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University of Connecticut School of Law
Pandya, Sachin C.

I. What Is a Tort
– A ‘wrong’ or a ‘trespass’/ unintentional acts
– To act in a manner that is wrongful toward and injurious to another person
– Tort refers to the collection of recognized legal claims that enable a person to obtain redress from another on the ground that he/she suffered injury by virtue of having been wronged by another
– Tort Law describes the legal duties extending from one person to another
o Tort law is about compensation of the injured party, not about punishing the wrongdoer (criminal law)
§ With the exception of punitive damages (rare)
– Walter v. Wal-Mart Stores, Inc
– Patient received incorrect prescription for a drug stronger than the one intended and suffers sever side affects, needing to be hospitalized
– Wal-mart is sued via Respondeat Superior
o “let the master answer”
o Vicarious liability of an employer; employee caused this injury while operating within the scope of employment
§ “within the scope of employment
· 1.) Employee’s conduct must be of the general kind that the employee is hired to perform
· 2.) Conduct must occur substantially within the hours and ordinary special boundaries of employment
· 3.) Conduct must be motivated at least in part by the purpose of serving the employer’s interest
o employer v. employee:
§ deeper pockets, large company less sympathetic then a lifetime pharmacist, community-member
– P must prove: pharmacist failed to fulfill his employed duties
o All parts of Prima Facie case: Duty, breach, Causation, Injury
– D must prove comparative responsibility/negligence of P
o Mitigating damages: every person has a duty and responsibility to exercise reasonable care to reduce the amount of their injury and to take reasonable steps to effect a cure/reduce severity of injury
– Purposes of tort law:
o To provide just compensation (for the victim)
§ Collateral Source Rule: juries are NOT allowed to take into consideration monies that come from collateral sources, such as insurance
o Redress physical injuries primarily, although economic and emotional/psychological injuries are also applicable
§ Courts typically want to see impact (risk of life or limb) in order to award mental distress claims
o Applies each state’s own statutes/common law
o Fairness and deterrence
I. Negligence: A Brief Overview
– Negligence has two meanings:
o Describe Conduct – you have conduct without being liable for a tort
§ Ex. Talking on a cell phone, driving through a red light
§ This is negligent conduct (but without injury, causation and duty, that is all it is…)
o Prima Facie negligence – Cause for a tort action itself
a. Elements of the Prima Facie Case
– Duty: D owed a certain amount of care and responsibility to P
– Breach: D breached the duty, assuming there was a duty
– Causation: D’s breach caused the injury
– Injury: some type of physical (economic and emotional) loss has stemmed from the breach of duty
b. The injury Element
– P ordinarily bears the burden of proving that a tort has occurred
– P must prove she has suffered an adverse affect from the D’s conduct
– What constitutes an injury?
o Physical harms (bodily harms and destruction of tangible possessions)
o Loss of wealth
o Emotional distress
c. Focusing on Physical Harms
– If a P claims economic or psychological harm, courts will often look for physical injury or manifestations for support
– Emotional distress can be easily faked
o Ex. Headaches, weight loss, sleep deprivation, etc
II. The Duty Element and the General Duty of Reasonable Care
a. Easy Cases: The Unqualified Duty to Conduct oneself with Reasonable Care for the Person and Property of Others
– P must establish that the D owed her an obligation to take reasonable care not to cause the type of injury she has suffered (negative duty)
– It’s easy to prove duty when a D carelessly pursued an affirmative line of conduct that caused the P’s physical harms
o Duty owed to victim is unqualified/general – b/c most can assume a duty
§ Ex. Drivers of motor vehicles of a duty of reasonable care to pedestrians
o P has burden of establishing an existence of duty on D to use reasonable care or to conform to some other legally defined standard of conduct
§ More difficult cases arise when D’s carelessness consists of a failure to act for the benefit of P, or that the D causes some other kind of injury besides physical harm
– Privity: when you enter into a contract, you are only held responsible to the party you are contracted to; contract or connection or mutual intent between parties
o At common law, duty ran with privity
o To bring suit against a manufacturer, you needed a contract with that manufacturer (otherwise he was assumed to have no duty to you)
b. Evolution of Duty Rules
– Winterbottom v. Wright: the privity rule (for D)
o Facts: P was injured when wheel on coach he was driving collapsed; sued claiming that Wright had a duty to ensure that the coaches he supplied to the post office were sound
o RULE: P who is injured by carelessness on the part of a product manufacturer may NOT recover in tort absent CONTRACTUAL PRIVITY between the P and the manufacturer
§ “Too remote in time and space from the careless acts [originally] committed by Wright”
– Thomas v. Winchester: Imminently Dangerous Products (For P)
o Facts: Company mislabeled a bottle of medicine, sold it to a store, from which the P bought the bottle; P died (bottle contained poison)
o RULE: If the intermediary body in privity with the manufacturer will not be affected by the negligence of the manufacturer, then privity extends to the consumer; Privity is NOT APPLICABLE when your product is inherently dangerous
§ D’s duty to unknown consumer arose out of the nature of his business and the danger to others incident to its mismanagement
§ Death/great bodily harm was the natural/almost inevitable consequence of the sale of poison with a mislabel
· Adds an exception to the ‘privity only’ of Winterbottom
– MacPherson v. Buick: Killed Privity rule (for P)
o Facts: D sold car to dealer, who sold to

or implied
a. Property owner has ONLY a duty to warn of hidden dangers (including natural) that he/she may reasonably know and that the licensee may NOT know, but other than that the licensee must take the premises as found
3.) Trespasser – someone who doesn’t have permission to be on the land
a. only a duty to refrain from intentional injury or by wanton or reckless conduct
b. No duty (in negligence) except…
i. Attractive nuisances – duty to guard property that is attractive to children, may entice them to enter property, and may be dangerous to children
1. many states are abolishing distinction between invitee and licensee in favor of general duty of reasonable care owed to all persons based on Rowland v. Christian (R used C’s bathroom and suffered a deep laceration when turning faucet)
– Pure Economic Loss
– General RULE: for intangible economic loss that doesn’t flow from harm to person or property, there is NO duty to take reasonable care to avoid causing such losses
o BUT, economic loss can be recovered in negligence cases where it is parasitic upon physical injury
o WHY?
§ Fear of floodgates of litigation
§ Courts want to come up with a targeted solution
§ Leave it to legislature to make distinctions
§ Tort law should act as a deterrent
§ Beneficial to litigants to have well defined bright-line rules
§ Difficult to calculate damages
– State of Louisiana v. M/V Testbank (D, only fisherman)
o Facts: Two ships collided and the Testbank lost/damaged containers containing PCP, resulting in 12 ton spill that created a white haze and forced the Coast Guard to close the outlet navigation on the MI river, suspending all fishing, shrimping, and related activity in the outlet for 400 sp. Miles of surrounding marsh and waterways
o Arguments:
§ Based on Robins Dry Dock, which denied a P recovery for economic loss if that loss resulted from physical damage to property in which he had no propriety interest
§ P: Should be money for economic damages since the loss wasn’t their fault and requirement of physical injury denies recovery for foreseeable injury caused by negligent acts
§ D: Says they shouldn’t have to pay for any claims for economic loss unaccompanied by physical damage to property
§ RULE: Need to limit foreseeability so in order for a P to recover, they must have suffered physical damage; rejects a general duty of care; no duty to take reasonable care to avoid causing pure economic harm to another