Torts Class Notes 11/4/03


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 & Co.


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.


Hegel v. Langsam


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 University of Cincinnati, because you’ll get turned into a criminal!  The parents sue, claiming that the school should be responsible for the failings of a minor student.  If liability was imposed, universities would have increased costs and would have to have much greater oversight over students.


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.


L.S. Ayres & Co. v. Hicks


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.


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