Negligence mini-outline
1. Duty of care
a. ordinary care v. extraordinary care
i. strict liability, foreseeability, custom, Hand formula: B < PL
ii. standard of care—medical malpractice
b. statutory (negligence per se)
c. vicarious liability—respondeat superior
d. Premises liability
e. Defenses: Π’s duty of care for his own safety
i. comparative negligence: pure / modified (50% , 49% rules)
ii. assumption of risk
2. Causation
a. Res ipsa loquitor—inferred negligence
b. Actual / Cause in fact
c. Proximate
i. result/person within the risk
ii. eggshell plaintiff
iii. secondary harm
iv. intervening actors
d. Emotional harm
i. zones of physical / emotional danger
e. Alternate /joint and several liability
i. concert of action + indivisible result
ii. market share analysis
f. contributory negligence (see duty of care section d)
3. Rescue/Enhanced liability
a. Special relationship
b. Causal responsibility
c. Undertaking
4. Damages (compensatory)
a. special
b. general
case illustration / PFCs / outlines
1. Duty of Care
Variances from objective, or
t if incapacitated)
Children (Yes, like “age, intelligence and experience”, except if engaged in adult activity. Parents will not pay for their children’s torts unless they—rents—are at fault, eg supplying shotgun: negligent entrustment)
Gender (no)
Physical incapacity (yes—see Hammontree v. Jenner)
Mental illness (no, except if Π)
Intoxication (no = antecedent negligence)
Accident prone (no)
Diverting circumstances (Yes, if “reasonable”. eg, sneezing while driving)
Emergency doctrine (part of the formula of “care…in the circumstances”)
Strict liability:
case: Hammontree v. Jenner, CA 1971.
facts: driver Π suffers epileptic seizure, crashes into Δ’s store; not held liable
holding: Court declines to “superimpose the absolute liability of products liability cases upon drivers under the circumstances here”
Reasonable care:
case: Brown v. Kendall, MA 1850
facts: dogs fighting, Δ hit Π in eye with stick in attempt to separate dogs
ROL: Π bears burden of proof to show that Δ’s intention was unlawful or that Δ was in fault (for failing to show ordinary care)
case: Carrol Towing Co., NY 1947 (L. Hand)
facts: barge sans bargee hits and sinks other boats in NY harbor
ROL: The Hand Formula:
1. probability that barge will break away (P)
2. gravity of resulting injury (L)
3. burden of adequate precautions (B)
liability depends on whether B
