Principles of Tort Law
Author:
Shapo, Marshall S.
Edition:
4th
Copyright Date:
2016
54 chapters
have results for athlete injuries
Chapter Thirty. Implied Assumption of Risk: Generally 34 results (showing 5 best matches)
- The use of the terms sports and recreation conjunctively in this section suggests that there is not a clear line between the two. Obviously, there will be many activities where both professionals and amateurs suffer the same kind of injury. For example, both professionals and weekend athletes engage in such diverse activities as baseball, automobile racing and skiing. Sometimes, however, courts have drawn distinctions based on whether the plaintiff is a professional: they may view professional athletes as behaving more voluntarily, and perhaps more knowledgeably, than people who engage in risky activities simply for recreation.
- Decisions on professional sports injuries have also employed the terminology of obviousness, sometimes linking it with assumption of risk. In a tennis case involving Wightman Cup matches, the court reversed a verdict for a competitor who suffered severe knee injuries when she fell on an indoor court surface marketed by the defendant. There was testimony from several athletes, including the plaintiff, that they were aware of bubbles and gaps in the seams of the court surface when they practiced on it. Under a state assumption of risk standard that required either that the plaintiff have actual knowledge of a danger or that it was patently obvious, the appellate court concluded that it was error for the trial court not to instruct on assumption of risk.
- , the court denied recovery, rejecting the plaintiff’s claims that the other jockey had committed a tort by “foul riding,” and that the race track owner was negligent in its watering and grooming of the track. The court spoke of an athlete’s implied “consent” to certain dangerous aspects of his sport, specifically to dangers that “are inherent in the sport” and “are recognized as such” by the athlete. Focusing on the plaintiff’s status as a professional, the court said that a professional athlete is “more aware of the dangers of the activity, and presumably more willing to accept them in exchange for a salary, than is an amateur.”
- Courts have extended the requirement that the plaintiff specifically know of a risk to kinds of injury as well as types of accident. In a case in which a worker suffered an amputation at the elbow when he was using an industrial machine, the defendant emphasized that the plaintiff said that he had known that he risked “serious injury to his hand” from the way he was using the machine. However, upholding a plaintiff’s judgment, the court focused on the plaintiff’s testimony that he interpreted “serious injury” to include the possibility that he “could have badly bruised” himself or “could have even lost a finger.” The plaintiff said he had not at all considered that he could “lose an entire arm,” declaring that he “never dreamed” of that possibility.
- Professional sports provides an interesting menu of doctrines tied in with the assumption of risk idea. The decisions are relatively few, but they are particularly instructive, perhaps because of the intensity of the competition they reflect. Manifesting the level of violence in professional football in particular is a 1992 statistic for the National Football League. By early December of that season, 482 players suffered injuries serious enough to miss at least one game: an average of 17 players per team. One star player said that “one of the first things you notice in this league is how steadily people step in and out of the lineup because of injuries. After a while you hardly notice it any more. You just go on.” As a college trainer who had studied NFL injuries summarized it, “[t]he game is one of collision, and people get hurt.”
- Open Chapter
Section Eight. Proof and Causation 8 results (showing 5 best matches)
- A simple case involving an athletic conditioning exercise illustrates the kind of facts on which a court may allow a jury to find negligence in an everyday situation. A girl sued her school for injuries that occurred when she fell during the exercise, which required her to keep stepping on and off a bench. There was evidence from which a jury could have found that the bench had been placed on uneven ground. The plaintiff had been rowing for one to two-and-one-half hours before she participated in this exercise, her coach did not see her fall, and there were no “spotters” for the exercise. The plaintiff simply testified that she “fell off the bench.” Given this evidence, the trial court directed a verdict for the school, but the appellate court reversed. The appellate court concluded that the jury could have found negligence in the positioning of the bench for young, fatigued athletes, or negligence in the supervision of the exercise.
- To allow a jury to find negligence in the case, at least by defining what is unacceptable, would provide a signal that would influence conduct toward a safer level of bench stability. It might also more generally encourage the adoption of safety measures in school sports exercises. Thus, in deciding whether there were factual questions for the jury concerning both negligence and causation, the court would be making a particularized judgment about the substantive negligence standards that govern supervision of school athletes by coaches.
- The plaintiff in an injury case has the burden of proof, that is, the plaintiff must establish, among other things, that it was more probable than not that the defendant was negligent, or made a defective product, and that the culpability or defect caused the plaintiff’s injury. The focus in this chapter is on proof of negligence, but the analysis may be applied by analogy to proof of product defects.
- With respect to the deterrence rationale, if one views the principal purpose of negligence law as setting a permissible level of risky conduct, that perspective will affect the character of proof rules. For example, in the case of the school athlete summarized above,
- A contrasting view of the proper legal standard appears in a case involving allegations that emissions of the chemical radioiodine, a byproduct of a process of plutonium production, had caused illness to people living around the facility where that process took place. The plaintiffs contended for use of the “ ‘substantial factor’ causation” test, given that “other factors could have contributed to their illnesses, such as smoking and genetics.” However, in concluding that the trial court was correct in using the more stringent “but-for” test, the appellate court viewed the plaintiffs as “appear[ing] to rely” on a type of “substantial factor causation … which applies when there have been ‘multiple, independent causes,’ each of which alone is sufficient to cause the injury.” It found unpersuasive what it characterized as the plaintiffs’ attempt to “expand the substantial factor doctrine … when there are potentially multiple causes of each plaintiff’s injury, even though Plaintiffs...
- Open Chapter
Chapter Sixty-Four. Economic Loss 11 results (showing 5 best matches)
- The distinction between personal injury and economic loss is important because plaintiffs who suffer personal injury can recover tort damages for a variety of losses stemming from that injury. The most common pecuniary consequences of personal injury for which These are, truly, economic losses, but the fact that they result from personal injury makes them compensable in tort. Courts also routinely uphold tort awards for such intangible harms related to personal injury as pain and suffering.
- An important set of issues arises under the general question of whether there should be tort liability for “economic loss.” What courts refer to as the “economic loss rule” has denied liability, with the decisions drawing a sharp distinction between “personal injury” and “property damage,” both of which are compensable, and “economic loss,” which is not. Economic loss, in this sense, includes damages like the loss of business opportunities or profits resulting from tortious conduct, rather than the quantifiable costs of personal injuries or the replacement cost of property that has been damaged or destroyed.
- In cases involving accidents not subject to pre-bargaining allocation of loss, courts have invoked a number of reasons for limiting or denying liability for economic loss. These reasons often replicate the rationales for finding that there is no duty with respect to a particular type of injury, or that the injury was not “proximately caused” by the defendant’s negligence. Courts fear fraudulent claims and they oppose the imposition of a “liability out of proportion to the defendant’s fault.”
- However, most courts refuse to give tort recovery where the injury consists of no more than internal damage to or a devaluation of a product purchased by the plaintiff.
- An Ohio decision, frequently cited, presented a parade of hypothetical horribles while denying recovery to an employee who lost wages for several days because of a fire attributable to the defendant’s storage of explosive materials near the plaintiff’s place of work. The court said that if it allowed recovery beyond “personal injuries or physical property damage … to everyone who has suffered an economic loss, … we might well be appalled by the results that would follow.” The court gave, among other examples, these instances:
- Open Chapter
Section Ten. Duty and Proximate Cause 19 results (showing 5 best matches)
- involved language in the FELA that made railroads liable for the injuries or deaths of employees “resulting in whole or in part from the negligence of” the defendant. The plaintiff was a locomotive engineer who suffered injuries from using a hand-operated independent brake during the “frequent starts and stops” on a train, the configuration of which he had protested was unsafe. Justice Ginsburg spoke for a plurality that affirmed a plaintiff’s judgment that was reduced for comparative fault. At issue was a pattern instruction used by the Seventh Circuit in FELA cases, which said that “Defendant ‘caused or contributed to’ Plaintiff’s injury if Defendant’s negligence played a part—no matter how small—in bringing about the injury.” The defendant railroad argued ...of proximate causation is a ‘direct relationship between the injury asserted and the injurious conduct alleged’ ” and should have included the idea that “proximate cause” meant “any cause which, in natural or... ...injury...
- Examples of this sort of result are cases where forces unleashed by the defendant’s negligence cause injuries beyond the time or place that might ordinarily be predicted, cases where the manner in which the injury occurs is unusual, and cases in which the harm to the plaintiff or the plaintiff’s interests is indirect or of a kind that is difficult to calculate. The question always presented is whether an initially negligent defendant should be liable for these injuries.
- Others, opposing liability, would fix on the relatively long time and the geographical distance between the initial accident and the injury. They also would offer the argument—embedded in the notion of “a fortuitous event”—that there are some injuries we simply must accept, without compensation, as part of the risk of living. Opponents of liability would add that those unhappy with that result from perspectives of justice or compassion must look to legislative alternatives, including activity-based compensation systems like workers compensation or broader social security programs for income maintenance.
- (3) an “intervening cause,” such as the act of a third party, “broke the chain of causation” between the negligence and the injury
- (5) the plaintiff’s injury was “too remote” from the defendant’s negligence to justify recovery
- Open Chapter
Chapter Sixty-One. Bystanders 20 results (showing 5 best matches)
- Waube v. Warrington, 258 N.W. 497, 501 (Wis.1935). See also Naquin v. Elevating Boats LLC, 744 F.3d 927 (5th Cir. 2014), In this case, although the plaintiff suffered physical injuries when a crane toppled over, allegedly because of a defendant’s negligence, the court denied recovery for emotional harm attributable to his witnessing the death of a cousin who was crushed by the crane. The court concluded that “emotional damages resulting purely from another person’s injury, and not a fear of injury to one’s self, are not compensable under the Jones Act.” The court said that this limiting rule applied “even when the plaintiff has also been injured,” declaring that “[t]o award damages for observing a ‘bad sight,’ even one which involves a family member, would contravene the zone of danger test’s intent to compensate for physical dangers.” Part of its reasoning was that “[i]f multiple people witness an injury to someone else, it would be arbitrary to award emotional damages for...
- [c]lose relatives suffer serious, even debilitating, emotional reactions to the injury, death, serious illness, and evident suffering of loved ones. These reactions occur regardless of the cause of the loved one’s illness, injury, or death. That relatives will have severe emotional distress is an unavoidable aspect of the “human condition.”
- The factual situation that generates the legal issues occurs when a defendant negligently causes physical injury to A, and B sues for injuries that resulted from witnessing or hearing about the incident. One class of case, essentially a straightforward example of negligent infliction of emotional distress and apt to be labeled that way, arises when a witness to a physical injury to another was himself physically endangered by the defendant’s conduct and suffers emotional consequences from the incident. This type of plaintiff is at the boundary between direct victim and bystander, being in a position
- Further illustrating that tension, there has been some controversy about a second limitation, requiring that the “bystander” must directly observe the injury to the initial victim. Courts searching for ways to restrict liability will seize upon this requirement to deny recovery to plaintiffs who were not present at an accident scene. The California court drew a rather firm line against a mother who “neither saw nor heard” an accident in which her son was injured but “rushed to the scene where she saw her bloody and unconscious child, whom she believed was dead, lying in the roadway.” A majority held that it was appropriate to give summary judgment to the defendant although the mother alleged “great emotional disturbance, shock, and injury to her nervous system.” Saying that it was “unavoidable” to “draw[ ] arbitrary lines” in order to “limit liability” and necessary to “establish meaningful rules” to guide “litigants and lower courts,” the court required that the bystander plaintiff...
- A challenging argument that opposes bystander recovery entirely is a very simple one. It arises from the fact that most bystanders who have won recoveries are relatives, and usually close relatives, of the initial victim. Defendants will argue that awards of compensation to family bystanders, at least those based on emotional distress, are likely to have a significant component of payment for injuries to kin relationships. Stressing the difficulty of valuing those interests, they will contend that in the case of an injury directly caused to only one person, justice ordinarily should require no recovery for emotional injury to family members beyond that in favor of the direct victim.
- Open Chapter
Section Twelve. Damages in Tort Law 30 results (showing 5 best matches)
- The category of “noneconomic loss” for personal injury, discussed in the next chapter, includes damages for items that cannot be quantified through exchange values. The quantitatively most significant type of “noneconomic loss” for personal injury is pain and suffering.
- In addition to losses already incurred at the time of trial, the categories of both economic and noneconomic damages include anticipated future harm—losses that will occur after trial because of a personal injury. The law has uncontroversially recognized categories like loss of earnings, medical bills, and pain and suffering as proper items of compensation for future losses. More of a subject of dispute have been claims for other types of future injuries. Those headings of loss, discussed above, include enhanced risk of illness resulting from the defendant’s conduct or product—entirely a risk rather than a present injury; reasonable fear of illness, which some courts have viewed as a present injury because it afflicts the plaintiff at the time of trial; and the cost of medical surveillance to keep an eye on the potential development of illness about which there is reason to be concerned.
- In a policy perspective very different from that of economic analysis, the question of what appropriate compensation is for personal injury resolves itself into an issue of human dignity. When one views the subject from this perspective, the substantive basis for tort may overlap with the rationales for damages. For example, a medieval Jewish text indicates that the same injury arguably could support different levels of compensation depending on how the injury was inflicted. One rabbi indicated in a commentary that if someone slapped another person, he would have to pay him 200 This difference in the level of damages suggests that it is as if two rather similar offensive acts were two different torts because of their differing impact on dignitary interests. The rabbinical commentary illustrates how the dignitary rationale provides a bridge from economic damages for personal injury to noneconomic damages, on which the next chapter focuses.
- A case arising under a survival statute with an unusual restriction shows how the statute can be used in a creative way. In this case, a wife had initiated a medical malpractice claims process for her husband’s death. While that process was going on, the wife died. Her personal representative sought to recover on the malpractice claim under the Indiana survival statute, which allowed claims by a personal representative “when a person … receives personal injuries caused by the wrongful act or omission of another … and … subsequently dies from causes other than those personal injuries.” Another provision of the statute allowed a personal representative of a “deceased party” who died with a cause of action to bring suit. The court concluded that to the extent that the plaintiff as personal representative of the wife had “assert[ed] claims for ‘personal injuries’ ” to the deceased husband, those claims would survive the wife’s death because the wife, and not the husband, was “the...
- This chapter and the next one analyze theories of compensatory damages for personal injury in two major categories. The one discussed in this chapter, “economic loss,” represents the pecuniary consequences of personal injury that have direct marketplace equivalents. These include medical bills, lost earnings and household services.
- Open Chapter
Chapter Thirty-Seven. Public Nuisance 6 results (showing 5 best matches)
- An exhaustive study of public nuisance doctrine concludes with a proposal for a standard of “actual community injury” as a test for recovery of damages or entitlement to injunctive relief. The author would require a showing of “an actual or threatened injury in common with the community that was the subject of the nuisance.” She defines “injury” to include “environmental and aesthetic injury,” suggesting that a court could draw on “administrative law principles of the jurisdiction” that might recognize “aesthetic, conservational, and cultural losses.” Denise Antolini, Modernizing Public Nuisance: Solving the Paradox of the Special Injury Rule, 28 Ecology L. Q. 755, 862–63 (2001). Proposals for such a broadened standard would obviously generate controversy over the substantial costs they might shift from community plaintiffs to industry. An argument for such proposals is that they could “provide important supplemental paths for community and environmental justice” “[w]hen...
- Because litigation over alleged public nuisances frequently will involve large numbers of potential plaintiffs, the rules concerning both damages and injunctions for public nuisance seek to establish administrative limits on the ability to sue. The courts must balance the rights of people who have in fact suffered injuries against the potential burdens to defendants and systemic inefficiencies posed when scores or even thousands of litigants sue for essentially the same injury, attributed to the same source.
- Plaintiffs may also sue for serious interferences with use of property when they can distinguish their injuries from those of the public at large. Illustrative is a suit against petroleum companies for the contamination of well water by a chemical used to increase the oxygen content of gasoline. The plaintiffs alleged a “serious interference with the use, benefit and/or enjoyment of their properties.” The court ruled that the plaintiffs, who “rel[ied] on their wells for their drinking and household water,” had met the “special injury” requirement when they alleged that “[m]uch of the population” of the states where they lived was “served from surface water that is not susceptible to the problems caused” by the chemical in groundwater. The court also noted that “public water supplies that rely on groundwater are monitored for safety, unlike plaintiffs’ private wells.”
- lawsuits are the last defense against corporate wrongdoers who fail in their duty to safeguard the public interest,” id. at 366, in an era in which “injuries will increasingly take the form of public health catastrophes where the injuries may be latent and probabilistic.” Id. at 373.
- Under this standard, anyone who suffers personal injury from a public nuisance can recover damages for it.
- Open Chapter
Chapter Seven. Battery 7 results (showing 5 best matches)
- A different linguistic approach appears in a Utah decision spelling out that court’s interpretation of its own “intentional injury exception” to “require[ ] a specific mental state in which the actor knew or expected that injury would be the consequence of his action.” In a case in which the claimant’s supervisors ordered her to implement a process that they “knew or should have known … would create noxious, dangerous, and harmful vapors,” the court distinguished between intent and motive, saying that “an intentional injury may arise in instances where the employer intentionally placed an employee in harm’s way, but the employer’s motive was to increase profits—not to inflict injury.” Under the standard it adopted, the court said, “the employer or supervisor must know or expect that the assigned task will injure the particular employee that undertakes it”—“[i]n other words, the employer must know or expect that a specific employee will be injured doing a specific task.” This “...injury
- court put the principle in rather general terms, saying that “[t]he rule of damages in actions for torts” was “that the wrongdoer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him.” Courts sometimes apply even to negligence cases a principle of liability for unforeseeable consequences, utilizing the so-called “eggshell skull” rule, which makes a defendant “take his victim as he finds him,” including the victim’s unusual susceptibilities to injury. All we need emphasize here is that those who commit “intentional torts” are liable for unforeseeable harms.
- ...tied up” with a wire. The only time that the guard would be lowered into place was when inspectors for the Occupational Safety and Health Administration (OSHA) came to the plant, and as soon as they left, the guard would again be lifted out of place. There had been “close calls” for the plaintiff and a fellow employee whose gloves had been ripped off when they put their hands into the unguarded part of the machine. On three occasions “immediately preceding” his injury, the plaintiff had asked his supervisor to put the guard back into operation. The supervisor, walking away, replied that the matter was “not a problem.” The employer admitted that “the guard was removed for ‘speed and convenience.’ ” Given all this evidence, and obviously strongly influenced by the fact that the employer had “deliberately and systematically deceive[d] OSHA into believing that the machine [was] guarded,” the court reversed a dismissal. Under a statutory provision that allowed employees to sue in...
- illustrates the bridging of the two concepts. In that case, the almost twelve-year-old defendant kicked the fourteen-year-old plaintiff “a little below the knee” after the teacher had called the class to order. The jury found, on a special verdict, that the defendant did not intend to do the plaintiff “any harm.” However, harm ensued, in the form of a disabling injury to the plaintiff’s leg, which evidently was triggered, unforeseeably, by the defendant’s kick. The case thus presented a classic example of an intended touching with an unintended result, a serious physical harm.
- important is workers’ compensation. In that body of law, claimants are typically limited to recovery for workplace injuries to the benefits provided by the statutory compensation scheme. However, under the workers’ compensation statutes of a number of states, an exception to this general rule of “exclusivity” is for conduct labeled with terminology like “intentional wrongs.” In those cases, the worker may sue an employer in tort.
- Open Chapter
Chapter Twenty-Two. Statutory Violations 8 results (showing 5 best matches)
- caused an injury, but the defendant argues that the injury was not within the purpose of the statute. A simple, antiquarian example is the case in which a defendant injures someone while driving carefully on Sunday in a jurisdiction where Sunday driving is prohibited. The plaintiff would contend that the defendant’s violation of the Sunday driving statute conclusively establishes liability for the injuries, since they would not have occurred except for the violation. The defendant would argue that the purpose of the statute is solely a religious one and not to reduce accidents and that therefore the duty created by the statute did not apply to this violation and to an injury associated with safe driving. We discuss this set of problems more fully below.
- Safety legislation establishes categories of forbidden conduct in advance of that conduct, whereas courts adjudicate specific cases of injury in light of particular circumstances existing at the time of the injury. Because legislation generally outranks judge-made law, statutes that set precise standards concerning tort liability are superior to common law rules. However, the issues discussed in this chapter often arise because it is unclear whether the legislature intended the statutes at issue to affect the common law, or what effect it intended them to have.
- Tort law originated as common law and has continued to build on that foundation. However, legislatures have enacted statutes with substantial impact on the domain of tort law, including its safety and compensation goals. Every state has removed a large portion of workplace injuries from the sphere of tort through the mechanism of workers’ compensation statutes, and many states have enacted statutes that codify or change the common law in particular areas of torts, for example, products liability.
- Another type of statute that will trigger this stringent form of liability is one that requires school bus drivers to tell students to cross in front of the bus when they leave the vehicle and says that drivers must flash their signal lights until the students have reached the other side of the highway. In holding that a bus driver’s violation of such a statute entailed “absolute liability” for fatal injuries to a student, the New York Court of Appeals pointed to the specificity of statutory purpose, calling it “a matter of common knowledge” that
- There is theoretical controversy about the desirability of applying negligence per se. Application of the doctrine may be expected to have significant deterrence consequences, because it provides monetary sanctions beyond those that public enforcement of the regulatory statute would impose. However, an argument against the doctrine inheres in the very fact that the tort damages for personal injury resulting from a statutory violation may be considerably greater than the relatively small fines that statutory breaches often entail. In addition, those who oppose a negligence per se rule argue that when a statute does not specifically declare that it sets a tort standard—as most safety statutes do not—courts should not interpret it to be dispositive on the negligence issue. Courts that
- Open Chapter
Chapter Nineteen. Doctrine and Terminology of Negligence 21 results (showing 5 best matches)
- An important reason that the law focuses on the frequency of injury associated with certain kinds of conduct lies in the value of predictability. The ability to predict the likelihood of a type of event has an obvious relation to fairness concerns. It also relates to the ability of actors to secure insurance against events of that kind, for insurers must be able to calculate the risks of occurrences that cause injury.
- Besides winning adherents among some courts and commentators, this “Learned Hand test” has also attracted economists who analyze tort rules, drawn to its implicit premise that the reasonable person is the efficient person. That person is one who will devote resources to avoiding accidents when it is efficient to do so, but only when it is efficient. She compares accident avoidance costs—B in Judge Hand’s formula—with accident costs—PL in Judge Hand’s terms. So long as the costs of avoiding an injury are less than the costs of the injury, the failure to take the precaution that would avoid the injury is negligence, for the reasonable person will spend the money necessary to avoid the injury. This is so even where the probability of an injury is very low, “if the costs of protecting against it are even lower.”
- See Bammerlin v. Navistar Int’l Transp. Corp., 30 F.3d 898, 902 (7th Cir.1994), which involved a jury award of $500,000. The court hypothesizes differing, low probabilities of injury as multipliers for the jury award and compares the injury costs figured on the basis of those probabilities with assumed avoidance costs.
- Many people will react negatively to this way of looking at things, but two aspects of the Coase analysis must be kept in mind. The first is its assumption of no transaction costs, which is not usually the case in situations involving personal injury. Typically, for example, potential plaintiffs cannot bargain costlessly with potential injurers in order to prevent or minimize injuries. A practical consequence of the Coase analysis is that the law should tilt toward imposing accident costs on the party who can avoid injury most cheaply—the “least cost avoider.” Another important point is that this form of analysis focuses only on efficient resource allocation. It does not take into account considerations of fairness or morality. The value of the Coase theorem from an analytical point of view is that it requires those deciding injury cases to be clear about what their economic assumptions are—including assumptions about who is the least cost avoider—and that it forces decisionmakers...
- , and the case of the crane boom and the electric wires, exemplify the refusal to impose liability for injuries resulting from risks that are not predictable to the ordinary observer. They also suggest that the low probability, or even novelty, of a particular type of occurrence will affect a court’s judgment of whether it was negligence to create the conditions that allegedly led to an accident: to put it colloquially, the law will not find conduct negligent if the risk will cause injury “once in a blue moon.”
- Open Chapter
Chapter Seventy-Two. Assessing Intangibles 18 results (showing 5 best matches)
- Another method of reviewing awards for injuries with intangible features draws on averages of past judicial decisions. Courts are likely to do this in attempting to quantify the value of an objectively definable kind of injury without a specific economic referent, for example, the loss of a limb. They also will do so in cases involving a range of physical and emotional injuries. One verbal formula for this kind of analysis requires the reduction of awards that “deviate materially” from awards permitted in a given jurisdiction for similar injuries. Illustrative is a decision reducing a $12 million dollar pain and suffering award for a mesothelioma victim, whose terrible suffering the court describes in clinical detail, to $3.5 million, based on prior awards in that federal district in mesothelioma cases.
- injuries: judges and lawyers may consult recent appellate decisions and reports of jury verdicts in an effort to triangulate the limits that appear tolerable for intangible losses, as well as tangible injuries, associated with loss of life. But especially in the case of awards for loss of affective relationships, this may be a daunting enterprise because of the difficulty of comparing the injuries alleged in the case at issue with descriptions in summaries of prior cases.
- Fear is a fairly standard item of tort damages. Besides generating factual issues concerning damages, fear may also be viewed as presenting a question of substantive law, defined as whether the defendant had a duty to the plaintiff with respect to the possibility that the defendant’s tortious conduct would cause fear. Some air crash cases present dramatic examples of an issue of damages for fear that at least implicitly presents a question of substantive law. This kind of issue often arises under the technical heading of survival statutes, which have been construed to provide a claim to the personal representative of a dead person for injuries the decedent suffered between the time of a tortious injury and death.
- A well-established item of tort damages, which takes the name consortium, represents an attempt to quantify intangible family relations. The primary ground for recovery of consortium damages has been the marital relation; however, some courts have extended compensation for consortium to children for injuries to their parents, especially fatal injuries, and to parents for the death of children. In one decision, which went so far as to allow consortium damages for the death of an adult child, the court remarked that “nature recoils from the suggestion that society, companionship and love which compose filial consortium automatically fade upon emancipation.” The court commented that “[s]ome filial relationships will be blessed with mutual caring and love from infancy through death.”
- Doubtless, courts that hold the line against recovery for the death of a fetus carried to term have in mind the logical slippery slope that liability might create, reaching to such cases as that of the stillborn pre-viable fetus. Ranged on the other side are opinions that stress the inequity of denying liability for the death of a fetus carried to term while allowing recovery for injuries to fetuses before they were viable, so long as they survived to be born alive. These opinions stress that modern medical knowledge diminishes any obstacles to proof of injury that previously may have justified a bar to recovery.
- Open Chapter
Section Nine. Multiple Tortfeasors 11 results (showing 5 best matches)
- Some difficult problems of justice in tort law arise when more than one party has been negligent or sold a defective product, and the plaintiff seeks to fix responsibility in tort on each of these multiple parties. In many of these cases, the plaintiff’s theory is that each defendant contributed to the specific injury. In some cases, particularly in the area of products liability, the plaintiff argues that each defendant should be liable because its product was probabilistically involved in the plaintiff’s injury on account of its involvement in many similar injuries.
- With respect to the plaintiff’s claim, a principal issue in cases of this kind is whether the court should impose what is commonly termed “joint” liability—that is, liability for the entire injury—on each of the defendants. (The frequently used term “joint and several liability” may have more than one connotation, depending on the jurisdiction, but usually it at least denotes that multiple defendants may be sued separately as well as joined together in one action.) Generally speaking, a plaintiff seeking to impose joint liability must show that she sustained an indivisible injury, by contrast with separable injuries that easily can be ascribed to individual defendants.
- The arguments against various forms of joint and multiple liabilities stem from the justice-centered concern that these doctrines enable a plaintiff to impose liability on a defendant for an injury, or a portion of an injury, that that defendant has not caused. Opponents of joint liability contend that the remedy departs from a most basic principle of tort law: the plaintiff has the burden of proof to show that the defendant’s culpable conduct caused the injury. They argue that it is especially unjust that under true joint liability, a defendant might well be held for an entire loss if its joint tortfeasors were insolvent or unreachable. Critics have also complained that
- must draw on the fact that both defendants were negligent. The case presented the problem of either imposing liability on two culpable persons for an injury which by hypothesis one of them may not have caused, or of letting both go entirely free and thus denying any recovery to the plaintiff.
- The most controversial modern applications of theories of multiple liability, some of which are not technically joint liability theories, have appeared in the area of products injuries. Courts have fashioned a small set of doctrines to impose liability on groups of producers for injuries to individuals, when each member of a group of defendants has made products that are essentially the same and the plaintiff cannot prove which defendant’s product caused the harm. One court has aptly characterized these theories as “non-identification theories” of liability, since typically the plaintiff in such cases asserts that he or she was not in a position to identify which of several companies sold the product at issue.
- Open Chapter
Section Six. Products Liability 17 results (showing 5 best matches)
- Many courts impose strict liability because they believe that fairness requires it. There are some different meanings of fairness in the environment of products injuries. An individualistic, party-centered view is that of corrective justice, which seeks to achieve, after the injury, a moral balancing between the plaintiff’s losses and the assumed gains of the defendant.
- A much more instrumental and societal view of fairness appears in the rationale of loss spreading. In its simplest form, loss spreading entails distribution of the financial cost of an injury, which occurs to one unfortunate user of a product, among the many satisfied users. The cost of the injury finds its way into the liability insurance premiums paid by the manufacturer, and then is reflected in the price all consumers pay. Critics of the spreading rationale will contend that such spreading of costs is a social justice function that is the business of the legislature, to be achieved through taxation, but several courts have found the idea congenial as a basis for tort decisions.
- Several courts have referred to the hurdles that warranty law presents to injured consumers as reasons for the adoption of strict liability. These features of warranty law include the requirement that consumers must give relatively prompt notice to sellers of their injuries, as well as the fact that in many cases, the application of statutes of limitations for warranty will favor sellers more than tort statutes of limitations. Moreover, often devastatingly from the consumer point of view, warranty law allows sellers to use although the Uniform Commercial Code makes limitations of damages “for injury to the person in the case of consumer goods … prima facie unconscionable.”
- In the 1960s, courts began articulately to recognize injuries from products as a special classification, under which consumers could sue in tort without having to show fault. Questions persist as to the strictness of strict products liability in some applications of the doctrine, but the
- A principal practical concern about imposing liability without fault for a design defect is that such a liability presumably will apply to every product of that line that causes injury because of the hazard at issue. This could create a potentially ruinous liability for many manufacturers, especially manufacturers of mass-produced products, rendered vulnerable to suits by anyone injured by the feature of a product that allegedly makes it defective. Opponents of this type of strict liability emphasize the disincentives to innovation it may cause, arguing that manufacturers may become unduly fearful about marketing new types of products.
- Open Chapter
End Notes 32 results (showing 5 best matches)
- Thomas Galligan explores various ways in which the model of tort law based on a single injury caused to one person by an identifiable other person falls short with respect to deterrence in The Risk of and Reactions to Underdeterrence in Torts, 70 Mo. L. Rev. 691 (2005). He focuses in part on the reality that many tortious activities cause “many injuries to many people,” id. at 702. Some reasons that tort law provides insufficient deterrence are that not all injured persons sue because they may not be able to “detect the wrongdoer’s identity or the wrongdoer’s connection to the injury,” id. at 711, and because of the “expense and effort” that litigation entails, id. at 703. Indeed, injury victims “may not sue because they are unaccustomed to or uncomfortable with legal institutions,” id. at 710–11. Some ways to enhance optimal deterrence where traditional tort law does not achieve it are class actions, “augmented awards” that take into account the damage caused to people who do not...
- Professor Geistfeld seeks to rationalize the “important attribute of negligence liability” that “[t]he legal valuation of harm for purposes of reasonable care differs from the monetization of injury for purposes of compensatory damages.” Mark Geistfeld, The Principle of Misalignment: Duty, Damages, and the Nature of Tort Liability, 121 Yale L.J. 142, 190 (2011). One foundation for Geistfeld’s analysis is his assertion that “[i]f tort law formulated the standard of reasonable care as a matter of economically cost-justified safety precautions, dutyholders would not incur their full compensatory obligations to rightsholders.” His argument depends in part on “empirical studies” finding “that judges and juries interpret reasonable care as requiring safety precautions in excess of the economically cost-justified amount when the risky conduct threatens serious bodily harm.” Id. at 187. Premising that “tort law is primarily concerned with the prevention of injury as opposed to the redress of
- , 104 Mich. L. Rev. 257 (2005), and David E. Bernstein, Learning the Wrong Lessons from “An American Tragedy”: A Critique of the Berger-Twerski Informed Choice Proposal, 104 Mich. L. Rev. 1961 (2006). Focusing on the difficulty of proving causation in injuries involving toxic products under , Berger and Twerski advocate the recognition of a “causation-free informed choice cause of action” for people who attribute injuries to prescription drugs, in which “a prima facie case for liability is established when a drug manufacturer fails to warn about a material risk and plaintiff subsequently suffers from that undisclosed risk.” Even if the plaintiff “cannot establish that the toxic agent caused her specific injury,” she may sue for emotional distress—for example, the distress caused by “ingest[ing] a drug that was not accompanied with adequate information about risks that she should have been informed of.” See 104 Mich. L. Rev. at 275, 282. They reason that the fact that “a toxic drug...
- ...injury as a ground for recovery is evident in a suit against the Veterans Administration under the Privacy Act in the wake of the disappearance from a safe of an external computer hard drive “containing the unencrypted names, social security numbers, birth dates, and healthcare files of more than 198,000 living veterans,” creating “a pocket-sized gold mine for identity thieves.” Two veterans sued for “the stress caused by their fear of identity theft and arising from their loss of trust in the VA as the provider of their medical care,” claiming that after this occurrence “the sleeplessness, isolation, anxiety, and anger that characterize their PTSD have grown worse than before.” The Eleventh Circuit rejected the suit on the ground that “[o]btaining monetary damages under [the Privacy Act] requires proof of ‘actual damages’ and in this circuit that means pecuniary losses.” The court quoted a precedent on the proposition “that ‘actual damages’ as used in the Privacy Act...
- They say that “the actual scope of actions in tort for personal injury is severely limited,” with data from 2011–12 indicating that 80 per cent of those claims in the UK were for injuries in motor accidents and 8 per cent for work accidents, events that are “at best, only about a half of all accidents,” and perhaps many fewer than that. They note that “there were 7.8 million accidents in the home in 1999 but in only 0.5 per cent was there the potential for a tort claim.” That, they say, “Is not only because fault is less readily apparent but also because, in the absence of insurance, we are less inclined to think of seeking a remedy in tort.”
- Open Chapter
Chapter Thirty-Nine. Defect in Products Liability 12 results (showing 5 best matches)
- (2) The safety aspects of the product—the likelihood that it will cause injury, and the probable seriousness of the injury.
- The tensions in this area are evident in a Nevada decision that criticized comment k. In a case involving serious injuries to an infant caused by a vaccine, the court said that it saw “no public policy need for … shifting from the drug manufacturers to the consumer/victim the responsibility for all of the ‘unfortunate consequences’ ” that vaccines could cause. The court ruled in the context of a nationwide inoculation program, which it said gave “little or no choice” about whether to take the vaccine at issue. Confronting the argument that comment k was necessary to preserve the incentives to produce useful drugs, the court said that it was up to the legislature to decide “whether we should leave ‘unfortunate’ victims of drug injury to their own resources and free drug manufacturers from tort liability, on the unsubstantiated pretext that such a drastic measure is necessary in order to encourage drug research and development.”
- Comment e observes that “[s]everal courts” have indicated that the requirement does not apply to products whose designs are “manifestly unreasonable, in that they have low social utility and high degree of danger.” It provides as an example a “toy gun that shoots hard rubber pellets with sufficient velocity to cause injury to children.”
- The fact that products are in common use undoubtedly is a factor in judicial reluctance to call them defective. However, the argument against immunizing certain categories of products from liability for injuries caused by their inherent dangers is simply that all products
- Other decisions have given more leeway to juries. A federal judge’s instructions to the jury in a case involving automobile design referred to factors including the likelihood and seriousness of injury, and the defendant’s ability to eliminate unsafe product characteristics, as well as whether the product was dangerous beyond the expectations of an ordinary user. The instructions also told the jury that the manufacturer did not have to design a “crashproof” car “or to provide absolute safety against all risks of the road, but to provide reasonable safety against the foreseeable risks of the road.”
- Open Chapter
Section One. Tort Law and Its Purposes 33 results (showing 5 best matches)
- Indicative of the complex manner in which the rationales of tort law relate to one another is the way that both sides in injury disputes can use the same abstract moral and economic concepts. Illustratively, tort claimants may invoke the concept of individualism, emphasizing injury to their dignitary interests. At the same time, defendants who attribute the responsibility for injuries to claimants will rely on individualism by emphasizing that plaintiffs have made personal choices to confront risk. With that line of argument, they stress the autonomy of the individual. Another illustration of the way that both sides may use the same concept appears in the idea of communitarianism. Plaintiffs may stress the heightening of a sense of community when a personal injury verdict for culpable conduct “sends a message” that that type of conduct will not be tolerated. Defendants, melding economic theory with ideas of community, will argue that society as a whole will gain on occasions when...
- A more sophisticated definition of a tort is an event, arising out of the action or omission of another party, which causes injury to the human body or personality, to property, or to economic interests, in circumstances where the law deems it just to require compensation from the person who has acted or failed to act. When lawyers refer to tort law, they principally mean a body of judge-made law, that is, common law, that grows out of precedents derived from litigation about injuries.
- Plaintiffs claiming for personal injury in particular seek recovery for a range of injuries. The most easily quantified of these are past medical bills. Another staple of tort damages for economic loss is future earnings, although there may be vigorous argument in litigation about how much that should be. Other categories of tort awards include “noneconomic losses” like pain and suffering and harm to other intangible interests, including the affective and emotional values linked to the loss of loved ones; however, although these are established categories, they have become objects of political debate.
- Volumes of economic analysis have emphasized the search for the “cheapest cost avoider”—the party best situated to avoid injuries at the lowest cost—in situations that generate injury. One implication of this form of analysis is that the person who conducts a harmful activity may not always be the most efficient avoider of loss. For example, although it might seem the just result to place liability on a polluter, it might also be the case that those who suffer from pollution can more cheaply avoid injury, as by taking self-protective measures, than can a polluter who might have to adopt prohibitively expensive technology.
- For another broad summary of the institutional framework that surrounds tort law, see Am. Law Inst., 1 Enterprise Liability for Personal Injury (Reporters’ Study) 55–251 (1991). The Report “defend[s] the basic tort model as a valuable aspect of our personal injury system: this is the one institution which permits individual victims to call to account before a lay jury the enterprises whose activities have caused the victims harm.” 2 id. at 579. The Report does take a “relatively skeptical view of tort litigation as an injury prevention mechanism” and gives “an even bleaker evaluation of the tort system as a compensatory mechanism.” As to deterrence, however, it notes that sometimes it has taken “the threat of tort liability” to bring about “meaningful regulation” and says that “even with improvement,” regulation will continue to have “many gaps and deficiencies.” Concerning compensation, the Report opines that there is “no alternative but to attempt to coordinate in a more rational...
- Open Chapter
Chapter Fifty-Nine. Negligently Inflicted Emotional Distress 11 results (showing 5 best matches)
- In the first case, the parents of a stillborn child brought negligence claims against a hospital and physician for the failure to perform an autopsy on the infant, and for the delivery of the body to a mortuary and its disposal “in an unmarked, common grave without the knowledge or consent of either parent.” Responding to this sympathetic fact situation, the court rejected the contention that plaintiffs should have to show a “physical manifestation” in order to “guarantee the genuineness of claims for mental injury.” The court pointed out that the enhanced information provided by modern medicine on “the interaction between mind and body” had led to a recognition that “certain psychological injuries can be just as severe and debilitating as physical injuries.” The court found “[t]he distinction between physical injury and emotional distress” to be “no longer defensible.” It said that “[t]he problem is one of proof,” and that jurors were “best suited to determine whether and to what...
- The court found the “unqualified requirement of physical injury” to create a classification that was both “overinclusive and underinclusive when viewed in the light of its purported purpose of screening false claims.” It was “overinclusive” because of the rule that allowed recovery for emotional distress where there was “any physical injury whatever, no matter how trivial.” At the same time, the court criticized the rule as “underinclusive because it mechanically denies court access to claims that may well be valid and could be proved” at trial. The court added that the requirement of physical injury “encourages extravagant pleading and distorted testimony.”
- The obstacles to recovery are high, but not always insuperable, when the plaintiff suffers physical consequences from shock or fright although there is no direct impact by the defendant or its instrumentality on the plaintiff’s body. Some courts have been receptive to the plaintiff who suffers a shock from an immediate threat of injury, when that shock produces palpable physical harm. One leading case, the 1941 decision in caused “injuries such as would be elements of damage had a bodily injury been suffered.”
- It is generally accepted, even in states that refuse to recognize a general cause of action for negligently caused emotional distress, that when the defendant’s negligence causes an impact to the plaintiff’s body, the plaintiff may recover for emotional distress on a so-called parasitic basis. In this metaphor, the emotional distress damages become figuratively attached to any damages the jury may assess for physical injury resulting from the contact. Critics of restrictive rules on liability for emotional distress argue that it is not logical to deny recovery for what may be serious emotional harm that the defendant causes, although he does so without impact, when a slight impact allows the plaintiff to recover emotional distress damages even if the quantified loss for physical injury from the impact is trivial.
- which involved an unusual chain of events, indicate the difficulties of fashioning meaningful categories in this area. Although one theoretically might differentiate the injuries involved between mental and physical harms, both cases involved an initial trauma that led to a chain of psychological consequences. In the earlier of these cases, decided in 1928, there was at least an indirect impact on the plaintiff: she was riding in an auto that the defendant’s street car hit from the rear. She did not sustain a physical injury but did become hysterical for a brief period. Two months later in another city, a street car approached the plaintiff, clanking its bell. On this occasion, she again became hysterical, fainted and then became paralyzed. The court permitted recovery against the owner of the first street car, mentioning medical testimony that the paralysis “could be referred back” to “the nervous shock” “at the time of the collision.” ...the later “physical” injury stemmed from...
- Open Chapter
- The general rules of circumstantial evidence exhibit an important linkage of standards for proof of negligence with the rationales for tort law. For example, proof rules tie in with the goals of achieving fairness in injury disputes and of providing realistic signals for controlling behavior. To take two abstract hypotheticals, the proof rules teach us that it would be insufficient grounds to impose tort liability on A for B’s injury only because A was B’s employer at the time he died, or on X for no more reason than the fact that X’s machine was in the vicinity of Y at the time of an injury.
- 418 S.W.2d at 958–59. Cf. Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69 (3d Cir.1996), in which the plaintiff suffered injuries from a slip in a bathtub on a cruise ship. There were several abrasive strips in the tub, but the plaintiff did not recall whether her feet were on the strips when she fell. Her expert opined that “if there had been more stripping, it would be more likely than not” that the plaintiff “would not have fallen,” but he also said that a person could “fall in a bathtub under ordinary circumstances” and that bath oil and soap were “ ‘great variables’ that could have caused the fall.” The court concluded that without evidence on whether the plaintiff was standing on or off the strips when she fell, the jury would be “left to speculate” whether the cruise line’s failure to have more stripping in the tub “was the cause in fact of her injury.” Id. at 75.
- in which a woman’s body was found floating in a creek, specifically illustrates the connection between evidentiary rules and tort rationales. The court’s denial of recovery suggests a judgment that it would be unfair, in the name of compensation, to conclude that only because of the proximity of an accident victim to a defendant’s property or activities, negligence probably occurred and that negligence probably caused the injury. Because there is no probable connection between the defendant’s conduct and the accident, it would be arbitrary to construct such a connection.
- or maintenance of its bridge and sidewalk, then any safety measure the defendant might take in response to a liability judgment would not save lives lost in the way that the decedent lost hers. The proof rules thus embody a deterrence-based logic as well as a fairness-based view of compensation, demanding a reason that links conduct to an injury, even if the conduct is arguably substandard in the abstract.
- The key to the plaintiff’s case is the establishment of probabilities—both that the defendant was negligent and that the negligence is the most probable explanation for the injury. A plaintiff’s reliance on circumstantial evidence adds a step to the reasoning process that the jury brings to bear on direct evidence. The jury must make inferences from the circumstances alone, rather than being able to rely on the reported sensory perceptions of witnesses.
- Open Chapter
Chapter Fifty-Four. Settlement 9 results (showing 5 best matches)
- Another kind of case raises the twin problems of avoiding a situation where a D-2 judged culpable pays little or nothing and also avoiding substantial overcompensation to the plaintiff by the combined total of settlements and the jury award. In one case of this type, after a settlement with D-1 for a substantial amount, the plaintiff goes to verdict against D-2. The jury holds D-2 to be completely responsible, giving its opinion that the settling defendant was not at fault. It awards against D-2 a sum that presumably represents the total cost of the plaintiff’s injury, a sum compared with which the settlement is close in amount, if not more. That was the situation in a case where the settlement by two plaintiffs with two D-1’s—a surgeon and a partnership of anesthesiologists—was for $270,000 and the verdict against D-2, a hospital, was for $294,777. ...completely responsible, it would have paid only $24,777 on an injury that the jury found to be worth $294,777. The other part of...
- The general problem that confronts courts in deciding settlement issues includes several elements of policy, including concerns about equity, considerations of individualized justice and efficient judicial administration. Courts sometimes favor rules designed to assure that the plaintiff is fully compensated for his injuries through a combination of the jury award plus any settlement, but does not get a “windfall.” On other occasions, they will allow the plaintiff a sum from the jury award and the settlement together that totals more than the assessed injury costs, reasoning in part that the money paid in settlement is theoretically gratuitous, and that the officially sanctioned award is the only legally compelled payment. Faced with the difficulty of putting cases into neat boxes of principle, courts will try to figure out what result provides the most equitable solution. They will also pay attention to whether a rule seems likely to promote settlement, thus taking pressure off the...
- The court decided to credit the judgment against the chairman for the amount the university paid for its settlement. It reasoned that with the libel claim out of the picture, the gist of both the contract claim that the university and the plaintiff had settled, and of the interference claim, on which the plaintiff won a judgment against the chairman, was the same. Thus, essentially, there had been one loss from the nonrenewal of the plaintiff’s contract, a loss for which the compensation sources were the university’s settlement on the breach claim and the jury verdict against the chairman on the interference claim. The court reasoned that if it were not to credit the settlement on the judgment, the effect would be to make the plaintiff “more than whole” for the injury he suffered.
- This result certainly has the advantage of at least bringing home against D-2 a significant amount of the burden of the injury, relative to what D-2 would pay if the entire settlement were credited against the verdict, thus fostering deterrence. It is less clear how much effect it has with respect to putting pressure on D-2 to settle when the other parties settle.
- In such a situation, there is an obvious unfairness in allowing the non-settling defendant a full credit that permits it to pay very little for a severe injury. At the same time, one may argue that it is unfair not to allow at least some credit, since the plaintiff opted to accept a large settlement from the settling defendants. Courts must struggle to balance the equities in cases of this sort.
- Open Chapter
Section Two. Intentional Torts 3 results
- See Roscoe Pound, Interests of Personality, 28 Harv. L. Rev. 343, 357 (1915) (after moving to protect “group interest[s] against insult” and “a social interest against disorder,” and then individual interests against “physical injury” and “overcoming the will,” “[f]inally the law begins to take account of purely subjective mental injuries to a certain extent and even to regard infringement of another’s sensibilities”).
- The plaintiff must apprehend an imminent harmful or offensive physical contact. The requirement of a perception of imminent contact rests on the idea that the plaintiff could not fairly apprehend a contact that was not about to happen. A pragmatic basis for the requirement is a judgment that typically there will be insufficient validation of injury if the defendant was not in a position to touch the plaintiff immediately.
- The assault tort is as basic a tort theory as there is, yet it is perhaps the least litigated of the major tort doctrines. A practical reason that it is not often a focus of lawsuits is that the tort, by itself, typically will not afford an economic basis to accept a case for claimants’ lawyers who operate on contingency fees. Yet an analysis of the elements of the tort reveals bedrock qualities that symbolize how tort doctrines reflect tensions that infect all of injury law: tensions between personal dignity and freedom of movement; between objective and subjective tests; and concerning how far the law should go in protecting “mental,” as contrasted with purely “physical” interests.
- Open Chapter
Chapter Twenty-One. Liability of Possessors of Land for Third Party Acts 14 results (showing 5 best matches)
- An interesting comparison appears in two cases involving possessors of land who opened their premises for dancing. A California decision affirmed a judgment for a volunteer hostess at an armed forces canteen for injuries caused by her enthusiastic dance partner, a marine, who spun her around in a series of “wild jitterbug antics.” The court said that “the trier of fact could reasonably conclude that those in charge of the dance, in the exercise of due care, should have observed the marine’s conduct, realized that it was likely to result in injury, and stopped it.”
- ; in this chapter we concentrate on the standard of care for possessors with respect to injuries directly inflicted by third party acts, including crimes.
- Courts also have used civil rights legislation that incorporates constitutional rights to impose liability for injuries caused by prison violence.
- See Ellen Bublick, Citizen No-Duty Rules: Rape Victims and Comparative Fault, 99 Colum. L. Rev. 1413, 1417 n.19, discussing allowance of the defense by negligent tortfeasors in Restatement (Third) of Torts: Apportionment of Liability § 1 cmt. c, reporters’ note (Proposed Final Draft 1998), which said that “[w]hen several actors cause a single injury, comparative responsibility asks a court to treat the injury as a unit and compare the contributions of the various actors.”
- Those who open their land to the public for commercial purposes may be liable for injuries caused there by others, who posed risks with which the possessor failed to deal prudently. However, the liability rule hardly sweeps in every act of third parties; rather, courts hold possessors liable only for events that are foreseeable to the defendant or fact patterns presenting policy factors that make it just to require compensation from the defendant.
- Open Chapter
- Damages for “actual injury
- A closely related set of issues concerns the kinds of damages for which plaintiffs may recover. Crucial here is the definition of “actual injury,” for which the amplified its requirement of “actual injury,” the concept is relatively broad. In
- Although this interpretation is rather favorable to plaintiffs, some have contended that the Court’s requirement that plaintiffs show negligence to recover for “actual injury” is too favorable to defendants. Viewing that requirement as unduly restrictive in his dissenting opinion in ...both the culpability requirement of the decision and its damages rules. He contended that it was appropriate to impose strict liability in favor of private individuals who sue for defamation, noting that especially in cases of material defamatory on its face, “the publisher is no doubt aware from the nature of the material that it would be inherently damaging to reputation.” Justice White argued that when someone knows this and “publishes notwithstanding, knowing that he will inflict injury,” it is torturing words to claim that the defendant is “faultless.” Even if the publisher’s mistake is “in good faith,” Justice White stressed, “it is he who launched the publication knowing that it could ruin...
- The Supreme Court’s constitutionalized rules appear to have affected the definition of actionable defamation, tending to reduce whatever advantages private individuals may receive from “libel per se” doctrines. Under the constitutional rules, even a showing that material is defamatory without reference to extrinsic circumstances apparently will not entitle private individuals to “presumed” damages—those not based on “actual injury”—without a showing of
- , a private individual may recover damages for “actual injury” on a showing of negligence. But the sum of
- Open Chapter
Chapter Fifty-Seven. Intervening Criminal Acts and Other Tortious Behavior of Third Parties 6 results (showing 5 best matches)
- Other courts will talk in terms of duty, a concept that has the decided virtue of not invoking the idea of causation. Many decisions focus on foreseeability, and courts may stress the difference between general and specific foreseeability of particular kinds of crimes and injuries. All of these terms represent judicial attempts to solve the problem of justice inherent in a situation where an injury allegedly would not have occurred if the defendant had not been negligent but the direct cause of the harm was a third party, and often a criminal to boot.
- Cases like those summarized teach that although courts are generally reluctant to impose liability for injuries from the criminal acts of third parties, courts will impose a duty in some circumstances. These include situations where the defendant’s alleged carelessness relates to a very specific risk, as in the case of the “gun for hire” advertisement, or where a special relationship exists between the defendant and the plaintiff, for example, the relationship between landlord and tenant.
- A specialized problem in extended causation/duty cases involves intervening criminal acts and other tortious behavior of third parties. In many of these cases, the plaintiff sues A for an injury that B criminally inflicted on the plaintiff. The class of defendants in cases of this sort is quite varied, including people who legally possess firearms, psychotherapists whose patients assault others, and landlords on whose premises attacks take place. The plaintiff claims that the defendant contributed to the risk of the crime or tort that B committed, or failed to minimize a risk about which the defendant knew or should have known.
- Many courts have since required landlords to compensate tenants for injuries caused by the crimes of others. Demonstrating the vigor of this liability rule, a Louisiana decision refused to allow an apartment management firm to allocate fault to an unknown person who raped a tenant.
- ...also was evidence that a woman had been “sexually assaulted on the school grounds 15 days before the attack on the plaintiff” and the plaintiff tried to offer “evidence of various other kinds of attacks.” Overturning a directed verdict for the defendant, the court spoke of the “special duty” that schools owe to students, practically all of whom are minors, and who are “entrusted to a school” under the mandate of a compulsory attendance law. Saying that there were factual issues concerning whether the school should have taken precautions against such an attack, including the giving of warnings, the court sought abstractly to define the parameters of foreseeability. It declared that “foresight does not demand the precise and mechanical imagination of a Rube Goldberg nor a paranoid view of the universe,” summarizing a precedent on the idea that “the concept of foreseeability refers to generalized risks of the type of incident and injuries that occurred rather than predictability of...
- Open Chapter
Section Seven. The Boundaries of Fault 6 results (showing 5 best matches)
- Confronted with a problem of justice—an injury inflicted by conduct that was deliberate but not negligent, the
- Beyond these efforts to make sense of tort doctrine are broader policy questions about when it is appropriate to impose liability without a showing of fault. It may be useful here to refer to two types of legislative no-fault solutions to significant social problems of injuries caused by activities. One of these, workers’ compensation, is a universally adopted, comprehensive system that eliminates fault from the compensation inquiry. The other is no-fault legislation in the area of vehicle accidents, enacted in many states, which at least partially eliminates the tort liability action for injuries caused by vehicles, and substitutes insurance payments principally from the insurer of the person injured rather than the insurer of the injuring party.
- Both of these systems of compensation emphasize fairness as a basis for distributing losses from injury. To be sure, legislative no-fault compensation schemes aim to reduce administrative costs and hope to achieve efficient levels of accidents as at least a desired byproduct. At their core, however, these approaches to non-fault allocation of accident risks embody community judgments about the morally preferable distribution of losses resulting from injuries. Those policy judgments tie together these large-scale statutory schemes with the singular tort created in
- the court affirmed the overruling of a demurrer when the defendant dock owner un-moored the plaintiff’s sloop after the plaintiff had tied onto the dock in a storm. The result of the vessel being cast loose was that it was driven onto the shore, causing its destruction as well as injuries to the plaintiff and his family. The
- Under another theory previously mentioned, the appropriate classification is one that emphasizes the creation of nonreciprocal risk. Embracing a range of cases traditionally categorized under negligence, intentional tort, and strict liability categories, this theory rationalizes liability on fairness grounds “for injuries caused by a risk greater in degree and different in order from those created by the victim and imposed on the defendant.”
- Open Chapter
- The personal injury case went to trial and a jury awarded a very substantial amount to the plaintiff in that action, far exceeding the insured’s policy limits, the result of which was that the insured became indigent and suffered serious physical and emotional consequences. In upholding an award for the insured against the insurer, the California court summarized a spectrum of positions on the obligations of insurers. These included:
- captures the tensions inherent in claims alleging that insurers tortiously failed to settle cases against their policyholders. In this case, the insurer could have settled a personal injury action brought against its insured within the policy limits of a rather modest policy. Instead, basing its position on what the California Supreme Court called “blind faith” in its own experts’
- An interesting presentation of the issue, in which the social interests opposing the interfering behavior are substantial, appears in a case involving an insurer alleged to have engaged in “blacklisting” behavior. The plaintiffs were seamen who claimed that the defendant insurer required vessel owners to pay “exorbitant added premiums” to cover them for the plaintiffs’ employment on board ship. The plaintiffs alleged that the defendant had designated them as “high-risk seamen,” “not for legitimate risk-related reasons, but because they had filed personal injury claims” against the defendant’s insurance companies.
- Open Chapter
- Those who support a rigorous requirement of expert testimony also express the concern that failure to enforce such a standard would permit claimants to succeed on no more than a showing that an injury occurred during the rendition of professional services. This, they argue, could turn a tort system that requires a showing of fault into a compensation system that disregards culpability.
- Open Chapter
Index 7 results (showing 5 best matches)
Chapter Twenty-Seven. Informed Consent 3 results
- Causation is an important component of the materiality issue. If a particular piece of information is extraneous to the injury being sued upon, a physician’s failure to disclose that information will not be actionable. An example is a case in which the plaintiff said he would not have consented to an operation if he had known of the defendant’s use of cocaine. Where there was no evidence that the defendant’s drug use caused the plaintiff’s injury, the court concluded that the drug use was “too attenuated from the subject matter of the
- Henderson v. Milobsky, 595 F.2d 654, 659 (D.C.Cir.1978). Cf. Lauro v. Knowles, 785 A.2d 1140 (R.I.2001), in which the plaintiff suffered a corneal abrasion from the taping of her eyes during an operation on her wrist. There was testimony that the risk of corneal abrasions in such procedures ranged from 0.17 per cent to .029 per cent, and one expert for the defendant testified that “most corneal abrasions heal within twenty-four hours of the injury.” Although the plaintiff alleged that her abrasion was “not trivial” because she continued to suffer from its effects, the court affirmed summary judgment for the defendants on the ground that there was uncontradicted evidence that the risk was “minimal and of relatively trivial impact.” Thus, if the risk of both occurrence and impact is very small, the fact that the actual injury is serious may not save a plaintiff’s case.
- A striking application of this principle appears in a case involving allegations that an obstetrician was negligent in delivering a child vaginally without disclosing the alternative of a Caesarean section or the risks of either course of action. In a suit for injuries to the child, the trial court had found that the defendant had no duty to disclose the alternative of a C-section because the risks to a woman of that procedure were “more than [those] normally associated with the birth of a child.” Reversing, the appellate court said that if risks to either the mother or the child “would have been material to a reasonable patient in [the mother’s] position,” the defendant had a duty to disclose that information.
- Open Chapter
Chapter Forty-Nine. Proof of Causation and Scientific Evidence 11 results (showing 5 best matches)
- In approving claims both for the cost of medical surveillance and for emotional distress, at least in cases where exposure to toxic chemicals caused physical injury, the New Jersey Supreme Court emphasized the distinction between such claims and actions for increased risk for disease that did not meet the “reasonable medical probability” standard. The court said that its rules allowing claims for present emotional distress and the costs of medical surveillance “realistically address[ ] significant aspects of the present injuries sustained by toxic-tort plaintiffs, and serve[ ] as an added deterrent to polluters and others responsible for the wrongful use of toxic chemicals.”
- See supra, ¶ 45.06(B)(2); see generally Chapter 48. A recent example of the requirement of expert testimony to show “general causation” for injury to persons or property is Arias v. Dyncorp, 752 F.3d 1011 (D.C. Cir. 2014), in which the plaintiffs, including Ecuadorian farmers, argued that spraying of herbicides had caused black spots to appear on their crops. When the plaintiffs did not present expert testimony on this claim, the court of appeals affirmed a dismissal. It said that the plaintiffs had correctly argued that there was “no dispute as to whether glyphosate-based herbicides kill plants.” But it cited expert testimony for the defendant that “glyphosate does not cause spotting” and noted that the district court had “required expert testimony not to prove that herbicides kill plants, but to to determine whether the specific herbicide at issue was capable of causing the
- Buckley, supra, 521 U.S. at 435. An interesting commentary on the general problem of “future injury claims,” with a partial focus on “very plausibly owed a duty not only to be vigilant against causing its employees certain diseases, but also a duty to be careful not to cause a substantial threat of those diseases.” Id. at 1700. However, they opine that the specific facts of Buckley’s claim rendered it “quite weak.” For one thing, the trial court had found, in the authors’ paraphrase, that Buckley had “presented little evidence of real emotional injury.” Id. at 1701 n.188. Moreover, “his own experts testified that the increased risk of cancer was from 1% to 5%.” The authors argue that this “marginal increase” could not be viewed as “convert[ing] a situation that was psychologically tolerable into one in which [the plaintiff finds himself] under ‘Damocles’ sword.’ ” They conclude that in the end, “there was no injury in
- Id. at 454–55. The Alaska court extends the principle to “a rear-end automobile collision causing relatively common injuries” in Choi v. Anvil, 32 P.3d 1, 3–4 (Alaska 2001). Where the plaintiffs’ symptoms included “pain, stiffness, and loss of strength,” the court says that “[a]lthough a medical expert might have more precisely described the relationship between the impact and the effects described by the plaintiffs, the jury, using everyday experience, could readily find a causal relationship without this expert assistance.”
- The science of epidemiology studies the way that diseases and injuries are caused and distributed among populations.
- Open Chapter
Table of Contents 3 results
- This legislative immunity has drawn criticism, with one author saying that Congress “should have imposed liability” on what she calls “cyberspace intermediaries,” which she defines as “those online entities who have some ability to prevent or at least stem serious online defamation injury.” She says Congress could then have permitted intermediaries to contract with users for different rules in a way that would “reasonably allocate[ ] the costs of reducing injury between” the intermediaries and users.
- Also indicative of judicial insistence on injury to reputation, as contrasted with insulting or snide remarks, is a holding that there was no defamation in a book that spoke of the plaintiff as having a “disappearing fringe of hair at the crown [that] resembled a hardboiled egg,” and that said that “[a] few more pounds and he would be roly-poly, like a rubber beach toy that bounces up every time it is knocked to the sand.” The plaintiff argued that this language was defamatory because it was “a publication of his ‘natural defects’ ” that “exposed him to public ridicule,” but the court gave summary judgment for the defendant, saying that baldness and pudginess do not qualify as a “natural defect.”
- The practical importance of fitting a publication into the libel per se category in states that use it is that the plaintiff who is able to do so may recover without pleading and proving special damages. For these purposes, special damages means rather specifically quantifiable harms, for example, the kind of pecuniary loss that would be associated with a provable drop in business receipts. Thus, in a libel per se jurisdiction, the sort of injury that many people would intuitively associate with defamation—harm to one’s “good name” alone—would not be recoverable without proof of special damages unless a plaintiff could show that the defamatory meaning of the
- Open Chapter
Chapter Thirty-Three. Comparative Fault 6 results (showing 5 best matches)
- Another important empirical issue is how comparative negligence may influence the rate of litigation. An early study of comparative negligence in Arkansas suggested that the rule “increased potential litigation,” which is not surprising since it would encourage plaintiffs to sue who otherwise would not do so because of an assumption that they would be barred for being partly at fault for their own injuries. The study also found that the comparative negligence rule “promoted before-trial settlements.” This also seems plausible since the rule may give lawyers a more precise idea of the range of probable jury verdicts while, especially in the case of pure comparative negligence, making it more likely that the plaintiff will win some kind of award. Other survey results that seem plausible were that plaintiffs “won a higher proportion of the verdicts,” but did not win larger ones, and that “injury claims were valued higher for compromise purposes.”
- It is certainly possible to visualize cases in which the application of comparative fault rules will produce outcomes that initially might appear perverse in terms of ordinary conceptions of justice. Consider, for example, a situation in which drivers A and B collide. Driver A sustains $5,000 of damage and is only 20 per cent comparatively negligent and driver B suffers $100,000 in losses but is 80 per cent comparatively negligent. Under at least pure comparative negligence, this case would yield a result in which A recovers $4,000—80 per cent of his losses—but B recovers the $20,000 that is 20 per cent of his losses. Critics might question the justice of allowing B any recovery, let alone an award significantly greater than A’s, when B was primarily responsible for the injury. A response to this line of argument is that this seemingly odd set of results is not so odd—that A in having to pay B $20,000 is doing no more than paying for the injury that he actually caused, just as B is...
- A broader view of fairness, one that goes beyond achieving justice between the parties, suggests that comparative negligence will promote the most just social distribution of the costs of injuries. Those who see tort law through a corrective justice lens, focused on the moral claims of the individual litigants upon one another, may take issue with this position. However, some decisions indicate that, in addition to achieving individualized justice, the goal of fairly distributing accident costs among classes of litigants is also attractive to courts.
- Segoviano v. Housing Auth., 191 Cal.Rptr. 578, 579 (Ct.App.1983) (in flag football case, RIAR not even “a partial defense justifying allocation of a portion of the fault for the accident to the plaintiff”); Ordway v. Superior Court, 243 Cal.Rptr. 536, 539 (Ct.App.1988) (in case involving injury to a jockey in a race track accident, court reasons that “[w]here no duty of care is owed with respect to a particular mishap, there can be no breach” of duty).
- Others argue that liability rules have significant marginal effects on conduct even where injury-causing events occur swiftly, as in motor vehicle accidents. Indeed, some studies have reported that the adoption of no-fault legislation for vehicle accidents, which partly or completely eliminates tort litigation based on fault, is associated with a rise in fatal accident rates.
- Open Chapter
Summary of Contents 1 result
Chapter Fifty-Six. Statutory Violations and “Cause” 9 results (showing 5 best matches)
- the typical cases posing these issues arise when a defendant falls below an abstract standard of care—in these cases defined by a statute. As with the duty/proximate cause cases, the plaintiff always can persuasively argue that the defendant’s statutory violation was a “but for” cause of the injury—that is, if the defendant had not violated the statute, the plaintiff would not have been injured. However, the legal problem exists because the defendant contends that the plaintiff’s injury was not the kind of event the statute was designed to prevent, and the statute does not specifically speak to the issue of civil liability. Courts employ a range of terminology, some of it rather confusing, in dealing with this question.
- Courts employ a variety of concepts and terms to solve cases in which defendants contend that their statutory violations do not merit tort judgments because plaintiffs’ injuries did not fall within the purpose of the statute. Often, courts use the terminology of causation, although that idea is frequently not well-suited to solution of the problem.
- The plaintiff’s co-wardens hoisted him so that he could unscrew a light bulb, the unavoidable result of which was to plunge the room where they were into darkness. When the plaintiff missed his step and fell, he broke an ankle. In concluding that “defendant’s negligence was not the proximate cause of plaintiff’s injury,” the court used such terminology as “[p]laintiff’s injury was not the natural and probable consequence of a violation of the statute”; “[i]t resulted from a cause independent of defendant’s negligence in violating the statute”; “[i]t happened because of an intermedial accident which no one in the position of the defendant could reasonably have anticipated.”
- When a defendant’s statutory violation is a but-for cause of a plaintiff’s injury, it will usually be desirable for courts to focus on policy in order to exercise their judgment about the range of statutory purpose. For example, in a case like that of the air raid warden, ...’s statute-violating omission. By contrast, one might argue, as the court in that case did, that the statute “was not enacted for the direct benefit or protection of air raid wardens, but to promote the defense and safety of our population generally.” Each of these views of the case has the virtue of being oriented to the policy sought to be implemented by the statute, which courts often use as a principal measure of duty for a statutory violation. As is so concerning the broad range of cases that present questions of duty, a policy focus usually offers a more persuasive way to solve the problem than relying on concepts of causation when, after all, the plaintiff’s injury would not have occurred except for the...
- Undoubtedly both the concept of statutory purpose, and that of causation, proximate or otherwise, have a strong hold on many judges who deal with these cases. However, in close cases it is often useful to turn to general policy considerations. Thus, for example, one might ask whether the overall social interest in achieving desirable levels of protection from accidents would be furthered by imposing liability for a statutory violation even if an injury did not fit neatly into a perceived legislative purpose. A related question would be how the expense of complying with the statute compares with the cost of injuries caused by its violation, or perhaps even the benefits of violating the statute.
- Open Chapter
Chapter Sixteen. Defense of Property 3 results
- A majority of the Iowa Supreme Court concluded that the defendant was not privileged to set the gun and affirmed a jury verdict for the plaintiff. There was a fairly complex set of jury instructions, which a dissenter insisted left it unclear as to whether the jury had to find that the defendant had acted with “intention to shoot the intruder or cause him great bodily injury.”
- ...—appears in a California statute that immunizes owners of real property for injury or death to those on the premises that occur “during the course or of after the commission of” certain enumerated felonies, when the injured person has been convicted of one of those felonies or a lesser included offense. The statutory immunity does not exonerate “willful, wanton, or criminal conduct.” An interesting test of that statute arose in a case in which a store employee shot in the back a man who the employee thought was one of a group of robbers, while that man was fleeing the store. The man who was shot denied that he was a member of the group of robbers, claiming that he had gone into the store only to buy a soda. Despite this denial, he had been convicted of attempted grand theft in connection with his role in the events that led to the shooting. Afterwards he sued the store for the shooting, which left him quadriplegic. Analyzing the statute, the California Supreme Court concluded...
- had set his spring gun, the weapon went off and caused serious injuries to the plaintiff’s leg.
- Open Chapter
Chapter Forty-Five. Res Ipsa Loquitur 13 results (showing 5 best matches)
- • The instrumentality alleged to have caused the plaintiff’s injury was in the exclusive control of the defendant
- (2) A version of the doctrine that strongly favors plaintiffs requires the defendant to carry the burden of proof that it was more likely than not that the injury did not result from the defendant’s negligence.
- Courts also are likely to be wary of a sympathetic tendency to stretch tort law into a compensation system for heart-rending injuries, even in the absence of fault. A type of language that often commends itself to courts rejecting res ipsa in such situations is that the defendant’s liability should not be that of an “insurer.”
- At least one application of res ipsa has developed a rather particularized set of rules. This is the case of unexplained injuries that occur in the process of medical care, where the courts have tuned the res ipsa rules and their policy applications to the special problems involved in delivering health care services.
- We simply underline here that most medical treatment involves the use of specialized knowledge. Lay fact finders may not be able to determine probabilities without some evidence from a physician about the likelihood of a breach of professional standards as well as the likelihood that the breach caused the plaintiff’s injury. critic has suggested that there is a logical contradiction in allowing the use of expert evidence to prove a circumstantial case. She argues that “[w]here injuries are so complex that a jury must rely on expert opinion evidence in deciding whether the defendant was negligent, … the use of a res ipsa instruction is indefensible.”
- Open Chapter
- However, there is a long-standing argument about what the basis of liability was at the dawn of the common law. The question is whether fault or strict liability—liability without fault—was the main foundation then for shifting injured parties’ losses to injury-causing actors.
- The dispute over whether and when strict liability should be applied to activity-caused injury is likely to rage on. As we have noted, historical scholarship features disagreement on the topic even as to the medieval roots of tort law. The controversy exists today because of the power of competing philosophical positions. There is a strong moral attraction in the notion that liability should rest only on fault, but there also is a powerful moral pull in the idea that those who engage in risky activities should not be able to impose risks of injury on others, particularly persons in a vulnerable position, without compensating them for resulting losses.
- But it is clear that the basic standard for judging human conduct that unintentionally causes injury is still that of negligence. Where courts have moved to apply strict liability to activities, they have done so cautiously, designating only specific activities for that classification on the basis of special factors of risk.
- Open Chapter
Chapter Sixty-Three. Rescuers 5 results
- The special fact that sets rescue cases apart is that the defendant’s negligence places A in peril, and B, the plaintiff, suffers injuries in an attempt to come to the aid of A. Generally speaking, the primary obstacle to recovery is that the defendant did not directly injure B, but directly harmed or imperilled only A, the party that B tried to aid.
- The rescue problem fits neatly within the pattern of a defendant’s negligence followed by an injury that is indirect or unusual, which would not have occurred except for a series of events set in motion by the defendant’s conduct.
- The rescue doctrine applies against the person being rescued if the initiating negligence that created the need for rescue was his or her own. Illustrative is a case in which a man removed the sides of a swamp cooler, negligently exposing its moving parts. After he tripped on an electrical cord, the machine fell over him. The plaintiff, fearing the consequences to a person in the defendant’s poor medical condition, suffered severe hand injuries from a moving part when she tried to lift the machine off the defendant. Concluding that the defendant owed his rescuer a duty, the court asked rhetorically, “[w]hy should the rescuer recover after helping a third party victim of negligence, but not recover for helping the negligent actor?”
- In another case, however, the court permitted recovery for a doctor against a building contractor for injuries that occurred when the plaintiff tried to reach employees trapped by a negligently caused landslide at a construction site. The court referred to uncontradicted evidence that the employees “were in peril of their lives” and that “immediate … action was required to save or assist them.”
- There comes a point at which rescue cases merge into the general class of cases involving bizarre consequences, although the freakish nature of an injury may not keep courts from imposing liability on originally negligent parties. In a Louisiana case, an employee of defendant A parked his truck negligently and defendant B ran into the truck. B’s car caught fire and the plaintiff, a bystander, tried to rescue B and his seriously injured wife from the vehicle. As the plaintiff engaged in this effort, he found a firearm on the floor of B’s car and handed it to B. The delirious B shot the plaintiff. In successive opinions, the Louisiana appellate court first reversed judgments for both defendants and then affirmed a judgment against
- Open Chapter
Chapter Twenty. Possessors of Land: Classifications 8 results (showing 5 best matches)
- The landowner’s knowledge of the presence of numbers of children, as well as the relatively minimal cost of using defensive measures, are important factors in cases involving many other kinds of hazards. An illustrative case involved a seven-year-old boy who was running with other children alongside a moving train, and sustained serious injuries when he tripped on some cinders along the tracks and fell partly beneath the train. The court affirms a plaintiff’s judgment on the basis of “strong, convincing and continuing notice” of the “constant presence of children in dangerous vicinity to the tracks,” involving the “possibility of serious injuries” which were “not only reasonably foreseeable but might be termed inevitable.” The court’s holding that the railroad was guilty of common law negligence also comprehends the fact that “the cost of remedial fencing was minimal.”
- A literal boundary question concerns the duty of landowners to technical trespassers, persons who wander onto the perimeter of the defendant’s land and suffer injuries because of conditions there. The general rule, favoring the technical trespasser—for example, someone injured at the edge of a public highway—is that the landowner cannot escape liability if it maintains a “trap.”
- take into account the status of the visitor as one factor in determining whether the possessor’s conduct has been reasonable. Exerting a strong pull toward loosening or discarding the categories is the fact that many disputed cases in this area embody strong arguments of justice on the visitor’s behalf—arguments that are enhanced practically, if not always logically, if the visitor suffers severe injuries. Those who advocate a less structured standard are likely to stress that property ownership is a privilege as well as a right, and imposes high obligations as well as offering substantial benefits.
- ...on the premises is subject to some exceptions. One such exception, which applies to work done by independent contractors that is “inherently dangerous,” carries overtones of assumption of risk on the part of the employees of such contractors. An example is a case involving injuries to employees of an independent contractor who were working on a “chiller,” a large air conditioning unit on the premises of the defendant. A discharge pipe from the chiller unit discharged a hot chemical solution onto a concrete floor, from which it splashed on the plaintiffs. In concluding that the plaintiffs’ work was “inherently dangerous,” and therefore that the defendant had no duty to them, the court pointed out that the chiller “utiliz[ed] liquids at high temperatures and pressures” and that the plaintiffs’ work “occasionally required them to wear protective equipment and clothing.” It declared that the issue of whether a job was “inherently dangerous” was “one of probabilities based...
- that taught this lesson involved a “kegger” party held after a high school commencement at a dairy farm under lease by the family of one of the graduates. That graduate bought 15 kegs of beer for the party, which he financed from tickets that were sold for $4. The plaintiff suffered injuries when an automobile hit her as it drove through an area where partygoers were standing. In holding the plaintiff to be a licensee, the court rejected her argument that she had been invited as a member of the public. It said that “invitee” cases were distinguished by situations in which possessors had arranged the premises to lead visitors to believe that “ ‘the premises were intended to be used by visitors, as members of the public, … and that reasonable care was taken to make the place safe for those who enter for that purpose.’ ”
- Open Chapter
Chapter Fifty-One. Apportionment Among Multiple Defendants 11 results (showing 5 best matches)
- Whether courts initially make a finding of joint liability, or proceed directly to assess multiple defendants’ relative contribution to an injury, they often must determine how to apportion the final burden of the injury between or among the defendants. There are at least three major techniques for doing so: indemnity, contribution, and comparative apportionment or responsibility.
- The “active-passive” distinction relies on the intuitively plausible notion that in some situations involving multiple defendants, one has participated in causing injury so much more directly—that is, actively—than the other, and with so much more control, that it is appropriate both from a standpoint of fairness and of economic incentives to impose the entire liability on that party. One case that drew on this distinction involved injuries suffered by spectators at a state fair when part of a catwalk on a grandstand collapsed during a performance by an Army Special Forces unit called the Green Berets. The plaintiffs sued the United States under the Federal Tort Claims Act, claiming that the Green Berets had been negligent. However, the plaintiffs’ only proof of that negligence was that, in relying on representations by agents of the state about the construction of the grandstand roof, the soldiers failed to inspect in a way that would have revealed the manner in which the catwalk...
- Unlike indemnity, which mandates a complete shifting of loss from one defendant to another, the contribution remedy apportions damages between or among tortfeasors. The basic principle is a pro rata division of damages, with equal shares of liability being enforced upon multiple defendants. Thus, even if the facts indicate that one defendant is more responsible for an injury than another, the contribution rules apportion the liability equally.
- A case involving an injury on a store escalator illustrates the appeal of contribution as a rough-and-ready equitable remedy. The plaintiff, a boy who suffered injuries when his tennis shoe was caught in the escalator mechanism, initially sued the owner of the store, which brought a third party action against the escalator manufacturer. The court drew on policy considerations, focusing on incentives for safety, in holding that the manufacturer and its insurer must pay contribution to the store owner and its insurer. The court said that because neither the manufacturer nor the store “undertook to warn those using the escalator, and both were aware of the risk, both are equally at fault. While Otis might theoretically manufacture a safer product, Maison Blanche could purchase a better escalator, switch to stairs or use elevators.” The court observed that the manufacturer was “in a better position to improve the design of the machine than” the store owner, but declared that the store...
- This immunity rule cuts broadly in favor of employers in cases originating with products liability claims. The almost universal application of the rule means that a product manufacturer—for example, the maker of a dangerous workplace machine—is vulnerable to tort suits by employees of an employer that uses the machine in its business, but cannot sue that employer for its contribution to the injury by requiring use of an unsafe machine. Courts have used various conceptual formulas to justify this result. One court, for example, offered a no-duty explanation for the immunity, reasoning that, while an employer’s “obligations run to its employee,” it does not have a “separate duty … to the manufacturer … which allegedly caused the injury itself.”
- Open Chapter
- The most direct way for potential tort defendants to avoid liability for negligence is to have prospective plaintiffs explicitly assume the risk of injury, by agreeing in advance that they will not sue for injuries, even those that occur because of the defendant’s culpable conduct. A procedural result of enforceable agreements of this sort—often called exculpatory clauses—is that they may make possible a summary judgment for defendants, obviating the need to conduct a trial in order to determine the culpability of either party. Variations on exculpatory clauses appear in disclaimers and limitations of liability in contracts for goods and services.
- An initial set of issues related to defendants’ attempts to “contract out” of tort liability for injuries concerns notice of the terms of the agreement. Because courts are likely to look critically at efforts to bar a liability that otherwise would exist under the general law, they will require defendants seeking to enforce exculpatory agreements to show that the agreement is clear and conspicuous.
- The answer depends in part on the nature of the activity that caused the injury and its place in the social and economic scheme of things. Frequently it also depends on the necessity of the activity to the plaintiff and on the plaintiff’s relative vulnerability in the circumstances of the transaction.
- Hulsey v. Elsinore Parachute Ctr., 214 Cal.Rptr. 194, 199 (Ct.App.1985). The same point of view informs a decision holding that an exculpatory clause barred a claim against a fitness club for injuries sustained on an exercise machine. Besides concluding that the services of a fitness center were not “essential” in nature, the court focused on the competitiveness of the industry, pointing out that the metropolitan area where the plaintiff lived was “home to many exercise and fitness clubs.” Seigneur v. National Fitness Inst., Inc., 132 Md.App. 271, 285, 752 A.2d 631, 639 (2000).
- ...exculpatory agreements against low-income tenants, reasoning that such tenants have no meaningful choices to secure shelter. An illustrative case involved an infant who was scalded by very hot water in the bathroom of a public housing unit. She sued the housing authority for providing an apartment in which water could be as hot as 200 degrees. An exculpatory clause in the lease purported to absolve the defendant from all liability for injury on the premises. The Washington court, referring to the statute that enabled the construction of the public housing, concluded that the legislature had determined to build the housing on behalf of people who were “unable to obtain safe and sanitary housing elsewhere.” Employing language of a sort frequently used to invalidate exculpatory clauses, the court said that the situation “presents a classic example of unequal bargaining power” and declared that to uphold the exculpatory provision would be to “put[ ] the tenants at the mercy...
- Open Chapter
Chapter Thirty-Six. Private Nuisance 6 results (showing 5 best matches)
- opinions, there developed in England a tribunal called the “assize of nuisance” that “provided redress … where the injury was not a disseisin”—literally, a dispossession—“but rather an indirect damage to the land or an interference with its use and enjoyment.”
- An independent strict liability doctrine for environmental damage as well as personal injury traces back to the famous case of
- Courts routinely consider the utility of the defendant’s conduct, balancing against that the plaintiff’s economic interests insofar as they can be quantified. If the defendant’s activity makes a very substantial economic contribution to the community, some courts may decide it is not a nuisance even if it causes significant interference to the interests of some possessors, if the legally valued injury to those interests is relatively slight compared to the value of the activity. Even where courts find that a highly valued activity is a nuisance, they may provide only a limited remedy.
- Today an important theory in suits for “environmental torts,” nuisance is only one of the law’s responses to the general problem of environmental injuries to which tort law has addressed itself for many years. From a societal point of view, the problem is a large and complex one, featuring intense rivalries between classes of parties. Plaintiffs typically are persons who have an ongoing attachment to land and the surrounding ambient air and to flowing streams or coastal waters, an attachment that sometimes is difficult to capture entirely in money valuations. Defendants frequently are producers of useful goods with high social value whose productive activities create negative consequences, such as air and water pollution, to surrounding parcels of land.
- A straightforward remedy for environmental harms and associated physical injuries is to require the defendant to pay money damages. An obvious situation for the application of the damages remedy alone is the case where the defendant’s activity has social or economic value so high that it would not be sensible to force it to move or shut down. In the much-cited New York case of
- Open Chapter
Chapter Sixty-Five. Duty to Act 6 results (showing 5 best matches)
- sidewalk as the doctor is taking a stroll. A different aspect of community thinking on the subject, exhibiting legal leniency to the person who does give aid, appears in the so-called Good Samaritan legislation enacted in many states. These statutes exempt people from tort liability for injuries occurring during the rendition of emergency care, except where their conduct is more culpable than ordinary negligence.
- A rather well-established category of cases in which courts will impose a duty to act involves litigants who were in a pre-existing relationship before the occasion at issue. A straightforward example of such a relationship is that of employer and employee. In an illustrative case, the court imposed liability on a railroad under the Federal Employers’ Liability Act for failing to give medical care to a track laborer who died after collapsing from heat prostration. The court declared that when an employee “receives injuries, whether or not due to the negligence of the master, rendering him helpless to provide for his own care,” the employer must provide “such medical care and other assistance as the emergency … may in reason require.” The court found the rationale for this obligation in “dictates of humanity, duty and fair dealing.”
- One advantage of a “salience” approach is that avoids the “dilution of liability” that would occur when liability is imposed on many people, any of whom could have avoided the plaintiff’s injury.
- One should note the overlap between the “duty to act” issue as it is defined here and certain kinds of duty issues discussed elsewhere. In this area of overlap we find suits against A for failure to protect the plaintiff against direct injury by B, even if B’s act was a crime. That category of cases includes issues like psychotherapists’ duties to protect the public, or specific persons, from the violent acts of patients, as well as questions about the obligation of educational institutions to protect their students against the acts of others who pose a danger on the campus or in its environs.
- Within the varied kinds of activity embraced by this heading, an interesting set of issues focuses on the conduct of insurers that conduct inspections as part of their safety programs. In one case, the court imposed liability against an insurer whose engineer neglected to make a detailed inspection of the components of a construction hoist that later failed, causing fatal injuries. Concluding that the insurer’s “gratuitous” inspection had created “an enforceable duty” to
- Open Chapter
- See Estate of Trentadue v. United States, 397 F.3d 840, 857–58 (10th Cir. 2005), (in which an autopsy of a prisoner indicated “numerous injuries” to his body and there was evidence of a coverup of the battered condition of the corpse, as well as “obstinance” on the part of the governmental defendants concerning authorization of an autopsy; the court, although finding for the plaintiffs on the elements mentioned in the text, remanded for fact finding concerning the severity of emotional distress suffered by the individual plaintiffs).
- However, the court of appeals ultimately concluded that the plaintiff could not succeed on her claim for emotional distress arising from the abduction and rape. It did not think the plaintiff could meet the standard of the state workers’ compensation legislation that required “deliberate intent” to lay a foundation for a tort claim against an employer that would avoid the general rule that employees could only get workers’ compensation for injuries connected with their employment and could not sue in tort. The appellate court majority said it could not conclude that the plaintiff’s allegations met her burden to show that the supervisor intentionally assigned the plaintiff to a post where the ex-boyfriend “could assault her, batter her, [and] kidnap her.”
- Open Chapter
- A somewhat different concern inheres in the idea that when a contributorily negligent plaintiff sues a negligent defendant, “the harm involved in the plaintiff’s original conduct ‘reaches’ the defendant, another person.” The plaintiff’s conduct thus contributes to make the defendant potentially responsible for an injury that, although the defendant helped to cause it, “would never have
- of the unreasonable danger of injury” but only that he unreasonably ignore risks that “would have been apparent to a prudent person exercising ordinary care for his own safety.”
- Another case that makes the point even more strongly involved a suit against the United States for its alleged negligent failure to confine a mentally disturbed patient. The plaintiff’s decedent saw the escaped patient carrying a rifle, which he pointed at the window of the decedent’s car. After driving around for a little while, the decedent returned to where the patient was walking, got out of his car and shouted a vulgar comment at him. The patient fatally shot the decedent. Saying that the facts known to the decedent when he approached the patient “were sufficient to apprise him of the danger and risk of injury,” and noting that he had not informed the police of the situation and had used “extremely inflammatory language … a man holding a rifle,” the court decided that the decedent “was contributorily negligent.”
- One should also note that contributory negligence may not provide a defense when the plaintiff’s conduct has a particularly close link to the reason that the defendant is held negligent. An illustration is a case in which a psychiatric patient suffered injuries when she jumped out of a hospital window. In her suit against doctors, nurses, and the hospital, two levels of New Jersey appeals courts affirmed the trial judge’s refusal to instruct on contributory negligence. The trial court having summarized evidence of a suicide attempt by the plaintiff that was the event that sent her to the hospital,
- Open Chapter
Chapter Seventy-Three. Punitive Damages 8 results (showing 5 best matches)
- is compensatory damages, a principal purpose of which is to restore the plaintiff to the position that the plaintiff occupied before an injury. The other, punitive damages—sometimes called “exemplary damages,” or more informally, “smart money”—rests on several different rationales. The topic of punitive damages has generated legal and policy controversy, and has been the subject of review by the Supreme Court on several occasions.
- Another purpose of punitive damages, which overlaps with the rationales for compensatory damages, is deterrence. This goal breaks down into two subcategories. Punitive awards may provide both a club to deter the particular defendant from future behavior of the kind that caused the injury, and a signal to others that will discourage them from conduct of that sort. Viewed from this perspective, the punitive damages remedy has a heightened behavior-controlling effect, but one should note that compensatory damages also serve a deterrence function.
- The results of these studies indicate that punitive damages are given relatively infrequently. For example, one survey found punitive damages to have been awarded in only about one per cent of cases where California and Cook County (Illinois) juries gave verdicts for plaintiffs suing for personal injuries.
- A case involving the over-radiation of a hospital patient presents an issue concerning allegedly reprehensible misconduct that follows, rather than precedes, the underlying tort that directly caused the plaintiff’s injury. Besides complaining that she received far too much
- Another type of harms that would be remedied by societal punitive damages are injuries in the category where “it may be difficult to identify all of the parties who have been harmed by a specific defendant’s action.” One group of these cases includes those where “the nature of the harm is more generalized or directed at society as a whole”—that is, “identifiable
- Open Chapter
- Some analysts believe it would be wise to chalk up most “assumption of risk” defenses under the contributory negligence rubric. This solution would have the advantage of simplifying the law, making the only question whether the plaintiff’s conduct was unreasonable under the circumstances. This formulation of a single defense would override the view that there are certain kinds of plaintiff conduct that should be regarded as careless only when the plaintiff knowledgeably and voluntarily confronts danger—the traditional formula for assumption of risk. Those advocating retention of a separate assumption of risk defense might focus on such cases as those involving employee injuries in hazardous workplaces. With respect to those cases specifically, they would contend that because of the nature of such employment, the only plaintiff carelessness that deserves the label of contributory negligence is a voluntary and unreasonable confrontation with a particular danger.
- The desirability of a spare classification system becomes the more evident when one considers that in products liability cases, courts sometimes apply yet another classification of plaintiffs’ conduct, that of “misuse.” Some decisions use this as a separate category in cases in which the plaintiff employs a product for a purpose for which the manufacturer clearly did not intend it. Illustrative is a case in which a woman placed her almost 2-year-old great-granddaughter in a homemade, open wooden box attached to the fender of a rider mower. Rejecting a suit by the child for injuries caused when she was thrown from the mower, which then ran over her foot, the court said that the maker and seller of the vehicle could not “have reasonably anticipated” its use “as a motorized baby buggy.”
- . This may be an efficient way to account for denials of recovery in such situations as the case in which a baseball fan suffers injury from a foul ball when he is sitting in an area unprotected by a screen, a location that no ball park has ever covered with a screen. Sometimes courts will speak of “assumption of risk” to rationalize rejection of such claims. But it seems more elegant, and more helpful in explaining such results, simply to say that the ball club has not fallen below the appropriate standard of care, given the costs of screening all fans in the ball park from any contact with a foul ball.
- Open Chapter
- contains a clause exculpating the defendant from suits for negligence, a document that the defendant argues indicates that the plaintiff has accepted the risk of the injury at issue. Where state law permits the enforcement of such exculpatory clauses, the court would grant the defendant’s motion for summary judgment.
- Open Chapter
Chapter Fifteen. Frontier Theories 3 results
- There is some overlap among these frontier theories of tort law, which share the goal of trying to open a wedge for meritorious injury cases that do not fit within established torts. An element that clearly distinguishes the prima facie tort is its requirement of “disinterested malevolence.” One may contrast, in this regard, the non-category theory advanced in
- The drafters of the Second Restatement sought to provide a general category of relief for plaintiffs who could not bring their cases into the elements of the traditional categories. In section 870, they described a liability for “[o]ne who intentionally causes injury to another … if his conduct is generally culpable and not justifiable
- case, it “would be saying in effect that one is free to lie to another as distinguished from lying about another (which is defamation), for one’s private gain, so long as the consequence of the lie is not to take the victim’s property (which is deceit), but rather to expose him and his reputation to likely injury.”
- Open Chapter
Chapter Seventeen. Consent 1 result
- Doctrinal characterization becomes important in litigation involving undesired outcomes of medical treatment. If a plaintiff is able to prove a battery, which requires what may be a difficult showing of lack of consent, she may recover for injuries that arise from an unforeseen medical consequence of a procedure, even if the physician was not negligent. This legal result stems from the fact that all that is necessary for a battery is an unconsented contact, meaning that the plaintiff may recover for consequences that were not foreseeably within the risk of that contact. By contrast, a negligence action generally requires a showing of some foreseeable risk of harm; foreseeability is part of the basic definition of the defendant’s standard of conduct in negligence.
- Open Chapter
- ...teachers” employed by the plaintiff school district did not come to school two days in a row. The plaintiff and the defendant teachers’ association disagreed about whether the teachers who had not come to school were engaging in an illegal strike, a question which was scheduled for a hearing. Before that hearing, the lawyer for the defendant association issued subpoenas to 87 teachers to come as witnesses on one particular day. All of them came to the hearing and the district had to hire 77 substitutes to replace them. The district argued that the defendants, “with intent to injure and harass” the district, had issued the 87 subpoenas knowing “that all the teachers could not have possibly testified on the initial hearing date.” The court concluded that “on its face,” this allegation “spell[ed] out an abuse of process,” saying that “the deliberate premeditated infliction of economic injury without economic or social excuse or justification is an improper objective which will...
- William Corbett contended that there should be a revival of the torts of criminal conversation and alienation of affections. He pointed, by analogy, to the rise in actions permitted for injuries to various economic relationships, including the tort of wrongful discharge. He also noted that “[w]omen bear the brunt of the economic and life opportunity costs” from adultery.
- Open Chapter
Chapter Eight. Intrusion 1 result
- ...of these types of cases, it is clear that in such litigation, courts make qualitative judgments. It will often be difficult to fit such assessments within the arithmetic of utilitarianism because of the difficulty of placing quantitative valuations on the interests of the parties in intrusion cases. It is relatively difficult to put a price tag on plaintiffs’ privacy, or on the value of public information provided by defendants. One may contrast the more easily monetized interests on both sides in most tort litigation: on the plaintiff’s side, such staples of personal injury damages as lost wages and medical bills, and on the defendant’s side, the costs of making repairs or changing product designs that liability rules may effectively impose. Thus, whether courts focus on the breadth of the plaintiff’s “sphere” of “privacy,” or on the offensiveness or impropriety of the defendant’s conduct, they are making judgments that are more social than economic when they decide whether...
- Open Chapter
- Publication Date: March 1st, 2016
- ISBN: 9781634604420
- Subject: Torts
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
-
Description:
This edition provides a wealth of new material drawn from summaries of and quotations from scholarly books and articles and case law. The subjects of this new material are rich in their range of topics. They include:
- The “precautionary principle”
- Summaries on tort rationales that range from references to Kantian philosophy and a riff on Harry Potter
- The relation of tort law to public law
- Varied materials on consent
- The duty question, including a summary of a recent Supreme Court case and scholarship in the area
- Material on privacy ranging from Prosser’s classification system to LGBT plaintiffs
- The roles of race and gender in calculations of damages
- A criticism of “tort reform” efforts
- Case law on the “baseball rule” with respect to spectator injuries.
- Matters of topical ‘headline” interest include smartphones as distractions and certain aspects of publication of photos on the Internet.
- Celebrities mentioned in items under different categories are Joan Rivers, Jesse Ventura, and Jim Boeheim.
