Select Page

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

(3) Kinds of Torts-
1. Negligence
a. duty
b. breach
c. causation
d. injury
2. Strict Liability
3. Intentional Harm
I. NEGLIGANCE: failure to exercise due care under the circumstances
(D did not intend to bring about certain result, but has merely behaved carelessly)
A. Development of Fault Liability
To establish prima facie case of negligence:
· An act or omission by a D
· Duty: to exercise due, reasonable care to conform to a standard of conduct so as to avoid unreasonable risks to others. The D must have a duty to P not to create an unreasonable risk.
· Breach of the duty by D
· Causation: relationship between D’s conduct and P’s harm (actual and proximate)
· Injury: an actual damage must be shown; one may recover for nominal damages
Hammontree v. Jenner:
D had past history of epileptic seizures. After 14 years without a seizure, one occurred causing him to have a car accident in which P was injured. D had a valid driver’s license and the authorities knew of his condition. P sued on strict liability.
Held: – Strict liability is not an appropriate theory for recovery when sudden illness renders an automobile driver unconscious.
-The theory of negligence is adequate for auto accidents since drivers share the roads and should allocate damages based on fault. Since D used reasonable care to control his seizures, no negligence is proven.
B. The Central Concept
1. Stand

BPL formula
· Risk of harm must be reasonable
· Custom
Brown v. Kendall
D’s dog and P’s dog were fighting. D repeatedly struck the dogs with a stick to separate them, but accidentally hit P in the eye.
Issue: Is there liability for injuries that are inadvertent and unintentional?
Rule: No. D committed a lawful act and was not at fault. If unintentional (without fault) harm then not recovery. Fault is the standard for liability. One is liable for damages resulting from actions conducted in a negligent or careless manner. No fault if the act in which D was engaged at the time of incident was necessary and thus lawful, and while committing this act he exercised ordinary care (extraordinary care is not the normal standard) and too precautions.
Adams v. Bullock
P (12 year old) was electrocuted when the eight foot long wire he was arraying struck the overhead wire of the D’s trolley.
Rule: a duty exists to adopt all reasonable precautions to minimize possible peril. A party is not negligent for not providing protection against an unforeseeable, extraordinary injury that would be extremely difficult to prevent. Harm must be reasonably foreseeable.
In determining degree of care, the courts have used B