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Torts of Outrage
-****Policy For: is flexible and can • If there is a question of fact it should go to a jury
change with the times; is better than any and be upheld (Santiago v. First Student)
other arbitrary standard (Upchurch)
-*****Policy Against- hard to quantify
injuries/probability of injuries; everything
that we do carries some risk and any activity • It is up to jury to determine witness credibility
has some benefit and any precaution some (Upchurch)
costs
• Golden Rule Do unto others as would have done • Can use neg. per se, but may just be evidence of
unto you neg.
• JURY: Intuitively, By Neg. Per Se, • Circumstantial evidence gives clues to weather
breech has occurred (allows you to make
Neg. as Matter of Law, by Custom (can inferences which can led to preponderance of
hold to higher standard then Statutes- can be
evidence being met) (Forsyth v. Joesph)
used as evidence)
• Expert testimony is only needed when topic is
• Background Rules (Court made, not something a lay person would not be
knowledgeable about (Dist. Of Columbia v.
binding, rules of thumb) Shannon slide-thumb case)
1. Life above property (Bernier v. • Non-expert witnesses can only testify as to facts,
Edison, Indiana Consol. Ins) not opinions or conclusory statements
Evaluating Conduct:
2. Person who has greater knowledge
(Sinnet) • Custom does not determine SOC (but could be
used as evidence) (TJ Hooper)
3. Foreseeability is low when you are
depending upon an expert (Sinnet v. • Policy manuals do not determine SOC (evidence)
Buchele) (Duncan, followed but wasn’t enough, WalMart,
didn’t follow but okay)
4. If burden is high, and likelihood of injury
is low, then no breach (Lee v. GNLV Corp) • plaintiff must show that the owner either created
5. When one is confronted with 911 he may a dangerous condition or had actual constructive
act in his best judgment without being neg. knowledge of a dangerous condition-can be
(Indiana Consolidated v. Matthew) established by circumstantial evidence (Cracker
6. Degree of harm can be weighed
Barrel) [SLIP] Even if Δ did not cause the danger
against right to protect ones property/ he is liable if enough time passed
Torts 6
• Evidence that customary safety policy was * Crucial impact of res ipsa loquitur is that it allows
plaintiff’s case to go to the jury even though he has not
violated- goes to jury proved a specific act of negligence
* Majority: Res Ipsa creates an inference of
• Mode or method of business operations make it negligence that allows you to survive summary
all to likely that a dangerous situation will judgment and go to the jury- then jury then
occur[SLIP]
decides if it wants to accept or reject the
inference—plaintiff still has burden of proving
the rest of the elements- injury and causation
AOR- *Minority: Res Ipsa creates a rebuttable
Use Soft Crews analysis presumption of negligence- the burden shifts to
1. Did the plaintiff have knowledge of the defendant to prove that he is not negligent—
the risk—objective test-Reasonable it is presumed more likely than not that a duty
person was breached—better for plaintiffs—if defendant
2. Did the plaintiff appreciate the risk- rebuts the burden gets shifted back to the Π, if
objective/fact specific test not Π wins.
3. Did the plaintiff voluntarily expose NEW RULEModern Rule:
himself/herself to that risk? Either inference or rebuttable presumption when:
(Crews v. Hollenbach) Do this when 1. The accident is of the type that normally
analyzing in breach or here (see page does not happen without neg.
12 for when to do what) 2. Δ was more likely than not neg.
INJURY:
Rule: Plaintiff must suffer a legally cognizable
harm Preston v Cestaro
4 things to be aware of:
1. injury must have resulted due to the
defendant’s breach of duty;
2. injury can be a loss of market value in many
instances;
3. at common law emotional distress alone are
not legally cognizable injuries; what the advent
of IIED and negligent injury of emotional
distress have helped to resolve this
4. At common law future risks created by
negligence generally don’t count as injuries—
this may have changed a bit with the lost chance
doctrine
* Also plaintiff cannot recover damages if there
was no injury suffered-because injury is an
element of the prima facie case
ASSESSING DAMAGES
- Joint and Several Liability- you can enforce
the claim against any tortfeasor,
and if one tortfeasor pays the entire
amount they can get ‘contribution’ from the
other tortfeasor for their
proportional amount; better for plaintiff- more
likely to be compensation—
not really applicable in comparative fault
jurisdictions any more
- Comparative Fault/Several
Liability- Plaintiff’s recovery is generally
reduced by their negligence
to reflect their fault; and each faulty party must
bear their share of losses.
Here, the tortfeasor is only responsible for their
portion of the claim—pro-
defendant rule in that they only have to pay there
share—plaintiff can’t get all
of their money from one party and then expect
them to get
contribution elsewhere-plaintiff bears risk
of this if defendant is judgment proof.
Torts 12
conduct and any intent with
respect to harm created; and
b. Strength of the causal connection
between the person’s risk-creating
conduct and the harm
DEFENSES TO NEGLIGENCE
1. Trad/Common Law Contributory
Negligence: EXCEPTIONS WHEN YOU ARE DEALING
Rule: no matter how small plaintiff’s WITH TRAD/COMMON LAW
liability is, there is no recovery (Butterfeild v. CONTRIBUTORY NEG.
Forrestor) (very few states use) a. Last Clear Chance Doctrine- Under
2. Pure Comparative Fault- look at plaintiff’s traditional contributory negligence, if the
% of fault and that reduces the verdict defendant could/should have discovered
3 Modified Comparative Fault: plaintiffs peril, then the defendant must bear
A. Sollin: plaintiff gets recovery only if their 100% of the responsibility—cuts off all liability
fault is less than all other defendants- of the negligent plaintiff
49% or less. (Sollin v. Wangler) • Under Comparative fault this is no
B. Wisconsin- plaintiff only recovers if their defense- Courts will just assign % of fault
fault is equal to or less than others so to π and ∆
50% or less (Wassel v. Adams) b. Plaintiff’s Illegal Activity- Generally, if
c. Maine Rule: requires the jury to make a plaintiff was harmed negligently while engaging
reduction of damages based on what it in illegal activity they wouldn’t recover. (Baker
considers to be equitable and just. –policy v. Kallas, Alami v. Volkswagon, Zysk v. Zysk)
reason- gives flexibility to jurors; • Some jurisdictions have relaxed this,
negatives- allows for prejudice without particularly comparative fault—where
justification they just assign percentages
Restatement 3rd of Torts §8 Factors for assigning c. Intentional/Reckless Conduct- A plaintiff
shares of responsibility include: charged with contributory negligence was traditionally
a. nature of the person’s risk- allowed a full recovery against a reckless or wanton
creating conduct, including defendant.
awareness or indifference with • * In comparative fault jurisdictions- reckless
actions % of fault are assigned; in the case of
respect to the risks created by the
Torts 13
intentional actions- plaintiff’s liability is still cut 4. All other general contracting
off procedures (Lack of capacity,
d. Mitigation- Traditional rule: If you fail to coercion, consideration)
mitigate/minimize damages then you lose out on 5. Was it a K of adhesion (generally
the entire damages because you are seen as an not okay because of policy
intervening tortfeasors; under comparative fault- reasons)
just apportion fault 2.Implied assumption of risk-in comparative
Instances where Comparative Fault Won’t fault- this is not a defense, goes under breach
Apportion Liability/Contributory Negligence analysis- for exams do analysis under both—
Not Available Use Crews analysis
Intentional/Intervening Tortfeasors, and Other 1Did the plaintiff have knowledge of the
Public Policy Reasons risk—objective test-Reasonable person
-Hold Dr.s accountable, even when Π is at fault 2Did the plaintiff appreciate the risk-
for original injury (Mercer v. Vanderbilt objective/fact specific test
University) 3Did the plaintiff voluntarily expose
-Special rules for manufacturers need to have himself/herself to that risk?
safety precautions (Bexiga v. Havir) (Crews v. Hollenbach) Do this when
-Self abuse or destructive acts cut off neg. (ex. analyzing in breach or here
Suicide, McNamara v. Honeyman) Dobbs Law of Torts- Traditional assumed risk rules
-You are allowed to take risks to own property find tacit consent when the plaintiff, knowing of the risk
(Leroy Fibre v. Chicago M and St.P) and appreciating its quality, voluntarily chose to confront
it. Dobbs argues that you don’t really need assumption of
risk as a bar in a comparative fault system. Because the
consent really goes to effect the duty of the defendant—if
the plaintiff consents to a type of risk, this changes the duty
**only applies to non- owed.
strangers/ASSUMPTION OF RISK
(DEFENSE) Prevailing Rule for Implied AOR
1. Contractual Assumed Risk: Restatement -If a plaintiff is reasonable in facing a
Rule- Parties should be able to contract with risk, she is not negligent except when she
each other and this should be binding—so unreasonably confronts a known risk then
whenever there is a valid contract, it should bar her negligence in doing so reduces
all of plaintiffs claims recovery of damages (Betts v. Crawford)
-Things to Consider when trying to figure out Restatement: if you have a contractual
whether the release should be valid and binding: assumption of risk, then defendant is relieved of
1. Did the plaintiff have bargaining all liability; but if there is an implied assumption
power? (If 2 are sophisticated then of risk- then defendant’s liability maybe reduced
less valid) by comparative fault percentages
2. Is the service provided essential or
was it a choice? If it is essential 3. Assumed Risk as a Limited Duty/No
then the release is probably Negligence on part of Defendant
invalid (Tunkl v. Regents of The plaintiff only assumes the risk that are
University of CA) inherent in the activity in which they are
3. What is the scope of the engaging, they don’t assume the additional risk
agreement? Does the scope of the created by the defendants negligence (Siragusa v
agreement include the particular Swedish Hospital, Sunday v Stratton Corp.)
injury—in torts the scope • Assumption of risk in comparative fault
generally only includes the type of jurisdiction is no real defense; you just
negligence that is inherent in the go up to the analysis of breach in that
type of activity itself (Moore v. the consent/assumption of risk given is a
Hartley Motors) factor in the consideration of the
circumstances. In other words, when you
Torts 14
assume the risk inherent in the activity statute of limitations begins-
then you relieve the duty of the defendant Sciele
in this regard. (Turcotte v. Fell) 4. Extended discovered, permenant
• In sports cases analyze under what Δ’s damage and role.
duty under the circumstance were 5. Actionable Injury Rule- minority
(Gauvin v. Clark- MA) rule- the statute doesn’t start
running until plaintiff discovered
or should have discovered both
negligence and causation
In Trad. Comparative Fault: Δ (if doc tells you SOL runs, if is common K then
MA: Duty SOL runs)
Turcotte/NY: Duty, Δ ANALYZE ALL APPLICABLE
If no jurisdiction: Breach, Δ
Things that will Toll the Statute of
Limitations:
1. If someone purposefully conceals
information from the plaintiff to
prevent a law suit- acting
fraudulently will toll the statute—
but, wearing a mask to conceal
your identity during the tort will
not toll it because it is not
purposeful concealment to
bringing the suit
2. Tolling for disabilities- generally
STATUTE OF LIMITATIONS the statute will be tolled for
Statute of Limitations- Under state law, you have minors or mental incompetence
a certain amount of time to bring your claim and 3. AZ tolling statute- incarcerated
if you don’t bring your claim during that period persons when disc/ release from
of time you are out of luck. prison, whichever 1st
4. Equitable Estoppel- if there is an
Approaches to when the Statute of affirmative misrepresentation, and
Limitations will begin: the plaintiff relies on this to their
1. Accrual Rule: At the time of the detriment-this will toll the statute
first exposure to the tort, even —i.e. doctor says he works for a
though the individual may not private practice, but turns out he is
know of it- rule from Crumpton state employee
and Shearin (least Π friendly) Note: Notice Bar- some states will require the
2. Whenever the last exposure to the plaintiff to give notice before filing-this will in
treatment or when employment essence shorten the statute of limitation
was terminated
3. Discovery Rule-Majority Rule-
the statute begins to run when the
plaintiff discovered or should
reasonably have discovered the
injury; when you find perm.
Injury and know Δ role. just ADDT DEFENSES
because you suspect a danger it
doesn’t necessarily count as 1)Compliance with Statute
discovery; but if everyone knows Miller v Warren- hotel didn’t have smoke
of a particular danger then the detectors and customers got injured during fire.
Torts 15
But the building code did not require smoke
detectors.
Holding: Complying with a regulation is
competent evidence of due care, but not
conclusive evidence of due care
• Compliance with a statute or regulation is
not a defense. Statutory requirements
usually reflect the minimum standard of
care. Compliance with the statute is some
evidence of due care
2)Preemption
Preemption- generally if there is a conflict
between fed and state law, or there is an area
where fed law occupies the field- the fed law
trumps state law
2 ways:
1. Case law- judges determine if fed trumps state
law; meaning if there is a state cause of action is
preempted by federal law means that you don’t
have a state claim- but you can still bring federal
claim
2. Federal statute or law specifically says that
federal law trumps state law (FDA does not bar)