Torts Class Notes 11/04/2010

NEGLIGENCE
Act by defendant
Negligent Act
Duty
No Duty
No duty to control third party, unless
Defendant has a relationship of control over third party.
Duty of reasonable care

Breach
Cause in Fact
But for test
Substantial factor test
Proximate Cause (Scope of liability / Matter of Policy)
Harm to Plaintiff

Damages available are Compensatory

Should there be a total blanket immunity for people who come to

rescue for all aspects or should there be duty only for negligence claims?
Vermont state as soon as you use gross negligence (recklessness) you
lose all immunity.
 Recklessness is a better tort attempt than any other tort as gives you
access you to liability.
It is a strategic consideration.
Recklessness and negligence are compatible torts, and will combine
the two. If prevail will be great as otherwise will fall back on negligence.

California uses the substantial factor test.

Substantial factor test has to be used in the Anderson case, but the
general rule is that the cases are interchangeable.

NY Central R. R. V. Grimstad (1920)

The plaintiff would not have been harmed if there was no collision.
Substantial factor test permits multiple causes to come to bear.
The act of the barge was active misfeasance.
However, the suit is against the employer of the captain and therefore, this
is a case of nonfeasance.

Palsgarf Case
Passenger with package trying to get on the train.
Defendants pushing and pulling to get passenger on the train.
Package falls to the ground it explodes, and creates reverberations
that cause scales to fall over hitting the plaintiff on the head.
20-30 feet away from the passenger, and she is a person holding a
ticket for another train.

November 8th 2010

 The tests for proximate cause are; foresight, direct consequences,
scope of risk and policy test.
The foresight test is really a hindsight test. It is looking at how
defendants conduct rippled into the world, and where the line for liability will
be drawn.

Direct consequences. The defendant conduct has a causal connection

to the harm suffered by the plaintiff.
Start looking for indications of intervening forces.
Will any of the intervening forces be a superseding cause.

Will the pulling and pushing of a passenger onto a train pose a risk to
a 3rd party plaintiff? (Palsgarf Case).

Wisconsin only used the policy test.

Assuming the defendant performed an act that was cause in harm.
Should the defendant get off on grounds of policy.
This question is almost always answered by the judge.
Critics, oppose the power placed in the hands of the judge.

Derdiarian v. Felix Contracting Corp. (1980)

Substantial Factor test should only be used to talk about cause in fact
Is it a normal and foreseeable under the defendants actions.
There is misfeasance by the driver of the car.
The sub-contractors should have erected a barrier that would have protected
the plaintiff when the car came into the area. This was an act of nonfeasance
and generally there is no duty to this rule.
The exception to this rule is if there is a special relationship, and in this case
there was such a relationship between the plaintiff and the sub-contractor.
An intervening act may not serve as a superseding cause, and relieve an
actor of responsibility, where the risk of the intervening act occurring is the
very same risk which, render the actor negligent.

Wagner V. International Ry (1921)

Plaintiff fell off a beam while looking for his cousin who had been thrown off
a train.
What was the defendants negligence?

November 9th 2010

NEID by direct victim
Act by defendant
Negligent Act
Duty
Breach
CH, Pe to proximate cause, and defendant is not P.C. of ED to direct plaintiff
unless.
Harm to plaintiff is emotional distress.

IIED/REID by direct victim

Act by defendant
Intent to cause SED or reckless act that causes SED
Extreme + Outrageous
Cause in Fact
Proximate Cause
Severe Emotional Distress (SED)

Mitchell v. Rochester
Plaintiff was in the middle of horses that caused her great apprehension of
danger.
Defendant was negligent in his operation of his team of horses.
Defendant could be sued for negligence if it had directly impacted the
plaintiff.
Defendant was not proximate cause of harm, unless sustained physical
impact.
Physical impact rule used to verify the genuineness of the claim.

Proximate cause defendant is not proximate cause of emotional distress to

direct plaintiff unless:
1. Physical Impact to plaintiff OR
2. Resulting physical manifestations of emotional distress to plaintiff.

Battalla v. State
9 year old girl scared by being put in a ski lift without being strapped in.
Wrongdoer is responsible for natural and proximate causes of action.
Opportunity to prove defendants conduct proximately cause injuries should
be permitted.
The court adopts the resulting physical manifestation of emotional distress to
the plaintiff.

Negligence: Act by defendant, cause in fact, and the harm to the plaintiff.
Molien v. Kaiser Foundation Hospitals
The main issue is whether the plaintiff is the direct victim.
The general standard of proof required to support a claim of mental distress
is some guarantee of genuineness.
HOLDING: CAUSE OF ACTION MAY BE STATED FOR THE NEGLIGENT
INFLICTION OF SERIOUS EMOTIONAL DISTRESS.
California has adopted the rule that there must be serious emotional distress
to plaintiff.
There must be some guarantee of genuineness in the case.

Indirect Plaintiffs
Dillon v. Lagg
Sister hit. Plaintiff in the street and the second plaintiff is the mother who
was standing on the sidewalk.
An indirect victim is someone who witnesses a tort.
The third potential plaintiff could be someone who in the house, and doesn’t
see anything and no direct knowledge of the tort. Arrive at scene after the
tort is concluded to even know indirect victim of a tort.
Lower court decided that the mother was not in the zone of danger.
If the indirect victim has resulting physical manifestations.
The mother has to demonstrate resulting physical manifestations, show she
has close relationship, and near the scene of the accident.

Proximate Cause
Defendant is not proximate cause of emotional distress to indirect plaintiff
unless
1. Zone of danger
2. If indirect victim has resulting physical manifestation, close relative
and near the scene.
3. If indirect victim has serious emotional distress and close relative and
is present.
November 11th 2010
IIED/RIED
ACT BY DEFENDANT
Intent (purpose or knowledge test)
OR reckless Act
Duty to use Reasonable Care
Breach
Defendant contractor really should have known of chance of harm.
Defendant created highly unreasonable risk of harm.

E+ O Conduct
Cause in Fact
Proximate Cause
Direct Plaintiff (Not an issue?)
Defendant is not proximate cause of emotional distress to indirect plaintiff,
unless
Severe emotional distress plus ”close relationship “plus” present” OR
Severe emotional distress plus “present” plus “resulting physical
manifestations.

Medical Practice is Negligence

Act by defendant
Negligent Act
Duty
No Duty
Limited Duty
Duty of reasonable Care
Duty to do what a reasonable person would do under ______ circumstances

Breach
Cause in Fact
Proximate Cause
Proximate to Plaintiff

November 15th 2010

CONTRIBUTORY NEGLIGENCE
Act by defendant
Contributory negligent act
Duty to Plaintiff
Duty to do what a reasonable ____ person
Would do under _______ circumstances
Breach
Cause in Fact
Proximate Cause
Harm to Plaintiff

This is an affirmative defense

Contributory negligence was a complete bar to recovery under old English
law.

CONTRIBUTORY NEGLIGENCE PER SE

Act by defendant
Contributory negligent act
Duty to plaintiff
Statutory duty?
Statutory application?
Violence excused?
Breach
Cause in Fact
Proximate Cause
Harm to Plaintiff

In the Tedla v. Ellman found that although statute said one thing.
Violation was excused of statute because of customary nature where safer to
work on the other side of the road.
Plaintiff barred from recovery when fault goes to over 50 %.

November 18th 2010

PRODUCTS LIABILITY
Act by Defendant
Defective Product
Cause in Fact
Proximate Cause
Harm to Plaintiff

Only compensatory damages are available

November 22nd 2010

Product not only had defect but made it unreasonably dangerous to the
consumer.
All products are defective products.
Design defects are unreasonably dangerous products.

November 23rd 2010

Act by Defendant
Defective Product
Manufacturing + Design Defect
Failure to Warn (Defendant Knew or should have known of risk)
Only theory of liability if “unavoidably unsafe’ product.
Duty to warn doctor only? Also consumer?
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