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West Virginia University School of Law
Taylor, John E.

It is easiest way to show damage and the easiest way to see improvement is with physical bodily injury, death, or physical property damage. Other cases that get recovery for injury harder to prove, are against policy because of windfalls, and raise complex questions of duty are economic loss, severe emotional distress, etc. The Third Restatement of Torts separates out and treats harm from physical injury differently than claims alleging other types of harm.
Judge determines duty as a matter of law. If after discovery no duty is established, case is dismissed. Even when a court recognizes a duty, it will take pains to qualify that duty (Strauss).
General Duty of Care (Forseeable Plaintiffs)
Respondeat Superior (the doctrine holding an employer or principle liable for the employees or agents’ wrongful acts committed within the scope of the
Easy and Hard Duty of Care
Easy, Affirmative Duty (an action that would cause an injury) i.e. Walmart’ pharmacist filling wrong prescription of pills to woman who develops great bodily injuries.

Harder, Negative Duty (failure to act that would cause an injury)
Andrews View
Cardozo View
Before Cardozo’s time, the Privity Rule in Winterbottom established that duty only runs to those parties on the contract. In the most famous case where the court declined to recognize a duty of care not to cause physical harms to each other: because of no duty no liability.
Upon deciding Thomas v. Winchester, Cardozo opened up an exception to Winterbottom: duty runs from manufacturers to parties outside the contract when the products are inherently dangerous (i.e. poinson) (opened the door for liability to third parties).
Upon deciding Loop, Cardozo followed Winterbottom and found that manufacturers do not have a duty to lessees even if hurt (flying metal patch spins off a wheel).
Then in Lossee, Cardozo followed Winterbottom again and found that after inspection of a product, manufactuers do not owe a duty to third parties when harmed. (i.e. after miller tested boiler duty stopped to those who were harmed when boiler exploded).
With Devlin v. Smith, Cardozo followed Thomas and found that duty extends to those who will use the product-even if not the purchaser. So, liability lies in manufacturing imminently dangerous products. (i.e. workers were killed through carelessly-erected scaffolding)
In Torgesen and Statler, Cardozo held that coffee urns and bottled water are inherently dangerous when negligently manufactured.

Q. How did Cardozo limit the third party/what does he leave open to be decided?
-Element of knowledge that the thing will be used by persons other than the purchaser.
-There must be a probable knowledge of danger, not a mere possibility.
-Think on the usual course of events there must be knowledge that the danger will be shared with others than the buyer.
-The proximity or remoteness of the relation between the mnf and the person who is hurt.

Q. Why have a precedential system?
-consistency of treatment in interest of fairness (so lady justice really dispenses justice fairly)
-we want law to be fairly predictable so we can plan (i.e. If I can show I had no idea I would be thrown in jail I can get off-important for both criminal and civil.)
-creating predictability: If law is predictable it conserves judicial resources
-we don’t have to start from scratch/reinvent the wheel
-while there’s a consistency there’s also a flexibility. Judges, just like all people are not experts in all types of law. Sometimes ordinary judges can depend on smart past decisions. Good judges in the common law system know how to make use of common law precedent. A wise judge uses precedent to carve out exceptions and thus flexibility for him/her and future judges to use, while an ignorant judge is restrained by the precedence.

In MacPherson, J Cardozo shows how to artfully create exceptions in precent to pushes for an end to privity, while at the same time not overturning precedent. He articulated the thought process of each case and his thought process and came up with a different interpretation. With each cause we learn how to apply the rule, so we learn more about the rule (Restatements teaches us). Manufacturing companies are now held liable to third parties when don’t inspect and produce products that are inherently dangerous and immimently dangerous.

Mussivand,(holding that because it is foreseeable that a husband and wife will have intercourse and husband hurt by wife’s disease: where there is reasonable forseeability, duty runs to third parties).
Qualified Duty Care
Misfeasance (act of commission): the general duty of care to act and not cause foreseeable physical injury or property damage.
Premisis Liability

rving of a duty of care and who can recover, while restaurants and bait and tackle shops may not. Dissent: drawing the line for proximate cause and forseeability could be done with reasonableness on a case-by-case basis, especially when there are proven particular economic (non property) damages. (i.e. the 5-year successful hotdog stand with statistics of weekely high income/water-front vendor who now has no people to sell to may recover). Strauss (holding that
Mussivand and Testbank are similar because duty extends to the most proximate and directly potentially injured parties. Both cases used a big picture approach and policy approach: prevent limitless litigation and consider the future impact on society of their decisions. Both corts used common law to fill the gaps of the statutes and in so doring they stopped litigation from continuing indefinetly. Courts craft a more limited duty rule on Mussivand, Strauss, and Testbank thinking of that cases impact on the future and to prevent litigation from getting out of hand. There doesn’t have to be a contract, but an obligation to avoid causing injury to others.
Affirmative Duties to Rescue and Protect
Affirmatively failed to act for the rescue and benefit of the plaintiff.
Non-feasance (act of omission): Defendant failed to act in a situation where action could have prevented the plaintiff’s injury. In order for a plaintiff to prevail on a claim, plaintiff must show a A. special relationship (so judge would find duty existed), i.e. between spouses, parents and children, teachers and students (school and driving case), psychologists have a duty to warn 3rd parties/identifiable or reasobaly identifiable individuals who are known targets of harm by patients of the psychologists especially when warning would be relatively easy (Tarasoff), common carriers and their passengers, innkeepers and their guests,

To establish duty, the court