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. 1. Identify and define the elements of negligence.
2. Under a negligence claim, please identify and define the two separate elements of causation and discuss how they are applied.
3. In most states, what defenses are available in negligence-based product liability actions? Please define each defense.
Ximena, who runs a successful real estate agency, ran across a very interesting pamphlet on customer relations. The pamphlet was fifty pages long and cost $70.00. Ximena thought the price was outrageous. Accordingly, she bought one copy and photocopied the pages that she thought were pertinent and gave them to her employees. She copied forty of the pages out of the pamphlet for each of twenty employees. A disgruntled employee informed the pamphlet’s publisher what Ximena had done, and she was charged with copyright infringement. Ximena defended on the basis of the fair use doctrine.
4. Identify, define and discuss the four factors a court would consider in determining whether a violation occurred. Will Ximena would prevail? Explain your answer. Tort Law
CHAPTER 6
Hypothetical Case 1
•
When Sylvia Wood talks, people listen. As a talk-show host with her own nationally
syndicated television program, The Sylvia Show, Wood reaches approximately 30 million
viewers each week. Her dedicated viewers are collectively referred to as “Sylvia’s Militia,”
and most wait breathlessly for Wood’s on-air blessings of products, people, and books.
One of her recent programs has Wood in hot water. Wood devoted her September 30
episode to a food-borne illness commonly referred to as the “crazy chicken” disease.
During the past two years, approximately fifty people in the United States have
developed physical symptoms after eating undercooked, diseased chicken. Apparently,
chickens have developed the disease after eating substandard feed, and consumers
have been affected down the food chain. Common symptoms include muscle
contractions, nausea, and diarrhea.
During the September 30 episode of The Sylvia Show, Wood interviewed a medical
doctor, Dr. Tyson Fowler, who said that in his opinion, chicken was not safe for human
consumption. In response, Wood had said “Dr. Fowler, if that is the case, I will never eat
chicken again.“
Hearing of this episode, the United Poultry Growers Association sued Wood and The Sylvia
Show, claiming commercial disparagement (the commercial equivalent of defamation).
•
Are the defendants Wood and The Sylvia Show liable for commercial disparagement?
© 2020 McGraw-Hill Education.
Defining a Tort
A wrong or injury to another for which the law
will provide a remedy.
Tort law is meant adjust for harms done by
awarding damages to a plaintiff that can
demonstrate the defendant was the cause of
plaintiff’s losses.
Tort is based on the idea that actions of
individuals, alone or in concert with others,
should not negatively impact third-parties.
If a third party is injured by a person’s actions,
then tort law will try to compensate that third
party for any harm caused.
© 2020 McGraw-Hill Education.
Purposes of Tort Law
•
•
•
•
Compensate
innocent injured
persons.
Prevent private
retaliation by
injured parties.
Reinforce vision
of a just society.
Deter future
wrongs.
Classification of Torts
Intentional torts: Arise from Defendant’s
intentional acts. It’s when the Defendant takes
action(s) intending certain consequences or
knowing the consequence is a likely to result of
Defendant’s actions.
Negligent torts: Occur when defendant acts in
a way that subjects other people to
unreasonable risk of harm.
Strict-liability torts: Occur when defendant takes
action that is inherently dangerous and cannot
ever be undertaken safely.
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Continuum of Fault under
Tort Law
Intentional Tort
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Strict liability
Dimensions of Tort Liability
1.
Fault
2.
Nature of Injury
3.
Excuses
4.
Damages
© 2020 McGraw-Hill Education.
Dimensions of Tort Liability
Fault
1.
FAULT: Tort Law focuses on standards of fault, the
blameworthiness of the defendant.
a.
Intentional conduct (intentional tort). Intentional
torts may also be a criminal offense.
i.
What are the differences between criminal and
intentional tort offenses?
b.
Negligent conduct – where a person acts in a
careless manner or poses an unreasonable risk
causing damage.
c.
Strict Liability – A defendant can be held
responsible for injuries to a third-party, even if all
possible precautions have been taken.
© 2020 McGraw-Hill Education.
Dimensions of Tort Liability
Nature of Injury
Liability will depend on the nature of the injury
suffered by the plaintiff.
Example injuries:
Physical Injury
Mental suffering
Property damage (includes economic interests)
© 2020 McGraw-Hill Education.
Dimensions of Tort Liability
Defenses
Defenses: An excuse for committing wrong doing.
May result in the defendant not being or being
less responsible for plaintiff’s injuries.
Assumption of risk
Negligence of Plaintiff
Contributory or Comparative Negligence
Consent
Force of Nature
© 2020 McGraw-Hill Education.
Dimensions of Tort Liability
Damages
Damages are usually measured by the extent of
the injury.
Tort damages are usually limited to compensatory
damages.
Types of Damages:
Compensatory: Damages for loss of property,
wages, medical expenses, etc.
Punitive: Purpose of punitive damages is the punish
the defendant and serve as a deterrent for others
from acting similarly.
Usually only in aggravated situations. Such as when
defendant acts with malicious intent or acts
outrageously.
© 2020 McGraw-Hill Education.
Intentional Torts
Are based on defendant’s intentional conduct.
All share the common element of intent.
Intent does not mean harm, but the intent to
engage in a specific act that results in an injury
(physical or economic)
Includes:
Torts Against a Person
Torts Against Property
Torts Against Economic Interest
© 2020 McGraw-Hill Education.
Common Intentional Torts
against Persons
Assault.
Battery.
False imprisonment.
Defamation
published, libel;
spoken, slander).
Invasion of privacy
false light,
public disclosure of private facts,
appropriation for commercial gain, and
intrusion on an individual’s affairs or seclusion
Intentional infliction of emotional distress.
Misuse of legal procedure.
© 2020 McGraw-Hill Education.
Intent. Torts Against Persons
Assault & Battery
Assault defined:
1.
The threat of immediate harm OR offensive
contact; OR
2.
Any act that would arouse reasonable
apprehension of imminent harm
Battery defined: Unauthorized and harmful or
offensive physical contact with another person that
causes injury.
Doctrine of Transferred Intent: “If a person
intentionally directs force against one person wrongfully
but, instead, hits another, his intent is said to be
transferred from one to the other and he is liable to the
other though he did not intend it in the first instance.”
Blacks Law Dictionary
© 2020 McGraw-Hill Education.
Intent. Torts Against Persons
Defenses Battery
Intent. Torts Against Persons
False Imprisonment
Defined: When a person is confined or restrained
against his/her will for a period of time.
It is the deprivation of personal freedom without
cause.
Imprisonment may occur by the following means:
Physical restraint
Physical force
Threat to use immediate force
Refusal to release plaintiff’s property
© 2020 McGraw-Hill Education.
Intent. Torts Against Persons
Defamation
Defined: The (1) intentional publication
(communication to a third party) of a (2) false
statement (3) harmful to an individual’s
reputation. 2d Restatement of Torts
Slander: if the communication was done through
spoken word
Libel: if the communication was published in written
form.
Applies to living individuals and corporations.
© 2020 McGraw-Hill Education.
Intent. Torts Against Persons
Defamation Defenses
Truth
Absolute Privilege – statements stated during the
course of a judicial proceeding cannot be the
subject of a defamation claim.
Judicial Proceeding:
Trial
House & Senate Floors during congressional debate
Qualified Privilege – A statement made in a
reasonable manner for a reasonable purpose may
not be actionable.
Statement made without malice (knowing it was false
or reckless disregard for the truth)
Includes statements made regarding government
officials and public figures.
© 2020 McGraw-Hill Education.
Intent. Torts Against Persons
Invasion of Privacy
Right to privacy: Right “to be let alone”
False light – Occurs when publicity about a person
creates an impression about that individual that is not
valid.
Public disclosure of private facts – when someone
publicizes a private fact about another that a
reasonable person would find highly offensive.
Defense: individual waived his/her right to privacy
Appropriation of Name or Likeness for commercial gain –
Occurs when someone uses another person’s name,
likeness, voice or other identifying characteristic for
commercial gain.
Defense: Qualified Privilege (public figure)
Defense: Obtained the individual’s written consent
Intrusion on an individual’s affairs or seclusion – occurs
when Someone invades a person’s solitude, seclusion or
personal affairs.
© 2020 McGraw-Hill Education.
Intent. Torts Against Persons
Intentional Infliction of
Emotional Distress (IIED)
IIED occurs when someone engages in outrageous,
intentional conduct that is likely to cause extreme
emotional distress to another party.
There must usually be some physical manifestation of
emotional distress.
© 2020 McGraw-Hill Education.
Intent. Torts Against Persons
Malicious Prosecution
Occurs when an individual causes someone to be
prosecuted for a criminal act, knowing that there
was no probable cause to believe that the plaintiff
committed the crime.
Tort seeks to compensate the plaintiff for damages for
legal fees related to the improperly brought litigation,
harm to reputation, credit or standing as a result of
the false claim(s); and any emotional distress caused
by the improper litigation.
Criminal proceeding must terminate in favor of
plaintiff.
Plaintiff must show that defendant (1) filed suit for an
improper purpose; and (2) had no reasonable belief
that the cause of action was legally or factually well
grounded.
© 2020 McGraw-Hill Education.
Intentional Torts against
Property
•
Trespass to realty.
•
Trespass to personal property.
•
Conversion.
•
Private nuisance.
© 2020 McGraw-Hill Education.
Intent. Torts against Property
Trespass
Trespass to Realty: Occurs when a person
intentionally
1.
Enters the land of another without permission;
2.
Causes an object to be placed on the land of
another without the landowner’s permission;
3.
Stays on the land of another when the owner tells
him to depart; or
4.
Refuses to remove something he placed on the
property the landowner asked him to remove.
Trespass to Personal Property: When a person
temporarily exerts control over another’s personal
property or interferes with the owner’s right to
enjoy it.
© 2020 McGraw-Hill Education.
Intent. Torts against Property
Conversion & Private Nuisance
Conversion: When a person permanently removes
personal property from the owner’s possession and
control.
Private Nuisance: When a person uses her property
in an unreasonable manner that harms a
neighbor’s use or enjoyment of property.
© 2020 McGraw-Hill Education.
Intentional Torts against
Economic Interests
Disparagement.
Intentional
interference with
contract.
Unfair
competition.
Misappropriation.
Fraudulent
© 2020 McGraw-Hill Education.
misrepresentation.
Intentional Torts against
Economic Interests
Disparagement: Plaintiff must prove that defendant (1)
published a false statement about plaintiff’s product or
service that (2) resulted in loss of sales.
Damages are usually for loss of sales
Intentional Interference with Contract: Requires
1.
Valid and enforceable contract between plaintiff and
third party;
2.
Defendant knew of the existence of this contract;
3.
Defendant intentionally undertook steps to cause one
party to breach the contract; and
4.
Plaintiff was injured as a result of the breach.
Damages: Loss from the breached contract, emotional distress
and harm to reputation.
© 2020 McGraw-Hill Education.
Intentional Torts against
Economic Interests
Unfair Competition: When a company enters an
industry with the sole intent of driving another firm
our of business.
Misappropriation: Using another’s name/likeness,
voice for commercial gain. See torts against a
person
Fraudulent Misrepresentation: Occurs when a party
uses intentional deceit to facilitate personal gain
from another who relies on the deception.
© 2020 McGraw-Hill Education.
© 2020 McGraw-Hill Education.
Damages Available in Tort
Cases
Damages are usually measured by the extent
of the injury.
Compensatory damages: Designed to
compensate the victim for all the harm caused
by the person who committed the tort (puts
plaintiff in same position he/she would have
been in had tort not occurred).
Nominal damages: A minimal amount that
signifies defendant’s behavior was wrongful,
but caused no harm.
Punitive damages: Damages that punishes
defendant and seek to deter such conduct in
the future.
© 2020 McGraw-Hill Education.
Hypothetical 2
•
Regina Farrow worked for Door Chime Industries for 35 years,
and her colleagues decided to throw a party in her honor.
Farrow had long been the person in her office who was the
first to celebrate and acknowledge her colleagues’
birthdays, anniversaries, engagements, and new babies, so
they wanted to make the party a surprise—a party that, for
once, she didn’t have to plan.
All the planning went off without a hitch, and Farrow didn’t
suspect a thing. When she was called into the office on a
Saturday afternoon unexpectedly, she became worried that
something was very wrong. As she opened the door, her
colleagues jumped out and yelled, “Surprise!” Just like that,
Farrow dropped dead of a heart attack.
•
Farrow’s family is devastated and plans a lawsuit against the
company and the individuals who planned the party. Is this
situation an intentional tort? Why or why not?
© 2020 McGraw-Hill Education.
Negligence
Behavior that creates an unreasonable risk of
harm to others; the failure to exercise
reasonable care to protect another’s person
or property.
Elements of negligence.
Duty: The standard of care a reasonable person owes
another (reasonable person standard).
Breach of duty: Failure to live up to the standard of care.
Causation: Actual cause and proximate cause.
Damages: A compensable loss suffered by plaintiff.
© 2020 McGraw-Hill Education.
Hypothetical 3
William “Bill” Lane and Robert “Bo” Gutierrez are owners
of Bill-Bo Bowling Balls, Inc., a small bowling ball
manufacturing company located in Topeka, Kansas.
One day, while walking on the public sidewalk
immediately adjacent to the Bill-Bo Bowling Balls
building, a bowling ball fell on Richard Weber, causing
severe (but fortunately, non-fatal) injuries to Weber. A
sole witness, Anne Marie Norton, saw the bowling ball
fall from a second-story window of the building and
strike Weber, but she was not able to identify the
perpetrator.
Weber’s attorney, Samuel Pettibone (“S.P.”) Ayre, has
filed a lawsuit listing Lane, Gutierrez, and Bill-Bo Bowling
Balls, Inc., as co-defendants in the case. Will Weber and
his attorney, Ayre, succeed in the litigation?
© 2020 McGraw-Hill Education.
Negligence
Duty of Care & Breach
Plaintiff must establish that defendant owed a duty
to plaintiff.
Easy to prove when defendant is breaking a law,
otherwise
Reasonable person standard: measurement of the way
members of society expect an individual to act in a
given situation.
This is a fact-based standard
Professionals are held to a higher standards of care
(think medical malpractice claims)
© 2020 McGraw-Hill Education.
Negligence
Causation
Actual Cause – the determination that the
defendant’s breach of duty resulted directly in the
plaintiff’s injury
But for test – if an injury would not have occurred “but
for” the defendant’s conduct, then the defendant is
the cause of the injury
Proximate Cause – refers to the extent which a
defendant may be held liable for the consequences
of his/her actions. It is determined by foreseeability.
Were the damages reasonably foreseeable at the time
the defendant breached his/her duty.
Palsgraf v. Long Island Railroad Company
© 2020 McGraw-Hill Education.
Negligence
Damages
Damages are the final element of a negligence
lawsuit. Plaintiff must have sustained an injury as a
result of defendant’s actions.
Compensatory
Punitive
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Res ispa loquitor
“The thing speaks for itself.”
Plaintiff uses this doctrine to allow the judge or jury to
infer that more likely than not, defendant’s
negligence was the cause of plaintiff’s harm, despite
there being no direct evidence of defendant’s lack
of care.
It is a rule of circumstantial evidence.
•
Event was of a kind that ordinarily does not occur in the
absence of negligence.
•
Other responsible causes, including the conduct of third
parties and the plaintiff, have been effectively ruled out.
•
Indicated negligence was within scope of defendant’s duty to
plaintiff.
© 2020 McGraw-Hill Education.
Negligence Per Se
Applies to cases in which the defendant has violated
a statute enacted to prevent a certain type of harm
from occurring.
If defendant’s breach causes the plaintiff to suffer the
harm that the statute was meant to prevent, the
breach is deemed negligence per se.
© 2020 McGraw-Hill Education.
Negligence
Defenses
Contributory Negligence: Once available in all states, but
replaced by comparative negligence in most states. If plaintiff
was also negligent, then plaintiff will be denied any recovery
of damages.
Comparative Negligence: Where damages are apportioned
according to defendant’s degree of culpability.
Assumption of Risk: Defendant must prove that plaintiff
voluntarily and unreasonably encountered the risk of actual
harm the defendant caused.
Plaintiff formally agreed with defendant before entering risky
situation
Plaintiff entered into relationship with defendant knowing
defendant is not in a position to protect plaintiff from known risks.
Plaintiff may ask in the face of the risky situation created by
defendant.
Act of God
Vicarious Liability: When liability is imputed to another.
© 2020 McGraw-Hill Education.
Negligence
Special Defenses
Good Samaritan Law: Some states have laws that
prohibit holding a good Samaritan liable for
negligence.
Superseding Cause: an unforeseeable event that
interrupts the causal change between defendant’s
breach of duty and damages.
© 2020 McGraw-Hill Education.
Hypothetical 4
Don Streater is driving his new Mustang on a two-lane road, Highway 101, on
the outskirts of the town. The speed limit on Highway 101 is 45 miles per hour.
Albert Hunt is also driving on Highway 101, heading in the opposite direction
from Streater. Hunt looks to his passenger seat to find a map, when he veers
across the center line into Streater’s side of the road. The two cars collide;
luckily, neither man is killed, but Streater is seriously injured. In financial terms,
his medical injuries, medical expenses, and pain and suffering are estimated
at approximately $100,000.
Streater sues Hunt, alleging negligence on the part of the defendant. The
evidence at trial establishes that defendant Hunt was traveling at 50 miles
per hour, had consumed three beers at lunch approximately 30 minutes
before the accident occurred, has 20/50 uncorrected vision, and was not
wearing his prescription eyeglasses at the time of the accident. Evidence at
trial also establishes that Streater was traveling at 50 miles per hour at the
time of the accident and was not wearing his seat belt.
Should the jury return a verdict in favor of Streater in the amount of $100,000
(representing his medical injuries, medical expenses, and pain and
suffering), plus the associated costs of litigation?
Does it matter whether the state in which the accident occurred recognizes
the contributory or comparative negligence doctrine?
In not wearing his seat belt, did Streater assume the risk?
© 2020 McGraw-Hill Education.
Strict Liability
Strict liability is liability without fault.
Individual is liable without fault when the activity
meets these three conditions:
1.
Involves a risk of serious harm to people or property;
2.
It is so inherently dangerous that it cannot ever be
safely undertaken; and
3.
It is not usually performed in the immediate
community.
i.e./think dynamite blasting or keeping undomesticated
animals.
© 2020 McGraw-Hill Education.
Product Liability
Injured plaintiffs must prove that the product caused
harm, but not how the manufacturer was careless.
Product Liability:
1.
Product must be in defective condition when
defendant sells it;
2.
Defendant must normally engaged in the business of
selling or otherwise distributing the product.
3.
Product must be unreasonably dangerous to the user
or consumer because o its defective condition.
4.
Plaintiff must incur physical harm to self or to the
property by using or consuming the product.
5.
The defective condition must be the proximate cause
of the injury or damage.
6.
Good must not have been substantially changed from
the time that the product was sold to the time the
injury was sustained.
© 2020 McGraw-Hill Education.
Hypothetical 5
Hollis McMurtry had been looking forward to his birthday celebration
all month. A new nightclub, TwentyfiveEleven, was scheduled to open
just a day before, and his friends had planned his birthday bash there.
After a long evening of partying, and after McMurtry had consumed
many drinks, he slipped on the club’s very slick marble flooring in the
bathroom and suffered a concussion and a deep cut to the face by a
sharp piece of door hardware. The wound left a large scar on his face,
which his doctors told him would require extensive plastic surgery to
repair. Fearing that McMurtry would sue, and that others may suffer
similar injuries, the club’s owners quickly replaced the bathroom
flooring and removed the hardware that caused McMurtry’s injury.
McMurtry’s attorney, Jericka Dorland, advised him that she will invoke
the doctrine of res ipsa loquitor in a lawsuit against the club. Why did
Dorland choose res ipsa loquitor for this case? Is the club completely
liable for McMurtry’s injuries?
© 2020 McGraw-Hill Education.
Chapter 6
Introduction to Tort Law
LEARNING OBJECTIVES
After reading this chapter, you should be able to do the following:
1.
Know why most legal systems have tort law.
2.
Identify the three kinds of torts.
3.
Show how tort law relates to criminal law and contract law.
4.
Understand negligent torts and defenses to claims of negligence.
5.
Understand strict liability torts and the reasons for them in the US legal system.
In civil litigation, contract and tort claims are by far the most numerous. The law attempts to adjust
for harms done by awarding damages to a successful plaintiff who demonstrates that the defendant
was the cause of the plaintiff’s losses. Torts can be intentional torts, negligent torts, or strict liability
torts. Employers must be aware that in many circumstances, their employees may create liability in
tort. This chapter explains the different kind of torts, as well as available defenses to tort claims.
6.1 Purpose of Tort Laws
LEARNING OBJECTIVES
1.
Explain why a sound market system requires tort law.
2.
Define a tort and give two examples.
3.
Explain the moral basis of tort liability.
4.
Understand the purposes of damage awards in tort.
Definition of Tort
The term tort is the French equivalent of the English word wrong. The word tort is also derived from the
Latin word tortum, which means twisted or crooked or wrong, in contrast to the word rectum, which
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means straight (rectitude uses that Latin root). Thus conduct that is twisted or crooked and not straight is
a tort. The term was introduced into the English law by the Norman jurists.
Long ago, tort was used in everyday speech; today it is left to the legal system. A judge will instruct a jury
that a tort is usually defined as a wrong for which the law will provide a remedy, most often in the form of
money damages. The law does not remedy all “wrongs.” The preceding definition of tort does not reveal
the underlying principles that divide wrongs in the legal sphere from those in the moral sphere. Hurting
someone’s feelings may be more devastating than saying something untrue about him behind his back; yet
the law will not provide a remedy for saying something cruel to someone directly, while it may provide a
remedy for “defaming” someone, orally or in writing, to others.
Although the word is no longer in general use, tort suits are the stuff of everyday headlines. More and
more people injured by exposure to a variety of risks now seek redress (some sort of remedy through the
courts). Headlines boast of multimillion-dollar jury awards against doctors who bungled operations,
against newspapers that libeled subjects of stories, and against oil companies that devastate entire
ecosystems. All are examples of tort suits.
The law of torts developed almost entirely in the common-law courts; that is, statutes passed by
legislatures were not the source of law that plaintiffs usually relied on. Usually, plaintiffs would rely on the
common law (judicial decisions). Through thousands of cases, the courts have fashioned a series of rules
that govern the conduct of individuals in their noncontractual dealings with each other. Through
contracts, individuals can craft their own rights and responsibilities toward each other. In the absence of
contracts, tort law holds individuals legally accountable for the consequences of their actions. Those who
suffer losses at the hands of others can be compensated.
Many acts (like homicide) are both criminal and tortious. But torts and crimes are different, and the
difference is worth noting. A crime is an act against the people as a whole. Society punishes the murderer;
it does not usually compensate the family of the victim. Tort law, on the other hand, views the death as a
private wrong for which damages are owed. In a civil case, the tort victim or his family, not the state,
brings the action. The judgment against a defendant in a civil tort suit is usually expressed in monetary
terms, not in terms of prison times or fines, and is the legal system’s way of trying to make up for the
victim’s loss.
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Kinds of Torts
There are three kinds of torts: intentional torts, negligent torts, and strict liability torts. Intentional torts
arise from intentional acts, whereas unintentional torts often result from carelessness (e.g., when a
surgical team fails to remove a clamp from a patient’s abdomen when the operation is finished). Both
intentional torts and negligent torts imply some fault on the part of the defendant. In strict liability torts,
by contrast, there may be no fault at all, but tort law will sometimes require a defendant to make up for
the victim’s losses even where the defendant was not careless and did not intend to do harm.
Dimensions of Tort Liability
There is a clear moral basis for recovery through the legal system where the defendant has been careless
(negligent) or has intentionally caused harm. Using the concepts that we are free and autonomous beings
with basic rights, we can see that when others interfere with either our freedom or our autonomy, we will
usually react negatively. As the old saying goes, “Your right to swing your arm ends at the tip of my nose.”
The law takes this even one step further: under intentional tort law, if you frighten someone by swinging
your arms toward the tip of their nose, you may have committed the tort of assault, even if there is no actual
touching (battery).
Under a capitalistic market system, rational economic rules also call for no negative externalities. That is,
actions of individuals, either alone or in concert with others, should not negatively impact third parties.
The law will try to compensate third parties who are harmed by your actions, even as it knows that a
money judgment cannot actually mend a badly injured victim.
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Figure 6.1 Dimensions of Tort Liability
Dimensions of Tort: Fault
Tort principles can be viewed along different dimensions. One is the fault dimension. Like criminal law,
tort law requires a wrongful act by a defendant for the plaintiff to recover. Unlike criminal law, however,
there need not be a specific intent. Since tort law focuses on injury to the plaintiff, it is less concerned than
criminal law about the reasons for the defendant’s actions. An innocent act or a relatively innocent one
may still provide the basis for liability. Nevertheless, tort law—except for strict liability—relies on
standards of fault, or blameworthiness.
The most obvious standard is willful conduct. If the defendant (often called the tortfeasor—i.e., the one
committing the tort) intentionally injures another, there is little argument about tort liability. Thus all
crimes resulting in injury to a person or property (murder, assault, arson, etc.) are also torts, and the
plaintiff may bring a separate lawsuit to recover damages for injuries to his person, family, or property.
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Most tort suits do not rely on intentional fault. They are based, rather, on negligent conduct that in the
circumstances is careless or poses unreasonable risks of causing damage. Most automobile accident and
medical malpractice suits are examples of negligence suits.
The fault dimension is a continuum. At one end is the deliberate desire to do injury. The middle ground is
occupied by careless conduct. At the other end is conduct that most would consider entirely blameless, in
the moral sense. The defendant may have observed all possible precautions and yet still be held liable.
This is called strict liability. An example is that incurred by the manufacturer of a defective product that is
placed on the market despite all possible precautions, including quality-control inspection. In many
states, if the product causes injury, the manufacturer will be held liable.
Dimensions of Tort: Nature of Injury
Tort liability varies by the type of injury caused. The most obvious type is physical harm to the person
(assault, battery, infliction of emotional distress, negligent exposure to toxic pollutants, wrongful death)
or property (trespass, nuisance, arson, interference with contract). Mental suffering can be redressed if it
is a result of physical injury (e.g., shock and depression following an automobile accident). A few states
now permit recovery for mental distress alone (a mother’s shock at seeing her son injured by a car while
both were crossing the street). Other protected interests include a person’s reputation (injured by
defamatory statements or writings), privacy (injured by those who divulge secrets of his personal life), and
economic interests (misrepresentation to secure an economic advantage, certain forms of unfair
competition).
Dimensions of Tort: Excuses (Defenses)
A third element in the law of torts is the excuse for committing an apparent wrong. The law does not
condemn every act that ultimately results in injury.
One common rule of exculpation is assumption of risk. A baseball fan who sits along the third base line
close to the infield assumes the risk that a line drive foul ball may fly toward him and strike him. He will
not be permitted to complain in court that the batter should have been more careful or that management
should have either warned him or put up a protective barrier.
Another excuse is negligence of the plaintiff. If two drivers are careless and hit each other on the highway,
some states will refuse to permit either to recover from the other. Still another excuse is consent: two
boxers in the ring consent to being struck with fists (but not to being bitten on the ear).
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Damages
Since the purpose of tort law is to compensate the victim for harm actually done, damages are usually
measured by the extent of the injury. Expressed in money terms, these include replacement of property
destroyed, compensation for lost wages, reimbursement for medical expenses, and dollars that are
supposed to approximate the pain that is suffered. Damages for these injuries are
called compensatory damages.
In certain instances, the courts will permit an award of punitive damages. As the word punitive implies,
the purpose is to punish the defendant’s actions. Because a punitive award (sometimes called exemplary
damages) is at odds with the general purpose of tort law, it is allowable only in aggravated situations. The
law in most states permits recovery of punitive damages only when the defendant has deliberately
committed a wrong with malicious intent or has otherwise done something outrageous.
Punitive damages are rarely allowed in negligence cases for that reason. But if someone sets out
intentionally and maliciously to hurt another person, punitive damages may well be appropriate. Punitive
damages are intended not only to punish the wrongdoer, by exacting an additional and sometimes heavy
payment (the exact amount is left to the discretion of jury and judge), but also to deter others from similar
conduct. The punitive damage award has been subject to heavy criticism in recent years in cases in which
it has been awarded against manufacturers. One fear is that huge damage awards on behalf of a multitude
of victims could swiftly bankrupt the defendant. Unlike compensatory damages, punitive damages are
taxable.
KEY TAKEAWAY
There are three kinds of torts, and in two of them (negligent torts and strict liability torts), damages are
usually limited to making the victim whole through an enforceable judgment for money damages. These
compensatory damages awarded by a court accomplish only approximate justice for the injuries or
property damage caused by a tortfeasor. Tort laws go a step further toward deterrence, beyond
compensation to the plaintiff, in occasionally awarding punitive damages against a defendant. These are
almost always in cases where an intentional tort has been committed.
EXERCISES
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1.
Why is deterrence needed for intentional torts (where punitive damages are awarded) rather than
negligent torts?
2.
Why are costs imposed on others without their consent problematic for a market economy? What if the
law did not try to reimpose the victim’s costs onto the tortfeasor? What would a totally nonlitigious
society be like?
6.2 Intentional Torts
LEARNING OBJECTIVES
1.
Distinguish intentional torts from other kinds of torts.
2.
Give three examples of an intentional tort—one that causes injury to a person, one that causes injury to
property, and one that causes injury to a reputation.
Assault and Battery
One of the most obvious intentional torts is assault and battery. Both criminal law and tort law serve to
restrain individuals from using physical force on others. Assault is (1) the threat of immediate harm or
offense of contact or (2) any act that would arouse reasonable apprehension of imminent harm. Battery is
unauthorized and harmful or offensive physical contact with another person that causes injury.
Often an assault results in battery, but not always. In Western Union Telegraph Co. v. Hill, for example,
the defendant did not touch the plaintiff’s wife, but the case presented an issue of possible assault even
without an actual battery; the defendant employee attempted to kiss a customer across the countertop,
couldn’t quite reach her, but nonetheless created actionable fear (or, as the court put it, “apprehension”)
on the part of the plaintiff’s wife. It is also possible to have a battery without an assault. For example, if
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someone hits you on the back of the head with an iron skillet and you didn’t see it coming, there is a
battery but no assault. Likewise, if Andrea passes out from drinking too much at the fraternity party and a
stranger (Andre) kisses her on the lips while she is passed out, she would not be aware of any threat of
offensive contact and would have no apprehension of any harm. Thus there has been no tort of assault,
but she could allege the tort of battery. (The question of what damages, if any, would be an interesting
argument.)
Under the doctrine of transferred intent, if Draco aims his wand at Harry but Harry ducks just in time and
the impact is felt by Hermione instead, English law (and American law) would transfer Draco’s intent
from the target to the actual victim of the act. Thus Hermione could sue Draco for battery for any damages
she had suffered.
False Imprisonment
The tort of false imprisonment originally implied a locking up, as in a prison, but today it can occur if a
person is restrained in a room or a car or even if his or her movements are restricted while walking down
the street. People have a right to be free to go as they please, and anyone who without cause deprives
another of personal freedom has committed a tort. Damages are allowed for time lost, discomfort and
resulting ill health, mental suffering, humiliation, loss of reputation or business, and expenses such as
attorneys’ fees incurred as a result of the restraint (such as a false arrest). But as the case of Lester v.
Albers Super Markets, Inc. (Section 6.5 “Cases”) shows, the defendant must be shown to have restrained
the plaintiff in order for damages to be allowed.
Intentional Infliction of Emotional Distress
Until recently, the common-law rule was that there could be no recovery for acts, even though
intentionally undertaken, that caused purely mental or emotional distress. For a case to go to the jury, the
courts required that the mental distress result from some physical injury. In recent years, many courts
have overthrown the older rule and now recognize the so-called new tort. In an employment context,
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however, it is rare to find a case where a plaintiff is able to recover. The most difficult hurdle is proving
that the conduct was “extreme” or “outrageous.”
In an early California case, bill collectors came to the debtor’s home repeatedly and threatened the
debtor’s pregnant wife. Among other things, they claimed that the wife would have to deliver her child in
prison. The wife miscarried and had emotional and physical complications. The court found that the
behavior of the collection company’s two agents was sufficiently outrageous to prove the tort of
intentional infliction of emotional distress. In Roche v. Stern (New York), the famous cable television talk
show host Howard Stern had tastelessly discussed the remains of Deborah Roche, a topless dancer and
cable access television host.
[1]
The remains had been brought to Stern’s show by a close friend of Roche,
Chaunce Hayden, and a number of crude comments by Stern and Hayden about the remains were
videotaped and broadcast on a national cable television station. Roche’s sister and brother sued Howard
Stern and Infinity broadcasting and were able to get past the defendant’s motion to dismiss to have a jury
consider their claim.
A plaintiff’s burden in these cases is to show that the mental distress is severe. Many states require that
this distress must result in physical symptoms such as nausea, headaches, ulcers, or, as in the case of the
pregnant wife, a miscarriage. Other states have not required physical symptoms, finding that shame,
embarrassment, fear, and anger constitute severe mental distress.
Trespass and Nuisance
Trespass is intentionally going on land that belongs to someone else or putting something on someone
else’s property and refusing to remove it. This part of tort law shows how strongly the law values the rights
of property owners. The right to enjoy your property without interference from others is also found in
common law of nuisance. There are limits to property owners’ rights, however. In Katko v. Briney, for
example, the plaintiff was injured by a spring gun while trespassing on the defendant’s property.
[2]
The
defendant had set up No Trespassing signs after ten years of trespassing and housebreaking events, with
the loss of some household items. Windows had been broken, and there was “messing up of the property
in general.” The defendants had boarded up the windows and doors in order to stop the intrusions and
finally had set up a shotgun trap in the north bedroom of the house. One defendant had cleaned and oiled
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his 20-gauge shotgun and taken it to the old house where it was secured to an iron bed with the barrel
pointed at the bedroom door. “It was rigged with wire from the doorknob to the gun’s trigger so would fire
when the door was opened.” The angle of the shotgun was adjusted to hit an intruder in the legs. The
spring could not be seen from the outside, and no warning of its presence was posted.
The plaintiff, Katko, had been hunting in the area for several years and considered the property
abandoned. He knew it had long been uninhabited. He and a friend had been to the house and found
several old bottles and fruit jars that they took and added to their collection of antiques. When they made
a second trip to the property, they entered by removing a board from a porch window. When the plaintiff
opened the north bedroom door, the shotgun went off and struck him in the right leg above the ankle
bone. Much of his leg was blown away. While Katko knew he had no right to break and enter the house
with intent to steal bottles and fruit jars, the court held that a property owner could not protect an
unoccupied boarded-up farmhouse by using a spring gun capable of inflicting death or serious injury.
In Katko, there is an intentional tort. But what if someone trespassing is injured by the negligence of the
landowner? States have differing rules about trespass and negligence. In some states, a trespasser is only
protected against the gross negligence of the landowner. In other states, trespassers may be owed the duty
of due care on the part of the landowner. The burglar who falls into a drained swimming pool, for
example, may have a case against the homeowner unless the courts or legislature of that state have made
it clear that trespassers are owed the limited duty to avoid gross negligence. Or a very small child may
wander off his own property and fall into a gravel pit on a nearby property and suffer death or serious
injury; if the pit should (in the exercise of due care) have been filled in or some barrier erected around it,
then there was negligence. But if the state law holds that the duty to trespassers is only to avoid gross
negligence, the child’s family would lose, unless the state law makes an exception for very young
trespassers. In general, guests, licensees, and invitees are owed a duty of due care; a trespasser may not be
owed such a duty, but states have different rules on this.
Intentional Interference with Contractual Relations
Tortious interference with a contract can be established by proving four elements:
1.
There was a contract between the plaintiff and a third party.
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2. The defendant knew of the contract.
3. The defendant improperly induced the third party to breach the contract or made performance of the
contract impossible.
4. There was injury to the plaintiff.
In a famous case of contract interference, Texaco was sued by Pennzoil for interfering with an agreement
that Pennzoil had with Getty Oil. After complicated negotiations between Pennzoil and Getty, a takeover
share price was struck, a memorandum of understanding was signed, and a press release announced the
agreement in principle between Pennzoil and Getty. Texaco’s lawyers, however, believed that Getty oil was
“still in play,” and before the lawyers for Pennzoil and Getty could complete the paperwork for their
agreement, Texaco announced it was offering Getty shareholders an additional $12.50 per share over
what Pennzoil had offered.
Texaco later increased its offer to $228 per share, and the Getty board of directors soon began dealing
with Texaco instead of Pennzoil. Pennzoil decided to sue in Texas state court for tortious interference with
a contract. After a long trial, the jury returned an enormous verdict against Texaco: $7.53 billion in actual
damages and $3 billion in punitive damages. The verdict was so large that it would have bankrupted
Texaco. Appeals from the verdict centered on an obscure rule of the Securities and Exchange Commission
(SEC), Rule 10(b)-13, and Texaco’s argument was based on that rule and the fact that the contract had not
been completed. If there was no contract, Texaco could not have legally interfered with one. After the SEC
filed a brief that supported Texaco’s interpretation of the law, Texaco agreed to pay $3 billion to Pennzoil
to dismiss its claim of tortious interference with a contract.
Malicious Prosecution
Malicious prosecution is the tort of causing someone to be prosecuted for a criminal act, knowing that
there was no probable cause to believe that the plaintiff committed the crime. The plaintiff must show that
the defendant acted with malice or with some purpose other than bringing the guilty to justice. A mere
complaint to the authorities is insufficient to establish the tort, but any official proceeding will support the
claim—for example, a warrant for the plaintiff’s arrest. The criminal proceeding must terminate in the
plaintiff’s favor in order for his suit to be sustained.
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A majority of US courts, though by no means all, permit a suit for wrongful civil proceedings. Civil
litigation is usually costly and burdensome, and one who forces another to defend himself against baseless
accusations should not be permitted to saddle the one he sues with the costs of defense. However,
because, as a matter of public policy, litigation is favored as the means by which legal rights can be
vindicated—indeed, the Supreme Court has even ruled that individuals have a constitutional right to
litigate—the plaintiff must meet a heavy burden in proving his case. The mere dismissal of the original
lawsuit against the plaintiff is not sufficient proof that the suit was unwarranted. The plaintiff in a suit for
wrongful civil proceedings must show that the defendant (who was the plaintiff in the original suit) filed
the action for an improper purpose and had no reasonable belief that his cause was legally or factually
well grounded.
Defamation
Defamation is injury to a person’s good name or reputation. In general, if the harm is done through the
spoken word—one person to another, by telephone, by radio, or on television—it is called slander. If the
defamatory statement is published in written form, it is called libel.
The Restatement (Second) of Torts defines a defamatory communication as one that “so tends to harm the
reputation of another as to lower him in the estimation of the community or to deter third persons from
associating or dealing with him.”
[3]
A statement is not defamatory unless it is false. Truth is an absolute defense to a charge of libel or slander.
Moreover, the statement must be “published”—that is, communicated to a third person. You cannot be
libeled by one who sends you a letter full of false accusations and scurrilous statements about you unless a
third person opens it first (your roommate, perhaps). Any living person is capable of being defamed, but
the dead are not. Corporations, partnerships, and other forms of associations can also be defamed, if the
statements tend to injure their ability to do business or to garner contributions.
The statement must have reference to a particular person, but he or she need not be identified by name. A
statement that “the company president is a crook” is defamatory, as is a statement that “the major
network weathermen are imposters.” The company president and the network weathermen could show
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that the words were aimed at them. But statements about large groups will not support an action for
defamation (e.g., “all doctors are butchers” is not defamatory of any particular doctor).
The law of defamation is largely built on strict liability. That a person did not intend to defame is
ordinarily no excuse; a typographical error that converts a true statement into a false one in a newspaper,
magazine, or corporate brochure can be sufficient to make out a case of libel. Even the exercise of due care
is usually no excuse if the statement is in fact communicated. Repeating a libel is itself a libel; a libel
cannot be justified by showing that you were quoting someone else. Though a plaintiff may be able to
prove that a statement was defamatory, he is not necessarily entitled to an award of damages. That is
because the law contains a number of privileges that excuse the defamation.
Publishing false information about another business’s product constitutes the tort of slander of quality, or
trade libel. In some states, this is known as the tort of product disparagement. It may be difficult to
establish damages, however. A plaintiff must prove that actual damages proximately resulted from the
slander of quality and must show the extent of the economic harm as well.
Absolute Privilege
Statements made during the course of judicial proceedings are absolutely privileged, meaning that they
cannot serve as the basis for a defamation suit. Accurate accounts of judicial or other proceedings are
absolutely privileged; a newspaper, for example, may pass on the slanderous comments of a judge in
court. “Judicial” is broadly construed to include most proceedings of administrative bodies of the
government. The Constitution exempts members of Congress from suits for libel or slander for any
statements made in connection with legislative business. The courts have constructed a similar privilege
for many executive branch officials.
Qualified Privilege
Absolute privileges pertain to those in the public sector. A narrower privilege exists for private citizens. In
general, a statement that would otherwise be actionable is held to be justified if made in a reasonable
manner and for a reasonable purpose. Thus you may warn a friend to beware of dealing with a third
person, and if you had reason to believe that what you said was true, you are privileged to issue the
warning, even though false. Likewise, an employee may warn an employer about the conduct or character
of a fellow or prospective employee, and a parent may complain to a school board about the competence
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or conduct of a child’s teacher. There is a line to be drawn, however, and a defendant with nothing but an
idle interest in the matter (an “officious intermeddler”) must take the risk that his information is wrong.
In 1964, the Supreme Court handed down its historic decision in New York Times v. Sullivan, holding
that under the First Amendment a libel judgment brought by a public official against a newspaper cannot
stand unless the plaintiff has shown “actual malice,” which in turn was defined as “knowledge that [the
[4]
statement] was false or with a reckless disregard of whether it was false or not.” In subsequent cases, the
court extended the constitutional doctrine further, applying it not merely to government officials but
to public figures, people who voluntarily place themselves in the public eye or who involuntarily find
themselves the objects of public scrutiny. Whether a private person is or is not a public figure is a difficult
question that has so far eluded rigorous definition and has been answered only from case to case. A CEO
of a private corporation ordinarily will be considered a private figure unless he puts himself in the public
eye—for example, by starring in the company’s television commercials.
Invasion of Privacy
The right of privacy—the right “to be let alone”—did not receive judicial recognition until the twentieth
century, and its legal formulation is still evolving. In fact there is no single right of privacy. Courts and
commentators have discerned at least four different types of interests: (1) the right to control the
appropriation of your name and picture for commercial purposes, (2) the right to be free of intrusion on
your “personal space” or seclusion, (3) freedom from public disclosure of embarrassing and intimate facts
of your personal life, and (4) the right not to be presented in a “false light.”
Appropriation of Name or Likeness
The earliest privacy interest recognized by the courts was appropriation of name or likeness: someone else
placing your photograph on a billboard or cereal box as a model or using your name as endorsing a
product or in the product name. A New York statute makes it a misdemeanor to use the name, portrait, or
picture of any person for advertising purposes or for the purposes of trade (business) without first
obtaining written consent. The law also permits the aggrieved person to sue and to recover damages for
unauthorized profits and also to have the court enjoin (judicially block) any further unauthorized use of
the plaintiff’s name, likeness, or image. This is particularly useful to celebrities.
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Because the publishing and advertising industries are concentrated heavily in New York, the statute plays
an important part in advertising decisions made throughout the country. Deciding what “commercial” or
“trade” purposes are is not always easy. Thus a newsmagazine may use a baseball player’s picture on its
cover without first obtaining written permission, but a chocolate manufacturer could not put the player’s
picture on a candy wrapper without consent.
Personal Space
One form of intrusion upon a person’s solitude—trespass—has long been actionable under common law.
Physical invasion of home or other property is not a new tort. But in recent years, the notion of intrusion
has been broadened considerably. Now, taking photos of someone else with your cell phone in a locker
room could constitute invasion of the right to privacy. Reading someone else’s mail or e-mail could also
constitute an invasion of the right to privacy. Photographing someone on a city street is not tortious, but
subsequent use of the photograph could be. Whether the invasion is in a public or private space, the
amount of damages will depend on how the image or information is disclosed to others.
Public Disclosure of Embarassing Facts
Circulation of false statements that do injury to a person are actionable under the laws of defamation.
What about true statements that might be every bit as damaging—for example, disclosure of someone’s
income tax return, revealing how much he earned? The general rule is that if the facts are truly private
and of no “legitimate” concern to the public, then their disclosure is a violation of the right to privacy. But
a person who is in the public eye cannot claim the same protection.
False Light
A final type of privacy invasion is that which paints a false picture in a publication. Though false, it might
not be libelous, since the publication need contain nothing injurious to reputation. Indeed, the publication
might even glorify the plaintiff, making him seem more heroic than he actually is. Subject to the First
Amendment requirement that the plaintiff must show intent or extreme recklessness, statements that put
a person in a false light, like a fictionalized biography, are actionable.
KEY TAKEAWAY
There are many kinds of intentional torts. Some of them involve harm to the physical person or to his or
her property, reputation or feelings, or economic interests. In each case of intentional tort, the plaintiff
must show that the defendant intended harm, but the intent to harm does not need to be directed at a
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particular person and need not be malicious, as long as the resulting harm is a direct consequence of the
defendant’s actions.
EXERCISES
1.
Name two kinds of intentional torts that could result in damage to a business firm’s bottom line.
2.
Name two kinds of intentional torts that are based on protection of a person’s property.
3.
Why are intentional torts more likely to result in a verdict not only for compensatory damages but also for
punitive damages?
4.
[1] Roche v. Stern, 675 N.Y.S.2d 133 (1998).
5.
[2] Katko v. Briney, 183 N.W.2d 657 (Iowa 1971).
6.
[3] Restatement (Second) of Torts, Section 559 (1965).
7.
[4] Times v. Sullivan, 376 US 254 (1964).
6.3 Negligence
LEARNING OBJECTIVES
1.
Understand how the duty of due care relates to negligence.
2.
Distinguish between actual and proximate cause.
3.
Explain the primary defenses to a claim of negligence.
Elements of Negligence
Physical harm need not be intentionally caused. A pedestrian knocked over by an automobile does not
hurt less because the driver intended no wrong but was merely careless. The law imposes a duty of care on
all of us in our everyday lives. Accidents caused by negligence are actionable.
Determining negligence is not always easy. If a driver runs a red light, we can say that he is negligent
because a driver must always be careful to ascertain whether the light is red and be able to stop if it is.
Suppose that the driver was carrying a badly injured person to a nearby hospital and that after slowing
down at an intersection, went through a red light, blowing his horn, whereupon a driver to his right,
seeing him, drove into the intersection anyway and crashed into him. Must one always stop at a red light?
Is proof that the light was red always proof of negligence? Usually, but not always: negligence is an
abstract concept that must always be applied to concrete and often widely varying sets of circumstances.
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Whether someone was or was not negligent is almost always a question of fact for a jury to decide. Rarely
is it a legal question that a judge can settle.
The tort of negligence has four elements: (1) a duty of due care that the defendant had, (2)
the breach of the duty of due care, (3) connection between cause and injury, and (4) actual damage or loss.
Even if a plaintiff can prove each of these aspects, the defendant may be able to show that the law excuses
the conduct that is the basis for the tort claim. We examine each of these factors below.
Standard of Care
Not every unintentional act that causes injury is negligent. If you brake to a stop when you see a child dart
out in front of your car, and if the noise from your tires gives someone in a nearby house a heart attack,
you have not acted negligently toward the person in the house. The purpose of the negligence standard is
to protect others against the risk of injury that foreseeably would ensue from unreasonably dangerous
conduct.
Given the infinite variety of human circumstances and conduct, no general statement of a reasonable
standard of care is possible. Nevertheless, the law has tried to encapsulate it in the form of the famous
standard of “the reasonable man.” This fictitious person “of ordinary prudence” is the model that juries
are instructed to compare defendants with in assessing whether those defendants have acted negligently.
Analysis of this mythical personage has baffled several generations of commentators. How much
knowledge must he have of events in the community, of technology, of cause and effect? With what
physical attributes, courage, or wisdom is this nonexistent person supposedly endowed? If the defendant
is a person with specialized knowledge, like a doctor or an automobile designer, must the jury also treat
the “reasonable man” as having this knowledge, even though the average person in the community will
not? (Answer: in most cases, yes.)
Despite the many difficulties, the concept of the reasonable man is one on which most negligence cases
ultimately turn. If a defendant has acted “unreasonably under the circumstances” and his conduct posed
an unreasonable risk of injury, then he is liable for injury caused by his conduct. Perhaps in most
instances, it is not difficult to divine what the reasonable man would do. The reasonable man stops for
traffic lights and always drives at reasonable speeds, does not throw baseballs through windows, performs
surgical operations according to the average standards of the medical profession, ensures that the floors of
his grocery store are kept free of fluids that would cause a patron to slip and fall, takes proper precautions
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to avoid spillage of oil from his supertanker, and so on. The “reasonable man” standard imposes hindsight
on the decisions and actions of people in society; the circumstances of life are such that courts may
sometimes impose a standard of due care that many people might not find reasonable.
Duty of Care and Its Breach
The law does not impose on us a duty to care for every person. If the rule were otherwise, we would all, in
this interdependent world, be our brothers’ keepers, constantly unsure whether any action we took might
subject us to liability for its effect on someone else. The law copes with this difficulty by limiting the
number of people toward whom we owe a duty to be careful.
In general, the law imposes no obligation to act in a situation to which we are strangers. We may pass the
drowning child without risking a lawsuit. But if we do act, then the law requires us to act carefully. The
law of negligence requires us to behave with due regard for the foreseeable consequences of our actions in
order to avoid unreasonable risks of injury.
During the course of the twentieth century, the courts have constantly expanded the notion of
“foreseeability,” so that today many more people are held to be within the zone of injury than was once the
case. For example, it was once believed that a manufacturer or supplier owed a duty of care only to
immediate purchasers, not to others who might use the product or to whom the product might be resold.
This limitation was known as the rule of privity. And users who were not immediate purchasers were said
not to be in privity with a supplier or manufacturer. In 1916, Judge Benjamin N. Cardozo, then on the
New York Court of Appeals, penned an opinion in a celebrated case that exploded the theory of privity,
though it would take half a century before the last state—Mississippi in 1966—would fall in line.
Determining a duty of care can be a vexing problem. Physicians, for example, are bound by principles of
medical ethics to respect the confidences of their patients. Suppose a patient tells a psychiatrist that he
intends to kill his girlfriend. Does the physician then have a higher legal duty to warn prospective victim?
The California Supreme Court has said yes.
[1]
Establishing a breach of the duty of due care where the defendant has violated a statute or municipal
ordinance is eased considerably with the doctrine of negligence per se, a doctrine common to all US state
courts. If a legislative body sets a minimum standard of care for particular kinds of acts to protect a
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certain set of people from harm and a violation of that standard causes harm to someone in that set, the
defendant is negligent per se. If Harvey is driving sixty-five miles per hour in a fifty-five-mile-per-hour
zone when he crashes into Haley’s car and the police accident report establishes that or he otherwise
admits to going ten miles per hour over the speed limit, Haley does not have to prove that Harvey has
breached a duty of due care. She will only have to prove that the speeding was an actual and proximate
cause of the collision and will also have to prove the extent of the resulting damages to her.
Causation: Actual Cause and Proximate Cause
“For want of a nail, the kingdom was lost,” as the old saying has it. Virtually any cause of an injury can be
traced to some preceding cause. The problem for the law is to know when to draw the line between causes
that are immediate and causes too remote for liability reasonably to be assigned to them. In tort theory,
there are two kinds of causes that a plaintiff must prove: actual cause and proximate
cause. Actual cause (causation in fact) can be found if the connection between the defendant’s act and the
plaintiff’s injuries passes the “but for” test: if an injury would not have occurred “but for” the defendant’s
conduct, then the defendant is the cause of the injury. Still, this is not enough causation to create liability.
The injuries to the plaintiff must also be foreseeable, or not “too remote,” for the defendant’s act to create
liability. This is proximate cause: a cause that is not too remote or unforseeable.
Suppose that the person who was injured was not one whom a reasonable person could have expected to
be harmed. Such a situation was presented in one of the most famous US tort cases, Palsgraf v. Long
Island Railroad (Section 6.5 “Cases”), which was decided by Judge Benjamin Cardozo. Although Judge
Cardozo persuaded four of his seven brethren to side with his position, the closeness of the case
demonstrates the difficulty that unforeseeable consequences and unforeseeable plaintiffs present.
Damages
For a plaintiff to win a tort case, she must allege and prove that she was injured. The fear that she might
be injured in the future is not a sufficient basis for a suit. This rule has proved troublesome in medical
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malpractice and industrial disease cases. A doctor’s negligent act or a company’s negligent exposure of a
worker to some form of contamination might not become manifest in the body for years. In the meantime,
the tort statute of limitations might have run out, barring the victim from suing at all. An increasing
number of courts have eased the plaintiff’s predicament by ruling that the statute of limitations does not
begin to run until the victim discovers that she has been injured or contracted a disease.
The law allows an exception to the general rule that damages must be shown when the plaintiff stands in
danger of immediate injury from a hazardous activity. If you discover your neighbor experimenting with
explosives in his basement, you could bring suit to enjoin him from further experimentation, even though
he has not yet blown up his house—and yours.
Problems of Proof
The plaintiff in a tort suit, as in any other, has the burden of proving his allegations.
He must show that the defendant took the actions complained of as negligent, demonstrate the
circumstances that make the actions negligent, and prove the occurrence and extent of injury. Factual
issues are for the jury to resolve. Since it is frequently difficult to make out the requisite proof, the law
allows certain presumptions and rules of evidence that ease the plaintiff’s task, on the ground that without
them substantial injustice would be done. One important rule goes by the Latin phrase res ipsa loquitur,
meaning “the thing speaks for itself.” The best evidence is always the most direct evidence: an eyewitness
account of the acts in question. But eyewitnesses are often unavailable, and in any event they frequently
cannot testify directly to the reasonableness of someone’s conduct, which inevitably can only be inferred
from the circumstances.
In many cases, therefore, circumstantial evidence (evidence that is indirect) will be the only evidence or
will constitute the bulk of the evidence. Circumstantial evidence can often be quite telling: though no one
saw anyone leave the building, muddy footprints tracing a path along the sidewalk are fairly conclusive.
Res ipsa loquitur is a rule of circumstantial evidence that permits the jury to draw an inference of
negligence. A common statement of the rule is the following: “There must be reasonable evidence of
negligence but where the thing is shown to be under the management of the defendant or his servants,
and the accident is such as in the ordinary course of things does not happen if those who have the
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management use proper care, it affords reasonable evidence, in the absence of explanation by the
defendants, that the accident arose from want of care.”
[2]
If a barrel of flour rolls out of a factory window and hits someone, or a soda bottle explodes, or an airplane
crashes, courts in every state permit juries to conclude, in the absence of contrary explanations by the
defendants, that there was negligence. The plaintiff is not put to the impossible task of explaining
precisely how the accident occurred. A defendant can always offer evidence that he acted reasonably—for
example, that the flour barrel was securely fastened and that a bolt of lightning, for which he was not
responsible, broke its bands, causing it to roll out the window. But testimony by the factory employees
that they secured the barrel, in the absence of any further explanation, will not usually serve to rebut the
inference. That the defendant was negligent does not conclude the inquiry or automatically entitle the
plaintiff to a judgment. Tort law provides the defendant with several excuses, some of which are discussed
briefly in the next section.
Excuses (Defenses)
There are more excuses (defenses) than are listed here, but contributory negligence or comparative
negligence, assumption of risk, and act of God are among the principal defenses that will completely or
partially excuse the negligence of the defendant.
Contributory and Comparative Negligence
Under an old common-law rule, it was a complete defense to show that the plaintiff in a negligence suit
was himself negligent. Even if the plaintiff was only mildly negligent, most of the fault being chargeable to
the defendant, the court would dismiss the suit if the plaintiff’s conduct contributed to his injury. In a few
states today, this rule of contributory negligence is still in effect. Although referred to as negligence, the
rule encompasses a narrower form than that with which the defendant is charged, because the plaintiff’s
only error in such cases is in being less careful of himself than he might have been, whereas the defendant
is charged with conduct careless toward others. This rule was so manifestly unjust in many cases that
most states, either by statute or judicial decision, have changed to some version
of comparative negligence. Under the rule of comparative negligence, damages are apportioned according
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to the defendant’s degree of culpability. For example, if the plaintiff has sustained a $100,000 injury and
is 20 percent responsible, the defendant will be liable for $80,000 in damages.
Assumption of Risk
Risk of injury pervades the modern world, and plaintiffs should not win a lawsuit simply because they
took a risk and lost. The law provides, therefore, that when a person knowingly takes a risk, he or she
must suffer the consequences.
The assumption of risk doctrine comes up in three ways. The plaintiff may have formally agreed with the
defendant before entering a risky situation that he will relieve the defendant of liability should injury
occur. (“You can borrow my car if you agree not to sue me if the brakes fail, because they’re worn and I
haven’t had a chance to replace them.”) Or the plaintiff may have entered into a relationship with the
defendant knowing that the defendant is not in a position to protect him from known risks (the fan who is
hit by a line drive in a ballpark). Or the plaintiff may act in the face of a risky situation known in advance
to have been created by the defendant’s negligence (failure to leave, while there was an opportunity to do
so, such as getting into an automobile when the driver is known to be drunk).
The difficulty in many cases is to determine the dividing line between subjectivity and objectivity. If the
plaintiff had no actual knowledge of the risk, he cannot be held to have assumed it. On the other hand, it is
easy to claim that you did not appreciate the danger, and the courts will apply an objective standard of
community knowledge (a “but you should have known” test) in many situations. When the plaintiff has no
real alternative, however, assumption of risk fails as a defense (e.g., a landlord who negligently fails to
light the exit to the street cannot claim that his tenants assumed the risk of using it).
At the turn of the century, courts applied assumption of risk in industrial cases to bar relief to workers
injured on the job. They were said to assume the risk of dangerous conditions or equipment. This rule has
been abolished by workers’ compensation statutes in most states.
Act of God
Technically, the rule that no one is responsible for an “act of God,” or force majeure as it is sometimes
called, is not an excuse but a defense premised on a lack of causation. If a force of nature caused the harm,
then the defendant was not negligent in the first place. A marina, obligated to look after boats moored at
its dock, is not liable if a sudden and fierce storm against which no precaution was possible destroys
someone’s vessel. However, if it is foreseeable that harm will flow from a negligent condition triggered by
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a natural event, then there is liability. For example, a work crew failed to remove residue explosive gas
from an oil barge. Lightning hit the barge, exploded the gas, and injured several workmen. The plaintiff
recovered damages against the company because the negligence consisted in the failure to guard against
any one of a number of chance occurrences that could ignite the gas.
[3]
Vicarious Liability
Liability for negligent acts does not always end with the one who was negligent. Under certain
circumstances, the liability is imputed to others. For example, an employer is responsible for the
negligence of his employees if they were acting in the scope of employment. This rule of vicarious liability
is often called respondeat superior, meaning that the higher authority must respond to claims brought
against one of its agents. Respondeat superior is not limited to the employment relationship but extends
to a number of other agency relationships as well.
Legislatures in many states have enacted laws that make people vicariously liable for acts of certain people
with whom they have a relationship, though not necessarily one of agency. It is common, for example, for
the owner of an automobile to be liable for the negligence of one to whom the owner lends the car. Socalled dram shop statutes place liability on bar and tavern owners and others who serve too much alcohol
to one who, in an intoxicated state, later causes injury to others. In these situations, although the injurious
act of the drinker stemmed from negligence, the one whom the law holds vicariously liable (the bartender)
is not himself necessarily negligent—the law is holding him strictly liable, and to this concept we now
turn.
KEY TAKEAWAY
The most common tort claim is based on the negligence of the defendant. In each negligence claim, the
plaintiff must establish by a preponderance of the evidence that (1) the defendant had a duty of due care,
(2) the defendant breached that duty, (3) that the breach of duty both actually and approximately has
caused harm to the plaintiff, and (4) that the harm is measurable in money damages.
It is also possible for the negligence of one person to be imputed to another, as in the case of respondeat
superior, or in the case of someone who loans his automobile to another driver who is negligent and
causes injury. There are many excuses (defenses) to claims of negligence, including assumption of risk and
comparative negligence. In those few jurisdictions where contributory negligence has not been modified
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to comparative negligence, plaintiffs whose negligence contributes to their own injuries will be barred
from any recovery.
EXERCISES
1.
Explain the difference between comparative negligence and contributory negligence.
2.
How is actual cause different from probable cause?
3.
What is an example of assumption of risk?
4.
How does res ipsa loquitur help a plaintiff establish a case of negligence?
5.
[1] Tarasoff v. Regents of University of California, 551 P.2d 334 (Calif. 1976).
6.
[2] Scott v. London & St. Katherine Docks Co., 3 H. & C. 596, 159 Eng.Rep. 665 (Q.B. 1865).
7.
[3] Johnson v. Kosmos Portland Cement Co., 64 F.2d 193 (6th Cir. 1933).
6.4 Strict Liability
LEARNING OBJECTIVES
1.
Understand how strict liability torts differ from negligent torts.
2.
Understand the historical origins of strict liability under common law.
3.
Be able to apply strict liability concepts to liability for defective products.
4.
Distinguish strict liability from absolute liability, and understand the major defenses to a lawsuit in
products-liability cases.
Historical Basis of Strict Liability: Animals and Ultrahazardous Activities
To this point, we have considered principles of liability that in some sense depend upon the “fault” of the
tortfeasor. This fault is not synonymous with moral blame.
Aside from acts intended to harm, the fault lies in a failure to live up to a standard of reasonableness or
due care. But this is not the only basis for tort liability. Innocent mistakes can be a sufficient basis. As we
have already seen, someone who unknowingly trespasses on another’s property is liable for the damage
that he does, even if he has a reasonable belief that the land is his. And it has long been held that someone
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who engages in ultrahazardous (or sometimes, abnormally dangerous) activities is liable for damage that
he causes, even though he has taken every possible precaution to avoid harm to someone else.
Likewise, the owner of animals that escape from their pastures or homes and damage neighboring
property may be liable, even if the reason for their escape was beyond the power of the owner to stop (e.g.,
a fire started by lightning that burns open a barn door). In such cases, the courts invoke the principle of
strict liability, or, as it is sometimes called, liability without fault. The reason for the rule is explained
in Klein v. Pyrodyne Corporation (Section 6.5 “Cases”).
Strict Liability for Products
Strict liability may also apply as a legal standard for products, even those that are
not ultrahazardous. In some national legal systems, strict liability is not available as a cause of action to
plaintiffs seeking to recover a judgment of products liability against a manufacturer, wholesaler,
distributor, or retailer. (Some states limit liability to the manufacturer.) But it is available in the United
States and initially was created by a California Supreme Court decision in the 1962 case of Greenman v.
Yuba Power Products, Inc.
In Greenman, the plaintiff had used a home power saw and bench, the Shopsmith, designed and
manufactured by the defendant. He was experienced in using power tools and was injured while using the
approved lathe attachment to the Shopsmith to fashion a wooden chalice. The case was decided on the
premise that Greenman had done nothing wrong in using the machine but that the machine had a defect
that was “latent” (not easily discoverable by the consumer). Rather than decide the case based on
warranties, or requiring that Greenman prove how the defendant had been negligent, Justice Traynor
found for the plaintiff based on the overall social utility of strict liability in cases of defective products.
According to his decision, the purpose of such liability is to ensure that the “cost of injuries resulting from
defective products is borne by the manufacturers…rather than by the injured persons who are powerless
to protect themselves.”
Today, the majority of US states recognize strict liability for defective products, although some states limit
strict liability actions to damages for personal injuries rather than property damage. Injured plaintiffs
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have to prove the product caused the harm but do not have to prove exactly how the manufacturer was
careless. Purchasers of the product, as well as injured guests, bystanders, and others with no direct
relationship with the product, may sue for damages caused by the product.
The Restatement of the Law of Torts, Section 402(a), was originally issued in 1964. It is a widely accepted
statement of the liabilities of sellers of goods for defective products. The Restatement specifies six
requirements, all of which must be met for a plaintiff to recover using strict liability for a product that the
plaintiff claims is defective:
1.
The product must be in a defective condition when the defendant sells it.
2. The defendant must normally be engaged in the business of selling or otherwise distributing the
product.
3. The product must be unreasonably dangerous to the user or consumer because of its defective
condition.
4. The plaintiff must incur physical harm to self or to property by using or consuming the product.
5.
The defective condition must be the proximate cause of the injury or damage.
6. The goods must not have been substantially changed from the time the product was sold to the time
the injury was sustained.
Section 402(a) also explicitly makes clear that a defendant can be held liable even though the defendant
has exercised “all possible care.” Thus in a strict liability case, the plaintiff does not need to show “fault”
(or negligence).
For defendants, who can include manufacturers, distributors, processors, assemblers, packagers, bottlers,
retailers, and wholesalers, there are a number of defenses that are available, including assumption of risk,
product misuse and comparative negligence, commonly known dangers, and the knowledgeable-user
defense. We have already seen assumption of risk and comparative negligence in terms of negligence
actions; the application of these is similar in products-liability actions.
Under product misuse, a plaintiff who uses a product in an unexpected and unusual way will not recover
for injuries caused by such misuse. For example, suppose that someone uses a rotary lawn mower to trim
a hedge and that after twenty minutes of such use loses control because of its weight and suffers serious
cuts to his abdomen after dropping it. Here, there would be a defense of product misuse, as well as
contributory negligence. Consider the urban (or Internet) legend of Mervin Gratz, who supposedly put his
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Winnebago on autopilot to go back and make coffee in the kitchen, then recovered millions after his
Winnebago turned over and he suffered serious injuries. There are multiple defenses to this alleged
action; these would include the defenses of contributory negligence, comparative negligence, and product
misuse. (There was never any such case, and certainly no such recovery; it is not known who started this
legend, or why.)
Another defense against strict liability as a cause of action is the knowledgeable user defense. If the
parents of obese teenagers bring a lawsuit against McDonald’s, claiming that its fast-food products are
defective and that McDonald’s should have warned customers of the adverse health effects of eating its
products, a defense based on the knowledgeable user is available. In one case, the court found that the
high levels of cholesterol, fat, salt, and sugar in McDonald’s food is well known to users. The court stated,
“If consumers know (or reasonably should know) the potential ill health effects of eating at McDonald’s,
they cannot blame McDonald’s if they, nonetheless, choose to satiate their appetite with a surfeit of
supersized McDonald’s products.”
[1]
KEY TAKEAWAY
Common-law courts have long held that certain activities are inherently dangerous and that those who
cause damage to others by engaging in those activities will be held strictly liable. More recently, courts in
the United States have applied strict liability to defective products. Strict liability, however, is not absolute
liability, as there are many defenses available to defendants in lawsuits based on strict liability, such as
comparative negligence and product abuse.
1.
EXERCISES
Someone says, “Strict liability means that you’re liable for whatever you make, no matter what the
consumer does with your product. It’s a crazy system.” Respond to and refute this statement.
2.
What is the essential difference between strict liability torts and negligent torts? Should the US legal
system even allow strict liability torts? What reasons seem persuasive to you?
[1] Pellman v. McDonald’s Corp., 237 F.2d 512 (S.D.N.Y. 2003).
6.5 Cases
Intentional Torts: False Imprisonment
Lester v. Albers Super Markets, Inc.
94 Ohio App. 313, 114 N.E.2d 529 (Ohio 1952)
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Facts: The plaintiff, carrying a bag of rolls purchased at another store, entered the defendant’s grocery
store to buy some canned fruit. Seeing her bus outside, she stepped out of line and put the can on the
counter. The store manager intercepted her and repeatedly demanded that she submit the bag to be
searched. Finally she acquiesced; he looked inside and said she could go. She testified that several people
witnessed the scene, which lasted about fifteen minutes, and that she was humiliated. The jury awarded
her $800. She also testified that no one laid a hand on her or made a move to restrain her from leaving by
any one of numerous exits.
***
MATTHEWS, JUDGE.
As we view the record, it raises the fundamental question of what is imprisonment. Before any need for a
determination of illegality arises there must be proof of imprisonment. In 35 Corpus Juris Secundum
(C.J.S.), False Imprisonment, § II, pages 512–13, it is said: “Submission to the mere verbal direction of
another, unaccompanied by force or by threats of any character, cannot constitute a false imprisonment,
and there is no false imprisonment where an employer interviewing an employee declines to terminate the
interview if no force or threat of force is used and false imprisonment may not be predicated on a person’s
unfounded belief that he was restrained.”
Many cases are cited in support of the text.
***
In Fenn v. Kroger Grocery & Baking Co., Mo. Sup., 209 S.W. 885, 887, the court said:
A case was not made out for false arrest. The plaintiff said she was intercepted as she started to
leave the store; that Mr. Krause stood where she could not pass him in going out. She does not say
that he made any attempt to intercept her. She says he escorted her back to the desk, that he
asked her to let him see the change.
…She does not say that she went unwillingly…Evidence is wholly lacking to show that she was
detained by force or threats. It was probably a disagreeable experience, a humiliating one to her,
but she came out victorious and was allowed to go when she desired with the assurance of Mr.
Krause that it was all right. The demurrer to the evidence on both counts was properly sustained.
The result of the cases is epitomized in 22 Am.Jur. 368, as follows:
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A customer or patron who apparently has not paid for what he has received may be detained for
a reasonable time to investigate the circumstances, but upon payment of the demand, he has the
unqualified right to leave the premises without restraint, so far as the proprietor is concerned,
and it is false imprisonment for a private individual to detain one for an unreasonable time, or
under unreasonable circumstances, for the purpose of investigating a dispute over the payment
of a bill alleged to be owed by the person detained for cash services.
***
For these reasons, the judgment is reversed and final judgment entered for the defendant-appellant.
CASE QUESTIONS
1.
The court begins by saying what false imprisonment is not. What is the legal definition of false
imprisonment?
2.
What kinds of detention are permissible for a store to use in accosting those that may have been
shoplifting?
3.
Jody broke up with Jeremy and refused to talk to him. Jeremy saw Jody get into her car near the business
school and parked right behind her so she could not move. He then stood next to the driver’s window for
fifteen minutes, begging Jody to talk to him. She kept saying, “No, let me leave!” Has Jeremy committed
the tort of false imprisonment?
Negligence: Duty of Due Care
Whitlock v. University of Denver
744 P.2d 54 (Supreme Court of Colorado1987)
On June 19, 1978, at approximately 10:00 p.m., plaintiff Oscar Whitlock suffered a paralyzing injury while
attempting to complete a one-and-three-quarters front flip on a trampoline. The injury rendered him a
quadriplegic. The trampoline was owned by the Beta Theta Pi fraternity (the Beta house) and was situated
on the front yard of the fraternity premises, located on the University campus. At the time of his injury,
Whitlock was twenty years old, attended the University of Denver, and was a member of the Beta house,
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where he held the office of acting house manager. The property on which the Beta house was located was
leased to the local chapter house association of the Beta Theta Pi fraternity by the defendant University of
Denver.
Whitlock had extensive experience jumping on trampolines. He began using trampolines in junior high
school and continued to do so during his brief tenure as a cadet at the United States Military Academy at
West Point, where he learned to execute the one-and-three-quarters front flip. Whitlock testified that he
utilized the trampoline at West Point every other day for a period of two months. He began jumping on
the trampoline owned by the Beta house in September of 1977. Whitlock recounted that in the fall and
spring prior to the date of his injury, he jumped on the trampoline almost daily. He testified further that
prior to the date of his injury, he had successfully executed the one-and-three-quarters front flip between
seventy-five and one hundred times.
During the evening of June 18 and early morning of June 19, 1978, Whitlock attended a party at the Beta
house, where he drank beer, vodka and scotch until 2:00 a.m. Whitlock then retired and did not awaken
until 2:00 p.m. on June 19. He testified that he jumped on the trampoline between 2:00 p.m. and 4:00
p.m., and again at 7:00 p.m. At 10:00 p.m., the time of the injury, there again was a party in progress at
the Beta house, and Whitlock was using the trampoline with only the illumination from the windows of
the fraternity house, the outside light above the front door of the house, and two street lights in the area.
As Whitlock attempted to perform the one-and-three-quarters front flip, he landed on the back of his
head, causing his neck to break.
Whitlock brought suit against the manufacturer and seller of the trampoline, the University, the Beta
Theta Pi fraternity and its local chapter, and certain individuals in their capacities as representatives of
the Beta Theta Pi organizations. Whitlock reached settlements with all of the named defendants except
the University, so only the negligence action against the University proceeded to trial. The jury returned a
verdict in favor of Whitlock, assessing his total damages at $ 7,300,000. The jury attributed twenty-eight
percent of causal negligence to the conduct of Whitlock and seventy-two percent of causal negligence to
the conduct of the University. The trial court accordingly reduced the amount of the award against the
University to $ 5,256,000.
The University moved for judgment notwithstanding the verdict, or, in the alternative, a new trial. The
trial court granted the motion for judgment notwithstanding the verdict, holding that as a matter of law,
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no reasonable jury could have found that the University was more negligent than Whitlock, and that the
jury’s monetary award was the result of sympathy, passion or prejudice.
A panel of the court of appeals reversed…by a divided vote. Whitlock v. University of Denver, 712 P.2d
1072 (Colo. App. 1985). The court of appeals held that the University owed Whitlock a duty of due care to
remove the trampoline from the fraternity premises or to supervise its use.…The case was remanded to
the trial court with orders to reinstate the verdict and damages as determined by the jury. The University
then petitioned for certiorari review, and we granted that petition.
II.
A negligence claim must fail if based on circumstances for which the law imposes no duty of care upon the
defendant for the benefit of the plaintiff. [Citations] Therefore, if Whitlock’s judgment against the
University is to be upheld, it must first be determined that the University owed a duty of care to take
reasonable measures to protect him against the injury that he sustained.
Whether a particular defendant owes a legal duty to a particular plaintiff is a question of law. [Citations]
“The court determines, as a matter of law, the existence and scope of the duty—that is, whether the
plaintiff’s interest that has been infringed by the conduct of the defendant is entitled to legal protection.”
[Citations] In Smith v. City & County of Denver, 726 P.2d 1125 (Colo. 1986), we set forth several factors to
be considered in determining the existence of duty in a particular case:
Whether the law should impose a duty requires consideration of many factors including, for
example, the risk involved, the foreseeability and likelihood of injury as weighed against the
social utility of the actor’s conduct, the magnitude of the burden of guarding against injury or
harm, and the consequences of placing the burden upon the actor.
…A court’s conclusion that a duty does or does not exist is “an expression of the sum total of those
considerations of policy which lead the law to say that the plaintiff is [or is not] entitled to protection.”
…
We believe that the fact that the University is charged with negligent failure to act rather than negligent
affirmative action is a critical factor that strongly militates against imposition of a duty on the University
under the facts of this case. In determining whether a defendant owes a duty to a particular plaintiff, the
law has long recognized a distinction between action and a failure to act—“that is to say, between active
misconduct working positive injury to others [misfeasance] and passive inaction or a failure to take steps
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to protect them from harm [nonfeasance].” W. Keeton, § 56, at 373. Liability for nonfeasance was slow to
receive recognition in the law. “The reason for the distinction may be said to lie in the fact that by
‘misfeasance’ the defendant has created a new risk of harm to the plaintiff, while by ‘nonfeasance’ he has
at least made his situation no worse, and has merely failed to benefit him by interfering in his
affairs.” Id. The Restatement (Second) of Torts § 314 (1965) summarizes the law on this point as follows:
The fact that an actor realizes or should realize that action on his part is necessary for another’s
aid or protection does not of itself impose upon him a duty to take such action.
Imposition of a duty in all such cases would simply not meet the test of fairness under contemporary
standards.
In nonfeasance cases the existence of a duty has been recognized only during the last century in situations
involving a limited group of special relationships between parties. Such special relationships are
predicated on “some definite relation between the parties, of such a character that social policy justifies
the imposition of a duty to act.” W. Keeton, § 56, at 374. Special relationships that have been recognized
by various courts for the purpose of imposition of a duty of care include common carrier/passenger,
innkeeper/guest, possessor of land/invited entrant, employer/employee, parent/child, and
hospital/patient.See Restatement (Second) of Torts § 314 A (1965); 3 Harper and James, § 18.6, at 722–
23. The authors of the Restatement (Second) of Torts § 314 A, comment b (1965), state that “the law
appears…to be working slowly toward a recognition of the duty to aid or protect in any relation of
dependence or of mutual dependence.”
…
III.
The present case involves the alleged negligent failure to act, rather than negligent action. The plaintiff
does not complain of any affirmative action taken by the University, but asserts instead that the
University owed to Whitlock the duty to assure that the fraternity’s trampoline was used only under
supervised conditions comparable to those in a gymnasium class, or in the alternative to cause the
trampoline to be removed from the front lawn of the Beta house.…If such a duty is to be recognized, it
must be grounded on a special relationship between the University and Whitlock. According to the
evidence, there are only two possible sources of a special relationship out of which such a duty could arise
in this case: the status of Whitlock as a student at the University, and the lease between the University and
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the fraternity of which Whitlock was a member. We first consider the adequacy of the student-university
relationship as a possible basis for imposing a duty on the University to control or prohibit the use of the
trampoline, and then examine the provisions of the lease for that same purpose.
A.
The student-university relationship has been scrutinized in several jurisdictions, and it is generally agreed
that a university is not an insurer of its students’ safety. [Citations] The relationship between a university
and its students has experienced important change over the years. At one time, college administrators and
faculties stood in loco parentis to their students, which created a special relationship “that imposed a duty
on the college to exercise control over student conduct and, reciprocally, gave the students certain rights
of protection by the college.” Bradshaw, 612 F.2d at 139. However, in modern times there has evolved a
gradual reapportionment of responsibilities from the universities to the students, and a corresponding
departure from the in loco parentis relationship. Id. at 139–40. Today, colleges and universities are
regarded as educational institutions rather than custodial ones. Beach, 726 P.2d at 419 (contrasting
colleges and universities with elementary and high schools).
…
…By imposing a duty on the University in this case, the University would be encouraged to exercise more
control over private student recreational choices, thereby eff…
