TORTS TA SESSION 10/14 & 10/15

◼ Clean Water Act▪ Statute incorporating tort law

◼ What is gross negligence?▪ B.P. arg: requires culpable mental state▪ U.S. arg: does not require culpable mental state, it’s just regular negligence,

only worse (court agrees)

◼ BPL analysis → court finds B.P. was grossly negligent

B.P. – GROSS NEGLIGENCE

◼ Contributory negligence▪ If plaintiff negligent at all, no recovery

◼ Pure comparative negligence▪ Recovery based on percentage of fault

◼ Modified comparative negligence (50% rule)▪ Operates as pure comparative negligence until plaintiff more than

50% responsible, then no recovery

◼ Arguments?

COMPARATIVE NEGLIGENCE

◼ Remember: Everyone has a duty to exercise ordinary care under the circumstances; affirmative duties go beyond that.

◼ Affirmative duty ▪ Re-scope act (Moch)▪ Active omission▪ Created reliance▪ Generated risk

▪ Special relationship (Tarasoff)▪ Statute-created duty (Cuyler)▪ Duty to warn (Hood)

DUTY

◼ One night at sea, Robb, a former rower but terrible swimmer, falls overboard. His friend alerts the first crew member that he finds, Cersei, who laughs and walks away. The second, Tyrion, valiantly activates the ship’s safety procedures, including stopping and throwing a lifebuoy. However, the lifebuoy is not fastened to the rail as required by law, but instead used as a pillow for the captain and owner, Jaime. This results in a delay of three minutes before the first lifebuoy can be tossed. Generally, throwing a lifebuoy has a high probability of success. But Tyrion fails repeatedly, and Robb drowns. Robb’s family sues.

◼ Does Robb’s family have a claim against Tyrion? Cersei? Jaime?

HYPO

◼ Common knowledge does not get a warning

◼ How specific should warning be?▪ BPL analysis

◼ Informed consent▪ Reasonable physician standard▪ Industry standard → malpractice analysis

▪ Reasonable patient standard▪ How does this handle idiosyncratic patients?

WARNINGS

◼ Express means statute is straightforward ◼ If there’s parallel preemption you cannot be twisting the

statute to fit and you have to make sure it’s not field preemption◼ Implied Field – takes over the entire area of law◼ Implied Conflict – directly conflicts with tort law

PREEMPTION

◼ But-for: The harm would not exist if not for the breach / Absent the negligent conduct, injury would not have occurred at all / The negligent conduct was a necessary condition of the harm

◼ Multiple Necessary Causes (If both cars have lights off, accident):▪ All parties are causes-in-fact, move on to proximate cause analysis to decide if

liable

◼ Multiple Sufficient Causes (If one car has lights off, accident): ▪ Restatement Third § 27- multiple sufficient causes all factual causes▪ Simultaneous, both negligent: both liable▪ Simultaneous, one negligent: depends on the court▪ Sequential: First cause is cause-in-fact (pre-emptive cause)

CAUSATION IN FACT

Donald and Hillary are coal miners. They were working in the mines one day, when Hillary decided it would be hilarious to play a prank on Donald. While Donald was working the drill, Hillary came up behind him and scared him. Donald, who wasn’t wearing his helmet at the time, jumped backwards and slipped on a banana peel he had thrown on the ground earlier, and drilled a hole in his foot. The drill also malfunctioned when Donald began drilling his own foot because the drill bit was not intended for such soft surfaces. Donald could not turn the drill off due to this malfunction. There was a warning on the drill that indicated the location of the emergency shutoff, but the print was small and blood from Donald’s foot had covered most of the text. Donald eventually lost his foot because he could not turn off the drill.

There is a statutory requirement for miners to wear all appropriate safety gear whenever operating drills. But the custom in mines is not to wear a helmet unless there is RED alert for tunnel quakes. There was not an alert on this day.

Donald and Hillary reside in a state that abides by a true comparative negligence regime.

◼ Donald is suing Hillary. What would the theory of his case be?◼ What defenses does Hillary have?◼ Who else could Donald sue?

FINAL HYPO