LEB EXAM TWO CHAPTER 20: TORTS I. Introduction a. Tort: Civil wrong other than a breach of contract (contract breach: voluntary agreement), for which an injured party may recover money damages. Breach of duty imposed by law. II. Negligence (Four-part legal definition) a. Part one: Duty of due care: what would a reasonable careful person do under similar circumstances given a reasonably foreseeable risk. i. Public Policy Factors 1. Defendant must owe a duty to the plaintiff “due care” 2. Defendant breached due care 3. Prove injury 4. Tie #2 and #3 together, that is was defendant’s doing to injury 5. Courts will analyze all of the following factors when deciding whether plaintiff was a reasonably foreseeable victim to determine whether D owed a duty of due care. (Soldano factors) a. Foreseeable harm b. Certainty of injury from negligence c. Connection between D’s conduct and P’s injury d. Moral blameworthiness e. Prevention of future harm f. Burden on D g. Consequences to community ii. Cases 1. In re Sept. 11 Litigation (S.D.N.Y. 2003) a. Families of 9/11 suing American Airlines for negligence lawsuit because they were responsible for on-ground security in the airport. D moved to dismiss on basis that even if they had been careless, in screening they did not owe a duty to the victims in NY because terrorists had not previously hijacked airplanes as a suicidal weapon to murder. Courts did not dismiss case because hijacking and crashing is reasonably foreseeable (weighing factors a-g). With respect to factor F, court said it was not unduly burdensome for the Ds to owe a duty of reasonable due care b/c Ds are in the business of safely transporting people. 2. Otis Engineering Co. v. Clark (Tex. 1983) a. There generally is no duty to control an employee, but employers exercise of control over incapacitated employee, or reasonably careful employer. Duty of reasonable care generally does not include duty on control 1
others under similar circumstances to prevent the employee an unreasonable risk of harm. 3. State of Texas v. Tidwell (Tex.App. 1987) a. Once you exercise control, you have duty to control the conduct. 4. Thapar v. Zezulka (Tex. 1999) a. Dr. Thapar is not liable, TX doctor-patient confidentiality with the exception: disclosure to police permitted only when threats show a probability of imminent physical injury (permitted = not required). iii. “Good Samaritans” 1. General rule: duty of reasonable care does not include a duty to help. The law does not require someone to be a good Samaritan. a. Case: Vedas v. Anon (Ariz. 2003)- Online chatter failed to summon aid, but owe no duty to rescue/help. 2. Exceptions: a special relationship (employer-employee, parent- child, common carrier-passenger, hotel-guest, etc.) or statute imposes duty (law that enforces duty) a. Case: Lindsey v. Miami Development Corp. (Tenn. 1985) Exception of special guest = duty to help. Lindsey’s family sued host, but MDC had a summary judgement (no trial) on claim to negligently maintain the premise.
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- Spring '08