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University of Pennsylvania School of Law
Baker, Tom

Torts Baker Fall 2014
What is a Tort?
Duty + Breach + Causation + Damages + [Defenses] Did the defendant’s breach of duty cause the damages?
Ordinary Rule/Preponderance of the Evidence: Burden on plaintiff to prove that there is a greater than 50% chance that defendant’s breach of duty caused plaintiff’s specific injury (different from Crim, which is beyond a reasonable doubt)
To commit a tort is to act in a manner that the law deems wrongful and injurious to another, such that the other gains the right to bring lawsuit to obtain relief from the wrongdoer or tortfeasor. Torts refers to a collection of wrongs that, when committed, generate a cause of action in the victim against the tortfeasor.
Walter v. Wal-Mart Stores, Inc. (Maine, 2000) – Wrong Prescription; Reasonable Care
o   Facts:
§  Walter suffered serious illness b/c the pharmacist at Wal-Mart gave her the wrong prescription.
§  Walter suffered a serious illness (injury);
·         Insurance considerations.
§  Wal-Mart was obligated to customers of its pharmacy to exercise reasonable care for their physical well-being (duty)
§  Wal-Mart, through its employee, failed to exercise reasonable care for Walter’s physical well-being when, without appropriate checks, he dispensed the wrong medication to her (breach of duty)
§  Wal-Mart’s breach functioned as a cause of Walter’s illness (cause-in-fact, proximate cause)
§  Wal-Mart had no defenses; π did not have comparative fault such that Wal-Mart’s liability is cut-off or reduced.
o   Holding: Wal-Mart failed to exercise reasonable care for Walter’s physical well-being.
o   Notes:
§  Determined in favor of P by summary judgment (unusual – usually in favor of D)
§  The legal duties in this case arise out of contract and out of the professional obligation of the pharmacist to his customers. Professionals tend to be treated differently by the law.
§  Respondeat Superior is the common law doctrine that the employer is liable for the wrongs of the employee, even if the employee does not follow the rule. A form of vicarious liability.
Five Fingers of Tort Law
o   Duty: did the ∆ owe the π a duty of care? (Judge; yes/no)
o   Breach: did the ∆’s actions breach the standard of care dutifully owed to the π? (Jury)
o   Causation: did the ∆’s breach (1) cause-in-fact π injury and; (2) proximately cause π injury? (Jury)
o   Damages: did the ∆’s breach cause an injury with associated pecuniary and non-pecuniary damages?
o   Defenses: does the ∆ have defenses to limit its liability (comparative fault, assumption of risk, statutes)?
POLICY: Goals of Tort Law
o   Corrective Justice / Retribution: The righting of wrongs. Taking from the wrongdoer to give to the wronged.
o   Deterrence or Prevention (of future harms): Giving people an obligation or incentive to treat others safely.
o   Order: Ordering society to recognize our responsibilities to each other.
o   Shifting the responsibility away from the government
o   Compensation: Compensating people for their losses.
o   Cost Spreading: Deciding who should bear the costs and how to spread costs among parties in society.
o   Civil Recourse: Giving people a method to challenge wrongs.
§ Monetary damages are frequently the only practical remedy because (a) less burden on the court to enforce, (b) easily transferable, (c) and everyone wants it. Almost always what is at stake in practice rather than “righting wrongs.”
§ Personal injury cases are done on a contingency fee basis, meaning the lawyer gets a percentage of the winning rather than charging certain fees.
o   POLICY: Contingency fees give the lawyer an equity stake in the case. It motivates the lawyer to avoid frivolous lawsuits and to try to win those they do take.
o   “3 Legged Stool” of Personal Injury – personal injury lawyer is a rational actor who will decide if the case is worth the time based on the below test.
§  Compensation / Collectability: Can you collect from defendant?
§  Damages / Injury: Were there sufficient damages for a sizeable monetary award?
·         Liability: Can you show the defendant was liable for those damages?
§ AMERICAN RULE = no losers pay (aka fee-shifting); reduced the downside risks of litigation
§ POLICY: The involvement of the jury in Torts has to do with rationing tasks to be most efficient. There are not resources for judges to make full responses to every issue.
The Duty Element – did the ∆ owe the π a duty of care?
Elements of a Negligence Case
o   Π has suffered an injury;
o   ∆ owed a duty to a class of persons including π to take care not to cause an injury of the kind suffered by π;
o   ∆ breached that duty of care;
o   ∆ breached was an actual and proximate cause of π injury;
o   ∆ has not defenses.
o   Legal negligence is a failure to heed a duty of reasonable care owed to another that causes injury to that other.
General Duty of Reasonable Care
§ Unqualified General Duty of Reasonable Care (“Easy Cases”)
o   Unqualified duty to conduct oneself with reasonable care for persons and property of others (Heaven v. Pender)
o   Tends to be taken for granted
o   Deals with physical injury
o   Ex. Physicians to their patients. Car drivers to those around them.
§ Qualified Duties of Reasonable Care
o   Presumption of no duty of reasonable care under certain circumstances
o   Specific duties to which the defendant must attend
o   Other kind of injury other than physical harm
o   Categories
§  Duty-to-rescue cases;
§  Premise liability cases;
§  Pure economic loss cases;
§  3rd party warning.
Heaven v. Pender (England, 1883) – Burned Rope Stage Fails
o   “Whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the person or property of another, a duty arises to use ordinary care or skill to avoid such danger” – exemplifies reasonable forseeability
Evolution of Unqualified Duty Rules: “Privity Limitation”
o   Privity refers to the idea that the contract only confers benefits or obligations to those party to that contract
Winterbottom v. Wright (England, 1842) – Carriage Wheel Collapse; No Duty Absent Privity
o   Facts: Defective wheel on carriage collapsed causing bodily injury to employer of contractor of original purchaser. Manufacturer owes no duty to a plaintiff to not cause physical harm absent plaintiff’s contractual privity with the manufacturer.
o   Holding: No duty absent pri

Starts with Thomas v. Winchester (makes it the rule)
·         Spare description of the facts to “bias” against manufacturer.
·         Core idea of contracts is consent, but Cardozo says core idea of tort law is law, not consent, implies legal obligation that we can’t contract around
§  Historical context: Industrial revolution, development of mass-market distribution, the car. Also, largest state with largest population, state law more then it is today.
§  Important for the development of strict products liability. (2nd Restatement – do restatements actually restate the law or do they reshape the law?)
§  Overall trend = (so far) expansion of duty in the courts & contraction in legislature
§  DUTY is determined by JUDGE. FORSEEABILITY/BREACH/CAUSATION are fact based and thus determined by JURY.
Mussivand v. David (Ohio, 1989) – STD; Duty for Warning of Venereal Disease
o   Facts: David à Wife à Mussivand; Injury to a third party. Does David owe Mussivand duty despite lack of privity?
o   Holding: Duty owed to lover’s husband to warn lover of venereal disease. A person who knows or should have known that he or she is infected with a venereal disease has a duty to warn those persons with whom he or she expects to have sexual relations of his or her condition. Similar to contagious disease. The injury of the type suffered by Mussavind was foreseeable to a reasonable person in the position of David because Mussavind is the wife’s spouse (special relationship). Their sexual relations are foreseeable. David owes Mussavind a duty to warn the wife.
o   Notes:
§  HYPO: If the wife had told David that she was no longer sleeping with Mussivand, it is possible that Mussivand would have ceased to be a foreseeable partner, and David would no longer have had a duty to him.
§  Historical context: decade of AIDS scare
§  Third Restatement of Torts opted to depart dramatically from case law in opining that foreseeability should be irrelevant to the issue of whether a duty is owed by an actor to a potential victim of the actor’s carelessness. Instead foreseeability should factor exclusively in the determination of breach element.
§  “Duty is the court’s expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection. Any number of considerations justifies the imposition of duty in particular circumstances including the (1) guidance of history, (2) our continually refined concepts of morals and justice, (3) the convenience of the rule, and (4) social judgments about where the loss should fall”
§  Overall trend (so far) = expansion of duty in the courts & contraction in legislature