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1L torts outline

1L torts outline

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torts
torts

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Torts – Fall 2011
I.Intro/Legal System
1.
What are Torts:
Civil Law connected with Injuries1.Laws exist to address problem or issue1.seeks to alter human behavior 2.Legal Theory is why a law exists1.what is the law addressing; what are its purposes3.Theories of tort law1.corrective: to deter/punish what behaviors are deemed bad, and rectify injury2.Economic: risk utility of dangerous actions to minimize cost of injuries4.3 basic questions: is there a law; has it been violated, what will be done5.Cause of Action is: legally recognized harm + private right of action1.not COA: facebook dis; speeding (no right to sue)
2.Example of Tort Suit
1.Woman goes to get cancer drugs and is given a different prescription by pharmacist working off of memory. Scrip leads to internal bleeding and large bill. ∆ Negligent(
Walter v. Walmart)
3.Tort Law in Context1.Legal Analysis
1.Given a set of facts: Analyze Rules, potential consequences, applied to facts, from objectivestandpoint, even in environments of uncertainty
2.Responsibilities
1.Respondeat Superior: let master answer (WM not Pharmer)2.Multiple tortfeasors, compounding parties (misdiagnosing doctor in WM)3.Comparative Responsibility (Woman not reading label)4.Insurance, does ∆ have it (Malpractice for Doc/Pharmacist)
3.Role of Atty's
1.Counsel/assis people with system
II.Negligence – Duty1.Overview1.Elements of prima facie case
1.
Duty- Obligation
to to act under a standard of care
 
(did pharmacist have
duty
of care toWalter)2.
Breach of Standard of Care-
conduct that falls below a standard of care
 
(
what was theStandard 
, and was is breached)i .easy case in (one-sided) vs. easy case out; legal issue (both sides)3.
Causation – 
the casual link between ∆ conduct and π injury (Did the misperscribed drug
 proximately cause injury
)4.
Injury-
harm permits recovery
 
(is the
injury
recognized)5.Burden of Proof is on πi .if ∆ does not prove defenses → liable6.Judge decides if duty exists
2.Duty, Reasonable Care
1.Duty Framewor
1.
General duty of 
Ordinary Care
i .when engaging in activities that create risk of harm»
 Exception: expressly limited liability
e.g. unforeseeable risk → injuryii .Was ∆ responsible for πiii .What is the standard of care
if duty?
»
General duty of ordinary care
»
 Extraordinary Care
»
 Exceptional care
2.
General No Duty
i .when ∆ didn't create risk of harmii .when ∆ failed to take action to benefit π/ warn π»e.g. failing to dial 911»
exception: special relationships
Affirmative DutyFamily/FriendDoctor/professionals∆ in control/care of π
 
Premises Liabilityduty to inspect for dangerous conditionsrepair dangerous conditionsWarn visitors of dangerous conditionsDuty depends on class of
 iteees duty same for all classifications: keep safe
2.Evolution of Duty
1.Duty originally restricted by privity; duty only to contracting party, other parties 'removed'from duty.i .Exceptions only for clearly imminent risks, dangers to mankind2.
General duty:
Wheel breaks on car. Π buyer, previously restricted by privity and unable tosue manufacturer.
 Now manufacturers have a duty toinspect products for reasonably foreseeable dangers.
Ending of privity. (
 MacPherson v. Buick 
)3.Man gets STI from unknowing wife who had an affair. 3d party had duty o
ordinary care tomitigate a
 
reasonably foreseeable risk 
and didn't tell wifewho would likely sleep with husband. (
 Mussivand v. David 
)
3.Qualified Duty1.Affirmative Duties to Rescue & protect
i .For special relationships
»
e.g. Family, Friends, Doc/Patient, Caregivers, innkeepers, common carriersii .IF special relationship, duty to:
»Render medical assistance/ call for help»Mitigate Injury»Rescue π»Warn of upcoming danger iii .Man rented out canoe to drunk man who overturned, cried out, and died. Lessor had onlyobligation to maintain canoe, not to playlifeguard.
General no-duty [to rescue and  protect]. (Osterland v. Hill)
2.Premises liability
i .Dealing with dangerous conditions on land or buildingsii .
General Duty for owner/occupiers of property to
:»
affirmatively inspect for dangerous conditions
»
 Repair dangerous conditions
»
warn of dangerous conditions
iii .Duty depends on status of π»
Trespasser 
:
 No Duty
π is on property without permission»
 Licensee
:
 Duty to Warn of Non-obvious Dangers
π is on land, but no benefit to ∆e.g. social guests»
 Invitee
:
 Duty to warn of Unreasonable Dangers & Inspect for Dangers
Owner receives in/direct financial benefit from πe.g. customer in businessiv .
 Restatement 314A:
A business which holds its land open to visitors has a duty to protectagainst accidental, negligent or maliciousacts of a third party on the premises, and to protect those on the land from the harm andwarn of dangersv .A man was injured in a fall in aTaco Bell. Ct summed for TB after no duty to call for help asserted.
 Duty to protect those on property as business,
only a duty tocall/render first aid. (
 Baker v. Fenneman
)vi .Man was paid customer at hotel. Climbs out window drunk and falls through ceiling in portion not open. The invitee classificationis limited to portions allowed by business,
thus he was a trespasser at the time of injury
 
 , no duty to warn as a business.(Leffler v. Sharp)
 
vii .Houseguests as licensees are entitled to rights as invitees
in some jurisdictions. Affirmative duty to keep premises safe for all classes.
(
 Rowland v. Christian
)
III.Negligence – Breach1.Breach Framewor1.Standard of care
1.
What was the Standard of care
i .
ordinary care:
The
default 
»ordinary care of a reasonable person in circumstances to prevent
 foreseeable injuriesassociated with risk (baselinerisk)
no duty to exceed this standard
ii .extraordinary care
»Heightened standard for persons of professional or commercial expertise (e.g.doctors, lawyers, commoncarriers)
 Professional: objective 'ordinary expert'; professional custom dispositive
Commercial: account for industry custom, not dispositve
iii .Exceptional Standard
»
Adults with disabilities
 physical disabilities are
 subjective
; “reasonable person with disability”
mental disabilities are
objective
»
Children: 2 Standards
Tender years: <7/7-14/14-18no breach/rebuttable not capable/rebuttable capable
Subjective standardreasonable child standard
adult activity
2.
Did ∆ Breach this standard?i .Objective Interpretation
»Reasonable person
ordinary care under circumstances»Extraordinary Care
experts by professional custom
commercial actors in light of trade
ii .Subjective Interpretation
»Physically Disabled»Children
iii .Economic View
»B<PxL (burden < Probability of Accident x Cost of Loss)
iv .Res Ipsa
»No other likely explanation2.A boy mowing the lawn was held to be not negligent.
 Reasonable person would look ahead where he was mowing. The object flying out was not reasonable foreseeable given the standard precautions. (Campbell)
3.Boy playing with 7 foot wire was not
 foreseeably injured 
when his wire struck an electric cable,some 7 feet below pedestrian bridge. (
 Adams
)4.Jury instruction for bus to follow reasonable person standard rejected.
Common carriers are held to an extraordinary standard: the highest degree of care. (Jones)
2.Meaning of Negligence1.Ris
1.Negligence is about controlling risks2.reasonable precautions must be taken to mitigate
 foreseeable
accidents3.establish a baseline risk by evaluating circumstances2.
Standard negligence is about what a reasonable person would do in circumstances given a risk.
The CNAs responsible for transferring the patient were not 'learned professionals'
thus must be held to reasonable person standards, not  professional standards. (Meyers v. Heritage Enters.)
3.Truck driver's
 professional standard of care was followed and thus there was no breach as the professional standard mitigated risk.
Thus driver not liable, jury coulddisregard testimony it did not believe. (
 Martin v. Evans
)
3.Reasonable Person

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