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University of North Carolina School of Law
Corrado, Michael L.

Instructor: Mr. Corrado
Torts—Law 209
Fall 2012
Part One: Overview:  Chapter 1: An Introduction to Torts
I.                   What is a Tort?
Tort: to act in a manner that the law deems wrongful toward and injurious to another.
II.                An Example of a Tort Suit
Walter v. Wal-Mart Stores, Inc.
Rule: (1) Tremblay and Kimball: Pharmacists owe patients ordinary care, the highest practical degree of prudence, thoughtfulness, and vigilance, and exact safeguards.
(2) Wheeler v. White: Must be some reasonable connection between defendant omission and damage plaintiff suffered (totality of evidence so overwhelming, only one conclusion to deduce).
(3) Comparative Negligence and Damage Mitigation: Maine Statute: damages owed to plaintiff reduced when harm is partly plaintiff’s fault.
Summary: Walter received the wrong drug from Walmart (Melphalen, instead of Chlorambucil). She subsequently was injured. Held: Walter won: there was a duty: an ordinary duty of care, which was breached.
A.    Common Law and Statute
– Stare Decisis: “let the decision stand”: A court must accept if: (a) The prior decision was rendered by a court with authority to render decisions that are binding on the present court; (b) The issue was actually resolved; (c) issue resolution necessary to decision; and (d) The issue arose in the prior decision in comparable circumstances to 1st case.
– Respondeat Superior (literally: “let the master answer” for the wrongs of the servant). Under this rule, an employer is held vicariously liable for wrongful acts of its employees w/in scope of employment.
Part Two: Negligence: Liability for Physical Harms
Chapter 2: The Duty Element
I.                   Negligence: A Brief Overview
A.    Elements of the Prima Facie Case
Actor A is subject to liability to other person P for negligence if: (a) P has suffered an injury; (b) A owed a duty to a class of persons including P to take care not to cause an injury of the kind suffered by P; (c) A breached that duty of care; (d) A’s breach was an actual and proximate cause of P’s injury.
B.     The Injury Element
(1) Physical Harm: (a) Bodily Harms: including fatal and non-fatal contusions, lacerations, broken bones, internal organ damage, diseases, and physical illnesses; (b) Damage to, or Destruction of, Tangible Property: including land, structures, and personal possessions.; (2) Loss of Wealth; (3) Emotional Distress
II.                The Duty Element and the General Duty of Reasonable Care
The duty element requires a negligence plaintiff to establish that the defendant owed her, or a class of persons including her, an obligation to take care not to cause the type of injury that she has suffered (only for negative duties to take care to avoid causing harms; also: positive, “affirmative” duties: reasonable rescue/protect effort).
A.    Easy Cases: The Unqualified Duty to Conduct Oneself with Reasonable Care for the Person and Property of Others
Easy duty cases: cases in which neither the litigants nor the court will spend much time on the issue because all are satisfied that the person being sued owed it to the complainant to take reasonable care.
B.     A Sampling of Easy Duty Cases Drawn from English Law
1.      Heaven v. Pender (1883) (English)
Rule: (1) Justice Brett’s central claim: that an unqualified duty to take reasonable care not to cause physical harms is owed to another whenever a person of “ordinary sense” would recognize that careless conduct on his part would create “danger of injury to the person or property of the other”(today: reasonable foreseeability).
Summary: Carriage runs over person? Held: Duty owed, Heaven wins.
C.    The Evolution of Duty Rules
1.      Winterbottom v. Wright: The Privity Rule: (1842) (English)
Rule: (1) Privity Rule: Duty only extends as far as the parties named in the contract and directly involved in the initial sale of the defective product.
(2) When it comes to build products, the manufacturer is only liable to whom he or she sold the product.
Summary: Wright made stagecoaches. English Postmaster General purchased the stagecoach. Winterbottom, a contracted driver but not a postal service employee, sues Wright after the wheel of a carriage collapsed, injuring Winterbottom’s leg. Held: Case dismissed via Privity rule.
            OTHER: (1) Brown v. Kendall: Liability, for even direct injuries (RR runs P over), requires negligence.
2.      Thomas v. Winchester: Imminently Dangerous Products (NY 1852)
Rule: Manufacturers owe a duty of care when they manufacture an “imminently dangerous product.”
Summary:  Manufacturer accidentally mislabeled poison as medication and sold it to distributors that supplied pharmacies. Thomas bought such a medication at a pharmacy, took it, and was poisoned instead of medicated. Held: Winchester owed a duty of care because it developed an “imminently dangerous product.”
3.      New York Case Law: 1870-1910:
a.       Loop v. Litchfield  (1870):
Rule: Winterbottom Privity Rule.
Summary: D manufactured a piece of machinery that included a cast-iron wheel that spun when in use. As originally manufactured, the wheel was missing a portion of its rim, so D had patched it. The D then sold the machinery to Collister. Several years later, Collister leased the frame to P, who was injured when wheel burst at point of patch. Held: jury verdict against manufacturer overturned based on Winterbottom’s Privity rule.
b.      Losee v. Clute (1873):
Rule: Winterbottom Privity Rule.
Summary: D manufactured a steam boiler for use in a paper mill that the D knew to be located adjacent to other businesses. The mill owner tested and accepted the boiler, which operated without incident for three months, then exploded, causing damage to Losee’s property adjacent to the mill. Held: Winterbottom: manufacturer owned no duty of care to avoid causing property damage to P (because the boiler manufacturer exercised no control over the operation and maintenance of the boiler upon its installation).
c.       Devlin v. Smith (1882):
Rule: Thomas Imminently Dangerous Rule.
Summary: P, a painter, was killed because of D’s carelessness in erecting scaffolding on which the painter was standing. Held: In contrast to Loop and Losee, the Court of Appeals reversed lower-court judgments for D by invoking Thomas: a poorly constructed scaffold was imminently dangerous to human life. Therefore, D owed a duty of care to third parties who might use the scaffolding.
d.      Torgesen v. Schultz (1908):
Rule: Devlin/Thomas Imminently Dangerous Rule
Summary: the P, a domestic serveant, lost an eye after a bottle of carbonated water bottled by the D  and sold to her employer exploded as she was placing it on ice. Held: As in Devlin, the Court of Appeals reversed the trail court’s dismissal of the claim on the ground that a bottle of aerated water is an inherently dangerous instrument.
e.       Statler v. George (1909):
Rule: Devlin/Torgesen/Thomas Imminently Dangerous Rule
Summary: Here, the Court reached the same conclusion as T

tebrae. Held: P won: D had duty to assist customer against unreasonable risk of harm (even when fault not due to D), and to administer first aid until can be cared for by others. Remanded to get facts right.
B.     Premises Liability
Leffler v. Sharp (Miss. 2004)
– Duty of care
– Duty to warn (of any hidden danger(s)).
– Duty to refrain from willful or wanton injury.
– Duty to refrain from willful or wanton injury.
– Duty of care
– Duty to warn (of any hidden danger(s))
– Duty to warn (of any hidden danger(s)).
– Duty to refrain from willful or wanton injury.
– Duty of care
– Duty to warn (of any hidden danger(s))
– Duty of care
– Duty to warn (of any hidden danger(s)).
– Duty to refrain from willful or wanton injury.
Rowland (CA)
General duty of care
Invitee: One who enters property of another for the mutual benefit of himself and the owner.
Licensee: one who enters property of another for his own benefit at the license or permission of the owner.
Trespaser: one who enters property of another for his own benefit without permission.
Summary: P, with coworkers, visited D, an inn, after a night on the town. Notices open window (30”x24”x32”) where ppl are outside. Locked glass door with not an exit stenciled in red. P enters anyway, and fell through, and is injured. Held: D won: P was a trespasser because he entered for his own purposes without permission, so no duty of care to him.
C.    Pure Economic Loss
Aikens v. Debow
Rule: (1) General No-Duty Rule: Economic loss alone=no recovery if no physical harm to person/property or no special relationship between individual and tortfeasor where a duty is foreseeable.
(2) The obligation to refrain from particular conduct is owed only to those who are foreseeably endangered by the conduct and only with respect to risks/hazards whose likelihood made the conduct unreasonably dangerous.
(3) To recover pure economic loss in a tort action, the loss must be accompanied by at least one of the following: Physical/personal injury; Direct K relationship between two parties; A special relationship in which a duty was clearly foreseeable (plaintiff must be distinguishable from the general public, perhaps via proximity (Rickards v. Sun Oil Co.—NJ toxic fumes caused airline to evacuate), and this was foreseeable (defendant had an evacuation plan)).
Summary: P, lodge owner, sues D, truck driver, who drove into bridge which was the easiest way to get to lodge. Bridge closed for 19 days: P loses bunch of business. Held: D wins: economic loss from interruption of commerce not recoverable: no special relationship: no foreseeability of damage. Also, practical politics.