Torts Outline – Bernstein Fall 2019
I. Negligence
Negligence Overview
Negligence Prima Facie Case:
1)
Injury
2)
Duty (obligation to act with reasonable care) – law for judge
3)
Breach (did D deviate from the ideal) – fact for jury
4)
Causation (without the act, the injury would not have occurred) – fact for jury
a.
Actual
b.
Proximate
Plaintiff has to prove all four elements to recover, the defendant only has to refute one.
Duty
Negligence requires that the actor owe the victim a
duty
to follow a particular
standard of care
. If a duty
arises, the actor must behave according to the applicable standard of care or risk negligence liability. The
standard of care is
not the same
in every situation in which a duty exists.
Duty typically requires:
1)
Relationship between parties
2)
Reasonable foreseeability of harm
3)
Public policy interests
Heaven v. Pender –
Affirmative duty!
Physical
harm + Misfeasance: when your activity poses a foreseeable risk of physically injuring
a person, you have a duty of reasonable care
MacPherson v. Buick:
No privity required; as long as injury foreseeable/probable danger, then duty.
Palsgraf v. Long Island R. Co.:
Unforeseeable π’s claim arises based on the negligence of ∆ w/ respect to different π.
Cardozo: negligence is a term that imports relation
Andrew Dissents: He only needs 1) Injury, 2) Unreasonable conduct, 3) Actual Cause.
Duty & Exceptions
Most of the time, we have a duty of reasonable care owed to foreseeable victims (
Heaven v. Pender
),
except:
1)
Rescue (
Osterlind v. Hill
)
2)
Premises Liability (
Rowland
Factors)
3)
Economic Loss (
Aikens v. DeBow
)
4)
Policy (
Strauss v. Belle
)
5)
Emotional Distress
1
Torts Outline – Bernstein Fall 2019
1.
Affirmative Duties to Rescue:
The basic rule is there is no duty to rescue.
Osterlind v. Hill
(canoe)
o
Policy rationale: infringement on individual liberties by forcing unwilling bystanders to
act; difficult to write obligations.
Nonfeasance: failure to act
Even if a rescue is easy, it’s not required
Exceptions to No Duty to Rescue:
duty to make
reasonable efforts
to rescue
a)
Imminent peril caused by D (Weakest)
i.
Created risk or harm (even non-negligently), duty to exercise reasonable care
to assist.
ii.
Second Injury Rule, may be liable for harmed persons medical complications.
iii.
When an actor’s prior conduct, even though not tortious, creates a continuing
risk of physical harm of a type characteristic of the conduct, the actor has a
duty to exercise reasonable care to prevent or minimize the harm
b)
Voluntary Undertaking
If an actor voluntarily undertakes a rescue, a duty to follow through is established and the
actor must exercise reasonable care.
i.
Overt, explicit statement or gesture
ii.
Obligated to exercise reasonable care in undertaking.
c)
Special Relationship (between D and P)
i.
Some categories recognize duty for reasonable care, including to rescue:
a.
The Carrier/Passenger (Common Carrier)
b.
The Innkeeper-Guest
c.
Landowner-Entrant/Invitee
d.
Custodian-Ward
e.
Employer-Employee…
f.
Duty of care for friends on a social/joint venture to protect one
another.
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