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PART 1: NEGLIGENCENegligence: failure to heed a duty of reasonable care owed to another that causes injury to that other Prima Facie Case 1) P has suffered an injury 2) A owed a [reasonable] duty to a class of persons including P to take care not to cause an injury of the kind suffered by P 3) A breachedthat duty of care 4) A s breach was an actual and proximatecauseof P s injury

INJURY1) Physical harms (bodily harms, damage/destruction to tangible property) 2) Economic loss/loss of wealth more complex 3) Emotional distress more complex

DUTY1) DEFINITION: a) Degree of care which an ordinarily reasonable and prudent person exercises under the same/similar circumstances. Should exercise care necessary to avoid injury to others reasonable person standard. b) Requires negligence P to est that D owed P, or a class of persons including P, an obligation to take care not to cause injury that P suffered 2) Objective test. 3) Duty owed to foreseeable P. 4) Duty is a ques of law for court must balance 3 factors p.79: a) Relationship between the parties b) The reasonable foreseeability of harm to the person injured c) Public policy concerns 5) Easy duty cases:D and P satisfied that D owed P duty won t spend much time on the duty issue 6) No duty to economic losses unconnected to physical harm; exception malpractice, cause someone to lose $ 7) EVOLUTION OF DUTY RULES a) Winterbottom v. Wright (1842): established privity rule; carriage builder sued by employee of company that bought carriage. Ct rejected Winterbottom s claim, based judgment on remoteness of event from careless act Wright committed. b) Thomas v. Winchester (1852): Winterbottom rule in the US limited, imminently dangerous products. Thomas sued Winchester for mislabeling bottle of poison, causing her to be accidently poisoned. Ct ruled for P, danger could be foreseen. c) Heaven v. Pender (1883): no more privity reasonable foreseeability. i) Reasonable foreseeability: so long as physical harm to P is a reasonable foreseeable consequence of an actor s careless conduct, the actor owes duty to take care not to cause such harm to P (1) If foreseeable that someone could get injured by what you re doing, you have a duty to take care in what you are doing (2) Would a person of ordinary sense recognize that, if she pursued the conduct at issue w/o vigilance for physical well-being of others, her conduct would pose a meaningful risk of physical injury to persons in the position of P? d) MacPherson v. Buick Motor (1916): struggle with privity rule over, sets privity aside obligation to one another cannot be limited by agreement. Ruling is not no privity. Tort will be solved by tort. Case is about relationship between contract and tort law. i) Principle of Thomas not limited to imminently dangerous products. Cardozo s 3 part test: (1) Reasonable certainty of danger (2) Know that used by others (3) No further inspection likely ii) Cardozo s 3 part test is now reasonable foreseeability iii) Cardozo s reasoning in case: (1) If nature of a thing is such that is is reasonably certain to place life and limb in perid when negligently made, it is then a thing of danger. (2) If to danger there is added knowledge that thing will be used by person others than purchasers, and used without new tests, then irrespective of contracts, manufacturer is under duty to make thing carefully. iv) Rule: One who invites another to make use of an appliance is bound to exercise of reasonable care. v) If danger was to be expected as reasonably certain, there was a duty of vigilance. Amanda Lee, Hershovitz Torts, Fall 2009 1

e) Reasonable person standard: Whether injury of the type suffered by P was foreseeable to a reasonable person in the position of D. i) Mussivand v. David: D could forsee that being infected at the time he had sex with P s wife, would infect P. D s duty ended when P s wife knew she was infected. (1) D has duty to use reasonable care to avoid infecting others. (2) Public policy: health of people is an economic assets. Laws of state framed to protect people. (3) Additional policy issue: Cts don t want adultery. (4) Amatory torts anti-heart balm statutes (a) No negligence for: (i) Criminal conversation (adultery) (ii) Alienation of affections (iii) Seduction ii) Doe v. Moe: Moe broke D s penis. Doe sued that Moe had duty of care while having sex with him. (1) Policy: Cts don t want more cases like this. 8) QUALFIED DUTIES OF CARE a) Affirmative duty/duty-to-rescue and protect i) Unreasonably failed to provide assistance or protection to P b) Premises liability i) Permitted or maintained unreasonably dangerous conditions on property in his or her possession c) Pure economic loss i) Acted without reasonable care for P s economic prospects d) For these types of cases, duty is in play i) AFFIRMATIVE DUTY/DUTY-TO-RESCUE AND PROTECT (1) Nonfeasance: where one fails to perform at all, doing nothing (a) P must establish special circumstance to prevail on claim of negligent nonfeasance presence of absence or preexisting relationship b/t P and D. (2) Misfeasance: one performs duty inadequately/poorly (a) duty to take care not to cause foreseeable injury applies only to misfeasance (3) No duty to rescue(nonfeasance) (a) General rule: an individual does not have a duty to aid or protect another person, even if he knows that person needs assistance. But if undertake rescue, must act reasonably. (i) Ex: Osterlind v. Hill p.76:D rented canoe to drunk P. Canoe overturned and D did not help P. P drowned. a. Ct ruled that D had no legal duty to help P. There was no relationship between D and P. (b) Exceptions to rulep.79: (i) Exceptions under 314A of Restatement: special relations giving rise to duty to (a) aid after knowing one is ill/injured and to care for them until they can be cared for by others; and (b) protect one against unreasonable risk of physical harm p.79 a. Common carrier under duty to its passengers b. Innkeeper under duty to its guests c. Possessor of land who holds it open to the public is under duty to those who enter in response to invitation d. One who is required/voluntarily takes custody of another under circumstances to deprive other of his normal opportunities for protection is under duty. 1. Exception applies only while relationship exists 2. Duty to take affirmative steps to rescue person in peril when one proceeded against is master or an invitor or when the injury resulted from use of an instrumentality under the control of D a. From Ayres case boy injured by escalator in department store and employee s failure to stop escalator p.80 3. Duty to one in peril on D s premises even though peril created w/o negligence on part of D 4. Business is not required to take any action beyond that which is reasonable under the circumstances; duty to exercise reasonable care under the circumstances (ii) Ex: Baker v. Fenneman & Brown (Taco Bell) p.77: P bought drink at Taco Bell and then fell backward, hitting head on floor and knocked unconscious and began having convulsions. Then woke up, stood up and fell again, knocked unconscious. P claims no one helped him. 1. Taco Bell falls under 314A innkeeper under duty to is guests

Amanda Lee, Hershovitz Torts, Fall 2009

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Ct ruled that D had duty to give aid to one who is ill/injured, even though injury due to natural causes, pure accident, acts of third person, or to negligence of P himself. 3. Public policy suggests that D had duty to reasonable care. 4. Imposing on businesses a duty to provide reasonable care even when the business is not responsible will rarely force a business to act in circumstances in which it should not have al ready acted. a. A business won t just look at a situation and determine whether injury was caused by a business before helping. (iii) Ex: Farwell v. Keaton p.87: wingman relationship some courts have held an established friendship b/t D and P will suffice to support a duty to rescue 1. P and D were friends, got beat up. D left P at front door of house. Next morning found dead. D had duty. (iv) Exception if imminent peril to P caused by D p. 84 1. When actor knows or should know that he has by his own conduct caused the victim to be physically injured and at risk of further injury, or to be in imminent danger of physical harm. Actor has duty to make reasonable efforts to prevent victim for suffering further harm, or to prevent risk of harm from being realized. (v) Exception if voluntary undertakings: if D has volunteered to protect another from physical injury, property damage, or rescue another from physical peril 1. Once rescue is voluntarily undertaken, rescuer has a duty to victim to perform rescue with reasonable care 2. Good Samaritan statutes: shields people who attempt to rescue from liability for negligence a. Tend to be limited to off-duty professionals, like doctors, firefighters, etc. (b) Why no duty to rescue? It s morally wrong not tot help, but can t legally enforce (i) Epstein p.83 1. Law would violate basic principles of liberalism if it required more of individuals than simply refraining from injuring others; 2. Impossible to draw a principled line b/t duty to rescue someone in imminent peril and a more general duty of beneficence (ii) Good default rule rescues are risky ii) PREMISES LIABILITY: duty you owe depends on the person s status in relation to your property, in regards to conditions of property, not activities on property.Who Trespasser y No permission y y Which Conditions Attractive nuisance Constant trespassers y y y y y What No wanton/willful harm Make safe for children Constant trespassers treat like licensee No wanton/willful harm Make it safe or warn of hidden dangers

2.

Licensee

y y

Permission Ex: social guests

y y

Invitee

y y

Permission Mutual benefit

y y y

Conditions you know about Or have reason to know, not same as should have known No dut