Practical Perspectives; Theoretical Perspectives; Alt. to Torts

From Torts Wypadki

Contents 1 Practical Perspectives 2 Theoretical Perspectives 3 Alternatives to Torts 3.1 Worker’s Compensation

Practical Perspectives

1. View of a personal-injury lawyer
2. View of a public-interest lawyer
3. View of a corporate-defense lawyer
4. Settlement dynamics

Theoretical Perspectives

Basic theoretical concepts of jurisprudence

• Jurisprudence - Means the process and system of court adjudication, but can also mean legal philosophy.
• Natural Law - the theory that law is inherent in nature. Before humans came along there was law.
• Analytical Jurisprudence - talking about the philosophy of what law is
  • Legal Realism (Oliver Wendell Holmes Jr.) - laws are made by humans and they are subject to weaknesses and frailties
• Normative Jurisprudence - what law ought to be. (what is just, right for society, responsibility)

Law-and-economics analysis

Coase theorem - The principle that if transactions costs are zero and entitlements are known and transferable, legal rules will have no allocative effect.

• Describes economic efficiency of an economic allocation or outcome in the presence of externalities. The theorem states that when trade in an externality is possible and there are no transaction costs, bargaining will lead to an efficient outcome regardless of the initial allocation of property rights. In practice, obstacles to bargaining or poorly defined property rights can prevent Coasian bargaining.
• Application of economic analysis to assign liability for damages popularized by Judge Learned Hand, holding resolved simply that liability could be determined by applying the formula of B < PL, where B = the burden (economic or otherwise) of adequate protection against foreseeable damages, P = the probability of damage (or loss) occurring and L = the gravity of the resulting injury (loss).
  • Using economic models of analysis, prominently including Coase theorem, theoretical models demonstrated, when transaction costs are minimized or nonexistent, legal appropriation of liability diminishes in importance or disappears completely.
    • In other words, parties will arrive at an economically efficient solution that may ignore the legal framework in place

Calabreeze – cost of accidents

• Want a system that lowers
  • Cost of accidents
  • Cost of avoiding accidents
  • Cost of administration, lawyers, courts
    • Have to have some way of pricing accidents into the costs of products
    • Market can solve for accidents buy pricing them into the costs of goods in services

Sociological perspectives

Shasta County

• Coase's Parable of the Farmer and the Rancher, implies disputants look solely to formal legal rules to determine their entitlements. In rural Shasta County, residents instead typically looked to informal norms to determine entitlements in animal trespass situations.
  • In open-range areas, norm that a livestock owner should supervise his animals dominate the legal rule a cattleman is not legally liable for unintentional trespasses on unfenced land.
  • Trespass victims mainly employ negative gossip and physical reprisals against trespassing stock to discipline cattlemen who violate this norm.
• In Shasta County, law of trespass had no apparent feedback effects on trespass norms.
• In no instance did the legal designation of an area as open (or closed) range affect how residents resolved a trespass or estray dispute.
• Rancher O'Hara paid a neighbor for the loss of a corn crop because he “felt responsible,”' a feeling that would not have been influenced by formal trespass law.

- Feminist critique

- Critical race theory

Alternatives to Torts

Worker’s Compensation

• historically tort law made it difficult for employees to recover from their employers for injuries suffered in the work place. In additionn, they had to show that they didn't assume the risk or contribute to the negligence. States have now enacted workers' comp regimes that make it easier for workers to recover.
• Can now recover regardless of whether the employer was negligent.
• Causation: has to occur during the course of employment.
• Benefits: workers' comp benefits include payment of medical bills for the injury and disability benefits, which are usually calculated as a fraction of lost wages.
• Funding: employers can either pay premiums into a workers' comp insurance fund or they can choose to self-insure.
• Workers' Comp Trade-Off: involves a trade-off for workers and employers
  • For Workers: allows recovery regardless of employer negligence. Since you don't have to prove negligence, you can recover for non-negligent injuries that the tort system would never provide. Disadvantage: recovery is limited to 2/3 of lost wages. Also, permanent disabilities are subject to maximum benefit caps.
  • For employers: limits their liability, shielding them from large recoveries in lawsuits. They must pay regular premiums to the state's workers comp fund. Disadvantage is that even where employees suffer zero injuries, the company will still be required to pay minimum premiums.

Requirements for Obtaining Benefits (Elements) A claim for workers' comp is subject to a 4-prong test. For an emplyee to obtain benefits, there must be:

(1) Personal injury

(2) Resulting from an accident

(3) That occurs during the course of employment

(4) And arises out of employment

Personal injury: while most inuries are compensable, the "personal injury" requirement becomes an issue when the injury involved includes a component of mental illness.

• Physical-physical: where both the cause and the effect are physical, the harm will be considered a personal injury
• Italic textPhysical-Mental: Where the cause is physical and the effect is physical and mental, most states will consider the condition to be an injury.
• Mental-Physical: if the cause is mental, and the effect is physical, most courts will consider the physical injury to be a compensable injury
• Mental-Mental: Where both the cause and the effect are mental, and there is no accompanying physical cause or effect, the injury requirement is not usually met.

Resulting from an accident: "Accident" may be defined as a sudden, unexpected occurrence that happens in a particular place at a particular time. Some places use this to excluse conditions that develop over a long period of time (ex. asbestos-linked cancer).

Course of employment: an injury must arise during the course of employment

• Recreational activities: employer sponsored recreational activities may or may not be covered
  • The "reasonable expectancy" test: if the employee was expected to be involved in the recreational activity, then the activity is covered
  • Subjective/Objective components must be met: for the activity to be covered, it must be the case that reasonable employees would believe that they were expected to participate in the activity (objective)and that the employee in this case actually thought participation was expected (subjective
  • Facts relevant to finding of "reasonable expectancy" include:
    • Encouragement or pressure from the employer
    • Involvement by the employer in the activity
    • Benefit to the employer (e.g., "team-building")
• Horseplay: Any horseplay activities in the workplace are usually covered.
  • The "aggressor defense": while bystanders injured by horseplay are almost always covered, the employer may show that the person injured in the horseplay was a perpatrator of the conduct. A perpatrator can be considered to have temporarily "abandoned employment," making the conduct ineligible for workers' comp coverage because this would mean it didn't arise "during the course of employment."
    • Bystander: some courts decline to recognize a difference between participants and bystandard, finding that if the horseplay is a natural byproduct of a stressful work enviro, all workers are covered.
• Commuting and Travel
  • The "coming-and-going" rule: injuries sustained while commnuting are not covered. The "coming-and-going" rule holds that injuries sustained while coming and going from work do not arise during the course of employment. Coverage begins when the worker enters the employer's property.
  • Exceptions: Not applicable in several circumstances:
    • Necessary passages and noncontiguous spaces: if employees must travel a certain stretch of land in order to get to work, the employee may be awarded comp for accidents occurring in that land. An exceptional damger posed by travelling that space will increase the likelihood of coverage.
    • Special hazards near employer property: while jurisdictions vary, courts may award comp for injuries caused because employees are exposed to hazardous conditions on public spaces near the employer's property.
    • Returning to work: When an employee must make a special trip from home during off-duty hours (ex. coming back to lock the door), injuries sustained in transit are usually covered.
    • Travel on employer-owned conveyances: if the employer provides buses or other vehicles for commuting employees, injuries are usually covered.
    • Vehicle required at work: if the employee drives a vehicle to work because the vehicle is required during working hours to carry out certain work-related tasks, the commute is usually covered.
  • Travel for work: if employee travels for work, comp is always available for injuries dudtained during the performance of work-related tasks. Increasingly, courts are awarding comp for injuries sustained while dressing, eating, and bathing during the time in which the worker stays in hotel accommodations (since they are essential for related travel).
    • Note: activities undertaken on business trips that are exclusively personal are not covered.

Arising Out of Employment: this deals with causation. Whether or not certain injury must be compensated depends on the category or risk it falls under

• Types of risk: there are 3 categories of risk. The majority fall into occupational or personal
  • Occupational Risks (aka employment risks). Are those that are directly related to the job at hand. (Ex. machine breaks and employer gets hurt). These are ALWAYS compensable.
  • Personal Risks: succumbing to a heart attack caused by arteriosclerosis while at work would not be covered, b/c the risk of suffering such a heart attack, caused by poor nutrition, lack of exercise and genetic propensity, has nothing to do with work. These are NEVER compensable.
  • Neutral Risks: those that aren't clearly occupational or personal. Only one that requires further analysis:
    • Proximate-cause doctrine: (borrowed from tort law). To satisfy this, the worker must prove there is an unbroken chain of causation, w/out intervening causes, which links an employer action to a foreseeable harm for the worker.
    • Peculiar-risk doctrine: the risk must be "peculiar" to the workplace and not present for members of the general public. Most courts have abandoned this doctrine.
    • Increased-risk doctrine: demands only that the risk must be greater than that borne by members of the general public. B/c people that have to prove during their job would have a hard time meeting this test, statutes commonly specify that injuries sustained while travelling in the course of employment will be covered.
    • Actual-risk doctrine: As long as the risk is one that actually accompanies employment, the resultant injury will be compensated regardless of whether workers have a higher chance for being injured in this particular way than the general public does.
    • Positional-risk doctrine: Any injury which would not have been sustained but for the fact that the employee was in a certain place at a certain time because of his employment is covered.

Arising-Out-of-Employment and Course-of-Employment considered together: Some courts hold that a strong case for arising-out-of-employment will offset a weak showing for the course-of-employment requirement.

Typology of Benefits

• 2 basic types of benefits: the provision of medical and rehabilitation case, and the payment of cash to compensate for lost-earnings capacity.
• Medical and Rehabilitation Care Benefits - will typically pay for all medical care. However, if they appear to never be able to go pay to pre-injury health, they will stop benefits so person can receive disability benefits
• Will usually be given cash to compensate. Benefits may be disbursed under 5 statuses:

1. Temporary Partial Disability - workers who temporarily suffer reduced earnings may be paid a fraction of their lost wages.
2. Temporary Total Disability - where worker can't work at all for a limited time, payments will be equal to some percentage of wages.
3. Permament Partial Disability - a worker who can work, but has a permanent condition that will reduce earnings capacity, may receive permanent partial disability payments. Come in 2 varieties:
   1. Scheduled - using a scheduled-benefit scheme, disabled workers receive a set amount of money for their lost limb or injury, without regard to their actual reduction in earnings capacity.
   2. Unscheduled - Some injuries are not compensated according to a schedule or chart, but are calculated accoring to the circumstances of the individual case.
4. Permanent Total Disability - applies to workers who will never be able to work again, even in a partial capacity. Usually based on lost earnings capacity
5. Death - when a worker is killed througha work-related accident, workers' comp may provide death benefits to the dependents of the worker.

Exclusivity/Preclusion

• General rule - workers' comp is intended to be the exclusive means of recover for a worker against the employer, so it precludes the possibility pf tort suits against employers.
• Exceptions:

1. Intentional Wrongs - if the employer intentionally injured the employee, then a tort suit may go forward
   1. Genuine intentional wrongs - if the injury is thre result of a genuine intentional wrong, there is no tort immunity. In some courts, if the employer created a condition in which the employer knew or should have known that there was a substantial certainty that injury would result, then the wrong is considered intentional.
   2. Reckless or wanton acts - in some courts, reckless or wanton beh by an employer is not covered by workers' comp, so tort suit may go forward.
   3. Fraudulent concealment - Where a company doctor discovers an employees illess, but doesn't inform the employee, a theory of fraudulent concealment may allow a suit for the worsening of the condition caused by delay in treatment
2. Dual Capacity - in some states, an employee may sue if she is injured when the employer acts in a non-employer capacity.
3. 3rd party Ds - employees may be able to sue parties other than the employer (contractors, other employees, etc.).
   1. 3rd party Ps - just as workers are barred from bringing suit, their spouse or children are also.
4. Federal Causes of action - if employee is authorized to sue under a federal statute, the suit may go forward.

• Precludion w/out recovery - in some jurisdictions, it is possible for a tort suit to be precluded even when workers' comp is not awarded. This is b/c the tort-preclusion works separately from the scheme that determines whether comp will be awarded. Thus, an injury arising out of and in the course of employment will trigger the preclusive aspect of a workers' comp statute. If the injury is unaccompanied by an industrial liability, it will not be compensable by disability benefits.

The Occupational Safety and Health Act (OSHA)

• Was created to regulate workplace safety and health. It prohibits dangerous conditions in general in the workplace and regulates in detail what employers in specific industries must do to safeguard workers from various hazards.
• OSHA creates an ex ante regime for dealing with injuries in the workplace. This means that is works before the injury, seeking to prevent injuries for happening. This contrasts workers' comp, which are ex post regimes, meaning that they come into play after the injury or disease has occurred.
• OSHA does not provide for a private right of action. Instead, actions under OSHA must be brought by the secretary of labor and the OSHA administration. While workers can complain to OSHA about violations, employees cannot themselves sue their employer.
• OSHA applies to all employers in a business affecting interstate commerce. Government agencies and various industries with specific, alternative regulatory schemes are not covered under OSHA. States may opt out of OSHA and create their own approved alternative.

General-Duty Clause

• Section 5(a) of OSHA is the general duty clause. It states, "Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."
• To take action against an employer under the general duty clause, OSHA must show that the hazard was both preventable and recognized.

Recognized

• The "recognized" requirement is similar to an intent requirement. The hazard is considered "recognized if it meets either subjective or objective tests.
  • Objectively recognized - A hazard that is recognized by the industry as a while will be considered recognized. Thus, employers that are ignorant of workplace hazards may be liable for them if such hazards are generally known to professionals in the industry.
  • Subjectively recognized - A hazard that is recognized by the employer can establish employer liability even if the industry is generally ignorant of such a danger.
  • Accidents not recognized - because the statute discysses hazards that are "likely" to cause injury, an accident is not required before an employer will incur the duty to correct the hazard. However, the occurrence of an accident may make the hazard recognized if the hazard was previously undiscovered.

Feasibly Preventable

• Although the statute does not use the word "preventable," the law has been interpreted to permit industrial practices that produce hazards that are not feasibly preventable.
  • Feasible - Remedial measures may be unfeasible because of terrific cost or technological unsoundness.
  • Effective - to make the hazard preventable, the proposed safeguard must be demonstrably effective.

Specific Standards are a Defense

• If there is a specific OSHA standard on pont for a particular situation, the employer may assume that meeting that specific standard will also satisfy the general-duty clause. If charged with a general-duty violation, an employer may raise this argument as a defense.
  • Exception: Standard Known to be Deficient - if the employer, however, knew that the specific OSHA standard was not stringent enough to prevent a recognized hazard, the defense will fail.

Promulgation of Standards

• The OSHA law grants the secretary of labor the power to promulgate rules, called "standards," setting specific requirements for workplace safety and health. There are 3 ways these rules may have been enacted:

1. "Interim Standards" Under 6(a) - For 2 years after the enactment of OSHA, the secretary of labor adopted rules that were a matter of national consensus. This allowed for rapid adoption of rules. Since then, any new rules or changes to existing ones must be promulgated through 6(b) or 6(c).
2. "New Standards" Under 6(b)
   1. Procedural Requirements - 6(b) sets forth a complex process that must be undertaken to adopt a new standard. This process requires a period of public review and mandates public hearings with regard to objections.
   2. Substantive Requirements - Sets substantive limits on rulemaking.
      1. Significant risk/ section 3(8)/The Benzene Case - in order to promulgate new rules under 6(b), the secretary must meet the burden of proving that there is a significant risk of a material health impairment for which the proposed standard is reasonably necessary and appropriate.
      2. Feasibility analysis/ section 6(b)(5)/The Cotton-Dust Case - W/ regard to rules dealing w/ toxic materials or harmful physical agents, the secretary must promulgate the rules which most assures "to the extent feasible...that no employee will suffer material impairment of health." In the Cotton-Dust Case, the Supreme Court rejected the argument that OSHA should show that the new standards are justified by a cost-benefit analysis. Instead, the proposed standard must be technologically and economically feasible. Note: the feasibility analysis only applies to "health" regulatio, and not to "safety" regulation.
         1. Technologically feasible - the method of eliminating the hazard must be technologically possible; that is, a merely hypothetical solution does not meet the feasibility requirement.
         2. Economically feasible - to be economically feasible, a solution must not be so expensive that it would force most of the injustry into bankruptcy. On the other hand, the elimination of a hazard might still be feasible even if it is prohibitively expensive to some firms.
3. "Emergency Temporary Standards" Under 6(c)
   1. Procedural Requirement - a new rule promulgated under 6(c) is effective immediately upon its publication in the Federal Register. The rule is effective for only 6 months, after which it must be replaced by a 6(b) permanent rule.
   2. Substantive Requirements - section 6(c) rules must meet a 2-prong substantive test. The secretary may only promulgate a rule he/she finds is necessary to protect workers from a "grave danger" created by new hazards ot toxic or harmful substances. The grave-danger prong has been interpreted to require a finding of certainty of impending harm, but to require "more than some possibility."

Enforcement

• Inspections of work sites by OSHA officials may be triggered by accidents at the work place, by employee complaints, or as part of a program of random inspections. While employers may require a warrant for the inspection, there is no requirement for OSHA officials to show probable cause to obtain a warrant.
• Upon the recommendation of an inspector, an OSHA official may calculate fines, prescribe abatement for hazardous condition, and issue a citation.
• The employer may contest the fine and abatement w/ a timely filing to the Occupational Safety and Health Review Commission (OSHRC). After hearing from the employer and OSHA, and administrative law judge renders judgment.
• Either the employer or OSHA may appeal an adverse ruling to the U.S. Court of Appeals for the applicable circuit.
• While OSHA rules are promulgated and enforced by the secretary through the OSHA administration, the act does have implications for individual employees.
  • No private right of action - Remember that OSHA does not create a private right of action.
  • Employee Complaints - Employees can complain to OSHA, either individually or through their union, and request that OSHA make inspections and/or initiate legal action.

Protection from retaliation against employees - Section 11(c) of OSHA prohibits employers from firing or otherwise retaliating against employees for actions taken in regard to workplace safety and health issues, including

1. Complaining to OSHA
2. Refusing to perform work that the employee reasonably believes, in good faith, to present the danger of death or serious injury.
3. Taking other actions w/ regard to health and safety on the job.

• Like all other provisions of OSHA, 11(c) does not create a private right of action. Therefore, employees who are the victims of alleged retalitaion can request OSHA to take action of their behalf, but cannot sue under OSHA.

The Employee-Misconduct Defense

• Where the dangerous condition giving rise to the violation was created by employees and was not reasonably preventable by the employer, the employer may assert the employee-misconduct defense.
• To assert the employee-misconduct defense, the employer must meet a 4-part test (Jensen Construction Co.)
  • The employer has attempted to discover unknown violations
  • These rules have been adequately communicated to workers
  • The employer has attempted to discover unknown violations
  • The employer has corrected violations when they have been discovered
• While the 4-part test focuses more on the employer's overall safety program, courts also scrutinize the violation itself. Thus, courts also look to whether the violation at issue was isolated, caused by an employee, unknown to the employer, and contrary to the employer's instructions and uniformly enforced workplace rules.

No-fault insurance regimes