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University of North Carolina School of Law
Saver, Richard S.

Torts Outline- Professor Saver 2010
I.                    Torts Intro
1.      Moral view of torts-Holmes
                                 i.      Negligence often involves a choice. Social contract for all people to act reasonably. Losses from accidents should fall where they may
2.      Efficiency view-Posner-
                                 i.      Advance efficiency, but some risk are necessary for a productive society
3.     Hammondtree v Jenner (seizure crash into bike store)
                                i.      A fully treated medical condition and no negligence doesn’t allow recovery. This situation was not foreseeable (no choice was made), let the losses fall where they may.
4.      Reasons/goals for the Tort System
                                i.      Deter future accidents and negligence
                            ii.      Compensation for injury
                         iii.      Redress social Grievances
                          iv.      Promote Standards of conduct to preserve order
                             v.      Loss distribution-incremental loss spreading to various parties
                          vi.      Respond to new technologies, industries, services.
5.      Damages- single judgment rule, must ask for all damages at one time. Judicial economy.
6.      Vicarious Liability-not possible unless negligence occurred. Employer and employee are liable
                                 i.      Respondiat Superior- let employer be responsible for acts of employees when they are acting within the scope of duties of employment. (not usually intentional torts)
                               ii.      Christensen v Swenson-(car crash of employee while getting lunch)
1.      Birkner criteria for acting in scope of employ
a.       Employee conduct must be of the kinds that he/she is required to perform(not a wholly personal endeavor)
b.      Employees conduct must be substantially within the hours and spatial boundaries of employ
c.       Employees conduct must be motivated by serving the employer’s interest.
II.                  Negligence
1.      Historical development
                                 i.      Trespass-direct injury ex dropping a long on someone’s foot
                               ii.      Case(writ)-indirect injury requires showing of fault.
                             iii.      Brown v Kenall (dogs fighting, stick to eye)
1.      Extraordinary care no longer can be the standard for non-necessary act.
2.      Effects: Burden is ordinary care for negligence, collapsing the difference b/w trespass and case. Plaintiff bears the burden of proof.
3.      Strict liability would be lost productivity
                             iv.      Adams v Bullock (trolley wire boy)
1.      There is a duty to use precautions to minimize all foreseeable risks but no foreseeability here. No prior accidents/ impossible to insulate wire. Holding D liable would make them an insurer.
2.      Factors to consider today***-moral conduct, accident prevention, likelihood, previous warnings, compliance w/ industry, reasonable precautions, how foreseeable, special dangers?
                               v.      Us v Carroll Towing Co. ( tugboat breaks free, negligently tied down)
1.       Hand Formula-  Burden
PxL= reasonable care
2.       Hand formula is flawed in that it cheapens value for human life and externalities it’s imprecise, still it suggest numbers, doesn’t over deter.
2.      Reasonable Person Standard and jury/judge role in decisions
                                 i.      Objective test- what a reasonable and ordinary person would do in the circumstances. Some modification for certain qualities. Helps try to do away with subjectivity, and advance tort goals
1.      Children- adjusted to the standard of a child of the same age with the same knowledge, experience and capacity. EXCEPT when doing an adult activity ex driving a boat.
2.      Physical handicap- adjust for someone of a similar handicap ex blindness
3.      No adjustment for elderly, mental disability, intoxication. Can fake mental deficiency
4.      Person of superior skill- under duty to use those skills, higher standard held to.
5.      Gender is unclear used to not adjust but now sometimes do.
                               ii.      Bethel v NY transit-Standard for common carrier
1.      NY Court changes the standard used to judge mass transit from utmost care to ordinary person b/c a common carrier is no longer a really dangerous activity. Many other jurisdictions still require utmost b/c P and L are high.
                             iii.      Baltimore  Ohio RR v Goodman (truck and the railroad)
1.      Holmes decision- decrees a judge made rule about the stop and look standard for RR crossing. Holmes disturbing that usually due care is decided by jury.
                             iv.      Pokora v Wabash Railway (RR vs truck revisited)
1.      Guy did not get out and look. Court revisits that standard and sees the benefit of case by case analysis/ jury determination for these situations and the proper standard of conduct.  Danger and other factors are different.
                               v.      Andrews v United Airlines Inc suitcase fall from overhead
1.      It is up to jury to decide which side should win because good case is made on both sides w/ expert witnesses
3.      Custom- how to weigh evidence and standard of care. Relavant but not conclusive, does not usually define standard of care, but still important.
                                 i.      Constructive notice- you should have known and foreseen danger, on notice.
                               ii.      Trimarco v Klein- glass shower
1.      Custom that since the 50s new showers made w/ shatter proof glass. Landlords in community would switch glass upon tenant behest, perhaps this custom is unreasonable. Put custom on trial when inappropriate.
2.      Judge the reasonableness of D’s conduct under all the circumstances including whether a custom has been established. Should be hesitant to take decision away from jury.
4.      Role of Statutes-must be the class of people, specific conduct, and the danger/interest the statute intends to protect. Compliance with statute also is not automatically non-negligence if a reasonable person would do more. Some ways that violation can be excused.
                                 i.      Statutes signal due care is needed.
                               ii.      Martin v Herzog(driving no headlights, swerving car)
1.      Driving without lights violates a statute and is negligence in itself. This was an unexcused violation, so negligence per se.
                             iii.      Tedla v Ellman (walking on the road, excused violation of statute)
1.      There was a statute saying they should be walking at middle of the line, they weren’t. They heavy traffic would have made following statute more dangerous.
2.      Point of the statute was to protect pedestrians not put them in more danger.
3.      Excused violation of statute include: impossibility of compliance and an emergency situation.
                             iv.      Hypo of D leaving cars in ignition outside Psych institute and it gets stolen by patient who crashes into a tree. P tried to argue violation of statute but the legislative intent wasn’t to protect the thief but to cut down on police time spent on stolen cars.
5.      Proof of Negligence- if no actual notice can try to prove constructive notice

ity than non-consensual touching.
                                 i.      Rationale: choice is a fundamental right and it helps the healing process.
                               ii.      Matthies v Mastronmonaco( hip replacement_
1.      Doc prescribed bed rest and not hip pinning. P was not presented with the option of hip pinning and not told of the probable effects of bed rest. Jury was instructed informed consent only applied to invasive procedures.  Docs cannot only present their choice of procedure, needs to be material info and alternatives.
2.      NC informed consent statute-No informed consent where:
a.       The action to get consent was in accord w/ the standards of practice for NC.
b.      A reasonable person would generally understand the procedure and usual risks
c.       OR a reasonable person would have picked the same procedure
3.      Exceptions
a.       Emergency
b.      Therapeutic reasons-severe severe distress of the patient would happen, not common
c.       Patient demands no info- Risky, many docs won’t do
III.           Duty
                                 i.      Usually no affirmative duty to act. Epstein- law respects person’s right to free will and liberty.
                               ii.      Misfeasance/malfeasance- did you directly introduce the risk
                             iii.      Nonfeasance- do you act to clean someone else’s mess up
1.      Exceptions to no duty to rescue in nonfeasance
a.       Commenced rescue- when you start the rescue due care must be exercised
b.      P dependent on/ under the control of D
c.       Special relationship- common carriers, innkeepers, possessors of land that’s open to the public, and custody of another person.
d.      Common carrier- highest degree of care to not expose others to harm.
2.       Harper v Herman( guy dives off boat in shallow water)
a.       Issue if there is a duty here: No special relay existed and superior knowledge of a dangerous condition in the absence of a duty to provide protection does not establish liability. 
b.       Social host/ experience boater is not a duty. Defense could have argued this was misfeasance.
3.       Farwell v Keaton( guy gets beat up then left in his yard by friend)
a.        His friend S was proximate cause of death and did not exercise reasonable care after commencing rescue(ice packs) and also court found special relationship in their common endeavor to look out for each other.
b.       He also foreclosed the ability for someone who would be better qualified to rescue.
4.       In several notes cases, if you can establish reliance on a promise sometimes a duty is enforceable. Sheriff supposed to call when certain prisoner was released.
5.       Notes case limitation of duty, in fire case- not extending duty to a water company that had a K to provide city water. Would be too far to extend right to water for every citizen who might benefit from a supply of water. Other customers would pay for this loss spreading