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Southern Illinois University School of Law
Kapp, Marshall B.

Torts Outline
Kapp – Fall 2006
N. Overview
    A. Functions & Goals of Tort Law
1. Social goals: improve conduct, deterrence, compensate injured victims
            2. Procedural goals: efficiency, fairness
    B. Five Elements of a Negligence Case
          1. Duty: Was there a risk that was reasonably forseeable?
2. Breach of Duty: Was the conduct reasonable/ what would the reasonable person have done?
            3. Causation: Did Δ’s actions cause the damages?
            4. Scope of Liability/proximate cause: How liable was the Δ? Fully or just partially? Direct cause?foreseeable victim and harm? reasonable?
            5. Damages: What loss has π suffered and what losses are anticipated?
i. Rudolph v. Arizona B.A.S.S. Federation: AZ Bass organized event. Event
required participants to race to finish on busy lake. Participant racing to finish of event killed girl in a boat crash.
                        1. RULE – Reasonable forseeability creates duty
    C. Vicarious Liability
          Three Elements
            1. Employee was, in fact, negligent
            2. Actor was an employee (not independent contractor)
            3. Actor was acting within the scope of employment at the time
I. Duty (negligence)
    A. General Duty of Reasonable Care
     Actor owes a general duty of care to anyone who will be forseeably harmed by their conduct
i. MacPherson v. buick Motor Co: Buick manufactured the car, did not do quality control on the wheels. Sold the car to the dealer, dealer sold to π. π hurt when wheels broke and car crashed.
            1. RULE – In tort law, basis of duty is forseeability of harm, not privity
Rational: CL, what society sees as just and right, social values, public policy
    B. Limited Duty Rules
    Misfeasance vs. Nonfeasance
     Nonfeasance: the failure or omission to do something that should be done or esp.  
     something that one is under a duty or obligation to do
We have no affirmative duty to aid others normally. That is, there is normally No Duty to Assist, Act or Rescue
            But, sometimes there is. (see box on p. 275, revise this)
                        1. Special relationship exists
                                    A. Dependence
                                    B. Voluntary Agreement
                                    C. Statutory
                        2. You Create the Danger
          1.) Limited Duty: Duty to Act, Assist, or Rescue
            A special relationship creates a duty.
Danger invites rescue: if you create a danger, you may be liable for the response
You should reasonably forsee that the result of your negligence may cause a response. You may be held liable for the results of any harm that occurs as a result of the response if you should reasonably forsee the danger.
Good Samaritan Statutes
Legislature protects those who take on voluntary action from legal liability for ordinary negligence. Only liable if gross negligence or if you acted in bad faith.
                                    -limit the duty of the rescuer in order to encourage rescue
i. Yania v. Bigan: Δ taunted Yania, told him to jump across a pit. Yania did jump but d/n make it and died.
1. RULE – In general, a duty is not owed for nonfeasance, but see exceptions.
ii. Farwell v. Keaton: Companions on a social venture. They drove trailer, hit on two girls. Six boys chased them and beat Farwell. Keaton drove him to his grandmother’s house, left him unconscious in the car, Farwell died of injuries overnight.
1. RULE – Special relationship creates a duty. “Companions on a social venture” = special relationship.
2. RULE – Voluntary assumption of duty: if you commit to helping someone you take on the duty and can be liable for harm
            2.) Limited Duty: Owners and Occupiers of Land
            Status Trichotomy: traditional CL, now in the minority
            Invitee: A person present for the benefit of the property owner
                        -Owed a full duty of care
            Licensee: A person present with consent of the property owner
-Owed limited duty, not to willingly injure or injure through gross negligence. Duty to warn of danger when possessing actual knowledge.
            Trespasser: A person present without the consent of the property owner
– Owed limited duty, not to willingly injure or injure through gross negligence. But, see attractive nuisance doctrine
Rational: Awareness of the property owner and traditional regard for property
Attractive nuisance doctrine
            There is an exception to trespassers who are children
                        5 Elements
                        a. Possessor of land knows children are likely to trespass
b. Possessor is or should reasonably be aware of a danger posed to
                        c. Children d/n realize the risk
                        d. Burden to eliminate the danger is small
                        e. Possessor d/n excercise reasonable care to eliminate the danger
i. American Industries Life Insurance Co. v. Ruvalcaba: Mother and son visit husband at work. They leave his office, go down stairs, son falls due to lack of railing, suffers brain injury.
1. RULE – Members of the public visiting a business open to the public are invitees
2. RULE – All young children are invitees where the owner can reasonably expect young children to come onto the land
ii. Rowland v. Christian: Porcelain handle of water faucet breaks in a visitors hand when he is viewing an apartment.
1. RULE – General duty of reasonable care based on foresight of
risk. Status of visitor only relevant as it applies to forseeability of harm. (present majority)
Rational: Reinforce that everyones life is of equal value, and this is not changed by circumstance.
            3.) Limited Duty: Consortium Losses
            -Additional damages for loss of companionship, affection, etc.
-Consortium laws are derivitive of primary victims case. They depend on the success of the primary victim’s negligence claim. Then this negligence is extended to the family member to recover for the loss of consortium.
Rational: Forseeability, tortfeasor should have forseen that negligence would injure those other than the primary victim.
    Parents can get damages for loss of a child
    Husband for loss of a wife, and vice versa

a result of doctor’s negligence
Majority: Allow wrongful death claims if fetus is viable
i. Greco v. United States: Doctor failed to make timely diagnosis of gross and disabling birth defects, mother lost option to terminate pregnancy.
            1. RULE – Cannot file for “wrongful life” on behalf of the child
Rational: court feels this would imply in their judgment that it would be better for the child if they were not born.
Dissent: Draws an analogy between end of life decisions and this case. There we recognize existence is worse than nonexistence. Why not here?
2. RULE – “wrongful birth” actionable, but the court feels this should simply be classified as medical malpractice
            6.) Limited Duty: Responsibility for Conduct of Others
Recall: CL rule that there is no duty to come to another’s aid unless person’s conduct created or exacerbated the risk, or fits one of the exceptions.
 Duty to Warn (take afirmative steps to protect)
             A. Mental Health Professional’s Duty to Third Parties
               This is imposed when a special relationship exists with the person posing risk
i. Tarasoff v. Regents of University of California: Δ employed Psychologist whose patient stated intent to kill πs daughter. Δ informed campus police, campus police detained but released the patient. Patient then killed πs daughter.
1. RULE – When a special relationship exists between doctor and patient, a duty exists to protect 3rd persons from patient
ii. Dunkel v. Food Service East: Patient becomes increasingly violent, doctor is aware. Patient kills his girlfriend.
1. RULE – Duty to warn a 3rd party is based on whether the 3rd party is identifiable.
             B. Duty to Protect Against Criminal Activity
 Certain special relationships require affirmative measures to protect another  
 from forseeable criminal activity.
·         Landlord/tenant
·         Hotel/guest
·         Business Owner/patron
·         Employer/employee
·         Property owner/invitee
·         School/student
i. Delta Tau Delta v. Johnson: π, undergraduate student, was invited to and atended party at DTD fraternity. Beer was served. DTD alumni locked her in a room and sexually assaulted her.
            Rule – Landowners have a duty to protect invitees from forseeable criminal attacks.
How is forseeability determined in this context?
4 tests:
1. Specific harm test: only duty if owner was aware of the specific threat of harm
2. Prior similar incidents test (PSI): Duty owed in prior incidents indicate forseeability