Studies in American Tort Law Fifth Edition Vincent R. Johnson 2015-16 Copyright © 2013 Vincent R. Johnson All Rights Reserved

Focus: Rules, Process, Policy Course Goals Knowledge of substantive rules and acquaintance with the legal topography Facility with the interplay of law and fact Understanding of how tort law changes Appreciation of the relationship between common law and statutes Focus: Rules, Process, Policy Copyright © 2013 Vincent R. Johnson All Rights Reserved

Preliminary Observations Largely a common law subject Concerned with the costs of accidents – past and future Categories: Intentional injury Failure to exercise care Encompassing recklessness and negligence Strict liability Remedies: Damages, injunctions, restitution, self-help Realities: Settlement, cross-claims, contingent fees Copyright © 2013 Vincent R. Johnson All Rights Reserved

Competing Public Policies Base liability on fault Limit liability in proportion to fault Deter accidents Spread losses broadly Shift losses to deep pockets Reconcile burdens with benefits Foster predictability Facilitate progress and economic growth Promote administrative convenience and efficiency Discourage the waste of resources Accord due deference to co-equal branches Fully compensate victims Copyright © 2013 Vincent R. Johnson All Rights Reserved

Bases of Liability Liability based on Fault: Liability without Fault: Intentional Torts Recklessness Negligence Liability without Fault: Strict Liability Copyright © 2013 Vincent R. Johnson All Rights Reserved

Liability Based on Fault Intentional Injury: Purpose – subjective desire to cause a forbidden result Knowledge – “substantial certainty” that a forbidden result will occur Recklessness: Subjectively defined: conscious disregard of a serious risk Objectively defined: risk totally disproportionate to utility Negligence: Conduct posing an unreasonable risk of harm Copyright © 2013 Vincent R. Johnson All Rights Reserved

Intent Two Varieties: Purpose – subjective desire Knowledge – “substantial certainty” Either is sufficient to establish an intentional tort. Copyright © 2013 Vincent R. Johnson All Rights Reserved

Carelessness Two Varieties: Negligence – ordinary lack of care Recklessness – extreme lack of care In some states, recklessness is called “gross negligence.” Copyright © 2013 Vincent R. Johnson All Rights Reserved

Strict Liability What Makes Liability Strict? Weakening or Eliminating the Usual Requirements of “Fault,” Namely Foreseeability or Blameworthy Conduct There are Different Varieties of Strict Liability Some a More “Strict” Than Others Copyright © 2013 Vincent R. Johnson All Rights Reserved

Consequences of Classification: The classification of a tort as intentional, reckless, negligent, or strict liability has a bearing on: Scope of Liability Punitive Damages Defenses Respondeat Superior Insurance Immunities Worker’s Compensation Statutes of Limitation Bankruptcy Copyright © 2013 Vincent R. Johnson All Rights Reserved

Contributory Negligence and Assumption of the Risk Failure to exercise reasonable care on one’s own behalf Assumption of the Risk: Voluntary confrontation of a Subjectively appreciated danger, With no expectation that defendant will exercise care Copyright © 2013 Vincent R. Johnson All Rights Reserved

Effect of Contributory Negligence: At Common Law: CN could be raised as a defense only in a negligence action and was always a 100% bar to liability. Under Comparative Negligence: CN is no longer always a 100% bar. Under Comparative Fault: CN is no longer always a 100% bar and may be raised in actions other than negligence, except, typically, suits based on intentional wrongdoing. Copyright © 2013 Vincent R. Johnson All Rights Reserved

Comparative Principles Two Varieties Pure: P’s Recovery is Reduced by P’s Percentage of Negligence or Fault Modified: If P is < 50%: Reduced Recovery If P is > 50%: Zero Recovery 50-50 Case: Depends on Phrasing of State Law Copyright © 2013 Vincent R. Johnson All Rights Reserved

Effect of Assumption of the Risk: At Common Law: AR (or its counterpart, consent) could be raised in any action and was a 100% bar to liability. Under Comparative Principles: AR is sometimes a 100% bar to liability and sometimes only reduces recovery (because in those cases it is “merged” with comparative negligence or comparative fault). Copyright © 2013 Vincent R. Johnson All Rights Reserved

Liability Insurance Not all defendants have it #15 Liability Insurance Not all defendants have it Ordinarily cannot be mentioned to the jury Coverage is limited in amount Certain types of harm are excluded May cover persons other than the purchaser May include a duty to defend Some policies are self-liquidating Insurer has right to accept or reject settlement offers Insurer must exercise reasonable care in settling Copyright © 2013 Vincent R. Johnson All Rights Reserved 15

Insurance Hypothetical #16 Insurance Hypothetical P is injured in “slip and fall” D has $10,000 of insurance P demands $9500 Jury is likely to find P contributorily negligent Jury rejects contributory negligence argument and finds D liable for $20,000 Is the insurer liable in excess of policy limits? Copyright © 2013 Vincent R. Johnson All Rights Reserved 16