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University of Connecticut School of Law
McLean, Willajeanne F.

Torts Outline 2009
Prime Facie Case of Negligence: Duty, breach, causation, injury.
I.         DUTY
A.      P has to prove that D owed a duty to him, and P’s class of people, not to cause the type of injury that happened to P.
B.       Duty to act with reasonable care towards others, and conform to a legally defined standard.
C.       Some duties based on relationship, such as pharmacist and customer.
D.      Evolution of Duty Rules.
1.        Winterbottom v. Wright (England 1842) – No duty of carriage manufacturer to employees of a company which uses the carriages. Only a duty to the company. Need privity between the parties.
2.        Thomas v. Winchester (New York 1852) – A drug company does have a duty to a customer who uses its medicine. D mislabeled poison as medicine, and should know that death or great harm would result from its mislabeling.
3.        Further cases showed that when a product is not imminently dangerous, just poorly made, and injures a third party, there’s no duty. When the manufacturer’s mistake can cause imminent, inherent danger, there’s a duty.
E.       Foreseeability.
1.        MacPherson v. Buick Motor Co. (NY 1916) – P was injured by defective wheel in a car made by D. Even though D didn’t make the wheel, it had a duty to inspect.
Holding: Even if something is itself not dangerous, when it is reasonably certain to endanger life when negligently made, the manufacturer is liable. D violated its duty of inspection since it could forsee that a badly-made car would be dangerous for its user.
2.        Mussivand v. David – A man with an STD slept a woman who in turn exposed the STD to her husband. Even though there’s no actual privity between the men, there may be a duty of care.
Holding: There’s a duty to disclose one’s STD to one’s partners and the partner’s foreseeable partners, such as a husband.
F.       Nonfeasance.
1.        Generally no duty to act to save someone from injury, unless you placed the victim in harm.
2.        Osterlind v. Hill – No duty to not rent a canoe to a clearly drunk person or respond to his cries for help.
3.        Baker v. Fenneman & Brown (Taco Bell) – A customer in Taco Bell passed out and the employee didn’t help him.
Holding: A business may have a duty to offer reasonable asistance to its customers even if it didn’t cause the injury. Taco Bell may be liable for nonfeasance if it had a duty of reasonable care towards its customers.
G.      Premises Liability: Is the business liable for injuries on their property?
1.        Trespasser: no permission to be there. Usually just a duty to refrain from willfully injuring a trespasser, and to warn of known dangers that can cause death or serious injury.
2.        Licensee – Property is not open to the general public, but the licensee is allowed to be there. Owner has a duty to warn of known, hidden dangers and use reasonable care towards licensee. Ex. Police and firefighters.
3.        Invitee – Invited by the owner to do business there. Property owner has a duty to warn of known dangers and inspect for hidden dangers, and a duty to rescue. When the invitee enters prohibitted areas, he becomes a trespasser.
4.        Leffler v. Sharp (Miss. 2005) – A hotel guest who wandered onto the roof, a prohibitted area, became a trespasser. The hotel had no duty to trespassers except to refrain from intentionally harming him, so he could not recover for his injury.
5.        Rowland v. Christian (Cali. 1968) – A guest is injured by a concealed danger in the owner’s bathroom which the owner knew about. The owner is liable for injury, because she had a duty to repair it or warn the guest about it.
Holding: People are required to use ordinary care to prevent others from being injured as a result of their conduct. The distinctions of trespasser, licensee, invitee should be abandoned in favor of a general duty to all.
H.      Special Duties based on relationship.
1.        Tarasoff v. The Regents of University of Cali. – A student killed a girl two months after he told his psychologist that he was going to do it. No one had warned the victim about the danger.
Holding: A psychologist owes a duty of care to protect foreseeable victims when he knows his patient poses a serious threat to them. Public policy interest of safety is greater than interest of confidentiality.
2.        Aikens v. Debow – A truck driver crashed into a bridge, causing it to close and for P’s motel to lose business. No direct bodily harm or property damage, but P wanted to recover for lost profits.
Holding: You can’t recover for purely economic losses when there’s no special relationship and it wasn’t foreseeable.
II.       BREACH
A.      Breaching the ordinary duty of care.
1.        Myers v. Heritage Enters., Inc. (2004) – An old woman is injured while being moved to her bed using a hoyer lift. Her executor sues the nursing home for negligence. The Court first instructed the jury on the standard of professional negligence rather than ordinary negligence.
Holding: CNA’s should be held to an ordinary, not professional, duty of care when the nature of the work is not professional. The ordinary care standard was higher and didn’t require expert testimony, so P liked it.
2.        Martin v. Evans. – After checking around, a truck backs up in a rest stop and hits someone. The truck driver and victim had different stories about what happened.
Holding: It’s up to the jury to decide who to believe, P or D, when assessing whether D followed the correct standard of care.
B.       Breaching a Higher Duty of Care
1.        Pingaro v. Rossi – Strict liabilty for dog bites, even if the owner hasn’t acted negligently. A duty to all people who are on your property to avoid letting them get injured by your dog.
2.        Jones v. PAT – A passenger was injured while getting on a bus and wants to sue the bus company. Is bus held to ordinary or extraordinary care standard?

erson in P’s position would have decided differently with the right information.
5.        US v. Carroll Towing Co. (1947) – When moving barges, part of the pier broke off and pierced a tanker, which sunk. Someone should have been there keeping watch on the barge, but he wasn’t.
a.        Holding: Follow the Hand Formula to determine liability for injury.
b.        If B < PL, liability. If B > BL, no liability.
c.        B = Burden of avoiding the injury.
d.        P = probability of injury.
e.        L = cost of the injury.
6.        Rhode Island Hosp. Trust Nat’l Bank v. Zapata – P’s checks were being forged and he didn’t notice it for a few months, when it informed the bank about it. P was angry that the bank hadnt noticed it earlier and won’t reimburse him for the fraudulent checks before he discovered the problem. The bank used reasonable care when checking for fraudulent checks, and said that P had a duty to check his statements.
Holding: The industry standards of the bank were reasonable, because the cost of checking every single check would outweigh the possible increase in discovering fraudulent checks.
E.       Res Ipsa Loquitur
1.        P may present something as evidence from which the jury can infer that D was unreasonable. It doesn’t normally occur in the absense of negligence.
2.        3 effects, depending on jurisdiction.
a.        If requirements are met, the court must find for P.
b.        D has the burden of proving that he’s not negligent.
c.        Creates a prima facie case of negligence and the jury has to decide.
3.        Byrne v. Boadle (1863) – P knocked down by a falling barrel of flour from D’s shop window. There mere fact of the accident was enough evidence to show negligence.
4.        Kambat v. St. Francis Hospital (1997) – After an operation, a patient had a medical pad inside her body, which led to infection and death. Could the patient’s family use res ipsa loquitur to sue the hospital?
a.        Holding: Expert testimony says the P couldn’t have swallowed it, and D was in control of the pad at the time, so it can be inferred that D negligently left the pad in P.
b.        P can use res ipsa loquitur when it satisfies 3 conditions:
i.         The event was of a kind that ordinarily doesn’t occur in the absence of someone’s negligence.
It must be caused by an agency of instrumentality within the