Professional Documents
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Tort Outline APALSA
Tort Outline APALSA
Tort Outline APALSA
I.
Tort
A.
B.
C.
D.
Acts
Wrongfully (breach)
Causes
==> then P is entitled to compensation
Injury
Negligence principle
A. Move from trespass to fault
1. Holmesthere is something arbitrary about trespass method b/c it cuts off
the causal history at random. Fault is more equalizing to the parties
2. Posnerbrings about efficient cost/benefit side of accident. Some are
worth preventing, some are not.
B. Rejecting writ of trespass. Liability spectrum: No liabilityFault
principlePresumption ruletrial ctstrict/trespass Absolute liability.
1. Brown v. Kendall (1850): Dog fight, D was hitting dog w/ stick trying to
separate them and accidently hit P in eye. P suffered severe injury. Ct
rejected trespass rule (where direct injury would have been enough). Ds
presumption rule: There should be a presumption of negligence when
there is direct contact and D only need to show he took ordinary care. Trial
ct decided: D is liable unless D can show he used extraordinary care so
that the accident was inevitable.
a. P cannot recover if:
i. D was using ordinary care and P was not
ii. They were both not using ordinary care
b. Ordinary care= kind and degree of care, which prudent and
cautious men would use. D is negligent when he does not use OC
and P does use OC
D
OC
OC
OC
No OC
No OC
OC
No OC
No OC
No relation------------------*some evidence--------*presumption--------------**conclusive
evidence
B. CONCLUSIVE EVIDENCE: Most common formula is to hold an unexcused violation
of relevant statute as neg per se. Jury would be instructed that if they find D
violated the statute, they must find him negligent. 2 R of T 288A allows
acceptable excuses: incapacity, lack of knowledge of need to comply, inability to
comply, emergency, compliance poses greater risk than violation.
C. PRESUMPTION OF NEGLIGENCE: Violator is still free, however, to rebut the
presumption of negligence by showing that the reasonable person would have
acted as he did. Burden of proof is on P.
D. SOME EVIDENCE: Treat violation of statutory standard of care as evidence of
negligence. Proof of unexcused violation would support a finding of negligence by
the jury, but they would still be free to find that D was not negligent, even if no
excuse were offered.
E. When statute does not protect against specific injury that P experience, it is not
conclusive evidence supporting negligence
1. White v. Lavarn (1918): P and D hunting on Sunday. Sunday hunting is
unlawful by statute. D not allowed to say that p was contributorily neg b/c
P was hunting on Sunday b/c that statute wasnt made for Ps injuries.
F. If P violates a statute, he can be contributorily negligent
1. Martin v. Herzog (1920): D failed to stay in center of road and P failed
to have lights in buggy after dark. Both parties violating statutes. Statute
requiring lights was here for the purpose of protecting drivers, this is the
right fit says Cardozo.
a. D wants presumption of negligence, but Cardozo thinks it should be
some evidence and its up to the jury
G. But wont make P contributorily negligent of violating statute if it frustrates the
purpose of the statute
C. There
1.
D. When
1.
XVI.
Medical Malpractice: Industry and Professional StandardsDID D ACT IN
CONFORMITY W/ COMON PRACTICE OF PROFESSION? P has to explain what common
practice is by bringing in expert witnesses. A great deal of appellate case law has to do
w/ expert witnesses.
A. Expert witness permitted through same/similar locality rule instead of strict
locality rule
1. Sheeley v. Memorial hospital (1998): P giving birth and there was
complication. Ct rejects strict locality rule and permits P to bring in expert
witness that did not practice in same medical field. Strict location rule risks
old boys network and the conspiracy of silence b/c nobody wants to
testify against friend.
a. Same or similar locality rule: Allows for experts from similarly
situated communities to testify concerning appropriate standard of
care.
b. Strict locality rule: Requires that expert testifying be from the
same community as D.
B. Allowed to bring in expert witnesses to support ORDINARILY DOES NOT OCCUR
requirement of res ipsa, but there are downsides.
1. Sides v. St Anthonys medical center (2008): After surgery, P got an
e.coli infection. P was unconscious during surgery and D was in exclusive
control. Ct held when P is unable to show which specific act of negligence
caused his injury, but is able to show D had control + D has more
knowledge of what happened, then medical expert may testify that such
injury usually does not occur.
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Statutory duties
A. When statute says schools should test but that when charged w/ duty are not
liable, then no duty
1. Uhr v. East Greenbush Central School District (1999): Statute
requires schools to test annually for scoliosis. School did not test and child
had to have surgery on scoliosis discovered at late stage. Common law
nonfeasance (failing to confer a benefit). Creation of private right of action
would be inconsistent w/ L scheme so no private right of action. Parents
cannot sue.
a. Because if the statute protected against misfeasance (incorrectly
carrying out the test) then obviously it was intended to protect
against the lesser charge of nonfeasance (not conducting the test
at all)
b. Not negligent per se: b/c not about proving reach of reasonable
care, but about whether there is a duty owed.
c. Test for whether statute allows a private right of action:
i. (1) Whether P is one of the class for particular benefit the
statute was enacted for
ii. (2) Whether recognition of such a right would be consistent
w/ L scheme
iii. (3) Whether creation of such right would be consistent w/ L
scheme.
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XXIII.
XXIV.
certificate), but that does not give a right to P. Does not qualify as Cuffy
exception b/c doesnt pass #1 and #3. Misfeasance b/c they participation
of creation of risk of emotional distress.
a. Stronger case for duty than Riss
i. No allocation of resources
ii. No discretion for medical examiner
C. Duty is created when city discovers danger. Duty is breached when city fails to fix
danger.
1. Friedman v. State of NY (1986): Department of transportation did
study 5 years before and found that median barrier should be constructed.
DOT failed to fix road. State only liable for car accidents after that study.
a. Under qualified immunity, a planning agency should NOT be
liable for its planning decision if:
i. There is a reasonable basis for its plan (dont need
correctness)
ii. There is good execution
D. Federal Torts Claims Act holds discretionary functions against govt immune
from suit
1. Cope v. Scott (1995): P got into car accident and sued city for (1) failing
to maintain road (2) failing to place appropriate warning signs. Road
construction falls under FTCAs discretionary function, but warnings signs
do not fall under discretionary function b/c not political, economic, social
or fraught w/ PP. P was allowed to continue suit for warning signs.
a. FTCA 2680(Doesnt apply if theres a statute) Only
immune if discretionary. Only discretionary if:
i. Political, social or economic AND
ii. Fraught w/ public policy
iii. NOT EXEMPT IF DISCRETION IS MINIMAL
b. Planning decisions = policy oriented cant sue
c. Implementation/Operational decision = non discretionary can
sue
d. 2 steps: 1) Is there a statute that prescribes the duty? 2) If no
statute, is it so fraught w/ policy considerations that it can be
deemed a discretionary function?
Causation
A. But-for causation: But-for Ds lack of reasonable care, P would not have been
injured
Proof of causation
A. If there are multiple causes, the just need reasonable certainty to support 1 of
the causes
1. Stubbs v. City of Rochester (1919): Well contaminated and P got
typhoid fever. There are many causes for Typhoid fever. But ct says that P
does not need to eliminate every other alternative just needs to prove to a
reasonable certainty that there was a causal relationship b/t negligence
and injury.
a. *Not a policy/planning decision b/c city already committed to
maintaining these water supplies
b. Proportional liability= Ps only get to recover by probability if 20
wouldve gotten anyway
c. Anticipated future harm= Where D creates a risk of future harm
or where D decreased Ps chance of escaping some future even
that hasnt materialized yet
d. 3 different approaches for PROBABILISTIC RECOVERY:
i. Disease rule (PA): Sue P now and you can recover for
emotional harm and worry P will have to go through. No
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Loss of chance
A. P must show to a reasonable degree of medical probability that docs negligence
caused a dimunition in the chance of recovery.
1. Alberts v. Schultz (1999): Leg amputation case. First doc didnt order
test and failed to refer him to specialist. Specialist didnt perform surgery
until 1 day later. P didnt show to a reasonable degree of medical
probability that the docs negligence cause a dimunition in the chance of
recovery.
B. Loss of 37.5% of chance to survive constitutes a substantial opportunity of
avoiding physical harm. Loss of chance relaxes the rule of causation b/c normal
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C.
D.
E.
F.
G.
1. Pure
a. P who is 99% at fault recovers 1% of the damages from D
2. Non-pure Modified 1 not as great as
a. P only recovers if their fault meets threshold of being not as great
as Ds
b. P doesnt recover anything for 50/50 cases
3. Non-pure Modified 2 no greater than
a. P only recovers if their fault meets threshold of being no greater
than Ds
b. P does recover for 50/50 case
[STEP 3] if modified, ask, does jurisdiction aggregate?
1. Aggregate means that the total liability of all Ds is aggregated together,
and compared to Ps liability. This is relevant for modified ones.
[STEP 4] if D is insolvent, does jurisdiction include P in reallocation (inclusionary)?
1.
Uniform Comparative Fault Act (UCFA) is pure, aggregates, and is jointly and
severally liable
1. So most states dont follow it
Iowa Code Chapter 668 is modified, Ds are jointly and severally liable for 50% or
greater.
Example for non-pure modified
1. P40%
D130%
Damages= $40,000
D210%
D320%
Aggregation: Ds aggregated liability =60% > 40%. So P wins.
Non-aggregation:40%> D1s 30%, D2s 10%, D3s 20%. So P doesnt get
anything.
P30%
D140%
Damages= $40,000
D210%
D320%
Non-aggregation:
Several: D1 is liable for 40%
Joint + several: P is trying to recover 100% from Ds. So Ds owe 70% of
total.
STEP 1) Each D is compared to P to see if liable at all.
Only D1s 40%> Ps 30%.
STEP 2) These remaining parties owe [Ps total damages minus
Ps own]
So D1 owes 70% of the damages
D3 is insolventin scenario where P40%, D130%, D210%, D320%
Several: D1 has to pay 30%, D2 has to pay 10%
Joint + several: D1 and D2 are liable for 60% of total = 24000?
Inclusionary: P will get less than their 60%
100%-D3%= 100%-20%= 80% -- > this will be your
denominator
D1:
D1%/80% x 40000
= 30/80 x 40000
= 15,000
D2:
D2%/80% x 40000
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Intentional harm
A. Battery= the intentional infliction of a harmful or offensive contact w/ person 2nd
R 13. There are 2 kinds of intent in regard to battery: Purpose intent (traditional)
+ Knowledge intent
1. Purpose is very restrictive, so R tries to find spectrum of intent
2. R Elements required for battery
a. Act is intentional
b. Act must cause contact w/ the victim
c. Intended contact must be either harmful or offensive
3. Bodily harm = any physical impairment of condition of persons body,
physical pain, illness
4. Offensive = spitting on someone. If it offends a reasonable sense of
personal dignity
5. Contact = tripping someone w/ a wire. doesnt have to be actually
touching.
B. Defining intentmeans that the actor desires to cause consequences of act or
that he believes that consequences are substantially certain to result from it
1. Garrett v. Dailey: Motive doesnt matter. 5 yr old boy pulled chair out
from under Garratt. Boy didnt mean to break her hip, but ct held boy
liable for battery. In order to have a CoA for battery, P must show that D
was substantially certain that his actions would cause injury.
a. Age is unimportant: The only circumstances where Brians age
is of any consequence is in determining what he knew, and there
his experience, capacity, and understanding are of course material
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