Torts II Outline - 1L Notes PDF

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TORTS II OUTLINE I.

LIMITED DUTY A. Failure to Act i. Commonwealth v. Peterson  Facts: On April 16, 2007, at 7:30 a.m., police responded to a shooting at a Virginia Tech dorm. Virginia Tech Police, Blacksburg Police, and Virginia State Police all became involved in the investigation. Based on the evidence at the crime scene and the fact that the shooting occurred in a dorm room, the police felt that it was an isolated, domestic, “targeted” shooting; that the shooter had fled; and that no others were in danger. In light of this account from all three police departments, Virginia Tech officials believed the same. Virginia Tech officials sent a campus-wide email stating that there had been a shooting on campus and urging all to be on the lookout for suspicious activity. However, at approximately 9:45 a.m. that morning, a mass shooting occurred at a different Virginia Tech dorm, killing, among others, Erin Peterson and Julia Pryde. At that point, Virginia Tech officials sent out a campus-wide email stating that there was a shooter on the loose and advising all to stay inside until further notice. The administrators of Peterson and Pryde’s estates (plaintiffs) brought a wrongful death suit in Montgomery County Circuit Court against the Commonwealth of Virginia (Commonwealth) (defendant), arguing that Virginia Tech officials breached their duty to warn students of the possible danger after the first shootings occurred. The circuit court found that: (1) a special relationship existed between Virginia Tech officials and the decedents, imposing a duty on Virginia Tech to warn the decedents of the potential danger of the shooter, and (2) the Virginia Tech officials breached that duty. The Commonwealth appealed.  Issue: Even if a special relationship exists, is there a duty to warn of an unknown or unforeseeable danger of third-party criminal acts? (NO)  Rule/Application: Certain special relationships, such as that of a common carrier/passenger, innkeeper/guest, and employer/employee, impose a duty to warn only of a known or reasonably foreseeable danger of third-party criminal acts. Generally, there is no duty to warn another of the criminal acts of a third party. However, certain special relationships—such as that of a common carrier/passenger, innkeeper/guest, and employer/employee—impose a duty to warn when the danger of third party criminal acts is known or reasonably foreseeable. Additionally, other special relationships, such as those of owner/invitee or landlord/tenant, give rise to a duty to warn only when there is “an imminent probability of injury” resulting from a third

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party’s criminal act. In the present case, the court assumes, arguendo, that a special relationship existed between Virginia Tech officials and the decedents as students and that relationship gave rise to a duty to warn when the danger of third-party criminal acts was known or reasonably foreseeable. Even assuming such special relationship, however, the facts of the case did not give rise to a duty to warn students. Although Virginia Tech officials knew that there had been a shooting on campus and that the shooter was on the loose, they had reports from Virginia Tech Police, Blacksburg Police, and Virginia State Police that the shooting was an isolated incident and that the shooter had fled and posed no dangers to others. Based on this information, it was not reasonably foreseeable that the shooter would put any other students in danger.  Conclusion: As a result, Virginia Tech officials did not have a duty to warn or protect other students of potential danger from third-party criminals. The circuit court is reversed. Hegel v. Langsam  Facts: The plaintiffs’ daughter attended a university and started to hang around with criminals and abuse drugs. The plaintiffs sued the university for negligence in allowing their daughter to do this. The defendant filed a motion for a judgment on the pleadings.  Issue: Do universities have a duty to regulate the private lives of their students? (NO)  Rule/Application: Universities do not have a duty to regulate the private lives of their students. As a result, the student’s parents have failed to state a cause of action.  Conclusion: The defendant’s motion for judgment on the pleadings is granted. L.S. Ayres & Co. v. Hicks  Facts: The plaintiff, a six-year-old, was in the defendant’s department store when he fell and injured his fingers in the store’s escalator. The defendant negligently delayed stopping the escalator which made the plaintiff’s injuries worse. The plaintiff brought suit for his injuries and the trial court found in his favor. The defendant moved for a new trial and the motion was denied. The defendant appealed.  Issue: Does an invitor have a duty to help or rescue an invitee helpless or in danger on the invitor’s property? (YES)  Rule/Application: A party may be under a legal duty to rescue a person who is helpless or in a situation of peril when the party is an invitor of the person, or when an injury results from use of an instrumentality under the control of the party. Although there is no general duty to rescue a person in danger, a legal duty arises when a party is an invitor of the endangered person, or when an injury results

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from use of an instrumentality under the control of the party. This represents a principle of social conduct that is “so universally recognized” that a duty must be created. In the present case, the plaintiff was an invitee in the defendant’s department store. In addition, the plaintiff was injured using an escalator—an instrumentality under the control of the defendant. Consequently, a duty arose for the department store to assist the child after the initial injury occurred. When the defendant negligently delayed shutting off the escalator, it violated its duty and is liable for that breach. However, the defendant is only liable for the aggravation of the plaintiff’s injuries after the initial injury occurred because that is when the duty to rescue came about.  Conclusion: As a result, the trial court’s award of full damages must be reduced. The judgment is reversed and the defendant’s motion for a new trial should be granted. J.S. and M.S. v. R.T.H.  Facts: R.T.H. (John) (defendant) was criminally convicted of sexually assaulting his neighbors, J.S. and M.S., ages 12 and 15 (girls) (plaintiffs). The girls had gone to John’s barn almost daily and spent a considerable amount of time alone with him riding and caring for his horses. The girls and their parents brought a civil suit against John and added his wife, R.G.H. (Mary) (defendant), as a defendant, claiming that she was negligent in that she knew or should have known about her husband’s “proclivities/propensities.” Mary conceded that she knew or should have known about her husband’s “proclivities/propensities” and moved for summary judgment. The trial court granted Mary summary judgment. The appellate court reversed and remanded to grant the plaintiffs extended discovery. The Supreme Court of New Jersey granted Mary’s petition for certification.  Issue: Does a wife have a duty to prevent or warn of her husband’s sexual abuse or propensity for sexual abuse? (YES)  Rule/Application: When a wife has actual knowledge or a special reason to know of the likelihood of her husband engaging in sexual abuse against a particular person, she has a duty to prevent or warn of the abuse. Many factors go into a determination of whether to impose a duty on an individual or class of individuals. These include the foreseeability of the harm, the interests and relationships of the parties, and public policy, among others. Each of these factors weighs in favor of imposing a duty on a wife to prevent or warn of her husband’s sexual abuse. In terms of foreseeability, a wife is in a unique position to foresee abusive actions on the part of her husband. since she is around him all the time and usually knows him and his tendencies better than anyone. In addition, the abuse often occurs on the property

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of the husband and wife. Similarly both the parties’ interests and public policy both favor imposing a duty on the wife. The interest of protecting children from abuse cannot be overstated. That interest is of the utmost importance and imposing a duty on the wife of an abuser serves to protect that interest. In the present case, the court finds that Mary has violated her duty. She knew that the girls spent a considerable amount of time with John alone in the barn and that there were significant opportunities for abuse. She also admitted that she “knew or should have known of her husband’s proclivities/propensities.” She thus had a special reason to know of the likelihood of John engaging in sexual abuse against J.S. and M.S. in particular.  Conclusion: She did not try to prevent or warn of that likelihood and so violated her duty. The judgment of the appellate court is affirmed. Tarasoff v. Regents of University of California  Facts: Tatiana Tarasoff was a student at the University of California, Berkeley, under the leadership of the Regents of University of California (Regents) (defendant). She and her fellow student, Prosenjit Poddar, briefly shared a romantic interaction on New Year’s Eve 1968. After that, Tarasoff was unresponsive to Poddar’s advances and dated other men. This all aggravated Poddar, and he went to see Dr. Lawrence Moore, a psychologist employed at the university’s medical center. Poddar confessed to Moore that he intended to kill Tatiana. Moore diagnosed Poddar as suffering from a mental disorder and recommended he be involuntarily committed for a short time. Poddar was released, however, after he appeared rational. Moore’s boss allegedly told him not to have any further involvement with the case. At no point did anyone associated with the Regents warn Tatiana or her parents of possible danger. On October 27, 1969, Poddar killed Tatiana in her home. Tatiana’s parents, the Tarasoffs (plaintiffs) brought suit against the Regents alleging they were negligence in failing to warn them of the danger to Tatiana. The trial court held for the Regents, and the Tarasoffs appealed.  Issue: Does a therapist ever have a duty to warn a potential victim of possible harm from third parties? (YES)  Rule/Application: When a therapist learns from his patient about intent to do harm to a third party, the therapist has a duty to take reasonable precautions given the circumstances to warn the potential victim of danger. The Regents’ physicians involved in treating Poddar had a duty to warn Tatiana of potential danger after Poddar disclosed his intent to kill her. Their failure to warn constitutes actionable negligence. When a therapist learns from his patient about intent to do harm to a third party, the therapist has a duty to take reasonable

precautions given the circumstances to warn the potential victim of danger. The extent of a therapist’s duty to warn may depend on the foreseeability of harm to the plaintiff, as well as other factors. Even though the therapist-patient relationship is highly confidential and protected from disclosure, public policy concerns supporting the protection of victims from foreseeable violence justifies imposing upon therapists a legal duty to warn potential victims. However, the therapist is not required to disclose every threat of violence that may be expressed by a patient in the course of therapy. The therapist may use his professional discretion, but must always exercise “that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the psychology profession under similar circumstances.” While a patient of Dr. Moore, Poddar expressed a clear intent to kill Tatiana. He did not equivocate, but described detailed plans. A reasonable therapist in Dr. Moore’s position should have reported the potential danger to Tatiana or her family.  Conclusion: The failure to do so by Moore and the other doctors employed by the Regents constitutes a breach of their legal duty of care, and they are liable for negligence. The decision of the lower court is reversed.  Concurrence: It is irrelevant whether the therapists “should have” predicted Poddar would kill Tatiana. They actually did predict he would kill her, and thus had a legal duty to warn her and her family.  Dissent: Complete confidentiality is required in the treatment of mentally ill persons. A fear that doctors will disclose their confessions and threats to potential victims will severely inhibit many patients’ treatment. The state legislature already prioritized the confidentiality of the therapist-patient relationship over a therapist’s duty to warn by enacting the California Tort Claims Act. The courts should do the same absent clear legislative direction to the contrary. B. Pure Economic Loss i. State of Louisiana ex rel. Guste v. M/V Testbank  Facts: Two ships, M/V Testbank and M/V Sea Daniel (defendants), collided, causing containers of PCP to go overboard into the Mississippi River Gulf outlet (outlet). As a result of the spill, the Coast Guard closed the outlet and suspended all fishing, shrimping, and related activities. Numerous plaintiffs brought suit and the case was consolidated. The defendants moved for summary judgment on all claims for economic loss not associated with physical damage to a proprietary interest. The district court granted the motion in regards to all plaintiffs with the exception of commercial oystermen, shrimpers, crabbers, and fishermen. A panel of the United States Court of Appeals

for the Fifth Circuit affirmed. The United States Court of Appeals for the Fifth Circuit agreed to reexamine the case en banc.  Issue: May physical damage to a proprietary interest be abandoned as a prerequisite to recovery for economic loss in cases of unintentional maritime tort? (NO)  Rule/Application: Physical damage to a proprietary interest is a prerequisite to recovery for economic loss in cases of unintentional maritime tort. Following the decision in Robins Dry Dock v. Flint, 275 U.S. 303 (1927), physical damage to a proprietary interest is a prerequisite to recovery for economic loss in cases of unintentional maritime tort. To hold otherwise would create a system of limitless liability for torts. If physical damage were not a requirement, it would open the door for countless remotely affected plaintiffs to bring suit, claiming an unbroken chain of consequences resulting in economic loss. There would be no way to effectively draw the line to delineate what plaintiff could and could not recover. The doctrine from Robins Dry Dock is one based on foreseeability, allowing defendants to only be held liable for foreseeable harms and allowing courts to have a predictable standard in place.  Conclusion: Accordingly, in the present case, plaintiffs are not entitled to recovery unless they have suffered physical damage to a proprietary interest. Summary judgment against those plaintiffs which did not suffer physical damage is affirmed.  Concurrence: Courts are ill-equipped manage the broad expansion of liability that would result in holding for the plaintiffs in this case.  Dissent 1: The majority’s decision unnecessarily expands Robins Dry Dock and puts the burden of accidents on the victims. Recovery in economic loss cases should be based on the “conventional tort principles of proximate cause and foreseeability.” Liability under these principles is not limitless as the majority contends, but could be limited by a particular damage requirement.  Dissent 2: Robins Dry Dock applied to interference with contractual rights and should not be expanded beyond that holding into cases such as this. C. Emotional Distress i. Daley v. LaCroix  Facts: LaCroix (defendant) lost control of his car and it went off the road, hitting a utility pole and causing an electrical explosion where power lines met the Daleys’ home. The Daleys experienced emotional distress resulting from experiencing the explosion and brought the testimony of medical experts to show that the distress was accompanied by physical symptoms. Among the Daleys’ ailments were traumatic neurosis, emotional disturbance, and nervous upset. The

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Daleys brought suit for the property damage as well as emotional distress they incurred as a result of the explosion. The trial court granted LaCroix a directed verdict and the court of appeals affirmed. The Daleys appealed.  Issue: May a plaintiff recover damages for negligent infliction of emotional distress even if no physical impact occurred at the time of the negligence? (YES)  Rule/Application: Where a physical injury results from negligently induced emotional distress, the plaintiff may recover damages even if no physical impact occurred at the time of the negligence. Although it has been traditionally held that some physical impact is a prerequisite for recovery for negligent infliction of emotional distress, the court hereby alters that rule in the state of Michigan. Instead, the court holds that where a physical injury results from negligently induced emotional distress, the plaintiff may recover damages even if no physical impact occurred at the time of the negligence. The court adopts this rule because of the increasing number of courts’ formation of exceptions and direct repudiation of the physical impact requirement. In the case at bar, the Daleys have presented sufficient evidence of their physical damages that a jury could reasonably find a causal relationship between the explosion and the injuries alleged.  Conclusion: Accordingly, a directed verdict is inappropriate. The lower courts are reversed and the case is remanded for a new trial.  Dissent: Even following the majority’s new rule, a directed verdict is appropriate because the Daleys did not suffer any definite or objective physical injuries. Traumatic neurosis, emotional disturbance, and nervous upset are at best indefinite and subjective. Thing v. La Chusa  Facts: John Thing was hit by a car driven by James La Chusa (defendant) and seriously injured. Thing’s mother, Maria (plaintiff), did not hear or see the accident, but was close by when the accident occurred and ran to the scene when she heard about it. Upon arrival at the scene, she saw her son lying in the street bloody and unconscious. Maria brought suit for emotional distress cause by La Chusa’s negligence in striking John. The trial court granted summary judgment to La Chusa. The court of appeals reversed. La Chusa appealed.  Issue: May a plaintiff recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if she was not an eyewitness to the act that caused the injury? (NO)  Rule/Application: A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if the plaintiff is closely related to the victim, present at the scene of the injury when it occurred, and aware that the victim was

being injured. With this rule, the court seeks to provide a clear standard for recovery when a plaintiff witnesses an injury to a third party. This standard avoids limitless liability to non-physically injured victims while at the same time holding tortfeasors responsible for the effects of their actions on people other than those who suffered the physical injury. When this standard is applied to the present case, Maria is unable to recover on her emotional distress claim because she was not present when her son was struck by the car.  Conclusion: As a result, summary judgment is proper and the court of appeals is reversed.  Concurrence: Plaintiffs should be able to recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if they were in the “zone of danger” when the injury occurred and were “put in fear of their own safety.”

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OWNERS AND OCCUPIERS OF LAND A. Outside the Premises i. Taylor v. Olsen  Facts: Taylor (plaintiff) was driving her car down a road when it crashed into a fallen tree. The tree was alleged to have fallen from the land of Marion Olsen (defendant). Upon inspection of the tree, it was found that the center was decaying, but that this decay was ...