Torts 4

• 1. Duty of care
• 2. Breach of duty
• 3. Causation
• 4. Damages

• 1. To whom does ∆ owe a duty of care?
• 2. What standard of care does ∆ owe?

Foreseeable victims are owed a duty of care

To determine who is a foreseeable victim, ask yourself: "Who is likely to get hurt?" Foreseeable victims include

• People within proximity (the "zone of danger")
• Rescuers (can be foreseeable π)
• Pregnant women (in NY only)

• Default: "Reasonably prudent person acting under similar circumstances"
• Special Duty Standards: Children, Professionals, Possessors of Land
• Borrowing Statutory Standards: Class of persons, class of risks, statute clearly describes conduct
• No-Fault Insurance: Minimum threshold, persons covered, availability of tort remedies
• Affirmative Duties: ∆ put π in peril, ∆ attempts to rescue π, ∆ has a special relationship with π
• Negligent Infliction of Emotional Distress: Near miss (physical manifestations), bystander, special relationship between ∆ and π, erroneous report of a relative's death, mishandling of a corpse. NOTE: If physical injury has been caused by commission of a tort, π can "tack on" damages for emotional distress as a "parasitic" claim w/o the need to consider the elements of the emotional distress tort.

• Test: Reasonably prudent person acting under similar circumstances
• Objective test: ∆'s individual characteristics are ignored

But, ∆ characteristics considered where

• ∆ has a physical impairment (e.g., disabled)
• ∆ has advanced or superior skill or knowledge (e.g., doctors)

• < 4 years: Child owes no one a duty
• ≥ 4 years: Child of the same (1) age, (2) experience, and (3) intelligence under similar circumstances
• < 18 and engaged in adult activity: Default std (reasonably prudent person under similar circumstances

An adult activity tends to be one involving the operation of a motorized instrument, e.g., cars, boats, chainsaws

• Duty of care: Average member of that profession, practicing in a similar community
• Evidence of actual community custom: Establishes standard of care applicable to ∆ professional
• Specialists: Compare specialists to other specialists, regardless of geography
• NY Distinction: Doctors must inform patients the risks of any procedure, unless doing so would harm patient (e.g., risk would lead to excessive worry and heart-attack)

Source of Injury: Two possibilities—(1) Activity conducted by ∆ or ∆'s agents, (2) hazardous static condition (HSC) distinguish natural from man-made HSCs

Undiscovered Trespasser: Not a foreseeable victim, ∆ owes no duty of care

Discovered or Anticipated Trespasser: Must protected discovered or anticipated trespassers from all known man-made death traps on the land

Licensee (e.g., social guests): ∆ must (1) warn licensee about all known traps (natural and man-made) on the land, and (2) use reasonable care in the exercise of activities on the land

Invitee (e.g., commercial benefit or general public): ∆ must (1) warn invitee about all reasonably knowable or discoverable traps (whether natural or man-made), and (2) use reasonable care in the exercise of activities on the land

• Applicable standard: Reasonably prudent person under similar circumstances
• Tip: Follow the analysis applicable to MS possessors of land to determine what is reasonably prudent

• Firefighter's rule: Assumption of risk
• Child trespassers: "Attractive nuisance" doctrine. Must show (1) ∆ knew or should have known of an artificial HSC, (2) that children were likely to trespass on the land, (3) that the artificial HSC was likely to cause serious injury b/c of the child's inability to appreciate the risk, and (4) the expense of remedying the situation is slight compared to the magnitude of the risk
• Satisfying the duty for HSCs: Adults=give them warnings; Children=build barriers to entry

Borrow the standard of care from the statute?

• Yes: When all of the following are present: (1) π is in intended class of persons, (2) π's injury is within class of risks, and (3) statute clearly describes conduct.
• No: Compliance would be impossible or increase danger to π

• Ability to collect: (1) ≤ $ 50,000; and (2) owner, driver, passenger, pedestrians
• Availability of additional remedies in tort: (a) death, dismemberment, significant disfigurement, etc.; (b) damages > $ 50k
• What can be recovered: Personal injuries (but not pain and suffering, or property damage)

Note that bad persons (e.g., drunk drivers, thieves) are barred from recovery under a no-fault insurance plan

Also note that a no-fault plan is "portable" outside of NY—i.e., still possible to recover, even though accident occurs outside of NY, so long as policy was purchased in NY

• Near miss: (1) ∆'s negligent conduct, (2) put π in a "zone of danger," (3) π suffered distress, and (4) resulting physical manifestations
• Bystander: (1) π is contemporaneous witness to (2) bodily injury inflicted on (3) close family member (strict construction), and (NY only) π was also in zone of danger
• Special relationship between π and ∆: Foreseeable risk of emotional distress (e.g., negligent medical diagnosis)

• Identify: wrongful behavior (fact)
• Explain: why the identified behavior (fact) falls short of the applicable standard of care

• Res ipsa loquitur: If you can't identify a specific wrongful act, you can use res ipsa loquitur if (1) the accident is normally associated with negligence, and (2) the accident would normally be caused by the negligence of someone in the ∆'s position

• Must show BOTH: Factual and Proximate Causation
• Factual Causation: But-for test, and Multiple ∆s
• Proximate Causation: "Fair" to hold ∆ liable for foreseeable consequences

• Causation: But-for ∆'s negligence, there would be no injury
• No causation: Even-if ∆ was not negligent, π would still be injured (e.g., because π threw himself in-front of ∆'s truck)

• Causes combined: Causation, if a breach would, in itself, be sufficient to cause π's injury
• Cause uncertain: Burden shifted from π to ∆—∆ must prove that he/she wasn't at fault

A ∆ generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts—i.e., when the consequences of ∆'s negligent action are foreseeable

• Foreseeable: Causation
• Unforeseeable: No causation

• Defined: Occurs when ∆'s breach leads directly to π's injury—i.e., uninterrupted chain of events.
• Causation: ∆ is liable for all foreseeable harmful results, regardless of unusual manner or timing.
• No causation: ∆ is not liable for unforeseeable harmful results not within the risk created by ∆'s negligence.

In summary—

• Direct + Foreseeable consequence: Causation
• Direct + Unforeseeable consequence: E.g., freakish or bizarre—No causation

Occurrence: Occurs when ∆ breaches duty, and there are intervening events between the breach and π's injury. The key here is to think about what could you reasonably expect to happen as a result of ∆'s breach

Well-settled cases—Causation found

• Intervening medical negligence
• Intervening negligent rescue
• Intervening reaction/protection forces (e.g., mass hysteria stampede)
• Subsequent disease or accident (e.g., infection, falling off crutches)

Approach for other cases (not well-settled)

• Focus on identified breach
• Before reading the rest of the problem, ask yourself what could possibly happen as a result of ∆'s breach
• Continue reading the problem, and if what you imagined actually does happen, then you have foreseeability and therefore proximate causation

• The "egg-shell skull" rule: If the other 3 elements are satisfied, ∆ is liable for all damages arising from the breach no matter how great in scope
• NB: The egg-shell-skull rule applies to all successfully proven torts—not just those in negligence

• Contributory Negligence: Complete bar to recovery (exception: Last Clear Chance)
• Assumption of Risk: IMPLIED ASSUMPTION (π (i) knew of the risk, (ii) appreciated the risk, and (iii) voluntarily proceeded in face of risk); EXPRESS ASSUMPTION (express agreement); NB: not a defense to an intentional tort (that would be consent)
• Comparative Negligence: Pure comparative negligence (π always recovers something) vs. Partial/Modified Comparative Negligence (bars recovery if π was more negligent than ∆).