Torts II - I II Joint Tortfeasors A Liability and Joinder...

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1 I. Joint Tortfeasors A. Liability and Joinder of Defendants B. Satisfaction and Release C. Contribution and Indemnity D. Apportionment of Damages II. Duty of Care A. Privity of Contract 1. Nonfeasence – Where the defendant has done no more than make a promise and break it. He has not acted on the promise. Only the contract action will lie. There can be no tort action. a. Exceptions: Common carrier or public utility or someone who has formed a contract without the intention to perform, a type of fraud. 2. Misfeasence – Where the defendant attempted performance but did the wrong thing. In this case a tort and contract action are both allowed. 3. Winterbottom v. Wright – service K, inaction by ) => no duty a. They didn’t create the situation or make it worse, they just didn’t make it better. This is the majority rule for service contracts 4. MacPherson v. Buick Motor Co. – supply K, action by ) => Duty, forseeabliltiy. MacPherson is different because the manufacturer did help create the situation. B. Failure to Act 1. The question is did the defendant create the risk of harm? In order for there to be a duty of rescue there has to be a special relationship and an element of control. 2. There is no general duty to rescue. 3. However the relationship of the parties may impose obligations that would not otherwise exist. i. where there is an invitee who is injured using something that is in the control of the business ii. ship master to make reasonable efforts to rescue a seaman who falls overboard i. employer’s duty is limited to where employee is evidently unable to look after himself. ii. Common carrier and passenger iii. Innkeeper and guest iv. Temporary legal custodian and his charge v. When the defendant by his own negligence injured another vi. When the defendant, without negligence creates a dangerous condition in the highway vii. A duty to act may be imposed whenever the defendant assumes a responsibility to act and such undertaking increases the risk of harm, or is relied upon 4. When there is particularized foreseeability…when a particular person has particular knowledge or a special reason to know that that a particular plaintiff would suffer a particular type of injury. Has to also be a public policy argument.
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5. When the defendant stands in a special relationship to a third person such that gives him a power of control over that persons action he is then required to use reasonable care to exercise that control to prevent the third person from injuring the plaintiff. a. parent and child b. employer and employee c. automobile owner and driver d. persons who have taken charge of lunatics, criminals, and persons with contagious diseases.
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