Torts Outline PDF

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Torts Outline 

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Negligence Negligence: Failure to heed duty of care owed to another that causes injury to another o Most commonly used by accident victims to obtain redress (torts) o 4 requirements for Prima Facie Case: 1) P has suffered an injury: issue of fact for the jury  Physical harm: bodily, or damage to or destruction of tangible property o Majority of negligence suits  Loss of wealth (economic loss)  Emotional stress 2) D owed a duty to a class of persons including P to take care not to cause an injury of the kind suffered by P: issue of law for the judge 3) D breached that duty of care: issue of fact for the jury 4) D’s breach was an actual and proximate cause of P’s injury: issue of fact for the jury Liability: tortfeasor’s obligation to pay comp to the victims of tort o 1) legal wrongs = recognized by legal statutes/judicial decisions o 2) relational wrongs = wrongful towards a person o 3) Injurious wrongs = involve injurious misconduct o 4) Civil wrongs = generates in the victim the power to respond through civil lawsuit Duty: General There is a general duty of care to exercise due care against physically harming anyone whom he might reasonably foresee physically harming were he to perform conduct carelessly. Related: general obligation to take care for the physical well-being of customers/their property o Requirement (conventional): Need to establish that D owed P an obligation to take care not to cause the type of injury that she has suffered o Other factors for determining duty:  Misfeasance  Foreseeability and public policy (Mussivand)  Expectations of use (MacPherson)  Tarasoff factors (CA or policy related)  Proximity is related but not a given  Usually requires taking pains to qualify duty with various limitations Evolution of Duty Rules  The Privity Rule – If D has a contract with C who sells/gives something to P and P is injured as a result, P may not be able to sue D because P is not privy to the contract between D and C. (Winterbottom v. Wright: injured carriage driver could not sue manufacturer since he was not privy to contract between his employer and the manufacturer.)  Imminent Danger or serious harm rule – D can be liable if death or great bodily harm of some person was the natural and almost inevitable consequence of the product being made defectively, therefore putting life in imminent danger. (Thomas v. Winchester; mislabeled poison as medicine, sold through distributor, D found liable even though not privy.) (Loop v. Litchfield, p 58; wheel worked for 5 years prior, so no imminent danger.)  Known danger & Known Use – Beginning of product liability—manufacturer of dangerous product (not inherently dangerous, but dangerous because of undetected defect) owes duty to those who use the product; if there is knowledge that item will be used by someone other than purchaser w/o new tests, then, irrespective of contract, manufacturer of dangerous thing is under a duty to make it carefully (MacPherson v. Buick, p 59; car maker owes duty to car owners—decided in light of changing industry.) o  Policy Change: giving incentive to industries to clean up their act (but NOT turning over Winterbottom). Cardozo looks to products that are inherently or imminently dangerous; more suits against manufacturers o Did not do away with [rivity, but instead extended imminent danger to include foreseeable use

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Reasonable Foreseeability – Duty rests on this – who can you reasonably foresee being harmed by your careless conduct? Liable if nature of product reasonably certain to place life and limb in peril where negligently made and 1) Knowledge of danger probable and 2) danger shared by others. Knocks out privity rule: Duty to take care is imposed by law. Duty runs from manufacturer to customer, with an intervener who only plays a minor role (intervening wrongdoer is a different case and often destroys the reasonable foreseeability). (Mussivand v David, p67; Wife’s lover owed duty to her husband to disclose STD—but not once wife knew about STD. At that point, it’s on her.) Court can qualify or limit duty based on foreseeability or public policy

Qualified Duties of Care: o Misfeasance: willful inappropriate/incorrect action or taking care not to cause foreseeable physical injury or property damage  Duty exists  Ex- D is a boat owner who invites S onto his boat. D drives carelessly and the boat capsizes, pinning S underwater and drowning her (misfeasance) o Nonfeasance: doing nothing; D plays no role in P peril and merely stood by as observer  There’s no duty and the plaintiff must establish a special circumstance in order to prevail with a claim  Ex- D happens upon S flailing in the water and declines to throw nearby life preserver to S who drowns (nonfeasance)  NOTE: non v. mis is not acting v. not acting, as omission to act can be misfeasance sometimes o BIG THEME: duty and breach are very difficult to pull apart

Winterbottom vs. Wright: Privity rule (England 1842) -Set precedent for next 75 years that cannot recover tort without contractual privity between plaintiff and the manufacturer

Thomas vs. Winchester (NY Ct. of Appeals 1852) Imminent Danger Winchester’s negligence put human life in imminent danger.

Series of privity/imminent danger/inherent danger cases where P wins to show

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DUTY: GENERAL CASES Facts: Winterbottom was employed by a company to deliver mail. The wheel of the carriage broke that he was delivering mail on and he had permanent damage to his leg and sued the manufacturer of the wheel. Rule: No: In Winterbottom v. Wright, the court held that a plaintiff who is injured by carelessness on the part of a product manufacturer may not recover in tort absent contractual privity between plaintiff and the manufacturer. Application: Here, Although the wheel did cause the harm, Winterbottom cannot sue its manufacture because he is not privy to the contract between the manufacturer and his employer. There is no recovery.  Lord Abinger: concerned with floodgates - privity of contract was THE line, but you just need some sort of line; you have to be ready to say why this is the right line, why there is no other line that would be good  Baron Rolfe: Winterbottom and Wright are complete strangers, there is nothing owed to him, they have no contract and CONTRACT IS THE ONLY PLACE SOMETHING OWED MIGHT BE FOUND “damnum abseque injuria”- harm without wrong Facts: Company had mislabeled poison as if it were medicine causing a woman to be poisoned. Company argued it had sold bottle to a distributor who sold it to a pharmacist so did not owe her anything. Rule: In Thomas v. Winchester, the court held that a manufacturer can be held liable to a customer if death or great bodily harm was the natural and almost inevitable consequence of their negligence, thus creating an imminent danger. Application: Here, unlike in Winterbottom, Winchester’s negligence of mislabeling poison put life in imminent danger, as death or great bodily harm were natural and almost inevitable consequences of their mislabeling, thus creating an imminent danger. It doesn’t matter in this case that he was not privy. Duty here arose out of the nature of Winchester’s business. Loop vs. Litchfield 1870 (Privity): Litchfield (made wheel) Collister (bought wheel)  Loop (leased wheel). Loop was not privy to the contract between Litchfield and Collister Losee vs. Clute, 1873 (Privity): Manufacturer exercised no control over the boiler upon installation and a duty of care in manufacturing was not owed to

evolution until MacPherson

Heaven vs. Pender (1883) LIKE MACPHERSON, DOES AWAY WITH PRIVITY RULE FOR THIRD PARTIES

MacPherson v. Buick Motor Co. (NY 1916) Basically overrules Winterbottom; Throws out the privity rule; if expected to be used by a 3rd party , will be liable in negligence to that 3rd party

Mussivand v. David (1989) A person with a communicable disease owes a duty not to infect a reasonably foreseeable affected 3rd party

owners of the property adjacent to the mill because they were not privy as third parties. Devlin vs. Smith, 1882 (imminent danger): Upheld Thomas standard for painter being killed due to bad scaffolding because of imminent danger. Scaffolding builder owed duty of care to third parties who might use scaffolding because it was imminently dangerous to human life if negligently made. Torgesen vs. Schultz, 1908 (inherent danger): Domestic servant opened seltzer by owner and injured eye. Court upheld for imminent danger (inherently dangerous instrument) Statier vs. George A. Ray (inherent danger): Same conclusion as Torgesen when plaintiff was injured by coffee urn Facts: The defendant [Pender] owned a dock. The plaintiff [Heaven] was painting a ship docked at the defendant's dock. He was employed to do so by the ship owner (no contract with defendant). The dock was defective, and the plaintiff was injured while painting the ship. The painter sued the dock owner. Issue: Can third parties be owed a duty of care? Rule: In Heaven v. Pender, the court held that an unqualified duty to take reasonable care not to cause physical harms is owed to another whenever a person of “ordinary sense” would recognize that careless conduct on his part would create “danger of injury to the person or property of another.”  Today this has been recast as the reasonable foreseeability test: so long as physical harm to the plaintiff or the class of persons in which he resides is a reasonably foreseeable consequence of an actor’s careless conduct, the actor owes a duty not to cause such harm Facts: An automobile manufacturer obtained wheels for its cars from a separate manufacturer then sold the cars to car retailers. A man purchased one of defendant's vehicles from a dealer and was injured while riding in the vehicle when it collapsed due to defective wood. Man sued manufacturer for negligence. Rule: In MacPherson v. Buick Motor Co., the court held that if the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If there is also added knowledge that the thing will be used by persons other than the purchaser and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. There must be knowledge of danger, not merely possible, but probable danger that will be shared by others than the buyer. The proximity or remoteness of the relationship is a factor to be considered  Expands Thomas vs. Winchester: not limited to imminently dangerous things AND if there is knowledge to be used by a 3rd party person, the manufacturer has a duty to make it carefully; Duty to inspect Facts: A wife was infected with an STD by her lover and she then infected her husband. Her husband sued her lover. Rule: In Mussivand v. David, the court held that a person with an STD owes a duty of care to the spouse of his/her lover but the duty does not generate a right to sue if the lover knew or should’ve known. Duty is the court's expression of the total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection. A number of considerations may justify the imposition of duty in particular circumstances, such as public policy and moral and social judgments. Application: Here, a reasonably prudent person would foresee that a wife and husband will engage in sexual relations. The lover would not be responsible to all parties, but spouses are reasonably foreseeable. Once the wife finds out, it is no longer the lover’s liability. There is also a public policy reason: health. Duty: Limited and Qualified Duties of Care

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Limited/Qualified duty of reasonable care exist (nonfeasance):

Pure emotional distress: There is no duty to take care not to cause people pure emotional harm o Pure economic loss: Generally, there is no duty to look out for another person’s economic well-being. o Affirmative duty or duty-to-rescue case: There is no general duty to rescue others from physical harm (Good Samaritan statute) o Premises liability case: Permitted or maintained unreasonably dangerous conditions on property in his or her possession In all of these cases, duty issue will be “in play” and court will be looking for the plaintiff to show why the defendant was obligated to take care with respect to the plaintiff’s interests (often involve other factors) o when such duties are recognized, they are likely to be qualified by the court rather than treated as creating a broad or unqualified duty of reasonable care o

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1. Affirmative Duty: Failure to Rescue  Generally, there is no affirmative duty to rescue because it is nonfeasance ( Osterlind)  Exceptions to the no duty rule: o Imminent Peril: when D knows their action caused victim to be injured and at risk of further injury, or to be at risk of injury, then D owes duty to prevent P from suffering further harm or prevent the risk of harm from being realized o Voluntary Undertaking: D has volunteered to protect or rescue another from physical injury or property damage; arises from contractual promise or less formal undertaking (alarm company)  Once a rescue is voluntarily undertaken, the rescuer owes a duty to the victim to perform the rescue with reasonable care o Special relationships: pre-tort relationship between D and P OR D and 3rd party who injures P  D knows or has reason to know of P’s peril; Baker v. Taco Bell; Tarasof  Examples: commercial carrier relationship, innkeeper-guest, school-student, employer-employee  Court is weary of recognizing new special relationships giving rise to affirmative duties  Friendship/social relationship might qualify as special relationship, but most courts want more o Reporting obligations: Some states have enacted statutes placing duty on certain individuals who know that a child has suffered injuries and who have reason to believe those injuries were caused by abuse and neglect, to report suspicions to authorities; For incorrect suspicions in TN, statute requires parents to provide evidence of suggestion in “bad faith” o Contract  DEFENSE - Good Samaritan Statutes: you cannot be sued for negligently injuring someone when you’re acting in good faith trying to help someone Courts are divided on this but try to protect Good Samaritans  Do-duty rule is a vestige of primitive law, which adopted formal, across the board rules; modern tort law could afford to align more closely with morality to recognize that a limited duty to rescue others from imminent danger where performing them would cause little or no inconvenience to the rescuer o Common law has continued to resist even easy rescues  No general duty-to-rescue statutes in the US; Some statutes recognize people who owe affirmative duties for particular persons  For exceptions to the general rule of no duty, duty owed is reasonable eforts to rescue 2. Duty to Warn  Not everyone has a duty to warn others under STANDARD tort doctrine including Calif. doctrine. Need a special relationship.  Tarasoff: doctrinal argument for the defendant? They don’t even know each other, the doctor never met Tatiana. He was never her doctor

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Nonfeasance case – source of danger was not the D but someone else so default position is there’s no duty  Comeback is that there’s a special relationship  Comeback to the comeback is that you need a special relationship between the D and the victim o No sound evidence that therapists can see what their patients are going to do o Can’t be D’s duty of care to the patient because recognition of that is inconsistent with the duty of confidentiality and fiduciary responsibility of doc to patient o Policy argument: if you create a duty that would involve breaching confidentiality, it would disincentivize people – there’s now a duty to reveal what are going on in your patient’s head Tarasof rule is accepted in the majority of states if the question has arisen whether there is a duty for psychotherapists o NY Ct of Appeals have never considered it; jurisdictions vary on what is the duty though – is it to warn? What is the DOCTRINAL argument for the P? When a hospital has notice or knowledge of facts from which it might be reasonably concluded that a patient would be likely to harm himself or others unless preclusive measures were taken, then the hospital must use reasonable care in the circumstances to prevent such harm. P. 126. Why does the fact that he is the DOCTOR of the assailant give him a duty to Tatiana? o

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Osterlind vs. Hill (1928)

Baker v. Fenneman & Brown Prop., LLC (Indiana) Duty of reasonable care that landowners have to invitees Tarasoff v. Regents, University of California

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Qualified Duty: Failure to Rescue/Duty to Warn Facts: A man and his friend were drunk and rented a canoe from a commercial lessor of boats. Their canoe capsized and they called for help for 30 mins but the lessor didn’t help them. The man drowned and the executor of his estate sued the boat lessor. Rule: In Osterlind v. Hill, the court held that a boat owner does not owe a duty to lessees to rescue them from drowning, even if they are intoxicated (nonfeasance case) Application: The canoe owner owed no duty to the drunk man who rented a perfectly safe canoe that needed no repairs and thus flipped it and drowned; the man voluntarily became intoxicated and was clearly not in a helpless state as he cried for help when he flipped the boat. Would be changed under today’s courts from one of three ways:  Misfeasance: renting a boat to drunk person  Special relationship: renting the boat out by the owner  Situation of peril: creating the risk Facts: A man entered a Taco Bell to buy a soda. Fainted, got up afterwards and fell again, this time being knocked unconscious and suffering severe injuries. The man claimed no one at Taco Bell helped him. Rule: In Baker v. Fenneman & Brown, the court held that a business that invites members of the public to enter its facility has a duty to provide assistance to invitees, even if they did not cause the illness or injury. Application: Taco Bell had a duty to rescue Baker as Taco Bell was a landowner that invited Baker as an invitee online his property. Taco Bell failed to conform its conduct to that standard of care Court must balance three factors:  1) relationship between the parties 2) reasonable foreseeability of harm to the person injured 3) public policy concerns Facts: Poddar is a patient at UC Berkley; therapist finds that there is sufficient reason to believe that he will injure Tarasoff; parents of Tarasoff call campus police to detain Poddar, he is released. When the parents find out that he is released they give up; Poddar returns and kills Tarasoff; Tarasoff’s parents bring suit – the therapist should have done something, they don’t really know what he should have done. Rule: The extent of a therapist’s duty to warn may depend on (1) foreseeability of harm to the plaintiff, (2) certainty of plaintiff’s injury, (3) proximity between wrongful conduct and injury, (4) degree of certainty that the P suffered injury, (5) the blameworthiness, (6) the deterrent effect, and (7)

the burden to the community of too much liability and litigation, and availability/cost of insurance.  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.  The therapist is not required to disclose every threat of violence expressed by a patient during therapy. Defendant therapists cannot escape liability merely because victim herself was not their patient. When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable ...