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Rutgers University, Newark School of Law
Troutt, David Dante

Torts Fall 2012- David Troutt

Rutgers-Newark: School of Law


Negligence: Omission of something that a reasonable man would do or doing something that a reasonable man would not do under the circumstances (Blythe v Birmingham Waterworks)

1) Difference with intentional torts: The negligent tortfeasor’s mental state is not important and the essence of the tort is the actor’s conduct that imposed an unreasonable risk of another

2) In order to prove negligence: The plaintiff must prove that defendant owed a duty to the plaintiff, that the defendant failed to conform to that duty, the duty caused, both factually and proximately to plaintiff’s harm and the plaintiff was actually harmed.

3) Important factors for determining negligence

i. The character and location of the premises

ii. Purpose for which they are used

iii. Probability of injury

iv. Precautions necessary to prevent injury

v. Relations such precautions bear to the beneficial use of the premises (Chicago Burlington)


Duty: Plaintiff must show that D owed P a legal duty to conduct himself according to certain standards, to avoid unreasonable risks to others

a) When Examining Duty: Compare the Relationship of Both Parties!!!!

b) Duty is a matter of law: Courts must decide based on special problems of principle or policy that justify withholding liability

a. A reasonable person must recognize a duty

b. Based on interests: Such as interest in preserving nature

c) Reasonableness as a matter of fact: The jury and community must decide

d) To use reasonable care to avoid physical harm to others; When it was foreseeable that his act or omission to act may cause harm to someone

a. Determining duty: Depends on balancing societal interests (Chicago Burlington)

i. Reasonable foreseeability of injury (more than mere possibility)

1. Foreseeability: The plaintiff must show that D’s conduct, at the time it occurred imposed an unreasonable risk of harm

a. Magnitude of risk

i. Social value law attaches to interests imperiled by actor’s conduct

ii. Extent it will cause an invasion of any interest of the other

iii. Extent of harm likely caused by the interests imperiled

iv. Number of people whose interests are likely to be invaded

b. Inherently dangerous objects: If potentially dangerous objects are left lying around, objects that do not pose dangerous if they unexpectedly cause harm

c. Unavoidable accidents: No one is reasonable for unavoidable accidents while engaged in a lawful business, Culpable negligence is required (Nitro)

d. Different types of Foreseeability

i. Proximate Cause Foreseeability: Decide whether a particular P’s injury was reasonably foreseeable in light of a particular D’s conduct

ii. Duty Foreseeability: Whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced

e) Look and see if B

a. Hand Formula: B < PL

i. If the burden of preventing or decreasing the risk of harm is less than the probability that the harm will occur x the extent, the individual is negligent for not fulfilling that burden

ii. Good for: Situations with high numbers, industrial sized disputes

iii. The more serious the potential injury: The less probably its occurrence need to be before D will be held liable

b. Calculating burden: The cost to the D and the broader social utility of the conduct that society has to forego

i. Policy: Courts look at policy to decide on the burden

ii. Magnitude of burden of guarding against injury

iii. Consequences of placing burden on D

iv. Considerations of public policy

f) Restatement’s Utility Test: Where an act is one which a reasonable person would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility or of the particular manner in which it is done

a. Social value law attaches to interest advanced

b. Extent that the interest will be advanced or protected by the conduct

c. Extent and chance it can be protected by another and less dangerous course of conduct

g) Warnings: The risks of conduct can be reduced by warning of the danger

a. Failure to warn: It can be negligent if D has a duty to warn

i. Elements:

1. D has reason to know of the risk and those encountering it will be unaware of the risk

2. A warning might be effective in reducing the risk of harm

b. Only as a factor: It does not immunize D from negligence liability if D fails to exercise reasonable care by failing to adopt further precautions if it is foreseeable that risks will remain despite the warning

Breach: The plaintiff must show that the D’s conduct imposed an unreasonable risk of harm on the plaintiff or that the defendant fell below the standard of reasonable care

a) Determination

a. Reasonable Care

i. Reasonable man: Conduct of a reasonable man of ordinary prudence under like circumstances in the position of the D

1. Standard of Care: The Burden of Liability; Standard of those actor under those circumstances

a. Difference between the two standards

i. Objective: An abstract being who is ordinary in all respects and always acts the same in like circumstances

1. Impersonal standard for assessing negligence

ii. Subjective: A being who is reasonable but also has some of the particular capacities and traits of the particular individual whose conduct is being judged

2. Characteristics

a. Includes the physical disability: The standard is what a reasonable person with that physical disability would have done

i. Exception: One who knows and puts himself in a situation that a reasonable person with that physical disability would not have, is liable for negligence

b. Mental disability is not taken into account: A person is not absolved of negligence because he is more stupid, hot-tempered, careless or of poorer judgment than an original reasonable person

i. Exception: D cannot be negligent if he lacked the capacity to understand the consequences of his actions

1. Intoxication: Is not a defense

2. Insanity: Courts are split

a. Mental Deficiency short of insanity: Is held to the same standard of care as a person of greater intellect

b. Exception: If a child was insane or mentally incompetent

c. Children: A reasonably careful person of the same age, intelligence and experience

i. Subjective test

1. Factors: Capacity of the child, given evidence of his age, intelligence and experience, to avoid and perceive the particular risk involved

ii. Adult activities: He has the same standard as an adult

d. Knowledge: Knowledge that a reasonable person has

i. Ordinary experience: There are many things in which every adult has learned and these items of knowledge are virtually what every adult in the community possesses

1. Stranger to a community: Courts are split

ii. Memory: If a person is subject to no danger, stress, strain or haste that can excuse forgetfulness, P is bound to remember the circumstance if she knows the dangerous defects

1. Distractions: She will not be liable if there is a legitimate reason for a distraction

iii. Temperature: A reasonable person acts in reference to the average circumstances of temperature in ordinary years

iv. Duty to know: A person cannot escape liability since he does not know because it is a duty for him to know

v. Duty to investigate: A person has a condition to end her ignorance and find out the problem before the accident is caused

e. Special skill: If an actor has skills or knowledge that exceed those possessed by most, these are taken into account in determining whether the actor behaved as a reasonably careful person

i. Reckless disregard of safety: If an actor intentionally does an act or fails to do an act which is his duty to do, knowing or having reason to know of the facts that would lead a reasonable man to realize that the actor’s conduct not only creates an unreasonably great risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him

f. Emergency: Including in the circumstances of a reasonable person

i. Emergency: Emergency can be taken into account in determining a breach of negligence

1. Freedom from negligence contributing to the creation of the emergency

2. A short time interval


A) Rule: An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes and if the accident victim is within the class of persons the statute is trying to protect

a. Rationale: The legislature passed a statute that defines reasonable conduct in a certain situation

b. Occurs in: Safety standards

B) Application: Violations to statutes, local ordinances and regulations

C) Elements:

a. D violated a statute

i. Causal link: D’s violation must cause the resulting injury

1. Important in situations of warning and safety devices: If the accident would have happened even if a warning or device was furnished, there is no negligence per se

b. Without excuse:

i. It can be excusable: Based on the circumstances

c. Statute was designed to protect against the same type of accident that D’s conduct caused

i. Purpose of legislation: The court must find that the legislation intended to create a standard that establishes strict liability in order to allow it for negligence per se

d. The victim falls within the class of persons the statute is trying to protect

i. Blue Law: Protects the interests of the public at large and not the particular individual will not establish negligence

ii. Two classes of persons: May be protected

D) Can be a rebuttable presumption or an absolute duty

a. Absolute duty: To comply with the statute and a good faith attempt is not sufficient and these statutes hold no room for excuses

b. Rebuttable presumption: D is allowed excuses for non-compliance

E) Excuses:

a. Incapacity : For minors, a violation of a statute is only evidence and a child’s conduct is measured by the child’s special standard of care

i. Also includes physical disabilities and physical incapacitation

b. Ignorance: D did not know the factual circumstances that made the statute applicable

i. Or if it was confusing to the public

c. Reasonable attempt to comply: D exercised reasonable care in trying to comply with the statute

i. Greater risk of harm: If compliance would have involved a greater risk of physical harm to the actor or to other than non-compliance

d. Out of D’s control: Violation is due to some cause beyond the violator’s control and which reasonable prudence could have guarded against

e. Technical violation: Violation is merely technical

f. No notice: Violation where violator did not/could not have received notice that his actions violated a law typically because he was unaware of the underlying facts

F) Plaintiff’s Contributory Negligence: D can assert it as a defense

a. “A plaintiff who has violated a legislative enactment designed to prevent a certain type of dangerous situation is barred from recovery for a harm caused by a violation of the statute if, but only if, the harm was sustained by reason for a situation of that type”

G) The violation can still be evidence: Even if the negligence per se requirements are not met

H) Full compliance with the statute: It does not establish that D was not negligent and it depends if a reasonable person would take precautions beyond those required by the statute

Circumstantial Evidence

1) Rule: A plaintiff does not need to know the actual thing that caused her harm but she can use evidence to raise reasonable inferences that satisfy the burden of proof.