who can best avoid/prevent the harm (not just cheapest cost avoider) who is D most directly responsible (ex: rapist) go down the line of proximate liability and hold all liable (ex: garage owners who did not fix lights, bystanders, rapist, everyone else) What’s our test for responsibility were you directly responsible did you breach the man of ordinary prudence standard are you anywhere in the chain of events and do you have money/power to prevent harms the role of insurance personal responsibility, everyone should have their own insurance (even Ps) as basis for tort law) community liability is insurance; welfare state the theory they use economic theory critical race theorist instead of focusing on aggregate best interest of society, we need to focus on what groups take the brunt problems of tort law inefficient way of compensating accident victims; we should incentivize insurance over tort law strict liability: it does not cause deterrence, stops innovation we are asking the weakest members of society (poorest) to be responsible for one another and creating a cycle and leaving the wealthy alone doctrine of proximate cause should not matter against the welfare state for the welfare state role of the P p should have their own insurance, compensation should not replace insurance highlight issues in society, P should be compensated and is a victim Intentional Torts Battery: a purposeful touching or striking of another that causes injury or offense
Under the influence of a “pressing danger,” there is NO voluntary act! Self-preservation is excusable. Threat must be immediate and pressing; D must have NO options OR no time to consider other options. Offensive OR Harmful Contact Offensive Offensive contact = objective standard: 1. Would a reasonable “not unduly sensitive” person find the contact offensive? OR 2. Was D aware that P would find contact offensive (known to be unduly sensitive P)? Context matters (public/private) Paul v. Holbrook (1997) - D (coworker) massaged P (employee) at the office and sexually harassed her Leichtman v. WLW Jacor Communications, Inc (1994): radio show hosts well-known anti-smoking advocate, host blows smoke in his face repeatedly during show Smoke (particulate matter) CAN make offensive contact. Offensive contact to known unduly sensitive P. Does NOT create a smoker’s battery b/c not harmful contact, only offensive contact due to P’s known sensitivity. Madden v. D.C. Transit System (1973): P was standing on a traffic island and a bus went by spewing “oily substance” and fumes at P Not harmful contact, but was it offensive? NOT by a reasonable objective standard. Also, NO intent to make contact by the bus system. Policy considerations for need of public transport. Protective zone around person: extension of personality (e.g.-hit plate out of hand) Other things to think about: Children CAN be liable for intentional torts (Vosberg) Sovereign immunity Can NOT discharge debt of intentional torts in bankruptcy (In Re White) Liability =/= deep pockets/insurance Assault Elements: (1) intentional infliction of (2) reasonable apprehension of (3) imminent battery through (4) voluntary action by D Intent
(1) P knew about risk (cannot be implied) Actual knowledge: subjectively knew and appreciate magnitude/implications (2) P voluntarily assumed risk Negated by fraud or necessity (no reasonable altrnative) (3) P actually encountered the exact risk which assumed liability for Implied assumption states: 1) Complete bar to recovery (contributory negligence regime) 2) Reasonable v. unreasonable (comparative negligence regime) Reasonable - complete bar Unreasonable- comparative negligence 3) Nonexistent in some states (only can do comparative negligence) 4) NY “Hybrid” Statute: implied assumption of risk as distinct from comparative, BUT only reduces by %age (partial defense) Other states: primary and secondary implied assumption of risk Primary-- actually NOT assumption of risk, but rather NO duty (risks inherent in activity, doesn’t matter whether P actually understood risks) Ex: recreational sports P knew risk because it’s open and obvious-- the more obvious the risk; the less likely a breach will be found Murphy v. Steeplechase Amusement Co (NY 1929): p gets on a ride where he runs on a conveyor belt and then falls; he breaks his kneecaps; he had been watching the ride and knew what it was/did, “Flopper” case P had assumed the risk (open/obvious), no breach Secondary - there is an actual implied assumption of risk (but isn’t this just comparative fault?); can be broken into reasonable and unreasonable ex: Smollett case (skating rink, Smollet v. Skayting Dev Corp (3rd Cir 1986): p goes to skating rink, no guardrails, raised rink, p almost runs over a and to avoid him she turns and skates off the rink onto carpet, falls and breaks wrist; signs posted in rink “skate at your own risk” P had a reasonable awareness of and still assumed of risks--> she was barred from recovery Virgin Islands (reasonable assumption of risk = complete bar on recovery) Strict Liability LOOK AT SIX FACTOR TEST AND POLICY CONSIDERATIONS FOR OUTCOME 6 Factor test for Strict Liability - 2d Restatement of §520: a. Existence of high degree of risk (P) Abnormally hazardous activities b. Likelihood that harm resulting from risk will be great (L) c. Inability to eliminate risk by exercise of reasonable care
Worker’s Compensation: no workers gave up right to sue employers and fellow employees (except for egregious torts); got around Holy Trinity of Defense (Fellow Servant Rule, Contributory Negligence, Assumption of Risk) Still have to prove illness or injury arose through work (occupational diseases problem) Risk-adjusted premiums for insurance that employers have to buy (reflects deterrence; make workplace safer = cheaper premiums) Benefits cover: med care, loss in income, vocational rehabilitation, benefits for survivors, funerals… (NOT pain and suffering) Established though legislation (not individualized like Torts) Categories of workers (which is better: torts or worker’s comp?) At fault: better in worker’s comp Mildly injured: the same Severely injured: MUCH better in Tort Law, BUT only if company had assets/insurance to pay no fault regime to other areas? (Med Mal, Accidents/Illnesses) Rationale: why do some get compensated and not others? (like lottery) AND inefficient (lots of transaction costs to get compensation) create one big fund for each type: doctors pay into one, drivers pay into another, etc. Products Liability FACIE CASE: 1) P suffered a legally cognizable injury 2) A sold a product NOT a gift or a service (and no body parts, intangibles, animals, and texts (except maps)) 3) A is a commercial seller of such products Manufacturers, distributors, retailers 4) At the time it was sold by A, the product was in a defective condition (Here, you break off into the three branches BELOW) 5) The defect functioned as an actual and proximate cause of P’s injuries THREE BRANCHES of Products Liability 1. Manufacturing defect - STRICTLY LIABLE When product diverges from manufacturer’s own internal guidelines for product (INTERNAL STANDARD) 2. Design defect (2 tests) - when there is a flaw in the plans or specifications for an entire line of products (EXTERNAL STANDARD; like negligence) A. Consumer Expectations Test: product more dangerous than ordinary consumer would expect (eg. Wisconsin, Connecticut) Criticisms: if consumer expectation is that product is unsafe, manufacturer will not be held liable for unsafe products (low