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University of Denver School of Law
Best, Arthur

Torts Best Spring 2012

Duty – D owed P a duty to act in a certain way

1) POLICY –> duty helps w/deterrence goal of tort law…if a person knows they have a duty, they can modify their behavior appropriately

2) Standards of care – Tell us how careful people are supposed to be to protect other people from types of injuries

a) **limits the jury’s discretion, but jury still has considerable leeway in deciding what conduct is reasonable under the circumstances of the care

b) Reasonable person standard (RPS)

i) POLICY –> Simplifies life – allows us to assume that other people will be “reasonably” careful not to injure us, so we don’t have to anticipate their particular personalities & capabilities; & if they don’t act in a reasonable way, & they injure us, we can be compensated

ii) OBJECTIVE test

(1) Measure what D did against what we would’ve expected from our hypothetical RP

(2) Vaughan v. Menlove – hayrick badly built, fire, destroyed P’s cottages

(a) POLICY –>

(i) Use RPS b/c it would be impossible to judge cases subjectively, if it were based on the “best judgment of the person”; It would extensively prolong litigation

(ii) RPS allows creation of a rule; allows for same standard across the board; allows jury analysis

(iii) Must apply the objective reasonable person standard – we have to create incentive for people to act/behave/drive better than their own standard if it’s below the reasonable standard

(3) Parrot v. Wells Fargo (nitro-glycerine case) – shipment of nitro-glycerin; leak, examination w/chisel, crate exploded, killing all present; destroyed property & D’s buildings

(a) D was not aware of the contents, & couldn’t be liable for damages. Used reasonable care.

(b) POLICY –> It would be an impractical choice of law to require that every crate be examined…costly, inefficient (Shipping co’s still have the freedom to do this, but law shouldn’t mandate it)

iii) Learned Hand Test – balances costs & benefits

(1) B < PL (where B = burden of prevention, P = probability of loss, L = magnitude of loss)

(2) If the burden is less, the actor is negl.

(3) POLICY –> sometimes preferred over “vague” RPS b/c it protects people’s choices

(a) It tells us that a reasonable person should spend the money to implement the precautions if it’s less than the cost of the injuries it will prevent

(4) McCarty v. Pheasant Run – P assaulted in hotel by intruder who entered thru unlocked sliding door

(a) Unreasonable conduct is the failure to take precautions that would generate greater benefits in avoiding accidents than the precautions would cost

iv) Versions of RPS

(1) Especially dangerous instrumentalities

(a) Stewart v. Motts – P helped D repair car fuel tank; car backfired, explosion, P burned

(i) Care required is always reasonable care

(ii) POLICY –>

1. PROPORTIONALITY – Standard never varies, but care which is reasonable to require of the actor varies w/ danger involved (greater the danger, greater the care)

2. Allows RPS to produce satisfactory results even where great danger involved

(2) Emergencies

(a) Person confronted w/sudden emergency that deprives him of time to contemplate the best reaction cannot be held to same standard of care as 1 who has time to deliberate.

(b) Proof of emergency in a negl. case could:

(i) Absolve actor of liability

(ii) Entitle actor to be judged w/a standard of care less demanding than a typical standard

(iii) Be treated as a factor among many that a jury considers in apply the RPS

(c) POLICY –>

(i) Tort law likes sudden emergency doctrine b/c it’s like a detailed explanation of how the RPS might work in specific circumstances

(ii) Courts don’t like the sudden emergency jury instruction b/c:

1. It’s up to the jury to interpret the facts & decide if it was an emergency or not

2. Jury might focus more on it as an emergency rather than combo of all circumstances/facts

3. Even if jury were to decide it’s not an emergency, it could still decide the behavior was reasonable in light of the circumstances (i.e. no need for an explicit instruction anyway)

(d) Myhaver v Knutson – driver swerved into other lane to avoid head on collision but hit another car

(i) Emergency doctrine should be used only when:

1. Actor wasn’t negl. prior to the emergency

2. Emergency came about suddenly & w/o warning

3. Reaction was spontaneous, w/o time to reflect

(3) Actor’s skill/knowledge

(a) If the person has knowledge/skill greater than the knowledge/skill that a typical person has, the jury should take that into consideration

(b) POLICY –> people have right to expect minimum standard, but if you have the skill, use it

(c) Cervelli v Graves – experienced professional truck driver collides w/P’s car on icy highway

(i) Jury could’ve concluded Graves was more skillful than others b/c of his experience as a driver, so they should be allowed to consider this as 1 of the circumstances in reaching their decision

(ii) RST – standard becomes that of a reasonable man w/such superior attributes

(4) Minors

(a) Standard = person of like age, intelligence, & experience under like circumstances; 2 part test:

(i) Determine capabilities of this child to perceive & avoid the risk (subjective)

(ii) Would a reasonable child of like capacity have acted similarly? (objective)

(b) Robinson v Lindsay – 1 child hit another child, both were driving snowmobiles

(i) POLICY –>

1. Courts generally use a flexible (more generous) standard of care when determining if a child’s actions were negl.

2. Children are encouraged to pursue childhood activities w/o the same burden of adults

3. Harms from children’s activity are generally small

4. Child RPS developed b/c contributory negl. was causing too many child Ps to lose cases

(ii) Exception – children engaged in inherently dangerous/adult activity

1. Use RPS, not kid standard

2. Other ex: Hunting w/rifle, making fire for outdoor cooking (golf & skiing get child standard)

(c) Peterson v. Taylor – Child spilled gasoline on himself while he was playing w/matches; received serious burns; at neighbor’s house, but they weren’t home

(i) Child contributorily negl.; expert testified that child his age & intelligence would know better

(5) Physical disabilities

(a) Standard = how a reasonable person W/THAT PHYSICAL DISABILITY would act

(b) POLICY –> imposes lighter burden on disabled person who uses sufficient precautions to prevent injury resulting from the disability

(c) Poyner v. Loftus – P blind, fell off platform b/c elevated walkway usually had barrier of plants; bush missing that day, so he fell

(i) P had not exercised due care – not equal to the degree of care required of him.

(ii) His failure to use a cane or a seeing-eye dog was his contributory negl.

(6) Mental disabilities

(a) Standard = how a reasonable person W/O THAT MENTAL DISABILITY would act

(b) POLICY –> Why law holds mentally disabled people to the same standard of care as a “normal” person (but not physically disabled persons):

(i) An innocent party still deserves compensation

(ii) Provides incentive to parties responsible to prevent harm & provide restraint

(iii) Removes inducement to fake a disability (for tortfeasors to claim mental disability)

(iv) Avoids administrative problems in courts & juries to assess disability

(v) Forces person to pay for damage they cause if they “are to live in the free world”

(c) Intoxication – actions of intoxicated person when he is injured evaluated according to RPS

(i) POLICY –> Intoxication = voluntary, so held to the standard of a person who is not intoxicated

(d) Creasy v. Rusk – P worked at center, D had Alzheimer’s & was combative; kicked nurse.

(i) D had no duty to P b/c P was a caregiver – public policy reasons supporting this

c) Recklessness (additional concept of unintentional conduct in tort law)

i) Many courts use it to cover all unintentional torts other than negl. (incl. wanton misconduct & gross negl.)

ii) Damages – sometimes punitive damages available if recklessness but not if negl.

iii) Sometimes common law or statutes hold liability for recklessness but not for mere negl.

iv) Sandler v. Commonwealth – P fell on a bikeway tunnel, state had not repaired the hole

(1) Degree of risk of injury in this case did not meet the standard that has been established for recklessness – doesn’t present a high enough level of dangerousness to warrant recklessness

(2) P chose suing for recklessness b/c recreational use statute denied P right to recover for negl.

3) Identifying whether a duty exists: modern courts use a number of techniques to identify duties

a) Foreseeability

i) Foreseeable PLAINTIFF

(1) Palsgraf v. Long Island Railway Co. – RR station; employee helps a passenger on the train, doesn’t know there are fireworks in bag; causes explosion, scales knocked d

ic who enter in response to his invite

(iv) Rescuer DOES provide care = if person under no duty to rescue, rescues a person in need, he is subject to liability for bodily harm caused by:

1. Failure to exercise reasonable care to secure the person’s safety

2. Discontinuing care, if doing so leaves the person in a worse condition than when the rescuer started

(b) POLICY à

(i) Individual freedom of choice is a paramount good – autonomy triumphs over obligations to others w/whom there is no special relationship

(ii) The requirement of self-sacrifice would have no logical stopping point – a victim who was not rescued could sue a huge # of people who failed to assist

(3) Good Samaritan law = anyone who in good faith renders emergency aid at scene of an emergency to the victim shall not be liable for any civil damages as a result of acts/omissions by such person in rendering the emergency care

(a) Exception: Pre-existing duty = no immunity from liability if the duty allegedly breached by the volunteer was a duty that existed prior to the voluntary activity

(b) POLICY à

(i) Purpose = designed to encourage individuals to offer assistance to others in emergencies

(ii) May strike a balance b/t protecting Ds & assuring injured people that efforts to help them will be done w/care

ii) Obligations to rescuers

(1) Rescue doctrine

(a) Duty sometimes exists to a rescuer by the one whose conduct placed the rescuer in peril in the first place

(b) Elements:

(i) D was negligent to the person rescued & such negligence caused the peril/appearance of peril to the person rescued

(ii) Peril/appearance of peril was imminent

(iii) Reasonably prudent person would have concluded such peril/appearance of peril existed

(iv) Rescuer acted w/reasonable care in effectuating the rescue

(c) McCoy v. American Suzuki Motor Corp – P witnessed a car accident & pulled over to help setup flares on the road. After accident was cleared, he was hit by hit-and-run vehicle while walking back to his own vehicle. Court is deciding whether the car manufacturer of the vehicle in the original accident owes P a duty b/c its manufacturing negligence caused the initial accident.

(d) POLICY à

(i) It informs a tortfeasor it is foreseeable a rescuer will come to the aid of the person imperiled by the tortfeasor’s actions, & therefore, the tortfeasor owes the rescuer a duty similar to the duty he owes the person he imperils

(ii) It negates the presumption that the rescuer assumed the risk of injury when he knowingly undertook the dangerous rescue, so long as he does not act rashly or recklessly

(iii) Societal value judgment = rescuers should not be barred from bringing suit for knowingly placing themselves in danger to undertake a rescue

(2) “Firefighter’s rule”

(a) Firefighter Rule = firefighters & police officers who are injured may not recover based on the negligent conduct that required their presence

(b) POLICY à

(i) Officer is employed by the public to respond to such conditions & receives compensation/benefits for the risks inherent in such responses. Requiring people to pay for injuries resulting from such responses imposes double payment obligation.

(ii) Negligence is at the root of many calls for public safety officers, so allowing recovery would compound litigation

(c) Moody v. Delta Western – D’s employee left fuel truck unlocked w/keys in ignition, truck was stolen by drunk guy, drunk guy drove truck recklessly around town, P (police officer) responded & was hit by the truck. Court is deciding whether the Firefighter’s Rule applies in that state (Alaska)