Duty
Affirmative Duty/Special Relationship
Restatement (2d) of Torts Section 314A (1965)
Generally, a special relationship giving rise to a duty to warn is only found on the part of common carriers, innkeepers, possessors of land who hold it open to the public, and persons who have custody of another person under circumstances in which that other person is deprived of normal opportunities of self-protection.
Knowledge alone is not sufficient for an affirmative duty
Must also be a special relationship
Hence no duty and no recovery
Harper v. Herman
Extra 100 points if you know how deep the water in the Harper v. Herman case was!
Respondeat Superior
Employers vicariously liable for the conduct of their employees
Scope of Employment
The conduct must be about the employer’s business, rather than purely a personal endeavor,
Must occur substantially within the hours and ordinary spatial boundaries of employment
Must be motivated, at least in part, by the purpose of serving the employer’s interest
Christensen v. Swenson
Bonus 100 points if you can remember what the D ordered for lunch.
An extra 100 points if you remember the type of vehicle the D hit on her way back from picking up food.
Define Factual Causation
Factual cause is satisfied if there is “but for” causation: but for the defendant’s negligence, the injury would not have occured/the injury would not have been as severe.
2. A plaintiff is NOT required to show that the defendant’s negligence was the SOLE cause of the harm (other causes may be present). It is sufficient to show that the defendant’s negligence was a cause without which the harm would not have occurred.
Is Proximate Cause a question for the jury?
[As with any factual question,] proximate cause is a question for the jury, unless the evidence is so one sided that no reasonable jury could find in favor of the non-moving party.
A negligent D whose conduct creates or increases the risk of a particular harm is NOT relieved of liability by the intervention of another person, except where the harm is intentionally created by the other AND it is no within the scope of the risk created by the D’s conduct.
Criminal acts may be foreseeable therefore may be within the scope of the risk.
Express Assumption of the Risk
Express assumption of the risk is an express agreement in which a person waives liability for the D’s negligence
Express assumption of the risk is still compatible with comparative fault
Hanks v. Powder Ridge Restaurant Corp.
Duties of Landowners (Modern)
Modern approach- a majority of states have abolished the distinction between invitees and licensees and hold that a landowner/occupier owes to both a duty of reasonable care
Under both approaches, an owner owes a duty to take reasonable measures to warn of or to make safe any dangerous conditions which owner is actually; and…
Whether the owner also owes a duty with regard to dangerous conditions of which the owner should be aware (duty to make a reasonable inspection) depends on facts and is decided by the jury
Trespasser- 3rd Restatement extends a duty of reasonable care to ordinary trespassers, but not to flagrant trespassers (those who are on the land for the purposes of committing a felony).
Modern rule- a landowner owes a tenant a duty of reasonable care under all the circumstances. [this duty is frequently supplemented by legislation or administrative regulations].
Heins v. Webster County
Res Ipsa Loquitor
Came from Byrne v. Boadle
The accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence
It must be caused by an agency or instrumentality within the exclusive control of the defendant
BOP shifts to the D
McDougald v. Perry
Ybarra v. Spangard
Most courts have rejected this
Theories of Causation when there are Multiple Defendants
Joint tortfeasors - when two or more defendants acting independently are each negligent and are each a cause of the harm
Acting in Concert - when two or more defendants agree to engage in negligent conduct and that conduct causes the harm (Example from class: Drag Racing)
Alternative Liability - when two or more defendants act negligently, but only one of the defendants is the cause of the harm, and its uncertain which one is the cause of the harm
Summers v. Tice
Superseding Causes
“An actor’s liability is limited to those harms that result from risks that made the actor’s conduct tortious.” [3rd Restatement]
Whether the harm that occurred was of the same general type as the foreseeable risk created by the D’s negligence.
[Some courts hold that proximate cause is, “an actual cause that is a substantial factor in the resulting harm.” 3rd Restatement says that “substantial factor” is ambiguous and should NOT be used.]
Doe v. Manheimer
Bonus 100 points if you can name the type of overgrown vegetation.
Implied Assumption of the Risk
Primary implied assumption of the risk arises when a person impliedly assumes those risks inherent in a particular activity
Primary implied assumption of the risk is NOT an affirmative defense; instead, it is a modification of the duty owed buy the D
Murphy v. Steeplechase Amusement Co.
Secondary implied assumption of the risk arises when a person knowingly encounters a risk created by another’s negligence
P knew that the flood light was out in then condominium that he was renting
In most jurisdictions, secondary implied assumption of the risk is not treated as a type of comparative negligence (comparative fault).
Davenport v. Cotton Hope Plantation Horizontal Property Regime
Duties of Landowners (Traditional)
Duties of Landowners
Traditional rule- the duty that a landowner/occupier owner to a person on the land depends on the reason the person is there:
Duty owed to invitee
Duty to take reasonable measures to warn of or to make safe any dangerous conditions of which the landowner is actually aware & those that would be revealed by a reasonable inspection
Material benefit incurred
Duty owed to licensee:
Duty to take reasonable measures to warn of or to make safe any dangerous conditions of which owner is actually aware
Any social guest is a licensee
Duty to trespasser:
No duty with regard to negligence
[Only duty is to avoid willful and wanton conduct causing harm to trespassers.]
[Many states made exceptions for child trespassers, etc.]
Carter v. Kinne
Apparent Agency/Independent Contractors
A representation by the purported principal
A reliance on that representation by a 3rd party
A change in position by the 3rd party in reliance on the representation
Roessler v. Novak
Market Share Liability
When multiple defendants negligently sell a defective product that causes harm (many years later), and plaintiffs are unable to identify the specific manufacturer of the product that harmed them, some courts have imposed liability based on the defendant’s share of the market
Court should use national market in determining market share (used when more local data was not available)
Hymowitz v. Eli Lilly Co.
Bonus 100 points if you can remember the name of the drug.
Wagon Mound Case
D should not be held liable if the type of harm was not reasonably foreseeable
In The Wagon Mound (1961), the Privy Council held that Polemis, “should no longer be regarded as good law.” Instead, a person should be held liable only for the probable [i.e., reasonably foreseeable] consequences of his/her act
Thus, “an actor’s liability is limited to those harms that result from risks that made the actor’s conduct tortious [negligent].”
Contributory Negligence (Traditional Rule)
If the P was also negligent, and his/her negligence was a cause of the injury, then P could not recover. [Used today in only 4 states & DC].
Contributory negligence was only a defense to negligence. If the D was reckless, contributory recklessness was needed.
Typically think of recklessness as a conscious disregard of severe risk of harm.
P’s negligence could be excused if the D had the “last clear chance” to avoid the injury, i.e., if the D knew [or should have known] of the danger in time to avoid the harm.
Courts sometimes would refuse to impute contributory negligence of one person to another. [But conduct of primary victims usually is imputed in loss of consortium and wrongful death cases].
Police Duties
In general, police do not owe a legal duty to take any affirmative steps to protect member of the public against criminal activity by 3rd parties
However, police do owe a legal duty to take reasonable measures to protects a member of the public against criminal activity when there is a “specific relationship” with that member of the public
The police assumed an affirmative duty to act through promises or action;
The police had knowledge that inaction could lead to harm
There was direct contact between the police and the injured party
The injured party justifiably relied on the police’s undertaking
Riss v. City of NY
Standard of Practice/Industry Standard
The mere fact that another person or company uses a better or safer practice does not establish a standard
Not using the industry standard can be evidence for or against negligence depending on the circumstances
Standard of practice/industry standard should be left to the jurors to decide
Trimarco v. Klein
Burden of Proof
Initially, plaintiff must provide evidence of each element of the negligence cause of action (negligence, causation, damage) but courts are sometimes willing to shift the burden of proof for factual causation to the defendant
Where circumstantial evidence shows that such negligence is likely to have resulted in harm of this type
Where defendant is in a better position to explain what happened
If there is reason to believe that an erroneous finding of no liability is more harmful than an erroneous finding of liability
In re Polemis
Ds argued that they could not reasonably have foreseen the type of harm that resulted, and that they should not be held liable as a result. REJECTED
HELD → if an act is negligent because it probably would cause damage, the fact that the type of damage was not reasonably foreseeable is immaterial, as long as it is a direct result of the negligence,
Comparative Negligence (Modern Rule)
If the P was also negligence, and his/her negligence was a cause of the injury, then the P can recover only a portion of his/her damages
“Pure” comparative negligence → P can recover a % of his/her damages even if P’s fault is found to be greater than the D’s fault
“Modified” comparative negligence → a P can only recover % of his/her damages if P’s fault was no greater than [or not as great as] the D’s fault
Sovereign Immunity
Under the common-law rule of sovereign immunity, the government has immunity from suit and cannot be held liable without its consent
Today, most states (and the federal government) have waived sovereign immunity to some extent. Two general approaches:
Some states distinguish between governmental functions (for which sovereign immunity still applies) and proprietary fxns (those which traditionally were provided by private entities).
Some states (and the federal government) distinguish between discretionary fxns (those involving policy choices, for which sovereign immunity still applies) and ministerial functions
In general, a municipality owes to the public nondelegable duty of keeping its streets in a reasonably safe condition
Once the government is made aware of a dangerous traffic condition; it has a duty to undertake reasonable study with the goal of alleviating the danger. It may be held liable [only] when there is no reasonable basis for the recommendation
Under the doctrine of qualified immunity, the government cannot be held liable simply because there is disagreement regarding the recommendations, or because it acts in accordance with them
But the government has a duty to implement its recommendation within a reasonable period of time, and it may be held liable for an unjustifiable delay in doing so
Friedman v. State of NY
Contributory Negligence
An omission, or failure to perform an act required by statute, constitutes negligence per se.
Martin v. Herzog:
Section 15 of the Restatement Third of Torts
An actor’s violation of a statute is excused and not negligent if:
The violation is reasonable in light of the actor’s childhood, physical disability, or physical incapacitation;
The actor exercises reasonable care in attempting to comply with the statute;
The actor neither knows nor should know of the factual circumstances that render the statute applicable;
The actor’s violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public;
The actor’s compliance with the statute would involve a greater risk of physical harm to the actor or to the others than noncompliance.
Tedla v. Ellman
Bonus 100 points if you remember the type of vehicle that the P was driving.
Scientific Evidence
Traditional rule: expert evidence is admissible only if the scientific theory is generally accepted by the relevant scientific community.
Modern rule: scientific evidence is admissible only if the reasoning or methodology is scientifically valid and can properly be applied to the case. The trial judge will serve as “gatekeeper” according to the following 4 factors:
Whether the theory can be/has been tested by the scientific method
Whether the theory has been subjected to peer review and publication
Known or potential rate of error, and
Whether it is generally accepted by the relevant scientific community.
Zuchowicz v. United States
Bonus points if you can rememeber the name the pharmaceutical in the case.
Palsgraf
The NY Court of Appeals held 4-3 that the harm that occurred was NOT a reasonably foreseeable consequence of the [alleged] negligence
P was owed a duty to be protected against intentional harm, and a duty to avoid negligent conduct that created a foreseeable risk of harm to her. The fact that the conduct created a foreseeable injury to another or to another’s property did not create a duty towards her
Dissent → everyone owes to the world the duty of refraining from those acts that may unreasonably threaten the safety of others
Proximate cause → because of convenience, public policy, or a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. [Whether the result is foreseeable is a factor].
Preemption
When federal law and state law conflict, state law is preempted under the Supremacy Clause. 3 types of preemption:
Express Preemption → Congress enacts a statute that expressly preempts state-law causes of action. [Example: 17 U.S.C. Section 301]
Field Preemption → Congress has enacted a federal regulatory system that is so pervasive that it “occupies the field” in that area. [Example: National Labor Relations Act]
Conflict Preemption → A state law is preempted if it stands as an “obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”
Wyeth v. Levine → Majority of SCOTUS decides not to preempt (6-3).
Impossibility → when it is “impossible for a private party to comply with both state and federal requirements,” then state-law is preempted
Pliva v. Mensing → SCOTUS majority agrees with impossibility, thus deciding to preempt (5-4).
Do not need to ask for a change to show impossibility preemption