health care provides usually held liable if the
patients in their care commit suicide.
o
Gorris v. Scott
§
D transporting P’s sheep and washed
overboard. D wasn’t complying with a
statute that was designed to protect animals from disease.
§
Statute was not designed to protect against the
type of damage that occurred.
§
Professor doesn’t know why this case is covered
under the causation category.
o
Morales v. City of
§
Gas station sold gasoline in unapproved
container and gasoline used to commit arson.
§
Π
claimed violation of statute, but statute designed to secure safety of gasoline
in container.
§
Actual cause- Yes, Proximate Cause= no. No
logical link.
o
§ 431 What Constitutes legal cause:
§
The actor’s negligent conduct is a legal cause
of harm to another if
·
His conduct is a substantial factor in bringing
about the harm
·
There is no rule of law relieving the actor from
liability because of the manner in which his negligence has resulted in the
harm.
o
§ 433 Considerations important in determining
substantial factor question
§
number of other factors that contribute in
producing the harm and extent of effect which they have in producing it
§
whether actor’s conduct has created a force in
active and continuous operation up to the time of the harm or created a
situation harmless unless acted upon by other forces (natural and continuous
sequence)
§
Lapse of time (remoteness in time)
o
Kinsman Case
§
Barge broke lose and resulted in flooding.
§
Court said just because low foreseeability of
great damage doesn’t relieve the ∆ from duty
§
Kinsman Formula:- Foreseeability + Directness +
same general sort = Proximate Cause
o
So far seen:
§
Foreseeing an individual P’s special
vulnerability (Vosburg)
§
Foreseeing that different P’s are vulnerable (Palsgraf)
§
Foreseeing the type of harm done (Kinsman)
o
Cases that move away from foreseeability to
direct cause and back to foreseeability and then again back to direct cause
(kind of)
§
Polemis Case
·
Unloading ship and D’s servant drops plant and
that leads to fire.
·
D breached a duty and some harm to ship was
foreseen.
·
“Once the act is negligent the fact that its
exact operation was not foreseen is immaterial.”
§
Wagon Mound (#1)
·
Moved away form Polemis
·
“For it does not seem consonant with current
ideas of justice that, for an act of negligence, however slight or venial,
which results in some trivial foreseeable damage, the actor should be liable
for all consequences, however unforeseeable and however grave, so long as they
can be said to be direct.”
§
Wagon Mound (#2)
·
Moving back towards direct cause
·
Court said that findings show that some risk of
fire would have been present to the mind of a reasonable man in the shoes of
the ship’s chief engineer
·
Real risk is one that would occur to the mind of
a reasonable man that he would not brush aside as far fetched.
II. Special Instances of Nonliability for Foreseeable
Consequences
v
Negligent Infliction of Emotional Distress
(NIED)
o
Primary victims vs. secondary victims
§
Example: Child hit by car while mother
witnessing across the street.
·
Primary victim: The child
·
Secondary Victim: The mother
o
NIED: When a secondary victim can recover for ∆’s
negligence
o
The Impact Rule of Mitchell v.
§
There could be no recovery for fright alone
without any impact.
o
Waube v.
§
Facts: Mother looking out the window and
witnesses her child getting hit by a negligent driver.
§
Holding: Can’t recover because not in the zone
of danger.
o
Dillion v. Legg
§
Facts: Daughter hit by negligent driver while
other daughter also on street but mother still on the sidewalk. Trial ct. said other daughter can recover for
NIED but mother can’t because not in the zone of danger. Supreme Court of California reversed.
§
Holding: Moved back to the reasonable
foreseeability rule.
§
3 Foreseeability based guidelines:
·
whether P located near the scene of the
accident, as contrasted with one who was some distance away
·
whether shock resulted from direct emotional
impact upon P from the sensory and contemporaneous observance of the accident,
as contrasted with learning of it after its occurrence:
o
Did P see the accident? Her it?
·
Whether P and victim closely related.
§
Reasonable foreseeability: objective standard
o
Thing v. La Chusa
§
Abandoned the Dillon’s Foreseeability rule and
came up with a strict 3-part test:
·
Is P closely related to the injury/primary
victim?
·
Was P present at the scene of the injury
producing event at the time it occurred and then aware of injury to victim?
(There & Aware)
·
Was the emotional distress severe?
(disinterested observer comparison)
o
Direct Victims vs. bystanders
§
Bystander liability- liability to those who are
witnesses to impact but who do not suffer it themselves
§
Direct victims- P is not a bystander but rather
a direct victim suffering NIED, even though she suffers no impact, even though
arguably no one suffers impact. Direct victim by virtue of a pre-existing relationship/duty,
not a garden-variety, foreseeability-based duty.
·
There is still a primary victim but secondary
victim not viewed as bystander
o
Burgess v. Superior Court
§
Facts: Infant born with brain damage due to
doctor’s negligence
§
Holding: Court held that the mother was the
direct victim and not a bystander. There
was preexisting relationship between mother and ∆ and ∆ breached
this duty. Any harm to babyà
harm to mother.
o
Molein Case
§
Doctor falsely informed wife that she had
syphilis and husband should get testedà divorce
§
Doctor owned duty to both husband and wife so
husband was the direct victim.
§
Damages of NIED may be recovered in complete
absence of physical injury or impact to anyone. Incorrect information can be
the source of the breach.
§
THIS CASE IS AN ANOMALY!
o
Marlene F Case
§
Psychologist treating mothers and their children
molested children.
o
Johnson v. State
§
Π
falsely informed by hospital that mother dead.
§
o
Boyles v. Kerr
§
Friends recorded guy and girl having sex and
tape shown around campus.
§
§
There was no primary victim to piggy-back on.
v
Injury to Personal Relationships (Loss of
Consortium)
o Consortium: the right of one spouse to the company, affection and service of the other
o There is a primary victim who is not the Π in loss of consortium case
o Historically only husbands can recover for loss of consortium if wife injured
o But now both wives can also recover
o Feliciano
v. Rosemar Silver
§ Πs living together like married couple but not legally married.
§
o Borer
v. American Airlines Inc.
§ Children filed for loss of consortium for the injures suffered by mother
§ Court held children can’t recover for such damages and only reserved for husband-wife relationship.
v Prenatal Harm, Wrongful Birth and Wrongful Life
o Fetal Injury
§
Werling v.
·
A viable fetus falls under the wrongful death
statute. So if fetus born stillborn, Π can recover
§ A few states require the child to be born live in order for the wrongful death cause of action to accrue
o Wrongful Birth
§
Fassoulas v. Ramey
· Π didn’t want any more children with abnormalities so D performed a vasectomy on the husband but sill had one normal and one abnormal child
·
§ Most court agree with Fassoulas that parents cannot recover cost of raising healthy child
§ Minority of courts permit recover for full cost of raising healthy child
§ Middle ground: permit recovery for coast of raising child to the extent exceed benefits parents get from the child
o Wrongful Life
§ This is where children sure for harm, even pre-conception harm
§ Very few jurisdictions permit this cause of action. Most allow parents to recover under wrongful birth, but permit child to recover under wrongful life only for extraordinary expenses
§ According to most courts, life (even with birth defects) is preferable to non-life.
§
Turpin v. Sortini
· A suit brought on behalf of deaf child against ∆ for failure of ∆ to inform the parents that the child could be born deaf.
· Court ruled that general damages can’t be recovered because will be too speculative. How can we tell how the child would have been if ∆ not negligent because then child was not going to be born at all!
· But can recover for extraordinary damages and expenses that entail such birth defects.
v Purely Economic Injury
o Traditional Rule- no recovery for economic loss unless there is physical harm- to the person or property
o
Barber Lies v. Donau
§ Even the pure economic loss to Π was foreseeable, ∆ cannot be held liable.
§ Extending liability to pure economic loss will lead to limitless litigation.
§ Exceptions
· Damages for financial harm are awarded to those who suffer physical harm
· Financial harm awards to family members
· Financial harm associated with negligent misrepresentation or fraud (e.g. accountants)
o J’Aire
Corp. v. Gregory
§
Π
a restaurant owner sues ∆ for lost profits for ∆’s negligent slow
performance in repair work that cause Π loss of business
§ Held: Π may recover for loss of profits from ∆. Where a special relationship exists between the parties, a Π may recover for loss of expected economic advantage (K based).
§ Some factors to consider to see whether special relationship:
·
The extent to which the transaction was intended
to affect the Π
·
The foreseeability of harm to the Π
· The moral blame attached to the ∆’s conduct
·
Degree of certainty that Π suffered injury
· Closeness of connection between ∆’s conduct and injury suffered
· Policy of preventing future harm
§ According to the court, the above listed factors and the requirement of proximate cause are enough to limit liability and the fears of unlimited liability are false.
o 3-part test: Foreseeability +
§ instances where the risk of harm is foreseeable and closely connected with ∆’s conduct
§ where damages are not wholly speculative
§ injury is not part of Π’s ordinary business risk
o People
Express Airlines v. Consolidated Rail Corp.
§ Facts: ∆ negligently caused chemical spill that resulted in evacuation of neighboring businesses. Π suing for lost business.
§ Held: ∆ owes a duty of care to take reasonable measures to avoid the risk of causing economic damages, aside from physical injury, to particular Π or Πs comprising an identifiable class with respect to whom ∆ knows or has reason to know are likely to suffer such damages from its conduct.
§ Identifiable class
· Identifiable class more than just foreseeable class. An identifiable class of Πs must be particularly foreseeable in terms of the type of persons or entities comprising the class, the certaintly or predictability of their presence, the approximate number of those in the calss, as well as the type of economic expectations disrupted.
§ General foreseeability vs. Particular foreseeability
· Particular foreseeability is higher standard.
v
Contributory Negligence, Assumption of Risk,
Comparative Fault
o Contributory Negligence[2]
§ The principle behind this theory is that every person owes a duty of care not only to others but also to himself or herself
§ Use the same negligence test: Dutyà Breach of Dutyà ACà PCà Damages
§
Butterfield v. Forrester