Professor Scales Torts Fall 2011
1. Contributory Negligence- any negligence on the part of the Plaintiff makes his claim unrecoverable (no longer used)
a. Baltimore & O.R. Co. v. Goodman (Holmes)- Goodman was struck at a RR crossing but not allowed to recover because he didn’t get out and look both ways
b. Pokora v Wabash (Cardozo)- rejects contributory negligence RR had obstructions that blocked the view and Cardozo overturned the trail ct that said P should have gotten out and checked b/c it would have been even more dangerous and RR has a greater responsibility to make themselves heard.
1. Negligence- Duty, Breach, Causation and Harm
a. Elements of a Prima Facie case
i. Plaintiff has suffered an injury
ii. Defendant owed a duty to a class of persons including the plaintiff to take care to not cause an injury like the one the plaintiff suffered
iii. The defendant breached that duty of care
iv. The defendant’s breach was an actual and proximate cause of the plaintiff’s injury
b. Holmes v Cardozo,
i. Holmes- solid rules can be made for every situation and judges should rule based on standard rules and not allow the case to be decided by jury sentiment
ii. Cardozo- advocated broad standards, let the jury decide
c. Walter v. Wal-Mart (2000)- Duty of pharmacist to patient breached by giving the wrong medicine which caused severe adverse effects that were different than the ones from the drug she was prescribed and that required no expert testimony b/c the bad effects were obvious enough to lie within common knowledge
i. Respondent superior- employer liable for the negligent actions of employees done while working for the employer
2. The Duty Element-
a. Initial Rule- Privity: there is only a duty between parties who have contracted with each other see Winterbottom v. Wright
b. Privy limited by Thomas v. Winchester which ruled that manufacturers of inherently dangerous products can be held to have a duty of care to those harmed by their products even when they are not directly in privy
c. New Rule- Heaven v. Pender replaced privity with owing a duty of care to anyone who is reasonably foreseeable to be injured by the defendant’s conduct
i. MacPherson v. Buick Motor Co. (1916)- Wooden wheel on a car is defective and collapses. Does the manufacturer owe any duty to anyone beside the person he sold it to? Yes, if a person supplies goods they know will be used in a situation that puts people in danger they have a duty of ordinary care to make sure it is safe.
ii. Osterlind v. Hill- D not held liable for P’s death after D rented drunk P a canoe and ignored his cries for half an hour b/c canoe wasn’t in disrepair and D didn’t break any laws
iii. Baker v Fennman and Brown Properties LLC (Taco Bell)- court rules that D has a duty to assist a customer who fell in their store. Owes highest duty to invitee
iv. Mussivand v. David- D held liable for giving P an STD because it was reasonably foreseeable that the wife of P who he slept with would have sex with her husband too and D knew or should have known he had an STD
d. Obligations to Others
i. If a reasonable person sees a duty of care to protect than a special relationship exists and there is an affirmative duty of care
ii. § 322 2cnd Restatement- if an actor knows or has reason to know that by his conduct, whether tortuous or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm
iii. Harper v. Herman- Q: Whether a boat owner who is a social host owes a duty of care to warn a guest on a boat when the water is too shallow for diving. A: No duty in this case b/c P jumped before there was a chance to warn and P did not expect any protection from D
iv. Morgan v. County of Yuba- The court reversed the judgment in favor of respondent, the County of Yuba, and held that plaintiff minors’ claim was for failure to warn of the release of a dangerous prisoner, as promised, not the release itself; the promise was a ministerial act and was within respondent’s employees’ scope of employment. Plaintiffs should have been permitted to amend the pleadings to allege the required reliance on the promise.
v. Mixon v Dobb- Due to his wife’s impending labor, the husband informed his employer that he would be getting a call from him wife any day and that he would need immediate notification of such call. The husband’s supervisor acknowledged that he would relate the call. On a particular day, the wife called the timekeeper to tell her that she had an emergency message for her husband that she was in labor. The timekeeper relayed the message to the supervisor, but the supervisor failed to give the message to the husband until the end of the shift. The wife made several more calls and was told that her husband received the message. By the time the husband returned home, the wife already had the baby. On appeal, the court held that the trial court improperly granted summary judgment to the employer because a jury issue was presented as to negligence in transmitting the messages. Even though the promises made by the employer to deliver the message to the husband may have been gratuitous, once they were undertaken the duty arose to perform under the requisite standard of care. Clearly, the wife relied upon the promises to relay her emergency messages.
vi. Farwell v. Keaton- friend who tried to help his beat up buddy some but ended up leaving him passed out in his car outside his parent’s house where he died held liable b/c he started assisting and special relationship between friends who expected each other to be of assistance
e. Licensee v. Invitee v. Trespasser
i. Licensee- non-commerce related guest on property obliged to take to premises as they find them
ii. Invitee- commercial guest who is often owed a reasonable standard of care. About half the states have eliminated the distinction between Licensee and Invitee making it a reasonable standard of care for all who enter property by permission
iii. Trespasser- most often only duty of care is to not intentionally harm. Also obliged to take the premises as they are with the only exception being a trap. Though a few states have abolished all distinctions between persons on premises Rowland v. Christian
iv. Lefter v. Sharp (Miss. 2005)- Was P still an invitee after going onto a restricted access roof at the inn he was staying at? NO, an invitee means mutual benefit and here there was none so he was a trespasser and has to take the premises as they are so no liability for D
v. Cincinnati, XO & TP Ry. Co. v. Marrs’ Admx.- initially a paying passenger and invitee the drunk plaintiff became a trespasser when he passed out in the rail yard. He was discovered by workers but was only told to leave and he only made it a few steps before passing out again and being run over and killed. The R.R. was held liable for his death because we they had a duty to do no harm to a trespasser once he was f
as custom establishes an emerging standard of reasonableness. Reasonable person would have replaced the glass and so D liable.
i. Medical Malpractice Breach
1. Medical Custom is the standard doctors are held to in malpractice cases
a. Even if a doctor uses a non-customary treatment he can use the School of Thought Defense if around 20-25% of physicians also back the treatment
2. Johnson v. Riverdale Anesthesia Association (2002). Q. Can a plaintiff cross-examine an expert witness as to how he personally would have treated the plaintiff’s decedent? A. No, the question is whether the doctor met the minimum standard of care not what an individual physician would have done
3. Largey v. Rothmam (1988)- Q. should the defendant have been held to the professional standard (what other doctors tell their patients) or reasonable patient standard (what a patient would want to know) when informing the patient of the risk of an operation? A. Ct ruled that doctors are held to the reasonable patient standard and should have to give all risks that a reasonable patient would want to know about before undergoing a procedure
4. Sheeley v. Memorial Hospital (1996)- Appellate court allowed an OBGYN to testify against a General Practitioner because it was a procedure that the OBGYN would best know the standard of care for and there was no requirement for an expert witness to be in the same specialty. Expert witnesses are always necessary in med malpractices cases expect when the negligence is obvious to non-experts.
ii. Reasonableness, Balancing, and Cost-Benefit Analysis
1. United States v. Carroll Towing Co. (1947) Court creates the B
2. Rhode Island Hospital Trust National Bank v. Zapata Corp (1988)- P suing for over 100k $s in forged check cashed by a stealing employee. D checked one percent of all checks and expert testified that this was in line with other banks and that a higher standard would not detect significantly more forgeries so B and thus reasonable care standard met by bank. Bank only had to refund checks cashed before 14 days after P received a statement reflecting the forged statements because the P still had to exercise reasonable care in checking their statement
iii. Res ipsa loquitur- “ the thing speaks for itself” accidents that by their very nature are caused by negligence and thus the burden shifts to the defendant to prove they were not negligent
1. Byrne v. Boadle (1863)- old English case where a barrel fell and hit the P while walking on the street. No evidence of negligence but the nature of the accident showed negligence existed
2. Ibara v. Spangard- No need to prove cause in res ispsa case
3. Kambat v. St. Francis Hospital- P’s decedent entitled to res ipsa for a large surgical pad left inside P’s abdomen that killed him because it would not be there without negligence
