Torts Outline | ID 21461 | University of Michigan School of Law

Torts Outline

Professor Hershovitz

Winter 2012

I. Part I: Introduction

A) Walter v. Walmart Stores, Inc. – eighty year old cancer patient gets prescription for chemo drug. She’s supposed to get lukeran (generic = chlorambucil) but instead the pharmacist at walmart (Lovin) gives her alkeran (generic – melphalen).

A) Parts of negligence:

(a) Duty – pharmacists have duty of ordinary care. For pharmacists this means highest for of produence (see page 8, section b)

(b) Breach- Lovin failed to compare bottle and prescription and council walkter about the medication when he gave it to here

(i) Walmart has a 4 step process and lovin failed to do 2 of them.

(i) Walmart oncologist agrees that melphalin led to her illness

(d) Harm – she suffered illness and injuries.

B) Judge granted directed verdict and only sent issue of damages to jury.

C) Why sue walmart through vicarious liability and not lovin too?

(a) Walmart has more money

(b) Lovin may seem more sympathetic and remourceful (puts a fact to the company)

D) Contributory negligence vs. failure to mitigate. In first, Ps actions a cause of the injury, in second, P could have reduced the harm by taking certain steps which she failed to take.

II. Part II: Negligence

A) Overview

A) Elements

(a) Duty, breach, cause, harm

(b) if P proves all 4, extent of harm still open (prima facie case).

B) Duty and Injury: Duty to Whom? For What?

A) Easy Cases Summarized, pp. 50-55.

(a) One way to show that someone has a duty is to look to other laws

(b) In circumstances where it’s foreseeable that you might hurt someone, you have a duty of reasonable care with resepect to his safety.

B) Duty Rules

(a) Duty is a question for the judge

(b) Winterbottom v. Wright, pp. 55-57

(i) Driver injured when a wheel on carriage collapsed

(ii) Carriage maker has no duty to driver, only to originaly buyer

(i) Manufacturer makes poison and medicine, mislabels poison as medicine

(ii) Thomas buys it from retail drugstore (who bought it fomr a middle man who bought it from manufacturer).

(iii) Court found poison was imminently dangerous, harm was a natural consequence of sale of poson with false label

(d) MacPherson v. Buick Motor Company, pp. 59-66

(i) Dft made car, sold to retailer, which sold to P. A wheel collapsed and P was injured.

(ii) D claims owns no duty to P, just to retailer (Cites Winterbottom)

(iii) P cites Thomas, Devlin

(iv) In Devlin, manufacturer had duty to other persons who will foreseeably use product if there is a danger of injury to user. Duty to use ordinary skill and care.

(v) Cardozo says duty not limited to who you have contract with – law ill supply a duty (he says Thomas decision need not have restricted meaning).

(vi) Cardozo doesn’t care if Devlin was extension of Thomas. He approves.

(i) Opinion artfully crafted – starts would with NY cases in favor, then makes it look like winterbottom rule is already out of favor

(vii) This case doesn’t just get rid of privity rule- it gives conditions which extend duty to other users besides buyer

(i) Knowledge that product will be used by someone other than buyer

(ii) Probably danger

(iii) Buyers/users are not likely to inspect it

(e) Mussivand v. David, pp. 67-73

(i) Mussivand sues David for infecting his wife with STD which subsequently infected Mussivand

(ii) D argues that he owed no duty to P

(iii) Common law duty of care is degree of care whih ordinarily reasonable and prudent person exercise.

(iv) Court considters history and precedent, conecepts of morals and justice, convenience or rule, and social judgment of where loss should fall

(v) Ultimately they say it ocmesdown to foreseeability of injury to P

(vi) Court decides that it was foreseeable, and duty existed

C) Qualified duties of Care

(a) Misfeasance vs. nonfeasance

(i) Misfeasance is doing something and doing it poorly/carelessly/negligently, etc

(ii) Nonfeasance is not doing something that you should have done

(iii) General rule is that there is no affirmative duty to assist anyone

(iv) Exceptions:

(i) D is causally involved in the circumstances causing the harm

1. If D negligently caused, he MUST take steps to help

2. Some jdxs have rule that even if involved and not the cause, still have duty to assist

a. Maybe to guide actions before incidencts to encourage prevention of accidents

b. Maybe because onlookers will assume person involved will be helping and then will be less likely to help

c. When this is invoked, P can sue D for amount that harm was increased as a result of lack of assistance.

(ii) Once rescue is started, you have duty to do it reasonably and not abandon unreasonably

1. Reasoning- may have stopped others from helping by beginning rescue. If you stop or do it terribly, you may have deprived injured person from getting help

2. Good Samaritan statutes protect off-duty professionals from liability suits when tey undertake rescue

(iii) Special relationships that create duty

1. Carrier/passenger, shopkeeper/visitor, etc

2. Farwell v. Keeton says companions on social ventures have duty

(b) Duty to Rescue and Protect

(i) Osterland v. Hill, pp. 76-77

(i) Hill rents canoe out to Osterland, who is drunk. Osterland tips canoe and holds on to it for a long time, calling for help, before drowning

(ii) Court finds hill wasn’t violating duty by renting it to osterland because osterland was not helpless

(iii) Court says he didn’t rent bad canoe because it was in the same condition as any canoe

(iv) Failure to help him (as he was holding on) was immaterial because there is no egal duty to take affirmative steps to help someone, notwithstanding the amount of danger or how easy it would be to help.

(ii) Baker v. Fenneman & Brown Properties, LLC, pp. 77-88

(i) Man collapses in taco bell, has convulsions. TB claims cashier asked him if he needed help and he said no. he claims no one helped. He then stoo up and fell again, hitting his face on the counter (knocking out teeth, bleeding, injuring vertebra). No one from TB helps at that point and he gets his own ride to hospital.

(ii) TB points to Ayres, but court says Ayres didn’t intend to limit application of seciont 314 to situations where P was invitee AND instrumentality caused injury

1. That would cause employees to have to determine cause of injury before deciding to help or not

2. Instrumentality is a different cause for claim than bus. Invitee cause

(iii) TB says if it had this duty it would have to have medical staff on hand, but court says that’s not true, and TB need only do what a reasonable person would do (call 911, look for doctor, do cpr, etc)

(i) Set of rules that apply to injuries cause by features of the property, NOT ativities happening on the property

(i) Feature of property means a permanent fixture to the land or building, or condition of the land

(ii) Duty depends on status of person injured (invitee, licensee, trespasser)

(i) Invitee – invited onto premises, there for mutually beneficial circumstances (often business purposes)

1. Duty is to make the premises reasonably safe

a. Look into possible dangers or things that can injure (investigate/reasonably inspect)

b. After finding them, make them safe OR warn of dangers that have not been made safe

(ii) Licensee – someone there with permission (often social guests)

1. Duty is to warn or make safe the dangers known about or should know about (without taking additional inspection)

(iii) Trespasser – has no permission or invitation to be there

1. Duty is to refrain from

Sometimes other forms of counselors

(ii) Graff v. Beard – moos gets drunk at Graff and Housman’s party, drives home and crashes into beard. Question for SC is whether there’s a dury of social hosts serving alcohol to 3rd parties injured by drunk driving of visitors/guests

(i) SC says no duty

(ii) Arguments for no duty:

1. Moos in better position to know when he’s drunk

2. Too difficult for social hosts to keep track of how much every guest is drinking

3. Question as to if host can control guest’s behavior

a. How much would they have to do to discharge duty?

4. Legislative intent – when passing dram shop law, legislature initially added social host liability but took it off before it could pass

a. Indicates legislature doesn’t want to extend duty to social hosts

b. Counter argument – court doesn’t have to consider uncodified congressional intent for common law decisions

i. Also it doesn’t even necessarily indicate that intent

ii. Could be lots of reasons for it not passing

(iii) Arguments in favor of duty:

1. Hosts in good position to see who is druink (better than a drunk person who is too drunk to know how much is too much).

2. The duty would be limited to reasonable actions to prevent drunk driving like cut off alcohol, call a cab, etc

III. Breach of Duty

A) The Meaning of Negligence

A) Martin v. Evans, 142-147

(a) Evans backs truch into Martin, pinning him. Two different versions of story. Jury says Evans is not negligent. Original judge overruled verdict, saying no reasonable jury could have found him not negligent

(b) SC reinstates jury verdict, saying there were redibility dterminations that could have allowed jury to find not negligent

B) Pingaro v. Rossi, pp. 147-148

(a) strict liability dog statute- owner liabile no matter how reaosnsble he acted because standard is 1) owns dog; 2) dog bites plaintiff; 3) plaintiff was in public or lawfully on private property

(b) many states have rules that liability doesn’t apply without notice of danger (bit someone before)

(c) good comparative fault argument here (she had warnings from job and from owner) so under a negligent standard he probably would have won, but it was SL

C) Jones v. Port Authority, 148-150

(a) Guy getting on bus, bus stops suddenly and he falls out and gets hurt

(b) Mistake at trial was jury instruction

(i) Jury was told PAT had reasonable care standard given that they hold themselves out as safe carrier

(i) Have to have highest degree of care, most diligence

(d) This should have been in instructions

(e) Common carrers have special standard of care because transport. Can be dangerous, want to encourage people to use it and assure that it’s safe

D) Campbell v. Kovich, 150-151

(a) Campbell hi in face by an object she claims came from Ashton mowing the lawn

(b) Landowners are defs too

(i) Maybe liability caused by condition of land or maybe just because they’re employers of Ashton (Respondent superior)