Chapter IV The Duty Requirement: Nonphysical Harm'

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Chapter IV The Duty Requirement Non-physical
Harm.
If a persons negligence (that is to say, failure
to use reasonable care) results in emotional harm
but not an initial physical injury is there
liability?
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Chapter IV Emotional Harm

• Who can recover damages for emotional distress?
• Plaintiffs who suffer a physical injury as the
  result of someones negligence?
• Plaintiffs who are in the zone of physical
  danger and fear for their own safety?
• Plaintiffs who indirectly suffer emotional
  distress because of a physical injury to another?
• Plaintiffs who are direct victims of anothers
  negligence and who suffer emotional distress?

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Who can recover damages for emotional
distress? Fact patttern 1 Plaintiffs who
suffer a physical injury as the result of
someones negligence? Recovery for the emotional
harm that results from the injury allowed in all
jurisdictions.
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Who can recover damages for emotional
distress? Fact Pattern 2 Plaintiffs who are in
the zone of danger and fear for their own
safety? Old rule only if there was an
impact New rule Recovery generally
allowed. BUT Lawson (airplane crash case)
disagrees
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Who can recover damages for emotional
distress? Plaintiffs who indirectly suffer
emotional distress because of a physical injury
to another? Portee (and California) allow
recovery, but only where the bystander criteria
are met New York does not allow recovery
(Johnson, Bovsun) unless you are also in the zone
of physical danger.
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Who can recover damages for emotional
distress? Plaintiffs who are direct victims of
anothers negligence and who suffer emotional
distress? Gammon allows recovery. The dead body
and message of death cases allow recovery. The
HIV diagnosis cases allow recovery. California
(Molien v. Kaiser Hosp, negligent diagnosis of
syphillis, told to tell husband), Marlene F. But,
Johnson v. Jamaica Hospital foreseeability
standing alone does not create a duty. So, what
makes a victim direct?
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Chapter Seven Strict Liability A. Doctrinal
Development
The questions 1) What does it mean to say
someone is strictly liable? How does it differ
from fault based liability? 2) How do you
decide, doctrinally, that strict liability will
be imposed? What activities are subject to
strict liability? 3) Why, as a matter of policy,
are we imposing strict liability on some
activities and not others?
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Chapter Seven Strict Liability A. Doctrinal
Development
The problem Plaintiff farms organically.
Defendant, who owns the neighboring farm, does
not. When Defendants crops become infested by a
beetle, he hires Crop Duster to spray a
pesticide. Residue of the pesticide turns up on
Plaintiffs vegetables, which he then cannot sell
as organic. Because produce contracts are
entered before the crops are grown, Plaintiff
cannot find a market for his vegetables and is
forced to sell them at a loss.
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Chapter Seven Strict Liability Problem
Fletcher v. Rylands
The person who for his own purposes brings on
his lands and collects and keeps there anything
likely to do mischief if it escapes, must keep it
at his peril
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Chapter Seven Strict Liability A. Doctrinal
Development Fletcher v. Rylands

Subject to negligence-based liability
only Collision cases
Subject to strict liability leaking
reservoir fumes from alkali works leaking
privies escaping cattle
Why are the activities in the two categories
being treated differently?
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Chapter Seven Strict Liability A. Doctrinal
Development Fletcher v. Rylands
Why are the activities in the two categories
being treated differently? See p. 509

• There is no ground for saying that the plaintiff
  here took upon himself any risk arising from the
  uses to which the defendants should choose to
  apply their land. He neither knew what those
  might be . . . Nor could he in any way control
  the defendants use of the land.

• Traffic on the highways . . . cannot be
  conducted without exposing others to some risk .
  . . That being so, those who go on the highway or
  have their property adjacent to it . . .. Do so
  subject to taking upon themselves the risk from
  that inevitable danger.

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Chapter Seven Strict Liability Problem
Fletcher v. Rylands

• The person who for his own purposes brings on
  his lands and collects and keeps there anything
  likely to do mischief if it escapes, must keep it
  at his peril.
• The problem
• Is it likely to create mischief, or is the
  harm due to the organic farmers use?
• -- Is it a common usage
• Did the defendant bring it on to his land.
• -- Is the degree of risk different?

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Chapter Seven Strict Liability A. Doctrinal
Development

524A Plaintiff's Abnormally Sensitive Activity
There is no strict liability for harm
caused by an abnormally dangerous activity if the
harm would not have resulted but for the
abnormally sensitive character of the plaintiff's
activity.
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Chapter Seven Strict Liability Problem
Rylands v. Fletcher
If the defendants, not stopping at the natural
use of their close, had desired to use it for any
purpose which I may term a non-natural use, . .
. Then it appears to me that that which the
defendants were doing they were doing at their
own peril
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Chapter Seven Strict Liability A. Doctrinal
Development Sullivan v. Dunham

Subject to negligence-based liability
only Boiler explosion
Subject to strict liability Blasting
Why are the activities in the two categories
being treated differently?
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Chapter Seven Strict Liability A. Sullivan
v. Dunham

The safety of property generally is superior in
right to a particular use of a single piece of
property by its owner.
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Chapter Seven Strict Liability A. Doctrinal
Development Sullivan v. Dunham

Subject to negligence-based liability
only Boiler explosion By becoming a member of
a civilized state, I . . . give up many of my
natural rights. The general rule that I must
use my real estate as not to injure my neighbor,
is modified by the exigencies of the social
state.
Subject to strict liability Blasting The maxim
of sic utere tuo applies to protect person and
property from direct physical violence, which
although accidental, has the same effect as if it
were intentional.
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Chapter Seven Strict Liability A. Doctrinal
Development

• Restatement of Torts (see note 3, p. 525-526)
• An activity is subject to strict liability if
• It necessarily involves a risk of serious harm to
  the person , land or chattels of others which
  cannot be eliminated by the exercise of the
  utmost care and
• It is not a matter of common usage.

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Chapter Seven Strict Liability A. Doctrinal
Development
Restatement Second of Torts, 520 a) existence
of a high degree of risk b) likelihood of great
harm c) inability to eliminate the risk by the
exercise of reasonable care d) extent to which
the activity is not a matter of common usage e)
inappropriateness of the activity to the place
where it is carried on, and f) extent to which
its value to the community is outweighed by its
dangerous attributes.
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What are the goals of tort law?
From class 2 Corrective Justice / moral
goals Promote economic efficiency Encouraging
productive activity Increasing safety Deterring
unsafe conduct Compensating victims Fairness Settl
ing normative, contested social
issues Deterrence through imposing
costs Shifting and spreading costs
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Chapter Seven Strict Liability A. Doctrinal
Development
Rest. 3d 20. Abnormally Dangerous
ActivitiesProposed Final Draft No. 1 (a) An
actor who carries on an abnormally dangerous
activity is subject to strict liability for
physical harm resulting from the activity.(b) An
activity is abnormally dangerous if(1) the
activity creates a foreseeable and highly
significant risk of physical harm even when
reasonable care is exercised by all actors and
(2) the activity is not one of common usage.
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Chapter Seven Strict Liability A. Doctrinal
Development
The prima facie case Defendants activity is
one that is subject to strict liability. Defendan
ts activity was the but-for cause of the
harm. The harm resulted from the activitys
abnormally dangerous character. The plaintiffs
recovery will be reduced if the plaintiffs
unreasonable conduct contributed to the
harm. (Some forms of plaintiff conduct may
negate the finding that the activity was
abnormally dangerous hypersensitive uses, for
example)
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Assignments

Thursday 550-569 Friday 569-595