I. Duty of Care a. Pure Economic loss i. Recovery for pure economic loss only is prohibited for negligence. LA v. M/V Testbank (fifth Cir. En bank) 1985 ii. It may be reasonably foreseeable that this type of harm would occur, but the scope of liability would be too large, thus no duty of care is pertinent to limit such liability. iii. This first cost liability would be better for insurance as it would spread the losses around and not put all the losses on one company. iv. Those businesses that lost a lot will get picked up more predictably by their own insurers at a more finite and readily discernable. b. Negligent Mental Disturbance and Resulting Injury i. Generally, no cause of action for pure emotional pain (no duty) ii. The exceptions: 1. If a person suffers a physical injury then he can recover for the emotional distress suffered as a result of the injury. 2. Pure emotional loss recovery permitted if there was some sort of contemporaneous physical impact on P’s body from D. 3. If the emotional disturbance causes a normal PHYSICAL MANIFESTATION of the emo distress objective physical manifestation then recovery. a. Exceptions to physical manifestation: b. Negligent transmission of death telegrams companies liable for emo distress if send them by mistake (minority) c. Negligent interference sued for emo distress (minority) 4. Zone of danger rule a. Zone of danger requirement says P can recover for pure emotional loss if he was in the zone of threatened physical injury and P feared for own safety. b. Prob with this rule was: i. If P sees a family member hurt but P not in zone of danger they could not recover so the ct. changed it in: 5. Dillon rule in CA based on reasonable foreseeability of emotional loss (if so then can recover) P can sue a D for emo distress caused by seeing a negligently inflicted injury of a 3rd person only if P is a. Proximate—be near b. Visibility – see c. Relationship—if closely related, then recovery i. Serious emotional distress 6. Thing three a. Close rela b. P present at scene at time occurs then aware injury to victim c. As a result severe emotional distress beyond that of disinterested witness and i. not an abnormal response 7. Direct victim cases— a. Molien the doc’s negligence caused emo distress, thus doc will pay b/c of special/fiduciary rela, not b/c of zone of danger, etc. b. Or if highly forseeable injury to other would cause severe emo distress to victim c. Unborn Children i. Child can sue those who injure it in utero 1. At common law had to be born alive, then could sue 2. If not born alive then no cause of action ii. Majority of states do allow a stillborn child to sue for wrongful death 1. NY child killed in utero cannot recover a. mother will recover iii. Does a woman have a duty to protect her fetus? 1. Reasons for: a. If someone else does it, then they might be liable for hurting the child, so mothers should definitely be liable, too. b. Mother is in control of instrumentality of child’s injury— special relationship. c. Deterrence and compensation 2. Reasons against: a. sanctity of a woman’s body b. restrictions may be too great (no lunch meat, no cat box cleaning, no alcohol) c. What is reasonable care? (too difficult to define) iv. Wrongful birth—(parent can sue) negligence caused child to be born, when if given choice, not born 1. This is the preferred cause of action, still VERY controversial 2. Damages limited to emo distress and extraordinary medical expenses incurred on behalf of defective child. v. Wrongful Life—(child can sue) for having to be born from physician’s negligence 1. Few jurisdictions allow wrongful life suit 2. Damages are limited to expenses from condition 3. No pain and suffering vi. Wrongful pregnancy—woman pregnant b/c of docs negligence 1. Doc messed up sterilization II. Owners and occupiers of land (Duty of care) a. Outside the premises i. Whether owners of land have a duty of care to be reasonable landowners and prevent an unreasonable risk of harm to others (from roadside trees) is a question of fact for the jury to depend on the particular situation at hand. Taylor v. Olsen (OR, 1978) ii. How duty is placed on owner’s of land iii. Traditional Use of land--Natural/artificial and Rural/Urban 1. The above distinctions are still pertinent to the discussion b/c it defines what reasonable care is in the situation 2. Probability of injury changes depending on where you are (rural/urban) and what you are doing (natural use of the land/artificial use of the land) iv. Costs of precautions changes from owner to owner 1. Large rural lot would bring high cost of precs. a. Thus less of a duty 2. Small urban lot a lower cost of precs. a. Thus greater duty of care v. Book says there is another distinction: Static conditions/active conduct (on the premises that injured someone) 1. Static conds nat’l rural no duty 2. Artificial urban or active conduct duty of care to persons outside 3. Trend now, all landowners have duty of reas care to avoid hurting those off premises, those historical categories determine reasonable care. b. On the premises i. Trespassers (Sheehan v. St. Paul & Duluth Ry. Co. 1896) 1. RR co is not bound to act for trespassers on such places; the trespasser who walks on the track (where free track is expected) assumes all risks of the conditions that might be there, including cars and engines coming at him. a. No duty to use reasonable care to make the premises safe for trespassers 2. Duty to trespassers is to not willfully nor wantonly injure them. 3. Majority says when trespasser is discovered the owner must exercise ordinary care to avoid injuring the trespasser by active operations. ii. Licensees (Barmore v. Elmore) IL 1980 1. Licensee --A social guest (companionship, diversion, or entertainment) or one who enters the premises of the owner by permission, but for the licensee’s own purpose. 2. A licensee must take the premises as he finds them. a. An owner of premises has a duty to warn the licensee of any hidden dangers that the owner has knowledge of b. To avoid willful or wanton harm, too. iii. Invitees (Campbell v. Weathers) KS, 1941 1. An invitee is someone who is either expressly or impliedly invited onto the premises of another for business of that other. a. Mutually beneficial business relationship. b. If you go into a store with a view to doing such business then you are an invitee. 2. The public has a general invitation to be a customer/invitee. Thus the owner has a duty to protect those invitees with reasonable care to keep the premises reasonably safe for use by the invitee. 3. Note 6 491—Yale wanted donations, thus P (alumnus) was an invitee. iv. If a business transaction is over one is thus no longer an invitee, and just a liscensee. Whelan v. Van Natta KY 1964 1. It is to his benefit to let me into the area to get the box, increases the good will of the business, 2. If the invitee goes outside the area of his invitation he becomes a trespasser or a liscensee, depending upon whether he goes there w/o the consent of the possessor, or with such consent. 3. If you go into a part of a store that is a residence then you are a licensee. a. Must give people a chance to leave once invite them onto your property, however. v. Warning—Wilk v. Georges OR 1973 1. D put up a sign warning of slippery stuff. D put asphalt down to make the planks less slippery. a. Warnings can work, it depends on what is reasonable care under the circumstances b. Landowner who anticipated the slippery walkway, should have watched the slippery walkway closer. c. If Invitee knows of danger (b/c of warning) the owner can still be negligent if it not difficult to eliminate the danger and if D (owner) can reasonably anticipate P could still slip warning notwithstanding. 2. If the possessor should anticipate an unreasonable risk of harm to the invitee notwithstanding a warning or knowledge on P’s part, D’s duty may require him to take steps to ameliorate the danger. a. Take affirmative steps to make the premises safe 3. If the jury feels that the condition was unreasonably dangerous – one that cannot be overcome even if the danger is known and appreciated – then the owner has to do more than warn, he must do what is reasonable to minimize the danger. 4. Note 4: Criminal activity posing a danger to invitees a. Argue that inviter should have taken steps to minimize the criminal activity i. Cts sometimes find duty to protect invitees b. Don’t want to second guess actions taken during ongoing crime i. Cts do not recognize a duty of inviters to stop crime on going (give in to hostage taking, etc.) vi. Persons outside of the established categories invitee/liscensee/trespasser. 1. Owners of property must exercise a high standard of care toward children. As we all want children to be safe from harm. a. Attractive nuisance doctrine --land owner puts a thing that will attract children, then have a duty of care to them to be reasonable in keeping the kids from getting hurt i. Like RR turntables vii. Artificial Conditions Highly Dangerous to Trespassing Children--1. A landowner is subject to liability for physical harm to children trespassing thereon caused by an artificial condition on the land if a. Place where cond. exists is one where the possessor knows or has reason to know that children are likely to trespass b. The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to children, and c. The children b/c of their youth do not discover the condition or realize the risk involved in fooling with it or in coming within the area made dangerous by it d. The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (B