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==Special Issues in Rights of Action== ===Implied Rights of Action=== ''Tex. & Pac. Ry. Co. v. Rigsby'' *Rigsby was employed by the RR as a switchman - he was engaged in taking some "bad order" cars to the shops to be repaired. Rigsby rode the top of one of the cars - in order to set the brakes and as he was descending from the car, he fell as a defect in one of the handholds or grab-irons that formed the rungs of the ladder, sustaining personal injuries. *Assumption of risk is a defense; no need to put that in unless there is a possibility for a cause of action (implied cause of action) *Strict liability *Courts decide to see an implied right of action; statute leaves it open *A disregard of the command of a statute is a wrongful act, and where it results in damage to one of the class for whose especially benefit the statute was enacted, the right to recover for damages from the party in default is implied. *ISSUE: Whether the defective condition of the ladder was due to D’s negligence is immaterial, since the statute imposes an absolute and unqualified duty to maintain the appliance in secure condition. *The employee’s knowledge of the defect does not bar his suit! *HOLDING: Strict liability – they were required to keep the appliance in a safe condition ''J.I. Case Co. v. Borak'' * Borak owned shares of stock in J.I. Case. Case's managers sought to merge Case w/another company ATC. The merger could not happen unless a certain percentage of Case's shareholders approved it. Case's managers sent a proxy solicitation to shareholders, Borak alleged the solicitation contained false statements and if not for the false statements the shareholders would not have agreed to the merge and the merge negatively affected the value of Case's stock. * D sued to block the merger because of false statements; managers solicited proxies so they could vote amongst the shareholders. * ISSUE: Whether Section 14(a) of the federal securities exchange act of 1934, creates a private right of action on behalf of those who suffer losses by virtue of conduct that violates it. * Makes it “unlawful for any person…to solicit or to permit the use of his name to solicit any proxy or consent or authorization in respect of any security…in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors” **The SEC implicitly allowed private right of action on behalf of those who suffered losses by virtue of conduct taht violated it. **No specific reference to private right of action **“protection of investors” implies availability of judicial relief where necessary *Ct identified a 4 part test designed to determine whether to infer a private right of action from a statute **Is the plaintiff one of the class for whose benefit the statute was enacted(Rigsby)? **Is there any indication of legislative intent explicit or implicit to create such a remedy or deny such a remedy? **Is it consistent with the purpose of the legislature to imply such a remedy? **Is the cause of action one traditionally relegated by State Law? ''Cannon v. University of Chicago'' (CB 364): * The question of the existence of a private right of action is basically one of statutory construction. * “When Congress intends private litigants to have a cause of action to support their statutory rights, the far better course is for it to specify as much when it creates those rights. ''Touche Ross & Co. v. Redington'' (CB 364-65): *The source of the Ps' rights must be found, if at all, in the substantive provisions of the 1943 Act which they seek to enforce, not in the jurisdictional provision. *Court emphasized that generalized references to the “remedial purposes” of the 1934 Act will not justify reading a provision “more broadly than its language and the statutory scheme reasonably permit.” ===''Bivens'' Action=== ''Bivens v. Six Unknown Agents of Federal Bureau of Narcotics'': *4th amendment provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. That money damages are applicable, even though not specifically stated in the Constitution. *ISSUE: Whether violation of that command by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. * It is well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done. * The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. * HOLDING: It does. Having concluded that his complaint states a cause of action under 4th Amend., court holds that he is entitled to recover money damages for any injuries he has suffered as a result of the agents’ violation of the 4th Amend. *If something is implied by the Constitution, the Court does not have to wait until Congress says something *The Constitution trumps all! ===Section 1983 actions=== # 42 U.S.C. § 1983 # Allows a federal claim for someone acting under color of state law ## Against state police in federal court and in some cases, agasint private individuals who are acting like state authorities # Implied rights of action under other Amendments (IE: 5th and 8th Amendments) ===Wrongful Death, Survival Action, & Loss of Consortium=== '''Wrongful Death Action''' *''Wrongful death'': pain and suffering suffered by persons closely connected to victim *P is suing for loss suffered due to the tortuously inflicted death of a close relative *Spouse, parents, and children are usually permitted to bring the action *Initially only could receive pecuniary losses **Now can recover lost support and other benefits *''Proof Problems'' **P must prove w/some degree of certainty the losses suffered from the tortuous act **Must establish relevant time period for support, focus on the value of the support that would have been provided as well as value of lost services **Ps need to provide factual support for claim of damages not pure speculation *''Defenses'' **P’s own fault (parent not supervising child) affects her recovery **The deceased’s own fault affects the wrongful death heir’s recovery '''Survival Actions''' *''Survival action'': pain and suffering suffered by victim brought by the decedents estate (It is what they would have been able to bring had they survived). *Like wrongful death actions, created by statute *A survival action is the continuation of the decedent’s action against the tortfeasor **Continues pre-existing claim **Action is brought by the administrator, executor, or personal rep of decedent’s estate **The rep can recover any damages the decedent would have if lived **Also, any defenses that could have been raised against the decedent could be raised by the rep *Where D’s conduct leads to instantaneous death of P, there is no survival action available to P’s estate *Does not need to cause death for a survival action *Pre-death injuries are the basis for the claim *Survival action typically allows estate to recover decedents’ medical expenses, lost wages, and sometimes pain and suffering *Post-death are recoverable in wrongful death actions *There is no survival action for instantaneous death '''Loss of Consortium''' *Loss of consortium is a claim from someone who is related to (closely connected to) the direct victim of tortuous conduct where the victim doesn’t die to recover the lost value of the services the victim provided *Economic loss as well as intangibles such as companionship, comfort, and sexual services. Is not an automatic recover Must prove loss. *Statutes broaden what and who can recover *All states now allow for spousal loss of consortium *Victim is still alive *Conduct of the initially injured party may affect recovery **What about loss of parental consortium? **Recent movement to expand it to parents and children * In some courts it only applies where you can show pecuniary (money) losses. '''5 doctrines where you don’t have to be physically injured:''' *Wrongful death *NIED *IIED *Assault *False imprisonment ''Externalities'': costs to conduct bore by people outside of that conduct (i.e. RR causing harm from conduct to people outside the railyard) ''Internalize'': cost absorbed by party causing the harm i.e. oil company moving petroleum in large single-hull tankers to save money because old spill is less expensive than double-hull vessels; costs compensated by oil company for oil spill '''''Nelson v. Dolan''''' : wrongful death action * noted that no recovery for mental suffering or bereavement or as a solace on account of such death *a cause of action for an injury to a personal estate survives the death of the person entitled to the same * Wrongful Death Action ** The damages recoverable, the disposition of the avails obtained, and the measure of recovery in a wrongful death action are all fixed by statute. **The ct. recently reaffirmed that damages on account of mental suffering or bereavement or as a solace to the next of kin on account of the death are not recoverable. ** General Rule: Where a statute has been judicially construed and that construction has not evoked an amendment, it will be presumed that the Legislature has acquiesced in the ct’s determination of its intent. *Decedent Nelson’s Damages: Statute plainly limits a recovery to the loss suffered by a decedent’s next of kin. It provides no basis upon which to recover a decedent’s own damages. * Survival Action: there's no action for instantaneous death. * Estate Action: Whether the decedent’s estate may recover for mental anguish a decedent consciously suffers by the apprehension and fear of impending death prior to sustaining fatal injury. **Court has long permitted a decedent’s estate to recover for the conscious physical pain and suffering the decedent endured after a negligently inflicted injury resulting in death. **Also has long recognized postinjury mental anguish as an element of damages recoverable in personal injury actions.

Return to Special Issues in Rights of Action; Wrongful Death, Survival Action, Loss of Consortium.