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University of Pennsylvania School of Law
Baker, Tom

Torts Baker Fall 2015

Two perspectives: internal tort law arguments and external (policy) views on tort law and institutions

External tort emphasis on medical malpractice cases

Stock forms of legal argument: precedent, policy, the policy behind the precedent, how policy becomes precedent
Role of judge and jury, difference between law and facts in tort context
Basic tort goals: deterrence (loss internalization), compensation (loss spreading), retribution/corrective justice/civil recourse
Tort law “on the books” vs. “in action”
Relationship between tort liability and insurance
Timeline of a Tort Case:

Mistake, Injury, Recovery
“Naming, Blaming, Claiming”
Trip to lawyer, lawyer fact gathering, lawyer contact with defendant/insurer
Tort suit
Motion to Dismiss
Summary Judgment motion
Pre-trial conference
Motions in limine
Trial: Opening statements, plaintiff’s evidence, defendant’s motion for directed verdict, defendant’s evidence, plaintiff’s motion for directed verdict, jury instructions, deliberation, verdict, judgment, appeal

Course Activities

Compare cases by identifying precedents cited and explaining how the case in question follows/distinguishes from the main cases
Remember to ID: 1) Procedural posture, 2) Asserted mistake of trial court, 3) Proper standard of care, 4) Where that standard fits on the standard of care continuum
How would you use the B<PL approach when evaluating cases?

Part 1- Overview

Chapter 1: An introduction to Torts

5 Fingers of Tort Law:

Breach Caused Harm (Actual and Proximate Cause)

Must establish “preponderance of evidence” standard

Nugget: In DC (only?), comparative negligence reduces damages

Duty is on/off: Does person X have a duty to prevent harm?
Damages has 2 elements: on/off and how much?
Big question: what does ordinary care mean in different circumstances?

3 reasons for Tort Law: civil recourse/corrective justice, deterrence/loss prevention, compensation/risk spreading

Many cases that could be contract or tort law go torts because there is a greater possibility for recovery on damages
Collectability is key factor in pursuing torts

Even the thinnest pancake has 2 sides

Judge Posner: Ideology before caselaw

Problem with dicta- not exposed to full adversarial processà nonbinding

Part 2- Negligence: Liability for Physical Harms

Chapter 2: The Duty Element

1. Negligence: A Brief Overview

A) Elements of the Prima Facie Case

B) The Injury Element

3 types of harm: physical, loss of wealth, emotional distress

C) Focusing on Physical Harms

2. The Duty Element and the General Duty of Reasonable Care

A) Easy Cases: The Unqualified Duty to Conduct Oneself with Reasonable Care for the Person and Property of Others

Standard from Heaven v. Pender (not automatically accepted) outfitted for modern use- reasonable foreseeability: a person has a duty to “use ordinary care and skill” to avoid putting others in danger that is a “reasonably foreseeable” consequence of the individual’s actions
A modern take: Foreseeability not often used for duty because continuous: slippery slope, at what point is something not foreseeable? 80% chance of nonoccurrence? 90%?

B) A Sampling of Easy Duty Cases Drawn from English Law

C) The Evolution of Duty Rules

i. MacPherson v. Buick Motor Co.

Establishes that a contractual relationship is not a prerequisite to the existence of a tort duty of care

Throws out Winterbottom and signals a shift in duty, rejects privity
Prosser: legal academics ID this case as crucial and include it in the Restatements, etc.

MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916)

Facts: D manufactures cars and did not perform simple tests before selling to a retailer who sold to customer. Wheel burst because of manufacturing defect and injured c

olved with?

Rule: A duty of care is owed to those who could reasonably be foreseen to be impacted by an individual’s actions.

Application: A reasonably prudent person would anticipate that a wife and husband will engage in sexual relations. As a medical doctor, David should have understood the risks of transmitting his STD to wife through sex.

Holding: Affirmed. Negligence claim against David reinstated.

Reasoning: Mussivand was a reasonably foreseeable sexual partner for his wife, so David had a duty to Mussivand to disclose his STD.

Dicta: David’s liability to Mussivand is extinguished once wife becomes aware or should have become aware that she carries the disease.

Simply involving the spousal relationship in the case doesn’t make it an amatory action (charge around love/seduction), so laws against those kinds of charges aren’t relevant.


Differences: Relationship between business and customer versus social relationship, David was aware of the risk he was creating while Buick only failed to adequately test and trusted that it bought from a reputable manufacturer, agency of wife different than the agency of a car in choosing to be “used” by third party

From class: not “life threatening”, not commercial/consumer

Similarities: Both owed duty to third party because foreseeable user, neither used ordinary care/skill to prevent risks to others

No privity, intermediary who has some role in relation to loss, both defendants had “special knowledge”, issue is bodily injury, both are public health concerns