Contracts Outline

Torts Outline I Fall 2011

Professor Bissom-Rapp

Negligence:

Failure to live up to community standard; look at the conduct to determine if it violates community standard and conduct caused harm.

I. Duty: A 1) foreseeable plaintiff and 2) legal obligation (duty) to act or refrain from acting in a certain way toward (DUTY – talk about foreseeable plaintiff, zone of danger argument)

a. Foreseeable plaintiff

i. Cardozo: A duty is only owed to foreseeable πs. A foreseeable π is one who is in the zone of danger created by ∆’s careless conduct. This is an issue for the judge to determine.

ii. Andrews: A duty is owed to everyone. The issue of foreseeability should be determined as a matter of proximate causation. This is an issue for the jury.

b. Limited Duty

i. The Failure to Act can give rise (or not) to an obligation

1. Misfeasance: Active conduct that imposes a risk on another. The law will generally impose an obligation on ∆ (e.g. driving while drunk)

a. Negligent omission – Failing to take action while engaging in an activity (e.g. failing to maintain a gasoline drum while running a business).

i. Failing to act on an activity you took over, when a reasonable person would act.

2. Nonfeasance: Failure to take positive steps to help someone generally creates NO obligation (e.g. no duty to rescue).

a. Exceptions to Nonfeasance Rule: In general no obligation is imposed except

i. There is a special relationship between π and ∆

1. Common carriers, innkeepers, and public utilities

2. Family Members

3. Doctors/nurses/police

4. Special Relations – maritime law has rule that ship master is required to make reasonable efforts to rescue a seaman who fell overboard.

5. Conductor on train has to be reasonable; jailer/prisoner duty to rescue

6. Landlord/tenant; hospital/patients

7. Temporary legal custodian – school teachers might have duty to students and from torts from other students

ii. ∆ started to act and abandons the act

1. Traditional view: Once ∆ intervenes, ∆ cannot leave the π worse off than π would’ve been without ∆’s intervention

2. Modern view: Once ∆ intervenes, ∆ must simply act reasonably

iii. ∆ causes plaintiff to rely on gratuitous promise

iv. ∆ innocently or carelessly creates the peril

ii. Negligent Infliction of Emotional Distress (limited duty): courts are hesitant to impose a legal obligation but look at:

1. Direct victim cases – ∆’s careless conduct directly causes emotional distress to π (e.g. π is almost hit by D, who is driving drunk)

a. Rules:

i. The physical impact rule (few states use this): No obligation imposed unless ∆ carelessly causes something to touch plaintiff’s body and π suffers emotional distress. (If there was physical contact to the plaintiff and they suffer NIED then court is ok with imposing a duty)

1. Criticism dust can get in the eye and can recover but CAN’T recover if you suffer a heat attack but there was no physical contact

ii. The Physical Manifestation Rule: No obligation imposed unless ∆ carelessly causes distress which manifests itself physically in (normal) π. No need to show actual impact or touching of π’s body. (e.g. heart attack resulting from ∆’s near miss is OK) [plaintiff will recover where a definite and physical injury is produced as a result of emotional distress proximately caused by def’s negligent conduct, notwithstanding the absence of physical impact]

1. Exception:

a. No obligation will be imposed even where distress manifests itself physically in Plaintiff, where plaintiff is a hypersensitive person and def has no knowledge of person’s hypersensitivity à Case Daley v. LaCroix

iii. The Zone of Danger Approach: no obligation imposed unless Plaintiff was in the zone of danger (includes near miss situation) caused by defendant’s careless conduct. If Plaintiff was a direct victim or bystander, was close enough to def negligent conduct to be placed at risk of physical injury an obligation is imposed (some jurisdictions requires physical contact)

1. No recovery unless plaintiff at risk of physical impact (zone of danger/near miss) and suffered physical manifestation of emotional distress.

2. Bystander cases: π is a bystander who is emotionally distressed because of what ∆’s careless conduct does to a third party (e.g. π witnesses ∆, driving drunk, running over π’s child)

a. RULES:

i. Limited Foreseeability Approach (Minority Rule) (Dillon v. Legg): Defendant’s have an obligation to avoid causing bystander emotional distress that is reasonably foreseeable. Three factors to consider