Part One: Overview
Chapter 1: An Introduction to Torts
I. What is a Tort?
-A special sort of wrongful act, one that literally involves a twisting, an injuring of another.
-To commit a tort is to act in a manner that the law deems wrongful toward and injurious to another, such that the other gains a right to bring a lawsuit to obtain relief from the wrongdoer.
II. An Example of a Tort Suit
Walter v. Wal-Mart Stores, Inc.
And 80 yr old lady went to the pharmacy to get a prescription, the pharmacist gave her the wrong medication and she got severely sick. Court held that the pharmacist did owe Walters a duty, which it had breach, and that caused her injuries. Court said that when a lay jury could decide a matter, no expert needed. Wal-marts attorney’s opening statement admitted the error made by its pharmacist in filling the prescription but there was no admission of negligence. Pharmacists owe their customers a duty of ordinary care, but that for a pharmacist means the highest practicable degree of prudence thoughtfulness and vigilance and the most exact and reliable safeguards must be taken. The pharmacist’s testimony established that the standard was breached. There was uncontroverted medical evidence that the drug which wal-mart provided Walter’s with erroneously caused damage to her body. That the blood test alone would not have revealed that she was taking the wrong medicine. That the trial court rightfully instructed the jury on contributory negligence because Walters did not schedule a check up on time. There was no way for Walters to know that she was taking the wrong medicine and she thought that the side effects were normal b/c they are common to similar medications.
A. Common Law and Statute
-Negligence is a failure to heed a duty of reasonable care that causes an injury to a person to whom that duty is owed.
-You need to prove four things in order to have Negligence.
1. Duty, a defendant had a duty to the plaintiff
2. Breached, that duty was breached
3. Cause, the breach of duty caused her harm
4. Injury, the effects are recognized by law as an injury
-Negligence is a common law causes of actions, thus the rules are established by judicial decisions and not by statutes passed by legislatures.
Stare decisis: “let the decision stand”
Restatements aim to gather together and interpret decisional law coming out of all U.S. jurisdictions in an effort to identify “black letter” law. They do not have the force of law but are persuasive authority.
B. Responsibilities in Tort
-Respondeat superior: Plaintiffs who sue entities such as corporations often are able to recover from them b/c of this rule of tort law, which states let the master answer. Under this rule an employer is held vicariously liable for wrongful acts of its employees committed within the scope of their employment. It does not make the employee immune from liability.
-Comparative responsibility: to what extent does the conduct of the plaintiff bear on the question of responsibility for their injuries? If the plaintiff is even partly responsible for their own actions then the defendant in most states is not required to pay for the full deed. If fifty percent or more then plaintiff does not get any recovery.
C. The Role of Lawyers
D. Proceeding Through Court
-Tort is private law instead of public. The government does not bring the suit, private parties do.
-A motion is a formal request for a ruling from the court, usually by a party to the lawsuit.
-A deposition is an interview that is conducted by an attorney for one of the parties in the presence of counsel for the other party.
-There are questions of law, which the judge decides, and questions of fact, which the juries decide.
-The judgment as a matter of law is when the party involved wants the judge to make the decision; it might even overrule what the jury decided.
-Motions for judgment as a matter of law come in three different varieties
-before trial, after some discovery has taken place but before a jury has been empaneled, this is a summary judgment, for when there are issues in a case where there are no real disputes or that a jury would not find for the party opposing the motion.
-during trial, after the attorneys have presented evidence to the jury, but before the jury receives its instructions to deliberate.
-after trial, after the jury has rendered its verdict. On the grounds that a reasonable jury could not have ruled as the jury actually did.
-The entry of a new trial order does not resolve any issues in the litigation, entry of a judgment as a matter of law is dispositive of some or all of those issues.
III. Tort Law in Context
A. Tort Contrasted with Other Areas of Law
-the primary purpose of a criminal persecution would be for the government, on behalf of the ppl, to punish the individual wrongdoer.
-criminal punishment: beyond a reasonable doubt
-tort: by a preponderance of the evidence
-the issue of the victim’s responsibility, the doctrine of comparative fault is usually irrelevant to a criminal prosecutions.
-another diff. b/w criminal and tort is that the resolution would not likely include an order from the court specifying redress.
-most criminal law is also found in statutes enacted by the legislative branches. Criminal law is public and not private redress.
-unlike tort law a contract suit seeks redress for the failure of the other party to do what he or she has promised to do.
-tort is a law of responsibility and redress
B. The Politics of Tort Law
C. Some Statistics Concerning the Tort System
IV. Using This Book
Part Two: Negligence: Liability for Physical Harms
Chapter 2: The Duty Element
I. Negligence: A Brief Overview
A. Elements of the Prima Facie Case
-Legal negligence is a failure to heed a duty of reasonable care owed to another that caused injury to that other.
-Four “elements” that a plaintiff must prove to make out a prima facie claim.
1. P has suffered an injury
2. A owed duty to a class of persons including P to take care not to cause an injury of the kind suffered by P
3. A breached that duty of care
4. A’s breach was an actual and proximate cause of P’s injury.
B. The Injury Element
-Types of injuries
1. Physical harms
2. Damage to property and personal possessions
3. Loss of wealth
4. Emotional distress
-duty element is a question of law which the judge must decide as opposed to
-breach and causation elements question of facts which the jury must decide.
-duty element requires a negligence plaintiff to establish that the defendant owed her, or a class of persons including her, an obligation to take care not to cause the type of injury that she has suffered.
-if an actor was not under an obligation, then she cannot be held liable.
-Heaven v. Pender: “the question is what is the proper definition of a relationship b/w two person…which imposes on the one of them a duty towards the other to observe such ordinary care or skill as may be necessary to prevent injury to his person or property.”
-b/c of that case they came up with reasonable foreseeability: that an unqualified duty to take reasonable care not to cause physical harms is owed to another whenever a person “of ordinary sense” would recognize that careless conduct on his part would cause “danger or injury to the person or property of the other.”
-historically the privity rule was first announced by the English Court of Exchequer in Winterbottom v. Wright. In Thomas v Winchester they distinguished privity by saying if imminent danger exists then the defendant still can be held liable.
-the courts have held that the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. The presence of a known danger, attendant upon a known use, makes vigilance a duty.
-if there is an invitation for another to make use of something then you must exercise reasonable care.
-foresight of the consequences involves the creation of a duty.
-an injury is the first and most basic condition for a viable tort claim. Most obvious is physical harms, which has two sub-categories of adverse effects. First, bodily harm. Second, damage to tangible property. Loss of wealth can also count as an injury in the law of negligence but most of the time needs to follow a physical injury. Emotional distress is also recognized as an injury.
C. Focusing on Physical Harms
-as an empirical matter negligence claims tend to arise out of physical harms, an emphasis on physical harms is probably the most effective way to put to one side any questions concerning the injury elements, it definitively satisfies the Injury requirement of the prima facie case.
II. The Duty Element and the General Duty of Reasonable Care
– One can say that the duty element required a negligence plainti
rson in charge.
-the owner of the premises is not an insurer of the invitee’s safety but does owe to an invitee the duty to keep the premises reasonably safe, or warn only where there is hidden danger or peril that is not in plain and open view.
Notes and Questions
1. Most jurisdictions state that possessors should warn of hidden defects that a licensee cannot be expected to know.
2. A person need not own the property to be a possessor. A tenant who rents an apartment, one who unlawfully occupies land, one who is entitled to occupy land even if she does not know it can all be possessors of land.
3. There is a distinction b/w hazardous conditions and hazardous activities
4. A trespasser is anyone who intentionally enters property w/o the possessor’s actual or implied permission.
5. The general rule of no duty of care applies only to adult trespassers; children are to be given reasonable care to avoid causing injuries. Attractive nuisance used to be the rule but courts held that it was to restrictive to prove. Now the only requirement is that if the land possessor have a reason to foresee that children might enter the property and be endangered by the condition. Limited duties to even adult trespassers have been added where the risk is posed by artificial conditions on the land, if the possessors know or should know that ppl trespass the land constantly.
6. Duty of reasonable care is owed to a licensee and an invitee.
7. The general rule is that D is not liable to take care to protect against harms caused by natural conditions. The no-duty rule does not apply when the danger is posed by artificial conditions.
8. Negligence claims now involve suits against property owners alleging that they failed to take adequate steps to protect tenants or other users of the property from criminal activity on the premises.
Leffler v. Sharp
-Issues presented: whether the trial court erred in finding Leffler to be a trespasser and in granting summary judgment to Free and Sharp on that basis, when there were unresolved issues of fact regarding legal status and duty owed.
-Leffler was a first time visitor to the Quarter Inn. He had been drinking. After observing individuals on the rooftop, which he presumed was open to Quarter Inn patrons. The glass door was locked and there was a “not an exit” sign up. As he was walking on the rooftop her feel through the roof. Sharp and Free had consulted an architect and structural engineer about the safety of the rooftop and they had been advised that it was not safe thus they had closed it off. They had not placed any protective measures over the window but the window was small and a few feet above the ground.
-Holding: the court held that Leffler was a trespasser on the rooftop and as such the owner did not owe him a duty. They held that although Leffler was an invitee at the time he entered the Quarter Inn, he was not an invitee at the time of the injury. That an invitee who goes beyond the bounds of his invitation loses the status of invitee and the rights which accompany that state.
-Reasoning: they used a three step process. First they had to identify whether or not Leffler was an invitee, a licensee, or a trespasser. Then they had to identify a duty which is owed to the injured party. Then they have to determine whether this duty was breached.
The court stated that a trespasser enters another’s property for his own purpose, pleasure, and convenience. They said that he was a trespasser because the dimensions of the window and it being almost three feet above the ground, belied any indication that the patrons were invited to go onto the rooftop. Also they said that the owners did not know ppl were gathering on the rooftop. They said that the owners only extended their invitation to patrons to come inside the establishment. He is not an invitee b/c the owners did not benefit from Leffler’s walk on the roof, which was wholly