1. Textbook Chapter 7- Introduction to Tort Law

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2. Instructor note 1

· IT IS IMPORTANT TO BE VERY PRECISE WHEN DISCUSSING LEGAL DEFENSES. 

· PLEASE NOTE:  THE LEGAL DEFENSES TO NEGLIGENCE ARE ASSUMPTION OF RISK, COMPARATIVE NEGLIGENCE if permitted as a defense in the state in question)  OR CONTRIBUTORY NEGIGENCE (if permitted as a defense in the state in question).

· IT IS IMPORTANT  TO REVIEW ALL THE INFO BELOW.  Negligence law is complex and this information is aimed at helping you sort it out and understand and correctly analyze negligence situations. 

· Please review the Summary Comments modules in week 1, just below the week 1 module in Content.  It is very important as a guide to improving work each week.

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· There is a lot of info and material to cover in this class.  Please read all the assigned materials and use them as resources for completing assignments. Please do not use the internet for searching other materials or legal cases.  Much of the internet legal info is inaccurate, outdated and/or misleading and confusing.  This is particularly true of legal cases. A few cases are used as examples in assigned materials, but they are clearly explained and thus, can be useful.

· When creating analyses for Discussion and Learning Activities, identify the precise issue(s) on which the assignment is bases, and the precise question(s) being asked.  Respond to the precise issues and questions.  It is important to be careful to include irrelevant info that can weaken an argument and likely create an inaccurate analysis.  Resist telling the reader everything you have read/learned; just focus on the relevant information that directly an clearly supports your conclusions. 

· For example:

· Discussion 1 in week 1 focused on state jurisdiction in the case between ABC and Clean and whether and why the VA court could have jurisdiction in the case.  This was a case involving two states and diversity of citizenship between the parties.  The precise issue was whether the VA courts could have personal jurisdiction over both parties and if so, why.  It was not an issue of federal  jurisdiction.  To discuss federal jurisdiction is irrelevant and can confuse the reader.

· Subject matter jurisdiction is usually automatic as each case is presumably and typically filed in the correct court or it would be automatically moved to the proper court with subject matter jurisdiction before personal jurisdiction would even be considered.   It is ok to explain subject matter jurisdiction it in the Learning Activity in week 1, but actually not necessary as the more important and precise issue was the VA court obtaining personal jurisdiction over both parties.

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· Negligence Information – ULTRA IMPORTANT

· Contributory and comparative negligence are discussed in some of the assigned readings, and it is easy to fall into a "trap" and get off track on these concepts.   To avoid the "trap", digest the following.

· 1.  Contributory and comparative negligence are simply defenses a defendant in a negligence case MIGHT raise IF either is permitted as  legal defense in the state in which a case is heard.  . 

· For example:

· Consider that Windows R Us is sued for negligence by Joe who claims Windows negligently installed a new window in his house that fell out when he tried to open it and severely cut his arm.  Windows might defend itself by claiming that Joe was also careless (negligent) and partly responsible for the injury when he hammered on the window to get it open.  IF comparative negligence is allowed as a defense in the jurisdiction in which the case is heard, then Windows can raise this defense.  It might or might not be successful, but Windows can raise it.  If the accident is found to be partly due to Joe's hammering the window, then the court will determine to what % Windows is responsible for the accident /injury and to what % Joe is responsible.  Assume Windows is found to be 30% responsible for the accident/injury and Joe 70% responsible.  Windows will pay 30% of the total expenses/compensation damages in the case, Joe will pay for the other 70% of the expenses.

· 2.  Contributory and comparative negligence are NOT permitted to be used as a defense in all jurisdictions (states).  Only 5 states permit contributory negligence, so it cannot be raised as a defense in most states.  Because contributory negligence is a common law concept that if permitted as a defense in a state, is considered unfair to an injured plaintiff because it bars all recovery by the injured plaintiff.  So, if a plaintiff is ruled to have contributed to ANY degree to the injury, the plaintiff cannot recover any damages for the injury.  

· For example, in Joe's scenario above, if contributory negligence had been permitted as a defense and Joe was found to be even 1% negligent, he would not be able to cover ANY expenses/compensation damages.  

· If a class question asks you to describe all possible legal defenses in negligence, it is appropriate to explain assumption of risk and contributory and comparative negligence. However, in discussing contributory and comparative negligence as defenses, it is necessary to explain they are not permitted in all states and thus cannot be raised as defenses unless one or the other is permitted in a state.  Assumption of risk is a legal defense that can be raised in all states. 

· Please note that defendants can raise permitted legal defenses, but it is not guaranteed that any defense will be successful.

· If contributory negligence is not permitted as a defense in a state, it cannot ever be raised as a defense by a defendant – period. 

· Comparative negligence is permitted in many states, but not all states.   Unless a state permits it as a defense, it cannot ever be raised as a defense by a defendant – period. 

· Neither contributory Nor comparative negligence can be raised in ANY case unless it is clear that one or the other is permitted in as state.  IN OUR ASSIGNMENTS, NEITHER CONTRIBUTORY NOR COMPARATIVE NEGLIGENCE CAN BE RAISED AS A DEFENSE UNLESS THE FACTS WE ARE GIVEN TELLS US ONE OR THE OTHER IS PERMITTED IN THE STATE.

· 3.  Please do not, do not, do not mention contributory or comparative negligence in an analysis UNLESS the scenario facts tell you that one or the other is permitted as a defense in the jurisdiction involved in the scenario.  To discuss either defense when the facts have not told you one or the other is permitted in the jurisdiction muddies the analysis, is irrelevant and can weaken the analysis.

· 4.  Contributory and comparative negligence are NOT both permitted in any state.  Each state permits one or the other, or neither. 

· If neither is permitted, a defendant has other legal defenses to raise.

3. Instructor note 2 (Negligence)

· Additional Comments on Negligence:

· Negligence is such an important area in biz law, but complex and more difficult that it appears on its face – negligence and product liability are the most difficult areas of law we cover.  Tort law can be confusing and cause you to get mired in the abyss of torts.  Please follow my guidance for analysis and you will stay out of the abyss (not meaning to sound arrogant, but this comes from decades of teaching biz law) and it is my job to keep you from falling into the abyss.  :-)

· Here goes…

· Negligence cases should be analyzed as follows, and in this order:

· Examine the 4 elements to Negligence in order:  duty, breach, causation, harm.  Let's look at them individually.

· 1.  duty:   Is there a duty – under the totality of circumstances – to the injured party (this is important)? Consider the different levels of duty, i.e., common carriers have a heightened duty of care, duty to invitees is greater than the duty to guests, etc. Review this info in the book – the level of duty of care owed is essential to the analysis.  

· If no duty exists, examination of elements over, no case.  If duty exists, go on to 2nd element, breach of the duty.

· As an aside:   For example, there is no duty to rescue (no, there isn’t, contrary to popular myth), so assume Joe is walking down the street, sees that little Susie has fallen off her bike and her leg is bleeding.  Does Joe have a duty to help Susie under the circumstances?  NO, end of examination, no case. If Joe is a physician, does that create a duty under these circumstances? NO.  Suppose no one comes along for an hour to help Susie and the bleeding and injury is worsened by the fact that no one stopped to help.  Is Joe liable, did he have a duty to help?  NO, end of examination, no case.   

· I know what you are probably thinking: we have Good Samaritan laws in each state to protect from liability people who choose to help those in peril, but Good Sam laws do not create a duty to rescue. Yes, ethical arguments can be made to help others, but there is no general legal duty.

· There are circumstances where there is a duty to rescue.  For example an ON-duty police officer has a duty to help in most circumstances, a physician ON duty in an ER has a duty in most circumstances, etc. 

· 2.  breach: If a duty exists, then what constitutes being as "careful" as possible – under the totality of circumstances? Was the party as careful as possible – under the totality of the circumstances?  Is it reasonably foreseeable, under the circumstances, that if one acts carelessly an accident could occur?

· If so, then no breach, examination of elements over, no case.  If the party was unduly careless – under the totality of the circumstances – then there is a breach, proceed to the next element.  .

· 3.  causation:  Here it gets really tricky.  If there is duty, a breach of duty by careless conduct, then examine the precise careless conduct that occurred viz a viz the harm/injury that occurred.   Is this careless conduct the DIRECT cause (synonymous with actual cause and proximate cause)of harm/injury that occurred – under the totality of the circumstances?  AND, was it the direct cause of the type of injury that occurred to the specific plaintiff?  Was it reasonably foreseeable – under the totality of circumstances – that if the party acted carelessly in the specific manner he/she acted, that a specific harm/injury is likely to occur, and to a specific plaintiff who was injured?   IF so, there is causation, proceed to final element of harm.

· If not, then no causation exists, examination of elements over, no case. 

· A party can have duty, breach that duty by acting carelessly, but the careless conduct MAY NOT be the direct cause of the harm that occurs; the careless conduct MAY NOT be reasonably foreseeable to cause the type of harm that occurred or to the specific party that was injured.   If this is true, then no causation, examination of elements over, no case.

· Please forget the phrase, “but for”, take it out of your vocabulary.  You don’t need it to analyze a negligence case and it is more confusing than helpful, particularly in res ipsa loquitor cases and negligence per se cases (more on these later).

· 4.  harm: If there is duty, breach of duty and causation, is there actual harm/injury to person or property? If so, likely there is a valid case, and off to court we go with the injured party seeking damages.

· If there is no actual harm/injury, then examination of elements over, no case.  There MUST be harm/injury to proceed to court in a negligence case.  People often have a duty to be careful, and act carelessly, but no harm results, thus no case.  For example, people frequently drive over the speed limit but no harm occurs, thus no case.

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· This is the way to analyze negligence claims.  Notice how I have inserted direct/actual/proximate cause into causation.  Note that “totality of circumstances” is included in each element (essential to examine ALL the circumstances – negligence does not occur in a vacuum).  Note where foreseeability fits into the analysis:  it means foreseeability of the type of harm/injury that occurred as the result of the specific careless conduct, and it refers to foreseeability of the specific plaintiff who was injured by the specific careless conduct.

· Example Analysis:  Brakes, Inc fixes A’s car brakes but does so incorrectly so they are likely to fail.  Neither party is aware of this, so A leaves with the supposedly repaired car.  A is driving carefully (not negligently) down the city street when A hits the brake at a stop sign, but the brakes fail and A hits a tree.  A’s car is damaged and A has a broken arm.  A sues Brakes for negligence.  Is Brakes liable?

· Go through the analysis:

· duty:  Does Brakes have a legal duty to A to repair A’s brakes carefully, under the circumstances?  Absolutely, and a heightened one:  A is an invitee viz a viz Brakes.

· breach:  Did Brakes breach the duty by acting carelessly under the circumstances?  Is it reasonably foreseeable that if Brakes acts carelessly/negligently that an accident could occur?  Absolutely, Brakes was careless in repairing the brakes – remember negligence involves careless accidents with NO INTENT to be careless or cause harm.

· causation:  was the careless conduct (repairing the brakes incorrectly/carelessly) under the circumstances the direct cause of the accident (that is, the brakes failing and causing A to hit a tree?) that occurred?  Absolutely.  Is it reasonably foreseeable that if you are careless in repairing brakes that the brakes may fail and an accident is likely to occur with the car?  Absolutely.  Is it reasonably foreseeable that the type of accident (brakes failing, car crashing) that occurred could result from careless brake repair?  Absolutely.  Is it reasonably foreseeable that the specific plaintiff (the driver of the car) could be injured as a result of the faulty brake repair?  Absolutely.

· harm:  did actual harm occur from the breach of duty/careless conduct?  Absolutely:  harm to the car (personal property) and physical injury to A.

· Off to court we go, A sues for compensatory damages for harm to the car and for medical expenses for his arm injury.  Easy case, A wins.

· Example 2 Analysis:  Let’s consider a slightly different case.

· Brakes, Inc fixes A’s car brakes but does so incorrectly so they are likely to fail.  Neither party is aware of this, so A leaves with the supposedly repaired car.  A is driving carefully (not negligently) down the city street when  B runs a stop sign, hits A’s car causing A’s car to skid; A hits the brakes but they fail and A hits a tree.  A’s car is damaged and A has a broken arm.  A sues B for negligence and damage to his car and arm.  Is B liable?

· duty.  Does B have a duty to drive carefully, not negligently, under the circumstances (on a public street)? Absolutely.

· breach:  Was the careless conduct of running a stop sign, a breach of duty to drive carefully, under the circumstances? Is it reasonably foreseeable that if B runs a stop sign an accident could occur?  Absolutely.

· causation:  Was the careless conduct of running a stop sign the direct cause of the accident that occurred (that is, A’s hitting a tree)?  Absolutely.  (No, the faulty brakes were not the DIRECT cause of A’s hitting the tree; the direct cause was B running the stop sign).  Was it reasonably foreseeable that if B runs a stop sign an auto accident is likely to occur and harm/injury likely to occur to those involved in the accident, i.e, the drivers of the cars?  Absolutely.

· Don’t be misled; the direct, foreseeable cause of the accident that occurred is not the failure of the brakes. Just because Brakes repaired A’s brakes carelessly, it is not foreseeable that B will run a stop sign causing A to hit a tree, etc.  This scenario fails for breach and causation.

· 4.  harm:  Did harm occur?  Absolutely – to A’s car and arm.  Was it reasonably foreseeable that if B ran a stop sign, there might be a car accident involving B and another car?  And reasonably foreseeable that the driver of the other car could be harmed, as well as the driver of the other car?   Absolutely.

· Off to court we go…..A collects damages from B.  Easy case.

· Example 3 Analysis:  Let’s make it a bit more complicated.

· Brakes, Inc fixes A’s car brakes but does so incorrectly so they are likely to fail.  Neither party is aware of this, so A leaves with the supposedly repaired car.  A is driving carefully (not negligently) down the city street when  B runs a stop sign, hits A’s car causing A’s car to skid; A hits the brakes but they fail and A hits a parked car which explodes.  Pieces of exploding car metal fly in the air several yards and hit Mary who is walking on the sidewalk; Mary’s arm is cut badly so stitches are required.  Mary sues Brakes for negligence.  The owner of the parked car that exploded also sues Brakes in a separate case.   Who wins?

· Go thru the analysis:

· Brakes has a duty to repair cars carefully, they breached that duty by carelessly repairing the brakes.  But were the carelessly repaired brakes direct cause of the specific type of accident that occurred and the specific harm that occurred to Mary?

· NO, it fails on causation.  It was not reasonably foreseeable that by carelessly repairing the brakes, B would run a stop sign, hit A causing A to hit a parked car, causing the car to explode, causing flying metal to hit a pedestrian.  The carelessly repaired brakes are NOT the direct cause of the injury to Mary OR to the damage to the parked car.  There is NO foreseeability, end of case, Mary is out of luck.  It may seem unfair to Mary but also would be unfair to Brakes (or any defendant) to hold them liable for every remote accident that occurs involving A’s car.

· Is Brakes liable to the owner of the parked car?  NO, it fails on causation.  It was not reasonably foreseeable that by carelessly repairing the brakes, B would run a stop sign, hit A causing A to hit the parked car, causing the car to explode.   The carelessly repaired brakes are NOT the direct cause of the injury to the parked car.

· BUT, assume Mary sues A or B for negligence in this case.  Are either of them liable?  

· A is not liable; A did not breach a duty of care or act negligently at all.

· B is not liable; the claim fails on causation again.  It is not reasonably foreseeable that by B’s carelessly running a stop sign, hitting A causing A to hit a parked car, the car would explode, causing flying metal to injure Mary.   The accident that occurred causing the harm, and the plaintiff that was injured are too remote from the point of the careless conduct (running the stop sign) to constitute direct causation.  

· BUT, if A sued B for damage to A’s car, A would have a good case as there is duty, breach and causation as well as harm that is foreseeable under the circumstances.  If B runs a stop sign, it is reasonably foreseeable B might hit a car and cause damage to the car and/or driver.

· If you find a long, unlikely chain of events leading to ultimate injury to a person, it is likely a case without direct causation because it was not directly foreseeable that the accident/injury that occurred would have occurred to the particular plaintiff in question.

4. Instructor note 3

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5. Instructor note 4

· Introduction to Torts  

· Introduction:     Torts are civil wrongs or offenses against persons or property resulting in some level of injury.  There are numerous specific torts that fall into four general categories:  (1) unintentional torts, e.g., negligence, (2) intentional torts, e.g., trespass to property, and (3) strict liability, which includes liability for abnormally dangerous activities, e.g., use of explosives, and (4) strict product liability for defective products.  The primary goal of tort law is to compensate for damages incurred.   Among the types of damages for which an injured party may recover are compensation for property loss or damage, for medical expenses, for loss of earnings capacity, and for pain and suffering; in some cases, punitive damages may be awarded to punish the wrongdoer for a particularly egregious offense.  Tort law is based primarily in state case law and statutory law with the Restatement of Torts (2nd) used by courts and legislatures as a guideline.    

· Intentional Torts/Business Torts

· Introduction:     Intentional torts are civil offenses in which a wrongdoer (tortfeasor) intentionally commits an act against persons, property or a business that the wrongdoer knew or should have known would result in some level of harm to property, persons, or business.  Types of intentional torts against persons include civil assault and battery, false imprisonment, intentional infliction of emotional distress, defamation, invasion of privacy, appropriation, and fraudulent misrepresentation.  Intentional torts against property include trespass to land, trespass to personal property, conversion, and disparagement of property.  Special business torts are wrongful interference with a contractual relationship, wrongful interference with a business relationship, and disparagement of a product.

· Negligence 

· Introduction:     Negligence is an unintentional tort in which the wrongdoer does not intend to cause harm as a result of the wrongdoer’s conduct.  Negligent acts are the result of the wrongdoer acting carelessly, or failing to act, thus, not exercising an ordinary level of care that a reasonable person would have exercised under the same circumstances.  To create liability, a wrongdoer’s conduct must create a risk of harm that is reasonably foreseeable under the circumstances.  The plaintiff/injured party must prove the elements of negligence that include, (1) that the defendant/wrongdoer owed a legal duty of care to the plaintiff under the circumstances, (2) that the wrongdoer acted in a careless manner so as to breach the duty of care, (3) that the breach was the cause of harm to the plaintiff, (4) and resulted in specific harm for which damages can be recovered.   A defendant may attempt to defend against a negligence claim by asserting legal defenses of a superceding event, or assumption of risk, or, in certain jurisdictions, comparative or contributory negligence on the part of the plaintiff.

6. Elements of Negligence Summary

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7. Premises Liability

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8. Introduction to Torts (Video)

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9. Maryland Workers’ Compensation Law

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