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Southern Illinois University School of Law
Mekel, Michele L.

Test Structure
Covers Negligence and Intentional Torts
Two Essays similar to midterm exam
Each Essay is 35 points each total of 70 points
20 Multiple Choice -1.5 questions each based off fact patterns

Essay 1 – 35 points
Essay 2 – 35 points
Twenty multiple choice – 30 points

Need to learn the difference between superseding intervening and intervening.

“Tax implications will have a role in deciding what damages to seek.”

1.01 – Intro
The team of foreseeable risk and unreasonable conduct is at the heart of negligence law.

1.02 – Brief Historical Background of Tort Law
Negligence is the primary system of seeking compensation for unintentional harm.
We still require a finding of “fault”, but there has been an expansion of tort liability.

1.03 – The Functions and Goals of Tort Law
A. Compensation
B. Deterrence
C. Avoidance of Undue Burdens of Economic Activities
D. Legal Admin. Effectiveness and Efficiency in the Accident Law Process
E. Fairness






1.04 – The Culpability Spectrum in Torts

The Culpability Spectrum

Intent Recklessness Negligence Strict Liability
Decreased Culpability

A. Intended Harm: Intentional Torts
B. Unintended Harm:
1. Negligence
2. Recklessness
C. Strict Liability

1 – Overview of Negligence Law

A. Outline of the Elements of a Negligence Case

Negligence law is the predominant means of legally redressing unintentionally caused personal injuries in the United States.

B. Description of the Elements of a Negligence Case
1. Duty – Did the defendant have a legal obligation to exercise reasonable care to avoid the risk of harming persons or property?
2. Breach of Duty – Was D’s conduct, in light of the foreseeable risks created by the conduct, unreasonable under the circumstances?
3. Causation –Cause in fact- Does a causal connection exist between D’s unreasonable conduct and P’s harm?
4. Scope of Liability – (Proximate Cause) – Does the D’s duty extend to the plaintiff, the general type of incident that occurred, and the harm P suffered?
5. Damages – What legally recognized losses has P incurred to date, and what losses will be incurred in the future?
1. Duty
Duty law is divided into two major categories:
(1) the general duty principle of reasonable care
(2) exceptions to the general duty principles

Generally, one has a duty to exercise reasonable care with regard to foreseeable risks of harm arising from one’s conduct.

2. Breach of Duty
The breach element relates to whether the obligation was violated.

Negligence law is a matter of determining who might have been at fault in an accident.

Foreseeable risks of harm are predicated for liability. Thus, foresight is a key component in evaluating whether a party was negligent.

Generally, a negligence lawsuit focuses on the foreseeable risks of harm arising from one’s conduct and whether, in light of those risks, the conduct or failure to act was reasonable or unreasonable.
Generally, we employ an objective standard of care and use the hypothetical reasonable person to evaluate foreseeability.

The courts decide what the rules are under the breach element and whether sufficient proof was introduced to raise a jury question on the element.

3. Cause in fact – Causation
a. But for test – whether, but for D’s negligent, the plaintiff would have avoided harm.

b. Substantial factor test – whether D’s alleged negligent conduct was a “substantial factor” in contributing to P’s injuries. The “substantial factor” rule often works better in multiple-cause cases and some complex cases.

4. Damages – Recovery in negligence requires P to establish actual losses. The cardinal theory underlying damages in negligence actions is to repair the injury and make the plaintiff whole.

Negligence law allows compensation for hospital and doctor expenses, and lost work time to cover P’s economic losses. Negligence law also allows for recover for the physical pain at the time if the accident and in the recovery process, and mental or emotional harm suffered.

Permanent Injury
In permanent injury cases, P is entitled to future medical and hospital expenses likely to be incurred and a sum for any impairment to future earning capacity. Also, in permanent injury cases, the emotional harm suffered plays a significant role in damages awards.

Damages law assumes that the plaintiff will not be made whole unless we make some rough attempt at compensation for the pain and emotional harm suffered. Damages law rests on the theory of a one-time lump-sum recovery. P has only one shot!

5. Defense to a Negligence Claim – The defense of a negligence claim is usually conducted by attempting to negate one of the elements in the prima facie case that P is trying to establish. There are also numerous affirmative defenses available, which the defendant has the burden to plead and prove. The major affirmative defenses include contributory negligence, assumption of risk, statutes of limitations. Various immunity defenses include governmental, charitable, and family immunities. Besides negation of one or more of the five elements, the most common defense is contributory negligence. Where the damages are reduced instead of eliminated, it is called comparative negligence.

The elements necessary to make out the defense of contributory negligence essentially correspond to the elements of negligence against the defendant, except for damages.

D. Outline of the Elements of the Contributory Negligence Defense
1. Duty: Did P have a legal obligation to exercise reasonable care to avoid risks of harm to herself?
2. Breach of Duty: Was Plaintiff’s conduct, in light of the foreseeable risks created by the conduct, unreasonable under the circumstances?
3. Cause-in-fact: Does a causal connection exist between P’s unreasonable conduct and the harm suffered?
4. Scope of Liability: Does P’s duty extend to the general type of incident that occurred and the harm P suffered? Scope of liability issues are rare in contributory negligence contexts. No damages element exists in the contributory negligence analysis.
Remember that D has the burden of production and persuasion on the elements of the contributory neglige

bility is not a defense. Liability is therefore predicated on an objective reasonable person standard.

Mental illness is not a defense, but sudden mental illness may be a complete defense.

E. Children

Standards Related to Children

1. General Rule: Reasonable Chile of Like Age, Intelligence, Maturity, and Experience
2. Minimum Age for Negligence
3. Exception for Certain Activities
a. Inherently Dangerous Activities
b. Adult Activities

5 – Developing the Reasonable Care Standard

A. Balancing Risk Versus Untaken Precautions

The Learned Hand formula expressed in US v. Carroll Towing

A. Balancing Risk v. Untaken Precaution
B = P x L
P = Probability of Risk
L = Nature and Seriousness of Harm
B = Cost & Effort of Feasible, Safer Alternative Conduct that Does Not Unduly Impair Utility of Activity

P needs to show a specific, probably effective, untaken precaution that would be reasonable in terms of cost and implementation. If P does not put forward a reasonable precaution, D can easily win on this point. It is up to P.

By selecting an untaken precaution on which to rely, P defines the analysis that everyone else will use- including the defendant, the court that will try the case, and any court that may hear the appeal.

The general rule is that any risk can be included in the calculations as long as it would be reduced by the untaken precaution in question and as long as it was foreseeable.

Note on the bottom of pg 106 is excellent.

B. Role of Custom
Custom evidence can be used two ways in negligence cases. First, P may introduce D’s deviation form custom as evidence of D’s unreasonable conduct. Conversely, D may be the party introducing evidence of customary practice in order to show that D’s compliance with custom demonstrates reasonableness. For evidence of custom and practice to be relevant, the circumstances surrounding the usual practice need not be precisely the same as those surrounding the situation at issue; it is sufficient if they are substantially similar.

T.J. Hooper – In most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usage. Courts must in the end say what is required; there are precautions os imperative that even their universal disregard will not excuse their omission.
Rule: The role of custom is a guide to the courts, it does not determine what the courts must do, that is the role of judges.

6 – Alternatives to the Reasonable Care Standard

A. Specific Judicial Standards

A judge can take the breach issue away from the jury on a motion for a directed verdict. Whether the court determines that no reasonable juror could find that a breach of du