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



FALL 2012


1) Walter v. Wal-Mart Stores

2) Ways of Looking at the aims of Tort Law:

a) Backward-Looking: Important thing is what happened. Fairness determinative factor. (You owe me)

b) Forward-Looking: Important thing is not the facts (justice) but it is a means of regulation to control society. (If we let you get away with this what will happen?)

c) Cost Spreading: Declining marginal utility of money – The more you have, the less it means to you or hurts to lose it. Tort law is about minimizing losses overall. (Insurance idea – Everyone pays a little rather than one person paying a lot) Applies to commercial settings only.

d) Internalizing Costs: Injuries inflicted by that industry are part of the costs of that industry. If you don’t force that industry to eat the cost, it would screw up the economics of the industry. (Gov’t buys steel for auto makers, GM produces too many cars) If you make the industry responsible for the costs of injuries, injuries will go down.

NEGLIGENCE: One has a duty to take reasonable care to avoid foreseeable harm

1. Elements of the Prima Facie Case: A is subject to liability to P for negligence if:

a. P has suffered an injury

i. Physical harms: bodily & property

ii. Loss of wealth (not pure economic loss)

iii. Emotional distress

b. Actor owed a duty to a class of persons including P to take reasonable care not to cause the injury suffered by P

i. Reasonable foreseeability element: a person of ordinary sense would recognize that careless conduct on his part would cause the danger of injury to the person or property of the other

c. Actor breached that duty of care

d. Actor’s breach was an actual and proximate cause of P’s injury

2. Reasons for general rule

a. Economical benefits by reducing the cost of accidents (forward)

b. People have certain rights (forward and backward)


4. First, address prima facie case, then look at affirmative defenses


(Normally won’t have to say that a PERSON owes another PERSON a reasonable amount of care)

1) The Duty Element and the General Duty of Reasonable Care

a) Evolution of Privity Rule (no longer in effect):

i) Duty only extends as far as the parties named in the contract and directly involved in the initial sale of the defective product

ii) Winterbottom v. Wright (postal carriage defect)

(1) Rule – There can be no duty if there is no privity between the parties.

(2) Privity = immediate relationship between the parties

iii) Thomas v. Winchester (Imminently dangerous products)

(1) Even with no privity, there can still be duty if the negligence inherently puts human life in danger

(2) Applies to poisons, explosives, things of that nature

b) MacPherson v. Buick Motor

i) Wheel falls off carriage and injures plaintiff

ii) Plaintiff sues the manufacturer, not the dealership who sold him the car (he wins)

iii) Creates new rule for manufacturer of goods:

(1) Any manufacturer of a product

(a) Which is reasonably likely

(i) To cause injury to life or limb

1. If negligently made

(b) And who knows (foreseeable user)

(i) That it will be used by persons other than the purchaser

(2) Has a duty

(a) To those persons

(b) To make products carefully

iv) Policy

(1) Backwards looking reasons (what do we want to enforce) (compensation and damages)

(a) Is it fair to leave the loss with the victim, or conversely is it fair to impose the loss on the manufacturer?

(2) Forward looking reasons (Policy, What do we want to encourage in the future?

(a) We want to deter this sort of activity for the purpose of minimizing the cost of accidents

(3) Pro Macpherson rule: Makes products safer

(4) Against Macpherson rule: Hurts innovation, more expensive for big business

c) Foreseeable harm to plaintiff can be negligence

i) Mussivand v. David

(1) Rule:

(a) If David knows or should know he has an STD, David has a duty to his sexual partner, the wife, and the wife’s forseeable partners, to abstain or disclose up until the point where the wife knows or should know about the disease.

(2) Rationale:

(a) Definite foreseeable harm, predictable that wife would have sex with her husband after having sex with the doctor

2) Qualified Duties of Care

a) Affirmative Duties to Rescue and Protect

i) There is no general duty to rescue someone in harm

(1) It protects the rescuer from unnecessarily putting themselves in danger

(2) “Accidental” damages might arise from providing assistance

(3) There is no duty to help someone unless it is a serious situation and causes no inconvenience to you

(a) Osterlind v. Hill

(i) Drunk man is drowning after renting a canoe, the renter has no obligation to save the man drowning

1. Nonfeasance: Harm caused by not taking action

2. Misfeasance: Your actions caused the harm

ii) Exceptions (Explain why there is a duty to plaintiff):

(1) A business that invites members of the public into their place of business has a duty to care for said members when they are in danger, even if the danger was no fault of the business.

(a) Baker v. Fenneman & Brown (Taco Bell) (Exception to no-duty rule)

(i) Man had a heart attack at Taco Bell and was not helped by employees

(ii) Taco Bell should have provided reasonable care

(2) More Exceptions (Common Law)

(a) Imminent peril to plaintiff caused by defendant

(b) Voluntary Undertakings (a contractual promise)

(i) Hospital taking in emergency patients

(ii) There is a good Samaritan immunity in all states

(c) Special Relationships

(i) Property owner, employer-employee, hospital-patient, prison-prisoner, innkeeper to guests, common carriers

(ii) Tarasoff v. The Regents of the University of California (courts have generally refused to extend this beyond physicians)

1. Rule: Once a therapist does, under professional standards, know or should have reasonable known that a patient is dangerous, he bears a duty to exercise reasonable care to protect a foreseeable victim.

2. Must show special relationship, defendant should have been aware of danger to P (D wasn’t tied up somewhere), but-for cause, then continue with negligence case.

b) Premises Liability

i) Different jurisdictions determine liability differently, depending on whether the plaintiff is an invitee, licensee, or trespasser.

(1) Invitee: There is a mutual benefit in the relationship between the two parties

(2) Licensees: One who enters property of another for his own benefit at the license or permission of the owner

(a) The advantage in the relationship is to the person entering the property

(3) Trespasser: One who enters property of another for his own benefit without permission






– Duty of care

lieve P or D. jury decides credibility.

(1) Strong deference to jury for determinations of breach.

2) Defining the Person of Ordinary Prudence

a) Reasonable Person Standard: Actor behaved as an ordinary prudent person acting reasonably under the circumstances.

i) Not adjusted for attributes that lessen a person’s capacity to be careful, nor is it adjusted upwards for heightened capacity to be careful.

ii) All people must follow or they are liable, doesn’t matter whether male, female, intelligent, retard. Same standard for all people. The standard is objective!!

iii) Illegal is unreasonable

(1) Vaughan v. Menlove

(a) Man is warned that his haystack will cause imminent danger by catching fire and causing neighbor’s homes to burn down.

(b) Man disregards warnings, haystack catches fire, homes burned down.

(c) Court rules that people must use care a prudent person would take under the circumstances.

(i) Their stupidity or other subjective considerations are immaterial.

b) Children

i) Majority Rule (Massachusetts): Children are negligent if they fail to exercise a degree of care that is reasonable of similarly situated children (consider the age, capacity, intelligence, and experience of the child)

(1) Exception: When children engage in an adult activity, like driving, they are held to an adult’s standard of care

ii) Minority Rule/ Tender Years Doctrine (Illinois): child is incapable of negligence if he is less than seven years old

(1) Appelhans v. McFall (5 year old on bike hits 66 year old who falls and fractures her hip, sues child and parents, both not negligent)

iii) Negligent Supervision (parents not vicariously liable)

(1) Parents were aware of specific instances of prior conduct sufficient to put them on notice that the act complained of was likely to occur

(2) Parents had the opportunity to control the child

c) Disabilities

i) Mental Incompetence: still held to Reasonable Person Standard

ii) Physical Disability: Sometimes relevant physical disabilities are taken into account, so blind people would be held to “reasonable bind person standard”

iii) Not Taken into Account: temporary insanity, elderly, gender, cultural reasonableness

3) Industry and Professional Custom

a) What an ordinary employee of the profession would generally do (This applies for industry rather than professionals) (custom is important)

i) T.J. Hooper Rule (tugboat without a radio, which was a new technology):

(1) Custom is not sufficient to prove reasonableness.

(2) Even if a defendant acted with care under the circumstances as customary for persons or entities, that fact alone doesn’t establish that they followed the reasonable person standard.

(3) In taking into account whether action is reasonable look at:

(a) Cost of changing action

(b) Likelihood of injury

(c) Cost of injury