Outline for Torts
Professor Gilhooley
Fall 2011
I. Torts Generally
A. Definition: A tort is a private wrong, independent of a contract, resulting form a breach of duty.
B. When discussing any possible tort always consider:
1. Elements of a tort:
a. Act
b. Intent
c. Causation (Cause in Fact and Proximate Cause)
2. Are there any defenses? (contributory/comparative negligence; privilege)
3. What are the damages?
C. Then consider the behavior of the one committing the tort:
1. Strict Liability
2. Intentional
3. Negligent
II. Negligence
A. Generally: Negligence is an unintentional tort, meaning that a D may be liable absent any intent to harm. A p must shoe that the D’s behavior created an unreasonable risk of harm to others by departing from a reasonable standard of care (in the circumstances) and that it was the proximate cause if the p’ injury.
B. Elements of a Negligence Cause of Action:
1. Duty: To use reasonable care to conform to a standard of conduct so as to avoid unreasonable risks to others. The p must show that the D owed a duty of care to the specific p not to create an unreasonable risk. (Palsgraff).
2. Breach of the Duty.
3. Causation: The breach of the duty must be the cause in fact and the proximate cause of the p’s injury.
4. Actual Damages: Must be shown, one can not recover for nominal damages.
C. Unreasonable Risk of Harm: To determine if the D’s conduct created an unreasonable risk of harm, look at:
1. Foreseeability: Something is foreseeable if there is a significant likelihood of its occurring. No person is expected to guard against causing harm that is completely unforeseeable or that is so unlikely as to be commonly disregarded.
2. The “Hand Formula” and “: B < L ´ P
B = The D’s Burden to prevent or avoid the risk.
L = Degree of the Loss or injury (property damage/ personal injury/ death)
P = Probability that an injury or loss will occur.
If the burden is less than the product of the probability of the loss and the degree (seriousness of the loss) then the D should have taken the precaution; If the burden is greater, it is unreasonable to expect the D to have prevented the accident. U.S v. Carroll Towing.
U.S. v. Carroll Towing. p’s barge broke loose in NY harbor and sank due to D’s negligence in retying the lines and the contributory negligence of p failing to have a bargee on board. Judge Hand reduced the damage award to p. Rule: A party has breached its duty of care when it could have avoided a tremendous risk with a relatively minimal amount of effort. B > P ´ L.
Adams v. Bullock. The p child was electrocuted when the 8 ft. long wire he was swinging cam into contact w. the power lines of the D’s trolley running under the bridge upon which p was walking. Rule: A duty exists to take reasonable precautions to minimize possible perils. A party is not negligent for not providing protection against unforeseeable, extraordinary injury that would be extremely difficult to prevent. (Note also the social utility of trolleys and the difficulty of other power transmission schemes).
3. Social Utility of the Conduct: Is the likelihood of injury offset by the social utility of the conduct? (E.g. Driving a car is inherently dangerous but it is also extremely useful). Or is there alternative conduct that would achieve the same benefits without creating a risk?
D. Standard of Care:
1. Generally: A D’s conduct is measured against a certain standard of care to determine if the D actually breached a duty (failed to meet the requirements of that standard of care).
2. The Reasonable Person Standard:
This is an objective standard. The relevant inquiry is how a reasonable person would have acted (or not) under the same circumstances as the defendant, or whether the D acted according to a personal notion regarding proper conduct.
Baltimore & Ohio R.R. v. Goodman. Goodman (p) drove across D’s RR tracks w/o stopping. He did not see the oncoming train b/c it was obscured by a house. He was killed in the collision. Rule: While the question of reasonable care is generally left to the jury, if the court is dealing with a standard of conduct and the standard is clear, it should be laid down by the court. (Holmes).
Pokora v. Wabash Ry. Co. Pokora (p) was hit
rm of bees flying into the car) will not be grounds for a negligence action.
iv. Knowledge: One is assumed to have the knowledge of a reasonable person of ordinary experience.
(1) Newcomers and Strangers: Those new to a locale or community are assumed to know all the facts specific to that area which all the adults of that locale or community know.
(2) Investigation: In some circumstances one may have a duty to remedy ignorance by reasonable investigation, even if people of the community share the same ignorance (landowner’s duty to business invitees).
3. Professionals:
(Doctors, lawyers, accountants): Are liable for conduct which does not meet the minimum standards of their profession.
a. Locality Rule:
i. Old Rule: Professionals were only held to the standard of their profession as practiced by other members of their profession (in the same type of practice) in the same or similar locality.
ii. Modern Trend: Professionals should be judged by a uniform national standard, especially where there is a nationwide uniformity in standards for certification.
Sheeley v Memorial Hospital Ct. allowed expert testimony of a board certified OB/GYN in a med.-mal suit against a general practitioner. Rule: The “same or similar localities” standard no longer fits the present med. mal case. The standard to be applied is the nationally recognized standard for the procedure and the physician is under a duty to use the degree of care and skill of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances.
b. Success Is Not Guaranteed: There is no requirement that the professional succeed for a client/patient only that he act with reasonable care and skill.
