Fall 2010 Torts (Wright, E)
1. Duty ß is there any? [negligence v. liability]
Ordinary care: the kind and degree of care which prudent and cautious men would use , such as is required by the exigency of the case, and such as is necessary to guard against probable danger.
> The standard represents the general level of moral judgment of the community, what it feels ought ordinarily to be done, and not necessarily what is ordinarily done…
Reasonable care: care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by evidence
A. If YES: (Affirmative Obligations to Act)
i.What type?
“reasonable standard of care under the circumstances”
iii. Custom
A. does not decide one way or the other, it can help if custom is considered “reasonable” and encourages safety.
B. Except in malpractice cases, courts have rejected the argument that a prevailing custom defines a standard of care
C. Timarco v. Klein where shower door shards broke and it was customary to install them upon request, but that was unreasonable
D. Custom SETS the standard of care within a specific locality; in order to establish care in these cases, you actually have to bring in someone that testifies what is customarily done (medical)
a. If you don’t do that as a plaintiff, then you will lose your case.
iv. Statute
does it set a CLEAR STANDARD OR CARE and (1) protects this class of people from (2) this type of injury [ UNLESS SECONDARY PURPOSE] (3)If Applicable, still issue is there is any “excuse” –recall TEDLA
A. Martin v. Herzog walking driving w/ no lights on and did not stay on t heir side of road, killed Ps husband, statute says you have to have your lights on after dark
i. To omit the safeguards provided by law for the benefit of another that he may be preserved in life or limb, is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform. That is how the established rule is in this state.
B. Tedla v. Ellman walking on the wrong side of the street b/c no sidewalk both parties violated the statute
C. if there is a violation and no excuse, then that’s “negligence per se”
D. Examples of applicable statutes:
e.g. “riding on Sunday” case. Established for social order, not public safety. (PLATZ)
e.g. “fencing” supposed to be required to prevent animals from getting in with one another, not for preventing animals from going overboard (Gorris)
e.g. “key in the ignition” statute (p.84) –you won’t be told why the statute was passed, you have to logically deduce the reason for which it might be passed
· other factors in addition to prevent theft (e.g. skid row location, truck near a recess school yard)
· attractive nuisance : states that landowner may be held liable for injuries to children trespassing on the land if the injury is caused by a hazardous object or condition on the land that is likely to attract children who are unable to appreciate the risk posed by the object or condition. The doctrine has been applied to hold landowners liable for injuries caused by abandoned cars, piles of lumber or sand, trampolines, and swimming pools
o Excuse doctrine
§ Excuses defendant’s conduct of violating statute
ú Sudden emergency not of actor’s making (swerve to avoid hitting child, but goes into oncoming traffic)
ú Compliance = greater danger than violating
ú Actor does not know or have reason to know of acting diligent
ú Actor incapacitated in some manner making violation reasonable
ú After reasonable efforts, actor unable to comply
special relationship
Characteristics of special relationships
(1) P who is particularly vulnerable & dependent on D and/or
(2) D who holds custodial or other power position over P and/or
(3) P who lacks ability to protect him- or herself & expects protect sfrom D and/or
(4) D who derives some existing or potential economic advantage from P
e.g.
(1) Parent/child
(2) Employer/employee
(3) Doctor/patient
(4)Jailers & other custodians/prisoners & wards
(5) Schools/pupils
(6) Co-adventurers (e.g., mountain climbers v. companions on a social venture)
(7) Common carrier/passenger
(8) Innkeeper or restaurant owner/guest
(9) Shopkeepers/shoppers
(10) Possessors of land who hold it open to public/guests
A.social host
1. creating a dangerous situation (Harper v. Harman letting a 20 year old dive off a boat into shallow waterà exception because
· i. : a special relationship giving rise to a duty of care to warn is only found on the part of common carriers, innkeepers, possessors of land who hold it open to the public, and persons who have custody of another person under circumstances in which that other person is deprived of normal opportunities of self-protection.
B.child
I. Parents are rarely liability for their children UNLESS the children do something beyond their ability o in failing to exercise control over a dangerous child
A. Children are held to a blended standard (i.e. under 3 years old (mastland 1993) 4 years old (Ellis 1953) or 6 to 7)
B. When children engage in adult activates, court apply adult standards (e.g.:
Dellwo v. Pearson 1961 minor driving a motorboat
Goss v. Allen 1976 NOT responsible because skiing is an activity enjoyed by all ages not just adults
Stevens v. Venstra (1997) Student driver responsible because activity is so dangerous that risk must be borne to the beginner rather than the innocent victims and lack of competence is no excuse
II. Consider AGE, INTELLIGENCE, SKILL LEVEL
III. School Policies not followed (Uhr scoleosis factors)
· THE TEST FOR AVAILABILITY OF A PRIVATE RIGHT OF ACTION
o when a statute is silent, courts have to determinate whether a private right of action may be fairly implied.
§ 1. Whether P is one of the class for whose particular benefit the statute was enacted
§ 2. Whether recognition of a private right of action would promote the legislative purpose
§ 3. Whether creation of such a right would be consistent with the legislative scheme.
o
C.emergency/rescue situation
o I. I. Levey v. DeNardo (1999) person confronted with a sudden and unforeseeable occurrence because of shortness in time to react cannot be held to the same standards as someone who is in a foreseeable occurrence
o Doctrine: some jurisdictions say that if you’re in an emergency, as long as you act with “honest judgment”
o Trend of authority: what you have to do is act reasonably under the circumstances, and the circumstance is that it is an emergency. You simply have to act reasonably given you had l ittle time to react, you acted reasonably under those emergency circumstances.
o BUT if you start to act and stop…then LIABLE because you CREATE RELIANCE (or if its your fault from “taunting”… YANIA V. BIGAN case where the guy jumped from being taunted..unless you stopped for a reasonable reason like yu were going to drown
o LOWERS THE CARE TO “HONEST JUDGMENT” OR REASONABLE CARE GIVEN THE CIRCUMSTANCES OF THE EMERGENCY BUT EXCUSE ELIMINATED IF ITS CREATED BY D
D. employer/employee
1) is this an employee? 2) is this within the scope?
A. Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator.
e.g. Christiansen v. Swenson (security guard going to get soup and got into a car crash—acting within the scope of her employment)
Vicarious Liability Rules:
employee v. independent contractor
someone driving a bus= employee; someone who provides their own tools, they’re hired, they aren’t instructed by contractee (auto shop), get paid per-job
BLACK LETTER LAW:
1.If person is a “servant” (emee) of the emier THEN
Emee= vicariously liable for emees tortuous acts UNLESS
2. Emee was acting outside the scope of employment
(how decide? à see Birkner
If emee is an independent contractor, then not vicariously liable UNLESS:
1. Non-delegable duty (brake repairman case in CA)
o Brake repair man is a contractor; only way you could be held
o liable is:
§ Even though the brake repair man should be, you should be held responsible too if you hadn’t have taken the precautionary steps
§ But if you have every reason to think that this person does good work
§ BOTTOM LINE: you own a car, there is an obligation for the brakes to be in good repair, you cannot delegate that duty to someone else and get let off the hook
2. Apparent authority (doctor/physician ROESSLER v. NOVAK failed to see absess in abdomen, radiologist was a contracter but patient didn’t know )
· Apparent Auth. exists ONLY if all three elements are present:
o 1. Representation by the purported principle
o 2. A reliance on that representation by a third party
o 3. A change in position by the third party in reliance on the representation
B. REMINDER OF BIRKNER TEST:
1. Employees conduct must be of the general kind the employee is hired to perform as opposed to a wholly involved personal endeavor
2. The employee conduct must occur substantially within the hours and ordinary spatial boundaries of the employment
3. Employee’s conduct must be motivated at least in part by the purpose of serving the employers interest
In comparison to Birkner test, CA policy holds the following as the policy goals of respondeat superior:
· 1. Preventing future injuries
· 2. Assuring compensation to victims
· 3. Spreading the losses cause by an enterprise equitably
E. common carrier
I. “utmost care, so far as human skill and oversight can go (Kelly v. manhattan)
II. constructive notice: company should have known that there was a problem e.g. “black banana peel” cases”
III. briefcase falling from the overhead compartment (ANDREWS V. UNITED AIRLINES, INC)
F. Patient-Doctor Relation and Liability (duty to warn)
1. Tarasoff: poddar threatened to kill P and then ACTUALLY killed P: The protective privilege ends where the public peril begins”
v. “special case of medical malpractice”
1. Specialized knowledge and skill must be taken into account
2. However, doctors set their own legal standards of reasonable conduct.
3. Plaintiff’s usually need to bring in experts to inform layman juries
· 3. The “similar locality” rule is outdated and required that the “same degree of diligence and skill which is commonly possessed by other members of the profession who are engaged in the same type of practice in similar localities having due regard for the state of scientific knowledge at the time of treatment.
o RESTRICTIVE! It legitimizes a low standard of care in certain smaller communities and fails to address a conspiracy of silence situation in a locality
o
o Geographical limitations no longer apply; board certifications are nationalized
4. Informed Consent
Matties v. Mostromanaco hip replacement bed rest
· In sum, physicians do not adequately discharge their responsibility by disclosing only treatment alternatives that they recommend
TEST: whether a reasonable patient in the patient’s position would have considered the risk material (objective)
vi. Landowner/Operator
GR: not to willfully or wantonly harm trespassers
1. is Defendant owner/occupier?
2. was Plaintiff on Defendant’s land when injured?
3. what is Plaintiffs “status” when hurt? Trespasser? Licensee? Invitee? Public vs. Business?
4. THEN- What “duty” owed to Petitioner?
Entrant is a trespasser until given permission to enter. All persons who enter with permission are licensees until the possessor has an interest in the visit such that the visitor has reason to believe that the premises have been made safe to receive him—then they are invitees. Business invitee is like a repair man.
DUTIES:
· Duty to Trespasser: none
· Duty to Licensee: make safe dangers to which the possessor is aware (you do have a duty but it is simply to warn or make safe that it’s reasonable that the other person would not know about [could be obvious danger])
· Duty to invitee: exercise reasonable care to protect against both known dangers and those that would be revealed by inspection (affirmative duty to check out your property and go out and find any dangerous conditions)
NOW CA as of 1968 under (Rowland v. Christiansen abolished status difference and issued “common duty of care” to non-trespassers
(heins v. Webster county dress up santa)
PRO abolishing classifications: no longer can be justified in an urban society; foreseeablility should be controlling factor, value in predictability
CON decrease predicibility and ensure each case would be decided on facts and lanfowners would be less able to guard against risks
SPLIT b/t common law or Rowland
· Factors to be considered in evaluating reasonable care of visitors:
o 1. Forseeability or possibility of harm
o 2. Purpose for which the entrant entered the premises
o 3.time, manner, circumstance under which entrant entered
o 4. The use to which the premises are being put
o 5. Reasonableness of inspection, repair, warning
o 6. The opportunity and ease of repair or correction or giving of warning
o 7. The burden on the land occupier and/of community in terms of inconvenience or cost in providing adequate protection.
SOCIAL GUESTS: duty to warn against “open and obvious fangers” but now Cts focus on “whether notice was enough to make premises reasonably safe”
-recreational uses
CHILD TRESPASSERS
When you artificially set up a situation that is dangerous, you’re still obligated, but they still left out natural conditions, but over time, you’re going to see more and more situations where you have control of natural situations.
o A. place where the condition exists is upon which possessor knows children are likely to trespass AND
o B. condition is one that involves unreasonable risk of death or serious bodily harm to children AND
o C. children because of their youth do not discover the condition or realize the risk involved AND