Torts (Themis) - IV. NEGLIGENCE

G. 1. f. "Parasitic" damages

A plaintiff who is the victim of a tort that causes physical injury may also add emotional distress as an element of damages (sometimes known as "parasitic" damages). Compare to intentional infliction of emotional distress, under which the plaintiff must prove more than negligence (intentional or reckless extreme or outrageous conduct) but need not prove any physical injury.

A. 2. ELEMENTS OF NEGLIGENCE

A prima facie case for negligence consists of four elements: i) Duty, the obligation to protect another against unreasonable risk of injury; ii) Breach, the failure to meet that obligation; iii) Causation, a close causal connection between the action and the injury; and iv) Damages, the loss suffered.

I. 1. d. Government officals

1) Discretionary functions When a government official is personally sued, immunity applies if she is performing discretionary functions entrusted to her by law so long as the acts are done without malice or improper purpose. 2) Ministerial functions There is no tort immunity for carrying out ministerial acts, such as driving while on government business. 3) Highly ranked officials Many highly ranked government officials, such as legislators performing their legislative functions, judges performing their judicial functions, prosecutors, and some upper-echelon officials of the executive branches, are usually absolutely immune from personal liability. 4) Federal immunity Under the so-called "Westfall Act," 28 U.S.C. § 2679(b)(1), the remedy against the United States under the FTCA for torts committed by federal employees precludes any personal liability on the part of a federal employee under state tort law.

C. 3. d. Physicians

1) Local vs. national standard Traditionally, physicians were held to the "same or similar" locale rule of custom: did the physician's actions comport with those customarily employed by doctors in the same locale or in similar localities? During the past 40 years, however, many jurisdictions have changed to a national standard: did the physician conform her conduct to the customary practice of the average qualified practitioner? Some jurisdictions now require medical specialists to comply with the national standard while holding general practitioners to the same or similar locale standard. 2) Informed consent Physicians are under a specific obligation to explain the risks of a medical procedure to a patient in advance of a patient's decision to consent to treatment. Failure to comply with this "informed consent" doctrine constitutes a breach of the physician's duty owed to the patient and is actionable as medical malpractice (medical negligence). Doctors are not under an obligation to disclose when the: i) Risk is a commonly known risk; ii) Patient is unconscious; iii) Patient waives or refuses the information; iv) Patient is incompetent (although the physician must make a reasonable attempt to secure informed consent from a guardian); or v) Disclosure would be too harmful to the patient (e.g., would upset the patient enough to cause extreme illness, such as a heart attack). A majority of jurisdictions hold that the required level of disclosure of risks is governed by custom among medical practitioners. However, a significant minority holds that the physician must disclose any "material risk," that is, any risk that might make a difference to a reasonable person in deciding whether to proceed with the surgery or other medical treatment.

I. 1. c. Municipalities

1) Usually governed by state tort claims act Today, the liability of municipalities, other local governments, and their agencies usually is governed by the provisions of state tort claims acts. 2) Governmental vs. proprietary functions Traditionally, immunity attached to the performance of traditional government functions (such as police and court systems) but did not attach when a municipality was performing a "proprietary" function that often is performed by a private company (such as utilities and parking lots). 3) Public-duty rule The public-duty rule provides that there is no liability to any one citizen for the municipality's failure to fulfill a duty that is owed to the public at large, unless that citizen has a special relationship with the municipality that creates a special duty. A special relationship can be shown by: i) Promises or actions on the part of the municipality demonstrating an affirmative duty to act on behalf of the injured party; ii) Knowledge by the municipality's agents that failure to act could lead to harm; iii) Direct contact between the municipality's agents and the injured party; and iv) The injured party's justifiable reliance on the municipality's affirmative duty.

F. DAMAGES

1. Actual damages 2. Compensatory damages 3. Mitigation of damages, avoidable consequences 4. Personal injury: categories of damages 5. Property damage 6. Collateral-source rule 7. Punitive damages

D. BREACH OR VIOLATION OF DUTY OF CARE

1. Burden of proof 2. Res ipsa loquitur

K. DEFENSES TO NEGLIGENCE

1. CONTRIBUTORY NEGLIGENCE 2. ASSUMPTION OF THE RISK

J. SHARING LIABILITY AMONG MULTIPLE DEFENDANTS

1. JOINT AND SEVERAL LIABILITY 2. CONTRIBUTION 3. SEVERAL (PROPORTIONATE) LIABILITY 4. SATISFACTION AND RELEASE 5. INDEMNIFICATION

G. SPECIAL RULES OF LIABILITY

1. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 2. WRONGFUL DEATH AND SURVIVAL ACTIONS 3. RECOVERY FOR LOSS ARISING FROM INJURY TO FAMILY MEMBERS 4. "WRONGFUL LIFE" AND "WRONGFUL BIRTH" CLAIMS

C. 6. b. Trespassors

A trespasser is one who enters or remains upon the land of another without consent or privilege to do so. 1) Traditional approach A landowner is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers. a) Spring-guns and other traps The use of a "spring-gun" or other trap set to expose a trespasser to a force likely to inflict death or grievous bodily injury will lead to liability for the land possessor. The land possessor cannot do indirectly what he would be forbidden to do directly (e.g., shoot the trespasser). b) Discovered trespassers Land possessors owe a duty toward discovered or anticipated trespassers to warn or protect them from concealed, dangerous, artificial conditions. There is no duty to warn of natural conditions or artificial conditions that do not involve risk of death or serious bodily harm. Land possessors also have a duty to use reasonable care while conducting activities on their land, as well as to control the activities of third parties on their property. c) Undiscovered trespassers Land possessors generally owe no duty to undiscovered trespassers, nor do they have a duty to inspect their property for evidence of trespassers. Note that, in a majority of jurisdictions, when a landowner should reasonably know that trespassers are consistently entering his land (e.g., frequent trespassers using a footpath to cut across the corner of the property), the landowner owes a duty to the trespasser, regardless of the landowner's actual knowledge, as if the trespasser were a licensee. d) Attractive nuisance Under the "attractive nuisance" doctrine, a land possessor may be liable for injuries to children trespassing on the land if: i) An artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass; ii) The land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children; iii) The children, because of their youth, do not discover or cannot appreciate the danger presented by the condition; iv) The utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children; and v) The land possessor fails to exercise reasonable care to protect children from the harm. Restatement (Second) of Torts § 339 (1965). 2) Modern and Third Restatement approach A few states now take the approach that land possessors owe trespassers, like all other land entrants, a reasonable standard of care under all the circumstances. Of course, the fact that the land entrant is trespassing, particularly if he is undiscovered, is one fact that the jury may consider in deciding whether the land possessor has exercised reasonable care. The Third Restatement § 52 provides that although a duty of reasonable care is owed to trespassers, only the duty not to act in an intentional, willful, or wanton manner to cause physical harm is owed to flagrant trespassers who are not imperiled and unable to protect themselves. A burglar in a home would be a flagrant trespasser but someone injured while walking in a public park at midnight, despite the presence of a posted notice that the park was closed after dusk, would not be. This distinction has not been widely adopted by the courts.

C. THE STANDARD OF CARE

1. Reasonably prudent person 2. Cost-benefit analysis 3. Custom 4. Negligence pre se 5. Standards of care for specific classes of defendants 6. Possessors of land

C. 6. g. Off-premises victims

A landowner generally does not owe a duty to a person not on the premises (e.g., passerby, owner of adjacent land) who is harmed by a natural condition on the landowner's premises. An exception exists, however, with respect to trees in urban areas. With respect to an artificial condition, the landowner generally owes a duty to prevent an unreasonable risk of harm to persons who are not on the premises. Similarly, with respect to an activity conducted on the premises by the owner or by someone subject to the owner's control, the landowner generally owes a duty of reasonable care to persons who are not on the premises.

C. 5. c. Bailors and bailes

A bailment occurs when a person (the bailee) temporarily takes possession of another's (the bailor's) personal property, such as when a driver leaves his car with a valet. The duty of care that must be exercised by a bailor or bailee varies depending on the type of bailment. 1) Bailor's duty The bailor has a duty to inform a gratuitous bailee only of known dangerous defects in personal property but must inform a bailee for hire of defects that are known or should have been known by the bailor had he used reasonable diligence. 2) Bailee's duty When a bailor receives the sole benefit from the bailment, the bailee has a lesser duty to care for the property and is liable only if he has been grossly negligent. In contrast, when a bailee receives the sole benefit from the bailment, he must exercise extraordinary care for the bailor's property. Slight negligence on the bailee's part will result in liability for any injuries to the property from failure to properly care for or use it. In a bailment for mutual benefit, the bailee must take reasonable care of the bailed property.

H. 7. BAILMENT LIABILITY

A bailor may be liable for his own negligent actions but generally is not vicariously liable for the tortious acts of his bailee, except for those limited situations described above, such as bailments involving automobiles or parents and children.

G. 2. a. Wrongful-death actions

A decedent's spouse, next of kin, or personal representative may bring suit to recover losses suffered as a result of a decedent's death under wrongful death actions created by state statutes. Under typical statutes, the recoverable damages include the loss of support (income) as a result of the decedent's death, as well as the loss of companionship, society, and affection experienced by the surviving family members, but not pain and suffering. Recovery, however, is limited to what the deceased would have recovered had he lived. Additionally, the decedent's creditors have no right to institute a claim against the amount awarded.

B. 4. b. Intended beneficiaries

A defendant is liable to a third-party beneficiary if the legal or business transaction that the beneficiary is a part of is prepared negligently by the defendant, and the defendant could foresee the harm of completing the transaction.

B. 5. e. By relationship

A defendant with a unique relationship to a plaintiff, such as business proprietor-patron, common carrier-passenger, employer-employee, or parent-child, may have a duty to aid or assist the plaintiff and to prevent reasonably foreseeable injury to her from third parties.

C. 6. d. Licensees: traditional approach

A licensee is someone who enters the land of another with the express or implied permission of the land possessor or with a privilege. Examples of licensees include: i) Social guests—Note, they may be "invited," but they are still licensees, not invitees; ii) Those whose presence is tolerated by the land possessor such as children who routinely cut across the land on their way home from school; and iii) Emergency personnel such as police, firefighters, and emergency medical technicians. The land possessor has a duty to either correct or warn a licensee of concealed dangers that are either known to the land possessor or which should be obvious to her. The land possessor does not have a duty to inspect for dangers. In addition, the land possessor must exercise reasonable care in conducting activities on the land.

G. 3. b. Parent-child

A parent may recover damages for loss of services if a child is injured due to the defendant's tortious conduct. Many jurisdictions allow a parent to recover for loss of the child's companionship in a wrongful-death action if the child is killed, but only a few jurisdictions allow a parent to recover for such damages if the child is injured but lives. Similarly, many jurisdictions allow a child to recover for loss of the parent's companionship in a wrongful-death action, but most do not allow the child to recover such damages if the parent is injured but lives. In a wrongful-death action, the child's claim for loss of support resulting from the decedent's death will be brought by the statutorily designated adult family member as part of the wrongful-death action.

B. 4. a. Rescuers

A person who comes to the aid of another is a foreseeable plaintiff. If the defendant negligently puts either the rescued party or the rescuer in danger, then he is liable for the rescuer's injuries. To the extent that a rescuer's efforts are unreasonable, comparative responsibility should be available to reduce, rather than to bar, recovery by a rescuer. Rest. 3d: Liability for Physical and Emotional Harm § 32. An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional's injury if the injury resulted from a risk inherent in the job ("firefighter's rule").

B. 5. b. Placing another in peril

A person who places another in peril is under a duty to exercise reasonable care to prevent further harm by rendering care or aid.

B. 5. a. Assumption of duty

A person who voluntarily aids or rescues another is liable for injury caused by a failure to act with reasonable ordinary care in the performance of that aid or rescue. Note that some states have enacted "Good Samaritan" statutes to protect doctors and other medical personnel when they voluntarily render emergency care. These statutes exempt medical professionals from liability for ordinary negligence; however, they do not exempt them from liability for gross negligence.

G. 1. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

A plaintiff can recover for negligent infliction of emotional distress from a defendant whose negligence creates a foreseeable risk of physical injury to the plaintiff if the defendant's action causes a threat of physical impact that in turn causes emotional distress. The emotional distress generally must result in some form of bodily harm (e.g., a heart attack). Note that it is also possible for a defendant to inflict severe emotional distress that results in physical symptoms without the threat of physical impact, such as when a physician negligently misdiagnoses a patient with a terminal illness that the patient does not have, and the patient goes into shock as a result.

C. 3. c. Professionals

A professional person (e.g., doctor, lawyer, or electrician) is expected to exhibit the same skill, knowledge, and care as another practitioner in the same community. A specialist may be held to a higher standard than a general practitioner because of his superior knowledge.

J. 3. SEVERAL (PROPORTIONATE) LIABILITY

A significant number of states now reject joint and several liability and instead recognize pure several liability, under which each tortfeasor is liable only for his proportionate share of the plaintiff's damages. In most of these jurisdictions, each defendant's share of liability is determined in accordance with how far each deviated from the standard of reasonable care. In other words, the more culpable defendant pays the higher proportion of the damages.

H. 1. b. Scope of employment

An employer is liable for the tortious conduct of an employee that is within the scope of employment. Conduct within the scope of employment includes acts that the employee is employed to perform or that are intended to profit or benefit the employer. Note: Careful instructions directed to the employee do not insulate the employer from liability—even when the employee acts counter to the instructions—if the employee is acting within the scope of employment. 1) Intentional torts An employer may be liable for the intentional tort of an employee. For example, when force is inherent in the employee's work (e.g., a bouncer at a bar), the employer may be responsible for injuries the employee inflicts in the course of his work. However, if an employee, acting on a long-standing personal grudge, punches a customer of the employer's store, the employer probably will not be held liable. In addition, if the employer authorizes the employee to act on his behalf, and the employee's position provides the opportunity to commit an intentional tort, the employer may be liable (e.g., when an employee with the power to sign contracts enters into a fraudulent contract with a third party, the employer may be liable). As with negligence, the test is whether the employee was acting within the scope of employment. Restatement (Third) of Agency §7.07. 2) Detour and frolic An employer may be liable for a tort committed by the employee during an employee's detour (a minor and permissible deviation from the scope of employment) but not for an employee's frolic (an unauthorized and substantial deviation). EXAM NOTE: The employer and employee will be jointly and severally liable (see §IV.J.1. Joint and Several Liability, infra) for torts committed by the employee within the scope of employment.

H. 1. c. Negligent hiring

An employer may be liable for the negligent hiring, supervision, entrustment, or retention of an employee. This is primary negligence; it is not vicarious liability. EXAM NOTE: If you conclude that an employer is not liable under a vicarious-liability theory, then be certain to consider whether the employer is liable in her own right for negligence.

H. 2. b. Distinguished from employee

An independent contractor is one hired to accomplish a task or result but who is not subject to a right of control by the employer. i) Independent contractors tend to have specialized skills or knowledge, e.g., physicians and plumbers; and ii) Independent contractors tend to work for many employers, while employees more often work for a single employer.

C. 6. c. Invitees: traditional approach

An invitee is either: i) A public invitee—Someone invited to enter or remain on the land for the purposes for which the land is held open to the public; or ii) A business visitor—Someone invited to enter or remain on the land for a purpose connected to business dealings with the land possessor. A land possessor owes an invitee the duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them. However, the duty of reasonable care owed to an invitee does not extend beyond the scope of the invitation, and the invitee is treated as a trespasser in areas beyond that scope. 1) Non-delegable duty The land possessor's duty to invitees is a non-delegable duty. For example, even if a store owner hires an independent contractor to maintain the escalator in her store, she will remain liable if the contractor negligently fails to properly maintain the escalator. This same principle of non-delegable duty applies under the modern approach (discussed below) under which the land possessor owes most land visitors a duty of reasonable care. 2) Recreational land use In some jurisdictions, a land possessor who opens his land to the public for recreational purposes is not liable for injuries sustained by recreational land users so long as he does not charge a fee for the use of his land, unless the landowner acts willfully and maliciously or, in some jurisdictions, with gross negligence.

C. 6. e. Invitees and licensees: modern and Restatement approach

Approximately one-half of all jurisdictions and the Third Restatement now require the land possessor to exercise reasonable care under all circumstances to all land entrants except trespassers (or in the case of the Third Restatement, all land entrants except for "flagrant trespassers." See § IV.C.6.b. Trespassers, supra). The land possessor must use reasonable care to prevent harm posed by artificial conditions or conduct on the land. If the land possessor is commercial, then he also must use reasonable care to prevent harm to the visitor posed by natural conditions. A non-commercial land possessor must use reasonable care to prevent harm posed by natural conditions only if the possessor is aware of the risk, or the risk is obvious.

C. 6. a. Two approaches

Approximately one-half of all jurisdictions continue to follow traditional rules that provide that the standard of care owed to land entrants depends upon whether the land entrant is an invitee, a licensee, or a trespasser. Courts in the other half of jurisdictions now hold that a reasonable standard of care is owed to all invitees and licensees (abolishing the distinction between how these two groups are treated). The Third Restatement also follows this approach. However, a majority of jurisdictions adopting this "reasonable-care-for-all" approach continue to provide separate rules for trespassers.

H. 1. a. Employer's right of control

As a general rule, the employer is vicariously liable for the employee's torts if the employer has the right to control the activities of the employee.

K. 1. a. Contributory negligence: traditional rule

At common law, and in a handful of states, the plaintiff's contributory negligence (i.e., failure to exercise reasonable care for her own safety) is a complete bar to recovery, regardless of the percentage that the plaintiff's own negligence contributed to the harm. Examples of contributory negligence include: i) A plaintiff's violation of a statute that is designed to protect against the type of injury suffered by the plaintiff; the plaintiff's violation of a statute cannot be used as a defense, however, when a safety statute is interpreted to place the entire responsibility for the harm suffered by the plaintiff on the defendant (e.g., workplace safety statutes when an injury occurs to someone not covered by workers' compensation); ii) A plaintiff-pedestrian's crossing the street against the light; and iii) A plaintiff driving at an unreasonable speed that deprived him of the opportunity to avoid a traffic accident. A rescuer who takes significant risks when attempting a rescue may also be permitted to recover, despite the rescuer's negligence. Note: Contributory negligence is not a defense to an intentional tort, gross negligence, or recklessness. Traditional reasons for the rule denying recovery have included punishing a plaintiff who has herself been negligent and deterrence, in that people are more likely to be careful about their own safety if they know they cannot recover for their injuries if they are not themselves careful.

C. 6. f. Liability of landlords and tenants

Because the obligations associated with property are owed by the possessor of the land, a lessee (tenant) assumes any duty owed by the lessor (the landlord) once the lessee takes possession. 1) Landlord's liability The landlord, though, remains liable for injuries to the tenant and others occurring: i) In common areas such as parking lots, stairwells, lobbies, and hallways; ii) As a result of hidden dangers about which the landlord fails to warn the tenant; iii) On premises leased for public use; iv) As a result of a hazard caused by the landlord's negligent repair; or v) Involving a hazard that the landlord has agreed to repair. 2) Tenant's liability As an occupier of land, the tenant continues to be liable for injuries to third parties arising from dangerous conditions within the tenant's control, regardless of whether the landlord has liability.

K. 1. e. Distinguishing comparative fault, contribution, and several liability

Comparative fault, contribution, and several liability all involve comparing the level of egregiousness of fault of parties in tort litigation. However, each of these concepts operates in a different context: i) Comparative fault always involves comparing the fault of a plaintiff with the fault of one or more defendants; ii) Contribution involves comparing the degrees of fault of co-defendants in an action or as the result of a motion by one co-defendant against another co-defendant; it does not affect the liability of any of the defendants to the plaintiff; iii) Several liability, in the minority of jurisdictions where it operates, involves comparing the levels of fault of the co-defendants; however, unlike with contribution, the issue is how much the plaintiff will receive from each defendant.

K. 1. CONTRIBUTORY NEGLIGENCE

Contributory negligence occurs when a plaintiff fails to exercise reasonable care for her own safety and thereby contributes to her own injury. Note that when a plaintiff is suing a defendant for the negligent rendering of services, such as medical services, the plaintiff's negligent conduct in creating the condition that the defendant has been employed to remedy is not taken into account.

G. 4. b. Wrongful birth

Conversely, many states do permit parents to recover for "wrongful birth" (failure to diagnose a defect) or "wrongful pregnancy" (failure to perform a contraceptive procedure). Generally, the mother can recover damages for the medical expenses of labor as well as for pain and suffering. In the case of a disabled child, the parents may be able to recover damages for the additional medical expenses of caring for that child, and, in some states, may recover for emotional distress as well.

NEGLIGENCE

EXAM NOTE: Negligence is a very commonly tested subject on law school exams. In addition to memorizing the elements, be sure to know that the defendant must: i) Fail to exercise the care that a reasonable person in his position would exercise; and ii) Act in a way that breaches the duty to prevent the foreseeable risk of harm to anyone in the plaintiff's position, and the breach must be the cause of the plaintiff's injuries.

C. 4. c. Defenses

Even in those jurisdictions in which negligence per se results in negligence as a matter of law, the defendant can avoid liability by proving either that compliance was impossible under the circumstances or that an emergency justified violation of the statute. 2) Violation was reasonable under the circumstances The defendant's violation of a statute is excused and is not negligence if the violation is reasonable in light of the defendant's physical disability or incapacitation, if the defendant is a child, or if the defendant exercises reasonable care in attempting to comply with the statute. Rest. 3d: Liability for Physical and Emotional Harm § 15. In addition, if the statute imposes an obligation only under certain factual circumstances that are not usually present, and the defendant is not aware that these circumstances are present and further proves that his ignorance was reasonable, then the defendant's violation of the statute is excused for the purposes of negligence per se. Finally, if the requirements of the statute at issue were presented to the public in a confusing manner (e.g., extremely vague or ambiguous), then the defendant's violation is excused. Rest. 3d: Liability for Physical and Emotional Harm § 15.

E. 3. b. Extent of damages

Even though a strong minority of jurisdictions hold that the type of risk that produces the plaintiff's harm must be foreseeable, under the "thin skull" or "eggshell skull" rule, the extent of the damages need never be foreseeable. Thus, the defendant is liable for the full extent of the plaintiff's injuries due to the plaintiff's pre-existing medical condition or vulnerability, even if the extent is unusual or unforeseeable.

D. 2. b. Modern trends

Even under the traditional requirements, courts often generously interpret the "exclusive control" requirement. Example: The defendant hires an independent contractor to clean and maintain his store premises. The plaintiff is injured when she slips on a floor negligently left wet by an independent contractor. Courts will find that the duty to maintain the premises open to the public is a non-delegable duty, such that the defendant continued to be in "exclusive control." Therefore, res ipsa loquitur can be used to find that the defendant breached a duty of reasonable care. 1) Medical malpractice In medical malpractice cases in which several physicians, nurses, and other medical personnel have access to the plaintiff during surgery, a small number of jurisdictions apply res ipsa loquitur, finding that each defendant has breached a duty of care unless he can exonerate himself. In the absence of such exonerating evidence, the courts hold all defendants jointly and severally liable. See, e.g., Ybarra v. Spangard, 25 Cal. 2d 486 (1944). 2) Product liability In negligence cases involving products, even if the product passes through many hands—those of the manufacturer, the distributor, the retail store, and the consumer/user—if the manufacturer wrapped the package or it is clear that any negligence took place during the production process, many courts ignore the exclusivity requirement. 3) Comparative fault jurisdictions Courts in the vast majority of jurisdictions that have adopted comparative fault also are inclined to loosely apply the third requirement—that the harm must not be due to any action on the part of the plaintiff (whether such action constitutes contributory negligence or not)—because such a requirement would otherwise be in tension with the law holding that the plaintiff's contributory negligence is no longer a total bar to recovery.

C. 3. a. Within a community or industry

Evidence of a custom in a community or industry is admissible as evidence to establish the proper standard of care, but such evidence is not conclusive. The entire community or industry may be negligent.

J. 1. b. Application

Examples of when joint and several liability applies include, among other instances, when: i) The tortious acts of two or more tortfeasors combine to produce an indivisible harm (see § IV.E.1.b.2. Concurrent tortfeasors contributing to an individual injury, supra); ii) The harm results from the acts of one or more tortfeasors acting in concert (see § IV.E.1.b.4. Concert of action, supra); iii) Alternative liability applies (see § IV.E.1.b.3. Alternative causation, supra); iv) Res ipsa loquitur is used against multiple defendants (such as in a surgical setting), and the plaintiff is unable to identify the tortfeasor whose acts were negligent (see § IV.D.2. Res Ipsa Loquitur, supra); and v) The employer and the employee are both held liable (see § IV.H.1. Liability of an Employer for an Employee's Torts, supra).

B. 4. c. Fetuses

Fetuses are owed a duty of care if they are viable at the time that the injury occurred. See § IV.G.4. "Wrongful Life" and "Wrongful Birth" Claims, infra.

C. 4. b. Proof of a defendant's compliance is not dis-positive

Generally speaking, compliance with a statute, regulation, or ordinance does not prove the absence of negligence. However, sometimes, if the defendant's conduct complies with certain types of federal regulatory statutes, such as those establishing comprehensive regulatory schemes, compliance with the federal requirements may preempt common-law tort actions.

J. 2. b. Intentional tortfeasor

Generally, a party who has committed an intentional tort may not seek contribution from another tortfeasor.

G. 1. b. Zone of danger

Generally, a plaintiff must show that he was within the "zone of danger" of the threatened physical impact—that he feared for his own safety because of the defendant's negligence. A plaintiff who was a bystander also generally cannot recover for emotional distress caused by witnessing the serious injury to (or death of) another person, unless the bystander is within the zone of danger.

B. 1. FAILURE TO ACT

Generally, there is no duty to act affirmatively, even if the failure to act appears to be unreasonable. For more on this principle, and the exceptions to it, see § IV.B.5. Affirmative Duty to Act, below.

D. 2. d. Procedural effect of res ipsa loquitur

If the plaintiff establishes a prima facie case of res ipsa loquitur, then the trial court should deny the defendant's motion for a directed verdict and the issue of negligence must be decided by the trier of fact. In most jurisdictions, res ipsa loquitur does not require that the trier of fact find negligence on the defendant's part. It simply establishes an inference of negligence sufficient to avoid dismissal of the plaintiff's action.

E. 1. a. "But-for" test

If the plaintiff's injury would not have occurred but for the defendant's tortious act or omission, then the defendant's conduct is a factual cause of the harm. If the injury would have occurred despite the defendant's conduct, then there is no factual cause.

J. 2. CONTRIBUTION

If two or more tortfeasors are subject to liability to the same plaintiff, and one of the tortfeasors has paid the plaintiff more than his fair share of the common liability, then he may sue any of the other joint tortfeasors for contribution, and recover anything paid in excess of his fair share. Additionally, a person seeking contribution must prove that the person against whom contribution is sought would have been liable to the plaintiff in an amount and share equal to or greater than the amount sought as contribution. See Rest. 3d (Apport.) § 23.

K. 1. d. Imputed contributory negligence

Imputed contributory negligence occurs when another person's fault is "imputed" to the plaintiff to prevent or limit his recovery due to the other person's fault. For example, an employee's negligent driving may prevent or reduce an employer's recovery from a third party if the employer's car is damaged by the third party's negligence. The fault of one business partner can be imputed to another business partner as contributory negligence when the second party is suing a third party. Imputed contributory negligence is disfavored. Imputed contributory negligence does not apply to: i) A married plaintiff whose spouse was contributorily negligent in causing the harm, in a suit against a third party; ii) A child plaintiff whose parent's negligence was a contributing cause of her harm, in a suit against a third party; iii) An automobile passenger suing a third-party driver if the negligence of the driver of the car in which the passenger was riding also contributed to the accident; or iv) An automobile owner in an action against a defendant driver for negligence when the driver of the owner's car also was negligent. EXAM NOTE: Common fact patterns of imputed fault to look for on examinations are ones involving the employers and their employees and business partners.

K. 2. b. Participants and spectators in athletic events

In a negligence claim brought by a spectator of or a participant in an athletic event or similar activity, the spectator or participant necessarily subjects himself to certain risks that are usually incident to and inherent in the game or activity. Some courts hold that the other players or facility owners therefore do not owe the spectators a duty of care; others allow the defendant to defend against the claim using the affirmative defense of assumption of the risk.

F. 5. b. Cost of repairs

In the case of tortious harm to personal property, most courts also allow the cost of repairs as an alternative measure of damages, provided that the cost of repairs does not exceed the value of the property.

E. 3. PROXIMATE CAUSE (SCOPE OF LIABILITY)

In addition to proving actual causation, the plaintiff must prove that the defendant's tortious conduct was a proximate cause of her harm. Some courts and the Third Restatement replace the proximate causation terminology with the issue of whether the plaintiff's harm was within the "scope of liability" of the defendant's conduct. A defendant's liability is limited to those harms that result from the risks that made the defendant's conduct tortious. Rest. 3d: Liability for Physical and Emotional Harm §29. EXAM NOTE: Remember that there must be factual cause for proximate cause to exist, and if factual cause exists, then proximate cause exists unless there are intervening acts.

H. 2. d. Negligence in hiring

In addition, the party hiring the independent contractor may be liable for his own negligence in selecting the independent contractor.

K. 1. b. Last clear chance

In contributory-negligence jurisdictions, the plaintiff may mitigate the legal consequences of her own contributory negligence if she proves that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so. This doctrine has been abolished in most comparative-fault jurisdictions. 1) Helpless plaintiff A plaintiff who, due to his own contributory negligence, is in peril from which he cannot escape is in helpless peril. In such cases, the defendant is liable if she knew or should have known of the plaintiff's perilous situation and could have avoided harming the plaintiff but for her (the defendant's) own negligence. 2) Inattentive plaintiff A plaintiff who, due to his own contributory negligence, is in peril from which he could escape if he were paying attention is an inattentive or oblivious plaintiff. The defendant is liable only if she has actual knowledge of the plaintiff's inattention.

B. DUTY

In general, a duty of care is owed to all foreseeable persons who may be injured by the defendant's failure to follow a reasonable standard of care. An actor has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm. Rest. 3d: Liability for Physical or Emotional Harm § 7.

J. 5. a. Vicarious liability

Indemnification generally applies when one tortfeasor is vicariously liable for the other's wrongdoing. The tortfeasor who has discharged the liability is entitled to indemnity from the actual wrongdoer who was primarily responsible for the harm (e.g., an employer who pays a judgment for the tort of an employee because of the employer's vicarious liability).

J. 5. INDEMNIFICATION

Indemnification is the shifting of the entire loss from one joint tortfeasor to another party.

K. 2. a. Exculpatory clauses in contracts

In general, parties can contract to disclaim liability for negligence. But, courts will not enforce exculpatory provisions: i) Disclaiming liability for reckless or wanton misconduct or gross negligence; ii) When there is a gross disparity of bargaining power between the parties; iii) When the party seeking to apply the exculpatory provision offers services of great importance to the public that are a practical necessity for some members of the public such as medical services; iv) If the exculpatory clause is subject to typical contractual defenses such as fraud or duress; or v) When it is against public policy to enforce agreements that insulate people from the consequences of their own negligence. Some jurisdictions require that the contract explicitly state that claims "based on negligence" are disclaimed. Generally, common carriers, innkeepers, and employers cannot disclaim liability for negligence. State statutes often provide that certain additional businesses cannot disclaim liability for negligence. Many courts now hold that disclaimer of liability by contract negates the fact that the defendant owes a duty of care to the plaintiff in the first place. This causes the plaintiff's prima facie case for negligence to fail, rather than acting as an affirmative defense of assumption of the risk.

B. 5. AFFIRMATIVE DUTY TO ACT

In general, there is no affirmative duty to act. However, there are some notable exceptions to that rule.

D. 2. c. Third Restatement

In light of the fact that the majority of jurisdictions generously apply the traditional requirements for res ipsa loquitur, the Third Restatement of Torts has re-articulated the requirements of the doctrine in the following manner: The fact finder may infer that the defendant has been negligent when: i) The accident that caused the plaintiff's harm is a type of accident that ordinarily happens as a result of negligence of a class of actors; and ii) The defendant is a relevant member of that class of actors. Rest. 3d: Liability for Physical and Emotional Harm § 17. However, because the Third Restatement was only recently adopted, few courts have adopted this precise articulation of the doctrine.

C. 2. COST-BENEFIT ANALYSIS

In many cases, courts describe the primary factors to consider in determining whether the defendant has acted negligently to be: i) The foreseeable likelihood that the defendant's conduct would cause harm; ii) The foreseeable severity of any resulting harm; and iii) The defendant's burdens (costs or other disadvantages) in avoiding the harm. In fact, the Third Restatement defines negligence using these terms rather than the reasonable person standard.

C. 1. REASONABLY PRUDENT PERSON

In most cases, the standard of care imposed is that of a reasonably prudent person under the circumstances. This standard is an objective one, measured by what a reasonably prudent person would do, rather than whether a particular defendant is acting in good faith or using her best efforts. A defendant is required to exercise the care that a reasonable person under the same circumstances (i.e., in her position, with her information and competence) would recognize as necessary to avoid or prevent an unreasonable risk of harm to another person. In determining whether particular precautions were warranted, a jury should weigh the probability and gravity of the injury against the burden of taking such precautions.

C. 5. b. Automobile drivers

In most jurisdictions, automobile drivers owe ordinary care to their guests as well as their passengers (those who confer an economic benefit for the ride). However, a minority of jurisdictions distinguish between the two with "guest statutes," which impose only a duty to refrain from gross or wanton and willful misconduct with a guest in the car. Proof of simple negligence by the driver will not result in recovery by the plaintiff-guest.

J. 2. a. Determining fair shares

In most jurisdictions, each party's fair share is determined by comparing how far each tortfeasor departed from the standard of reasonable care.

F. 5. c. Household items

In the case of household items, such as clothing and appliances, courts often hold that replacement value is the measure of damages.

C. 1. c. Intoxication

Intoxicated individuals are held to the same standards as sober individuals unless their intoxication was involuntary.

I. 2. INTRA-FAMILY IMMUNNITY

Intra-family immunity applies only to personal injuries, not to property damage.

H. 4. c. Owner liability statutes

Many jurisdictions have enacted statutes that provide that the owner of an automobile may be liable for the tortious acts of anyone driving the car with permission.

H. 4. b. Family-purpose doctrine

Many jurisdictions, through either legislative enactments or judicial decisions, have adopted the family-purpose doctrine, providing that the owner of an automobile may be liable for the tortious acts of any family member driving the car with permission.

E. 3. c. Intervening and superseding causes

Many proximate cause questions involve intervening and superseding causes. 1) Intervening cause An intervening cause is a factual cause of the plaintiff's harm that contributes to her harm after the defendant's tortious act has been completed. 2) Superseding cause A superseding cause is any intervening cause that breaks the chain of proximate causation between the defendant's tortious act and the plaintiff's harm, thereby preventing the original defendant from being liable to the plaintiff. a) Foreseeability Most courts hold that an unforeseeable intervening cause is a superseding cause that therefore breaks the chain of causation between the defendant and the plaintiff. Examples of foreseeable intervening forces include subsequent medical malpractice, disease, or accident; negligence of rescuers; normal forces of nature; or efforts to protect a person or property. Examples of unforeseeable superseding causes include extraordinary acts of nature ("Acts of God") and criminal acts and/or intentional torts of third parties. b) Negligent intervening causes As a general guideline, negligent intervening acts are usually regarded as foreseeable and do not prevent the original defendant from being held liable to the plaintiff. Example: The defendant negligently injures the plaintiff in an auto accident. The plaintiff seeks treatment for the resulting broken leg, and the treating physician commits malpractice that results in the amputation of the leg. Because the original driver-defendant's negligence was a but-for cause of the amputated leg and because medical malpractice is foreseeable, the driver's negligence is also a proximate cause of the amputated leg, and he may be held liable for damages caused by the entire injury including the consequences of the amputation. c) Criminal intervening causes Criminal acts of third parties are generally regarded as unforeseeable superseding causes, and therefore break the chain of causation between the original defendant's negligence and the plaintiff's harm. However, if the duty breached by the defendant is one of failing to use reasonable care to protect the plaintiff and the plaintiff is harmed by a criminal act, then the original defendant remains liable. Example: If a middle-school student is assaulted during a field trip and her parents are able to prove that her teacher failed to use reasonable care to protect her, then the fact that the intervening cause of her harm, the assault, was criminal will not preclude the student and her parents from holding the school liable. d) Effect of non-superseding intervening causes If the intervening negligent act is not a superseding cause, then the original defendant and the actor responsible for the intervening negligent act can be held jointly and severally liable to the plaintiff. EXAM NOTE: Remember that the original tortfeasors remain liable unless the results of an intervening negligent act are unforeseeable. In particular, keep in mind that medical malpractice is foreseeable, and therefore it is not a superseding cause that breaks the chain of causation and insulates the defendant from liability.

H. 6. "DRAM SHOP" LIABILITY

Many states recognize, either by statute (a "dram shop act") or by judicial decision, a cause of action against the seller of intoxicating beverages when a third party is subsequently injured due to the buyer's intoxication. Most states limit liability to situations in which the buyer was a minor or was intoxicated at the time of the sale. Some states extend liability to a social host who serves intoxicating beverages to a minor. The states are divided as to whether the cause of action is grounded in negligence or strict liability.

A. 1. a. Traditional approach

Most courts define the standard of care as what a reasonably prudent person under the circumstances would or would not do.

E. 2. CAUSAL LINKAGE

Most often, when the plaintiff proves that the defendant's tortious conduct was a but-for cause of his injury, he also implicitly proves that the defendant's conduct increased the probability that the plaintiff would be harmed. However, in a few cases, it is purely coincidental that the defendant's tortious conduct was the but-for cause of the plaintiff's injury. Example: If a passenger in a car is injured because the wind happens to blow down a tree and the car is positioned under the tree at the moment it falls only because the driver has been traveling at an unreasonably unsafe speed, then it can technically be stated that the passenger would not have been injured but for the driver's negligent speeding. However, most courts would find that the driver should not be found to be a cause of the accident under the doctrine of causal linkage, i.e., the driver's conduct did not increase the probability that the plaintiff would be harmed.

G. 4. a. Wrongful life

Most states do not permit actions by a child for "wrongful life" based on the failure to properly perform a contraceptive procedure or failure to diagnose a congenital defect, even if the child is born with a disability. A few states permit this action, but they limit the child's recovery to the special damages attributable to the disability.

I. 3. CHARITABLE IMMUNITY

Most states have either totally or partially eliminated the common-law rule of charitable immunity. Some states cap the amount of damages recoverable from a charitable institution.

I. 1. b. State governments

Most states have waived sovereign immunity, at least partially, through legislation. Simultaneously, however, they have imposed limits on the amount of recovery and the circumstances under which the state can be held liable. They also have created procedural barriers to recover that do not exist in claims against private defendants. State tort claims acts vary greatly and therefore each act must be read carefully. Unless otherwise provided in the legislation, the same terms and conditions apply to the liability of state agencies—including prisons, hospitals, and educational institutions—as to the state itself.

A. DEFINITION

Negligence is conduct (the commission of an act or the failure to act), without wrongful intent, that falls below the minimum degree of ordinary care imposed by law to protect others against unreasonable risk of harm.

J. 4. SATISFACTION AND RELEASE

Once a plaintiff has recovered fully from one or a combination of defendants, she is barred from pursuing further action against other tortfeasors. The plaintiff generally may not receive double recovery. If the plaintiff has not been wholly compensated, it is now the usual rule that a release of one tortfeasor does not release the others but instead diminishes the claim against the others, ordinarily by the amount of compensation received from the released tortfeasor. However, a release may bar claims against other tortfeasors if either (i) the release agreement so provides or (ii) the plaintiff has been entirely compensated for his losses.

G. 3. a. Spouses

One spouse may recover for loss of consortium and services as a result of injuries to the other spouse resulting from the defendant's tortious conduct.

B. 5. d. By authority

One with actual ability and authority to control another, such as parent over child and employer over employee, has an affirmative duty to exercise reasonable control. Generally, this duty is imposed upon the defendant when the defendant knows or should know that the third person is apt to commit the injuring act. Example: A parent may be liable for failing to control the conduct of a child who uses a dangerous instrumentality to injure a plaintiff.

H. 5. b. Negligence of parents

Parents, however, are liable for their own negligence with respect to their minor child's conduct. A parent is under a duty to exercise reasonable care to prevent a minor child from intentionally or negligently harming a third party, provided the parent: i) Has the ability to control the child; and ii) Knows or should know of the necessity and opportunity for exercising such control. In such circumstances, a parent who fails to exercise control may be liable for harm caused by the child, even though the child, because of his age, is not liable. Rest. 2d § 316. Example: A father gives a gun to his six-year-old son. Although the son lacks the necessary maturity and judgment to operate the gun independently in a safe manner, the father allows the son to use the gun when the father is not present. The son, while aiming the gun at a toy in his yard, misses and accidentally shoots a neighbor. The father, because of his failure to properly supervise his son, can be liable for the injury suffered by the neighbor that is directly attributable to the son's conduct, even though the son himself will not be liable because of his age.

H. 3. BUSINESS PARTNERS

Partners in a joint enterprise, when two or more parties have a common purpose and mutual right of control, may be liable for the tortious acts of each other that are committed within the scope of the business's purposes.

K. 1. c. Comparative fault

Rejecting the "all-or-nothing" approach of contributory negligence, almost all jurisdictions have adopted some form of comparative fault (comparative negligence), which attempts to apportion damages between a defendant and a plaintiff based on their relative degrees of fault. There are two basic forms of comparative fault. 1) Pure comparative negligence In jurisdictions that have adopted the doctrine of pure comparative negligence, a plaintiff's contributory negligence is not a complete bar to recovery. Instead, the plaintiff's full damages are calculated by the trier of fact and then reduced by the proportion that the plaintiff's fault bears to the total harm (e.g., if the plaintiff's full damages are $100,000, the plaintiff is 80% at fault, and the defendant is 20% at fault, then the plaintiff will recover $20,000). Only a minority of jurisdictions have adopted the pure comparative negligence approach. 2) Modified or partial comparative fault A majority of comparative-fault jurisdictions apply modified comparative fault. In these jurisdictions: i) If the plaintiff is less at fault than the defendant, then the plaintiff's recovery is reduced by his percentage of fault, just as in a pure comparative-fault jurisdiction; ii) If the plaintiff is more at fault than the defendant, then the plaintiff's recovery is barred, just as in a contributory-negligence jurisdiction; iii) In the vast majority of modified comparative-fault jurisdictions, if the plaintiff and the defendant are found to be equally at fault, then the plaintiff recovers 50% of his total damages. In a few modified comparative-fault jurisdictions, the plaintiff recovers nothing when the jury finds that the plaintiff and the defendant are equally at fault. 3) Multiple defendants In either a pure comparative-fault or a modified comparative-fault jurisdiction, the plaintiff's degree of negligence is compared to the total negligence of all defendants combined. 4) Relationships to other defenses i) Last clear chance no longer applies as a separate doctrine in comparative-fault jurisdictions. ii) Comparative fault will reduce the plaintiff's recovery even if the defendant's conduct is willful, wanton, or reckless, but it will not reduce the plaintiff's recovery for intentional torts. iii) The impact of comparative fault on assumption of risk is considered in § IV.K.2.c. Unreasonably proceeding in face of known, specific risk, below. 5) Illustrations i) Single defendant, pure comparative—The defendant is 55% negligent and the plaintiff is 45% negligent in causing the accident. They each have $100,000 in damages. The plaintiff will recover $55,000 from the defendant ($100,000 minus $45,000, which represents the plaintiff's proportionate fault of 45%), and the defendant will recover $45,000 from the plaintiff. The plaintiff will have a net recovery of $10,000 because the defendant's damages will be offset against the plaintiff's damages. ii) Single defendant, modified or partial comparative—Same facts as above, except that the defendant will not recover anything because he was more than 50% at fault. iii) Multiple defendants, modified or partial comparative—Two defendants are negligent: Defendant 1 is 20% negligent; Defendant 2 is 45% negligent. Combined, their negligence is 65%. The plaintiff is 35% negligent. The plaintiff can recover $65,000 from either Defendant 1 or Defendant 2 under the theory of joint and several liability. The paying defendant can then seek contribution from the nonpaying defendant. If either defendant suffered damages, he also has a right of recovery against either of the other two negligent parties because each one's negligence is less than the total negligence of the other two. Note: When comparative negligence exists (either pure or modified), it supersedes all other affirmative defenses, except assumption of the risk.

C. 3. b. Safety codes

Safety codes promulgated by industries, associations, and governmental bodies for the guidance of operations within their respective fields of interest are admissible to prove custom.

C. 6. h. Sellers of real property

Sellers of real property owe a duty to disclose to buyers those concealed and unreasonably dangerous conditions known to the seller. These are conditions that the buyer is unlikely to discover upon reasonable inspection. The seller's liability to third parties continues until the buyer has a reasonable opportunity, through maintenance and inspection, to discover and remedy the defect.

F. 6. b. Modern trend

Since the 1980s, a majority of states have passed statutes that either eliminate the collateral source rule entirely or modify it substantially. Payments made to the plaintiff by the defendant's insurer are not considered payments from a collateral source, and such payments are credited against the defendant's liability.

G. 2. b. Survival actions

Survival statutes typically enable the personal representative of a decedent's estate to pursue any claims the decedent herself would have had at the time of her death, including claims for damages resulting from both personal injury and property damage. Such claims often involve damages resulting from the tort that injured the decedent and later resulted in her death. Example: If the decedent was negligently injured by the driver of another automobile and lingered—out of work, in the hospital, and in extreme pain—for one year before passing away, his estate would be able to recover for his medical expenses from the time he was injured until his death, for his loss of income during this time, and for the pain and suffering he experienced. Most states do not allow survival of tort actions involving intangible personal interests (such as defamation, malicious prosecution, or invasion of privacy) because they are considered too personal to survive the decedent's death. Note: If a jurisdiction recognizes both wrongful death and survival actions, there is no double recovery.

E. 1. b. Multiple and/ or indeterminate tortfeasors

The "but-for" test of causation often will not work if: i) There are multiple tortfeasors and it cannot be said that the defendant's tortious conduct necessarily was required to produce the harm; ii) There are multiple possible causes of the plaintiff's harm but the plaintiff cannot prove which defendant caused the harm; or iii) The defendant's negligent medical misdiagnosis increased the probability of the plaintiff's death, but the plaintiff probably would have died even with a proper diagnosis. 1) Substantial factor When "but-for" causation does not work in either the multiple tortfeasor or the medical misdiagnosis situation, many courts substitute a "substantial-factor" test, i.e., "Was the defendant's tortious conduct a substantial factor in causing the plaintiff's harm?" The Restatement (Second) of Torts promoted the substantial-factor test, but the Third Restatement is highly critical of it and drops it. Under the Third Restatement, in cases in which several causes or acts may have contributed to the plaintiff's injury, each of which alone would have been a factual cause of the plaintiff's injury, each cause or act is regarded as a factual cause of the harm. Rest. 3d: Liability for Physical and Emotional Harm § 27. Note: The substantial-factor test is still used in most jurisdictions, at least in some context. 2) Concurrent tortfeasors contributing to an individual injury When the tortious acts of two or more defendants are each a factual cause of an indivisible injury to the plaintiff, the defendants are jointly and severally liable. 3) Alternative causation If the plaintiff's harm was caused by (i) one of a small number of defendants—usually two and almost never more than four or five, (ii) each of whose conduct was tortious, and (iii) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause in fact of the plaintiff's harm. 4) Concert of action If two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the plaintiff's harm, then all defendants will be held jointly and severally liable. Example: Two defendants agree to a drag race and one of them injures another driver or a passenger during the race. Both will be held jointly and severally liable to the plaintiff.

G. 3. c. Limitations

The amount of damages recoverable in a derivative action (an action arising solely because of tortious harm to another) for interference with family relationships is reduced in a comparative-fault jurisdiction (and eliminated in a contributory-negligence jurisdiction) by the injured family member's contributory negligence. Thus, if the damages recovered in the injured family member's own action are reduced by the plaintiff's comparative fault, then the damages recoverable by his family members in their derivative action will also be reduced.

C. 5. e. Emergency situations

The applicable standard of care in an emergency is that of a reasonable person in the same situation. In other words, less may be expected of the reasonably prudent person who is forced to act in an emergency, but only if the defendant's conduct did not cause the emergency.

E. 3. a. Limitation on liability

The basic idea of proximate causation (or, scope of liability) is that there must be limits on liability for the tortious acts of the defendant. There are two sub-issues in proximate causation: 1) Which plaintiffs can recover? a) Majority rule Recall that a majority of jurisdictions hold that the defendant does not owe a duty of care to the plaintiff unless the plaintiff is among the class of victims who might foreseeably be injured as a result of the defendant's tortious conduct. This is the Cardozo approach in Palsgraf v. Long Island R. R. Co., 162 N.E. 99 (N.Y. 1928). See § IV.B.3. Foreseeability of Harm to the Plaintiff, supra. b) Minority/Restatement rule In the minority of jurisdictions—and in the Third Restatement—which plaintiffs can recover is determined by whether harms to them were proximately caused by the defendant's tortious conduct or were within the scope of liability of the defendant's conduct. This is the Andrews approach in Palsgraf. Under the Andrews approach, whether the plaintiff's harms are proximately caused by the defendant's conduct requires consideration of the following factors: i) Is there a natural and continuous sequence between cause and effect? ii) Was the one a substantial factor in producing the other? iii) Was there a direct connection without the intervention of too many intervening causes? iv) Was the cause likely to produce the effect? v) Could the defendant have foreseen the harm to the plaintiff? vi) Is the cause too remote in time and space from the effect? 2) Types of risk The second proximate cause (scope of liability) issue is whether the plaintiff can recover for the specific type of risk that harmed her. For example, even if the court decides that a duty of care is owed to a specific plaintiff, a ship owner, because there is a foreseeable risk that a defendant stevedore's dropping of a plank into the hold of a ship might dent the ship, is the defendant still liable when the dropped plank unforeseeably causes vapors in the hull of the ship to ignite, totally destroying the ship? Again, there are two approaches. a) Direct cause A majority of U.S. courts hold that the plaintiff can recover when the defendant's tortious acts are the direct cause of the plaintiff's harm—a cause without the intervention of independent contributing acts. In deciding whether the plaintiff can recover for a particular type of harm, these courts look at many of the same factors that Judge Andrews considered in Palsgraf. These jurisdictions hold that the foreseeability of the type of harm does not necessarily preclude liability. b) Unforeseeable type of risk A strong minority of U.S. jurisdictions hold that whether a plaintiff can recover for a particular type of risk is determined by whether or not that particular risk is foreseeable as a result of the defendant's tortious conduct. If it is not, then there is no proximate cause and the plaintiff cannot recover.

C. 1. b. Physical characteristics

The defendant's particular physical characteristics (e.g., blindness) are taken into account in determining the reasonableness of the defendant's behavior. The reasonableness of the conduct of a defendant with a physical disability will be determined based upon a reasonably careful person with the same disability. Rest. 3d: Liability for Physical and Emotional Harm § 11. For example, a blind pedestrian must act as any other reasonable blind person would act under the circumstances.

J. 5. b. Complete reimbursement

The employer can then seek complete reimbursement (indemnity) from the employee when: i) There is a prior indemnification agreement between the parties (e.g., in the construction industry, a contractor may agree to indemnify a subcontractor for the latter's negligence that may occur in the future); ii) There is a significant difference between the blameworthiness of two defendants such that equity requires a shifting of the loss to the more blameworthy defendant; iii) Significant additional harm is subsequently caused by another tortfeasor (i.e., one defendant pays the full judgment, including for additional harm caused by the malpractice of the treating physician); or iv) Under strict products liability, each supplier has a right of indemnification against all previous suppliers in a distribution chain. Note: Indemnity in degree of blameworthiness is rejected in jurisdictions with comparative negligence systems. These states apportion damages based on relative fault, although indemnification is allowed in other instances when it is not based on degree of fault.

F. 2. COMPENSATORY DAMAGES

The general measure of compensatory damages is compensation that would make the victim whole, as if he had never suffered the injury.

H. 5. a. No vicarious liability

The general rule is that parents are not vicariously liable for their minor child's torts. Exceptions to this general rule include situations in which: i) The child commits a tort while acting as the parent's agent; ii) State statutes provide for the liability of parents when children commit specified acts such as vandalism or school violence; or iii) State statutes require that a parent, when he signs for the child's driver's license application, assumes liability for any damages caused by negligent acts that the child commits while driving a car.

B. 3. a. Cardozo (majority) view

The majority rule is that a duty of care is owed to the plaintiff only if she is a member of the class of persons who might be foreseeably harmed (sometimes called "foreseeable plaintiffs") as a result of the defendant's negligent conduct. According to Judge Cardozo's majority opinion in Palsgraf v. Long Island R. R. Co., 162 N.E. 99 (N.Y. 1928), the defendant is liable only to plaintiffs who are within the zone of foreseeable harm.

G. 1. d. Physical symptoms required

The majority rule is that damages for negligent infliction of emotional distress without accompanying physical symptoms (e.g., nightmares, shock, ulcers, etc.) are not recoverable.

B. 3. b. Andrews (minority) view

The minority view, articulated in Judge Andrews's minority opinion in Palsgraf, states that if the defendant can foresee harm to anyone as a result of his negligence, a duty is owed to everyone (foreseeable or not) harmed as a result of his breach. However, the plaintiff still may not be able to recover, because a particular plaintiff's injury may not be closely enough connected to the defendant's negligence for the court to conclude that it was proximately caused by the defendant's negligence. In other words, the issue is one of duty for Judge Cardozo, but one of proximate cause for Judge Andrews. See § IV.E.3., infra. Rest. 3d: Liability for Physical and Emotional Harm §29 cmt. n.

C. 5. d. Modern trend

The modern trend has been to get away from distinctions in the level of care and to regard the relationship between the parties as simply one of the circumstances in the light of which conduct is to be measured by the standard of reasonable care.

A. 1. b. Restatement (Third) approach

The modern trend is to define negligence as the failure to exercise reasonable care under all the circumstances, and then use an economic or cost-benefit analysis to determine whether reasonable care has been exercised. For example, the Third Restatement calls for courts, when determining whether a person has acted without reasonable care, to weigh the following factors: i) The foreseeable likelihood that the person's conduct will result in harm, ii) The foreseeable severity of any harm that may result, and iii) The burden of precautions to eliminate or reduce the risk of harm. Rest. 3d: Liability for Physical and Emotional Harm § 3.

H. 2. c. Non-delegable duties

The person who hires an independent contractor remains vicariously liable for certain conduct, including: i) Inherently dangerous activities; ii) Non-delegable duties arising out of a relationship with a specific plaintiff or the public (i.e., activities that are inherently risky or that affect the public at large, such as construction work adjacent to a public highway); iii) The duty of a storekeeper or other operator of premises open to the public to keep such premises in a reasonably safe condition; and iv) In a minority of jurisdictions, the duty to comply with state safety statutes.

H. 4. a. Negligent entrustment

The owner of a vehicle (or any other object that carries the potential for harm, such as a gun or lawn mower) may be liable for the negligent acts of a driver or user to whom the car or other property was entrusted if the owner knew or should have known of the user's negligent propensities.

F. 7. PUNITIVE DAMAGES

The plaintiff may be entitled to punitive damages if he can establish by clear and convincing evidence that the defendant acted willfully and wantonly, recklessly, or with malice. Punitive damages are also available for inherently malicious torts (such as intentional infliction of emotional distress, which requires outrageous conduct).

D. 1. BURDEN OF PROOF

The plaintiff must establish all four elements of negligence (duty, breach, causation, damage) by a preponderance of the evidence. A breach of duty occurs when the defendant departs from the conduct expected of a reasonably prudent person acting under similar circumstances. The evidence must show a greater probability than not that (i) the defendant failed to meet the required standard of care, (ii) the failure was the proximate cause of the injury, and (iii) the plaintiff suffered damages. The plaintiff can demonstrate such failure by introducing evidence of the required standard of care through custom and usage, violation of a statute, or res ipsa loquitur.

F. 1. ACTUAL DAMAGES

The plaintiff must prove actual harm, i.e., personal injury or property damages, in order to complete the requirements of liability for negligence. Unlike actions for intentional torts, nominal damages are not recoverable in negligence actions. In addition, a plaintiff who suffers only economic loss without any related personal injury or property damage cannot recover such loss through a negligence action. However, once a plaintiff has proven non-economic injury, he is entitled to recover both economic and non-economic damages. Attorney's fees and interest from the date of damage are not recoverable in a negligence action.

E. CAUSATION

The plaintiff must prove that the defendant's actions were both the actual cause (also known as the factual cause or "cause-in-fact") and the proximate cause (i.e., within the scope of liability) of the plaintiff's injury.

F. 3. MITIGATION OF DAMAGES, AVOIDABLE CONSEQUENCES

The plaintiff must take reasonable steps to mitigate damages. Although sometimes phrased as a "duty to mitigate," this "duty" is not an obligation that the plaintiff owes to the defendant but instead is a limitation on the plaintiff's recovery due to the failure to avoid harm that could have been avoided by the use of reasonable effort after the tort was committed. For example, if the victim fails to use reasonable care to treat a wound, resulting in infection and the loss of a limb, she ordinarily will not be able to recover for the infection or lost limb. In a contributory-negligence jurisdiction, the failure to mitigate precludes the plaintiff from recovering for any additional harm caused by aggravation of the injury. In a comparative-negligence jurisdiction, the failure to mitigate is taken into account, but it does not categorically prevent recovery.

B. 5. c. By contract

There is a duty to perform contractual obligations with due care.

C. 1. d. Children

The standard of care imposed upon a child is that of a reasonable child of similar age, intelligence, and experience. Unlike the objective standard applied to adult defendants in negligence actions, the standard applicable to minors is more subjective in nature because children are unable to appreciate the same risks as an adult. However, a child engaged in an adult activity, such as driving a car, is held to the same standard as an adult. Courts regard children of a particularly young age as incapable of negligent conduct. Under the Third Restatement, children under the age of five are generally incapable of negligent conduct. Rest. 3d: Liability for Physical and Emotional Harm § 10.

C. 6. POSSESSORS OF LAND

The term "possessors of land" as used here includes owners, tenants, those in adverse possession, and others in possession of land. The fact that a plaintiff is injured while on someone else's land does not affect the liability of a defendant other than the land possessor. Only land possessors are protected by the rules limiting liability to trespassers or licensees. Everyone else—for example, easement holders (e.g., a utility company with power lines on the land) or those licensed to use the land (e.g., hunters)—must exercise reasonable care to protect the trespasser or the licensee. In general, possessors of land owe a duty only to those within the boundaries of their land. The duty to entrants on the land includes: i) Conduct by the land possessor that creates risks; ii) Artificial conditions on the land; iii) Natural conditions on the land; and iv) Risks created when any of the affirmative duties discussed in § IV.B.5. Affirmative Duty to Act, supra, are applicable.

G. 1. a. Threat of impact

The threat of physical impact that causes distress must be directed at the plaintiff or someone in his immediate presence.

F. 4. PERSONAL INJURY: CATEGORIES OF DAMAGES

The typical categories of damages recoverable in a personal injury action include: i) Medical and rehabilitative expenses, both past and future; ii) Past and future pain and suffering (e.g., emotional distress); and iii) Lost income and any reduction in future earnings capacity. Under the "eggshell-skull rule," the defendant is liable for the full extent of the plaintiff's injuries that may be increased because of the plaintiff's preexisting medical condition or vulnerability, even if the extent is unusual or unforeseeable.

C. 4. d. Violation by a plaintiff

The violation of a statute, regulation, or ordinance by a plaintiff may constitute contributory negligence per se. The same requirements apply.

G. 1. e. Exceptions to the physical-injury requirement

There are exceptions to the physical-injury requirement in cases of misinforming someone that a family member has died and the negligent mishandling of a corpse.

A. 1. STANDARD OF CARE

There are two (sometimes competing) approaches for defining the basic standard of care in negligence.

G. 1. c. Witnessing harm to a close relative

There is a trend toward allowing recovery for a bystander plaintiff outside the zone of danger if the plaintiff: i) Is closely related to the person injured by the defendant; ii) Was present at the scene of the injury; and iii) Personally observed (or otherwise perceived) the injury. A majority of jurisdictions would be unlikely to expand liability to an unmarried cohabitant. However, some jurisdictions do allow engaged cohabitants to recover under this rule.

H. 2. a. Generally no vicarious liability

Those who hire independent contractors are generally not vicariously liable for the torts of the independent contractors.

K. 2. c. Unreasonably proceeding in the face of known, specific risk

Traditionally, and in many jurisdictions today, a plaintiff's voluntarily encountering a known, specific risk is an affirmative defense to negligence that bars recovery. Most courts hold that the voluntary encountering must also be unreasonable. In contributory-negligence jurisdictions and in a minority of comparative-fault jurisdictions, this form of assumption of the risk remains a total bar to recovery. In most comparative-fault jurisdictions, this form of assumption of the risk has been merged into the comparative-fault analysis and merely reduces recovery. The plaintiff's awareness of the risk is taken into account in determining the degree to which the plaintiff is at fault, but it also can be considered in determining the reasonableness of the plaintiff's or the defendant's actions. Consent distinguished: Consent is a defense to intentional torts, whereas assumption of the risk applies to negligence actions and actions alleging strict liability.

I. LIMITATION OF LIABILITY RESULTING FROM DEFENDANT'S IDENTITY RELATIONSHIPS ("IMMUNITIES")

Traditionally, governmental entities, charities, and family members were immune from liability. Today, these immunities have been largely eliminated, but the rules governing the liability of these defendants continue to differ from those governing other tortfeasors.

I. 2. a. Inter-spousal immunity

Traditionally, interspousal immunity prevented one spouse from suing the other in a personal-injury action. In most jurisdictions today, however, interspousal immunity has been extinguished, and either spouse can now institute a cause of action for personal injury against the other spouse.

I. 2. b. Parent-child immunity

Traditionally, parents were immune from tort claims brought by their children. In recent decades, however, there has been a clear trend toward abolishing or greatly restricting parental immunity, but abrogation has proceeded more slowly than in the case of interspousal immunity. Courts generally allow parents to be held liable in areas other than core parenting activities. For example, most states allow children to sue parents: i) For injuries arising from automobile accidents; ii) In extreme cases, such as those involving sexual abuse and intentional tortious conduct; and iii) When the parent is acting in a dual capacity, such as when the parent is a physician treating the child for an injury (medical malpractice claim allowed).

I. 1. a. Federal government

Under the Federal Tort Claims Act ("FTCA"), the U.S. government waives immunity in tort actions, with the following exceptions: i) Certain enumerated torts (assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel and slander, misrepresentation and deceit, and interference with contract rights); ii) Discretionary functions (i.e., planning or decision making, as opposed to operational acts); iii) Assertion of the government's immunity by a government contractor in a products liability case if the contractor conformed to government specifications and warned the government of any known dangers in the product; and iv) Certain traditional governmental activities (i.e., postal, tax collection or property seizure, admiralty, quarantine, money supply, and military activity). When the U.S. government waives its sovereign immunity under the FTCA, it is liable in the same manner and to the same extent that a private person under the same circumstances would be liable, but it is not liable for punitive damages.

C. 5. a. Common carriers and innkeepers

Under the common law, a majority of jurisdictions held common carriers (e.g., operators of planes, trains, buses) and innkeepers to the highest duty of care consistent with the practical operation of the business. Under this approach, common carriers and innkeepers could be held liable for "slight negligence." A majority of courts continue to hold common carriers to this higher standard. However, most courts today hold that an innkeeper (hotel operator) is liable only for ordinary negligence. Note, however, that the Third Restatement approach is slightly different: common carriers and innkeepers must exercise reasonable care toward their passengers and guests. Although generally there is no affirmative duty to act, common carriers and innkeepers have a duty to act based on a special relationship. They must use reasonable care under the circumstances with regard to risks that arise out of the relationship with their passengers and guests. Rest. 3d: Liability for Physical and Emotional Harm § 40. EXAM NOTE: Be certain to apply the carriers and innkeepers standards only to passengers or guests.

J. 1. JOINT AND SEVERAL LIABILITY a. Definition

Under the doctrine of joint and several liability, each of two or more defendants who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm. The plaintiff has the choice of collecting the entire judgment from one defendant, the entire judgment from another defendant, or portions of the judgment from various defendants, as long as the plaintiff's entire recovery does not exceed the amount of the judgment.

D. 2. RES IPSA LOQUITUR

Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of the defendant's negligent conduct in the absence of direct evidence of such negligence. Res ipsa loquitur is circumstantial evidence of negligence that does not change the standard of care. EXAM NOTE: Res ipsa loquitur does not apply if there is direct evidence of the cause of the injury.

F. 6. a. Traditional rule

Under the traditional rule, benefits or payments provided to the plaintiff from outside sources (such as medical insurance) are not credited against the liability of any tortfeasor, nor is evidence of such payments admissible at trial.

D. 2. a. Traditional requirements

Under the traditional standard for res ipsa loquitur, still used in many jurisdictions, the plaintiff must prove that: i) The accident was of a kind that ordinarily does not occur in the absence of negligence; ii) It was caused by an agent or instrumentality within the exclusive control of the defendant; and iii) It was not due to any action on the part of the plaintiff.

C. 1. a. Mental and emotional characteristics

Under this standard, the defendant is presumed to have average mental abilities and the same knowledge as an average member of the community. The defendant's own mental or emotional disability is not considered in determining whether his conduct is negligent, unless the defendant is a child. In other words, a mentally disabled person is held to the standard of someone of ordinary intelligence and knowledge. Most courts hold that if a defendant possesses special skills or knowledge, she is held to a higher standard, i.e., she must exercise her superior competence with reasonable attention and care.

H. VICARIOUS LIABILITY

Vicarious liability is a form of strict liability in which one person is liable for the tortious actions of another. It arises when one person has the right, ability, or duty to control the activities of another, even though the first person was not directly liable for the injury.

E. 1. c. Loss of chance of recovery

When a physician negligently misdiagnoses a potentially fatal disease and thereby reduces the patient's chance of survival, but the patient's chance of recovery was less than 50% even prior to the negligent misdiagnosis, the plaintiff ordinarily cannot prove that but for the physician's negligence the plaintiff's death would not have occurred. A majority or substantial minority of courts now hold that the plaintiff can recover reduced damages based on the loss-of-chance doctrine. Under this theory, the plaintiff can recover an amount equal to the total damages recoverable as a result of the decedent's death multiplied by the difference in the percentage chance of recovery before the negligent misdiagnosis and after the misdiagnosis. Example: If the plaintiff's total damages are $1,000,000, his chances of survival were 40 percent without the negligent misdiagnosis, and his chances of survival after the misdiagnosis were 25 percent, then the plaintiff will recover $150,000 ($1 million x (40% - 25%)).

F. 5. a. General rule

When the plaintiff's real or personal property is injured or destroyed by the defendant's tortious conduct, the general rule is that the plaintiff may recover the difference between the fair market value of the property immediately before the injury and immediately after the injury.

E. 1. CAUSE IN FACT

a. "But-for" test b. Multiple and/ or indeterminate tortfeasors c. Loss of chance of recovery

C. 4. NEGLIGENCE PRE SE

a. Basic rule b. Proof of a defendant's compliance is not dis-positive c. Defenses d. Violation by a plaintiff

B. 3. FORSEEABILITY OF HARM TO THE PLAINTIFF

a. Cardozo (majority) view b. Andrews (minority) view

C. 5. STANDARDS OF CARE FOR SPECIFIC CLASSES OF DEFENDANTS

a. Common carriers and innkeepers b. Automobile drivers c. Bailors and bailes d. Modern trend e. Emergency situations

J. 1. JOINT AND SEVERAL LIABILITY

a. Definition b. Application

H. 1. LIABILITY OF AN EMPLOYER FOR AN EMPLOYEE'S TORTS

a. Employer's right of control b. Scope of employment c. Negligent hiring

K. 2. ASSUMPTION OF THE RISK

a. Exculpatory clauses in contracts b. Participants and spectators in athletic events c. Unreasonably proceeding in the face of known, specific risk

I. 1. LIABILITY OF THE GOVERNMENT AND ITS OFFICERS

a. Federal government b. State governments c. Municipalities d. Government officals

F. 5. PROPERTY DAMAGE

a. General rule b. Cost of repairs c. Household items

H. 2. TORTS COMMITTED BY INDEPENDENT CONTRACTORS

a. Generally no vicarious liability b. Distinguished from employee c. Non-delegable duties d. Negligence in hiring

H. 4. AUTOMOBILE OWNERS

a. Negligent entrustment b. Family-purpose doctrine c. Owner liability statutes

H. 5. PARENTS AND THEIR CHILDREN

a. No vicarious liability b. Negligence of parents

B. 4. SPECIFIC CLASSES OF FORESEEABLE PLAINTIFFS

a. Rescuers b. Intended beneficiaries c. Fetuses

G. 3. RECOVERY FOR LOSS ARISING FROM INJURY TO FAMILY MEMBERS

a. Spouses b. Parent-child c. Limitations

F. 6. COLLATERAL-SOURCE RULE

a. Traditional rule b. Modern trend

C. 3. CUSTOM

a. Within a community or industry b. Safety codes c. Professionals d. Physicians

G. 4. "WRONGFUL LIFE" AND "WRONGFUL BIRTH" CLAIMS

a. Wrongful life b. Wrongful birth

G. 2. WRONGFUL DEATH AND SURVIVAL ACTIONS

a. Wrongful-death actions b. Survival actions

C. 4. a. Basic rule

i) When a criminal or regulatory statute (or an administrative regulation or municipal ordinance) imposes upon any person a specific duty for the protection or benefit of others; ii) If the defendant neglects to perform that duty; iii) He is liable in negligence to anyone in the class of people intended to be protected by the statute; iv) For any accidents or harms of the type the statute was intended to protect against; v) That were proximately caused by the defendant's violation of the statute. In most jurisdictions, the violation of the statute establishes either negligence as a matter of law or a rebuttable presumption of negligence. A majority of courts hold that a violation of a state or federal regulation or a municipal ordinance may also result in negligence per se. A minority of jurisdictions hold that violation of a regulation or an ordinance is merely evidence of negligence.