II. NEGLIGENCE
A. Overview
1. The Tort of Negligence.
2. Defining the Reasonable Person.
3. Critiquing the Reasonable Person Standard.
4. Third Restatement
5. The Hand Formula
- In evaluating the issue of P's contributory negligence, the court had to consider the reasonableness of the bargee's absence from the ship during normal working hours.
- To aid his analysis of reasonableness, Judge Learned Hand articulated and applied what is now known as the "Hand Formula," now used to analyze negligence
An Economic Approach to Negligence.
1. Posner was a prominent leader of the law and economics school of thought. He characterized Hand's formula in economic terms.
2. The cost of accident prevention is what Hand meant by the burden of taking precautions against the accident. This may involve installing safety equipment.
3. If (a) cost of safety exceeds (b) benefit in accident avoidance to be gained by incurring that cost, society would be better off in economic terms to forgo accident prevention.
4. A rational profit-maximizing enterprise will pay tort judgments to the accident victims rather than incur the larger cost of avoiding liability.
5. Overall economic value or welfare would be diminished rather than increased by incurring a higher accident-prevention cost in order to avoid a lower accident cost.
6. Posner's statement is consistent with an approach to law that has as its goal the minimization of costs to society, but there's compensation, deterrence, fairness.
Custom.
- As the principal case indicates, custom is generally accepted as evidence of what constitutes reasonable conduct.
- Nevertheless, in most negligence cases, the finder of fact, ordinarily the jury, is free to determine that an industry's or community's custom.
- Do you agree with Judge Posner's conclusion in the principal case that (a) an industry's custom ordinary reflects (b) efficient behavior?
- Consider how important you think the jury considered the (a) local food industry's (b) customary temperature to heat food in the McDonald's case.
B. Standard of Conduct
Reasonableness in the Context of Circumstance
- Courts evaluate the reasonableness of the defendant's conduct in the context of the circumstances confronting the defendant.
- Consequently, courts allow the jury to consider, in its determination of D's reasonableness, evidence that D was acting under emergency circumstances.
- The Third Restatement articulates the generally accepted view as follows: If an actor is confronted with an unexpected emergency requiring rapid response, this is a circumstance to be taken into account in
- However, even courts that accept the emergency charge find it inappropriate where the emergency should have been anticipated.
- See Roberts v. The Estate of Randall (2002)
- See Malinowski v. UPS (1999)
Emergency Charge
- Traditionally, trial courts have been required to give the jury a special instruction or "charge" underscoring that a reasonable person in a sudden emergency should not be expected to respond as wisely as a reasonable person allowed the luxury to contemplate his actions under more leisurely and less pressured circumstances.
- SEE Rivera v. New York City Transit Authority
Emergency Charge Rejection
- Some decisions have rejected the practice of an emergency instruction as redundant and misleading since negligence liability is only imposed when D acted unreasonably under the circumstances.
- The Third Restatement acknowledges the advantages and disadvantages of giving an emergency charge to the jury, but does not endorse one side over the other.
- SEE Lockhart v. List
- SEE Lyons v. Midnight Sun Trans.
Mental Disability Irrelevant
- SEE BREUNIG v. AMERICAN FAMILY (1970)
- The traditional majority rule holds an insane person and/or mentally deficient insane person to a reasonable standard of care. [Endorsed by Third Restatement]
- Unlike in criminal law, no dispensation is made under the majority rule for even extreme mental disability.
- This is also in contrast to physical disabilities, which the tort law does take into account in the determination of negligence for adults.
- This distinction remains controversial, particularly since medical science attributes much mental disability to biochemical causes.
- Is there a reason to distinguish the criminal law's general willingness to allow an insanity defense from the tort law's general rejection of the insanity defense?
Physical Disability Considered
- Note that so-called "physical" as opposed to "mental" disabilities, such as blindness, hearing impairment, heart attack, or seizure, have always been considered "circumstances" which are taking into account in determining whether the individual behaved reasonably. Is the distinction between mental and physical disability valid?
SPLIT — Sudden Insanity
- The majority does not follow the Breunig exception, instead holding a mentally ill individual to the reasonable person standard without exception.
- See Burch v. American Family Mutual (1996)
Mentally Disabled Can Be Contributorily Negligent
- The majority rule refuses to make allowances for mental deficiencies regardless of whether the mentally disabled person is the D or P.
- When the mentally disabled person is a P, the issue of his or her conduct becomes central in determining when the recovery is limited by contributory or comparative negligence.
SPLIT: Some Decisions Consider P's Mental Disability
- In what NJ characterizes as the modern trend, several recent decisions have evaluated contributory or comparative negligence of mental health patients in light of P's mental capacity.
- Should courts be more inclined to consider mental disability when the mentally disabled person is a plaintiff?
- Many of the decisions considering P's mental disability in determining contributory or comparative negligence occur where D is the mentally disabled person's caregiver.
- The Third Restatement has effectively acknowledged in its comments that courts may choose to find the patient had no duty to protect oneself therefore precluding contributory or comparative negligence.
Caretaker's Suing Mentally Disabled Patients
- Some courts have considered the mental deficiency of a D when P was his caretaker.
- The defense of assumption of risk is also relevant to these cases.
- See Gould v. American Mutual (1996)
- See Colman v. Notre Dame (1997)
- See Berberian v. Lynn (2004)
Policy Argument
- Originally, tort law was predicated on strict liability. In the eighteenth and nineteenth centuries strict liability was replaced with liability predicated on fault.
- The last remnants of seventeenth century strict liability law remains with us in the area of mental illness.
- Mentally ill individuals whose disease is sudden or untreatable are liable for the negligent harm that they occasioned even when they cannot avoid the harm.
- To close this area of strict liability, a subjective standard should be applied to mentally ill individuals who cannot avoid causing negligent harm due to their mental illness.
- Clearly, mentally ill individuals whose disease is sudden or untreatable cannot ex ante prevent the harm and thus should not be found culpable.
X. CHILDREN
1. Special Child Standard
2. Accounting for Child's Individual Characteristics
3. Very Young Children
4. Teenagers
5. Negligence versus Intentional Torts
6. Exception for Adult Activities
7. Courts Hesitant to Apply Adult Standard
8. Use of Firearms
9. Alternative "Inherently Dangerous" Standard
Professionals
1. Standard of Conduct for Professionals
2. Expert Testimony Required
3. Professional Elitism
4. Geographical Considerations
5. Common Knowledge and Experience
6. Higher Skills for Specialists
7. HMO and Insurance Liability
8. Malpractice Liability Reforms
9. Attorney Malpractice
10. Police Officer Training
11. Clergy Malpractice
Medical Malpractice
1. Informed Consent
2. The Physician Rule and The Patient Rule
3. Causation
4. Materiality of Risks
5. Danger of Not Having Treatment
C. Rules of Law
1. Rules of Law
2. A Legal Dinosaur
3. Should Tort Cases Use Juries?
D. NEGLIGENCE PER SE
1. Negligence Per Se
2. Type of Harm and Class of Persons
3. Unattended Vehicles Statutes
4. Licensing Statutes
5. Consistency Between Civil and Criminal Law
6. The Child Standard
7. Excuses for Violations
9. Statutes Only
10. Civil Liability Statutes Compared
(a) Negligence per se should be distinguished from civil statutes that impose civil liability for certain conduct. In negligence per se, the standard for negligence is being adopted from a statute that was not enacted to impose civil liability.
11. Reasonableness Per Se
(a) Courts don't automatically conclude that compliance with a statute means D has acted reasonably.
(b) Most such statutory standards are viewed as MINIMUM REQUIREMENTS, and DON'T NECESSARILY suggest that compliance will protect D from negligence liability.
E. Cause-in-Fact
1. "But For" Test
2. Multiple Causes
3. The Restatement
4. Proximate Causation Compared
1. Redundant Causes
2. The Restatement
3. Incremental Loss
4. Slippery Slope
1. Causation in Medical Malpractice Causes
2. SPLIT - States Are Divided
3. Drawing the Line
4. Using Statistics to Limit Recovery
5. Causation in Non-Medical Cases
1. Burden Shifting
2. Classroom Justice?
3. Other Contexts?
1. Market Share Answer to Causation
2. Representative Samples
3. Beyond Burden Shifting
4. Joining Defendants
5. The Future of Market Share Liability
6. "Acting in Concert"
1. Toxic Torts
2. Expert Testimony
3. Medical Monitoring
4. Straining the Tort System
F. DUTY AND PROXIMATE CAUSE (SCOPE OF LIABILITY)
1. Proximate Cause or Scope of Liability
2. The Restatement
3. Intentional Harms
1. Duty Versus Proximate Cause Elements of Negligence
2. Palsgraf
3. Duty and Foreseeability
4. Zone of Risk
5. Duty Owed to Rescuers
6. Palsgraf Dissent
7. Policy of Proximate Cause
8. Third Restatement (Duty)
SEE WAGON MOUND
1. In re Polemis and Direct Causation Test
2. Wagon Mound I
3. Wagon Mound II
4. Kinsman I
5. Kinsman II
6. Foreseeable Consequences
7. Other Factors
8. Limitations
(a) The foreseeability test is limited by the ADDITIONAL REQUIREMENT that there be no superseding intervening force that caused P's harm.
1. Manner and Extent of Harm
2. Superseding Intervening Force
3. Criminal Acts of Third Parties
4. Forces of Nature
5. Dependent and Independent Forces
1. Foreseeable Intervening Forces
2. Foreseeability of Car Thefts
3. Policy Concerns
4. Foreseeable Type of Harm
1. The Egg-Shell Plaintiff Rule
2. Emotional Injuries
3. Damages
4. SPLITS Alternative Approaches to Proximate Cause
G. Res Ipsa Loquitur
1. Res Ipsa Loquitur
2. The Third Restatement
3. Evidentiary Inference of Negligence
4. Exclusive Control
5. Pleading in the Alternative
6. Expert Opinions in Medical Cases
1. Multiple Defendants
2. Non-Medical Case
3. Rejection of Ybarra
H. Limitations on Duty
1. Failure to Act
2. Mental Distress
3. Wrongful Death and Survival Actions
4. Loss of Consortium and Society
5. Wrongful Life, Wrongful Birth, and Wrongful Conception
6. Landowners and Occupiers
7. Negligent Misrepresentation
This case was tried on the assumption that
(1) the general negligence rule, as in
(2) the foreseeability approach
(3) represented California Law.
Here, the California Supreme Court
(1) rejected the general rule
(2) in favor of a negligent misrepresentation rule
(3) in agreement with the Second Restatement.
HARM
WINNER
(1) Arthur Young, although it may have been a Phyrric victory
RULE
(1) When a party possesses or claims
(2) superior knowledge, information, or expertise, AND
(3) P is so situated as to reasonably rely on that knowledge, THEN
(4) D's representation may be treated as one of material fact.
DUTY
STANDARD OF CARE
(1) Here, the accounting firm falls within these principles.
(2) That said, liability is limited to those to whom D made the representation.
BREACH
CAUSE-IN-FACT
PROXIMATE CAUSE
DAMAGES
RULE
(1) D is liable
(2) ONLY IF D knowingly
(3) supplies the information for the benefit of the third party AND
(4) the information is relied upon by that third party.
POLICY SIGNIFICANCE
(1) California rejected the foreseeability approach, which is the majority rule.
(2) Cal. felt that general rule didn't sufficiently distinguish between (a) negligence and (b) negligent misrepresentation
(3) Some have criticized the California approach as vague and arbitrary
(4) But majority rule doesn't prevent bad financial data from entering/polluting the waters of commerce.
(5) W/O a liability rule that enforces the reasonable expectations of third party users of audit reports and
(6) W/O a liability rule that provides an adequate incentive for due care
(7) We may expect
(a) less careful audits,
(b) inefficient allocation of capital resources,
(c) increased transaction costs for loans and investments, and
(d) delay and disruption in the processes of lending and investing.
RELEVANT FEATURE FOR ANALOGY