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West Virginia University School of Law
Taylor, John E.



1)   What Is A Tort?
(a) Includes actions for assault, battery, conversion, defamation, defective products, false imprisonment, fraud, intentional infliction of emotional distress, intentional interference with contract or economic advantage, invasion of privacy, negligence, nuisance, and trespass to land or chattel.

2)   An Example of a Tort Suit

(i)   Walter v. Wal-Mart Stores, Inc. (5)
(a) Summary judgment for Plaintiff in negligence suit
(b) DUTY: “ordinary care’ for a pharmacist means that ‘the highest practicable degree of prudence, thoughtfulness, and vigilance and the most exact and reasonable safeguards’ must be taken”(8)
(c) BREACH: “Lovin said that he made a ‘serious error’ that did not ‘satisfy the proper standard of care for a pharmacist’” (8)
(d) CAUSE: “No reasonable fact finder could have found that Wal-Mart’s negligent act in misfiling the prescription was not a substantial cause in bringing about Walter’s suffering…court did not error in granting judgment as a matter of law to Walter on the issue of causation.” (9)
(e) CONCEPTS: Summary Judgment, Respondeat Superior, Mitigation of Damages: Walter not immediately calling her Dr. about side effects was submitted to the jury as a reason to limit her damages

B) Common Law and Statues
(i)   The Principle of Stare Decisis (13)
(a) A court that is presently required to resolve an issue of law must accept the resolution of that issue contained in a prior judicial decision involving other litigants if:
(1) The prior decision was rendered by a court with the authority to issue decisions that are binding on the present court
(2) The issues was actually resolved in the prior decision
(3) The issue arose in the prior decision in comparable circumstances to those of the present action

C) Responsibilities in Tort
(i)   Respondeat Superior
(a) “Let the master answer for thxe servant”
(1) “P will seek to establish not(not only) that the careless individual owes her compensation, but instead (also) that the entity for which that individual worked owes her compensation” (16)

D) The Role of Lawyers (19-21)
E) Proceeding Through Court (21-31)

3)   Tort Law in Context
A) Tort Contrasted with Other Areas of Law (31-38)
B) The Politics of Tort Law (38-40)

C) Some Statistics Concerning the Tort System (40)
(i)   Tort suits constitute about 10% of cases in both federal and state systems
(ii) 60%-automobile accidents, 17%-property owners by person injured on the property, 5%-Medical Malpractice
(iii) Three quarters settle prior to trial
(iv) Punitive damages in only 3-4% of tort trials
(v) Median compensation $30,000


1)   Negligence: A Brief Overview

A) Elements of the Prima Facie Case (48)
(i)   Actor A is subject to liability to another person P for negligence if:
(a) P has suffered an injury
(b) A owed a duty to a class of persons including P to take care not to cause an injury of the kind suffered by P
(c) A breached that duty of care
(d) A’s breach was an actual and proximate cause of P’s injury

B) The Injury Element
(i)   Although other injuries may count, a basic list:
(a) Physical harms
(b) Loss of Wealth
(c) Emotional Distress

2)   The Duty Element and the General Duty of Reasonable Care

A) Easy Cases: The Unqualified Duty to Conduct Oneself with Reasonable Care for the Person and Property of Others
(i)   “Many easy duty cases are ones in which the P’s allegation is that the D carelessly pursued an affirmative course of conduct that caused the P physical harm” (51)
(ii) Unqualified or general duty as contrasted to qualified duty

B) A Sampling of Easy Duty Cases Drawn form English Law

(i)   Weaver v. Ward (52)
(a) An accidental shooting could sue the shooter under the writ of “trespass” notwithstanding the absence of any preexisting relationship between them.

(ii) Mitchil v. Alestree (52)
(a) Can be sued for carelessly arranging to have his horse trained in a public park, during which training it ran down the P, a stranger.

(iii) Vaughan v. Menlove (53)
(a) “The principal on which the P action proceeds, is by no means new. It has been urged that the D in such a case takes no duty on himself; but I do not agree in that position: every one takes upon himself the duty of so dealing with his own property as not to injure the property of others.”

(iv) Heaven v. Pender (53)
(a) “If a person contracts with another to use ordinary care or skill towards him or his property the obligation need not be considered in the light of a duty; it is an obligation of contract. It is undoubted, however, that…whenever one person is by circumstance place in such a position with regard to another that every on of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circum

laman v. City of Waterbury (74)
(a) If P was a trespasser must find for D
(b) Three essential elements to establish liability as to a licensee (75)
(1) D knew of the presence of P
(2) That D thereafter failed to warn P of a dangerous condition of which it knew and of which it could not reasonably assume the licensee knew of or which by reasonable use of his faculties would observe
(3) Such failure constituted the proximate cause of P’s injuries
(c) Only duty to trespasser is to “refrain from causing him injury intentionally, or by willful, wanton or reckless conduct.” (76)
(d) “A licensee is a person who is privileged to enter or remain upon land by virtue of the possessor’s consent, whether given by invitation or permission”
(e) Even if a licensee, “We conclude that the city was not required to remind adult swimmers of the obvious and commonly known danger of drowning inherent in swimming.” (77)


(i)   Trespasser, Licensee and Invitee
(a) “An invitee is a person who enters property with the consent of the possessor. Invitees are distinguished as a class because they are invited onto the property for the material benefit of the possessor, or in furtherance of the institutional purpose of the possessor.”(77)

(ii) “A person need not own the property to be treated as a possessor. A tenant who rents an apartment is a possessor of that property for the purposes of tort liability.” (77)

(iii) Difference between Dangerous Conditions on land, and Dangerous Activities

(iv) Trespasser
(a) Anyone who intentionally enters property without the possessor’s actual or implied permission.
(b) Generally, trespasser cannot sue, except:
(1) Possessor must take care to avoid causing injuries to child trespassers who are not old enough to appreciate a danger presented by the property
(2) Also doesn’t apply to adults when the possessor knows, or based on facts known to her, has reason to know, of the presence of trespassers to property.