Torts Outline

MAJOR THEMES IN TORTS

Both quarters

Eggshell skull vs. hyper-sensitivity; reasonable man vs. individual circumstances (subjective/objective)

Least cost avoider / economic considerations and incentives (differing treatment of different professions, information-forcing rules and warning burdens, win-win cases, socially optimal behavior)

Burden-shifting / recurring miss / pockets of immunity

Hand formula as a legal tool re: establishing negligence (B<PL) and foreseeability of risk (PL)

Proof problems (strict liability/negligence, loss of chance, POE, res ipsa loquitur, emotional distress, collusion among defendants)

Cost-benefit (Hand formula, nuisance law, risk-utility in design defects)

Ex ante bargaining / Coase theorem

Levmore

Strict liability vs. negligence – Does it matter? Which will provide the right incentives? When are we actually using strict liability, and when do we mostly treat it as lip service, or as a shortcut to establishing negligence?

Duty: who owes whom due care, or a heightened standard of care?

Outcome (pure tort) vs. preemptive (regulatory) system

Single owner principle

Henderson

Seen/unseen problem: compensating all tort victims (tort law as insurance/cross-subsidy) vs. assigning liability where it can prevent future injuries and saving money to compensate the worst-injured

Causation: where did the tort start and where does it end?

Tradeoffs between fairness and accuracy (decision costs, error costs)

Legal fictions: causation where there is none (market share liability or joint & several liability, e.g.), heeding presumption, exclusion of marriage evidence for lost earnings, subjective but not sentimental value in damages

Peltzman effect / Blum’s law

LEVMORE

THE FUNDAMENTAL RULE OF NEGLIGENCE

Black-letter law: (1) duty of reasonable care, (2) breach of that duty, (3) causation, (4) resulting damages.

Mental ability and mental states

• Williams v. Hays (N.Y. 1899) NL

  • Fatigued, nutty ship captain (Δ) fails to save his ship during a storm.

  • Trial court: L. An insane man is just as responsible for his torts as a sane one. If he had become insane in consequence of trying to save the ship, maybe the outcome would be different.

  • On appeal: If Δ became insane in consequence of his efforts to save the ship, can his insanity furnish a defense to negligence?

  • Reversed. Every man has his limits. To demand more than reasonable care and prudence is to demand the impossible.

• Vaughan v. Menlove (UK 1837) L

  • Δ built a haystack which his neighbor warned was a fire hazard. The haystack caught fire.

  • Trial court: L. Δ appealed: “I’m stupid” defense.

  • Affirmed. Care taken by a prudent man has always been the standard. To adjust negligence liability for each case would make the law too variable.

• Lynch v. Rosenthal (Mo. 1965) L

  • Δ instructed Π (mentally disabled farmhand) to help with corn picking. Π was injured.

  • Trial court: L. Evidence of Π’s mental incapacity is convincing enough that he cannot be held contributorily negligent.

  • Affirmed. Extent of Π’s mental deficiency was fully explored, and Δ ordered him to walk where he was walking, which Δ admits was dangerous.

• Holmes on distinct defects: The law takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men. There are 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.

• Restatement 2d: If the actor is a child, allowance is made for his inferior qualities of mind and body, and the standard becomes that of a reasonable man with such qualities. If the actor is ill or otherwise physically disabled, allowance is made for such disability. Except in such cases, the actor is held to the standard of a reasonable man as to his attention, perception, memory, knowledge of other pertinent matters, intelligence, and judgment, even though he does not in fact have the qualities of a reasonable man.

• Weirs v. Jones County (Iowa 1892) NL

  • Δ posted signs reading “Bridge unsafe.” Π, illiterate in English, drove his wagon over the bridge.

  • Trial court: NL. Signboards were placed conspicuously, such that a person of ordinary care would consider himself warned.

  • Affirmed. Π’s lack of English proficiency does not require Δ to put up signs in multiple languages.

• Friedman v. State (N.Y. 1967) No CN

  • Π and friend were stuck in a ski resort chair lift. Π jumped to the ground, and injured herself.

  • Trial court: No CN. Π was an Orthodox Jew and feared spending a night alone with a male.

  • Appeals court affirmed, but reduced damages from $35,000 to $20,000.

• Fredericks v. Castora (Pa. 1976) NL

  • Π was riding in a car and was hit by two trucks.

  • Trial court: NL. Π appealed: jury should have been instructed to apply a higher standard to Δs than to ordinary drivers.

  • Affirmed. To vary the ordinary standard of care according to driver’s experience would render the application of any reasonably uniform standard impossible.

• Restatement 2d: Actor must utilize not only those qualities and facilities which as a reasonable man he is required to have, but also those superior qualities and facilities which he himself has.

Physical shortcomings

• Kerr v. Connecticut Co. (Conn. 1928) NL (CN)

  • Π’s decedent, a man of poor hearing, walked alongside a trolley line and was struck by a trolley whose driver saw him and attempted unsuccessfully to stop.

  • Trial court: CN on Kerr’s part, but no negligence on Δ’s.

  • Affirmed. It was Kerr’s duty to take such care as a reasonably prudent deaf man would take.

• Davis v. Feinstein (Pa. 1952) No CN

  • Blind Π using a cane to walk fell through open cellar door in front of Δ’s store.

  • Trial court: L (no CN).

  • Affirmed. Π was bound to use due care under the circumstances, which he did.

Age

• Purtle v. Shelton (Ark. 1971) NL

  • Δ, 17, accidentally shot Π, 16, his hunting companion.

  • Trial court: NL (CN). Jury...

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