Liability and compensation




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Uniform Comparative Fault Act - jury's attention should be addressed to:

  1. whether the conduct was inadvertent or also involved awareness of danger involved

  2. the probability of the risk

  3. the gravity fo the harm

  4. the number of persons placed at risk

  5. the significance of what the actor was seeking to achieve by her conduct

  6. the actor's superior or inferior capacities

  7. the existence of an emergency

  8. the relative closeness of the ∆'s wrongful conduct and harm to the ∏

  • Restatement 3d Torts - factors that should bear on assigning percentages of responsibility include

    1. factors necessary to determine whether a party "engaged in legally culpable conduct that was a legal cause of the plaintiff's injury"

    2. relative character of the risk-creating conduct

    3. the unreasonableness fo the conduct

    4. "the extent to which the risk-creating conduct failed to meet the applicable legal standard"

    5. the causal connection between the party's conduct and the harm

    6. the surrounding circumstances

    7. the party's state of mind

  • Keep in mind fault and Non-Parties

  • jurisdictions are split on whether comparative fault principles should apply when intentional wrongdoing underlies the tort claim

    7.03 DEFENSES & IMMUNITIES – ASSUMPTION OF RISK (p.705)



    1. Overview

      1. arose around 1799

      2. Davenport v. Cotton Hope Plantation (SC 1998) - modern notion of assumption of risk has its roots in Latin maxim votenti non fit injuria ("to one who is willing, no harm is done") … The doctrine of assumption of risk, grounded in laissez-faire economics, flourished during the Industrial Revolution…"

    2. Express Assumption of Risk

      1. public policy can prevent an express agreement to waive liability from taking effect

      2. one person gives explicit written or oral permission to release another party from an obligation of reasonable care

        1. Milligan v. Big Valley Corp - experience skier participating in decathlon lost control and died on ski slope, evidence showed the ski resort knew the area where skier had lost control was perhaps risky, court held that b/c of assumption of the risk by skier, who signed a waiver, his family could not recover

        2. Brooks v. Timberline Tours - court upheld a waiver signed by minor decedent's parents from recovery from arguably negligent snowmobile tour company

      3. person signing a waiver gives up more than right to recover if harmed by risks of activity, they give up the right to recover for injuries suffered as a result of the ∆'s unreasonable conduct

      4. limitations

        1. waiver = contract - language must be clear and unambiguous

        2. courts consider context of the activity to determine whether waiver is void as against public policy - CA identified 6 criteria

          1. concerns a business of a type generally thought suitable for public regulation

          2. party seeking exculpation is engaged in performing a service fo great importance to members of the public

          3. the party holds himself out as willing to perform this service for any member of the public who seeks it or at least any member coming within certain established standards

          4. as a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services

          5. in exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional fees and obtain protection against negligence

          6. as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents

        3. waivers do not relieve ∆s of liability for reckless or intentional wrongdoing

        4. releases to charitable research hospital, school district and university sports

      5. VA Supreme Court - to put one party to a contract at the mercy of the other party's misconduct "can never be lawfully done where an enlightened system of jurisprudence prevails."

    1. Implied Assumption of Risk

      1. three elements

        1. knowledge of the risk

        2. appreciation of the risk

        3. voluntary exposure to the risk

    Bowen v. Cochran (GAAP 2001) - ∏ bought a gas cooker from ∆, ∆ instructed ∏ how to light the cooker properly but ∏ did not follow directions and the cooker exploded on ∏, burning him. Court held that there was sufficient evidence for a jury to find that ∏ had assumed the risk. Dissent1 - evidence didn't show an actual and specific subjective knowledge or understanding and appreciation of the specific risk. Dissent2 - no evidence to show the ∏ knew or should have known of the specific risk that caused the explosion.

      1. the ∆ must present evidence that the ∏ had actual knowledge of the danger, understood and appreciated the risk, and voluntarily exposed himself to that risk."

      2. "a ∏'s contributory negligence bars any recovery whatsoever if his failure to use ordinary care for his own safety is the sole proximate cause of his injuries, even though such negligence concurs with the negligence of the ∆."

      3. Beringause - "If, in the exercise of ordinary reasonable care for his own safety, ∏ could and should have discovered the danger before he actually did and could and should have avoided the injury, then he would have been contributorily negligent, but he would not have assumed the risk."

      4. effect of implied assumption of risk - many courts have divided the defense of assumption of the risk into two:

        1. limited duty rules

        2. contributory negligence


    Murray v. Ramada Inns, Inc (LASU 1988) - ∏ was paralyzed (and later died) after diving into a shallow pool and striking his head on its bottom. Certified question - whether assumption of risk as a bar to recovery is distinct from comparative fault? Court held that assumption of risk as a bar to recovery is inconsistent with statutory mandate of comparative negligence, ∏ can still waive right to recover, parties such as baseball stadiums still have a duty to act reasonably.

      1. Bohlem - idea that ∏ who confronts a known danger necessarily must have chosen to do so was "a terse expression fo the individualistic tendency of the common law" which regarded "freedom of individual action as the keystone of the whole [legal] structure.

      2. Restatement 2d Torts - "Failure to exercise due care either to discover or understand the danger is not properly a matter of assumption of risk, but of the defense of contributory negligence."

      3. Anderson v. Ceccardi - "express assumption of risk" includes cases where ∏ "expressly contracts with another not to sue for any future injuries which may be caused by that person's negligence. - release usually bars ∏ from recovery unless there's a statute or public policy against it

      4. Duffy v. Midlothian Country Club - implied - ∏ has made no express agreement to release the ∆ from future liability, but he is presumed to have consented to such a release because he has volutnarily participated in a "particular activity or situation" which involved inherent and well known risks.

      5. after adoption of comparative fault rules, most courts broke assumption of risk down into three parts:

        1. express assumption of risk

        2. no duty or limited duty situations

        3. a form of contributory negligence

    8. 05 ASSAULT, BATTERY, AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (p.802)



    1. Basics

      1. Intent

        1. Intent is an element in battery, assault, false imprisonment, and intentional inflictionof emotional distress

        2. measured by subjective standard, the ∆'s state of mind

        3. Restatement: A person acts with the intent to produce a consequence if: (a) The person has the purpose of producing that consequence; or (b) The person knows to a substantial certainty that the consequence will ensue from the person's conduct.

        4. transferred intent - if A throws a rock at B and hits C, A's intent to hit A is sufficient to satisfy intent requirement for a battery against C

      2. rationale

        1. battery - protecting (1) the interest in physical integrity, freedom from contacts; (2) a dignitary interest, freedom from offensive bodily contact

        2. assault - conduct which creates apprehension of a harmful or offensive touching, but no actual contact, threats - protection of the mental state of individuals to be free of such wrongful apprehension, protecs against threats of harmful or offensive contact and threats of false imprisonment

          1. generally unavailable where there is no accompanying aggressive conduct such as moving toward a person while threatening violent action verbally

          2. not available where abusive verbal comments are not related to harmful or offensive physical contacts

        3. intentional infliction of emotional distress - recognized in the 1950s - protection against intentionally inflicted emotional harm where the defendant's conduct went beyond the bounds of civilized conduct and could be considered "outrageous"

    Dickens v. Puryear (NCSU 1981) - ∏ was dating ∆'s teenage daughter, sex, drugs, alcohol. ∏ went to meet ∆, ∆ and buddies beat the hell out of him, threatened to castrate or kill him, before releasing him they said that if he didn't leave NC they would kill him. Court held intentional infliction of mental distress consists of (1) extreme and outrageous conduct, (2) intended to cause and does cause (3) severe emotional distress to another. May also exist where ∆'s actions indicate a reckless indifference to the liklihood that they will cause severe emotional distress. Enough for trial in this case, not enough to demonstrate conspiracy between ∆ and his wife.

      1. Hayes v. Lancaster - an assault is an offerto show violence ot another without striking him, and a battery is the carrying of the threat into effect by the infliction of a blow

      2. State v. Ingram - apprehension created must be one of an immediate harmful or offensive contact, as distinguished from contact in the future

      3. Restatement 2d Torts - "to make the actor liable for an assault he must put the other in apprehension of an imminent contact…. the apprehension created must be one of imminent contact, as distinguished from any contact in the future. "Imminent" does not mean immediate, in the sense of instantaneous contact… It means rather that there will be no significant delay."

      4. Restatement - "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm."

      5. Restatement - "∆ is liable for this tort when he desires to inflict severe emotional distress… or knows that such distress is certain, or substantially certain, to result from his conduct…. or where he acts recklessly… in deliberate disregard of a high degree or probability that the emotional distress will follow and the mental distress does in fact result."

    Vetter v. Morgan (KSAP 1995) - ∆ pulled up next to ∏, yelling at ∏ 's car, spat at her, made obscene gestures. ∏ also alleges ∆ turned van into her when light turned green. Court held that the record was sufficient to support an inference that the threats and circumstances surrounding it could reasonably put someone in ∏'s position in apprehension of imminent or immediate bodily harm. Whether the actions constituted an assault was a question of fact for a jury.
    Villa v. Derouen (LAAP 1993) - ∆ was goofing around at work, pointed blowtorch between ∏'s legs, blowtorch ignited and burned ∏. Court held that a reasonable juror could not have found that ∆ did not either intend for the air from his cutting torch to come into contact with ∏'s groin or, alternatively, we find that a reasonable juror could not have found that ∆, in pointing his torch at ∏, as not aware or substantially aware that the oxygen would come into contact with ∏'s groin area.

      1. LSA-RS - If an employee is injured as a result of an intentional act by a co-employee, he can pursue a tort remedy against that employee

      2. Bazley v. Tortorich - "an intentional tort" for the purpose of allowing an employee to go beyond the exclusive remedy of workman's compensation, meant "the same as 'intentional tort' in reference to civil liability.

      3. Caudle v. Betts - a civil battery - a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a contact

      4. Caudle - The intention need not be malicious nor need it be an intention to inflict actual damage. It is sufficient if the actor intends to inflict either a harmful or offensive contact without the others consent

    White v. Muniz (COSU 2000) - ∏ was struck by ∆'s decedent, who was suffering from Alzheimer's and punched ∏ while ∏ was providing personal care for ∏. Court held that a plaintiff must prove that the actor desired to cause offensive or harmful consequences by his act. The plaintiff need not prove, however, that the actor intended the harm that actually results.

      1. generally an intentional tort requires some proof that the tortfeasor intended harm or offense

      2. White v. University of ID - determining that battery requires an intent to cause an unpermitted contact, not an intent ot make a harmful or offensive contact

      3. G - there are jurisdictions that say "what you have to find is a volitional act that causes harm to a reasonable person" - more jurisdictions will say "we're interested in a volitional act and you have some understanding of the nature of that contact in terms of its harmfulness"

    Ailiff v. Mar-Bal, Inc (OHAP 1990) - ∏ suing ∆ employer for intentional tort claim where ∆ made ∏ use caustic solvent without necessary precautions and ∏s suffered injuries. Court held that there was significant evidence to show that ∆ knew that the injuries were substantially certain to result from the procedures inherent in the solvent, and still continued to utilize these methods. Ohio law will treat the company as if it had, in fact, desired the result.

      1. Van Fossen v. Babcock & Wilcox Co - In order to establish intent for the purpose of proving the existence of an intentional tort committed by an employer against his employee, the following factors must be demonstrated: (1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty and not just a high risk; and (3) that the employer, under such circumstance, and with such knowledge, did act to require the employee to continue to perform the dangerous task.

      2. Harasyn v. Normandy Metals - "Under this standard, an intentional tort occurs when the actor desires to cause the consequences of his act, or he believes that the consequences are substantially certain to result from it."

      3. Restatement - "The first level, 'direct intent,' is where the actor does something which brings about the exact result desired. In the second [inferred intent], the actor does something which he believes is substantially certain to cause a particular result, even if the actor does not desire that result."

      4. G - you can't bring a negligence claim against employer, you're limited to workman's comp, positives - there are no defenses, you just get paid -- negatives - the recovery is well defined

    Leichtman v. WLW Jacor Communications (OHAP 1994) - ∏, a national anti-smoking advocate, was on ∆ radio show when talk-show host blew smoke in his face. Court held that, under Ohio law, the host committed a battery, no matter how trivial the incident, a battery is actionable even if damages are only one dollar.

      1. State v. Phipps - "offensive" = "disagreeable or nauseating or painful because of outrage to taste and sensibilities or affronting insultingness."

      2. Lacey v. Laird - no matter how trivial the incident, a battery is actionable even if damages are only one dollar

      3. Pound - "In civilized society men must be able to assume that others will do them no intentional injury that others will commit no intentioned aggressions upon them."

      4. Osborne - whether an employer is liable under the doctrine of respondeat superior because its employee is acting within the scope of employment is ordinarily a question of fact

    Hall v. McBryde (COAP 1996) - ∆ was shooting at some youths driving by his house, struck his neighbor, ∏. Court holds that by aiming and firing a loaded weapon at the car, ∆ intended to put the youths in the car in apprehension of a harmful or offensive bodily contact, SO ∆'s intent to place other persons in apprehension of a harmful or offensive contact was sufficient to satisfy the intent requirement for battery against ∏.

      1. Restatement 2d Torts - "If an act is done with the intention of inflicting upon another an offensive but not harmful bodily contact, or of putting another in apprehension of either a harmful or offensive bodily contact, and such act causes a bodily contact to the other, the actor is liable to the other for a battery although the act was not done with the intention of bringing about the resulting bodily harm. (2) If an act is done with the intention of affecting a third person in the manner stated in Subsecction (1), but causes a harmful bodily contact to another, the actor is liable to such other as fully as though he intended so to affect him."

      2. Elements of Battery

        1. Volitional Act

        2. Intent (actual/sub. cert/transferred)

        3. Causation

        4. Prohibited result

      3. if you touch somebody and their shoulder is dislocated - some jurisdictions don't insist of an appreciation of the risk, in those jurisdiction the only consideration is if the contact was intended

    8. 05 INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (p.802)



    1. Basics

      1. developed in last 50 years

      2. culpability can be satisfied by proving either intent or recklessness

      3. civility calls for decent and humane conduct and speech towards our neighbors regardless of what free speech may protect

    Brandon v. County of Richardson (NESU 2001) - ∏'s daughter was raped and then murdered b/c she was living as a transgender individual. After the rape, ∆ interviewed victim and harrassed her pretty seriously, causing her serious emotional distress. Court had dismissed the intentional tort claim, survival of claims issue, whether the claim survives the victim's death. On appeal the court determined that ∆'s conduct was extreme and outrageous as a matter of law, ∆ had a duty to protect victim, and remanded.

      1. Iwanski v. Gomes - To recover for intentional infliction of emotional distress, a ∏ must prove the following: (1) that there has been intentional or reckless conduct, (2) that the conduct was so outrageous in character and so extreme in degree as to go beyond all possibel bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community, and (3) that the conduct caused emotional distress so severe that no reasonable person should be expected to endure it.

      2. Doe v. Calumet City - Whether conduct is extreme and outrageous is judged on an objective standard based on all the facts and circumstances of the particular case.

      3. Drejza v. Vaccaaro - relationship between the parties and the susceptibility of the plaintiff to emotional distress are important factors to consider.

      4. Restatement - mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities that result from living in society do not rise to the level of extreme and outrageous conduct.

      5. Outrageous Conduct and Severe Emotional Distress - 2 elements

        1. outrageous conduct requirement is designed to assure that the conduct be extraordinarily wrongful to impose liability

        2. emotional distress requirement eliminates minor annoyances and ordinary embarrassing circumstances

      6. Restatement - "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"

      7. Severe Emotional Distress - in many cases, emotional distress is corroborated by resulting physical problems - some courts require physical consequences - only a few courts require the emotional distress be a diagnosable illness - courts rely on the outrageousness of the conduct to corroborate the existence of serious distress

    1. Hate Speech and Free Speech

      1. Freedom of expression is not absolute despite the First Amendment's rather clear language that "Congress shall make no law…"

      2. commercial speech is given less protection than other speech

      3. defamation and privacy allow regulation under restrictive circumstances

      4. protection of the public order is another category of regulated speech

      5. Lawrence - "There is a great difference between the offensiveness of words that you would rather not hear because they are labeled dirty, impolite, or personally demeaning and the injury inflicted by words that remind the world that you are fair game for physical attack, that evoke in you all of the millions of cultural lessons regarding your inferiority that you have so painstakingly repressed, and that imprint upon you a badge of servitude and subservience for all the world to see."

    Alcorn v. Anbro Engineering Inc. (CASU 1970) - ∏ was employed as a truck driver by ∆. ∏ told another employee not to do something b/c he wasn't a teamster, ∆ (supervisor) yelled racial attacks at ∏ and fired him - ∏ was re-hired. Court held that triar could find the ∆'s conduct extreme and outrageous having a severe and traumatic effect on ∏'s emotional tranquility.

      1. Restatement - "Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability."

      2. G - Intent - should be actual, substantial certainty, OR reckless

    Swenson v. Northern Crop Insurance, Inc. (NDSU 1993) - ∏ was promoted, her boss at ∆ employer did not like that, made derogatory and sexist remarks, gave her a lower position - she quit. Court noted supervisor's authority over ∏ and supervisor's knowledge of ∏'s deteriorating emotional condition. Court held that jurors could differ over whether the ∆'s conduct was so outrageous to exceed all bounds of decency under all the circumstances. Concur - sex discrimination without more cannot constitute sufficiently outrageous conduct to raise a jury question.
    Logan v. Sears, Roebuck & Co (AK 1985) - ∏ was credit card user, while on the phone with ∆ he heard them in the background referring to him as a queer. Court held that the statement was relatively trivial insult - no relief - people have been using the word "queer" for a long time.
    8. 07 FALSE IMPRISONMENT (p.823)

    1. Basics

      1. the wrongful confinement, restraint, or detention of an individual to a limited area.

      2. courts generally hold that the ∏ must be aware of the confinement, but modern cases have been challenging this rule

      3. false imprisonment cases involving police are typically characterized as false arrest cases and can be maintained as false imprisonment and civil liberties violation claims

    Wal-Mart v. Cockrell (TXAP 2001) - ∏ was in wal-mart with his parents when he was apprehended by a "loss-adjustment officer" who took him in the back and accused him of shoplifting. The officer asked him to take down his pants, pull up his shirt, and remove the bandage over a wound from a recent liver transplant. Elements are: willful detention, performed without consent, and without authority of law. Court held that there were facts to support a finding of false imprisonment, that the search was unreasonable in scope (obviously nothing under the bandage), and that there was evidence of mental anguish.

      1. Randall's Food Markets, Inc. v. Johnson - The elemtns of false imprisonment are: (1) a willful detention; (2) performed without consent; and (3) without the authority fo law.

      2. J.C. Penney Co. v. Duran - A person may falsely imprison another by acts alone or by words alone or by both, operating on the person's will

      3. TX Civil Practice & Rem Code - The shopkeeper's privilege expressly grants an employee the authority of law to detain a customer to investigate the ownership of property in a reasonable manner
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