Torts Class Notes 11/5/03




There is no duty to take affirmative action unless:


·        The actor has, with or without fault, caused the harm or the risk of harm.

·        The actor took affirmative steps to aid another.

·        The actor has a special relationship with the other person.


We talked about public policy considerations.


Tarasoff v. Regents of the University of California


Poddar was under the care of a psychiatrist.  Poddar said that he was thinking of killing a woman.  They confined him for a while and notified the campus police, then let him go and two months later he killed the woman.


What did the psychotherapist allegedly fail to do?  The psychotherapist had the duty to warn a third party of a possible harm from another.


After Tarasoff, how would a psychotherapist’s behavior change?  One of the alleged risks of this case is the overprediction of dangerousness in order to avoid liability.  But that might have other consequences.  Therapists said that they didn’t really want to be therapists if they had to tattle all the time instead of help their clients.  They say that confidentiality helps therapists do their job.  The goal is candor.


Is a legal rule necessary to obligate therapists to warn?  In this case, the therapist actually did tell the police.  Arguably, therapists will do the right thing anyway, and the consequences of a legal rule are worse than if they didn’t have it.


If you are a therapist, and you find out that one of your patients might be dangerous, what must you do to discharge your duty?  You need to take reasonable steps to avoid an identifiable risk.


What if the client threatens the life of a woman and the therapist doesn’t do anything, but the client doesn’t kill the woman, but instead the woman’s son.  Will the therapist be liable for breaching his duty to warn?  Should you only have to warn identifiable victims?


One more thing to think about: is there an implied duty to take affirmative action?


Contributory negligence


·        Originally, contributory negligence was a complete defense to negligence.

·        This is not a defense to intentional torts.


Butterfield v. Forrester


This is the first appearance of the contributory negligence doctrine.


The defendant was repairing his house and he had laid a pole across the street.  The plaintiff rode down that street real fast.  The plaintiff hit the pole and fell off his horse.  The plaintiff sues for the damages caused by the accident.


The jury found for the defendant on a contributory negligence theory.


What did the judges say?  Bailey said that if the plaintiff had used ordinary care, he could have avoided the accident entirely, and therefore, it is argued, the plaintiff is entirely at fault.


Some judges think that if the plaintiff is the last actor and has the last choice, they should be held fully responsible for their own injuries.


One judge suggests that plaintiffs might cause themselves to be injured.  If potential plaintiffs go looking for negligent situations and throw themselves in to try to get money, you need a policy to prevent that from happening.  To prevent this, we’ll adopt the contributory negligence doctrine.  We want to discourage people from being careless.


In the old days, we didn’t think juries could apportion liability.


Courts started having a problem with this doctrine.  In response, they developed the “last clear chance” doctrine.


Davies v. Mann

A donkey got run over.  The donkey was unsupervised.  The donkey is a “helpless plaintiff”.  There’s a lot more sympathy because you can’t do anything, and you have to depend on other people avoiding an accident.  It’s more likely that the last clear chance will be invoked when the plaintiff has put himself into a hopeless, helpless position.  Then the defendant has the last chance to stop the accident.  This doctrine is a check on contributory negligence.


There is jurisdictional variation on this doctrine.


Last clear chance educates you on figuring out apportionment of liability.  Who is the most at fault?  Who is less at fault?  This rule helps us understand.


Comparative negligence – McIntyre v. Balentine


How does the court rationalize the development of comparative negligence?  The court says that contributory negligence was a common law idea in the first place.


The court says that they won’t abandon stare decisis.  They want people to think that it’s a small move.  The court says that joint and several liability is abolished under comparative negligence.  If you can apportion liability but one of the defendants is insolvent, should the other defendants pick up the tab?


Joint and several liability has gotten a bad name due to unfairness to defendants.


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