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Torts II
University of Dayton School of Law
Hagel, Thomas

TORTS-II
SPRING 2009
 
 
 
1.            Introduction to the Law of Negligence and Recklessness …………………..………. 2
2.            Negligence and the “Reasonable Person” …………………………………..………. 4
3.            Calculus of Risk ……………………………………………………….……………. 6
4.            Custom and Standards of Professions ……………………………………………….. 7
5.            Application of Criminal & Regulatory Statutes: Negligence Per Se and Excuses ….. 8
6.            The Duty of Care; Affirmative Duties ………………………………………………. 10
7.            Special Relationships ………………………………………………….……………. 11
8.            Liability of Owners and Occupiers ………………………………………………….. 12
9.            Res Ipsa Loquitur …………………………………………………………………… 15
10.        Causation; Cause in Fact ……………………………………………………………. 16
11.        Proximate Cause …………………………………………………………………….. 18
12.        Vicarious Liability and Independent Contractors …………………………………… 20
13.        Contributory Negligence ……………………………………………………………. 22
14.        Assumption of Risk ………………………………………………………………….. 23
 
 
 
Introduction to the Law of Negligence and Recklessness
 
Duty + Breach of Duty + Cause (Cause in Fact/Proximate) + Harm/Injury = Liability
 
Duty: The actor is required to conduct himself is a particular manner. If he does not he becomes subject to liability for any injury sustained if the conduct is the legal cause.
Subject to Liability: must be (1) the legal cause, and (2) no defense applicable.
Legal Cause: Tortious conduct has resulted in an invasion of some legally protected interest of another.
Injury: Invasion of any legally protected interest
Harm: Existence of loss or detriment in fact of any kind
Physical Harm: Physical impairment
Intent: There must be a desire, or a belief that the consequences are certain.
Privilege: Would otherwise be liable, but not due to:
Consent
Necessity for the protection of an interest of such importance
Proper performance of which freedom of action is essential.
“Reasonably Believes”: Objective test.
 §500. Reckless Disregard of Safety Defined
Does an act (or fails to)
Knowing, or should know of facts which would leave a reasonable person to know
That his conduct creates an unreasonable risk
And the risk is greater than what is necessary to make conduct negligent.
                                                              i.      There are two types of recklessness
1.      The actor knows of the facts which creates the high risk, and deliberately proceeds.
2.      The actor has knowledge or reason to know, but doesn’t appreciate the risk, and acts anyways
                                                            ii.      Either way, the actor must know or have reason to know the facts which create the risk.
                                                          iii.      Must be unreasonable and riskier beyond negligence.
                                                          iv.      Driver blows through an intersection seeing cars coming from both directions if Reckless. However, if he bends down to pick up a CD and blows through the intersection it is Negligent.
                                                            v.      Others in Danger Zone: Doesn’t need to know, just know of a strong probability that other might come within zone.
                                                          vi.      Violation of statute: Must be intentionally violated and high degree of probability that serious injury will result.
Negligence v. Recklessness.
Negligence
                                                              i.      Inadvertence, incompetence, unskillfullness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency.
Recklessness
                                                              i.      Conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose such danger to a reasonable person
 §503. Plaintiff’s Co

ct is Determined
Established by Leg. Which provides
Adopted by the court from a Leg. Reg that does not provide
Established by judicial decision
Applied to the facts of the case by the trial judge or jury when a-c doesn’t exist.
(Roberts) Reasonable Person: If one by his acts or omissions causes injury to others, his negligence is judged by the standard of care usually exercised by the ordinary prudent normal man.
(Daniels) Reasonable Person: When a minor undertakes an adult activity which can result in grave danger to himself and to others, he is held to the same standard of care as the average prudent adult.
(Breunig) Reasonable Person: A person seized with a sudden mental disability for which he had no warning will be excused from the general rule holding an insane person liable for his negligence.
(Fletcher) Reasonable Person: A person who is infirm is held to that degree of care as would be exhibited by a reasonably prudent man suffering the same infirmity in the same situation.
(Robinson) Reasonable Person: Where the negligence is gross, plaintiff’s intoxication will not excuse it.
(Denver) Reasonable Person: Once a party assumes a duty he must act in a reasonable manner no matter what his station in life. Poverty will not excuse the duty, and wealth will not increase it.
 
 
TOPIC 3: Calculus of Risk
 
1.      §289.  Recognizing Existence of Risk
a.      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:
Such attention, perception of the circumstances, memory, knowledge of other