TortsIWeek3 - an affirmative course of conduct that...

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TORTS I WEEK THREE FALL 2007 PROFESSOR GHOSH I. Elements of a claim for Negligence A. In order to establish a claim for Negligence, plaintiff must show (1) that defendant owed him a duty, (2) that the duty was breached through unreasonable conduct by the defendant, (3) that the defendant’s breach caused plaintiff’s injury, and (4) the plaintiff suffered an injury that can be compensated by law. B. The casebook states these elements in a way that may be more intelligible on page 48. C. Compare these elements with the plaintiff’s complaint on pages 1042-3 that we looked at last week. II. What counts as injury? Look over pages 48-50 A. Physical versus emotional injury B. Physical versus economic injury III. The Duty Element A. If the defendant undertook an affirmative course of conduct that resulted in a physical injury to the plaintiff’s person, courts readily found a duty. The difficult cases have tended to be ones in which the defendant failed to undertake an act or ones in which the defendant undertook
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Unformatted text preview: an affirmative course of conduct that resulted in a something other than a physical injury. B. Lack of privity of contract was seen historically as a bar to the imposition of a duty. See Winterbottom, p 55. Explanations for rule include 1. Protect contractual relationships between employers/businesses and other entities. 2. Concern with too broad a scope of liability for those who contract with others by limiting rights of third parties. 3. Overburdening courts with lawsuits. C. Exception to privity limitation: imminently dangerous products, see Thomas, p 57. 1. Note tension that arose in case law leading up to MacPherson, discussed on pages 58-59. D. MacPherson, p 59, did away with privity limitation in most instances under US tort law. 1. Problem with applying the Thomas precedent. 2. Expansion of Thomas precedent to items negligently made. What is the scope of the duty created by MacPherson? 3. Dissent, p 63: the Winterbottom precedent....
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This note was uploaded on 06/15/2009 for the course LAW 577 taught by Professor Staff during the Spring '09 term at SMU.

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TortsIWeek3 - an affirmative course of conduct that...

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