I. Example of a Tort Suit
Extensive discussion regarding the Walter v. Wal-Mart case…
II. Prima Facie Case for Negligence:
Defined – Failure to heed a duty of reasonable care that causes an injury to a person to whom that duty is owed.
The P must at minimum prove these elements in order to get the case heard
1. P must suffer an injury
2. D owed a duty to a class of persons, including P, to take care not to cause the type of injury suffered
3. D breached that duty of care
4. D’s breach was the actual and proximate cause of P’s injury
1. Injury Briefly
Types-
1. Physical harms
a. bodily harm
b. damage or destruction to tangible property
2. Emotional Distress
2. The Duty Element – Question of law for the court to decide
A. Easy Duty Cases – Unqualified – misfeasance – duty that is breached
Def – Everyone has the unqualified duty to conduct oneself with reasonable care for the person and property of others.
Old rule – Winterbottom – privity – only owe a duty to those with whom you share a contract
New Rule – MacPherson v. Buick- Cardozo – You owe a duty to anyone who can be reasonably foreseen to be injured by your actions
B. Qualified Duties of Care – nonfeasance – prove a special relationship
General Rule – An individual does not have a duty to aid or protect another person, even if he knows they need assistance. Why? We don’t want the law to tell us what’s good, just what’s bad.
Three types
1. Affirmative Duty –
Failure to Rescue
Failure to Warn
Failure to Protect
Taco Bell – Even if they didn’t cause the initial injury, they have a duty to exercise reasonable care under the circumstances
When does a D owe an affirmative duty?
1. When a special relationship exists:
1. Common Carrier – passenger
2. Innkeeper – guests
3. Possessor of public land – public
4. Property owner – invited guest
5. Employer – Employee
6. Hospital – Patient
7. School – Student
8. Prison – Prisoner
Notes extra. “companions on a social venture”
2. Imminent Peril to Plaintiff –Once a D causes negligent harm to P, there is a duty to act reasonable as to not allow the injury to worsen
3. Voluntary Undertakings – D owes a duty of reasonable care if he has volunteered to protect or rescue a P
2. Premises Liability – D permitted or maintained unreasonably dangerous conditions on his/her property. Liability is based on the status of the P on the premises.
A. Invitee – “a person who goes upon the premises of another in answer to an express or implied invitation of the owner or occupant for their mutual advantage.”
Duty owed – keep property reasonably safe for ordinary use. (Higher duty of care b/c of business relationship)
B. Licensee – “one who enters upon the property of another for his own convenience, pleasure, or benefit pursuant to the license or implied permission of the owner.”
Duty owed – warn of non-obvious dangers
C. Trespasser – “is one who enters upon another’s premises without license, invitation, or other right.”
no duty to adults, but cannot intentionally or willfully injure them.
Attractive Nuisance – must take reasonable care to protect c
depending on individual shortcomings
Exceptions
Physical disabilities – adjust downward. Blind man not held to same standard as person with sight. Mental disabilities are no excuse
Children Tender Years Doctrine – children younger than 7 cannot be negligent, even if they are doing an adult activity. 7-14 – compared to children in the same age group with similar experiences. Held to adult standard if engaging in adult activity.
Parent/Child is not respondeat superior – parents must be aware of incidents and have opportunity to control the child
C. Industry and Professional Custom
1. TJ Hooper Rule – carelessness is determined by the law not by the industry and custom. Even if the custom was not to have radios, the law is now saying it should be to have them.
2. Medical Field Exception – Doctors set the standard.
Why?
1. Dr’s have a legitimate interest in keeping costs low
2. Uncomfortable with the jury deciding the standard
3. Doctors owe a higher duty of care anyway. Let them decide
4. It’s the norm to improve medical care. We don’t worry about them slacking their standards
3. Prudent Patient Standard (Opponent of Professional Standard)
Dr. must tell patient all material risks
D. Cost/Benefit Analysis
The Hand Forumula
