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Torts II
University of Georgia School of Law
Eaton, Thomas A.

Eaton Spring 2013 Torts Outline
Negligence
Duty, Breach, Causing, Harm
 
AFFRIMATIVE DUTIES
·         D failed to prevent harm that originated from other source
·         When does D owe P a legal obligation?
·         Don’t have to access reasonableness if you have no obligation to be reasonable
 
Legal obligations
·         Master and servant
·         Carrier and passenger
·         Employer and employee
·         Custodian
·         Considered different from other relationships bc these are voluntary rel
o   Party on whom duty placed expecting some benefit
Are these duties reciprocal?
·         Store clerk in need of rescue
o   Does the customer have to help?
·         In a car accident w/ someone else, obligation to use reasonable care, even if it wasn’t your fault
 
Affirmative Duties
·         Common law- no person has obligation to act on behalf of one another
·         If gov can take your money b/c you failed to protect someone else, then personal freedom is at risk
·         Preserve moral worth of magnificent acts
·         Invitors have legal obligation to rescue invitees
·         Instrumentality
o   Take responsibility for your stuff- what law says
·         Exceptions to No Duty
o   Undertaking and reliance
o   Undertaking to rescue by itself- start helping then I rely
§  Has to be detrimental reliance
§  Something about undertaking increase risk of danger
 
How do Good Samitritan statutes fit in?
·         Law is saying that you won’t incur civil liability if you attempt to help and something goes wrong
·         Scope of protection
o   Do we want to protect people who are grossly negligent?
o   Should good Samaritan statutes apply to people who already had pre-existing duty to help
 
·         Court recognizes a wife’s duty to protect children from sexual abuse of husband
·         Interest in protecting the children overcomes other priorities, such as the impact of having a state imposed intrusion on marriage
·         Court limits duty to people who have specialized knowledge
o   Court emphasizes wife’s specialized knowledge and her duty to act on it
·         If there’s a duty, then we have to think about breach and causation
·         To say there’s a duty is not to say there’s liability
·         Duty is not to prevent harm, but to use reasonable care
·         Cause and fact- for each one of the acts that might be reasonable, have to independently assess whether the failure to do these things more likely than not would have prevented the harm
 
Tarasoff p. 447
·         Court says there’s a duty- duty is to use reasonable care. Family says reasonable care requires warning
·         Decide whether Dr. Moore used reasonable care according to what a person in his same field of work would reasonably do
·         Family has to present expert testimony to show that Dr. didn’t conform to customary and accepted practices of the profession
·         Causation issues w/ expert
o   More likely than not that if Dr. had warned Tatiana of Poddar’s threats she would be alive today
o   Difficulties in establishing that
§  Dealing w/ inherent uncertainty of hypo situations
§  Dealing w/ uncertainty of human behavior
§  May be hard to stop Poddar- may be on a mission
·         What’s the downside from Dr’s liability standpoint?
o   Danger of false positives- if we start reporting, or initiating confinements might be bad
 
 
Soldano v. O’Daniels (E Reserve)
·         Patron of saloon goes into D’s bar to try to use phone bc he believed someone at bar across street was going to be killed. Bartender didn’t let him use it. Guy gets killed.
·         Was P endangered by an instrumentality under the control of D? No
·         Was there a special relationship bw D and the person who was threatening? No
·         Court using a statute to guide its view of policy
·         Is there a close connection b/w the conduct and the injury Yes
·         The guy who wants to use the phone is the good Samaritan, not the bar tender
·         Broadest inroad into no duty rule
·         Allowing him to use phone wouldn’t inconvenience him much
 
No duty to act on behalf of another
Exceptions – RTH and Tarasoff
·         Special relationships
·         Relationship bw D and instrumentality that is source of danger
·         Undertaking and detrimental reliance and worsening of position
·         Both cases involve a unique ability to predict danger and to do something that will reduce risk
·         Both decisions give priority to society interest in preventing harm, less consideration to cost of recognizing the duty
·         If duty- still have to deal w/ breach and causation
o   What would a reasonable person do in each situation?
o   Identify act or omission and analyze whether act or omission is unreasonable
o   Then go to cause and effect
·         Dealing w/ human behavior- hard to predict how humans would react if given info
 
PURE ECONOMIC LOSS
 
State of Louisiana ex

s despite the absence of any physical impact upon P at the time of the mental shock
o   Thin skull rule- take P as you find them
o   If foreseeable that this would cause distress to a normal person than the hypersensitivity becomes irrelevant under the thin skull rule
·         Estelle’s physical consequences were: sudden loss of weight, inability to perform ordinary household duties, extreme nervousness and irritability
o   Tim- extremely vague evidence, accident made him nervous
·         Court says this evidence is enough to get the case to the jury
 
Thing v. La Chusa p. 471
·         Mother did not witness car accident involving daughter, but wants to recover for ED she suffered when she arrived on the accident scene
·         Dillon v. Legg- court should take into acct these factors
o   Whether P was located near the scene of the accident as contrasted w/ one who was a distance away from it
o   Whether the shock resulted from a direct emotional impact upon P from the sensory and contemporaneous observance of the accident ( as opposed to learning of the accident from others after its occurrence)
o   Whether P and the victim were closely related
·         Zone of Danger Test
o   Have to prove that you were at risk of getting hit
o   Test criticized for being arbitrary- drawing line at risk of getting hit
·         Holding- P can’t recover
P may recover damages for ED caused by observing the negligently inflicted injury of a 3rd person if said P is
·         Closely related to the injury victim
·         Is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim
·         And as a result suffers serious emotional distress- a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances
·         If stranger witnesses an accident and suffers ED they can’t recover as a matter of law
·         Cohabitant not considered worthy of protection