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Torts II

Central Legal Principle of negligent behavior in torts... Under what circumstances does someone have an obligation/duty to act for the benefit of another?
Hegel v. Langsam (1971) Rule: There is no duty of care to regulate or monitor the private lives of individuals.
General Rule of Negligence -There is no general duty to act for the benefit of another, no matter how morally repugnant the lack of action is. -There is no general duty to go to the rescue of another who is in peril.
Factors to consider for imposed duty... 1. Foreseeability 2. Moral/visceral reaction 3. Proof 4. Burden or cost of imposing duty 5. Alternative means 6. Chilling effect 7. Administrative difficulty
Foreseeability ***MOST IMPORTANT*** -Extent/magnitude of likely harm
Moral/Visceral Reaction -What is right or wrong
Proof -How do you prove that the D tried hard enough rescue the P?
Burden or Cost of Imposing Duty -The cost the new duty would impose on the D
Alternative Means -Is there a less costly way to protect P rather than imposing duty on D?
Chilling Effect -The social implications of having the new duty to act on the D's conduct
Administrative Difficulty -Increased cost and the multiplication of potential liability
Defenses for no duty to act rule 1. Misfeasance 2. Nonfeasance 3. Difficulty in defining duty to be imposed
Misfeasance -a D who causes a problem to be made worse by negligence; taking inappropriate action
Nonfeasance -the D has not made the situation worse by not acting
Good Samaritan Statute -gives a person who in good faith gratuitously renders emergency care at the scene of an emergency immunity, unless they act intentionally or grossly negligent.
General Rule Exceptions Pt. 1 -Assumption of duty to act by acting -Good Samaritan Statute -Assumption of duty to act by contract -Control of instrumentality causing injury -Special relationship between parties
General Rule Exceptions Pt. 2 -Duty based on negligent injury by defendant -Duty based on innocent creation of a risk -Duty to assist based on non-negligent injury
Tests for Damages for Emotional Distress -Physical impact -Physical manifestation -Zone of danger approach -"Thing" case test (reasonable foreseeability)
Physical impact rule In order to recover damages for negligent infliction of emotional distress, and external impact is required.
Physical impact exceptions -Telegram rule -Mishandling of corpse
Physical manifestation rule Objective physical injury, physical-emotional connection must be shown.
Zone of Danger Rule Plaintiff can recover if in the zone of danger.
"Thing" Test (Reasonable foreseeability) Pt. 1 A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of the 3rd party if and only if:
"Thing" Test (Reasonable foreseeability) Pt. 2 1. Close realtion to injury victim by blood or marriage 2. Presence/awareness of injury-producing scene 3. Serious emotional distress
Types of Damages -Nominal -Compensatory (to compensate the injured) -Punitive (to punish or deter)
Compensatory damages (general, non-economic) -Subjective -Past pain and suffering -Future pain and suffering -Disability -Loss of enjoyment of life
Compensatory damages (special, economic) -Objective -Past medical -Future medical -Future wages -Harm to property -Collateral Source Rule
Collateral Source Rule Defendant cannot use evidence of expenses already paid by 3rd party to mitigate damages.
Punitive Damages **BMW v. Gore case** 3 Guideposts: -Degree of reprehensibility on D's conduct -Ratio of compensation to damages -Disparity between the punitive damages aware and the "civil penalties authorized or imposed in comparable cases."
Remittitur Judge will give the plaintiff the option to take a reduction or a new trial.
Additur Judge will give the defendant the option of increasing the award or a new trial.
Maximum Recovery Rule Court establishes a maximum amount that a jury may award.
Duty to Mitigate Damages The responsibility to do anything you can to avert worsening of the injury.
Daley v. La Croix Michigan courts now recognize an action for negligently caused emotional disturbance regardless of showing of physical impact.
Thing v. La Chusa The California Supreme Court has ruled that a plaintiff must be present when an injury occurs and be closely related to the injury party to recover damages for a claim of negligent infliction of emotional distress.
Anderson v. Sears Under the max recovery rule, a court will overrule a jury's determination of damages only if the damages exceed the maximum amount the jury could reasonably find based upon all the evidence.
Richardson v. Chapman The trier of facts enjoys a certain degree of leeway in awarding compensation for future medical costs that as shown by the evidence, are likely to arise in the future, but are not specifically itemized in the testimony.
Montgomery Ward & Co v. Anderson The restatement of torts provides guidance on this issue and explains that the general rule is that collateral sources are not credited against the tortfeasor's liability, although they may cover all or part of the harm for which the tortfeasor is liable.
Zimmer v. Ausland Plaintiff cannot claim damages for what would have otherwise been a permanent injury if the permanency of the injury could have been avoided by submitting to treatment by a physician, when a reasonable person would have done so.
Cheatham v. Pohle Since the essential point of punitive damages is not to compensate the plaintiff has no right to recover the amount awarded and the state legislature can do what they want to such damages.
State Farm v. Campbell Amount of punitive damages determined by Gore Rule.
Gore Guidepost 1 Degree of reprehensibility of D's misconduct -Physical or economical harm -Conduct evinced an indifference to a reckless disregard of health/safety of others -Conduct had financial vulnerability -Repeated action or an isolated incident -Intentional h
Gore Guidepost 2 Ratio of punitive damages to compensatory damages -10:1
Gore Guidepost 3 The difference between the punitive damages award from the jury and the civil penalties imposed in comparable cases.
Particularized Foreseeability Special reason to known or particular knowledge that a particular plaintiff would suffer a particular type of injury.
L.S. Ayres v. Hicks Duty to act with a special relationship if you control the instrumentality.
Types of Special Relations store/customer common carrier/passenger
Tarasoff v. Regents of University of California Once a therapist determines or should have determined that the patient poses a serious danger of violence, he/she bears a duty to exercise reasonable care to protect the foreseeable victims of the dangers
J.S. and M.S. v. R.T.H. A spouse owes a duty to prevent sexual abuse by his/her spouse if they have actual knowledge or a reason to know that the spouse is likely to abuse or is abusing an identifiable victim. Failure to act a proximate cause of the injuries.
Created by: emdavis