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Goal of tort and negligence and exceptions

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02/02/18 Free Law Essays Reference this

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Goal of tort and negligence and exceptions


A. Compensation

B. Blame / Fault

C. Deterrance / Punishment

D. Spreading the loss


Duty – Does D owe a duty to the plaintiff?

Is there a duty?

– Generally there is a duty to act reasonably

– Sometimes Policy or statute raises or lowers the reasonable person standard

– Generally there is no duty to act on behalf of others


A) When D’s conduct creates a foreseeable risk there is a duty.

(Harper v. Herman) – no duty to diver who broke his neck in shallow water

B) Special relationships

i) If a special relationship exists between plaintiff and D, D may be held liable for failure to act.

Common Special relationships are:

Parent child

Employer employee

Common Carriers


Social Co-venture – Engaged in a common pursuit and each is understood to watch out for the other. (Farwell v. Keaton) – Friends cruising for chicks, one guy gets beat down & friend leaves in back seat of car.

Person who has custody of another under circumstances where that person is deprived of normal opportunities of self-protection.

Voluntary Undertaking

i) Once D had voluntarily rendered assistance

– D must proceed with reasonable care

– D must make reasonable efforts until plaintiff is safe

– D must not discontinue if it would leave plaintiff worse off

ii) D is liable if leaves plaintiff in worse position than when D undertook to provide care.

– Restatement 2d § 324

iii) D cannot prevent others by assisting, even by mistake

iv) An undertaking is:

– A promise to assist without some overt action is not an undertaking

– The action can be a small action.

– Reliance on the promise can be enough for an undertaking.

D) Creation of Risk

– One who creates an unreasonable risk incurs a duty to prevent it from occurring

– Restatement 2d § 321

– One who intentionally prevents a third party from rendering aid to another is subject to liability

– Restatement 2d § 327

E) Contractual Obligation

– Generally only extends to parties in privity (Strauss v. Bell Realty Co.) – Con Edison did not owe a duty to

man in common area of building hurt during power outage

F) Obligation to Control Others

– Generally there is no obligation to control the conduct of others


i) Where there is a foreseeable harm, D has a duty to control conduct or warn of conduct if D has a

special relationship to person causing danger or person in danger

(Tarasoff v. U.C. Regents) – Therapist owed a duty to warn victim of dangerous conduct of patient D.

ii) Negligent Entrustment

(Vince v. Wilson) – Aunt liable for giving nephew money to purchase car

– Owner of a car owes a duty to others by using reasonable care to ensure other drivers of his car

are not negligent

– Only reasonable care is required

iii) Social Relationships

– There is a duty to control drinking and driving habits of guests if

– Guest is a minor. Duty is only owed to the minor, not anyone the minor may injure.

(Reynolds v. Hicks) – minor at a wedding gets drunk and drives, injuring parties, hosts

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not liable

– Action by host creates unreasonable risk of harm

– The risk is foreseeable

– The resulting injuries are equally foreseeable

NOTE: Most jx. do not hold social hosts responsible for monitoring drinking of guests

NOTE: If D has a duty to control a third party, D may be negligent if he fails to do so

F) Landowners and Occupiers

– 3 classes

i) Trespassers: until landowner gives permission, everyone is a trespasser

– Knowledge of a trespasser creates a duty. A warning is sufficient burden.

ii) Licensee: All who enter land with express or implied permission. No duty to inspect.

– Possessor of land must make safe all dangers he is aware of

– (Carter v. Kinney) – Bible study group. Man was an licensee, no duty to inspect for ice.

iii) Invitee: Invitation must be tendered with material benefit to the owner. The public has reason to

believe the property is safe from known and unknown dangers and those revealed by inspection.

If the visit falls under business relationship, need not be doing business at the time

Job applicants are invitees

Door to door salesmen are not

Entering into a portion of a house/building one is not invited, no longer an invitee in that area

One can wear out their invite (Staying too long)

Owner must make a reasonable attempt to repair all dangers

Owner must inspect property

iv) Children – Children are held to a different standard, regardless of classification

Restatement 2d §339 – Owner owes a duty to children when he knows or has reason to know:

– Children are likely to trespass in a dangerous area

– The danger involves an unreasonable risk of death or serious bodily injury to children

– The children do not realize the risk because of their age

– The burden to remove or repair dangerous condition is slight compared to risk to children

– Failure to exercise reasonable care to eliminate the danger to protect children

v) In CA, all distinctions of visitors on land are judged by reasonable person standard

– (Rowland) – Use of the reasonable care under the circumstances Must consider:

– Foreseeability of plaintiff’s presence

– Foreseeability of harm to plaintiff

NOTE: No duty to burglars

vi) Some jx. have just two classifications (Heins v. Webster County)

– Trespassers

– All others

G) Government Entities

i) Courts hesitate to oblige Government parties to a duty for policy reasons

ii) Generally Government functions are separated into two areas

– Discretionary (Riss v. City of New York) – No duty for ex-boyfriend who stalked and attacked.

– Operational (Friedman v. State of New York) – Delay in implementing policy to put barrier in


iii) Federal Torts Claim Act set forth two criteria:

– Is there a policy?

– Was it discretionary?

(Cope v. Scott) – Slippery road in DC, no duty to repair road, but duty to put up signs. Must be

fraught with public policy concerns.

2) The Duty Requirement: Nonphysical Harm

Pure Emotional Distress (no physical harm)

Direct (near miss, who the action is directed towards)

i) Zone of Danger (Falzone v. Busch) – Near miss car hits husband and wife can recover

NOTE: NJ jx.

– Must be a reasonable fear of immediate physical harm

– Fright must cause serious physical injury or sickness

(Metro-North Commuter Railroad Co. v. Buckley) – Exposure to asbestos was not enough physical

impact to recover

ii) Foreseeability (Gammon v. Osteopathic Hospital of Maine, Inc.) – Bag with a severed leg in it

NOTE: ME jx.

– It is foreseeable that an ordinary person would sustain severe emotional distress

Indirect (bystander observes the incident)

i) Zone of Danger (Bovsun v. Sanperi) – Opened up zone of danger to family members


– Must be in the Zone of Danger

– Bystander must be of immediate family

ii) Portee Rule


(Portee v. Jaffee) – Sees son caught in elevator

– Act must result in death or serious injury

– Bystander and victim must be married or familial relationship

– Observation of the incident at the scene

– Incident results in severe emotional distress

iii) Thing/Dillon Rule – Bright line rule. Strictly enforced.


– Must be immediate family or same household

– Must be present at time that incident occurs

– Must be aware that negligence caused the incident

– Must experience distress beyond that which a normal uninterested bystander would experience. Response must not be abnormal.

C) Loss of consortium

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– Can recover for loss of spouse or loss of child

– Children cannot recover if parent is severely injured, only if deceased, then they can recover because of



i) Mistaken message – Incorrect telegram stating that a family member has died

ii) Mishandling of a corpse

Economic Harm

– Generally there is no duty to avoid accidental economic harm

A) Third Party Liability – There are three tests

i) Foreseeability Test – If it is foreseeable that conduct will result in economic harm. Can be too broad

ii) Near-Privity Test –(NY jx.) There must be a direct link to the affected third party and awareness of

reliance. Can be too narrow

iii) Restatement 2d § 552 (CA, MA jx.)

There must be reliance on information by a known party

There must be a link between the two parties i.e. a phone call, etc

D failed to use reasonable care and competence

(Nycal Corportation v. KPMG Peat Marwick LLP) – No duty when financial statements only used for annual report, not for stock buyout

B) The Modern View

(People Express Airlines v. Consolidated Rail Co.) – Airline was able to recover because of chemical spill by D railroad company.

Particular Foreseeability: D owed a duty to take reasonable measures to avoid risk of economic damages to an identifiable class that D knows or has reason to know are likely to suffer from act.

Identifiable class:

Type of persons compromising the class

Certainty or predictability of their presence

Approximiate number in the class

Type of economic disruptions expected

If in addition to physical harm, economic harm is added on to the claim

3) Wrongful Life

– e.g. child is born due to ineffective vasectomy, some error by the doctor

If child is born healthy

– Parents can recover pregnancy costs only. A few jx. allow for some child rearing costs.

– Child cannot recover for economic or emotional distress. Doctor has no duty.

If child is born disabled

– Parents can recover pregnancy costs and child rearing. Some jx. allow for total recover, some offset

recovery with joy, etc of having a child

– Child can recover economic loss once of majority age, cannot recover for emotional distress

Breach – Did D breach his or her duty by failing to meet the appropriate standard of care?

What is the standard of care?

A) Reasonable Prudent Person (Bethel v. New York City Transit Authority) – seat collapsing under passenger


i) Children – What is reasonable for children of the same age and intelligence or experience

(some jx.) What is reasonable for children of same age (some jx)

ii) Physical Disabilities – Reasonable prudent person w/ same disability

iii) Emergency Situation – Reasonable prudent person under same


– Cannot be emergency of your own making

iv) Judge Made Rules (B & O Railroad Co. v. Goodman) – must get out of car to look for train. Theory is

judge knows best

v) Common carriers – some jx. Hold to a higher standard. (Andrews v. United Airlines, Inc.) – CA jx.

overhead baggage hitting someone on the head

vi.) Statutes –. Judge usually decides if it is relevant. Can be used as a standard of care § 286 of 2nd


– to protect a class of persons which includes the one who’s interest is invaded

– to protect the particular interest which is being invaded

– to protect that interest against the kind of harm which has resulted

– to protect that interest against the particular hazard from which the harm results

(Martin v. Herzog) – Buggy without lights. 2 ways to weigh statute breach

Some consideration (CA jx.)

Per Se breach (Cardoza) – If it is violated, D is guilty (Majority of jx.)

(Telda v. Ellman) – Garbage collectors hit on the wrong side of the road. Sometime violation of the

statute is OK if adherence to statute puts you in more danger than breaking it.

NOTE: Compliance with statutes does not always exonerate D. If a reasonable person would use a

higher standard, that standard must be used.

B) Hand Formula


What is the proof?

A) Custom

– Admissible, but not conclusive. What is customary of others in the same field or business? Custom can

set the standard, but it is rebuttable.

B) Circumstantial Evidence

i) Actual Notice – D knew of problem and negligently ignored it.

ii) Constructive Notice – Used to show passage of time, someone should have known of negligence.

(Negri v. Stop and Shop, Inc.) – Baby food on the floor for 50 minutes

(Gordon v. American Museum of Natural History) – Waxy paper on the steps of the museum

iii) Res Ipsa Loquitur – The thing speaks for itself. A common sense inference that bridges the gaps in

evidence. It shifts burden from P to D. In most jx. D must come forward with rebutting evidence.

Ultimately burden is on P. Must be more likely than not. Can be used if:

accident must be the kind that ordinarily does not occur without negligence

agency or instrumentality within exclusive control of D

must not be due to any voluntary behavior or contribution from P

must be more likely than not

NOTE: Can be used in Medical Malpractice in conjunction with expert testimony (some jx.) Collective

group working on patient while unconscious can be sued collectively under res ipsa loquitur.

(Byrne v. Boadle) – Barrel falls out of window onto his head.

(McDougald v. Perry) – Spare tire falls off of truck, hits car.

EXAMPLES: exploding bottles, plane falls from sky, object in food, surgical sponge left inside

3) Medical Malpractice

– Required to show the requisite minimum skill and competence

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– Can occur in Diagnosis, Treatment or Post Treatment

A) Standard of Care

i) Higher than the reasonable person standard. Based on the minimum qualified member.

ii) Custom sets the standard. Custom is set by expert witnesses. Custom is rebuttable

iii) Moving towards a national standard, not a local or regional one

(Sheely v. Memorial Hospital) – Expert witness set the standard. National Standard.

iv) If there are conflicting schools of thought, doctor is held to his own school of thought.

v) Informed Consent – Obligates the physician to disclose only that information material to a

reasonable patients informed decision.

(Matthies v. Mastromonaco) – 81 year old with bad hip gets only 1 treatment option

B) Proof

i) Direct or actual notice

ii) Res ipsa loquitur

(Ybarra v. Spangard) – Man goes in for appendix, comes out with bad arm. When P received unusual

injuries while unconscious and in the course of medical treatment, all those D who had any control of

his body or the instrumentalities which might have caused the injuries may properly be called upon to

meet the inference of negligence by giving explanations of their conduct.

4) Vicarious Liability

A) Respondeat Superior – Holds employer liable for negligence of employee. 3 elements:

– Conduct must be of the general kind employee is hired to do

– Conduct must occur substantially within the time and space of employment

– Conduct must be motivated, at least in part, for the purpose of serving the employers interest.

(Christensen v. Swenson) – Guard left post to get lunch and hit a motorcycle, respondeat superior found.


– Independent contractors are not held liable

(BMHS v. Sampson) – Doctor was an independent contractor, hospital not liable for negligence.

Not held to be ostensible agency, which is: principal by its conduct caused plaintiff to

reasonably believe agent was employee and relied on appearance of agency.

Causation – Can the plaintiff show that defendant’s negligence caused the harm?

1) Actual Causation

A. General rule – But for the negligence of the defendant, the harm would not have occurred

– but for must be more likely than not.

– possible future harm (asbestos) most jx. say no, some yes if greater than 50%

(Stubbs v. City of Rochester) – Roily water, not over 50% but court allowed it anyways

(Zuchowicz v. United States) – Smokey Robinson Navy Navy case. Allowed recovery, although sketchy.

Court found it was the double overdose that caused the death.

B. Alternatives to the “but for” test

i) “lost chance” theory – not in CA

– some jx. allow this.

– chance must be less than 50%

– if chance greater than 50%, it is a but for cause, total recovery

– allows plaintiff to recover for the lost chance. (40% of keeping leg if properly diagnosed, now

10%. Plaintiff would get 30% recovery)

(Albert v. Schulz) – Did not establish that leg could have been saved with proper diagnosis, not

allowed recovery under lost chance.

ii) multiple defendants

– Once plaintiff shows injury, burden shifts to defendant to prove who actually did it

– Two fired burning, become one. Cannot determine whose fire caused the damage. Both are

held liable for damage.

– Drag racers cause injury. It could not have been caused if the other was not involved, both held

jointly and severally liable, despite only one causing damage.

(Summers v. Tice) – two men shoot one when hunting. Cannot determine whose shot caused the

damage. Both were held accountable.

C. Joint and Several Liability

– if more than one tortfeasor and cannot determine which harm caused injury, defendants are held jointly

and severally liable.

– must establish liability for each defendant (duty, breach, cause)

– plaintiff can collect from any defendant, then that defendant can collect from the other defendants

– except for concerted action, where one party does damage, but both are held liable.

D. Several Liablity

– when there are multiple defendants, and the damage can be attributed to each defendant, it’s several

– D1 caused my broken leg ($50,000), D2 caused my broken arm ($40,000)

– Can only collect judgment from each defendant, they are not liable for each other’s damages

E. Market Share Liability

– Usually used in drug cases to establish causation of injuries from the drug.

– More and more the consensus is use of national market share to determing liability

A-40% market share, 40% liability

(Sindell) – CA jx. Several liability. If a defendant can prove that they did not cause the harm, not liable

(Hymowitz) – NY jx. Joint and several liability. Defendant cannot absolve themselves, they are liable.

2) Proximate Cause

A. General rule – look for something strange. Defendant is liable for all results that are the normal incidents of and

within the increased risk caused by their acts. Based on foreseeability.

4 clusters to look at (go through these for analysis, in this order)

i) Unexpected Victim – Was the victim foreseeable?

(Palsgraf) – Fireworks caused scale to fall on woman. Majority said no recovery.

a. Cardozo view (majority) (over)

– duty issue

– fear of excessive litigation

– must be a foreseeable victim within the zone of danger

b. Andrews view (dissent) (move on)

– victim does not have to be foreseeable

– harm must be of natural and continuous course of events

– harm must be spatial/temporal continous

ii) Unexpected Type of Harm – Was the type of harm foreseeable?

Jx. are split between which to follow

a. (Wagon Mound) (over)

– spark on cotton ignited oil in harbor. Oil not proximate cause of damage

– type of harm must be foreseeable

b. (Polemus) (move on)

– plank dropped into hull, caused fire in benzene cargo.

– does not matter if type of harm was foreseeable as long as it directly caused injury

iii) Unexpected Extent of Harm

No foreseeablility necessary

a. Eggshell plaintiff

– take your victim as you find him

(Benn v. Thomas) – dude with heart condition dies after car accident bruises his chest.

Other driver liable, despite previous heart condition.

b. Aggrevation of the harm

– original negligent party held liable for aggravation of injury caused by subsequent

negligent party (plaintiff hurt by defendant, med malpractice in treatment, defendant


– original negligent defendant not liable for harm totally out of the realm, acts of god,

lightning strike, etc.

c. Rescue

– botched rescue, the original negligent defendant is held liable for damage

(Pridham v. Cash & Carry) – plaintiff seriously injured by defendants negligence, then

died in wreck in ambulance on way to hospital. Defendant held liable for

wrongful death

iv) Unexpected Manner of Harm – Was the manner of harm foreseeable?

Restatement 2d §435:

(2) The actor’s conduct may be held not to be a legal cause of harm to another where

after the event and looking back from the harm to the actor’s negligent conduct, it

appears to the court highly extraordinary that it should have brought about the harm.

– Look for an intervening / superceding cause

(McLaughlin v. Mine Safety Appliance Co) – fireman’s conduct was so grossly negligent he

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was held to have been superceding cause of defendants negligence.

v) (Kingsman) – ice, ships and bridge. Incorporates all four clusters of Proximate cause.

vi) Social hosts are not proximate cause

Defenses – Can defendant assert an affirmative defense?

Contributory Negligence

– Not really used anymore – only in 4 jx.

– Recovery is all or nothing under contributory negligence

– If plaintiff is even 1% at fault, cannot recover anything

– Plaintiff could recover if

– defendant was acting reckless

– statute that protects those who can’t protect themselves (kids crossing from a bus)

– rescuer

– defendant has last clear chance to avoid injury

2) Comparative Fault

A. Based upon the Uniform Comparative Fault Act

% at fault is % liable for

a. Pure comparative – CA jx. and about 12 other states

– Plaintiff 90% at fault, defendant 10% at fault, plaintiff collects 10%

b. Hybrid model

– some jx. set the bar at 50%. Plaintiff must be equal or less at fault

– some jx. set the bar at 51%. Plaintiff must be less at fault.

c. Used to determine joint and several liability

– D1 30% at fault, D2 50% at fault, P 20% at fault

B. Differences between CA and UCFA

a. Settlements

D1 and D2 cause $45,000 damage

D1,D2 and P each 33% at fault.

P recovery limited to $30,000

D1, D2 each owe $15,000 jointly and severally

D1 settles for $10,000

D2 goes to trial and judgment entered

In CA – D2 must pay total of joint and several, less amount settled by D1 = $20,000

In UCFA – D2 must pay only his share based on % fault, $15,000

b. Insolvent defendants

D1 and D2 cause $45,000 damage

D1,D2 and P each 33% at fault.

P recovery limited to $30,000

D1, D2 each owe $15,000 jointly and severally

D1 insolvent

In CA – liability spreads to the rest of the defendants, D2 owes $30,000

In UCFA – liability spreads to all parties, including plaintiff, D2 owes $15,000

(Fritz v. McKinne) – Doctor cannot get comparative fault to show drivers drunkenness to lessen damages against him.

C. Settlements

In offsetting settlements, you must submit to insurance, because against public policy to allow the insurance

companies to benefit from the windfall of offsetting settlements.

3) Avoidable Consequences

– take your medicine, wear your seat belt.

– In CA, avoidable consequences is the same as comparative fault.

4) Assumption of Risk

A. Plaintiff MUST HAVE KNOWN about the risk

B. Plaintiff must have voluntarily assumed the risk

2 types

i) Implied assumption of risk

– Risk is one that the average person would clearly appreciate

– If there is not safe alternative, it may not be voluntary (only ride available is with a drunk, need to get to


(Murphy v. Steeplechase Amusement Co) – Man breaks kneecap on the Flopper at Coney Island. He

knew the risk, no liability for Coney Island.

(Davenport) – Defendant not negligent because plaintiff knew of the unlit stairwell and continued to use


(Roberts v. Vaughn) – Firefighters rule. By statute firefighters and police assume the risk. Volunteer

firefighters do not apply.

ii) Express assumption of risk

– assumption of risk is stated (skydiving release, skiing release)

– waivers of liability are usually upheld, but closely scrutinized by the courts

– usually not upheld in adhesion contracts (where there is unequal bargaining power among parties)

– valid contract usually knocks out a suit

(Dalury v. S-K-I Ltd.) – Dude his maze pole at Killington. Waiver clause found against public policy.

Killingon liable.

– CA jx. uses Tunkl rule, clarified in Restatement 2d §496:

a. Was the agreement freely entered into?

b. Were the parties of equal bargaining power?

c. Does it achieve social goals?

– VT uses “totality of the circumstances” test

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