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Torts II
University of Dayton School of Law
Gerla, Harry S.

Continuation of Negligence (specifically proximate cause) see Torts I
I.                   Proximate Cause:
Definition: Policy limitation, where the line is drawn. 
d.      Social Hosts: Kelly v. Gwinnell: Negligent Act: Serving drinks when the hosts knew individual was driving home. NJ court said harm done by DUI was greater than positives and responsibility placed on hosts. 
                                                                                                                          i.      Most courts say No. Superceding cause. Split
1.      Drinking and driving is a crime so automatically a crime.
2.      Driving drunk is on risk side of utility (for serving alcohol) so not superceding.
                                                                                                                        ii.      However, serving alcohol to minors has no social value/utility because of statutory regulation, so automatically liable.
e.       Rescue Doctrine: danger invites rescue, so rescue is always seen as foreseeable and not superceding.
                                                                                                                          i.      Only the most reckless and foolhardy rescues are unforeseeable. (Going into burning building to save hat)
                                                                                                                        ii.      Courts do not want to discourage voluntary rescuers and can’t live with them being held liable.
f.       Suicide: SPLIT when is suicide not a superceding cause, and when does it not cut off Defendant’s liability?
                                                                                                                          i.      The P was in agony and acting under an irresistible impulse. Because person is not acting under free will not blame worthy.
                                                                                                                        ii.      Fuller v. Preis: Dr. in accident suffers brain damage and frequent seizures. Has three seizures in a day and has look on face, kills himself. Sued driver. Dr.’s suicide was not superceding—D liable.
                                                                                                                      iii.      Because person is not acting under their free will, not morally blameworthy and the suicide occurs in the immediate aftermath of the def.’s negligent act.
II.                No Duty Rules:
a.       No duty for Failure to Act: Most common and incorporates many other sub-rules.
                                                              i.      Generally: Everyone has a duty to act in a manner that will not harm the interests of others in their persons or property. Duty rules are exceptions to this rule.
1.      Availability of no duty rule does not mean D is liable. Just means that P has to prove all elements of the case.
                                                            ii.      Hypo: See toddler in fountain, drowns. Just watch do nothing to help. Acted unreasonably, but no duty to act so not liable.
                                                          iii.      Only need no duty rules when someone acts unreasonably!! If a person acts reasonably then no need for no duty rule because person wouldn’t be liable anyways.
                                                          iv.      Reasons for the No Duty Rules:
1.      Moral Reasons: We value individual autonomy and the right to be left alone. Do NOT want to force others to do things (i.e. European laws forcing individuals to rescue others) Individuals prerogative.
2.      Practical Reasons: Cannot point to who is liable. What if a group of people watches the baby drown, where is the line drawn?
3.      Exception: If in a situation we can pin down who is liable and individual autonomy is not as crucial—then exception to the no duty rule.
b.      Exceptions to the no duty rule: (keep these in context)
                                                              i.      Violation of a Statute: No necessarily falling below standard of care just lost the use of the no duty shield.
1.      If the statute requires an individual to act, then their no duty shield is not available.
2.      The does not necessarily result in liability. All elements must still be proven.
3.      This is NOT negligence per se. Do NOT have to meet requirements.
4.      There are times when individual autonomy must give way. (I.e. when the legislature passes a statute)
                                                            ii.      Change the negligent omission into a negligent act OR failure to act
1.      Action is NOT subject to no duty rule—if ambiguous usually is action.
2.      I.e. Train stopped on tracks that fire truck needs to cross to get to fire. Train Co. claimed the omission was failure to act, but did not have to.
3.      Today courts would find this to be acts, blocking the fire truck, therefore, lose use of the no duty rule.
                                                          iii.      C

ort. (One may be more profitable than another) Def. promises to perform.
                                                        vii.      Relationship between the person who causes the harm and the plaintiff. (People are NOT considered instrumentality)
1.      Courts examine usually on a case-by-case basis—parents lose no duty immunity if they knew of child’s propensity to cause harm (Linder v. Bidner).
2.      This does not take shield down automatically. Only if Def. knew or had reason to know that the def. was going to do harmful acts, etc.
a.       Knows: Factual knowledge, subjective standard (not liable)
b.      Reason to Know: What def. actually knows combined with what he should have found out based on knowledge they already should have had. (Not liable or liable—examine circumstances)
c.       Should have Known: Reasonable person would have known by doing a reasonable inquiry. (Liable)
                                                                                                                                      i.      Parenthood is optional-Made a choice (lose autonomy) when decided to have children.
                                                                                                                                    ii.      Do not have to supervise spouse—those who can prevent child abuse MUST—Megan’s Law.
                                                      viii.      Tarasoff v. Regents of U of Cal. Special duty between doctor and person who caused harm to P. Problem is that psychiatrist cannot predict with accuracy when a person will become violent.    Problem was not not holding dangerous person in custody, but failed to warn others of the D’s threats. Court found the Dr. had only to use “a reasonable degree of skill” in predicting the violent nature of people.
1.      Do risk/utility for Dr. Problems:
a.       Chill communications between therapist and patient.
b.      Hard to predict accuracy who is dangerous—no better than 50/50 possibility of accuracy.
c.       If everyone is warned, paranoia.