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

Torts II


Spring 2014

Duty, Breach, Causation, Harm:

1. Duty: Obligation to which the law will give recognition and effect to conform to a particular standard of conduct toward another

a. Affirmative Duty

b. Emotional Distress

c. Owners/Possessors of Real Estate

2. Breach:

a. Was Reasonable Standard (Professional?)

b. B PL. neg per se, etc.

c. Neg Per Se

d. Res Ipsa

3. Causation:

a. Cause in fact (more likely than not)

i. Lost Chance

ii. Market Share Liability

b. Proximate Cause (Was this harm that occurred one of the risks that made the conduct unreasonable? Foreseeable Plaintiff?)

i. Intervening Cause—Intervening act is one which ordinary human experience is reasonably to be anticipated or one that the Defendant has reason to anticipate under the circumstances

4. Defenses:

a. Defendant has the burden of proof


1. Affirmative Duties v. Failure to Act

a. Rule: There is no duty to help others. An actor whose conduct has not created a risk to another has no duty of reasonable care to another unless a court determines an affirmative duty

i. Even if the defendant created the risk by innocent conduct, has no duty of reasonable care

ii. Policy

1. Libertarian argument—Government cant compel people to give up liberty and there needs to be limits on governments compelling people to do something (Epstein)

a. Liberty is value

2. Imposing a duty to rescue imposes a diminishing of the moral worth of rescue—When you do something with no obligation, it has greater moral worth (may dilute moral value of intervention)

3. Slippery slope—Hard to define limits

iii. Where duty is found—MUST ESTABLISH NEGLIGENCE—only show unreasonable conduct

1. Define breach AND

2. Would reasonable care have prevented harm?

a. Cause in fact

b. Proximate cause

iv. If there is NO duty, do not have to show breach (reasonableness of conduct) or causation

1. Ex: Hegel—University has no obligation to prevent harms to the daughter. Ruled no duty so did not deal with the reasonableness of their conduct or cost to prevent

v. Tort Law does not impose a general obligation on professionals to render service (even when there may be a moral obligation)

1. Ex: Hurley—physician owes no obligation/ duty to provide services. Doctor can evaluate symptoms to determine whether to accept patient (special relationship creates a duty)

a. Exception—Common carriers, innkeepers and public utilities are generally liable for failure to render service

vi. Exception: If the defendant is responsible for the injury through negligence, he is then under a duty to help

1. Also, if defendant innocently creates a dangerous condition, he is under a duty to take reasonable precautions against injury

b. Nonfeasance Actions:

i. Arise when P contends that D should have intervened or prevented harm by controlling 3rd party or taken measures to protect P from injury

ii. Nonfeasance—the defendant has at least made the situation no worse, and has merely failed to benefit him by interfering in his affairs

1. For nonfeasance, it is necessary to find some definite relation between the parties, of such a character that social policy justifies the imposition of a duty to act

2. EX: A truck driver might be under no duty to signal a car that they are able to pass, but if he does signal, he will be liable if he fails to exercise proper care and injury results/ A tenant who is under no obligation to make upgrades or renovations, assumes a duty to his tenant and to those entering to use proper care

iii. Duty to Rescue: Generally law does not impose duty to act for benefit of other

1. Exceptions

2. Special Relationship: An actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship (either between the person in need of rescue or a third party that may be affected by person in a special relationship)

a. Ex: invitee, employer (limited to course of the employment AND employee unable to look out for himself), innkeeper, common carrier, business that holds land open to public, school, landlord

b. Gives rise to duty ONLY if law says so

c. Relatinoships tend to be: (1)voluntary (2)Involve expectation of benefits (3)Reflect widely shared societal expectations

d. Duties are usually not reciprocal (employee to employer)

i. Maybe dictated by “principles of social conduct that are universally recognized”

e. Duty imposed applies to dangers that arise within the confines of the relationship and do not extend to other risks—Scope of the duty

f. Gives notice to class of defendants of who they have to rescue

3. Instrumentality: Relationship between the defendant and thing that has imperiled the plaintiff

a. L.S. Ayres: Had control of the escalator and there was a relationship of inviter/ invitee involved

i. If the kid was a trespasser, duty to rescue?

1. Old cases say no but might be different today

b. Satisfies the libertarian objections to duty in these cases because does not extend duty

c. Voluntary act of using instrument contributed to need for rescue

d. if A and B have a car wreck and B does not help out

i. Even though relationship is strangers there is a duty to rescue even if they are not negligent or unreasonable—only involvement matters

ii. “Hit and Run”—Neg Per Se/ As a matter of law

1. Civil Liability for failure to stop and aid a person injured even without the fault of the driver

4. Undertaking to Act: An actor who undertakes to render services to another and who knows or should know that the services will reduce the risk of physical harm to the other has a duty of reasonable care if: (1)increases the risk o

: why is it fair to make the individual pay to protect against the losses through 1st party insurance that are going to be caused by the defendant’s negligent conduct

3. Duty Arising from Pure Economic Loss

a. -> MAJORITY RULE: when commercial or economic harm stands alone, divorced from injury to person or property, courts have not imposed a general duty of reasonable care; they have instead imposed a duty of reasonable care in commercial harm cases mainly when the parties are in a special relationship and the defendant has implicitly undertaken such a duty (often accountants – negligent misrepresentation by accountants and lawyers and engineers – reasonable foresee would rely on their professional actions – people who rely will have a claim; no floodgates problem)

i. -Injury to proprietary interest to recover for economic loss; limit damage to person or property

ii. -This is true in contractual and non-contractual relationships

iii. -If the D negligently pollutes waters, commercial fishers have been allowed recovery for their purely economic losses (recovery not extended otherwise)

1. -When can person recover if only economic harm is loss – require physical damage to a proprietary interest>>commercial fishermen meet that test apparently

iv. -Similarly, a business may lose customers because traffic is reduced after the D’s negligence requires closure of a bridge but no claim for economic loss lies against the negligent D unless the business owner’s property right is invaded by denial of access to her land

v. -Under the same general principle, a contractor whose work is delayed because of the pollution is denied recovery for his purely economic loss

vi. -Favoring liability: the class of injured people would have to be “particularly foreseeable in terms of the type of persons or entities comprising the class, the certainty or predictability of their presence, the approximate numbers of those in the class, as well as the type of economic expectations disrupted”

vii. -> Policy favoring Majority Rule

1. This is a pragmatic restriction on the doctrine of foreseeability

a. Without this limitation foreseeability loses much of its ability to function as a rule of law

b. Where draw new line (don’t want ad-hoc basis) – no determinable measure of the limit of foreseeability would precede the decision on liability if ad-hoc