Outline - Torts - V - Negligence

Torts (2005 Fall)

V. NEGLIGENCE

Acting, even if as part of another, lawful act, without due care. [Brown v. Kendall]

Holmes defines negligence as the failure to avoid a foreseeable risk of harm.

In general, negligence consists of breaching the duty to act toward others as a reasonably prudent person would act under the circumstances.

1. Duty
   1. Misfeasance - When one acts, one should act reasonably under the circumstances.
   2. Nonfeasance
      1. In general – A person has no duty affirmatively to act to aid or assist another. [Harper v. Herman, Sullivan]
      2. Exceptions
         1. Special Relationship
            1. With victim [Farwell]
            2. With actor who harms victim [Tarasoff – Psychiatric patient kills girl]
         2. Actor begins, then discontinues assistance. [Farwell]
         3. Creation of dangerous condition
         4. Victim is helpless and in danger of further harm after defendant’s actions even if non-tortious
         5. Interference with rescue [Soldano]
         6. Duty to report child abuse (many states)
      3. Policy decision to avoid excessive litigation can override special relationship. [Strauss v. Belle Realty Co.]

   3. Other duties

      Upheld

      1. Negligent entrustment [Vince – Grandaunt who buys car for reckless teen is held liable]
      2. Statute creating private right of action [Uhr (scoliosis)]

      Questionable

      3. Contract with another?
         1. Not usually [Moch – low water pressure in hydrant; Strauss v. Belle Realty Co.]
         2. But sometimes [Palka – wall-mounted fan]
      4. Affirmative misrepresentations? [Randi W. – child molester job recommendation; no negligence per se]
      5. Furnish alcohol [Reynolds – Wedding party]
   4. Owners and Occupiers
      1. Common Law
         1. Trespasser
            1. No duty with regard to condition of land
            2. Limited duty from intention or reckless injury
            3. (some jurisdictions) Duty to warn where O/O
               1. knows of dangers from conditions of land; and
               2. knows a specific trespasser is about to encounter the danger
            4. Higher duty for:
               1. Attractive nuisance
               2. Footpath exception
         2. Licensee
            1. No duty to make premises safe [Carter v. Kinney]
            2. Duty to warn where O/O
               1. knows of dangerous condition; and
               2. knows licensee might encounter danger
         3. Invitee
            1. Affirmative duty to make premises reasonably safe
            2. O/O must exercise care to discover unsafe conditions
            3. (some jurisdictions) Duty to warn where O/O
      2. Modern Rule
         1. No distinction between entrants
         2. O/O owes “ordinary due care” to all entrants [Heins – man visiting daughter in hospital slips]
      3. Premises Liability for Criminal Activity – Levels of Foresight [Posecai]
         1. specific harm rule – no duty unless aware of specific, imminent harm
         2. prior similar incidents test – foreseeability established by evidence of previous crimes on or near the premises
         3. totality of the circumstances test – same, with additional factors such as nature, condition, and location of the land
         4. balancing test – foreseeability of harm vs. burden of imposing duty (holding)

   Non-Physical Harm

   5. Emotional Harm
      1. Elements [Falzone – Car crash kills husband, comes close to wife]
         1. Reasonable fear of immediate personal injury
         2. Substantial bodily injury or sickness results
      2. Zone of danger [Buckley - Asbestos]
      3. Vulnerable plaintiff can recover if emotional distress is a foreseeable consequence of the negligent act. [Gammon – “Father’s” leg]
      4. Bystander liability [Portee – Child stuck in elevator shaft dies while mother watches helplessly]
         1. Defendant is negligent
         2. Death or serious bodily injury results
         3. Marital or intimate familial relationship between plaintiff and injured
         4. Observation at scene
         5. Resulting severe emotional distress
   6. Economic Harm
      1. Professional services [Nycal]
         1. Accountant has “actual knowledge” of the “limited group” who will rely on the report.
         2. Accountant has “actual knowledge” of the particular financial transaction that such information is designed to influence.
      2. Business interruption – limited foreseeability [People Express]
2. Breach – Defendant’s behavior compared to standard of care
   1. Reasonably Prudent Person (RPP)
      1. RPP is more objective than each individual’s “best judgment” [Vaughn v. Menlove]
      2. Legislative immunity from criminal liabilities is no bar for tort recovery. [Powell v. Fall – If an enterprise is profitable, it should pay for damages caused. If it is unprofitable but still causes damage, it’s better for society that it goes out of business. (Bramwell)]
      3. Children are to be held instead to a standard of a reasonably prudent child of similar age and/or experience.
      4. Children engaging in adult activities are to be held to an adult RPP standard. [Hunting Hypo]
      5. Common carriers no longer subject to extraordinary care, but reasonable care under the circumstances [Bethel]

      6. Calculus of Risk – If the burden of taking the precaution is higher than the probable (foreseeable) liabilities, then a company may wish to raise prices to “spread the loss” in a primitive form of insurance. [Blyth v. Birmingham Water Works]

         Hand Formula [Carroll Towing]
         B > PL → liability

         B = burden of precaution
         P = probability of accident
         L = liability cost
         

         Negligence prima facie
         The defendant is liable only if B_D < P * L_{(class of potential P’s)} and B_P < P * L_P.

         Contributory negligence
         Even if defendant is negligent, plaintiff bears the loss if B_P < P * L_P.

   Roles of Judge and Jury

   Holmes – Judges should decide what the standard of care is because of the volume of similar cases they see. [Goodman]

   Cardozo – When a rule has become too confusing from overreach, juries should determine the standard of care. [Pokora]

   2. Custom
      1. As a sword - Departure from customary safety standard is evidence of negligence [Trimarco v. Klein]
      2. As a shield - Just because the defendant has complied with custom, that doesn’t mean he has acted reasonably. [T.J. Hooper, Hand]
   3. Statute
      1. Criminal statutes may be source from which court borrows a standard of conduct. [Martin v. Herzog]
      2. To establish negligence per se, plaintiff must show (elements):
         1. Defendant violated the statute;
         2. Plaintiff is within class of people the statute was designed to protect (statutory purpose);
         3. Injuries of sort the statute was designed to prevent (statutory purpose); and
         4. Defendant’s violation of statute caused plaintiff’s injuries.
      3. Escape hatches
         1. Revise or impute unstated legislative intent. [Tedla v. Ellman]
         2. Revise or rethink statutory purpose by narrowing or expanding the purpose.
            1. Violation of statute (failing to erect barrier around an open shaft) no liability if the statute was intended to protect against a different sort of hazard from that which caused the injury. [De Haen]
            2. Violation of ordinance (leaving car running at gas station) no liability because the ordinance was to prevent fires and not to prevent vehicles from moving. [Di Ponzaio v. Riordan]
         3. Recognized excuses
            1. Necessity
            2. Emergency
            3. Incapacity
         4. Create exceptions and make policy arguments [Rushink v. Gerstheimer - Plaintiff could proceed even though harm was not covered by key in-in-ignition statute's purpose.]
   4. Proof of Negligence
      1. A jury could find enough evidence from fact of broken jars on floor to establish merchant’s negligence. [Negri]

      2. Holmes’ rule of foresight can establish negligence. [Gordon]

         To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.

      3. Res ipsa loquitur - "The thing speaks for itself."
         1. Rule (Prosser)
            1. The event must be of a kind which doesn’t occur in the absence of someone’s negligence;
            2. It must be caused by an agency or instrumentality within the exclusive control of the defendant; and
            3. It must not have been due to any voluntary action on the part of the plaintiff.
         2. Effects
            1. Inference of negligence permissible (prima facie case established)
            2. Burden of proof shifts to defendant
         3. Byrne v. Boadle - Plaintiff is not bound to show that a barrel could not have fallen from defendant flour dealer’s window without negligence.
         4. McDougald v. Perry - Defendant who had control of spare tire is liable in an accident which, based on common experience and general knowledge, would not have occurred but for his negligence.
         5. Ybarra v. Spangard – Plaintiff who receives unusual injuries while unconscious and in the course of medical treatment may recover from all those defendants who had any control over his body or over instrumentalities which might have caused the injuries, unless defendants can give an explanation of their conduct.
3. Causation
   1. Actual Cause - “but for” causation
      1. Jury should decide [Stubbs]
      2. Increased chance causation – If a negligent act increases chances of a certain illness, and the illness in fact occurs, then the jury is permitted to infer cause. [Zuchowicz]

      When Actual Cause is Uncertain

      3. Lost opportunity – Plaintiff does not have to prove absolutely certain causation where physician’s malpractice makes it impossible to know what would have happened in absence of negligence. [Alberts v. Schultz]
      4. Joint and several liability
         1. Alternative liability – Where two defendants both act negligently and cause harm to the plaintiff, the burden shifts to the defendants to exculpate themselves. [Summers v. Tice]
         2. Concerted action
         3. Enterprise liability – Where there is industry-wide cooperation in an small industry, all are liable.
         4. Market share liability – Liability is imposed on each manufacturer based on its share of the market. Each manufacturer is severally liable, not jointly. [Hymowitz v. Eli Lilly & Co.]
   2. Proximate Cause - Legal Cause – plaintiff must establish that the breach caused the damage
      1. Tests

         1. Foresight test – Is the harm of the same sort that was risked when defendant breached her duty? [Wagon Mound No. 1] (Possibility – may be sufficient to establish proximate cause)

            Or

         2. Directness test - Does the harm flow in an unbroken stream from defendant’s act? [Polemis]
      2. Issues
         1. Type of harm - foresight test [Wagon Mound No. 1]
         2. Manner in which injury occurred - no foresight needed [McLaughlin – unwrapped heat block caused burns]
         3. Extent of injury
            1. No foresight needed
            2. Eggshell skull rule [Benn v. Thomas]
            3. Aggravation of original injury [Wagner – Plaintiff’s crutches slipped while he was recovering from broken leg by defendant]
         4. Rescuers
            1. Normal rescue efforts do not break chain of causation.
            2. Defendant also owes duty of care to rescuers who are injured while reasonably performing ordinary rescue efforts. [Wagner]
         5. Criminal conduct – Intervening criminal conduct does not insulate from liability if that intervening cause was foreseeable, particularly if it was in fact foreseen. [Hines v. Garrett]
         6. Unexpected victim – A victim who is within a foreseeable class is within the scope of risk. [Palsgraf, Kinsman cases]

   Plaintiff must establish both in order to recover.

4. Damage
   1. Required to have a prima facie case.
   2. Lost opportunity can be recovered on a percentage basis. (not all jurisdictions) [Alberts v. Schultz]