Final Torts Outline

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TORTS Causes of Action 1. Negligence: If a person, through a failure to undertake reasonable precautions to reduce the risk of physical harm created by this conduct, causes harm to another, then that person is liable to compensate the victim for that harm. 2. Strict Liability: If a person, through some (categorically defined) conduct (e.g. manufacturing a defective product; selling a defective product; here, operating a car during medical incapacitation), causes physical harm to another, then that person is liable to compensate the victim for that harm, regardless of fault. 3. Vicarious Liability: If employee commits a tort while acting within the scope of employment, then employer is vicariously liable to person harmed. y Christensen v. Swenson: employer gets lunch at caf across the street and negligently hits a woman while driving back minds could differ regarding criteria a. Scope of Employment: In determining whether an employee is acting within the scope of employment, (3) factors are relevant (Birkner criteria): i. Whether employee s conduct was of the general kind he was employed to perform; that is whether he was about the duties assigned by the employer rather than being wholly involved in personal endeavor ii. Whether the employee s conduct occurred substantially within the ordinary (1) temporal and (2) spatial boundaries of the employment. iii. Whether the employee s conduct was motivated, at least in part, by serving the employer s interest. b. Apparent Agency: y Roessler v. Novak: perforated viscus but abdominal scan negligently omitted by independent contractor -> triable issue for the jury A defendant can be liable for the tort of a third party if that defendant created the appearance of an agency relationship, the third party s tort occurred within the scope of the apparent agency, and the plaintiff acted to his detriment in reliance on that apparent agency. i. An apparent agency exists when: 1. The purported principal makes a rep that the third party acts as its agent; 2. The plaintiff relies on that representation; and 3. The plaintiff is injured as a result of that reliance [p.25,3rd last) Policy Arguments: y against VL: too much like SL, unfair if employee acts intentionally y for VL: want employers to be careful who they hire and hold employees to high standard (and punish if necessary), prevent future loss, ensure compensation, enterprise risk-bearing




DUTY [ owed to

a duty to exercise reasonable care to reduce some legally

significant risk]A. Duty with respect to the Negligent Infliction of Physical Injury 1. The Basic Duty Rule (TBDR): Heaven v. Pender [FRG129-30] If a person engages in conduct that creates a reasonably foreseeable risk of physical harm to the person or prop of another, then that person owes to that other a duty to exercise reasonable care to reduce that risk. If B < (Pwo * Lwo) (Pw * Lw), then failure to take the precaution at issue is breach. Elements: - D engaged in conduct. - Ds conduct created a risk of physical harm to P s person or property. - The risk of harm created was foreseeable. Exceptions to TBDR: Negative exceptions: Determinations that D owed P no duty, even though D did engage in conduct that created a foreseeable risk of physical harm t P and therefore, other would owe P a duty under TBDR. Positive exceptions: Determinations that D did owe P a duty even though D did not engage in conduct that created a foreseeable risk of physical harm to P and therefore, otherwise would not owe P a duty under TBDR. Misfeasance versus Nonfeasance Misfeasance (actively negligent) involved a failure to act to reduce risk under circumstances in which D owed P a duty of reasonable care. y Example: Buffalo Electric Co. s failure to reinsulate wires in Braun is misfeasance a failure to reduce risk that was created by Ds conduct.



Nonfeasance (failure to act = no duty) involves a failure to act to reduce risk under circumstances in which D did not owe P a duty of reasonable care. y y Example: The Priest failed to assist the robbery victim in the parable of Good Samaritan. The priest failed to reduce risk that is created by factors other than his own conduct. Example: A slothful misanthrope s failure to save a baby tied to railroad tracks from an oncoming train a mile away. He failed to reduce risk that was created by factors other than his own conduct. o There is no general duty to act. No liability will flow from nonfeasance, unless there is a superseding special relationship like innkeeper-guest, common carrier-passenger, possessor of land open to public, or where has taken custody over such as to deny 2

of the normal ability to protect himself. Restatement 314: If sees in danger, he is under no legal obligation to attempt even as easy rescue. Simonson v. Thorin: Says has affirmative duty to use due care to remove hazard or warn others, though he was not negligent in creating the hazard. Restatement 321. [non-negligent creation] Mixon v. Dobbs Houses, Inc., 254 S.E.2d (Ga.App.1979) [FRG140, note 5] i.e., TBDR] a. Positive Exceptions to TBDR: Affirmative Duties to Act Predicated on s Special Relationship with i. Harper v. Herman: P injured diving off boat of D (who did not warn) into shallow water -> no special relationship b/c no custody, no power over welfare, no financial gain Superior knowledge without duty does not establish liability Restatement (Second) 314A: A special relationship giving rise to a duty to exercise reasonable care to warn includes 1) Common carriers, owed to customers (passengers); 2) Innkeepers, owed to guests 3) Possessors of land who make that land open to the public, owed to member of the public who enter the land. 4) Persons who have custody of another person under circumstances in which that other person is deprived of normal opportunities of self-protection, owed to the helpless person. a. Simonson v. Thorin, 234 N.W. 628 (Neb. 1931), briefly discussed. b. Mixon v. Dobbs Houses, Inc., 254 S.E.2d (Ga.App.1979) discussed. Duty based on (conduct of) coming to the aid of a helpless person ( Taking Charge ): Farwell v. Keaton: Farwell/Siegrist stalk some girls, guys beat them up, Farwell passes out and Siegrist leaves him parked in car overnight, dies of hematoma -> initiating aid created duty Restatement (Second) 324: [FRG141, n.4] If a person takes charge of another who is helpless, then that person is under a duty:




a) to exercise reasonable care to secure that helpless person s safety while in the actor s charge; and b) when discontinuing assistance, to exercise reasonable care to leave that helpless person in no worse position than when the actor took charge of him. Specific Implementation of TBDR: The Undertaking Doctrine If an actor voluntarily acts in a way designed to reduce the risk to which others may be exposed, then a duty of reasonable care exists if the actor increases the risk of harm to others or if others rely on the actor s undertaking. 1) Risk resulting from Ps foreseeable reliance on D s voluntary undertaking, so that P does not purse alternative means of self-protection. 2) e.g., Mixon v. Dobbs, FRG141, n.5 Note: courts are split on whether duty exists if undertaking does not worsen situation some say yes, some say no -> Concern of chilling effect on would-be rescuers if duty created

2. Negative Exceptions (Limitations on the Zone of Duty) courts have limited the duty of care on public policy grounds a. Moch v. Rensselaer Water Co.: Denial of duty to prevent the undue and indefinite (crushing) enlargement of the zone of duty. Cardozo called the negligent failure to provide fire hydrant water mere nonfeasance, at most the denial of a benefit , and not the direct commission of a wrong. didn t contract directly with . Finding otherwise = unlimited liability. a. failure to provide water to extinguish fire is nonfeasance in denial of benefit, not misfeasance b. Holding rejected by undertaking doctrine distinguishing installation vs. maintenance (i.e it s a complicated distinction!) c. Epstein on nonfeasance: duty under B top 197 Reasonable people both possessor and entrant? do not vary their behavior depending on the status of an entrant. 196 1/3 Unlike the pre-industrial world, expanding the orbit of a possessor s duty would not be unduly burdensome in the modern urbanized world. 196, 2/3

3. Duties of Business Owners to Protect Customer s from Criminal Activity: A business owner owes a duty to invitees to exercise reasonable care to protect invitees from foreseeable criminal attacks. [FRG206] Restatement 315(b) Legal Definition of foreseeable : Four approaches for determining whether a criminal attack was foreseeable. See 206-207. a. The specific imminent harm test: no duty unless aware of specific imminent harm. Doesn t matter if he should have known about it. Very limited. Restrictive. b. The prior similar incidents test: foreseeability established by evidence of previous crimes on or near the premises. (This test can lead to arbitrary results because it is applied with different standards regarding the number of previous 12

crimes and the degree of similarity required to give rise to a duty. Factors considered: nature and extent of previous crimes, recency, frequency, and similarity to crime in question.) c. The totality of the circumstances test: takes into account condition and nature of the land, previous crimes in area, etc. This is the majority approach, but very broad - tends to place a greater duty on their property, effectively imposing an unqualified duty to protect consumers in areas experiencing any significant level of criminal activity. d. The balancing test: the foreseeability of harm and the gravity of harm must be balanced against the commensurate burden imposed on the business to protect against the harm. In ca