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University of California, Hastings School of Law
Jung, David J.

Jung – Fall 2010 Torts Outline


Negligence is the failure to use ordinary or reasonable care in order to avoid injury to oneself or others under circumstances similar to those shown by the evidence.

Prima Facie Elements


Legal obligation to avoid injury to others


A failure to conform to the required standard of care


Must have actual and proximate cause / a sufficiently close causal link between defendant’s negligent act and the harm that was caused


Must suffer actual damages for claim to be warranted


Defendant may be able to escape partial or all liability



General duty to use reasonable care / do not harm others


Establish the untaken precaution

Reasonable Person Standard

Learned Hand Formula

Violation of Statute



Actual Cause: but for defendants conduct

Proximate Cause: Chain of Events


Emotional or Physical Injury


Contributory Negligence

Comparative Fault

Assumption of Risk


Duty is the legal obligation to use reasonable care. Duty is a question of LAW which a judge decides based on precedent. General rule is that people have a duty to exercise reasonable care to people who are foreseeably exposed to any risks they may create. (RS 3rd 7)

Areas of NO Duty

No duty to 1) warn, 2) rescue, 3) protect UNLESS

– A Special Relationship exists

– There was an Undertaking to Aid

– The individual created the risk through their own actions

– Special relationship to the injuring party

– Imposed by Statute

Areas of LIMITED Duty

– Car Key Cases / Special Circumstances Test

– Activities or artificial conditions

– Harm threatened by another / crimes on property


Harper v. Herman [boat / dive into shallow water / no warning]

Where one has ability to protect oneself and is not deprived of such a duty, the host has no duty to provide protection. Even if D realizes he should have helped, if no special relationship existed, there was no duty imposed.

Farwell v. Keaton [friends drinking/looking for girls/ initially helps then leaves friend who was beaten unconscious in car/ did not take to hospital]

When companions engage in social undertakings there exists a special relationship between parties where each owes the other a reasonable duty of acre.

Strauss v. Belle Reality [blackout / old man went to basement to get water / fell on darkened defective stairs]

As a matter of public policy the court has a duty to limit the legal consequences of wrongs to a controllable degree of individuals in narrowly defined classes. D not liable also as P was not in his own room when injury occurred.

McPherson: [Buick makes car / sells to dealer / dealer sells to customer / guy gets in care and lets wife drive it/ wheels of car defective / court holds Buick liable]

D is liable to anyone if it is foreseeable that their negligence would cause harm. In this case, Buick failed to adequately inspect car before it sold it.

Palka [Hospital hires contractor to maintain hospital / fan falls and injures nurse]

D is liable to the nurse even though the contract was with the hospital. Liability is imposed if harm occurs to specifically foreseeable victims of a limited class of known to be ordinarily affected.

Moch v. Rensselaer [Warehouse caught fire/ not enough water pressure to put it out / water company not liable for lacking pressure]

Even though injury may have been foreseeable, there was no duty imposed. Public policy rationale.



1. Common-carriers

2. Innkeepers

3. Owners of Land

4. Coventurers

5. Spouses

6. Employer / Employee

This type of relationship occurs when

– P has custody of D

– P has deprived D of his normal opportunity to protect himself

– D was expecting to be protected by P

– Economic Advantage

Public Policy

Must be an easily identifiable group / direct and demonstrable reliance

Courts do not to grant endless liability / must be group of foreseeable parties that could potentially be harmed by D’s actions


General Rule: A person will not be held liable for failing to protect a third party from injuries which the person did not cause.

Rationale for No Duty

– Interferes with liberty to act as free citizens so long as we do not injure one another

– Contradicts the basic principal of causation

– Demeans moral value because it does not allow people the choice of doing the right thing in a given situation

– J

he defendant and the consequences to the community of imposing duty

– The availability, cost, and prevalence of insurance


Duty for Land Owners / Possessors


– Trespasser

One who enters property without privilege or consent

– Licensee

One who enters property with privilege created by consent or otherwise

– Invitee

1. Public Invitee

One who enters property that is open to the public for a particular purpose

2. Business Visitor

One who enters property for a reason directly or indirectly connected with the possessor’s business

TRESPASSER [enters without privilege or consent]

– Landowner has NO DUTY to trespasser to 1) put land in a condition reasonably safe for their reception or 2) to carry on his activities so as not to endanger him

– Landowner DOES HAVE A DUTY to trespasser to 1) refrain from willful or wanton injury 2) if they are children (attractive nuisance) and 3) if it is a known trespasser on limited area / doing limited activities


– Constant trespass on a limited area (path) / If owner has reason to know of trespassor then they have a duty to make it safe or warn of known harm

– Railroad crossing / if Railroad knows people cross there they have to warn when train is passing (horn)

– When knowledge of a trespasser exists / not only actual discovery but also when they should have reasonably known

CA: trespassers and burglars do not have protection

LICENSEE [enters with privilege created by consent or otherwise]

– A licensee is a person invited to premises for any purpose other than a business or commercial one with the express or implied permission of the owner in control of premises.

– A social guest is considered a licensee NOT an invitee

– Duty of Care

– Land owner may be liable to a licensee injured by a condition on the property where the land owner knows of a dangerous condition, fails to make the condition safe or warn of the risk involved, and the licensee does not know about the danger nor would be expected to discover the dangerous condition