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Torts
University of Dayton School of Law
Greene, Dennis

 
I.       NEGLIGENCE
A.      Prima Facie Case of Negligence
1.       Elements:
 
a)       Duty – A legal duty requiring D to conduct himself according to a certain standard, so as to avoid unreasonable risk to others;
 
b)       Breach of Duty – A failure by D to conform his conduct to this standard(This element can be thought of as “carelessness”);
 
 
c)       Actual Harm – Actually damage suffered by P. (Compare this to most intentional torts, such as trespass, where P can recover nominal damages even without actual injury.);
 
d)       Cause in Fact – Or “actual cause”. P must prove that the harm was in fact caused by the D;
 
 
e)       Proximate Cause – A sufficiently close causal link between D’s act of negligence and the harm suffered by P.
 
B.      Duty and Breach
 
1.       Duty owed by all people generally is to exercise the care that would be exercised by a reasonable and prudent person under the same or similar circumstance to avoid or minimize risks of harm to others. 
 
2.       Due Care or Prudent Person Standard
 
a)       Stewart v. Motts – P and D were fixing a car. D claims that a higher degree of care is need when handling gasoline.
 
a.       There is only one level or care that is standard in a negligence case, and that is “reasonable care.”
 
b.       There is no “higher degree of care.”
 
c.        The Level of care required must be proportionate to the danger involved.
 
b)       Lyons v. Midnight Sun Transp. Servs. Inc. – Volkswagen struck by van owned by D. P sues under respondiat superior.
 
a.       Emergency Doctrine – a person is not expected or required to use the same judgment and care that is required in calmer and more deliberate moments.
                                                                                                                                       i.      Supreme Court wants to get rid of the sudden emergency doctrine because it is redundant. Reasonable care is expressed in terms of a reasonable person under the circumstances.
 
c)       Disability. A person with a disability is not required to show a higher degree of care to avoid injury. 
a.       Shepherd v. Gardner Wholesale Inc. – Woman with cataracts trips on raised concrete slab. She is not required to show a higher level of care. She only needs to show ordinary care an ordinary person would show.
b.       Roberts v. State of Louisiana – A blind man is entitled to live in the world and to have allowance made by others for his disability, and he cannot be required to do the impossible by conforming to physical standards he cannot meet. On the other hand, he must take precautions which the ordinary reasonable man would take if her were blind.
                                                                                                                                       i.      The court dismissed the case because the blind man was familiar with the hallway and often crossed it to use the restroom.
 
c.        Restat., 2d, Torts Section 283C Physical Disability If the actor is ill or otherwise physically disabled, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like disability.
 
d)       Intoxication. General rule is that an intoxicated person owes the same care as a sober person, and that if his overt conduct would be negligence in a sober person, it is also negligence in a drunken one. 
 
e)       Mental Disability. Mentally disabled person is liable for negligence just as an ordinary person is lia

   Restat., 2d, Torts Section 289 Recognizing Existence of Risk The actor is required to recognize that his conduct involves a risk of causing an invasion of another’s interest if a reasonable man would do so while exercising(a) such attention, perception of the circumstances, memory, knowledge of other pertinent matters, intelligence, and judgment as a reasonable man would have; and(b) such superior attention, perception, memory, knowledge, intelligence, and judgment as the actor himself has.
 
g)       Minority Rule. Rule of sevens (not accepted by all jurisdictions) Minors over 14 are presumed capable of negligence, those between 7 and 14 presumed incapable of it, and those below 7 are incapable of negligence as a matter of law.
 
a.       When a child is performing an inherently dangerous activity, the child should be held to an adult standard of care.
 
b.       Policy – It discourages children from engaging in inherently dangerous activities.
 
c.        Policy – It also limits the hazards to the public if children are allowed to perform dangerous activities and they are only held to a child standard of care.
 
d.       Robinson v. Lindsay – D child was driving a snowmobile that caused child P to lose a thumb.
 
h)       When a child engages in an adult activity or an inherently dangerous activity, the child is held to an adult standard of care.
a.       Public policy can outweigh an individuals