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

1. Respondeat Superior: “Let the Superior Respond”
                a. Let the employer answer for the employee
i. Exception to the general rule that each person is accountable for actions of legal fault BUT not for the legal faults of others.
                b. Employee MUST be acting in the scope of his employment
                c. Example: Walters v. Wal-Mart Stores Inc.
                                i. Pharmacist Lovin was acting in the scope of his employment
                                                1. Hired as a pharmacist
                                                2. Mistake occurred on HIS shift
                                                3. He was there when Walters showed up
2. Judgment as a Matter of Law
a. No reasonable jury, based on the facts adduced at trial, can be conclude any other way.
3. Directed Verdict
                a. Occurs at close of ∆ case
                b. Motion claiming P has not made prima facie case
4. Motion for Summary Judgment
                a. Occurs before trial
                b. Motion claiming P has not made prima facie case
5. Judgment Notwithstanding the Verdict
                a. Occurs after jury has reached & submitted a verdict
                b. Essentially says “Jury, I think you got this wrong”
                c. Asks judge to overrule jury b/c there is no way a reasonable jury would be able to find as jury actually did
6. Prima Facie Case: 
                a. Has proven or done his or her duty
b. EXTREMELY RARE when elements of P prima facie case SO OBVIOUSLY satisfied that judge directs verdict for P
                i. If that obvious, would have settled
7. Expert Testimony
                a. Used to show duty
i. Only need expert when it is not w/in common knowledge
ii. NEED EXPERT ONLY WHEN IT IS NOT W/IN COMMON KNOWLEDGE
1.       Sufficiently obvious
Walter v. Wal-Mart Stores, Inc. *Theory of suit = Repondeat Superior*
1. Facts: Walter given incorrect prescription for cancer medication at Wal-Mart pharmacy causing P grow seriously ill. P sued ∆ for negligence. Pharmacist admitted to wrongfully putting wrong prescription in bottle.
2. Trial judge directed verdict for P
                a. Any reasonable jury would conclude Walter proved negligence claim
b. Jury only had decide damages
3. ∆ moved for judgment as a matter of law at close of case b/c P failedto present expert testimony. 
a. Motion denied.
b. Pharmacist’s actions within the common knowledge
i. Sufficiently obvious
4. ∆ moved for mistrial during P closing arguments due to improper comments
a. Court denied.
5. ∆ entered post-motion for judgment as a matter of law or a new trial, denied.
6. P alleges ∆ admitted liability in Opening Statement
a. Ct. says statements made by counsel during opening or closing statements CAN result in an admission BUT have be:
                                i. Deliberate
                                ii. Clear
                                iii. Unambiguous
                                iv. Taken in context of entire opening statement
                b. Not met here
7. P met prima facie case
                a. Duty
i. Established w/precedent on what the duty of care of pharmacists to their customers is
                b. Breach
                                i. Pharmacist owes their customers a duty of ORDINARY CARE
                                ii. Lovin did not follow the 4 part procedure Wal-Mart had in place to check errors
                                                1. Failed to counsel P when pick prescription up
                                                2. Did not check name against original script                               
                c. Causation (link btw. Duty + Breach + Harm)
i. Has to be a REASONABLE connection btw. act or omission of ∆ & damages P suffered
8. ∆ claims Comparative Fault on part of P
a. If P did not uphold DUTY TO HERSELF, damages can be limited or case can be dismissed
                b. Damages owing to a P may be reduced when the harm is partly the result of the P’s own fault. 
1. If P’s fault is equal to or greater than that of the ∆, the P cannot recover damages. 
c. Lovin admitted P no reason believe given wrong drug
d. Told jury could limit damages due to P inaction as a failure to mitigate. 
 
Contributory Negligence
                a. Generally unreasonable behavior by P
                                i. Can be BEFORE or CONCURRENT with the injury that is imposed by the ∆
                b. If any contributory negligence, ∆ walks
 
Comparative Fault was Created to Deal with Harshness of Contributory Negligence
                a. Jury compars negligence of P and ∆
                                i. P can receive no recovery or lessened recovery depending on the level of contribution that is decided
                b. Percentages of fault
 
Statutes & Torts
                a. Can create causes of action
                                i. Are rules of conduct that can create a duty
                b. Limit damages (damage caps)
                c. Set standards of care
                d. Interact w/common law to create new causes of action/statute of limitations
 
Standard
a.       By a preponderance of the evidence
 
Principal Objective of Tort Law
                a. Compensate for loss
b. Try to put the victim in the position she was in
 
Collateral Source Rule
                a. Cannot take into consideration any monies P may have gotten from insurance
 
Historical Development of Fault Liability
                a. English Legal System: 2 Writs
                                i. Trespass (vi et arms): Force in Arms
 1. Used for intentional torts & crimes
                a. Assault
                b. Battery
2. Covered any kind of case in which the P can show ∆ used force to person or property
3. Obtained writ from King’s Officer & functioned like a complaint
                                ii. Trespass on the Case: Includes fault
                                                1. Allows P who could NOT show force was directly used on P
                b. Choice of Form IMPORTANT
                                i. If chose wrong, case thrown out
                c, 19th c.
i. Courts decided a P could sue as long as P could establish that the injury occurred as a result of ∆ negligence
Negligence: The Failure or Omission to do what should have been done
                a. Nonfeasance: The failure to act when a duty to act existed
                b. Modern notion of negligence not widespread until 1830’s (Industrial Rev.)
 
Prima Facie Case:
a. ∆ owed a duty to a class of persons including P to take care not to cause an injury of the kind suffere

one other than the buyer
                a. Where injuries are foreseeable, have to take measures to insure injury does not result
                                i. Cites NY cases in support
7. Holding: If the nature of a thing is such that it reasonably places life and limb in peril when negligently made is then a thing of danger
a. Nature gives warning of the consequences to be expected
11. Ct. bypasses privity by focusing on Thomas decision
                a. Duty in Thomas b/c danger is to be foreseen. 
12. Distinguishes imminent danger. 
a. Loop v. Litchfield, wheel lasted 5 years before broke. 
b. Losee v. Clute: buyer tested boiler so manufacturer knew his test not final one. 
c. Devlin v. Smith: ∆ knew scaffold to be used by workmen & dangerous if not constructed properly. 
i. Since built it for their use, duty to build it with care regardless of contract. 
d. Statler v. Ray Mfg. Co.: coffee urn manufacturer liable b/c urn of such a character that could become a source of great danger to many people if not properly constructed. 
e. **Finality of the test has bearing on duty.  
13. Extended Thomas 
14. Danger + knowledge thing will be used by persons other than the purchaser w/o new tests, then, irrespective of contract, the manufacturer of the thing of danger is under a duty to make it carefully.” 
15. There must be knowledge of a danger, not merely possible, but probable
16. Must be knowledge that in the usual course of events the danger will be shared by others than the buyer
17. The proximity or remoteness of the relation is a factor to be considered
18. MAKES NEW RULE USING THOMAS
                a. Not bound by Winterbottom b/c not NY law
                b. *Retains privity rule but makes an exception:
                                i. ∆ behavior put people’s lives in danger
1. Expands Thomas by looking at the NATURE of the product that manufacturer KNOWS or SHOULD KNOW if made carelessly & w/o inspection, LIKELY to pose risk of danger to life & limb to people outside privity 
 
**TAKE HOME LESSONS:
a. In the area of liability caused by carelessly produced products, privity normally is not a necessary elements for the recognition of a duty in negligence
b. Led to eventual rejection of privity in carelessly produced products case in vast majority of state courts
c. Helped pave the way toward modern doctrine of strict products liability. 
d. 1969 CA case established bystanders are able to sue when it is reasonably foreseeable
 
Broad range of activities that carry with them a duty to be vigilant of others well being
Grounded in notion that bodily injury to another is a foreseeable consequence of pursuing those activities carelessly