Torts

21 October

• Exam will come back on 11/4.
• Note that the field of tort law includes many sub-specializations, and people tend to stick with specific areas of tort.
• Today, we start with causation. Cause in fact is generally not an issue in tort cases. It's just not something that generally comes up, say, on exams. It's worth asking if there's a problem with cause-in-fact, but the usual answer is "no." Usually we're arguing about whether the injury was the result of negligence, or what standard for liability, etc., but we generally know what caused the harm.
• Still, when cause-in-fact does arise, it can be nice and tricky. And toxic harm cases are a prime breeding ground for it. So causation is a growing concern in that area, at least.
• Stubbs v. City of Rochester
  Note the date: science was far from where it is now, and statistics also have gotten more refined.

  Anyway, the two water sources get intermingled. Typhoid abounds. The plaintiff catches his case in September: the contamination was discovered in October.

  "A slam dunker!" right?

  Defendants argue that typhoid can come from lots of sources, and the plaintiff hasn't shown that his typhoid came from their water. To what degree of certainty do we need to prove this? To a reasonable degree of certainty. It will generally be impossible to eliminate all possible alternative explanations.

  Well, then, DID the plaintiff establish this with reasonable certainty? There are three persuasive pieces of evidence:

  • A jump in the number of typhoid cases. Was it significant? Does this show that this plaintiff caught it? Were there other causes at the same time? This is a very infectious disease, after all. We need to distinguish between correlation and causation.
  • The bulk of the outbreak occurred during the period of the contamination (180/223 cases that year). Again, this is a spready thing. The fact that it's concentrated isn't dispositive. Would it be more convincing if the plaintiff caught it when nobody else was catching it. Is a late-summer cluster of infections unusual?
  • 58 residents of this particular district drank the water and got typhoid. How many is that compared to the total number of people who drank the water? Do they all buy their milk from the same neighborhood store?
  Each of these pieces of evidence, singularly, can be rebutted. They are suggestive of causation, but not conclusive. But still, that's usually all we've got, and the court has to make a decision on whatever evidence it gets shown. That's the choice they need to make: recovery or no recovery. The plaintiff rarely proves conclusively how a disease was caused, but the court still has to figure out what to do.
• Now which infected plaintiffs should recover? There are 58 people who have the exact same evidence, but at least some of them would have caught typhoid anyway. So we'll have over-recovery and over-deterrence. But if we rule that this evidence isn't enough, then NOBODY will recover: under-compensation and under-deterrence. So neither alternative is appealing. It's an all-or-nothing game, and neither is satisfactory.
• What about situations in which someone is exposed to a small harm, and it's more likely that they'll get a bad problem later (e.g., aspestosis -> mesothelioma). We've dealt with recovery for the fear, previously, but not recovery for the chance of the harm itself.
• So we're dealing with the expectation of harm, as the result of the defendant's negligence. So under what circumstances will we allow recovery for harms yet to come down the road? There are various approaches, of course (note 6, p. 345):
  • Mauro (NJ): immediate recovery for the enhanced risk if there's a better-than-even chance of harm down the road.
  • Petriello (CT): a much lower threshold; also Dillon (IL): we'll even permit recovery for a 0-20% increased chance, but the recovery will be reduced.
  • Simmons (PA): the more serious injury needs actually to arise
  So each of these has benefits. In some cases, we might permit recoveries where the injury never actually materializes. In some we're undercompensating serious injuries. In some we're risking a failure to recovery because of the vanishing of evidence. And if we award early, maybe defendants won't have any money left when other people actually get sick. Maybe we'll pay people who die young of other causes, for example. On the other hand, if we're about deterrence, we want to take action against problems when they are happening, not way way later.
• Wilson NV, 1985. How do we show that someone got food poisoning at a particular restaurant (this case not in the book). Timing, diet, other victims, history of few stomach problems, etc. We'd want to bring all that stuff in order to get our case to the jury.
• Contamination-esque theories in another scenario: Burgos in note 9 on p. 347. We want to show that the defendant's negligence in maintaining security allowed an intruder in to do the crime. Just because there is negligence, and there is harm, doesn't mean the two are related. We only want liability in cases where there's a showing that the harm was the result of the negligence.
• Saelzler CA, 2001. Not in the book. FedEx employee assaulted while making a delivery, but could not identify her assailant. No way to know if the negligence in maintaining the gate allowed an outsider in to do the harm: it could be an insider. Even flagrant negligence doesn't justify recovery, unless there is some evidence tying the negligence to the harm suffered.
• Zuchowicz v. United States
  Me: It's not so much that causation was established, as that the attack on causation isn't strong enough to overcome the presumption that the trial court acted correctly.

  Note also that negligence here isn't an issue: the overdose was negligent. And the product itself was not harmful: only the overdosing.

  There can be no direct evidence of causation, because there's no statistical evidence. Instead, we get expert testimony. What does expert testimony prove, in this context?

  Daubert and Frye are very important. Is this evidence admissible? Does it tend to make one of the assertions of the case more or less likely to be true? This court says the Daubert criteria are not exclusive or dispositive: they're just suggestions. "Flexible." They really don't apply to these rare overexposure cases. So we'll allow these experts in.

  Frye is another rule: a scientific theory needs to be generally accepted by the scientific community in order to be accepted. Also inapplicable to our case, and generally seen as more restrictive than Daubert. But really all Daubert does is put the decision in the judge's hand, when you think about it, instead of scientific consensus. That's not necessarily more plaintiff-friendly.

  This is a federal case, applying CT law. So that requires but-for causation. How are we going to do that? Again, the court relaxes the standard. Amazingly, we rely on Martin v. Herzog to illustrate our principle by example: not having the lights on increased the probability of a smash up, and then there was a smash-up. it's up to the negligent party to rebut the presumption that the absence of lights caused the problem.

  Me: so ultimately, the defendant should have rebutted the causation presumption at trial, rather than pinning hopes on objection to the introduction to the evidence.

• Alberts v. Schultz
  Lost chance is getting a lot of attention these days.

  And here, he can't prove that he lost a chance. There was negligence, but no evidence to support the assertion that had but for that negligence, the leg would have been saved. The primary injury was already in place: did the negligence exacerbate it?

  If a plaintiff shows with 25% certainty that the leg was lost due to the defendant's negligence, what recovery should there be? None. This is different from losing a 25% chance of saving the leg. Or a 25% reduction in the chance of saving the leg. This can be very interestingly subtle. What must you demonstrate in order to recover?

  In order to recover on a lost chance theory: you need to establish that the negligence caused the reduction in the chances of avoiding the harm. That the defendant's negligence reduced the probability of recovery.

  Can you recover on a lost chance theory if your leg survives even though your chances were reduced? Maybe.

23 October

• Joint and several liability. We'll talk lots more about multiple tortfeasors later, but here we're talking about situations where we don't know exactly who is responsible for the harm.
• The concept: When two or more defendants are liable for a single indivisible harm to a plaintiff, they're liable for the whole harm. Plaintiff can recover from one, the other, or both (so long as the entire recovery doesn't exceed the amount of the judgment).
• Some courts and state legislatures have modified or eliminated this principle (insurance companies, in particular, lobby against it, for obvious reasons).
• Consider the two-fires problem. But-for causation isn't enough. If one fire hadn't been there, the barn would still have burned, because of the other fire. Neither defendant satisfies the but-for cause, but each was a substantial factor.
• We are choosing between overdeterrence (not overcompensation) and undercompensation. We choose the latter.
• The "right of contribution" is the right to be reimbursed by another defendant for a share of judgment paid to a defendant. This is a more equitable way of settling these things.
• Why not just allocate payment purely proportionally? Sometimes there's a problem figuring out the relative degrees of fault. Also, not all defendants are equally able to pay. It's not altogether unfair to dump the burden of one plaintiff's insolvency on the other defendant: they're both negligent, and it's also better than dumping that burden on the plaintiff.
• When we impose joint and several liability:
  1. Joint Tortfeasors: we're in a partnership, and one partner does something negligent.
  2. Independent tortfeasers but single indivisible harm, but two causers: two motorists each hit a pedestrian simyltaneously.
  3. Independent tortfeasers, separate harms, but it's not practical to separate them: one motorist hits a pedestrian, and then a second motorist also hits the same pedestrian.
• What about cases where we don't know who caused the injury, and it's not necessarily both?
• Summers v. Tice
  Note that the facts here are interestingly refined-- the rules may be transferrable, but be cautious applying this case all over the place.

  Both were negligent, but at most one harmed the guy.

  All the same, the plaintiff can recover-- it would be unfair to prevent recovery and exonerate the negligent shooters just because the plaintiff can't be sure which one was the guilty one.

  So the but-for test wouldn't work here: it would excuse defendants (same as in the Typhoid case). This is the doctrine of "Alternative Liability," and it's very rarely brought out: only when neither is more likely to be liable 50-50%.

  What if there were a third party, so we had only 33.333% probability? Most courts back off (not all): for any one defendant, there's a 66.666% chance they weren't the cause.

  In this case, there was a 100% chance that the result would be incorrect if we didn't shift things around this way.

  If this is so rare, why spend a whole period talking about it? Because causation isn't such a big deal after all, and sometimes we can't prove it, but the concern of duty takes precedence. We fashion ways to get an acceptable outcome.

  Note that this is different from Ybarra: there, someone was negligent, and we didn't know which one, but we presume all the others were not. Here, they're both negligent, but we don't know which caused the harm.

• Defendants should not be allowed to benefit from one another's wrongdoing and escape liability. Suppose D1 and D2 each negligently start fires, and P's house gets burned. D1's fire gets there first. D2 might claim that his fire didn't really destroy a valuable house at all: D1's fire had already reduced it to ashes. D1 might claim that the house wasn't that valuable, since the expected value of the house was negligible because of D2's fire bearing down on the house.
• Hymowitz v. Eli Lilly
  A very complex case-- there are tons of factors here: statute of limitations, identifying defendants, sovereign immunity, you name it.

  Unlike asbestos, DES manufacturers have never admitted negligence.

  This market share allocation is different from what we saw in alternative liability (i.e., letting defendants figure out how to get stuff paid). Here we've got hundreds of wrongdoers, some no longer exist, and not all are before the court.

  Sindell: a CA case where market share liability first gets used.

  But what market? The regional market? Brown clarifies this. A given manufacturer can only be responsible for its market share, and this means that we'll never have 100% recovery, but we've got to do the best we can. And that's the national market because otherwise it's just too complicated.

  Note that this is monumental: even if you can prove you didn't harm this specific plaintiff, you are still liable up to your national market share. So causation isn't even an element here?

  Well, plaintiffs didn't get a great deal here either: they never recover the full amount.

• Does this case mean that tort law is inadequate to address this sort of problem? Maybe Hymowitz went too far, by allowing recovery beyond the principles of tort law. Maybe the legislature should have acted in this case. Maybe we are overcompensating here, and this is ultimately a legislative failure: doubly so since the court-made solution is inadequate.
• Toxic harm is the crazy edge of tort law-- most of the rest is straightforward. Here we've got potentially thousands of plaintiffs at a time, multiple defendants, injuries that spread out over vast spans of time.