TORTS OUTLINE
NEGLIGENCE ELEMENTS: (SYNTHESIS – Read pages 355-57)
[1] Duty
[2] Breach
[3] Causation
[4] Damages
TWO PRINCIPLES IN ANALYZING DUTY:
[1] Foreseeable and unreasonable risk of harm
[3] Foreseeable Plaintiff (Zone of Danger)
OMISSIONS -FAILURE TO ACT:
Characterized as two categories:
(1) Misfeasance – Active misconduct that causes injury. (e.g., drunk driving and accidently runs over a pedestrian). There is liability.
(a) Negligent Omissions: Failure to do what a reasonable person would do when engaging in an activity.
(2) Non-Feasance – Failure to take positive steps to help somebody. (e.g. failure to rescue drowning friend; failure to tell Kaye about a hidden wire; child standing in double yellow line in traffic)
If Non-Feasance, then no liability. There is no-duty to rescue and no duty to warn between strangers.
(a) Exceptions to Non-Feasance:
(1) Special Relationship – See page 421-423
(2) Started to act and abandons act:
(a) Traditional: No liability unless you leave the victim worse off.
(b) Modern: Once you act, you must act reasonably
(3) Gratuitous promise – where Defendant causes Plaintiff to rely on a gratuitous promise
(4) Where Defendant innocent creates the peril:
(a) Traditional: No duty when you innocently create the peril
(b) Modern: Duty even when you innocently create peril.
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NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS – Where the defendant acted carelessly, (not intentionally), and caused another to suffer emotional distress
Two Types of Victims:
[1] Direct Victim – Victim is immediately present.
[2] Bystander – Victim is safely away from danger, but observes danger.
Freestanding Emotional Distress: Means no direct cause of a physical injury.
Four Approaches to NIED:
[1] Impact Rule – (Traditional Rule/Minority) – Physical Injury, must be touched, Physical impact must be a prerequisite to recovery [2] Physical Manifestation Approach – A definite objective physical injury produce by his distress must exist
Limitations:
[a] Hypersensitive Plaintiff with abnormal reactions would not recover, unless the Defendant was aware of Plaintiff’s hypersensitive conditions.
other without a privilege to do so created by the possessor’s consent or otherwise.
** Status distinctions are not followed in California in determining a duty.
Duties to Trespasser upon Discovery:
1. In conducting certain activities (e.g. metal maker), owner must act in reasonable care upon discovery of trespasser, and
2. Duty to warn of hidden artificial dangers if they pose a threat serious bodily harm or danger at time of discovery (no duty to warn of hidden natural danger), e.g, trench
HOWEVER, the law will make it foreseeable in certain cases when dealing with FREQUENT TRESPASSER. . . .
Duties to Frequent Trespasser:
1. In conducting certain activities (e.g. metal maker), owner must act in reasonable care in advance
2. Duty to warn in advance of hidden artificial angers known to the owner occupier that threaten serious injury or deaths. (E.g., Must post a sign where an open trench exists). Do not have