Torts Ouline 11.25

8/3/2019 Torts Ouline 11.25

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1. Intro to Tort Liabilitya. When should unintended injury result in liability?

i. Hammontree v. Jenner1. Refusing to apply strict liability to auto drivers2. The driver is only liable if the seizure is foreseeable and he took no

special actions to prevent it. Thestandard for liability is essentiallynegligence. D did not have areason to expect to have a seizure and wastherefore not liable. Strict liability doesnt apply to drivers.

b. The litigation processc. The parties and vicarious liability

i. Christensen v. Swensonii. Roessler v. Novak

2. The Negligence Principlei. Brown v. Kendalldog fight and man intervenes with stick and injures other

mans eye while trying to break up the dogs issue with jury instruction1. Must either show it was unlawful intention or that D failed to act with

ordinary care2. This case was lawful intention and acted with ordinary care3. Ordinary care = degree that prudent or cautious man would use, such as

required by the exigency of the case, and such as is necessary to guardagainst probable danger.

4. If the injury was unavoidable5. Strict liability for unintentional harm is dependent up on if it is

immediate effect or only a consequenceconsequence in this instanct

b. The Central Concepti. The standard of care

1. Adams v. Bullockboy swinging and hits trolley line and electrocuteda. Unforeseeable accident, no custom had been disregarded

b. Usual precautions and an extraordinary eventc. Duty to adopt all reasonable precautions was not breached

2. United States v. Carroll Towing Co.a. Adjusting lines of a ship and Anna C broke and slammed intoand sank tanker shipno bargee aboard the Anna C was thatnegligence?

b. Hand formulaB< P x I (burden, probability, injury)c. Actor is in breach if the burden of taking measures to avoid the

harm would be less than the multiple of the probability of thekind of incident times the gravity of the harm should it occur

d. Owner of Anna Cs duty if a function of the formula crowdedharbor and he was bargee was gone without excuse so yes,liable.

e. Risk/Benefit Standarddo things that are worth preventingf. Balancing test that is used to determine breach of dutyii. The Reasonable Person

1. Bethel v. New York City Transit Authoritya. COMMON CARRIER

b. Court abandoned the old rule holding common carriers to thehighest degree of care. -

c. Remanded to trial with the instruction that common carriers aresubject to same duty of care as anyone elseOrdinary person


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i. But, circumstances still must always be taken intoaccount

ii. Corporate entity is can be reasonable person too2. Reasonable Person Rules

a. Dumb doesnt matter same standardVaughn v. Menlovedumb guy with the hay that caught on fire

b. Insanitysometimes but not alwaysBashi v. Wodarzcourtdidnt buy that suddenly stricken with insanity is same assuddenly stricken with illness

c. Infant only take precautions of which an infant is able to takei. The reasonable child

d. Exceptions for defects which make certain precautionsimpossiblei.e.blind

c. The Roles of Judge and juryi. Baltimore & Ohio Railroad Co. v. Goodman

1. Goodman drove across railroad with looking listening or stoppingnoreasonable person could have found in favor of P so court directed averdict for D

2. Rule: normally question of due care is left to finder of fact but whenstandard of conduct is clear it should be decided by the court

ii. Pokora v. Wabash Railway Co.1.

iii. Andrews v. United Airlines, Inc.1. COMMON CARRIER2. Brief cases fell and injured Andrews out of compartment and expert

testimony revealed there had been 135 similar accidentsdistrict court

rule in favor of airline3. Overruled- should have been up to the fact finder to decide if common

carrier was using diligent care

d. The Role of Customi. Custom is evidence of reasonable person standard because a reasonable personwould know the cost of avoidance

ii. Trimarco v. Klein1. P fell through glass door of tub at apartment. And D the landlord.

Custom for 20 years to use plastic or safety glasscourt overturned andruled in favor of D

2. Rule: custom may be proved to show that D has fallen below thestandard of carerelevant but not determinative.

3. Proof of customary practice coupled with showing that it was ignoredand that departure was PROXIMATE cause MAY serve to establishliability

4. The case was enough to send it to the jury to decide at the time of theaccident if th cost and availability of safety glass and the growing customof using it had transformed what was once a safe part of the apartment sothat it could no longer be labeled as that

5. *except in malpractice courts reject tat prevailing custom defines thestandard of care

a. so doesnt set the standard of care but may be important factor ofreasonable behavior

i. should show that the custom is in place in order toprevent the incident at issuedumbbell waiters


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b. What usually is done may be evidence ofwhat ought tobedone, but what ought to be done is fixed by a standardofreasonable prudence, whether it usually is complied withornot.

e. The Role of Statutes (Negligence Per Senot on test)i. Martin v. Herzog

1. Martin (P) was killed in a collision between his buggy and Herzogs (D)car. Martin was driving at night without lights and Herzog (D) wasdriving on the wrong side of the road. Herzog claimed that Martins

failure to use headlights constituted contributory negligence and barredhim from recovery.

a. Because he didnt follow the rule of having lights on- a p whotravels without lights does not forfeit the right to recoverUNLESS the absence of lights is at least a contributing cause of

the incident. Negligent conduct doesnt always equate to

contributory negligence

2. To omit safeguards prescribed by law for the benefit of anotherssafetyis to fall short of the standard of diligence to which those wholive inorganized society are under a duty to conform.it is a breach

ii. Tedla v. Ellman1. Injured carriage pushers v. car driverwere walking right of the center

of the road2. violation of a statute is not automatically considered negligence if there

is a good reason to depart from observing the statute

3. was there contributory negligence? No. statute should not be construedas an inflexible command that the general rule of conduct intended to

prevent accident must be followed even under conditions whenobservance might cause accidents.

f. Proof of negligencethese cases focus on Ps burden of proving that Ds conduct fellbelow the standard of reasonable care

i. Negri v. Stop and Shop (slip and fall in grocery store with baby food) -circumstantial evidence enough?court said it was sufficient1. Circumstantial evidence permitted inference that D had constructive

notice of dangerous conditionstory has duty to protect invitees from

known or concealed dangersii. Gordon v. American Museum of Natural History

1. fell on steps after stepping on wax paper2. Butler Rule: in order for there to be constructive notice the defect must

be visible and apparent for sufficient length of time (time to clean up)

dirty baby fooda. Defining constructive notice (breach)evidence of constructive

notice in this caseno reason to believe the paper was there for

a sufficient amount of timeiii. But, business practice rule (lettuce at a salad bar)

1. When the business of the store provided a continuous and foreseeablerisk of harm, P need not establish actual or constructive notice

iv. Byrne v. Boadle (RES IPSA LOQUITUR- IMP.)1. Rule = because owner had complete control, though there is no proof of

how it fell out of the window, the accident speaks for itselfbarrelsdont fall out of windows without someone being negligent

2. RILSHIFTS the burden of proof!!! Not makes out entire case
http://www.lawnix.com/cases/contributory-negligence.htmlhttp://www.lawnix.com/cases/contributory-negligence.html


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3. Flour through window onto street4. Liability for negligence based solely on the type of accident that

occurreda Presumption of negligence so prima facie case unless D canprove otherwise

v. McDougald v. Perry (airborne tire case)1. D appealed instruction on res ipsa loquitur2. RIL applies when

a. Thing that caused injury was in exclusive control of Db. The accident wouldnt have happened without someone being

negligent3. Tire coming loose can only happen if negligence so RIL applies

vi. Jurisdiction treat RIL differentlymost treat it as inference of negligencePstill has burden of production

vii. Day care incident1. Only knowledge is that child is injuredRIL is denied because the

instrumentality producing injury is unknown so jury can only speculate

viii. Ybarra v. Spangard1. RIL and medical treatmentapplicable in this case because they had

complete control and it was one of those instrumentalities and one of thedefendants responsible

2. Policy reasons for RIL: hes unconsciousit wouldnt be fair to makehim prove

3. Woke up from appendectomy with bad shoulder problemsseveralinstrumentalities and no showing which one or which of several

defendants caused it4. The case expanded the second prong of RIL (see below)

ix. Three conditions of RIL: RIL is a rule of evidence which shifts burden of proofto Dpolicy reasons to help people recover that wouldnt be able to prove theircasechief evidence is practically accessible to D but not to P

1. The accident must be of a kind which ordinarily doesnt occur in theabsence of someones negligence (* shoulder injury on appendix op)

2. It must be caused by an agency of instrumentality within the exclusivecontrol of the D (*above case, everyone has some interaction so suedeveryone and they now have the responsibility to speak up)expanded

from actual control to right of control

3. It must not have been due to any voluntary action or contribution on thepart of the plaintiff(*he was unconscious)

x. RIL may be applied with multiple Ds and multiple instrumentalities if there is afinite group.

g. MEDICAL MALPRACTICENOT measured against the reasonably prudent personlike most negligent cases because of the specialized skill is taken into account. HIGHER

standard. Custom (in conformity with common practice) is usually only evidence. Expert

testimonyi. Sheeley v. Memorial Hospital

1. Episiotomy that went wrong done by family practice resident. Expertwitness was an OB/GYN, clinical professor now, retired from practice

but continues to go to conferences and expand her education. Statuterequired a testifying expert to be in same medical field does similar

locality principle stand? Yes2. Locality rule (have to be same rural or city or place): not as relevant as it

was when it was created


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3. Rule: dont have to be in same field if they have the knowledge andexperience. Determination of competency of expert witness is trial judge

discretion unless they abuse that discretionfocus on the procedure andif it was in conformity with recognized standard of care

a. Trial judge abused discretion by excluding her testimony4. Buja case held differently: must be same specialty

ii. *resident held to same standard as physiciannational standards are more likelyto be invoked now, especially if board certified. Some statutes impose otherlimits.

iii. Sides v. St. Anthonys Medical Center1. Can P have an RIL claim and use expert testimony? Developed E-coli

after having surgery in the same spotthe expert was used to show that

it wouldnt happen without negligence - trial court didnt allow experttestimony under RIL theory

2. RULE: yes expert testimony allowed because there is no fund ofcommon knowledge to permit laymen to reasonably draw the conclusion

bridge the gap when necessaryiv. Matthies v. Mastromonaco

1. Old woman with broken hip and he just gave her bed rest and didnt wantto put pins in. The bed rest misplaced her femur and she said shewouldnt have consented to bed rest if she knew it could change her life

to being immobileconflicting evidence if Dr. told her about possibilityof surgery.

2. Did he breach duty by not giving options? Yesthe doctrine of consentrequires that physician obtain patients consent before implementingnonsurgical treatment and must discuss medically reasonable alternatives

that he doesnt recommend. The patient must be able to make aninformed decision and have ultimate choice.

3. The duty requirement: PHYSICAL INJURIESa. Affirmative Obligations to Actspecial relationship is required.

i. Harper v. Herman (guest on Hermans boat) didnt know each other. Harpertook group to a spot he knew. D asked if P was going in. P said yes and dove intothree feet of water, severed spinal cord.

1. Social host and guest = special relationship2. Was he required to warn? A special relationship is required for a special

duty to exist. A special relationship when the other person is deprived ofnormal opportunities of self-protection (custody)

3. So, was he deprived of normal opportunities to protect himself? Thecourt said no he should understand inherent dangers of water.

ii. The most common scenarios of special relationshipsthe court in harper v.herman

1. Common carrier2. Innkeeper3. Possessors of land who hold it open to the public4. Person with custody5. Or the person who creates the harm (not really a special relationship

though)iii. Nonfeasance and misfeasance

1. Nonfeasance is failure to act (omission)2. Misfeasance is an act


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iv. Farwell v. Keaton (two guys drinking, follow girls, get chased by guys, siegrist(D1) escaped but Farwell was severely beaten, D1 put ice on head and left him

asleep in his truck in front of the grandparents house and then he died three dayslater)

1. was there special relationship between people in common undertakingand therefore a duty to render assistance when one is in peril? And is

determination of the duty and issue of fact or an issue of lawa. the court said it was a determination for the finder of fact to

determine if there were circumstances that gave rise to a duty

b. every person has a duty to avoid any affirmative acts which maymake a situation worseif he attempted to aid voluntarily then itis assumed responsibility for that person

c. ample evidence to show breach and duty2. two theories of duty: came to aid and assumed duty. And pre-existing

relationshipknew each other and came to aidv. Randi v. Muroc Joint Unified School District (letters of rec by people who knew

of teachers past allegations and then he sexually harassed another student)1. Customary to not write letter or just verify employment facts if you dont

disclose bad things. Not customary to write raving reviews.2. Public policy on both sides: sexual harassment and encourage rec letters3. General ruleall persons have a duty to use ordinary care to prevent

others from being injured as a result of their conducta. This case rule: Ordinarily a person recommending an employee

should not be held accountable to third persons for failing to

disclose negative information regarding BUT liability may beimposed if the recommendation letter amounts to an affirmative

misrepresentation presenting aforeseeable and substantial riskof physical harm to third person.

4. Use: negligently supplying false information to another, reliance, andthen harm to other or third person

5. Absent of duty doesnt entitle one to speak falselya. Once you choose to actmust act like a reasonable personvi. Adoption case in notes

1. Subject to duty of care based on the fact they provided backgroundinformationliable for supplying false information

vii. Tarasoff v. Regents of the University of California1. Trasoff was murdered and Dr. Moore had warned police that his patient

had mentioned in therapy.2. Generally there is no duty to third parties but there are exceptions

special relationship of needed control or special relationship to protectthe victim

3. RULE: a D owes a duty of care to all persons who are foreseeableendangered by his conduct with respect to all risks that make the conductunreasonably dangerous

a. The avoidance of harm which would require taking someonesown control away or to warn, liability is imposed only if the

defendant has a special relationship with the dangerous person orpotential victim

b. Duty to warn when imminent dangerc. Need to balance considerations in deciding if duty is owed to

third party


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i. Foreseeabilityii. Degree of certainty that P suffered injury

iii. Closeness of connection between conduct and injurysuffered

iv. Moral blame attached to D conductv. Extent of burden on defendant

vi. Consequences to community of imposing duty4. No definite test but foreseeability is the most important5. Court said there was a valid argument that the therapist owed an

affirmative duty to exercise reasonable care to protect the foreseeablevictimmust balance need to protect communication and need to protectsociety

viii. Uhr v. East Greenbush Central School District (didnt check scoliosis one year)1. Enforcement of an education law statute through private right of action?2. ^ available in 2 scenarios

a. statute expressly authorizes private right of actionb. 3 prong test

i. P is part of the class that statute was enacted to benefitii. Whether recognition of private action would promote

legislative purpose1. What legislature sought to accomplish was

enactment2. Would a private right promote ^ that objective

iii. Would the creation of that private right be consistentwith legislative scheme

3. Applying the 3 prong test to this case: fails the 3rd because the statutecarries its own enforcement mechanism (withhold funding) and becauseevident of leg intent to immunize school district from liability

b. Policy Bases for Invoking No Duty - when D creates the harm but no duty because of theentire class of people that could be affected by a line being drawn (i.e. movie producers

liable for a copycat crime)i. Strauss v. Belle Realty Co. (huge power failure and tenant injured in common

area)1. Power company had contract with tenant for his apartment and contract

with landlord for the common area not in Privity for this instance2. Is a duty for a reasonably foreseeable accident owed to someone no in

Privity?a. No, too big of a grouptoo much liabilitybased on public

policy

b. If the aggregate economic impact that it would affect publicinterest that it would cause dislocation like a lack ofservicejust to stand trial we wont allow it. Especially if it is apublic utility.c. duty is defined neither by foreseeability of injury nor Privity ofcontrct

3. consider take-home asbestos casecourt held no duty to wifeii. Reynolds v. Hicks (nephew at wedding, drinks, drives, accident)

1. social host liability2. does a social host who serves alcohol to an underage driver owe a duty of

care to a third person injured by the intoxicated minor? Noa. not the same as a commercial vendor


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b. would case too wide of a neti. vendors are a smaller population than social hosts

c. could make the statute of supplying minors with alcoholargumentmake legal and policy arg.

iii. Vince v. Wilson (grandmother bought son car and she and salesmen knew he hadno license/had failed several times and grandmother knew that he drank and did

drugs)1. Doctrine of negligently entrustment applies to seller and funder? Yes2. Ruleused restatementnegligent entrustment long recognizedone

who supplies directly or through third person a chattel for use of anotherwhom the supplierknows or has reason to know will use it in a matterinvolving unreasonable risk.

iv. Key in the ignition cases1. Negligent entrustmentleave key in car and thief takes itsome state

courts derive liability from violation of statue other dont because thestatute goal isnt safety

2. Palma v. USunlocked I highly dangerous neighborhooda. Factors of duty

i. Areaii. Time period

iii. Size of vehicleb. ConclusionForeseeable risk of harm was posed by the truck

left with keys in ignition or can which created duty to refrainfrom owner exposing third party to risk

c. DUTY of landowners and Occupiersi. Two approaches

1. Traditional (carter v. kinney)ii. Carter v. Kinney (bible group and guy they have no previous relationship or

economic benefit from slips)

1. 3 categoriesa. trespassi. no standard of care is owedexcept frequent trespasser

(may have to put sign up)ii. usually cant willfully or wantonly harm trespassers

b. invitee (invites with expectation of material benefit or extendsand invitation to the public

i. duty = exercise reasonable care to protect against bothknown dangers and those that would be revealed byinspection

ii. type of invitees1. public2. business visitor

c. licensee (permitted to enter or remain with express or impliedconsent for their own purpose normally)i. duty = make safe the danger in which the possessor is

aware of

2. church guy was a licensee even if he was a social guestexpected totake the premises as the possessor uses them

iii. important notes1. restatement says should warn when someone is a continuous trespasser


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a. Bennet v. Napolitanoin park after it closed when tree limb fellon himwas considered a trespasser and that city hadnt

breached duty to not willingly or wantonly injure2. Child trespassers

a. Holland v. Baltimore: 9-year-old boy injured by freight train andcourt invoked Restatement 339

b. A possessor of land is subject to liability for physical harm tochildren trespassing thereon caused by an artificial conditionupon the land if

i. The place where the condition exists is one upon whichthe possessor knows or has reason to know that childrenare likely to trespass and

ii. The condition is one of which the possessor knows orhas reason to know and which he realizes or should

realize would involve an unreasonable risk of death orserious bodily harm to such children AND

iii. The children because of their youth do not discover thecondition or realize the risk involved in intermeddling

with it or in coming within the are made dangerious byit, and

iv. The utility to the possessor of mainint the condition andthe burden of eliminatin the danger are slight ascompared with the risk to children involved and

v. The possessor fails to exercise reasonable care toeliminate the danger or otherwise to protect the children

c. The judge found the section inapplicable because any childwould realize the risk of a moving train

d. Special treatment of children evolved to attractive nuisancedoctrine that covered injuries of children unaware of risks

associated with a land occupiers property b/c of immaturity

iv. Heins v. Webster County (this doesnt abolish the distinction its more policy)1. Man visiting daughter slipped and felllost at trial because he waslicensee (or social guest) because he wasnt a patient

2. Rule: standard of reasonable care for ALL lawful visitorsforeseeabilityeliminated the distinction. Status should not determine what is owedplace focus on foreseeability of the injuryit shouldnt matter if hebought a coke or not

a. Factors to consider in evaluating if there was reasonable carei. Foreseeailiyt of the possibility of the harm

ii. Purpose for which the entrant entered the premisesiii. The time, manner, and circumstances under which the

entrant entered the premises

iv. The use to which the premises are putv. Reasonableness of inspection, repair, or warningvi. Opportunity and ease of repair

vii. Burden on the land occupier and or community in termsof inconvienance of cost of adequate protectio

b. Key is foreseeabilityv. Distinguish between flagrant and non flagrant trespassersthird restatement

adopts reasonable care to all entrants


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vi. Landowner cases need not to establish a special relationshipLouis v. Louisseparate theory of duty

vii. Using landlord theory to sue for criminal activity on premisesKline v. 1500massachusettslandlord is best equipped to guard against that but not insurer of

safetynecessary protective measures viii. Posecai v. Wal-Mart Stores (robbed at walmart of jewelry while by her car)

1. Policy for not suing them in court? Negative aggregate impact. Thecommunities that need them the most wont get there low prices (highcrime low income areas) and you dont want to encourage private

employers to use their own security force and not thepolice2. Rule: Businesses have the duty to exercise reasonable care to protect

their patrons from the reasonably foreseeable criminal actions of third

parties3. Ways to analyze foreseeability (see chart)

a. Specific harmb. Similar incidentsc. Totality of circumstances (1 of 2 most important)d. Balancing test (other most important)

4. 3 crimes in 6 years was not enough to support duty to provide securitypatrol in parking lot owed no duty nonfeasance

d. A Reprise on Dutyi. A.W. v. Lancaster Country School District (kindergarten student sexually

assaulted in restroom)1. Violation of own policy would be a sign of Reasonably foreseeable and

breach. Foreseeable so misfeasancethe state created a foreseeable riskand then inaction perpetuated it

2. Extent of foreseeable risk depends on specific facts of each casewhatemployees knew, when they knew it, and if reasonable person wouldinfer a danger.

3. A.W. deserves a full trial summary judgment was wrong.e. Intrafamily Duties (Special Relationship)i. Broadbent v. Broadbent (mom leaves pool to answer phone, son falls in, brain

damage)1. Parental immunity v. reasonable parent if was reasonable then not

liable2. A parent is not immune to tort liability towards his or her children solely

by virtue of the relationship. Parents are not liable if they acted as areasonable and prudent parent in the situation would have.

3. Determine reasonableness at trial. But the policy reasons for parentalimmunity (domestic tranquility, family resources, parent getting themoney if the child dies) are outweighed by need to protect children and

parental discretion is not absolute but must be egregious

4. Governmental Entitiesa. Cant question policy in court b/c we voted on those ppl to makethose rules and courtscant question policy making of otherbranches of government b/c its not their job(separation of power)only exception is questioning on constitutional grounds. Soyoucan only sue when they dont act on the policy in the right way.

i. Riss v. City of New York (failed to protect her after she reported stalking)1. Policy: imposing duty on a public authority would affect resources

cant question that legislative decision


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2. Excpetion: when the policy creates the risk engage in acutualundertaking and then negligence, then there will be liability

3. Or special relationship created by a. assumption of duty by the municipality through promises or

action of an affirmative duty to act on behalf of the party whowas injured

b. Knowledge on the part of municipalitys agents that inactioncould lead to harm

c. Some form of direct contact between municipalitys agents andthe injured party And

i. Justifiable reliance on municipality undertakingii. Schoolbus

1. the bus maps forced a child tocross the street and the kid got hit. Suedfor not having enough bus stops and in the wrong spot.Court says notactionable. The district did not haveto run a door to door service, andwe can't tell themthat they must b/c they may not have enough money

iii. Lauer v. City of New York (homicide that was later determined to be aneurismand father was suspect and claimed negligent infliction of emotional distress)

1. Discretionary acts (exercise of authority vested in the public official) arenot a source of liability. Ministerial acts (required in accordance with agoverning rule) may, but not neccesarily: that a wrong is ministerial

merely removes immunitya. The statute wasnt intended to protect this type of individual

no duty owed to the father

b. in this context we are not going to bas duty on foreseeability ofharm

c. policy = danger to public pursed. dissent argues that it encourages wrong doings.

iv. Friedman v. State of New York (accidents where there should have been amedian) (friedman, cataldo, muller)

1. A gov. body is liable when its study of a traffic condition is plainlyinadequate, or when there is no reasonable basis for its plana. If the state is aware of dangerous condition must study, make

plan and carried out in reasonable period of timeand continual

duty to review the planb. For cataldo (he lost), the leg. Determination was that no barrier

was needed but the other two(they won) were determined to beneeded and unreasonable delay

c. Dont want to substitute jury decision for leg. Decisionsv. shocking

5. Duty Requirement: Nonphysical Harma. Emotional Harm

i. Falzone v. Busch (near-miss accidentmade her sick without impact)1. In zone of danger because she was almost hit.2. Where negligence causes fright so severe that substantial injury or

sickness precipitates, it should be treated just as though the harm were

caused by direct injury, rather than by frighta. Overturned old ruleallow juries to determine

b. Requiredi. Threat of immediate injury

ii. Physical consequence of that fear


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iii. Immediateiv. Threat of serious bodily injury or death

3. We hold that where negligence causes fright from a reasonable fear ofimmediate personal injury, which fright is adequately demonstrated to

have resulted in such bodily injury or sickness would be regarded asproper elements of damage had they occurred as a consequence of direct

physical injury rather than fight4. Old rule that barred unless physical because of policy reasons of flooding

court

ii. Metro-North Commuter Railroad Company v. Buckley (exposure withoutsymptomsphysical contact with insulation) (smoker for 15 yrs) (sued underFELA staute to recover for emotional distress and cost of future medical

checkups. RR admitted being negligent but wouldnt concede that he sufferedemotional distress)

1. Was there physical impact?2. The FELA allows NIED when in zone of danger CL zone of danger

requires physical impact from being at immediate risk.3. Rule: physical impact doesnt include simple physical contact with a

dangerous substancewhere that substance threatens no harm other thanthat disease-related risk

4. Physical contact does not offer a line of separation b/w valid and invalidiii. Gammon v. Osteopathic Hospital of Maine, Inc. (father dies and in bag of

belongings is a leg. Directed verdict for hospital at trial. No medical evidenceof suffering and no psychiatric attention) NIED? Remanded to trial

1. R: psychological injuries do not require evidence of underlying tort orphysical harm. doesnt require physical impact. A D may be liable

for any foreseeable emotional or psychic harms he negligently causes2. Contrary to the policy reason of Metro (valid and invalid claims)thats

a question of fact not law (each fact trier decide that)if we think there

is such thing as psychological harm then we shouldnt arbitrarily require

that it be accompanied by something else.3. ordinarily sensitive defendant no comp. for eggshell psyche4. an artificial device used to protect against fraudulent claims

a. foreseeability provides adequate protection against unnecessaryliability claims for emotional distressthe vulnerability offamily makes emo distress probable from mishandling of body.

i. unique relationship limitation maybe. Family.iv. Portee v. Jaffee (watch child suffer and die in elevator incident) (no potential for

her to be physically injuredpure distresssevere depression) (bystander

recovery)unsure if there is zone of danger here1. Trial court held her injury did not meet requirements of Falzone, the

court then rejects Falzone because not reflective of culpability

2. The culpability of a D who didnt create a risk or occurrence of physicalharm to her3. R: is emotional injury foreseeable? (factors ) (from Dillon) (find

out if this is

a. Was P near scene of accident?b. Did shock result from contemporaneous observance, rather

than learning from others of death or serious injury

c. Was the victim and P closely related4. Policy of parental love and tragedy


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5. NIED requires the following elements a. Death or serious physical injury of another caused by Ds

negligenceb. A marital or intimate familial relationshipc. Observation of the scene of accidentd. Resulting severe emotional distress

6. duty of reasonable care to avoid physical harm to others extend to theavoidance of this type of mental and emotional harm

v. Potter v. Firestone (exposure) (prolonged period of dumping toxins) (anenhanced but unquantified risk of cancer)

1. Absence of present physical injury, damages solely for fear may only if ..a. Ds negligent breach of duty owed to P caused exposure to toxin

b. Fear stems from a knowledge corroborated by reliable medicalopinionthat cancer is more than likely in the future

vi. HIV cases.1. Injection with dirty needle

a. Typically use zone of dangeri. required to show that dirty needle actually had HIV

ii. even if has HIV fear of getting HIV is tested bysubjective or objective standards (how they felt oractuality of probably of getting aids)

2. Williamson v. Waldmana. Didnt require zone of danger

b. Just used the fear that a normal person would havevii. Johnson v. Jamaica Hospital (bomb distraction and baby abducted and not

recovered for 4.5 months but uninjured, parents bring claim)

1. Cant recover because they werent in the zone of danger and injuries didnot result from contemporaneous observation of injury or death due toDs negligence

a. No duty to parents of hospitalized child2. Kalinajewish circumcision messupa. interested bystanders to whom no direct duty was owed3. used Palsgraf too

a. wrong to relation of son is not a wrong to parents toonogeneral duty to society

4. the foreseeability that such psychic injures would result from the injuryto the child does not serve to establish a duty running from the D to Psand without duty there can be no liability

5. Bystander recovery, they kid wasnt injured. The hospital did nothingdirectly to them either (like say daughter was dead when she wasnt)

6. Shocking situation only for certain cases7. Public policy that allowing bystander recovery would create unlimited

liability

b. Economic Harm (like emo harmcourts arent as anxious to protect it)i. Nycal Corporation v. KPMG Peat Marwick LLP (accountants and third parties.

Relied when P bought a major interest in Gulf)1. No legal duty if D had no knowledge that the P (or small group that P

belongs to) would rely on information. No general duty here.2. Lays out several tests we can used for accountants and third parties they

arent in Privity with


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a. Standard foreseeability: liable to anyone that they would havereasonably foreseen would rely on the information

b. Near Privity test: accountant can be liable if they were aware thatinfo would be used for particular purpose by this third-party and

there would be reliancec. This court used restatement: because of policy concerns with

having a narrow class of Ps and it was the client who deceivedthe auditor

3. Attorneys and clientsa. Owes due care to clients

i. Meeting filing deadlinesii. Making strategic choices

iii. Settlementsb. Usually no damages for emotional distress

4. Attorneys and third partiesa. May owe duty of due care

i. Beneficiary of a willb. Some jurisdictions hold Privity to be necessary

ii. 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Cetner, Inc.1. building collapsed and streets with businesses were shut down

a. dismissed be the P suffered the same as the whole group2. R: a public nuisance is actionable by a private person only if it is shown

that the person suffered special injury beyond that suffered by thecommunity at large

3. Foreseeability alone does not define duty. Policy that not everyone canhave tort liability. They will be punished by gov. this isnt neccesary

c. Wrongful Birth and Wrongful Lifedoctors and procreation decisionsi. Emerson v. Magendantz (womans sterilization process didnt work and she gave

birth to child with defects)

1. Duty b/c Dr. had special relationship with mom and child2. Breach: med malpractice (not RPS)highest standard of care because ofDr., RIL (shifts burden)3. Father/husband and bystander claim: use zone of danger and

foreseeability

4. Argue eco harm because of not working and costs5. Lost of consortium

6. CAUSATIONa. Cause in fact

b. Multiple causes (stubbs and zuchowitz)i. Stubbs v. City of Rochester (drinking contaminated drinking water)

1. R: Wouldnt make sense to make P disprove all other possible causes2. When multiple probable causes substitute but for with reasonable

certainty (not absolute, that it was the probable cause)3. Policy: impossible to recover under these fact if he was required to

eliminate all other possibilities - even though the law requires that Pprove his injury was caused wholly or in part by Ds conduct

ii. Zuchowicz v. United StatesSubstantial Factor1. She took an overdose of Danocrine because of the erroneous instructions

from hospital2. If (a) a negligent act was deemed wrong because the act increased the

chances that a particular type of accident would occur and (b) a mishap


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of that very sort did happen, this is enough to support a finding by a trierof that the negligent behavior caused the harm

3. more probably than not it was the overdose that caused the illness expert testimony to show cause and fact

4. shifted the burden5. substantial factor test = more likely than not

iii. Matsuyama v. Birnbaumc. Joint and Several Liability

i. If two Ds oweone D can be responsible for all if other insolventwould thenhave to make contribution claim against the other Doperates in situations

beyond when two Ds cause the same harm ??ii. When two more more tort-feasors act concurrently or in concert to produce a

single injury they may be held jointly and severally liable. But, when they neitheract in concert nor contribute concurrently to the same wrong- they are not joint

wrongs are independent and successiveonly responsible for own liability -Rago v. Rogatnick

iii. Sometimes may be considered severally liable because there is no reasonable orpractical division or allocation among multiple tortfeasorsId.

1. exception: certain injuries which because of their nature, are incapable ofany reasonable or practicable division or allocation among multiple tortfeasors -

d. Multiple Defendantsi. Summers v. Tice (shotguneye and lip woundperm eye damage)

1. Policy issuethey could know and the P has no ideabetter position2. Each D is deemed liable for whole damage whether they were acting in

concert or notboth were negligent

3. Jointly liable until they prove who the bullet belonged to4. No but for test each liable for whole damage

ii. Hymowitz v. Eli Lilly & Co. (DES case, identification of the manufacturer of theDES ingested in a particular case

1. Market share concept: limit liability of D to their nation-wide marketsharea. Several onlynot inflated when all arent present in one case

2. Policy reasons: time to figure each individual case, smaller than nation isnot practical, national market reflect culpability

3. Unable to use the but for teste. The SPECIAL cases of TOXIC HARMS: toxins (asbestos, agent orange, hazardous

wastes, silicon breast, drug cases)i. 3 critical characteristics of toxic harm cases

1. identificationa. later rather than earlier resultsmakes things more costly and

harder to discover

2. boundariesa. generations affected hard to create boundary3. source: whose fault? Aesbestos: producer, insurer, typical participant

a. challenges premises of tort lawii. should there be compensation for exposure only? And when does statute of limit

run?

1. Future damage usually recognized when there is present harm2. May refuse to require physical harm for medical monitoring costs3. Then set out criteria for recognizing medical monitory cases


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a. Bower v. Westinghousedidnt matter that disease wasinvariably fatal

f. Proximate Causeeven though it was the factually cause it shouldnt be the legal cause usually something quite unexpected has occurred

i. Unexpected Harm1. Benn v. Thomaseggshell plaintiff

a. Rearended a van and guy died 6 days laterb. The original wrongdoer is responsible, even though he could not

have foreseen the particular results which followed

c. Eggshell P rule for proximate causeliable for fulli. A D must take the P as he finds him and hence may be

liable in damages for aggravation of a preexisting illness

2. Polemis (plank dropped because of negligence, spark, fire that destroyedship ) liable? Yes (direct cause theory)

a. The fact that it wasnt a reasonably foreseeable result doesntmatter. It directly caused it is enough.

b. Negligent act that has a direct result is enough anticipation isirrelevant

c. Butlers direct testi. No intervening or superseding causes

ii. Its immaterial that it wasnt reasonably foreseeableiii. The problem with this test is what is direct?

3. Wagon Mound (overseas tankship ltd. v. morts dock) (oil spilled intobay and a few days later a small spark and a another boat burned down)

a. R= only liable for foreseeable consequencesi. Not the act but the consequence in which tortious

liability is founded no negligence in the airb. Judge by the standard of the reasonable main that he ought to

have foreseenRPS connection

4. Smith v. Leech Brain and Co.applied the take victim as you find himand held that wagonmound didnt alter that cancer. Question isnt is thecancer foreseeable, but instead was the injury foreseeable

5. The actors liability is limited to those physical harms that result from therisks that made the actors conduct tortious

6. Reynolds v. Pacific RRfat lady that fallsa. The mere possibility that it might have happened without the

negligence is not enough to break the chainii. Superseding Causesintervening forces and proximate cause. unforeseeable

1. Doe v. Manheimer (meter reader raped by unknown assailant and theproperty she was at had bushes that screened it from view)failed thescope of risk test

a. Scope of risk testi. The harm actually suffered must be of the same generaltype as that which makes the defendants conduct

negligent in the first instanceb. Was cause in fact, but not the proximate causec. Catalyst liability is too ambitiousd. Must establish legal causation

i. Cause in fact (but for)ii. Proximate cause


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1. Point beyond which law declines to trace aseries of events

e. For proximate cause ask: was the harm of the same generalnature as the foreseeable risk created by Ds negligence

f. In Zuchowicz, the court held that a substantial factor was thenecessary test of a but-for factual analysis. Here the substantial

factor test is used for proximate causationg. For foreseeability to play a role, we must first decide what it is

that needs to be foreseeable

i. Need NOT BE EXACT consequences, just the generalconsequences.

h. The bushes provided a protective zone P claimed thatbecause the neighborhood was high crime, he should haveknown that third person might use the overgrowth to conceal the

perpetuation of crimes.i. Owed duty of reasonable care and breached, it was the but for

but it was no the legal causenot substantial factor/ proximatecause. It was foreseeable but it was not the substantial factor

j. Used the cause in fact and proximate cause testk. Substantial factor = whether the harm which occurred was of

the same general nature as the foreseeable risk created by the Ds

negligencel. Scope of riskalso appliesnegligent defendant, whose conduct

creates or increases the risk of a particular harm and is a

substantial factors in cause that harm, is not relieved fromliability by the intervention of another person, except where the

harm is intentionally caused by the third person, and is notwithin the scope of risk created by the Ds conduct.

i. no, it was no within the scope of riska landownerwouldnt foresee that a condition of that type might

provide substantial inducement for a violent crimem. catalyst liability is far too ambitious!n. Our cases make it clear that, to be within the scope of the riske,

the harm actually suffered must be of the same general type as

that which makes the Ds conduct negligent in the first instance.

iii. Unexpected Victim1. PalsgrafDUTY

a. no duty to Ms. Palsgrafonly a duty owed to the man that waspushed onto the train- the risk reasonably received defines theduty to be obeyedin order for there to be a duty, the risk needs

to be foreseeable. If not foreseeable, then no duty. (Zone of

Danger)b. Duty is relationalc. You have a duty to avoid harming someone when the risk is

foreseeable

d. Cant claim a breach of duty based on breach and duty tosomeone else.

e. Avoid foreseeable risksno duty to the worldf. not as the vicariousbeneficiary of a breach of duty to another


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g. arguably no wrong even to the guy who was pushed. Bestargument is that there was a wrong to the package- which

threatened injury to nothing else.2. Palsgraf Dissent on Causation (Andrews)

a. If you are negligent and it causes harm to someone then therewas a duty

b. You breached a duty and it hurt somebodyc. It was a substantial factor and direct caused. The act that unreasonably threatens anyones safety, and the doer

is liable for all proximate causes, even where they result in injuryto one who would generally be thought outside the radius ofdanger foreseeability doesnt matter

3. Consider intervening causethe guy carrying the box.7. Defenses

a. Plaintiffs Faulti. Contributory Negligencein a contributory negligent state if both negligent than

no money recovered.

1. Last clear chanceii. Comparative NegligenceWILL BE TESTED

1. The plaintiffs act must not only be negligent, but his negligence must bethe cause of the accident. A plaintiff who is negligent doesnt forfeit theright to recover damages unless the negligence is the contributing causeof the incident. Negligent conduct does not always equate to contributory

negligence.2.

iii. Fritts v. McKinne (dispute over who was driving)1. A physician may not avoid liability for negligent treatment by asserting

that the patients injuries were originally caused by the patients own

negligence. Those negligent Ps are entitled to subsequent non-negligent

medical treatment and to an undiminished recovery if such subsequentnon-negligent treatment is not afforded

2. Applies even where conscious creation of very danger that createdmedical need

iv. Cases where a patient cant be found for comparative fault1. Failure to reveal info2. False info3. Failure to follow instructions

v. Avoidable Consequences - addresses the measure of damages but not liabilityNOT A DEFENSE TO THE CLAIM -

1. avoids the harshest application of contributory negligencefind for Pdespite negligence if the D had the last chance to avoid the accident

since D had the last chance then Ps negligence ignored entirely2. Normally not used under comparative negligence - the P is still assigned

a % of negligencevi. Distinguishing between contributory negligence and avoidable consequences

1. Malpractice and then failure to get the follow up - court said this wasavoidable consequences rather than contributory negligence

2. Is the problem one of fault or causation?b. Assumption of Risk

i. Express Agreements


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1. Hanks v. Powder Ridge Restaurant Corp. (policy overrides it)a. Signed a waiver that barred a negligence claim

b. The law doesnt favorcontracts which relieve a person from hisown negligence

i. Goals of the tort system: determining whencompensation is required and preventing future harm

ii. Tunkl factors to see if a express agreement violate publicpolicy, but the is also other things to consider in addition

c. Tunkl Factors (Express consent) when the consent violates public policyi. The agreement concerns a business of a type generally thought suitable for public

regulationii. The party seeking exculpations is engaged in performing a service of great

importance to the public, which is often a matter of practical necessity for somemembers of the public

iii. The party holds himself out as iwlling to perform this service for any member ofthe public who seeks it, or at least for any member coming within certain

established standardsiv. As a result of the essential nature of the service in the economic setting of the

transaction, the party invoking exculpation possesses a decisive advantage ofbargaining strength against any member of the public who seeks his service

v. In exercising a superior bargaining power the party confronts the public with astandardized adhesion contract of exculpation and makes not provision wherebya purchase may pay additional reasonable fees and obtain protection againstnegligence

vi. Finally, as a result of the transaction, the person or property of the purchaser isplaced under the control of the seller, subject to the risk of carelessness by the

seller or his agents1. Express agreements usually raise 2 questions

a. Will the courts enforce even the most clearly drafted contractgiven the type of activity involved

b. If so, is the contract in question sufficiently clear?vii. Loss of Chance Doctrine:1. In malpractice if the dr. did something that deprived me of a better

recovery

2. If she didnt go back for mammogram and risk went up and the doctorcouldnt help her failure to get the mammogram contributed to thenegligence? No, because the negligence wasnt simultaneous withdoctorsit was a whole year later. Her actions dont bar but could affectdamages

viii. Implied Assumption of Risk1. Murphy v. Steeplechase Amusement Co. (the flopper)

a. 4 recs for assumption of riski. primary implied assumption of risk is not a wholedefense

ii. when you encounter a risk created by Ps negligence isdifferent than primary implied assumption of risk

iii. secondary implied assumption of risk is a true defensewhen P knowingly encounters a risk created by Ds

negligenceyou know the stair is brokenb. assumption (secondary implied) of the risk wasnt a complete

bar to recovery in comparative negligence Jur.the Ds fault is


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no diminished completely because P assumed the risk - insteadthey can compare

c. The amusement park is not liable for any damages if a customersees and understands the dangers of a ride because the customer

has assumed the risk.2. Davenport v. Cotton Hope Plantation Horizontal Property Regime

a. Had reported that light was out, but continued to use the stairsand then one day fell

b. Implied assumption of risk is not a complete bar3. Lavendoski v Cone (firefighter/police)

a. a firefighter/policeman entering private property in the exerciseof firefighting duties is owed a lesser duty of care than an

ordinary invitee.i. because landowners would then be under compulsion to

keep all parts of their premises in a condition perhapsuncalled for by the normal use to which the premises are

devotedb. Case facts: D was not the owner nor in control of the land in

which the event occurred on. Police officer injured whilepursuing D.

c. Declines to extend the scope of the firefighter rule beyondpremise liabilityto prevent a police officer from recovering,based on a claim of ordinary negligence.

i. Because the firefighter rule is the exception to generalrule of tort liability that between innocent and negligent

partiesthe negligent party should bear the loss

8. Joint and several liabilitysummers v. tice or the sample question9. Proximate Cause readdressed

a. Polemis: foreseeability isnt relevant, as long as it is the direct causeb. Wagonmound: foreseeability is in the equationresponsible if a person should have

foreseen the outcomec. Doe:

i. Cause in fact does not mean substantial factorii. Substantial factor test in truth = whether the harm which occrued was of the same

general nature that was foreseeableiii. Scope of risk

1. Not doing the job properly and doesnt mean to cause the outcome doesnt relieve. Must also ask was the harm within the scope of risk

d. Palsgraf:i. D owes a duty of caret anyone who suffers injuries as a result of their negligence

10.Damagesa. Economic

i. Medicalii. Loss of earning/ future earningsb. Noneconomic

i. Pain and sufferii. Loss of consortium

c. Wrongful death and survival actionsi. Wrongful death

1. Tort causes death of anothera. Losses suffered by surviving relatives


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ii. Wrongful Birth1.

11.Defensesa. Express agreements in most Jur.unless strong policy reasons why not

b. Comparativei. Compare P and D

c. Joint and several liabilityi. Compare Ds

d. No affirmative obligation to act

Documents

Torts Ouline 11.25