I.

Intentional Torts must prove tortious intent a. Tortious intent is: i. A volitional act AND ii. Purpose of tortious consequence OR iii. Substantial certainty of the tortious consequence (because if youre sure of the consequence, youre treated as if the consequence was your purpose, its the moral equivalent.) b. Transferred intent i. If you intend to hit A, and you hit B, the intent transfers ii. If you intend to commit one tort but actually commit another, the intent transfers (egg, if you intend to commit assault and commit a battery, the intent transfers as if you had intended the battery) c. Mistake doctrine i. The law assumes you are held accountable as if you did know the correct identity of the thing you acted on d. Recklessness i. The reckless actors state of mind is indifference to risk, when the effort to mitigate the risk requires far les of the actor than the risk (i.e., I could make this safer with slight effort on my part, but I dont care about the risk!) Thats the difference between an intentional act and a reckless act. e. Battery i. Prima Facie elements: 1. Tortious intent (to bring about the harmful or offensive touching) 2. An offensive and harmful touching (contact element, there must actually BE a harmful or offensive touching) 3. A Causal link 4. Offensive is judged based on the reasonable person construct a. If you are on specific notice a particular touching would be offensive, it could constitute a battery, even if such touching would not offend another person, because reasonable people dont go around touching people in manners they have been advised are offensive. f. Assault i. Prima Facie Elements: 1. Tortious intent 2. Of bringing about a reasonable apprehension of imminent battery 3. Causal link between the intent and the apprehension a. Essence of assault is the awareness you are ABOUT to be touched in an offensive or harmful way i. Battery does not require awareness, assault does ii. Assault is reasonable apprehension of offensive or harmful touching, while battery is if the offensive or harmful touching actually occurred. g. False imprisonment i. Prima Facie elements 1. Tortious intent (to confine) 2. Confinement 3. A causal link between the tortious intent (volitional act) and the actual confinement (you must INTENT to confine and there must BE a confinement) a. There must be awareness of the confinement OR actual harm b. No requirement to prove damages c. Confinement exists even if there is a reasonable means of escape if the confine does not know of it or if circumstances are such to make it offensive to a reasonable sense of decency or personal dignity, but he must use it if it only entails a slight inconvenience or requires him a technical invasion of anothers land

h. IIED i. Prima Facie elements: 1. Tortious intent (volitional action with at least substantial certainty of causing severe emotional distress) (or reckless in many cases) 2. Outrageous conduct 3. Severe emotional distress 4. Damages a. Requires proof of damages in the prima facie case, in fact, there is a heightened requirement of severe damages in that you must prove a particularly high degree of emotional distress b. Unlike other intentional torts, damages are not presumed c. Uses a flexible doctrinal policy standard unlike the bright line rule used in torts like battery i. I.e. outrageous and severe are flexible standards that lead to interpretation. Actual physical harm not needed for IIED i. Interference with Property i. Trespass to land 1. The right violated is the right to exclusive possession of the land 2. Prima facie elements a. A possessory interest in the real property b. Intent c. Causal link between the volitional act that forms the intent and the invasion d. Mental state required is a state of purposeful action or substantial certainty to create an invasion e. No requirement of a particular amount or type of damage. 3. Invasion could be with your person 4. Youre liable even if you mistakenly believed that the land was yours or that you had permission to be there. ii. Nuisance to land 1. Difference from Trespass is in the right violated in nuisance the right violated is the right to use and enjoyment of the land. a. Public Nuisance: 821B (1) a public nuisance is an unreasonable interference with a right common to the general public (2) circumstances that may sustain a holding that an interference with a public right is unreasonable include the following: i. (a) whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience or (b) whether the conduct is proscribed by a statute, ordinance or administrative regulation or (c) whether the conduct is of a continuing nature or has produced a permanent or long lasting effect, and, as the actor knows or has reason to know, has a significant effect on the public right ii. who can recover for public nuisance, one must have suffered harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference. IN order to maintain a proceeding to enjoin or abate a public nuisance, one must have the right to recover as indicated above OR have authority as a public official or public agency to represent the state OR have standing to

d. It is not false imprisonment to prevent someone from going in a particular direction in which they have a right or privilege to go, unless by threat of physical force upon the other going or attempting to go beyond the area in which the actor intends to confine him.

sue as a rep of the general public, as a citizen in a citizen action or as a member of a class in a class action b. Private Nuisance 821D a private nuisance is a nontrespassory invasion of anothers interest in the private use and enjoyment of land. iii. Trespass to chattel 1. Elements a. Intent b. Interference with owners right c. Causal link d. Actual DAMAGES REQUIRED because a lot of people come into contact with other peoples property, if we allowed lawsuits for this without damages, we would have a real problem, we require damages to prevent frivolous suits iv. Conversion 1. More serious degree than trespass to chattel 2. should have to pay full value of property to because they deprived so substantially of their right to the property that they converted it just as if they stole it and lost or destroyed it. 3. Factors in determining conversion: The extent and duration of the actors exercise of dominion or control, the actors intent to assert a right in fact inconsistent with the others right of control, the actors good faith, the extent and duration of the resulting interference with the others right of control, the harm done to the chattel, the inconvenience and expense caused to the other j. Defenses to Intentional Torts: i. Consent defense that must be proved 1. Can negate offensiveness of touching and confinement 2. If the definition of the tort includes unpermitted action, consent means it isnt a tort negates prima facie case 3. Consent to sport only extends to injury permissible within the rules of the game and does not extend to intentional causation of injury outside the game or violation of safety rules during the games. 4. Consent can be vitiated a. By misrepresentation that is material to the point in question i. Scattergood DeMay- misrepresenting a person as a medical professional DID vitiate consent to allow him to touch the wife ii. McPherson- husband misrepresented fidelity, but absent evidence he knew or should have known he was infected with STD, the misrepresentation not to material fact does not vitiate consent. (Material fact was STD status, not fidelity) 5. Consent may have been exceeded 6. May have no objective manifestation 7. May be consent to an illegal act (cant) 8. Can be revoked 9. Can be defeated by non disclosure ii. Self Defense 1. Right if there is a real danger or a reasonable belief that there is a danger 2. Right ends when the danger abates- only allowed to utilize the amount of force reasonably believed to be necessary to prevent attack. You may be liable for the excess if excessive force is used, but it doesnt vitiate the privilege. 3. Can be asserted to prevent or resist an attack but not to retaliate 4. Deadly force allowed only if a. You reasonably believe that doing so is necessary to resist an attack of deadly force

II.

b. Completely safe retreat is not available (except that you need not flee home or business before using deadly force) c. If there is reasonable doubt as to safety of retreat, defender may stand and kill 5. Right to defend others a. You may use force to protect others from attack so long as you have the reasonable belief that force is necessary i. Some jurisdictions do not allow for erroneous but reasonable belief, but most do. 6. So the questions to ask in self defense are: a. Was the force justified to start with? b. What level of force was justified? c. How long was force justified for? iii. Defense of Property 1. You may protect property with reasonable force a. Protect against dispossession or destruction i. May not attempt to recapture property once taken unless 1. Under the limited privilege of fresh pursuit of goods when you may a. Retrieve goods b. Detain only in order to call law enforcement ii. Reasonable force does not include that which is likely to 1. Take life 2. Inflict great bodily injury iv. Necessity 1. Public 196 Restatement (third): One is privileged to enter land in the possession of another if it is, or if the actor reasonably believes it to be, necessary for the purpose of averting an imminent public disaster 2. Private 197 1)One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to a. The actor, or his land or chattels or b. The other or a third person or the land or chattels of either, unless the actor knows or has reason to know that the one for whose benefit he enters is unwilling that he shall take such action 2) Where the entry is for the benefit of the actor or a third person, he is subject to liability for any harm done in the exercise of the privilege stated in Subsection (1) to any legally protected interest of the possessor in the land or connected with it, except where the threat of harm to avert which the entry is made is caused by the tortious conduct or contributory negligence of the possessor. Negligence a. Prima facie elements i. Duty ii. Breach iii. Cause in fact iv. Legal cause (limits liability even when theres a breach v. Damages b. Proof of Negligence dont destroy evidence, judge could direct a verdict or instruct the jury to presume the evidence against you i. Types of evidence: Expert testimony, circumstantial, direct, physical evidence, testimony ii. Particularly eyewitness testimony iii. Admissions (i.e., other driver got out and said oh, Im so sorry, its all my fault) iv. Circumstantial- facts that together create an inference that a certain thing was more likely than not c. Substandard care

d. Reasonable person i. Reasonable person construct how an objective, fictive, prudent person SHOULD act under the circumstances 1. Unique characteristics of the actor a. Lesser intelligence usually not relevant (Vaughan v. Menlove fire in the haystack) b. Physical disability is relevant (Roberts v. State of Louisiana blind man in the office) we ask about conduct of a reasonable person with that same disability. i. Because, for example a blind person cant see dangers, a person with one leg cant run, etc. Old age only taken into account insofar as it relates to a physical disability (80 yr old w a walker cant run away from a hazard) c. Higher standard for special skills i.e., doctor we ask what a reasonable doctor of the same type would do. Electrician , etc. i. Policy because the other party (usually) probably relied on the representation of advanced skill before entering the relationship. Doesnt usually apply to incidentals, ie, if an expert skier and novice skier accidentally collide on a slope. Dont want to encourage people to not know what they are doing. Would be diff. if it was a ski instructor/student. Some exception for beginners (ie, the instructor probably cant sue the student, he KNEW student didnt know what they were doing, but if student hurts a third party, they will be successful, beginner status not considered) d. Children i. A child of like age, intelligence, and experience (majority view) ii. Adult activity exception- usually limited to licensed activities like driving a car. (Majority view) iii. Child under 5 incapable of negligence 10 (SOME jurisdictions) iv. POLICY: children are less able than adults to maintain an attitude of attentiveness to risk their conduct may cause and to understand risk and alternative courses of action/appropriate choices. Third parties encountering a child, say, driving a car, cannot adjust their behavior to make allowances for a childs proximity. e. Custom- if an actors behavior complies with the customs of community or others in like circumstances, it is evidence of non-negligence but not dispositive. Departure from the custom above in a way that increases risk is evidence of negligence but not dispositive i. Policy- evidience actor has complied w custom in adopting some precautions may bear on whether others were available, feasible, and actor shouldve known of them (if others usually take same course of conduct, ordinary care has bearing on reasonable care. NOT conclusive) ii. In the case of a business with a policy standard, action less than that will show negligence, because the existence of the policy eliminates any claim by that the risk was unforeseeable. may have relied on the standard. May or may not be admissible. e. Violation of statute i. Breach of a statute establishes negligence per se 1. Conclusive of the breach element of negligence (breached by being negligent) not of the larger tort of negligence, other elements must still be proved (ie, if a person driving drunk is rear ended by the other driver, there is negligence per se but that wasnt the cause in fact) a. Some state (OR included) view statutory violations as only a presumption of breach negligence 2. If it establishes negligence per se, we ask:

III.

a. What is the purpose of the statute b. Would the purpose be defeated by compliance? (Tedla Pedestrians on the wrong side of the road because of traffic) c. Was it the type of harm designed to be protected against? (Gorris sheep on the ship) d. Was the class of persons designed to be protected? (Potts employee and banana spiders) 3. Complying with a statute is evidence of nonnegligence but does NOT preclude a finding of negligence. (unless a precaution that couldve been taken wouldve required violation of the statute not negligent for failing to adopt violational precautions. f. Res ipsa loquitur i. Highly doctrinized subspecies of circumstantial evidence 1. The doctrine implies the court does not know and has no way to find out what actually happened, so likely negligence is derived from knowledge of the causes of the type or category of accidents involved. There is a risk of error, uncomfortable bc can be found neg. w/out any evidence of actual conduct- leads to circumspection in application. ii. Facts that together create an inference that a certain thing was likely (17 The factfinder may infer that the defendant has been negligent when the accident causing the plaintiffs harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is the relevant member.) iii. Just evidence, not conclusive iv. Three Prong Test 1. The accident must be of a kind which ordinarily does not occur in the absence of someones negligence 2. It must be caused by an agency or instrumentality within the exclusive control of a. Be careful with this, if buys a car, next day brakes fail, would not have RIL over driver, even tho he had exclusive control at time of accident, but might have RIL over manufacturer of brakes/car. 3. It must not be due to any voluntary action on the part of g. Failure to Warn- a whose conduct creates a risk of harm can fail to exercise reasonable care by failing to warn of the danger if (1) the knows or has reason to know (a) of that risk and (b) that those encountering the risk will be unaware of it AND (2) a warning might be effective in reducing the risk of harm. must still exercise reasonable care to protect against risk despite warning. Factual Causation a. We require this link to the damages, because there are breaches all the time, but we only hold people liable who actually cause the damages. b. But for test BUT for the negligent act, the injury would not have occurred. Existence of other causes does not affect whether the specified conduct was a necessary condition if harm would not have occurred absent the specified conduct c. Limited Purpose substitutes: i. Substantial Factor test 1. Independent, concurrent and sufficient causes 2. If two causes concur to bring about an event, and either one of them, operating alone, would have been sufficient to cause an identical result, some other test is needed 3. Substantial factor used most often in toxic tort cases a. Four major types of cause in fact issues in toxic tort cases i. Was there exposure at all? (Contains different issues, i.e., did they dump a toxic substance at all? Prove the toxic substance did get delivered to the s one way or another? What type of exposure? Inhalation? Skin contact? Ingestion? How much exposure? For how long?

ii. General causation: can that exposure to this toxic substance in roughly the amount of range likely cause the specific injury/illness alleged? iii. Specific causation- DID it cause the effect? Can be other exposure or factors that might cause the type of injury/illness iv. Who is the ? Is the alleged responsible for setting into motion the chain of events? (Indeterminate issue) b. Cant recover for increased risk absent damages in a toxic exposure case. i. Policy- if paid out for increased risk, might end up paying a lot for damages that never come to fruition, leaving less money for those with actual illness or injury to recover, so you must show actual physical illness or injury. c. Signature diseases known to be only caused by that source (i.e., asbestosis causes signature diseases, including mesothelioma which is caused by asbestos in 99% of cases. i. Signature disease proves causation element, you dont have to prove it outside that. ii. Alternative liability 1. Goes to the indeterminate issue 2. We must have all the possible s brought into court, we must prove they all acted wrongfully and that one of the wrongful acts did, in fact, cause the s injury (though you dont have to prove WHICH of the acts caused the injury, just that it was ONE of them) All must have acted tortuously to invoke alternative liability 3. Then the burden shifts to the s to try to prove that their particular action did not cause the injury. If they cant they will be jointly liable. 4. Summers V. Tice, 2 hunters fired at the same time, hit the third, no way to say (in the 1940s, no ballistics) whose round caused the injury, and they were jointly liable. 5. Most courts will only apply this with a few potential s, not numerous. iii. Joint & Several Liability 1. Same effect on s as contributory negligence did on s. Both were all or nothing rules. 2. Exists at common law in three situations: a. Concerted action- still exists even in states that have abolished J&S otherwise, the whole idea is that the wrong IS the conspiracy b. Common duty- something like a common duty to maintain something like an elevator (where both the building owner and a maintenance co. were liable) where since there was a common duty and common control, they can be jointly and severally liable, or where both a driver and owner are liable for bad brakes on a car c. Independent negligent acts that have caused an indivisible injury, d1 and d2 are both the but-for causes and are jointly and severally liable. 3. Contribution was the way the harshness of J&S would be ameliorated, because the D that had to pay could seek contribution from other Ds for their share. Made J&S more palatable, but doesnt work so well with phantoms and turnips. 4. 2 methods used in a contribution case: a. Pro rata method 2 s, 50%, 3 s, 33 1/3%, and so on. Divided equally among number of b. By fault0 contribution based on % of fault assigned to a given . 5. Dont need contribution actions if you abolish J&S liability, though some states keep J&S for intentional tortfeasors 6. Indemnification is a common law doctrine that mitigated the harshness of J&S doctrine, a dollar for dollar recovery for what you spent (insurance cos sometimes have, sometimes secondary retailers held liable on products liability theory)

7. Workers compensation bar: employee cant sue employer, only can get workers comp. A third party claim by employee against a third party is allowed, but the third party generally cant get contribution against the employer for policy reasons, it would defeat the purpose of workers comp to allow it- a back door around workers comp exclusivity bar 8. Comparative NEGLIGENCE compares s fault to s fault 9. Comparative RESPONSIBILITY aka comparative FAULT compares fault of the s against one another iv. Concerted action 1. Parallel action isnt necessarily indicative of concerted action, there may be other reasons for parallel action. You must have evidence of some collusion to create the concerted action of tortious acts. a. Buchanan v. Vowell (mom on phone with drunk driver daughter, driving behind) b. It is enough to simply encourage the tortious conduct or to provide substantial assistance v. Market share 1. Each (usually used in DES cases) is held liable for damage in a percentage proportionate to his or her share of the market for the toxic product/drug. Generally has been limited to DES cases because the victims were exposed in utero and there were not records of who gave which product to which mother, pills were fungible. Exposure often not apparent for 20-25 yrs. after 2. made reasonable attempts to discover, but there was no reasonable way to do so (records were not kept from back then, harm took 20 years after neg. act to eventuate.) vi. Lost opportunity doctrine 1. If the alleged negligence substantially contributed to the reduced chances/opportunity a. Grant v. Red Cross- no lost opportunity because chances werent high enough, inability to prove cause in fact. b. If a greater than 50% chance (more likely than not youd survive before the negligence) then you have standard but-for causation, not lost opportunity doctrine d. Damages apportioned to causation (apportioning harm caused by multiple tortfeasors) i. Different from alternative liability, which is where only one caused the harm but you cant tell which. Here, they all caused harm, but we dont know which harm was caused by which . ii. If you cant separate the harm caused by each successive act of negligence, you must treat it as an indivisible injury (Holtz v. Holder) iii. POLICY- it is better that negligent s pay than that the innocent victim isnt compensated. A whose tortious act could have caused the injury should be off the hook bc another person caused injury too. iv. We dont shift the burden of proof to the if there is a contributing pre existing condition, though we do in multiple tortfeasor/alternative liability cases. (BLATZ v alina health system) In those cases, burden of proof on to show they didnt cause an individual injury v. Independent acts that are all negligent and join to cause injury 1. Multiple and sufficient causes- each would have been a factual cause in absence of other acts, regarded as a factual cause IV. Proximate Cause/legal cause a. Sum it up in one word: LIMITS. Without proximate cause, we do not impose liability b. Even though you have a breach in duty , that has a cause in fact, of damages/injury, you may still not have liability if you do not have proximate cause c. Scope of Liability i. 4 situations limit:

1. Unforeseen consequences a. Older rule, the Polemis case. The court rejected the foreseeability as a test at that time. The rule then was, did the harm directly result from the negligent act. (I.e., dropping the plank caused the explosion/fire, so liability even though fire wasnt foreseeable) hindsight perspective b. Wagon Mound case- forward looking. Type of harm must be foreseeable under Wagon Mound. c. What types of consequence? If an extent of harm, EGGSHELL SKULL rule, you take your victim as you find them. So if you could foresee the type of harm, you are liable for the degree/extent of harm even if it was unforeseeable. i. The converse is true, if a person is stronger than usual, you arent liable for the average (greater) harm, just what you actually caused. (We hold you accountable for the degree you caused if the type was foreseeable, whether that was more or less than the usual. d. Unforeseen mechanism doesnt matter either, if the harm could be foreseen but the way it came about couldnt be, it makes no difference, is on the hook. 2. Unforeseeable a. Palsgraf i. must be foreseeable when looking forward at the risks, is the in our view? Is he/she a foreseeable person to whom harm can come? ii. Judge Cardozo conceptualized the issue in such a way as to turn it into a duty issue (and by so doing, turns it into a judge issue, not a jury issue. Duty issue makes it an issue of law, doesnt go to the jury. So it isnt what a reasonable jury thinks.) iii. I.e., if youre saying that the conduct was negligent because a or b, then you have to see if your is in a or b. iv. Breach analysis- looks at foreseeable risks, and then weighs them with the hand formula. 3. Intervening or superseding cause a. Traditional common law approach, where D1s act is negligent and D2s subsequent act is negligent, should D2s negligence cut off responsibility for D1s negligent act? i. Older cases tend to say yes, but newer cases not so much, because D1s negligent act has increased the risk of D2s negligence. 1. Braun v. Soldier of fortune magazine hit man ad a. Court said even though criminal act, not intervening cause because the publishing of the ad increased the risk. ii. Sometimes the negligence of D2 does require us to cut off liability of D1 iii. If D2s action comes after D1s act of negligence but before the injury, it is intervening. iv. If it cuts off all liability to D1, it is superseding. v. If the negligent act of D1 increases the risk of D2s negligence, then D1 should still be on the hook. vi. If D2s conduct is criminal, generally not fair to hold D1 responsible vii. If D2s act is willful, more likely to be superseding. 4. Rule of thumb a. Subsequent medical injuries (D1 is still responsible if medical providers aggravate the injury with a subsequent act of negligence b. Rescuers (non professional rescuers injured in the course of rescuing, D is liable to rescuer just as the original party. If negligent to the first party, also negligent to his rescuer. (bc danger invites rescue)

V.

Duty a. Duty is for the judge, so some judges indulge in Dutification, making what should be an issue of foreseeability (for the jury) into an issue of duty. b. General negligence duty the general duty in ones actions not to create foreseeable and unreasonable risks to other people i. Default- always applies unless 1. A special duty applies a. Doctors, Lawyers, Innkeepers, etc. 2. A limited duty applies c. Limited Duty (no duty rules are matters of LAW , scope of liability one of FACT i. When liability depends on factors specific to the individual case, appropriate rubric is SCOPE ii. No privity iii. No duty (nonfeasance, no duty exists) 1. Remember, General duty applies to the person who created the risk. An actor whose conduct has not created the risk to another has not duty of care to the other unless there is an affirmative duty applied (ie, by statute, relationship, prior conduct) a. Policy: liberal tradition of individual freedom and autonomy. Dont want to create a general duty of self sacrifice. However, this results in the law condoning an actors failure to assist another in mortal peril, even when they could do so at little cost to self. Tension resulting reflected in some of the exceptions: iv. EXEPTIONS to nonfeasance: 1. Sometimes, if you look at a broader period of time, what appears to be a nonaction is really an omission over a larger course of conduct 2. Prior conduct if the conduct creating the risk has ceased, but the risk continues 3. Relationship with w perp, relationship with vic 4. Control instrumentality 5. Volunteer (Undertaking voluntarily rendering services, gratuitously or by contract, on behalf of another. Equally applicable to altruistic and nonaltruistic acts, just must have knowledge that the undertaking will reduce the risk of harm to another, need not know if the other will rely on the undertaking. Duty is imposed in this situation if the failure to exercise reasonable care in this situation increases risk of harm or the person relies on the volunteer exercising reasonable care. 6. Statutory obligations- some statutes might specifically grant or bar a private cause of action, but when it has not, the court may consider the legislative purpose to decide if it justifies adopting a duty the common law did not previously recognize v. NIED 1. Limited duty doctrine a. Can get for: physical injury b. IIED c. Impact test must be impact, however slight, to have NIED d. Zone of danger test single, traumatic incidents was personally in the zone of danger e. Bystander theory (Dillon v. legg.)

5. Policy driven rule (i.e., DES limits cases to daughters, not granddaughters and so on, we have to draw a line somewhere) a. We dont want over deterrence, it would burden economic activity if people were constantly guarding against unforeseeable risk. b. We are more likely to ignore this (proximate cause) in intentional torts or find a way to resolve in favor of s. c. NY fire rule (first house only, made no sense but illustrates a policy driven legal cause rule)

i. 3 factor test 1. Nearness: proximity located in such a way as to personally experience it 2. Nowness: contemporaneous observance (this is a definite element, not a balancing test) 3. Closeness: relationship between the parties vi. Economic Loss Doctrine 1. Pure economic loss is when there is ONLY economic loss absent injury to person or property 2. The general rule is that there is no recovery for economic loss absent physical damage to person or property. Generally, ELD is considered part of a limited duty. Economic loss doctrine BARS recovery, the exceptions ALLOW recovery Exception: attorney malpractice 3. Mass Torts a. Testbank- only fishermen got to recover because they had a proprietary interest in the fish (though they dont own them) b. Courts are concerned about unlimited liability; want to draw bright lines to prevent. c. TESTBANK BAR you must show a proprietary interest in order to recover. 4. Product sales a. If I buy a product, that by sale contract should define the risks of some loss that results from that product use, contract can provide the answer here. vii. Occupiers of land 1. Common law refused to impose a general duty of care, the default rule doesnt apply except as to those states where the common law has evolved to apply it 2. Sanctity of real estate, ownership of real property 3. Who is an occupier? Not just owners- it is a person who occupies with intent to control 4. Two major contexts a. Inside the land i. Duty to entrants on the land with regard to: 1. Conduct by the land possessor that creates risk to entrants on the land 2. Artificial conditions on the land that pose risks to entrants 3. Natural conditions that pose risks to entrants (ice, snow, etc) 4. Other risks to entrants when an affirmative duty is applicable ii. Risk must be one that is known by the possessor or could be reasonably discovered by him iii. Precautions taken may be durable (like a sign) or transient (oral warning) b. Outside the land i. Duties to those NOT on the premises- you might be responsible for people injured off your land if it is a result of activities on your land 1. Not responsible for natural conditions, but if a condition is artificially created you can be liable to injuries off your land due to the artificially created condition. 2. Commercial land, if know of risk or its obvious, duty as to natural conditions (ie, businesses have to clear snow and ice) must inspect c. Invitee, licensee, trespasser (no longer used in most jurisdictions as a bright line) i. Invitee is a business purpose ii. Licensee is a social guest iii. Trespasser is a one who enters or remains without possessors consent or other legal privilege

VI.

VII.

viii. Recreational Use statutes1. The owner does not have a duty for the entry or use of others for recreational activities (electric fence trespasser) a. Does not apply to commercial recreational areas, like waterparks. Breach a. What happened? Was the conduct reasonable? b. Emergency doctrine- special jury instruction to take into account the circumstances of an emergency c. Custom of Industry i. Evidence, not conclusory ii. Whether industry custom followed or not, it is merely evidence (TJ Hooper tugboat radios) d. Statutes i. Compliance with a statute is not conclusive of no risk/breach, you can still create an unreasonable risk. e. Hand formula B<PL i. B= burden of precaution (i.e., cost of mitigating the risk, making it safe) ii. P= probability of risk occurring iii. L injury (loss gravity/severity of injury/loss that results iv. Liability depends on whether B is less than L multiplied by P. If the burden is low and the probability and/or magnitude is high, liability is more likely. v. Also takes into account the economic benefit of continuing the activity and non economic costs (i.e., ruining an experience) Damages a. Compensatory damages i. Purposes of compensatory damages: 1. To compensate the injured party 2. Accountability 3. Money is the only way in general that a jury has to do justice 4. Single judgment rule- most settle. Very few go to trial and when they do, we only want to hear them once. We dont want to have to do continual updates for more damages. ii. Three options for review of damages: 1. Grant a new trial (award excessive, product of bias on the part of the jury, new trial overall) 2. New trial on damages or only on part of the damages 3. Remittitur (reducing the damage award amount) gives them a choice of taking a lower award or retrying the case iii. Two types of damages 1. Economic a. Future earnings losses (requires calculations) b. Past medical expenses c. Lost wages d. Future medical expenses, e. Care costs (past and future)

1. From when you discover a trespasser you have a duty of reasonable care as to your activities. 2. Frequent trespassers in a limited area, you have a duty to warn of known hazards (i.e., if there is a common shortcut through a property) 3. Child Trespassersa. Attractive nuisance imposes a duty of reasonable care on the landowner, not to have hazards that are attractive to children, must take reasonable steps.

iv.

v.

vi.

vii.

f. Loss of family services (whatever was done in the home) g. Some economic damages are discounted once calculated h. Collateral source rule i. Prohibits the admission of evidence that the s damages were or will be compensated from some source other than the damages awarded against the . For example, evidence that the s medical bills were paid by insurance is generally not admissible. ii. Some tort reformers say this is a windfall or double dip for the , but that is an oversimplification. has paid into their insurance, first of all, and insurance co often has a right to be paid back out of any award, so actually loses out in that case. i. Special vs. general verdict i. General verdict just ask the jury, who wins and how much money. ii. Special verdict shows the breakdown of damages and possibly liability. Detailed components like economic damages, medical, wage loss; noneconomic, pain and suffering, loss of enjoyment, etc. iii. Defense might like special form for liability, but probably rather a general verdict on damages, juries tend to award more if it is broken down into small component parts ( likes) iv. Overall, system perspective, the special form, focuses the juries attention on the specific issues, avoids distraction. 2. Noneconomic a. Pain and suffering b. Past and future emotional distress c. Loss of enjoyment of life Insurance1. Juries might think it makes a difference if a has insurance, so most of the time you cant bring up the existence of insurance for the jury. a. For a time, you couldnt even get discovery about insurance existence, policy limits, etc., so it made it harder for s to know how much to argue for in settlement negotiations i. No point in arguing for more than the policy limit if the is a turnip. Taxation: 1. Punitive damages are generally taxable by IRS 2. Compensatory damages generally are not taxable a. Idea is that compensatory damages are to make up for a loss, so you arent really gaining anything (if you get compensated for losing an arm, you shouldnt be taxed) Wage loss damages are not taxed 3. In most states, we do not tell the jury about the taxability/tax consequence of the damages they award (dont want them adjusting for that.) Recovery for increased risk: 1. We dont compensate for increased risk unless it increases to over 51% (because then the increase has made the harm more likely than not) a. Policy reasons, dont want compensation dollars wasted on people who dont have an illness/injury and leave those who have eventuated the risk with no recovery at all. b. You cant get anything for worry/fear about the risk (that would be NEID, need impact/zone of danger/bystander rule) Attorney fees: 1. You can get them if it says so in your contract

2. Sometimes you get them by statute to the prevailing party (i.e., anti discrimination employment cases) 3. The typical rule if neither exception applies is that each party pays their own fees a. How would a loser pays provision affect tort cases? i. Might reduce number of frivolous cases, but it also might discourage people who have less means from bringing a valid suit. b. Wrongful death/survival i. Survival actions are the decedents losses that survive his or her death. Some states require filing prior to death, others you can file after death as well 1. Pain and suffering before death 2. Loss of income expectancy (less whatever is paid for lost support in a wrongful death action,) 3. Burial costs (can also be in wrongful death) 4. Subject to claims of creditors (because this is an action for the decedent. ii. Wrongful death is the dependents claim 1. Pecuniary damages, Loss of support, etc. You have to show how much of their yearly income was spent supporting the spouse and or children. 2. Not subject to claims of creditors (because it is for the beneficiaries. iii. Same facts give rise to both types of cases 1. Statute will typically say who can sue for wrongful death and who can recover (sometimes its the same people sometimes not) c. Punitive damages i. To punish people for bad behavior ii. Targets: banks, insurance companies, product manufacturers, foreign companies iii. Only 4% of winning claims get punitive damages according to one study, and usually relatively small amounts. iv. Oregon has a state fund that takes 60% of punitive damage awards, money goes to society. v. Should evidence of wealth matter? Should the rich pay more? vi. Deterrent effect have to pay enough to defer/punish vii. Why do we hold the corporation responsible for acts of individual people? 1. Most states follow some version of the restatement, which says, if it is a corporate high office, that person is closely enough identified with the corporation to hold them responsible. For lower ranking employee, need some complicity of the company (i.e., Exxon knew the captain was drinking, knew about relapse, did nothing) viii. Ten limits to Punitive damages: 1. Some states dont allow them at all, and some states dont allow in certain types of cases 2. Jury rejects punitive damages in the majority of cases that are submitted to them 3. The concept that you need more than just negligent conduct for punitive. Need either intentional conduct or negligence plus, something like malice or egregiousness (ORwanton disregard for health and safety) risk creating a gross deviation from the standard 4. Whereas normally in civil litigation proof level is preponderance of the evidence, standard for punitive is clear and convincing. 5. Trial court has a role in deciding before there is ever a verdict whether there is sufficient evidence to go to a jury, throw most out. 6. Courts have available in some states the concept of bifurcation, where you separate out the liability issue from the damages issue (disadvantage to s to separate the damage phase from the conduct determination phase) 7. Trial courts can review damage awards for excessiveness, and in most states do so. Court can always set aside, or order remittitur if they dont like the award

VIII.

IX.

8. Appellate court is going to review the award again and can also set it aside if product of passion or prejudice 9. Some states limit punitive damages, methods include ratio (i.e., 2:1 or 1:1 w compensatory damages) some states have a flat cap, some states have a limit that is a percentage of income or net worth cap 10. Fund idea: who gets the punitive damages? Many states adopted state fund idea- take share of punitive awards to use for public purpose. 11. Also, federal due process limits. Supremes have said that this means there are limits on the amount of punitive damages awarded. Three guideposts; a. Reprehensibility of s conduct (the more reprehensible the larger the award is justified) b. Ratio of compensatory and punitive damages c. Look at the analogous state criminal penalties for that conduct (corporate violations usually have minimal fines so this factor tends to strongly favor s) 12. Supremes said reprehensibility is the leading guidepost but in reality the ratio idea has become more and more important. a. Court said there is a process requirement for awards i. States must have an appellate court that reviews the excessiveness of awards. ii. Only in-state conduct is at issue. Doesnt make a difference if the has engaged in conduct all over the place, jury should only focus on what happened in the states. (Does this make sense in a national economy? What about state sovereignty?) iii. Cant punish for harmful conduct to non-s. Vicarious Liability a. Respondeat superior (employer held responsible for employees torts) i. Time and place of employment ii. Act and purpose iii. Serve employer iv. Intentional torts are not usually in scope of employment with a few exceptions. b. Independent contractor with respect to nondelegable duties i. Inherently dangerous c. In law partnerships, each partner liable for malpractice of every other partner d. Automobiles, the bailor is responsible for negligent driving of bailee e. Parents are held responsible in some states for some intentional torts of their children. Proportionate Liability a. Affirmative defenses to Negligence i. Contributory negligence 1. Still the law in a few jurisdictions, and the law that kicks in when a modified comparative negligence case gets past the 50 or 51% fault trigger 2. Complete bar to recovery 3. Abolished in most states, led to the same thing on the defense side, no all or nothing rules. 4. Doctrines that softened contributory neg: a. Last clear chance on the relative fault of the parties (whoever had the last clear change to avoid the injury) b. Willful or wanton conduct successful characterization of the conduct as willful or wanton negligence can defeat contributory negligence. ii. Comparative negligence 1. Most states enacted modified comparative negligence via statute bar kicks in at 50 (less than) or 51% (not greater than so in these states at 50/50 the recovers.)

iii. iv.

v. vi.

a. This doctrine in many states has resulted in the elimination of joint and several liability, under the thought that if we eliminate the all or nothing rule for , then we should eliminate it between s and institute a type of comparative fault doctrine i. E.g., OR has a modified comparative fault negligence statute, it is a not greater than statute, ties go to , we aggregate the fault for comparative purposes, i.e., if there are 3 s at 20% each, then the with 40% fault would still recover. (3 s aggregated to 60%) 2. A few states have pure comparative neg, where recovers for % of fault, even if is 95% and is 5% 3. Most states have abolished last clear chance into comparative negligence 4. In some states, willful/wanton is still a complete answer to s neg. but in some states it is folded into the comparative neg. calc. 5. Generally you aggregate the s liability a. Contribution action allows D1 who had to pay more than their fair share under joint and several liability to go to D2 and ask for reimbursement for D2s share of fault. The net result, if contribution action took place, would be fair. Without joint and several liability, each is responsible only for what they actually caused. b. Turnips and phantoms- because D 1 cannot collect in a contribution action from them (turnip=judgment proof, phantom = cant be found/served) i. In a comparative fault jurisdiction, the risk of phantom/turnip is shifted to . ii. Therefore, some reallocate the phantom/turnips share according to fault percentages iii. So if there is 100K damages 1. Fault = P 40% a. D130% b. D230% c. In a J&S jurisdiction, D1 on the hook for 60K. In CF jurisdiction, d1 pays 30k, then the other 30k is reallocated 3/7 to d1 and 4/7 to P. (bc they total 70% so 7ths) d. In OR, our comparative fault act reallocates the share of the phantom/turnip according to fault % within one year after appeals exhausted (as in c above) Duty to mitigate after the injury 1. Post accident conduct by the victim that was a cause of some of the injury or damages. Examples: duty to get medical care, duty to seek employment Duty to take advance precautions before the injury 1. (i.e., failure to avoid consequences) pre accident conduct by the victim that did not cause the accident but was the cause of some or all of the injuries or damages a. example, seat belts- the old rule until the mid 80s was that there was no duty to wear a seat belt, and you couldnt introduce lack of seat belt evidence, would be grounds for a new trial. After seat belt laws, admissibility of seat belt evidence began to shift. b. Policy favors having some contribution for the s fault for not wearing a seatbelt but not making that bar recovery. Imputed contributory negligence (i.e., family purpose doctrine, teenager driving car) Express assumption of risk (release on ski ticket) 2 Key issues: 1. How broad is the assumed risk? Does the document in question (waiver, etc.) cover the situation in question? How broad is the document in terms of waiver/release

X.

2. Assuming the release document covers the situation, does it violate public police? Trend is towards saying parties are free to assume a risk if they wish to, fewer public policy arguments a. Hojinowski v. Van Skate Park i. Waiver limits liability to intentional torts (i.e., unless there is a hazard they INTEND to hurt people) could argue thats overly broad. You construe ambiguity against the institution that seeks the waiver. ii. Set of factors the court applies (Tunkl factors pg 400)*** vii. Implied secondary assumption of risk (voluntary encountering of a known hazard) 1. I.e., you voluntarily agree to let your friend drive a speeding car, you have assumed the risk in an implied fashion via conduct 2. Subjective state of the actor is important. Did the actor subjectively understand and appreciate the risk and consent by their conduct (not a reasonable person but THIS actor specifically) 3. Some states abolished this and folded it into the comparative negligence analysis. In those states that have maintained this doctrine, it is a complete defense, it doesnt just reduce liability as it would in a state that folds it into the calculation viii. Implied primary assumption of risk (risks are inherent to the nature of the business so the risk is assumed when you use the business) 1. This is really a limited duty doctrine, i.e., if you run an adult recreational operation, there are some risks inherent to the sport and a person is assuming those inherent risks merely by participating. Court created limited duty doctrine. ix. Both Ways Rule 1. In any situation where the actor might have vicarious liability, then by the same token, when the actor sues as a , they carry the vicarious liability. a. E.g., through respondeat superior, they are negligent of their own employee, then the converse is true, if the employer is suing someone else, the employer must still bear the burden of the employees negligence b. Motor vehicle exception to the both ways rule exemplified by continental auto lease corporation v. Campbell c. s actions are derivative White v. Lunder *** b. Statutes of Limitations & Repose c. Time bar Immunities originally creations of common law, now also heavily statutory a. Workers comp is a type of horizontal preemption that says you cant sue in tort; youre limited to workers comp. b. Charitable i. Oregon archdiocese case Catholic Church child abuse. A question of scope of employment, wouldnt have had a ruling like that if we still had the doctrine that charitable organizations including churches are immune ii. Based on several ideas, one that the charity has assets held for certain purposes, not to go to s lawyers iii. What happened in many states, charitable immunity was eroded and then abrogated by judicial decisions? Courts began to look at rationale and say, well, if youre injured by a vehicle driven by a church official, you should be able to sue the church. The abrogation of charitable immunities is what made current child abuse cases possible. 1. The doctrine is abolished in general but there may be some statutory exemptions (like partial immunities for boy scout troops, etc.) c. State and local government i. The legislature has lowered this shield in some states (torts claims statutes, etc.)

XI.

ii. Notice period procedural issue, present in most state statutes, 60 to 180 days to give notice of a claim in the certain way specified in the statute caps (aka tort claims statutes) lowers shield but establishes caps on liability (OHSU baby brain damage case) 1. Usually address and often rule out punitive damages 2. In addition to the procedural rules theres the substantive waiver of sovereign immunity itself, often a general waiver with exceptions, if you fall under one of the exceptions you fall back under sovereign immunity iii. MOST IMPORTANT: DISCRETIONARY FUNCTION EXCEPTION- Also the most common 1. Wide variance in how states define discretionary, doesnt give you much guidance as to what will be considered discretionary function, not much descriptive power in the phrase itself, describes a conclusion 2. Judges cant be sued for rulings, prosecutors, etc., legislative immunity 3. First thing to ask: is there a statute? Tort claims statute? 4. RISS: Specific threat from a specific individual- be police owe such a broad duty to everyone, there is no particular duty to anyone (limited duty doctrine) duty of generalized care limits duty to individuals d. Federal government i. Federal tort claims act ii. Discretionary function exception 2680(a), lots of cases iii. Originally said, is it operational or policy? 1. If operational, discretionary function exception did not apply, but if a policy decision it did (Pre 1991 Gaubert S&L case) 2. Operational decisions are discretionary now if they are grounded in the policy of the regulatory regime (Gaubert) 3. Cases that fall outside discretionary function: not grounded in policy, like a violation of regulation, driving of a car, a decision involving no choice or judgment 4. Merando case: policies on removing trees with limited resources actions are susceptible to policy analysis, Gov. argued for a discretionary function exception and won. 5. Area of non-liability/immunity is still larger than area of liability because the discretionary function exception erases so much liability. e. Spousal immunity i. Most states have totally abrogated ii. First exceptions for intentional torts like battery iii. Sort of a public duty doctrine could prevent using the courts resources for typical spousal activities (like, food poisoning when wife makes dinner, you really cant sue for that) f. Parental immunity i. Reasonable parent test- parent is judged by whether that parents conduct comported with that of a reasonable and prudent parent in a similar situation. A DUTY doctrine, parents have the duty to do that which a reasonable parent would do ii. Does it give too much power to the jury? Reasonable is a standard for the jury, do we trust them to make those determinations? iii. Broadbent case- mom cant collude with dad, good faith clause in most insurance contracts iv. Practical problem to abrogate parental immunity: If there is another driver also at fault, kid sues other driver, can other driver seek contribution from the parent? Probably so, though courts arent really excited about. Medical malpractice a. Standard of care (specialized duty doctrine) i. Heightened standard of care (also applies to other learned professions, such as doctor, engineer, etc.) PROFESSIONAL DUTY. THREE COMPONENTS 1. Knowledge and skill ordinarily possessed by similarly situated people in your field 2. Exercise your honest good faith best judgment in the clients best interest

XII. XIII.

XIV. XV.

3. Actual reasonable care and diligence in applying the knowledge and judgment they have to the client. ii. Expected to have the skill ordinarily possessed by someone in your field, because you are holding yourself out to the public. b. Key Points of the MedMal doctrine: i. Doctors set their own standard of care, the profession itself. So we usually need a doctors testimony to say if something didnt meet standard of care (exception, things like scissors or sponge left in the wound, doesnt take a genius) ii. Which doctors will set the standard of care? Tradition was one from the doctors own community, but no one wanted to do it, so now they say from a similar community. A few states say anyone from the state, and for some specialties it might be a national standard (like neurosurgery) 1. Has to be from the same school of medicine or be able to demonstrate that its substantially the same standard of care a. Reasoning: patient autonomy. The patient chose that particular type of physician, so you want the judgment to be based on what the patient could reasonably have expected for the type of care they elected to receive. iii. You need an expert, so how do you qualify an expert? 1. Foundation: must demonstrate the foundation of their expertise (paperworkcertification, experience, etc.) 2. Must have some basis for their opinion in the instant case (examined patient, reviewed records iv. Medical records are often the key thing in evaluating the validity of the claim ( lawyers often have RNs on staff to evaluate claims to decide whats worth taking) c. Informed consent is a NEGLIGENCE action. Do not confuse with improperly obtained consent, that might result in a battery case (OBrien) i. Misrepresentation could be battery ii. Consent from someone unable to give (age, mental infirmity) could be battery, so you have to ask if there are any consent issues that could defeat informed consent. iii. Traditional view was what would reasonable physicians disclose in similar circumstances iv. Shift in modern view to: what would a reasonable patient want to know. v. To win, have to show that the risk not informed of has eventuated 1. Also the cause in fact link: would that information have been material to the decision? a. What would have been material to a reasonable person in a similar situation? d. Preventable medical errors cost 40-90,000 lives a year e. Juries decide for the doctors in 75% of cases Strict liability a. The is liable on the basis of factual causation regardless of negligence or intent b. There can be liability without fault Product liability a. Strict liability for everyone in the chain, from manufacturer to retail store. Retailer may have indemnity against those higher up the chain but that does not relieve them from the strict liability. may sue anyone in they chain they like. Nuisance Tort Reform a. The whole elaborate tort system is do figure out what juries get to decide b. Juries frequently do not find for s c. Wed rather prevent harm through regulation, but we want the tort system as a remedy if it occurs. d. We cant always prevent injury, weve had the FDA for years and we still have problems because the benefit of a given product outweighs risk to consumers. e. Should damages be capped? i. Should caps only be on noneconomic damages? Should punitive damages be capped?

XVI.

f. Dutification as a tort remedy more active position on duty, judges use the duty doctrine to aggressively cut down the number of cases reaching juries i. Expresses distrust of the jury system DAMGES CALCULATIONS EXAMPLES a. Pure comparative negligence: i. Claim and counterclaim ii. has 25% fault and 100K in damages iii. has 75% fault and 50K damages. iv. 2 ways to do it: 1. 2 judgments: gets 75K, gets 12,500 (subtracting each ones % fault off their respective damage award. likes this method, they get a bigger award 2. Set off method- net difference goes to the party with the bigger damage award. So here, gets $62,500 and gets nothing. Insurance companies like this one b. Failure to take advance precautions situations: i. 100K damage. 76K caused by failure to wear seatbelt. Fault allocations come out at 30% to plaintiff, 60% to defendant and 10% to seatbelt 1. Traditional approach: failure to wear belt ignored, remove that fault percentage a. So, total damage is 100K but total fault is 90%. P 30/90ths at fault, D 60/90ths at fault(2/3) so P gets 2/3 of 100K or $66,666. (Bc you deduct his 30/90ths aka 1/3rd of fault) 2. Total bar plaintiff gets none of the seatbelt related damages c. Comparative fault- Total damage 100K, D1 fault 25%, gets judgment of 25K. If D2 is a turnip, too bad for P, unless in a state that redistributes the remainder according to remaining fault (so if D2 owed 50K, and P had 25% fault, they would redistribute D1s 25K owed, so D2 would owe P 12,500) d. 2 defendants, one has immunity. EG: P has 15% fault, D1 has 42% fault, D2 has 43% fault. Two options, D2 owes 85%. OR , P liable for 15/58, D2 liable for 43/58. More fair method is #2 (commonly comes up with workers comp bars on suing employers) e. Under respondeat superior/vicarious liability, if D1 is the EE, 40% fault, may pay 0. D2 ER has 20% fault but may have to pay 60K, their 20% and employees 40%.

POLICY POLICY POLICY POLICY: Medmal Reform: Only a small % of medmal vics seek legal advise. Fewer are taken, and then most are settled or dropped. Of the few that go to trial, Drs win 75% of the time. Big awards less than 1% of cases. There are 45100K preventable medical deaths every year in hospitals, plus more for pharmacy errors and death at home. In favor of reforms: It is wrong for the legal system to judge the medical system> Doctors are human beings, human beings make mistakes> Between runaway jury awards and ambulance chasing claim filing lawyers, in some areas we have a dearth of drs willing to practice. Insurance rates are astronomical, burdening drs and causing them to leave fields like OBGYN in droves. System also encourages defensive medicine whereby drs perform tests that arent needed, which in turn raises the overall costs of health care and therefore insurance. Caps on damages? Many places have tried a 250K cap. Should there be limits, and if so, who should it limit and for what causes of action? Who should institute limits? (state? Feds?) Should we remove legal causes of action? What about suits for informed consent? What about health courts aka death panels. Does this create 7th amendment issues? (trial by jury) what about due process? What about caps on noneconomic damages what about children, elderly? What is their economic value. How do you quantify the economic value of grandmas cookies or a childs laughter? Im sorry laws doctor can apologize and explain without it being used against them in court. Might make patients more amenable to settlement- some laws have had other stuff tagged onto it though, like limits on suits, makes it harder to get passed. Limit on attorney fees, people think lawyers are the problem. But if fees are more limited, lawyers are only going to take sure bets for big payouts. Reduces acess to justice for those who may need it most. Statutory restrictions on MedMal: some stated limit medmal liability by various methods bc they perceive a crisis related to medmal insurance rates. They may use tribunals to weed out weak claims (7th amendment problem), forbid res ipsa loquitur, use locality rule for standard of care (local drs determine standard of care on local basis) and impose damage caps. Anti statutory restriction: 7th amendment violated by someone outside the court concluding you have no right to a jury trial. Damage caps limit access to justice for neediest people (poor, elderly, kids) Doesnt begin to address medical error rates which are the actual source of the problem. Shouldnt be allowed to make it ok that people in Arkansas get a significantly lower standard of care on purpose than those in Boston. Pro restriction: insurance carriers are in dire straits, physicians are paying soaring rates, sometimes hospitals, cant pay. Some carriers wont cover medmal or some specialties, and some phsyicans cant afford, which results in a shortage of physicians in given specialties (OBGYN) or areas(Rural). Hospitals are going bankrupt, must be dealt with quickly and firmly via legislative action. Medical error estimates dont take into account people who wouldve died anyway, the thousands of elderly end of life patients, weakend immunce system, etc. Many would have died in a matter of days regardless. Technological glitches shouldnt be medical error

Systems Problems Require Systems Solutions: systems problems account for most medical errors, such as equipment failure or misinterpretation of medical orders, and hospitals across the nation are already struggling financially or going bankrupt. Such a widespread problem demands executive or legislative action to limit the unmeritorious claims unjustly driving up costs and take other measures to decrease medical malpractice costs. It Is Human Error, Not Malpractice: although the operating room is deemed sterile, when a physician is elbows deep inside of a human body in a highly time-pressured situation, it is anything but sterile. Unlike lawyers, physicians do not always have time to research, reflect, or consult. The human body is messy and fragile, and often only a vast array of bad medical options are available, with no corresponding clear courtroom win in sight. Unlike lawyers, physicians see dozens of patients per day, each with unique diseases, family histories, allergies, and possible hidden problems. Human error in such a context is inevitable. Behind closed doors, physicians may discuss the first patient whose death s/he accidentally (negligently) caused, with great sorrow and self-blame, but also with mutual understanding that these things happen. If all instances of such physician error resulted in liability, we would soon be without physicians. Furthermore, a contentious negligence outlook, rather than a realistic awareness of human error, seriously undermines and undervalues the professional best efforts of physicians who are, after all, only human. Physicians should be rewarded, not punished, for the emotional sacrifice they undertake on a daily basis with the knowledge that mistakes will occur despite the utmost professional competence and care, and the associated burden of guilt. That burden, of personally inevitable yet objectively avoidable error resulting in patient injury or death, is a significant emotional stressor that is rarely appreciated by Ps lawyers. Excess Liability May Increase Medical Error: physicians should be able to seek help with substance abuse problems or unknown causes of error without fear of punitive repercussion. Physicians are only human, and the alternative is worse - a continuation of the current culture of silence, with physicians left unable to seek help to adequately address their problems. Errors occur, and in order to study when and why errors occur, and assist individual physicians to be healthy and decrease their error rate, it is imperative that physicians are free to self-report and discuss errors with colleagues without concern of future lawsuit. Defensive Medicine Is Bad Medicine: as then-President Bush said, doctors should be focused on fighting illnesses, not fighting lawsuits. The current system awards sympathetic Ps rather than deterring Ds. In order to avoid lawsuit, physicians order unnecessary and nonbenign tests and procedures, which costs billions of dollars per year, are often time-consuming or even painful to administer, and likely involve health risks such as increased rate of cancer from radiation. Contingency Fees Are Unethical: Doctors do not work on contingency fees because it is considered professionally unethical. Legislation should be enacted to reduce windfalls to greedy plaintiffs attorneys and help awards to into injured patients pockets instead, along the lines of what California has done with a sliding scale prohibiting attorneys from collecting more than 15% on awards over $600,000. Attorney fees in the context of settlement in particular should be capped, since contingency fees inappropriately bias attorneys toward settlement, which is detrimental to the patient, since attorneys receive somewhat less money but after significantly less work. Further, where liability is undisputed, contingency fees inappropriately award attorneys for cases that are strong on their merits and deserving of large sums regardless of attorney fees. Some performance-based compensation is appropriate, but not immense sums disproportionate to the amount of work that was performed. When attorneys take money out of the pockets of deserving patients disproportionate to their workload, public esteem for the bar plummets and rightly so these windfalls are highly unethical, and should

be illegal. Contingency fees should only be paid when attorneys take on a meaningful risk of not being paid, and the fees should corroborate with the amount of work performed. Caps Provide More Appropriate Compensation: Physicians often feel that a bad outcome, rather than malpractice, is what prompts a lawsuit. Ds win approximately of medmal suits, so unmeritorious claims are in the courtroom more often than they should be. Often, more serious injuries influence juries to make large awards even without negligence due to the sympathetic plaintiff effect. Caps on damages decrease the inappropriately exorbitant sums due to jury sympathy. Nonpecuniary losses such as pain and suffering or loss of enjoyment of life in particular should have strict damages caps, since these nebulous losses which can in no way be truly recompensed by monetary means. Exorbitant sums prejudice the public against not only medical malpractice claims and lawyers, but against all types of injury claims and all who practice in the field of law. The public is justified in its perception of greedy plaintiffs seeking ever more questionable damages, and caps on damages will help redeem lawyers in the public eye, and more appropriately compensate injured patients and lawyers alike. Pre-Trial Screening Reduces Frivolous Lawsuits: although screening panels do present potential 7th Amendment Constitutional problems regarding right to a civil jury trial, pre-screening trials are endorsed by AMA and reduce costs while ensuring that deserving victims of medical error are not denied trial. Perhaps a Constitutional amendment should be proposed that provides medical malpractice victims with a right to a civil jury trial only after undergoing a pre-trial screening with a panel of medical experts. This pre-trial jury of professionals is particularly appropriate given the applicable professional standard of care. Plaintiffs attorneys may do everything they can to bring only meritorious cases, but medical experts are in the best position to weed out weak or frivolous medmal claims. Such a practice could even benefit Ps attorneys by preventing further time and expenditure on a case without merit. Such a change in civil procedure would decrease medical litigation and insurance costs and protect physicians from socially and professionally damaging litigation, without denying deserving Ps their day in court. While some endorse secrecy in the pre-trial proceedings, with less strict evidentiary and other rules more along the lines of mediation, perhaps more transparency would allow for more deterrence effect and allow for studies on standards of care, the most common medical errors, and improving patient outcomes. Im Sorry Laws Benefit Patients and Physicians: patients want a detailed explanation of how the system broke down or what mistakes were made. Patients understand that mistakes occasionally happen, even without negligence. Granting immunity encourages full disclosure, helps patients retain trust in the medical profession, and reduces the emotional suffering of resentment and rage of secret harms done subject only to peer review without medical professionals appearing to share the patients sorrow, frustration, and even regret at the turn of events. Studies show that when physicians demonstrate that they care after a bad outcome, patients are less likely to file a medmal suit. Thus, Im sorry laws protect physicians from a lawsuit, protect the physician-patient relationship, and encourage patient access to information about what occurred. Anti Restriction: rising medical malpractice rates may be a problem, but there are far better ways of approaching that problem than by unjustly barring or deterring meritorious claims. physicians incomes increased more than the cost of insurance. High Incidence of Preventable Medical Error: far greater than number of malpractice claims, an ABA task force found only about 2% of victims of medmal even file claims, and may disproportionately effect children due to their varying size, lesser

communicative capabilities, and tendency to faster deteriorate. Medical errors cause more deaths than car accidents, cancer, or AIDS each year. Once a foreseeable P proves a prima facie case for negligence, it is wildly unjust for that P to be prevented from recovering full and just compensation for all of the losses suffered as a result of that negligence. Culture of safety is possible, with multiple redundancies in safety systems as demonstrated by nuclear power industry and space program. Caps Increase Medical Error: There is a growing public fear of preventable medical error, which is entirely rationale, and the error itself must be addressed rather than merely its symptoms. There are a variety of ways to decrease medical error and thereby reduce medical malpractice litigation and associated costs. Legislation regarding use of information technology to eliminate reliance on handwriting, avoidance of similar-sounding and look-alike names and packages of medication, and standardization of treatment policies and protocols to avoid confusion and reliance on memory. Caps may make this problem worse by reducing incentives for doctors and hospitals to reduce medical errors. Caps Unfairly Effect Certain Patients: frivolous lawsuits are dismissed pre-trial, so caps on damages influence a different group of plantiffs. Elderly, poor, and unemployed patients economic loss is less readily calculable, perhaps undervalued, and simply lower than other patients. Without recovery for noneconomic losses, these groups of Ps may not be able to find attorneys financially able to take their case, even when injustice has undeniably occurred, and thus be denied any form of compensation. Further, patients with the most serious injuries require large sums of money to appropriately offset large economic losses. Even when these victims of medmal recover, when their damages are capped their losses are significantly undercompensated, meaning the victims bear the burden of others wrongdoing. To pay full damages to patients with less serious injuries, but deny more seriously injured patients full recovery, seems patently unfair. Concerns of sympathetic plaintiffs can be addressed in other ways, such as with a bifurcated trial or other more precise jury instructions. Individual Problems Require Individual Solutions: small percentage of doctors cost the most. Premiums should be merit based. When a doctor does surgery drunk, personal and individual accountability is essential. Decreasing liability further decreases deterrence. While physicians with drug problems may initially try to keep it secret, once the issue is discovered, strict licensing rules should be in place with stringent testing requirements so that no more patients suffer the same fate. When the approach is more lenient, physicians may not be afraid to come forward and seek treatment, but they also may not have the same deterrence incentives to get clean and stay clean. Im Sorry Laws Inappropriately Reduce Liability: to my knowledge, in no other context would a Ds admission of fault be inadmissible in court. Such protection of a negligent D who has confessed to that negligence seems, on its face, wildly inappropriate. Patients deserve to know what has gone wrong, and they also deserve to recover appropriate compensation for the injury they have suffered due to anothers negligence. The medical culture of silence should be broken with legislative or judicial action, with whistle-blowing laws holding hospitals and physicians accountable for not reporting negligent physicians, particularly repeat offenders. While laws requiring disclosure are fully compatible with decreasing medical costs and improving patient care, protective laws that decrease victims recourse to address injuries caused by admitted negligence is a patently unjust option. Legal Costs Not A Problem: although Americans spend outrageous sums on healthcare compared to other countries, approximately 2 cents of the health care dollar goes toward medical malpractice litigation. Opinion differs as to whether medmal insurance payouts

have increased, but it appears that insurance premiums more closely reflect the national market economy rather than damages of malpractice claims. Further, caps do not necessarily correspond with lower insurance premiums, and are even less likely to correspond with lower patient costs. Legislation may be required to decrease the percentage of funds that can be invested in the stock market by medical insurance providers. Caps On Attorneys Fees Reduce Access To Courts: complex medical cases require plaintiffs attorneys to conduct years of investigation, pay hundreds of thousands of dollars in fees for medical experts, and expend thousands of hours on each individual case, all without any guarantee of return. Most victims of medmal cannot afford an hourly rate. Contingency fees allow plaintiffs attorneys to shoulder the burden of this immensely costly and ultimately risky undertaking, which benefits the patient. Occasional big paydays are necessary to cover daily expenses, since the rigorous screening process alone can take months and cost tens of thousands of dollars, since the causal knot is buried in medical science, with local professional standards further hidden by the medical culture of silence. Medmal attorneys already take only 2-3% of medmal cases due to the large risks involved in each one. Without the sporadic payout, attorneys would have less incentive (or perhaps even ability) to take on even the most meritorious medmal cases, let alone those where liability is less certain, and many victims of medmal would be denied access to the courtroom. Caps Are Un-Constitutional: in states where medmal legislation has been enacted to reduce potential recovery, medmal litigation has decreased. As a result, insurance companies, physicians, and hospitals (although not patients) have profited. Proponents of such caps tout this result as a success. However, the decrease in medmal litigation is not due to decreased medical error, betterment of professional standards of care, or a decrease in frivolous lawsuits - it has simply become economically unfeasible for lawyers to pursue most medmal cases. Medmal litigation was already a risky and expensive venture, and caps have succeeded only in further reducing medmal victims access to justice. Caps eliminate compensation without substituting an alternative remedy. Thus, caps are contrary to the core Constitutional value of justice for all. Caps present further separation of powers issues when a legislature interferes with the right of juries and judges to determine fair damages. Tort law provides an essential component of the American system of checks and balances, often the only method of holding big business and industry accountable. Caps are further contrary to state constitutions with remedy clauses, for example the Oregon constitution declares that every man shall have remedy of law. Like mandatory sentences, mandatory caps give a cookie-cutter solution for unique cases. Pecuniary Damage Caps Particularly Unjust: unlike nonpecuniary losses, monetary damages can directly compensate P for the pecuniary loss suffered due to Ds wrongdoing. The most seriously injured Ps should still receive full pecuniary losses. Any medical liability policy should compensate victims of medical mistakes. Possible Areas of Agreement Decrease Medical Error: the least controversial way to decrease litigation costs of medical malpractice is to decrease medical malpractice. Physician-centric methods of decreasing error might include: improving physician-patient communication, improving accuracy of medical records, obtaining meaningful consent, completing careful and thorough examinations, consulting and referring appropriately with other specialists. Systems-based methods of decreasing error might include: increased systematic redundancy, decreasing lookalike medications, relying on typed prescriptions rather than hand-written, and special precautions for vulnerable patient populations such as children.

Culture of Transparency: when a physician suggested evaluating surgeon competence in regular peer review conferences in the early 1900s, he lost his staff privileges at the hospital as a result. Now all academic hospitals and most large private hospitals as well conduct Morbidity and Mortality (M&M) conferences on a regular basis (often weekly or biweekly) to learn from complications and errors. Conferences are nonpunitive and focus on the goal of improved patient care. Hospitals should be required to maintain statistics on error rates for individual physicians in various specialties, compare with national averages, and for repeat offenders provide further training or suspend staff privileges. Further, as an extension of informed consent, non-medical healthcare providers should be legally required to inform patients that they have not attended medical school, are not qualified to provide a medical differential diagnosis, and other details of the different professional standard of care. (If patients choose to have a homebirth attended by a midwife, or mysterious pain treated by acupuncture, they should be informed that serious adverse outcomes are more likely.) Legislative Protection of Revocation of Staff Privileges: when staff privileges are terminated or suspended, physicians often bring suits against the hospital, governing board, and even other staff physicians, with actions alleging state and federal antitrust violations, substantive and procedural due process errors, defamation, federal civil rights violations, conspiracy, breach of contractual obligations, and tortious interference with contractual and business relationships, among others. The threat of these suits deters hospitals from revoking staff privileges without well-grounded and verifiable justification. More analysis is necessary, but perhaps legislative protection of merit-based staff privileges would decrease preventable medical error. Merit-Based Insurance Premiums: insurance premiums vary by specialty, but not according to past medmal settlements or judgments or individual risk-reducing practices within a physicians control despite the highly predictive value of past offenses. Without merit-based insurance premiums, physicians have little deterrence incentive since personal financial payout is utterly unaffected by individual rates of medical error and associated medmal litigation. Insurance companies have resisted merit-based premiums, complaining that the physicians with the highest surcharges cancel their policies. However, higher risk physicians should pay higher premiums. If merit-based insurance premiums are legally mandatory, merit evaluations will attach to physicians and prevent policy shopping. If it becomes economically infeasible for physicians proven to be negligent in the past to practice, common sense indicates that might be a public good rather than a detriment. Merit-based insurance premiums would correspondingly reward low-risk behaviors, high quality physicians, and innovative methods of improving patient outcomes and/or decreasing medmal litigation. National Insurance System: physicians and lawyers alike want patients to have access to high quality healthcare, with less medical error, more preventative medicine, and an economically healthy medical system. As other countries have demonstrated, it is possible for physicians and patients to afford insurance, insurance companies to make a profit on medmal, and for hospitals to thrive. This may be an exciting point in healthcare history, as increasingly large numbers of the populace approve of legislation to create a unified, national, no-fault system, which would hopefully bring healthcare costs down, improve hospital financial stability, achieve better regulation over insurance carriers, and deter frivolous lawsuits by removing part of the damages (medical expenses) from the equation. Despite American values of patient autonomy in electing whether or not to have coverage, all Americans in effect have coverage via emergency rooms once something goes wrong. Thus the true difference is access to preventative care, which is far cheaper to society than reactive care. The American Medical Association (AMA) originally believed that such a universal healthcare system would be detrimental to physicians, and even coined the term socialized medicine to turn public opinion against it as a communist system. However, the official AMA stance has changed within the

past decade despite ties between physicians and insurance companies (60% of providers owned/managed by doctors), hopefully signaling a movement in that direction. Such a national healthcare system would inevitably decrease medmal costs, and in a way that increases patient access to preventative care without decreasing access to justice. Start With Medikids: just as our nation provides public education to enable the populace to meaningfully participate in our democracy, providing a free public healthcare system for children might be a less controversial step on the road towards implementing a national healthcare program. Without adequate prophylactic care, uninsured children are denied equal opportunity to purse life, liberty, and justice. A variety of state and federal programs already exist to provide health coverage to low-income children, and it is politically uncontroversial to initiate services for the children. Expanding on Medicare and Medicaid with Medikids is a realistic step towards universal healthcare. Just as parents are required to send their children to school or otherwise ensure they attain minimum education standards, parents should be required to send their children for immunizations, regular check-ups, and medical preventative care. Symptoms of an unknown medical origin are too often treated with substandard alternative, non-medical medicine, such as faith-based healing, and this should not be a legal option for children under the age of 18. No-Fault System: impossible to regulate professional standard of care in every situation (otherwise medmal cases would have no need of medical experts), so a no fault system without deterrence or regulation would likely lead to lower caliber of patient care. Therefore a no-fault healthcare system is not a viable option.