Liability and compensation




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Unforeseeable Consequences

Juisti v. Hyatt Hotel Corporation of Maryland (4D 1996) - ∏ was staying in ∆'s hotel when the fire alarm went off after being triggered by a crew that was cleaning an oven hood in the kitchen without using proper ventilation. ∏ used fire escape stairs to exit building and suffered a collapsed lung. Court held that it must be determined whether the hotel might have anticipated that the ∏ might suffer injury as a consequence of evacuating the hotel by taking the stairs when the hotel's negligence caused the fire alarm to go off. Dissent - we don't want to discourage hotels from having working fire alarms.

    1. Stone v. Chicago Title Ins. Co. - "Our analysis of foreseeability in the proximate cause context turns on whether the actual harm to the ∏ fell within a general field of danger that ∆ should have anticipated… rather than whether the harm was the specific kind that he should have expected."

    2. G - de novo - no deference to the lower court - from scratch - usually you let the lower court stand unless they were really crazy

    3. well-accepted rule - as long as the ∆'s negligence created a reasonably foreseeable risk of the general kind of harm that befell the ∏, the exact way or precise manner the harm occurs does not matter for purposes of scope of liability.

    4. Restatement 3d Torts - adopts risk standard rather than foresight rule

      1. both risk standard & foreseeability test exclude liability for harms that were sufficiently unforeseeable at the time of the actor's tortious conduct that they were not among the risks that made the actor negligent

      2. risks that make an actor negligent are limited to foreseeable ones, factfinder must determine whether the type of harm that occurred is among those reasonably foreseeable potential harms that made the actor's conduct negligent

      3. risk standard takes into account the circumstances at the time of the actor's conduct and risks posed by that conduct

    5. Jury Instruction - Foreseeability Standard - "reasonably foreseeable consequences of his or her actions"

    6. Jury Instruction - Risk Standard - "∆ is liable… if you find that the ∏'s harm arose from the same general type of danger that was one of those that the ∆ should have taken reasonable steps to avoid."

  1. Intervening Forces – Criminal Conduct of a Third Person

McClenahan v. Cooley (TNSU 1991) - ∆ left his car unattended with the keys in the ignition, the car was stolen by a thief who crashed into and killed ∏'s pregnant wife and child and injured ∏'s second child. Court held that leaving a key in the ignition of an unattended automobile could be found by a jury to be negligent. This is a foreseeability issue regarding proximate causation and intervening cause, this is question of fact one which reasonable minds can/do differ.

    1. Smith v. Gore - proximate cause test 1) the tortfeasor's conduct must have been a "substantial factor" in bringing about the harm being complained of 2) there is no rule or policy that should relieve the wrongdoer from liability because of the manner in which the negligence has resulted in the harm and 3) the harm giving rise to the action could have reasonably been foreseen or anticipated by a person of ordinary intelligence and prudence

    2. city of Elizabethtown v. Sluder - "The fact that an accident may be freakish does not per se make it unpredictable or unforeseen."

    3. Shell Oil Co. v. Blanks – It’s enough that harm in the abstract could reasonably be foreseen

    4. Brookins v. The Round Table, Inc. - proximate causation is a jury question unless the uncontroverted facts and inferences to be drawn from them make it so clear that all reasonable persons must agree on the proper outcome

    5. Cartwright v. Graves - it is not necessary that tortfeasors or concurrent forces act in concert, or that there be a joint operation or a union of act or intent, in order for the negligence of each to be regarded as the proximate cause of the injuries, thereby rendering all tortfeasors liable.

Price v. Blaine Kern Arista, Inc. (NVSU 1995) - ∏, at work, was wearing a character head of George Bush made by ∆ when he was pushed and fell, injuring his neck b/c the head had no neck supports. The court held that the intervening push by the third party could be reasonably foreseeable and was thus a matter of fact for the jury.

    1. Gun Stores and Burglars

      1. Kimbler v. Stillwell (OR) - stolen gun used in random killing - ∏ argued that ∆ knew or should have known lack of security would make theft foreseeable - court held that it could not be said as a matter of law that the harm was not foreseeable - "The fact that a ∏'s injury was inflicted by the intentional, even criminal, act of a third person does not foreclose liability if such an act was a foreseeable risk facilitated by the ∆'s alleged negligence."

      2. Buchler v. Oregon Corrections Div. - overruled Kimbler - facilitation is not enough - "a ∆, to be liable, must have unreasonably created the risk of the sort of harm to the ∏ that befell him" (how would this work out different if used in Kimbler)

  1. Intervening Forces - Shifting Responsibility Issue

    1. sometimes the third party's conduct, although perhaps foreseeable, is so egregious that a court is motivated to conclude that the third party alone is liable for the consequences

      1. the mere fact of an intervenor does not in itself cut off the liability of the original negligent party nor is the nature of the intervening act (intentional, criminal, or merely negligent) necessarily determinative

      2. what matters is whether the intervening act is a foreseeable risk of the original negligence

      3. might assert reliance on the due care of a second party as a strategy in defending a negligence case - shifting responsibility

        1. analyze whether reliance on the due care fo the second party was appropriate in light of the factors set forth below

        2. sometimes analyzed as a matter of law, sometimes as a jury question in terms of whether the ∆ exercised reasonable care in relying upon the second party

McLaughlin v. Mine Safety Appliances Co. (NYSU 1962) - ∏'s daughter nearly drowned, was resuscitated by firefighter and bystander nurse using, in part, heat blocks which were applied directly to her skin without insulation, resulting in third degree burns. Court held that jury instruction improperly led to verdict for ∏. "…whether or not the distributor furnished ample warning on his product to third persons in general was not important here, if the jury believed the firefighter had actual notice of the danger… and that he deprived the nurse of her opportunity to read/gather any such notice." Dissent - rule is not absolute that it is not necessary to anticipate the negligence or even the crime of a third party. G - negligence here is cut off by fireman's intervening conduct.

    1. Restatement Torts - "The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about, if a) the actor at the time of his negligent conduct should have realized that a third person might so act."

    2. G - if original negligence, the third party intervening negligence might not be anticipated

    3. in shifting responsibility - analyze:

      1. culpability of the intervenor-intentional, criminal, reckless, negligent, or innocent

      2. the competence and reliability of the person upon whom reliance is placed

      3. intervenor's understanding of the facts and situation

      4. seriousness of the danger

      5. number of persons likely to be at risk of danger

      6. length of time elapsed between the conduct of the parties

      7. likelihood that proper care will or will not be used

      8. ease with which each of the parties can take precautions

Bigbee v. Pacific Telephone & Telegraph Co. (CASU 1983) - ∏ was standing in one of ∆'s phone booth when a drunk driver veered off the road and smashed into him, the door to the booth jammed and he could not escape. The court held that they could not conclude, as a matter of law, that it was unforeseeable that the booth might be struck by a car and cause serious injury to a person trapped within and it didn't matter that the harm to the ∏ came about through the negligent or reckless acts of a third party. Dissent - (duty analysis) without more information, as a matter of law no one should be said to be under a duty of care to protect others from them, particularly where there is no reason to believe that the party sought to be charged was in a position to foresee the risk of harm.

    1. Weirum v. RKO General, inc. - foreseeability is a question of fact for the jury

    2. 2 Harper & James - "foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful

5.03 EXCEPTIONS TO THE FORESIGHT RULE (p.590)



  1. The Medical Malpractice Complications Rule

Association for Retarded Citizens - Volusia v. Fletcher (FLAP 1999) - ∏'s son had a seizure while swimming, unsupervised, at ∆'s camp. Court held that a ∆ in a person injury lawsuit who is alleged to have negligently caused the ∏'s initial injury cannot require the ∏ to litigate a medical malpractice claim against medical care providers who subsequently treated the injury.

    1. Emory v. Florida Freedom Newspapers (FL) - "the law regards the negligence of the wrongdoer in causing the original injury as the proximate cause of the damages flowing from the subsequent negligent or unskillful treatment thereof, and holds him liable therefore."

    2. Stuart - allowing ∆ to require ∏ to pursue malpractice would "confuse and obfuscate" the issue of the original tortfeasor's liability by turning a simple personal injury action into a complex medical malpractice action."

    3. Rationales

      1. ease of bringing one lawsuit instead of two

      2. burden is on the ∆ to seek contribution for medical malpractice

    4. courts have also applied this rule when ∏ is injured on the way to the hospital or other medical treatment

  1. The Eggshell Plaintiff Rule

Pace v. Ohio Department of Transportation (OHSU 1991) - ∆'s snowplow hit ∏'s car, ∏, a diabetic, smashed his finger against the door, the finger became infected and had to be amputated. Court held that a negligent actor must bear the risk that his liability will be increased by reason of the actual physical condition of the other toward whom his act is negligent.

    1. AmJur - "A tortfeasor runs the risk that the person whom he injures may be in such condition that the injury will be far more serious than had such person been strong. Thus, one who violates the duty, imposed by law, of exercising due care not to injure others may be compelled to respond in damages for all the injuries which he inflicts by reason of the violation of such duty, even if a particular injury may have been aggravated by or might not have happened at all except for the peculiar physical condition of the injured person. This is the rule that the defendant takes the plaintiff as he finds him, or the "thin skull" or "eggshells skull" rule."

    2. Restatement 2d Torts - "The negligent actor is subject to liability for harm to another although a physical condition of the other which is neither known nor should be known to the actor makes the injury greater than that which the actor as a reasonable man should have foreseen as a probable result of his conduct."

    3. mental distress & thin-skulled rule

      1. applies to preexisting mental conditions if the defendant's negligence physically injured the plaintiff and that mental condition is aggravated as well

      2. if ∆’s negligence causes mental distress w/o physical injury the rule might not apply

  1. The Rescuer Rule

Sears v. Morrison (CASU 1999) - ∆ was repairing a piece of machinery when, while trying to empty his ashtray, the machinery fell on top of him. ∏ seriously injured her hand while attempting to rescue ∆. Court held an individual has a duty to prudently manage his person so as not to endanger others.

    1. Cardozo - "danger invites rescue" - Wagner v. International Ry. Co.

    2. Restatement 2d - "The intervention of a force which is a normal consequence of a situation created by the actor's negligent conduct is not a superseding cause of harm which such conduct has been a substantial factor in bringing about."

    3. Restatement 2d - "If the actor's negligent conduct threatens harm to another's person, land, or chattels, the normal efforts of the other or a third person to avert the threatened harm are not a superseding cause of harm resulting from such efforts."

    4. "The rule applies equally where the conduct of the actor has created a danger only to himself, if at the time of such conduct he should reasonably anticipate that others might attempt to rescue him from his self-created peril, and sustain harm in doing so.

    5. G - if you're unlucky enough to rescue somebody who was involved in a pure accident with no negligence involved too bad

Oscar Klein Plumbing and Heating v. Boyd (FLAP 1984) - ∆ was doing work on ∏'s jewelry shop and negligently caused clouds of dust to raise and settle on the jewelry, ∏ and her children spent nearly three months of nonstop cleaning to clean the jewelry. ∏ contracted carpal tunnel syndrome. On appeal, court held that rescue instruction wasn't needed because the property was not in imminent peril as a matter of law, there's no other way to bridge the gap of foreseeability.

    1. Eyrich v. Dam - man who rescued child from leopard at circus recovered as a rescuer, his bystander wife did not

    2. Suicide Exception - courts are generally reluctant to find defendants liable for a victim's conscious decision to commit suicide after an accident causing physical and mental distress.

      1. exception if defendant's negligence caused victim to become insane and mental disorder created an irresistible impulse to commit suicide

      2. courts do not hold the tortfeasor liable for damages stemming from the death where suicide is a conscious response to negligently inflicted injuries

        1. exception where original tort creates a state of insanity in the victim, causing an irresistible impulse in him to commit suicide

        2. contrary to psychology - psychiatrists see all suicide as equally foreseeable

      3. no requirement for showing insanity if ∆ is in an institution such as a mental hospital or prison that has the responsibility or duty to "prevent suicides"

6.01 PERSONAL INJURY DAMAGES (p.620)



  1. Overview - Three areas of personal injury damages

    1. past earnings losses and future earning power losses

    2. past and future medical and hospital expenses

    3. past and future pain and suffering

Calva-Cerqueira v. United States (DCD 2003) - ∏ was struck by ∆'s Smithsonian bus as it ran a red light, ∏ is severely injured, paralyzed, nonfunctional. Court based pain & suffering award on similar situation in another case. Court held that ∏ could receive entire medical expenses regardless of discounts. Court used discounting methodology to determine present award for future damages - methodology must take into account time-value of money and must consider the effects of inflation (given safest investment). Court held future medical expenses do not demand ∏ accepts less costly standard of care and should not be considered apart from tax. Court held future lost wages should take into account age, sex, socio-economic status, behavior, academic record, intelligence, and dexterity. FTCA limits damages to initial request made by ∏, in this case $20 million.

    1. Richards v. United States - FTCA - law of the state where the misconduct occurred governs substantive tort liability, including the nature and measure of the damages to be awarded

    2. Courts have defined "reasonable certainty" as identical to the preponderance of the evidence standard. In addition, courts should only award damages for future medical expenses when the expenses are reasonable and necessary

    3. Wood - Pain and suffering damages are appropriate for "conscious" pain and suffering

    4. Hardi v. Mezzanotte - In DC, compensatory damages are subject ot the collateral source rule, which states that "payments to the injured party from a collateral source are not allowed to diminish damages recoverable form the tortfeasor" - applies when either 1) the source of the benefit is independent of the tortfeasor or 2) the plaintiff contracted for the possibility of a double recovery

    5. with permanent injuries - ∏ has to establish life expectancy - typically done through mortality tables - individual circumstances must be considered - work life tables are prepared by Federal Bureau of Labor Statistics

    6. Inflation - 3 approaches

      1. increase the award to provide for inflation then reduce by discounting to present value - ∏ must establish inflation and discount rates

      2. determine what the "real" interest rate (investment value over and above inflation) is and discount based on that rate –

      3. assume that inflation rate and discount rate cancel each other out and no adjustments are needed

    1. Doctrine of Mitigation of Damages or Rule of Avoidable Consequences - if ∏ fails to undergo medical treatment, ∆ may be relieved of responsibility for damages - difficult if refusal due to religious beliefs

    2. mental anguish before physical injury - such as when plane is crashing and passengers are aware of impending crash

    3. Loss of Consortium - loss of life partner's services, society, companionship, affection, sexual relation - usually marriage, sometimes civil union or parents

    4. property damage - if personal property is destroyed,t he usual measure is the market value on the day of the accident - if property is only damaged, recovery is measured by diminution in market value as of the day of the accident and/or repair costs

7.01 DEFENSES & IMMUNITIES – CONTRIBUTORY NEGLIGENCE



  1. History

    1. Butterfield v. Forrester (KB 1809) - fast riding plaintiff ran his horse into an obstruction that ∆ had left in the road - approved jury instruction stated that if a person riding carefully would have avoided crashing into the obstruction, then a verdict had to be returned for the defendant

      1. earliest case establishing contributory negligence defense

      2. if both parties were at fault, neither could recover from the other

    2. became prevalent during railroad development (1840-1900) - protected railroads from extensive liability

    1. courts

      1. only allowed defense where ∆'s conduct was negligent, if ∆ was more culpable, ∏'s unreasonable conduct didn't matter

      1. "last clear chance" - negligence ∏ could recover upon proof that the ∆ was more culpable because he had the opportunity to prevent the harm

      1. not permitted in some contexts such as where ∏'s fault was based on a statute, such as a child labor law

  1. Overview

    1. G - assumption of risk and contributory negligence, two big ticket defenses

    2. G - the first defense you'll think about - challenge the ∏'s prima facie showing

    3. only relevant when ∏ has established prima facie case of negligence against ∆

    4. under contributory negligence defense, ∏'s recovery is barred b/c of his own conduct, not due to any flaw in the primary negligence claim against ∆

  2. Process

    1. must show by preponderance of the evidence - burdens are all on ∆

      1. fell below relevant standard of care

      2. breach of duty was cause-in-fact and proximate cause of injury

    1. duty is not an issue, everyone has a duty to themselves

    2. damages are not relevant

    3. even a small amount of ∏'s contributory negligence bars her from recovery

 

7.02 DEFENSES & IMMUNITIES – COMPARATIVE FAULT (p.691)



  1. The Basic Policy

    1. all but a few states have adopted some form of comparative fault

    2. where both a ∏ and ∆ are at fault, they should share the responsibility rather than have it fall entirely on one party or the other

      1. pure - negligent ∏ recovers some damages from the negligent ∆ no matter how much at fault the ∏ is

      2. modified - ∏ recovery is barred if ∏'s fault is greater than the ∆'s or just as great as the ∆'s (depends on jurisdiction)

Hoffman v. Jones (FLSU 1973) - whether or not the court should replace the contributory negligence rule with the principles of comparative negligence - contributory negligence is archaic and unfair - held - when the negligence of more than one person contributes to the occurrence of an accident, each should pay the proportion of the total damages he has caused the other party - held - a plaintiff in an action based on negligence will no longer be denied any recovery because of his contributory negligence - held - jury should apportion the negligence of the plaintiff and the negligence of the defendant; then, in reaching the amount due the plaintiff, the jury should give the plaintiff only such an amount proportioned with his negligence and the negligence of the defendant

    1. last clear chance no longer relevant because all of the circumstances are taken into account by the jury

    2. in multiple defendant cases, the advent of comparative fault raises questions about whether each independent ∆ should be jointly and severally liable for the judgment award or liable only for a proportionate share

    3. doctrine of avoidable consequences - ∆ need not pay for any additional harm that the ∏ could have avoided through reasonable care

  1. Factors in Assigning Percentages of Fault

Wassell v. Adams (7C 1989) (POSNER) - ∏ was raped while staying in a hotel room, hotel owners gave her no warning about neighborhood, there was no phone in her room and no alarm. On appeal, court upheld her 97% comparative negligence b/c, although they didn't really like it, there wasn't a basis to overturn the jury verdict.
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