Robinson Fall 2012 Torts Outline

Duty of Care: Physical Harm

General Rule: always go through all 3
1. Strong default rule: D owes P a duty of care if Ds conduct creates a risk of harm. (3
rd

restatement) Most in favor of plaintiff (2. Thompson v. Kaczinski)
2. D owes P a duty of care if there is a foreseeable risk of harm to P (3. Brown v. Kerr)
3. D owes P a duty of care if there is a foreseeable risk of harm to a foreseeable P (4. Palsgraf)
1. Special Duty Issues: Omissions/Nonfeasance
There is generally no affirmative duty to act (Ex: if you walk by a baby on a railroad with a train
about to hit the baby, you do not have a duty to rescue the baby) (5. Harper v. Herman)
Exceptions:
If there is a special relationship: innkeepers, common carriers, possessors of public land,
persons who have custody of another person where the other person is deprived of normal
opportunities of self-protection. Some states: co venturers on a social outing Farwell)
Voluntary Aid: if you have started to help someone in danger, you have a duty not to
make the situation worse than it was before you started help (6. Farewell)
If you yourself create the risk (Ex: motorist who knocked over a pole in the street had a
duty to remove it from the street before others were injured)
If you yourself create the harm (If you create a harm that renders someone helpless, you
have a duty to reasonably prevent more harm)
Duty to control others: If you have a special relationship with someone who will cause
forseeable harm to P, you have a duty to warn P of harm. This only applies if P is specific
and known about, and if the warning would actually help P avoid the harm. (7. Randi-If
the injury is forseeable) (8. Tarasoff)
No Duty to Act (omissions):
Torts claims are inefficient for guarding broad populations of non customers against loss
from one company-scope would be too broad (9. Strauss)
No duty to a social host to prevent 3
rd
party injuries from a guest (10. Reynolds v. Hicks)
D has a duty not to negligently entrust a dangerous instrument to a 3
rd
party causing P
harm if D knows that the 3
rd
party is too incompetent to use the dangerous instrument.
(13. Vince v Wilson)
2. Special Duty Issue: Landowners/Occupiers
Modern Approach: Landowners have a general duty of reasonable care for all lawful
visitors (excluding most trespassers) (14. Heins v. Webster County)
Common Law Approach:
Robinson Fall 2012 Torts Outline
Licensees: If land is not open to the public, and your presence there does not
give the host any benefit, you are a licensee. A landowner has a duty to licensees
to make safe dangers of which the landowner is aware (taking no more
precautions than he would for himself) (13. Carter v. Kinney)
Invitees: If land is open to the public and your presence gives the landowner
some benefit, you are an invitee. Landowners have a duty to invitees to exercise
reasonable care to protect them against known dangers and those that would be
revealed by inspection (13. Carter v. Kinney)
Trespassers: Generally, a landowner owes a trespasser no duty of care.
Exceptions: A person has a duty to reasonably protect trespassers if:
Children: A landowner has a duty to child trespassers if:
a. The landowner knows/has reason to know children might
trespass
b. The landowner realizes/should realize will involve an
unreasonable risk of serious harm to children trespassers
c. Children cannot recognize the risk involved in the danger
because of their youth
d. The landowners burden in eliminating the danger is less
than the risk to the children
e. Landowner does not exercise reasonable care to eliminate
the danger
If there is a known danger
If it is a common trespasser
As soon as the trespasser is known
Certain jurisdictions still impose a duty for trespassers (California and
9 other states)
Landlords duty to Tenants: A landlord has a duty to protect a tenant from harm:
a. If there is a hidden danger on the premises which the landlord is aware of but
the tenant is not
b. The premises are leased for public use
c. If the premises are common areas
d. If the premises are negligently repaired by landlord
Business duty to protect customers from 3
rd
party harm:
Robinson Fall 2012 Torts Outline
Balancing test: Balances foreseeability of harm and the gravity of the harm
against the burden of imposing a duty to protect against the criminal acts of the
third person. Forseeability can rarely be proven in this test without prior similar
incidents of crime on the property. (Used in 15. Posecai)
Prior Instances Test: Prior instances of crime on the premises establish a
foreseeability of risk to P (recency, nature and extent of harms, similarity to
crime in question are considered)
Totality of Circumstances Test: Takes into account nature, condition, location
of land, as well as prior instances to establish foreseeability of harm.
Specific Harm Test: A landowner does not owe a duty to protect customers
from third parties unless he is aware of specific, imminent harm about to befall
them (usually not used)
3. Special Duty Issue: Intrafamily Duties
Reasonable Parent Standard: Parent/spouse owes a duty of general care to the child/spouse with
exceptions for general parental activities (feeding, clothing, etc.) (16. Broadbent v. Broadbent)
Duty of Care: Non-Physical Harm
1. Emotional Harm:
General Rule: No duty owed for purely emotional harm
Exceptions: D owes P a duty of care for emotional harm when:
When it accompanies physical harm caused by D (ex: If D causes a disease, can
recover from D for emotional distress of that disease)
P is in the zone of danger (within harms way) and suffers substantial bodily injury
from being in that zone (17. Falzone) (18. Buckley: No duty for emotional harm resulting
from asbestos exposure and fear of future cancer)
If there is a special relationship: If the defendants negligence has a great potential to
cause emotional distress, such as a doctor-patient relationship. (ex: if Doctor accidentally
tells P that P has a terminal illness, P can recover for negligent infliction of emotional
distress)
Bystander Rule: If P was located near the scene of the accident, suffered a severe shock
from observing the accident, and had a close relationship with the victim (like family)
(19. Dillon) Person must ACTUALLY see the harm being inflicted-not after.
2. Economic Harm:
General Rule: There is usually no duty to someone whom you caused economic harm ONLY-
usually must be accompanied by physical impact or property damage (could cause a neverending
chain of economic harms otherwise & can usually be remedied by contract law-21. Madison Ave
Gourmet Foods v. Finlandia Center)
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Exceptions: D owes P a duty of care for purely economic harm when:
2
nd
Restatement Rule: If P is relying on D to make a financial decision, D must know
the information he is providing will be used for the specific purpose that caused the
economic harm, and being provided to the specific person that suffered the harm. (20.
Nycal)
Used for accountants, public weighers, drug testing companies, high school
counselors, physicians and other professionals. D can also have a duty toward a
beneficiary of a will because they are a member of a specific class of which the
information was used for and relied on that information to make a financial
decision.
Modified Forseeability Test: D owes a duty to anyone who they can reasonably forsee
wwould obtain and rely on the information (including unknown Ps) (used by New Jersey
and a few other states)
Breach
General Rule: D will be held to a standard of care as a reasonable person in the circumstances.
(22. Bethel)
Exceptions: Circumstances where standard of care has been modified:
People who have certain medical conditions (blindness, deafness, being unconscious,
NOT insanity, old age, or just being dumb): Held to the standard of care as a reasonable
person with that disability.
Children: standard is of reasonable child same age, intelligence and experience.
Someone with special expertise: Will be held to standard of care as a reasonable person
with that same expertise.
Common Carriers: Will be held to the utmost standard of care (except in New York)
A. Assessing Reasonableness: What is reasonable?
General Factors (23. Adams v. Bullock):
Did D adopt all reasonable precautions against harm?
Was the harm forseeable?
Was the risk of harm forseeable?
Was there an inexpensive way to prevent harm?
1. Costs and Benefits: Learned Hand Formula (24. Carroll Towing)
If the probability of the accident occurring is greater than the burden of taking precautions, the
failure to take those precautions is unreasonable.
[Probability + Average Loss if accident occurs > Burden (cost of prevention) = Unreasonable]
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2. Custom:
What is well defined as usual in the circumstances
Not definitive as a standard, just provides evidence for/against reasonableness
P can argue D violated custom as evidence that D was unreasonable
D can argue D adhered to custom as evidence that D was reasonable
An industry should not be able to define its own customs because they have more information
about the risk of not adhering to that custom (25. Trimarco: Landlord had more information about
the custom of installing safety glass in showers than tenant, so he had the burden of proving that
was not the custom)
3. Statutes/Negligence Per Se
P can use Ds statute violation as a factor of unreasonableness
3 General Rules:
1. Statute violation = part of evidence in considering reasonableness
2. Statute violation = presumption of unreasonableness unless rebutted by D with
evidence that they did act reasonably (used in Illinois)
3. Statute violation = negligence per se. Only rebuttal is a legal excuse (duress,
emergency, infancy, incapacity, involuntarily, insanity) (used in New York) (26. Martin
v. Herzog)
Only applicable if:
a. The violation of the statute results in the type of harm the statute is meant to protect (27. Telda
v. Ellman) (Ex: Statute about registering your vehicle does not say specific behavior you are
supposed to follow-not following that statute is not evidence of negligence)
b. The harm affects the class of people the statute is meant to protect
4. Inferences and Res Ipsa Loquiter
Inferences: If there is no direct evidence of unreasonableness, sometimes unreasonableness can be
inferred from circumstantial evidence. (28. Negri v. Stop and Shop) (29. Gordon v. American
Museum of Natural History)
P must meet the burden of production to make the inference
Res Ipsa Loquitur: If evidence shows that it is general knowledge that an accident would have not
occurred without Ds negligence, res ipsa applies. If there is no direct or circumstantial evidence,
certain situations allow inferences of negligence to be made just from the situation itself. In these
cases, res ipsa loquitur instruction is given to the jury and D can still rebut it. (30. Byrne v.
Boadle) (31. McDouglad v. Perry)
Robinson Fall 2012 Torts Outline
The reason for res ipsa is because when D has the most information about the accident, D
should have the burden of proof (32. Ybarra v. Spangard: Ds have more information
than the unconscious patient about what happened because P was unconcious)
When res ipsa applies, it shifts the burden of proof to D to prove they werent negligent
When Res Ipsa applies:
1. If there is no reasonable likeliness that P was also negligent
2. Where accident would have not normally occurred without unreasonable conduct from
D
3. When D is in exclusive control of instrument that caused the harm during the time of
the accident
B. The Role of Judge/Juries:
A judge should not take the role of determining breach from a jury. (34. Pokara)
Exceptions: A judge should make standard of conduct a rule of law when:
Public policy issues: If it would give too broad of a scope to find D breached a duty to P (35.
Akins v. Glens) (36. Andrews v. United Airlines: Reversed summary judgment for airline because
a reasonable jury could have possibly found them negligent-summary judgment not proper)
C. Breach in Med Mal Cases:
Duty to Warn: Doctors do have a duty to warn (informed consent)
Standard of Care for Doctors/Professionals: The standard of care for a professional is that of a reasonable
professional in similar circumstances
Custom = standard of care (usually)
Standard is decided by expert testimony
Experts must be in the same field as D

Res Ipsa: Testimony of experts is evidence for res ipsa-experts say whether accident would/would not have
happened without negligence by D-The experts make the inferences for the jury.
Cause in Fact
1. But For Test: 1 P + 1 D
Would harm have occurred but for Ds negligent conduct?
P: But for (Ds conduct), (Ps harm) would have not occurred.
D: Even if D acted unreasonably by _____, (Ps harm) would still have occurred because
Robinson Fall 2012 Torts Outline
Does not have to be sole or primary cause of harm, just essential.
2. Joint Causes: When 2 or more events could have caused harm alone, but both contributed to harm
(example: 2 separate fires join together to burn a house down)
Was Ds negligence a substantial factor in causing Ps harm?
Designed to be a flexible standard thats left to the jury to decide.
3. Multiple Causes: Neither events caused the harm alone but together they did.
Was Ds negligence a substantial factor in causing Ps harm?
Joint and several liability can apply if Ds are both found liable.
Proximate Cause (Legal Causation)
If the type of injury is what we want D to protect against-telling D he should alter his conduct in order to
prevent the harm.
Cuts off liability for harm, even if the harm is caused by D, because it would be unfair to hold D liable
because Ps harm is too far removed from Ds unreasonable conduct.
Dependent on public policy-is it fair to hold D liable for Ps harm?-Less concerned with facts.
2 Tests (Jurisdiction Dependent):
1. Directness Test: Was the injury a direct consequence (no intervening cause) of Ds negligence?
Usually used in jurisdictions with stricter duty rules
2. Foreseeability Test: P must show harm is foreseeable consequence of Ds conduct.
If Ps injury is too remote from the conduct, the harm wasnt foreseeable.
Breach is concerned with general foreseeability of harm, proximate cause is concerned
with foreseeability of specific event that already occurred
Eggshell Plaintiff Rule: D has to take P how he finds him, and is liable for all injuries caused even if the
extent of the injuries is unforeseeable.
Unexpected manner of harm: Ds negligence will still be a proximate cause of Ps injury regardless of the
extent or manner in which it occurred, as long as the injury is of the type that is reasonably foreseeable
from Ds negligent conduct
Intervening Causes: A force that occurs between Ds negligence and Ps injury, contributing to Ps harm.
Only takes away Ds liability if it is a superseding cause.
Possible Superseding Causes:
1. 3
rd
party negligence: Superseding cause if its an unforeseeable consequence of the original
negligence
Robinson Fall 2012 Torts Outline
2. Acts of Nature: D must take adequate precautions against foreseeable acts of nature. If the force
is unforeseeable, it is a superseding cause.
3. 3
rd
party intentional conduct: Usually a superseding cause because D cannot predict 3
rd
partys
intentional harm to P
Exception: If D is under a duty to protect P from criminal harm (ex: teacher and student)
4. Suicide: If P is under the influence of an irresistible impulse caused by Ds negligence and
commits suicide, the suicide is NOT a superseding cause and D will be held liable. It must be the
result of an organic brain injury caused by D.
5. Rescuer Doctrine: If the injury to a rescuer is unforeseeable from Ds negligence, it is a
superseding cause. D is liable for all foreseeable harm to people rescuing others from Ds
negligent conduct.
Multiple Defendants
Vicarious Liability: When one person is responsible for another
1. Respondeat Superior: When an employer is held liable for the acts of his employees within the
scope of their employment.
Christiansen Scope of Employment Test:
I ndependent Contractors
2. Apparent Agency: Minority Rule: When an employer/employee relationship is inferred
Rosseler
3. Nondelegable Duty: Majority Rule: Liable only when function performed is a nondelegable
duty (something seen to be risky/hazardous activity and cannot be delegated to an independent
contractor to avoid liability)-Compare and contrast nondelegable duties in notes cases (Maloney)
(Becker)
4. Some states impose statutes (example: owner of a car is vicariously liable for whoever drives
the car)
Joint and Several Liability: When a group of Ds act together, 1 D is liable for all of the damages
individually for the whole group. Can be enforced against 1 D or all.
When to apply:
1. When Ds acted in concert to cause Ps harm
2. When Ds act independently to cause indivisible harm to P form multiple unreasonable acts (all
but for causes)
3. When Ds fail to perform a common duty to P (not that important in this class)
ILLINOIS: Ds are joint and severally liable for certain damages but separately liable if they
caused 75% or less of the harm-for general damages, they are severally liable in they are less than
25% at fault.
Robinson Fall 2012 Torts Outline
Ds can still enforce against all Ds in a contribution action
Damages
When P is dead:
Survival Action: Brought by Ps estate. Brings action as if they were P. Exactly the same as a normal
negligence case, estate can recover any damages P could have gotten (in most jurisdictions). Funeral costs
are not recoverable.
Wrongful Death: Brought by Ps close family members, usually the same as a regular negligence claim.
Available damages include future earnings, grief, sorrow, suffering, loss of consortium
When P is still alive:
Compensatory Damages: Goal is to make P whole again, as they were before the accident
Pecuniary: Financial, out-of-pocket expenses
Medical expenses
Lost income
Property damages
Future: inflation, promotions, future drugs, physical therapy, unanticipated costs, lift
expectancy
Determined by expert testimony
Must be determined in one judgment, not in the future
Pecuniary awards often adjusted to present value to take account the interest earned in the bank =
inflation
Non Pecuniary: Non-monetary
Loss of enjoyment of life (hedonic)
Pain and suffering
Loss of consortium
Not Taxable
Collateral Source Rule: Insurance/other ways to compensate cannot be taken into account for awards
Punitive Damages: Only occurs when there is wanton, willful and malicious conduct
Usually not awarded for vicarious liability or med mal
Usually has to be for gross negligence
Limits:
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Separate trials to determine punitive damages
Some % goes to state and not P
Some states establish list of factors to consider for punitive damages
Some states have punitive damages caps
Affirmative Defenses
D has the burden of production and persuasion for affirmative defenses
Affirmative defenses must be in the answer to a complaint or a motion
Categories:
1. Procedural (example: statute of limitations)
2. Based on Ds status (example: immunity)
3. Based on Ps conduct
Contributory Negligence: Bars recovery
If P doesnt take reasonable care to protect against her own harm, she cant recover at all
Not applicable if D was reckless instead of careless
Statutes: If the purpose of the statute is to protect P, and P violates the statute, P is not contributorily
negligent (rare).
Last clear chance: If P negligently puts himself in danger and D negligently injures P, no contributory
negligence can be found because D had failed to utilize the last clear chance to avoid injury to P.
Comparative Negligence: Ps recovery depends on the % that P was negligent compared to D.
Pure: D covers exact % of their own fault (example: P was 50% negligent, P recovers 50%)
Modified:
Greater than: If Ps negligence is greater than Ds, P cannot recover (more than 50%)
As great as: If Ps negligence is as great as Ds, P cannot recover (50% or more)
Avoidable Consequences: Ps duty to take reasonable care to mitigate harm before Ds negligence
(example: failure to wear a seatbelt)
Duty to Mitigate: Ps duty to take reasonable care to take care of injury/damage after accident (example: D
is not liable for an infection resulting from Ps failure to take care of a wound caused by D)
Assumption of Risk: If P voluntarily consents to the risk, P is barred from recovery when that risk results
in harm by D.
Express: an express agreement between P and D that P is assuming a risk
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Exceptions:
Usually cant contract out liability for gross negligence
Huge variation in jurisdictions for recreational activities
Some states dont recognize any contract exempting D from liability for negligence
If contract violates public policy
Factors in Ski Case:
I mplied: implied by Ps conduct and knowledge, can be inferred by Ps conduct
Primary: Inherent risk in activity itself (example: P gets injured in a football game)
Secondary: P knowingly encounters risk caused by Ds negligence (example: P going
down a flight of stairs he knows D has not repaired, and falling)
Was Ps decision to undertake the risk reasonable?
If yes, not an affirmative defense. (example: someone giving birth has
to take a ride from a drunk driver to the hospital because no one else is
around and is injured)
Firefighters Rule: Not liable for injuries to firefighter/police when they come
into your home
Exam Advice:
2 questions, 3 hours
No specific states-look at clear majority and clear minority rules-analyze both and say which is more appropriate
Issue-Law-Rule-Relevant Exceptions-Apply law to facts
Start with weakest rules first, if they pass, move on without going through all rules
Describe facts youre assuming if you need to make assumptions
Make a checklist to spot issues
Exam Answers:
Who is P?
Dead or alive?
Who is D?
Did they act in concert?
Think about how to organize multiple D answers
Was he working when he created the harm?
Robinson Fall 2012 Torts Outline
Employee or independent contractor?
Negligently hired?
Duty
Physical:
What did D have a duty to P to do?
Special category/exceptions? If so, dont discuss default rule
Could it be argued as an omission instead of an act? (easier for D)
If not, start with weakest default rule. If passes, do not go through rest.
Breach
What was the unreasonable conduct? Think about theories of liability (ex: negligent driving vs. negligently
failing to turn on headlights)
What was the standard of care?
Special standard of care? (Child, professional, disabled person)
If so, adjust standard of care accordingly
What would a reasonable person have done in the situation?
Did D act differently? How so?
Go through 5 tools of assessing unreasonableness:
Foreseeability
Costs and benefits (look for signal that someone is giving something up)
Statutes (if there is one mentioned, analyze negligence per se)
Inferences (is there any evidence or do we need to make an inference)
If no evidence, res ipsa?
Custom
Would a judge decide this as a matter of law?
Causation
Do but for test for P and D
Dont forget multiple parties tests if there are multiple sufficient/necessary causes (substantial factor)
Proximate Cause
Robinson Fall 2012 Torts Outline
Were Ps injuries foreseeable based on Ds negligent conduct?
Must not be too remote
Talk about eggshell skull rule
Talk about public policy limits, even if it does satisfy test
Was there an intervening cause?
Damages
Specify what P could possible recovery under general principals
Pecuniary
Past and future
Non pecuniary
Past and future
Punitive
Defenses
Failure to mitigate/avoidable consequences
Contributory/comparative negligence-go through negligence elements for P
Pure, modified (greater than) (as great as)
Assumption of Risk
If there are multiple liable Ds, consider joint and several liability










Robinson Fall 2012 Torts Outline