Torts-Kaye

12. Is what Weber would have called a "formally rational" system, like that of civil law systems, inherently superior to other systems of law?

it sets out rules that you know about ahead of time rather than finding out the rules after the fact when a judge/jury determines it, so It appears that Weber would view a "formally rational" system as an inherently superior system of law . However, a civil system may not change and evolve with the times as a jury may reflect in a civil system.

3 ways to claim several liability

joint enterprise, vicarious liability, concurrent causes of injury; concurrent causes: odd one out because you could be held liable with someone whom you have no prior relationship

Survival Actions

the primary victim died; •brought by Personal Representative of the estate; •damages are for the victim's harm until death (including pain and suffering). A personal injury action that survives the life of decedent •Damages become part of the estate •Cost of the lawsuit is borne by the estate

Children Standard of Care

(Appelhans - 5 year old rides bike into the back of a lady). Minimum age that a child can be found negligent and the courts determine it on a case-by-case basis. Held to the conduct of a reasonable person of the same age and experience, not of an adult. If participating in an adult activity they are held to the same standard of a reasonable adult doing that activity.

. Rank the purposes or policy objectives of the law of torts in the order of importance you think most appropriate and be prepared to explain this order.

refer to doc.

Risk Management Policies

(a) to make moments of thoughtlessness less common, either by forcing individuals to think through what they are doing more carefully or by making reasonable conduct a matter of habit or routine; and (b) to provide a system of monitoring, supervision, or peer review which will act as a sort of "failsafe" system by enhancing the chances of detection of someone's carelessness before it has the chance to cause anyone significant harm.

Duty Owned to Invitee

1. Make reasonable inspections of premises; 2. Take reasonable steps to keep invitee safe while on premises; 3. Warn of dangers that are not obvious, and provide reasonable guidance on how to avoid them

Empty Chair Defense

Adopted by many states. In Florida, it is the Fabre defense: allows a defendant to allege a victim's injuries were caused by someone else without impleading that person. But the 3rd party cannot be ordered to pay damaged, if not on trial. Allows defendants to escape some liability. An AFFIRMATIVE defense; Not every jurisdiction allows an empty chair defense; It requires the defendant to pay more than his percentage of fault. Only way to determine % of fault is to compare defendant to ALL OTHER PARTIES involved to the accident, regardless of whether a defendant or not.

Substantial Factor Test

Alternative to the but-for test, directed not at identifying THE cause, but A cause of the victims injury. Asks whether each defendant's-or the plaintiff's own- conduct was one of the factors that played a role in causing the victim harm. Focused on what actually happened.

Common Employment

Applied only to work accidents caused by another employee ; ABOLISHED BY THE STATES; Changed to a workers compensation scheme (more efficient)

Pure Comparative Negligence

Apportions responsibility based on fault of the actors and victim (12 states use

why is the CL so called?

Because it was common to the whole of England. Common law is the law of the king.

How and why is the availability of insurance fundamental to the operation of the law of torts? Is this is a good thing?

Because most often, the person who caused the tort act is not the one to pay compensation because insurance does it. It is generally a good thing because the victim gets compensation higher than a single person could pay.

The courts are not always prepared to recognize a duty of care for pure economic loss when the parties involved were in contractual privity. Why (not)? When does such recognition make sense?

Because they could and should simply sue for breach of contract. If they can not receive a remedy under contract law, then possibly the court would allow it under tort law. Not all relationships are that close.

Wrongful Birth

Brought by a parent; or fetus suffers injury because doctor did not detect defect in time and mother cannot abort. In some states, both wrongful life and birth are prohibited claims

Remote vs. Immediate Causes

Do not want unlimited liability - needs to have a cut-off point. Old law: the immediate consequences (time/space) of an act are legally relevant. However, some injuries take time to manifest; NO LONGER dependent on time or distance to determine if the defendant caused injury. Law is not pure logic - considers policy reasons for limits - unavoidably

9.5 Write out a jury instruction on factual causation which incorporates the NESS test and which is likely to be easily understood by lay persons eligible to sit on a jury.

EDDY HELP

Reasonableness

Essence of standard of care. Trying to have jury members apply their own, ordinary life experiences to work out collectively what should normally have been done by the defendant.

Comparative Fault vs. Comparative Causation

Even a momentary lapse of concentration can cause great injury ; damages in torts is measured according to the HARM inflicted, not the FAULT involved; it is strange to make a defendant liable according to fault.

7.1 1. Should the attractive nuisance doctrine have been applied in the case of Scibelli v. Pennsylvania Railroad Co.?

Facts of the case. Definition of Premises Liability. Definition of attractive nuisance doctrine. Definition of foreseeability. Kids are attracted to trains. Train company should have foreseen children wanting to play on train. Kid was very young, minor trespasser. Transform him into invitee by attractive nuisance.

In Loco Parentis

For schools and teachers; treat students as a reasonable parent would

Why, in Ultramares, does Chief Judge Cardozo not impose the same limits on the application of the tort of fraudulent misrepresentation that he imposes on the tort of negligence?

He was emphasizing retribution. It's about the person's guilt. They deserve punishment because, w/ fraud, they intentionally misrepresented. If you choose to mislead, you choose to mislead to however number of victims. Indeterminate victims is not a problem because they chose it.

Unholy Trinity

Historically 3 affirmative defenses that would bar plaintiff: Common Employment Contributory Negligence Voluntary Assumption of Risk

11.12 Is Potter v. Firestone Tire & Rubber Co.4 best treated as: (a) a case of personal injury; (b) a case of emotional distress; or (c) a case of a reduced chance of avoiding physical injury in the future? How and why does this matter?

I think it is both (b) and (c) because it is about a reduced chance of avoiding physical injury in the future and because of that reduced chance, the plaintiffs suffered emotional distress. It's possibly also (a) because the personal injury could include being exposed to toxic chemicals. Though probably not as the injury had not manifested yet.

What lessons should those in business learn from Ultramares?

If you are going to certify that something is true, double check your stuff yo. If you are going to make a business decision based on a representation, double check their stuff. And maybe don't trust what someone says about a specific company if they are being paid by that company. Plus then you'd have a K with that company. Due diligence.

Modified Comparative Fault

Imposes a threshold level of fault of the victim, above which he is precluded from receiving compensation. Some states use a 50% threshold (if victim was at least half at fault, then barred), while others may be higher) - relates back to the substantial cause analysis.

(CHECK) Would Lister be decided the same way in the US?

In the case of teacher misconduct, serious sexual misconduct the teacher is held individually liable whereas the school is not held vicariously liable except in the court of public opinion

Prudent Patient Standard of Care

Informed consent standard that, if the patient asks more questions, the doctors are obliged to answer truthfully (the more questions asked, the higher the standard).

Eggshell Plaintiff Instructions

Instruct the jury that defendant takes plaintiff as he finds him, even if there is harm that an ordinary person would not have suffered. REJECTS THE LIMITATIONS OF FORESEEABILITY THAT IS USUALLY REQUIRED FOR PROXIMATE CAUSE - imposes FULL liability for injuries, NOT merely the "foreseeable" injuries; the plaintiff's actions ultimately proximately caused the harm, NOT the heart condition Plaintiff's preexisting condition must be a contributing factor to the death Must be requested in a JURY INSTRUCTION

Indivisible Harm

It may be impossible to say which portion of the injury was caused by each defendant. The traditional common law used joint and several liability; each defendant can be sued individually for 100% of the damages, but the victim can never recover more than 100% total. (plaintiff can chose to sue the deepest pockets in order to recover). The named defendant can then sue for contribution against other tortfeasors, or implead them into the case.

Risks (approach taken by the R,3rd §29)

JURY: considers all the reasons for finding the defendant potentially tortious. Then looks at the harm; compare the plaintiff's harm with the range of harms that should be expected based on defendant's conduct

No Anomaly to Pain and Suffering

Kaye argues that there is no anomaly because pain and suffering usually is connected to PHYSICAL injury and should not require another test for duty; should not impose statutory caps - should be treated the same as consequential mental distress from physical injury.

8.5 What guidance on risk assessment would you give to an American university which was thinking of running a summer school in London, UK for its students?

Matter of Facts. DON'T FOCUS ON AVOIDING LIABILITY. FOCUS ON AVOIDING HARM. No harm then no liability. Point of risk assessment is to make changes and policies that reduce harm. regularly re-evaluate as the program goes on. Act reasonably and you won't be held liable. If a second person gets injured in the same way, then they'd be liable as they were on notice. How do you do a risk assessment? Look at provisional itinerary and classes and such. Send someone from the US who'd never been to the UK before. Around the same age group to accurately predict the risks they would take. There is a risk to the risk assessment. Have them document everything they do from the US airport on. Make sure they have a passport (Make them prove they have a valid passport and big bold letters, apply for a passport.) Make them bring it to the airport. Both these are high/high risks. International health insurance. Safe housing. Identify likely risks. Look at other similar programs (not first but later). Who's law would apply? It would be up to the Plaintiff. While there, subject to English law. Contract here in the US. Plaintiff choses which law applies. Can't take English law and apply it in the US. Therefore, learn the laws.

8.10 Is there a different standard of care for novices? If so, why and how? If not, why not?

No. A novice is still a professional. Example: driving a car for the first time.

Foreseeable Type of Harm

Plaintiff does NOT have to prove that the SPECIFIC harm was foreseeable, only that this TYPE OF RISK/damage was foreseeable and would make a reasonable person adjust his conduct to avoid the risk. If the type of harm that caused the injury was foreseeable its within scope of liability. HARM MUST BE OF A TYPE THAT IS REASONABLY FORESEEABLE IN ORDER TO BE COMPENSABLE.

Voluntary Assumption of Risk

Pleaded regularly, although disowned by the ALI.

8.3 Why was the practice of risk assessment, and the use of risk assessment charts, adopted (a) in the US military, and (b) in Europe, significantly earlier than in US civilian life?

So you can manage the risk. The point is that life is risky, and you cant eliminate (nor do you want to) all the risk. 1. The troops have a higher risk of dying than regular civilian life 2. Military equipment is a huge amount of money. Assessment of risk providing that its lower compared to other vehicles. Now there is an actual risk if you are negligent. Risk assessment is trying to meet the standard of care

Comparative Fault Strategy

Some plaintiff's use comparative as a SWORD; use it to make the plaintiff look like a reasonable person who is willing to accept some fault, while making the defendant look irresponsible and callous; enhances the chances of winning, by sacrificing some compensatory damages (ex. to sue tobacco companies)

Premises Liability

Someone is physically injured by a hazard situated on someone else's premises. In order to implicate the law on premises liability, the safety of the premises themselves must be in question. Not concerned with if the defendant was negligent, but the state of the defendants property. This doctrine does not recognize claims for either pure economic loss or pure emotional distress.

Intervening Cause

Something that contributes to the victim's harm either concurrently or after the defendant's conduct (and also caused injury or made the injury worse). If an intervening cause can come between the defendant's act and the victim's harm, then there is INSUFFICIENT PROXIMITY , and NO CAUSATION

Professional Standard of Care

Specialized skill and training - defer to expertise of the profession (Bruni - Dr using unsanctioned practices).

What is the best test for which secondary victims should be owed a duty of care?

Start with the primary victim - was the primary victim owed a duty of care? If not, then the secondary victims definitely weren't. If the primary victim was owed a duty of care, then you would evaluate for the secondary victims. The possibility of indeterminate liability to an indeterminate class is clearly at its highest with secondary victims who claim to have suffered pure emotional distress (i.e. they have not suffered any physical harm or touching). The courts therefore seek to limit the number of such potential secondary victims to whom a duty is owed. the courts consistently insist on some sort of close connection (a) between plaintiff and defendant, and (b) in cases involving a secondary victim, between the primary and secondary victims.

Affirmative Defenses

Statute of limitations, contributory negligence, assumption of risk, or a justification; Affirmative defenses must be pled in the answer (or may be precluded from making the claim)

The phrase "on a frolic of his own" is perhaps one of the most popular in the legal lexicon. Does it any longer have any meaning?

The label that the law applies to a situation where an employee has engaged in an activity outside the scope of what his or employer could reasonably have been expected to foresee. The consequence of an employee's being engaged in a frolic is that the employer cannot be held vicariously liable for the consequences of the employee's conduct. It still has meaning in today's legal theory, but is probably most applicable to a driver who intentionally goes off course or intentionally drives a vehicle that is not suitable for the job they are entrusted with

8.9 As was noted in Bruni v. Tatsumi, the standard of care for medical professionals includes the necessity of obtaining the informed consent of the patient. How should a medical professional obtain such informed consent, and how is a jury to determine whether it was, in fact, obtained?

The standard expected for a reasonable patient (informed consent). A doctor can not treat a patient without their informed consent. Explain what is to be done and the risks of such and then do what they said they would do. (If say surgery on left leg, don't perform surgery on right leg.) The doctor should have it in writing so (among other things) the jury can evaluate the consent given. If the doctor is trying something new, he might not know the risks to tell the client so how is it informed? What should have been done - Must explain what the normal procedure, what the differences are, what some possible risks may be, that some risks may be unknown. If it's something that has been done a billion times and a crazy one in a million harm occurs, they are still covered because they did what every other doctor would do. Reasonable person idea.

Limited Duty Rule

To protect spectators; stadium owners must provide sufficient amount of protected seating for people, and protection for dangerous parts. By defining duty, the limited duty rule shields the owner from unreasonable precautions, and establishes the limits to liability. If he complies then he satisfied duty Assumption of risk is a "catchy shorthand" instead of analyzing the elements of the prima facie case

What did the CL in England originally replace, and why?

Unwritten local customs that was replaced with common law so as to be consistent from place to place and to enable the king to more easily collect taxes and maintain order/enforce the laws.

Comparative Fault

Used when there is more than 1 negligent cause; used on all jurisdictions, except 5 (no longer use contributory). This is a partial defense. Means different things in different states term may be inconsistently applied. 2 Types: Pure & Modified

Causation

Very difficult for the plaintiff to establish that the defendant caused the injuries. Courts also have been using this term interchangeably. Don't use this term!

10.1 Is it better that the test for scope of liability is that of reasonable foreseeability of the type of harm sustained, rather than reasonable foreseeability of the mechanism by which the harm was caused?

What happened vs How it happened? I think the better test for scope of liability is the reasonable foreseeability of the TYPE of harm sustained. I feel that requiring the mechanism to be foreseeable makes it more difficult to assign liability because basically the defendant would have to foresee not only that an outcome was possible, but that it would occur in a specific way. Mechanism is the sequence how do we know what is the right type? -the jury is saying what type it is -this can be problematic -have to decide what was foreseeable, after they already know the outcome of events - at the time, austrailia did not have a "highest court" most caribbean countries still use the privy council This is before mcgee, and we can continue to cite it

Should the study of law be treated as science?

Yes : b/c you use something similiar to the scientific research process. question (issue) research (cases) hypothesis (persuasive argument) test (in court) result/conclusion (holding) But no: because there is no "exact measurement" and decisions are often more based on subjective reasoning then objective reasoning

12.4 Should plaintiffs be able to plead their own comparative fault?

Yes, because although they are partly at fault, they are not completely at fault and therefore, they should have the opportunity to make the claims against the other parties who were also at fault. Assuming they meet all the other requirements of Negligence. Used in tobacco cases. Brings credibility. the tobacco company had to pay punitive. The % that gets subtracted for plaintiff's fault is only compensable damages. So BOOM. Money. If the plaintiff gets to plead anything even a defense, is it unfair? Punitive damages

Invitee

[Premises Liability] A person who enters someone else's land or premises with express or implied permission and for the actual or potential economic benefit of the person in ownership or possession. Ex. Customer going into shop.

(CHECK) Should property law always defeat tort law

a. Again, always is a strong word - it depends on the circumstances b. Property law is all black and white which doesn't generally give you the opportunity to dispense justice whereas torts gives you the flexibility to review the facts of a case and then dispense justice in that way

What alternative to the zone of danger test might be preferable, at least in cases like Macpherson?

a. Andrews test - proximate cause - if the type of injury is foreseeable, then the person has a suit OR b. There needs to be a definable, foreseeable relationship between the defendant and the victim. May face an indeterminacy issue.

What is the difference between "supervision" and "control," and why does it matter?

a. Supervision is the relationship between an employer and an independent contractor b. Control is the relationship between an employer and employee or master and servant - this is a more binding relationship c. The type of relationship matters because of who the responsibility for the tortfeasor's actions will lay with - in a supervisory relationship, the responsibility lies with the tortfeasor whereas in a control-based relationship, the responsibility lies with the principal (employer/master)

Why is an understanding of the concept of risk essential to an understanding of the law of torts?

while we want the law to try to deter behavior that has a disproportionate risk of harm, we equally do not wish to develop legal doctrine that inhibits the taking of worthwhile risks. Its a is a balancing act; limit unjustifiable risk while allowing an acceptable level of risk in order to encourage life, new business ventures etc.

9. Does the type of legal system in each jurisdiction provide a good indicator of the type of society that exists within that jurisdiction?

Émile Durkheim, suggested that the type of law that predominates at a given time in a given society provides a good indication (or what he called an "index") of the type of society that exists. He argued moreover that, as societies develop, they move from what he called "repressive" law to what he termed "restitutive" law.a. Yes, the common law legal system evolves with changes in societal norms and customs - it may not evolve as quickly as the society, but it does generally eventually catch up

12.6 High-risk sports and activities have become increasingly popular in recent years. Freediving is one such sport and is notoriously dangerous, even for the world's best.2 To what extent (if at all) does the law of negligence have to change in order to treat in an appropriate manner deaths and other injuries that occur while individuals undertake such activities?

Wouldn't it depend on whether the actions by the potential defendant was reasonable for that sport? Why do you need to assume the risk if they don't owe you a duty? When there is a duty, it's to act reasonably! Negligence is not inherent in the injury; voluntary assumption is not the same as consent-->consent is what do to a surgeon for example; voluntary assumption of risk is no duty; dont want to argue that as a defendant --> you want to say you NEVER OWED A DUTY because you never took on a risk. (read kayes response to matt)

10. Is it true that both the jury system and the common law are formally irrational, like the oracles of ancient Greece?

Yes, because the common law is unsystematic whereby it allows judges and juries to create law and make decisions after the occurrence of events rather than before them. According to Weber yes, however the common law is calculable because analogy and induction do provide reasonably clear predictors of the law to those (like judges and attorneys) who are trained in their usage. so not completely irrational. Weber would say: (ORACLE): Formal system. it's consistent with a series of rules. have to pay money, give sacrafice, ask a question, etc. happens everytime; has no meaning except in this system. BUT; it's irrational. may differ as to how much she'll say.case by case basis (Civil Law):Formal rational. very predictable. know what the rules are before (Common Law):formal irrational. know what the procedural is, who does questions of law and fact. know the substantive arguments

11.5 Would recognizing a pregnant woman's legal duty of care in negligence to her unborn child present "an almost unlimited number of circumstances that would likely give rise to litigation"?

Yes, because there are so many day to day things that could be considered negligence that falling down could end up making the mother liable. I would be afraid that normal accidents would become liable. Didn't research a drug prescribed by a doctor? Negligent. Went jogging while pregnant and fell, Liable. Ate a hamburger instead of a salad??? What a slippery slope. Also, who's rights are more important questions. The mother's or the fetus's?

(CHECK) Is it fair to say that vicarious liability is a means of rendering "rough justice," but that the degree of roughness it involves is far less than would be the case if the doctrine did not exist?

Yes, if there was no vicarious liability, then victims would often have no remedy but sometimes it can be unfair to the business.

(CHECK) Should it be possible to claim compensation for suffering emotional distress at all?

Yes, if you suffer from PSTD or some other ailment due to the emotional distress, it's just as real an injury as a broken leg and affects your life just as much or more so. However, it is difficult to determine who it's foreseeable to be harmed by emotional distress. 9/11 is an example of the indeterminacy issue. A psychiatric injury makes it easy to calculate damages incurred and future damages such as medical care. however, because its difficult to obtain objective medical evidence of a mental health condition, could be hard to prove the injury. Also could be hard to prove causation; that the ∆ action's caused this emotional distress. people react to things in different ways, no way to foresee the extent of that harm b/c it can vary. Also, hard to prove that the condition was not pre-existing or triggered by other life events and now its being pinned on the ∆.

Scope of Liability: Various Risk to Various Persons

Context and facts are important. Prior incidents and evidence can show that certain risks were indeed foreseeable - was the conduct a TYPE that usually increases the risk of harm. If the harm is likely to occur due to the actor's conduct=within scope Failure to have adequate precautions against risk=within scope

10.2 How can the doctrine of scope of liability and the eggshell skull rule be reconciled?

Defendant must have foreseen that some injury could occur, not the extent of the injury. In Benn, the court held that the defendant could be held liable if he foreseen the harm not the amount of harm Scope of liability first -type of harm foreseeable Eggshell skull rule: Do scope first, make sure you had a reasonable foreseeable type of harm and injuries are of the right type. Eggshell: we are not going to limit the damages you can complain, if you have more harm than damages. once you go through scope, any harm you suffered is compensable. if you do eggshell first, then you take the victim as you find them, cant do scope then. This emphasis this point, how do you know what the right type is? if you define eggshell as concussion, then you get compensation, but if you got blood loss, then you do get compensation why do we call it scope of liability now? -asking the jury, what should they be liable of? -is it fair to attribute liability to this harm or not?

Eggshell Skull Rule

Defendant takes his victims as he finds them. Does not matter if plaintiff is unusually sensitive. ex. Benn v. Thomas; car accident was the "last straw" that killed plaintiff (heart problems). Related to older notions of "direct/indirect" harm as tests for proximate harm.Is an exception to foreseeability. In Benn, the court blended together scope of liability with the eggshell skull rule; rejects the limit on foreseeability that is usually required for scope of liability. Should be supported by MEDICAL TESTIMONY. If you FORESEE THE INJURY, then you are responsible for injures that were greater than expected.

8.13 Does the development of new technology increase or decrease the likelihood of the practice of so-called "defensive medicine"? Is this a good or bad thing?

Defensive medicine is the practice of doctors doing medical procedures solely for the purpose of reducing probability of liability. We have sensitive technology now that can monitor one's health. ex. fetus heart rate. So if they even see there's a discrepancy in the monitor, and they would just induce the pregnancy through C section to prevent being held responsible for not doing something. So I would say it increases the likelihood of defensive medicine. Its a bad thing, because people may have to undergo certain risky medical procedure and test they otherwise wouldn't have had to because the doctor wants to avoid probability of litigation.

8.8 Are judges deferential to skilled people? Does it matter? Why (not)?

Deferential means that the judge behaves as if a professional should be believed. A judge can put them self in the shoes of a regular person. But cannot as well for skilled people/experts. So skilled people basically make up their own rules and standard of care. However, the insurance company ends up making the standard of care. Restricts innovation. Did the defendant know of should reasonably have known if the plaintiff has a disability? The standard of care is reasonableness; lowered in circumstances with children. Who is determined to have to know? Who informs them of the risks that could arise? Yes, judges are deferential to skilled people.

Reasonable Patient Standard of Care

Doctor is required to disclose all risks to allow a reasonable person to make an informed decision. Consent that must be obtained from a conscious and capable patient before a medical procedure can be performed.

Statutory Limits to Pain and Suffering

Due to the indeterminate claims for pain, there was pressure to impose statutory caps on "non-economic" damages such as lost wages and medical bills - some states have passed legislature. (usually aimed at high limits, but fraud usually occurs for lower damage amounts - measures to fight fraud need to be aimed at lower-level abuse)

Difference between NESS and Substantial Factor Test

Substantial Factor: focuses on the 1 factor that is more likely than not the cause of the injury NESS: broader and focuses on all possible factors - may implead everybody

(CHECK) Is the "close connection" test in Lister effectively the same test as the "characteristic activities" test in Taber?

"Close connection" test (UK) = "a master ... is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised, that they may rightly be regarded as modes — although improper modes — of doing them" "Characteristic activities" test (US) = even if the precursory act is not committed during sanctioned employee duties, if it is a "characteristic of [the job's] activities" then it would be seen as being done within the lines of the employee's duties practical area where the two tests are not the same - the first time something happens it is not a characteristic activity, but that doesn't matter with close connection e. Do these tests basically close the gap between non-delegable duties (primary liability) and vicarious liability? i. Yes, because the employer is becoming more and more responsible for the behaviors of their employees whether or not they are actually acting within their job description ii. Canada did this completely because it allows the victim to be compensated no matter what

which other counties in the industrialized world share the same system of law, and which did not?

(Germany, China and Japan) (France, Russia,) (Spain and latin america) are civil. Common law systems can not be transported that way. CL - England, Australia, New Zealand, Hong Kong, India South Africa has a mixed system because of the dutch. Scotland had a civil but because of England they now have a mixed system. Pakastan says they are a common law system. If in a city, then yes, common law. Religious law if in the country. Columbia is changing it's criminal system from civil law to common law because of the drug cartels. America gave them enough money to change with the condition that they changed. The system is too corrupt.

Section 10(b) of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm.

(a) A child's conduct is negligent if it does not conform to that of a reasonably careful person of the same age, intelligence, and experience, except as provided in Subsection (b) or (c). (b) A child less than five years of age is incapable of negligence. (c) The special rule in Subsection (a) does not apply when the child is engaging in a dangerous activity that is characteristically undertaken by adults.

8.11 With which overall objectives of the law of torts are (a) cost-benefit analysis, and (b) the doctrine of res ipsa loquitur most closely associated?

(a) Deterrence works good here, if the risk outweighs the benefit, people will be deterred from doing that harmful action. Also, problem is that this makes people put a value on people's life. everything goes in dollar amount or you can't calculate. (b) Compensation.

8.14 Should the doctrine of in loco parentis apply (a) to K-12 schools, and their teachers, and administrators; (b) to colleges, and their professors and administrators; and (c) to graduate institutions, and their professors and administrators?

(a) Loco parentis is someone acting in the position of the parent. Examples would be teachers, CO, coaches, babysitters, dr. delivering babies. However, this term can be very subjective. There are many different parenting styles, and people in loco parents role may display different styles. This doctrine may be difficult to fulfill efficiently because of the large amount of students these people have to oversee. Parents usually aren't having to look over 30-35 children at the time. This doctrine carries alot of obligation that may be very difficult because of the number of pupils. But either way, we continue to treat teacher K-12 under the loco parentis doctrine and not like professionals. The law hasn't moved this way b/c society doesn't see teachers a professionals. And we unfortunately set a high standard on teachers even while not viewing them as professionals. (b) Professors in colleges should not be acting in loco parentis because most of the students are legal adults (18 or over), and there parents are not even acting in a supervisory role anymore. in the 80's and 90's these institutions had a loco parentis role, but it shifted due to high rates of law suits against the institutions by students. so they wanted to shift from this. But the law is beginning to treats them as loco parentis again. Sexual assault and hazing on college campus has made colleges want to regain the loco parentis role they had a couple decades ago. The cause of these two things are fraternity. Because the students that are a victim to this could sue if the university did nothing. And all because they had no power to do anything about it because they no longer have in loco parentis. (c) Professors in graduate institutions; it is not clear if they are. some jurisdictions differ.

Duty Owed to Trespasser

1. NO duty to inspect; 2. Avoid causing wanton or willful harm; 3. NO duty to warn, except in order to avoid causing wanton or willful harm.

Duty Owed to Licensee

1. NO duty to inspect; 2. Take reasonable steps to keep licensee safe from dangers on the premises about which the possessor knows or ought to be aware; 3. Warn of known dangers that are not obvious, and provide reasonable guidance on how to avoid them.

The two flaws in the but-for test

1. Requiring that the plaintiff first establish what would have happened in counter-factual circumstances, so that we can then compare that hypothesis with what actually did happen, and so draw the inference that the defendant's conduct was the cause of the victim's injuries 2. This test is focused on ascertaining the cause of someone's injury rather than a cause. Yet injuries frequently have more than one cause.

9.6 If a victim, V, is run over first by driver A (who breaks V's right leg), then by driver B (who breaks V's left leg), then by driver C (who runs over both legs in circumstances where they would have been broken if they had not been already), who is the factual cause of (i) V's broken right leg, and (ii) V's broken left leg?

A and C for Right leg. And B and C for Left leg. Though really, all three could have broken both so what the heck kind of hypo is this. But for test - Only A because they didn't happen at the same time. At that time. If not for the defendant's action, the injury would not have happened when and how it did. B & C get canceled out. C cannot be liable for the original break. For something to be a cause, the injury must come after the action. If the injury came after the action, then it cant be a cause. Substantial test - A, C (C is iffy maybe yes) Might infer that c broke it worse. Under Ness test, A and C for Right leg? Sufficient set (running over guy the legs) - YES. B as well if can prove he drove over the leg even if not broke due to B. But for test is where you want to start but for test is terrible at consecutive injury dont have to show NESS test at all DO THIS (like duty and breach) SYSTEMATICALLY

Attractive Nuisance Doctrine

A doctrine treating a child as a licensee, or guest, rather than a trespasser on land having something that would entice children onto those premises, unless the landowner takes reasonable steps to hide or prevent access to the attractive nuisance.

Pain and Suffering

A victim can include pain and suffering in a claim for personal (physical) injury. The common law recognizes that such forms of injury are compensable. But there are 3 problems: 1. Subjective Pain: people feel pain differently; there is no predictability in how much pain an injury may cause 2. Subjective magnitude: there is no way to prove there was pain at all - makes compensation for a jury difficult 3. Potential for fraud Pain is suffering is NOT as heavily regulated by the court as emotional distress claims because it is a sub-species of PHYSICAL injury claims - with a more relaxed test for duty; this is an anomaly; the same problems apply to emotional distress (subjective pain, fraud potential) but the law applies a more restrictive test of duty for emotional distress. Therefore more claims are thrown out because of duty for emotional harm.

7. How do the problems identified in Ultramares affect the point of view that: (a) the principal aim of the law of torts is to compensate victims? (b) the principal aim of the law of torts is optimal deterrence?(c) the principal aim of the law of torts is to distinguish right from wrong? (d) the principal aim of the law of torts is to allocate risk (and therefore damage)?

A. Compensation is harder to get if its limited to only fraud claims. Compensation in this case is not the dominant action. They will not get anything in negligence. B. If optimal deterrence was the principal aim of the law of torts then we would make Touche liable to Ultramares in a way to deter Touche, and other companies, from being careful C. Distinguishing right from wrong is not the principal aim of the law of torts - this case shows that "duty of care" says that it doesn't matter if you were right/wrong, but you can only be held liable to a certain number of people D. This is the purpose of "duty of care" - allocating risk (and damages). By stating that the accounting firm is not liable if their actions are negligent, but are liable if their actions are fraudulent. If the law allocates risk, then it allows people to make the choice on their own as to whether or not they want to take the risk

Defenses

After plaintiff proves prima facie case by a preponderance; BURDEN ON DEFENDANT. Since it is never acceptable to behave unreasonably; every defense to a negligence claim involves an excuse, rather than a justification. State can use sovereign governmental immunity

Inheritance Damages

Allowed if there are lost future earnings which would have increased the estate of the deceased (had he survived). Loss of inheritance is similar to wrongful death Statutory: some state statutes give a cause of action for loss of inheritance; however, must show probability that the decedent would have accumulated assets AND would have left the assets TO THE PLAINTIFF SUING (so the plaintiff has actually lost something) by will or inheritance to statutory beneficiaries Federal Statutes: under the Federal Employer's Liability Act and the Death on High Seas Act, federal government allows a beneficiary to recover for loss of inheritance from a wrongful death A FEW courts do not allow inheritance damages, because it was "too speculative" (but what isn't? all death injuries are somewhat indeterminate and should be left to jury) Calculation: Present Value (PV) that the deceased probably would have added to the estate, but for, the wrongful cause of death Not Every Beneficiary Gets Inheritance Damages: if there would not have been anything to leave, then no damages; if the decedent would have outlived the potential beneficiary, for example; this is a question of fact for the JURY to ultimately decide

Discretionary Functions or Duties

An exception where IMMUNITY IS NOT WAIVED; when a federal employee exercises discretion, regardless of whether it was abused. Policy: want to protect against actions that would impede the responsibility to exercise judgment or make choices about economic policy 2 Part Test for discretionary function exception: Must be subject to judgment or choice Judgment was designed to be shielded; purpose is to prevent second guessing governmental decisions based on policy (grounded in social/economic/political policy) If there is a federal statute that MANDATES conduct, then NOT discretionary If merely "guidelines," then discretionary

Justifications for Joint/Several

An indivisible injury; a concurrent tortfeasor is liable for the whole injury when is the factual and proximate cause (even when it is possible to assign a percentage of fault); allows for compensation to plaintiff

Specific Causation

Asks whether the defendant's breach of duty did actually cause the harm sustained by the victim. a. is a matter of fact unless insufficient evidence to sustain one side's theory of the case b. the onus of proof rests on the plaintiff c. proof is based on the preponderance of the evidence d. is it permissible (but not required) for the jury to draw reasonable inferences from known facts

Immunities

Avoids liability based on status - affirmative defense to negligence - BRIGHT LINE COMPLETE DEFENSE Exceptions: conduct that is so egregious that it was an intentional tort Sovereign Immunity: the most important category (other immunities were abolished - spousal/parental/charitable); each state has its own approach; at the federal level, the defense is the FEDERAL TORT CLAIMS ACT (FTCA) as interpreted by the courts; US is immune under this unless they consent. Includes governmental exercise of police power functions

Firefighter's Rule

Barring torts brought by anyone who is injured while effecting a rescue as part of their job (Wagner - Cousin rescuing cousin who's thrown from a train gets injured)

Firefighter's Rule

Barring torts brought by anyone who is injured while effecting a rescue as part of their job (Wagner - Cousin rescuing cousin who's thrown from a train, gets injured)

Why are the courts prepared to recognize a duty of care for pure economic loss when the parties involved were in a special relationship?

Because having a special relationship makes it more likely that the harm was foreseeable. The existence of a special relationship will be determined largely by the extent to which the particular plaintiff is affected differently from society in general. It may be evident from the defendant's knowledge or specific reason to know of the potential consequences of the wrongdoing, the persons likely to be injured, and the damages likely to be suffered. Such special relationship may be proven through evidence of foreseeability of the nature of the harm to be suffered by the particular plaintiff or an identifiable class and can arise from contractual privity or other close nexus. No indefinite problem. It limits the victims.

Why is the meaning of CL somewhat ironic so far as the USA?

Because one, we now have very different laws than England. And also, because some States have very different laws than others. It is not common/uniform to all. 50 1/2 common law systems in our country. 50 state common laws and 1/2 (federal system) Federal is 1/2 for tort law in that if not federal question, then they use the state law. There is no federal tort law unless there is a tort act passed by congress. No federal tort common law. in case the tort issue involves a constitutional issue. It's 1/2 because of federal rules of procedural which is not the same as state rules. Can lead to different results even when substantive law is the same. (Certain evidence is or isn't admissible in fed court) This is particular important in the law of torts because the biggest issue between P and D is not the evidence, it's about whether or not there will be a trial at all which is sometimes based on procedure. Look to see if the doctrines are decided by the court or by the jury. Tort law is just as much about who gets to decide instead of ...

Wrongful Life

Brought by a child; or when a vasectomy or female sterilization is negligently done and gets pregnant against intentions In some states, both wrongful life and birth are prohibited claims. Extraordinary Damages: the infant plaintiff can recover for extraordinary medical damages, under wrongful life, but NOT general damaged for emotional distress. Policy Considerations: allows damages that can be predictably recovered - medical expenses

Loss of Consortium/ Society

Brought by someone with a close relationship with the victim killed OR INJURED by the defendant's negligence. For the loss or significant diminution of: Companionship; sex-life; guidance; or services provided Can be brought even when victim is alive (UNLIKE wrongful death claims). Have to show that plaintiff was SO BADLY injured that the relationship was materially and detrimentally altered The person bringing a loss of consortium claim is the secondary victim. It is NOT brought as part of a survival action could not be brought by the primary victim Belongs solely to the secondary victim It is NOT part of a wrongful death claim, but can be brought along with a wrongful death claim Spouse: definitely allowed to bring a claim Children: some do and some don't, depending on the court Some courts have imposed safeguards claim must be joined with the parent's claim, if possible; or may impose a "severe impairment" requirement Non-Marital Partners: rejected allowing cohabitants to bring loss of consortium claim Loss / Diminution of Sex Life: plaintiff must prove the harm and how it has changed problem of making information public •Costs are borne by those bringing the action

(CHECK)What were the relevant policies at stake in Scibelli?

Compensation for the injured child; the economic efficiency ramification of telling this company they were wrong and how this will affect other companies; Retribution (what does the company deserve) - since the RR company didn't do anything wrong, then there is nothing to punish; Boundary Maintenance - where do we draw the lines between right and wrong behavior, is something right just because that's how it's always been, what level of conduct is right and wrong for a train company

What are the differences in the approaches of Chief Judge Cardozo and Judge Andrews in Palsgraf, and what are the practical ramifications of these differences? Whose view do you prefer and why?

Cardozo (majority opinion) -The duty of care is only owed to the people he can reasonably expect to be harmed. The guard would have been liable for the owner of the package if he was harmed as he had a duty to him. The plaintiff's injury was not foreseeable. Cause is not important here. If she'd been closer, she would have been in the zone of danger. Zone of danger depends on what is foreseeable. Actual distance does not matter. Prof thinks the zone of danger should be anyone on the platform. The application of this principle (Zone of danger) is too narrow but the right principle.. Andrews (dissent) - That the duty of care does not need to specifically be to the injured person as long as there was an unreasonable act. Duty to society as a whole. The harm may have occurred many feet away but it was caused by a wrong of the guard. T"he act being wrongful, the doer was liable for its proximate results." Doesn't need to be foreseeable. Answers the problem of who can sue by saying it's the same what can be sued for. What sort of injury. He want's to restrict the injuries that could lead to a lawsuit. Emotional, or missing the next train. It's a decision for the jury. But probably. The point of this case is who gets to decide the case. Cardozo wants it by the judge. Andrews wants the jury to decide. Cardozo want predictability which means judge.

Thompson v. Kaczinski

Causation: Scope of Liability This is a case about a man who, while driving down a road, is forced off the road and crashes due to a trampoline from someone's yard that had been blown onto the road. The man sues the owner of the trampoline for their negligence. The trial court granted summary judgement for the trampoline owners, stating they owed no duty under the circumstances because the risk of the trampolines displacement from their yard onto the road was not foreseeable. ISSUE: This court erred in granting summary judgement based on un-foreseeability of the trampoline getting blown onto the road, because the test of scope of liability is not the mechanism, but the type, of harm caused. FINDING: The court stated that the trial court erred in granting summary judgement based on the finding that the mechanism of harm was not foreseeable. Scope of liability is based on foreseeability of the type of harm.

Wagon Mound No. 2

Causation: Scope of Liability This is a case about a ship that, while in dock, inadvertently spills thousands of gallons of bunkering oil into the water, which pooled up at another dock a few hundred yards away. The ship operators did not think bunkering oil could be ablaze on the water. Lo and behold, it can, and it did, setting the dock on fire and burning it to bits. The owner of the dock sued the ship company for their negligence. ISSUE: If bunkering oil was not thought to be able to be set ablaze, we have a foreseeability issue in that the ship company could not have foreseen this damage. If the test of foreseeability is the mechanism of harm, then the ship company cannot be liable. However, if the test of foreseeability is for the type of harm caused, which in this case is burning, the ship company would be liable for this damage. FINDING: The court found that the test for foreseeability is for the type of harm incurred, not the mechanism. The court accordingly found for the plaintiffs.

What other systems of law are there, and what is distinctive about them?

Civil law makes about 2/3 of the world. Its a series of systematic uniformed codes. It establishes general principles that can be applied, like the USC. It's already capable of dealing with everything in the field, but its not very detailed or fact specific. Judges are given the same training in order to maintain uniformity. Unlike CL; where there's decisions set by appellate and higher judges, where they have to wait till something happens then do something about it (dog law-Jeremy Bentham)

Harm

Each element is interrelated - for example, the nature of the harm is part of what determines the test for duty; duty is more limited when injuries are not as physical (but economic or emotional). Whether it is physical/economic/emotional determines duty and scope of liability analysis.

Breach of Duty

Element of negligence, which requires that the plaintiff prove that the defendant failed to live up to the requisite standard of care. If they didn't meet this standard, then it is a breach of duty. A finding of breach means that the defendant behaved unreasonably in the circumstances. Breach therefore signifies that the defendant was at fault. This is normally a question of fact for the jury.

Can you think of situations where the problem of indeterminate liability to an indeterminate class could be even worse than financial losses?

Emotional distress. 9/11; No way of knowing how many people would be distressed/injured. (Enron). Judges should be using the same type of test for similar injuries, but there needs to be diff. tests for each of the 3 major injuries : (1) physical injuries, (2) financial injuries, (3) emotional injuries. The greater the possibility of indeterminate liability, the stricter the test for duty. Zone of Danger is essentially the test for physical injuries.

Is the concept of vicarious liability justifiable? Should employers be vicariously liable for the tortious acts or omissions of independent contractors?

Employees-I think yes because many times tortious acts or omissions is a result of poor training, bad decisions on the part of the employer, or a work atmosphere that is a result of their decisions. Independent Contractors - I think it depends on the nature of the business. In the case of hospitals, where it seems to me they set up their contractors as a way to avoid liability, yes. Maybe in another business, no. Since the remedy of compensation more or less relies on the concept of vicarious liability it seems like a system has been created that relies on both in order to function. Since the employee, or independent contractor in this case, is the agent of the employer (the principal), the employer should be liable for any actions carried out by their agent on their behalf. It was the employer's decision to hire the employee therefore they are responsible for both the good and bad actions of that employee. Historically, the concept of vicarious liability is based on a relationship whereby the ship captain needed to rely on all of the crew members in order for the survival of the entire crew. What about vicarious liability where a car owner is liable for the actions of anyone they let drive their car? This has become necessary in order for the owner's auto insurance to cover anyone who drives the car - this way if the secondary person gets into an accident then they are covered

10.3 Should breach of statutory duty be regarded as negligence per se, or as evidence of negligence?

Evidence of negligence because it should be just one factor to consider. breach of statutory duty: breach duty set forth through a statute or law -most statutes are not torts statutes, but really talking about criminal and administrative statutes and laws negligence per se: establishes the breach; plaintiff (and trial judge) would want negligence per se, because they are way more predictable, because we know what the outcome is.

Joint and Several Liability

Factual causation allows for more than 1 cause. Operates a little like vicarious liability, because it facilitates the transfer of full compensation to innocent plaintiffs, and leaves the defendants to argue among themselves hot to apportion the sums involved. If a plaintiff is injured by several defendants who are jointly and severally liable, s/he can simply choose to pursue the one with the deepest pockets or most lucrative insurance policy in order to obtain 100% of the compensation payable for the harm sustained. It will then be for that defendant to pursue a claim for contribution against the other defendants or, more likely, to implead his or her fellow alleged tortfeasors in the same case, so as to have each aspect of the attribution of liability determined in one go.

Bernier v. Boston Edison Co

Foreseeability: Risk Assessment This is a case about a driver who, through a series of mishaps, ends up hitting a cement electric poll in a populated public place, which in turn crumbled and struck the plaintiffs in this case. The plaintiffs sued the electric company for their negligence in not building a sturdier poll for the densely populated area. ISSUE: It was unclear as to whether this incident was foreseeable for the power company, and so the contention was how could the power company be liable when this incident was in no way foreseeable? FINDING: The court found that the power company had an exceptionally weak pole for the area, that the concrete surrounding the wires on the inside crumbled at very low impact, and that the rest of the pole simply crumbled under its own weight after initial impact. The court further stated that the power company knew of the danger, because they replaced on average 106 downed power poles in that area annually. Finally, they stated that an adequate risk assessment would have prevented such a weak pole to be placed in such a populated commerce area. The court accordingly found for the plaintiffs.

Contributory Negligence

Has now been changed to comparative fault and is a partial defense in most states; complete defense in some states

9.7 Is there really no difference between materially increasing the risk of injury to someone and materially contributing to that person's injury?

I do not think so because if someone increases the risk of injury, it contributed to that person's injury, so there is a difference. Yes there is a difference. In McGhee. If you materially put someone at a higher risk to get injured and THEN they get hurt you can infer that the defendant caused the injury. employee contracted dermatitis, worked as a coal miner, not enough scientific evidence to show if mine caused dermatitis we need a duty and breach still hes agruing that being covered in dust is causing his dermititis -if there wouldve been provided washing facitilities, then it would have been less likely for him to get dermititis. -dermititis could have been caused by anything though (clothes, hereditary, sick, etc.) -didnt at te time know that dust caused dermititis, so how can they figure out? Judge is drawing an inference that, exposure to higher amounts of dust can lead to injury, and now we have a form of harm to this particular victim, and the defendant did nothing to avoid having the victim exposed, so we can say that _________, and we can infer that the increase in risk was the cause of the victims injury This is THE case that judges plagiarize. They want infer and this is the case that allows them to do so.

Should secondary victims who suffer emotional distress as a result of arriving on scene in the immediate aftermath of the accident, in which the primary victim was injured, be owed a duty of care?

I don't think so because they didn't actually see the accident and more so, I don't believe it should be held to be foreseeable that the secondary victim would have shown up so quickly after an accident and undergo such a high level of emotion distress. Its indeterminate because bystanders could claim this and if the scene occurred in a population dense area, is every car that drove by supposed to have a claim? However, the courts have shown that their insistence on "close connection" between the primary and secondary victim will help narrow the pool of π. by making sure they meet the 3 requirement of proximity: time, space, relationship.

If a nightclub bouncer beat up someone with whom he had a disagreement while the latter was attempting to enter the nightclub, would the club be vicariously liable for the battery committed by the bouncer?

I say yes because it was at his place of work, while he was on duty and it occurred while the victim was trying to enter the club which is the part of the job a bouncer oversees. The bouncer is acting within his job description. there could be an argument as to what exactly the disagreement was regarding. The bouncers job is to direct people into the club, removes those who are a nuisance, and control who being admitted (age). However, most bouncers have subjective discretion to remove people from clubs based on if they are a "nuisance", and that's a subjective standard. Therefore, if the victim could show that the bouncer abused his discretion or was excessive in his force, he could be seen to have been working outside the parameters of his job. his job is not too harm others, however harm may occur when he's doing his job, he cant just hurt whoever he wants. The disagreement may not be in his job duties, and so therefore the resulting battery may not be as well.

11.4 In Stallman v. Youngquist,1 the Supreme Court of Illinois denied a claim for prenatal injury brought on behalf of a child against her mother in circumstances similar to Remy v. MacDonald.2 The Court quoted Justice Holmes in Dietrich v. Inhabitants of Northampton as saying that the fetus "was a part of the mother at the time of the injury, [and] any damage to it which was not too remote to be recovered for at all was recoverable by her."3 If, in a state whose wrongful death statute is silent on the matter, an unviable fetus is stillborn as a result of the negligence of someone other than the mother, should such a claim be considered a wrongful death claim at all, or should it be considered as a personal injury claim of the mother's?

I think it should be a personal injury claim of the mother because it's too difficult to prove If the harm is caused by the mother, she can't sue because she'd effectively be suing herself. Harm by herself to herself. (If the fetus was a person, then it'd be harm to it while a fetus and there could be a suit) Should it be based on viability or birth?

12.9 Is it appropriate for the courts to have carved out an exception to the applicability of the Federal Tort Claims Act by means of the Feres doctrine?

I think it's unfair but that doesn't carry much weight. The doc lost a 30 inch long towel during surgery. What the heck dude? want dismissal with prejudice; no one can come back to sue you.

(CHECK) Should US jurisdictions adopt the approach of the Law Reform (Vicarious Liability) Act 1983 in New South Wales, Australia?

I think that the Law Reform Act makes it very clear who is liable and when - I feel that this is logistically a better way of handling employer/employee vicarious liability issues because there is less of a question about who is liable and when

11.10 Should the law recognize claims for loss of a chance? If so, should they be restricted to cases of medical malpractice and/or cases where the victim dies?

I think they should be restricted to cases where the victim dies because Only use in very limited circ. When ordinary causation principles, say that normal causation rules aren't going to work. It leads to people not being liable for negligence when their chance of success was less than 50%. Mostly for medical malpractice.

Where is the zone of danger in Macpherson?

If a product is reasonably expected to be dangerous if negligently made and the product is known to be used by those other than the original purchaser in the normal course of business, a duty of care exists. What about people who are not in the vehicle with the defective wheel? Pedestrians who might be hurt, People in other vehicles that might be hit, Property owners who have their property damaged by a possible accident . . i. Problematic because this would open up the liability to an indeterminate class ii. In modern days, we have statistics that help to determine the answers *Macpherson is the forerunner to the law of products liability*

11.6 Should the law of negligence recognize claims for so-called "wrongful life"?

If caused by negligence, then yes. That negligence caused an unwanted consequence that the parents or the infant is forced to endure.

Increasing the Risk

If defendant caused, or materially contributed to injury, even with multiple causes, it is enough to establish factual causation (analogous concept of loss of chance is adopted in some states) (McGhee: If you materially increase the risk of the person getting the injury and the person does get the injury then we can infer that the you contributed to the person's injury. May be medically impossible to prove everything. Substantial factor occurs if it contributed substantially to the risk of the injury, or diminished the chance of survival.

9.10 Is the abolition of joint and several liability, except in cases of vicarious liability, good for business?

If it lowers insurance rates, then yes. Businesses are the likely choice for plaintiff's to sue due to liability insurance and this would lower their chances of having their insurance pay large damage awards when someone else was greatly more at fault. No, it is not good because now EVERYONE gets sued. Scattershot. Businesses' now get sued more often. Though it really depends on what type of business you have. Big business love the change. Bad for small businesses. It's also way more expensive for plaintiff's making damages bigger. Purpose: The defendant most able to pay takes the risk (instead of the victim) that the other defendants won't be able to pay. Use when: vicarious liability, joint enterprises (engaged in the same thing together, conspiracy, partnership) indivisible injury (as with Disney case) - two people acting in a way that caused an injury can't divide up the different injuries. One smashed up leg to powder, who broke the ankle compared to who broke the toes? Compensation Damages if plaintiff just wants to sue A, then they can get 100%, same if just B., but they cant sue both for 100% each. If you need to sue both of them , then you can still do that, but if you know one person has more money then you can do that. if you abolish it, then the plaintiff has to be careful who they sue against. -would replace it with comparable fault--> tell us the proportion of what they are responsible for. Now only Vicarious liability is allowed in FL. In indivisible injury cases, they divide BY FAULT not by amount of injury.

7.5 Should the "firefighter's rule" be retained or rejected?

If someone is engaged in their employment, and that employment involves a risk, and that person is hurt in the line of their work. They accepted the job and they are being paid for it. If they are getting paid for reusing someone, well if they didn't want to take that risk, get another job. Rescue doctrine means that someone is being put in danger; unlike doctors and paramedics where it is somewhat obligatory.

Assumption of Risk

If the plaintiff took on the risk of an activity, then defendant cannot be liable for any harm; a complete defense; 2 forms: express and implied assumption (explicit agreement or conduct suggesting agreement). Kaye says it is an ABUSED term, and not true: (When used it really means "comparative fault") Is a superficial doctrine, that is usually void because it is against public policy courts are reluctant to allow defendants to free themselves from public obligations through contract (ex. such agreements will have no effect for common carriers). Inherent assumption of risk is an attempt to get in writing what risks are inherent, rather than having a jury decide what is reasonable (but should not be used when other tort doctrines can be used to get to the same result)

12.3 What is the best way to resolve the hypothetical involving Victoria, which was set out in section 12.03?

If you can divide the injuries and place fault for different injuries on the different defendants and Victoria, the traditional tort law would apply. simultaneous conduct is not necessary to a finding of joint and several liability when there is an indivisible injury.

Where was the zone of danger in Curd v. Mosaic Fertilizer?

If you have an interest in the property harmed, even if you don't own it, you can sue for negligence because it is foreseeable. No physical harm so should be the relationship test. However, they don't have a special relationship. The court reached to find this conclusion. Problem with this case is that the fishermen don't own the fish in the Bay i. Fish don't belong to the fishermen until they catch the fish ii. The fishermen don't suffer any physical harm, so their harm is purely economic

8.1 1. Why are standard of care and breach of duty judged objectively, and not subjectively as in criminal law?

In a criminal case it is government vs. a private entity. If you were to use a subjective view in torts it would be bad because there would be an obvious bias. Subjective has to do with mens rea and what they knew and intended. Standard of Care and Breach of Duty do not depend on mens rea. Hence negligence. Why is there a difference? (1) Because you can evaluate risk better, and if you judge objectively, there is predictability. If it was subjective, everyone would have a different idea on what is appropriate. (2) In torts, there is always a loser, therefore, you must look at both sides. In criminal law, you are only looking at one party. In torts, you have two parties who both have rights. (Prosecution does not have rights like an individual) Subjective DOES NOT mean biased and Objective DOES NOT mean unbiased. Objective means looking at both sides. Did the defendant act reasonable? You never breach a standard. It's breach a DUTY.

In the context of Ultramares v. Touche, what is a "factor"?

In math, a factor is a number that multiplies - this transitions to the business world in that a "factor" is a business that lends money within a field to assist the growing of another business. Specifically in this case, they are talking about a financial backer/investor; Ultramares lends money to Stern on the basis that Stern has had its books audited by Touche and Touche has provided a certificate of auditors.

Indivisible Injury

In order to comparative fault to apply, there needs to be 1 indivisible injury, that all defendants/actors were are fault for. (if there is a divisible injury then the traditional comparative causation analysis applies, so each tortfeasor is only responsible for his harm caused). Also reduce defendant's responsibility according to the extent of victim's responsibility. It can be a indivisible injury, even though it is sequential; caused by 2 people - 2 misdiagnoses and negligent delivery

12.8 The empty chair defense was originally permitted because it was seen as a means of providing extra protection to potential defendants. In fact, it has had precisely the opposite effect — a classic example of the law of unexpected consequences. Why has it proved so detrimental to potential defendants (and, ironically, to the courts themselves)?

It leads to more and more defendant's being brought into the suit? You sue everybody you possibly can. Then more and more people ask to be dismissed with prejudice. Now other defendant's can't say it's their fault. Doesn't protect defendants. Now more defendants than ever. But for defendants, no comparative fault. But it also means that defendants play a game of pass the buck. Defendant's keep suing each other Empty chair defense = when a lawsuit says a person not a party to the case (and don't implead them) caused the injuries and the defendant is aiming for a finding or not liable. Florida recognizes empty chair defense. Refers to Feres The plaintiff doesnt win. The empty chair doesnt pay because they werent there to defend themselves. It makes it easier for the burden to be shifted because someone isnt given the opportunity to defend themselves. 2nd defendant cannot use the empty chair defense against the defendant in the 1st trial because that case is already complete. Could use against 3rd defendant if statute of limitations is okay. want dismissal with prejudice; no one can come back to sue you. opens up potential for plaintiffs attorney malpractice Most states dont recognize Empty Chair Defense

11.13 In chapter 9,5 we saw how inference plays a major role in the application of the doctrine of causation in fact. We also saw that proof that the defendant engaged in conduct that increased the risk of a certain type of injury which the victim then suffered could be used as a means of inferring that the defendant caused the victim's injury. That approach, of course, permits a plaintiff (provided that s/he can establish the other elements of the case) to recover full compensation for his or her injuries. Is this "material increase in the risk" test a preferable approach, or does the doctrine of loss of a chance represent the better approach — or do they address different issues?

It seems to me that the material increase in risk is used in cases before the harm has manifest itself whereas the loss of chance is after the harm has occurred. It also involves whether the plaintiff would have suffered some harm even without the negligence. misfeasance nonfeasance: important distinguish is compensation loss of a chance claim is a last resort because you wont be getting max at least 50% of compensation Standard of care

9.9 What would have been the outcome in McGhee if the NESS test had been applied?

It would have failed because it could not be proved that their actions was sufficient to lead to the harm.

Was it right that tort law doctrine in J'Aire be allowed to provide the plaintiff with a means of circumventing standard doctrine of the law of contracts?

J'Aire is a third party to a contract between the county of Sonoma and the contractor (Gregory)Duty of Care - Gregory failed in their duty of care towards J'Aire. The special relationship between Gregory and J'Aire is very similar to a contract, but is not actually a contract - the special relationship and the failure in the duty of care allowed the law of torts to step in and provide an exception to the law of contracts. would have been unjust to allow tenets to pay the price for a contract that effected their business even if they were not a party to the contract. The doctrine of contracts would have given the plaintiff no remedy. `

What is the distinctive about the common law system?

Judges effectively make the law and make the law AFTER the events occur. Although it is irrational, it is calculable. They can make laws that weren't there before because we do not have a strict codified system in place. Why do they have this power? - In civil systems, general principles are made, never have an incident that isn't covered. Effect - Judges in common law can take outside circumstances into account more than civil judges. What is the difference between a civil code and a statute? CL- other than constitution, there is no place where general principles are written as law. Specific laws that apply to specific facts. No judge faced with a new issue knows what the answer is. So how do we know what the answer is? We don't. It's whatever answer prevails over time. Is one better than the other? Don't civil judges still have to interpret what is "reasonable" Well no, in practice in civil systems (all judges are appointed) no principle of precedent, no reporting of cases. Doesn't explain the courts reasoning. In civil systems, you go to judge school. They all go to the same place and that's why they stay consistent. And they are anonymous, even supreme court. Usually no juries, judges get to decide basically everything. Very predictable. Far less trials because both sides know what the answer will be.

Inferences

Juries actually decide factual causation based on what they believe is most probable, rather than hypotheticals, based on evidence. Should be reasonably supported by evidence, and tested against competing theories

8.7 Do the age, gender, race, disability (if any), locality, and/or actual or advertised qualifications or expertise of the plaintiff and/or defendant make a difference to the test for the standard of care which is applied in any given situation?

Law of torts is looking at the plaintiff for the majority of the time. For Plaintiff: age does matter in the lower end but not at all. For older people, there is no distinction; they are all treated the same. For Defendant: young people: attractive nuisance comes into play; older people=elder fraud, they're more vulnerable of being taken advantage of, medical malpractice. Sex and race definitely matter on the side of the plaintiff. A doctor should know the gender and race of their client or they won't get proper care. The test is the same, but the standard varies based on the test. The standard of conduct is measured by age, intelligence, and experience under like circumstances. This is not a fully objective standard.

Wrongful Death and Survival Actions

Legislation in most jurisdiction is that tort lawsuits survive the death of either party, and can proceed to judgment - survival statutes. For wrongful death, the financial dependents of a decedent victim can bring a case against the wrongdoer. Different categories of plaintiffs and different types of loss.

Risk Assessment Chart

Likelihood of Harm vs. Likely Severity of Harm. Some foreseeability is needed in assessing standard of care because without foreseeability, it would be impossible to figure out what should be done to manage or improve the risk. Foreseeability is only required where highly severe consequences are highly likely to occur. Where there is a low chance of harm and low severity of harm, there is no requirement to do anything, since this just represents the standard "background risks" of everyday life.

Explain the majority decision on the issue of common law liability in Curd v. Mosaic Fertilizer. Do you find it more or less persuasive on this issue than the dissent by Justice Polston?

Majority found that the economic loss doctrine preventing suit did not apply in this case because the claimed negligence did not occur from a contract and it did not involve a product that malfunctioned and "injured itself" The injury was foreseeable and therefore, there was a duty of care. The fisherman fish the waters that have been harmed so then they have a property right to the fish that have been harmed. Dissent- Polson agreed there was a cause of action under the statute but did not agree there was one under common law. Unlike the majority, he does not believe the fishermen have a special interest that creates a duty of care. Rather, commercial fishermen are few among the tens of thousands of Floridians who earn their living from healthy ocean waters.

Palsgraf Revisited

Many commentators have preferred Andrew's dissent in Palsgraf, however Andrew's never actually made a test for scope of liability (Cardozo's majority opinion in Palsgraf established duty).

12.2 How do these schemes (comparative fault, pure schemes, contributory negligence) differ from a failure to mitigate loss?

Mitigate all occurs AFTER the harm was caused. later stage. If you are prescribed drugs for a injury, but you don't take them (without a good reason) and you get worse, you can't sue for the additional injury. We are requiring people to take responsibility for their own actions. If it's not unreasonable, then it's not a mitigation issue. Tortfeasor IS still liable. (Injured, living life fall down stairs, now worse) Take reasonable steps to "mitigate" the injury. Comparative fault occurs prior to the negligent act. The plaintiff has control over reasonably mitigating loss, but not negligent act. The plaintiff has control over reasonably mitigating loss, but not necessarily over his own contribution to the comparative fault. For example, if the plaintiff is injured by the defendant, and the plaintiff fails to tend to the injury so it doubles, then the defendant is only responsible for his or her contribution to the original injury, not the doubled injury caused by the plaintiff's failure to mitigate. (The only exception is when the plaintiff is too poor to mitigate the damages, in which case the defendant still will be liable).

8.6 In Bernier v. Boston Edison Co., it is clear that Edison was not expected to have foreseen the particularly convoluted series of events that actually occurred. So (a) what was it expected to have foreseen, and (b) what action was it then expected to have taken?

Mitigate the harm. Use the near misses to inform the reevaluation of risk assessment. a) That a low speed vehicle was likely to hit it and with the design they used, likely to topple it and that could cause serious injuries. (b) To design and use a pole that was less likely to topple when hit at low speeds.

Risk and Potential Damage

Must balance the magnitude of risk and the burden to eliminate it. A risk standard: what are the risks that you created, that you should be held liable for (beyond the risks that could be reasonably foreseen, you should not be held liable) - a Q of fact that is limited by the policy objective (not fair to impose liability always). Examine the range of harms that should be expected from the defendant's conduct (foreseeable) based on risk, Then determine if the actual harm to plaintiff was within that range, If yes - WITHIN SCOPE of liability.

9.4 What is the difference between the NESS test and the but-for test?

Necessary Element to a Sufficient Set Ness means - "Sufficient set" = Multiple. Group of factors/elements that together can cause the injury. Could cause not did cause. (Cancer, caused by secondhand smoke, the set is "Roommate smokes, in house, victim inhales secondhand smoke, gets cancer) Within this specific set there are elements that are necessary and the defendant did at least some of them. (They smoke) Without the defendants conduct, Is it a necessary element for that injury to occur. This test is used to FIND the cause. Not like the but for test when you know the cause. Can have A cause instead of THE cause. How to get from can be a cause to defendant did cause. Prove that defendant did a necessary element (which means can cause) use inference. Necessary element means we are able to show the defendant did something that was necessary of the sufficient set. Therefore the jury can infer that the defendant the caused the injury. It's up to the jury. The problem with the NESS test is that it is hard to explain to a lay person. This helps judge's decide to allow a case before a jury. Judges should be able to understand this. Then likely, jury would use the substantial factor. The sufficient set will always have a problem when it is a new injury because it's impossible to know what is sufficient. The Ness test asks if the defendant's actions were A cause where the "But For" test asks if the defendant's actions were THE cause. Making things more predictable, more clear cut so judges can decide instead of jury. Within the set, the elements are but-for, but te whole set is not but-for to the victim.

11.2 Should awards for pain and suffering be capped?

No because it does not tend to target those who are abusing the system/law of torts for financial gain. Most of the fraud is for low levels of compensation so by capping the awards for pain and suffering, the legislature is penalizing those who really have a solid claim for high damages while ignoring those who are most likely abusing the pain and suffering doctrine.

Could any alternative system or systems achieve these objectives more effectively or at less cost? If so, why don't we adopt it (or them)?

No fault system, like PIP. - Don't need to prove culpability or fault on the part of the person who caused the injury. Only had to worry about injury in fact and causation. Why is PIP capped at 10k? It must be capped because if it was unlimited, the premiums would need to be unlimited because the risk of loss would be incalculable. Needs to have a concrete number (calculable) that will be set for a specific amount of time to calculate the risk to set the premiums. This is what Ins. Co. need from the law: predictability. The No Fault/PIP system is much more efficient is paying the medical bills - this is not how it works with liability insurance. liability requires that you were injured by the other person and the other person was at fault but ... its political and gets screwy restrictions. Systems that have no fault systems don't use the tort systems if its a really bad offense, it goes to criminal law. NICA - Neurological disorders suffered by babies during childbirth. Parents can submit a claim without proving fault by the doctor. Run by the state of Florida and financed by doctors, OBGYN's pay most of it, other doctors pay a smaller amount. It would be the same amount as suing for a tort but easier but you don't have to prove fault. It's VERY profitable!!! When a payout is needed, it is VERY large. Not done because of politics, people don't want to pay less if its a tax. And doctors don't want one central healthcare system. i. The biggest factor in payouts in torts settlements in the US is healthcare. If you want to reduces the amount of payouts, then you need to find a way to reduce the healthcare costs. The sole reason why damages paid out in all other countries (except NZ) with a system of torts is because of national healthcare

9.3 Is the but-for test as deficient when dealing with multiple consecutive causes as it is with multiple concurrent causes?

No it as not deficient with consecutive cause, but with concurrent causes the but-for test does not work well.

Are there any other viable approaches to these problems and, if so, are they preferable?

No privity = no case at all. I do not think it's preferable because then it would not deter fraud.

11.11 Do claims for loss of a chance run the risk of imposing "liability in an indeterminate amount for an indeterminate time to an indeterminate class" on defendants

No, I think it's have the same problems as other tort actions. If the loss of chance negligence happened to be to an indeterminate amount of victims, then it's be the same old rule as before Go big and you get to go home.

(CHECK WITH ALLIE) Should tort law always defeat contract law?

No, because if we do that then parties can choose to deny their obligations to a contract through tort law. But always is strong word, so it should be generally allowed.

8.2 Is "negligence" a different concept from an "error of judgment"? Explain your answer.

No, they are not different because they both can be unreasonable; "I wasn't negligent, it was just an error of judgement," but that error could easily be unreasonable. Negligence is when you do something unreasonable. Negligence has two meanings. Doing something unreasonable/ breach of duty BUT it also means the tort of negligence. Some error of judgments are unreasonable and therefore, negligent. Negligence usually contains an error of judgment, but an error of judgment does not always equal negligence.

12.7 In states that do not recognize the empty chair defense, is a defendant prevented from alleging that (some of) the victim's harm was caused by someone else?

Not if they implead them.

Duty of Care

Only element of negligence which is always a matter of law. Is concerned with the question of whether the defendant was under a legal obligation to try to avoid causing harm to the victim. If the defendant owed no duty, then he or she cannot be held liable for negligence, even if his or her conduct caused the victim's injury.

Should it be possible to claim for emotional distress suffered as a result of damage to property?

Only for very rare family heirlooms. Such as your great grandmothers china and the like. For general property, no. Damage to house, no.

9.11 What is the best way for a plaintiff to avoid any unwanted effects of the abolition of the doctrine of joint and several liability (if s/he is litigating in a state where it has been abolished)?

Only sue one defendant? Focus argument against the richest and try to avoid liability being placed on poor defendants? Would implead the other defendants though. We need to look at the amount of harm sifted first to see how much compensation we get. Portion liability according to fault; the breach is potentially at different ways. This is more of a political question. How do you avoid it?: by claiming that its not an indivisible injury, because then we can divide and find out who caused what. Indivisible injury: ex: you cant have 1/3 paralysis with a victim hit by 3 cars, each defendant would be liable for 100% of the injury Divisible injury: ex. the paralysis would have to be one injury, but broken bones possibly so it gives the plaintiff the opportunity to divide "injuries" and we use standard tort law, you're liable for the injury you caused most states have abolished joint and several liability (including Florida) the law reflects the economy Plaintiff now has the risk of not getting compensating.

Pre-Natal Injuries

Permissible in principle, but states are inconsistent in deciding whether a wrongful death claim can be brought for a stillbirth, or for claims of prenatal injuries. o Usually NOT ALLOWED, because considered "not born". o 6 jurisdictions now allow wrongful death of a fetus

8.12 What is the main practical effect of the doctrine of res ipsa loquitur?

Physical injury was under control of defendant over the injury. Injury wouldn't happen without negligence. That plaintiff did not contribute to its own injury. The defendant has not produced a reasonable explanation. (Dani's Dad). Vulnerable victims who could not receive compensation can. Compensation is the goal.

Necessary Element of a Sufficient Set (NESS) Test

RICHARD WRIGHT (Kaye strongly believes this): ADOPTION OF THE NESS TEST SHOULD ALSO REJECT THE BUT-FOR TEST! Must have been a necessary element of a set of actual conditions that could cause the harm to occur - adopted by R,3rd - considers all possible sets of circumstances and if 1 could be linked to defendant, then s/he is a contributing factor A rejection of the substantial factor test; treats the but-for test and the NESS test as legitimate alternatives Criticism: sometimes will give a false positive, even if it didn't actually cause injury (ex. drunk driver is held to be a cause, even if a different car causes injury) But even if NESS test finds factual cause, does not mean liability; plaintiff will fail to show scope of liability, if it is a false positive Hard to understand for a juror

Lay Person Standard of Care

Reasonable person standard (Campbell - lawnmower and projectile). Same physical characteristics as defendant. Average mental ability. Same knowledge as average member of the community

12.1 Which goal(s) or function(s) of tort law justify (a) contributory negligence, (b) modified schemes of comparative fault, and (c) pure schemes of comparative fault?

Remember that it is when you can't divide the injury. Which is preferable? Contributory negligence = if the plaintiff was even a tiny bit at fault, can not recover damages. I said optimal deterrence because it keeps the plaintiff from taking any sort of risk. Brandon said economic efficient. Danielle said retribution. Deterrence. But it's not a perfect fit. Modified Comparative fault = modified has a threshold. If the plaintiff is held to be a certain amount to blame, they can't get anything. Ivan said corrective justice but probably wrong. About dividing up the fault. Might be confusing harm with fault? optimal justice and corrective justice. The issue is not whether someone is clearly way more than 51 wrong because they already know who'd pay. The litigations is the cases close to the threshold. How do you measure different types of fault anyway? Quite difficult and jury doesn't really understand the consequence of their decision. Pure comparative fault = whatever % the plaintiff is held to be liable, the damage award gets reduced by that much. Ivan said corrective justice. The problem with deterrence is that you can deter lots of thing but might deter too much. Optimal deterrence means only deterring bad things while promoting the right amount of risk. You don't know the percentages until you litigate nor joint and severable. Keep in mind that if a plaintiff is 99% at fault but sues someone for the other 1%, if the defendant had been injured, they could countersue for 99%. It's just luck that D didn't get injured. Florida has a pure scheme. There is also joint and severable which protects the plaintiff the most but it sucks to be the defendant. -indivisible injuries Fault: Cause:

9.1 With which overall objectives of the law of torts are (a) the doctrine of causation in fact and (b) the doctrine of res ipsa loquitur most closely associated?

Res Ipsa Loquitur (note the spelling!): ("the thing speaks for itself"). Compensation. Effect is to limit the burden on the plaintiff by asking the court to draw an inference from the evidence. Does not eliminate the need of the plaintiff to show that there was a duty owed, but it can eliminate the need to prove that the duty was breached. Inference could be of 3 kinds: Breach of duty, causation, or both. It is useful because it compels the defendant to release the information that she/he has to the court. Therefore it encourages settlement at an earlier stage, because the evidence is presented at an earlier point in the suit. Cause in Fact - Accountability and corrective justice. Plaintiff must show that the cause of the injury is attributable to the defendant. Optimal deterrence (Irrelevant) goes along with that a person is responsible for his/her own personal conduct. Corrective justice: Requires that the person in the wrong who causes harm has to pay. Only the wrong person is punished. (Not associated with compensation because cause in fact is adding an additional burden of proof on the plaintiff. Interested in the tortfeasor. Almost all the factors of torts but most definitely not compensation. Defendant most definitely is a factor in this.

(CHECK) As Lord Steyn noted in Lister, the Canadian cases on vicarious liability have been described by Professor Peter Cane as "a genuine advance on the unauthorised conduct/unauthorised mode distinction." Do you agree?

Salmond said that a wrongful act is deemed to be done by a "servant" in the course of his employment if "it is either (a) a wrongful act authorized by the master, or (b) a wrongful and unauthorized mode of doing some act authorized by the master".11 Situation (a) causes no problems. The difficulty arises in respect of cases under (b). Salmond did, however, offer an explanation which has sometimes been overlooked. He said12 that "a master ... is liable even for acts which he has not authorized, provided they are so connected with acts which he has authorised, that they may rightly be regarded as modes — although improper modes — of doing them" (my emphasis).13 Salmond's explanation is the germ of the close connection test adumbrated by the Canadian Supreme Court in Bazley v. Curry14 and Jacobi v. Griffiths. Lord Steyn differentiates between unauthorized conduct and unauthorized mode in the case of serious sexual misconduct because he feels that there is no way to imagine that serious sexual misconduct is simply an "unauthorised mode of carrying out an unauthorized act." The fact that the teacher was employed by the school makes it easier for the teacher to prey on the student(s), but that does not mean that the unauthorized act is in anyway related to the teacher's position as an employee. Grain did something diametrically opposed to that which he is required to do for his employment and vicarious liability usually only applies if the employee is doing that which is within the scope of their employment i. The issue in this case is that if the victim can't sue the employer, then he is stuck going after Grain and Grain is worth nothing since he is currently in jail ii. The lower court justifies holding the employer vicariously liable because Grain did not report harm to the boys and reporting harm to any of the students is a part of his duties

Holmes' View on Foreseeability

Seen as a failure. Holmes's view was that, once a set of jury verdicts had established that a particular practice in a given set of circumstances or within a given industry is the norm, then the relevant standard of care could be determined by the court as a matter of law (albeit often expressed in terms of duty rather than breach). Is unthinkable for a court to claim that it could specify in advance precisely how every task within any given industry should be performed. Would have undermined capitalism. Common Law couldn't adopt principle that would undermine economy.

Scope of Liability (Proximate Cause)

Term that is used to describe the range of types of harm for which a defendant can be held liable. Has two elements: 1. Reasonably foreseeable harm and 2. intervening causes. Having found a defendant to have (a) owed a duty to the victim, (b) breached that duty, and (c) thereby caused harm to the victim, the law now expects the plaintiff to prove (on a preponderance of the evidence) that the harm caused was within the scope of harms for which the defendant could properly be held liable. Proximate cause is also influence by policy - may circle back to duty (also policy related). Scope of L means limiting liability to foreseeable types of harm. Once you pass that, you can apply The eggshell rule. NOT before.

3. What practical problems are identified in Ultramares that the court is anxious to avoid, and what is the relevance to them of the notion of foreseeability?

That negligence would become so broad as to make non willful mistaken representation liable. The Court doesn't want accountants to be held liable for another business's wrongdoings at every turn. Touche had a K duty to Stern and K duties have no relevance to law of torts. However, a 3rd party not in private, may not sue an accountant for damages sustained by negligence, but it may bring suit if it can prove fraud. But with fraud, duty is imposed if it is proven. but A representation, even though knowingly false, does not constitute ground for an action of deceit unless made with the intent to be communicated to the persons or class of persons who act upon it to their prejudice. Here comes the issue of forseeability: whether or not the accountants could foresee that the certificates they signed would be given to other business in order for stern to get a loan. The certificate can be given to a limitless amount of people, so this creates an indeterminacy issue; leading to boundless liability. INderterminancy is bad for torts so duty helps avoid the imposition of liability. With duty of care, it says that the victim must be foreseeable. this is why you cant extend from negligence to fraud. fraud requires INTENTIONAL wrongdoing, therefore assuming duty. but if the victim was unforeseeable to the fraud, is that fair? To imply duty based on negligence would make the duty aspect much too broad. "Duty of Care" in the law of torts replicates the doctrine of privity from the law of contracts

9.2 What is usually said to be the test for deciding whether a defendant's behavior was the cause in fact of the plaintiff's injury? What flaws does this test have and how are they best resolved? What status does the test have once its flaws are understood?

The "but for" test is used. The harm would not have occurred "but for" the defendant's actions. One flaw is that the "but for" test does not work if there is more than one concurrent cause. (Two torfeasors at the same time) They cancel each other out so that no one is liable. Generally, if the "but for" test fails due to multiple causes, the court uses the substantial factor test. Another flaw is that it requires proof of a negative. If we remove the defendants conduct from the incident, would the plaintiff still be injured? Completely useless because you have to already know the cause in order to use this test. You don't know whether you can apply this test until you've already decided there was only one cause. It's just used as a justification. It makes your argument look more persuasive. Either ignore the but-for test, use another. If those show only one cause, use it as rhetoric. In Canada - two steps, Look at But for test. If one cause, use it. If it does not, use another test. So if it doesn't lead to a defendant, ignore it. How far do we go back to use "but-for"? The victim is always involved in the but-for test scenario. The victim would always be the cause of their own injury. Once you establish that there is a victim suffering and was owed a duty and there was a breach of that duty, then the but-for test is applicable. Substantial does not mean a large factor, rather a factor with substance. Material, You are not looking at what did not happen but rather what did. Material factor in contributing to the victims injury. Looking for "a" cause, as long as they are material, and not significant. Substantial factor is really just a common factor test. The problem with common sense is that itsnot really common. Flaw, you have to leave it to the jury to determine what is substantial/material. The resolution to this test is, the other test that the professor hopes will do everything for us.

But-for Test

The common law's traditional method of determining whether the defendant had caused the victim's injury. Requires the plaintiff to show that, without the defendant's conduct, the victim would not have sustained the injury that s/he did. Is unreliable because whenever multiple, concurrent causative agents are involved, it always shows that none of them were a cause.

Standard of Care in Premises Liability

The court gets to assert the standard of care as a matter of law in a way that it cannot do with regular negligence cases

Fictitious Tortfeasor Policy

The defendant has a greater incentive to name additional defendants, due the percentage liability formula (prohibits contribution when fault is below a certain percentage); may diminish a defendant's liability to a level that avoids contribution if he names additional defendants.

Substantial Contributing Cause

The defendant's actions was a substantial causes of the jury. He is therefore assigned JOINT AND SEVERAL liability, even though he was only 20% at fault - still an indivisible injury - must preserve the plaintiff's right to collect the entire judgment award from either defendant.

Res Ipsa Loquitur

The facts speak for itself. Used when you don't have the facts to prove - jury may infer that Δ was probably negligent. Can be pleaded to establish both breach of duty and causation. Three factors: (1) Π's injury ordinarily occurs because of negligence by someone in Δ's position; (2) Instrumentality causing the injury must be w/in the exclusive control of the Δ; AND (3) Injury must not be due to any voluntary action of Π.

Standard of Care

The level of care that is expected of someone who owes a duty of care. This sets the level of care that the defendant's conduct is measured (only if the defendant has already been shown to have owed a duty of care to the victim). In most cases, the level of care required equates to doing what is reasonable. In some cases, however, the level of care is more specific (such as the duty to provide a warning) or somewhat greater then simple reasonableness (such as the heightened duty of care owed by common carriers). You DONT breach a standard; you dont meet the standard and thus breach a duty.

What is vicarious liability, and how is it distinguished from primary or direct liability?

The liability incurred by one person for a tort committed by someone else. So far as the victim is concerned, vicarious liability often forms a vital "bridge" to a defendant organization with sufficient wealth or liability insurance to meet the claim for damages that the tortfeasor probably would not be able to pay. It is different than direct liability because it covers people/businesses who are not the policy holder but for whom the law had decided the policy holder is responsible for. `

8.4 Can a defendant ignore any of the risks associated with the act s/he is performing?

The point of risk assessment is to know what risks you can take and how to manage them. If the defendants risk assessment is not low/low then they did not meet the standard of care and breached their duty. Make a record of your risk assessment so you can prove that you looked at it/are a reasonable person.

Factual Causation

The requirement that the plaintiff establish that the defendant's conduct was the actual cause of the plaintiffs injury. Establishing a causal connection between the defendant's breach of duty and the victim's harm. NO FORESEEABILITY!

Loss of a Chance

This is new and controversial; considers a loss of chance WHEN VICTIM HAD 50% OR LESS CHANCE OF SURVIVAL even before defendant's negligence occurred. Must show by the preponderance of the evidence, that victim lost a chance of survival; holds negligent people accountable; usually only award a proportionate % of damages that would have been awarded in a regular personal injury claim. Some jurisdictions do NOT recognize such claims; the states that do recognize them; restricted to cases of medical malpractice An exception to the BUT FOR causation principle (less than a 50% chance anyway) Wrongful life and birth cases are NOT loss of chance

Where Assumption of Risk is Unnecessary

There are enough principles already to decide (contact law, common law). Can still relieve defendant of liability, without assumption of risk principle. Instead use: NO DUTY: Contact Sports: usually no duty because the rules of the game already say what happens; the law does not need to impose a duty (even for fouls). If defendant acts within the expectations of the game, there is no duty (NOT assumption of risk). Only have a duty when there is unreasonable risks to 3rd parties (not in contact sports; no unreasonable risk) Also for premises liability; burglar is a trespasser to whom NO DUTY is owed, except to avoid wanton/willful harm. NO NEGLIGENCE (breach): Baseball example; when hit by a baseball at a game, there is a duty, but there is no breach. It is the player's job to hit into the crowd; within the definition of "reasonableness" and therefore NO PRIMA FACIE CASE, so there CANNOT BE AN "AFFIRMATIVE DEFENSE" of assumption of risk. (The baseball owners fulfilled their standard of care by putting the sears a minimum distance away and were reasonable; fulfilled the duty of an invitee) NO CAUSE IN FACT: NO FORESEEABILITY OF THE TYPE OF RISK THAT CAUSED INJURY (scope of liability): Comparative Fault - Instead of assumption of risk it is comparative fault (if not no duty or breach) if you actually know about the risk, then your comparative negligence may be evaluated as a higher percentage of fault, compared to the defendants a way to reduce recovery.

On what issue do Chief Judge Cardozo and Judge Andrews agree in Palsgraf?

They both agree that the injuries of Palsgraf were caused by the actions of the LIRR employees, but they disagree on whether or not there is an actionable tort. Agree on the problem, ≠ solution (how to limit who is owed a duty). It was a case of 1st impression: indirect harm. Created negligence. Couldn't sue for Breach of K (ticket) b/c its a contract to ride and the train still worked. Both agree that there has to be a limit to who's liable: whether or not allowing palsgraf to claim negligence would open up negligence to an indeterminate # of victims.

Why do the courts see no problem in recognizing a duty of care for economic losses that are consequent on physical harm, yet are generally reluctant to recognize a duty of care for losses that are purely economic?

They feel the duty of care should be higher for physical injuries and that the law tries to protect interests in safety and property. The reasoning behind this general rule is that if courts allowed compensation for all losses of economic advantages caused by a defendant's negligence, a defendant would be subject to claims based upon remote and speculative injuries that he could not foresee. negligence claims for the recovery of economic losses must be predicated on some duty beyond the duty to exercise reasonable care to prevent foreseeable harm. Defendants must have "an independent duty to protect [a] plaintiff's purely economic interests." i. If there is purely economic loss, there is the problem of an indeterminate class/liability ii. If there is a physical harm, there is not this problem and simply adding economic losses onto the losses for physical harm, you are not increasing the number of victims - therefore no problem of indeterminate class/liability

9.8 The pursuer in McGhee v. National Coal Board would have lost his case if either the but-for or the substantial factor test had been applied. Does this suggest that McGhee is wrong, or that those are poor tests? If McGhee is right, when should its approach be applied?

This case was complicated mostly by the lack of medical knowledge. If this subject and it's causes were more understood, the substantial factor test may have been appropriate.

Bennett v. Stanley [Premises Liability-> Attractive Nuisance]

This is a case about a 5-year-old boy who, upon seeing a rainwater filled pool at his neighbors' home, ventures onto their property and proceeds to drown in the pool. The mother found the boy shortly thereafter and also drowned attempting to save her young son. The father of the boy sued the neighbors for their negligence in his son's death. ISSUE: The boy was a trespasser. The mother was too, for that matter. According to the duties owed to trespassers, which are next to none, the neighbors should not be liable for any harm they incurred on their property as a trespasser. So how can the neighbors have a duty to the boy or the mother when they were trespassers? FINDING: The court stated that the pool was effectively an attractive nuisance, meaning it was an object enticing enough that children may be attracted onto a property because of it. The attractive nuisance doctrine states that attractive nuisances can give rise to child trespassers owed a duty something more akin to an invitee, the highest class for duty owed for premises liability. The court stated that the mother, in attempting to rescue her child, was similarly transformed from trespasser to something akin to an invitee based on her purpose for being on the property (rescue). The court accordingly reversed and remanded the cause to the trial court for further proceedings.

Bernier v. Boston Edison Co. [Foreseeability-> Risk Assessment]

This is a case about a driver who, through a series of mishaps, ends up hitting a cement electric poll in a populated public place, which in turn crumbled and struck the plaintiffs in this case. The plaintiffs sued the electric company for their negligence in not building a sturdier poll for the densely populated area. ISSUE: It was unclear as to whether this incident was foreseeable for the power company, and so the contention was how could the power company be liable when this incident was in no way foreseeable? FINDING: The court found that the power company had an exceptionally weak pole for the area, that the concrete surrounding the wires on the inside crumbled at very low impact, and that the rest of the pole simply crumbled under its own weight after initial impact. The court further stated that the power company knew of the danger, because they replaced on average 106 downed power poles in that area annually. Finally, they stated that an adequate risk assessment would have prevented such a weak pole to be placed in such a populated commerce area. The court accordingly found for the plaintiffs.

Indivisible injury and joint/several liability

Tortfeasors may be jointly and severally liable for certain injures if they are by their nature, incapable of division or allocation. In a medical malpractice action the injury was a SINGLE INDIVISIBLE injury

Breach of Statutory Duty

Torts is mainly common law, but statutes may modify/abolish the common law, rather than codify it. (ex. wrongful death and comparative fault) But can evidence from STATUTORY STANDARDS OF CONDUCT be used in torts to establish negligence? Can administrative and criminal statutes be used in civil tort law? Can federal laws be used for state cases? (negligence per se) Answer: The question is whether Congress intended to create, implicitly or expressly, a private cause of action based on: Legislative history, language, and purpose (Court v. Ash). There is a presumption, in the absence of evidence to the contrary, that federal administrative law DOES NOT create private rights in tort. R,2nd says that the court can use legislative enactments or regulations as the "STANDARD OF CONDUCT" for reasonableness when the purpose of the legislation is to: A) Protect a class of people (including the victim) - mirrors duty B) Protect the particular interest invaded (mirrors duty and scope of liability) C) Protect that interest against the kind of harm resulted (mirror scope of liability); AND D) To protect that interest against the particular hazard (mirrors scope of liability) If these are met, you can use the statute to establish standard of care and decide whether there is breach, then must show causation - allows the use of state/federal laws to create a private tort action

Superseding Cause

Unreasonable conduct by a 3rd party, unreasonable conduct by plaintiff, nothing done by the plaintiff, or an unforeseeable act of God. Breaks the causal chain.

11.3 Do claims for loss of consortium risk opening up liability to an indeterminate class?

Well the courts have been pretty good at preventing that from happening by restricting who can bring an action for loss of consortium. Even if they had not, it is still limited by the definition of loss of consortium. It is limited to those with a very close relationship. Not simply lovers. Is it as subjective as pain and suffering? No I don't think so. The problem with love in contracts that it isn't consideration. For K, is you can't determine the $$ money about. But somehow in torts you are able to???? So apparently, you actually be able to put a price on love.

What is the difference between compensable and non-compensable psychiatric injury? Why do the courts so differentiate?

What can be proved and what can not. a. Compensable - psychiatric injury that is related to a physical injury/symptoms b. Non-compensable - psychiatric injury with no physical injury/symptoms c. Test 1: Should only be recognized when there is a physical injury as well - judge i. Traditionally, this test is preferred in most US jurisdictions d. Test 2: Only when there is a recognized mental illness diagnosis - judge i. No US jurisdiction uses this test; England recognizes mental illness e. Test 3: Should be compensable if it is "serious enough" - jury question, but judge would have a screening function for whether there was a duty and then it would go to the jury i. Those jurisdictions (within the US) that have moved away from Test 1 have adopted this test Psychology has only been recognized in medicine since the 1950's. Before that, they were quacks. We don't trust them in the same way. Physical manifactions such as weight gain can help but you also need an expert to show that the negligence caused that. Headaches or loss of sleep can't be proved. Most jurisdictions go with physical harm. It's preferred. The recognized mental illness is not followed in ANY jurisdiction in the US, only England. If there is a physical illness don't need to prove mental illness. CA has gone to serious enough standard.

8. Is it appropriate for counsel and/or judges to look at the decisions of other jurisdictions — whether American or otherwise — in order to help inform themselves as to what might be the most appropriate decision in a specific case? If your answer to any part of this question is "No," why is it considered acceptable throughout both the federal and state judiciary to cite English cases from before the Second World War?

Yes, just to see what they decided and how they came to that decision. However, lately, the US thinks they are too good to use other country's decisions anymore. Last 3/4 decades. If they do look at others, they don't acknowledge it. The biggest and most important barrier is language. Translating is not a good idea. Another barrier is the legal culture. Civil systems think differently, have a different purpose.

11.1 Should pain and suffering be compensable?

Yes, many victims do have to suffer beyond medical costs and lost wages and it would be unjust to refuse to compensate them for pain and suffering. It's not an indeterminate problem because those who suffer pain and suffering have the same limitations as other injuries. The jury is able to determine by common sense when the award for pain and suffering is over inflated. Pain and suffering is NOT the same as emotional distress. Pain and suffering is the mental side of a physical injury. Should be compensable to bring the victim back to where they were. Generally everyone who sues for physical injury also sues for pain and suffering. Because it comes with a physical injury, there are medical records that could back up their claims. Once someone is injured, they have a duty to mitigate their damages. There isn't really any other way to deal with pain. Other countries - tariff. Set amount for each type of injury. Loss of a big toe is worth ___. It's not personalized. And much smaller than here in the US. Also, can't do the whole attorney gets 35% of what they win. (Plaintiff also has to pay the fee's, basically the costs of the attorney. and this may end up being higher than the award.)Getting pain and suffering allows for the attorney to be paid, medical bills to be paid, and maybe some for the plaintiff. There is an argument that the US system is better at deference because you never know how much the jury will award.

11.9 Have the parents of a disabled child — whom they now love, but would not have had if they had known of the fetus's disability, and have only because of a medical error — suffered any injury or damage? Do the benefits conferred by the child's existence outweigh any economic burden involved, or should these benefits merely reduce the damages to be paid by the defendant rather than eliminate them altogether?

Yes, medical costs, economic damages as well as pain and suffering the stress of having a disabled child. They wouldn't have chose to had the kid. It's the parent's making the claim. If it's the child making the claim, the child is claiming that the harm is the brain damages, autism etc. If the parent makes the claim the question becomes what is the harm to the parent's. Is the harm the birth a child they didn't want of is the harm the birth of a disable child. (this last one is different than the previous question.) It doesn't matter whether the Dr caused the harm and the dr failed to notice a problem. They're both negligence.

11.8 Is it true that the parents of a normal healthy child — whom they now love, but originally did not want, and have only because of a botched vasectomy or sterilization procedure — have not suffered any injury or damage? Do the benefits conferred by the child's existence outweigh any economic burden involved, or should these benefits merely reduce the damages to be paid by the defendant rather than eliminate them altogether?

Yes, there is an injury because they chose to avoid children and that choice was taken away from them. How would you prove the worth of the benefits of the child's existence? Can they outweigh the economic burden? I would say that they at most reduce the damages instead of eliminate them because they still have to suffer an economic burden even if they now love and want the child. They had made a decision to refrain from children and that choice was taken away. On a pure economic loss idea - If there was a guarantee, there was a statement and then the special relationship rule works and then may have a claim. Liability would be from the guarantee not the operation. However, there could be a claim that pregnancy is a physical injury. Special relationship test but If you think that the benefits of having children outweighs the harm, maybe they'd only get the damages for the botched surgery, maybe the pregnancy it self. The loss of the choice may be a form of compensable harm. This is an area where there will be lots of claims, so some states have passed statutes about this saying no claims or what kind of claims.

Licensee

[Premises Liability] Someone who is lawfully on another's premises, either for social reasons or to exercise a special legal power (e.g. arrest, delivering the mail, or reading a utility meter)

Trespasser

[Premises Liability] Someone who is on another's premises unlawfully.

12.5 Many institutions and organizations continue to use clauses and notices to disclaim liability for personal injury and property damage even where it is known that these disclaimers will not be upheld by courts for reasons of public policy. (a) Why do such organizations continue to use these disclaimers? (b) What is the policy at stake in such cases? (c) Why does it not apply to economic loss or emotional distress?

a. ○ There is the occasional case in which the plaintiff cannot claim (although very small). ○ It is a bargaining chip in the suit: neither the plaintiff nor the defendant would be sure who would win, so it encourages a settlement. ○ People will be less likely to sue if they think that they can't. Great deterrent because people don't know that the disclaimer does not mean anything. People won't go to an attorney over anything minor. Puts people off. ○ Problem with sticking a waiver in a K: may encourage injury. ○ A waiver is a waiver of liability for personal injury. If you took reasonable care this is no tort. A hotel having a disclaimer for valuables in the safe, if they guest does not put valuables in the safe then the hotel is not at risk because of the disclaimer. The different between a warning and a waiver - There is a big difference between a warning and a disclaimer - a warning tells you what the position is and how to avoid the harm; a disclaimer says that if you get injured, we not be liable no matter what b. Sometimes the waiver does stand up- just a chance. Its always a bargaining tool. Neither side really knows which way the court will decide so they come to an agreement on their own. Settlement. Deterrence. Any time you aren't sure, it's always deterrence. If they chose to take the risk, it's there own responsibility. Just because someone gets injured doesn't mean they can sue. MUST have negligence. Efficiency could take into effect too. c. Very few people are able to claim anyway. ○ Most people are suspicious of emotional distress cases, so it leaves people to wonder whether the person can claim or not. We are not convinced emotional distress claims are good so we're not concerned with waiving them. ○ Pure emotional distress doesn't have a physical injury to go along with it. So few people can use this argument and it is all objective Prescriptions have side effect warnings to put you on notice so you notice the side effects and go to the doctor. Mitigate the damages. You should put warnings instead of waivers because it keeps people safe and takes the same amount of words. Reasonable steps. What doctrinal is the difference between a warning and a disclaimer? 1. Warning - duty, proper standard of care (denying one of the aspects of the prima facie case) 2. Disclaimer - defense, affirmative defense (saying the plaintiff proved their case, but nevertheless we shouldn't be liable) a warning is to help a potential victim avoid being injured and a disclaimer just says the harm is there doesn't help you avoid it. a warning goes towards breach. since they give reasonable alternatives there is no breach of duty a disclaimer is a defense. admit you committed negligence for a jury then ask jury to excuse you.

(check for conclusion)Which is the better explanation for vicarious liability: the "master's tort" theory, or the "servant's tort" theory?

a. "Master's tort" theory = theory that the master/employer is being held vicariously liable because they did indeed commit the tortious action through their employee b. "Servant's tort" theory = theory that the responsibility for the servant/employee's tortious actions are being put on an essentially blameless third party (the master/employer)

Why not treat the suffering of emotional distress exactly as though it were personal injury (or is that what now happens)?

a. Because it is much easier to prove a personal injury that can be seen then emotional distress that cannot be seen (this is also why soft tissue injuries are harder to win) b. Do you think Florida (currently only recognizes physical harm) will change to Test 3? i. Florida currently follow the Impact Rule (see Willis) ii. The original theory behind the Impact Rule was something analogous with being hit by a bat - Willis changes this to mean any touching Emotional injuries may occur far removed in time and space from the negligent conduct that triggered them. Moreover, in contrast to the situation with physical injury, there are no necessary finite limits on the number of persons who might suffer emotional injury as a result of a given negligent act. The incidence and severity of emotional injuries are also more difficult to predict than those of typical physical injuries because they depend on psychological factors that ordinarily are not apparent to potential tortfeasors. Can't easily judge how harmed they were.

How did Chief Judge Cardozo deal with the problems identified in Ultramares?

a. Cardozo identifies the distinction between negligence and fraud because he is worried about a defendant being liable to too many people that are not related to the actions directly b. Does Cardozo say a duty was owed? Or not? i. For negligence, no duty was owed 1. Cardozo says: There are 32 certificates, those 32 certificates can go to anybody - they could go to an infinite number of people - we can't have liability to an infinite number therefore there must be no duty 2. The problem with this - there are only 32 certificates and even though we don't know who those might go to, there are still only 32 and therefore only 32 possible victims ii. For fraud, that goes back to the jury

What were the relevant policies at stake in J'Aire?

a. Deterrence, compensation, redress of social grievances b. General Deterrence - to prevent tardiness of other construction companies in completing work c. Compensation - How much, if anything, should J'Aire be compensated for their foreseeable losses caused by the Gregory? d. Retribution - What does Gregory deserve for their wrongdoing? e. Corrective Justice - restoring the parties to the means they were in before by having Gregory pay f. Why isn't vengeance at play? because vengeance is much more likely to be in play when the person who caused the injury acted intentionally and this is a case about negligence not intentional injury g. Denunciation - No denouncing of Gregory because the injury isn't really significant socially and the injury wasn't intentional

11.7 Where claims for wrongful life are recognized, how should any damages awarded be measured? Should these damages be offset by either: (a) an amount that represents the joy afforded to the parents of a wrongfully-born child for having the love and companionship of that child which they would otherwise not have had, and/or (b) an amount that represents the fact that the child him- or herself now has a life which s/he otherwise would not have had?

a. How would you measure the worth of joy??? -we expect the jury to do it for lots of other things so we think they can do it b. Again, how would you measure the worth of a life

What is the best explanation for the House of Lords' decision in Lister?

a. I would think the best explanation would be that they want to hold the primary personally responsible in the case of serious sexual misconduct rather than the employer - this is a social reasoning b. Throws out the Salmond test (which looks simply at authorized and not authorized duties) and replace it with the "close connection" test c. In this case, the Lords' say that Grain would not have been able to commit the tort if he had not been on the job therefore it is a "close connection" to his job duties

What are the problems with applying the zone of danger test to establish duty of care in Mussivand?

a. If applied broadly, it can lead to an indeterminate liability for an indeterminate class. she could have sex with alot of people and we wouldn't know to calculate the risk. b. "Liability to an indeterminate amount for an indeterminate time to an indeterminate class" c. The first problem is that Mrs. M has the ability to infect an indeterminate number of people d. The second problem is that the law doesn't want to go "there" - dictate a rule based on a person's body part(s) i. Inappropriate choice of language -another issue is that ppl lie, its up to he-said she-said.

Since the vast majority of states have rejected the application of the notion of a non-delegable duty's being owed by a hospital to a patient, a patient who slips on a greasy floor that should have been cleaned will have a claim against the hospital on the basis of either vicarious liability or non-delegable duty; a patient who is injured by the negligence of a nurse will have a claim against the hospital on the basis of vicarious liability; while a patient who is injured by the negligence of a doctor will normally be unsuccessful in bringing either type of claim against the hospital. Is this position satisfactory or anomalous?

a. If other types of employers are not vicariously liable for independent contractors why should hospitals be so? b. The difficulty here is in distinguishing doctors who have privileges at a hospital from doctors who solely work for the hospital - shouldn't that be two different categories? One being independent contractors who must carry their own liability insurance and the latter being employees whom the hospital must have coverage for? I feel that this might be a better plan then having hospitals not cover any doctors. i. In appearance, a victim would not necessarily know the distinction between a doctor that is an employee of one hospital or a doctor with privileges c. Currently, the victim would have to sue all doctors involved in a surgical procedure and hope that you get information along the way to prove direct liability against one of the doctors i. Also, there is the possibility that the victim's injury has nothing to do with the doctors at all because all surgeries have inherent risk d. Differently, if you go after the employer for vicarious liability then you only have to show (on a preponderance of the evidence) that something went wrong not who caused the wrong e. US is the only country in the western world that treats doctors as independent contractors, the rest view it has non-delegable duties - this means that doctors would only need liability ins for work done outside the hospital, which would lead to lower premiums for doctors i. What are the 2 reasons that make this system better for doctors? 1. There is no issue with getting liability ins and no real need to shop around for the most cost-effective plan 2. Since victims, in the US, have to sue everyone possibly responsible, then doctors are potentially being stigmatized and have to defend a suit even if they did nothing wrong f. Why does the American medical profession, in general, favor the current system? i. In most other western countries, doctors tend to lose their independence in their non-medical duties

Is it better to treat Curd v. Mosaic Fertilizer as a case about (a) physical harm with consequential economic loss, or (b) pure economic loss? Why?

a. If you treat Curd as pure economic loss, it expands the application of duty of care in cases of pure economic loss to include more people which could lead to the indeterminate class issue b. The test for purely economic loss is the relationship test - do the fishermen have a relationship with Mosaic? i. Any standard review would say no relationship ii. No relationship = no duty of care c. Why do the fishermen win? i. Common law duty of care is owed because there is a physical harm to the Bay/fish - the fishermen become a select group because they paid for their commercial fishing licenses - the purchasing of the licenses gives the fishermen a property right to the Bay/fish ii. Since the fishermen have this property right, the relevant test because zone of danger - the zone is Tampa Bay and since the Bay is being contaminated by Mosaic, there is a physical harm to the fishermen d. The concurring opinion brings up the point that by limiting the class to the commercial fishermen, the majority opinion keeps out all other people who will be economically affected by the lack of fish e. The majority opinion transformed a purely economic loss of the fishermen into a physical harm with concurrent economic loss so that they could decide the case they way that they wanted to - this case is really NOT about the Court's desire to compensate the fishermen, this case IS about deterring Mosaic (and similar companies) from this type of behavior (polluting the Bay) i. M/V Testbank case is only case decided similarly in the common law world - this case is referenced in the majority opinion

13. What is: (a) inductive reasoning; (b) deductive reasoning; (c) analogy? To what extent should the courts be prepared to make use of each of these forms of reasoning?

a. Inductive reasoning: requires lawyers to seek common threads or themes within a series of precedent and then purports to arrive at propositions that are at a higher level of generality than those produced by analogy alone - this is how judges can make law in a common law system, when there is no specific law or clear-cut precedent for a set of circumstances, inductive reasoning is required to shed light on how a case should be decided; inductive reasoning allows pieces to be taken from multiple previous cases to determine a general legal principle b. Deductive reasoning: deductive reasoning is taking the legal principle determined via inductive reasoning and applying it to a specific set of circumstances c. Analogy: most used element; depends on the "requirement of relevant similarity"

11. Is there a place for the jury in a modern system of private law?

a. Juries are not bound by anything other than their own minds and culture and generally do not know what they are doing b. Why was the jury originally created? i. Originally a very corrupt system ii. Transformed into a less-corrupt, more independent system iii. The jury was kept as a check on the judge (the king's man) c. Do we still need juries as a check on judges? i. Juries also force attorneys to behave in a specific way. makes them simplify the law in a way a layperson could understand. d. Could juries be a check on the laws? i.e.: jury nullification Remember: judge represents the gov't. Who represents the people? Jury.

Where is the zone of danger in Mussivand?

a. Mr. Mussivand is suing Dr. David for negligence because David was having an affair with Mrs. Mussivand and through that gave Mrs. M an STD which was then transmitted to Mr. M b. If you have sex with a married person and do not tell them of a STD that you have, then you have a duty of care to that person's spouse c. There is strong public policy behind requiring a duty of care in the case of venereal disease d. You're duty of care to the paramours spouse extinguishes as soon as the paramour knows, or should have known, that they were exposed to or contracted a venereal disease e. Zone of danger = Mrs. M - because that is where the risk of infection for Mr. M was f. Zone of danger is set by the negligent activity of the defendant - so why is Mrs. M the zone of danger? i. David is the one with the STD and because of Davids negligence of not informing Mrs. M of his STD makes her the zone of danger

How well does the law succeed in achieving these policy objectives?

a. None of them alone manage it very well - a combination of the different theories would work the best b. Combine deterrence and boundary maintenance in an effort to create optimal deterrence i. Deter bad behavior to an extent, but allow the bad behavior that does occur to helps us know and determine where the boundaries lie ii. The law of torts used to be viewed as having two main goals: to deter bad behavior and to compensate those who are effected by bad behavior that does occur c. Putting the different potential objectives in a ranking order (as question 1 asks for) would be determinant on the specific set of facts - {think back to Chp 1 theory of judicial reasoning}

11. In Mussivand, Judge Resnick opined that: "There is no formula for ascertaining whether a duty exists. Duty ... is the court's expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." Is the notion of a "formula" inconsistent with the idea of applying "considerations of policy"?

a. Resnick appears to be laying out a roadmap but it is not a clear step-by-step formula per say b. Two judges could look at all the relevant policy and still come up with two different answers (i.e.: Cardozo and Andrews). there are a gazzillion different policy considerations they could consider.

(check) Do the facts of Lister remind you of any analogous incidents in the US?

a. Similar to whether or not individual dioceses were responsible for the sexual misconduct of priests - Catholic Church (and other churches) b. There were similar situations going on around the western world c. Essentially, in the US all similar cases end in settlements or are thrown out by the courts - there is no case in the US which sets out the legal principles

In a "hard case", where the law is unclear, what are judges in a CL supposed to do?

a. The judges are supposed to listen/read the persuasive arguments of both sides, review binding (and non-binding) precedent (generally as presented by the attorneys involved), and attempt to give effect to a policy that is perceived to be appropriate in the circumstances b. Inductive reasoning - seek common threads or themes within a series of precedent (analogizing prior cases) and then arrive at propositions that are at a higher level of generality than those produced by analogy alone c. In practice, judges are expected to weigh the non-binding cases presented by the attorneys and focus on the most often cited cases, cases that are more similar factually, etc. - this is all personal choice ----- this does not occur if there is binding precedent! i. Judges are expected to evaluate the conclusion, as well as the reasoning, of the prior case(s) presented that are non-binding

What is the distinction between a primary victim and a secondary victim, and why does it matter?

a. The primary victim is the person who suffers emotional distress due to their own physical injury whereas the secondary victims are those individuals who suffer emotional distress as a result of the primary victim's harm b. The problem with the secondary victim is that this can lead to indeterminate class c. Ochoa is a perfect example of a secondary victim - the parent does not witness the physical harm, but witnesses the effects of the physical harm d. Need to have a much more restrictive test for secondary victims then for primary victims

How do you reconcile Cardozo's judgment in Macpherson with that in Ultramares v. Touche?

a. The zone of danger is easier to figure out (in Macpherson) because a car is a narrowly defined space and if the person injured within the naturally defined area of the car then they are most definitely in the zone of danger i. Predictability - there is a defined space, victim is in it ii. The problems come into play where there isn't a defined space b. There is a difference in the nature of the harm between Ultramares and Macpherson i. Financial harm requires a very narrow determination of the relationship between the plaintiff and the victim ii. Physical harm requires a much broader determination of the relationship between the plaintiff and the victim

Should courts be concerned by such apparent problems, or should they simply apply the "black-letter law" as it is written?

a. They should be concerned by these types of apparent problems because we do not want a society in which everyone becomes liable for everyone else - this would create a highly litigious society that would stifle businesses b. The vast majority of victims of harm by a third party never get compensation because there is no duty of care i. A way to get around this would be to have your own first party insurance (like Aflac) xpl As explained above, different test for different injuries.

One way of testing the soundness of a public policy argument is to consider whether any alternative way of structuring things would be likely to produce better results. So would it be preferable to require all employees to carry liability insurance?

a. This would probably not be a socially acceptable policy - how would the employer insure that the employee's liability insurance lapse? How would the employee pay for said liability insurance? Would there be a group plan that you can opt into through your employer that you pay for out of your paycheck? How would this work? b. If everyone carries liability insurance, where is the incentive for an employer to create a safe working environment? It is generally thought to be safer to hold companies responsible through the rules/regulations imposed on them by liability insurance c. Who is going to pay for the individual liability plans? i. Employers may be expected to pay higher wages so that their employees can afford the individual plans d. Is it better to have the employer pay directly? Or indirectly through higher wages? e. Why is the system set up the way it is rather than another way? i. It is to the benefit of both sides - the employers and the employees f. The end result will be less coverage for a victim and, potentially, more defendants involved in a litigation in order for the victim to get the same coverage that they would get if they were to sue one employer i. Most individuals will probably purchase the minimum liability ins and therefore have lower policy limits g. Employers are afraid of employees unionizing in order to get higher wages to cover the costs of liability ins i. Employers do not want any incentive to bolster unionization

Is there something about the particular facts of that case which makes these problems especially acute?

a. Torts was originally about physical injury, but this case is about economic loss b. What is the significance of the differences between physical injuries and financial injuries? i. A physical injury happens to one person and is one injury, whereas financial injuries have a trickle-down effect - the main company loses money, their investors lose money, their employees lose money, etc. c. Indeterminate liability to an indeterminate class - particularly problematic with financial losses

What alternative to the zone of danger test do these answers — together with the case of J'Aire Corp v. Gregory in section 2.16 — suggest might make a more appropriate test of duty in Mussivand v. David?

a. Was it foreseeable (from David's point of view) that, by having sex with Mrs. M, Mr. M would be harmed? i. Yes, provided that David knew she was married - and he does so it is foreseeable and there ought to be a duty of care here b. Was it foreseeable (from David's point of view) that Mrs. M would have sex with other people (besides Mr. M and David)? i. In principle, it is possible that Mrs. M would have sex with other people since she is already having sex outside her marriage with David c. Court says that Mr. M is easily differentiated from everybody else because there can only be one spouse (as per the law) - any other third person would not be owed a duty of care because they are part of an infinite class because their class is everyone other then her spouse d. McCain v. Florida Power - As to duty, the proper inquiry for the reviewing appellate court is whether the defendant's conduct created a foreseeable zone of risk, not whether the defendant could foresee the specific injury that actually occurred e. Is it possible to differentiate the victim from society as a whole or a indefinite class? If the victim can be differentiated into a smaller, finite class then they are owed a duty? f. The test in Mussivand is "relationship" (similarly to J'Aire and Macpherson) - the good thing about "relationship" is that only a select number of people can be in a relationship with the defendant i. This is similar to privity in contract law g. Initially after the Palsgraf decision, the majority of states followed the Andrews dissent and rule - then the 70s & 80s came along and there was a political movement against the seemingly large amount of frivolous lawsuits, this is when there was a change to following Cardozo's rule

(CHECK) Should medical evidence of emotional distress, or the suffering of a recognized medical condition, be a prerequisite to a successful claim?

a. Yes - because this could cut back on fraudulent claims b. Likely this isn't really 100% necessary because the jury will go off of emotion c. *You need to persuade people by reasoning and presenting them the solution you want them to come up with* all injuries should require some sort of proof and emotional injury should be no different.

12. Was it right that property law considerations in Scibelli be allowed to defeat the potential application of tort law doctrine?

a. Yes because the tort would have restricted the train company's right to their own property/business and it was really mostly an accident whereas the tort vs. contract was intentional or at least knowingly b. Contract law - we are going to uphold what you expressly agreed to c. Property law - it's yours and you have the right to do with it what you please d. Torts - sometimes people injure others, if the injury is unintentional then we have to balance things and we can't do this balancing act unless we know all the facts

What is the broader concept that connects the notion of "zone of danger" with that of "special relationship"?

a. You can foresee that the people that you have that special relationship with are likely to suffer harm - similarly, you can foresee that the people in the zone of danger are likely to suffer harm b. The two concepts are connected by FORESEEABILITY c. The goal is to limit the class of potential victims, hence the creation of these two concepts i. Foreseeability alone can leave you open to a indeterminate class/victims d. These two concepts are more restrictive forms of foreseeability e. Proximity/Closeness - the concept that connects zone of danger and special relationship i. 3 Types of Proximity: Spatial, Temporal, & Relational ii. Zone of danger = spatial & temporal proximity iii. Special relationship = relational proximity

7. Is J'Aire fundamentally about: (a) the correct interpretation of past precedent; (b) the drawing of analogies with past cases; (c) the application of inductive reasoning to establish the relevant legal doctrine; (d) the application of deductive reasoning to apply the relevant legal doctrine; (e) the application of policy?

a. the correct interpretation of past precedent; i. Why isn't this applicable? There is no past precedent that easily gives the answer ii. There is lots of past precedent in which plaintiffs are denied remedy because of lack of a contract b. the drawing of analogies with past cases; i. The Court argued that the precedent they were looking about was based on the foreseeability of the injury rather than the nature of the injury c. the application of inductive reasoning to establish the relevant legal doctrine; i. The Court viewed this case to be about the foreseeability of the injury ii. The Court relied on the doctrine of privity in contract in order to give a remedy to the injured party d. the application of deductive reasoning to apply the relevant legal doctrine; i. Going from the analogy where they inducted a general principle, they then apply the general rule of law e. the application of policy? i. The willful failure of a contractor that causes injury is against policy

What is the economic loss rule? Is it really a rule?

an individual who sustains purely economic loss from an interruption in commerce caused by another's negligence may not recover damages in the absence of physical harm to that individual's person or property, a contractual relationship with the alleged tortfeasor, or some other special relationship between the alleged tortfeasor and the individual who sustains purely economic damages sufficient to compel the conclusion that the tortfeasor had a duty to the particular plaintiff and that the injury complained of was clearly foreseeable to the tortfeasor. This isn't always true so no it's not really a rule.

(CHECK) 5. Is Potter v. Firestone Tire & Rubber Co. best treated as: (a) a case of personal injury; (b) a case of emotional distress; or (c) a case of a reduced chance of avoiding physical injury in the future? How and why does it matter?

c. Being compensated for medical testing necessary because of another's negligence helps to insure future injuries due to the negligence is lessened or prevented all together. And it may alleviate the emotional distress caused by the negligence if they are assured of receiving proper medical testing. It changes how the court determines the outcome. Which test of duty of care to use. If it was ED you have two options. (mental issue, or really serious mental suffering. All the really serous cases always happened in the past. This is a fear of something in the future. If you only harm a few people, you will probably be found to have had a duty. If you hurt or could have hurt a ton of people, you will probably get away with it. Gas can go anywhere, no natural boundary so extends liability too far. Unlimited class of people. There was another option: the court should say "woe is me, we can't do anything. It's over to you legislature." Problem is that big businesses, such as the ones who polluted with the gas, lobby to the legislature and no law would ever be passed.

Should the common law adopt the same approach as civil law jurisdictions and impose a general duty to assist someone in danger or distress, so long as it is reasonable in the circumstances to do so?

c. It would be seemingly a good idea for society as a whole if we are all take responsibility for each other - however, would it really be a good idea to hold people legally responsible for not acting? What if them acting would be worse than them not acting? With our CL system, would probably end up being so many exceptions or distinguishing cases that it would just add confusion where lay persons wouldn't know exactly when its appropriate to act. This would lead to having to determine if the ∆ was "reasonable" in order to decide if he was supposed to act, and then become a question of fact. Therefore, the jury would then be faced with deciding the question of duty, which is supposed to be for the judge.

Is Scibelli fundamentally about: (a) the correct interpretation of past precedent; (b) the drawing of analogies with past cases; (c) the application of inductive reasoning to establish the relevant legal doctrine; (d) the application of deductive reasoning to apply the relevant legal doctrine; (e) a dispute as to who has the power — judge or jury — to render the central decision in the case; or (f) the application of policy?

e. a dispute as to who has the power — judge or jury — to render the central decision in the case; i. The jury automatically awarded the kid's family money ii. The appellate court stated that the case should have never gone to a jury iii. Who should decide? Judge or jury? 1. There needs to be a rule of law determining when the judge gets to decide and when the jury does 2. A lot of the issue in torts cases are whether or not the case should go to a jury at all - there is a lot based on MSJs iv. The dissent believed that the jury should have been the one to decide v. The jury was brought about as a check on trial judges (the King's man) and then the appellate court judges have become a check on juries vi. Power of remitter - judge has the power to lower the amount of compensation granted by the jury f. the application of policy? i. If you believe that economic efficiency should be the number one policy, then the majority's opinion is plausible ii. The dissent made plausible arguments based on the particular facts of the case - the dissent argued that the cost of policing the one block where the kid was injured is not going to be overly expensive; also there were 5 RR employees in the same car as where this occurred iii. Normally when you want to persuade, you need a hook and this case does not have a hook for either side

Wrongful Death Actions

primary victim died; FINANCIAL DEPENDENCY •Brought by financial dependents of the decedent •Damages are for the financial loss of dependents - and potential losses like funeral expenses (some jurisdictions allow for loss of inheritance claim) •Damages go directly to dependents and do not form part of the estate •Cost is borne by dependents involved Wrongful death actions are usually the most significant for compensation; without financial dependents, it may not be possible; some courts allow "inheritance damages" instead of trying to calculate "financial dependency" all wrongful death beneficiaries, including parents of adult children, have a cause of action for loss of society (according to this jurisdiction). This includes family members, depending on statute or common law precedent. Loss or significant diminution of services

2. What is the doctrine of privity and — bearing in mind that it is part of the law of contracts — what is its relevance to the tort of negligence?

privity in K has to do with a relationship. For contracts, privity means that the parties of a contract are held to be in privity and owe each other to give good faith. Privity has nothing to do with torts because K law doesn't impose tortious duties. However, the absence of privity doesn't neccessarily mean absence of negligence. Ultramares wanted to use the law of torts as a vehicle to sue Touche even tho he didn't have a k, therefore no privity. Torts is being used to close the loophole in the law of K. this allows a party that has been injured but isn't a party to a K to claim a remedy and recv compensation. If they had a K, they could've sued for breach of K and never used torts. Ultimately Ultramares sues Touche for torts of negligence and fraud. touche should've double checked their work; negligence is the reason for ultra mares losing money,

The Supreme Court of Connecticut has explained that: "Vicarious liability is based on a relationship under which it has been determined as a matter of public or social policy that one person should be liable for the act of another, irrespective of the participation of the person vicariously liable." What is the "public or social policy" at stake?

public policy concerns fall roughly into three basic categories: negligence of the employer in selecting, instructing or supervising the contractor; employment for work that is especially or "inherently" dangerous; and, finally, instances in which the employer is under a specific nondelegable duty. That injured people would not have a remedy and would ultimately be harmed twice. want to ensure that the victim is compensated in a socially acceptable way

Can employers ever be held directly or primarily liable for torts relating to the conduct of their employees, or can their liability only be vicarious?

there are actually two ways in which an employer may be directly liable for an injury caused by an independent contractor's tort. One, as we have seen, is liability for breach of a non-delegable duty. Another is liability for the negligent hiring and/or supervision of an independent contractor. In other words, if the employer's choice of independent contractor was unreasonable, or if there was inadequate supervision — note: not control — of how the contractor went about his job, then the employer may be liable directly for its own unreasonable conduct, because it had the effect of facilitating the injury that the victim sustained. When the unreasonable hiring of another person involves the employer's own fault, the employer would be directly liable - otherwise it would be vicarious liability. If the employer doesn't do their due diligence in hiring an employee or company, then they are directly liable for the tortious acts of the employee/company. If you hold an employer directly liable, the damages can be higher - you can claim punitive damages if the employer is directly liable, not so if the employer is vicariously liable. The point of being able to hold an employer directly liable is that you can hold the employer responsible whether or not the tortfeasor is an employee or an independent contractor i. Why? 1) Independent contractors are not covered by employer's liability insurance, and 2) You don't need to figure out if the tortfeasor is an employee or an independent contractor -Issue with vicarious liability is establishing if they are independent contractor or employee (3 tests?) 1. label- what does the employer "label" the person, 2. Control test - employer has complete control over how the individual performs their duties; is the person a skilled or unskilled individual. unskilled and supervised is more employee. Skilled and unsupervised is more like contractor. but still difficult to determine so need the.. 3. integration test-has the employer integrating the individual into further workings of the company beyond the scope of their job description; access to employee-only facilities; the person doesn't work for anyone else during normal working hours