TORTS FALL 2010
Professor Eric Wright
Santa Clara University
How to Answer a Test Q on NEGLIGENCE
I. Was there a Duty?
A. Cardozo: Duty to those within Foreseeable zone of danger (“foreseeable Plaintiff”)
B. Andrews: Duty to the whole world (foreseeability not an issue)
C. Emotional Distress:
(1) Dillon Test (Liberal Test that many states don’t use anymore—CA doesn’t even use anymore): (1) Whether P was located near scene of accident; (2) whether P directly observed accident; (3) whether P and victim were closely related
(2) Thing Standards: (1) Closely related, familial relationship (2) Must be at scene of accident (3) Suffers extraordinary emotional distress.
(3) Portee Standards: (1) The death or serious injury of another caused by D’s negligence; (2) a marital or intimate familial relationship between P and injured person; (3) observation of the death or injury at the scene of the accident; (4) severity of physical injury causing emotional distress. (court adopted fourth requirement)Most important element is the relationship and that the bystander must observe the death at the scene .
II. If so, what is the standard of Care? (Duty)
A. Child vs. Adult standards
(1) Child = consider others of like age, intelligence, experience
B. Standard based on Statute
(1) Type of Harm aimed at preventing: Primary & Secondary?
(2) Class of persons protected?
(3) Sets Clear standard of conduct.
C. Emergency Situation?
III. Breach of that standard of care? (B/D)
A. Balance
(1) Utility of Conduct: How important is the conduct? (society, individuals…)
(2) Burden of finding safer alternative?
(3) Likelihood of Injury: How likely is it that doing this act would lead to an injury?
(4) How serious was the injury??
B. Violate Statute?
C. Violate Custom?
IV. Cause (actual and proximate)
A. Actual: “But for”
B. Proximate:
(1) Extent: What extent of injury would be expected
(a) Thin Skull Plaintiff: Not a problem for recovery
(2) Type: What type of injury would be expected from the injury
(a) Polemis/Wagon Mound arguments
(3) Manner: Is the way in which the injury occurred foreseeable?
(a) For example: if P suffers a broken ankle because of D’s negligence, and the falls on his crutches 2 days later, this IS a foreseeable manner of injury.
(4) Time and Space: Amount of time after the initial negligence and how “far removed” the final injury is from the initial act of negligence.
(5) Fairness: Any policy issues etc…
V. Damages
A. Special Damages: Med bills, drug bills, lost wages, pain and suffering, emotional distress, loss of enjoyment of life etc.
VI. Defenses
A. Contributory Negligence?
B. Assumption of the Risk?
NEGLIGENCE
I. WAS THERE A DUTY?
A. Cardozo: Duty to those within Foreseeable zone of danger (“foreseeable Plaintiff”): A person owes a duty of care only to those who are in the reasonable foreseeable zone of danger
EXAMPLE: Train operator pushes man into train, has an unmarked box that he then drops. The box has explosives in it and when it drops it blows up. It knocks over a scale which falls over on the plaintiff, causing injuries for which she sues the train company for the guards negligence. Cardozo holds that it could not have been foreseen that knocking a seemingly harmless package on the ground would cause an explosion that would harm a bystander. [Palsgraf 10/5]
B. Andrews: Duty to the whole world (foreseeability not an issue): Everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. The only limitation is that the damages must be so connected with the negligence that the latter may be said to be the proximate cause of the other.
C. Act or Omission to Act: Generally, no duty to act. Unless…
1. Special Relationship: A special relationship exists giving rise to a duty is in cases of common carrier, innkeeper, owners of land open to public and people with custody of another in which the person is deprived of normal opportunity of self-protection.
(1) Social Venture:
EXAMPLE: Two people on a “social venture” together create a special relationship and therefore an affirmative duty of care. Other examples include hikers/climbers who rely on eachother to look out and care for them if something happens. [Farewell v. Keaton 9.7]
(2) Dr./Patient: common law traditionally holds liable if defendant bares a special relationship to the danger to persons or their victim. There is a duty to warn in cases of foreseeable danger to a specific victim when there is a special relationship with the dangerous person or victim.
EXAMPLE: Psychiatrist is told of a specific plan to kill a specific person and does not warn her directly. She is then killed just as was described and therapist was held liable because he knew the danger present and did not warn. [Tarasoff v. Reagants of the UC 9/7]
2. Deprived of Opportunity to Protect Self: In cases where a person is deprived of normal opportunity to self-protection, there may be a duty to protect.
3. Misrepresentation: Definite foreseeability that misrepresentation would cause harm. Saying nothing does
someone is USING the common carrier, NOT when someone gets hurt BY the common carrier. (ie. Riding on the bus vs. getting hit by the bus).
EXAMPLE (Following Utmost Care): United Airlines sued for baggage falling from overhead bin onto passenger after landing. P claimed United should be held to a duty of utmost care as a common carrier. Reversed summary judgment and held that a court could find that the airline should have taken greater precaution to prevent injury. Because of the heightened duty for common carriers, even a small risk of serious injury may be basis for liability.
(3) Exception—Emergency Doctrine: A person when confronted with an emergency is required to exhibit only an honest exercise of judgment under the circumstances. Not all states follow this doctrine anymore because, regardless of the emergency, the person must still act as a reasonable person would in the given situation. Thus, the doctrine is pointless.
b. How Standard Established
c. To whom does the standard apply?
(1) Children
(a) Mental Illness: Mental illness CAN be a defense when the actor is a child.
(b) Too Young to Understand: Some states hold that children under the age of 6 or 7 are unable to understand the risk associated with their actions and cannot be held negligent.
(c) EXCEPTION—Children doing Adult Activites: When children engage in adult activities, courts have applied adult standards. “When the probability of, or potential harm associated with, a particular activity is great, anyone who engages in the activity must be held to a certain minimum level of competence.”
(2) Persons physical disability
(3) Adults with mental deficiency: Court has ruled [Vaughn v. Menlove] that mental capacity will not be taking into account and the person will still be judged based upon the theory of the average reasonable person. The person can only escape liability if his actions at the relevant time were wholly beyond his control.
(a) Sudden Mental Illness: CA ruled that they people will sudden mental illness are held to the reasonable person standard and thus are still liable. Exception=Children.
