TORTS
I. 2 Meanings of Prima Facie case….
a. Plaintiff has established all elements of negligence claim to win case save any affirmative defenses
b. P has established 4 elemetns to qualify for jury trial
II. Duty
a. No affirmative duty to strangers
b. Privity
i. Out the window with McPherson v. Buick (p. 59)-There’s a broken tire on my Buick!!!!!!
1. If nature of object is that it is “reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger”
2. This ruling piggybacks on Thomas v. Winchester p. 57-There’s poison in my medicine!!!!!!!
c. Foreseeable Victim
i. Mussivand v. David p. 67 There’s horny doctors with STDs!!!!!!!
1. “existence of a duty will depend on the foreseeability of the injury to appellee”
2. Wife was foreseeably fuckin her hubby, so liable
3. If wife knew she had contracted STD from horny doctor #1, SHE is liable for giving to horny Dr. #2, based on last “conscious, responsible agency” who could stop danger
d. Affirmative Duties
i. No duty to rescue-Lazy Michael Phelps EXCEPT….
ii. Common carrier-highest practicable care, but this could be losing traction, as some see no need for diff b/w this and ordinary care
1. Court essentially says common carrier is useless in these cases
a. Bethel p. 53 Supp.-There’s collapsing wheelchair accessible seats on a bus!!!!
b. Andrews p. 56 Supp.-There’s falling luggage everywhere!!!!!
iii. If you BEGIN a rescue, you then must exhibit reasonable care
iv. Osterlind p. 76- There’s a drunk guy renting a boat!!!!!!!
1. Found not liable, however would not hold up today
2. Negligent entrustment-different from ignoring potential dangerous act (no duty) and providing instrument for the danger (can be liable)
v. Baker v. Taco Bell p. 77- There’s a guy on the ground at Taco Bell!!!!!
1. court reverses and finds TB DID have duty to customer,
2. Court invokes public policy considerations
3. Also say businesses should be doing this anyway to keep customers
vi. Special Relationships-i.e. employer employee, father-daughter, Alex, Lance, Mike and Trent <3
vii. Fun with Invitees v. Licensees v. Trespassers
1. Invitee-Person that enters for benefit of the landowner or on public property at express or implied invite of owner
a. Owed reasonable care, warning can serve as care
2. Licensee-Enters with express or implied permission of owner for the licensee’s own benefit
a. Requires actual knowledge of the danger to be liable
3. Trespasser-No permission, invite
a. No duty to make safe, must only avoid willful, wanton harm
4. Marrs p. 40 Supp.-There’s a drunk guy on the railroad tracks!!!!
a. Marrs escape contributory negligence b/c last clear chance
b. Shows rescue rule, once started must be seen to completion
5. Leffler p. 88- There’s a drunk guy on the roof!!!!!!
a. Shows distinction b/w licensee and invitee is minimal, mostly matters that not a trespasser
b. Court finds he goes beyond bounds of invite, losing his status as invitee
c. Also, court mentions only invitee if owner receives mutual benefits (no benefits from going on roof)
d. If Leffler had been licensee or invitee, he wins, b/c bar had shown actual knowledge of danger
6. Rowland p. 110-There’s a broken faucet in the house!!!!!
a. Court ignores the 3 categories, and says there’s a duty to all, California’s crazy
7. Attractive nuisance-must use ordinary care to prevent kids from harming themselves with artificial conditions on property
a. Example-Cotton-candy covered mine-field
viii. Tarasoff p. 119- There’s a ment
vidence of constructive notice
b. General awareness of litter or other condition that MAY be present is not enough
b. Medical Custom-Medical malpractice only exception to reasonable person, using medical custom
i. Does not matter whether custom is deemed reasonable or not, only matters that it IS custom
ii. Can be multiple accepted customs
iii. Jury can still find negligence even if it meets custom, so it’s a “one way ratchet”, can get D into trouble, but not always out
iv. Myers p. 138-There’s an old lady who fell off the lift!!!!!!!
1. Nurses do NOT get to use custom, b/c they’re not professionals
c. Expert witnesses
i. Johnson v. Riverdale p. 173- There’s a lady dying from anesthesia!!!!!!
1. What expert witness would have done is irrelevant, only relevant what all doctors do
ii. Daubert p.992-There are expert witnesses everywhere!!!!!!
1. Overturns Frye test, after it is invalidated by Fed. Rules of 1975
2. Daubert test-more flexible, but can be used strictly, don’t NEED to meet all 4 criteria
a. Peer review
b. General acceptance
c. Validation of methods
d. Rate of error
iii. Sheeley p. 80 Supp.-There’s a Super OBGYN!!!!!!
1. Differences in quality b/w the witness and D do not matter
a. He is certified Dr. w/ experience so he may testify
b. Overcomes the locality rule that Dr. had to be from same locality, which had expanded to include similar education, experience etc.
