Select Page

Torts
Rutgers University, Newark School of Law
Gonzalez, Carlos

TORTS –
1.      A civil wrong committed by one person against another
2.      can and usually does arise outside of any agreement between parties

A tort is a civil redress. The primary concern of tort law has been whether one whose actions harm another should be required to pay compensation for the harm done.

UNDERLYING POLICIES AND GOALS OF TORT LAW
1.     
CENTRAL CONCEPT
Standard of Care
The Reasonable Person
THE ROLES OF JUDGE AND JURY
Role of Custom
Role of Statutes
PROOF OF NEGLIGENCE
MEDICAL MALPRACTICE
Compensation; Causation not necessary.
2.      Deterrence (Just); Causation is not necessary.
3.      Corrective Justice – fair for Δ to restore π to status quo
4.      Punishment (only in some cases)
5.      Avoid violence/chaos
6.      Administer Tort System efficiently – keep court costs down

Three types of TORTS:
I)                   NEGLIGENCE: the failure to exercise reasonable care under the circumstances
II)                STRICT LIABILITY: liability without fault
III)             INTENTIONAL HARM/TORT

I. NEGLIGENCE – inadvertent or unintentional failure to exercise that care which a RPP would exercise; conduct which violates certain legal standards of due care. Neg. constitutes recovery in a tort action if it is the proximate cause of injury to the π.


To establish a prima facie case of negligence, you must show that there was a duty to the π, a breach of that duty, and that the breach was the actual and proximate cause of the injury. Negligence may occur by a volitional act or by a willful and affirmative omission to act.

To establish a prima facie case of negligence, you must show five things:
1) Affirmative Act of Omission by a defendant
2) DUTY: exercise reasonable care or to act as the “reasonable person”
3) BREACH of that DUTY which establishes
4) CAUSATION: relationship between P and D conduct (be it Actual or Proximate) which results in:
5) INJURY

A few items to warm up with:
Hammontree v. Jenner
Hammontree, and husband were working in their bicycle shop, when D, had a seizure and crashed into Hammontree’s shop.
A Δ may not be liable for an accident caused by a force beyond D’s control so long as the Δ demonstrated due care, but if the Δ failed in his duty of due care, then this would be an affirmative omission for which he is liable.
(i.e. the guy had seizures but exercised his DUE CARE by taking medicine)
-BUT if the guy knew or should’ve known that DUE CARE was required and sat on his ass and didn’t do anything, then he is liable

(A) DUE CARE OR STANDARD OF CARE: the degree of care, which a reasonably prudent person should exercise to guard against probable danger.
Degree of care depends on five things:       BLAHRC
1. Was the person doing a Lawful act?         Brown v. Kendall
*2. Was harm reasonably and substantially foreseeable?     Adams v. Bullock
*3. Was the risk of Harm foreseeable?           Bolton v. Stone
4. BPL formula?                                             Carroll Towing, Pheasant Run
5. Was there a Custom?                                  T.J. Hooper, Trimarco v. Klein
6. Actual
The standard of care for a reasonably prudent person requires BLAHRC.
Brown v. Kendall
-Guy beating fighting dogs, advanced backwards and hit Plaintiff in eye with a stick.
-RULE: D was engaged in a Lawful activity and Exercised Reasonable Care.
The π must provide evidence that either the intent was unlawful or the Δ was culpable, but if the injury was unavoidable and the Δ’s conduct was not blameworthy then liability may not be established.

Adams v. Bullock
-Kid gets fried because he was twirling a wire near electrified rails
-RULE: not negligent for not providing protection against an Unforeseeable, extraordinary injury that is difficult to prevent. Harm must be foreseeable.
Reasonable care requires a high degree of vigilance. There is a duty to take all reasonable precautions to minimize risk.

Bolton v. Stone
-Woman hit with a cricket ball – only 6 to 10 balls have been hit out of the pitch in 30 years
-RULE: No liability for foreseeable injury (not caused by negligence or intentional action) if the risk of injury is extremely minimal. 
Risk must be “reasonably” and “substantially” foreseeable.

(B) BPL

B=Burden of adequate precaution or the cost is less than
P=Probability of accident occurring multiplied by the
L=Loss or degree of injury

-If B
PL then Probably no negligence

United States v. Carroll Towing
-Barge got loose and sank      
-RULE: BPL
When the burden of adequate precaution is high in comparison to the low probability of the accident occurring, then Δ’s conduct may be considered reasonable.

McCarthy v. Pheasant Run
-Woman almost raped at D’s hotel. Woman argues that signs needed to warn people to lock door
When the preventative measures are of reasonable cost in comparison to the probability and loss, then D may be liable for negligence. π needs to present evidence of costs and apply the Learned Hand Formula.
-But the case at hand, D never put up evidence showing the cost of preventive measures  
-P must bring up the BPL and give specific numbers

*A critique of BPL is that it cannot gauge probability and severity of injury

(C) CUSTOM
-WARNING: a custom is only evidence of a practice it is not conclusive, there must a reasonable person standard if you want to use it in court

TJ Hooper
-Barges sank in a storm, there were no radios on board, but other barges have radios.
-RULE: a common practice of a profession is relevant, but it is still subject to a reasonably prudent person in the same situation standard – must be the prevailing custom

Trimarco v. Klein (CUSTOM)
-Guy fell through plate glass shower door – other people installed plastic doors
-RULE: Custom and usage is part of the reasonable person standard.
When the custom has been ignored and it was the proximate cause of the injury, liability may be established. However, nonfeasance to comply with customary practice will not establish liability if under the prevailing custom, the reasonable person under similar circumstances would not adhere to it in consideration of cost, availability, and scope of use.

(D) VIOLATIONS OF A STATUTE
(1) MAJORITY VIEW: Negligence Per Se
-Presumption of negligence or negligent in itself. *Negligence as a matter of law, so that breach of duty is not a jury question. When there is a violation of a § then it is negligence per se.
Martin v.

cident
When there is only circumstantial evidence, the π may use the doctrine of res ipsa to establish negligence. The elements of res ipsa require that (1 Accidents of these kinds do not ordinarily happen in absence of negligence (2 Injury must have been caused by agency or instrument in EXCLUSIVE CONTROL of D, and (3) the π did not contribute to the injuries and π did not assume the risk of the accident. Element (1) …*Apply facts to elements.

Effects of Res Ipsa Loquitor *Always mention these three effects with RIL
1. Creates an inference of negligence
[in absence of proof of negligence, b/c usually the person is knocked out] 2. It is a REBUTABLE PRESUMPTION; once RIL is proved the BOP is on the Defendant to put on
evidence to prove otherwise  
3. The Burden Of Proof is shifted to Defendant

Anderson v. Service Merchandise (not in the casebook)
-Lady hit with lighting fixture that fell from ceiling
-Question of exclusive control, but resolved in that Service Mchdse. had day to day control

Byrne v. Boadle (No evidence of negligence)
-Guy hit with a sack of flour; he didn’t know who actually threw the sack, he just knew it came from the
bakery.
-No evidence of negligence, plaintiff must claim RIL.

MEDICAL MALPRACTICE AND RIL -Three requirements
1. Standard of care of Doctor            

2. Medical custom –Minimum standard of skill and Knowledge commonly possessed by members of that community:
A. Strict Locality Rule – expert testifying about “accepted medical practice” is from the same                                   community – Local standard –favored
B. Similar Locality Rule – expert testifying about “accepted medical practice” is from a similarly                                situated community – National standard -is adopted when it is the same as local standard
-Today there is a movement towards National standard b/c of AMA guidelines, etc.

3. Plaintiff will put on EXPERT WITNESSES to establish the Medical Custom
-Custom is used to bridge gaps in juries knowledge    -Connors v. Univ. Assoc.
Custom Requirements -Jones v. O Young (not in casebook)
1. Witness must be licensed member of that “school of medicine”
2. Familiar with the procedure, methods, and treatments ordinarily used by other
physicians in D community or similar community.