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Villanova University School of Law
Wertheimer, Ellen

Torts Final Exam Outline
Fall 2015
·         A D owes a legal duty to persons who may be foreseeably injured by D’s negligence.
o   Foreseeable Plaintiffs: If was not foreseeable that there would be danger to someone in p’s position, then D did not owe a duty of care to that p.
§  The risks reasonably foreseen define the duty to be obeyed. (Palsgraf)
§  The scope of duty extends to plaintiffs foreseeably harmed.
·         Analyzing Duty
o   Special Relationships
o   Duty To Viable Fetus & Pre-Conception Children
o   Creation Of Risks
o   Carelessness
o   No Big Deal Exception
o   No Duty To Rescue, But Duty To Foreseeable Rescuers
o   Moral Blame
o   Fairness & Policy
·         Strauss v. Belle Realty Co. – Con Ed No Duty To NYC Blackout Plaintiffs
o   FACTS: Con Edison NYC Blackout – p fell down stairs in common area of apartment building while trying to get water. p alleged that injuries were foreseeable and D’s contract to supply power to p’s apartment building created a duty.
o   HELD: No duty to p because (1) contract did not include power to “common areas” of apartment building and thus did not cover where p was injured, and (2) public policy required limiting duty because there could potentially be millions of plaintiffs.
§  No liability even though all elements of negligence were met.
·         Tarasoff v. Regents of Univ. of California – Psychologist Duty To Warn Target Of Threat
o   FACTS: D, a psychologist, was treating a student who said he was going to kill his gf. D notified the police, but not the gf. Student ultimately killed his gf. p sued alleging that D had a duty to warn gf.
o   HELD: D had a duty to warn because the harm to the gf was specifically foreseeable. Jury question whether D acted as a reasonable psychologist under the circumstances.
·         Renslow v. Mennonite Hospital – Wrong Blood Birth Injury
o   FACTS: D gives mother wrong type of blood in procedure at 13 y/o resulting in a blood condition that goes unknown to the mother for 8 years before it is discovered in a prenatal blood screening. Mother’s blood condition causes serious complications in utero requiring p to be injured and born severely premature. D argued p could not recover because p was not yet conceived at the time the mother was injured.
o   HELD: (1) D owed a duty to unborn children injured as a result of negligent treatment of the mother before the child was conceived. (2) Pregnancy complications were specifically foreseeable & closely related to D’s negligence. (3) Policy supported extending duty to new class of unborn children because advances in medicine made it possible to mitigate these types of injuries.
·         Yania v. Bigan – No Duty To Rescue Strip Mine Swimmer
o   Creating Peril: No duty to rescue p who jumped in strip mine because D did not create the peril.
·         Soldano v. O’Daniels – Sorry Bro, Can’t Use The Phone
o   “No Big Deal” Exception – There is a duty not to impede someone from helping another if it’s no big deal for you to help.
·         H.R. Moch Co. v. Rensselaer Water Co. – No Duty To Supply Water To Fire
o   Privity & 3rd Parties: D’s contractual duty to supply water to the city did not extend to members of the the public. Liability limited by limited through no duty because there was prox. cause.
·         Lucas v. Hamm – Rule of Perpetuities Not Legal Malpractice
o   Privity & Foreseeable p: p owed duty to third party beneficiaries of a will because it was foreseeable that they would be injured if a lawyer screws-up the rule against perpetuities. HOWEVER, rule against perpetuities is so difficult to apply that it is not malpractice.
§  Allowed Suit For Pure Economic Injury.
·         Vince v. Williams – Don’t Entrust New Cars To Idiots
o   Negligent Entrustment: D had a duty because p’s injuries were a foreseeable consequence of negligently entrusting a new car when D knew he didn’t have a license and was a troublemaker.
·         Viccaro v. Milunsky – Negligent Birth Preconception Genetic Testing
o   HELD: p could recover for costs associated with care of child and emotional distress offset by emotional benefit of having a child.
·         Thing v. La Chusa. – Bystander Rule
o   Bystander Rule: A plaintiff may recover damages for emotional distress as a bystander when:
§  (1) p is present and witnesses injury when it occurs,
§  (2) p is closely related to the victim,
§  (3) aware the victim was being injured, and
§  (4) suffers emotional distress beyond that of a disinterested witness.
·         Binns v. Westminster Memorial Park – Right Grave, Wrong Body
o   NIED: D’s duty to bury bodies in the right grave extended to p because p’s emotional distress was a highly foreseeable result of D’s negligent conduct.
§  **NIED originates from funeral homes mishandling dead bodies.
·         Boyles v. Kerr – No Standalone NIED For The Porno Queen
o   Parasitic NIED: Texas will not impose a general duty to not negligently inflict emotional distress. NIED is not a standalone cause of action – must be based upon another tort. NIED is an element of damages. p’s lawyers chose NIED because there would have been no insurance coverage for an intentional tort.
·         Chapa v. Traciers & Assocs., Inc.: No NEID for mom when SUV was repossessed with her kids in the back seat. Repo man quickly returned. Kids weren’t hurt and mom didn’t witness car being taken.
·         Potter v. Firestone Rubber & Tire Co. –  Emotional Distress From Fear Of Future Cancer
BREACH / NEGLIGENCE                                                                                                                                               
·         A D must as a reasonable person under the circumstances.
·         Breach/Negligence Analysis:
o   (1) What did D do?
§  Identify All Relevant Facts of D’s Conduct
o   (2) What would the reasonable person have done?
§  Risk-Benefit Analysis: If the risks of D’s conduct outweigh the benefits, then D unreasonable.
·         Kind/Extent of Foreseeable Risks
·         Likelihood of Foreseeable Harm
·         Feasibility of Reasonable Alternatives
§  The Carroll Towing Formula – (B
Liability depends upon whether the (B)urden of taking adequate precautions is less than the (P)robability of harm occurring multiplied by the extent of the potential harm (L).
o   Economic Tort Theory: A reasonable person under B
Good starting point for reasonableness analysis, but does not account for all factors.
·         The Standard of Care
o   Reasonable Persons: Not an average, a minimum.
o   Healthcare Providers: What a reasonable [Doctor, Specialist, Nurse etc.] would have done under the circumstances.
§  Choice between reasonable alternative not negligence.
§  Reasonable mistakes are not negligence.
§  Medical Custom – A minimum, not an average – Need Expert Testimony
o   Custom: Not a defense unless it’s reasonable – customs don’t set SOC. (T.J. Hooper)
o   Common Carriers: Utmost Case & Vigilance Of Very Cautious Person (Widmeyer)
o   Special Skills: Pilots held to reasonable pilot standard because of special skills.

njury. No shoulder issues before surgery. Numerous people involved in surgery – no one fesses up. p sues everyone and argues RIL because no way to prove who/what caused the injury. D argues RIL can’t apply because there were multiple possible people & instrumentalities involved. Trial court dismisses.
o   HELD: RIL shifts burden to D because: (1) not p’s fault (p was unconscious), (2) Ds possess all evidence of what happened, and (3) unexplained injuries during surgery don’t happen absent negligence.
§  Fairness: Burden shifted because Ds were only people who could know what happened.
·         Pillars v. R.J. Reynolds – Toes In The Tobacco!
o   Res Ipsa Tobacco: “We can imagine no reason why, with ordinary care, human toes could not be left out of chewing tobacco, and if toes are found in chewing tobacco, it seems to us that somebody has been very careless.”
·         Blyth v. Birmingham Waterworks Co. – Reasonable Water Mains, Unreasonable Winters
o   Reasonable Care: D was not liable because (1) D acted reasonably under the circumstances (extra cold winter, pipes went 25 years w/o breaking), and (2) it was an accident.
·         Vaughn v. Menlove – Reasonable Person Hay Rick Fire
o   The Reasonable Person: The SOC is not subjective (“D did his best”). The SOC is objective – D’s actions are measured against a reasonable person.
·         Adams v. Bullock – Reasonably Protected Trolley Wire, Unforeseeable Troublemaker
o   Reasonable Care: Kid messing around swings a long wire to make contact with electrified trolley wire à gets shocked. No recovery because D took reasonable precautions to prevent that risk.
·         Hammontree v. Jenner – No Strict Liability For Reasonable Epileptic Drivers
o   Reasonable Precautions: No recovery because D acted as a reasonable person under the circumstances even though harm might’ve been foreseeable. No strict liability because (1) precedent applies negligence standard to drivers stricken by a sudden illness, (2) policy discourages applying strict liability because it would screw up the actuarial side of car insurance.
·         Roberts v. State of Louisiana – Reasonable Blind Person Standard
o   Reasonable Blind Person: D held to the standard of a reasonable blind person under the circumstances. No breach because reasonable blind people don’t always use canes in familiar surroundings.
·         Widmeyer v. Southeast Skyways, Inc. – Common Carriers
o   Common Carriers: Duty of utmost care and the vigilance of a very cautious person toward their passengers.
·         Berberian v. Lynn – Alzheimer’s Patient No Duty To Caregiver
o   Caregivers: A mentally disabled person without the capacity to control their own conduct does not owe a duty to caregivers.
·         Robinson v. Lindsay – Snow Mobiles Aren’t For Kids
o   Children: When a child engages in an inherently dangerous activity, such as driving a snow mobile, the child is subject to an adult standard of care.