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University of Denver School of Law
Smith, Catherine E.

TORTS – Catherine Smith, DU Law, Tort Law and Alternatives 9th, Fall 2013
Study: Damages and defenses – 1st!!!
Then Causation
Then Breach
Then Duty
What is a tort: When is a person liable* to another person; (civilly)(emotionally) (economically).There are three theories of recovery in tort law: (1) negligence; (2)intentional/Reckless; and (3) strict liability. Tort law shifts the allocation of loss from the victim to the actor. Tort law is about 4 things: (1) Compensation; (2) deterrence; (3) fairness; and (4) punishment. Most tort cases that lawyers deal with—and the ones that are easier to win and/or get awarded the most money are negligence tort cases, which is what we covered most in this class.
Liablility* – when a person is legally responsible for the harm they cause, they are at fault and therefore liable. Joint liability is an obligation for which more than one person is responsible. Joint and several liability refers to the status of those who are responsible together as one unit as well as individually for their conduct. The person who has been harmed can institute a lawsuit and recover from any or all of the wrongdoers—but cannot receive double compensation, for instance, the full amount of recovery from each of two wrongdoers.
Negligence is: Someone (a reasonable person) had a reasonable amount of foreknowledge that harm may occur to someone due to their actions, or lack of action, and failed to respond accordingly. (Reasonable person acting without reasonable care) This failure to respond was the cause, either directly or indirectly of harm to a person in some way. ? This is objective!  (Reasonableness is objective or reasonable person standard). The prima facie case for negligence is Duty Breach Causation and Damages.
Intent: desire to cause consequences and/or substantially certain the consequences will occur; acts anyway.(subjective test) a person who has more than a reasonable amount of knowledge that harm may occur to someone else because of the person's actions or lack thereof and deliberately failed to respond in a way that would have prevented harm to someone.
Reckless: knew or should have known of of high degree of risk.
Strict Liability: Liability without fault! I think that strict liability is a matter of risk. There are risks in partaking in certain actions that someone may encounter harm in some way due to the possibilities of occurrences that could come out of certain acts.
In torts, particularly exams, you look for 2 things all the time: Reasonableness and/or Foreseeability
For Prof. Smith, always look for arguments of Public Policy.
Reasonable Person Standard: Hammontree pg 3
Person in society who exercises average care, skill, and judgment in conduct and who serves as a comparative standard for determining liability.
The decision whether an accused is guilty of a given offense might involve the application of an objective test in which the conduct of the accused is compared to that of a reasonable person under similar circumstances. In most cases, persons with greater than average skills, or with special duties to society, are held to a higher standard of care.
Foreseeability – Was the result foreseeable? If you can't predict it, you can't prevent it. The facility to perceive, know in advance, or reasonably anticipate that damage or injury will probably ensue from acts or omissions. In the law of Negligence, the foreseeability aspect of proximate cause—the event which is the primary cause of the injury—is established by proof that the actor, as a person of ordinary intelligence and circumspection, should reasonably have foreseen that his or her negligent act would imperil others, whether by the event that transpired or some similar occurrence, and regardless of what the actor surmised would happen in regard to the actual event or the manner of causation of injuries.
Public Policy –Moral and/or economic issues that protect or make liable a large population, municipality or the government; or prevent massive waves of law suits. It’s a public policy question “The protective privilege ends where the public peril begins.
Negligence Conduct which falls below the standard established by law for the protection of others against unreasonable risk. The prima facie case for negligence is Duty Breach Causation and Damages.
Burden of Persuasion -π must convince jury that it is more probable than not (%51) that π’s injuries are due to ∆’s negligence, π must prove by a preponderance of the evidence each element of negligence, ∆ then must prove each defense – Functions of judge and jury -Judge decides law -Judge can decide facts if no reasonable jury could disagree on the facts-Jury decides facts.
Burden of Proof- enough evidence (a tiny trace or spark of a specified quality or feeling. “a scintilla of doubt”) relating to an assertion of fact. 
I.                  Duty
a.                   Duty is a question of law, defined as the legally recognized relationship between P and D that creates a legal obligation to conform one’s conduct to a particular standard of care.
                                                                    i.                        Legal obligation stems from : misfeasance and nonfeasance
                                                                  ii.                        The context (facts of the case) will determine the SOC – hypos:
1.                  i.e. Player tells coach that his chest hurts and he has trouble breathing; coach tells player to keep playing and the player has heart attack
a.                  DUTY: special relationship (coach/player)
b.                  SOC: reasonable coach under the circumstances
2.                  i.e. Player injured on the b-ball court
a.                  Duty: land owner occupier
                                                                                                                                            i.                        Invitee (higher standard)
                                                                                                                                          ii.                        Special relationship (school/student)
b.                  SOC: inspect and make safe, or in special relationship: duty to act
3.                  Don’t forget to remember who else and what else you have – strict liability, negligence: issue spotting.
b.                  Sources of Duty
                                                                    i.                        Must find a source of duty before you can determine if the person was unreasonable.
                                                                  ii.                        Nonfeasance is failure to act to prevent injury
1.                  Must find a legal obligation to act – not necessarily liable
2.                  General Rule – there is no affirmative duty to others
a.                   to protect individual autonomy
b.                  Actual notice is not enough to give rise to a duty (foreseeability)
3.                  Foreseeability – reprise on duty – generally questions of law are decided by the judge and shouldn’t be based on the facts of the case, they should be based on policy considerations, statutory duties, common law, foreseeability!
a.                   No duty even if foreseeable unless you have a legally established source of duty.
4.                  (list of sources of duty à) legal obligations to act:
a.                   Special relationship (pg 132 Harper/Boat diver case)
                                                                                                                                            i.                        Common carrier with its passengers
                                                                                                                                          ii.                        Innkeeper with guests
                                                                                                                                        iii.                        Business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises
                                                                                                                                         iv.                        Employer with employees
                                                                                                                                           v.                        School with students
                                                                                                                                         vi.                        Landlord with tenants
                                                                                                                                       vii.                        Parent with child
                                                                                                                                    viii.                        Custodian with those in custody
                                                                                                                                         ix.                        Jailor-prisoner
b.                  Creation of a peril (misfeasance)
                                                                                                                                            i.                        Causing a car accident (collapses duty and breach)
c.                   Creation of an unreasonable risk:
                                                                                                                                            i.                        Extends duty to physical harm only (not economic)
                                                                                                                                          ii.                        Randi W. v. Muroc – School placed letters of recommendation in the file of a teacher accused of molesting students to transfer him to a different school.
                                                                                                                                        iii.                        RST 2nd § 311:
1.                  (1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results (a) to the other, or (b) to such third persons as the actor should reasonably expect to be put in peril by the action taken.  (2) Such negligence may consist of failure to exercise reasonable care (a) in ascertaining the accuracy of the information, or (b) in the manner in which it is communicated.
d.                  Statutes

                                                iv.                        The ability for the average person to operate the vehicle safely (car v. two ton truck).
b.                  The factors taken together create a “foreseeable risk of harm” which creates a duty in the vehicle owner to “refrain from exposing third persons to the risk.”
c.                   Landowner/occupier
                                                                                                                                            i.                        Depending on who enters the land***
1.                  Invitee (higher soc) enter with permission
a.                   Either do confer economic benefit from landowner
b.                  OR land is open to public at large
c.                   Public (museum) and Business (hair salon)
                                                                                                                                                                                                                    i.                        SOC: Inspect and make safe
Ø   Any concealed hazardous condition
Ø   The possessor could have discovered though a reasonable inspection of property. (know about or could have discovered/should have known about.
2.                  Licensee (lower soc) (have permission
a.                   SOC: Takes the land as the homeowner takes it (L – you like them)
b.                  Do not confer economic benefit on landowner – i.e. social guest, door-to-door sales person, meter reader
c.                   Must protect licensee from any condition that is
                                                                                                                                                                                                                    i.                        Concealed from licensee
                                                                                                                                                                                                                  ii.                        Known in advance by landowner
                                                                                                                                                                                                                iii.                        No obligation to inspect or make safe but must warn of dangers
3.                  Trespassing children
a.                   Attractive nuisance (like pools)
4.                  Trespasser
a.                   undiscovered
                                                                                                                                                                                                                    i.                        No duty unless frequent or discovered
b.                  Discovered
                                                                                                                                                                                                                    i.                        Avoid multiple or wonton injury (elements)
Ø If condition is artificial (man made
Ø Highly dangerous
Ø Concealed – not open/obvious
Ø Landowner knew of danger
c.                   Limitations/Expansions on duty
                                                                    i.                        Limitations
1.                  Limitations on duty as a public policy
a.                   Strauss v. Bealle realty
2.                  Social host liability
a.                   No duty
3.                  Intra family immunity
a.                   Parental Immunity
                                                                                                                                            i.                        Some movement towards a “reasonable parent” but most jurisdictions still recognize parental immunity
1.                  Policy for parental immunity: afraid of fraud; keeping family tranquility; deplete family resources; would interfere w/ parental guidance; all parents are different for different cultures.
2.                  Policy against:  Consistent w/ the other reasonable standard, distinction is easier instead of duty to world; other parents could understand based on facts