week 4 - Monday September 13th 2010 I Unintentional torts A...

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Monday, September 13 th , 2010 I. Unintentional torts A. Negligence 1. It is probably the most common tort action in lawsuits. a. In order to win a negligence case, a plaintiff must prove four things: i. A defendant owed plaintiff a duty of care. ii. A duty of care has been breached. iii. The plaintiff sustained an injury iv. The breach caused to plaintiff’s injury b. Existence of duty is a question of law. c. There are certain business relationships that almost automatically require a duty of care – are called “special relationships” i. Employer – employee ii. Business owner – customer (business invitee) iii. Landlord - tenant d. If we go beyond the set of relationships where duty of care has been codified, we have to answer a number of questions in order to determine whether duty was owed. i. What kind of behavior would a reasonable person expect given the relationship between parties? ii. How likely is it that a person would get hurt within such a relationship or setting? iii. How (morally) outraged are we about the behavior in such circumstances? iv. Are there larger consequences to the community if such behavior is not curbed as a matter of public policy? e. Thompson v. Kaczinski i. A couple (defendants) living near a rural road dismantled a trampoline and stored the parts on their yard. A few weeks later a sever storm passed through the area and blew some of the parts onto the road. Thompson (plaintiff) was driving later that morning and swerving to avoid the obstruction hit a ditch and rolled his car. Thompson sued for breach of statutory and common-law duties, based on laws forbidding obstruction of roadways. Kaczinski filed motion for summary judgment contenting not owing a duty of care under the circumstances. The Iowa Supreme Court decided that defendants did not breach statutory duty because they did not intentionally put anything in the road, but did owe common law duty. Although the court acknowledged, as did lower courts, that defendants might not be expected to foresee the occurrence of such a specific event, the defendants did risk causing some sort of harm by leaving trampoline parts on their yard. ii. This is a classic example of confusion involving these types
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of cases. iii. The court adopted the position of the Restatement of Torts A restatement is a product of legal scholarship that lays out the rules and provides examples to show the meaning of laws Restatement clears up confusion by various courts Keep in mind that restatements are not the law. They are an articulation/clarification of legal principles that may or may not be adopted by specific courts f. Roland Feichtner v. City of Cleveland i. Feichtner and his wife were driving on a highway. While they were approaching an overpass, a construction boulder was thrown into the car windshield killing Mrs. Feichtner.
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