Select Page

University of Denver School of Law
Pepper, Stephen L.

Stephen Pepper


Fall 2012

I. Developments of liability based on fault

a. Intentional Conduct

b. Negligent conduct that creates on unreasonable risk of causing harm

c. Conduct that is neither intentional nor negligent but that subjects the actor to strict liability because of public policy.

d. Cohen v. Petty (pass out /driving)

i. to prove negligence there must be a reasonable consideration that a negative result will occur and that that reasonable consideration was ignored.

ii. Also it can not be negligence if the defendant had no reasonable expectation to anticipate the negative outcome.

e. Spano v. Perini (blasting)

i. Absolute Liability- You do not need to find negligence if standard of care and breach and duty is a matter of strict liability.

II. Negligence-

i. Conduct involving a foreseeable & unreasonable risk to a 3rd party & failure to use reasonable care under the circumstances.

b. Duty- to use reasonable care…conform to a certain standard of conduct for the protection of others against unreasonable risk

c. Standard of Care

i. Subjective – Reasonable care under the Circumstances

ii. Objective- Ordinary Standard of Care à (Statute)

d. Breach- failure to conform to the required standard

e. Cause in Fact-

f. Proximate Cause-

g. Damages- Actual loss resulting in damage to others

III. Negligence Formula

a. Cases and Rules

b. Lubitz v. Wells

i. Reasonability of negligence formula

ii. The court found that a golf club is not so intrinsically dangerous so as to make it’s lying on the ground negligence.

c. Blyth v. Birmingham Waterworks Co.

i. Probability that the frost would break the pipes was very low (B>PL)

ii. Frost so low was an unforeseeable event = no negligence because there was not breach of the standard care

iii. Negligence is the omission to do something that a prudent and reasonable man would do. A reasonable man would act to reference to the average circumstances of temperature would lead men to act with prudence.

d. Gulf refining Co. v. Williams (bung cap)

i. Similar to Blyth in that ht PROBABILITY of explosion by worn bung hole cap was low, but it was POSSIABLE and given the high potential loss (B

ii. High potential loss negated low probability…required a higher Duty and standard of care

iii. Likelihood of the explosion was enough to sent it to the jury

iv. At the time of the negligent act the actor at that point must be able to foresee the possibility of the risk.

e. Tullgren v. Amoskeag (note 1 pp.137)

i. Rule: “If there is some probability of harm sufficiently serious that ordinary men would take precaution to avoid it, then failure to do so is negligence.”

ii. Balance of probabilities = The test is not the Balance of probabilities, but of the existence of some probability of sufficent moment to induce action to avoid it on the part of a reasonable mind.”

f. Chicago RR. v. Krayenbuhl

i. Burden of putting a lock on the turn table was low compared to the potential damage to children that were known to be near. (B

ii. Every case must be approached as to what a “reasonable and prudent man would do.” Railroad was not reasonable or prudent as an average person.

iii. The test to determine negligence in these types of case must include an analysis of

1. Character and location of premises

2. Purpose or use

3. Probability of injury

4. Precautions necessary to prevent injury

5. Nature and impact of the precautions

iv. “Life must go forward; the means by which it is carried forward cannot be rendered absolutely safe.” Only when the danger to the public outweighs the public good does the situation or technology demand restriction. That restriction cannot be absolute, and should try to not to interfere with the beneficial use to society, but must be foreseeable reasonable.

g. Davison v. Snohomish County (roadside barrier)

i. Negligence must be weighed against public economic interest and reasonability. (Hand formula)

ii. Burden on municipalities to put barriers would be greater than the accidents they might prevent. (impracticality as a matter of engineering and prohibitive cost)

iii. Current technology must be considered

h. U.S. v. Carroll Towing (unmoored boat)

i. Burden must be less than the probability times X injury. B < (P * L)

ii. It was reasonable to assume that a ship will loose its moorings and that it was the Conners Co. resp. to have a bargee to prevent this from happening or to lessen the damage.

iii. P must show unreasonable risk…can try to quantify using hand formula

iv. Hand Formula (B>< P*L)

v. B= burden on the D / P= probability of the damage at that time / L =foreseeable injury

vi. Danger must not be too remote or unforeseeable

vii. Comparable and Contributory Negligence ??????

IV. The Standard of Care (The Reasonable Prudent Person)

a. Objective Standard – Judge from the perspective of the reasonable & prudent person, NOT the subjective view of whether of the actor applied his best judgment.

b. Must have an objective standard –because it’s too hard to get into D’s head

c. Vaughan v. Menlove (haystack)

i. Objective standard is that of a prudent reasonable man (not a super cautious person devoid of human frailties = question of a jury full of prudent and reasonable persons)

ii. Stupidity is not a valid defense,

iii. Honest mistake if not reasonable and something a prudent person would do is no defense.

iv. The Reasonable Prudent Person rule should be instructed to the jury and applied for fairness and consistency.

d. Custom

e. Low v. Park Price (stolen tranny)

i. Community custom is admissible but not determinative, but the reasonable and prudent man standard must still be applied as it supersedes custom.

ii. May work in reverse, if there exists a reasonable standard (Ex. industry wide) and the D failed to meet that standard custom can “subjectify up” the objective standard and be used to show liability by deviation from reasonable custom.

iii. Industry-wide Custom that is careless is not an excuse for negligent behavior or omission.

f. Ignorance

i. Delair v. McAdoo (bald tires)

1. Ignorance is No Excuse if a reasonable & prudent person would have known

2. Ignorance of the Obvious is no excuse persons are responsible for knowing the obvious.

3. Persons are responsible for the conditions of their property and the proper maintenance thereof.

4. Reasonable person standard doesn’t account for intelligence, personality or judgment

g. Emergency

i. Emergency circumstances can make an normally negligent act reasonable because the actor isn’t doing anything that an ordinary person wouldn’t do.(Reasonable person in an emergency standard)

ii. If emergency is created by the actor’s own negligence the emergency exception does not apply

iii. “The law of the state does not hold one in an emergency to exercise of that mature judgment required of him under circumstances where he has the opportunity for deliberate action. He is not expected to exercise unerring judgment, which would be expected of him, were he not confronted with an emergency requiring prompt action.”

iv. Cordas v. Peerless (robber enters cab)

1. Test to subjectify down the RPPS

a. Sudden

b. Unforeseen

c. Unexpected

h. Physical Disabilities

i. Physical impairments are admissible into court

ii. Roberts v. Louisiana (blind man)

1. The standard of care is subjectified down, but the reasonable person standard is still in place.

2. The new standard would be Ex blind person = what is the standard of care for a reasonable and prudent blind person.

3. Intoxication is not a physical impairment.

i. Children

i. Robinson v. Lindsay (snow-mobile and kids)

1. Reasonable child standard – children are held to the standard of what is reasonable for like (age , intelligence and experience) children in the same situation.

2. Exception – When a child partakes in an inherently dangerous activity (as decided by fact finder Ex. Operating motor vehicle, adult license required) then the child is held to the objective adult standard.

3. More may be require of a child that is considered to be superior.

4. Some jurisdictions have age cut-offs for negligence.

j. Insanity

i. Insanity as a defense for Negligence- In most cases never, especially if it is a know pre-existing condition. Unless it is

ii. 1.) Sudden and unforeseeable.

iii. 2.) Affect the actor’s ability to behave in a reasonable and prudent manner.

iv. 3.) Affect the person’s ability to understand their duty to exercise reasonable care.

v. Mental standards are not admissible into court

vi. Physical impairments are admissible into court

V. Professional Standard

i. General Rule – The reasonable prudent person takes on the profession of the actor and the objective standard is applied. If the professional does not either due to a lack of knowledge, or skill he has committed malpractice.

ii. Standard of care is a higher standard, and is paid irrespective of how much or if money has been paid. (pro bono still must be held to a professional standard).

iii. Professional standard is OBJECTIVE= prof. must possess and use the knowledge skill and training of on ordinary member of the profession.

iv. Applied only when a professional is acting like a professional in that chosen field

v. Specialist Rule- One who holds themselves as an expert in a particular profession is held to an even higher standard than the ordinary professional. Must act as a reasonable prudent “specialist.”

vi. 3 manners of Breach

1. Failure to exercise knowledge or skill

2. Failure to exercise best judgment

3. Use of Care (mechanical step required by professional)

vii. What is an ordinary member of the profession?

1. Any reasonable and prudent member of the profession in the same or similar community. (majority rule)

2. Minority rule- National v. Local standard

viii. How does a P prove Malpractice?

1. Expert testimony- needed unless violation is so gross as to be obvious

2. Standard- P must prove professional violated an industry standard

3. Plaintiff must prove success- P must show that the malpractice by the professional caused damages, and that if the undertaking by professional hadn’t been negligent it would have been successful.

a. Lawyer – must prove he would have won the case

b. Doctor –must prove the procedure would have been successful

ix. Professional Custom

1. Admissible & influential and can be determinative. (Hodges v. Carter)

x. Pilot

1. Heath v. Swift Wings (plane crash)

2. The reasonable prudent person takes on the profession of the actor and the objective standard id applied. Professional standard is an objective standard. (Reasonable pilot standard)

of law.

b. Rebuttable Presumption ( Prima Facie negligence) (Minority)

i. D is presumed to be negligent, but is given the opportunity to present evidence that he was not. (If there exist a credible excuse)

ii. Will always go to the jury

iii. Ways to rebut the presumption (Restatement § 288(a))

1. Specific Evidence & justification for violation of statute

2. D can show credible excused for violated

3. D can show he was incapable of complying with statute (incapacity/age etc…)

4. D can plead ignorance

5. Emergency

6. If compliance with statute would have caused greater harm

iv. Zeni v. Anderson (woman struck while walking down road)

1. D plead that woman was walking in street in violation of statute and therefore was contributorily negligent.

2. “An accurate statement of our law is that when a court adopts a penal statute as the standard of care in an action for negligence, violation of that statute establishes a prima facie case of negligence, with the determination to be made by the finder of fact whether a party accused of violating the statute has established a legally sufficient excuse.”

c. Violation of statute as some Evidence of Negligence (minority)

i. Violation of statute is merely evidence of negligence that will go to the jury to accept or reject with all evidence.

ii. Some statutes are interpreted to make D liable without regard to any excuse. (strict liability ?????? or negligence per se)

iii. Perry v. SN. SN.

1. Persons violated a criminal statue by not reporting child abuse…Is there a civil liability for not reporting this abuse in violation of statute?

2. Jury took the violation of criminal statue as evidence of negligence…Appeals say that it should not have been.

3. No because the potential liability would be so disproportionate.

iv. Test

1. Children were members of the class to be protected=yes

2. Harm was type that was to be prevented= yes

3. Causation=?

4. *Cannot apply civil negligence per se to a criminal statute unless it is so specifically stated.

a. Did the Violator of the staute have Notice?

b. Was Duty clearly Defined?

c. Should Strict Liability be applied?

d. Would imposing strict liability result in disproportionate result?

e. Cans causation be shown?

IX. Notice of Hazardous Conditions

a. Banana peel cases

i. D must have sufficient NOTICE as to the condition/situation and time to remedy the situation (Constructive Notice = Implied notice)

ii. Exceptions

1. Jasko v. Woolworth (pizza on wax paper)

a. Pizza was served in a manner that was inherently dangerous so there was not requirement for notice.

2. Butt Groc. V. Resendez (food stand and grapes)

a. Burden on the P

i. Store had constructive knowledge of risk

ii. Condition posed an unreasonable risk

1. More probable than not rule

iii. D did not exercise reasonable care to eliminate risks

iv. Failure to use such care was the proximate cause of the injuries.

b. Sufficiency of Evidence to find negligence (Plaintiff’s burden)

i. Burden of pleading

ii. Burden of coming forth with enough evidence to avoid a directed verdict against him

iii. Burden of persuading the trier of fact to find in his favor

X. Res Ipsa Loquitur ( “The thing speaks for itself”)

a. DEFINITION: Provides an injured plaintiff with a common-sense inference of negligence is wanting, provided certain elements consistent with negligent behavior are present.

b. Primia facia- Sufficient to go to a jury or sufficient to be ruled as a matter of law.

c. Way of showing evidence of negligence – replaces duty and breach and goes directly to causation and harm.

XI. Test

a. Accident must be of the type that doesn’t normally happen absent someone’s negligence ie a reasonable evidence of negligence. Standard determined by common knowledge /experience or expert testimony.

i. Presumption of negligence and burden on the D

1. Byrne v. Broadle (barrels falling)

a. Rule: Presumption of negligence to arise solely from the a type of accident that has occurred.

b. Barrels don’t fall out of buildings without some type of negligence

c. Burden on the D to prove by a preponderance no negligence

ii. Violation of a statute you can presume negligence

1. Car leaving road and striking stationary object = RIL