Corrective Justice "Making the victim whole,"

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Functions of Tort Law

  1. Corrective Justice

  • “Making the victim whole,” matching up victims with tortfeasors

  • Explains why tort law is between victim and tortfeasor, rather than state suing tortfeasor or victim claiming benefits from the state

  1. Optimal Deterrence

  • Imposition of tort liability helps to prevent future tortious actions by threatening potential wrongdoers with liability.

  • Find best cost-avoider and impose liability, but don’t over-deter socially-beneficial activities.

  1. Social Redress

    • Getting one’s day in court

    • Populist mechanism that permits ordinary people to put authority on trial

  2. Compensation/Loss Distribution

    • Provide benefits to accident victims. Spreading out the costs of accidents from individual victims to insurance companies and consumers.

Concepts to Consider

  1. Deep pockets/judgment-proof

  2. Best cost-avoider: Responsive to legal rules, strategically placed to take precautions, deterrable. Hospitals, insurance companies, but not individuals.

  3. Judicial Economy

  4. Burden-Shifting/Stick it to the Breacher

  5. Optimal Deterrence

  6. Capture

Intentional Torts

 Liability is not imposed for negligence, but only upon proof of the defendant’s intention to invade the legally protected interest of another.

  1. Battery

    1. Harmful or Offensive Contact

      1. Context dependant

        1. Vosburg v. Putney: kick was violation of classroom decorum; case may have been different if it happened at recess.

        2. White v. U of Idaho: piano teacher touched student

    2. Intent to cause contact (NOT necessarily to cause harm)

      1. Single Intent

        1. Vosburg v. Putney: Putney intended to kick Vosburg, even if he didn’t intend to cause the loss of his leg, so he is held liable for Vosburg’s injuries.

        2. Strict Liability: no mens rea requirement. You broke it, you bought it.

          1. Vosburg thin skull (shin) rule

      2. Dual Intent: P intended to make contact AND intended to harm or offend (or knowingly disregarded risk that harm would happen

        1. Restatement (2nd) on Torts § 13 takes this view

        2. Split in states between requiring dual and single intent for battery

      3. Transferred intent: If D intends harmful or offensive contact with A but inflicts it on B, he is liable for B’s injuries.

  2. Assault

    1. Intent to cause or threaten battery

    2. P fears imminent harmful or offensive contact.

    3. Issues

      1. How close to consummation? “Imminent:” immediate, close, actual.

      2. Extra-sensitive plaintiff. D liable if he has reason to know about th extra sensitivity.

  3. False imprisonment: total confinement, of which P is aware, that is intentional (physical force or mere threat of force).

  4. When do Intentional Torts Matter? (Policy)

    1. Importance of intentional torts: extra protections for body and mind (Vosburg)

    2. Punitive damages apply to intentional conduct as a matter of law.

    3. Compensatory damages from juries are increased as a matter of practice.

    4. Kids are hard to find negligent, but are subject to intentional tort rules.

    5. In comparative liability, intent sometimes trumps negligence.

Accident Law

 Cases imposing strict liability or negligence liability, usually for physical injury – bodily injury or property damage. Strict liability is imposed without regard to the degree of care that the defendant, or “tortfeasor,” exercised. Negligence liability is imposed only upon proof of some kind of carelessness—technically, the failure to exercise reasonable care under the circumstances.

I. Duty: (Part One) Is there a duty?

Is there a duty (the legal duty to comply with a particular standard of care)?

A. Duty to Act/Rescue?


There is ordinarily no duty to rescue. In the absence of special circumstances or a special relationship, one person has no affirmative duty to rescue another from danger. The ability to rescue someone does not create a duty to do so. (Hurley v Eddingfield, held that a doctor had no duty to rescue his patient.) (Yania v Bigan – held that Bigan have no duty to rescue Yania, although Bigan had encouraged Yania to engage in a dangerous activity, because Bigan did not make such a physical or mental impact on Yania that it deprived Yania of his freedom of choice) (Stockberger v US – held that prison employees were not liable for failing to drive a hypoglycemic coworker home).

Pros: This rule values individual liberties (which is central to Anglo-Saxon cultures). This rule may also be better at promoting rescues than a legal duty to rescue because imposing a legal duty to rescue might have the perverse side effect of decreasing rescues because of the fear of liability. Relatedly, if people rescued others only because they were legally obligated to do so, they wouldn’t likely be the most effective rescuers. Finally, a duty to rescue would present a problem for judicial economy because the shift from commission to omission would move the law from aiming at a few people with clear liability to many people with cloudy liability.

Cons: This rule would maximize social good because helping someone in an emergency is a greater good than avoiding the inconvenience of rescuing them. Also, if we view tort law’s purpose as writing the social contract between people, most people would say that they would want to be saved in an emergency, so tort law should enforce a duty to save people in emergencies.

What triggers a duty to act?

1. If there’s a rescue attempt

While there is no duty to rescue, if one person voluntarily decides to rescue another, the rescuer must neither conduct the rescue negligently nor abandon the attempt. (Zelenko v Gimbel Brothers, Restatement 324).

2. If there’s risk creation

a. “Misfeasance”  A defendant who negligently places the plaintiff in danger may be held liable for negligently failing to rescue him from danger. Negligently placing the plaintiff in danger to begin with—“misfeasance”—may give rise to liability for negligent failure to rescue.

b. “Feasance”  One who non-negligently creates a danger to another person may have a duty to warn the other person of that danger, and perhaps even to undertake an active rescue. (Montgomery v. National Convoy and Trucking Co – held that if a defendant creates a risk and that risk leads to danger, the defendant has a legal duty to mitigate that danger – Driver whose truck stalled should have warned others coming over the hill.) Having created the risk of harm, one has a duty to exercise reasonable care to prevent or minimize that harm (Restatement 39, Newton v Ellis – defendant dug a hole in a road and left it unlighted at night, plaintiff, while driving, fell into the hole – plaintiff recovered).

Distinguishing Misfeasance, Nonfeasance and Feasance:

1. Conduct is misfeasance (misconduct/commission) when the conduct itself was unreasonably risky. The defendant is liable for the foreseeable consequences of his misfeasance; he has both a legal duty to attempt reasonable rescues for victims of his negligence and an incentive to warn and rescue to mitigate those damages. ( Truck driver crashes after speeding on an icy road at night)

2. Conduct is nonfeasance (nonconduct/omission) when a reasonable person would have helped to prevent or mitigate a harm but tort law gives an individual in that position the freedom to act unreasonably and choose not to rescue or warn the person in danger. Generally there is no duty and no liability for nonfeasance. ( Truck stalls on an icy road at the bottom of a hill. A resident of a nearby house sees the danger to other drivers and owns warning flares, but decides not to help.)

3. Conduct is feasance (conduct/commission of risk-creation) when the activity is generally a reasonable, ordinary and socially beneficial activity, but it also means taking some reasonable risks, that is, the conduct involves reasonable non-tortious risk-creation. When those risks materialize, they create a specific duty to exercise reasonable care to prevent or minimize harm. ( Montgomery case – Truck stalls on an icy road at the bottom of a hill. Truck driver could have put a warning signal at the top of the hill, but didn’t.)

B. Duties to Third Parties


There is no duty to control the conduct of a third person and prevent him for causing harm to another unless a special relationship exists between actor and third person or between the actor and the potential victim (Restatement 315).

What triggers a duty to a 3rd Party?

Overtime, liability has been imposed in cases in which the defendant has made it possible for another party to engage in tortious conduct that injures a third party. In these cases the defendant has negligently enabled another to cause harm to the third party and the defendant was strategically placed to take precautions reducing the risk that the third party would be injured.

1. Risk creation

Liability is sometimes imposed in cases in which the defendant has made it possible for another party to engage in tortious conduct that injures a third party. In these cases the defendant has negligently enabled another to cause harm to the third party (Weirum v RKO – held that liability was predicated on defendant’s creation of an unreasonable risk to the plaintiff).

2. Negligent Entrustment

If a person possesses a dangerous instrumentality, the possessor has a duty to protect against its misuse by a third-party whom the defendant knew or should have known would use it negligently. Thus, a person who lends a loaded gun to a drunken friend who cannot be expected to use it safely will be liable to a third party who is carelessly shot by the drunken friend.

3. Special Relationship

a. Universities, Landlords, Shopping Centers  Liability is sometimes imposed upon universities, landlords, shopping centers, and other proprietors for foreseeable harm to students, tenants, and customers caused by the conduct of third parties. In order for this type of liability to apply, there is usually both a pre-existing relationship between the plaintiff and defendant proprietor and circumstances that put the defendant on notice of the risk of harm to the plaintiff. These two conditions create a duty for the defendant not to be negligent with respect to the plaintiff. (Kline v 1500 Massachusetts Avenue Apartment Corporation – held an apartment building liable to a tenant who was attacked in the building’s lobby, reasoning that the owner was obligated to take certain basic measures to protect occupants against foreseeable criminal acts).

b. Mental Health Professionals  In certain cases, mental health professionals can be held liable in negligence to third party victims who are injured by patients after the mental health professional knows that the patient has an intention to harm the third party. (Tarasoff I held that both therapists and police had a duty to warn the third party victim, but Tarasoff II held only that the therapist “bears a duty to exercise reasonable care to protect the victim of that danger.”)

Pros: The therapist is the best cost avoider (the party best able to prevent accidents and most responsive to legal incentives) so the harm is more likely to be prevented if we impose the duty on the therapist rather than the insane individual.

Cons: Tarasoff I was a crystal standard, but Tarasoff II is muddy; it’s hard to know when a therapist has a duty to warn and when they do not. This might be why, in practice, the psychologists’ professional rule is Tarasoff I. Furthermore, as the dissent points out, this duty to warn might have a chilling effect on psychiatric treatment. Psychiatrists might be reluctant to treat patients that are dangerous and in the greatest need of treatment because that treatment might lead to liability in tort. Similarly, dangerous patients might avoid treatment because the doctor-patient relationship no longer ensures confidentiality.

C. Duties of Owners and Occupiers

Under Common Law (Majority Rule)

Traditional common law rules governing premises liability divide entrants onto the land of owners/occupiers into three categories:

1. Invitees = anyone on the property for business purposes. Owners owe a duty to exercise reasonable care to those whom they invite onto their property. The premises must be reasonably safe for ordinary use.

2. Licensees = people who are social guests. For a licensee, the owner must make the premises as safe as he makes them for himself. That is, the owner must warn the licensee of hidden dangerous conditions, but need not eliminate these conditions.

3. Trespassers = those who enter property without express or implied permission. The owner owes only a duty to refrain from wantonly and willfully injuring trespassers.

Pros: The majority rule is better from a judicial economy standpoint. There are clear rules that increase the predictability and uniformity of outcomes.

Cons: The rigidity of the majority rule sometimes creates unfair results. A more flexible standard would allow judges to make sure that every case had a fair outcome by maximizing judicial discretion.

Under Rowland v Christian (Minority Rule)

The court in Rowland v Christian, rejected the traditional categories of invitee, licensee, and trespasser in favor of a reasonable-conduct-under-all-the-circumstances test. In place of the categories, the court in Rowland v. Christian determined that a series of factors should be taken into account in determining the scope of the defendant’s duty:

1. the foreseeability of harm to the plaintiff,

2. the degree of certainty that the plaintiff suffered injury,

3. the closeness of the connection between the defendant’s conduct and the injury suffered,

4. the moral blame attached to the defendant’s conduct, (corrective justice)

5. the policy of preventing future harm, (deterrence)

6. the extent of the burden to the defendant

7. the consequences to the community of imposing a duty to exercise care with resulting liability for breach (optimal deterrence)

8. the availability, cost, and prevalence of insurance for the risk involved.

Duty: (Part Two) What is the Standard of Care?

If there is a duty, what is the general legal standard for liability in this case?

Duty to Warn of Concealed Dangers and Traps

Limited Duty to Licensees

Duty not to intend harm or be wanton/reckless

Limited duty to trespassers

Ordinary/Reasonable Care

The Fault/Negligence Requirement


Absolute Liability

No defense

[In theory only]

Strict Liability

Liability without proof of fault

Heightened Duty

Utmost care: Common Carriers and Innkeepers

A. Negligence

Negligence is the failure to exercise the care that would have been exercised by the reasonably prudent person under the circumstances to avoid injury or damage to another person or property.

The Reasonable Person - Objective Standard

The general negligence standard is objective, not subjective. Reasonable care under the circumstances does not normally include the incapacities or limitations of the person whose behavior is under evaluation. That the defendant did his best or acted in good faith is no defense. (Vaughan v Menlove – held that the standard for reasonable care is the reasonable man, not what the defendant in that particular case thought was reasonable).


1. Encourages higher level of care by Defendant (or caretakers liable for his actions)

2. More predictable for community (uniform standard)

3. More clarity for juries (less effort to get inside the head of the Defendant)

4. Prevents malingering/fraudulent claims of good faith

5. Better for judicial economy (easier to determine and promotes more settlements)


1. A subjective standard would be fairer to the defendant

2. More congruent with corrective justice standards because the defendant might not have been blameworthy.

Semi- Objective Standard

There are certain exceptions to the objective standard of reasonable care.

[[Note: Some courts have “stuck it to the breacher” and held defendant tortfeasors to an objective standard (the court holds the defendant’s disability against him) but have taken a plaintiff’s disabilities into account when assessing contributory negligence (the plaintiff’s disabilities help him). (Roberts v. Ring – held the elderly defendant to an objective standard, but applied a semi-objective standard to the child plaintiff.)]]

1. Children

a. Generally  Children under the age of 5 cannot be negligent at all, presumably because they cannot be expected to exercise care. Children above that age are expected to exercise the degree of care that would be reasonable in a child of similar age, intelligence, and experience. (Third Restatement 283A)

b. BUT Children Engaged in Dangerous Adult Activities  When children engage in dangerous adult activities, they are held to an adult standard of care. (Daniels v Evans – held that a minor who was operating a motorcycle could be held to the same standard of care as an adult because one cannot know whether the operator of an automobile is a minor or an adult, so one usually cannot protect himself against youthful imprudence). (BUT see Goss v. Allen – which held that skiing was not an “adult” activity like driving a car).

2. The Elderly

There is usually no adjustment for elderly people; they are generally held to an objective standard. (Roberts v. Ring – held that an elderly man with impaired sight and hearing should be judged by the ordinary standard of reasonable care.)

3. Beginners

Beginners are held to same standard of care as those reasonably skilled. However, when the Plaintiff has assumed the risk that Defendant will exercise lower standard of care (e.g. driving instructor and his student), the beginner is held to a lower standard because the plaintiff is on notice that the beginner lacks skill.

4. Experts

Experts are required to exercise the skill and knowledge normally possessed by members of that profession or trade. The second restatement says that if the expert represents that they possess greater skill, they are held to that higher standard, (Second Restatement 299A). The third restatement says that higher standard rule is strongest when parties agree to it, but it is not a categorical rule; the expert’s skills or knowledge are simply taken into account.

5. Physical Disabilities

Physical disabilities are taken into account in judging the reasonableness of behavior when they are visible, measurable, and verifiable. Defendants with physical disabilities are compared to a reasonably careful person with the same disability, unless the disabled person engages in an activity that the disability makes safe, in which case they are held to an objective standard. (Roberts v. Ring – held that an elderly man with impaired sight and hearing should be judged by the ordinary standard of reasonable care.) One must take into account other people’s foreseeable disabilities in taking precautions.

6. Mental Disabilities

There is generally no subjective standard for insanity.


a. However, if the insanity was sudden and unforeseen and affects the defendant’s ability to understand her duty or control her actions, then the insanity is a defense because the lack of notice means that there was nothing the reasonable person could have done differently in advance. (COMPARE Bruenig v American Family Insurance – held that since the defendant had notice of her psychotic episodes, it was negligent for her to get into a car and drive it.)

b. Insanity is also a defense if the defendant is already confined. (Gould v American Family Mutual Insurance – held that institutionalized person cannot be liable for injuries to caretakers who are employed for financial compensation.)

Pro: This exception promotes optimal deterrence. If the defendant is already confined, we don’t want to over-incentivize confinement and restraint.

c. Insanity is also a defense if the plaintiff is an insane defendant’s caregiver. (Creasy v Rusk – held the institutionalized insane defendant was not liable to an injured caregiver because the caregiver had notice.) But, if the plaintiff is the institutionalized patient and the defendant is the caregiver, then insanity is no defense. (Jankee v Clark County – held that there is no imposition of liability on institution that had not restrained P who injured himself as a result.)

Pro: This exception promotes optimal deterrence. If the defendant is already confined, we don’t want to over-incentivize confinement and restraint.

7. Drunkenness

The drunkenness of the plaintiff does not excuse the negligence of the defendant. (Robinson v. Pioche – held that the plaintiff’s intoxication was not a mitigating factor for defendant’s negligence in digging an uncovered hole in front of his property.)

8. Wealth

There is no difference in standard of care required from a person whether they are rich or poor. (Denver & Rio Grande Railroad v. Peterson – held that the defendant’s wealth was irrelevant in determining liability because the level of care required of a Defendant is the same regardless of wealth.)

Pro: Wealth is irrelevant to both the deterrence and the compensation aims of tort liability.  The two major purposes for compensatory damages are deterrence and compensation. Regarding wealth, whether a defendant is wealthy or not, the cost benefit analysis is the same. Regarding compensation, if evidence of the defendant’s wealth were admissible, the plaintiff’s right to recover and the magnitude of the defendant’s liability would depend on the defendant’s identity, rather than on the nature of the defendant’s action and the extent of the plaintiff’s loss.

Con: If individuals are risk adverse, then, all other things being equal, a wealthier potential defendant has a lower marginal utility of wealth than does a poorer potential defendant: he is, in other words, less adversely affected by a given expenditure on care than is a poorer person.” The richer person thus sacrifices less utility for any given unit of wealth than does the poor person.

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