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