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University of Pennsylvania School of Law
Baker, Tom



Fall 2012


Tort: wrongful conduct that enables victim to obtain remedy – articulates legal responsibilities and duties that one person owes to another

Tort Law Basics:

Damages, Duty, Breach, Causation, Defenses

Purpose of Tort Law:

1. Deterrence/prevention

2. Civil recourse (corrective justice)

3. Compensation

4. Retribution

Walter v. Wal-Mart Stores, Maine, 2000 WRONG CHEMO DRUG

Negligence requires breach of duty that caused injury to plaintiff

– Injury: medical expenses, emotional distress, depression, lifestyle changes, physical harm, pain and suffering

– Duty: Wal-mart is responsible under respondeat superior (employer is help vicariously responsible for wrongful acts of its employees); they have a professional obligation – employed a pharmacist who has a duty to work based on a professional standard of care

– Breach: prescribed wrong chemotherapy drug

– Causation: wrong chemotherapy drug caused negative side effects

– Defense: Wal-mart argues that Walter had comparative negligence because she didn’t check the medication herself

– Holding: Wal-mart was negligent; no comparative fault

General Duty of Reasonable Care

Rule: no duty to act with exceptions: [historic]

– No privity with manufacturer; needs a contractual relationship (Winterbottom)

– Unless, the manufacturer produces imminently dangers products (e.g., poison; Thomas)

Heaven v. Pender, English Courts, 1883 REASONABLE FORESEEABILITY

Duty exists if person recognizes that careless conduct would create danger of injury

– Foreshadow of the exception to the no duty rule: reasonable foreseeablity. A duty of care exists whenever it is reasonably foreseeable that careless conduct risks physical harm

Winterbottom v. Wright, English Common Law, 1842 DEFECTIVE CARRIAGE WHEEL

Product manufacturer owes no duty absent contractual privity with injured party

– Defective wheel on carriage collapsed causing bodily injury to employer of contractor of original purchaser (Wright (carriage manufacturer) à contract with postmaster (to provide coaches for mail delivery) à contract with another company (to provide drivers) à Winterbottom was an employee of company that contracted with postmaster (driver)

– Holding: manufacturer cannot be held liable because a contractual relationship did not exist directly between Wright and Winterbottom [no duty]

Thomas v. Winchester, NY, 1852 MISLABELED POISON

If the product is imminently dangerous, a manufacturer owes a duty of care

– Thomas purchased mislabeled poison, thinking that it was medicine (manufacturer à distributor à pharmacist à Thomas)

– Holding: manufacturer’s duty of care arises out of the nature of his business and the imminent danger to others that may result due to the mismanagement of business

New York Case Law Arising out of General No Duty Principles: 1870 – 1910

– Loop v. Litchfield (1870): [defective cast iron wheel] Litchfield (manufacturer) à sold to Collister à leased machine to Loop (injured)

o Court: no duty under privity

– Losee v. Clute (1873): [defective steam boiler] Clute (manufacturer) à sold to mill owner who tested and accepted boiler à caused damage to Lossee’s property

o Court: no duty (manufacturer has no control over operation and maintenance of boiler)

– Devlin v. Smith (1882): [defective scaffolding] Smith constructed scaffold (wooden platform à fell on Devlin

o Court: duty because poorly constructed scaffolding is imminently dangerous

– Torgesen v. Schultz (1908) [defective carbonated bottle] manufacturer of carbonated bottle à bought by purchaser à employ

– Question of whether the duty was breached is a matter of fact – determined by jury

– Question of whether it was foreseeable demonstrates the interplay between the judge and the jury

o The judge determines that a duty was owed to the husband because husband and wife relations are foreseeable

o Jury decides if duty was breached based on foreseeability

Qualified Duties of Care

Overview of Duty Doctrine:

General rule: duty to act reasonably to avoid bodily injury or property damage (with exceptions)

Exceptions to the general existence of duty to avoid bodily injury or property damage:

· Affirmative duty – no duty to rescue

· Premise liability – licensee, invitee, trespasser (no duty for trespassers)

· Pure economic loss – no duty for economic loss, except in certain cases

o Note: rule can be seen as either an exception or a separate rule with its own exceptions

§ Rule: no duty for pure economic loss

ú Exceptions: special relationships, contract, physical damage)

Affirmative Duties to Rescue and Protect

Macpherson eliminated privity requirement for duty and created a new rule/exception framework

– General duty: to act reasonably not to injure foreseeable victims

§ Misfeasance: action (e.g., driving recklessly, harms passenger)

o General duty to act reasonably not to cause foreseeable physical injury

§ Nonfeasance: omitting to act

o There is no duty to reasonably avoid injury; no duty to rescue