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Stanford University School of Law
Rabin, Robert L.

Autumn 2014

1.      Fundamental question in tort law: When should losses be shifted from an injury victim to an injurer in the case of unintended injury?
1)      How ought society deal with accidental harm
2.      Most of tort law is common law and created by judges
3.      4 elements of a tort cause of action
1)      Duty
2)      Breach of duty
3)      Causation (cause-in-fact and proximate cause)
4)      Damages
4.      P bears the burden of proof in the 4 elements
1)      Burden of production with 4 elements to establish a prima facie case
2)      Burden of persuasion by a preponderance of evidence each of the claims
5.      Purpose of torts
1)      Corrective justice
2)      Civil recourse
3)      Optimal deterrence
4)      Loss distribution
5)      Compensation to victim
6)      Redress of social grievances
7)      Mixed system

1.      Judge plays a very passive role
2.      Jury trial even in civil cases
3.      Contingent fee system (P’s lawyer recovers only if there is an award to P)
4.      No fee-shifting: losing party does not have to pay winning party’s attorney fees
5.      Awards for intangible loss (pain and suffering) are far higher than abroad
6.      Federalist system in which tort law differs state by state
a.       SCOTUS plays a relatively minor role in tort law
b.      Most tort reform in the last decades have been at state level (such as caps on damages)
7.      Common law governs in which judicial decisions shape tort law rather than code system designed by legislature
8.      No comprehensive safety net for victims of accidental harm
1.      Traditional strict liability goes back 150-200 years
2.      Strict liability is imposed without regard to degree of care that D exercised
3.      Negligence liability is imposed upon proof of failure to exercise reasonable care
4.      Currently there is a trend toward strict liability in products liability, but strict liability is generally limited
5.      Hammontree v. Jenner (Cal. App. 1971): No strict liability for auto accidents: epileptic crashes into storefront after blacking out even though doctor cleared him to drive.
6.      No deterrent value or risk spreading for strict liability, and huge logistical concerns.  Showing negligence is costly and cumbersome, but strict liability would unleash a flood of litigation and in auto cases could be even worse.
7.      “Strict” vs. “absolute” liability: in strict liability, still have to prove causation, defect, etc.

II.      DUTY


1.      In general, duty of due care is assumed. No duty is the exception rather than the rule because in most cases there is misfeasance rather than nonfeasance
2.      Misfeasance: acting negligently (active misconduct that works positive injury to another). If person undertakes a duty that act that must performed with reasonable care
3.      Nonfeasance: failing to act (a wrongful failure to take positive steps to prevent harm from occurring). Nonfeasance creates no duty for D, assuming person is under no duty to take affirmative action. There is no liability generally for nonfeasance
o   Moch Co. v. Rensselaer Water Co (NY 1928): D water works had contract with city to supply water including for fire hydrants. When P’s building caught on fire, P claimed that D failed to supply adequate water to prevent spreading of fire. Court held that duty does not arise because there was nonfeasance. D denied P a benefit and did not commit a wrong
4.      In order for there to be negligence, there must be a duty first
5.      Generally, D owes no duty to take affirmative action to held a stranger in an emergency except for three exceptions
1)      Special relationship: assuming a special relationship, one has a duty of affirmative action (includes parent-child, employer-employee, host-guest, carrier-passenger, jailer-prisoner, close friends)
o   Harper v. Herman (MN 1993): P was a guest on D’s boat, though D himself did not invite P. P dove into water that was too shallow and became a quadriplegic. Court held that there was no affirmative duty to warn because there was no special relationship
2)      Voluntary assumption of care: assuming no special relationship but voluntary undertaking to help, person has a duty unless their assistance has not placed the person in a worse position
o   Farwell v. Keaton (MI 1976): D left his wounded friend in the car of the driveway and friend died in hospital three days later. Court held that D assumed care of friend by putting ice on his head and taking care of him. Thus D had a duty to get medical help for this friend
3)      Undertaking doctrine: a duty arises when an actor makes a promise and others rely on that promise
o   Morgan v. Yuba County (Cal. App. 1964): Sheriff’s office had promised to but did not warn decedent if man who threatened her was released. Court held that when actor voluntarily acts in a way designed to reduce the risk that others may be exposed, then actor has a duty of reasonable care if his inaction increases the risk of harm to others and others rely on that 
6.      Non-negligent creation of risk: if you create the risk of harm, even non-negligently, and then become aware of it, there is an affirmative duty to prevent injury to others
o   Simonsen v. Thorin (Neb. 1931): Motorist without fault knocked a utility pole into the street. Court held that D has an affirmative duty to use due care to remove the hazard or to warn others of it, even though he was no liable for the hazard
7.      Obligations toward third parties: no liability if it’s nonfeasance. However, if there is an affirmative representation that turns out the be negligently inaccurate, there is liability
o   Randi W. v. Muroc Joint Unified School District (Cal. 1977): On basis of four positive letters of reference, school hires employee who had previously made sexual advances on minors and did so at new school. Court held that there was liability for recommenders because they gave misinformation. If recommenders had not given information, then they would not have been liable.
8.      Even in case of third parties, special relationship rationale applies (Restatement § 315 states that duty of care may arise from third person relation where there is a duty to control conduct
o   Tarasoff v. Regents of Univ. of Cal. (Cal. 1976): Psychiatrist ordered Poddar to be detained because he had threatened to kill P’s decedent. However, when police released Poddar, psychiatrist did not warn decedent or her family. Though historically therapists had no duty to third parties, court held that psychiatrist had duty to warn decedent because there was a specific and identifiable threat.
o   Reisner v. Regents of the Univ. of Cal (Cal. App. 1995): Court held that there was a duty on the part of the doctor to inform the spouse of a patient who was found to have HIV. However, this duty does not extend to third parties whose identity is unknown at the time. See Hawkins v. Pizzarro
9.      Tarasoff Balancing Test:
1)      Foreseeability of harm
2)      P’s injury
3)      Causality
4)      Moral blame
5)      Public policy of preventing future harm
6)      Burden to D
7)      Availability and cost of insurance for risk
10.  In the wake of Tarasoff, California passed a statute that

not responsible for conduct that is out of purely personal motives of employee or conduct that is unusual or outrageous (hard to establish respondeat superior for intentional torts)
o   Christensen v. Swenson (Utah 1994): Guard collides with motorcycle while rushing back to post from getting lunch at café nearby. Court held that whether an employee was working within the spatial boundaries or with employer’s interest in mind is a question of fact for juries
5.      Employer is held liable for employee’s actions because:
1)      Employee may not have behaved in a given manner absent the commitment to the employer
2)      It creates an incentive for the employer to hire accountably and to discipline misconduct
6.      Can also demonstrate that the employer was at fault for negligently hiring the employee
o   Foster v. The Loft, Inc (Mass. App. 1998): employer was deemed negligent for hiring a volatile guy as a bodyguard.
7.      Independent contractors: generally an employer will not be held vicariously liable for conduct of an independent contractor since the employer does not control the manner in which the contractor operates
8.      Non-delegable duties: used to justify the imposition of liability on one person for the negligence of another to whom the former has entrusted (or ‘delegated’) the performance of some task on their behalf
1)      Generally most appropriate when the risk of harm is severe or when consumers have no choice
2)      Liability cannot be delegated though work is delegated
9.      Apparent agency: employer is held liable if it appears that the contractor is an agent of the employer, particularly if:
1)      Employee made representation of the purported contractor as his agent
·         Restatement § 429 requires only “reasonable belief” on P’s part and not an affirmative representation that contractor is agent
2)      Reliance upon that representation by a third party
3)      Detrimental change in position
o   Roessler v Novak (Fla. App. 2003): P sued for negligence of a radiologist who was a contractor at the hospital. Principal can be held liable by apparent agency for negligence of an independent contractor. Though FL does not recognize non-delegable duties for health care providers, doctrine of apparent agency still applies
1.      Common law rule that general duty of care of landowner varies with the nature of the entrant. There are traditionally 3 categories of persons coming onto land
1)      Trespassers: landowners owed a very low level of duty to trespassers. Duty was to refrain from willful and wanton misconduct. There may be exceptions where there is a presence of a discovered trespasser that is known to landowner – then landowner would have to warn about highly dangerous conditions. There is also an exception where there are undiscoverable dangers that cause serious harm. Finally, there can be an exception to child trespassers when there is an attractive nuisance on landowner’s property