Tort I Outline

Professor Schwartz
Fall 2010

I. Act (act or willful omission to act)

A. Misfeasance - risk of harm arising out of one’s conduct
B. Nonfeasance – lack of an act, stops the inquiry
II. Duty
A. Foreseeability, a duty is owed when Δ can reasonably foresee Π within the zone of
risk/danger (Cardozo’s “prevision”);
B. Limited Duty Rule:
1. Common Law ‘No Duty Rule”:
a. No duty to assist, act or rescue
i. Exceptions:
 Risk arose out of one’s conduct (misfeasance)
 Special Relationships (all exceptions to the ‘No Duty Rule’)
1. Special dependency (parent/child, teacher/student, co-venture, etc)
2. Contractual relationships (Home Health Aid/Patient)
 Voluntary Assumption of Duty (refraining from the act or acting)
1. Volunteer held to standard of R care and may not quit if unreasonable
 Innocent Prior Conduct
 Reliance on a Gratuitous Promise
 Intentional Prevention of Aid by Others
 Statute imposes a duty
1. Motorist must remain at the scene of the accident
2. Assistance to police and fire officials
3. Reports required of physical and sexual abuse
b. Farwell v. Keaton – Δ leaves severly injured friend in car, later dies. Ct held no
duty.
2. Landowners: (no need to discuss if act was a misfeasance or nonfeasance here)
a. American Industries Life Insurance Co. v. Ruvalcaba, “Triparte Analysis:
i. Invitee – person enters with owner’s knowledge/consent (mutual benefit)
 Public invitee – shopper at Wal-Mart
 Business visitor
1. Duty to protect against unreasonable risk of harm landowner knows or
should know about (most like Heaven v. Pender) – Use B<P*L
ii. Licensee – person enters with owner’s knowledge/consent (only visitor
benefits).
 Social Guest
1. Duty not to injure willfully or through gross negligence
2. Duty to warn or to make safe any known dangerous condition
iii. Trespasser – Enters without permission
 Duty not to willfully injure
1. Exceptions:
a. Children Trespasser
i. Attractive Nuisance
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 b. Frequent or known Trespasser
i. Use reasonable care to warn or protect from injury
b. Rowland v. Christian
i. Landowner owes anyone on their land a general duty to use reasonable care to
protect against foreseeable harm
3. Landlord Limited Duty Rule:
a. Traditional Rule: Duty or R care for foreseeable risks where
i. Dangerous conditions are known to the LL
ii. Dangerous conditions create risks outside the premises
iii. Premises are leased for public admission
iv. Dangerous conditions in common area
v. LL breaches agreement to repair the premises
b. Modern Rule:
i. LL owes a duty to of R care towards tenants and others on the premises w/
permission
4. Other Limited Duty Rules:
a. Consortium Losses – under limited circumstances recovery for “loss of
companionship and services” injuries
i. Usually a derivative claim of victim’s primary claim.
ii. Regan v. Vaugh – children may recover ‘loss of consortium’
b. Emotional Distress
i. Physical Impact Rule
 recovery allowed where there was physical impact but no physical injury
ii. Zone of Danger Rule
 Neg. conduct posed a physical risk to the person suffering the ED
 Fear for personal well being and that of another
iii. Bystander ED (most widely used today)
 Π must be closely related
 Π observed severe accident
 Π emotional injury leads to physical manifestations
1. Clohessy v. Bachelor – mother suffers ED as a result of watching son
fatally injured by a motorist
c. Pre-Natal Torts
i. Wrongful Birth/Pregnancy – brought by a parent who would have authorized
an abortion
ii. Wrongful Life – med. Malpractice brought on behalf of a child
iii. Wrongful Conception – Birth of a healthy but unwanted child
 Greco v. United States – mother brings med malpractice claim against
professional, who neg failed to make timely diagnosis of gross and
disabling fetal defects, denying her of her right to terminate the pregnancy.
d. Responsibility for Conduct of Others
i. 3rd party has a special relationship with the victim or perpetrator, that person
may have a duty to take protective action against a foreseeable criminal
incident.
 Tarasoff v. Regents of University of California
 Dunkle v. Food Service East

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 5. Policy Policy Analysis (Duty Goals)
a. Allocation of Loss (Compensation)
b. Fairness
c. Deterrence
d. Economic Considerations
e. Administrative Concerns
f. Legislative Considerations
III.Breach
A. Establish a standard:
1. What a RP would do UC
a. Rudolph v. Arizona B.A.S.S. Federation - bass fishing competition
b. Vaughan v. Menlove – compostable hay stack
c. Lussan v. Grain Dealers Mutual Insurance Co. – Wasp case
d. Edwards v. Johnson – Discusses the role of gender in the RP standard
i. Special Considerations:
 Physical Disability
 Children – RP of same Age/Intelligence/Maturity UC
1. Except those engaging in adult or inherently dangerous activities
a. Robinson v. Lindsay – 11 yr old injured by 13 yr old on
Snowmobile.
 Emergency – this standard is rarely used
1. Foster v. Strutz – Judge refused to allow ER instructions
 Mental Disability – not taken into consideration
1. Bashi v. Wodarz – Δ “freaks out” and causes 2 accidents
2. Learn Hand Formula (B<P*L)
a. B=Burden of prevention or avoidance, actor is negligent if burden is <P*L
b. P=probability of loss; L is magnitude of Loss
i. United States v. Carroll Towing – Anna C sank, bargee=MIA
ii. McCarty v. Pheasant Run, Inc. – Π did not ensure her Rm door was locked
3. Violation of a Statute (Negligence Per Se)
a. Π is in the protected class
b. Harm must be the type the statute was designed to prevent
i. If both met it is evidence of duty and breach:
 Δ can establish Prima Facie Evidence if he proves:
1. Δ acted reasonable UC
2. Rebuttable presumption – w/out rebuttal from Δ jury will find for Π,
however w/ a rebuttal from Δ jury may weigh all evidence.
c. Ferrell v. Baxter – collision resulting from Ferrell’s crossing the line on the road.
d. Wright v. Brown – released dog before quarantine was over, dog bit Wright
however dog was healthy. Wright not protected by statutes which was enacted to
protect people from unhealthy rabid dogs.
i. Exceptions:
 Excuses:
1. Actor’s incapacity
2. Actor does not know or should know of the occasion for compliance
3. Unable after due diligence to comply

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 4. Confronted by emergency not resulting from his own conduct
5. Compliance would involve greater risk to others…
 Children
1. Bauman v. Crawford – Neg. Per Se. does not apply to children who
should be held to the standard of a reasonably careful child of the same
age, intelligence, maturity, training and experience.
4. Custom - just shows what everyone does, this however may not always be reasonable
a. Community Standard (consider B<P*L)
i. Hagerman Construction, Inc. v. Copeland – EE falls through hole left
uncovered. Ct found contractual duty of safety was breached.
ii. Trimarco v. Klein – shattered glass bathroom sliding door
iii. The TJ Hooper – No radio on board, boats lost at sea during storm.
iv. Baltimore & Ohio RR. Co. v. Goodman – (Holmes) decedent didn’t get out of
his car, look and listen before crossing RR tracks, resulting in his death.
v. Pokora v. Wabash Ry. Co. – (Cardozo) Δ is injured while crossing the RR
tracks. Ct holds: leave ultimate decision of breach to the jury.
b. Professional Custom (do not consider B<P*L)
i. Expert Witness - Direct Evidence
ii. Medical Malpractice
 The Doctrine of Informed Consent
1. Phillips v. Hull – Π not properly informed of the % of pregnancies
resulting after a tubal ligation
iii. Legal Malpractice
 Smith v. Lewis – Attorney failed in divorce action to assert her community
interests in the retirement benefits of her husband. Ct. held that Π did not
prove she would have been successful in this claim had it been adequately
claimed.
c. Circumstantial Evidence
i. Trier of fact may infer B from A, but only if inference is rational.
 Clark v. Kmart Corp. – Clark slips on grapes.
d. Res Ipsa Loquitor – Circumstantial Evidence (you can infer from)
i. Applicable when:
 Δ(s) in exclusive control of instrumentality that caused the harm
 Injury doesn’t ordinarily occur in the absence of negligence
 Some states add: No evidence of Π contributing to injury
ii. Function: Puts burden on Δ to explain what happened, since only Δ would
know
 Bryne v. Boadle – barrel of flour falls on Π from above.
 Ybarra v. Spangard – injuries inflicted during the course of a surgical
operation, no Med Professional fesses up to it.
5. Judiciary Standard (Holmes – in Goodman “get out look and listen, Cardozo –in
Pokora, let the jury decide)
IV. Actual Cause
A. Tests:
1. But For Test
a. But for the Δ’s act, would the Π’s harm/injury occur?

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 i. New York Central v. Grismtad – decedent drowned, no life buoy not ‘but for’
since he could not swim.
2. Substantial Factor Test
a. Conduct is a substantial factor in bringing about the harm
i. Mitchell v. Gonzales – kid can’t swim, drowns on BFF’s lake
ii. Smith v. J.C. Penny Co., Inc. - Π’s fake fur catches on fire, who is to blame?
B. Loss of Chance Recovery
1. Herskovits v. Group Health Cooperative of Puget Sound – failure to timely diagnose
lung cancer
C. Exceptions (Proving who caused the harm):
1. Joint and Several Liability
a. each defendant can be held responsible to pay the entire judgment damage award,
instead of being liable for a proportionate share
b. plaintiff can still only collect once
2. Alternative Liability Theory:
a. Π’s a group all of whom culpable (all breached a duty)
b. One of these Δs actually caused the injury
c. Π can’t know which one actually did cause the injury
d. All group members named as parties (all are in court to defend themselves)
e. Reasonably small number of Δs?
i. If so, then all are treated as equally (and jointly) liable unless they can prove
that they did NOT cause the injury. Burden goes to the Δ to prove not liable.
 Summers v. Tice – Π shot in the face by Δs when hunting quail.
 Barron v. Martin-Marietta Corp – product liability case, Πs injuries
resulting from toxic fumes leaking from the canisters that encased missiles
3. Market Share Liability:
a. All products made the same but can’t tell what corp. is directly resp.
i. All Δs do not need to be present
ii. However, need substantial number of Δs present
iii. Identical products – in terms of risks imposed
 If there is not an identical risk, can’t sue under this theory
iv. Δs will only be liable for % of the damages
 Hymowitz v. Eli Lilly Co. – DES Case
V. Proximate Cause
A. Δ’s conduct and the Π’s injury/harm must have a connection that is reasonably close in
order to justify imposing liability on the Δ.
B. Tests:
1. Hindsight – Π’s injury/harm is a natural and probable consequence of Δ’s conduct
2. Foreseeablility – Π’s harm/injury is foreseeable
a. Palsgraph v. Long Island R.R. Co. – Π injured by explosives dropped by two men
being helped on the train. Court held Π no foreseeable, no Proximate Cause
b. Juisti v. Hyatt Hotel Corporation of Maryland – fire alarm goes off, woman
suffers collapsed lung from walking down ER stairs
3. Risk Standard – yields same results as the foreseeability test
4. NJ /Reasonableness Standard – Is it fair and reasonable to hold Δ liable? (policy
driven, tends to yield same results as foreseeability test)

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 C. Intervening Superseding Cause?
1. Occurs between Δ’s act and the harm
2. Is not foreseeable
3. Shifting Responsibilities (It is by a 3rd party)
a. If so, chain of proximate cause is broken.
i. McClenahan v. Cooley – Δ left keys in the ignition, car was stolen, thief kills
innocent people while in police chase
ii. Price v. Blaine Kern Artista, Inc. – Π is pushed and injured while wearing a
George Bush mask
iii. McLaughlin v. Mine Safety Appliances Co. – drowning victim is severely
bunred by improper use of heat blocks, Ct held conduct could not be foreseen.
iv. Bigbee v. Pacific Telephone & Telegraph Co.- Π severely injured while in
phone booth located in a high traffic area, Π could not escape because of stuck
door. Ct held injury foreseeable
b. Suicide is never foreseeable
4. Exceptions:
a. The Medical Malpractice Rule
i. Association for Retarded Citizens-Volusia v. Fletcher
b. The Eggshell Π Rule
i. Pace v. Ohio Department of Transportation – Previously diagnosed infected
finger has to be amputated as a result of subsequent injury in accident with
DOT
c. The Rescuer Rule
i. Sears v. Morrison – swamp cooler incident
ii. Oscar Klein Plumbing and Heating v. Boyd – Jewelry was not in imminent
peril.
iii. The Firefighter/Police Exception
VI. Damages/Injury/Harm
A. Personal Injury Damages
a. Calva-Cerqueira v. United States – accident with bus left Π severely physically
and mentally disabled.
2. Pain & Suffering
a. Problem: No benchmark to determine an appropriate dollar amount.
3. Past and future Medical Expenses
a. Collateral source rule: If damages are partly paid by a third party, you don’t
subtract it from recovery. (i.e. insurance payments, discounts, charity care, etc.)
4. Future lost wages
a. Based on class? Related to earning capacity
5. Discount Rate – Future Damages/Present Value
a. Inflation -- for medical costs, wages, and all other aspects of damages
b. Only damage award taxed is punitive damage award
6. Mitigation of Damages
a. A Π unreasonably fails or refuses t o undergo medical treatment which would
alleviate the medical difficulties, the Δ may be relieved o the responsibility for
damages.

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 i. Doctrine of Mitigation of Damages – a jury will be entitled to validate a Π’s
refusal of surgery with substantial risks where a RP might also decline the
treatment.
7. Property damages
i. If the personal property is destroyed, the usual measure of damages is the
market value of the goods as of the day of the accident. If merely damages,
the recovery is measured by the diminution in market value as of the day of
the accident.
 Π may be entitled to repair costs, diminished value, costs of renting or
leasing substitute goods.
 If property was used for production of profit, Π may be entitled to recover
lost profits during the period that the property was out of service or cannot
be replaced.
VII. Defenses and Immunities
A. Contributory Negligence
1. Arises when the unreasonable conduct of the Π contributes to the Π’s harm.
a. If Π is found to be contributory negligent, he is barred from recovery
i. To establish this defense, the Δ must prove by a preponderance of the
evidence that the Π fell below the relevant standard and was the “cause” of his
injury.
 Exceptions:
1. Last Clear Chance – a negligent Π could still recover fully against a
negligent Δ upon proof that the Δ was more culpable because he had
the last chance to prevent the harm
2. Cannot be used as a defense if Π’s fault was based on a statue
a. E.g. Child labor law
B. Comparative Fault
1. Where both a Π and Δ are at fault, they should share the responsibility rather than
have it fall entirely on one party.
a. Pure Comparative Fault
i. Π recovers damages no matter how much at fault the Π is
 Π gets 2% recover if he is 98% at fault
b. Modified Comparative Fault
i. Π’s recovery is barred if the Π’s fault is greater than the Δ’s or as great as the
Δ’s
 Π 40% at fault, recovers 60%
 Π 60% at fault, recovers nothing
c. Hoffman v. Jones – Ct held that Π will no longer be denied recovery because of
his contributory negligence
2. Factors in Assigning Percentages of Fault
a. Wassell v. Adams – small town girl staying a hotel opens door to stranger who
sexually abuses her. Ct found her 97% at fault, recovery barred to 3%.