Torts!

1. Torts! Jessica Neilson, J.D., LL.M

2. Torts 4/12/06 • Three types of Torts: • (1) Intentional Torts • (2) Negligence • (3) Strict Liability

3. Torts

4. Negligence • Conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm.

5. Negligence - WA • P must prove: • 1. D had duty to conform to certain standard of conduct for the protection of others against unreasonable risks • 2. D breached that duty • 3. Breach was a proximate cause of the P’s injury • 4. The P suffered legally compensable damages

6. Duty • An obligation to conform to a particular standard of conduct toward another • Duty to use reasonable care • A. where acting, D has duty of reasonable care, so long as risk to P is reasonably foreseeable ( CREATE RISK OF HARM!) • B. Where omission, D has no duty to use reasonable care unless (1) the D has induced justifiable reliance by the P that the D will use reasonable care to prevent injury OR (2) Special relationship between D and P imposing a social duty on D to use reasonable care for P’s safety or (3) Statute specifically imposes a duty to exercise care for another’s safety

7. Ex: baseball player beaning Grandmother in left field • Act or omission?

8. Inducing reliance examples • Inducing justiable reliance examples: 911 operator – article from today’s paper! • Bus driver helps a person cross the street safely • School is thought to induce reliance for care of child

9. Generally, issues of negligence are not susceptible to summary judgment • In deciding whether to impose duty, court evaluates public policy considerations • Duty is usually a Q of law for court (judges should weigh policy considerations and balancing of interests) • Jury may need to decide whether the injury to P was foreseeable (thus creating duty of care) • Jury decides BREACH

10. Duty – Special Relationship Exs. • Owner of business premises owes duty to prevent assault on one if its customers if foreseeable • Group home and its residents • Governmental body • Church failed to prevent EE’s from sexual abuse • Supervisory relationship

11. WA Good Samaritan Statute • A person who provides emergency services without compensation, including transportation, is immune from ordinary negligence suits • (1/2 hour delay in driving kid to hospital w/knocked out tooth was immune from negligence action by kid’s parent absent evidence of a reason to know delay would make it hard to reimplant the tooth)

12. Rescuer doctrine • Rescuers are owed a duty of reasonable care by one whose negligence creates the apparent need for rescue. • Rescuer hit by car helping stalled car – original driver potentially liable to rescuer’s estate • Jury decides: • Was D negligent? • Was the peril to the D appearing imminent to rescuer? • Was rescuer’s view of peril reasonable? • Did rescuer act reasonably in response to peril?

13. Do you have to protect against possibility of criminal conduct by 3d persons? • Generally, no duty to come to the aid of a stranger or protect others from criminal acts of 3d persons. • However: landowner has duty to provide reasonable levels of security, and others! • City liable for releasing man on probation who was convicted of lewd conduct when he raped a 6 yr old girl (failure to supervise)

14. Duty imposed by statute: Ex • WA has statute that prohibits a person from leaving his keys in his car. RCW 46.61.600. • Duty imposed by statute or regulation extends only to persons in class of persons statute intended to protect and suffered type of injury the statute or regulation was intended to address • Ex: Washington State Liquor Act – duty on social/commercial hosts not to sell or furnish liquor to minors

15. Should you lend your car to your roomie, Slacker? Maybe not… • Vehicle owner is under duty to refrain from entrusting car to another where the O knows, or should know in the exercise of ordinary care, that the person to whom their vehicle is entrusted is reckless, heedless, or incompetent

16. Where can you see negligence? Examples:

17. Should a handicapped child be able to sue for wrongful birth and injury in womb?

18. What IS reasonable care? • Fact-finder must determine • Defined by what a hypothetical reasonably prudent person would do in the D’s position • Did D know or should have known it was an unreasonable risk? • External: based on society’s demands (not what the individual thinks)

19. Learned Hand Carroll Towing is one test • Where the burden of a safety precaution to prevent the injury is less than the probability of the harm times the magnitude of such harm, then a reasonable person would employ the safety precaution. • Wear seatbelts? • Put down cell phone? • Stop smoking?

20. Discussion of Adams v. Bullock • Is this NY’s highest court? • How would you brief this case? • What is the court’s holding? • What element of negligence does Cardozo focus on?

21. Children • In WA, a child’s conduct is measured by the conduct of a reasonably careful child of the same age, intelligence, maturity, training, and experience • Unless: child in inherently dangerous activity (runs a tractor, drives)=held to adult standard • Children under 6 can’t be contributoriliy negligent under RCW 4.22.070 • 4 year old held incapable of negligence as a matter of law

22. Physical or Mental Infirmities • Person with infirmity is held to that degree of care that an ordinary prudent person w/such infirmities would exercise under similar circumstances • Blind person = what reasonable blind person would do • Sorry, getting drunk doesn’t count—held to standard of a sober person for obvious reasons!

23. Breach of Duty • Jury decides!

24. Proximate Cause • Proximate cause of an injury is “a cause which, in direct sequence, unbroken by any new independent cause, produces the injury complained of and without which such injury would not have happened.” • Jury Decides!!! • 1. Cause in fact (BUT FOR CAUSE) AND • 2. Legal cause

25. How do you prove But-For Cause? • Often need expert testimony: $2500+ for each! • multiple independent causes and “substantial factor” test • 10 different asbestos manufacturers each sell product that caused lung disease. He loses on but-for each of them, can win on substantial factor Summers v. Tice: both shot V, burden should shift for them to disprove cause!

26. Legal Cause • Policy judgment that injury was ‘close enough’ to conduct to warrant liability • Closely intertwined with duty of care (but note: court can find duty but not prox. Cause) • More than mere chance! • No superseding cause that breaks chain • Unforeseeable type, manner of harm or plaintiff

27. Examples: Legal Cause • D sped, and if didn’t speed, he would not have been at exact spot where accident occurred. (C/Fact established) • However, speeding did not increase the risk of the injury, and is thus not a proximate cause of the injury

28. Legal Cause? • E is D’s employee. One winter day, D • instructs E to clean his machines with • gasoline in an enclosed room. The room is • heated by a heater with an open flame. A • resident rat is hiding under one of the • machines and gets doused with the gas. • In a panic, it runs toward the heater, • catches fire, and runs back to the machine. • The room explodes, killing E.

29. Death by Flying Shrimp! • Jerry Colaitis injured his neck while trying to avoid a hot shrimp playfully tossed at him by a table-side hibachi chef at Benihana, the Japanese steakhouse chain. • Colaitis’s neck injury required an operation. • An apparent infection necessitated another procedure. • Ten months after dodging the shrimp, he was dead of a blood-borne infection. • His estate seeks $10 million in damages. Plantiff’s lawyer Andre Ferenzo of Roslyn said “Benihana set in motion a chain of events”; defense counsel Charles Connick of Mineola argued there is no causal chain connecting his death to Benihana.

30. Damages To be discussed later

31. In-Class Discussion • Guns!!! Come up with arguments for and against gun liability for death that occurs from criminal or negligent use of guns!