TORTS II

2. Failure to Act
-(Note: Hone in on relationships, that est. duty; is this what a RPP
would do?)
-In general: under common Law if D is not responsible for the injury
then D owes no duty to go to the aid of a stranger in an
emergency (Tort law is not concerned with moral obligations).
Hegel- Daughter goes to college does drugs, parents sue school,
ct says that universities are not daycares/ no obligation to
prevent this sort of thing.
-Moral Obligations are not enforceable under law.
-Instrumentality – D has a duty to take affirmative steps help P when
D is in control of the instrument that injuries P, albeit caused by P
or 3rd party. However, D is only liable for aggravation caused by D
not exercising said duty.
-Hicks- P’s finger gets stuck in escalator, D fails to act in a
reasonable period of time and is liable for P losing his hand
(the aggravation).
Misfeasance and nonfeasance - acting negligently and failing to act.
Good Samaritan statutes encourage people to act w/o liability.
Employers have a duty when they are aware of an employee’s
disease or dangerous condition.
Protecting P from actions of a 3rd party -3 basic circumstances
that may impose a duty to protect a P from acts of a 3 rd
party. D must exercise reasonable care when:
a. Voluntary undertaking - when one voluntarily
undertakes another and P relies on it.
b. Control – By special relationship, Those who control
of others are obligated to protect others e.g.
Employer tells drunk employee to go home, kills
passenger, P liable.
c. Relationships – Carrier-passenger, innkeeper-
guest…
DUTY TO 3RD PARTY/CHILDREN
JS v RTH: Husband molests next door girls, wife had a duty to
the children. (I) Foreseeable 2) Opportunity to intervene
3) Comparative interests 4) Societal interests in
recognizing duty.
- Foreseeability - D’s knowledge of the risk (actual or
constructive) P must show that D knew or should
had reason to know from past experience that the
3rd party was going to be endanger.
- Duty – P’s interests are entitled to legal protection
( or Strong PP argument); Imposition of duty
requires a relationship between the parties that
 would give the D sufficient control, opportunity, and
ability to avoid risk. – Ultimately a question of PP
based on fairness, common sense, and morality.
(Duty is malleable).
- Scope –determined by the totality of the
circumstances: If easy to correct and harm is
serious, it is fair to impose duty (Moral Hand).
- Evidence that Supports foreseeabilty – Giving the
D particular knowledge or special reason to
know. ( The test cannot be too broad as to
expose the D to unreasonable liability).
- History e.g. history of sexual abuse
- Ability to deduct that such acts could be
occurring. (unsupervised time with children)
- Statistical evidence
- Every citizen has a statutory duty to report child
abuse, if they have reasonable cause.
- Greater societal interests in protecting the P?
- D has duty to take reasonable steps to see that that
the Abuse end.
- D/wife was the proximate cause by failing to
prevent the furtherance of abuse.
DUTY TO WARN
Tarsoff v. Regents: Psychiatrist patient kills P, D knew patient
was likely to do such a thing. D had duty to warn.
-D had duty to warn at common law due to the special
relationship to dangerous person OR potential victim.
- If it was or could/should have been determined to that
there was serious danger to P, D had duty to protect
foreseeable victim.
-Weighing the interests of society, patients and victims.

4. EMOTIONAL DISTRESS:
The D’s negligence cause the P to suffer ED
Old rule : There had to be impact (to deter fraudulent law suits).
New Rule: Require P to be in the zone of danger created by the D,
not direct impact by require the P to suffer physical injury.
1)duty 2)breach 3)In danger 4) physical injury (Not preexisting).
Daley v. LaCroix- D’s car ran off road hit power line caused
explosion in P’s home. MI had old rule adopted new rule, it is
widespread reform.
-Science is able to determine whether the was an injury.
-Prosser footnote, Impact is a trivial/tenuous concept to
base recovery on.
-No recovery for the eggshells – RPP reaction
 Thing v. La Chusa- Mother saw injured son after accident, did
not see the accident and there was is not able to recover.
- P may receive damages for ED by observing a
negligently inflicted injury to a third person only if P
1) is closely related 2) is present at the scene when
the event occurs and is then aware of the injury to
the victim; 3) as a result suffers ED
- Foreseeability – CA uses the a strict std

Chapter 10 –Damages
Nominal – Small sum, awarded to vindicate rights of P.
Compensatory – Closest possible financial equivalent of the loss or
harm suffered by P – Want to restore P to a position they were in
before Tort occurred.
Punitive – meant to punish the D and deter the D from entering into
similar tortuous conduct
Personal Injuries
Anderson v. Sears-(remittitur denied) Child is terribly burnt and
disfigured by defective product. Jury issued 2,000,000
compensatory verdict, D moves for remittitur.
- The ct did not err in allowing the child to appear at the trial or
in allowing P’s atty to show photos of injuries.
Maximum Recovery Rule – Exceeds the maximum
amount in which the jury could reasonably find and
to ct my limit verdict to the highest amt.
HOW TO DETERMINE UNDER MRR
-Past physical and mental pain- from the time of
the tort to present- physical and metal
examinations are done.
-Future physical and mental pain- What
complication may arise from the injuries?
Increased risk of harm? Psychological and social
stress issues (e.g. Burnt face)
-Future medical expenses - Future operations,
therapy.
-Loss of earning capacity – Deducted interest and
added for inflation
-Permanent disability and disfigurement – All the
injuries.
Richardson v. Chapman – (remittitur granted) 2 women in a
car accident - 1 severely injured the other, not as bad –
some ED.
---Excessive damages – falls outside the range of fair and
reasonable compensation or results from passion or
prejudice
-D challenged the P’s expert’s figures for damages, the
upper bound and lower bound analysis
-Ct found calc. reasonable
-IL does not compare damages claims to other cases to
determine whether damages are excessive.
-D argues Fut. Med. Exp.s not properly given, they
exceed the economist’s calc. ct agrees
-Dissent- the jury was adding the Dr’s testimony
of misc. med. Expenses and the jury made a
proper estimation b/c it was actually lower
than an amount the could have used.
-The ct also found that the passengers ED claim was
excessive and reduced it.
-Dissent – says that this is BS the jury was to
decide this and there is no sound reason that
this was excessive, moreover this is the juries
job.