Logue
Torts – Fall 2012
Goldberg, 3rd Edition
Duty
1. Reasonable Foreseeability: Duty is owed when it is reasonably foreseeable that a lack of care could result in injury to another
2. Rule of Privity: No longer exists (MacPherson v. Buick)
Affirmative Duties of Care
No Duty to Rescue
§ Exceptions:
o Business Owners to Customers: owe duty to aid business invitees while relationship b/t them exists (on or around premises, even in parking lot); Even applies w/out neg by the business (Baker v. Fenneman – taco bell)
o D puts P in peril: D knows or should know he has put P in peril
o Beginning to Rescue: Once rescue is voluntarily undertaken, rescuer has duty to perform the rescue with reasonable care (3rd Restatement §324)
Special Relationships
§ 2nd Restatement
o a) Common Carriers; Innkeeper to guests; b) Possessor of land to public who enter via invitation; c) One who takes custody of another to deprive them of normal opportunities of protection; d) Schools to minor students; e) Employer-employee; f) Hospital-patient; g) Prison-prisoner; h) Companions in social venture
§ 3rd Restatement
o a) Common carriers to passenger; b) innkeeper to guests; c) business or possessor of land that holds premises open to the public to those lawfully on premises; d) employer-employee; e) school-students; f) landlord-tenants; g) custodian with those in custody
§ Other rules in some states… Hospital/patient; prison/prisoner; friendship
§ Co-Adventurer: owes duty to make reas. effort to obtain medical care (Farwell v. Keaton)
§ Good Samaritan Immunities (some states): Immunize person who undertakes to rescue another from liability for negligence; usually not applicable to ‘off-duty professionals’
Pure Economic Loss
General No Duty to Prevent Pure Economic Loss
· Interruption of Commerce: Can’t recover for pure econ loss for interruption of commerce UNLESS… (Aikens v. Debow)
o Physical harm to P’s person, property; OR
o The damage results from a breach of contract b/t alleged tortfeaser and that damage was foreseeable
· Exceptions to No Duty: accountants (reas. care in conducting audits); lawyers (duty to not misrepresent or make obvious errors); oil companies (special laws holding liable for oil spills in navigable waters); special relationships (contract, nuisance); special interest (ex. fisherman who’s water is affected by oil)
Special Relationship
§ Doctors + Physicians: a) duty to report patients w/ contagious disease to public health officials; b) duty to protect immediate fam and sig. others from catching contagious disease; c) duty to warn patients w/ disorders that can endanger patient and cause them to endanger others (ex. epilepsy + driving)
§ Duty to Warn: If therapist knows or should know patient presents serious danger of violence to another, he has duty to use reas. care to protect intended victim (Tarasoff).
a) Warn victim or those who can reasonably notify him or notify police
b) This rule doesn’t apply to clergy, friends, parents, or employers
§ Residential Appt Owners: duty to take steps to protect tenants from foreseeable crim acts by 3rd parties in common areas (Kline v. 1500 Mass Ave)
§ Commercial Property/Business Owner to Protect Patrons: Duty to take reas steps to protect patrons from foreseeable crim acts (considers prior similar incidents, the neighborhood, location of the land) (Ann M v. Pacific Plaza Shopping Center)
§ Bar Owner and Social Host:
o Bar Owners: No liable for drunk patron’s acts unless 1) they have knowledge the person was visibly intoxicated and 2) the intoxication was the prox cause of death, injury, or damage
o Social Hosts: No duty to monitor adult guests drinking; no liable for dmgs caused by them after UNLESS they’re a minor and the host served them alcohol
§ Enabling Torts/Negligent Entrustment doctrine – duty not to pave the way for truly reckless individual to impose serious risk of injury on the public
o Ex. Negligently leaving keys in car, car gets stolen and thief crashes/injures someone, liable for dmgs by leaving keys in the car; Ex. grandma liable for damages caused by recklessly driving g-son if she gives him car
Cheapest Cost Avoider: Judge Calabresi
§ Tort law should aspire to assign liability to the person or entity who can identify and adopt the most efficient precaution more readily than anyone else.
§ Economists are concerned with ensuring that dollars spent on preventing accidents achieve the lowest total cost of injury and injury prevention.
§ That said, judges never have enough info to make full economic assessment.
§ Many cases involve moral duty, not economic duty.
Premises Liability
3-Tier Approach
Invitee
§ Definition: enters premises in answer to express/implied invitation of owner/occupant “for mutual advantage” (usually businesses)
§ Duty Owed:
1. Keep premises reas safe and to warn of hidden dangers you know or would know of through reasonable inspection
2. Duty to inspect premises for unknown dangers
§ Exceptions: If invitee goes out of bounds of the invitation, he becomes a trespasser there (Leffler v. Sharp)
Licensee
§ Definition: Enters property for own convenience/pleasure/benefit pursuant to license or implied permission of owner. Not there for business purposes; includes social guests + passengers in cars
§ Duty Owed:
1. Refrain from willfully or wantonly injuring
2. Duty to warn of known dangers
3. No duty to inspect for unknown dangers
Trespasser
§ Definition: enters property for his own convenience/pleasure/benefit w/out invitation or permission, implied or express
§ Duty Owed:
1. Not willfully or wantonly injure trespassers
2. Some say failure of due care once trespasser is discovered is considered “wanton”
3. Duty to warn of artificial dangers in cases of constant trespass on limited portions of land
§ Exceptions
1. Constant Trespass: Reasonable care to make premises of constant trespass safe, or to warn of dangers
2. Discovered Trespasser: If trespasser is discovered, duty to exercise reasonable care for their safety
3. Attractive Nuisance: Conditions that would pique child’s curiosity but contain danger not apparent to such a child (pool, pond, etc.)
a) Possessor liable for harms caused if: a) he knows/has reason to know kids likely to trespass; b) condition involves serious risk to kids; c) kids don’t appreciate the risk b/c of youth; d) cost of eliminating condition is slight compared to risk to kids; e) owner doesn’t take due care to eliminate danger
b) Due care exception: doesn’t apply to kids who can appreciate the risk (Holland v. Baltimore R.R. – 9 y/o should know not to jump on trains; Merril v. Central Power – 9 y/o should know not to climb electric power station
Non-3 Tier States
· Test: whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others
· Duty owed to warn everyone of hidden dangers (or repair them) on property that pose an unreasonable risk (Rowland v. Christian – broken water faucet case)
3rd Restatement
§ General Duty to take reas care to make premises safe for all persons
§ Flagrant criminal trespasser exception: One only owes duty to refrain from intentionally and willfully inflicting physical harm
Recreational Use Statutes
§ Possessor owes no duty to keep premises safe for permitted (not invited) recreational use by others UNLESS user is paying customer or landowner expressly invited (ex. if you’ve got a pond on your land that you permit people to skate on, no duty to k
ainst the particular hazard from which the harm results
Examples of NPS: Dalal v. City of NY – Not wearing req. glasses while driving; Bayne v. Todd: Loading dock missing req. rail = NPS
Res Ipsa Loquitur
Definition: applies if an accident would not occur without negligence
Switches burden of proof from D to P to prove they weren’t negligent
Elements: 1) event must be of a kind that ordinarily doesn’t occur in absence of negligence; 2) must have been in exclusive control of the D; 3) must not have been due to contribution on the part of P (Kambat v. St Francis: surgery pad left inside patient; res ipsa)
Sharing Liability: D can split liability among multiple D’s if all had control and a single wrongdoer is unidentifiable (surgery team)
Determining Reasonableness: Hand/Posner/Reid
B > PL – Hand Formula
B = Burden of adequate precaution ($$$)
P = Probability of the Accident
L = Expected loss from injury
(PL) = cost of the reduction of the risk
· If B < PL and you fail to take precaution => unreasonable
· If B > PL and you fail to take precaution => may be reasonable (not completely determined)
Hypo: $5 (B) care would reduce risk by $20
Potential Loss
Probability of Loss
Expected Loss (based on prob)
No Precaution
$10,000
0.006
$60
This means $20 savings from using caution (PL); if you didn’t spend the $5 (B) you would have acted negligently
Precaution
$10,000
0.004
$40
US v. Carroll Towing:
§ Bargee left boat; 2 other D’s said if bargee had been there the accident wouldn’t have occurred; Court applied BPL to find that cost of having bargee there to reduce risk was less than risk of harm (B < PL)
§ Admiralty Law Apportionment of Liability: on pro-rata basis: ex., if 3 parties sued for damages, and 1 party is released from suit, the remaining parties, instead of splitting 66%, now split 50/50
Rhode Island Hosp. Trust v. Zapata Corp
§ (Slightly diff than to BPL) If cost of preventing harm outweighs the gravity of the actual harm, no breach of duty
§ Bank practice of not checking all checks for forgery was reasonable b/c it saves banks TONS w/out increasing risk very much
BPL in the Real World (Virginia Law Review on The Invisible Hand Formula)
§ Modern neg. law endorses both the hand formula and the reas. person standard, but only instructs jury on the later
§ Hand formula and cost-benefit are clearly the dominant black-letter rule, yet juries are instructed to determine based on whether the actor behaved as ‘reasonably prudent person’
§ Argues that instructing jurors that due care is the care an avg. reas person takes of his or her own person and property would enhance the jury’s intuitive decision making
Criticisms of BPL: Lack of data to sufficiently prove; inconsistend w/ conception of responsibility; relies on level of info/law/high degree of rationality; sometimes doesn’t make sense (no one can avoid accidents sometimes); sometimes, minor/inadvertent breaches turn out to be treated like SL
Lord Reid Test: Same as Hand, but B must be distinctly disproportionate from PL
