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University of Denver School of Law
Sidel, Mark


Fall 2012

Professor Mark Sidel

Tort Law & Alternatives – Franklin, Rabin, Green – 9th Ed.

TORT – [Intentional Torts, Negligence (Physical v. Non-Physical Harm), Strict Liability]

A wrongful act or infringement of another’s non-contractual right that leads to legal liability.

· Primary Concern – Whether one whose actions harm another should be required to compensate them.

· Traditional Goal – Compensate injured party to equivalent of condition prior to the harm.

· Burden of Proof – Generally, burden on ∏ to prove all elements to establish liability (negligence)

(1) Burden of Production –

∏ must produce sufficient evidence that jury could find on her behalf.

(2) Burden of Persuasion –

∏ after having introduced sufficient evidence, must persuade factfinder that its version is correct.

a. “More Likely than Not” Standard – preponderance of the evidence.

In equipoise – if a jury cannot decide which side presented the stronger case – they are to return the verdict AGAINST the party who had the burden of persuading them.

NEGLIGENCE – Failure to use reasonable care, causing unreasonable risk leading to foreseeable harm of another.

Fault Principle: Appropriate standard of liability for negligence. Fault = failure to exercise reasonable care.

· Brown v. Kendall p. 35 –

Dog Fight – If injury was unavoidable from lawful act and ∆’s conduct is free from blame, negligence or carelessness – NO liability; ∏ failed to sustain the burden of proof.

*Neg. Prima Facie – ∏’s failure to prove any of these elements entitles ∆ to DV, even before jury deliberation

(1) Duty – Legal duty requiring conduct of a certain standard

(2) Breach – Failure to conform to reasonable person standard (RPS). “Carelessness”

(3) Actual Causation (Cause in Fact) – “But-For” cause of injury, without which harm wouldn’t have occurred.

(4) Proximate Causation – “Scope of Liability” Close causal connection between negligence and harm.

(5) Damages – Actual damage suffered – Compensatory (Pecuniary & Non-Pecuniary) NO PUNITIVE for Negl.

Proof of Negligence:

· Constructive Notice – Negri v. Stop & Shop (NY) p. 87

Knowledge of a fact that is imputed to an individual under a duty to inquire who could have learned of fact through exercise of reasonable care. ∏ may make out prima facie case through circumstantial evidence showing ∆ had constructive notice of a dangerous condition that caused injury to a customer because the condition was not remedied.

o Defect must be visible and apparent and must exist for certain amount of time prior to accident to permit ∆ to discover and remedy the condition.

· Actual Notice – Gordon v. American Museum (NY) p. 88

Direct communication of information that would cause ordinary person to inquire as to the truth and remedy a dangerous situation. ∏ failed to provide evidence establishing constructive notice of the condition that caused his fall. Proved causation, but failed to prove actual or constructive notice.

· Business Practice Rule – Kelly v. Stop & Shop (CT) p. 89; Note 7

Customer need not establish actual or even constructive notice when the business practice of the store provided a continuous and foreseeable risk of harm to customers – majority upheld in “self-service” establishments.

Negligence Per Se – “Negligence in and of itself” – Violation of Statute

∆ is negligent if, without excuse (protection of life or limb), ∆ violates a statute designed to protect against type of accident caused by ∆’s conduct, and the accident victim is within the class of persons the statute is designed to protect. = NEGLIGENCE.

· (1) Statutory Purpose – ∏ must show statute guarded against particular harm in question

· (2) Class of Persons Protected – ∏ member of class of whom statute designed to protect.

· (3) Discretion to Excuse Violation – As long as statute itself doesn’t deny excuse.

[Not all states apply NPS to ordanance/code – Ignorance of Need, Reasonable attempt comply]

§ Martin v. Herzog – DRIVER w/o LIGHTS (NY) p. 74 –

Failure to follow statutes designed to protect the safety of others is negligent. Same standard for asserting ∏’s contributory negligence per se. (Negligence Per Se)

§ Tedla v. Ellman – PEDESTRIANS (NY) p. 77 – EXCUSE

When divergence of the statute may preserve life or limb or property of others and strict observance defeats the purpose of the rule, in the absence of clear language to the contrary should not be construed as an inflexible command of negligence.

§ Gorris v. Scott – SHEEP (p. 81; Note 6) – Statutory Purpose – Greater risk of harm

Harm occurred different from harm sought to prevent.

Disease Act provided ship owners to keep livestock separated during voyages. No room left, so sheep herded with other animals. Storm washed sheep overboard. No negligence per se because statutory intent to protect against disease.

§ Uhr v. East Greenbush School Dist. – SCOLIOSIS (NY) p. 161 PRIVATE RIGHT OF ACTION

School district sued in nonfeasance action for violation of state statute for failure to test child annually for scoliosis. However private right of action was inconsistent with legislative scheme – no liability on behalf of school district found.


o (1) ∏ part of class for whose benefit statute was enacted?

o (2) Does recognition of private right promote legislative purpose?

o (3) Is creation of private right consistent with legislative scheme?

Res Ipsa Loquitur – “The Thing Speaks for Itself” – Inference of Negligence (Prima Facie)

∏’s lack of information about ∆’s conduct, only the accident itself, allows ∏ to create an inference that the ∆ was probably negligent, even without precise showing of defendant’s behavior – Burden of Proof/Production shifts to ∆. Burden of Persuasion remains with ∏ – must still convince that negligence more likely than not.

· ∆ must have notice from ∏. And Burden of Proof is on ∆ to rebut presumed negligence, if not DV.

· The doctrine of res ipsa recognizes that in rare instances an injury may permit an inference of negligence IF COUPLED with a sufficient showing of its immediate, precipitating cause.


(1) No Direct Evidence of ∆’s conduct (Unconscious, etc. )

(2) Event unlikely to have occurred without someone’s negligence. ∏ show negl. more likely than not = cause.

(3) Instrument causing injury in ∆’s exclusive control

(4) ∏ must show injury not due to own action. (NO Contributory Negligence)

**Rebuttable Presumption – Shifts Burden of Production to D and Persuasion stays with P.

· Byrne v. Boadle – p. 90 – FLOUR –Liability Found

Fact of flour falling (accident) is prima facie evidence of negligence, ∏ not bound to show that it could not fall without negligence, but ∆ must prove any facts inconsistent with negligence.

· Ybarra v. Spangard (CA) – p. 99 – Liability Found – Multiple Defendants

(Unconscious ∏) – When an unconscious plaintiff receives unusual injuries in the course of medical treatment, RIL may apply to any D who had any control over the P’s body or the instrumentalities which might have caused the injuries.

· McDougald v. Perry (FL) – p. 92 – Tire flew off 18-wheeler – Liability Found

Tire escaping from cradle underneath truck is type of accident which would not occur but for failure to exercise reasonable care by person who had control of the spare tire.

· Larson v. St. Francis Hotel (CA) – p. 91; Note 3 – Isolated Incident, No Notice = No Liability

· Connolly v. Nicollet Hotel p. 91; Note 3 – Several chairs thrown, Notice Present = Liability

Vicarious Liability (Respondeat Superior)

In some situations, the tortious act of one person may be imputed to another, because of some special relationship between the two.

· Employer/Employee – (Respondeat Superior) Requires Employee Acting within Scope of Employment

o Applies to all torts (negligence, intentional, strict) – “deep pocket” rationale

o Birkner “Scope of Employment” Test – Question of Fact for Jury Determination

(Christensen v. Swenson – UT – p. 18)

§ (1) Conduct of general kind EE hired to perform (Not solely personal)

§ (2) Conduct occurred within time & special boundaries of employment

§ (3) Conduct motivated by purpose of se

e care to protect passengers from attacks or robberies by strangers.

· Innkeepers –

· Doctor/Patient –


Premises thrown open to public; reasonable care to furnish warning/assistance to patrons from dangerous conditions/parties on premises.

o Notice – Proof of Negligence – Actual, Constructive, BPR

o Posecai v. Wal-Mart (LA) p. 204 – Must protect patrons from foreseeable criminal attacks by third parties who are on premises. (TESTS TO DETERMINE FORESEEABILITY)

§ Balancing Test – (Used In Wal-Mart – LA, TN, CA) –

Balancing test seeks to address the interests of both business proprietors and their customers by balancing the foreseeability of harm against the burden of imposing a duty to protect against the criminal acts of third persons.

· Likely requires prior incident to trigger foreseeability (narrowed definition)

· Foreseeability & Gravity of crime risk determine existence/extent of duty.

§ Totality of Circumstances (Indiana) – Most common approach in other states.

· Broad standard of foreseeability – higher duty on business owners.

· Nature, condition, location of land & other factors of foreseeability – crime level

o Prior similar interests, however no prior incident precludes a claim where the criminal act was foreseeable.

§ Similar Incidents Test – Foreseeability est. by evidence of previous crimes on/near premises. (Extent of crimes & similarity – lacks clear standard)

§ Specific Harm (Outdated) – No duty unless aware of specific imminent harm.

· Custodial Relationships (Parents, etc. )

o Duty to Rescue: Person has custody or significant control/power over another where

§ Circumstances/vulnerability deprived other of normal oportunity to protect himself.

§ Person experienced some sort of financial gain from the other

o Harper v. Herman (MN) p. 131 – Social Host

Superior knowledge of dangerous condition, by itself, in absence of duty is insufficient to establish liability in negligence. No duty to social host unless visitor is under control or is paying for some sort of service.


· Landowners/Landlord


· Non-Negligent Injury

If actor knows or has reason to know conduct has caused such bodily harm to another, actor under duty to exercise reasonable care as to prevent further harm.

· Creation of Risk

Reasonable duty to warn and assist if danger/injury is result of ∆ conduct or instrumentality under control. If ∆ endangers ∏ – must render warning or assistance when problem is discovered; negligent or not = same.

o Negligent Creation of Risk

o Non-Negligent Creation of Risk

§ Simonsen v. Thorin – (NB) p. 135; Note 2d

∆ motorist non-negligently knocked pole into street and drove on. ∆ had affirmative duty to remove hazard or warn others of it – although not liable for creating the hazard.

Menu v. Minor – (CO) p. 135; Note 2d

Driver ran into median and blocked lane of highway. Called cab to pick him up. ∏ hit the car and sued taxi co for not staying at scene or calling police. No duty on part of cab – never undertook effort to help or change the nature of existing risk. Knowledge of danger alone not sufficient to create special relationship imposing duty.