Torts Outline
DUTY
· The Negligence Cause of Action
o Elements for claim of negligence
§ Duty – of reasonable care
§ Breach – of that duty
§ Cause in Fact
§ Proximate/Legal Cause
§ Damages
o P must prove all of these elements to recover on a claim for negligence.
o Negligence can also refer to the breach element of a claim for negligence, meaning breach of the standard of due care.
o To say that the D was negligent is to say that he failed to exercise reasonable care under the circumstances.
o Central Concept – The Standard of Care and Its Breach
§ Establishing the Standard of Care and Breach
· Duty of Standard of Care
o Standard of care à Reasonable care under the circumstances
§ reasonably prudent person, ordinary or reasonable care, reasonable risk of harm
o We generally owe our fellow citizens a duty to exercise reasonable care in the conduct of our own affairs.
o This duty does not require that we avoid all injury to others, but only that we avoid injuring others by carelessness. (foreseeability)
· Breach of Standard of Care
o The duty of avoiding injury to others by carelessness is breached by failing to exercise reasonable care.
o Fail to meet the standard of care and pose unreasonable risk of harm.
o To avoid being negligent an actor must act as a reasonable person under the circumstances.
· Reasonably Prudent Person (and modifications)
o The reasonably prudent person (RPP) is a model of correctness and common sense
o A person of sound judgm
uperior to that of the average of the average person is required to use that knowledge.
o RPP judges conduct not state of mind
o RPP is about the way people should act, not the way they do act.
o Factors that the reasonable person considers before acting
§ Foreseeable risks of injury that the conduct will impose on the community.
· People must act and most activities impose some risk but the reasonable person considers those risks in light of the utility of the conduct.
§ Extent of the risks posed by her conduct
· Because a risk is greater if it exposes many to a risk of injury than if it endangers a few, the RPP must consider that too.
§ Likelihood of a risk actually causing harm
· Probability of causing harm
· Ex: placing the gas tank in a certain area of a car will be reasonable if it risks a one-in-a-million explosion, but not if one in a thousand will blow up.
§ Costs of various courses of action in determining what is reasonable.
· Only take the precautions which are “worth it” in the sense that the injuries avoided outweigh the cost of the extra precaution.
· The Hand Formula (United States v. Carroll Towing)
o Looked at 3 variables:
§ Probability that the act would happen
§ Gravity of the resulting injury if it does happen
§ Burden of adequate precautions
o N=B
