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

TORTS
CHAPTER 1: INTRODUCTION TO TORTS
I. General:
a. 3 Types of torts:
i. Negligence
ii. Intentional Torts
iii. Strict Liability
b. Four Aims of Tort Law: If you injure someone wrongfully, you must compensate
i. Deterrence – guide people’s behaviors (Forward-looking rationale)
ii. Loss of Distribution – “cost spreading”
iii. Corrective Justice/Fairness – righting a wrong
iv. Compensation – attempt to make a party whole (Backward-looking rationale)
c. Prima Facie Case
i. Duty
ii. Breach of Duty
iii. Causation
iv. Injury

CHAPTER 2: THE DUTY ELEMENT

Liability = Negligence (duty + breach) + Injury + Causation

I. Negligence – Prima Facie Case
a. Injury
i. (a) physical harms [bodily or damage to property]; (b) loss of wealth; (c) emotional distress [pain and suffering] b. Duty: D owed duty to class of persons including P to take care not to cause an injury of kind suffered by P
c. Breach: D breached that duty of care (negligent act)
d. Causation: D’s breach was an actual and proximate cause of P’s injury

II. General Duty of Reasonable Care
· General duty of care: duty of reasonable care attaches whenever it is reasonably foreseeable that careless conduct on one’s part risks physical harm to persons such as the plaintiff (Heaven v. Pender)

a. Manufactured Goods:
i. Winterbottom – There can be no duty of care between two parties that are not in contract, unless there is direct contact. Privity required.
1. Exceptions to Winterbottom: If the product itself is imminently dangerous (food, poison) no privity required

ii. MacPherson – No Privity Required – If a thing is of such nature that it is reasonably certain to place life and limb in danger to foreseeable user if improperly made, then it is a thing of danger, and there is a duty of care to make it carefully (forseen probable danger)
1. MacPherson: Manufactures could be held liable (ALL state adopted this rule)
a. Negligent design
b. Design OK, but materials were negligently supplied/chosen
2. Did not address whether duty extended to nonusers such as pedestrians and other bystanders (but only to foreseeable users of product)
b. Duty to sex partners: One who knows or should know that he has an STD has a duty to his sexual partners and to foreseeable partners of theirs to abstain or disclose to his sexual partners up until the point where his sexual partner knows or should know (foreseeability duty)
i. Mussivand
c. Duty of therapist: Warning is required of doctors who know or should have knownthat a patient will follow through with violent threats.
i. Tarasoff – there is a duty of reasonable care to protect the intended victim if the physician should have reasonably known of the risk (foreseeability of harm to P)
· The greater the degree of harm, greater burden of duty to warn

II. Qualified Duties of Care (Limitations of Duty)

a. Affirmative Duties to Rescue and Protect

i. General Rule – No duty to rescue: A person has no affirmative duty to rescue and protect another person when there is no special relationship
1. Osterlind v. Hill (canoe drowning) – nonfeasance case
ii. Exception – Yes duty to rescue: When there is a special relationship, duty to make reasonable effort to rescue and protect
1. Baker (taco bell) – duty to invitees
iii. Exceptions to No Duty – There is duty to rescue:
1. If there is law that requires rescue or protection
2. If you are the cause of harm (i.e. creating dangerous condition)
3. If you voluntary undertake helping
a. good smaritan immunities – immunize certain “off-duty” professions (i.e. doctors) who undertake rescue
4. If there is special relationships
a. carrier – passenger
b. property owner – invited guest
c. school – student (minor)
d. employer – employee
e. hospital – patient
f. prison – prisoner
g. parent/guardian – child

b. Premises Liability (two rules)
i. Minority Rule: Classification Method
1. Leffler v. Sharp (inn roof top)
2. Status:
a. Invitee: express or implied consent (i.e. business benefit)
b. Licensee: implied permission to be on premises/ enters for his own benefit (no business benefit) (i.e. social guest)
c. Trespasser: no license, invitation, or other right to be on premise
3. Duties to each:
a. Invitee: duty of reasonable care to keep premises reasonably safe and warn where there is a hidden danger
b. Licensee:
i. Majority: duty to warn of known hidden dangers – Leffler v. Sharp
ii. Minority: duty not to willfully and wantonly injure
c. Trespasser: duty not to willfully and wantonly injure
ii. Majority Rule: status is not determinative
1. Rowland v. Christian (broken water facet) – basic law of negligence should be applied – consider foreseeability, severity of harm – has owner of property acted as a reasonable person in view of the probability of injury to others?

c. Pure Economic Loss
i. General Rule: There is duty to avoid economic losses that comes from physical damage to property
1. Can be liable for both physical and economic losses
ii. Exception – Pure Economic Loss
1. Rule: There is no liability for pure economic loss in the absence of
a. Physical harm/property
b. Contractual relationship
c. Or Some other special relationship
i. Aikens v. Debow (truck and broken bridge)
2. No duty to prevent pure economic loss

CHAPTER 3: THE BREACH ELEMENT

I. Duty, Breach, and the Meaning of Negligence

a. Standards of care- court decides whether there is duty and what the standard of care is
(Strict Liability > Highest Duty of Care > Ordinary Care)

i. Professional Standard of Care: standard of a reasonable person in the profession
1. Usually established by expert testimony
2. Can be used as sword for P if D doesn’t use it, shield for D if D uses it
a. Myers v. Heritage (nursing home bed)
ii. Ordinary Standard of Care: what a reasonable person might have done
1. Jury is the decider of measure of reasonableness and facts
a. Martin v. Evans (stuck btwn trucks)
iii. Strict Liability: when statute says strict liability, common law standard is irrelevant – only need to show cause and injury
a. Pingaro (dog bite)
iv. Highest Duty of Care: common carriers are held to this standard (of upmost care) – carrier of masses – Jone

Objective – what is employed by the medical profession generally, NOT what individual physician would do under the similar circumstances
a. Johnson v Riverdale (preoxygnation)
b. Established by testimony of an expert
2. Can be complete defense for doctor if that doctor acted within the custom, but failure to comply with custom is malpractice
3. Custom in nation: Majority rule – what is custom in similar localities everywhere
a. Locality rule – minority rule

4. Prima Facie Case for Medical Malpractice
a. Duty: There is a custom (national standard of care) accepted for treatment of the P’s condition
b. Breach of Duty/Allegation of Negligence: physician neglected to employ the accepted national standard of care
c. Injury
d. Causation: physician’s negligence caused P’s injury
5. * There can be different acceptable practices; the fact that there is another acceptable practice does not mean that D’s practice is not acceptable

c. Exceptions to Medical Custom (failure to warn)
i. Duty to inform: split jurisdiction between “professional custom” rule and “prudent patient” rule. No expert testimony required
1. For P to Prevail- P does not have to show that the treatment itself was malpractice. Only show:
a. If treatment resulted in bodily injury and
b. If patient would have declined treatment if informed of the material risks (even if the treatment would have/was properly provided)
i. If patient would have continued after warning, than failure to warn is not a proximate cause of injury
2. Majority “reasonable patient” standard: (Canterbury Rule) Physicians need to disclose any material risk of the treatment that a reasonable patient in patient’s position would like to know (what is material to the patient’s decision)
a. Rule: Duty to inform when
i. A reasonable patient
ii. In what the physician knows or should know
1. To be in the patient’s position
iii. Would attach significance to the risk
1. In deciding whether to have the recommended procedure (Largey v. Rothman – lymph node)
b. Exception: When the patient is unconscious (all) or irrational (some jurisdiction)
3. Minority “reasonable physician” standard: (Kaplan Rule) Duty to disclose is based on custom. Would a reasonable doctor in similar training usually inform for this procedure?

d. When custom is not the rule: Reasonableness, Balancing, and Cost-Benefit Analysis
Hand Balancing Test: B < PL If the (burden) is LESS than the (probability of loss) times the (extent of the loss), then there is a duty owed to take the necessary precautions