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Torts
University of Dayton School of Law
Greene, Dennis

NEGLIGENCE

Prima Facie Case of Negligence

Duty – A legal duty requiring D to conduct himself according to a certain standard, so as to avoid unreasonable risk to others;

Breach of Duty – A failure by D to conform his conduct to this standard(This element can be thought of as “carelessness”);

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.);

Cause in Fact – Or “actual cause”. P must prove that the harm was in fact caused by the D;

Proximate Cause – A sufficiently close causal link between D’s act of negligence and the harm suffered by P.

Duty
A) Reasonable Person Standard- The standard of care requires conduct of a reasonable and prudent person would under the same or similar circumstances.
a. There is no “exceptional” standard of care in dangerous situations (the reasonable person standard applies), but the degree of care does increase with danger and risk.
i. Stewart v. Motts – p. 115: Gas explosion; higher degree of care necessary when dealing with dangerous substances like gasoline.
1. Care which is reasonable varies with the danger involved in his acts and is proportionate to it. The greater the danger, the greater the care which must be exercised (§ 298).

b. Sudden Emergency Doctrine
i. Wilson v. Sibert p. 117: Bank drive-thru; D backed up into P; sudden emergency b/c the car in front of D backed up, and D was trying to get out of the way.
1. Weigh the actions of a person charged with negligence against the standard of the conduct of a reasonable person in the same circumstances. Conduct may be unreasonable if there were no emergency.
B) Internal Characteristics of a person
a. Child § 10: Child held to a “reasonable child” standard—that of a reasonably careful person of the same age, intelligence, and experience.
i. Robinson v. Lindsay p. 121- D (child) operating a snowmobile, P (also a child) gets injured. Reasonable child standard does not apply when the child is engaging in a dangerous activity that is usually done by adults. Operating a snowmobile require adult care and competence. – Adult activity test
ii. Hudson-Connor v. Putney p. 123: Golf cart broke P’s Leg. D was a child, but it was found that operation of a golf cart is not an inherently dangerous activity. – Inherently dangerous test.
1. 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.

b. Disability:
(a) Physical disability: person negligent if actions don’t conform to reasonable careful person with the same disability
(b) A sudden physical disability (like loss of consciousness): actor is negligent only if the illness was foreseeable
(c) Mental/Emotional disability: held to reasonable person standard (no special permissions)—except if a child.

i. Creasy v. Rusk p. 125: Person with mental disability held to the same standard of care as normal reasonable persons. BUT, not liable to a caregiver (caregiver has a duty to patient, not the other way around).
a. Assumption of Risk- person knows about the job they are getting into.
b. Involuntarily hospitalized person does not owe a duty of care to his professional caregiver and there for is not liable for harm
c. Duty to the patient to keep them safe and protected. The caregiver should have knowledge of the persons state of mind.

c. Special Knowledge – Someone who has special knowledge or skills is required to exercise the superior qualities reasonable under the circumstances
a. Hills v. Sparks p. 128 – Operating machinery; D knew the risks to passenger, but there was no warning and passenger died. Should have been a higher standard because of the superior knowledge.

d. Sudden Medical Emergency
1. Roman v. Estate of Gobbo p. 129 – D suffered an unforeseeable heart attack while driving, killing and injuring Ps. Not Liable because the doctors had no idea it would happen. Victims get screwed and get no compensation.
a. Contrast in fundamental principles of tort law- one must act unreasonably, i.e., only the blameworthy should be liable for the consequences,; and on the other hand, injured parties should be compensated for their losses if possible, esp. when they are innocent.
b. Dissent- people should be able to recover.

e. Physical Disability
1. Shepherd v. Gardner Wholesale p. 133 – P cannot see well and falls b/c of raised concrete on sidewalk. Impaired vision not required to see what a person with normal vision can see. It would be a breach to stan

he car was parked the wrong way.

c. Excused Violation of “Statute” (excuses to negligence per se). Rest. 288A
i. Violation is reasonable because of the actors incapacity
ii. He neither knows nor should know of the occasion for compliance
iii. He is unable after reasonable diligence or care to comply
iv. He is confronted by an emergency not due to his own misconduct.
v. compliance would have caused a greater risk to actor or others
1. Impson v. Structural Metals p. 144- D’s truck tries to pass P w/in 100 ft of intersection, and hits P. D try’s to say that he had forgotten the existence of the intersection. Statute prohibits this. D says he is excused, denied b/c it didn’t meet the criteria. Not all excuses are applicable (i.e. child driving a car).

Breach of Duty
– The question is whether the defendant breached the duty by failing to exercise the care required. The risk of harm is unreasonable when a reasonable and prudent person would foresee that harm might result and would avoid conduct that creates the risk.
– Workers compensation statutes proceed upon the theory that work connected injuries may generally be regarded as part of the employer’s cost of doing business (e.g broken plates in a restaurant).
– Factors looked at: foreseeability of harm occurring, severity of harm, burden of precaution.

1. What constitutes unreasonable risk?
a. Indiana Consolidated Insurance Co. v. Matthew p. 150 – Matthew not negligent because his brothers garage caught fire when the lawn mower flamed up. He could find no other means to extinguish the fire.
i. Not reasonable to expect D to start mower outside of the garage (weight/size of the mower and that is what a garage is for).
ii. D very careful, only filled ¾, used funnel, and careful not to spill
iii. Exercised prudence by calling the fire dept. Human life/safety is more important than property.