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University of North Carolina School of Law
Taylor, John E.

Torts Outline Fall 2009 – Taylor
–        Torts is a branch of private law that allows people to use the court system to seek redress.
–        These are a body of civil wrongs judged by society as warranting compensation.
–        These are civil wrongs not resulting from a contract.
–        Tort law rests on the idea that we owe each other things that aren’t explicitly stated.
–        To prove a torts case, there just has to be a “preponderance of evidence.”
o   Victims’ responsibility also comes into play, which it does not in criminal cases.
–        ~10 percent of all civil actions are torts cases, and about ¾ of those settle before trial.
–        Questions of law are decided by the court, while questions of fact are generally reserved for the jury.
–        Negligence is the failure to do something that a reasonable person acting under the standards that ordinarily regulate society would do; or doing something that a reasonable, prudent person would not do.
–        Negligence must include: 1. A duty of reasonable care; 2. Breach of that duty; 3. Causation; 4. Damages
–        The plaintiff has the burden of proof when proving negligence.
–        Four elements of negligence in a prima facie case:
o   1. Plaintiff suffered an injury;
o   2. Defendant owed a duty to a class of person, including the plaintiff, to take care not to cause the type of injury suffered by the plaintiff;
o   3. Defendant breached that duty of care;
o   4. Defendant’s breach was an actual and proximate cause of the plaintiff’s injury.
–        What counts as injury?
o   1. Physical harms (bodily harms or destruction of tangible property)
o   2. Loss of wealth
o   3. Emotional Distress
I.            The Duty Element
1.   Injury and General Duty of Care
                                        i.    Walter v. Wal-Mart Stores, Inc. – Walter was injured when a Wal-Mart pharmacist accidentally prescribed her the wrong chemotherapy drug. The court found that Walter was entitled to damages because:
1. Wal-Mart owned her a duty of care;
2. It breached that duty of care;
3. The breach of duty caused her to suffer adverse effects;
4. The effects were recognized by law as an injury.
                                       ii.    MacPherson v. Buick Motor Co. – This case took explicit privity out of duty in negligence cases. MacPherson was injured when a wheel on his car shattered. The wheel was not made by Buick, but another manufacturer. Cardozo ends strict privity by saying, “If the nature of the thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger.” Buick knew that a poorly made car was dangerous, as many people would be driving it. Buick failed to inspect and be vigilant, thus they were negligent. Cardozo reasons that with transportation changing, consumers won’t be in privity with all manufacturers, but they can’t be excused from all liability.
1.   Privity rule was stated in Winterbottom v. Wright in 1842, where a negligently made coach was sold to the Postmaster who used drivers from several companies. After a wheel collapsed, the court ruled that the coach maker owed no duty to the drivers because duty arose “solely from contract” and there was no contract between the two parties.
                                     iii.    Thomas v. Winchester – A duty does exist between a manufacturer and customer, even if there’s no privity, for dangerous products (in this case, incorrectly labeled poison). The danger was imminent and the bottle was for the public, not for a pharmacist.
                                     iv.    Loop v. Litchfield – Defendant made a piece of machinery was a cast-iron wheel that spun. The wheel as manufactured was missing a piece, so defendant patched it. The frame was later leased to Loop, who was killed when it exploded. Manufacturer did not have a duty, court rationed, because it had no notice that third parties would be in the mix.
                                       v.    Losee v.Clute – Defendant made steam boiler that operated for several months without incident before exploding. Cou

-to-rescue cases).
2.   One permitted or maintained unreasonably dangerous conditions on property in their condition (premises liability).
3.   One acted without reasonable care for plaintiff’s economic prospects (economic loss cases).
                                       ii.    Affirmative Duties to Rescue and Protect
1.   Motherland v. Hill – Osterland and a friend go canoeing and Osterland holds on for 30 minutes after the boat capsizes. The defendant was back on shore and heard the cries but did nothing. Court found that the defendant violated no legal duty in renting to Osterland late at night (he might have been drunk) because Osterland obviously protected himself for a good period of time. Since there was no duty not to rent the canoe, there was no other duty that the defendant owed the decedent. There’s not normally a duty for easy rescue, and tort law doesn’t sock it to scumbags. [Maybe you could argue special relationship] 2.   Baker v. Fenneman & Brown Properties, LLC – Plaintiff was in line at Taco Bell when he fell and no one helped him. Taco Bell says they did help him and declined further assistance. The man then fainted and fell again causing serious injury. Taco Bell moved for summary judgment on legal argument that their employees had no duty to the man. Appellate court reversed trial court decision and said that Taco Bell did have a duty of care because of a special relationship, citing Restatement 314a, which says a business that invites people on the premises for economic benefit owes them some duty. Court also dispelled Taco Bells’ argument that they “aren’t a medical practice,” as they only had to assist not perform surgery.