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TORTS: The Civil Law of Reparation for Harm Done by Wrongful Act Professor Joe Little Fall 2004 Background Information
A. The Law
A.a. What is truth? Desire to win cases causes conflicts
A.b. Meaning of Law – lawyers must solve problems as law is now v. change for
future
A.c. Jurisdiction
A.i. Geographical limitation
A.ii. Substance – amount of power given to particular agency
B. Deductive or Natural Law Approach
A.d. Mainly adopted by civil law countries
A.e. Reason out general set of provisions or code that we follow
A.f. Self-evident precepts attaching to all mankind – “Thou Shalt Not Kill”
A.g. Grocious – Dutch Scholar – moral conservation of human nature
A.iii. Abstain from Others Stuff – shall not steal
A.iv. Fulfill promises – contracts
A.v. Something – torts
A.vi. Etc.
A.h. All states except La. are common law
A.i. Early ex. – 10 commandments – more philosophical, and legal experts more revered,
b/c based on legal philosophy
C. Inductive or Common Law Approach
A.j. England is Mother – began when people went out to solve conflicts for King
A.k. Corpus juris – body of the law – law grows case by case, brick by brick
A.l. Stare decisis - precedent, once decided, we must follow it
A.vii. Decided b/c some states have precendential jurisdiction (Supreme
Court is federal, Florida’s Supreme Court rules FL law)
A.viii. Law of torts – decided by each state, so FL has control of its own law
A.ix. Follow England’s law for pre-1776 concepts decided – Fla. Stat. 2.01 –
England’s common law pre-1776 is our law, unless abrogated by statute, case, etc.
A.m. Statutes codification, so like Civil Law, but based on case law
A.x. Criminal law almost all statute
A.xi. BUT, torts almost all common law
A.xii. Constitution not Civil Law b/c Court decides what it means
A.n. Courts don’t make law; they find law
A.o. In England, House of Lords decided it could reverse a decision, but not until
then Chapter 1: An Introduction to the Background and Theory of Tort Law
A. Definition
A.a. Law- society’s tool for regulating human behavior and sanctions of state
influences you
A.i. Regulatory laws – i.e. traffic and securities
A.ii. Others truncate at margin - what society thinks is acceptable or not,
i.e., torts – divides behavior that causes injury
A.b. Torts – Injury causing behavior, wrongful civil harm
A.iii. Encompasses all civil wrongs except contracts and those by statute
A.iv. Can also be a crime – i.e. shooting someone with a gun is a crime, but
victim can also file a civil suit
A.c. 2 Classes of Torts
A.v. Class that causes actor to compensate for harm done
A.vi. Class that doesn’t
A.d. Reparation – if you do wrong, must pay b/c keeps people from doing bad things
A.e. OW Holmes, Jr. = the Great Dissenter
A.vii. Torts draws line for where man is liable for harm he causes and where
he isn’t
A.viii. In most instances whether harm is caused is chance, and frequently
none of us can predict it Chapter 2: Preliminary Concepts § 2.01 Introduction
A. Litigation Process
a. Substance – Substantive
A.xiii. Rule that Applies (i.e. Thou Shall Not Steal)
A.xiv. If has stolen, come up with remedy
A.xv. If all substance present, P has cause of action
b. Procedure – Procedural
A.xvi. Trial, etc. where try to determine truth of allegation
A.xvii. Judges make decision as to whether it’s substance or procedure
A.xviii. Jury – determines disputed facts – we all have right in torts
cases but may waive
C.1. jury’s version of facts as “God Knows Them”
C.2. Determine by evidence, instructions by judge, and lawyer’s
arguments
C.3. Determines whether ∆ negligent
A.xix. Lawyers – manger of team, decide theories and tactics
A.xx. FL’s Courts
C.4. 2 trial courts – circuit and county
C.a. Circuit – includes number of counties, 11,
general jurisdiction and appeals of county courts
C.b. County – just its county, 67
C.c. District Court of Appeals – 5, made up of circuit
courts jurisdiction, appeals are appeals of error
C.i. Most cases stop here
C.ii. When DCA makes decision, law in that
district, but not in others – until S. Ct. rules on the difference between the 2
C.d. Supreme Court – its decisions are the law in FL
for all courts
A.xxi. Stages
C.5. Lawyer must determine if want client – if believes in cause,
must have fiduciary duty – zealous representation, interest of client 1 st^ , confidentiality, complete candor
C.6. Complaint – set out statements of cause of action (legal basis
on which P should receive relief from ∆)
C.e. Must be in proper court with filing fee paid
C.f. Must serve complaint on ∆
C.7. Pleadings Stage - ∆ can either file
C.g. Motion to Dismiss (demurrer) – says, even if
these facts are true, not cause of action, everyone files one, earliest stage where can test legal sufficiency of allegations even if they are true, look at facts in light most favorable to P
C.h. Answer – addresses allegations in complaint,
must admit, deny or say I don’t know to all allegations, attempt
B.n. If both sides even, person with burden loses
§ 2.03 The Litigation Process See § 2. Chapter 3: The Separation of Negligence and Intentional Torts
A. Williams v. Holland – England 1833
A.a. JNOV overruled, jury verdict reinstated – trial judge said should have been
trespass, not case
A.b. Holland’s cart struck Williams driving with his 2 kids, and Williams plead on the
case
A.c. Back in the day, had to plead right form or your verdict was overruled, and
court began to determine between cases where negligence directly caused the accident (vi et armis, etc.) or accidentally caused it
A.d. BUT, judge says that just b/c you are guilty of trespass, doesn’t mean
you can’t be guilty on the case
A.e. Step toward Letang – P can plead either way
A.f. Trespass
A.i. Trespass vi et armis- invasion with force and arms
A.ii. Trespass de bonis asportatis – stole something
A.iii. Trespass quare clasum fregit – broke in
A.iv. Trespass on a similar case- case close enough to 1 of other 3 to get
decided, not one of originals, happened b/c people turned to other courts when they had no action in England’s courts, if consequential, on the case
B. Letang v. Cooper England 1965
A.g. C ran over L’s legs while she was sun-bathing in a parking lot, and three years
had passed so negligence action barred, but not trespass
A.h. Statute of limitations – D must bring it to court’s attention as an affirmative
defense that the action is barred, have this b/c evidence deteriorates, more burden on courts, pucker factor
A.i. But here, how do we apply? Lawyer just trying to use old idiosyncrasies of common law
A.j. Denning says no, now we just have negligence or intent, not ruled by old
forms
A.v. Bifurcation of torts – from origins to now
A.vi. B/c ridiculous to think that someone could sue for 6 years if
injured but only 3 if died
A.vii. Reduction absurdum – not based on prior law, judge just
deems it absurd
A.k. Res judicata – thing has already been litigated, can’t do it again
A.l. Collateral estoppel – person estopped from prosecuting again, b/c started in collateral
case Chapter 4: Negligence Overview § 4.01 Introduction Prima Facie Case
• Duty
• Breach
• Causation
• Cause-in-fact
• Proximate Cause
• Damages
§ 4.02 Duty
A. Heaven v. Pender England 1883
A.a. Ship painter goes to dock, uses stage provided by ∆, it falls, sues dock owner
A.b. Trial ct said no duty owed- probably b/c no case had been decided like this
A.c. Don’t have a case like this, so appellate judge, Brett, looked to others and
applied them by extension
A.d. Duty expands as new courts must decide the question – look to old
cases to come up with proposition
A.e. “whenever one person is by circumstances placed in such position with regard
to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger”
A.i. Other judges concur that a duty was owed but disagree with larger
principle, b/c too sweeping, extended invitation concept and said he laid trap by failing to warn the painter that it was faulty
A.ii. Most widely quoted British proposition, but too broad so no one follows
B. Donaghue v. Stevenson England 1932
A.f. P sued b/c found snail floating in ginger beer
A.g. P appeals from something like motion to dismiss
A.h. Extended relationship b/c went from manufacturer to distributor to restaurant
to friend to consumer
A.i. “Question is whether the manufacturer of a drink sold by him to a distributor,
in circumstances which prevent the distributor or ultimate purchaser from discovering by inspection any defect, is under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health. I do not think a more important problem has occupied your Lordships in your judicial capacity: important both b/c of its bearing on public health and b/c of the practical test which it applies to the system under which it arises.”
A.j. No case applies, b/c the closest one was Langridge but it related to fraudulent
misstatement of fact
A.k. Law is less rigorous standard – some things that are immoral not illegal
A.l. Atkin decided this case to set standard of care for manufacturers,
creating a class of public health
A.m. But acts or omissions which any moral code would censure cannot in
a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbor becomes in law, you must not injure your neighbor; and the lawyer’s question, Who is my neighbor? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who, then, in law, is my neighbor? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
A.iii. Most famous passage and case in English tort law
A.n. Focuses on proximity – physical and temporal proximity not needed, ∆ must
think about potential risk to P, so if thinks someone might be hurt by me doing job negligently, that’s proximity
A.o. 3 important things decided by this case
A.iv. Court decided case where manufacturer owed duty in negligence to
consumer who wasn’t under contracts
A.v. Emphasizes proximity – logical potential of harm to class of potential
Plaintiffs
A.vi. Another brick in corpus juris
C. Palsgraf v. Long Island RR Co. NY 1928 – Cardozo
A.p. Judgment by jury for P, app. Div. for P, D appeals
A.q. P on platform awaiting train, down the platform, a conductor is helping to
Italina boys get on the train, pushes one on, his package falls and sets off fireworks, causing scale to fall and hit P in the head
A.xi. P asking court to hold one person responsible for the criminal acts of
another
A.pp. Looked to old cases where custodians had right to control P, i.e., police
arrested a 14 y.o. boy and put him in a cell with a big mean drunk man who rapes and beats him, so in past, could control P and 3d party and exposed P to harm by third party
A.qq. Here, had right to control aggressor
A.rr. Diplock says substitute foreseeability of risk to P for right to control P
A.ss. D should reasonably have perceived risk, D had right to control 3d
party and negligently did not
A.tt. Acknowledged Donaghue proposition, but said too far sweeping
A.uu. THINK ABOUT HOW CHANGING FACTS WOULD AFFECT OUTCOME –
EXAM
A.vv. Factors in determining duty:
F.1. Foreseeability
F.2. Physical proximity
F.3. Logical to have a duty
F.4. Time (temporal) connection
F.5. Eye of reasonable vigilance (RP)
F.6. Policy
G.
§ 4.03 Breach
A. Vaughan v. Menlove England 1837
A.a. D had a hayrick – eyewitness told him it was going to go up in flames, he said
“he would chance it”
A.b. D said instruction should have been to the best of his judgment
A.c. Court says no = ordinary prudence of a reasonable man, an objective
not a subjective test
B. Brown v. Kendall Mass. 1850
A.d. At trial, verdict for P
A.e. D breaking up fight between dogs, and accidentally struck P in eye
A.f.Trial Court gave 2 prejudicial instructions
B.i. If act not necessary and ∆ not duty bound to break up dogs, then, he’s
responsible unless he exercised extraordinary care
B.ii. If unnecessary act, then burden of proving extraordinary care on ∆
A.g. Judge orders new trial, b/c
B.iii. Burden of proof on P
B.iv. Doesn’t matter whether act was necessary or not, we just have
one standard = ORDINARY CARE
C. Camerlinck v. Thomas
A.h. T, 6 y.o. kid, hit another kid in eye with a stick while sliding down a slide
A.i. After P’s evidence, ∆ moved for a directed verdict
A.j. Trial court said couldn’t be at fault b/c he was too young
A.k. Age is objective, but intelligence and experience are subjective, so court gives
kids a slight break
A.l. Matter for jury to decide if kid too young to be responsible
A.m. “ The standard of conduct required of the child is that which it is
reasonable to expect of children of like age, intelligence, and experience.”
A.n. Question is – when do you get judgment? When born, no one has it.
A.o. Judgment synonymous with negligence
A.p. Rule of 7
B.v. Under 7 not negligent
B.vi. 7 or more can be capable
B.vii. 14 –21 - capable but may show not through evidence
D. Glascow v. Muir England 1943
A.q. Men carry urn through narrow hallway with kids in it, one man drops urn and it
burns the kids
A.r.Did ∆ fail to act prudently under circumstances of this case?
B.viii. ∏ alleging that ∆ should have cleared room as soon as they arrived, or
even before when they called to say they were coming
A.s. Is this reasonable or going too far?
A.t. Law of torts has to do with reasonable behavior, unreasonable to expect them to go so
far
E. NOTES
A.u. United States v. Carroll Towing – Learned Hand decision – “providing against
resulting injuries is a function of 3 variables 1) the probability that she will break away,
- the gravity of the resulting injury 3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury called, L; and the burden, B; liability depends on whether B <PL
B.ix. No one really uses it to make decision, aside from Posner, really just
alluded to
B.x. Basically, any time act done that raises duty of care then a burden
there to use care and
B.xi. We as reasonable people will modify behavior if probability of harm is
rising
A.v. Railroad Co. v. Stout
B.xii. “It is assumed that 12 men know more of the common affairs of life
than does one man, that they can draw wiser and safer conclusions from admitted facts thus occurring can a single judge.”
A.w. Metro. RR Co. v. Jackson
B.xiii. “The Judge has a certain duty to discharge, and the jurors have
another and a different duty. The Judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred; the jurors have to say whether, from those facts, when submitted to them, negligence ought to be inferred.”
B.xiv. Judge’s job to examine evidence to jury and see if evidence in record
from which reasonable juror might find ∆ guilty. If yes, deny motion for directed verdict.
B.xv. So, 1. judge decides if possible to find negligence, jury decides if ∆ is
negligent I NEED NOTES HERE § 4.04 Cause-in-Fact
A. Jeffers v. Amoco Prod. Co. LA 1981
A.a. D manufactured blowout preventer , and P said it was defective and failed to
prevent a fire. D said nope, it doesn’t matter b/c it wasn’t even in use b/c Kelly was in the hole
A.b. Most like Donaghue
A.c. Ct assumes (b/c in motion for summary judgment assume things most
favorable to non-moving party) that D was negligent and duty of care was owed to P
A.d. Problem is that there was no cause – even if negligent, if device not
installed properly, blow-out protector couldn’t be put into play
A.e. So, look to causation –
A.f. “But for” the negligence of the ∆:
A.i. P wouldn’t have been injured = negligence was cause
A.ii. P would have been injured = negligence wasn’t the cause
A.i. P committed suicide due to physical injury from D
A.j. Found that D owed duty, breached and found negligent
A.k. But for negligence of D, P would be alive
A.l. America doesn’t believe that suicide can be a result of injury
A.m. “ In the first place, a wrongful act or omission cannot ordinarily be
held to have been a cause of subsequent harm unless that harm would not have occurred without the act or rendered it wrongful. Exceptions to this first principle are narrowly confined. Secondly, where the requirements of the first principle are satisfied, the act or omission is to be regarded as a cause of the harm unless there INTERVENES between the act or omission and the harm an occurrence which is necessary for the production of the harm and is sufficient in law to sever the causal connection. And, finally, the intervening occurrence, f it is to be sufficient to sever the connection, must be either-
A.vi. Human action that is properly to be regarded as voluntary, or
A.vii. A causally independent event the conjunction of which with
the wrongful act or omission is by ordinary standards so extremely unlikely as to be termed a coincidence....
A.n. In Haber , D asserted behavior was voluntary
A.o. What if we applied this to Wing?
A.viii. Clearly not a
A.ix. Possible you could argue b, that it was so freakish no person would
think it could occur § 4.06 Damages Ask two questions:
a. Legal cognizable harm done to the P?
b. How is it to be quantified?
A. Livingstone v. Rawyards Coal Co England 1880
A.a. L owned 1.5 acres of coal mining land that had miner’s cottages upon them –
unbeknownst to him, he owned surface and mineral rights to land, miners thought they owned mineral rights so mined out coal while mining on adjacent land
A.b. L sued for damages on profit of coal
A.c. Was this negligence or one of the old causes?
A.i. Doesn’t matter b/c D owed duty to P and know there was breach and
cause
A.d. Issue = Damages
A.ii. P wanted it to be profit = value of coal – cost to extract= 515 lbs
A.iii. Question is who gets the advantage of value changed between when in
ground and when finished?
A.1. trial court awarded the profit to P, so D just got the cost of
extracting the coal
A.iv. Vivian – distinction between value in land and value when in seam –
real property (land, house) v. chattels (walking away property), so when took it out, converting real property to chattel. Thus, value it as a part of the rock.
A.v. “I do not think there is any difference of opinion as to its being a
general rule that, where an injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages, you should as nearly as possible get at that sum of money which will put the party who has been injured, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.”
A.vi. Appellate Court decided on royalty (price) reasonable seller would have
accepted for sale of coal in site – for price of 171 from an expert
A.vii. In torts, if possible, want to restore the status quo ante (put P
in position of before), since sometimes impossible (i.e. chopped off leg) convert it to money
A.viii. Sometimes, as here, more $ is created from D’s act than the
loss to P. What do you do?
A.2. “If the wrongdoer has taken it perfectly innocently and
ignorantly, without any negligence and so forth, and if the jury, in estimating the damages, are convinced of that, then you should consider the mischief that has been really done to the plaintiff who lost it whilst it was part of the rock, and therefore you should not consider its value when it has been turned into a piece of coal after it had been severed from the rock.. .”
A.3. Outcome could’ve been different if P wanted coal back
in land (i.e. someone steals your teddy bear, and that’s all you want)
B. Carbonaro v. Johns-Manville Corp ED Penn. 1981
A.e. P brought action in Pa. State Court for asbestos related injuries
A.f. D moved for SJ on grounds of statute of limitations, but instead of opposing P
filed case in federal district court that was similar but not exactly the same
A.g. State subsequently entered judgment for D
A.h. D moved fir SJ in federal court after state court decided on grounds of res
judicata – “litigated thing” – it has already been litigated and can only be litigated once
A.i. D even waited until time for SJ in state court could no longer be appealed
A.j. Res judicata – procedural rule, one chance to litigate and then, it’s over
A.ix. Embraces all things claimed and could have claimed
A.x. Problem in personal injury b/c you can recover for things that have
already happened, but what do you about things that have not yet happened?
A.4. In theory, have more trials to determine damages since 1 st
trial, but that doesn’t work at the common law – must prove ALL through evidence of future pain, suffering, etc., clearly just a prediction
A.k. Most important thing here is that prior complaint embraces injury alleged in
the second suit – second suit more detailed, but that doesn’t change the facts
A.l. Shows that in some cases, P should wait b/c injuries maturing. Of course, many times
you can’t afford to wait.
A.m. Claim v. issue preclusion
A.xi. Claim – res judicata – claim gone so no need to worry about the issue
A.xii. Issue - collateral estoppel – once an issue decided in 1 case, can’t
relitigate it in next case
A.xiii. P here tried to argue that it was issue preclusion, but it was claim
preclusion § 4.07 Defenses and Parties
A. Butterfield v. Forrester England 1809
A.a. P riding too fast down street when ran into obstruction in Derby, if had been
using due care wouldn’t have hit it
A.b. “one person being at fault will not dispense with another’s ordinary care for
himself. Two things must occur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care on the part of the plaintiff.”
A.c. Case has similarities to Wing , but they focus on different things
A.d. Odd, b/c it passes but for test, yet P still can’t recover
A.e. Common law places importance on individual responsibility and accountability
A.f. Contributory negligence – negligence of P in regard to his own actions
A.g. However slight contributory negligence bars recovery
notwithstanding the fact that the D was negligent
A.h. People deemed this too harsh so came up with ideas to “wink” at it
A.i. In latter 20 th^ century, people have begun to refute this, like FL which follows
comparative negligence – recover based on % of your lack of negligence
A.b. Law varies greatly from jurisdiction to jurisdiction
B. Mitchell v. Rochester RR Co. NY 1896
A.c. M was waiting for a trolley, it came upon her suddenly, and she was caught
between 2 horses – fainted and had miscarriage
A.d. Based on Palsgraf , you’d think we owe her a duty, but we don’t
A.e. Impact Rule – in absence of impact, no duty owed for negligently
inflicted emotional distress
A.f. Up to judge to dismiss, since it’s a matter of duty
A.g.
C. Waube v. Warrington Wis. 1935
A.h. Mom witnesses child negligently killed by truck
A.i. Clearly ∆ owed duty to child, and through Donaghue , you’d think about proximity –
know child had Mom and know she’d be shocked, but it doesn’t work here
A.j. Courts were against it due to difficulty to determine, volume of cases, raise insurance,
too large a burden on ∆s
A.k. Zone of danger rule – If P is in the zone of danger, she can recover, so
say on sidewalk, and you’re afraid a car is going to hit you. Substitutes zone of danger for physical impact – FL has never adopted.
A.l. No liability for fright as a result of knowledge of harm to 3rd party
A.m. Policy:
C.i. Allowing liability for persons out of the zone of danger would create a
liability out of proportion to the D’s culpability, too many possible Ps.
C.ii. Unreasonable burden upon users of the highway
C.iii. Federal Employees Liability Act relies upon this
D. McLoughlin v. O’Brian England 1982
A.n. Mom goes to hospital and sees injured kids and husband, suffered nervous
shock and physical injury
A.o. Bystander Rule – P can recover when
C.iv. P has to see or hear or feel impact – can’t just have heard about it
C.v. Proximity in time and space – shock must occur close to the accident
C.vi. Class of persons – close personal relationship
E. FL generally follows the impact rule. Gilliam v Stewart
A.p. No duty owed for emotional distress without impact , but impact can be very
slight
A.q. But under Dillon v. Legg, Champion v Gray from FL adapted bystander rule –
foreseeability important
C.vii. Must have close personal relationship
C.viii. Psychically injured person must be directly involved and have a
discernible physical injury – sees, hears or arrives on scene when see person
C.ix. Located near scene as opposed to far away –proximity in time and
space
C.x. Court wouldn’t say whether it would allow recovery under McLoughlin
§ 5.04 Owners and Occupiers of Land
Duties of Owner and Occupier Status Condition of Land Acts Definitions
Business Invitee Reasonable care, including obligation to make inspection
Ordinary care Invitation to be on land with some kind of economic connection Licensee None, except to warn of traps
None except don’t willfully and knowingly injure
Some basis to be on land
Trespasser None None except don’t willfully and wantonly injure
No right, no license, no invitation
A. Definitions
A.a. Owner & Occupier has right to possess land which includes excluding others
A.b. Invitee- person who has economic connection to O&O, not a fixed relationship,
i.e. Avon lady or me at UF (during day business invitee, but if I sneak in at 4 am, trespasser) – status can change
A.c. Most courts would hold that if you knew if the trespasser, you had a duty to
warn him
B. Robert Addie & Sons v. Dumbreck, England 1929
A.d. Child injured while playing on wheel on ∆’s property
A.e. No duty owed b/d there was no trap and kid a trespasser
C. Preston v Sleziak , Michigan 1970
A.f. ∆ told P that elevator was safe, P got injured
A.g. P was a licensee since a social guest – not a trap, b/c owners didn’t know of
problem
A.h. Rule of Traps – dangerous condition owner knows about that licensee
in exercise of reasonable care would not discover
D. Rowland v. Christian , Cal. 1968
A.i. Lady invited friend over to her apt. that had cracked faucet that she had
reported to the landlord. He cut his hand on the second time he used it. She said she owed not duty, b/c he was social guest, and he should have seen it was broken
A.j. Trying to change status of hierarchy and duty is to take active steps to take
reasonable care
A.k. Most states ignored this rule but have fiddled with hierarchy
E. Florida
A.l. Wood v. Camp , put social guest in same category as business invitee
A.m. Post v. Luney – makes a public invitee (i.e. someone who is a visitor in
a hospital) in same status as a business invitee
A.n. Look to jurisdiction for rule on duty owed
F. Dwyer v. Skyline Apts., Inc. , NJ 1973
A.o. In apartment, you are the occupier, so you can kick people out, even landlord,
so what duty of care does landlord owe?
A.p. In common law, typically think of this like property law – caveat emptor – let
the buyer beware
F.i. Lessee has right to inspect before accept premises, but once accepts,
accepts them as they are
F.ii. So, landlord must just warn of traps, but things that happen later are
responsibility of tenant
A.q. Now, warranty of habitability - requires that condition was known or should
have been known by the landlord. Nexus between duty and liability is proof of negligence
G. Landlord Tenant in FL
A.r. Mancher v. Eubanks , FL
F.iii. Modified CL, by holding that landlord has obligation at time of lease to
make sure things safe – shifts DUTY to inspect from tenant to landlord
b.B. RST 2d Torts § 552
a. Focuses on liability not duty
b. (1) limits liability to those circumstances that the course of business provides info for
others to rely on
c. (2) only one person, or limited group of persons (like Ultra ) – no privity, not duty
d. California – very different point of view, like Rowland – look at individual facts of each
case to see if P owed duty of care
b.C. Florida –
a. Stickler v. Indian River Abstract - Lawyers hire abstract company to review property
records, since there is no contract between lawyers client and abstract co, client can’t sue abstract_._ No privity of contract, no duty owed
b. AR Moyer v. Graham – Architect negligently designed building so going to cost
contractor more money than originally thought, but problem b/c contract with state, not architect. However, more like Glanzer b/c 1) only one P 2) know amount of $ 3) not going to last long
c. Second title case – lawyer told title company who he was giving the title to, so P able
to recover b/c no indeterminate
d. Max Mitchell – court follows RST, but duty of care on part of accountant to 3d party
only in case where 1. document prepared for someone else to rely upon 2. actually delivered it to P
b.D. PPG Indus. V. Bean Dredging Co.
a. Bean was dredging and negligently cut gas pipeline, so PPG who had a contract with
Texaco was forced to get its gas from somewhere else
b. No duty owed for pure economic loss when there is no damage to your own
body or preoperty
b.E. Petition of Kinsman Transit Co. 2d Cir. 1968
a. Ship broke loose due to KTC negligence, hit bridge and ultimately formed dam that
caused flood that interrupted shipping traffic
b. This was said to be proximate cause issue saying that no reasonable ∆ could have
foreseen this
c. Normally, seen as a duty question – when none of 3, no duty
§ 5.06 Rescuers
A. Common Law Rule – no duty to rescue unless
A.a. Responsible for creating the danger
A.b. if you’re in a position of danger, and I make your position worse, I owe a duty
of care to undo what I’ve done (i.e. promise to rescue drowning man, so no on else helps, get halfway there and decide not to – he is in a worse position)
A.c. Prevent others from rescuing
A.d. Special relationship
B. Horsley v. MacLaren , Canada 1970
A.e. Man driving boat, guy falls off, other guy tries to rescue him and dies – action
brought by second guy
A.f. Captains of Boats have special duty to try to rescue due to special
relationship
A.g. Can be liable here, b/c if you put person in situation that invites rescue, you
are also liable for the rescuer which is a foreseeable event
C. Tarasoff v. Regents of Univ. of Cal. , California 1976
A.h. Shrink had patient who went crazy and killed T, shrink knew guy was going to
do it and had called the police who thought nothing was going to happen, didn’t warn victim
A.i. Court held that he had duty to warn victim of impending danger. However,
this was widely refuted by legal and medical communities due to patient/ doctor confidentiality.
D. Burton v. Burglass , FL
A.j. In FL, rejected Tarasoff , but held that doctor had duty to warn parents that their son
(his patient) was going to kill them, b/c they were his patients, also, and they were all seeing doc b/c of kid’s troubles
A.k. Duty due to doctor/client relationship with victim
E. Good Samaritan Act 786.
A.l. Invented to deal with concept that you won’t leave person in a worse position that you
found them, so doctors won’t get sued if have to perform some sort of emergency surgery
A.m. (2)(a) docs not liable for things they do or don’t do, just act as an “ordinary
reasonably prudent person” § 5.07 Harm to Unborn Children
A. Common Law – no duty owed to babies in utero
B. Bonbrest v. Kotz , D.D.C. 1946
B.a. In 1800s, thought fetus couldn’t exist apart from mother, thought they were
the same thing
B.b. Duty of care owed to a viable fetus
B.i. Must be born alive
B.ii. Viable when damages occurred
B.iii. If miscarriage, Mom can recover damages for herself
C. Florida
B.c. Duty to fetus arises when there is a duty to the mother
B.d. Question in FL is causation – frequently need a medical expert to establish
B.e. Duty is owed from conception, but fetus must be born alive for an action to
stand
D. Grover v. Eli Lilly , Ohio 1992
B.f. If grandma took DES which resulted in defects to daughter’s reproductive
system that caused defects in her kid, can kid recover?
B.g. Here, they couldn’t recover b/c not foreseeable, but a duty is owed to
persons not yet conceived at time of negligent act or omission but is limited by foreseeability. § 5.08 Wrongful Death and Survival
A. Baker v. Bolton , England 1808
A.a. Husband sued for loss of wife’s companionship, couldn’t recover due to
common law idea
A.i. There can be no cause of action brought by the survivors or
the estate of a killed person in respect of the wrongful act that killed him actio personalis moritar cum persona – the act dies with the person
A.1. personal matters between 2 parties died when one person
died, b/c matter personal to each person
A.2. Contract relations lived on though through estates
B. Lord Campbell’s Act – England, 1846 – determined there was a duty owed for wrongful
death
C. Florida’s Wrongful Death Act -768.19,.20,.21 every place that recognizes wrongful death
does it by statute
A.b. When death by wrongful act that would have made D liable for injury
damages is a cause of action
A.c. If ∆ dies, cause of action not defeated, a representative from his estate takes
over
A.d. Personal representative decided by probate court in separate hearing
A.e. Survivors = decedent’s spouse, kids, parents, and any blood or adoptive
relative who depends on dead person for support
A.g. Tanner v. Herboy – Mom pg with healthy baby and wanted C-section, doc said
no and crushed baby’s skull during delivery, kid not born alive, and FL impact rule state, so Mom can’t sure for emotional damages, but Supreme Court said it was okay
Chapter 6: Breach § 6.01 General Principles
A. Griffin v. Watkins, NC 1967
A.a. P driving down the road and had his low lights on, came upon tractor stopped
in the road and slammed into it, injuring self. D claimed had lights, etc. on. Jury found for P
A.b. ∆ asserts that the instruction “they failed to exercise due care was erroneous
A.c. Appellate court asserts that the language was erroneous, b/c it doesn’t really
mean anything, so just strike the language – be very specific in instruction
B. Florida
A.d. Total opposite – very general. Negligence is the failure to use reasonable
care. Reasonable care is that degree of care which a reasonably careful person would use under like circumstances.... Jury Instruction 4.
A.e. Standard jury instructions are good, because parties can’t argue about
wording.
A.f. B/c instruction so general, places maximum discretion on advocates as to
whether evidence speaks to negligence or not
C. Douglas v. Great A&P Tea Co., Miss. 1981
A.g. P slipped and fell in frozen food section on gallon of water at 1 pm, causing
back problems, last employee was there at 12:30 and didn’t see pool
A.h. Jury for ∆, P appeals saying jury instructions should have been included
A.i. Instructions properly excluded, b/c didn’t mention notice
A.j. Slip and fall cases have specialized rules as to breach
C.i. If ∆ created problem or if he has been shown to have taken
action, no notice required
C.ii. Constructive notice – has the accident existed long enough
that a reasonable person would have found it
C.iii. Hold ∆ liable b/c there was an accident
D. Florida
A.k. Owens v. Publix, Fla.
i. existence of foreign substance on floor of business premises creates rebuttable
presumption that the premises owner didn’t reasonably maintain the premises
i.1. rebuttable presumption can be argued against
i.2. irrebutable – conclusive presumption
i.3. given fact thing on floor can conclude negligence, unless ∆ proves
otherwise- burden on ∆ to prove he wasn’t negligent and used reasonable care
A.l. But, now passed 768.
C.iv. Claimant must prove that
D.1. Entity owed duty to P
D.2. Entity acted negligently by failing to exercise reasonable care
D.3. Actual or constructive notice NOT a requirement, but evidence
of notice or lack thereof can be considered
D.4. failure to exercise reasonable care was cause of the injury
D.5. Brown v. yellow banana – yellow might mean that just fell, but
brown been there a bit
E. Mickle v. Blackmon, SC 1969
A.m. Girl was paralyzed when gear shift knob shattered upon impact and went
under her arm
A.n. Ford found negligent, b/c product was defective
A.o. Mere passage of time and proper use by P does not mean that P can’t
recover, P must just prove that it was defective at time of purchase
A.p. Duty to provide a crashworthy car
F. Watson v. State Farm Fire and Cas. Ins. Co., La. 1985
A.q. Man shot while not wearing orange by a kid with a gun, sues him and father b/
c shouldn’t have given kid rifle, he didn’t use it properly b/c you didn’t instruct him, didn’t supervise kid
A.r. Child not entitled to child’s standard of care if participating in adult
activity while supervised by adult
A.s. Case of contributory negligence - in La., wasn’t remanded b/c civil law
G. Washington v. La. Power & Light Co., La. 1990
A.t. Guy had a citizen radio was using it near power line, in past, had been shocked
by it, so was careful, but on this day, hit it and died
A.u. Applied Hand’s theory and said risk so small that outweighed the
damages
A.v. Disturbing b/c court changed jury verdict, due to Civil Law
H. U.S. Fidelity & Guar. Co. v. Plovidba, 7th Cir. 1982
A.w. Longshoreman fell through open hatch in hold of ship
A.x. Posner applies Hand’s formula and finds that probability was super
low, b/c he shouldn’t have been there
A.y. Hand’s formula not very useful for juries
§ 6.02 Res Ipsa Loquitor
• P normally has burden of proof, but sometimes thing speaks for itself
• the very fact that it happened means that the ∆ was negligent, so can be used where there is
no evidence of negligence
• P has burden to persuade the judge to give the instruction
• Not needed as much, because modern civil procedure rules allow you to discover most of the
evidence you need
c.A. Bryne v. Boadle, England 1866
c.i. Servants hoisting flour barrels in upstairs office, one rolls out and hits
P, no proof as to why it fell, we just know it did
c.ii. Requirements for RIL – once you get 1&2, want judge to
instruct to 3
c.1. Was P negligent?
c.a. No? Maybe RIL
c.b. YES? No RIL
c.2. ∆ had complete control of the item at time negligent act
was committed, not necessarily when negligent act happened
c.3. Accident was of such a nature that it wouldn’t have
occurred unless there was negligence on the part of the ∆
c.iii. Therefore, ∆ must try to prove that he wasn’t negligent
c.B. Escola v. Coca Cola Bottling Co., California 1944
c.iv. Waitress unloading bottle of cokes that was just delivered, one
explodes in her hand, injuring her severely
