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

I.                    Procedures Raising Legal Questions
a.       Motion to Dismiss or Demurrer
                                                              i.      Complaint does not show a good legal claim
                                                            ii.      Info is only available from complaint; no discovery yet
                                                          iii.      Ct views the facts most favorable to non-moving party (views things in complaint as fact)
                                                          iv.      Lowest expense if case is decided at this point
b.      Motion for Summary Judgment
                                                              i.      After hear π’s argument; claim not enough to prove case
                                                            ii.      A showing of new facts in addition to those stated in the complaint, and perhaps in contradiction to them
                                                          iii.      A showing that there is no real dispute about these new facts
                                                          iv.      A showing than an these new facts, the law compels judgment for the moving party
                                                            v.      Less cost effective than motion to dismiss b/c discovery has occurred
                                                          vi.      Post affidavits and discovery but before trial
                                                        vii.      Look at evidence in light most favorable to non-moving party; if there is a dispute of fact then side with non-moving party and deny SJ and send case to fact finder (judge/jury)
c.       Objections and Offers of Evidence
d.      Motion for Directed Verdict –
                                                              i.      Move for this at the close of presenting evidence (π or ∆)
                                                            ii.      Asserting that the proof offered by the π is legally insufficient to warrant a jury’s verdict for the π
                                                          iii.      After evidence is produced in full at the trial
                                                          iv.      Judge considers in light most favorable to the non-moving party
e.       Proposed jury instructions and objections to them
f.       Motion N.O.V. – non obstante veredicto – notwithstanding the verdict
                                                              i.      Asserts that the evidence is not legally sufficient to justify a jury verdict for the π.
                                                            ii.      May be more efficient, verdict is rendered, so appellate court can easily look over without remanding for retrial.
                                                          iii.      Verdict may be ridiculous
g.       Motion for New Trial
                                                              i.      Error at trial may allow retrial
                                                            ii.      Verdict against weight of evidence, or damages award is ridiculously high
h.      General policy concerns
                                                              i.      Judicial activism
1.      Sometimes the court does have to legislate
2.      As long as there is no pre-existing law, there is no problem with this
                                                            ii.      Application of a decision
1.      Prospective
a.       Applies the rule to cases arising out of future action
b.      Prevents problems with a flood of suits
c.       Past insurance calculations didn’t take the new law into account
2.      Limited prospective application
a.       Applies the rule to cases arising out of future action and the π in the case at hand
3.      Retroactive
a.       Applies the rule to previous actions as well
b.      Provides compensation for everyone that was harmed
c.        
Exam Notes – In SL go through each rationale for a problem – Loss spreading, cost internalization, and deterrence. PV – three calculations. The last one (assuming the inflation rate is the same of the discount rate) is always very different from the first two. Note we’ll be given statutes on the exam.
Comparative Fault – People only liable for what they owe. Here (GA) we have comparative fault AND pro rata. The percentages do not affect contribution.
Implied Warranty – Still actionable. Should proceed under both.
State of the Art – Can examine the alternative design and the actual design. In some states it is an affirmative defense. In most it is only a factor. Usually raised by ∆’s saying their design is state of the art.
Nonfeasance – Three exceptions. Can argue outside the rule.
Tort Claims Acts – Cannot sue individual officials. Can only sue the state or the agency for which they work. Individuals have an immunity.
Wrongful Conception – Both parents have injuries. Both can sue.
Implied Assumption of Risk – Policies that affect the express agreement also should bear on the implied assumption of risk cases.
Judgment – Must have a judgment, not a verdict, in order to have a legally enforceable right to collect.
Covenant not to sue v. Release – Can get a covenant not to sue one, then release the other tortfeasors. Otherwise, the release of one works to release all. Can do both, but the order is important.
Direct Victim Test – Now pretty much useless. Huggins scaled it back to near meaninglessness.
Contribution – Can’t go after the settling tortfeasor for contribution. Pro Tanto v. % v. J+S.
Statutory Construction – Comparative fault statute – can you use comparative fault against intentional tortfeasors?
Affirmative Duty – We don’t expect the relationship to be reciprocal. We don’t expect the customer to act in the same way we expect the store to act. There are wildly different expectations.
Government Immunities – Generally anything only a government can do (police) are governmental. Airports? Parks? Etc… Can theoretically done by either. Maintaining roads considered proprietary. Regulating traffic considered governmental.
 
 
 
 
 
 
 
Duty of Care
 
Affirmative Duties
Duty – legally enforceable obligation to use reasonable care
Affirmative Duty – injury caused by Ds failure to prevent harm, not the direct cause
? of law
Judgment/policy call
Failure to Act
General Rule: There is no duty to rescue
University had no duty to keep student out of trouble Hegel v. Lamgsam
No duty for Dr. to pro

e care to prevent the harm
Comparative interests and the relationship between the parties
Considerations of public policy, societal interest, and fairness
A duty is imposed here even thought the D doesn’t bear responsibility for the danger. He didn’t case the harm, have the instrumentality under his control, undertake to help, or deter any rescuers. Instead the duty seems to rest primarily on the fact that he could help. This is a much greater intrusion on liberty interests
Defendant stands in special relationship to the 3rd party
Tarasoff v. Regents of University of CA
Parents of deceased daughter sued psychiatrist for failing to warn their daughter that his patient had told him he was going to kill her.
Special relationship between Dr. and patient creates a duty
Court held Dr. did owe a duty to Ps daughter
When the victim is not directly identified authorities are split as to if a duty is owed
3 Criticisms of Tarasoff
Unfair to Ds because the predictions about dangerousness are notoriously inaccurate
It is going to compromise confidentiality
The whole thing is going to be counter-productive
Defendant stands in special relationship to the plaintiff
Saldano v. O’Daniels – Bartender at inn across the street from Saloon who would not let a good Samaritan use the phone to call the police b/c a man at Happy Jack’s had been threatened. Man was subsequently shot & killed.
Factors
Harm foreseeable/imminent
Certainty of injury undisputed
Close cxn btwn employees conduct and injury
Burden minimal compared to risk
Callous indifference/disregard for human life
Promote policy of preventing future injury
No special relationship, no source of danger (instrumentality), no undertaking, but the court still finds a duty
Broadest intrusion on no duty rule we have seen
E.   Proposed GA Statute    
i. Duty to Act Statute
ii. If you know crime is being committed, you have a duty to summon law
     enforcement
ii. Exceptions: put you in danger; interfere with your duties to others,
someone else is helping; or the crime has already been reported
Pure Economic Loss
Pure economic loss – arises when a person suffers pecuniary loss not consequent upon loss to his person or property
Cases fall into 1 of 2 categories:
Negligent misrepresentation causing economic loss
Mainly auditor or accountant liability
Negligent acts causing economic loss
State of Louisiana ex. Rel. Guste v. M/V Testbank – Massive PCP spill as a result of Ds boats crashing. Numerous lawsuits were filed as a result