Torts Outline #2

 

BREACH OF DUTY

 

 

BREACH OF DUTY – Did D act unreasonably by breaching the applicable standard of care?

 

1. Balancing Test – Utility of conduct (utility, benefits &/or necessity of D’s conduct, along with any safer alternatives, including any burden to D & any excuse) v. magnitude of the  risk (the likelihood & severity of harm to P which might foreseeably by caused by D’s conduct)

              2.              D’s conduct is unreasonable if the magnitude of risk to P outweighs the utility of D’s conduct

             

DUTY – STANDARD OF CARE

 

Adults

 

              General Rule (GR):  General standard of “reasonable care under the circumstances” applies (duty to act as reasonable person under same or similar circumstances)

                            1)              Average, ordinary, prudent person in community

                            2)              Attributes of particular D are not taken into – consideration (e.g., objective standard)

                            3)              Mental disabilities of D are not taken into consideration (e.g., mental retardation, insanity, mental illness, intoxication)

                            4)              Learner held to general standard

 

              Characteristics of adult which are taken into account

1. Physical disabilities along with awareness of disabilities (e.g., reasonable blind man)

                            2)              Special skills & abilities – split re whether expert skills are taken into account

                            3)              Professional – Reasonably skilled, competent & experienced member of profession or occupation in good standing in same or similar community

                                          (more re special standard for physicians later in course)

 

 

              Standard of care in emergency – split

1. Some courts – Emergency doctrine – D confronting an emergency not of his or her own making is required to exhibit only an honest exercise of judgment
2. Some courts – reasonable care under the circumstances (with the emergency situation being one of the circumstances)

 

              Standard of care of common carrier – split

                     1)              Some courts – highest degree of care – see,                                           Andrews – p. 64 (next class)

          2)              Some courts – reasonable care under all of the circumstances of the particular case – see Bethel – p. 47

 

Children (up to age 18)

 

              Majority view (Maj):  Duty to act as reasonable (ordinary, prudent) child with age, intelligence and experience of D under same or similar circumstances 

                            1)  What is age, intelligence and experience of this child (subjective)?

                            2)  How would reasonable child of like age, intelligence and experience have acted under same or similar circumstances (objective)?

 

              Exception (Exc):  Adult activity (e.g., driving a car) – adult standard applies

 

              Some courts – presumptions

                            1)              Conclusive presumption – children under certain age (4 to 7) incapable of negligence

                            2)              Rebuttable presumptions

                                          a)  Children under 14 rebuttably presumed incapable of negligence

                                          b)  Children over 14 rebuttably presumed capable of negligence

 

BOARD NOTES – SEPTEMBER 5, 2006

DUTY – SPECIAL STANDARDS OF CARE

 

 

SPECIAL STANDARD OF CARE BASED ON CUSTOM

 

              Established by showing practice is fairly well-defined in same business or industry so that D may be charged with knowledge of custom or with negligent ignorance – Andrews v. United Airlines (airplane overhead bin case, p. 66) & Trimarco v. Klein (shower door case, p. 69)

 

              If custom is established

1. Evidence of standard of due care owed by defendant but is never conclusive
2. Shows others in same business have found way to do

    something in safer manner than D & that safer way is

    feasible

 

              Conformance with custom – admissible as evidence of standard of care but is not conclusive

 

              Deviation from custom

                            1)              May be used to show D has fallen below required standard of care (but is not conclusive)

                            2)              Entire business or industry may not be exercising due care

 

SPECIAL STANDARD OF CARE BASED ON AN APPLICABLE CRIMINAL STATUTE

 

              Statutory standard of care applies if

                            1) Statute is clear as to standard of conduct expected

                            2) P falls within protected class as primary or (some courts) secondary purpose

                            3) Statute designed to prevent this type of harm as primary or (some courts) secondary purpose (includes all risks of harm that may be foreseen as likely to follow from the statute’s violation)

 

              Statutory violation may be excused if

                            1)              Necessity – compliance would be more dangerous than non-compliance – Tedla v. Ellman – p. 78

                            2)              Incapacity – compliance would be impossible

                            3)              Emergency (not of D’s own making)

 

              Breach of duty if D’s conduct violates applicable statute without excuse

 

              Legal effect of D’s unexcused violation of applicable statute – “PRE”

                            1)              Maj. – negligence Per se – conclusive presumption of duty & breach of duty – Martin v. Herzog – p. 75

                            2)              Min. – Rebuttable presumption

                            3)              Min. – Evidence only

 

              Legal effect of D’s compliance with statute

                            1)              Evidence of due care but not conclusive

                            2)              D may still be acting negligently because statute establishes only minimum stand. of care so also need to analyze breach of duty based on general standard of care

 

PROOF OF NEGLIGENCE

 

CREATING AN INFERERENCE OF WHAT HAPPENED USING CIRCUMSTANTIAL EVIDENCE

 

              Constructive notice of dangerous condition – defect must be visible & apparent & must exist for sufficient length of time before accident to permit D to discover & remedy it – Negri v. Stop & Shop, p. 87 (holding that evidence that dirty & messy jars of baby food that were left in a grocery store aisle &  cleaned up for 15-50 minutes before P slipped was sufficient circumstantial evidence to permit a jury to draw an inference that D had constructive notice of the slippery condition) v. Gordon v. American Museum of Natural History – p. 88 (holding that there was no sufficient circumstantial evidence that D had constructive notice of a dangerous condition where P asserted he saw a waxy paper, that was not dirty or worn, after P slipped but no one saw the paper prior to the accident)

 

              Self-service/mode of operation/business practice approach: P is not required to prove notice if D could reasonably anticipate that hazardous conditions would regularly arise; D assumes responsibility for conduct of careless customers & duty of care to use reasonable measures to discover & remove debris from floor

 

 

 

BOARD NOTES – SEPTEMBER 12, 2006

PROOF OF NEGLIGENCE (CONT.)

 

RES IPSA LOQUITUR

 

              Res ipsa loquitur (“the thing speaks for itself”) – a rule of evidence that permits an inference of negligence under certain circumstances

 

              Res ipsa loquitur is established if

 

                            1)               Accident normally doesn’t occur without someone’s negligence – Byrne v. Boadle – p. 92 (holding that the fact that a barrel of flour fell from a window is prima facie evidence of negligence & if there are any facts inconsistent with negligence it is for the D to prove them)

 

2)              Negligence attributable to D – D was in actual or constructive control over instrumentality of harm (constructive control = power of control & opportunity to exercise that control) – McDougald v. Perry – p. 95 (holding that a spare tire falling out of its cradle underneath a trailer would not normally occur without negligence by the person who had control over the tire)

 

              a)              Some courts:  Require sole or exclusive control & hold that res ipsa may not be used if more than one D may have been in control over instrumentality

 

b)  Some courts:  Find exclusive control in cohesive group, e.g., Ybarra v. Spangard – p. 102 (applying res ipsa against doctors & nurses who had control over an unconscious P & the instrumentalities that might have caused injuries to P’s shoulder while he was undergoing an appendectomy)

 

3)              Some courts:  Require that neither P nor any third party contributed to or caused P’s injury (note:  you will learn later in the course that some courts apply res ipsa even if P is contributorily negligent & consider P’s negligence as part of comparative negligence)

 

              Legal Effect of establishing res ipsa loquitur – RID

 

                            1)              Maj. – permissible Inference of negligence

                            2)              Min. – Rebuttable presumption

                            3)              Min. – Disappearing presumption

 

MEDICAL MALPRACTICE

 

MEDICAL PRACTICE & RES IPSA LOQUITUR

 

              Expert testimony re res ipsa loquitur may be used to establish medical malpractice – State v. Lourdes Hospital (covered in next reading assignment)

 

STANDARD OF CARE FOR PHYSICIANS

 

              1.  GR – standard of care customarily exercised by members of medical profession in same or similar community

              2.  Growing trend – national standard of care for all physicians – Sheeley v. Memorial Hospital – p. 111 (episiotomy case)

              3.  Specialists are held to the standard of reasonably competent practitioner in same specialty acting in same or similar circumstances

              4.  Two schools of thought doctrine:  Physician can follow view of considerable number of reputable & respected medical experts, even if in the minority of the medical profession (covered in next reading assignment)

 

ESTABLISHING MEDICAL MALPRACTICE

STANDARD OF CARE FOR PHYSICIANS

 

              1.  GR – standard of care customarily exercised by members of medical profession in same or similar community

              2.  Growing trend – national standard of care for all physicians – Sheeley v. Memorial Hospital – p. 111 (episiotomy case)

              3.  Specialists are held to the standard of reasonably competent practitioner in same specialty acting in same or similar circumstances

              4.  Two schools of thought doctrine:  Physician can follow view of considerable number of reputable & respected medical experts, even if in the minority of the medical profession

 

ESTABLISHING MEDICAL MALPRACTICE

 

P must establish standard of care required and that D departed from that standard (breach)

GR:  Expert testimony required

1. Experts in one specialty can testify regarding another specialty if negligence allegations concern matters within their knowledge, skill, experience, training or education – Sheeley

4.  Obvious occurrence exception:  Expert testimony is not needed if negligence is matter of common knowledge (e.g., D operated on wrong leg)

 

 

BOARD NOTES – SEPTEMBER 19, 2006

DUTIES OWED BY LAND OCCUPIER

 

1.  Duties Owed To Persons Outside The Land

 

              Natural Conditions (e.g., native trees, rocks)

                            GR: No duty in rural area

Exc:  Duty in urban area to prevent native trees on property from creating unreasonable risk of harm to travelers on adjacent public streets

                                          Min: Duty also applies to rural land occupier

              Artificial conditions (e.g., fences, buildings)

                            GR: Same as duty re natural conditions

Exc: Duty of reasonable care to inspect & maintain artificial condition protruding onto or abutting adjacent land

Exc: Duty of reasonable care to protect users of public road if artificial condition substantially adjoins road

 

              Activities (use to which land is put)

GR: Duty of reasonable care not to engage in any activity foreseeably involving an unreasonable risk of harm to persons or property outside the land

 

2.  Duties Owed to Persons Coming On Land

 

Maj. – CL Categories/Status Approach

             

              Categories imposing limited duties & standards of care based on legal status of P – Carter v. Kinney – p. 190 (no duty to protect P-licensee, at D’s home for Bible Study group, from icy steps which were dangerous condition unknown to D)

 

              Unknown adult or child trespassers:

                            Trespasser = anyone coming onto land without legal privilege or express or implied permission of land occupier

                            No duty except to refrain from willful & wanton conduct

                            No duty to discover presence

 

              Known trespasser:

                            No duty re natural conditions on land

                            No duty to warn or make safe (WOMS) artificial condition on land unless risk of death or serious bodily injury & trespasser unlikely to discover (e.g., concealed well)

                            Duty to WOMS all activities on land that involve risk of harm if trespasser is unlikely to discover

 

              Constant Trespasser Upon A Limited Area (CTULA)

 

              Persons who land occupier knows or should know habitually intrude on portion of land (e.g., shortcut to town)

                            No duty re natural conditions

              No duty to warn or make safe (WOMS) artificial conditions unless risk of death or serious injury & CTULA unlikely to discover

              Land occupier can convert CTULA into ordinary trespasser by acts showing objection to intrusion (e.g., no trespassing signs) unless intrusions continue & land occupier doesn’t do anything about it

 

              Known child trespasser (“attractive nuisance doctrine”):

              Duty to WOMS artificial conditions which land occupier knows or should know involve an unreasonable risk of death or serious bodily injury if

              1) Location of dangerous condition is one where land occupier knows children are likely to pass and

2) Dangerous condition is one which children, because of their immaturity, don’t discover or are unable to realize danger and

1. Utility of maintaining condition & burden of eliminating danger are less than risk to children

                           

                            Duty even if condition is not “attractive” to children

                           

              Licensee:

                            Person coming onto land with express or implied permission of land occupier for person’s own purposes with no particular benefit to land occupier, e.g., social guest or visiting relative

                            Duty to WOMS all natural & artificial conditions & activities involving any risk of harm if known to landowner & not obvious to reasonable licensee

                            No duty to inspect & discover danger

 

              Invitee:

              Person coming onto land with express or implied permission of landowner for material benefit to or purpose related to activities or interest of landowner, e.g., business visitor (person who is invited to enter or remain on premises for business dealings with occupier) or public invitee (person who is invited to enter or remain on premises for purpose land is help open to public)

                            Duty to WOMS all natural & artificial conditions & activities involving risk of harm known to the landowner & not obvious to the invitee

                            Duty to inspect & discover any dangers

 

Min. – Reasonable care under the circumstances

 

              Test is whether land occupier has acted as reasonable person in management of his property in view of likelihood of injury to others, i.e., reasonable care under the circumstances – Heins v. Webster Co., p. 197 (abandoning distinction between licensees & invitees & finding duty of reasonable care owed to all visitors to hospital, including P-licensee who slipped on accumulated ice) & Rowland v. Christian (Calif.)

 

              Factors to consider in evaluating whether a land occupier has exercised reasonable care include

1. The foreseeability or possibility of harm
2. The purpose for which the P entered the premises
3. The time, manner & circumstances under which the P entered the premises
4. The use to which the premises are put or are expected to be put
5. The reasonableness of the inspection, repair or warning
6. The opportunity and ease of repair or correction or giving of the warning and
7. The burden on the land occupier and/or the community in terms of inconvenience or cost in providing adequate protection

 

 

 

 

 

DUTIES OWED BY LANDLORDS TO TENANTS & TENANTS’ VISITORS

 

Duty owed by Landlord (L) to Tenant (T) regarding dangerous conditions in existence at time of transfer of property

 

              Patent dangers – no duty to WOMS; T charged with knowledge of condition if reas. person would have been aware

              Latent dangers – (i.e., L aware, T not aware) – duty to WOMS but no duty to investigate & discover

 

Duty owed by L to T regarding dangerous conditions in existence after transfer of property

 

                            GR:              L owes no duty to T (rationale: Tort liability for dangerous conditions is generally based on control; in L/T situation, control & possession have been transferred from L to T)

                            Exc:              L fails to make repairs

                                          Many courts:  Duty if lease (rationale:  T had right to rely on promise in lease)

                                          Some courts:  Duty if gratuitous promise (rationale:  T relied on promise & failed to make repairs)

                                          Some courts:  Duty if statute requiring L to keep premises in safe condition

                            Exc:  L undertakes repairs – duty of reasonable care

 

Duty owed by L for “common areas”

 

              GR:              L has duty to WOMS & inspect & discover dangerous conditions (rationale: L has control of areas)

 

Duty owed by L to safeguard against criminal acts of 3^{rd parties}

 

              ^{Off premises – no duty}

              ^{On premises – duty of reas. care to protect T’s against foreseeable criminal acts of 3rd parties}

 

 

^{BOARD NOTES – SEPTEMBER 26, 2006}

 

^{UNEXPECTED VICTIM (UNFORESEEABLE PLAINTIFF)}

 

^{GR:  If a reasonable person would not have foreseen injury to anyone from D’s neg. conduct, there is no duty owed to any person unexpectedly hurt by D’s negligence}

             

^{GR:  If a reasonable person would have foreseen injury to the plaintiff from D’s negligent conduct, there is a duty owed to the “foreseeable plaintiff” (and to anyone foreseeably injured by or along with the P, e.g., rescuers)}

 

^{Split re duty if a reasonable person would have foreseen danger to someone from D’s negligent conduct but injury occurs to someone else who is an unforeseeable P – Palsgraf v. Long Island Railroad,  p. 425 (no duty owed to unforeseeable plaintiff, who was not within zone of danger, created when D-railroad employee negligently dislodged innocent-looking package containing fireworks from arms of passenger boarding train; fireworks exploded causing concussion knocking over scales at other end of platform, injuring P)}

 

              ^{Cardozo narrow view (maj. opinion in Palsgraf) – foreseeable P or zone of danger doctrine (P was a “foreseeable P” located in a foreseeable “zone of danger”) – D owes duty of care only if reasonable person would have foreseen risk of harm to P or a class of persons to which P belongs (D in Palsgraf case only could foresee harm, i.e., only owed a duty, to passenger, passenger’s package or persons near passenger but not to P who was considerable distance away)}

 

              ^{Andrews broad view (dissenting opinion in Palsgraf) – duty owed to anyone who suffers injuries proximately caused by D’s negligence (D in Palsgraf case owed P a duty of care despite fact that injury to P was unforeseeable if her injuries were proximately caused by D’s negligence)}

 

^{OBLIGATION TO OTHERS:  AFFIRMATIVE DUTY TO ACT}

 

^{AFFIRMATIVE DUTY TO PREVENT HARM}

 

                            ^{GR:  No duty}

                            ^{Exc:  special relationship between plaintiff & defendant – Harper v. Herman – p. 134 (holding, where P was injured in a diving accident, that D-boat owner/driver had no duty to warn P that the water was shallow because there was no special relationship between P & D since P was not particularly vulnerable & had no reason to look to D-boat driver for protection & P should have recognized the “inherent dangers of water”)}

                                          ^{Characteristics of special relationships}

1.    ^{P is particularly vulnerable & dependent on D}

                                      ^{2.            P lacks ability to protect him or herself & expects}

                                                 ^{protection from D}

                                     ^{3.         D holds custodial or other power position over P and/or}

                                     ^{4.       D derives some existing or potential economic advantage from P}

                            ^{Exc:  Responsibility for creating risk of harm}

 

              ^{2.  DUTY TO AID OR RESCUE P IN PERIL OR IN AN EMERGENCY}

 

                            ^{GR:  No duty}

                            ^{Exc:  Special relationship (e.g. parent-child, carrier-passenger, jailer-inmate) – Farwell v. Keaton – p. 140 (holding that D had a duty to obtain medical treatment for the severely beaten P because P & D had a special relationship since they were companions on a social venture & D knew or should have known of P’s peril & that he could render assistance without endangering himself)}

                            ^{Exc:  Responsibility for P’s peril}

                                          ^{CL:  No duty unless D acted negligently in causing P’s peril}

                                          ^{ML:  Duty even if D did not act negligently in causing P’s peril}

                            ^{Exc: Voluntarily undertake aid – if D voluntarily undertakes to aid P, even if D is otherwise under no duty to do so, D owes duty of reasonable care}

                                                        ^{Some states – abandonment OK if P in no worse condition & didn’t deprive P of chance of aid from others}

                           

              ^{3.  DUTY TO PERFORM GRATITUOUS PROMISES}

 

                            ^{GR:  No duty to perform gratuitous promises}

                            ^{Exc:  Undertaking performance of promise}

                            ^{Exc: Some courts (e.g., Calif.) – duty based on foreseeable reliance}

 

^{4.  DUTY TO PROTECT A THIRD PARTY}

 

                            ^{GR:  No duty}

                            ^{Exc:  Special relationship with person whose conduct needs to be controlled or with foreseeable/readily identifiable victim of conduct – Tarasoff v. Regents – p. 157 (special relationship between psychotherapist & patient – duty if therapist knows, or under applicable professional standards reasonably should have determined, that patient poses serious danger of violence to others, therapist bears duty of reasonable care to protect foreseeable/readily identifiable victim of that danger).}

 

 

              ^{The Tarasoff case listed the following considerations that go into deciding whether to impose a duty:}

1. ^{Foreseeability of harm to P (“the most important” consideration)}
2. ^{Degree of certainty that P suffered injury}
3. ^{Closeness of connection between D’s conduct and the injury P suffered}
4. ^{Moral blame attached to D’s conduct}
5. ^{Policy of preventing future harm}
6. ^{Extent of burden to D}
7. ^{Consequences to the community of imposing a duty to exercise care with resulting liability for breach}

^{Availability, cost & prevalence of insurance for the risk involved}                           

 

 

 

^{BOARD NOTES – OCTOBER 3,  2006}

              ^{OBLIGATION TO OTHERS:  AFFIRMATIVE DUTY TO ACT}

 

 

^{DUTY CREATED BY STATUTORY LAW}

 

              ^{Statutes in some states create a duty when otherwise there would not be one under common law, e.g., statutes creating duties of “safe rescue”, reporting child abuse, reporting witnessed crimes and providing emergency medical treatment}

 

              ^{Availability of a private right of action for a statutory violation}

1. ^{Statute itself may expressly authorize a private right of action}
2. ^{If statute does not expressly authorize a private right of action, the court has to determine whether a private right of action can fairly be implied based on three-part test – Uhr v. East Greenbush Central Sch. Dist., N.Y., 1999, p. 168 (private right of action could not fairly be implied against school district for failing to test child for scolisois as required by Education Law)}

1. ^{Whether plaintiff is one of the class for whose particular benefit statute was enacted}
2. ^{Whether recognition of private right of action would promote the legislative purpose}

1. ^{What was the legislature seeking to accomplish when it enacted the statute?}
2. ^{Would a private right of action promote that objective?}

3. ^{Whether creation of such a right would be consistent with legislative scheme}

 

^{DUTY OWED BY MERCHANTS TO PROTECT COMMERCIAL CUSTOMERS FROM CRIMINAL ACTS OF THIRD PARTIES}

 

              ^{GR:              Duty to use reasonable care to protect commercial customers against foreseeable criminal acts of third parties}

              ^{Approaches for determining if criminal acts are foreseeable:}

 

1. ^{Specific harm rule: Foreseeability is based on D’s awareness of specific, imminent harm about to befall P}

 

2. ^{Prior similar incidents test: Foreseeable evidence of previous crimes on or near premises}
3. ^{Totality of circumstances test: Foreseeability is based on factors such as nature, condition & location of land as well as any other relevant factual circumstances}
4. ^{Balancing test: Duty is determined by balancing foreseeability & gravity of harm against burden on business to protect against that harm – Posecai v. Wal-Mart Stores, Inc., p. 211 (using balancing test to determine that D did not owe a duty to P, who was robbed at gunpoint, to provide security guards in its parking lot where there was a very low crime risk with only one other prior similar incident)}

 

^{DUTY TO PERFORM CONTRACTUAL PROMISES}

 

              ^{Liability to third parties not in privity of contract}

                            ^{GR:  No tort liability for nonfeasance}

                            ^{GR:  Tort liability if misfeasance based on tort negligence standards rather than contract law (i.e., foreseeability of harm v. privity of contract)}

                            ^{Exc: Limitations on liability for contractual misfeasance even if foreseeable harm, e.g., “crushing liability” – Strauss v. Belle Realty Co. – p. 176 (holding, as a matter of public policy & to avoid unlimited liability, that D-Con Edison was not liable to P-tenant, who was injured in a common area of his apartment building during the New York City blackout because P had no contractual relationship with Con Ed for lighting in the building’s common areas)}