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Torts II
Elon University School of Law
Armijo, Enrique

Torts II Outline: Armijo—Spring 2014

I. Negligence: Special Duty Rules

a. The Duty to Rescue or Protect (CB p.513)

i. “No Duty” or “limited-duty) rules limit application of the foreseeability test

ii. Tort law doesn’t generally require one person to rescue another from harm, despite the foreseeability of harm to the other person

1. Ex: One sees another about to get hit by a car. That person has no duty to rescue

iii. RULE:

1. There is no obligation to intervene, but once an actor does, he has a duty to intervene reasonably.

iv. Rescue Doctrine:

1. Allows an injured rescuer to sue the party which caused the danger requiring the rescue in the first place

2. TEST:

a. Defendant must have been negligent to rescuer and negligence must have caused peril;

b. Peril was imminent

c. Reasonably pruden person would have concluded that the peril existed

d. Rescuer used reasonable care in effectuating rescue

3. Precludes defendant from arguing:

a. Rescuer wasn’t a foreseeable plaintiff

b. Rescuer assumed the risk by rescuing and thus damages should be comparatively reduced or barred

v. See Emerich v. Philadelphia Center for Human Development for 3rd party protection

b. Duty Limited by Type of Harm

i. NIED (Negligent Infliction of Emotional Distress)

1. RULE:

a. Physical harm leading to emotional damages = compensable

b. Emotional damages leading to physical manifestations or no physical manifestations

2. Two Types of NIED:

a. Direct Actions

i. Plaintiff placed in peril by defendant’s negligence

b. Bystander Actions

i. Plaintiff suffers emotional distress in reaction to someone else’s injury caused by defendant’s negligence

3. Zone of Danger RULE:

a. Individual who is in the immediate area of physical danger from defendant negligence and who suffers emotional distress as a result of the defendant’s negligent conduct

4. Bystander Recovery Rule

5. A cause of action for emotional distress exists for a bystander who sees as accident when:

a. The bystander and victim are married or have another intimate familial relation

b. The bystander actually perceived the action, or shock otherwise “follows closely on the heels of the accident,” and

c. The victim suffered death or serious injury]

ii. Wrongful Birth

1. RULE:

a. An unhealthy baby is born to a plaintiff as a result of negligence by the defendant. Plaintiff is suing on the theory that the negligence deprived plaintiff of the ability to terminate the pregnancy

i. Negligent performance or failure to provide genetic treatments

ii. Misdiagnosis of carrying mothers’ illnesses of fetus condition

iii. Wrongful Life


a. Plaintiff, the unhealthy baby, is born as a result of negligence by the defendant. Plaintiff argues that if defendant has acted reasonably, plaintiff would not have been born

iv. Wrongful Conception


a. A healthy baby is born to plaintiff as a result of negligence by defendant

i. Negligence performed vasectomy

ii. Negligence provided fertility treatment

c. Primary Implied Assumption of Risk

i. Definition:

1. Based on the fact that certain risks are inherent in the activity and unavoidable at a reasonable cost, primary assumption only applies where that is in fact the case

2. Applies where the defendant has not breached a duty of due care, since the risk that injures the plaintiff is inseparable from the activity itself

d. Duties Owed by Owners and Occupiers of Land

i. Tresspasser

1. Someone who enters or remains on land without permissi

le for the total amount of damages

b. Several Liability

i. Multiple tortfeasors

ii. RULE:

1. Liability to Defendant can be allocated only based on the degree to which that Defendant is responsible for the harm

a. No need for contribution action because the defendant can only be liable for damages in the amount of his degree of fault

b. Apportionment of fault=apportionment of liability for damages

c. J&SL

i. Each defendant is liable for the full damage award. If the plaintiff can’t collect a co-tortfeasor’s portion of the liability, the tortfeasor from whom the plaintiff can collect is responsible for the other tortfeasor’s share

d. Sitzes v. Anchor Motor Freight

i. Plaintiff=Wife=0%

ii. Defendant/3rd party plaintiff= Pickup truck owner= 70%

iii. Third party Dependent=Driver/Plaintiff’s husband=30%

iv. Pro tanto J&SL:

1. The defendant who pays the full judgment under J&SL is owed a proportional share by the other liable defendants

a. So Defendant/Third Party Plaintiff gets 50% from Third Party Defendant

v. But after adoption of comparative fault:

1. Defendant/Third Party Plaintiff: 70%

2. Third Party Plaintiff: 30%

vi. =Defendant/Third Party Plaintiff’s right of post-judgment contribution from Third Party Defendant is only for 30% of the damages

e. Vicarious Liability

i. Trahan-Laroche Case

1. Direct Employer Liability: Employer negligently hired or supervised employee