1. Chapter 1: An Introduction to Torts
a. What is a tort?
i. when someone does something wrong or injurious to another
b. An example of a tort suit
i. Walter v. Wal-Mart Stores, Inc. (5)- π rcvc wrong chemo drug from pharmacy. causes internal bleeding and other complications.
1. A judgment and compensatory award are proper where the evidence of liability is overwhelming–no issue of material fact exists and where the evidence of harm provides a rational basis for the amount of damages.
2. Chapter 2: The Duty Element
a. Heaven v. Pender (1883)- considered too broad a ruling later but is the 1st case ct attempts to define the relation btwn 2 persons and the duty owed
i. whenever one person is placed in a position over the other a duty is formed to use care to avoid harm
b. Negligence: A brief overview
i. Elements of the prima facie case
a. duty, breach, causation (actual/proximate- foreseeable), injury
2. Product Liability
a. injury, prod sold by ∆, ∆ is commercial seller of prod, prod is def, causation (actual/proximate)
b. π must be using prod in correct way
c. The duty element and the general duty of reasonable care
i. The evolution of duty rules
1. Privity- the proximity of relation btwn 2 parties
a. defines the duty contractually owed to another
b. Winterbottom (56) — wheel collapsed off vehicle when driving permanently injuring leg
i. relationship was too far remote and ct did not grant remedy (damnum absqe injuria- harm without wrong)
2. Macpherson v. Buick Motor Co (59)- ∆ sells car to dealer who sells to π. π drives off lot and car collapses–wheel made of defective wood.
a. There is a duty of reasonable care that runs from the product manufacturer to a user not in privity w/ manufacturer whenever the nature of the product alerts the mauf that if carelessly made and used w/o inspection it is likely to cause danger to life and limb
b. Manuf knows or should know dangers posed by product if carelessly made and not inspected
c. Manuf can expect that product will not be inspected for safety by anyone prior to its use
d. Privity no longer affects liability
e. Cardozo opinion
f. Imminent danger
i. Thomas v. Winchester–mislabeled poison as medicine bottle, woman poisoned.
g. Foreseeability- should ∆ have seen that lack of inspection by dealer could lead to accident?
3. Mussivand v. David (67)- π’s wife has affair with ∆ and contracts STD which is passed to π. π sues ∆ for negligence.
a. Due to public policy is foreseeable that π would sleep with spouse so duty extends.
b. foreseeable injuries = duty, spousal relationships = duty
c. someone w/ STD has duty to use reasonable care to avoid infection to others when engaging in secual conduct
d. Qualified duties of care
i. Misfeasance- doing lawful thing improperly (active misconduct)
ii. Nonfeasance- passive in action or failure to take steps to protect a person from harm
iii. Duty of Care- Basic Rule
1. one has no legal duty to come to the aid of another
i. ∆ had a hand in putting π in risk of harm may have duty to take reasonable steps to warn, protect, or rescue
ii. Voluntary undertaking to warn, protect or rescue
iii. Certain pre-tort relationships
iv. Affirmative duties to rescue and protect
1. Osterlind v. Hill (76)- intoxicated canoe renter. π starts to drown, calls for help, ∆ hears him and ignores the calls. π drowns.
a. no duty to rescue. death due to unwillingness to provide assistance is not going to lead to liability unless a special relationship exists.
2. Baker v. Fenneman & Brown Properties, LLC (77)- π enters Taco Bell, has seizure and hits head on floor. Comes to, gets up–clerk asked if wanted ambulance. π declines then has another seizure and is knocked unconscious. Was choking on blood and teeth when comes to–stumbled to parking lot to friend who called fiance to take him to hospital.
a. Public policy–a business has a duty (should assume affirmative duty) to care for cus
1. Dissent- judicial activism–large scale changes in doctrine should be enacted by legislature
2. Property owner is responsible for injury caused to another by want of ordinary care or skill in the management of his property
ii. Tarasoff v. The Regents of the University of California (112)- Poddar tells therapist is going to murder π. Therapist calls police who arrest P then release determining not an immediate danger/threat. π returns to town and P murders her. ∆ claim no duty to π.
1. “protective privilege ends where public peril begins”
2. Special relationship of therapist to pt imposes duty where therapist must warn pt’s intended victim of threat posed to her if therapist predicts or should predict pt is a serious threat to the safety of that individual
3. Tarasoff Factors
a. foreseeability of harm
b. degree of certainty that π suffered injury
c. closeness of connection btwn ∆ conduct and injury suffered
d. moral blame
e. policy of preventing future harm
f. extent of the burden to ∆
g. consequences to the community of imposing a duty to exercise care with resulting liability for breach, availability, cost, and prevalence of insurance for the risk involved
3. Chapter 3: The Breach Element
a. Duty, Breach, and the Meaning of “Negligence”
i. Breach- question of fact for jury to decide
ii. Myers v. Heritage Enters, Inc. (142)- π falls in nursing home while being transferred from bed to wheelchair, hits arm of hoyer lift and fractures the tibia and fibula on both legs. Wrong SOC instruction given to jury–shouldn’t have applied professional negligence standard for CNA.
1. When interpreting legislative intent must first look at the plain meaning of the statute (what do the words actually say)
2. Professional negligence rqrs expert testimony to establish SOC