Select Page

Villanova University School of Law
Wertheimer, Ellen

Torts Outline Wertheimer Fall 2014
Chapter 1: Introduction
      Brown v. Kendall (battery and a dog fight)
o   Same standard of care always applied (two tier system is wrong)
§  Reasonableness
§  Burden of proof is on the P to show that eh D was unreasonable à negligence
o   Court requires negligence à unreasonable when it is an accident
      Hammontree v. Jenner (seizure while driving)
o   P’s basic argument:
§  Jenner knew he had epilepsy
§  Seeking strict liability
·         Dropped in the original suit: D acted in a reasonable manner
o   Products liability argument – strict product liability: inherent risk present in products liability situations
§  Prevailing standard for imposing liability for negligence
§  P’s argue that there is no negligence but Jenner should be liable anyway
§  If the court decides to impose strict liability: D’s car, D’s seizure, D’s decision to drive à injury
o   Court says negligence is still required
o   True absence of causation
o   Trying to differentiate between people who do and do not have a history of seizures
§  Court says is we charge the D here where he does everything right, when will we not have to charge liability
o   Innocent act on the part of the driver but society/plaintiff’s are left with the cost
      Langan v. Valicopters (crop dusting)
o   Absolute (strict) liability for organic crops (crop dusting)
o   D’s argument
§  We took all proper precautions
§  We are entitled to spray our crops
o   Costs of spraying: drifting onto other peoples land à must pay all damages
o   Abnormally dangerous activity: satisfies all 6 aspects
§  Risk cannot be eliminated by reasonable care
§  Harm could be great
§  High degree of risk
§  Activity is a manner of common usage
§  Inappropriate activity
§  Valuable to the community
o   Balancing of interests
o   What can the D do?
o   Social interest of spraying outweigh interest of the P’s
o   Add a buffer zone
o   Adjust price of crops to compensate
o   But P’s crop every year
o   Buy P’s land
o   Spray by hand near border
o   Consumers ultimately pay – prices rise to reflect cost of production undergone by farmers
o   Social cost
Chapter 4: Duty
Main Question: can this P sue this D?
–          you have a duty to the person whose peril you caused
–          is the P within the zone of danger of the D’s activity if the D is negligent  (foreseeably affect the P if the D is negligent)
–          when determining whether a duty is owed:
o   foreseeability of harm to the plaintiff
o   degree of certainty that the risk can cause injury
o   closeness of connection between defendants conduct and injury suffered
o   moral blame
o   policy of preventing harm
o   extend of burden on the defendant
–          Why does the court look at duty?
o   Matter of law (court gets to decide)
o   Don’t have to satisfy the rest of the elements
o   All other elements are arguably met
–          Duty to warn usually comes up with specific threats to specific victims
–          Default rule (unless displaced): Take the amount of precautions that would be taken by a reasonably prudent person acting under similar circumstances
o   Standard of care is always the reasonable person under the circumstances
§  Standard of care remains the same but the degree or level of care varies with the circumstances
§  Objective standard of care (same for every person)
§  Exceptions: superior skill/intelligence of D (elevated); actors physical characteristics when relevant (i.e. reasonably prudent blind man)
–          special duty scenarios
o   children: standard of care for a child under 18 is to behave like a child of similar age, experience and intelligence acting under similar circumstances (subjective standard)
–          no duty to rescue (duty to rescue those whose peril you cause)
–          foreseeability determines the range of duty (except when it gets cut off)
–          foreseeable that harm will be caused if a lawyer is negligent
o   economic loss
I.                   Obligation to Assist others
–          you have a duty to rescue when you are responsible for causing the peril
      Yania v. Bigan (two men building a trench; trench floods)
o   At issue here: Duty to rescue
o   Must assume that Bigan caused the harm to Yania in order to assign damages
o   If Yania simply jumped in to the trench then Bigan has no duty to rescue him
–          Exceptions:
o   Special relationship exception
§  what creates a special relationship that might create an obligation?
·         “companions on a social venture”
·         reasonable expectation/belief that if you get into trouble, the other person would try to help you out
o   where performance has begun, there is a duty to continue
o   common enterprise (foreseeable to create in each other the expectation that if something happens, one with be there for the other)
o   “no big

e plaintiff can sue the therapist for failure to report directly to Tarasoff
V.                Negligent Infliction of Emotional Distress
–          main question: can there be suit without impact based on the fact that the only duty breached was a duty not to cause emotional distress
–          when the court asks why a rule exists, they are most likely going to change the rule
–          Concerns: false claims, impact rule (physical impact is an index of reliability)
      Quill v. TransWorld Airlines (plane crash)
o   Duty not to negligently maintain the plane
o   It is foreseeable and inevitable that emotional distress will occur under these facts
      Potter v. Firestone (cancer case)
o   Plaintiff can show reasonable, scientific probability that injury will develop (in this case, cancer)
      Thing v. LaChusa (car accident)
o   Duty is a matter of policy
o   You do not have to be within the zone of danger to sue
o   Replace the zone of danger requirement: must be closely related, see it happen and suffer emotional distress beyond what a regular person would suffer seeing the accident
o   Must be an underlying tort for a bystander to sue
      Boyles v. Kerr
o   If you can come up with a separate duty that has been breached you can continue with the lawsuit
      Chapa v. Traciers & Associates (keys left in the car – repo man takes the wrong car with kids in the backseat)
o   NIED not recognized under TX law
o   Bystander claim does not win because she did not see the man drive off
o   Other duties breached
§  Duty not to kidnap
§  Took the wrong car
§  Trespass to chattels (within the scope of his employment)
      Binns v. Westminster (someone else is buried in cemetery plot)
o   Foreseeability – emotional distress is virtually certain
o   Policy consideration: the person suffering is the one left living
o   Torts exist to deter people (encourage them to adhere to a reasonable standard of care) à must allow recovery