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Torts II
University of Dayton School of Law
Laufer-Ukeles, Pamela

Torts II Outline

1. Reasonable Person Standard (Duty of Care) (b<pl)
1) Common carriers (higher standard)
A. Bus, Airplanes, R.R. have a higher degree of care because passengers should feel safe while traveling. (Doser)
2) Landowner Duty of Care
A. Trespasser (lower standard)
i. Owe a duty to warn of hidden dangers to avoid intentional, willful, or wanton injury
ii. Have no legal right to be on another’s land and enter land without express or implied consent of the landowner
B. Invitee (same standard as reasonable person)
i. Owe a duty of reasonable care
ii. Business Invitee: person on premises at least in part for pecuniary benefit of the landowner
iii. Public Invitee: person on premises held open to the general public
C. Licensee (lower standard)
i. Owe duty to avoid intentional, willful, or wanton injury if you know or have a reason to know such a situation exists
ii. Someone on land with permission, but limited license to be on the premises (Social guest)
D. Landowner has a right to enjoy their property the way they want to
i. Have to be reasonable in taking care of your land
E. Duty to Person’s Outside the Land
i. Natural condition of the land creates risk to person outside the land may have a duty of ordinary care
a. Know of condition – must act reasonably to prevent harm and deal with it
b. Don’t know but should have known – have a reasonably duty of care
c. Don’t know and should not have known – no duty
F. Duty Owed to Children is Greater than that of an Adult (Bennett)
i. Landowner not automatically liable for injury to child trespasser
ii. Landowner must know or have reason to know child will trespass
3) Firefighter Rule (Majority Position)
A. Common law doctrine that precludes a firefighter and other public employees (police officers) from recovering against a Defendant whose negligence caused the firefighter to be hurt on the job
i. Allow recovery on negligence claims if it was willful or wanton
ii. No firefighter rule – become a licensee
iii. Trained in ways to confront danger – assume the risk and enter at unforeseeable times in non-public areas
2. Medical Malpractice
1) Professional Standard of Care: Expert Standard and in Realm of Experts (raised or redefined standard for doctors)
A. Plaintiff Must Prove:
i. Show standard of care through expert testimony
ii. Show based on the standard the Defendant was negligent
iii. Show Defendant want or skill caused the injury
B. Strict Liability Rule (Vergara)
i. Defendant’s conduct measured against doctors in the same community
C. Modified Locality Rule(Vergara)
i. Standard based on the skill exercised by doctors at the time of the operation from similar localities
ii. Abandoned Rule: Standard based on what the whole profession skill exercised at similar or same circumstances based on doctors in the same class
2) Other Professional and Standard
A. Nurse: held to nurse practice standard
B. Hospital: standard based on Nat’l standard based through Joint Commission on Accreditation of Hospital
C. Pharmacists: no duty to tell patient of excessive dose, liable if takes to give warning and fails to
D. Other Occupations: Reasonable person standard
E. Lawyers: Reasonable person standard based on circumstance, may need expert
F. Educators: Reasonable person standard
3) Good Samaritan Laws In General (Velazquez)
A. Who: any individual (applies to ppl who only had no pre-existing duty)
B. What: emergency care
C. Why: encourage people to help
D. Where: non-ideal circumstances
E. When: avoid the use of negligent care
4) Res Ipsa Loquitur
A. Duty, Breach, Harm, Cause-in-fact, Proximat

3) Duty to Protect from 3rd Persons Dangerous Person (Relationship and Foreseeable)
A. Majority Position
i. Balancing Test (B<PL)
a. Need to balance foreseeability of harm against the burden of imposing a duty to protect against the criminal acts of 3rd persons (Posecai)
B. Need foreseeability (b<pl) and Need a relationship = DUTY
4) Duty to Protect from 3rd Persons Not Victim of Dangerous Person
A. Duty that may arise from action of a criminal actor (Relationship, Foreseeablity, and Control = DUTY must have all 3)
i. Control – have specific knowledge or reason to know = duty to at least warn
1) Elements of IIED
A. Defendant acted intentionally or recklessly
B. Defendant’s conduct was extreme and outrageous
i. Ct. consider context of the relationship btw. Parties
ii. Has to be above and beyond (SHOCK THE CONSICOUS)
C. Defendant caused Plaintiff emotional distress
i. Subjectively felt and objectively reasonable
D. Resulting emotional distress was Severe
i. Don’t need proved with physical symptoms
ii. Emotional distress was severe and debilitating
iii. Show objectively stressful to that person or Defendant knew Plaintiff’s sensibility
A. Dog is bothering you while you are walking to town, had gun on you. You shoot the dog and A sees you (random guy). A sues for IIED because huge dog lover
i. I didn’t intend to inflict stress on A
ii. Transfer intent doesn’t work for IIED