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West Virginia University School of Law
Taylor, John E.

Torts, John Taylor, Fall Semester 2010
CHAPTER 1- Intro to Torts
torts is a civil wrong

CHAPTER II -Negligence: Liability for Physical Harms
A. Negligence Overview
Prima Facie Case: the formulation set out the elements that, at minimum, a plaintiff must prove for a remedy. 4 elements
Elements of Torts:
1. Def owned a duty to Plt – is a question of law for the courts – (question of law)               
2.That duty was breached – (question of fact)
3.The breach was an actual and proximate cause of the injury (question of fact)
4. The Plt was injured
The injury element – injury the plt has to demonstrate that she suffered the right kind of adverse effect.
What counts as an injury in negligence?                
1. Physical harm- bodily harm or damage to or destruction of property (land, personal property, & structures). (Makes up the most case of negligence, easiest way to prove injury element),
2. Loss of Wealth –
3. Emotional distress – can sometimes be recognize as a injury
II. Duty
The Duty Element/general duty of reasonable care- def has a obligation not to cause the type of injury that plt suffered.                                   
Easy Cases: the unqualified duty to conduct oneself with reasonable care for the person and property of others. (Causing physical harm.)
Difficult Cases: Duties that does not have physical harm – (i.e. Emotional stress)
How to figure if a duty will be difficult? – One reason duty might be hard is a failure to act (omission) – are difficult duty case.
C. The Evolution of Duties Roles
Heaven v. Pender: forseeablility
If it is reasonably foreseeable that your conduct will cause an injury you will be liable.
Winterbottom v. Wright: the privity rule
In this case in which the def created a carriage for the postmaster general, postmaster general hired another company in which plt work as a contractor, wheel came off and plt was injured. Court said that Wright had no duty to Winterbottom because they had no contractual agreement. Judge found in this case that there was a harm without wrong (Damnum absque injuria)
Thomas v. Winchester: Imminently dangerous products
In this case limited the finding in Winterbottom case  in which a drug manf. mislabeled a bottle of poison as medicine. Sold bottle to a distributor, who sold it to a pharmacist, who sold it to Plt’s husband. Court held that unlike Winterbottom, this case the def put plt in imminent danger.
MacPherson v. Buick Motor Co., 111 N.E. 1050
Overruled the Winterbottom case : reasonable foreseeable physical harm from ones action is sufficient to generate unqualified duty to take reasonable care from cause harm. Liability can extend past a contractual duty.
Mussivand v. David, 544 N.E.2d 265
It was reasonable to see that a wife was going to have sex with her husband.

Qualified duty means limit duty
GENERAL RULE : “an individual does not have duty to aid or protect another person even if he knows that person needs assistance”, LS. Ayres v. Hicks, 220 Ind 86.
Categories of qualified or limited duty cases
1. Affirmative duty cases or duty to rescue cases- unreasonably failed to provide assistance or protection to Plt
2. Premises liability cases- permitted or maintained unre

ty owner-invited guest. Other relationships that under certain circumstances generate a duty are: school-student, employer-employee, hospital-patient, and prison -prisoner. The court are generally wary about recognizing new special relationship. 

Osterlind v. Hill, 160 N.E. 301
The Plt and friend rented a canoe while intoxicated. While in the lake the Plt’s goes over board and begins to yell for help. The person who rented the canoe hears the cries but does nothing, Plt drown The Plt’s estate sues Def for negligent conduct and 4 other counts . The allegation was Plt was incapacitated and could not enter into a valid contract to care for his safety. Def objects to complaint and the trial sustains Def objection. Appellate court affirmed lower court decision and held that the Def had no duty to Plt because Plt was not helpless, Plt screams when the canoe turned over demonstrated that Plt was able to protect himself. So the Def did not violate a duty to protect Plt when he rented the canoe to Plt who could protect himself.

That this is a pure nonfeasance case, the court felt that the Def had no duty because he had no special relationship to Plt, the imperil the Plt was in was not caused by Def, and he never volunteered to assist the Plt .
Baker v. Fenneman & Brown Properties, LLC, 793 N.E. 2d 1203 (KFC)
Plt went to a restaurant, while there he loss consciousness