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Torts
Temple University School of Law
McClellan, Frank M.

I. VALUES AND PROCESS INTRODUCTION
A. Stating a Claim: How do you state a claim
Glick v. Olde Town Lancaster:  P assaulted on vacant property owned D by a third party who took woman there after abducting from another place. D knew that itinerants frequented property, and had promised to secure better to city authorities 5 days before attack. Court held that a property owner cannot be held liable for crimes committed on his property if he had no way of knowing such crimes would occur. Duty issue for judge to decide, or a breach of duty/causation issue for jury to decide? Holding: RST inapplicable because plaintiff was not within the class of persons the provision was designed to protect. Reasoning: There was no duty of care to Glick from Olde Town. Requirement of foreseeability is also not fulfilled. If a defendant has no reason to foresee that his undertaking is necessary for the protection of the third person plaintiff then there is no duty.
B. Law and Facts: How do you use procedure from P or Ds side?
Rorrer v. Cooke: P suffered a tongue injury after an operation, hired Cooke to represent her in suit. Lost suit, Cooke thought he had enough info to win, and decided to use Ps doctor as a witness to her claim instead of an expert witness, but doctor did not fully support claim of Cooke. Cooke does not get appeal together in time to file. P sues Cooke for malpractice.
Holding: If an attorney possesses the same skills as others in his profession, exerts his best judgement, and exercises reasonable and ordinary care, he can not be held liable for a loss in a malpractice case. Cooke won on a motion for summary judgement. Note: difference between a fact witness and an expert witness. Could not prove causation: must prove that jury would have decided for P.
Perez v. Wyeth Laboratories: Wyeth produced Norplant, a contraceptive, which it marketed directly to consumers. Wyeth did not warn consumers of possible side effects, including pain and complications upon removal.
Issue: Whether learned intermediary doctrine applied (the proposition that a pharmaceutical manufacturer generally discharges its duty to warn the ultimate user of prescription drugs by supplying physicians with the information about the drug’s dangerous propensities). 
Holding: A pharmaceutical company has a duty to warn consumers directly when a product is marketed directly to consumers and not to doctors.
Reasoning: Learned Intermediary Doctrine no longer valid because nature of doctor/patient relationship has changed. Strong dissent: legislative action, not judicial. Class, race and gender an issue in this case: marketed as a solution for poor, black welfare moms to stop future pregnancy.
Nova Southeastern University v. Gross:  Gross, an adult grad student at NSU, was assigned to mandatory practicum at FSA. Gross was abducted, sexually assaulted and robbed from FSA parking lot.
Issue: Whether a university may be found liable in tort where it assigns a student to an internship site which it knows to be unreasonably dangerous but gives no warning, or inadequate warning to the student, and the student is subsequently injured while participating in the internship?
Holding: A university has a duty to warn adult students of known risks associated with an assignment off campus.
Distinguishable from Glick—why? Important point- jury’s job to decide issues of fact, not judge.
II. Theories of Liability
A.      Tort Doctrine
1.       Intentional Torts: socially undesirable (e.g. assault, battery, emotional distress)
2.       Negligence: socially undesirable (compensated because of injury caused by a socially undesirable activity)
3.       Strict Liability: socially desirable (injury for reasons other than negligence or intent)
a.       Products Liability
i.         Manufacturing Defect: not intended by manufacturer
ii.        Warning Defect: not enough warning on product
iii.      Design Defect: unreasonable design
b.       Abnormally Dangerous Activity
B.      Policy and Values
1.       Deterrence: of socially undesirable or economically wasteful conduct
a.       General: making example of someone
b.       Specific: pay or enjoin to deter specific party from doing again
2.       Cost-Spreading: for policy reasons, individual should not bear the cost of accident
a.       Contracts or Insurance
b.       Justice or Fairness
3.       Justice
C.      Intentional or Anti-Social Conduct (Intentional Torts and Negligence)
Defendant intentionally commits the elements that define the tort. Intent: either that the defendant desires or is substantially certain the elements of the tort will occur.
Lucchesi v. Stimmell: P went into premature labor. Her doctor and D decided that their health best served by moving her to D’s specialist hospital. She moved, and 2 residents delivered baby, which was decapitated during delivery. D did not show up for delivery. D did not tell P what happened during delivery. Summary judgement granted by lower court.
Holding: It was a matter of fact as to whether P’s claim of emotional distress supported an intentional tort claim for outrageous conduct. Hard to claim negligence, b/c emotional distress not always recognized as injury.
Jaworski v. Kiernan: P (female) was injured in a soccer game by D (male) player charging her, against the rules of the soccer league.
Holding: In order to be held liable for an injury caused during a contact sport, the injurer must be found to be not only negligent, but reckless in his conduct during the game.
Reasoning: Plaintiff’s injury was a foreseeable consequence of the defendants actions. Court adopts the reckless or intentional conduct duty of care standard. Liability is limited to deliberate acts. 
Policy: encourage vigorous participation in sports. Must prove intentional tort, not just negligence.
Ghassemieh v. Schafer: P was Ds art teacher. As a joke, D pulled chair out from under P when she tried to sit down, and P seriously injured her back as a result.
Holding: An intentional act which produces unintended consequences can be the foundation for a negligence claim. In this case, P did not request correct instructions or make proper claims to use this rule of law. Again, distinction between intentional tort and negligence.
D.      Regulating Socially Desirable Activities (Strict Liability)RST § 519:
(1)      One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm
(2)      Strict liability is limited to the kind of harm the possibility of which makes the activity abnormally danger
Hardingham v. United Counseling Service:   P was a counselor at UCS and recovering alcoholic. Discovered drunk on 2 occasions. 2nd time, belligerent, one of Ds gets others to help. P drinks windshield wiper fluid in presence of Ds. Ds take to hospital, don’t tell about wiper fluid, P refuses treatment. P becomes blind from methyl alcohol.
Holding: a rescuer must be shown to be grossly negligent in order to be sued for damages. To rule as a matter of law, must be shown that no person could conclude gross negligence. Rescuers are afforded some protection.
Magrine v. Spector: P was patient of D, a dentist. P was injured when needle D was using to give injections broke off in her gum, had to have surgery to remove.
Holding: Dentist not strictly liable for an instrument used in the course of treatment of a patient. Strong dissent: dentist has absolute liability to make things safe, argues for cost distribution, patient should not suffer consequences alone.
Hammontree v. Jenner: P was owner of bike shop. D, a known epileptic – no episode for 14 years. D has seizure while driving, crashes car into shop, injuring P and causing property damage.
Holding: Drivers of vehicles can not be held strictly liable as a matter of law. Ct rejected SL because (1) product liability is spread over large businesses; we have precedent that review case by case
Peterson v. Superior Court: P injured while a guest in hotel owned by Ds (owner of hotel, operators of hotel, manufacturer of bathtub). Slipped and fell in tub, claimed no safety devices to protect.
Holding: The proprietor of a hotel or landlord of apartment building can not be held strictly liable on the basis of products liability for injuries to a guest caused by a defect in the premises. Seller is liable for harm caused.
Siegler v. Kuhlman:D a truck driver for 11 years. Prior to trip, inspected truck and trailer for damage, none visible. During trip, trailer detached, spilled gas that ignited and killed P. Ds exercised reasonable and ordinary care
Holding: Transporting gasoline in large quantities is an abnormally dangerous activity, and as a result, company can be held strictly liable for damages caused, even if company and driver were not negligent.
Crosby v. Cox Aircraft Co. of Washington: Plane owned by D (Cox) and operated by D (Joines) crashed onto Crosby’s property causing damage. Lower court held Ds strictly liable for damage.
Holding: Higher court reversed, saying that flying was no longer an abnormally dangerous activity.
Reasoning: Since flying is not longer an abnormally dangerous activity, pilots and owners should not be held strictly liable for ground damages caused by plane crashes, but are only liable is they are proved negligent.
Strong dissent. Says that there are policy considerations that go to strict liability. Benefit/risk and spreading of the loss. (RST is older than the decision so that’s why it contradicts)
Helling v. Carey:  P, 32, suffers from primary open angle glaucoma (condition where pressure builds up and eventually causes blindness). Condition very uncommon in patients under 40. P complained of pain to Ds (her ophthalmologists) over the course of several years. Condition can be diagnosed with a simple test. P has lost almost all peripheral vision.
Holding: While Ds conformed to the normal standard of ophthalmology, this was not enough to protect them from liability when they had special knowledge of Ps condition because of the volume of her complaints. Concurring opinion asserts that court does not know about standards of practice for ophthalmology, so should rule based on strict liability.
 
III. INTENTIONAL TORTS
A.      Intent: consciously desires consequences of the result of the act or knows that result i

such apprehension. 
Hall v. McBryde:  D injured P while firing a gun at youths in a car who were firing guns at his parents home. D didn’t intend to shoot youths, just scare them (assault), and didn’t intend to shoot P.
Holding: If one intends bodily harm or intends to make one afraid of bodily harm, and in so doing injures a third party, one is liable to that third party for injures inflicted because the intent for the crime is transferred (even if first is assault and second is battery). Also holds that a parent is not liable for the torts committed by their child unless the parent knows the child has a propensity to commit a harmful act and does not take reasonable care to prevent such act.
Basic Summary: Need a threat + either an action or an ability to carry out the threat, and intent can be transferred, even from the intent to assault to battery.
D.      False Imprisonment and False Arrest:
i. Policy: protecting your liberty, the right to move around (with false arrest the person is purporting to act under the authority of the law, potentially different impact).
ii. Intentional confinement of a person
iii. Intent: must intend to confine, or know with substantial certainty that the conduct would confine the person
iv. P must know of the confinement- must be aware or suffer some actual harm.
Dupler v. Seubert: P detained by supervisors after 5 PM while being fired, and after she asked to leave multiple times, including going to the bathroom to be ill.
Holding: An employer is subject to liability for false imprisonment when he detains an employee against her will with the implied threat of actual physical restraint, and where she is not compensated for her time. Must find an improper condition put on employee by employer. This is a jury question. Employer may be able to confine you if you were compensated for your time. Weiler says that can’t be falsely imprisoned if you were compensated for time. Fermino says can’t falsely imprison a person, even if compensating them for their time, to make them confess to something.
Wright v. State: P went to get new driver’s license to replace his expired one; took written test, returned with proof of insurance to take road test. Examiner refused. Argument ensued, and P told not to come back that day. Came back later, and examiner called police and had him arrested.
Holding: Court held that where the facts are undisputed, the question of whether an arrest was made with probable cause becomes a question of law for the court.
Notes: False arrest arises when one is taken into custody by a person who claims but does not have proper legal authority. Accordingly, a claim for false arrest will not lie if an officer has a valid warrant or probable cause to believe that an offense has been committed and that the person who was arrested committed it. Conviction of the crime for which one is specifically arrested is a complete defense to a subsequent claim of false arrest. 
Enright v. Groves: A plaintiff recovers for false arrest where she did not comply with a police officer’s unlawful order to show her driver’s license for a violation of a leash ordinance law.
E.       Intentional Infliction of Emotional Distress:
i. Policy: protects emotional state. A developing law, different jurisdictions require different criteria to prove.
ii. Definition: intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress (even w/o physical harm)
iii. To recover for intentional infliction of emotional distress, a plaintiff must establish that (1) the conduct of the defendant was extreme and outrageous (2) the emotional distress suffered by the plaintiff was severe and (3) the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct.  (Intent, knowing or reckless)
iv. Transferred intent: only in a very limited fashion, only when P is a member of the victim’s immediate family, is present, and his presence is known to D
v. Conduct must be extreme and outrageous- beyond all possible bounds of decency
vi. Must suffer actual severe ED