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Torts
University of Connecticut School of Law
Pandya, Sachin C.

Tort- a civil wrong not arising out of contract
v Corrective justice- the law should allocate moral blame to make the victim whole.
v Optimal/Efficient Deterrence- forward looking to create a monetary incentive to change people’s behavior that reduces accident risk.

Hammontree v. Jenner
Christensen v. Swenson
Roessler v. Novak

Negligence Action
P shows that the D caused injury to the P because of failure to exercise sufficient care.
NEGLIGENCE
Negligence is conduct, which falls below the standard established by law for the protection of others against unreasonable risk of harm. It may consist of an act, or an omission to act when there was a duty to do so.
To establish a prima facie case for negligence, the following elements must be proved:
1) Duty (duty of care- issue of law for the judge)
2) Breach of duty
3) Cause-in-fact
4) Proximate Cause (issue of fact for the jury)

5) Harm

Proof of Negligence
v Burden of proof: 1) what did the D do, 2) what didn’t the D do, 3) how did the D do what he did (standard of care).
v Evidence: Direct (eye-witness) v. Circumstantial: inference of negligence is stronger depending on the evidence offered. (ex. Memory, sincerity, perception, ability to narrate).
v Burden of proof (party who has the burden has to satisfy 2 requirements):
1. Burden of production- bring forward enough evidence for a fact finder to be able to find for the P
2. Burden of persuasion- even if enough evidence, have to convince the jury

Negri v. Stop and Shop, Inc., 86
· RULE: P may make out a prima facie case of negligence by presenting circumstantial evidence that the D constructive notice of a dangerous condition which allegedly cause injury to its customers and did not remedy the condition.
· A slip and fall case, verdict for the P who found to have sufficient evidence for the injury. “dirty and messy” baby food- can draw an inference as to what happened before. (the evidence simply has to be in favor of the P)
· Constructive notice- what you should have known even if you didn’t actually know
· Actual notice- what you actually knew
Gordon v. American Museum of Natural History
· RULE: To constitute constructive notice a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the D to discover and remedy it.
· The P feel on the museum steps because of a piece of paper from the food cart outside the museum (respondent superior); 1- paper not dirty; 2- no eye witnesses. Inference: paper deposited quickly. Verdict for the D.
v HYPO: Pedestrian walking on the sidewalk and hit by a windowpane from the building- res ipsa loguitur.

I. Duty of Care
DUTY- A legal duty requiring the D to conduct himself according to a certain standard, as to avoid unreasonable risk to others

v General Duty- everyone owes a certain level to others
v Specific Duty- as between doc/patient; seller/buyer; owner/tenant

v A question of whether there is duty is usually asserted by the D in response to a negligence claim

v In general, no legal duty is imposed on any person to affirmatively act for the benefit of others.
Rest. 3rd s. 37 (proposed draft): No duty of Care with respect to risks not created by the actor: An actor whose conduct has not created a risk of physical harm to another has no duty of care to the other unless a court determines that one of the affirmative duties provided in §§ 38–44 is applicable.
Even though General rule is there is no duty to act, there are several Exceptions:
v Assumption of Duty to Act by Acting
One who gratuitously acts for the benefit of another, although under no duty to do so in the first instance, is then under a duty to act like an ordinary, prudent, reasonable person and continue the assistance.
“Good Samaritan” Statutes
A number of states have enacted statutes exempting licensed doctors, nurses, etc. from negligence who voluntarily (ex. When not at work) render emergency treatment.
v Risk creation: Peril created due to Defendant’s Conduct
One whose conduct (whether negligent or innocent) places another in a position of peril is under a duty to use reasonable care to aid or assist that person.
ü Hypo: driver’s truck breaks down (not due to any negligence on part of the driver). The driver created the risk, and thus would have a duty to warn oncoming traffic
v Duty to third persons based on special relationship with person posing risks:
1- Special Relationship to the victim
2- Special Relationship to the perpetrator
3- Duty based on innocent creation of risk

DUTY OF CARE
Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.
A general duty of care is imposed on all human activity. When a person engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable person would act under the circumstances.
In general, whether under a given set of circumstances conduct is negligent is for the jury to decide. The jury determines whether the conduct was unreasonable and hence negligent.
Ø However, a judge can make a determination that “reasonable persons cannot differ” and rule as a matter of law

TO WHOM IS DUTY OF CARE OWED?
a. General Rule – Foreseeable Plaintiffs
A duty of care is owed only to foreseeable plaintiffs.
b. The “Unforeseeable plaintiff” problem

v The Problem
The “unforeseeable” plaintiff problem arises when defendant breaches a duty to one plaintiff (P1) and also causes injury thereby to a second plaintiff (P2) to whom a foreseeable risk of injury might or might not have been created at the time of the original negligent act.
Ex: An employee of Defendant train negligently aided a passenger boarding the train, causing the passenger to drop a package. The package exploded, causing a scale a substantial distance away to fall upon a second passenger. Is the second passenger a foreseeable plaintiff?

Palsgraf v. Long Island Railroad (1928)
v The Solution(s)
Defendant’s liability to Ps will depend upon whether the Andrews or Cardozo view in Palsgraf is adopted. Most courts considering this issue have adopted the Cardozo view.

1) Andrews View
According to the Andrews view in Palsgraf, the second plaintiff (P2) may establish the existence of a duty extending from the defendant to her by showing that the defendant has breached a duty he owed P1. In short, defendant owes a duty of care to anyone who suffers injuries as a proximate result of his breach of duty to someone.
2) Cardozo View
According to the Cardozo view in Palsgraf, the second plaintiff (P2) can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her in the circumstances, ie., that she was located in a foreseeable “zone of danger”
a) Specific Situations
1) Rescuers
A rescuer is a foreseeable plaintiff as long as the rescue is not wanton; hence, defendant is liable if he negligently puts himself or a third person in peril and plaintiff is injured in attempting a rescue
ü Cardozo: “Danger invites rescue”

Palsgraf v. Long Island Railroad Co., 427
v Without any duty, there can be no negligence, never any liability to the

rd special relationship theory because the duty is not owed by the D to the other party in the relationship but to a third person.
· The D (therapist) was told by Poddar, a patient, that he intended to kill Tatiana Tarasoff. The D felt that Poddar was serious and informed the campus police but nothing was done besides detaining him for questioning. Poddar killed Tatiana and the P (Tatiana’s parents) brought a suit against the D for failure to warn and failure to take reasonable precautions to prevent the death.
· Step 1: therapist “knows” or “should have known”
· Step 2: therapist should have done something to exercise the duty of care to protect the 3rd party
· D argued that he did not owe duty to Tatiana and there is a confidential privilege in a doctor-patient relationship.
· The duty arises out of the professional relationship that extends to the victim.
· Protecting the community is an overriding duty of breach of professional ethics; the court accepts the trade off of saving lives to unwarranted disclosures.
· Decided by the CA jurisdiction but spread to others- duty to warn versions of Tarasoff.

Statutory mandated duty:
Ø Relationship between what you start with (no affirmative duty to act absent special relationship) and role of legislature to deviating from the common law to make an affirmative obligation to act a statutory duty. Common statutory obligations in some jurisdictions: duty to aid another who is exposed to harm, duty to report a crime (ex. Child abuse), Good Samaritan statutes, sexual assault against women and reporting the crime by bystanders.

Uhr. V. East Greenbush
· RULE: A private right of action cannot be fairly implied where it would be inconsistent with the statute’s legislative scheme.
· The school district testing children for scoliosis under the statute failed to test a child who’s alignment allowed to progress to harming her.
· The court held that even though the statute mandated testing for schools, it clearly sought to immunize the school districts from any liability that might arise out of the program.

II. Standard of Care/Level of Care

Brown v. Kendall, p. 35
v CARE: SHOULD HAVE ACTED DIFFERENTLY TO AVOID HARM BUT DID NOT.
(If acting differently would have led to a different result; if not, any act can endanger anyone.)
v RULE: If an act was purely an accident and unavoidable, with the conduct of the D free from blame, no action can be supported for an injury arising therefrom.
v FACTS
During a fight between dogs owned by the plaintiff and the defendant, the defendant, in order to separate them, took a stick beat the dogs. The plaintiff was looking on and when the dogs approached him in their struggle, the defendant, with his back to the plaintiff hit him in the eye with the stick.
v The act was unintentional and the judge erred in instructing the jury on extraordinary care instead of ordinary.