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Torts
University of New Mexico School of Law
Suzuki, Carol M.

TORTS ATTACK
I. Potential Parties
II. Alleged Grounds
III. Duty
a. Rescuer
b. Landowner: trichotomy & general
c. Loss of Consortium
d. Bystander
e. Direct Victim
f. Professional Stratum
g. Mental Health Third Party
h. Citizen Duty to Protect from Crime
i. Police duty to protect from crime
j. *A Fair DEAL
IV. Breach
a. Standard: reasonable and foreseeable etc.
i. Emergency
ii. Physically Different
iii. Mental Disability
iv. Child
v. Professional standard
b. Determination of Breach:
i. Hands
ii. Custom
iii. Negligence Per Se
iv. Res Ipsa
V. Causation: but for and substantial factor
a. Untaken precautions
b. Joint and several
c. Daubert
VI. Scope of Liability
a. Unforseeable Plaintiff?
b. Unforseeable Injury
c. Intervening Cause
d. Exceptions: Medical Malpractice, Eggshell Plaintiff, Rescuer Rule
VII.Damages
VIII.Defenses and Immunities
a. Contributory Negligence
b. Comparative Fault: Pure and Modified
c. Assumption of Risk: Express and Implied
d. Statute of Limitations
e. Immunities: Spouse, Charity, Government
IX. Intentional: Assault, Battery, Intentional Infliction of Emotional Distress

POLICY CONSIDERATIONS

1. A Fair DEAL:
a. Allocation of Loss: spreading the loss of a trial over various parties
b. Fairness: compensation of victims in a fair manner
c. Deterrence: deterrence of unsafe activities
d. Economic Considerations: encouragement of economic growth
e. Administrative Concerns: future impacts on law and precedent
f. Legislative considerations: reasonableness/efficiency of implementation

NEGLIGENCE

Elements: duty, breach of duty, causation, scope of liability, damages, defenses
I. Contributory Negligence: affirmative defense; preponderance burden on D
a. Plaintiff breached duty owed to herself and breach of this duty contributed to her injury, which was foreseeable based upon unreasonable conduct
b. Liebeck v. McDonalds: Liebeck spills hot coffee on her self and sues McDonalds for negligence and recklessness; M was aware of the severity of burns resulting from contact with liquids at the temperature served and they failed to properly warn their customers;
i. R: Coffee is not a defective product because it is served by design. They intended it to be served at 180 degrees and it was. However, she spilled a drink and she knew would be hot and is therefore 20% responsible

DUTY

I. General Duty: legal responsibility to exercise reasonable care to avoid conduct that may cause foreseeable injury or harm to others, under the circumstances
a. Misfeasance: risks of harm arose out of one’s conduct; claims allowed
b. MacPherson v. Buick Motor Co.: P driving car and wooden wheel shatters. Buick made car, but not wheel, and sold it to the dealer, who sold it to P.
i. I: Does the defendant owe a duty of care and vigilance to any one but the immediate purchaser?
ii. H: Yes, if the nature of a thing is such that it is reasonably certain to place life and limb in peril if improperly constructed or designed, then it is a thing of danger. If added to this element of danger it is clear that said thing will be used by customers beyond the contractual purchaser, w/o further inspection, the manufacturer has a duty to make and inspect said thing carefully.
II. Limited Duty: No duty to act unless you created the harm (misfeasance) OR there is a special relationship
a. Nonfeasance: risk of harm did not arise out of one’s conduct; no claims
III. Limited Duty Exceptions: (when there IS a duty to act)
a. Creation of peril: results in duty to attempt to fix the situation or warn others
b. Reliance on gratuitous promise
c. Statutory Duty: lifeguard
d. Voluntary assumption of risk: once you being assisting or prevent others from assisting you must continue
e. Special relationship
f. Farwell v. Keaton: Farwell gets beat up. Siegrest puts ice on Farewell’s head, drive around in car; S leaves F in the car and goes home. F dies.
i. I: Did the defendant reasonably attempt to assist the victim? Was there a breach of duty for failing get further assistance?
ii. H: NO and YES. One has a duty to reasonably assist a person with whom they have engaged in a common venture, when said person is in obvious physical peril, and further endangerment is absent.
iii. D: circumstances did not impose a duty, and he did not voluntarily begin to assist the victim creating one
g. NOTES: We shouldn’t legislate moral duties because it undercuts causation.
i. Differing morals eliminate constitutional right to beliefs; difficulty in enforcement
ii. If the defendant had caused the injury, then there would have been a duty to rectify negligent behavior
IV. Limited Duty: (owners and occupiers of land)
a. Owner subject to liability if: injury arises from a defect in the building OR arises from activity/instrumentality
b. Attractive Nuisance: duty to reasonably protect children when an aspect of the property is particularly luring to children
i. Exception to land owner/trespasser duty due to immaturity
c. Status Trichotomy:
i. Invitee: one who enters another’s land w/the owner’s knowledge and for the mutual benefit of both
1. Duty: use reasonable care to protect invitee from conditions that create an unreasonable risk of harm which is known or could reasonably be discovered
ii. Licensee: enters and remains on land with owner’s consent
1. Duty: avoid injuring him willingly, wantonly, or through gross negligence, and to warn or make safe known dangerous conditions
iii. Trespasser: enters another’s property w/o any lawful authority, permission, or invitation
1. Duty: do not cause injury willingly, wantonly, or through gross negligence
d. Two Approaches:
i. Am, Industries Life Insurance v. Ruvalcaba: Son of employee falls down stairs without railing at work; sues building owner for negligence
1. I: As a person visiting a worker of a company, did the victim qualify as an invitee at the time of the incident? If so, was there evidence that AM acted negligently in failing to warn the victim of an open handrail?
2. H: No AND No. No recovery.
3. R

y do this shit for their job and should be liable
iii. Burgess v. Superior Court: Baby born with brain damage after problems in delivery
1. H: Mother/ Child relationship creates a highly foreseeable risk or emotional distress
i. Fear of Future Disease:
i. Majca v. Beekil: nurse cuts hand on scalpel that was used by a doctor who was HIV positive; second P was treated by a dentist with HIV; victims file for damages for emotional distress from fear of contracting HIV
1. H: No proof of actual exposure to HIV, therefore no reasonable fear and no recovery.
a. Need not prove actual contraction, but must prove that you might have been exposed.
b. Attempt to recover for the window of time between exposure and discovery of actual contraction
j. Pre-Natal Torts:
i. Greco v. US: baby born with deformities, mother not reasonably warned in order to have the option for abortion; Files claim for wrongful birth and negligent malpractice against professionals who negligently failed to make a timely diagnosis of gross and disabling fetal defects thereby denying the mother her right to terminate the pregnancy
1. H: Mother can file malpractice claim for failure to get informed consent, but baby can’t file for “wrongful birth” as a policy reason. (Don’t want court to say that a baby would have been better off not being born.)
2. Damages: Mother could recover for cost of raising the kid, probable emotional distress, but NOT loss of consortium since she would have terminated anyway.
k. Professional Duty: duty to possess and apply the knowledge and to use the skill and care ordinarily used by reasonably well-qualified doctors
i. Tarasoff v. CA Board of Regents: patient tells psychiatrist he’s going to kill Tarasoff. Doctor didn’t tell Tarasoff, who gets killed.
1. H: Professional Duty to warn extends to situations where (1) the harm was foreseeable; (2) the victim was identifiable; (3) P has a special relationship to either the 3rd party [psychiatrist] OR to the person likely to commit the crime [patient] 2. R: Expanded for goals of deterrence and equitable compensation
ii. Dunkle v. Food Service East: patient taken off drugs and kills his girlfriend; psychiatrist didn’t warn the girlfriend
1. H: Where no identifiable victim is apparent, as no threat was made to regarding a specific person, there is no duty to warn.
a. Also, a history of violence does not necessarily make murder a foreseeable incident.
2. R: Administrative concerns