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University of Pennsylvania School of Law
Baker, Tom

Torts Baker Spring 2017
Five Fingers of Tort Law (in theory)
what is that duty/standard of care? (Judge)
did P owe D a duty of care? (Judge; yes/no)
Breach: did D breach the standard of care dutifully owed to P? (Jury)
Causation: did the D’s breach (1) cause-in-fact of P’s injury and; (2) proximate cause of P’s injury? (Jury)
Damages (Harm)
Workers’ compensation
Three Fingers of Tort Law (in practice/real life)
Goals of Tort Law:
Deterrence: preventing future harms; and keeping corporations liable/loss internalization
Compensation: making individual victims “whole” and risk/loss spreading
Corrective justice: righting wrongs/announcing legal duties not to injure/creating spheres of responsibility/retribution/civil recourse/justice
Definition: tort is an act that the law deems wrongful toward and injurious to another, such that the other gains a legal right to bring a lawsuit to obtain relief from the wrongdoer (tortfeaser)
Note on Insurance:
Third party insurance (covers liabilities owed to others) – of defendant (“D”)
First party insurance (covers self, family, and property) – of plaintiff (“P”)
Burden on P to prove “by a preponderance of the evidence” (more likely than not)
Jury and Judge:
Duty: judge decide
Breach: jury decide based on legal standard of ordinary care
Causation: jury decide based on but-for test
Damages: jury decide based on common sense and custom
Internal vs. external arguments for torts
internal: within the arguments of tort law
external: what is tort law for
1. Duty
Question of law: Judge decides duty [yes/no]. Expanding duty allows more cases goes to jury and decreases judicial discretion.
Misfeasance (affirmative act) vs. Nonfeasance (omission of act): General duty to refrain from misfeasance, but not from nonfeasance (subject to exceptions).
Types of Duty
General Duty: unqualified, easy duty case
D’s affirmative conduct directly causes harm to P.
Limited Duty: qualified, hard duty case
D fails to act for benefit of P
D causes injury other than physical harm.
General Duty
General rule: unqualified ordinary duty of care [Yes, duty] Reasonable foreseeability: An unqualified duty to take reasonable care not to cause physical harms is owed to another person whenever a person “of ordinary sense” would recognize that careless conduct on his part would create “danger of injury to the person or property of the other”. (test: proximate cause)
Heaven v. Pender (1883): Justice Brett sets forth what is now called reasonableàDuty
Vaughan v. Menlove (1837): Carelessly started fire spreads from D’s to P’s propertyàDuty
Cotterill v. Starkey (1839): Pedestrian P was run over by D in a horse-drawn wagonàDuty.
Exception [No duty] The privity rule: no duty absent contractual privity between a victim and a manufacturer.
Winterbottom v. Wright (1842): D builds carriages and sold them to a company, which contracted with another company to hire drivers. Driver P was hurt when a carriage collapses. àNo duty: no privity, a case of damnum absque injuria (“harm without wrong”).
Loop v. Litchfield (1870): A piece from a defective cast iron wheel on machinery caused death to lessee of second level purchaser after 5 yearsàNo duty: no privity.
Losee v. Clute (1873): A defective steam boiler, which past a test of buyer, exploded and caused damage to property adjoining that of the purchaseràNo duty: no privity. (dicta: remoteness. D had no control over installment)
Exception to Exception [Yes, duty] Imminent danger / inherent danger:
Thomas v. Winchester (1852): P ingested the poison mistakenly labeled as medicine and sued the manufacturer. P bought it from a pharmacy that bought it from a distributor. àDuty: imminent danger.
Distinguish from Winterbottom v. Wright: (a) Foreseeable harm: “death or great bodily harm… was natural and almost inevitable consequence of the sale…” (b) Nature of business: typically sell through intermediates, harm from sale is likely to fall on those not involved in the sale. (c) Imminent danger.
Devlin v. Smith (1882): Defective scaffolding collapsed causing bodily injury to employee of painter who had contracted for scaffoldingàDuty: imminent danger.
Torgesen v. Schultz (1908): Defective carbonated bottle (everyday product) exploded causing bodily injury to employee of purchaser.àDuty: inherent danger.
Statler v. George (1909): Defective steam-driven coffee urn sold to hotel exploded causing bodily injury to hotel guest. àDuty: inherent danger.
Eliminate Privity Rule à back to general rule [Yes, duty] Rationale: Right to recovery arises out of tort law, not from contractual relationship.
Manufacturers owe a duty to foreseeable users irrespective of contractual relationships of their final products that have a probable danger of personal injury.
MacPherson v. Buick Motor Co.: Manufacturer of automobiles D sold an automobile to a retail dealer, the latter resold it to P. P drove the car for a year. One of the wheels was defective and one day collapsed while P was driving, causing an accident that injured P. The wheel was bought from another manufacturer by D, but the defect could have been discovered by reasonable inspection. àDuty: ordinary care.
Probable danger: Dangerous things need not be operations of destruction in normal use. If the nature of thing is such that it is reasonably certain to place life and limbs in peril while negligently made, it is a thing of danger.
Nature of the business: knowledge that product will be used by persons other than purchaser.
Final product: the product is finished and will be used without new tests.
A person with a sexually transmitted disease owes a duty of care toward his or her lover’s foreseeable sexual partner.
Mussivand v. David: Doctor D infected P’s wife a venereal disease, which in turn infected P. D didn’t disclose his disease to P’s wife. àDuty.
Policy: Public health is an asset. The state has an interest in protecting its citizens from the spread of communicable diseases. 
No duty to a 3rd party who was not the spouse of the intermediaryà fail foreseeability.
No duty to the 3rd party spouse once the intermediary (wife) knew or should have known about the sexually transmitted disease.
Limited Duty
Three Categories of Limited Duty
Duty to Rescue (Affirmative Duty)
Premises Liability
Pure Economic Loss
Special relationships
Reasonable foreseeability of the harm (proximate cause)
Policy concerns
Duty to Rescue
General Rule: No duty to rescue (No duty for nonfeasance) [No duty] Rationale: Nonfeasance made the P’s situation no worse, just merely failed to benefit P.
Osterlind v. Hill: A lessor of a boat rent a boat to an intoxicated person, and did not rescue the person when he was drawnàNo duty.
Exceptions (Affirmative duty) [Yes, duty]:
Special relationships: A pre-tort relationship between D and P or between D and the third party who injured P.
e.g. property owner-invited guest; commercial carrier-passenger; business-customer; employer-employee; hospital-patient; prison-prisoner; school-student; established friendship (companions on a social venture).
Baker v. Fenneman & Brown Properties, LLC: P fell and severely injured himself through no fault of D’s in a Taco BellàDuty: special relationship, business invitee.
Restatement (2nd) of Torts §314A(b)(3): A possessor of land who holds the land open to the public has a duty to members of the public who enter the land to protect them against unreasonable risk of physical harm, and to give them first aid when they are ill or injured. The injury is due to natural disaster, pure accident, the act of a third party or the negligence of P himself.
Policy: social policy dictates that storeowner, who is deriving economic benefit from the presence of the customer, should assume affirmative duty to help customers who become ill as a cost of business.
Policy: duty to rescue for all customers in need excludes the trouble of assessing whether the business has a duty to rescue in a particular situation.
Tarasoff v. The Regents of the University of California: Murderer confided his intention to kill Victim to his phycologist. Psychologists required police to detain Murderer but failed to warn Victim about the peril. àDuty: When a therapist determines, or pursuant to his professional standards should determine, that his patients present a serious danger of violence

; availability, cost and prevalence of insurance.
Rowland v. Christian: D did not warn P, a social guest to her apartment, the dangerous condition of bathroom fixture, and P was injured while using itàdisputed facts, remand to find for facts.
Recreational use statute: a property owner owes no duty to be careful to keep the premises safe for recreational use by others unless the user is a paying customer or the landowner has expressly invited, rather than merely permitted, use of the property by the recreational user.
Pure Economic Loss
Predicate injuries vs. parasitic damages
Physical harm: a. Person b. Property. When suing physical harms, the economic loss can be a parasitic damage.
Prue economics loss: no direct harm in person or property, but cause a loss.
General Rule: No duty to avoid depriving persons of economic prospects. [No duty] Aikens v. Debow: D broke a bridge, which was the primary, but not exclusive access to P’s restaurant, caused P potential profit lossàNo duty.
Overburden on the judicial system (Floodgate): Allowing recovery for pure economic loss will result in limitless liability, limitless lawsuits.
Undue burden on the Defendant: should not answer for any possible consequence of his negligence.
Duty for pure economic loss is a slippery slope – the courts must draw the line somewhere. The location of the actual line is a matter of public policy and practical politics.
Exception [Yes, duty] Special relationship: P was a member of “identifiable class” that D knew or should have known would be likely to suffer economic loss from his conduct.
Accountants: Ultramares Corp v. Touche àDuty: the accountant knew or should have known that audit was being undertaken specially in order to facilitate a particular transaction. (Then expanded from particular third party to all that might be foreseeably rely on the audit.)
Attorney: lawyers are liable to the intended beneficiary when negligently draft a will. Lawyers are liable to a non-client if he makes negligent misrepresentations to him.
Contractor: J’aire Corp. v Gregory (HVAC—landlord—tenant)àDuty: contractors have duties to tenantsàpeople who cause foreseeable harm to identifiable parties have a duty of ordinary care with regard to those parties.
Notary public duty to beneficiaries of documents
Architects and engineers hired by owner
Surveyors or termite inspectors
Telegraph companies, for those who failed to secure a contract
Foreseeability of harm: People Express Airlines v. Consolidated Rail Corp.: leak of toxic chemicals that evacuated airline’s office buildingàDuty: The more particular is the foreseeability that economic loss will be suffered by the Plaintiff as a result of the Defendant’s negligence, the more just it is that liability be imposed and recovery allowed.
Public pollution:
the Gulf Oil Spill: Oil Pollution Act 1990 (OPA): departs from the no-duty rule by allowing a claimant to recover for lost profits or impaired earnings if such a loss is due to property or resource damage that results from a spill, irrespective of whether the claimant has a possessory interest in the property or resources.
Commercial Fishermen: 9th circuit permitted negligent claims by fishermen to whom polluted waters. The reliance of commercial fishermen upon an ability to fish in unpolluted water satisfied the foreseeability requirement and justified a damage.
Parasitic damages