Torts Class Notes
More
on suicide and rescue
Does
suicide break the chain of proximate causation?
In certain jurisdictions, it does unless you prove that it was an irresistible
impulse. In other jurisdictions, suicide
is always a superceding cause that breaks the chain of causation.
Rescue
is highly valued by the law. Courts will
work hard to get cases brought by rescuers to a jury. Even people who rescue people from suicide
can bring suit against the person who attempted suicide.
Part
of the deal with rescue is public policy.
We want to encourage rescue.
Kelly
v. Gwinnell
This
is social host liability. We need to cut
off liability at some point.
The
defendant had been at Zak’s house drinking.
Then the defendant left and got into a car accident with Kelly, injuring
her. Kelly sued the defendant, then the defendant
sued the Zaks in a third party action.
Then Kelly added the Zaks to her lawsuit.
What
are the arguments in favor of social host liability? It forces social hosts to be responsible when
they’re serving guests in their own homes.
It may prevent drunk driving. We
want social hosts to recognize when guests are intoxicated and shouldn’t be
given any additional alcohol.
On
the other hand, there’s a possibility that you could serve someone who is drunk
more alcohol and become 100% liable for the harm they cause (under joint and
several liability) if the drunk person doesn’t have any money. Some would say that fault should lie with the
drunk driver.
What
are other reasons not to have social host liability? Well, how can a social host know what a
visibly intoxicated person looks like?
It puts a burden on social hosts that they may not be in a position to
bear. On the other hand, a bartender has
enough experience to know when to stop giving people drinks.
Also,
sometimes a social host is drinking, unlike a bartender. A social host also will have difficulty in
preventing a guest from departing.
Commercial
establishments are more likely to have insurance to cover liability than
private people. In that way, the
businesses can spread the costs of potential liability to their customers by
raising prices.
We
also don’t want to inhibit social gatherings!
The dissent says that those are important! We say that there is a public policy in favor
of gathering together.
The
court says that there is a line to be drawn between minors and adults. We do impose liability on hosts who give
alcohol to minors.
We
want to make sure that victims are compensated.
A drunk driver might not have enough money to compensate the people they
injure. With social host liability, you
have another pocket to pick to get money for the victim. We want to deter drunk driving. Also, social hosts are already liable for
serving alcohol to minors. Licensees are
also liable under the Dram Shop Act. The
court suggests that they have “surrounded” the social gathering situation with liability,
and so it’s not such a big step to, in effect, “fill in the gap”.
It’s
hard to know when you’re a social host what lengths you should go to in order
to stop a drunken guest.
Enright
v. Eli Lilly &
This
is a DES case. The grandmother took the
drug, the mother had reproductive problems, and the daughter had birth
defects. Is that foreseeable? What if we know that the daughters of
pregnant women who take DES will have reproductive problems?
Is
there proximate cause here? The court
decides as a matter of policy not to look at multi-generational effects. So this question isn’t resolved in the case,
but it could be important. Cole is not
convinced that there is necessarily a connection between DES and the granddaughter’s
cerebral palsy.
Why
does the court cut off liability at the second generation? The court compares the case to Albala. The court doesn’t want liability to get out
of hand.
The
court talks about the FDA as an alternative way to encourage drug safety. That’s interesting, according to Cole. The court seems to say that if the FDA says a
drug is OK, the court will not step in as much.
The
court is also concerned with over-deterrence. Drugs have a greater value to society than
other goods, but they also inherently carry risks. We want to favor the development of new
drugs, even though this creates risks for the people that take them.
There
were these cases against Soldier of Fortune magazine. They were split. One found that the magazine was liable for
someone who hired a hit man from their classifieds.
There
was also the “Natural Born Killers” case.
When
do you have a duty to take affirmative action?
1. When an actor at
fault has caused harm or the risk of harm
2. When an actor
takes affirmative steps to aid
3. When an actor
has a special relationship with the person to be helped
Don’t
go to the
Why
was the university held liable for a rape in one of its dorms? This is sort of like landlord liability. There is a difference when the university
asserts control over an area. The cases
can be reconciled because the students can’t take care of themselves, but the
university can take steps to protect them.
There’s
an argument that adults can make decisions on their own because they have free
will. It might be different if it was a
kid or someone else who didn’t know better.
Restatement § 322. Duty To Aid Another Harmed By
Actor's Conduct
If the actor knows or has reason to know that by his
conduct, whether tortious or innocent, he has caused such bodily harm to
another as to make him helpless and in danger of further harm, the actor is
under a duty to exercise reasonable care to prevent such further harm.
§ 324. Duty Of One Who Takes Charge Of Another Who
Is Helpless
One who, being under no duty to do so, takes charge
of another who is helpless adequately to aid or protect himself is subject to
liability to the other for any bodily harm caused to him 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 his aid or protection,
if by so doing he leaves the other in a worse position than when the actor took
charge of him.
If
you take an affirmative act, then leave a person in a worse position than the
one they started out in, you may be liable.
This
is pretty simple. This is a case where
there is a relationship between the actors.
A boy was shopping with his mother in a department store. The boy got his hand caught in the
escalator. The defendant is negligent in
shutting down the escalator quickly enough.
The defendant is only responsible for the aggravation of the injury
caused by their delay. They are
responsible because they invited the shoppers into the store. Businesses have certain duties to their
customers. The store has control over
the escalator, and that creates a responsibility.