Torts

Question 1

Liability for harms that are a foreseeable result of negligence

Answer 1

An actor is liable for those harms that are a foreseeable consequence of his negligence. Courts
have routinely found that subsequent medical malpractice is within the scope of the risk created
by a tort defendant. If the negligent actor is liable for another’s bodily injury, he is also subject
to liability for any additional bodily harm resulting from normal efforts of third persons in
rendering aid which the other’s injury reasonably requires, irrespective of whether such acts are
done in a proper or a negligent manner.

Liability typically attaches even when the medical services rendered cause harm which is
entirely different from that which the other had previously sustained so long as the mistake or negligence is of the sort which is recognized as one of the risks which is inherent in the human fallibility of those who render such services.

Question 2

Psychotherapist Duty to Warn

Answer 2

In Tarasoff v. Regents of University of California, the California Supreme Court held that the special relationship between a psychotherapist and patient justified the imposition of a duty to warn persons threatened by the patient. Both the holding and reasoning of the Tarasoff court have been widely adopted. Today, in most states, a psychotherapist who fails to warn an intended victim against whom her patient has made credible threats of physical violence may be found liable for that victim’s injuries. Many courts have also followed Tarasoff in permitting recovery either (1) when the therapist believed that the patient posed a real risk to the specified victim or (2) when the therapist negligently failed to take the threat seriously. However, California courts have restricted the duty imposed on psychotherapists in Tarasoff to “potential victims specifically known and designated” by the dangerous patient. Courts and legislatures in other states have also generally confined the Tarasoff duty to intended victims who are readily ascertainable and subject to a serious threat of physical violence. Cases in which courts have imposed a broader duty have typically involved defendants who directly facilitated the patient’s attack.

Question 3

Negligence based on Statute

Answer 3

Statutory standards typically establish the level of care necessary to avoid a finding of
negligence. Thus, “an actor is negligent if, without excuse, the actor violates a statute that is
designed to protect against the type of accident the actor’s conduct causes, and if the accident
victim is within the class of persons the statute is designed to protect.” However, an actor is
negligent when he or she “does not exercise reasonable care under all the circumstances.” Compliance with a statute does not establish freedom from fault.

Question 4

Res ipsa loquitur

Answer 4

Res ipsa loquitur is commonly used in actions against medical providers when a patient suffers an unexplained injury and the evidence establishes that the risk of such an injury can be largely eliminated when reasonable care is used. If, for example, the “evidence shows that a particular adverse result of surgery is totally preventable when surgeons exercise reasonable and customary care, then res ipsa is appropriate in the patient’s suit against the surgeon.”

Question 5

Joint and several liability

Answer 5

Joint and several liability would be imposed where two tortfeasors have caused an indivisible injury, one of the bases of joint and several liability. Each of them is liable for the full amount of the Plaintiff’s damages.

Question 6

Duty of care owed by a college dormitory

Answer 6

A college does not stand in a parens patriae relationship with its students. Although the common law imposed almost no duties on landlords to provide safe premises to tenants, modern courts have found that landlords, including landlords like University, have a duty to take reasonable precautions to protect tenants against foreseeable attacks. Failure to repair a lock will amount to the cause in fact and be a proximate cause of the tenant’s physical injuries.

Question 7

Proximate Cause of Injury

Answer 7

In a negligence action, a defendant is liable only if his conduct was the proximate cause of the plaintiff’s injury.

Intervening actors or events that produce harm different in kind from that which one would normally anticipate may break the chain of causation and lead a court to conclude that the defendant’s acts are not the proximate cause of the plaintiff’s injury. Thus, a plaintiff who negligently exceeds a speed limit and therefore happens to be on the spot where a tree falls during a violent windstorm may still recover for injuries caused by the tree (see Berry v. Sugar Notch Borough, 43 A. 240 (Pa. 1899)), and a defendant who negligently drops a passenger off at the wrong train station is not liable for the passenger’s burns caused by a malfunctioning kerosene lamp in the hotel where she is forced to stay for the night. See Central Georgia Ry. Co. v. Price, 32 S.E. 77 (Ga. 1898). In evaluating whether intervening acts break the chain of causation, courts typically analyze both their foreseeability and their degree of dependence on the defendant’s negligence. See RESTATEMENT (SECOND) OF TORTS § 431.

Question 8

Duty of care owed by a child

Answer 8

Unless a child is engaged in an adult activity, his conduct is to be measured against that of a
child of like age, intelligence, and experience.

However, when a minor engages in a hazardous activity which is “normally undertaken only by adults, and for which adult qualifications are required . . . , he may be held to the standard of adult skill, knowledge, and competence, and no allowance may be made for his immaturity.”

Question 9

General Rule: No duty to come to the aid of another

Answer 9

Generally, there is no duty to come to the aid of another. An actor who undertakes to render services designed to reduce the risk of harm to another does acquire a duty of reasonable care toward the other if

a) the failure to exercise such care increases the risk of harm beyond that which existed without the undertaking, or

b) the person to whom the services are rendered or another relies on the actor’s
exercising reasonable care in the undertaking.

Question 10

Exception to the Rule: When is there a duty to help another?

Answer 10

When an actor “takes charge of another who is helpless adequately to aid or protect himself,” he is subject to liability to the other for bodily harm caused by

a) “the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or

b) the actor’s discontinuing aid or protection, if by doing so he leaves the other in a worse position than when the actor took charge of him.”

Question 11

Duty to help someone who comes onto land

Answer 11

In most states, the landowner’s duty to the a person who comes onto their depends on whether the person is classified as a trespasser or a licensee. A trespasser is one who enters or remains upon land owned or possessed by another without a privilege to do so.

Where the person coming onto the land has no privilege to enter the landowner’s property, they may be classified as trespassers.

However, if “in light of all the surrounding circumstances, a reasonable person would interpret the possessor’s words or conduct as manifesting that he is in fact willing for another to enter upon his land,” then the entrant is a licensee, not a trespasser.

Question 12

Attractive nuisance doctrine

Answer 12

Under the attractive-nuisance doctrine, a possessor of land is subject to liability for physical harm to a trespassing child when that harm is caused by an artificial condition on the land and

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

Question 13

Comparative negligence

Answer 13

There are some comparative-negligence jurisdictions in which apportionment is not available unless the jury concludes that the plaintiff is less than 50 percent at fault; in those jurisdictions, if the jury concludes that the Plaintiff was 50 percent or more at fault, he cannot recover.

Question 14

Standard of duty owed by a doctor

Answer 14

A medical doctor is liable to a patient only when the evidence shows that he has failed to comply with the standard of care for the relevant specialty and medical community and his failure causes the patient’s injury. In assessing whether a doctor has met this test, most courts compare the doctor’s conduct to national standards rather than those that prevail in his or her locality. Because the standard requires assessment of typical doctor conduct, expert testimony is almost invariably necessary to establish a doctor’s negligence.

Question 15

Products liability: sale of a defective product

Answer 15

The plaintiff in a products liability action must establish that the defendant caused his injury.

“One who sells any product in a defective condition unreasonably dangerous to the user or consumer . . . is subject to liability for physical harm thereby caused. . . .” Products that fail to meet the producer’s own specifications are typically described as having a “manufacturing” defect. In the case of food products, the presence of a harmful ingredient is generally considered a manufacturing defect “if a reasonable consumer would not expect the food product to contain that ingredient.”

Question 16

Products liability: the market share liability doctrine

Answer 16

The “market share” liability doctrine permits the jury to apportion damages based on the market shares of manufacturers of a defective product. But virtually all courts have held that this doctrine is available only if the manufacturers’ defective products are fungible in relation to their capacity to cause harm.

Question 17

Products liability: the alternative liability doctrine

Answer 17

The “alternative liability” doctrine permits a jury to find two defendants liable when each was negligent and either could have caused the plaintiff’s injuries.

Question 18

Products liability: the joint enterprise doctrine

Answer 18

The “joint venture” or “joint enterprise” doctrine allows the jury to impute one defendant’s tortious conduct to other defendants who are engaged in a common project or enterprise and who have made an explicit or implied agreement to engage in tortious conduct.

Question 19

Strict products liability doctrine

Answer 19

Strict products liability applies to all commercial sellers; even a retailer who had no control over the design and manufacture of a product may be found strictly liable if that retailer sells a defective product.

Question 20

Abnormally dangerous activities

Answer 20

The modern doctrine of strict liability for abnormally dangerous activities derives from Fletcher v. Rylands, in which the defendant’s reservoir flooded mine shafts on the plaintiff’s adjoining land. Rylands has come to stand for the rule that “the defendant will be liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained, in the light of the character of that place and its surroundings.”

Question 21

Abnormally dangerous activity subject to strict liability - Restatement of Torts

Answer 21

Today, the determination of whether an activity is unduly dangerous, and thus subject to strict liability, is generally governed by factors outlined in the Restatement of Torts.

Under the First Restatement, strict liability applied to an “ultra-hazardous” activity. Under the Second and Third Restatements, strict liability applies to an “abnormally dangerous activity.” Section 520 of the Restatement (Second) lists six factors that are to be considered in determining whether an activity is abnormally dangerous:

(a) existence of a high degree of risk of some harm to the person, land or chattels of Others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous attributes.
Comments to the Restatement explain that “several [factors are] ordinarily . . . required for strict
liability [but] . . . it is not necessary that each of them be present. . . . The essential question is
whether the risk created is so unusual, either because of its magnitude or because of the
circumstances surrounding it, as to justify the imposition of strict liability for the harm that
results from it, even though it is carried on with all reasonable care.”

The Second Restatement continued to define “common usage” narrowly. To be a matter of common usage, an activity must be carried on “by the great mass of mankind or by many people in the community.”

As in the First Restatement, under the relatively new Third Restatement, the strict liability determination is based on only two factors. An activity is abnormally dangerous if (1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and (2) the activity is not one of common usage.

However, the Third Restatement employs a much broader definition of “common usage” than that of the First and Second Restatements. Under the Third Restatement, “activities can be in common use even if they are engaged in by only a limited number of actors”:

Consider the company that transmits electricity through wires. . . . The activity itself is engaged in by only one party. Even so, electric wires . . . are pervasive within the community. Moreover, most people, though not themselves engaging in the activity, are connected to the activity. . . . The concept of common usage can be extended further to activities that, though not pervasive, are nevertheless common and familiar within the community. If in this sense the activity is normal, it is difficult to regard the activity as exceptional or abnormally dangerous.

On the other hand, § 20 comment k specifies that “the value that the defendant or others derive from the activity is not a direct factor in determining whether the activity is abnormally dangerous.” It is thus unclear whether, under the Third Restatement, more or fewer activities would be classified as abnormally dangerous than under the Second Restatement. The classic example of an abnormally dangerous activity is blasting. Courts in virtually all jurisdictions have held that this activity is subject to strict liability, citing its potential for extensive harm, the fact that it is not a matter of common usage, and the actors’ inability to eliminate risk.

Courts have divided as to whether legal fireworks displays should be classified as abnormally
dangerous and thus subject to strict liability. Courts that have classified fireworks displays as
abnormally dangerous have tended to focus on the fact that fireworks are much like blasting in
that “[a]nytime a person ignites aerial shells or rockets with the intention of sending them aloft to
explode in the presence of large crowds of people, a high risk of serious personal injury or
property damage is created. . . . Furthermore, no matter how much care pyro-technicians
exercise, they cannot entirely eliminate the high risk inherent in setting off powerful explosives
such as fireworks near crowds.” Courts that have declined to classify legal fireworks displays as
abnormally dangerous have tended to focus on their value to the community.

Question 22

Area to which liability extends

Answer 22

Liability typically extends only to individuals within the zone of risk. If an actor’s conduct
“creates a recognizable risk of harm only to a particular class of persons, the fact that it causes
harm to a person of a different class, to whom the actor could not reasonably have anticipated
injury, does not render the actor liable to the persons so injured.” The actor whose conduct is
responsible for an altogether unexpected type of injury usually escapes liability.

Question 23

Independent contractors

Answer 23

An independent contractor is one who, by virtue of his contract, possesses independence in the manner and method of performing the work he has contracted to perform for the other party to the contract. Independent contractors are usually paid by the job instead of receiving ongoing salaries; the individual who hires an independent contractor typically does not supervise the contractor’s activities or retain a right to control his activities.