Torts, Sonia Suter, Fall 2003 — Outline — David Ludwig

Duty

  • Overarching Themes
  • Duty to the Worldat Large (Palsgrafdissent)
  • Duty is usually not an issue
  • Except: landowner, nonfeasance, 3rd party, policy reasons to limit duty, common law limitations
  • Misfeasance vs. Nonfeasance
  • Not always clear
  • If clear misfeasance, always duty (creation of risk)
  • If clear nonfeasance, duty if:
  • Special relationship
  • Common carriers, innkeepers, owners of land open to public, custodial relationships
  • Creation of risk
  • Policy considerations: individual autonomy, limit liability, burden on Cts
  • Duty to Aid/Rescue/Prevent Harm
  • Harperv. Herman
  • Facts: Pl was a guest on D’s boat when he dove into shallow water and severed his spinal cord, court found for D (granting summary judgment).
  • Affirmative duty to act (in cases of nonfeasance) only arises in cases of a special relationship.
  • Notes after Harper
  • Creation of harm/risk through nonfeasance must be negligent to establish duty—courts are changing view on this (need not be negligent) because once you create risk it seems like misfeasance.
  • Promises to help someone and not following through is nonfeasance but there is a duty on the grounds of promissory estoppel (in some jurisdictions).
  • Farwell v. Keaton
  • Facts: D (Siegrist not Keaton) was Pl decedent’s friend, the two were drinking together, they tried to follow some girls and decedent was beaten by girls’ friends, D found decedent and put ice on his head and drove him around, he lost consciousness and D left him in car in his driveway, he died a few days later, court found for Pl.
  • Once you begin to assist someone you have a duty of care. (Courts are split on whether you have to leave person worse off.) — Court says that this is a special relationship, but it has more to do with voluntary assistance than with common endeavor special relationship.
  • Restatement 2d of Torts § 324: one who, being under no duty to do so, takes charge of another who is helpless is subject to liability caused by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or (b) the actor’s discontinuing his aid or protection, if by doing so he leaves the other in a worse position than when the actor took charge of him.
  • Duty to 3d Parties / To Control Conduct of Others
  • Tarasoff v. Regents of the Univ. of California
  • Facts: Poddar was receiving therapy from D and he told therapist that he intended to kill Pl, he was temporarily detained for this, then released, then he killed Pl, no one warned Pl or her family of the danger, court found for Pl (reversing summary judgment).
  • Nonfeasance could be in failing to warn, misfeasance could be in beginning to aid then stopping; court finds duty in special relationship (special custodial relationship between D and 3rd party implied duty to Pl) — see § 315 below.
  • Foreseeability of harm to 3rd party + special relationship = duty to warn or control conduct of 3rd party.
  • The court lists factors that are said to play a role in the determination of whether to impose a duty:
  • Foreseeability of harm to Pl
  • Connection between act and harm
  • Moral blame attached to D’s conduct
  • Policy of preventing future harm
  • Burden to D
  • Consequences to the community
  • Availability of insurance
  • Balancing patient/therapist confidentiality with the necessity of preventing danger.
  • Compare with Reisner v. Regents of the Univ. of California: D doctor owed duty to third-party plaintiff when D didn’t tell his patient that she had HIV until after she had intercourse with P.
  • Compare with Pate v. Threlkel: D owed duty to his patient’s children to inform the patient that her cancerous condition was genetically transferable.
  • Compare with Clarke v. Hoek: D didn’t have duty to prevent surgical team malpractice because his role was limited to observing and reporting on the operation (i.e. no special relationship to the patient).
  • Restatement 2d of Torts § 315: a duty of care may arise from either (a) a special relation between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation between the actor and the other which gives the other a right of protection.
  • Reynolds v. Hicks
  • Facts: Minor nephew was drinking at D aunt & uncle’s wedding, nephew was involved in auto accident on the way home, court found for D (granting summary judgment).
  • Nonfeasance could be in failure to prevent drinking, misfeasance could be in providing booze (creating a risk). — Policy was decisive factor.
  • Court draws distinction between social hosts and commercial vendors because the latter has profit interests and is more capable of monitoring the alcohol; also the danger of unlimited liability.
  • Duty Landownersto Occupiers
  • Liability imposed on possessor of land, not necessarily owner.
  • Majority of jurisdictions retain traditional 3-category approach (although some have eliminated distinction between invitee and licensee, and California has abolished all distinctions):
  • Trespasser: enters or remains on land without possessor’s consent or permission
  • No duty of reasonable care regarding conditions or activities on premises
  • Duty to refrain from intentional, willful, wanton conduct
  • Exceptions: discovered trespasser, frequent trespasser, child trespassers (if known to possessor)
  • Licensee: has permission to enter the premises but is not invitee (social guest)
  • Duty to make safe known dangers
  • Duty to refrain from intentional, willful, wanton conduct
  • Invitee: on premises with possessor’s permission and land is open to the public OR business reasons / material benefit to possessor
  • Duty of reasonable care to discover dangers and protect against dangers of which possessor is or should be aware
  • Duty to refrain from intentional, willful, wanton conduct
  • Carter v. Kinney
  • Facts: D was hosting a bible study for church members, D shoveled snow the night before but ice gathered through the night, when Pl arrived in the morning he slipped on ice and broke his leg, court found for D (granting summary judgment).
  • Social guest = licensee (not invitee). So no duty to protect against unknown dangerous conditions.
  • Heins v. WebsterCounty
  • Facts: Pl went to visit daughter at work at the hospital, when leaving he slipped on ice at the entrance and injured his hip, court found for Pl (reversing judgment for D and remanding for new trial based on new standard).
  • Court eliminates licensee-invitee distinction because it is arbitrary, there is no additional burden in making a duty to exercise reasonable care for all invited guests, traditional classifications are outdated and shield negligent parties based on an arbitrary distinction.
  • New standard in Nebraska (but not everywhere) is duty to exercise reasonable care in the maintenance of premises for the protection of all lawful visitors.
  • Factors to be considered to determine reasonable care under new Nebraska standard:
  • Foreseeability/possibility of harm
  • Purposes for entering premises
  • Manner and circumstances for entering
  • Use to which the premises are put or expected to be put
  • Reasonableness of the inspection/repair/warning
  • Opportunity and ease of repair/warning
  • Burden or cost/inconvenience to possessor and community in providing protections
  • Posecai v. Wal-Mart Stores, Inc.
  • Facts: Pl was robbed in parking lot after shopping at Sam’s Club, expert witness testified that it is a high crime area but that is disputed, no other stores in the area have security guards in the parking lot, court found for D (dismissing complaint).
  • Business owners have a duty to implement reasonable measures to protect their patrions from criminal acts that are foreseeable.
  • Balancing test to determine business owner duty: balances foreseeability of harm and gravity of harm against burden imposed on business. (B < PL)
  • Duty Among Family Members (Parental Immunity)
  • Broadbent v. Broadbent
  • Facts: Mom was swimming with toddler, she ran inside to get the phone and came back out to find son on bottom of pool, son suffered brain damage, father is suing wife on behalf of son to get insurance money, court found for Pl (vacating summary judgment and remanding for trial).
  • Traditional rationales for parental immunity (all debunked by court here):
  • Disturbs domestic tranquility
  • Danger of fraud & collusion
  • Deplete family resources
  • If child dies early, parent gets settlement
  • Interferes with parental care, discipline, and control
  • Arizona Sup Ct establishes standard of reasonable and prudent parent in a similar situation
  • New York: if parent is in supervisory role then parental immunity.
  • Varies by jurisdiction
  • Duty to Avoid Emotional Harm (Emotional Distress)
  • Direct Victims
  • Falzone v. Busch
  • Facts: Husband was standing in field adjacent to road and Pl wife was sitting in car nearby, D veered off highway heading straight for Pl causing her to fear for her safety, Pl became ill and required medical attention, court found for Pl (reversing summary judgment).
  • Old rule was to deny recovery for non-physical harms; reasons for this old rule:
  • Harm not the natural/proximate result of negligent act (court responds that medical evidence shows that emotional harm can produce physical effects)
  • Since this type of harm has never been tried in courts before, courts must conclude that no liability exists (court responds that common law must evolve)
  • Policy reasons: flood of litigation, damages easily feigned, damages rest on conjecture and speculation (court responds that courts cannot deny recovery just because they will be inconvenienced)
  • Zone of Danger test (this was changed by Portee): negligence causes fright from a reasonable fear of immediate personal injury, which fright is adequately demonstrated to have resulted in substantial bodily injury or sickness. — still tied to risk of physical harm
  • Gammon v. Osteopathic Hospital of Maine, Inc.
  • Facts: Pl’s father had recently died and he was given a bag which was supposed to be his father’s effects but actually contained a severed leg, Pl freaked out and had nightmares and his relationships suffered, court found for Pl (reversing directed verdict and remanding).
  • New rule (old rule was to deny recovery unless distress resulted in physical injury):
  • Harm reasonably expected by an ordinarily sensitive person (no eggshell Pl)
  • Severe emotional distress (physical symptoms not necessary)
  • Indirect Victims
  • Builds on prior negligence claim (first you show duty,breach,cause,damages for injured party, then go through Portee factors & zone of danger test with respect to indirect victim — don’t need separate duty,breach,cause,damages analysis for indirect victim)
  • Portee v. Jaffee
  • Facts: Pl’s son trapped in elevator and died slowly in her presence, after death Pl became depressed and attempted suicide which resulted in physical damages, court found for Pl (reversing summary judgment).
  • Test for negligent infliction of emotional distress (for indirect victims):
  • Death or serious injury caused by D’s negligence
  • Marital or familial relationship between Pl & injured person
  • Observation of the death/injury at the scene of the accident (proximity, contemporaneous)
  • Resulting severe emotional distress
  • New York Zone of Danger rule (Bovsun v. Sanperi):
  • Members of immediate family of injured person
  • Who were in the zone of physical danger
  • With severe and verifiable emotional distress
  • Loss of Consortium is established in the same way as Indirect Victim

Breach

  • Historical Development of Fault
  • Early Common Law Pleading Requirements (no longer used)
  • Writ of Trespass
  • D’s voluntary conduct caused a forcible, direct, and immediate invasion of Pl’s person/property; don’t have to show fault or actual damages
  • Writ of Trespass an the Case
  • Not immediate/forcible/direct; have to show fault (wrongful intent or negligence) and actual damages
  • Brown v. Kendall
  • Facts: D accidentally hit Pl in the eye with a stick while trying to break up a dog fight, court found for D (reversing judgment for Pl based on bad jury instructions; remanded).
  • D claims that he was acting with due care; this was an effort to change the law from the common law writ system (which was basis of trial Ct jury instructions).
  • This case establishes the theory of negligence and introduces fault.
  • Standard of Care: ordinary care = due care
  • What a reasonable person would do
  • Appropriate under the circumstances
  • Contributory Negligence: under old system, contributory negligence meant no liability/recovery.
  • Factors and Equations to Assess Reasonableness (The Standard of Care)
  • Adams v. Bullock
  • Facts: Pl’s son was walking across bridge swinging long wire, bridge was above trolley tracks/wires, wire contacted wire and boy was burned, court finds for D trolley company (dismissing complaint).
  • Factors for Assessing Reasonableness (reasons why complaint was dismissed):
  • Feasibility (cost/effectiveness of preventative measures)
  • Foreseeability (probability of harm; reasonably foreseeable)
  • (as foreseeability increases, feasibility decreases)
  • Value of Activity (social cost of curtailing the activity)
  • Danger (greatness of potential harm)
  • Custom
  • Compare with Braun v. Buffalo Gen. El. Co.: it was foreseeable that persons might come into contact with D’s electric wires that were strung over a vacant lot in developing neighborhood.
  • United States v. Carroll Towing
  • Facts: Pl’s ship (w/ US’ goods) was moved in crowded harbor by towing company D, lines were not readjusted properly and ship broke loose ramming another ship and sinking, Pl’s bargee could have saved ship but he was AWOL, court found for Pl but with reduced damages based on contributory negligence.
  • Learned Hand Equation: if B < PL then liability (if cost of prevention < cost of accident/harm)
  • B = burden/cost of adequate precautions
  • P = probability of harm
  • L = gravity of injury
  • Other Tests for Assessing Negligence/Reasonableness:
  • (In analysis, use Adams factors or Hand formula from Carroll Towing)
  • Cardozo’s test in Green v. Sibley, Lindsay & Curr (D mechanic did not breach a duty of care in failing to announce his presence on the floor next to Pl customer while D was fixing cash register):
  • Community Expectations test
  • Lord Reid’s test from Bolton v. Stone (Pl struck by ball driven out of cricket field):
  • Liability if risk (PL) is high. (No liability if risk is so small that a reasonable person would have thought it right to refrain from taking preventative measures.)
  • The Reasonable Person
  • Bethel v. New York City Transit Authority
  • Facts: Pl was hurt when seat on bus collapsed, evidence that the bus was inspected 11 days prior to accident, trial Ct found for Pl, higher court reversed and remanded after abolishing “highest degree of care” standard for common carriers.
  • Extraorodinary care / highest degree of care standard is outdated; “reasonable care under the circumstances” is sufficient to add extra care requirements to highly risky activities.
  • Common carrier: higher standard, varies by jurisdiction, can be factored in to “under the circumstances”
  • New York got rid of it, but California kept it (unclear how to apply it in California)
  • Reasonable = liable if you should avoid harm / Higher = liable if you can avoid harm (BPL+x)
  • Reasonable Person Under the Circumstances
  • Based on D’s conduct compared to the conduct of a reasonable person (objective standard)
  • Jury question
  • Exceptions:
  • Distinct, apparent, physical disabilities
  • Held to standard of reasonable person with that disability
  • Children
  • < 7 = conclusive presumption that child is unable to comprehend risk
  • 7 – 14 = rebuttable presumption that child is unable to comprehend risk
  • Exception: child engaging in adult activities (i.e. driving a car)
  • Emergencies
  • Held to standard of reasonable person confronted with that emergency
  • Common carriers (see above) — evolving area of law
  • No exception for: mental handicaps, gender, elderly
  • Role of Judge and Jury in Assessing Negligence
  • Baltimore & Ohio Railroad Co. [D] v. Goodman [Pl]
  • Facts: Pl’s husband was driving a truck that was hit by a train at a railroad crossing, decedent’s view of tracks was obstructed and there may have been an emergency, court found for D (dismissing case as a matter of law).
  • Holmes says that ordinarily questions of due care are left to jury, but where a standard of due care is clear it should be established by judge as precedent. Here, since people know railroad crossings are dangerous, decedent should have gotten out of truck and looked for train, therefore he proceeded at his own risk (contributory negligence).
  • Pakora v. Wabash Railway Co.
  • Facts: similar to Goodman except here distance between safe place to park car and RR tracks was greater, court found for Pl (reversing summary judgment and remanding for trial).
  • Cardozo distinguishes Goodman precedent by saying that “get out and look” standard was dicta and also that Pakora represents extraordinary circumstances to which Goodman rule does not apply. Since this case is unique it should go to jury.
  • Andrews v. United Airlines, Inc.
  • Facts: Pl injured by briefcase that fell from overhead bin after flight, airline personnel were not responsible for stowing briefcase or opening bin, court found for Pl (reversing summary judgment).
  • Since D knew of risk and common carriers are subject to heightened duty, there is sufficient evidence to go to trial; jury can look at evidence to determine whether D did everything possible to eliminate risk and whether safety measures are prohibitively expensive.
  • Role of Custom
  • Trimarco v. Klein
  • Facts: D injured when he fell through glass shower door, evidence presented that it was custom to use plastic or safety glass, court found for Pl (reversing summary judgment & remanding).
  • Lack of compliance with custom is not necessarily negligence; custom factors into reasonableness test (goes to feasibility and foreseeability). There is sufficient evidence to go to jury.
  • The T.J. Hooper
  • Facts: Tug boat sank because it didn’t have a radio to warn of storm, no custom of having radio on board.
  • Custom is not definitive of standard of care; if the majority follow an unreasonable custom, reasonable person standard trumps custom; custom is only useful as indicative of what a reasonable person under the circumstances would do.
  • Role of Statutes (when criminal statutes don’t mention tort liability)
  • Martin v. Herzog
  • Facts: Car (D) and buggy (Pl) collide while rounding a corner on a dark night, both were violating highway statutes, D was not keeping to the right side of the road and Pl was traveling without lights, court found for D (dismissing case on grounds of contributory negligence).
  • Court found that traveling without lights amounts to contributory negligence; jury has no power to relax duty requirements (by finding for Pl despite contributory negligence on the basis of the fact that Pl’s statutory violation was more dangerous than D’s); therefore contributory negligence was found as a matter of law.
  • Violation of a statute is negligence per se (w/ possibility of excuse).
  • Tedla v.