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University of Denver School of Law
Pepper, Stephen L.

Fall 2012
NEGLIGENCE (from CO jury instructions- “a failure to do an act which a reasonably prudent person would do, or the doing of an action which a reasonably prudent person would not do, under the same or similar circumstances to protect others from bodily injury, death, or property damage.)
·        Duty- general duty to use reasonable care under the circumstances.  The question here is whether the conduct poses a risk to others NOT whether the conduct poses an unreasonable risk to others.
·        4 duty sections in the textbook- privity of contract, failure to act, pure economic loss, emotional distress.
o   No general duty to rescue. 
o   But if you are the invitor and your failure to act causes further injury, you may be liable (escalator case).
o   Ayers case- plane crashed in lake near airport, airport EMS did not save the person- court found no duty to rescue.
o   No duty to act rule has eroded- here are some exceptions:
·        Special relations (store owner to customer)
·        Innocent creation of risk (had cat in shop)
·        Instrumentality under control (cat)
·        Undertaking (promised to keep cat in, but didn’t)
o   If intervening criminal conduct is foreseeable (child sexual abuse case where wife was named as def also) liability for the third party is NOT automatically cut off. (“particularized foreseeability) Generally no duty to protect others from criminal acts of third person.  (even when there is a statute for mandatory reporting of child abuse, court will determine if its appropriate to use that criminal statute to apply civil liability).
o   Privity of Contract: almost gone.
·        Exceptions:  Public utilities and professional relationships.
·        Nonfeasance- promise and didn’t do it (contracts)
·        Misfeasance- promise and screwed it up (tort law)
o   Pure economic loss- there is no duty to a party who suffers only economic loss (maritime case).
o   Emotional distress-  3 ways to recover:
·        Compensation for a purely mental component of damages where def negligently inflicts immediate physical injury.
·        If no immediate physical injury, but immediate physical impact- P can recover.
·        If no physical impact, then need definite and objective physical manifestation (if you are in the zone of risk.)
Exceptions to the no injury rule- negligent transmission of a telegraph message announcing death and negligent interference with dead bodies.
o   Usually cannot recover unless you are closely related to the victim, present at the scene and as a result suffer serious emotional distress.
·        Standard of Care- reasonable care under the circumstances. (Objective standard)
o   Two exceptions:
o   Child Standard of Care (what is reasonable to expect of children of like age, intelligence and experience?)
·        Exceptions to Child SOC: participating in inherently dangerous activities, operation of powerized motor vehicles, participation in adult activities (some courts have determined this to include driving a car, motorcycle, etc, when a teenager plays golf)
o   Professional Standard of Care- application of a greater standard of care for persons in particular business, occupation, or profession.  Objective standard requiring person to exercise the knowledge, skill, and training of an ordinary member of the profession in good standing.  Need expert testimony to determine what would constitute a deviation from the standard of care unless the conduct is so grossly negligent that a lay person can tell.
o   This standard has been applied to accountants, architects and engineers, clergy, attorneys, designer of group health insurance plan, pharmacists, and teachers.  ALSO, if you are a specialist (expert in labor law or doctor specializing in obstetrics can be held to higher professional standard of specialist).
o   Ex of Dr standard of care:  (in a similar community under similar circumstances)
§   Implied Consent:
·        Duty- Dr has to fail to inform patient of a medical risk.
·        Causation- measured objectively- which is counterintuitive.  If fully informed of the risks, he would not have consented to the treatment.
·        Injury-BC not fully informed, the adverse consequences which were not known, occurred causing injury.
o   Physical limitations may be taken into account, but mental will not when determining what the reasonably prudent person

ccident happening, the mere possibility that the accident could have happened anyway does not break the causal chain (hurrying woman from dimly lit train to sunlight, down stairs with no handrails).
o   Kramer case- glass fell from broken transom, P got skin cancer there.  2 doctors testified- one said very low chance that the injury caused the cancer- the other said no chance.  Jury verdict for P overturned b/c a mere possibility that it could have caused the cancer isn’t enough to get it to the jury. 
o   Concurrent Causes:
o   If two joint tortfeasors negligent actions combine to result in single injury- they are both liable for the injury even though their act alone might not have caused the injury.
o   Market –share liability (DES cases)-
o   Defendants are better able to bear the cost of injury resulting from the manufacture of a defective product- can distribute the cost amongst the public (enterprise liability/joint liability argument).
·        Proximate Cause- generally, people are liable for the (foreseeable) proximate, but not remote, results of their negligent acts.
o   Two tests:
o   1- Directness or analysis of the causal chain
·        Factors to consider under this test:
o   Time
o   Space
o    Number of links in causal chain (only one generation allowed for DFS cases involving birth defects
o   unusualness of a link in retrospect (guy running across freeway to get tire- intervening negligence does not automatically break the causal chain.)
o   Kinsman cases- boats floating down river, no ppl at work in bridge, damage far down river- court allowed those who suffered damage to land, etc to recover bc of the directness/proximateness.  However, under Kinsman 2- where ship with damaged wheat tried to recover- court says no, too remote.