Torts
Fall 2008 Outline
Professor Eric Wright
Tort – A private or civil wrong or injury independent of contract
Text Book: Tort Law and Alternatives, Cases and Materials, Eighth Edition (Franklin, Rabin and Green) – Foundation Press 2006
Negligence
I) DUTY
II) Breach of Duty
III) Actual Cause
IV) Proximate Cause
V) Defenses
VI) Damages
Product Liability
Intentional Tort
ASSAULT BATTERY FALSE IMPRIS IIED
Act Act Act Act (extreme and outrageous)
Intent (xfer) Intent (xfer) Intent (xfer) Intent (no xfer)
Appr Contact Bounded Area (must be acting
Harm/Off contact No reas escape intentionally or
Imminent Aware of confinement recklessly)
A/C A/C A/C A/C
P/C P/C P/C P/C
Damages Damages Damages Damages
I. DUTY
a. General Duty is one of reasonable care.
b. Considering Duty –
i. There has been a clear long term movement towards recognizing a general duty of due care.
ii. Restatement Third: “Ordinarily a duty to exercise reasonable care exists with regard to causing physical harm but recognizes that for reasons of Principle or Policy courts may determine that an exception should be created for a given class of cases.
iii. Foreseeability alone does not create duty.
iv. Bystanders
1. Palsgraf v. Long Island RR (NY 1928) pp 425
a. Cordoza majority view on duty
A Duty exists only to those in the foreseeable “zone-of-danger” of physical harm due to a negligent act.
b. Andrews minority view on duty
A Duty exists to all actually harmed due to a negligent act.
1. Relies on proximate cause analysis to limit scope – pgraph 3 p 432.
a. Actual cause.
b. Natural and continuous sequence between cause and effect.
c. Substantial factor.
d. Direct connection, without too many intervening causes.
e. Effect of cause on result not too attenuated (the relationship or connection between negligent act and damage is not too weak).
f. Is cause likely to produce result.
g. Could result be foreseen with prudent foresight.
h. Is result too remote in time and space.
c. Historical Development –
i. Specific relationships appeared to be the bases for imposing duties of care: i.e. innkeeper/guest, carrier/passenger, highway collision cases.
ii. Failure to establish a relationship was often fatal to the case.
d. Privity Doctrine:
i. The manufacturer of a product generally owed a duty of due care in its manufacture ONLY to the person who acquired the product from the maker. Not to remote buyers of the product.
ii. Ended with Macpherson (pg 550).
II. DUTY – AFFIRMATIVE OBLIGATIONS TO ACT:
e. If an individual is in a situation of danger, should the law impose a duty on others affirmatively to assist that person?
1. Harper v. Herman 499 N. W.2d 472 (1993), pp. 134
a. Shallow Water Diving Case
b. Facts: Harper dove off the boat and broke his neck.
c. Issue: Does a social host on a boat have a duty of care to warn his guests about the shallow water?
d.
Shallow Diving
Holding: No
e. Reasoning: Superior knowledge alone does not imply a duty to provide protection
f. Tests:
A Superior Knowledge Test:
1. Is there a duty to provide protection?
2. Is there superior knowledge concerning danger?
a. Superior knowledge without duty insufficient to establish liability.
B Special Relationship Test:00
1. Is the person:
a. Common Carrier?
b. Innkeepers?
c. Possessors of land who hold it open to the public?
d.
Special Relationship
In custody of another person in such a way that that person is deprived of their normal capabilities of self protection?
g. Note about Harper – Because no special relationship was established, there was no duty to act.
2. Maldonado v. Southern Pacific 629 P.2d 1001 (Ariz.App. 1981) pp. 138
a.
Injured, in danger
Holding: If actor knows or should know they injured a person, even innocently, and the injured is helpless and in danger of further harm, actor has a duty to exercise reasonable care to prevent future harm.
3. Section 321 of Restatement pp. 138
a. One who does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, has duty to exercise due care to prevent risk from occurring.
4. Farwell v. Keaton 396 Mich. 281 (1976), pp. 140
Beaten Friend Case
a.
another out of danger, the Dr. is supposed to act. Therefore, in this case, the Dr has a duty of care.
e. Tests for weighing a departure from the “Special Relationship Fundamental Principle”:
A Foreseeability of harm
B Degree of Certainty that plaintiff suffered injury
C Closeness of connection between ∆ conduct and injury.
D Moral Blame of ∆ conduct.
E Policy of preventing future harm.
F Burden to the ∆
G Consequences to the community if there is a duty imposed.
H Availability, cost and prevalence of insurance for the risk involved
9. Uhr v. East Greenbush 94 N.Y.2d 32 (1999) pp. 168
Facts: School, in violation of statute, had failed to test plaintiff for scoliosis.
Statute creates private
right of action
Issue 1: Did the school assume a duty to child and parents by creating a special relationship in connection with the scoliosis test statute.
Holding: No, did not meet Cuffy test:
Issue 2: When does a statute authorize a private right of action?
Rule: If statute does not expressly authorize a private right of action, the courts need to determine if one can be fairly implied. Sheehy test used:
Whether the plaintiff is one of the class for whose particular benefit the statute was enacted.
Whether recognition of a private right of action would promote the legislative purpose, AND
And whether creation of such right would be consistent with the legislative scheme.
Holding: No
Reasoning – Pub Policy: Already a govt entity to police schools, so court did not want to be a second policeman. Legislature had policy of no liability for those making tests for scoliosis, which is against element 3.
i. Under Negligence – ???
1. Typically the defendant did not deny the duty to act in such cases.
ii. Under Duty – ???
1. The ∆ denies that he has a duty to exercise due care in a particular circumstance.
III. DUTY – Policy Bases for Invoking No Duty – pp. 175
1. Strauss v. Belle Realty Co. 65 N.Y.2d 399 (1985) pp 176
Tenant common area
Facts: Blackout, tenant hurt in common area, common area lighted
