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University of Connecticut School of Law
McLean, Willajeanne F.

Torts, Mclean, Fall 2014
Elements of the prima facie case
Prima Facie: baseline elements that must be demonstrated in order to make a claim, to be eligible as a case. However, even if the plaintiff can establish the prima facie elements, there are still ways for the defendant to avoid liability.
Injury (Jury)
·  Physical harms
o   Bodily harms – illness from infection, broken leg
o   Physical harms – someone crashes their car and destroys your garage
·  Loss of wealth – bank account taken from you. Lost expected income i.e. Gulf Coast restaurant has its patrons driven away by oil spill
·  Emotional distress
Duty (Judge)
Breach (Jury (instructed by judge))
Cause (Jury)
**Always use this framework to set up negligence cases
·  Did the D owe ¶ a duty to conform their conduct to a standard necessary to avoid the risk of harm?
·  Default: person has a duty to conduct himself as a reasonable person would under the same circumstances.
IF created Risk: then had a duty
If did not create risk: no duty unless exceptions
Foreseeable Harm: Macpherson
Cotterill v. Starkey Eng 1839
·  Driver owes a duty of care not to injure other road users.
Vaughan v. Menlove Eng 1837
Landowner who sets careless fire on his own property that spreads to his neighbor’s.
·  Landowner owes care to not injure his neighbor’s property.
Heaven v Pender Eng 1884
Reasonable foreseeability – there is an unqualified duty to take reasonable care not to cause physical harms that is owed to another when a reasonable person could see their conduct is reckless / dangerous / negligent.
Winterbottom v. Wright Eng 1884
Old Privity Rule
Wright’s postmaster carriage collapses and maims Winterbottom’s leg. Court rules Wright had contract (& responsibility) to postmaster, but not to Winterbottom, because Wright and Winterbottom had no direct relationship.
Thomas v. Winchester NY 1852
Mislabeled bottle of poison. Winchester manufactured poisonous drugs à death or bodily harm was a natural consequence of sale with a false label.
MacPherson v. Buick Motor Co NY 1916
Wheel of Macpherson’s Buick crumbles, causing him serious injury.
·  Buick has duty to inspect the car as the final manufacturer.
·  A product manufacturer is obligated to take care that its product not injure, whenever certain conditions are true:
o   When products nature is such that is carelessly made, it will probably cause physical harm to someone through ordinary use.
o   The manufacturer knows that the product is meant for use by persons other than immediate buyers and knows that product won’t subsequently be tested for safety.
HReasonable foreseeability – duty exists whenever one person is in position where ordinary person would recognize that failure to use ordinary care would cause danger of injury (Heaven v. Pender, Menlove).
Mussivand v. David OH 1989
David (infected, has affair w/) à West (becomes infected, married to) à Mussivand (infected)
·  David should know he’s infected, because he’s a doctor.
·  Duty extends to West’s husband, because he’s in a reasonably foreseeable category of sexual partner. But duty doesn’t go further to other lovers West may have had.
·  D cites “anti-heart balm statute”. If relevant, the statute wipes out the common law tort of “criminal conversation”. Strategically, this is trying to say that Mussivand isn’t really suing for negligence, but because he has a vendetta against Dr. David.
o   Court dismisses this argument, says suit seems to be about physical injury.
Affirmative Duties
·  Nonfeasance – a failure to act in a situation where action probably would have prevented another’s injury. cf. Misfeasance- there was a duty that was breached
·  “As a general rule, an individual does not have a duty to aid or protect another person, even if he knows that person needs assistance”. Baker v. Fenneman & Brown Properties (Taco Bell Case)
·  Statutory recognition of affirmative duty – i.e. Vermont’s duty to aid the endangered act.
·  Common law exception – if you’re the one who put plaintiff in peril in the first place à affirmative duty exists.
o   Duty is only to make reasonable effort to rescue, don’t need to necessarily succeed.
o   E.g. Heffern v. Perry (person who buys narcotics for consumption by another has duty to assist that other when he ovedoses)
·  Voluntary undertakings – if you’ve volunteered to protect / save the person. Gotta finish what you start.
o   Once a rescue is undertaken, rescuer owes duty to perform rescue with reasonable care.
·  Good Samaritan immunity – person who attempts rescue is immunized from liability for negligence. Sometimes even gross-negligence.
·  Reporting obligations – e.g. if you know a child is being abused, must report suspicion to authorities.
·  Special relationships – i.e. carrier-passenger, property owner-invited guest. In some jurisdictions, a well established friendship.
Osterlind v. Hill MA 1928
Drunk guys rent a canoe on 4th of July. Canoe capsizes, drunks yell for ½ hr. for help. Attendant renders no assistance.
·  The failure of the D to respond to the drunk’s cries is immaterial. No legal right of the decedents was infringed.
Baker v. Fenneman & Brown Properties IN 2003
Customer is at taco bell to buy a drink. He falls backward, gets knocked unconscious, starts having convulsions. Gets up, falls again, knocks out some teeth.
·  Even though Taco Bell wasn’t responsible for the ¶‘s injury (pre-existing medical condition) there should still be a duty to provide reasonable care i.e. call a doctor.
·  Dispute of facts in this case on whether Taco Bell employee actually asked if ¶ needed help.
Tarasoff v. Regents of Univ. of California CA 1976
Tarasoff is killed by psychologically disturbed man. Her parents sue the hospital that employed the psychologist who had been treating that man. The killer (Poddar) told the doctor about his violent inclinations, was temporarily detained, but then released. No warning was given to ¶‘s about Tatiana’s peril.
·  D therapist cannot escape liability simply because Tatiana wasn’t his patient.

rule whether there was a breach of duty).
Economic Loss- need a special relationship to recover
Courts are generally reluctant to recognize pure economic loss.
·  Pure economic loss is not suing for lost wages if you cause physical injury that makes ¶ miss work.
·  Pure economic loss is not running into my truck, which I need for my business, so I’m suing for lost profits.
·  Pure economic loss applies only to negligence. If you intentionally harm someone’s profits it’s a different category.
Aikens v. Debow WV 2000
Debow drove a truck that was too tall into a bridge overpass, damaging it. The closed overpass eliminated the most convenient route for access to Aikens’s motel. Aikens saw decreased business during time bridge was fixed à sues for economic damages of $9,000.
·  Pure economic loss is generally not recognized in tort law. ** Special exception for commercial fishermen.
·  Economic loss alone is not enough – you need a special relationship with the tortfeasor (i.e. a contract).
·  New Jersey does it differently (minority view) – If you do damage to a particular identifiable class of people à they can recover for pure economic loss. But even this rule often gets transformed into a requirement of physical harm i.e. a chemical leak that forced an evacuation of an office. Office got to sue for lost revenue during the evacuation. People Express Airlines v. Consolidated Rail Corp NJ 1985
·  Limitations on pure economic loss are a matter of public policy.
·  Breach is issue of fact for jury – judge may only take away if evidence is so strong that he can conclude that no reasonable jury could find (or not find) breach. See, e.g. Adams v. Bullock (N.Y. 1919) (Cardozo reversed a jury verdict for P finding no breach as a matter of law where 12-year old boy was electroshocked while swinging an eight-foot-long piece of wire that came into contact with uninsulated electrical lines maintained by D).
·  Standard is to take reasonable care, not to make something reasonably safe. Look to whether D was reasonably diligent in carrying out duty, as opposed to whether ultimate conditions were unsafe. See Caliri v. New Hampshire Dept. of Transportation (patch of ice on road caused accident, but no breach because DOT did enough to discharge the duty, even though some roads remained unsafe).
Test= Learned Hand or whether used Ordinary Care in fulfilling its Duty
Ordinary Care < Extraordinary Care < Strict Liability