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Rutgers University, Newark School of Law
Bell, Bernard W.

Torts – Bell – 2015 – Fall Rutgers



Burden of Proof vs. Burden of Production

Burden of Production: Specifies who loses if no or insufficient evidence is produced. If this happens, then the party who has the burden of production loses

If an employee is fired, the employer has a burden of production to show why they were fired, and the employee has a burden of production to show that they were fired for whatever reason they allege

Burden of Persuasion: Specifies who loses once the case goes to jury and the evidence is exactly equal

Jury finds that both parties stories are equally plausible
The burden of persuasion in a civil case is “based on a preponderance of the evidence,” where whichever side has the burden has to show why their story is slightly more likely true than not


D’s conduct falls short of his standard of care (duty)
Must indicate what P’s duty is, and why his conduct was an unreasonable breach

General rule:

Reasonable Person Standard: How would a reasonably prudent person act under the circumstances
Professional Standard: What a reasonably prudent person in that profession would do, analyzed by a jury but the standard is set out by expert testimony
Children: Reasonably prudent child of a similar age, skill set, mental capacity acting in similar circumstances (subjective)

Unless the child is involved in an adult activity, where the reasonably prudent person standard is used due to the probability of harm involved

Physical Disability: Reasonably prudent person of a similar handicap, however the limitation is in that they cannot be engaging in activities outside of their capacity
Mental Handicap: Generally not considered
Common Carrier: Previously the highest degree of care for common carriers because of dangers of RR

After Bethel, now just a reasonable person standard

[Outer Limits] Notice – Foreseeability: Subsection of the above standards

Adams v. Bullock: Foreseeability built into breach, if you cannot reasonably foresee your act causing injury to another, then there is no breach of duty
Constructive Notice:

Standard of Gordon v. American Museum and Negri v. Stop & Shop

Apparent and visible danger
Danger existent for a sufficient amount of time

Alternative Standard: Wollerman, mode of operation rule

Given the type of business being conducted and the mode of operation (self serve produce), should have constructive notice of foreseeable dangers (veggie on the floor that someone could slip on)

Aids in Determining Reasonableness of Conduct

Custom (Timarco): When custom and practice pertain to safety, the custom may be used as evidence that one has failed to act as is required by the circumstances

Abiding my custom may serve to show reasonableness/due care, while departure may show breach


Statutory violation can show breach, while compliance can be a defense to show due care

Split in jurisdictions: non-compliance is evidence of breach (the reasonable person standard prevails), or non-compliance is negligence per se (negligence in itself by statutory violation)

Martin v. Herzog, if a statute is in place to protect against the exact injury that occurred due to statutory violation, violation can be used to show breach

[Negligence Per Se] P must show that he is a member of the class of persons that the statute is meant to protect, and the accident must be in the class of risks that the statute is meant to protect
[Reasonable Person Standard Used]: The tortfeasor can still show a defense of statutory violation by attempted compliance, disability/inability to comply, compliance is more risky than non-compliance, confusing statute

Violation of Custom or Statute may show breach, why?

Political processes are often biased in favor of businesses, so safety standards are not always optimal, but often just minimal
Political system is procedurally biased against regulation, matter of getting multiple branches of government to agree for something to become law
Substantive bias against making conduct unlawful (should be especially egregious), especially in criminal statutes

Economic Calculus of Risk and Foreseeability: Applicable in big industry

B < L (P), then the B/precaution should be taken

B = Burden, the cost of avoiding the accident
P =

tional level [see Sheeley v. Memorial Hospital]


Duty: Doctor/patient relationship
Breach: Doctor was negligent in diagnosing or in treatment while patient was in doctor’s duty of care
Causation: Negligence was a substantial factor in the injury
Damages: Harm was caused

Failure to obtain informed consent:
Duty: Part of doctor’s duty of care, duty to inform patient of options (things that a reasonable patient would want to know)

Reasonable Patient Standard (majority rule): Must disclose to patient reasonable treatments, alternatives and risks (Matthies v. Mastromonaco)

Limitation: Disclosure generally required for alternatives recognized and accepted by reasonably prudent physician

Professional Standard (minority rule): What is doctor’s custom in telling patients before a procedure

Causation- 3 standards used

Objective Standard: What would a reasonable person have done given the information?
Subjective Standard: Would P have undergone the procedure if given the information
Mixed: Would a reasonable person with the characteristics of P have gotten the procedure if given the info?

Exceptions to Informed Consent

Therapeutic: Disclosure could have an adverse effect on well-being of patient
Patient is incapable of giving consent due to infancy or mental disability
Patient specifically asks for information to be waived
Emergency situations where it is impractical to get consent
When the risk is known to patient or very obvious, or very minute in likelihood of occurring

Torts: Building on the Roadmap with Addition of Medical Malpractice


Prima Facie Case

Harmful or offensive touching