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Torts
University of Connecticut School of Law
McLean, Willajeanne F.

Torts Outline
 
CH. 1 INTRODUCTION
1.       Tort
a.       To act in a manner that the law deems wrongful (Common law)
2.       Example of Tort
a.       D was negligent in giving P wrong drug when not checking the label before handing out
                                                               i.      No comparative negligence since P would have no reason to know they were the wrong drugs and jury instructions correct by addressing comparative fault
                                                             ii.      No expert needed when something is sufficiently obvious using common knowledge
                                                            iii.      Judge sustained improper statements made in closing so no abuse of discretion
 
CH. 2 DUTY
 
1.       Negligence
a.       Prima Facie Case:
                                                               i.      P suffered injury
1.       Adverse consequence including physical harm, loss of wealth, emotional distress
                                                             ii.      D owed a Duty
                                                            iii.      There was a breach of that duty
                                                           iv.      Breach was actual and proximate cause of injury
2.       General Duty of Reasonable Care
a.       General duty=no duty
b.      Duty to take reasonable care against causing harm is owed to another when a person of “ordinary sense” would recognize that careless would cause a danger of injury
c.       Evolution of Duty Rules:
                                                               i.      Winterbottom v. Wright
1.       P was employee of company who bought carriage, P injured when wheel came off
2.       Do not owe a duty of care to P when there is no contractual agreement
3.       Privity Rule
                                                             ii.      Thomas v. Winchester
1.       Exception to privity-makes P liable to D when item is of foreseeable imminent danger  (mislabeled poison sold)
                                                            iii.      MacPherson v. Buick Motor Co (p59)
1.       When manufacturer sells an item with the knowledge it will be sold to a third person, and the item will be used without any further tests, then the manufacturer has a duty to make item carefully and prevent against foreseeable harm
a.       Imminent danger is extended to items that are probable to become dangerous if improperly made
                                                                                                                                       i.      Would manufacturer owe a duty to bystanders who get hit by defective wheel? Under Macpherson no, bc not reasonably foreseeable
                                                           iv.      Synthesis of Rules:
1.       Duty between a man and third party is of reasonable care when a car runs from a product manufacturer to the user of a product, regardless of the presence or absence of privity, when:
a.       The nature of the product alerts the manufacturer that if carelessly made, the product will be probable to cause danger to user under conditional terms of use, and the manufacturer cannot expect the product to be inspected before use
b.      Foreseeability is necessary
                                                             v.      Mussivand v. David (p67)
1.       It is reasonably foreseeable that by having sex with a married woman, she is likely to get your STD and transfer it to her husband, therefore until the wife knows she has an STD, you owe a duty to the husband
3.       Qualified Duties of Care (limited duty cases)
a.       Affirmative Duties (unreasonably failed to provide assistance)
                                                               i.      Osterlind v. Hill (76)
1.       No duty to person who rented a canoe from D when they called out for help after flipping
2.       Case of Nonfeasance-D did not do anything to make the situation worse
3.       Hypo-kids playing Russian roulette and one shoots himself. Others are not liable since they did not participate-nonfeasance
                                                             ii.      Baker v. Fennerman (77)
1.       A place open to the public business (special relationship) had to exercise reasonable assistance to anyone injured regardless of how the injury occurred
                                                            iii.      Imminent peril-If D had a hand in placing P at harm then D incurs duty to undertake reasonable steps to warn, protect, or rescue
                                                           iv.      Voluntary Undertaking-If voluntarily undertaking to warn, protect, or rescue then duty to follow through
1.       It prevents others from helping
2.       General shift that a promise is evidence for undertaking
                                                             v.      Special Relationship-Pretort relationships
b.      Premises Liability (permitted or maintained unreasonably dangerous conditions)
                                                               i.      Invitee
1.       Person who enters under implied invitation for mutual advantage
2.       i.e. business purpose, false friend
3.       Owe duty to keep reasonably safe, and to warn against hidden dangers
                                                             ii.      Licensee
1.       Enter property for own benefit with permission
2.       i.e. social guest, invite over for dinner
3.       Duty to warn of hidden dangers that are known or should be known
                                                            iii.      Trespasser
1.       Enters without invitation or right
2.       Duty to refrain from willful or wanton injury
                                                           iv.      Exceptions:
1.       Hazardous condition-must be danger on land, not dangerous activity taking place
a.       i.e. not include tractor driving texting and hit someone
2.       Children-reasonable care to avoid injury to child
3.       Adult trespassers-when trespassers commonly use land as shortcut etc.
4.       Recreational Use Statute-immunes owners with property used for recreation without charge
5.       Nonentrants-not liable to protect against natural harms
6.       Unclear as to what duty is owed to third parties (107w)
                                                             v.      Leffler v. Sharp (88)
1.       Guest who went onto roof of hotel was a trespasser because all precautions to keep people off were taken (locked door, not an exit sign)
c.       Pure Economic Loss (acted without reasonable care for P economic prospects)
                                                               i.      In general, no obligation to avoid depriving persons of economic prospects
                                                             ii.      Exceptions:
1.       Accountants are liable, as are attorneys
                                                            iii.      Aikens v. Debow (97)
1.       Pure economic loss from interruption in commerce caused by another person’s negligence may not result in recoverable damages in the absence of physical harm, contractual relationship, or some other relationship
2.       If allow hotel owner to recover costs when truck hit bridge, it would open up the door to mass litigation-matter of public policy
d.      Three things to look at in determining duty: relationsh

rofessionals
                                                            ii.      Physical disabilities are taken into account
                                                          iii.      Children
1.       Held to capacity of child who is of the same age, intelligence, and experience
2.       Appelhans v. McFall (160)
a.       66yr old walking and struck by 5yr old on bike
b.      Judged according to how reasonable person of same age would act
c.       Child not negligent under tender years doctrine
d.      Parent-Child relationship does not automatically create liability
                                                                                                                                      i.      Parents have to be aware of specific instances of prior conduct sufficient to put them on notice, and had to of had the opportunity to control them
3.       Tendered Years Doctrine-children under a certain age cannot be held negligent
a.       Exception:
                                                                                                                                      i.      When engaging in adult activity, a child will be held to adult standards
3.       Role of Custom
a.       Custom is probative, not dispositive
                                                              i.      TJ Hooper
1.       Tugboats did not have radios, neither did the majority of the industry, so they did not know of storm coming
2.       There are some precautions so imperative that their universal disregard will not excuse their omission
3.       Courts establish the negligence standard when an industry is lagging
4.       Custom may be used as evidence to support a fact, but it is not conclusive
b.      Exceptions:
                                                              i.      Medical Malpractice
1.       Custom is dispositive
a.       Johnson v. Riverdale (p 173)
                                                                                                                                      i.      The applicable standard of care is one used by the profession generally, not what one individual does
                                                                                                                                    ii.      Expert witnesses used to discuss industry custom
b.      As long as practice is acceptable, it does not matter which school of thought a doctor follows
2.       Standard of Informed Consent
a.       Professional-What reasonable doctor would impart
                                                                                                                                      i.      Minority view
b.      Prudent Patient Standard
                                                                                                                                      i.      Disclose all risks inherent in the proposed treatment which are sufficiently material that a reasonable patient would take them into account