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Negligence, Defenses NEGLIGENCE (and strict liability) - Coggle Diagram

- - - - Part of the purpose of tort liability is to right the wrong. Hence, compensatory damages seek to offset the harm done, at least to the fullest extent that can be accomplished with money damages
        
        Pecuniary / Special: damages that can be objectively determined (e.g., medical costs, lost wages, replacement/repair cost, etc.)
        
        Non-pecuniary / General : damages that have no objective monetary equivalent (e.g., pain and suffering, loss of consortium, loss of enjoyment from life, etc.)
      - Noneconomic Damages
        • E.g., loss of quality of life, pain and suffering
      - Non-Monetary Awards -> Courts of Equity
        • Methods of making the victim “whole” when money doesn’t do it!
      - proven by preponderance (50%) of evidence
    - - Damages awarded to Plaintiff unrelated to his actual injury, but with the purpose of punishing the defendant or deterring the defendant or others from engaging in similar behavior in the future
      - Punitive damages thus are aimed at the goal of preventing torts, as opposed to compensating the injured person when a tort occurs
      - Focus is on behavior of DEFENDANT, not injury to plaintiff
      - Generally No fixed ratios (e.g., 4 to 1) in capping punitive damages,
      - but excessive ratios (?? 10 to 1??) may raise due process concerns (see. State Farm case, p. 618
      - Some states cap by statute
      - Punitive Standard
        
        Generally need intentional, willful or reckless conduct
        
        Typically is in some way malicious or prompted by personal malice/hatred, but that is not required and outrageous behavior can be sufficient to justify punitive damages
        
        For product liability, proving punitives generally require clear evidence that defendant KNEW of risk and made conscious deliberate decision to ignore the product defect.
        
        Note, just because malice exists and punitives could be awarded, jury has wide discretion as to whether to do so
      - Burden of Proof
        
        Requires Clear and Convincing (75%) evidence
        
        Clear and convincing is higher than a perponderance (50%) and lower than "beyond resonable doubt" (95%)
    - - Damage determinations are predominately the province of the jury
      - Judge’s ability to alter reward (remittitur to decrease or additur, if permitted in state, to increase) is generally quite limited
      - Need to show jury award “shocks the conscience”
      - Exceeds the maximum value which a reasonable jury could have arrived at under the facts
    - - Tax Code exempts damage awards from plaintiff’s income to the extent that they relate to personal physical injuries (incl. emotional distress)
      - Thus, awards for lost compensation are excludable
      - Minority of jurisdictions haircut awards as a result, but intellectually wrong since Congressional policy is frustrated
      - Punitive Damages ARE still taxed
      - NOTE: damages for torts without any physical injury are NOT excluded (e.g., defamation, liable, etc.)
    - - Generally based on decrease in value or replacement value
      - Based on market value. What a willing buyer and a normal seller would have agreed to at arm’s length.
      - But, if range, should be high end price since plaintiff would be the seller and would presumably hold out for highest of the reasonable prices
      - Family heirlooms value may be increased, but generally no increase for attachment to pet
  - - - Factual cause is the factual inquiry into whether the defendant’s negligent conduct was a cause of the plaintiff’s injuries
        
        ALTERNATE Causes
        
        Concurrent causes
        
        NECESSARY Negligence
        
        Either negligence alone would NOT have caused accident.
        
        But, need BOTH as the NECESSARY conditions for the harm to occur
        
        In that case, merge the negligence and both defendants jointly and severally liable
        
        SUFFICIENT Negligence
        
        As long as each act ALONE would have been sufficient by itself to produce the harm
        
        Acts must be Concurrent
        
        Each must be Substantial
        
        Then the acts of the multiple tortfeasors combine to produce an INDIVISIBLE HARM
        
        Alternative Causes
        
        Either COULD have been cause, and ONE certainly was the cause, but cannot determine which one
        
        Rationale
        
        Both negligent and seems wrong to let both off just because we cannot conclusively determine which one actually did the harm
        
        Of course, it means the “innocent” one is now held liable
        
        BoP on factual causation changes to defendants
        
        So, defendants may be in best position to really determine which of them caused the harm
        
        Applies where the plaintiff can prove:
        
        (1) all of the defendants acted negligently and harm resulted,
        
        (2) all possible tortfeasors have been named as defendants, and
        
        (3) the defendants’ negligent conduct was substantially simultaneous in time and of the same character so as to create the same risk of harm.
        
        Market Share
        
        Generally, for alternative causation, Plaintiff needs to join ALL defendants that could have caused the harm.
        
        Market share liability is a legal doctrine that allows a plaintiff to establish a prima facie case against a group of product manufacturers for an injury caused by a product, even when the plaintiff does not know from which defendant the product originated
        
        See, Sindell v. Abbott Labs, p. 327 (only 5 of 200 manufacturers joined, but = 80% of production)
        Impact: recover % of harm (e.g. 80% of harm)
        
        elements
        
        A plaintiff must show:
        
        All the named defendants are potential tortfeasors;
        
        The alleged products of all the tortfeasors share the same properties and are identical;
        
        The plaintiff, through no fault of her own, cannot identify which defendant caused the injury; and
        
        The plaintiff brings in as defendants those representing a substantial share of the market.
        
        Lost Chance
        
        But, what if “chance” to avoid loss is well quantified, even though less than 50%? Shouldn’t negligently eliminating that chance be actionable?
        
        Patient has cancer. 70% patient will die, regardless of any treatment.
        
        So, negligence in not giving a treatment can NEVER be the MLTN cause of death since the harm (death) is more likely to occur ANYWAY even if Defendant is NOT NEGLIGENT.
        
        D Negligence just increases chance of death from 70% to something higher.
        
        But even a SMALL shot at recovery is worth a lot and negligence has taken this chance away from the patient (a “lost chance”)
        
        So, for MEDICAL MALPRACTICE ONLY, some courts allow a lost chance argument
        
        courts split
        
        Traditional approach: Rejects lost chance.
        
        If P shows > 50% chance ultimate harm from D negligence, then P recovers 100% of loss
        
        If P shows < 50%, then recovers ZERO
        
        Decrease BoP to “Substantial Cause”
        
        If show negligence is a substantial cause, recover full ultimate harm
        
        Treat Lost Chance as the relevant “harm”
        
        Damages = value of chance that was lost(i.e., % chance x ultimate harm)
        
        Still need MLTN that negligence caused the CHANCE to be lost
        
        "BUT FOR" causation
        
        but for the negligence, the harm would not have happened
        
        Sine qua non: an essential element to the harm
        
        NOT ENOUGH that D’s actions INCREASED risk
        
        D’s actions must be the MOST LIKELY cause of the harm
        
        always sufficient if can be proven
        In some jurisdictions, Exclusive means
        
        Burden of Proof
        
        It is not enough for plaintiff to prove negligent conduct might have caused the harm.
        
        Plaintiff must prove that the negligent conduct was more likely than not the cause of the harm.
        
        Expert evidence can be used, but it still must meet burden of proof standard
        
        General and Specific causation
        
        Must show that not only causation for general situations like the current one, but that the actual specific situation was caused by the negligence disucssed
    - - Concept: even if D's negligent action is the factual cause of P's harm, at some point, it really is not appropriate to hold D liable
        
        Directness Test – Traditional Approach !
        
        Essentially, as long as FACTUAL causation proven, then proximate cause exists ABSENT an intervening superseding event
        
        Foreseeability Test – Modern Approach
        
        Scope of Risk: Reasonable person in similar circumstance would have foreseen harm (a) of same general Type and (b) to the class of persons that includes the plaintiff, and taken precautions to avoid harm
        
        The less foreseeable a harm is, the less likely there will be proximate cause.
        
        Lower on list--> less likely to create a proximate cause concern
        
        Type of plaintiff
        
        Type of harm
        
        Manner of occurance of harm
        
        Extent of harm
        
        Extent of Harm Unforeseeable
        
        “defendant must take a plaintiff as he finds him” --- even if he has an “eggshell skull”
        
        NOTE: this applies for Proximate Cause determination ONLY. Duty of Care is STILL measured by reasonably prudent person standard.
        
        Most people from whiplash are not going to have a psychotic break….. But still regardless, there is still proximate cause so D liable.
        
        Risk Based Test – Academic Approach
        
        Focus on reason underlying what the negligence rule was aimed at. If it is not of the same type as the actual harm, then no proximate cause
        
        So, can of rat poison left in kitchen. Negligent because a person might consume it. But, poison is also flammable (which a normal person would not know). If poison explodes due to heat in kitchen, then proximate cause should be lacking, since negligence did not relate to the risk that was at issue
        
        See also loaded gun to child situation
        
        Unless extreme situation, existence of proximate cause is a jury question
        
        Directness Test – Traditional Approach
        
        Foreseeability Test – Modern Approach
        
        But, even if test indicates that proximate cause exists, it can be vitiated by an intervening superseding cause
        
        The acts of a 3d party that intervene between defendant’s negligence and plaintiff’s injury will interrupt the causal link (so Defendant NOT liable), if the 3d party conduct is SUPERCEEDING
        
        Extraordinary
        
        Unforeseeable, and
        
        Independent
        
        If intervening cause is normal or foreseeable or arises out of defendant’s actions, then defendant still liable (i.e.) proximate cause still exists
        
        Intervening Cause
        
        Criminal or Intentional Conduct
        
        Generally, criminal or intentional conduct is a superseding cause since it could not be anticipated
        
        But, if situation is one where criminal conduct was a primary risk that defendant should have planned for, then it is not superseding
        
        Suicide
        
        General rule: intentional act of suicide is an intervening cause that cuts off liability of those whose negligence otherwise contributed to or facilitated the suicide
        
        Rescue
        
        Original tortfeasor liable to someone injured in attempt to rescue the original person harmed by the tort.
        
        Rescue doctrine
        
        (1) the defendant's negligent conduct placed a person in danger,
        
        (2) the person was in immediate danger,
        
        (3) the plaintiff did not act rashly or recklessly in carrying out the rescue, and
        
        (4) the plaintiff was injured in the course of the rescue
        
        Public Policy
        
        Sometimes a harm is clearly foreseeable and yet, for public policy reasons, the courts might nevertheless cut off liability. Ultimately, just need to draw a line SOMEPLACE.
        
        So, social host serves an adult guest too much to drink. Almost all jurisdictions find no liability to social host
        
        Intervening vs. Superseding Causes
        
        • Intervening Cause: an event that occurs after a defendant’s initial act of negligence, which then causes injury/harm to the plaintiff.
        
        • Superseding Cause: an intervening cause that absolves the defendant of liability for the plaintiff’s injury, where that intervening event is:
        
        • Extraordinary;
        
        • Unforeseeable; and
        
        • Independent
        
        And therefore breaks the chain of causation.
      - Was the plaintiff’s injury within the scope of the defendant’s liability?
  - - - 1) what a reasonable person would have a duty of under the circumstances
        or
        
        Objective test, but there is no single "reasonable person" to use as a yard stick
        
        REASONABLE PEROSN IN CONTEXT OF OTHERS: can be determined holistically based on community standards and customs
        
        Duty is not based on the burden imposed in the individual case, but rather the burden that is imposed by creating a duty on everyone
        
        Least cost avoider approach---> tort liability should be based on making liable the person who was in the best position to prevent damages
        if person knows they will bear loss, they will have incentive to take actions to prevent it
        
        Defining reasonable care based on CUSTOM
        Custom INDICATIVE but not CONCLUSIVE ---jury can use it to weigh decision, but is not decider
        Custom acts as a guideline
        
        but the test can also be analyzed using an economic balancing approach (hand formula) weighting:
        how likely certain harm is to occur
        how serious the harm would be if it did occur, and
        the burden involved in avoiding the harm
        
        Algebra of Reasonable care
        
        Actor liable if B<PL
        B=Burden/Cost of taking adequate precautions
        P=Probability of Loss Event
        L= Loss resulting from event
        
        Formula not perfect but good justification for reasonable care -jury can use it to weigh decision, but is not decider
        
        Reasonable person standard is NOT what a reasonable person would do with defendants knowledge, its is what a reasonable person would do with the Knowledge they should have had, and would have done
        
        certain situations DO warrant altering the relevant negligence standard
        
        higher skill/ talent/ expertise
        
        A reasonable person, knowing that they have superior skills, would use them. so reasonable person test applied as if reasonable person had those special skills.
        
        Emergencies
        
        An unexpected emergency not of defendants creation requiring a rapid response is taken into account in determining what a reasonably prudent person would do
        
        Emergency cannot be defense for negligence if emergency is forseeable---> kid running after ball into traffic in neighborhood
        
        Physical Disability
        
        Reasonable Person Standard adjusted to meet physical disabilities ---> standard of care cannot be impossible to reach
        
        becomes Reasonable person with said Physical Disability
        
        Children (unless performing adult activity)
        
        Reasonable person standard adjusts for a child to a reasonable person of a similar age, intelligence, and experience as the child.
        
        the standard takes particulars of child into account
        BUT does not apply to children engaging in dangerous activity or one taken by adults (ex Driving a car)
        
        Insanity (very narrowly limited)
        
        Generally, no specially standard (avoids false claims.... provides incentives for care for individuals)
        
        BUT, in SOME jd's, mental disabillity MAY be factored in if
        -impacts ability to understand or ability to control
        -and sudden onset (no advance notice)
        
        Professionals
        
        Doctors, Lawyers, Accountants, Engineers, therapists..... basically any higher education that requires extra care
        
        Negligence by a professional is typically referred to as MALPRACTICE
        
        3 more items...
        
        not clergy or teachers however
        
        Standard becomes reasonably prudent professional
        Jury wont know from common knowledge, so in most cases NEED to have expert testimony regarding the proper standard
        
        Still objective though. what a reasonably prudent professional would have done
        expert can be used to impeach credibility of prevailing custom if he would not have followed it.
        
        Custom extremely important as it informs what a reasonable professional would have done. and jury will lack knowlege of subject generally
        
        No allowance made for "beginners" or if the service was performed gratuitously
        
        is the standard of a professional based on : local community, state, or nation???
        
        2 more items...
        
        Informed Consent
        
        A specific type of negligence:
        
        Defendant failed to disclose information that defendant had a duty to disclose
        
        NOTE: also need to show Plaintiff would not have consented if information was disclosed (element of causation). Generally P testifies and jury weighs credibility.
        
        1 more item...
        
        Privileges to informed consent
        
        3 more items...
        
        What is Relevant Standard?
        
        3 more items...
        
        evidence of custom is not dispositive in informed consent cases.
        
        FORSEEABILITY
        
        Reasonable person considers foreseeable risks of injury
      - 2) a statutory duty that is in place of or addition to the initial duty
        
        The standard of conduct of a reasonable man may be
        
        Established by a legislative enactment or administrative regulation which so provides, OR
        
        Adopted by a court from a legislative enactment or administrative regulation which does NOT so provide
        
        If Std is Not required by statue...
        
        Court determines whether to borrow form the statute to establish the applicable standard of care
        
        Jury then determines whether that standard is volated
        
        If court declines to borrow the standard used in the statute, then jury uses normal "reasonably prudent person" standard
        
        Negligence “per se”
        
        An actor is negligent if, without excuse,
        
        the actor violates a statute that is appropriate to adopt as a standard of care,
        
        is designed to protect against the type of accident the actor’s conduct causes, and
        
        the accident victim is within the class of persons the statute is designed to protect
        
        Excused Violations
        
        Even if Negligence Per Se applies and standard of statute is applied and clearly violated, the defendant may escape liability because there was a legally sufficient reason for his violation
        
        If such an excuse exists, then there is no negligence from violating the standard of care established by the statute
        
        Violation of statute is excused if:
        
        Violation is reasonable because of actor’s incapacity
        
        Actor neither knows nor should know of occasion for compliance (but note is generally a duty to know relevant laws)
        
        Unable after reasonable diligence to comply
        
        Emergency not of his own making
        
        Compliance would involve a greater risk of harm
        
        whether statutory standard is appropriate is based on the following factors
        
        creation of duty not prest at common law
        
        statute sanctions inaction
        
        whether statutory standard is commonly known
        
        Is Standard in statute clear and circumscribed
        
        Potential to create liability without fault
        
        Potential that liability would be disproportionate to statutes conduct breach
    - - Decide whether the defendant owed a duty of care
      - decide what the scope of that duty was
    - - Personal (Juror) intuition / experience
      - balancing of perceived societal interests
      - Custom
      - B < PL efficiency approach
      - Special Defendants (Talented, disabled, children, professonals)
      - RULES:
        
        Judge made/common law
        
        Statutory
  - - - CIRCUMSTANTIAL EVIDENCE
        
        there is no direct evidence of what occurred
        
        Often involve situations where specific tortfeasor is impossible to know, but defendant is identified as a person with obligation to maintain a safe area (e.g., store keepers)
        
        As such, proving length of time adverse condition existed is a central element of proving that the defendant did not fulfill his duty
      - RES IPSA LOQUITUR (THE THING SPEAKS FOR ITSELF)
        
        even when circumstantial evidence is unavailable, sometimes we can still infer facts
        
        Allows negligence to be “inferred” even in the complete absence of corroborating direct or circumstantial evidence
        
        That is, Plaintiff doesn’t know what happened and can’t find out what happened, yet nevertheless the MERE FACT that the harm occurred INDICATES there must have been negligence so case can proceed.
        
        That is, harm really only occurs if someone was negligent so no need to prove it with actual facts
        
        Plaintiffs Burdens
        
        Plead enough facts to avoid being dismissed for failure to state a claim
        
        Come forward with enough facts to avoid the judge deciding as a matter of law in favor of defendant (summary judgement or directed verdict) [i.e., judge feels reasonable jurors COULD NOT find for plaintiff]
        
        Convincing jury by preponderance (MLTN) standard
        
        Res Ipsa essentially goes to the first 2 of those burdens, by creating an inference that negligence occurred (even without corroborating evidence) that is sufficient to sustain the pleadings and create a triable issue for the jury.
        
        Res Ipsa Elements
        
        For res ipsa to apply, plaintiff must show:
        
        Accident was probably caused by instrumentality in control of defendant, and
        
        Accident ordinarily would not occur unless unreasonable conduct involved (i.e., past experience supports inference)
      - DIRECT EVIDENCE
        
        Sometimes, facts are clear. Witnesses, video, defendant admits to his actions
      - Plaintiff bears burden of proof for their prima facie case, including negligence.
        
        But when no direct evidence (e.g., Mr. X reported (or saw) at __ time) regarding when condition arose, hard to prove.
        
        Condition of hazard (peel black, milk warm, etc.)
        
        So, try to show general pattern of negligence, that defendant did not regularly examine for hazards
        
        Or that area was set up in a way prone to hazards
        
        Some courts shift blame to defendant to prove he was not negligent in monitoring , but this makes defendant more like an insurer
- - - - Pure: damage allocation based on a pure pro-rata % basis
        (split damages based
        on the share of fault or responsibility)
    - - Modified: split damages based
        on the share of fault or responsibility unless plaintiff is
        more at fault than defendant (more than 50%)
        
        Since 1980, Comparative Negligence
        
        If Plaintiff MORE THAN 50% at fault, then NO RECOVERY ALLOWED
        
        So can be a 50%/50% split if exactly equal fault
        
        Otherwise, % recovery allowed to plaintiff
        
        Ohio Approach
    - - Simple fairness concept: If Plaintiff can do things after the tort that would reduce the harm, he should do them. Such damages are AVOIDABLE, and Defendant should not be responsible for things plaintiff could avoid.
      - So, damage award may be reduced to extent damages attributable to plaintiff not taking reasonable steps aimed at mitigation
  - - - Express Contractual release from liability.
      - General rule is people should be allowed to assume risk if they want to.
      - Whether contractual exculpation is effective depends on the validity of the consent
        
        Were the risks understood and appreciated
        
        Were the risks voluntarily and freely assumed
        
        Tunkl factors:
        
        Public regulation needed
        
        Service of great public importance
        
        Open to pubic
        
        Need for service gives provider unequal power
        
        No option to pay more to obtain protection from risk
        
        Defendant has control over plaintiff during service
      - And, consent would not be against public policy
    - - PRIMARY assumption of risk
        
        For primary, society deems the plaintiff’s action to assume risk to be reasonable and hence no liability on defendant .assumption of risk still often completely bars plaintiff recovery
        
        Essentially a conclusion that no duty exists (so alternatively could just say plaintiff has not make out their prima facie case for negligence)
        
        IF society norms make behavior acceptable and tolerated, then can’t sue. Justify since either you knew rules society was playing by and implicitly agreed to them. OR in society our reasonably prudent person would not have protected against risk (no duty).
      - SECONDARY assumption of risk
        
        For secondary, subsume into comparative negligence analysis
        
        Plaintiff voluntarily assumes risk (subjectively), but a REASONABLE person would not have.
        
        In this case, essentially this is form of negligence on plaintiff’s part and it should be addressed under comparative negligence rules rather than being a complete bar to any recovery.
        
        Note difference from Primary, where society deems plaintiff’s action to assume risk to be reasonable and hence no liability on defendant since everyone was acting reasonably.
      - Traditionally a complete bar to plaintiff’s recovery on ground that even though no actual contract, the plaintiff had impliedly agreed to take on risk regardless of potential for negligence by defendant
        Today, concept largely rejected or circumscribed to specific situations
        
        Traditional elements
        
        P has actual knowledge of particular risk
        
        P actually appreciates magnitude of risk
        
        P nevertheless voluntarily encounters risk
        
        NOTE: subjective test.
        
        Like Contributory Negligence, it can be a harsh rule. If Plaintiff is treated as impliedly assuming risk, then ZERO recovery
  - - - • A plaintiff could still recover damages if the jury found that the defendant had the last clear chance to avoid the accident.
      - Also all or nothing – if plaintiff proved defendant had last clear chance, plaintiff was eligible to full recovery of damages.
- - - - Allow if aimed at obtaining insurance recovery
      - repealed for intentional torts
      - Allow for normal child rearing activities
      - repealed for negligence outside of parental sphere (e.g., car accidents)