Torts: Loss of Consortium

Loss of Consortium

• In any case where the victim of a tort is married, the uninjured spouse of a V gets a separate tort claim, which allows the uninjured spouse to recover 3 types of damages:
• Loss of service –
• Loss of society – (companionship) Π says with my spouse injured, I have no one to talk to.
• Loss of sex – with my spouse injured, I’m not getting laid.

Torts: Co-Defendants

Co-Δ’s

• What rights does A have against B and C his co-defendants in the case?
• Comparative contribution: jury assigns each Δ a percentage. The reimbursement rights between the Δ’s are based on those percentages.
• Two exceptions: where the out of pocket party can get all his money back (indemnification)
• Vicarious liability cases – the purely passive party can get all his money back from the active tortfeasor.
• In a SL claim for a defective product, a non-manufacturer can get all the money back from the manufacturer.

Torts: Vicarious Liability

Vicarious Liability

• one person will go out in the world and commit a tort. In addition to suing that person, the victim will sue another person. V will sue active tortfeasor and a purely passive party.

• Flows from relationship between active tortfeasor and passive party: (4 relationships)

• Employer-employee relationship – employer is vicariously liable for the active torts of employees committed in the scope of employment.

• Scope of employment issues:

• Departures from the work (frolic v. detour) – a minior departure from the work does not take employee outside the scope of employment. Boss still vicariously liable. A major departure destroys vicarious liability.

• Intentional torts: generally, they’re outside the scope of employment. But exceptions..

• If boss authorized employee to use force (bouncer), if employee uses too much force, boss is vicariously liable.

• If job generates friction/tension.

• Anytime the employee is acting to serve the employer’s purposes in a misguided and over-zealous way, that will generate vicarious liability.

• Automobile owner-automobile driver –

• MBE: owners not liable for the torts of drivers. 1 exception:

• If driver is doing an errand for the owner, it comes out the other way, and owner is liable.

• Fed statute: a car renter is never vicariously liable for someone who is driving the rental car.

• Independent contractor and a hiring party

• Hiring party not vicariously liable for the torts of an IC.

• Exception: If a land possessor hires an IC to work on the premises, and if IC hurts an invitee, there is vicarious liability. (plants in mall).

• Parents and children

• Parents, who are purely passive parties, are not vicariously liable for the torts of their kids.

• This is a BIG BAR EXAM TRAP. DON’T FALL FOR IT. Vicarious liability is always your last possible theory. Ask can I hold Δ liable for his own negligent conduct first.

Torts: Nuisance

Nuisance

• Nuisance questions on bar are easy to recognize. Involve incompatible land use. Adjacent owners who are getting on each other’s nerves.

• Δ will be found to have committed a nuisance if its activities have been found to interfere with Π’s ability to use and enjoy Π’s land to an unreasonable degree.

• To determine whether interference whether interference is unreasonable in degree, courts use a balancing test.
• Π has entitlement to use his land in a way that suits his land. Π can’t be subject to misery. Conduct giving rise to nuisance can be negligent, SL, or good faith.
• Δ has a right to use his land in a way that he or she sees fit.

Torts: Strict Liability: Affirmative Defenses

Affirmative Defenses for SL – comparative responsibility just like in negligence.

• Percentages assigned, damages reduced.

Torts: Strict Liability: Product Injuries

Product Injuries – person gets hurt by a product, that person is likely to have multiple causes of action. There could be a negligence claim; there could be a breach of warranty claim, and strict liability. Look at the call of the question closely.

Π must show 4 things:

• Δ is a merchant (who routinely deals in goods of the kind). Only a merchant will be held strictly liable.

• Casual sellers – they are not merchants. They are people who sell stuff on e-bay, at a garage sale, those who advertise their car for sale in the classifieds.

• Service providers – a provider of services will often make goods available as part of the service, but they are not considered a merchant of those items and they will not be strictly liable. Restaurant not strictly liable for faulty chairs.

• Commercial lessor – is a merchant even though it doesn’t part with title to the goods. Therefore, it can be strictly liable. (Rental Car company)

• Every merchant in the chain of distribution is a merchant and can be held strictly liable. Π is not limited to suing the party that he dealt with directly. No privity of contract is required for strict liability.

• Π must show that product can be defective (2 ways)

• By showing that the product has a manufacturing defect – if it is different from all the others that came off the assembly line in a way that makes it more dangerous than consumers would expect.

• Unexpectedly dangerous – it’s a 1 in a million. Where the blade comes off the base housing and cuts your leg when you go to mow the lawn.

• Safety precautions are irrelevant for SL!

• Design defect: a product has a design defect when there is another way to build it. When there is a hypothetical alternative design that can be shown by Π. Π must show that HAD meets 3 tests, and if Π does that, they can show that version actually marketed is defected.

• Π must show that HAD is safer than product that was actually marketed

• Π must show that HAD is cost neutral. (same price to manufacture as the one marketed)

• Π must show that HAD is practical. Product can’t be hard to use or its central function can’t be undermined.

• If Π does this, it means that the version marketed is defective and any person injured by it has a valid claim against any company in the product distribution chain.

• Product information can become relevant in an SL analysis. If a product cannot be physically redesigned to be safer in a cost neutral and practical way, and if it has a residual risk not apparent to users/consumers, that product must bear a warning. If it lacks a warning it is a defective product.

• Warnings must come to the attention of the user. Must be clear, maybe have multiple languages, or pictures.

• You cannot absolve yourself of SL by slapping a warning on a product if there is a valid HAD.

• Π must show that product was not altered since it left Δ’s hands.

• If the product traveled in ordinary channels of distribution, it was assumed that it was not altered. Δ must raise the issue, if the Δ has evidence that something else happened in the chain.

• Π must show that he was making a foreseeable use of the product.

• Bar exam trick: A foreseeable use is not limited to whether it was proper or improper use.

Torts: Strict Liability: Ultra Hazardous Activities

Ultra-hazardous activities: classified as UHA if it meets 3 part test:

• Can’t be made reasonably safe given existing technology.

• The activity imposes a risk of severe harm (incredibly dangerous)

• Activity must be uncommon in the area where its being conducted. (out of context)

• ON MBE: (Δ is strictly liable when there’s a UHA on MBE).

• Anything involving blasting or explosives (dynamite or TNT).
• Highly dangerous chemical or biological agents
• Anything involving nuclear energy or radiation.

Torts: Strict Liability: Injuries Caused by Animals

Injuries caused by animals (doesn’t come up too much) – must make distinction between 3 categories of cases:

• Domesticated animals: no strict liability. (dog bite cases). If your dog bites someone, the victim has to prove that you were negligent. That will be hard to prove.

• Exception: if you have knowledge of your animal’s vicious propensities, then you will be strictly liable. Typically it means that the dog has previously bitten someone.

• Trespassing cattle: strict liability if your animals go on your neighbor’s property. They eat crops and trample down vegetation.

• Wild animals: if you keep a wild animal, you’re strictly liable.

Torts: Strict Liability Causes of Action

Strict Liabilities Causes of Action -- where safety precautions are irrelevant

• Injuries caused by animals
• Ultra-hazardous activities
• Product Injuries
• Merchants
• Product was defective
• Manufacturing Defect
• Design Defect
• Product not altered since it left D's hands
• P must show that he was making a foreseeable use of product
  

Torts: Negligence: Affirmative Defenses: Comparative Negligence

Comparative negligence – if a Δ wants to introduce that into the case Δ will introduce evidence that Π has failed to use proper care for his own safety.

• Normally you must behave as a reasonably prudent person, and you must observe all statutes.

• If the Δ alleges that Π failed to exercise care for his own safety, jury will be asked to compare conduct—the fault of each party— and assign each litigant a percentage number. Π’s recovery will then be reduced in accordance.

• Two kinds of comparative negligence—
• PURE COMPARATIVE NEGLIGENCE - we go strictly by the numbers and that Π always recovers something even if Π is guilty of the majority of the fault. In NY, there is comparative negligence unless Π is engaged in serious criminal activities at the time of his injuries
• MODIFIED(or Partial) COMPARATIVE- (occasionally tested on MBE by name): Π fault of under 50% reduces Π’s recovery. Π’s fault over 50% is an absolute bar and Π gets nothing.

Torts: Negligence: Damages

Damages

• General damage rule Eggshell skull principle >> once Δ is shown to have committed all of the other elements of the tort, that Δ has to pay for all damage suffered by Π, even if surprisingly great in scope. (You take your Π as you find your Π). Δ pays for all damages suffered. It applies to every tort on the bar exam.

Torts: Negligence: Causation: Proximate Cause

Proximate cause (aka “fairness”). A Π in negligence must show a duty, a breach of the duty, show that the breach was a factual cause of the duty and then show that it’s fair to make Δ responsible. A limitation on liability to only those cases where we think liability is fair.

• Foreseeability – it’s fair to make people pay for the foreseeable consequences of their carelessness. Conversely, it’s unfair to make people pay for the unforseeability of their consequences.

• Direct cause question on bar: (Breach>>BAM!)Δ will commit a breach and Π is injured almost immediately thereafter. Traffic accident cases tend to be direct cause cases. Consequences foreseeable, liability fair. Proximate cause is almost never a problem for Π in these cases. The only problem for Π in direct cause cases is if the result is freakish and bizarre.

• Indirect cause question on bar—more frequently tested: Δ commits breach, and then there are other events that take place, and only after they take place, Π is injured. (Breach>>event>>event>>BAM!). The well-settled quartet—in all 4 of the following scenarios, the consensus is that liability is fair, and Δ pays:

• Intervening medical negligence: Δ runs red light and hits pedestrian, breaks the man’s leg, he’s a hit and run driver. Man goes to hospital, treated by incompetent dr, who puts cast on wrong leg, leg develops gangrene, and leg has to be amputated? Is the driver responsible for the breaking of the leg? Or the amputated leg? Δ driver is responsible for the amputated leg. When you hurt someone and thrust them into the medical system, in some cases, it’s foreseeable that doctors will make things worse, not better. Δ, driver, is the proximate cause of his leg being amputated. The doctor will also be liable for his own negligence, but this hypo focuses on the driver.

• Intervening negligent rescue: Δ runs red light, hits pedestrian, we catch him. Pedestrian gets rescued by a Good Samaritan but during the rescue, the rescuer made things worse by hurting his shoulder. Δ driver is the proximate cause of the dislocated shoulder.

• Intervening protection or reaction forces: Δ runs red light, crowded with pedestrians, his one, breaks leg, other pedestrians freak out, and stampede to get out of the way, and during the stampede, pedestrian gets stomped along. If you behave carelessly, others will react harshly, and make things worse.

• A subsequent disease or accident: same hypo. Δ goes to hospital, and gets crutches, but falls at home and breaks his harm. Should we hold Δ driver for broken arm, and leg? Yes. If you hurt someone and leave him in a debilitated condition, he is more likely to get hurt.

• If we get a question that is not under 1 of 4 on bar, look at the breach. What about the breach is negligent? What am I afraid of? Skip over everything that happens in the middle of the story, and look at the final outcome and look at the Π and ask, is this what you were afraid of? If yes, Π will win. If not Π will lose.

• Bad shrimp does not unforeseeably break arms. Π does not recover.

Torts: Negligence: Causation: Factual Cause

Factual cause (must do this first in an essay) Π must establish a link between the breach and the injury suffered. The breach was a factual cause, not the Δ.

• “But for” test: whether but for the breach, the accident would have been avoided. Focus on the breach.

• However, when there are Multiple Δ’s:

• Multiple Δ’s and merged causes – (Al and Bill forest fire hypo) “Substantial factor” test – was the breach of each Δ a substantial factor contributing to Π’s injuries. If the answer is yes as to both, we’ll hold them both jointly liable.

• Unascertainable causes – (Summers v. Tice: bird hunting accident, the breach of one of the other hunters caused his blindness, and the breach of the other hunter caused nothing; we don’t know who breached that caused the problem. In order for Moe to hold Larry liable in negligence, he has to show that more likely than not that Larry’s breach put out his eye.). Shifting the burden of proof from Π to Δ to show that their breach was not the cause. If they cannot satisfy the new burden of proof, they’ll have to pay. If neither of them can satisfy the newly shifted burden of proof, then both Δ’s are held jointly liable.

Torts: Negligence: Breach

Breach –

• Analysis

• Requires Π to identify the specific wrongful conduct Δ, and explain to us why it was wrongful.
• Always think and write in of the wrongful conduct and explain why its wrongful.
• The more detailed the duty, the less you have to say about the breach. On the other hand, the more general and open ended the duty, then the more you have to say about the breach.

• Res Ipsa Loquitor – a breach doctrine “The thing speaks for itself”

• If Π lacks info about what Δ did wrong—if Π doesn’t know exactly what happened.

• In RIL cases, there are not very many facts.

• To use doctrine of RIL, Π shows 2 things to get to jury: [2 prongs]

• Π must show that the accident is one normally associated with negligence of some kind.

• RIL is an argument based on probability.

• The first prong is sometimes demonstrated by use of expert testimony.

• Π must also show that the accident that occurred is normally due to the negligence of someone in this particular Δ’s position.

• Show that Δ had the control over the injury-causing object or the instrumentality.

• After Π shows these 2 things, the Π normally goes to jury, and jury can go either way, sometimes, the RIL evidence can be so overwhelming that a judge can direct
  

Torts: Negligence: Duty: 6 special duty scenarios: Neglgent infliction of emtional distress (NIED)

Negligent infliction of emotional distress [NIED] – This is NOT where Δ causes direct trauma to Π. Π can recover if:

• Π must have been in zone of physical danger. (it’s gotta be a near miss fact pattern) and,

• Π must show subsequent physical manifestations of the distress. Subsequent can be any time after the event.

• EX: heart-attack; miscarriage; rash; hives; anything observable and measurable. Anything self-reported is not good enough.

• Bystander distress claim: focus on the unpleasant emotion suffered by Π. Grief/sorrow/horror. The distressed party will have a ringside seat to a negligently inflicted injury on a close family member.

• Distinguishing between IIED and NIED. Before you apply any rules, categorize the factpattern. IIED = intent. Δ is acting on purpose; NIED = Δ acting carelessly.

Torts: Negligence: Duty: 6 special duty scenarios: Duty to Act Affirmatively

Duty to act affirmatively: No rules here. There are no duties to act affirmatively. But there are some exceptions. There is no duty to rescue a person in peril. No matter how evil the Δ, there’s no duty to rescue. However, there is never an obligation to put your own life in peril. 2 exceptions:

• Exception: If Δ caused the peril, then there’s a duty to rescue.

• Exception: If there’s a preexisting relationship between Δ and person in peril.

• Family relationship

• Common carriers (passengers) and innkeepers (guests)

• Landowner/invitee.

• If Δ has no duty to rescue and chooses to rescue nonetheless, a gratuitous rescuer will be held liable if he or she messes up. If you choose to rescue, you must rescue like a RPP would rescue

Torts: Negligence: Duty: 6 special duty scenarios: Statutory Standards of Care/Negigence Per Se

Statutory Standards of Care – Π having been injured will file a negligence claim, getting ready for trial Π will discover a statute which specifically addresses the conduct of Δ that cause the injury. The problem will be that the statute will not provide for civil tort liability; rather it will be criminal or regulatory in nature, and technically will have no relevance to the negligence claim. Π may borrow the statute and make it the duty std for this case only, and if I can prove that Δ violated the terms of the statute, let’s make it negligence per se. A statute’s specific duty may replace the more general common law duty of care if: (class of person, class of risk)

• (1) Π shows he is a member of the class of persons the statute seeks to protect

• (2) Π also has to show that the accident that occurred is within the class of risks that this statute seeks to prevent

If there’s a violation, then it’s negligence per se.

• EX: woman goes to work one day. she is unaware at the time she goes to office that there’s a gas leak from the stove in her kitchen. Has stressful day at work. Comes home, and really exhausted. She heads right for an overstuffed chair, and decides she needs to smoke some pot. She takes weed accoutrements from cigar box on her table, so she lights up, and there’s an enormous explosion. The gas had accumulated into a volatile cloud. The explosion destroys the neighbor’s wall. Π wants to sue. Π finds statute saying pot possession is a class A felony. Look at class of person, class of risk test. Statute designed to protect the drug user. It is not designed to protect next door neighbor. We have failed the 2 part test. Don’t borrow the statute. Π just goes forward to litigate under the RPP test.

• Exception: If compliance with the statute would be more dangerous than violation, do not borrow the statute, even when the 2 part test is met.

• Ex: Dave driving down narrow, curvy hwy. as he’s coming around curve, a child runs out. Dave swerves. Pete coming in the opposite direction, his a tree. Pete wants to use the don’t cross the yellow double line statute against Dave. Here, don’t borrow the statute, because compliance (staying in lane) would have been more dangerous than violation.

• Exception: if compliance was impossible under the statute, do not borrow the statute.

• Ex: Dave driving through major avenue, gets heart attack runs red light, hits Dave. Dave wants to use don’t run the red light statute. He can’t.

Torts: Negligence: Duty: 6 special duty scenarios: Duty Owed by possessors of land to those who come on the land

*Duty owed by possessors of land to those who come on the land*

• Possessor is usually the owner |This is highly tested.

• First, how did the entrant get hurt: (2 ways)

• Some entrants will get hurt by an activity being conducted on the land by a possessor or by one of the possessor’s employees.

• By encountering a dangerous condition on the land

• Second, look at who the entrant is.(4 kinds of entrants)

• Undiscovered trespasser: comes on to land without permission of possessor.

• DUTY OWED BY POSSESSOR: None.

• Undiscovered trespasser always loses.It does not matter how he gets hurt.This person is always an unforeseeable victim.

• Discovered trespasser: includes any trespassers who should be expected or anticipated. Look for past pattern of regular trespass on a section of land, and is likely to continue.

• With regard to activities, possessors owe the care of a RPP acting under similar circumstances.

• Conditions: A possessor owes a duty to the trespasser only when the dangerous condition meets a 4 part tests:

• In order to have a duty, the condition must be an artificial condition. No duty of care for a natural condition.

• Highly dangerous conditions: duty to protect if the condition can kill or maim.If condition is slightly dangerous, there’s no duty.

• Concealed condition with respect to the discovered trespasser.D.P. must not be able to see condition.However, Possessor has no duty to protect from an open/obvious condition.

• But…Possessor had advanced knowledge of dangerous condition

{Duty to protect discovered trespasser against known, made-made, deathtraps on the land.}

• Licensee: people who come on land with permission for their own purposes and without conferring any economic benefit on the owner.

• On bar, mostly licensees are social guests.

• DUTIES owed to licensees:

• w/ regard to Activities: Care of RPP acting under similar circumstances.

• w/ regard to Conditions: possessor must protect a licensee from conditions that meet a 2 part test:

• condition must be concealed from licensee

• condition must be known in advance by the possessor.

{Duty to protect licensees from all known traps on the land}

• Invitees: persons who enter premises for commercial premises (store, office) or people who enter land that is thrown open to the public at large.

• DUTIES owed to invitees:

• w/ regard to activities: Care of RPP.

• w/ regard to conditions:possessor owes a duty to protect invitee from conditions that meet a 2 part test
• Condition must be concealed from the invitee.

• Condition must be one that possessor either knew about in advance or could have discovered through a reasonable inspection.

{Duty to protect from all reasonably traps on the land}

Land possessor duty footnotes:
à FN1 – Firefighters and police officers never recover for injuries that are an inherent risk of their job. Firefighters and police officers have assumption of the risk.

à FN2 – Child trespasser: entitled to the care of a reasonably prudent person w/ regard to artificial conditions on the land. The more likely it is that kids will trespass, the safer I should make my property. Is there something on land that is appealing to children?

à FN3 – whenever there is a condition issue, and the possessor owes a duty to the entrant w/regard to condition. Possessor can satisfy the duty and avoid liability: (1) occupier can fix the problem to remedy the condition; or (2) give a warning.

Torts: Negligence: Duty: 6 special duty scenarios: Professionals

Professionals: (lawyer/accountant/engineer/architect/doctor)

• Usually comes up in medical malpractice.

• A professional owes a patient or client the care of the average member of that profession practicing in a similar community.

• Empirical std. Requires factual investigation. A physician or other professional should behave like his colleagues. The custom of the profession sets the std. of care.

• ON BAR: Π demonstrates the duty(std of care) to the jury by educating the jury with an expert witness.

• IN ESSAY use: “conform to custom of profession” NOT “reasonableness”

• ON BAR: A primary care doc is held the same std. as a doc in a similar geographic community. So a big city doc could be an expert witness against another big city doc. Rural doc is held to std. of other rural doctors.

• ON BAR: A specialist is held the std of person in the specialty, no matter where he practices.

Torts: Negligence: Duty: 6 special duty scenarios: Children

Children:

• Under 4 have no duty of care and can never be held neg.

• Over age of 4 and under 18: owe duty of care of similar age, experience, and intelligence, acting under similar circumstances (subjective standard – different for every kid in the world; it’s a very pro-Δ std.)

• It is very difficult to win a negligence claim against children.

• Exception: if the child is engaged in an adult activity, we will not use the special standard. Apply the RPP std. (i.e. operating a motorized vehicle; tractor; jetski; snowmobile).