Intentional Torts

ACTUAL CAUSATION    Actual causation = causation in fact Whether the activity engaged in by ∆ is inherently capable of causing the sort of harm suffered by π “But for ∆ having acted at all, would π nevertheless have suffered the same harm?” o A negative answer, “No π would not have” establishes that ∆’s conduct was an actual cause of the harm o An affirmative answer establishes that ∆’s conduct was not an actual cause  Role of causation requirement: 1. Helps sort out worthy cases from unworthy ones 2. Aids plaintiffs in recovering the full amount of damages 3. Reflects the believe that deterrence should be proportional to the harm cause 4. Reflects the belief that practical limits be placed on an actor’s exposure to liability  2 components of actual causation: 1. General causation - Whether the activity allegedly engaged in by ∆ is inherently capable of causing the sort of harm suffered by π 2. Specific causation - Was the defendant engaged in that specific activity?  Specific Causation always needs to be asked “But-For” Test    Sine qua non or but-for test – had ∆ not so conducted herself, π’s injuries would not have resulted o Applies to omissions as well as acts (!) R3: a “but for” cause is always a factual cause Extremely broad, but applied to rule out concurrent causes: o If 2 events concur to cause harm, and either one would have been sufficient to cause substantially the same harm without the other one  each of these concurring events is a cause of the injury, insofar as it would have been sufficient to bring that injury about (R2 §432(2)) Joint Causes – “Substantial Factor” Test   Where several causes combine to bring about injury – and 1 alone would have been sufficient to cause the injury – it is sufficient if ∆’s conduct was a “substantial factor” in causing the injury R3 uses “sufficient causal set” instead of “substantial factor” but applies the same rule (§27) 18    Applies only when each of the concurrent causes would be sufficient  if ∆’s conduct would not have been sufficient but the other concurrent event would have then ∆ will not be liable Also, applies only when the concurrent causes produce a single, indivisible harm o If the damage caused by 1 concurrent cause may be separated from that caused by the other, the person causing the former will be liable only for that harm Does not apply if there is only 1 π and 1 ∆  Evidence of past causation can prove specific present causation if the instrumentality is in the same condition (Hoyt v. Jeffers) o Pattern of negligence, reasonable person would infer such o A jury may consider and base it’s decision on circumstantial evidence of causation when no direct evidence is introduced o Circumstantial evidence not seen as worse than direct evidence because witnesses can also be untrustworthy  A proposition is proved by a preponderance of the evidence if it is made to appear more probable in the sense that the fact finder actually believes in its truth, notwithstanding any doubts the fact finder may still have (Smith v. Rapid Transit Inc.) o Specific causation o It is not enough that mathematically the chances somewhat favor a proposition to be prove  it remains a matter of conjecture o Needs to be a direct link between ∆ and cause of accident (at least reasonably certain) Alternative Liability       Alternate causes approach (alternative liability) – both acted negligently but only 1 caused the harm, don’t know who o π bears burden of proving that ∆ actually caused his injury (just like bearing the burden of proving his prima facie case)  preponderance of evidence standard o Burden of proof then shifts to ∆s who must each shoe that his negligence is not the actual cause π does not have to prove with absolute certainty “but-for” cause  all he has to do is show that it is probable that injury would not have occurred without ∆’s act o Jury is permitted to make common-sense inferences that the negligence caused the damages, such as long as that inference is not unreasonable Expert testimony or scientific evidence may be necessary to prove actual causation by ∆ Jointly Liable: can be joined in a single suit even though they don’t need to be Severally Liable: each liable in full for the π’s damages although the π is entitled to only one total recovery Joint and Severally Liable: ∆s acted in concert to cause the harm and where the ∆s acted independently but caused indivisible harm o Also if the ∆s act independently, each actually causing harm to π but under circumstances in which it is impossible to allocate the harm to either ∆’s conduct 19  When two or more persons by their acts are possibly the sole cause of a harm, and π has introduced evidence that the one of the two persons, then the ∆ has the burden of proving that the other person was the sole cause of harm (Summers v. Tice) o The joint tortfeasor is responsible for the whole damage unless he can prove he wasn’t responsible…jointly and severally liable o Both failed to exercise reasonable care and thus both will be held liable even though only one caused the harm  Where a π receives unusual injuries while unconscious and in the course of medical treatment, all those ∆s who had any control over his body or the instrumentalities that might have caused the injuries may be held liable in an action based on res ipsa loquitur (Ybarra v. Spangard) o Places on ∆s the burden of initial explanation  helps avoid conspiracy of silence; each had a duty to not harm π o Masters (employers) can be held liable for their servants (employees) wrongful conduct as long as he was acting in the scope of employment and it’s not intentional…spreads loss on the one who can bear it and cause them to exercise care in hiring Market Share Theory   Alternative liability extended to cases with 3 or more parties Market share theory of liability – if π cannot prove which of the parties caused the injury, but can show that all were negligent, the court may impose upon each ∆ the burden of proving that he did not cause the injury  Especially likely to occur in cases of product liability (where π was injured by a long-ago usage of a product she can only identify by type, not brand name)  If a given ∆ is unable to prove that he did not cause the injury, the court may require him to pay that percentage of π’s injuries which ∆’s sales of the product bore to the total market sales of that type of product  DES case – Sindell v. Abbott Labs Joint Tortfeasors: Concurrent and Successive Causation    Concurrent Causation – when two parties are negligent and their actions combine to cause an indivisible harm, they are both jointly and severally liable for the entire harm; each of these concurring events is a cause of the injury, insofar as it would have been sufficient to bring that injury about Successive Causation - If a negligent act causes an injury, and a successive occurrence comes to pass which would have caused the same injury later, recovery is not limited to just the difference between the two, but the full damages that would’ve resulted (if apportionment isn’t feasible) One can be held liable for negligence when it is possible that the decedent would have died from a different cause (Dillon v. Twin State Gas & Electric Co.) 20 o o o  Successive causation π can recover only the difference between his life prospects were had he not grabbed the wire  nothing because he died or limited life from harm caused by falling Apportionment is feasible When two or more human entities both proximately cause injury to a plaintiff, and only one is identified, the plaintiff may recover the full amount of damages suffered from the one known wrongdoer (Kingston v. Chicago & N.W. Ry.) o Where two causes attributable to the negligence of a responsible person concur in producing an injury to another, either of which causes would produce it regardless of the other, each is liable for the entirety of the fire  here only 1 fire’s source is identifiable, though the second one wasn’t caused by an act of nature o Concurrent causation o If harm is indivisible, then once ∆ is liable at all, he is liable for all the harm (joint tortfeasor) o Substantial factor in producing the result Vicarious Liability      Vicarious Liability: when a person is held liable for acts that the did not cause or held liable for conduct of another o Masters are vicariously liable for the torts committed while the latter are acting within the scope of their employment o Assume that causal connection between actor’s wrongful conduct and π’s harm has been established, ask whether liability can be extended beyond the act to include persons who have not committed a tortious act, but on whose behalf the wrongdoer acted Primary focus: master’s liability for their servants o Masters held liable for the conduct of others under the doctrine of respondeat superior (“let the master answer”) o Regardless of whether master is liable, servant will be held liable too (π’s p.o.v.: master and servant jointly and severally liable)  master has a right of full indemnification against the servant For vicarious liability to apply: servant’s conduct must be tortious, master must control (or have the right to control) the servant’s harmful behavior  but master need not be shown to have been at fault; merely empowering the servant with the means and opportunity to cause harm suffices o Servant need not receive a wage in order to bind the master vicariously; someone can be the servant of another even if he is performing services out of a sense of friendship (but most servants are employees) o Vicarious liability will not apply unless π also demonstrates that servant was acting within the scope of employment Masters held liable on a deep pocket theory – masters held liable because they tend to be wealthier than servants and are more easily able to bear the costs of all accidents Independent contractor – one who contracts with another person to do something but who is not controlled by the other person nor subject to the other person’s right to control 21    o Employer is not vicariously liable for independent contractors’ actions o What to consider when deciding whether someone is a servant or independent contractor: whether it’s a distinct operation of business, the skill required in the particular occupation, length of employment, method of payment (for time or for a job), whether parties believe they have master-servant relationship 3 exceptions to non-liability for independent contractors: 1. Employer is negligent in selecting, instructing, or supervising the independent contractor (employer is not held vicariously liable, but for its own acts of negligence) 2. Duty of the employer, arising out of some relation to the public or particular π, is non-delegable 3. Work is specifically, peculiarly, or inherently dangerous Servant need not to be performing precisely the activity for which he was hires in order to expose master to liability (Riviello v. Waldron) Courts can also bypass master vicarious liability and find the master directly liable for its own negligence in hiring, supervising, or monitoring the servant (Avitia v. US) Joint Enterprise    Joint enterprise/venture – two or more people joining together in an enterprise in which each has an equal right to control the other’s conduct 1. An agreement (express or implied) to carry on an enterprise 2. Intent to be associated as joint ventures 3. Joint interest (shown by contributions of the parties to the enterprise) 4. Degree of joint proprietorship 5. Provisions for sharing of profits and losses Negligent conduct of every participant is imputed to every other participant (assuming that negligent acts have been committed in the course of the enterprise) Also applied in informal, non-business contexts o Car crashes – π tries to hold all passengers of other car jointly responsible for driver’s negligence Family Purpose Doctrine   Family purpose doctrine imposes liability upon the owner of the family car for the harm negligently caused to others by a family member while operating the car on a family purpose o Domestic equivalent of master-servant rule Elements: 1. Car ownership by ∆ sought to be vicariously liable 2. Designation of the car as a family car 3. Status of the driver as a family member 4. Use of car for a family purpose 5. Use of the car with owner’s permission 22