November 2, 1998

Joint liability

• defendant’s acts are joint causes of plaintiff’s injuries
• P can recover all damages from either defendants

• concurrent but for cause
• concerted action/joint enterprise
• Joint enterprise in a concerted activity, express or implied agreement where you will all engage in activity together, then all will be responsible for the acts of one

• D can collect from each other

ML – according to proportion to fault for causing accident

Duty

Act or omission to act

Foreseeable plaintiff/other limits

Standard of care

Breach

What happened

Balancing

Actual cause (joint and several or just several)

Proximate cause

Damages

Definitions

Defenses (talk about what plaintiff was doing)

6 year old killed by drag racer

• could be emotional distress by mother and grandfather

standard of care:

• since engaged in an adult activity of driving a vehicle, they will be held to the same standard of care as a reasonable adult engaged in the same activity. Reasonable care under the circumstances
• statute – speed limit – meant to prevent the kind of accident that happened and protect the class of plaintiff of which boy was a member

breach:

• driving 60mph in a 40mph zone
• negligence (majority) other courts say it is a rebuttable presumption, other courts say it is evidence only (essentially an inference of negligence)
• balance: utility of conduct in drag racing slight compared to foreseeable damage

actual cause

• joint liability in a drag racing situation; both can be held liable since they were both engaged in a concerted action together
• jointly liable – yes, engaged in a concerted activity, jointly liable for plaintiff’s injuries

proximate cause

damages

• general damages
• special damages

defenses

• what the plaintiff was doing
• no assumption of risk or contributory negligence because boy was just sitting in a car on way to karate lessons

Several liability

D’s negative acts are independent and successive causes of plaintiff’s injuries

Plaintiff can only recover damages for injuries caused

Actual cause:

Summers v. Tice – remember this name!!! Very famous case, etc..

Three men were hunting, and 2 bullets caused injury to P, but could not determine which person the shots came from. Burden would shift to the defendants to show they were not negligent. If the defendants cannot exonerate themselves, then there is joint and several liability. – this is call the alternative liability approach

Suits against manufacturers of pregnancy drug DES. Market share liability. As long as d’s produced a common market and represented a substantial share of the market. Each defendant should pay out according to their share of the market. To determine market share liability:

• type of market (state, local, national market)
• D jointly or severally liable

Barriers to recovery:

• problems with statute of limitations – usually starts upon exposure to harm; here the disease did not start until 20 years later. Legislature revised rule to make it a discovery statute – statute runs at time P discovers or reasonably should have discovered the disease.
• hard to identify who the manufacturers were

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November 4, 1998

Market share liability – DES cases

Proximate Cause = foreseeability / increased risk of harm

Thin skulled plaintiff rule – D liable for unforeseeable extent of harm – p347

D’s negligence is direct cause of plaintiff’s harm

Unforeseeable

Direct cause

Unforeseeable manner = split

Majority – D liable

Some courts – D not liable if highly extraordinary manner

Indirect cause (intervening/superceding causes)

• analyze foreseeable/increased risk of and type and manner of harm

[additional Andrews factors from Palsgraf]

• remoteness in space and time
• fairness/public policy

PROBLEMS WITH TOXIC TORTS

1. problems of identification

• lag time, delay; hard to know which one caused it. Many toxics in our envoronment so it is hard to know what actually caused the problem

1. problems with boundaries

• toxic problems go on for generations, no boundaries on how long the problems will last
• the number of people that may be exposed is very large
• damage people suffer is harder to identify

1. problems with source

• lots of potential causes of problem
• many potential defendants – manufacturers, distributors, government approval agency,

How far is it fair to extend the liability of a defendant to all the potential consequences of his/her negligence?

Proximate cause, like duty, involves fairness based on public policy considerations, as well as foreseeability.

Foreseeability is the most important factor in determining proximate cause

Courts quite liberal in their analysis of foreseeability

For exams on PC:

• consider whether cause is direct of indirect
• extent of harm foreseeable
• type of harm, manner that the harm occurred, foreseeable
• injury remote in time or space?
• Fairness (public policy) considerations – is there a superceding cause that will cut off the liability?

Many cases PC is not an issue. It is obvious that the harm was created by incident (such as a car accident in which a person’s leg was broken).

Thin skull / egg shell plaintiff rule – does not matter if you have an injury which is of greater extent than was foreseeable, the defendant will be liable.

Examples: 1) D cause P to fall, he gets a small cut and bleeds to death because he is a hemophiliac. D is liable for the death because you take your Ps as you find them.

2) old woman trips getting off bus and dies. Bus driver is liable because he stopped too far away from the curb

brakes – non-delegable duty. If the brakes are faulty, then the brake-shop owner can be liable.

Steinhauser v. Hertz Corp.

• this is a very extreme case, pushing the limits of causation
• girl was diagnosed as a schizophrenic after a small car accident. Was the person responsible for the girl’s condition?

If person has a predisposition to cancer, and D’s negligence causes person to get cancer, D is liable. Take P as you find them.

Direct cause – no intervening force that would have shifted the liability to something/someone else

Foreseeable type and manner – then clear that defendant is liable

Problem area is when you talk about what is unforeseeable – splits in decision whether P can recover or not

D was liable for accidentally starting a fire, because D was negligent, there was a direct cause. Nothing between dropping the plank and the fire starting.

Wagon Mound case:

Manner that harm occurred – foreseeable or not foreseeable – form a picture in your mind and think of all the possibilities that could occur.

Think of Pauline plaintiff as she goes from getting hit by car to when she goes home.

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November 9, 1998

Suggested P.C. analysis – foreseeability/increased risk

Direct v indirect

Extent of harm

Type of harm

Manner harm occurred (intervening v superceding force)

Remoteness in time and space \ from Andrews dissent in Palsgraf –p366

Fairness and public policy /

D’s negligence is indirect cause of the plaintiff’s harm

Extent = thin skulled plaintiff rule

Foreseeable type and manner = D liable

Unforeseeable type = split

Some courts – D not liable (narrow view)

Some courts – D liable – Kinsman – p. 375

Manner foreseeable or not – test = foreseeability/ increased risk of harm

Most courts allow recovery unless superceding cause

Foreseeable manner – original ("devil") D remains liable

1. normal responses – "perils of Pauline"
2. non normal reasonable person if foreseeable /increase risk (i.e. Hobo’s Hollow)

Unforeseeable manner (superceded force)

1. Int torts, crimes when ("devil") D’s negligent doesn’t increase risk
2. Highly extraordinary negligence ("neutralization of the risk") – McLaughlen – page 360
3. Fool hardy escape or rescue
4. Grossly negligent medical care
5. Some courts – suicide or injury or murder of 3^rd party if not "irresistible impulse"

Unforeseeable plaintiff – Palsgraf – p36

Cardozo – no duty

Andrews – duty to whole world

Unforseeable plainitff = factors re P.C.

Other Andrews factors ("hints")

Pauline Plaintiff Skit

• horse bolts because car scares it
• horse rider falls and is injured
• driver set force in motion which caused horse to bolt and rider to get hurt. Driver is responsible -------------
• car drives towards person
• person tries to run out of way, but gets hurt in process
• driver is liable because direct cause

if person tries to rescue another and is negligent in rescue, rescuer is liable for negligence

reasonable care under the circumstance – emergency situation

devil defendant stays liable for almost all injuries to plaintiff. Only thing not liable for is superceding causes (gross medical negligence, foolhardy rescue or escape, highly extraordinary negligence) – everything else is foreseeable.

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November 11, 1998

Hobo’s Hollow case:

• train conductor held liable for letting a passenger off a mile past the train stop, and the passenger was raped by a hobo
• thing to look for is if action "increases the risk" of the harm happening
• if the act is foreseeable, person will be liable. Ex: leaving a ladder leaning against a house which eventually falls over and hurts someone. Person may be negligent if it was foreseeable that it would fall over. In exam she will say "d negligently left the ladder…"
• follow analysis through

Acts of a negligent 3^rd party can sometimes be enough to find the first person guilty of negligence.

Child finds blasting cap, father recognizes what it is, but did not stop child from playing with it. Child hurt, who is liable?

• Father neutralized the risk, superceded the negligence of the original manufacturer.
• As a matter of fairness and public policy liability must be cut off at father

Andrews view: owe a duty to the whole world.

Cardozo view: owe a duty only to people within the zone of danger

• if have a unforeseeable plaintiff, just go through the analysis once.
• Use these views in analysis
• Other Andrews causation factors: direct or indirect, nearness and space in time, extent of harm, type, manner, remoteness
• Andrews on proximate cause: no fixed rules, little to guide us other than common sense.

THINGS TO CONSIDER IN PROXIMATE CAUSE:

Direct v. indirect

Extent – if P only sufffered a scratch but because he bled to death as he was a hemophiliac, under the thin-skulled plaintiff rule, defendant is liable for all injuries.

Type

Manner

Remoteness in space or time

Fairness and public policy

Defendant bears burden of pleading and proving all defenses

D tries to prove re: contributory negligence: that plaintiff’s conduct was negligent towards plaintiff

Historical context of CN

• first emerged as a doctrine in early 19^th century.
• Eventually comparitive negligence developed – but still need to look at CN to see how much fault P bears

To show CN D must prove:

A. Duty:

• D does not need to show an affirmative duty to act
• Duty – reasonable care under the circumstances – higher standard for medical patients, different standards for landlords, etc
• Some courts use a capacity standard when dealing with patients with a mental disability. Take this into account to see if P acted reasonable for his safety given his limitations.
• Statutory violation – can show contributory negligence per se. If you are one of the class of people the law was meant to protect, then the statute applies.

B. Breach of duty

• did P act unreasonably

C. Actual Cause

• but for P’s negligence P would not have been injured

D. Proximate Cause

WILL NOT be responsible for doctrine of last clear chance on the exam. Has been abolished in all jurisdictions (except CAL bar exam)

• situation in which P acted negligently, and then D had a "last chance" to avoid the harm that occurred
• helpless peril: p through negligence cannot get out of harms way, d should have known P could not move, but causes harm any way
• inattentive peril: when P been paying attention would have realized a bad situation, and could have avoided harm, D has to know the P was not paying attention and should have got out of the way

Imputation of CN from one P to another P

• under modern law only applies if you have

• vicarious liability – employee and employer can be help liable. Can employee’s CN be used to collect against employer? Yes, employee’s CN will be imputed to employer
• derivative lawsuits (loss of consortium, wrongful death, by stander recover) If P was negligent, can a third person sue the same D to recover for the injuries? P was found to be 30% at fault, then third person will have the damages imputed to her (30%) so the most she could possibly recover is 70%. Anybody else who sues will have P’s CN imputed to them.

Doctrine of avoidable consequences

• a plaintiff is required to exercise reasonable care after a accident occurs to get medical treatment for injuries suffered. If P does not seeks care, P is responsible for any injuries that were avoidable. EX: work with asbestos, but do not stop smoking, if had stopped smoking chance of cancer from asbestos would have been much less.
• question is at what point is P not required to get reasonable care? How far does P need to go? Does P have to undergo surgery a second time that was messed up the first time? If there is a recognized risk to the treatment that was proposed, P does not have to do it.

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November 16, 1998

P damages = $100,000

P = 90% at fault

D = 10% at fault

P’s recovery = $10,000 (recover only P’s percentage of fault)

P = 49%

D = 51%

P’s recovery = $51,000 (P’s fault must be less than D in order to recover)

P = 50%

D = 50%

P’s recovery = $0 (both were equally at fault so no recovery)

P = 50%

D = 50%

P’s recovery = $50,000 (if P’s fault is 50% or less than D, P can recover)

res ipsa loquitur – not happen in absence of negligence, P in control, and P not be contributorily negligent -

rescuer situation – if rescuer was contributorily negligent, most courts do not take into account the contributory negligence of the rescuer (just negligence, not apply to recklessness)

General requirements

Anticipatory avoidable damages

• sometimes plaintiff can avoid accidents (or mitigate) by wearing seatbelts, safety helmets when biking, skating
• can cause defendant’s fault to be reduced by amount contributable by plaintiff’s negligence

Comparative negligence

• virtually all states have some form of comparative negligence
• pure comparative negligence (ONLY NEED TO KNOW THIS FOR TORTS EXAM)

• about 12 states apply this
• P can recover amount equal to defendant’s percentage of fault compared to plaintiff’s percentage of fault

Assumption of risk:

Does not apply if have a situation where there is a statute enacted to protect a group of people and P is a member of that group.

Look for:

• whether P understood the risk

• plaintiff must know and appreciate risk
• subjective standard – what a reasonable person would have known

• P must voluntarily encounter the risk (no emergency situation, duress)
• Two types of assumption of the risk

1. express assumption of the risk

1. often in clauses in a contract – P expressly agrees to not hold D liable for negligence, etc.

1. clause sufficiently clear – would a reasonably prudent person have recognized they were expressly waiving right to sue defendant if D acted negligently (look for bold print, initial areas)

• signs in a parking lot that say risk is waived may not be enforceable because you could say P did not see the sign
• most courts say there are no magical words to be included in clause; just as long as there is words to that effect ("waive any and all liability…")

1. voluntarily choose to encounter clause
2. public policy must not be in violation

1. general rule is if there is unequal bargaining power
2. an exculpatory agreement is invalid if it exhibits some or all of the following characteristics:

1. a business of a type generally thought suitable for public regulation
2. the party seeking exculpation is engaged in perform in a service of great importance to the public, which is often a matter of practical necessity
3. the party holds itself out as willing to perform this service for any member of the public who seeks it
4. as a result of the essential nature of service, the party invoking exculpation possesses a decisive advantage or bargaining strength against any member of the public
5. in exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation
6. as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or the seller’s agents

1. implied assumption of the risk

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November 18, 1998

Implied assumption of the risk

• arises when you have conduct by the plaintiff that indicates P has accepted the risk; voluntary (not forced, fraud) and knowingly (skiing, amusement park rides)

• Flopper ride – rider knew the risk and assumed it

Firefighter’s rule – cannot sue if they get hurt during acts that called them to the scene; if the accident is caused because of why they were at scene

• does not apply to intentional torts

Athletic activities

P = participant in an athletic activity

Majority: no duty of care

Minority: duty of care

Only scenario we need to know for EXAM:

Baseball stadium: duty of owner is reasonable number of screened seats based on a reasonable number of people who may want the screened seats. Also can have unscreened seats for those who want to sit there. People who sit in non-screened areas assume the risk of those seats

Will not be tested on THIS:

• CA calls this primary assumption of the risk
• Secondary assumption of the risk (defenses)

Look at what the duty is, determined if breach, show actual cause, proximate cause, then do defenses

On exam:

Assume that assumption of the risk is a separate defense; decrease rec. pursuant to comparative negligence

Do full analysis of contributory negligence and assumption of the risk

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How to approach a torts exam:

• only analyze parties that she tells us to do
• write out causes of action
• divide plaintiffs then go systematically through prima facia case and then through defenses
• use subheadings when doing analysis
• Sammy Skater exam had lots of issues – ours will be a little shorter; it is a good exam to practice on though, especially for issue spotters

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November 23, 1998

Office hours

Monday 11-12 2:30-5

Wednesday 11-1 2-4

Tues dec 1 11-1

Wednesday dec 2 11-1

Thursday dec 3 12-3

Wed dec 9 1-5

Thurs dec 10 10-5

Thurs dec 11 10-12, 1-5

Office: 554-5233

Home: 241-3687

General suggestions:

3 hours dec 12 8:30-11:30

closed book

similar to last year – one lengthy issue spotting, plus one narrow question (pros and cons and policy arguments)

• might do a choice between two focused questions (we pick one)
• will post instructions outside office when they are ready
• watch timing very carefully
• do long question first
• will be a fictitious state – will have pure comparitive negligence (do not discuss modified versions of negligence)
• case names are not important
• Seeford – woman who got leg stuck in door. KNOW THIS NAME
• WOMS – warn or make safe
• Anticipatory avoidable consequences – know buzz words as much as possible, but concept is most important

• don’t need to remember majority/minority view
• can assume that P and D are competent adults unless she tells us differently
• don’t use introductory sentences, or phrase issue, frame questions
• just use headings.
• Can refer back to stuff you have already done – make sure it is the same analysis
• Don’t analyze cause of actions or issues that are not there
• Do all ones that ARE listed
• Can include phrases if running out of time
• Use facts as given – don’t invent facts
• IF EXTRA TIME: Re-read facts, if facts are not there to explain story, then the fact is probably there to be used. Add public policy reasons for issues.
• Does not deduct points for wrong, irrelevant points – only will loose time
• Will do line by line critiquing of the exam – get lots of feedback which should help for final in May
• Counts 40% if helps, 30% if it hurts à compared to final
• Uses a point system that is precise
• Points for law, facts related to law, points for public policy, give bonus points for creative arguments
• Two kinds of questions: testable issues in every subject matter we have covered: vary the facts enough to make students have to do analysis; straight forward stuff:

• compensatory damages
• thin skulled plaintiff rule

go through the sample tests with the checklists that she gave us

• do an outline before starting exam
• such as a grid
• bolded part of the outline gives basic structure

Tests figuring out: what is going to be tested:

• professors cover what was emphasized
• organizing exam: do causes of actions one at a time (except for vicarious liability); she will tell us in exam what to do
• do not analyze what plaintiff did under prima facie case: that goes into defenses
• don’t stop if you conclude one way and there are facts left over; just say what would have happened if it came out the other way
• don’t cut and paste when referring back to the same arguments. Just type "same as number one"
• combine facts and law. Don’t be conclusionary. Make sure that every sentence cannot be asked because or why.

Spend time learning concepts not majority/minority rule

Don’t always put counter arguments. Only put it if you can see a counter argument. Most key arguments come from plaintiff

BRING OUTLINE tomorrow:

Structure:

1. Duty (use the following order of analysis):

1. act or omission to act (that the defendant does not warn, do something that should have done, non-action – D fails to take any action at all)

1. if you have action don’t need to argue there is an affirmative duty to act
2. often there will be both though

1. affirmative duty to act: no duty to act as a GR

1. public policy: don’t want to force people to do good
2. potential saving of life, moral values, encourage people to get involved
3. special relationship between P and D – VERY TESTABLE (tape 168)

• go through all the situations
• responsibility for plaintiff’s peril – many jurisdictions there is a duty to aid someone, once you start to aid someone you have a duty to finish aiding them
• gratutitous promises: no duty to perform a gratuitous or contractual promise: some courts only if there is reliance
• contractual promise: NOT TESTABLE
• duty to control or warn of conduct of third party: VERY TESTABLE

• many situations that could be tested

• readily identified able victim: VT KNOW TARASOFF
• know the tricks of Tarasoff: does not apply in self inflicted harm cases because T requires a warning only if Danger to Others

1. just look to anything else why there would not be a duty (as a wrap up) (268a)

1. whether P was foreseeable (not always an issue)

• rescuers – danger invites rescue
• someone encouraging dangerous activities (283a)

1. no one foreseeable: (291a)
2. split: danger to someone but the injury occurs to someone else

• need to mention Palsgraff
• and tell Cardozo view (duty only to reasonably foreseeable)
• however in Andrews jurisdiction, duty is owed to whole world, so therefore the fact that P was unforeseeable would be taken into account under proximate cause – don’t repeat in proximate cause

1. whether P suffered emotional harm (Seeford situation)

• p suffered emotional harm and therefore can get emotional harm
• easy to add this section to an exam (345a)
• direct causing of emotional distress

• early view: had to have actual impact (355a)

SIDE B

• most courts require there be physical injuries ( many examples on tape (12b)
• jurors can assess the damages
• physical injury requirement rational: to prevent fraudulent claims (19a)

1. bystander recovery (34b) VT – Dillon and Portee ß know these names (think about how facts can be varied for a test)

1. dillon: continum between close and absence of a relationship
2. portee: requires a serious injury or death involved (other two do not)
3. some courts only look at foreseeability in emotional distress
4. rational: D needed to have been able to foresee it.. …. (64b)
5. most courts do not allow recover for nonmarital spouses
6. rational for this: (67b)

1. arriving at accident: (85b)
2. did D suffer prenatal injury (90b) – not much to analyze here – just give rule: (95b): majority of courts allow mother and father to maintain a suit… ? need to show proximate cause and damages

1. thing: special circumstances:

1. economic harm: (117b)

rule: need physical harm to recover

two exceptions: (1) negligently caused damage to third parties (toxic stuff in air causing airline to shut down- key is whether it was particularly foreseeable that this class of P would suffer damage) (2) negligently prepared reports

2. immunity: (153b)

• not too much in this area that we need to know
• only need to know what is on the outline
• parents usually have immunity in dealing with children
• area of police departments: what they owe for protecting individual v public at large
• cuffy guidelines, school districts liable for not providing good education: problems of causation, enviro, intelligence, crushing liability

1. standard of care: focus on defendant (180b)

1. general standard of care under reasonable circumstances
2. special duty
3. statute: VT – violated a statute by speeding or custom.. tell about this and do reasonable care under the circumstances
4. mental disability/beginner – not taken into account – need to mention this.
5. Learner can take inexperience into account, but people will not have way to know and other drivers cannot protect themselves
6. Physicall disability of D is taken into account (215b) – this is a defense because a physical injury can be seen whereas mental disability cannot
7. Not liable for sudden incapacitating illness (epileptic seizure) if child: look at age, experience, intelligence. standard of care of a reasonable child of like age, experience and intelligence
8. Emergency situation:
9. Professional situations
10. Physician has a different standard: standard of care of members of the medical profession in same or different communities
11. Custom: reasonable care under the circumstances
12. If statute look and see if P was in class of P meant to be protected; see if there was an excuse for violating it, then just tell the effect of what happens if it is violated. Don’t need to say it every time.

1. duty to control third parties: vicarious liability – employer / employee – just give a quick one. Don’t worry about independent contractors
2. negligent entrustment: VT – someone who entrusts a dangerous instrumentality to someone they know will not use it correctly.
3. Social host liability (327b) VT many courts say you are not liable for getting people intoxicated

END OF TAPE

• know trespasser, licensee, social guest differences, difference between child and adult in above categories
• can change status while in store – duty will change
• ROLAND CASE: duty under reasonable care under circumstances
• Know the ROLAND factors: used to determine whether to impose a new duty on someone

1. landlord liability: duty of person to avoid crim activities.

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November 25, 1998

Effect of res ipsa loquitur

3 ways the courts look at res ipsa loquitur (RID):

Rebuttable presumption

Inference

Disappearing presumption

BALancing: likelihood and severity of harm balanced against necessity of conduct/public policy, burden for P to do it other way

• what was the safer alternative? If there was a reasonable safer alternative, then the D was probably at fault (negligent)

Actual cause: but-for D’s conduct the injury would not have happened

Concurrent but-for causes

Several defendants:

• reasonable certainty that P’s suffering was caused by defendants
• Summers v. Tice: need to know this case!!

Enhanced risk: reasonable medical probability that the disease will occur (203)

Rat for allowing enhanced risk recovery:

1. statute of limitation problems
2. entire controversy rule (one lump sum)
3. claim is deferred then D can argue illness due to other causes
4. want to deter this type of behavior

key to proximate cause:

• whether is was reasonably foreseeable that
• or increase of risk
• if extent of harm is what you would expect (thin skull plaintiff) THIS IS ON EXAM
• 330A

direct cause: like dominoes

• of unforeseeable type of harm: majority D not liable (Wagonmound case); minority is D liable (In Re Polimis case) 374a
• might be better to do direct cause of harm
• unforeseeable manner: courts allow recovery (majority)

indirect type of harm: some sort of external intervening force that disrupts the dominoe effect

• either unforeseeable / foreseeable
• trick is to whether this cuts off D’s liability
• indirect cause of unforeseeable type of harm: same split as above, original D remains liable, original D not liable

Manner that harm occurred:

• This is key to analysis
• Normal responses: reaction of a P, efforts to protect person or property, negligent act of a rescuer, negligent act of a medical provider, suicide (only if injury caused irresistable impulse)
• Independent actions:

Defenses:

Avoidable consequences