Torts Outline

TORTS
Professor BETTMAN
Fall 2015
 
Torts: proved by preponderance of the evidence 51%; encourage duty of care, deter risky conduct, prevent future harms; are a product of common law; only diversity cases can be federal.
 
3 Types of Torts: 1. Intentional  2. Negligence (majority of cases) 3. Strict Liability
 
EXAM TIPS: Closed book, 3 ½ hours, word limit, short essays, read all questions first, issue spotting (which elements in question DBCD), name tort (wrongful death), no need to know case, but you can get extra points if right, lose if wrong (e.g. Palsgraff), you can abbreviate P, D if you want, re-read what you wrote, stricter answer according to question structure, state whose likely to win, pay attention to development of rules.
 
ELEMENTS OF NEGLIGENCE
Duty to use reasonable care (varies w circumstances), Breach of duty, Causation (hardest to prove), Damages or actual loss. Judges tell jury what law is, jury decides which way the facts go.
 
REASONABLE PERSON STANDARD
Brown v. Kendall 1850 (Dog fight) p. 98 ordinary care is defined as what prudent and cautious men would do. Burden should be on P not D; this case got rid of writs. D breaks up dog fight and hits P in the eye; D wins. Ordinary care will vary w each case CONTEXT is important in tort law.
 
HYPO:
1. P and D using ordinary care, D wins (plaintiff must prove failure to use ordinary care)
2. D using ordinary care, but P isn’t, D wins
3. Neither party is using ordinary care; they’re both at fault & neither recovers
 
DEFINING/JUSTIFYING REASONABLE PERSON STANDARD
 
Vaughn v. Menlove (1837) (Hayrick fire) handicap (low IQ) is no excuse; reasonable man is minimum standard. 1st to articulate reasonable standard of care, not a person’s best judgment; D built hayrick that caught fire and spread to P land. P won. D has to proceed with reasonable caution as to what a prudent man would do in the same situation;
Rationale: a subjective standard would create too much variance
 
Parrot v. Wells (1872) p. 95. (nitro explosion) P sued D over nitro explosion, D held not liable.  Burden of Proof by a “Preponderance of the Evidence”-P has the burden (1) Production (prima facie)-judge decides whether P brought enough evidence. (2) persuasion-jury has to believe P.
REASONABLE CONDUCT: BALANCING OF COSTS & BENEFITS
McCarty v. Pheasant (1987); p. 98. Attempted hotel rape. burden is on P. P assaulted in hotel room in attempted rape. Said door should’ve been locked, more guards, no public access, etc; Claims negligence, losses. P didn’t prove any of her theories. No evidence of faulty locks.
The Hand Formula-conduct is negligent if the burden is less than the probability and magnitude of loss.
DANGEROUS INSTRUMENTALITIES
Stewart v. Motts (1995) p. 102; (fuel tank explosion) there’s only 1 reasonable standard, not an extraordinary standard.  P helps D, fuel tank explodes and P is burnt; P wanted jury instruction to be extraordinary care due to gasoline. Court says there’s only 1 standard-reasonable care. Highest degree of care is the same as reasonable care under similar circumstances.
 
Myhaver v. Knutson (1997); p. 107 sudden emergency instruction (car swerve) in collision upheld. D swerves to avoid another driver, and hits P; D found not negligent, emergency came suddenly, and his reaction was spontaneous.
 
Roman v. Estate of Gobbo; (2003) sudden medical emergency (heart attack) doctrine upheld
D was driving, had heart attack, and injured P, D has burden of proving SME. D died from the heart attack, not the collision, it happened before he hit the car, was NOT foreseeable. D wins.
AN ACTOR’S KNOWLEDGE AND SKILL
Cervelli v Graves (1983) p. 109 Skilled black ice driver accident; a professional driver factors in on same or similar circumstances. P driving and loses control, D, a professional driver tries to pass; P injured D won, Appeals court should’ve consider the skill of the D.
 
 
GENERAL RULE children are held to a reasonable standard that requires them to conduct themselves with the care of a minor with the same age, intelligence and experience.
DEFAULT RULE Parents are generally not responsible for the torts of their children. But there are some exceptions. (Intentional torts, negligent entrustment, failure to exercise reasonable control when injury is probable, directs, consents or sanctions it, etc…)
The OH rule of 7; Children under 7, no tort liability; 7-14, presumed incapable of negligence, but can be proven otherwise; Over 14 are presumed capable of negligence, but can be proven otherwise. Parents are not responsible for torts but can be held negligent.
Robinson v. Lindsay (1979) p. 113 children on snowmobile lost thumb; engaging in dangerous activity can be held to ADULT standard of care; negligent entrustment tort. Kid pulls P whose thumb was severed. D argued he had experience above a child of like age. P wins.
 
PHYSICAL DISABILITIES
RULE: Physically disabled must act reasonable care to the same standard of someone with the same disability.
 
Poyner v. Loftus (1997) blind fall; contributory negligence; Blind P was walki