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University of Denver School of Law
Smith, Catherine E.

Torts (Laws 4610) Professor Smith Fall 2009

A. Tort
a. When a person is civilly responsible to another person for the harm caused
b. 3 Theories of recovery
i. Negligence-unreasonable conduct, no intention to bring about certain result
ii. Intent-desire to cause consequences, or substantially certain they will occur
iii. Strict Liability-liability without fault, didn’t intend to cause consequences, behaved reasonably
c. Four underlying policy concerns for tort law
i. Deterrence
ii. Compensation
iii. Punishment
iv. Fairness
B. Negligence
a. Conduct which falls below the standard established by law for the protection of others against unreasonable risk
b. Four elements
i. Duty-obligation to protect another against unreasonable risk of injury
ii. Breach-failure to perform obligation
iii. Causation-close causal connection between action and injury
1. Proximate Cause
2. Actual Cause
iv. Damages-actual losses suffered
C. Procedure in Jury Trials
a. Burden of Pleading
i. π must present case
ii. ∆ must respond and answer
b. Burden of Proof
i. π bears the burden
ii. 2 elements
1. Burden of Production-π must come forward with some evidence to establish that ∆ was negligent (establishing duty, breach, causation, damages against the defendant)
a. Burden shifts back and forth between ∆ and π during trial
2. 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
a. Case is not established where it is equally probable that negligence was that of party other than defendant
c. Functions of judge and jury
i. Judge decides law
1. Judge can decide facts if no reasonable jury could disagree on the facts
ii. Jury decides facts
1. Did ∆ breach his duty to π in a way that proximately caused π’s injuries?
a. An obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct towards another
b. A question of law for the judge
c. Misfeasance
i. Active misconduct
1. Always creates a duty
2. ∆ has created a new risk of harm to the π that didn’t exist before
d. Nonfeasance
i. Omission, passive inaction, a mere failure to act unaccompanied by malice or other aggravating elements
1. No obligation to protect people from harm
2. ∆ made situation no worse than it already was
e. Every negligence claim is either misfeasance or nonfeasance
f. Ways to create a duty:
g. No Creation of an Unreasonable Risk
i. Everybody has a duty not to create an unreasonable risk
ii. Doesn’t matter if injury/risk created negligently or non-negligently
iii. Misfeasance
iv. If danger or injury to π is due to ∆’s own conduct or an instrument under ∆’s control, ∆ has duty of assistance even if ∆ acted without fault
h. Statute
i. Can require one to act
i. Affirmative Duty to Act:
i. Special Relationships
1. Examples:
2. Common carrier with its passengers
3. Innkeeper with guests
4. Business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises
5. Employer with employees
6. School with students
7. Landlord with tenants
8. Parent with child
9. Custodian with those in custody
a. If the custodian is required by law to take custody or voluntarily takes custody and if the custodian has a superior ability to protect the other or if the person is deprived of normal opportunities of self protection
ii. Assump

uences of that act but also for all of the emotional or mental suffering which flows naturally from it.
2. Without Physical Impact
a. Where there is no physical impact or direct physical injury to π, recovery is limited depending on whether or not there are physical symptoms of the emotional distress
b. No Impact and No Physical Symptoms
i. Nearly all jurisdictions deny recovery
a. Intentional infliction of emotional harm
b. Negligent handling of a corpse
c. Negligent transmission of death of loved one
ii. Increased Risk/At Risk Plaintiff
1. If π, by virtue of his exposure to certain substances, suffers an increased likelihood of a particular disease, may generally not recover for the pure emotional harm of being at risk
iii. Fear for Others’ Safety
1. Where π suffers purely emotional distress due solely to fear or grief about the danger or harm to a third person
a. Two jurisdictions:
b. Zone of Danger-Majority Jurisdiction
i. Must be within the immediate risk of negligent conduct
ii. Must have a reasonable fear for your own safety
iii. Must suffer severe emotional distress with physical manifestation
c. Bystander/Dillion-PorteeFactors—Minority Jurisdiction
i. Observance of incident (sensory perception or heard about it)
ii. Closely related to third party
iii. Serious injury or death to third party
iv. Suffer severe emotional distress (physical manifestation not required)