Liability and compensation

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TORTS – Fall 2006

“G” = something that Goldwasser said in class


  • set of rules regarding liability and compensation for personal injury, death, and property damage that one party causes to another - rules for shifting losses from injured victims to the persons and companies causing injuries

  • grew out of a focus on bodily injury and physical property damage - now extended to include harm to reputation, privacy, emotional well-being, and economic losses

  • includes legislative measures related to torts and alternatives to tort liability

    1. ACCIDENTS IN THE US (p.4)

  1. Introduction

    1. 2003 - accidents were responsible for 101,500 deaths, 21 million disabling injuries, and 40 million hospital emergency room visits - 5th highest cause of death - economic consequences approx. $608 billion - in 2004 approx 16% of the population did not have private insurance - less than 50% are covered by disability insurance providing wage loss protection

    2. tort recovery - 1) if no one was at fault, there typically will be no recovery at all 2) the expenses of tort litigation are very steep (indirectly the courts' expenses are high also)

  2. Accidental Deaths

    1. principal causes = motor vehicles (close to half), poison, falls, drowning, fires

    2. downward trend in accidental deaths since 1900 - lowest was in 1992 - 12/hour die

    3. ratio of traffic deaths to miles driven is 1.56 for every 100 million miles

    4. deaths in homes downward trend since 1912 but up since 1987

    5. considerable reduction in workplace deaths

  3. Accidental Injuries

    1. serious accidents at home are four times more likely than in car

    2. seat belts reduce chance of death or injury by 50%

  4. Accident Costs

    1. 2003 - $608 billion in lost wages, medical expenses, and property damages

    2. 2003 - lost quality of life valued at more than $1,350 billion (calculated from empirical studies based on what people pay to reduce safety and health risks)

  5. Tort Claims and Damage Awards

    1. tort reform is very popular at the moment - the perception is that torts cases are out of hand - scholars agree the system has weaknesses – HOWEVER

      1. state court filings are down 4% since 1993 and only comprise a total of 10% of all civil filings - plaintiffs win 49% - jury trials are rare and only happen in about 3% of all tort case dispositions - the median personal injury award is about $50,000 - 85% are below the mean of $455,000 - med malpractice & product liability are higher because more serious injuries - awards over $1 million constitute only 3% of all awards - punitives are rare


  1. Criminal law and tort law cover much the same ground, in the beginning shared the same scope - law satisfied public & private need for vengeance and to avoid citizens taking the law into their own hands - deterrence of wrongful conduct also came to be an important objective

    1. tort liability was a legal device to dissuade a victim from retaliation by offering monetary compensation - torts were closely related to threats of public disorder/breaches of the peace

    2. the first date more than 3500 years ago and required compensation for certain intentional wrongdoing as well as some careless misconduct

  2. Royal Courts in England established after Norman conquest of England in 1066

    1. Roman Law - highly sophisticated - included rules on fault and intentional wrongdoing

    2. England –

      1. writ of trespass - related to direct & immediate aggression against a person or against the personal and real property of an individual

      2. writ of trespass on the case = indirect injury

    3. unintentional accidents/harms - became much more common after 1800 when the country became much more industrialized - common law courts developed accident law to accommodate the changes in society

    4. development of negligence law - two theories

      1. designed to assist the development of business during early industrialization

      2. personal moral culpability combines with economic development

      3. result = fault based on "social fault" = conduct is measured against the conduct of what a reasonable person would have done in the circumstances

      4. negligence is the primary system of seeking compensation for unintentional harm

        1. changed since the 1800s as society and reasonable conduct have changed

      1. abnormally dangerous activities are handled under strict liability


  • three perspectives

    • victim - wants to be free of risks to his or her bodily and emotional integrity as well as risks to his or her property and economic interests - if injured he or she wants compensation

    • injurer - concerned with his or her freedom to engage in personal and business activities without facing potential liability for harming arising out of those activities

    • society - interests in compensating victims and in not unduly burdening productive economic activities - also interests in developing tort rules that are workable, effective, and efficient

  1. Deterrence (of unsafe activities) and Accident Prevention

    1. accident law should help to reduce the level of accidents - compensation must be concerned with deterring unsafe conduct - financial responsibility is an important incentive for this

    2. criminal and regulatory law also address safety, but alone are not sufficient w/o torts

  2. Compensation (of injured victims)

    1. resources should be enough for them to get present and future medical and rehabilitative care as well as compensate for lost earnings and impairment of future earnings capacity

    2. pain & suffering, loss of enjoyment of life, & inability to maintain relationships also weighed

  3. Encouragement of Economic Growth & Progress

    1. accident law should not unnecessarily or unduly burden economically productive endeavors - emphasis on entrepreneurial activities b/c they benefit community & business owners

    2. liability insurance grew out of tort liability system - businesses can insure themselves against the financial impact that a tort judgement can have

      1. indemnity insurance obligates the insurance company to reimburse the insured for any tort judgments paid to 3rd parties arising out of the insured's negligence - if the insured is insolvent, the insurance company has no obligation to settle a case or pay a judgment

      2. indemnity developed into liability insurance which requires the insurance company to defend the insured against negligence claims, take control of the case for settlement purposes, and obligates it to pay any judgments against the insured up to the contractual limits of their policy

        1. spreads any losses widely

        1. assures compensation to victims

  1. Administrative Efficiency: effective and efficient legal process - operative standards must be workable in the legal process, provide guidance to lawyers in preparation and argument of a case and allow for a fair balance of stability and flexibility - resort to law cannot be unduly costly or time consuming

  2. Fairness - justice is integral - public acceptance and support depends on it


  1. Unintended Harm

    1. Strict Liability –

      1. responsibility is based on causation w/o regard to whether the conduct involves fault

      2. actual knowledge or foresight of the risks involved is required in some strict liability

      3. applied modestly in modern tort law, “abnormally dangerous activities” dangerous animals, intruding livestock, product liability, manufacturing defects, special cases

    2. Negligence - unintended harms

      1. auto accidents, medical malpractice, "slip and fall" - unreasonable conduct that creates foreseeable risk of harm

      2. much broader than morally culpable conduct - evaluated against a social norm based on what a reasonable person would have foreseen and done under the circumstances - juries define that

      3. plaintiff must prove that she has sustained harm that is legally protected such as bodily injury or property damage - also must prove a causal connection between the injuries and the defendant's unreasonable conduct - compensation is available but punitive damages are not

    3. Recklessness - more culpable than negligence - usually can be invoked when conduct shows a conscious disregard of a high risk of harm - opens the possibility of punitive damages award

  2. Intended Harm: Intentional Torts

    1. Battery – protects against harmful or offensive contact

    2. Assault – protects against reasonable apprehension of harmful or offensive contact

    3. willfulness – purpose or desire to cause harmful or offensive contact with another – starting point in establishing intent for these torts

    4. compensatory damages are available, even if no physical injury – damages can redress an affront to human dignity – punitive damages are also available


  1. Lawyer Consultation

    1. Interview

      1. Consideration & compassion – develop rapport

      2. Explains process & client’s rights & responsibilities

    2. Fees

      1. contingency fee arrangement - no fee unless the lawyer wins

      2. percentage of the total award (usually graduated by process length)

    3. Preliminary Investigation - accident scene, police reports, witness statements, doctors, etc

    4. Defense Lawyers

      1. often brought in by liability insurance co. - typically paid by the hour

      2. insurance adjuster has already worked to resolve the problem, investigate facts, & find information on the value of the case

  2. Pleadings

    1. Complaint - filing of complaint begins the lawsuit

      1. identifies defendants, facts of the accident, the harm, the damages sought, and the legal theories the plaintiff is relying on

      2. lawyer must identify the appropriate court to file in

      3. complaints are also served to the defendant who responds with a pleading response

    2. Motions - docs filed w/ court & served on the other party request some action by the judge

      1. motion to dismiss - for failure to state a claim upon which relief can be granted

      2. demurrer - even assuming that all the factual allegations are true, the plaintiff has not stated a valid legal claim - tort law may not recognize the type of claim/harm

      3. a motion to dismiss raises issues immediately for early discussion

        1. PURPOSE - terminate case early when there is no legal basis for a claim

        2. judge will ask attorneys to file briefs - his decision is called an order

    3. Answer - defendant files an answer to the complaint that admits or denies facts and legal conclusions alleged in the complaint and sets forth any defenses that he or she will assert

  3. Pre-Trial Procedure

    1. Investigation –

      1. both parties are required to investigate before filing complaints

      2. formal discovery - encourages settlement and preparation

    2. Discovery

      1. Basic Information –

        1. names & addresses of all parties

        2. copies and descriptions of all documents, data, and tangible things

        3. computation of any category of damages claimed

        4. copies of any relevant liability insurance policies

      2. Interrogatories - written questions about the case - anything that might be relevant

      3. Depositions –

        1. oral testimony, under oath, of any person having relevant information

        2. depositions can be used when a witness testifies in court - also preserves testimony when a witness is very ill or near death

      4. Production of Documents – computer databases, file record, emails, etc

      5. Medical Examinations - plaintiff may be examined to demonstrate impairment

      6. Requests for Admissions

        1. request that the other party admit or deny the truth of any relevant matter - including the genuineness of any document

        2. purpose is to eliminate need to prove matters at trial that are not in dispute

        3. if a party refuses to make an admission, he might need to pay the other party the expense of proving the fact in question

    3. Motions

      1. Discovery Motions - if there's a dispute you can ask for the court's ruling

      2. Motions in Limine - party can file to control some part of the upcoming trial (ex: to preclude a witness or bar certain inappropriate evidence)

      3. Summary Judgment Motion - either side can seek summary judgment before trial on all or part of their claims or defenses

        1. summary judgment motion tests merits of the claim based on sworn affidavits or discovery responses

        2. FIRST the court must find:

          1. that there is no genuine issue of material fact in dispute

          2. that the moving party is entitled to judgment as a matter of law

        3. three issues that arise in legal analysis:

          1. issues of fact (jury, unless a jury trial has been waived

          2. issues of law (judge)

          3. issues related to the application of the law to the facts (juries)

        4. if facts or a mixed question of law and fact are in dispute - trial is required

        5. if reasonable juror could find the facts either way, then the dispute is genuine, and summary judgment is not an option

    4. Settlement Negotiations and Mediation - can occur at and in-between any stage –

      1. very small percentage of personal injury claims go to trial - judges encourage settlement - as trial approaches parties get nervous about uncertain outcome

      2. mediation, arbitration, and private judges are alternatives

        1. mediation = a neutral third party facilitates a discussion of the issues to help them resolve the dispute - parties are in control instead of a judge

    5. Pre-Trail Conference - typically after discovery - parties and judge work toward developing a pre trial order which specifies the claims of the plaintiff, the defendant's defenses, the admitted facts, the disputed facts, the issues of law, the names of witnesses, and a list of exhibits - judge dictates the order based on the proposals from each side

  4. Trial - Part 1

    • Juries - use in civil cases is unique to US - often 6 jurors instead of 12

      • judges decide issues of law - juries decide issues of fact

      • juries determine inferences to be drawn from the facts

      • parties can waive the jury and have a trial by court -judge will decide the legal issues and will act as a triar of facts

    1. jury selection

      1. lawyers ask questions - voir dire

      2. jurors are removed by the judge "for cause"

      3. each side can peremptory challenge and excuse a certain number of jurors for any reason except those constituting unlawful discrimination

      4. jury takes an oath

    2. opening statements

      1. plaintiff - nature of the claim, overview of incident/aftermath, & highlight evidence

      2. defense - tell the story from defense perspective, outline plaintiff weakness, evidence

    3. plaintiff's case - witnesses, evidence

      1. burden of production of evidence - sufficient evidence on each element of the claim so that reasonable jurors could find in plaintiff's favor on each element

      2. burden of persuasion - plaintiff must persuade the jurors that each element of the claim has been established by a preponderance of the evidence

    4. defendant's case - focus on weaknesses in plaintiff's claim and on defenses

      1. directed verdict - tests whether the plaintiff has satisfied her burden of production of evidence, the trial judge determines this by evaluating the evidence in light most favorable to the plaintiff - the defense is expected to pinpoint the particular elements for which there is insufficient proof, explain the insufficiency, and cite authority from earlier cases - the plaintiff will argue against that, supporting himself - judge grants the motion only if reasonable jurors could not differ on the outcome

    5. closing statements - parties review in detail their version of the events and what they establish

  1. Trial - Part 2

    1. jury instructions

      1. judge presents a set to the jury – usually oral, sometimes written

      2. attorneys suggest instructions esp. if they want an instruction included that is different from the norms –

      3. instructions tell jurors that to find for the plaintiff they must be persuaded that a preponderance of the evidence establishes each requisite element of the claim

    2. verdict

      1. general - whether the jury finds in favor of the plaintiff or the defendant and the total compensatory damages if they ruled for the plaintiff

      2. special - series of specific questions to guide the jury on each of the elements and the categories of damages

    3. Motions

      1. Judgment NOV Motion (j.n.o.v) - the defendant may request a judgment notwithstanding the verdict (judgment non obstante verdicto) - essentially a renewed motion for a directed verdict (judge says jury was wrong) - if the judge grants this and an appellant overturns, the jury verdict is reinstated

      2. New Trial Motion - losing party can move for a new trial - the judge can grant if he thinks that the jury verdict is against the clear weight of the evidence or if the judge finds admission of some evidence or misconduct by counsel influenced the outcome

    4. Judgment- entry of a judgment in the case triggers the opportunity for appeal - must be filed within the time allowed by the rules –

  2. Appeal:

    • can only reverse errors of law, appellant must specify one or more rulings made by the trial judge that she claims to be erroneous - must identify precise procedural ruling in question

      • if it’s a purely legal question - appellate court must decide with no regard for the lower court's decision and the appellate's decision will be precedent

      • if the ruling in question is the granting of a directed verdict – the standard requires the appellate court to examine the evidence in a light most favorable to the loser

      • discretionary rulings (eg motion for a new trial) - reverse only if there was abuse

      • sufficiency of evidence - limited precedential value - each case is different

    1. Notice of Appeal: no permission needed for appeals to intermediate courts - highest courts usually require approval of the court

    2. Briefs: based on the record in the trial court - new evidence may not be introduced - appellant files a brief with the issues on appeal and his legal arguments - also prepares relevant pieces of the trial record - appellee also files a brief

    3. Arguments: ordinarily limited to errors that appear in the trial record - even if an attorney knows that the judge will not admit certain evidence, he should offer it to preserve the issue for appeal, the error raised on appeal must have been raised in trial court – ex: the failure to move for a directed verdict will preclude raising the sufficiency of the evidence on appeal

    4. Opinion: appellate courts meet in secret to discuss the case

      1. if unanimous - a judge will be assigned to write an opinion

      2. if not unanimous –

        1. a judge drafts a majority opinion which is circulated –

        2. a judge that disagrees can also circulate an opinion to seek support –

        3. the outcome is often different from the first secret vote –

        4. opinions are often revised by the judges suggestions –

        5. when finalized, the decisions are published

      3. typically only a majority opinion - sometimes there's a dissenting opinion - there can also be a concurring opinion when a judge agrees but not with everything in the majority opinion or the judge wants to stress some aspect of the case


  1. Medical Expenses: all reasonably necessary medical & related treatment expenses

    1. past medical expenses: expenses to the date of the trial must be shown to have been reasonably necessary and reasonably priced - burden usually on plaintiff

    2. future medical expenses likely to be incurred in future years must be shown to be reasonably necessary in the future and reasonably priced, can be inflation

  2. Earnings Losses: past and future economic losses related to the injuries including lost wages & income, payment to cover health insurance, pension contributions, social security contributions, etc - lost profits of self-employed might be recoverable

    1. past earnings losses - from the date of the accident to the date of the trial

    2. future earnings losses - likely will occur after the trial due to the permanent character of the injury - include any impaired or destroyed earning capacity

    3. loss of household services - recognized through replacement value approach

  3. Pain & Suffering: physical pain, mental suffering, emotional harm to the date of the trial and into the future, loss of enjoyment of life, juries use common sense to determine

  4. Loss of Consortium: suffered when a person's partner is seriously injured - can include services, society, companionship, affection, & sexual relations - would be the 2nd plaintiff in a case - generally husbands & wives, sometimes children (unmarried couples can’t but are challenging)

  5. Life Expectancy: individualized circumstances and established mortality tables are considered to determine whether longevity has been affected by the incident

  6. Work-life Expectancy: considered in future earnings determinations - Federal Bureau of Labor Statistics compiles work-life tables which are used in this

  7. Reduction to Present Value: a plaintiff could invest an award and make more money, then they would be overcompensated - economists and juries work to reduce expense and lost wage award to present value, pain & suffering losses are generally not reduced

  8. Inflation: in the last 25 yrs courts allow some adjustment in damages for inflation

  9. Income Taxes: gross income does not include amount of damages (other than punitive) received - pain & suffering, consortium, wrongful death, bystander emotional harm are also not taxable if they are related to physical injury to another person

  10. Defending Against Damage Awards: defense's role is to assure that the plaintiff receives no more than he or she is entitled to - defense can challenge plaintiff's proof regarding expenses, losses, etc

  11. Wrongful Death Damages: brought by either surviving relatives or the estate of the decedent - entitled relatives can sue for economic losses they will suffer as a result of the decedent's death also lost value of services and lost society/companionship - awards to beneficiaries are not subject to decedent's creditors - awards to estate are subject to decedent's creditors

  12. Punitive Damages: available in claims based on intentional torts

  13. Attorney Fees: losing party is not liable for attorney fees of the prevailing party - plaintiff's attorney's fees run from 33-50 percent of the recovery - depending on when the case is resolved


  1. respondeat superior – let the master respond – aka vicarious liability - the negligence of an employee acting within the scope of employment is imputed to the employer – flows automatically from the employee’s tort

    1. injured party can sue the employee as well as the employer and can get a judgment against each but the injured party is only entitled to one satisfaction of the judgment

    2. liable even if it took stringent measures to prevent accidents

  1. Rationales:

    1. Control of Conduct: Employers control or have the right to control employees’ conduct

    2. Accident Prevention: increases incentives for safety consciousness through safety education programs and expectations, reducing accidents

    3. Business Enterprise: accident losses of a business are considered expenses of the business

    4. Spreading Costs of Accidents: desirable to spread the costs of accidents to those that benefit from the activity - insurance & costs of goods & services provided distribute the cost

    5. Assuring Compensation: employers are more likely to have liability insurance than employees and are then able to pay for accidents - important for victims & their families

    6. Fairness: since the work being performed is for the benefit of the employer - he is liable

  2. "master" and "servant" = "employer" and "employee" - it is the actual control or right to control the work that is most important in this relationship - volunteers can still be "employees"

  3. independent contractor - if you hire somebody, you specify the end result, but do not have control in the manner or means of achieving the result – employee (servant) if employer has right of control over the person in the performance of the work (R2d) – considerations:

    1. extent of control

    2. whether actor is engaged in distinct occupation

    3. whether typically performed under employer’s supervision / skill

    4. who supplies the tools, equipment, workplace

    5. length of time employed

    6. payment by time / by job

    7. employer’s business & employee’s work

    8. parties’ belief re: relationship

  4. general rule = employer is vicariously liable for the negligence of an employee that occurs within the scope of the employment - this refers to the acts the employee is employed tot do, as well as acts closely related such that they may be characterized as fairly and reasonably incidental to carrying out the objectives of the employment – considerations (R2d)

    1. conduct of kind he is employed to perform

    2. occurs substantially within authorized time/space limits

    3. actuated by purpose to serve master

    4. if force, it’s not unexpectable by the master

    5. can include breaks, etc. (R3d)


  1. Wilful Misconduct – frustrated employee dumps hot coffee on a customer causing serious burns

    1. action probably constitutes battery, but criminal system isn’t designed to help victim

    2. civil system – tort law – compensates victim for damage

    3. vicarious liability – employer might be for negligence if the harm was caused by the employer's failure to exercise reasonable care in selecting, training, supervising, or controlling the employee

  2. Actual McDonald’s Negligence (& Recklessness) Case

∏ bought coffee at drive through, put it between her legs to open the lid, the coffee spilled and soaked into her sweatpants, resulting in 3rd degree burns. ∏ was hospitalized for 8 days, needed numerous skin grafts, and was unable to work. ∆ had a company policy to serve their coffee at 185 degrees, more than 20 degrees hotter than other establishments, ∆ had known of the burn risk and had not changed their policy or warnings, ∆ claimed that their consumers wanted hot coffee and statistically the burns were insignificant. At the temperature the coffee was served at, it would cause 3rd degree burns in 3-10 seconds. - Jury awarded $200,000 ($160,000) in compensation in addition to $2.7 million (2 days of ∆ coffee sales) in punitive damages. Judge reduced to $480,000 in punitive (3x compensation).

Parties settled on appeal

    1. Recklessness Culpability – victim must establish:

      1. there was a high probability of risk of very serious harm

      2. defendant was conscious of the risk or potential harm & acted in disregard of the safety of others

    2. Counter Arguments: Challenging Plaintiffs Elements of the Claim

      1. demonstrate the plaintiff cannot satisfy one or more of the essential elements of the claim –

      2. What did Liebek do wrong that a reasonable person would not have done?

      3. What did Liebek fail to do that a reasonable person would have done?

      4. most coffee spill cases do not qualify for a jury because there is no jury issue raised w/regard to reasonable conduct - McDonald's is unique

    3. Affirmative Defenses: independent legal grounds for denying or limiting a plaintiff's claim - ex: statute of limitations, contributory or comparative negligence (a plaintiff's own unreasonable conduct in getting injured is an affirmative independent defense in barring a claim or reducing the recovery - should contributory negligence be a total bar to recovery?

    4. Vicarious and Direct Liability - respondeat superior or "vicarious liability" - when employee and employer are both found liable - the plaintiff is only entitled to a single recovery

      1. McDonald's was negligent in setting the temp of the coffee so high by policy

      2. relationships between Corp. and franchisee is not exactly employment relationship - if the corp controls the detail in question (the coffee temp) then it is vicariously liable - if the franchise independently controls the temp - the Corp is not liable

  1. No Fault – Strict Liability – cup collapses spilling coffee on customer and burning them severely – McDonald’s sets the design specifications for the manufacturer, the very occasional defective cup gets through and fails

    1. Strict liability is the best for safety b/c conduct, reasonable or not, is irrelevant

    2. if my employee causes harm in the scope of their employment, I am liable

    3. if my product causes harm - I am liable


      • Negligence is also called Breach – Breach is also a component of Negligence

  1. Prima Facie Negligence (on first view/apparent) – you have each of these elements - Defense wants to argue that ∏ failed to make out a Prima Facie case

    1. Duty – did the ∆ have a legal obligation to exercise some level of care to avoid the risk of harming persons or property?

      1. general duty principle of reasonable care: one has a duty to foreseeable ∏s to exercise reasonable care with regard to foreseeable risks of harm arising from one's own conduct

      2. exceptions establish limited duty rules

    2. Breach of Duty - did the ∆ ‘s conduct fall below the level of care owed to the ∏? In light of the foreseeable risks created by the conduct, was the ∆’s conduct unreasonable under the circumstances?

      1. forseeable risk of harm arising from one’s conduct

      2. whether one’s conduct was reasonable in light of those risks

      3. whether defendant failed to the meet the standard of care (measure of duty owed)

    3. Causation (Cause-in-Fact) - did a causal connection exist between the ∆’s unreasonable conduct and the ∏’s harm?

      1. ties the defendant's breach of duty to he plaintiff's injury

      2. two tests

        1. "but for" test

        2. "substantial factor" test

    4. Scope of Liability (proximate cause or legal cause) – did the ∆’s obligation include the general type of harm the ∏ suffered? Are there any intervening causes that are so unexpected that they are superseding?

      1. primary risks - readily foreseeable risks of harm

      2. ancillary risks - subordinate levels of harm descending from primary risks

      3. scope of liability determines whether defendant is liable for ancillary harms

    5. Damages – what legally recognizable losses has the ∏ incurred to date, and what losses may be incurred in the future?

      1. ∏ must establish actual loss - damages attempt to return ∏ to pre-injury condition

      2. includes compensation for medical costs, lost wages, pain, mental & emotional harm

      3. ∏ can also be entitled to future medical expanses & impaired future earning capacity

      4. typically one-time, lump-sum recovery


Rudolph v. Arizona B.A.S.S. Federation (AZAP 1995): Fishing tournament participant collided with and killed Plaintiff's daughter. The sponsor of a fishing tournament, in planning and conducting a tournament on a public lake owes a duty of reasonable care to avoid injury to non-tournament participants who may forseeably be at risk from the conduct of tournament participants acting pursuant to the tournament design. Summary judgment b/c no relationship – no duty – appealed. AZ drivers have a duty to strangers – CA racing contest planners had a duty. Poorly planned – one weigh-station, crowded, time element - question for court – could a reasonable juror find enough facts here

to infer that by a preponderance of the evidence a breach/cause occurred?

  1. in most negligence cases, measure of duty owed = that of reasonable person under the same or similar circumstances (OBJECTIVE standard)

  2. Breach of Duty - 2 Elements

    1. foreseeable risks of harm

    2. unreasonable conduct in light of those risks

    3. the combination of a & b is what a reasonable person would do

  3. courts reject subjective standards such as whether ∆ used best judgment – reasonable care is a legal judgment, not a moral standard

  4. Reasonable Care is a standard used in a variety of contexts - courts can consider a variety of factors to strengthen the standard (e.g. customs, safety standards/laws, etc.)

  5. Qs - what factors should the standard consider? (age, inexperience, etc)


  1. General Characteristics of Mr. Reasonable

    1. considers foreseeable risks of injury his conduct will impose on community

    2. considers those risks in light of the utility of the conduct

    3. considers the extent of the risks posed by conduct

    4. considers likelihood of a risk causing harm

    5. considers alternatives to proposed conduct

    6. considers the costs of various courses of action

Vaughan v. Menlove (NC 1837) - ∆ left pile of hay on border of ∏'s property near ∏'s cottages, the hay ignited & burned the cottages. Verdict for ∏ - argued he acted honestly and did his best - on appeal court held that "the standard to be applied is that of the reasonably prudent person." (first use of "reasonable person" terminology – very old idea)
Reed v. Tacoma Ry & Power (WASU 1921) - ∏'s daughter tried to cross tracks before ∆ got there, judge instructed jury that if they found there to be an error in judgment on the part of ∏, then they should rule for ∆. On appeal court held that "one may be mistaken as to the best course to pursue without being guilty of negligence as a matter of law. Mistaken judgment is not necessarily negligence." Reasonable person is not perfect.
Lussan v. Grain Dealers Mutual Insurance Co (5C 1960) - Driver distracted by bee/wasp in car & crashed into ∏. Jury ruled for ∆. ∏ wanted instructed verdict and then j.n.o.v. On appeal court held, "An action which a human being would normally take may be considered by a jury to be that which the law's ordinary prudent person would have taken under such circumstance." legal standard - no reasonable man could infer that the prudent man would have acted this way

  1. The Common Law – Oliver Wendell Holmes (881)

    1. suppose liability is founded on fault or blameworthiness - question is whether it is so in the sense of personal moral shortcoming

    2. if ∆ thinks carefully about reasonable conduct & used his best judgment, the question is not whether the ∆ thought his conduct was that of a prudent man, but whether the jury does

    3. law takes no account of infinite varieties of temperament, intellect, & education which make the character of an act different for different men

      1. impossibility of measuring man's powers & limitations is more clear than that of ascertaining his knowledge of law

      2. average of conduct, sacrifice of individual peculiarities beyond a certain point, is necessary to the general welfare

    4. law considers what would be blameworthy in the average man, the man of ordinary intelligence & prudence, and determines liability by that

    5. exceptions "when a man has a distinct defect of such a nature that all can recognize it as making certain precautions impossible, he will not be held answerable for not taking them" - ex: blind man can't see

  2. Reasonable Men & Women

    1. "reasonable man" standard has uniformly been replaced by "reasonable person"

    2. forms of gender bias

      1. arguments that "reasonable person" is interpreted almost always from the perspective of a male judge, lawyer, or law professor, or even a female lawyer trained to be the same as a male lawyer

      2. some argue that there is no bias

Edwards v. Johnson (NCSU 1967) - ∏ came to ∆'s house at night while she was home along w/kids, she came to the door with loaded & cocked gun which accidentally fired & hit ∆ - court found her negligent. DISSENT, "when confronted with emergency, which causes reasonable apprehension of danger - it is not held to the standard of care required of one acting in atmosphere of calm" (sex, age, strength should be part of considering reasonableness of her anxiety and behavior, but are not)

  1. Emergency - in Edwards the court suggested the ∆'s emergency context was relevant

Foster v. Strutz (IOSU 2001) Strutz's car was attacked and within 10-15 seconds Strutz reversed the car, hitting Foster and crushing her foot. Court held an attack on a parked car and its occupants lasting 10-15 seconds does not constitute a sudden emergency such that those occupants are not liable for injuries resulting from their conduct

    1. well settled that ∆'s conduct in an emergency situation not of his own making is relevant to the jury's determination of whether the defendant acted reasonably

      1. debate over whether the ∆ should be able to highlight the emergency with a specific jury instruction

      2. "with or without emergency, the standard of care a person must exercise is still that of a reasonable person under the circumstances." Lyons v. Midnight Sun Transp

      3. even if there is an emergency not of the ∆'s own making, the jury may determine that the ∆ is negligent.

      4. in highly dangerous activities can you exercise "extra" care?

  1. Physically Different Characteristics –

    1. the reasonable person of ordinary prudence is always assumed to have the relevant physical disability of that party - person with physical disability required to at as a reasonable person with that disability would

    2. the standard of care may be higher - the conduct must be reasonable, taking into consideration the person's knowledge of his differing ability – if a person is a bodybuilder they might have a different standard of care than a weakling, you can be a super-reasonable person, but you cannot be less than a reasonable person

  2. Mentally Disabled Individuals

Bashi v. Wodarz (CAAP 1996) ∆ hit several cars, including ∏, ∆ claims she is not liable because she was struck by sudden & unanticipated mental disorder; Court held that rules which say that a driver is not liable for his negligent actions which result from his suffering sudden physical illness should not and cannot as a matter of policy) be extended to cases of sudden mental illness.

    1. standard for mentally disabled & insane is the same as sane, mentally able

    2. if "mainstreaming" is the goal (Creasy v. Rush) it might make sense

    3. there is recognition that mentally disabled might not be able to meet the standard, but enforcing the standard as a legal matter is important, the person is still liable

    4. Roman v. Estate of Gobbo - driver had heart attack & crashed - OH questioned if the different treatment is justified on modern views of the nature of mental illness

    5. Breunig v. Am Family Ins Co - WI Supreme - sudden mental incapacity equivalent to sudden physical incapacity would insulate a defendant - interpreted narrowly in WI - Gould v. Am Family Mut Ins. Co - no liability where institutionalized person injures an employee-caretaker

  1. Children - children do not have the same reasoning capacity and maturity as adults, some allowance is necessary

    1. courts compare child's conduct to what other children of like age, intelligence, experience, and maturity would have done under the circumstances

Robinson v. Lindsay (WASU 1979) a minor operating a snowmobile had an accident that injured his minor-passenger. Court held that a minor engaged in an inherently dangerous activity, such as operating a motorized vehicle, such as a snowmobile, should be held to an adult standard of care in his conduct. Court created exception for minors engaged in inherently dangerous activities.

    1. OR there can be exception for minors engaged in adult activities

    2. Kids engage in different activities that are not usually gravely dangerous

    3. Sometimes there’s a minimum age for negligence

      1. minority of states provide that a child below age seven is incapable of negligence –

      2. other states use lower ages –

      3. several courts apply a rebuttable presumption that between the ages of seven and fourteen a minor is incapable of negligence - from the age of fourteen to majority - they are capable of negligence


  1. Balancing Risk v. Untaken Precautions

US v. Carroll Towing Co. (2C 1947) Barge was set free by a tug, it was damaged and later sank. A barge company is negligent by not ensuring a bargee would be on board to monitor the barge during the working hours of daylight. If there's a foreseeable risk of the battering of the barges, you have a responsibility to take reasonable precautions to monitor your barge and limit the possibility that the barge would come lose and cause damage. (This isn't very specific) - Hand's risk calculus - liability depends on whether B < PL

    1. Hand Formula – Balancing of Risks and Utility – B

      1. What’s the minimum needed to prevent the worst case scenario?

        1. Likelihood of harm (P) - probability of an accident occurring

        2. Seriousness of the Injury (L)

        3. Burden of Adequate Precautions (B) –

      2. ∏ has burden to prove there was a feasible, safer alternative that would have avoided the accident - a solution always involves some preference or choice, consigned to jury

      3. Hand analysis

        1. alleged negligence:

        2. forseeability of risk:

        3. probability of risk:

        4. seriousness of threat:

        5. feasibility of precaution:

        6. sacrifice for precution

        7. Hand Balance:

        8. sufficient for jury:

      4. Criticism –

        1. exalts economic rationality above all else - only about compensation (Nelson)

        2. gives voice to only the male point of view and not the female (Jacob)

        3. abstracts people from suffering & dehumanizes them (Bender)

      5. Value of the Risk Calculus

        1. Attorneys for both ∆ & ∏ use it to prepare negligence cases – helps know where to focus & gather evidence

          1. can build cases and focus on pertinent info

          2. can poke holes in ∏'s case

        2. Judges find it useful in determining sufficiency of evidence issues

        3. a few appellate courts have expressly applied the calculus (U Chicago)

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