Torts_Goldberg_F2010-Outline-P.doc - Torts Negligence Prima Facie Case Injury Jury Question Duty Judge Question Breach Jury Question CausationActual and

Torts_Goldberg_F2010-Outline-P.doc - Torts Negligence Prima...

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Torts Negligence Prima Facie Case Injury Jury Question Duty Judge Question Breach Jury Question Causation— Actual and Proximate Jury Question Injury Types of Injury 1. Physical Harm 1. personal injury 2. property damage 2. Loss of Wealth 1. business profits 2. assets 3. Emotional Distress Duty —determined by judge, “Did A owe a duty to a class of persons including P to take care not to cause an injury of the kind suffered by P? ” I. General Duty of Reasonable Care-- avoid causing reasonably foreseeable harm to others A. Misfeasance—injuring someone through one's own conduct B. Originally, duty was limited to “privity of contract” cases, like Winterbottom. Slowly that began to evolve with cases like Thomas (Poison), Devlin (scaffolding), and Torgeson (Seltzer bottle) C. MacPherson v. Buick 1. If products' nature is such that if carelessly made it will probably cause physical harm through ordinary use and 2. The manufacturer knows the product is meant to be used by persons other than immediate buyers and they won't test it for safety then 3. Manufacturer is liable to end consumer for injuries caused by defects. D. “Orbit of duty” limits the court's extension of duty to include those you could “reasonably foresee” harming. (Heaven, Mussivand v. David—sexual partner's spouse reasonably foreseeable victim) II. Qualified Duties A. Affirmative Duty—duty to rescue 1. Nonfeasance--failure to take affirmative steps to assist someone 2. General presumption is no duty to rescue (Osterlind, drowning boater) even if foreseeable 3. Exceptions a. If you are the one who put the victim in the position, duty to help if things go wrong b. Special relationships torts restatement 314A (only duty of ordinary care) i. Innkeeper has duty to guests ii. Common carrier has duty to transportees iii. Landowner has duty to invited guest iv. Extended to business invitees (Baker v. Taco Bell)
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v. Therapist -3 rd party patient might hurt In California and half of states, (Tarasoff-- base ruling upon the special custodial relationship between Defendant and 3 rd party actor who actually caused the harm.) fundamental principle is “if someone is injured by carelessness, you should pay” based upon: a. Forseeability of harm b. Degree of certainty of injury c. Close connection b/w actions and injury d. Moral blame e. Policy preventing future harm f. Extent of burden g. Availability of insurance c. If you start rescuing, you have duty of reasonable care while rescuing i. Good Samaritan laws waive liability for rescuers in many cases B. Premises Liability Duty 1. 3 types of people, each owed a different duty a. Invitees —business customer, duty of reasonable care (Baker, Taco Bell fainting patron), means will keep premises reasonably safe and warn of hidden dangers, but not those in open view b. Licensees —social guest, duty to warm of hidden dangers known to owner i. if Invitee or Licensees go beyond scope of invitation, become trespassers and no duty is owed ( Leffler guy on “rooftop terrace”) ii.
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  • Fall '08
  • Sebok
  • Tort Law, i., duty, A.

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