Select Page

University of Denver School of Law
Best, Arthur

Torts – Fall 2013
Arthur Best – University of Denver
Basic Tort Law: Cases, Statutes, and Problems, 3rd Ed.
The Duty of Reasonable Care
a. P may recover damages if 1) D owed Duty  2)Breach 3) Causation 4) Harm/Damages
If duty  – tort law identifies standard of care (simply: how a reasonable person would act) for the jury to use in evaluating the conduct of actor
We like to know there is a standard of care chosen by legal system so that our world has consistency and predictability. We can assume others will be reasonably careful not to injure us without anticipating their personalities and capabilities. If they do hurt us we can expect compensation with tort damages.
Reasonable Person Standard
If duty – D must act in accordance with reasonable person standard
a. Defining and Justifying RPS
1.       One has behaved negligently if he has acted in a way contrary to how reasonably prudent person would have acted under similar circumstances. NOT based on judgment of individual.
2.       Reasonable person: Actor required to do what ideal individual would do in his place. Reasonable man is a fictitious person whose conduct is always up to standard.
Nitro Glycerin Case
1.       Entire situation must be taken in account when determining negligence
2.       If D took ordinary amount of care when opening the package with his knowledge at the time and in circumstances, he is not negligent
3.       D was “innocently ignorant”
4.       Mere fact that there was injury not sufficient, no one is responsible for injuries resulting from unavoidable accident
5.       Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
Perspective: Social Costs and benefits – In Nitro case, ct refers to inconvenience associated w/ rule requiring common carriers to know contents of every package. Would make shipping slower and more costly. If inconvenience > benefit to society, don’t do it.
b.Reasonable Conduct as Balancing of Costs and Benefits
Hotel Room Break In
1.       Unreasonable conduct is merely the failure to take precautions that would generate greater benefits in avoiding accidents than the precautions would cost. (Learned Hand: Burden of prevention < Probability of loss * magnitude of loss that would be avoided) 2.       Due care is that care which is optimal given that the potential victim is himself reasonably careful; a careless person cannot by his carelessness raise the standard of care of those he encounters. 3.       P failed to show that the mishap could have been prevented by precautions of reasonable cost and efficacy. Perspective: law and economics – Learned Hand does not account for people’s morale, spiritual and irrational preferences. Hard to quantify. Range of Application of RP Standard Trusting jurors on a wide array of cases to correctly apply the RP test Especially Dangerous Instrumentalities Auto Body Shop Fire 1.       Should juries be instructed to apply high degree of care in instances of elevated danger? 2.       There is no higher standard of extraordinary care. The reasonable person standard applies to all cases, even those that involve elevated danger. A reasonable man should exercise care in proportion to the danger involved in the act. This does not require a different jury instruction. 3.       Jurors adjust and account for the fact that a reasonable person must exercise care in proportion to the danger involved in his act 4.       They found that the jury’s instructions to use “high care” were adequate because they would have applied that standard anyway – but stated that these instructions were not ideal Emergencies Swerving Car Accident 1.       Some jurisdictions allow sudden emergency jury instruction 2.       Emergency instruction tells jury person confronted w/ sudden emergency depriving him of time to contemplate best reaction (not a routine accident, but one where driver couldn’t anticipate) 3.       Giving this instruction may absolve D of liability, apply a less demanding standard of care OR just treated as one factor among many a jury considers Use the emergency standard when: Party seeking instruction was not negligent Emergency came about in a suddenly and without warning Reaction was spontaneous, w/o time for reflection An actor’s knowledge and skill Professional Truck Driver 1.       Although the reasonable man standard provides a minimum standard below which an individual's conduct will not be permitted to fall, the existence of knowledge, skill, or even intelligence superior to that of an ordinary man will demand conduct consistent therewith.  2.       Standard became: That of a reasonable man with such superior

4.       Public Policy considerations include:
a. Allocate losses between two innocent parties
b.Incentives for those responsible
c. Ds cannot use mental disability as defense (fake it)
d.Removes uncertainty on assessing disability and significance
e.Assets of disabled to compensate innocent people if the mentally handicapped are “to live in this world”
Recklessness 130
Three theories of recovery: intentional torts, unintentional (negligence, recklessness) torts and strict liability. Recklessness usually has some form of wanton misconduct, P may recover punitive damages. Often used when statute protects D from liability for negligence but exposed D to responsibility for recklessly inflicted harms. (Ex State parks & facility)
                     i.            Biking Kid falls in Drain
1.       Reckless involves intentional or unreasonable disregard of risk that presents high degree of probability that substantial harm will result
2.       The degree of risk must be the same as the standard that the court establishes for reckless
3.       Reckless when:
a.       Person knows of risk or harm created by conduct
b.      Precaution that would eliminate involves burdens that are so slight relative to magnitude of risk
Chapter 4: Proving Breach (pg. 137)
a. Any information that sheds light on reasonableness can be presented to the jury. Ex:
Statute applies to factual circumstances in which D acted, statute may be considered proof of how a reasonable person behaves
Customs to show what reasonable behavior is
Direct or eyewitness proof about how D acted.
Res Ipsa Loquitor – the thing speaks for itself – we do not need to prove negligence because it must have been.
Violation of a Statute
If the statute’s purpose was to protect injured party from the type of harm that occurred, the proof of violation will have special evidentiary effect and may prove both a standard of care as well as breach of that standard & negligence.