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

Torts – UNC – Corrado – Spring ‘15



I. Generally

a. Whether there is a duty of care is generally a question of Law

b. Foreseeability is the essential concept in defining the duty of care & is a question of fact.

c. A defendant is said to owe a duty of care to all foreseeable plaintiffs for all foreseeable harm

d. People have an obligation to exercise ordinary care to avoid foreseeable and unreasonable harm to others resulting from their actions.

e. Foreseeability done not depend on past events, but means one does or should foresee.

f. An actor is entitled to assume that others will not act negligently to the extent the intervening conduct was not to be anticipated.

g. Liability is imposed only if the risk of harm resulting form the act is deemed unreasonable i.e. fi the gravity and likelihood of the danger outweigh the utility of the conduct involved

h. Legal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done.

i. An act is negligent if the actor intends it to affect, or realizes or should realize that it is likely to affect the conduct of another, a third person or an animal in such a manner as to create an unreasonable risk of harm to the other. (Restatement)

j. Whether a duty exists to prevent harm is not controlled by whether another pesos also has a duty, even a greater duty to prevent the same harm.

k. Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy. I.e. identifying, weighing, and balancing several factors – the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution .

l. When ∆ actions are relatively easily corrected and the harm sought to be presented is serious it is fair to impose a duty.

Kubert v. Colonna.

To establish text senders liability, sender must also have known or have special reason to know that the driver would read the message while driving.

II. Duty of care and Criminal Acts

a. A person has no duty to anticipate the criminal acts of third parties except when the acts should reasonable have been foreseen.

b. Forseeability alone does not result in the imposition of a duty. The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of playing the burden upon the defendant must also be taken into account.

III. Affirmative Duties

a. No general duty to affirmatively engage in actions to prevent harm to π.

b. You only have a duty to try to not hurt people; you do not have to try to help them.

c. Feasance

i. Nonfeasance: doing nothing

ii. Malfeasance: doing something leading to harm, implicating the duty of care.

d. Harm your property causes is harm you cause = malfeasance.

e. Maj: one is not responsible for the inducing or taunting of other resulting in harm.

Yania v. Bigan

One who taunts an adult in full possession of the their mental faculties is not liable for their actions.

Theobald v. Dolcimascola

If you are a participant in an act that results in harm you have a Duty of Care by arguably creating the peril.

IV. Exception to No Affirmative Duties Rule: ∆ Created Peril

a. Only applies when ∆’s negligence has produced the perilous situation. Innocent conduct creating peril does not produce duty of care.

b. If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has coursed such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm. (Restatement)

South v. Amtrak

∆’s train hits π who was negligent in crossing tracks. ∆ train conductor failed to help π by offering coat in freezing temperatures. Duty of Care existed.

V. Good Samaritan Laws

a. Provide liability shield for clumsy rescuer

b. Generally provide immunity from ordinary negligence but not gross

c. Few states have Compelled Samaritan Laws

VI. Exception to No Affirmative Duties Rule: Special Relationships

a. Situations/Relationships requiring in Affirmative Duty:

i. Common carriers to passengers

ii. Innkeepers to guests

iii. Landlords to tenants

iv. Stores to customers

v. Possessors of land open to public to public member lawfully present

vi. Schools to students

vii. Employers to employees

viii. Jailers to prisoners

ix. Daycare providers to children or adults in their care

VII. Exception to No Affirmative Duties Rule: Assumption of Duty

a. When one stops to render aid, they have assumed a duty and must exercise reasonable care under the circumstances. Rationale: once someone renders aid it’s less likely other will do so.

VIII. Exception to No Affirmative Duties Rule: Tarasoff

a. When a therapist determines or pursuit to the standards of his profession should determine that his patient presents a serious danger of violence to another he incurs an obligation to use reasonable care to protect the intended victim.

b. The adequacy of the therapist’s conduct must be measured against the traditional negligence standard of the rendition of reasonable care under the circumstances.

c. Duty of Care may arise from either a special reaction between actor and 3rd person to control 3rd persons conduct or a special relationship between actor and another which gives to the other a right of protection. (Restatement)



k. Violation of a licensing statute is generally not Negligence per se bc one can operate safely while not being licensed.

Gorris v. Scott

Order of Contagious Diseases Act was violated by ∆ not securing sheep on ship. Sheep fell overboard. Act was not intended to prevent sheep falling over but spread of disease.

Martin v. Herzog

Car hits buggy w/ lights off, buggy in violation of statute, Negligence Per Se.

IV. Custom

a. Custom is not dispositive no matter how firmly established. The standard of care remains the reasonable person under the circumstances. Except in professional malpractice (medicine, law, etc). In those cases, custom is the standard of care.

The TJ Hooper

Barges towed by tugs were lost in storm. Tugs didn’t have radio, Held: Although radios weren’t the custom, custom lagged behind reasonableness bc cost of radio was small. ∆ liable.

V. Negligence Calculus

a. Hand Formula – a person is obliged to take a precaution if the benefits outweigh the costs. Duty is beached if Burden is less than probability of harm x magnitude of harm. Breach if B < PL

i. Hand formula is not a definitive showing of breach but is weighty evidence. If B=PL, tie goes to ∆ bc π failed to carry burden of proof for breach

ii. L is the total amount of loss suffered in present dollars (if harm was a future one) – not the loss suffered by the ∆.

iii. P ranges from 0 to 1

iv. Human life is valued around $7 million.

VI. Res Ispa Loquitor

a. Allows π to prevail in spite of a lack of specific evidence showing breach of DoC.

b. Requirements for RIL: 1. Likely negligence – likely a breach of the DoC. 2. Likely the conduct of the defendant.

c. Minority: instrumentality (usu. a thing) of harm must be in ∆’s exclusive control

d. Some Jurisdictions don’t allow RIL if expert testimony is necessary

e. Effect of RIL (depends of Jurisdiction) either:

i. Jury permitted to draw inference that ∆ breached DoC (maj)

ii. Establish breach element, switching burden to ∆ to rebut presumption (min.)

f. Recurrent Situations for RIL:

i. Gravity driven injuries

ii. Collapse of building

iii. Livestock getting loose

iv. Airplane crash

v. Foreign object in capped bottle

vi. Nursery schools/Nursing homes (bc of inability to speak for themselves)