Torts Outline
Fall 2007
Professor Opderbeck
Negligence Generally:
I. Component of Tort of Negligence:
a. Generally – the tort of “negligence” occurs when D’s conduct imposes an unreasonable risk upon another, which results in injury to that other. The negligent tortfeasor’s mental state is irrelevant (look at the conduct only)
b. Prima Facie Case = Components of a Negligence Action are: (Prosser’s Four components)
i. Duty = requiring D to conduct himself to conform his conduct to this standard
ii. Breach = failure by D to conform his conduct to this standard (Carelessness)
iii. Causation (Proximate Cause) = sufficiently close link b/w D’s act of negligence and the harm suffered by P
iv. Actual Damage (Injury) = Actual damage suffered by P
II. Unreasonable Risk:
a. Generally = P must show that D’s conduct imposed an unreasonable risk of harm on P
i. It is not enough for P to show that D’s conduct resulted in a terrible injury.
ii. P must show that D’s conduct, viewed as of the time it occurred, without benefit of hindsight, imposed an unreasonable risk of harm
Palsgraf v. LIRR(exploding box):
Rule (Cardozo) = D owes a duty of care only to those P’s who are in “reasonably foreseeable zone of danger”
§ It is risk to another or to others within the Range of Apprehension (Foreseeability)
Dissent (Andrews) = Where there is the unreasonable act, and some right that may be affected, there is negligence whether damage does or does not result
§ Due care is a duty imposed on each one of us to protect society from unnecessary danger (Protect mankind)
b. Balancing Test = In determining whether the risk of harm from D’s conduct was so great as to be “unreasonable” – Courts use a Balancing Test (Learned Hand):
i.
Nussbaum v. Lacopo: (Golfing Case)
– Lack of due care is not demonstrated when the undisputed physical evidence proves that it could not have been reasonably anticipated that the harm complained of would result from the natural and probable consequences of the act claimed to be negligent
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 regard as the utility of the act or of the particular manner in which it is done.
Gulf Refining v. Williams: (Gas Can Blew Up)
– Distributor will be liable for all such harm “as a reasonably prudent person would or should have anticipated as the natural and probable consequence of his act”
– When the issue is one of Foreseeability (may happen in the future) – whether it is “likely to happen, even though the likelihood may not be sufficient to amount to a comparative probability”
– Test (whether there was fault):
o (1) Real likelihood of harm
o (2) Of an Appreciable weight and moment
o (3) That likelihood would induce action to avoid the harm
– Policy:
· We presume that if you manufacture and produce this product à you have the knowledge and expertise in this product and should be more liable
· We want to Incentivize that person to act reasonably:
o Inspect
o Give Warnings
· One way we give that incentive is to hold them liable.
· Promotes Innovation
Chicago, B&O RR v. Krayenbuhl:(Child severed foot while playing on Turntable)
Rule: Where the owner of a dangerous premises knows, or has good reason to know, that children so young as to be ignorant of the danger will resort to such premises, he is bound to take such precautions to keep them from such premises, or to protect them from injuries likely to result from dangerous condition of the premises, while there, as a man of ordinary care and prudence, under like circumstances would take.
If there is a “zone of foreseeable risk” à RR must take precautions (Palsgraf)
Factors: Court must look at factors of surrounding situation:
§ (1) Character and location of premises
§ (2) Purpose for which they are used
§ (3) Probability of Injury therefrom
§ (4) Precautions necessary to prevent such injury
§ (5) Relations such precautions bear to the beneficial use of the premises
¨ Nature of the precautions depend on particular facts in each case (could be a warning to the children or parents by a sign or more active measures)
¨ Law favors unrestricted use of private property by the owner – favors such use to the fullest extent consistent with the main purpose for which, from a social standpoint, such business is carried forward, namely, the public good.
Ä Balance b/w advantages & disadvantages
Ä If such use defeats, rather than promotes, the main purpose, it should not be permitted
Notes:
§ (1) Utility of D’s Conduct:
Ä Restatements – says that the Risk of Harm from the Act must be balanced against the “utility” of the actors conduct (Utility = Social value of the interest of the actor)
§ (2) Alternatives:
Ä Section 292(c) of the Restatement points out whether a particular course of
(2) There must be an absence of notice or forewarning to the person that he may be suddenly subject to such a type of insanity or mental illness
2. Policy (to hold an insane person liable for tort):
a. (1) Where one of two innocent persons suffer a loss it should be borne by the one who occasioned it
b. (2) To induce those interested in the estate of the insane person to restrain and control him
c. (3) The fear an insanity defense would lead to false claims of insanity to avoid liability
ii. Holding: Unjust to hold a man responsible for his conduct which he is incapable of avoiding and which incapacity was unknown to him prior to the accident
1. Sudden mental incapacity equivalent in its effect to such physical causes as a sudden heart attack, epileptic seizure, stroke, or fainting should be treated alike and not under the general rule of insanity.
iii. Illness (sick at the wheel): If an actor engages in substandard conduct b/c of sudden incapacitation or loss of consciousness brought about by physical illness, this conduct constitutes negligence only if the sudden incapacitation or loss of consciousness was reasonably foreseeable to the actor (Refer to Bruenig Case infra)
iv. Intoxication: Intoxication is NO defense – even if D is drunk, she is held to the standard of conduct of a reasonable sober person.
1. Davis v. Butler – P’s decedent died after drinking a lot of alcohol during initiation into a social drinking club (contributory negligence issue)
a. “Intoxication no excuse for failure to act as a reasonably prudent person”
b. However – If intoxication involuntary (slip a pill) à standard different
i. Standard is that of a “reasonable man under a like disability”
v. Children (AGE) : A child is held to the level of conduct of a reasonable person of that age and experience, not that of an adult
1. Rule: The required standard is that of a reasonable person of like age, intelligence and experience under like circumstances (among those circumstances, would be the nature of the activity in which the minor was engaged)
a. Goss v. Allen (17 year old Skiier hit P at bottom of bunny hill)
2. Exception (adult activity):
a. But where a child engages in a potentially dangerous activity normally pursued by adults à she will be held to the standard of care that a reasonable adult doing that activity would exercise
