I need to get some signatures to file my amended tax returns. After that, it's time to fill out my FASFA and wait to talk to financial aid about what sort of loans I can take out next year.
I finally knocked out a couple of chapters in my Civ Pro E&E book today. Took me a while to get around to it. I bought some off the shelf reading glasses and they help. I need reading glasses. It was hard to read without them and I think it made me tired to do it. I think I may need a milder prescription than what I bought, though. Might try a few other ones.
It's May, now. School starts the last part of August. So, three and a half months and I'll be in the thick of it. It's going to be strange to be grinding away, attending class, doing a mountain of reading, yet not knowing what my grade is going to be until the very end when I take my exams.
Need to get through this E&E and two others and I'll be fully ready, I think. I also need to get the LEEWS CDs and "Getting to Maybe". Lots of work to do.
Hard to do since my son is in his travel baseball season, now. I know next year, I won't be able to take as active a role on his team. (I keep the stats book, now, and help out with practices quite a bit.)
Business has improved a tad, and that's reduced my stress level quite a bit. It was hard to focus on much when the biz was in the process of dying.
Every month the business can stay afloat is a pretty big victory. The grand scheme is to keep it going until I finish school. If I get a good job offer, I'll sell off the business and go work in the law. If I don't get a good job offer, I'll keep the business while I establish my practice.
That all becomes moot if the thing craters between now and then. It really is an integral part of my law school plan.
I also need to find a way to juggle my military reserve service in all this. I do it not so much for the money, in fact, I spend as much money on travel to/from my drill location as I make. However, it does give me great health care benefits at a very modest cost. I'd hate to lose that.
Also, I can see how taking some time away from law school to do a military deployment might actually be a really good thing for a lot of reasons.
The whole thing is getting closer to reality, now. I've been saying for years and years that I needed to go back to school and learn something new.
At my age, this is my last hurrah. I'm just trying to make it count.
Wednesday, April 27, 2011
Tuesday, April 5, 2011
Torts Notes - Indirect Infliction of Emotional Distress
Those who witnessed or soon learned of the injury may seek damages for emotional distress resulting fom the traumatic experience of either witnessing the injury or learning of it. Such claims are referred to as claims for "indirect infliction of emotional distress because they are asserted by bystanders who suffer emotional injury indirectly due to the direct physical injury to another.
The distress in such cases is often both foreseeable and severed. Thus, the plaintiff will frquently be able to establish that the defendant's negligence was an actual and proximate cause of his emotional damages.
Many courts have held that defendants owe no duty to avoid inflicting emotional distress on bystanders, or only owe such a duty in very limited circumstances.
The very foreseeability of such distress argues for restraint. Every victim who suffers negligent physical injury, a number of bystanders may suffer emotional distress.
It woud be an entirely unreasonable burden on all human activity if the defendant who has endangered one person were to be compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative of the person injured as well as his friedns.
Courts are reluctant to impose a duty to persons who have no relationship to the defendant.
Judtes are justifiably concerned about the impact that creating a duty will have on the administration of justice. Recognition of indirect infliction claims could clog the courts with suits over trivial unpleasantries better dealt with by "a certain toughening of the mental hide".
In addition, courts have feared the specter of fraudulent claims.
Many courts have created a duty to avoid inflicting emotional distress, at least in limited circumstances.
The efforts of courts to limit indirect infliction claims has led to tourtured line-drawing, evasive distinctions and some of the least intellectually defensible doctrin in the annals of tort law.
Recovery for emotional distress was proper if the plaintiff also suffered physical injury, became known as the "impact rule" Emotional distress damages were often described as "parasitic".
Some allow a bystander to recover for emotional distress if he was in the "zone of danger".
The Dillon Rule: defendants have a duty to avoid infliction of emotional distress that is reasonably foreseeable, including infliction of such distress on indirect victims.
Dillon rule factors:
1. Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it
2. Whether the shock resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident as contrasted with learning of the accident from others after its occurrance.
3. whether the plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.
The Dillion court did not hold that all three criteria must be satisfied to allow recovery. Rather, it suggested that they were relevant factors in the foreseeability analysis. However, the california supreme court subsequently held that each of the Dillion factors must be satisfied to support recovery for indirect infliction.
Some California courts have allowed recovery in indirect infliction cases that don't meet the Dillion standards if the defendant owed a "direct" duty to the bystander.
Some courts have required that the direct victim suffer serious injuries if bystanders are to claim for indirect infliction.
In the same way that skeptical courts have turned the impact requirement into a token, they have eviscerated the "resulting physical injury" requirement by finding vague complaints sufficient.
These are still claims for negligence and that means that all four other elements of a negligence claim must be proved to recover.
Some courts that apply the zone-of-danger or Dillon approaches to indirect infliction claims also require that the plaintiff suffer some physical symptoms as a result of the emotional distress caused by the defendant's conduct.
Some require the plaintiff to prove "serious" or "severe" distress in order to recover.
Others require expert testimony to establish the existence of the distress.
Some cases have refused recovery, even if the distress is genuine, unless the direct victim of the accident suffers serious injury.
Several courts allow indirect plaintiffs to recover if they prove that they suffered objective symptoms of a physical injury or psychic disability as a result of the distress suffered from witnessing injury to the direct victim, without meeting the Dillion or zone-of-danger standards.
The trauma of witnessing a horrific event or injury, which gives rise to a claim for indirect infliction of emotional distress.
The impact of personally observing the injury producing event distinguishes the plaintiff's resultant emotional distress from the emotion felt when one learns of the injury or death of a loved one from another, or observes pain and suffering but not the traumatic cause of the injury.
Most courts do not allow emotional distress claims for such general grief and suffering of third parties.
Indirect infliction claims are based on the sudden shock of witnessing injury, factors like those cited in Dillon, which emphasize proximity to the traumatic events themselves, make sense as limiting factors. Proximity to the accidentm, actually witnessing it, and being closely related to the victim all tend to increase the traumatic impact of witnessing serious injury. By contrast, liability has usually been denied where relatives learn of an injury at a distance, or even observe an injured family member after the fact. Similarly, where relatives of a direct victim suffer emotional distress, but the victim has not suffered a traumatic accident, recovery is usually denied.
A misdiagnosis normally does not create the kind of horrifying scene that is a prerequisite to recovery.
Loss of Consortium: When one person suffers physical injury due to a defendant's negligence, relatives of the victim will also suffer a third type of emotional damage. "Loss of consortium." This term refers to the impairment of a relative's opportunity to relate to the party directly injured by the defendant.
The injury may interfere drastically with an injured party's ability to relate to his/her spouse. The injury may intefere with recreational activites the couple shared, the division of labor within the household, the sexual society they shared, and the comfort, affection, advice and moral support that ideally flow from marriage. These associated losses, the constellation of companionship, dependence, reliance, affection, sharing and aid which derife from the marital relationship are generally referred to as "loss of consortium" or "loss of society".
Like indirect infliction, loss of consortium compensates an emotional loss to one party due to a direct injury to another.
Loss of consortium does not stem from a sudden traumatic experience, but from the impairment over a period of time - perhaps years or decades - fo the opportunity to relate to the injured spouse.
Loss of consortium differs subtly from grief and sadness. Loss of consortium compensates for the inability to relate to the direct victim, not for general feelings of sadness or empathy for them.
In theory, a jury should consider only the interference with a relationship in determining consortium damages.
I most states today, both spouses have a right to full recovery for loss of consortium due to injury to the other.
Since the broadening of spousal consortium rights, some states have allowed claims by parents for loss of "filial consortium" when their child is injured. Many courts, however, have rejected such claims. There is a similar split of authority on claims for loss of consortium brought by children whose parents have been injured by a tortfeasor.
The majority of states restrict consortium recovery to spouses only.
It is very doubtful that recovery would be allowed to non-family members.
The distress in such cases is often both foreseeable and severed. Thus, the plaintiff will frquently be able to establish that the defendant's negligence was an actual and proximate cause of his emotional damages.
Many courts have held that defendants owe no duty to avoid inflicting emotional distress on bystanders, or only owe such a duty in very limited circumstances.
The very foreseeability of such distress argues for restraint. Every victim who suffers negligent physical injury, a number of bystanders may suffer emotional distress.
It woud be an entirely unreasonable burden on all human activity if the defendant who has endangered one person were to be compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative of the person injured as well as his friedns.
Courts are reluctant to impose a duty to persons who have no relationship to the defendant.
Judtes are justifiably concerned about the impact that creating a duty will have on the administration of justice. Recognition of indirect infliction claims could clog the courts with suits over trivial unpleasantries better dealt with by "a certain toughening of the mental hide".
In addition, courts have feared the specter of fraudulent claims.
Many courts have created a duty to avoid inflicting emotional distress, at least in limited circumstances.
The efforts of courts to limit indirect infliction claims has led to tourtured line-drawing, evasive distinctions and some of the least intellectually defensible doctrin in the annals of tort law.
Recovery for emotional distress was proper if the plaintiff also suffered physical injury, became known as the "impact rule" Emotional distress damages were often described as "parasitic".
Some allow a bystander to recover for emotional distress if he was in the "zone of danger".
The Dillon Rule: defendants have a duty to avoid infliction of emotional distress that is reasonably foreseeable, including infliction of such distress on indirect victims.
Dillon rule factors:
1. Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it
2. Whether the shock resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident as contrasted with learning of the accident from others after its occurrance.
3. whether the plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.
The Dillion court did not hold that all three criteria must be satisfied to allow recovery. Rather, it suggested that they were relevant factors in the foreseeability analysis. However, the california supreme court subsequently held that each of the Dillion factors must be satisfied to support recovery for indirect infliction.
Some California courts have allowed recovery in indirect infliction cases that don't meet the Dillion standards if the defendant owed a "direct" duty to the bystander.
Some courts have required that the direct victim suffer serious injuries if bystanders are to claim for indirect infliction.
In the same way that skeptical courts have turned the impact requirement into a token, they have eviscerated the "resulting physical injury" requirement by finding vague complaints sufficient.
These are still claims for negligence and that means that all four other elements of a negligence claim must be proved to recover.
Some courts that apply the zone-of-danger or Dillon approaches to indirect infliction claims also require that the plaintiff suffer some physical symptoms as a result of the emotional distress caused by the defendant's conduct.
Some require the plaintiff to prove "serious" or "severe" distress in order to recover.
Others require expert testimony to establish the existence of the distress.
Some cases have refused recovery, even if the distress is genuine, unless the direct victim of the accident suffers serious injury.
Several courts allow indirect plaintiffs to recover if they prove that they suffered objective symptoms of a physical injury or psychic disability as a result of the distress suffered from witnessing injury to the direct victim, without meeting the Dillion or zone-of-danger standards.
The trauma of witnessing a horrific event or injury, which gives rise to a claim for indirect infliction of emotional distress.
The impact of personally observing the injury producing event distinguishes the plaintiff's resultant emotional distress from the emotion felt when one learns of the injury or death of a loved one from another, or observes pain and suffering but not the traumatic cause of the injury.
Most courts do not allow emotional distress claims for such general grief and suffering of third parties.
Indirect infliction claims are based on the sudden shock of witnessing injury, factors like those cited in Dillon, which emphasize proximity to the traumatic events themselves, make sense as limiting factors. Proximity to the accidentm, actually witnessing it, and being closely related to the victim all tend to increase the traumatic impact of witnessing serious injury. By contrast, liability has usually been denied where relatives learn of an injury at a distance, or even observe an injured family member after the fact. Similarly, where relatives of a direct victim suffer emotional distress, but the victim has not suffered a traumatic accident, recovery is usually denied.
A misdiagnosis normally does not create the kind of horrifying scene that is a prerequisite to recovery.
Loss of Consortium: When one person suffers physical injury due to a defendant's negligence, relatives of the victim will also suffer a third type of emotional damage. "Loss of consortium." This term refers to the impairment of a relative's opportunity to relate to the party directly injured by the defendant.
The injury may interfere drastically with an injured party's ability to relate to his/her spouse. The injury may intefere with recreational activites the couple shared, the division of labor within the household, the sexual society they shared, and the comfort, affection, advice and moral support that ideally flow from marriage. These associated losses, the constellation of companionship, dependence, reliance, affection, sharing and aid which derife from the marital relationship are generally referred to as "loss of consortium" or "loss of society".
Like indirect infliction, loss of consortium compensates an emotional loss to one party due to a direct injury to another.
Loss of consortium does not stem from a sudden traumatic experience, but from the impairment over a period of time - perhaps years or decades - fo the opportunity to relate to the injured spouse.
Loss of consortium differs subtly from grief and sadness. Loss of consortium compensates for the inability to relate to the direct victim, not for general feelings of sadness or empathy for them.
In theory, a jury should consider only the interference with a relationship in determining consortium damages.
I most states today, both spouses have a right to full recovery for loss of consortium due to injury to the other.
Since the broadening of spousal consortium rights, some states have allowed claims by parents for loss of "filial consortium" when their child is injured. Many courts, however, have rejected such claims. There is a similar split of authority on claims for loss of consortium brought by children whose parents have been injured by a tortfeasor.
The majority of states restrict consortium recovery to spouses only.
It is very doubtful that recovery would be allowed to non-family members.
Torts Notes - Duty
It is hornbook law that the plaintiff in a negligence case must prove four elements in order to recover: duty, breach, causation, and damages. Even if the defendant was negligent, and that negligence caused the injury to the plaintiff, the defendant will not be liable unless he owed the plaintiff a duty of care.
Courts have often refused to hold defendants liable, even though they have cause clearly foreseeble harm to the plaintiff.
Courts generally refuse to impose liability for doing nothing.
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.
The origin of the rule lay in the early common law distinction between actio and inaction, or "misfeasance" and "non-feasance". In the early law, one who injured another by a positive affirmative act was held liable without any great regard even for his fault. But the courts were far too much occupied with the more flagrant forms of misbehavior to be greatly concerned with one who merely did nothing, even though another might suffer serious harm because of his omission to act. Hence, liability for nonfeasance was slow to receive any recognition in the law.
The defendant whose act (misfeasance) endangers the plaintiff has "created a new risk of harm to the plaintiff, while by "nonfeasance" he has at least made the plaintiff's situation no worse and has merely failed to benefit him by interfering with his affairs". Other defenders of the principle emphasize the infringement on individual liberty posed by coercing services from unwilling bystanders and the difficulty of defining the duty if it is to be imposed.
Most european countries, and Vermont impose a limited duty to aid. Most american courts have not rejected the 'no-duty-to-act" rule outright.
A defendant's choice to engage in risk-creating conduct for his own benefit imposes the reciprocal duty to exercise due care toward those who may foreseeably be injured by that conduct.
Duty based on risk creation: In most cases, risk creation is the obvious basis of the duty to exercise due care.
Courts have not hesitated to create "affirmative duties" to act for the protection of another where some policy justifies departing from the no-duty rule.
Duty based on special relationship to the perpetrator: One who takes charge of a third person whom he knows or should kow to be likely to cause bodiliy harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.
Duty based on innocent creation of the risk: if the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.
Gratuitous Services Exception
One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by
a. the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge or
b. the actor's discontinuing his aid or protection, if by doing so he leaves the other in a worse position than when the actor took charge of him.
There is no general duty to act for the benefit of another
those who chose to act owe a duty to others to use due care in such conduct.
Two types of limitations that courts place on liability:
First, limiting liability ot the foreseeable consequences of the defendant's negligent act
Second, denying liability for consequences that are foreseeable, for the types of policy reasons discussed in this chapter.
There is a distinction between refusing to impose liability for unforeseeable consequences (the classic proximate cause situation) and refusing, for policy reasons, to impose liability for ones that are foreseeable (the classic duty limitation.)
Child abuse statutes are triggered by knowledge of actual abuse, not just knowledge of a risk.
A bystander owes no duty to aid another unless the bystander has placed the victim in peril or has a previous relationship with the victim that supports a finding of duty.
Choice to intervene does not require person assisting to continue his services until the recipient of them gets all of the beneift which the actor is capable of bestowing. But he must still act with reasonable consideration for the other's safety.
There is no duty on a rescuer to continue giving assistance until the victim no longer needs any.
Good samaritan laws are to encourage bystanders who are not obligated to render assistance to do so anyway, by giving them a measure of protection from liability. Such statutes are not intended to grant immunity to persons who already have a duty to render assistance.
Duty is a question of law. It is up to courts to define enforceable legal duties, not juries. The judge should instruct the jury as to the duty owed in each ase.
In third party cases, there is a duty ot exercise reasonable care to prevent injury from the dangerous person.
Courts have often refused to hold defendants liable, even though they have cause clearly foreseeble harm to the plaintiff.
Courts generally refuse to impose liability for doing nothing.
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.
The origin of the rule lay in the early common law distinction between actio and inaction, or "misfeasance" and "non-feasance". In the early law, one who injured another by a positive affirmative act was held liable without any great regard even for his fault. But the courts were far too much occupied with the more flagrant forms of misbehavior to be greatly concerned with one who merely did nothing, even though another might suffer serious harm because of his omission to act. Hence, liability for nonfeasance was slow to receive any recognition in the law.
The defendant whose act (misfeasance) endangers the plaintiff has "created a new risk of harm to the plaintiff, while by "nonfeasance" he has at least made the plaintiff's situation no worse and has merely failed to benefit him by interfering with his affairs". Other defenders of the principle emphasize the infringement on individual liberty posed by coercing services from unwilling bystanders and the difficulty of defining the duty if it is to be imposed.
Most european countries, and Vermont impose a limited duty to aid. Most american courts have not rejected the 'no-duty-to-act" rule outright.
A defendant's choice to engage in risk-creating conduct for his own benefit imposes the reciprocal duty to exercise due care toward those who may foreseeably be injured by that conduct.
Duty based on risk creation: In most cases, risk creation is the obvious basis of the duty to exercise due care.
Courts have not hesitated to create "affirmative duties" to act for the protection of another where some policy justifies departing from the no-duty rule.
Duty based on special relationship to the perpetrator: One who takes charge of a third person whom he knows or should kow to be likely to cause bodiliy harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.
Duty based on innocent creation of the risk: if the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.
Gratuitous Services Exception
One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by
a. the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge or
b. the actor's discontinuing his aid or protection, if by doing so he leaves the other in a worse position than when the actor took charge of him.
There is no general duty to act for the benefit of another
those who chose to act owe a duty to others to use due care in such conduct.
Two types of limitations that courts place on liability:
First, limiting liability ot the foreseeable consequences of the defendant's negligent act
Second, denying liability for consequences that are foreseeable, for the types of policy reasons discussed in this chapter.
There is a distinction between refusing to impose liability for unforeseeable consequences (the classic proximate cause situation) and refusing, for policy reasons, to impose liability for ones that are foreseeable (the classic duty limitation.)
Child abuse statutes are triggered by knowledge of actual abuse, not just knowledge of a risk.
A bystander owes no duty to aid another unless the bystander has placed the victim in peril or has a previous relationship with the victim that supports a finding of duty.
Choice to intervene does not require person assisting to continue his services until the recipient of them gets all of the beneift which the actor is capable of bestowing. But he must still act with reasonable consideration for the other's safety.
There is no duty on a rescuer to continue giving assistance until the victim no longer needs any.
Good samaritan laws are to encourage bystanders who are not obligated to render assistance to do so anyway, by giving them a measure of protection from liability. Such statutes are not intended to grant immunity to persons who already have a duty to render assistance.
Duty is a question of law. It is up to courts to define enforceable legal duties, not juries. The judge should instruct the jury as to the duty owed in each ase.
In third party cases, there is a duty ot exercise reasonable care to prevent injury from the dangerous person.
Torts Notes - Proximate Cause
A defendant may be negligent, but if their negligence is too unusual, too far removed from the type of harm to be anticipated from the defendant's negligence, then liability will not be imposed.
If the only issue is cause-in-fact, negligent defendants would always pay since their conduct is a necessary antecedent of the plaintiff's harm in each.
Proximate cause problem is called "legal cause" to emphasize that the issue is whether liability should be imposed, not whether the defendant's act was a cause-in-fact of the plaintiff's harm.
An actual cause question asks "what happened?" A legal cause question asks, "What shall be done about it?"
In Re Polemis held that the defedant is liable if his conduct is the direct cause of the plaintiff's injury as opposed to a remote cause.
Proximate cause considers whether the defendant, at the time he acted, could foresee the risk that injured the plaintiff. Under this foreseeability / scope of the risk approach, the court considers what the risks were that made the defendant's conduct negligent in the first place.
An actor's liability is limited to those physical harms that result from the risks that made the actor's conduct tortious.
It relates the scope of liability to the faulty aspect of the defendant's conduct.
The duty to avoid injuring others extends only to those risks the actor should anticipate from her negligent act.
If plaintiff is "unforeseeable plaintiff", where no reasonable risk was anticipated, plaintiff can be denied recovery.
If the plaintiff's injury is truly beyond the type of harm to be expected from the defendant's conduct, the plaintiff will virtually always go uncompensated.
The defendant still "takes the plaintiff as he finds her", so even if DAMAGES are unanticipated, if the injury is one that can reasonably be anticipated, then damages are based on actual injury.
The cases distinguish unforeseeable consequences of a negligent act from consequences that are foreseeable but take place in an unusual manner.
In many cases, the line between unforeseeable consequences and unforeseeable manner is a fine one.
An injury does not have to be likely or probable in order to be foreseeable in proximate cause analysis.
"Foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful person would take account of it in guiding practical conduct.
Economic Analysis: These liability rules tell decision makers that, under cdrtain conditions, they will be forced to bear the costs of their activities to others. The effect of such rules is to give rational decision makers an incentive to incorporate the costs to others inot their decisions about whether to engage in the activity and hence, to create a situation in which the activitieds chosen by the rationl decision maker are efficient from an aggregate point of view.
However, the rational actor can only consider the liability consequences of risks that he can foresee. Imposing liability for unforeseeable risks will not affect his choices.
Palsgraf stands for the proposition that the tort law does not require an individual to consider, in selecting her activity, costs to persons to whom harm is not reasonably foreseeable. Unforeseeable harm cannot be internalized because, by definition, the decision maker could not have foreseen it. Imposing liability where there is no foreseeability will "confer no economic beneift; it will merely require a costly transfer payment."
In common economic terms, a rule that an actor must pay for unforeseeable harms will not affect the actor's choices about activities that impose risk. If we make him pay for unforeseeable injuries caused by his conduct, it will not make the world any safer or more efficient.
Although courts will find a way to avoid imposing liability for unforeseeable injuries, it does not follow that the converse is always true, that is, that a defendant must pay whenever he causes foreseeable harm.
Courts that deny recovery for such secondary economic losses cannot credibly do so based on lack of proximate cause. Generally, courts reason that the burden of liability for such secondary economic losses is too great.
Superseding cause: in a good many proximate cause cases, the defendant argues that, even if she was negligent, a later act supersedes her negligence and breaks the causal chain.
When the risk of criminal conduct is foreseeable, it will not cut off the liability of a defendant who negligently exposes the plaintiff to that risk.
It is frequently said that whether the defendant's negligence was a proximate cause of the plaintiff's injury is a question of fact for the jury.
Defense lawyers must win the proximate cause battle in front of the judge, by convincing her that as a matter of law, the defendant's act was not the proximate cuase of the plaintiff's injury. In many such cases, the judge will grant summary judgement for the defendant concluding as a matter of law that the plaintiff's injury was unforeseeable.
If the only issue is cause-in-fact, negligent defendants would always pay since their conduct is a necessary antecedent of the plaintiff's harm in each.
Proximate cause problem is called "legal cause" to emphasize that the issue is whether liability should be imposed, not whether the defendant's act was a cause-in-fact of the plaintiff's harm.
An actual cause question asks "what happened?" A legal cause question asks, "What shall be done about it?"
In Re Polemis held that the defedant is liable if his conduct is the direct cause of the plaintiff's injury as opposed to a remote cause.
Proximate cause considers whether the defendant, at the time he acted, could foresee the risk that injured the plaintiff. Under this foreseeability / scope of the risk approach, the court considers what the risks were that made the defendant's conduct negligent in the first place.
An actor's liability is limited to those physical harms that result from the risks that made the actor's conduct tortious.
It relates the scope of liability to the faulty aspect of the defendant's conduct.
The duty to avoid injuring others extends only to those risks the actor should anticipate from her negligent act.
If plaintiff is "unforeseeable plaintiff", where no reasonable risk was anticipated, plaintiff can be denied recovery.
If the plaintiff's injury is truly beyond the type of harm to be expected from the defendant's conduct, the plaintiff will virtually always go uncompensated.
The defendant still "takes the plaintiff as he finds her", so even if DAMAGES are unanticipated, if the injury is one that can reasonably be anticipated, then damages are based on actual injury.
The cases distinguish unforeseeable consequences of a negligent act from consequences that are foreseeable but take place in an unusual manner.
In many cases, the line between unforeseeable consequences and unforeseeable manner is a fine one.
An injury does not have to be likely or probable in order to be foreseeable in proximate cause analysis.
"Foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful person would take account of it in guiding practical conduct.
Economic Analysis: These liability rules tell decision makers that, under cdrtain conditions, they will be forced to bear the costs of their activities to others. The effect of such rules is to give rational decision makers an incentive to incorporate the costs to others inot their decisions about whether to engage in the activity and hence, to create a situation in which the activitieds chosen by the rationl decision maker are efficient from an aggregate point of view.
However, the rational actor can only consider the liability consequences of risks that he can foresee. Imposing liability for unforeseeable risks will not affect his choices.
Palsgraf stands for the proposition that the tort law does not require an individual to consider, in selecting her activity, costs to persons to whom harm is not reasonably foreseeable. Unforeseeable harm cannot be internalized because, by definition, the decision maker could not have foreseen it. Imposing liability where there is no foreseeability will "confer no economic beneift; it will merely require a costly transfer payment."
In common economic terms, a rule that an actor must pay for unforeseeable harms will not affect the actor's choices about activities that impose risk. If we make him pay for unforeseeable injuries caused by his conduct, it will not make the world any safer or more efficient.
Although courts will find a way to avoid imposing liability for unforeseeable injuries, it does not follow that the converse is always true, that is, that a defendant must pay whenever he causes foreseeable harm.
Courts that deny recovery for such secondary economic losses cannot credibly do so based on lack of proximate cause. Generally, courts reason that the burden of liability for such secondary economic losses is too great.
Superseding cause: in a good many proximate cause cases, the defendant argues that, even if she was negligent, a later act supersedes her negligence and breaks the causal chain.
When the risk of criminal conduct is foreseeable, it will not cut off the liability of a defendant who negligently exposes the plaintiff to that risk.
It is frequently said that whether the defendant's negligence was a proximate cause of the plaintiff's injury is a question of fact for the jury.
Defense lawyers must win the proximate cause battle in front of the judge, by convincing her that as a matter of law, the defendant's act was not the proximate cuase of the plaintiff's injury. In many such cases, the judge will grant summary judgement for the defendant concluding as a matter of law that the plaintiff's injury was unforeseeable.
Torts Notes - Establishing Factual Cause
Sindell Approach: each manufacturer of a drug is liable as determined by the proportional share sold in the relevant market area. Does not solve case-in-fact problem. It asks who contributed to a general risk of injruy and distributes damages among those creators.
The "Market share approach" holds defendants liable for part of the plaintiff's damages in proportion to their market share.
Hymowitz decision is that it would be a windfall to producers if many produced substantially identical products that all posed the same risk, but plaintiff could not identify, precisely, which one produced the one that caused plaintiff's injuries.
Many courts have refused to adopt Sindell.
Loss-of-a-chance causation: cases where the chance of survival was adversely affected by tortious conduct. For instance, reduced from 75% chance of survival to 50% chance. Many courts rule that in this case, defendant would be responsible for 25% of wrongful death damages.
Causation: if all contributed to cause an indivisible harm (for instance, many products giving small exposure to asbestos, and asbestiosis results. No one can be proven to have done it, but likely that exposure to all sources did it), defendants are probably liable under a "but for" standard. If the courts use a substantial factor standard, the jury would find them all liable.
Res Judicata (a matter already judged): once a case is settled, it can't be re-opened due to future damages later down the road.
The "Market share approach" holds defendants liable for part of the plaintiff's damages in proportion to their market share.
Hymowitz decision is that it would be a windfall to producers if many produced substantially identical products that all posed the same risk, but plaintiff could not identify, precisely, which one produced the one that caused plaintiff's injuries.
Many courts have refused to adopt Sindell.
Loss-of-a-chance causation: cases where the chance of survival was adversely affected by tortious conduct. For instance, reduced from 75% chance of survival to 50% chance. Many courts rule that in this case, defendant would be responsible for 25% of wrongful death damages.
Causation: if all contributed to cause an indivisible harm (for instance, many products giving small exposure to asbestos, and asbestiosis results. No one can be proven to have done it, but likely that exposure to all sources did it), defendants are probably liable under a "but for" standard. If the courts use a substantial factor standard, the jury would find them all liable.
Res Judicata (a matter already judged): once a case is settled, it can't be re-opened due to future damages later down the road.
0L Year and The Start of My Last Hurrah!
At my age, I'm acutely aware that I don't have all the time in the world anymore. That's difficult for me since I was a kid who believed that everything was interesting. I always envied people who knew what they wanted to do in life. I remember a fellow student named Toby in the 8th grade who said he was going to be an architect. I thought that was amazing. How could he know that?
Me? Then and now, I could think of thousands of things that I could easily have spent my life doing. The list of things I would not want to do is probably shorter than the list of things I would want to do.
Being a computer programmer? Yeah, sounds good.
Musician? Guitar teacher / player? Study classical guitar, music theory and sight singing/ear training in college? That seems like it'd be awesome.
Army commando? Whoohoo!
Management in a big company? Count me in.
Entrepreneur? Naturally.
Ironman triathlete? Coolness!
Officer in the Navy? Can't think of anything better.
Those are just the things I've done that took up a substantial amount of time. Then, there are my casual hobbies: playing the piano, skiing, competitive marksmanship, scuba diving, etc.
Every moment of my life feels like a kid in a candy store looking at a nearly unlimited number of options, where the joy of being able to choose is always balanced out by the bittersweet realization that I can't pick everything.
Now, though, I'm in my mid-40s. I've clearly lost a step. I'm paunchy, balding and gray. My skin is starting to show the fatigue of over 4 decades of exposure to wind and sun.
Law school for me is probably it. I felt, after I finished my MBA, that I'd go back to school "someday". By the time I start in the fall, that'll represent a 14 year layoff.
My law career, if I am lucky enough to have one, will start when I'm about 50. At that point, I have 15, maybe 20 working years left. Not a lot of room to zig and zag at that point.
So, in all likelihood, this is one of the last, and probably the last major change I'll be making in my life as far as vocation goes.
It's also my very last, and perhaps best chance to do something really extraordinary. Getting a JD is an accomplishment and a half, but if I can do it with a high class rank, that really will be an accomplishment that I can be proud of, that very few others can say they did.
In a lot of ways, I'm a much better student now than I was when I was younger.
So many things in life happen backwards. The time to be an entrepreneur, if you ask me, is when you're very young. You can apply yourself fully. You have plenty of time to recover if you crash and burn. Me? I started my first serious business when I was 39.
The time to make a lot of money is when you're starting out in life. You need to buy a house, start a family, get a car, get furniture, pay off student loans or pay for school. Most people earn a lot of money late in life, but not so much early on. I ate a lot of white rice when my career was starting out.
I was a terrible student, but for the most part, the older I got, the better I got at it. By the time I was going for my master's degree, I had discovered the value of attending class, keeping current on assignments and turning things in on time. The 3.5 I got at CWRU's Weatherhead School of Management came with considerably less angst than the 3.0 I got on all my undergraduate coursework.
I honestly don't think there's another time in my life where I would be better suited to do this. Provided my business stays profitable (a big "if" these days), I'll be in a great position to be a full-time student. I'm more focused and disciplined.
For the longest time, I've felt like I needed to go back to school. It just took me a long, long time to figure out for what, and why. Now, I know. It's time to go.
It just dawned on me this morning as I was exchanging forum posts with a law school student, that I described my activities as "0L".
In law school, a first year student is called a 1L. The guys in their 3rd and final year are called 3Ls. For some unexplained reason, the guys in their second year are called "lord high majesty"... go figure. Okay, not really, they're called 2Ls.
That's not so surprising. I mean, you have to call them something. There aren't four years, so you can't really call them "Law Freshmen" or whatnot. I guess somebody could have, sometime in the past, started calling them "Bob" or "Fern", but nobody did.
To me, the funny part is that you can say "0L" and people know exactly what you mean: somebody who will be starting law school next year.
Really, in a way, you're in law school before you even submit your application. 0Ls are just as likely to influence their careers, and perhaps moreso, than 3Ls. It's like, "not a law student" is a category of law student.
One of the concepts I got introduced to early on is that law school is a five year process. You have the three years of law school, itself. You have the year afterwards where you study for the Bar Exam and have to wait months for the results.
Then, there's 0L year. For most law students, that means taking the LSAT, applying to law schools, sifting through acceptances, rejections and figuring out where you're going to go.
However, I read a very convincing blog post by a guy who did very well his 1L year and he recommended the stuff that I summarized in this post:
http://lawgoround.blogspot.com/2011/03/theres-method-to-0l-madness.html
To me, preparing, academically, for 0L is about as natural and obvious as showing up for classes during 1L. The funny thing is, this seems to be totally unheard-of outside of law school. Nobody in business school started mastering the material a year before. Even med school students don't specifically start studying for med school.
The 0L prep is not only wierd outside the law school community, but it is so common within it that when you talk about the things you're doing in your 0L year, the very concept requires no explanation.
Funny to think that all the details are now in place. I think I started to entertain this idea about six months ago. In the mean time, the LSAT was taken, I was accepted to the only school I really wanted to go to, and I got a scholarship. I'm ready to go. Mostly, I've accepted that, but parts of me are still waiting for some other sign that I'll actually be doing this.
Classes start in August. 4 more months.
Me? Then and now, I could think of thousands of things that I could easily have spent my life doing. The list of things I would not want to do is probably shorter than the list of things I would want to do.
Being a computer programmer? Yeah, sounds good.
Musician? Guitar teacher / player? Study classical guitar, music theory and sight singing/ear training in college? That seems like it'd be awesome.
Army commando? Whoohoo!
Management in a big company? Count me in.
Entrepreneur? Naturally.
Ironman triathlete? Coolness!
Officer in the Navy? Can't think of anything better.
Those are just the things I've done that took up a substantial amount of time. Then, there are my casual hobbies: playing the piano, skiing, competitive marksmanship, scuba diving, etc.
Every moment of my life feels like a kid in a candy store looking at a nearly unlimited number of options, where the joy of being able to choose is always balanced out by the bittersweet realization that I can't pick everything.
Now, though, I'm in my mid-40s. I've clearly lost a step. I'm paunchy, balding and gray. My skin is starting to show the fatigue of over 4 decades of exposure to wind and sun.
Law school for me is probably it. I felt, after I finished my MBA, that I'd go back to school "someday". By the time I start in the fall, that'll represent a 14 year layoff.
My law career, if I am lucky enough to have one, will start when I'm about 50. At that point, I have 15, maybe 20 working years left. Not a lot of room to zig and zag at that point.
So, in all likelihood, this is one of the last, and probably the last major change I'll be making in my life as far as vocation goes.
It's also my very last, and perhaps best chance to do something really extraordinary. Getting a JD is an accomplishment and a half, but if I can do it with a high class rank, that really will be an accomplishment that I can be proud of, that very few others can say they did.
In a lot of ways, I'm a much better student now than I was when I was younger.
So many things in life happen backwards. The time to be an entrepreneur, if you ask me, is when you're very young. You can apply yourself fully. You have plenty of time to recover if you crash and burn. Me? I started my first serious business when I was 39.
The time to make a lot of money is when you're starting out in life. You need to buy a house, start a family, get a car, get furniture, pay off student loans or pay for school. Most people earn a lot of money late in life, but not so much early on. I ate a lot of white rice when my career was starting out.
I was a terrible student, but for the most part, the older I got, the better I got at it. By the time I was going for my master's degree, I had discovered the value of attending class, keeping current on assignments and turning things in on time. The 3.5 I got at CWRU's Weatherhead School of Management came with considerably less angst than the 3.0 I got on all my undergraduate coursework.
I honestly don't think there's another time in my life where I would be better suited to do this. Provided my business stays profitable (a big "if" these days), I'll be in a great position to be a full-time student. I'm more focused and disciplined.
For the longest time, I've felt like I needed to go back to school. It just took me a long, long time to figure out for what, and why. Now, I know. It's time to go.
It just dawned on me this morning as I was exchanging forum posts with a law school student, that I described my activities as "0L".
In law school, a first year student is called a 1L. The guys in their 3rd and final year are called 3Ls. For some unexplained reason, the guys in their second year are called "lord high majesty"... go figure. Okay, not really, they're called 2Ls.
That's not so surprising. I mean, you have to call them something. There aren't four years, so you can't really call them "Law Freshmen" or whatnot. I guess somebody could have, sometime in the past, started calling them "Bob" or "Fern", but nobody did.
To me, the funny part is that you can say "0L" and people know exactly what you mean: somebody who will be starting law school next year.
Really, in a way, you're in law school before you even submit your application. 0Ls are just as likely to influence their careers, and perhaps moreso, than 3Ls. It's like, "not a law student" is a category of law student.
One of the concepts I got introduced to early on is that law school is a five year process. You have the three years of law school, itself. You have the year afterwards where you study for the Bar Exam and have to wait months for the results.
Then, there's 0L year. For most law students, that means taking the LSAT, applying to law schools, sifting through acceptances, rejections and figuring out where you're going to go.
However, I read a very convincing blog post by a guy who did very well his 1L year and he recommended the stuff that I summarized in this post:
http://lawgoround.blogspot.com/2011/03/theres-method-to-0l-madness.html
To me, preparing, academically, for 0L is about as natural and obvious as showing up for classes during 1L. The funny thing is, this seems to be totally unheard-of outside of law school. Nobody in business school started mastering the material a year before. Even med school students don't specifically start studying for med school.
The 0L prep is not only wierd outside the law school community, but it is so common within it that when you talk about the things you're doing in your 0L year, the very concept requires no explanation.
Funny to think that all the details are now in place. I think I started to entertain this idea about six months ago. In the mean time, the LSAT was taken, I was accepted to the only school I really wanted to go to, and I got a scholarship. I'm ready to go. Mostly, I've accepted that, but parts of me are still waiting for some other sign that I'll actually be doing this.
Classes start in August. 4 more months.
Sunday, April 3, 2011
Torts Notes - Determining Cause In Fact
Elements of a negligence action: duty, breach, causation, and damages.
Defendant will be held liable only for those injuries he actually caused.
There are two causation requirements: causation in fact and proximate causation/legal causation.
Causation in fact requires that the defendant's act contributed to producing the plaintiff's injury.
Negligence that dien't cause the injury is "negligence in the air" or negligence irrelevant to the injury and is thus not actionable.
The "but for" test is applied to determine whether the defendant's act caused the plaintiff's harm. "if the event would not have happened but for that conduct. Conversely, that the defendant's conduct is not a cause of the event if the event would have occurred without it.
defendant's act mus be a "sine qua non" of the plaintiff's injury.
Sine qua non: without which it is not; an indipsensable requisite
It is not a defense for one negligent actor that there was another negligent actor that caused the accident, too. There is no requirement that the defendant's act be the sole "but for" cause of the injury, only that it be a "but for" cause.
Sufficient but necessary dilemma: when either of two or more defendant's acts would have caused the plaintiff's injury. The defendant's act was sufficient but not necessary to cause the injury.
a significant factor test is used to deterimine which acts were significant factors in the injury.
If multiple acts, each of which alone would have been a factual cause of the physical harm at the same time, each act is regarded as a factual cause of the harm.
Summers v. Tice stands for the proposition that where two or more defendants commit substantially similar negligent acts, one of which caused the plaintiff's injury, the burden of proof shifts to each defendant to show that he did not cause the harm.
If both could have caused the injury and one of them clearly did, but they can't prove which one, the court will find for the plaintiff against all defendants. The burden is on the defendants to prove who caused or didn't cause the injury.
In a tort case, the plaintiff must prove that the defendant's tortious conduct created the injury, not just that the defendant's act caused it.
Defendant will be held liable only for those injuries he actually caused.
There are two causation requirements: causation in fact and proximate causation/legal causation.
Causation in fact requires that the defendant's act contributed to producing the plaintiff's injury.
Negligence that dien't cause the injury is "negligence in the air" or negligence irrelevant to the injury and is thus not actionable.
The "but for" test is applied to determine whether the defendant's act caused the plaintiff's harm. "if the event would not have happened but for that conduct. Conversely, that the defendant's conduct is not a cause of the event if the event would have occurred without it.
defendant's act mus be a "sine qua non" of the plaintiff's injury.
Sine qua non: without which it is not; an indipsensable requisite
It is not a defense for one negligent actor that there was another negligent actor that caused the accident, too. There is no requirement that the defendant's act be the sole "but for" cause of the injury, only that it be a "but for" cause.
Sufficient but necessary dilemma: when either of two or more defendant's acts would have caused the plaintiff's injury. The defendant's act was sufficient but not necessary to cause the injury.
a significant factor test is used to deterimine which acts were significant factors in the injury.
If multiple acts, each of which alone would have been a factual cause of the physical harm at the same time, each act is regarded as a factual cause of the harm.
Summers v. Tice stands for the proposition that where two or more defendants commit substantially similar negligent acts, one of which caused the plaintiff's injury, the burden of proof shifts to each defendant to show that he did not cause the harm.
If both could have caused the injury and one of them clearly did, but they can't prove which one, the court will find for the plaintiff against all defendants. The burden is on the defendants to prove who caused or didn't cause the injury.
In a tort case, the plaintiff must prove that the defendant's tortious conduct created the injury, not just that the defendant's act caused it.
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