Lindsay Deal

Torts Outline Fall 2021

Contents
Prima Facie Case of Negligence...................................................................................................................2
Our Prototypical Negligence Claim..........................................................................................................2
Liability for the Acts of Others (Including Vicarious Liability)......................................................................2
• Respondeat Superior............................................................................................................................2
Apparent Agency.....................................................................................................................................3
Breach.........................................................................................................................................................3
Standard of Care......................................................................................................................................3
The Reasonable Person...........................................................................................................................3
Duty: The Role of Custom............................................................................................................................4
Negligence Per Se....................................................................................................................................4
Res Ipsa Loquitur.....................................................................................................................................5
Medical Malpractice................................................................................................................................5
Locality rule.........................................................................................................................................5
Affirmative Obligations to Act.................................................................................................................6
Policy Basis for No Duty to Act................................................................................................................6
Implied Private Rights of Action..............................................................................................................7
Duties of Landowners and Occupiers......................................................................................................7
Landowners and Crimes......................................................................................................................7
FTCA........................................................................................................................................................8
Causation.....................................................................................................................................................8
But For Causation....................................................................................................................................8
Multiple Defendants................................................................................................................................9
• Alternative liability:...........................................................................................................................9
Proximate Cause....................................................................................................................................10
Eggshell P Rule...................................................................................................................................10
Superseding Cause.................................................................................................................................10
Contributory Negligence........................................................................................................................11
Comparative Negligence........................................................................................................................11
Apportioning Liability............................................................................................................................11
 Assumption of Risk................................................................................................................................11
Statutes of Limitation and Related Stuff................................................................................................12

Prima Facie Case of Negligence :

Duty
Breach
Causation
But-for
Proximate
Injury
Compensatory damages
Economic
Noneconomic
Punitive damages

Our Prototypical Negligence Claim

• Duty
• Breach (foreseeability analysis should occur here unless otherwise indicated)
• Causation
• But-for
• Proximate (Third Restatement Scope-of-the-Risk Test)
• Injury
• Compensatory damages
• Economic
• Noneconomic
• Punitive damages Introduction
•HAMMONTREE : Automobile accidents (including those where the driver unexpectedly lost
control of his/her faculties) will be governed by negligence, not strict liability. Negligence is the
default rule of tort law, and we only depart to strict liability in limited circumstances

Liability for the Acts of Others (Including Vicarious Liability)

• Vicarious Liability: Principals (employers) can be held liable for the torts of their agents (employees)
• Respondeat Superior
• Employers can be vicarious liable for the acts of their employers, but not for the acts of
independent contractors
• Primary factor for independent contractor vs. employee  employer’s right to control
the individual (control  employee)
• Restatement (quoted in your book) provides other relevant factors
 Employee must be acting within scope of employment for employer to be liable under
respondeat superior (Birkner criteria)
1. Conduct must be of the general kind the employee was hired to perform
2. Conduct must occur substantially within the hours and ordinary spatial boundaries of
the employment
3. Conduct must be motivated by the purpose of serving the employer’s interest
Apparent Agency
Principal may be held liable for acts within agent’s apparent authority
• Apparent authority includes any authority the principal holds the agent out as
possessing
• Three element test for apparent agency
• (a) a representation by the purported principal;
• (b) a reliance on that representation by a third party; AND
• (c) a change in position by the third party in reliance on the representation
• Negligent hiring/supervision
• Think typical negligence case. Duty to hire/supervise correctly and breach that
duty.

Breach
Standard of Care: the measure against which D’s actions are judged
• Individuals have a general duty to adopt reasonable precautions to avoid reasonably
foreseeable perils
• No duty to adopt ALL possible precautions
• No duty to foresee every peril
• Some courts consider the ease of the precautions—if it is easy to take a given precaution,
then there may be a duty to take it
• Hand Rule: intellectual tool for examining whether failing to take a given precaution results in
negligence
• If B < PL and D did not undertake the burden, then breach of duty of care
• B = burden of taking precaution; P = probability of harm; L = loss

The Reasonable Person

• Reasonable person: reasonable person standard takes into account the circumstances that
were actually present and how someone would reasonably perceive the risk and severity of
harm to others given those circumstances
• Objective standard: we don’t take D’s specific circumstances into account. We only care what
a reasonable person would do and ask whether D did that.
• Exceptions (or not)
• Mental disability: no exception to reasonable person standard
• Physical disability: exception if D’s sudden and unanticipated physical illness
• Superior skills: use a person with those skills as the reasonable person
• Children: must exercise the care that a reasonable child of their actual age, intelligence, and
experience would exercise
• Traditional rule of 7s is different
 • Hold children to adult standard when engaged in adult activities

Duty: The Role of Custom

• Customs (that are relevant to the activities involved) can help the court determine what a reasonable
person would have done under the circumstances
• Custom aids in formulating the general expectation of society as to how individuals
will act
• Custom can show that some action was feasible (D can’t say it was impossible to do X)
or that D was aware (or should have been aware) of some action that could mitigate a
particular risk
• Custom need not be universally adopted in order for a court to use it
• Custom is NOT dispositive of reasonableness (though it usually equates to reasonable care)
• An entire industry may be acting unreasonable

Negligence Per Se
• Negligence per se: an act is negligent because it violates a statute
• Generally P must show that D violated the statute, that the statute provides some kind
of criminal penalty, and that the harm was of the type the statute was designed to
prevent
• If the purpose of the statute is to prevent harm X and D caused harm Y while violating the
statute, then can’t use negligence per se
• BUT, that doesn’t mean that P will lose a typical, common law negligence claim
• If D can provide an excuse for violating the statute, then can’t use negligence per se.
• Restatement material in book (and class powerpoint) provides guidance on when D’s violation
of statute may be excused.
Res Ipsa Loquitur
• Court may conclude from circumstantial evidence that breach of duty occurred
• Elements of Res Ipsa
1. Accident would not have occurred in the ordinary course of events without
negligence on the part of D AND
2. The instrumentality causing the injury was under the exclusive control of D
• If Res Ipsa applies, then
• Presumption (minority rule): P is presumed to have made out a prima facie case of negligence
• Inference (majority rule): jury may (but is not required) to infer negligence
• In general, it may be helpful to think of res ipsa standing in for the breach element of negligence

Medical Malpractice
• Medical malpractice claim (the statutory version)
a) In a malpractice action, the claimant shall have the burden of proving by evidence as provided
by subsection (b):
1)The recognized standard of acceptable professional practice in the profession
and the specialty thereof, if any, that the defendant practices in the community
in which the defendant practices or in a similar community at the time the
alleged injury or wrongful action occurred;
2)That the defendant acted with less than or failed to act with ordinary and
reasonable care in accordance with such standard; and
3)As a proximate result of the defendant's negligent act or omission, the
plaintiff suffered injuries which would not otherwise have occurred.
Locality rule
•Strict local standard: expert must be familiar with and testify about the community in which
the defendant practices
• Local standard: expert must be familiar with and testify about the community in which the
defendant practices or a similar community
• National standard: expert must be familiar with and testify about the national standard of care

• Some states (TN for example) require that the witness meet specific requirements
• (1) licensed to practice in the state or a contiguous bordering state,
• (2) a profession or specialty which would make the person's expert testimony relevant to the
issues in the case, AND
• (3) must have had practiced this profession or specialty in one ... of these states during the
year preceding the date that the alleged injury or wrongful act occurred.

•Whether in a local or national standard of care jurisdiction, focus on the procedure being performed
• This can change from state to state, but most courts care about whether the expert can testify
about the relevant procedure or actions taken, and not about the specialty of the expert
• In general, expert testimony REALLY matters in med mal cases
• Standard of care is determined by customary practice
• Need experts to testify as to what is appropriate or not Medical Malpractice
Physician failed to satisfy the standard of care
• Informed Consent
• Physician failed to obtain informed consent for the procedure
• Usually a negligence based claim (but can be a battery based claim in some states)
• Not always a separate tort claim (Matthies court treated as a distinct claim from both
malpractice and battery)
• Battery
• Physician touched patient in a harmful/offensive way without consent
• This includes performing a substantially different procedure than the one the patient
consented to
• The fact that you have a medical license does not mean you can touch people without
their consent
• This is the type of liability that is often relevant for failure to heed DNR orders and is
often excluded from malpractice insurance policies

• Determining what must be disclosed to obtain informed consent

• Objective Informed Consent
• Patient focused: what would reasonable patient need
• Provider focused: what would reasonable provider do
• Modified Objective: what would reasonable patient with this patient’s characteristics
need
• Subjective: would did this patient need

Affirmative Obligations to Act

• Traditional rule: there is no affirmative duty to act
• Exceptions
• Special relationship
• Restatement lists certain relationships that qualify
• Also, the person charged with the duty must know or should know th
at action is needed for another’s protection
• Undertaking/voluntary aid
• Non-negligent creation of risk
• Non-negligent injury
• Statutes
• No misrepresentation
• If you speak, you must speak the whole truth (Randi W.)
• Certain individuals (particularly professionals like doctors) may have a duty to
a third party based on their relationship with the potential tortfeasor (Tarasoff)
Policy Basis for No Duty to Act
• Protect against “crushing liability”
• “it is still the responsibility of courts, in fixing the orbit of duty, ‘to limit the
legal consequences of wrongs to a controllable degree’, and to protect against
crushing exposure to liability.” (Strauss)
• Wary of imposing far-reaching consequences on individuals
• Difficult to predict how individuals will react to far-reaching duty and such a
duty could drastically impact society (Reynolds)
• These are examples of the more topic-specific duties
 • Though, you could probably fit these in with general compensation and
deterrence arguments
Implied Private Rights of Action
• Technically doesn’t have to involve tort law
• The statute itself provides the right of action
• Different from negligence per se because the statute itself gives rise to the action
instead of simply aiding P in establishing a prima facie case of negligence
• Test for whether a private right of action may be imputed (Uhr)
• Whether the plaintiff is one of the class for whose particular benefit the
statute was enacted;
• Whether recognition of a private right of action would promote the legislative
purpose: AND
• Whether creation of such a right would be consistent with the legislative
scheme
Duties of Landowners and Occupiers
• Traditional approach to premises liability •
Three common law classes of entrants
• Trespasser: no permission; duty to not willfully or wantonly injury
• Licensee: have permission; duty to warn/correct known/should have known dangers
• Invitee: permission (plus benefit motive or open to public); duty to warn/correct
dangers AND duty to investigate
• “Modern” approach
• Eliminate three classes and impose a standard of reasonable care for all lawful visitors
(foreseeability is most important in determine reasonableness of care)
• Variations in how the three classes are eliminated
• Heins: keep trespasser class
• Rowland: eliminate all classes (but see legislative adjustment)
Landowners and Crimes
• “Th[e] duty [to protect patrons from criminal acts] only arises under limited circumstances,
when the criminal act in question was reasonably foreseeable to the owner of the business.
Determining when a crime is foreseeable is therefore a critical inquiry.” (Posecai)
• Four tests for foreseeability
• Specific harm rule: crime in progress  duty
• Jury determines breach
• Prior similar incidents rule: evidence of prior crimes  duty
• Jury determines breach
• Totality of the circumstances test: wide array of evidence and other circumstances
suggesting crime  duty
• Jury determines breach
• Balancing test: graft
Hand rule (cost-benefit) onto totality of the circumstances  duty
• Combines what is typically a breach analysis into the duty analysis
• Chosen by Posecai court
• Behrendt: court criticized prior courts that included foreseeability in the duty analysis
• Foreseeability is part of breach, not duty  factual questions of foreseeability are
more appropriately decided by the finder of fact in the context of breach than by a court
in the context of duty
FTCA

Causation
But For Causation
• But for cause
• “If the harm complained of would have occurred notwithstanding the
actor's conduct, then that conduct is not a but-for cause.” June, 577
F.3d at 1240.
• Three types of causation situations (there can be mixing among the types in
any given case)
• Multiple Potential Causes
• Multiple Necessary Causes
• Multiple Sufficient Causes
• Suppose that 1, 2, 3, 4, 5, and 6 are causal agents and that 7 is P’s injury
Multiple Defendants
• Alternative liability: D1 and D2 both take some action that could independently have caused
P’s harm
• We don’t know which of the actions caused harm, so shift burden to Ds to prove who
did what
 • Concerted action: multiple Ds engage in behavior that encourages overall tortious activity
(think drag racing)
• All Ds liable even if a particular D couldn’t have actually caused harm (because that D
still encouraged the activity)
• Market Share Rule: Members of national market are liable to Ps based on their market share
(Hymowitz)
• Majority: several liability only; Ds who can prove they weren’t the cause of a particular
P’s injury cannot escape liability
• Dissent: joint and several liability; Ds can escape liability if they can prove they didn’t
cause a particular P’s injury
Proximate Cause
• Direct Causation (Polemis)
• It does not matter how foreseeable the result is as long as the negligent party’s action
can be tied to what actually happened.
• Foreseeability (Wagon Mound)
• If the harm could have been foreseen by D, then D’s action is the proximate cause of
the harm
• Causal Link (Zuchowicz) [note: includes but-for in same part of test]
• No liability unless D’s wrong increases the chances of such harm occurring in general
• Scope of the Risk (Third Restatement)
• No liability unless harm is of the type that results from the risks that made the actor’s
conduct tortious.
• Note: some courts use analytical techniques borrowed from the other tests to
determine what harms fall within the scope of the risk Proximate Cause

Eggshell P Rule: once P establishes that D caused some injury to P, D is liable for the full
extent of those injuries, not merely those that were foreseeable to D.

• Different ways to think about proximate cause and eggshell P rule

• The rule of proximate cause in the liability phase of the case (the foreseeability test)
differs from the rule of proximate cause in the damages phase of the case (the eggshell
P rule) [Book’s approach]
• For liability, ask whether the type of harm suffered is foreseeable. If so, the
full extent of that harm (even it extends much further in a given case for
idiosyncratic reasons) is compensable at the damages phase. If the type of harm
is not foreseeable, then no liability and the damages phase is not relevant.
• The Eggshell P rule is simply an exception to the foreseeability test of
proximate cause [probably the easier approach]
Superseding Cause
• Second Restatement test for superseding cause
• If harm intentionally caused by a third person (think crime) AND the harm is not within
the scope of the risk created by the actor’s conduct, then the third person’s actions are
a superseding cause
• If there is a superseding cause (under this test or other tests), then P has fails to
establish proximate cause (even if you concluded that the relevant proximate cause test
was satisfied)
• Rule of thumb (i.e., this usually, but not always, works)
 • If a third party commits a crime and the type of harm that occurs doesn’t usually occur
without a crime (e.g., rape), then that crime will generally be a superseding cause
• Third Restatement's take on proximate cause and superseding cause
• The Third Restatement uses the scope of the risk test for proximate cause and DOES
NOT distinguish between situations where there are intervening/superseding causes
and not Traditional Defenses (new versions are not true defenses)

Contributory Negligence
• If P is negligent, then no recovery (even if D was also negligent)
• Doesn’t matter if P was 1% at fault and D was 99% at fault
• Doesn’t apply if D acted recklessly or intentionally
• Minority Rule

Comparative Negligence
• Pure P recovers the full damages discounted by the proportion of responsibility the jury
assigns to P

• Modified “not as great as”

•Recovery is same as Pure system as long as P’s negligence is “not as great as” D’s
• If P’s negligence is as great as D’s (or greater), no recovery
• 𝑃 < 𝐷  P recovers as under Pure
• 𝑃 ≥ 𝐷  no recovery

• Modified “no greater than”

• Recovery is same as Pure system as long as P’s negligence is “no greater than” D’s
• If P’s negligence is greater than D’s, no recovery
• 𝑃 ≤ 𝐷  P recovers as under Pure
• 𝑃 > 𝐷  no recovery

Apportioning Liability
• Joint and Several Liability: P can collect full judgment from any one D
• P fully recovers if one or more Ds insolvent
• D that paid can collect shares from other solvent Ds in proportion to their share of
liability
• Several Liability
• Ds pay in proportion to their share of liability
• P bears burden of any insolvency
• Most courts allow apportionment of liability to non-parties
• But D seeking to do so must generally identify the non-party (to provide notice to the
other parties)
Assumption of Risk
• Express: need an agreement
• NO DUTY (agreement waives D’s duty, so P cannot establish prima facie case)
• Primary implied: P impliedly assumes the danger/risk inherent in a certain activity
• Duty does not include the obvious danger/risk
• Therefore NO BREACH (so P cannot establish prima facie case)
 • Secondary implied: P knowingly encounters risk created by D’s negligence
• Reasonable (no defense) vs. unreasonable (defense) encounter by P
• True defense (when it applies)
• Most states (with comparative negligence regimes) have abandoned this
flavor

Statutes of Limitation and Related Stuff

• Statute of Limitation
• Bars filing a claim X years after claim accrued
• Claims generally accrue (the clock starts running) when the injury occurs

• Discovery Rule
• Claim accrues (clock starts running) when P discovered or should have discovered the
injury (which for various reasons may not manifest at the time the injury was inflicted)
• Get a new clock that starts at the time of discovery

• Statute of Repose
• “Super” statute of limitation that places a hard time limit on claims that are
subject to discovery rule or other rules that can result in indefinite time periods
• Even though the discovery rule would start a new clock, if you are outside the
statute