Limits on a Negligent Defendants Responsibility: Chapters 4 and 5

No actual causation
P was outside scope of Ds duty (scope of the risk) Disconnect between Ds negligent act and nature or circumstances of Ps injury Unforeseeable Not in a natural and continuous sequence Not a substantial factor (R2T 431) Rescue? Rescue doctrine tests not met

Limits on a Negligent Defendants Responsibility: Chapter 6

Limited Duty Situations* No duty to rescue (Ch. 6.A) Pure economic loss (6.B) Emotional distress (6.C) Harm to an unborn child (6.D)

* Rules vary among jurisdictions; many exceptions may apply

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The Duty Determination

A duty may arise . . . where there is a relationship between D and a 3P tortfeasor over whom D has actual control; or there is a relationship between D and P, when D is required to protect P from conduct of others; and D is in the best position to protect against risk of harm; and the class of potential Ps is circumscribed. Hamilton v. Beretta (NY 2001)

Characteristics of a Useful Rule of Law

Capable of being understood and applied across a range of cases Predictable: provides clear enough guidance that people can plan their conduct with confidence Fair basis for distinction between those who can and those who cant recover Easily administered
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Todays Agenda, Ch. 6.A & 6.D

Ch. 6.A, Duty to Rescue
1. 2. 1. 2. 3. 4.

Critiquing J.S. & M.S. v. R.T.H. Critiquing Tarasoff Tort law and constitutional law Cataloguing the types of prenatal harm claims Wrongful death: the spectrum of possibilities Wrongful birth:
Should courts recognize the parents claims? If so, what should be the measure of damages?
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Ch. 6.D, Prenatal Harm:

Good Samaritan Laws

Legal protections for [some] people who [gratuitously] come to the aid of others
E.g., Ark. Code Ann. 17-95-101

No duty to rescue, . . . except:

D caused P to be in need of rescue Special relationship between P and D
What kinds of relationships? See R2T 314A

D attempts rescue negligently

Note Good Samaritan laws, to encourage rescue attempts

Reliance on Ds actions (by P, by would-be rescuers, etc.) P injured by instrumentality under Ds control Contract duty Statutory duty
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Tarasoff Holding?
ASK: Duty of whom? Duty to whom? Duty to do what, and when?

No duty to rescue, . . . except:

Special relationship between P and D Reliance on Ds actions (by P, by would-be rescuers, etc.) D attempts rescue negligently
Note Good Samaritan law protections, to encourage rescue attempts

P injured by instrumentality under Ds control Contract duty Statutory duty Tarasoff situation Piecemeal quilt of exceptions? Wisdom, J.
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Todays Agenda: Ch. 6.B

1. 2. 3. 4. 5. 6. 7. Economic loss: meaning what? Traditional rule and exceptions Alternative approaches Results of each approach in 3 hypos Dialog 23: Who wins? Arkansas approach Comparing rationales: Economic loss cases vs. rescue cases
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Economic loss
Cost of repairs Loss in market value of damaged property Lost profits Lost wages Loss of reputation / good will

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Approaches to Economic Loss

Case/opinion Louisiana v. M/V Louisiana v. JAire v. People Testbank: M/V Testbank: Gregory Express Higginbotham, J. Wisdom, J. Bird, C.J. Handler, J.
Horn Beasley Carter

Specialists Approach

Traditional

Foreseeable particularized damages

6 criteria (397)

Particular P or identifiable P class

Characteristics No recovery (& exceptions) (Admiralty: commercial fishermen; others at common law)

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Arkansas: Economic loss case

Bayer CropScience LP v. Schafer, 2011 Ark. 518 Affirmed $6m compensatory, $42m punitive verdict This court has declined to recognize the economic loss doctrine in cases of strict liability, as we allow the recovery of purely economic losses even where the damage relates only to the defective product. Should the E.L. doctrine apply to cases of negligence? No ruling, since there was damage to other property than the defective seeds the combines harvesting the fields had to be cleaned.

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Todays Agenda: Ch. 6.C

1. Direct Victim and Bystander theories: Traditional approaches 2. Alternative approaches 3. Testing the approaches by the criteria of useful rules of law 4. Dialog 24: Who wins? 5. Comparing rationales: Economic loss vs. rescue vs. mental injury cases 6. Arkansas approach
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Recovery for Mental Injury I: Traditional Approaches

Direct Victim Theories No recovery, except: IIED (outrage) Physical injury/impact No impact, but mental shock causes definite physical injury (Daley) Bystander Theories No recovery, except: Corpse cases:
Undertakers mistakes Mistaken death notices

Zone of danger (Waube)

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Recovery for Mental Injury II: Alternative Approaches

Direct Victim Theories 1. Traditional approach 2. Physical injury or impact unnecessary; foreseeability the chief limitation Q: Who is a direct victim?
Johnson v. State Perry-Rogers Acosta Rowell v. Holt Toxic substance cases

Bystander Theories 1. Traditional approach 2. Dillon guidelines, R3T 47 3. Post-Dillon expansion

Time Geographical proximity Relationship Physical consequences to P

4. Thing v. La Chusa tests

Critiques: Kaufmann, Broussard

5. Standard negligence analysis

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Evaluating Emotional-Distress Approaches

Reasons for Limitations Traditional Approach Daley Zone of Danger Dillon: 3 factors Thing: 3 prereqs Standard Foreseeability

Pandoras box

How great a problem? How good a solution?

Ditto

Need for bright-line rule Difficulties of proof [Add others you perceive]

Ditto

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Ark. Wrongful Death & Survival Law

The jury, or the court in cases tried without a jury, may find such damages as will be fair and just compensation for pecuniary injuries, including a spouse's loss of the services and companionship of a deceased spouse and any mental anguish resulting from the death to the surviving spouse and beneficiaries of the deceased person. When mental anguish is claimed as a measure of damages under this section, mental anguish will include grief normally associated with the loss of a loved one. Ark. Code Ann. 16-62-102(f)
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Person under the Due Process Clause

. . . nor shall any State deprive any person of life, liberty, or property, without due process of law . . . U.S. Const., amendment XIV, 1. . . . the word person, as used in the Fourteenth Amendment, does not include the unborn. Roe v. Wade, 410 U.S. 113, 158 (1973).
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Constitutional law dividing line: fetal viability. (But the fetus is not a person.)

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Constitutional law

Tort law

Tort law principles may overlap constitutional law principles to some extent, but the two are by no means congruent.
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Prenatal Harm: Causes of Action

Wrongful death: Action by the statutorily named survivors of a person who has died because of anothers wrongful act.
Issues: Does a fetus/unborn child count as a person? If so, at what stage of pregnancy?

Wrongful birth: Action by the parents for damages resulting from defendants wrongful act prior to birth.
Some courts distinguish between wrongful conception or wrongful pregnancy actions, where Ds negligence (e.g. failed sterilization procedure) before conception led to an unintended pregnancy; and wrongful birth actions, where Ds negligence post-conception led to injury. Other courts simply call all actions by parents wrongful birth actions.

Wrongful life: Action by the child for damages that would be recoverable by the parents in a wrongful birth action, where the parents are not present to bring the action.
These cases are rare, and few jurisdictions accept this theory. But scholars love to speculate about them.
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Pregnancy Timeline

10

20

30

39

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Characteristics of a Useful Rule of Law

Capable of being understood and applied across a range of cases Predictable: provides clear enough guidance that people can plan their conduct with confidence Fair basis for distinction between those who can and those who cant recover Easily administered
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Evaluating Limited-Duty Rules: A Suggested Matrix

Reasons for Limitations No duty to rescue Economic loss rule Emotional distress Prenatal harm

Pandoras box
Need for bright-line rule Difficulties of proof [Add others you perceive]

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