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University of Denver School of Law
Doberneck, Megan


· Negligence: The Duty of Reasonable Care

o Four Elements:

§ (1) DUTY of care owed to defendant by Plaintiff; (2) conduct that BREACH the duty; (3) CAUSATION; (4) INJURY or LOSS

o Reasonable Person Standard

§ Defining and Justifying the “Reasonable Person”

· Instruct the jury to consider how a reasonable person would act, not how they themselves would

· NEGLIGENCE: the omission to do something which a reasonable man would do, or doing something a reasonable man would not do

· REASONABLENESS depends on the knowledge that the actor had about the riskiness of a situation; Either:

o (1) Full knowledge of all the risks;

o (2) All of the knowledge a reasonable person would have had; or

o (3) Only the knowledge the actor actually had

§ Reasonable Conduct as a Balancing of Costs and Benefits

· Learned Hand Formula

o B < P L

§ B=burden of prevention or avoidance

§ P=probability of loss

§ L=magnitude of loss that would be avoided with the possible prevention or avoidance

§ Restatement (Second) of Torts

· Unreasonable: when the MAGNITUDE OF THE RISK outweighs the UTILITY OF THE ACT—or—MANNER IN WHICH IT WAS

· Factors for UTILITY:

o (1) societal value attached to the interest to be advanced or protected

o (2) extent of the chance that this interest will be advanced or protected by the conduct

o (3) extent of chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct

· Factors for RISK MAGNITUDE:

o (1) social value attached to the interests which are imperiled

o (2) extent of the chance that the actor’s conduct will cause an invasion of any interest of the other

o (3) extent of harm likely to be caused

o (4) number of persons whose interests are likely to be invaded

o Range of Application: RPS

§ Especially Dangerous Instrumentalities

· High Duty of Care:

o same reasonable care “standard,” but, what is “Reasonable Care” is heightened for inherently dangerous conduct

o The greater the risk of danger…the greater care must be exercised

o ex: handling gasoline

§ Emergencies

· Emergency:

o sudden and unexpected encounter with a danger which is either real or reasonably seems to be real

o Was the Defendant’s conduct “reasonable” under the circumstances of the emergency

o Could absolve an actor’s liability, warrant lesser standard of care, or just be treated as another factor to consider

o Jury Instruction given when:

§ party seeking the isntruction was not negligent prior to the emergency

§ the emergency came about suddenly and without warning

§ reaction to the emergency was spontaneous, without time for reflection (Policy: cannot deter a reflex)

o Learned Hand Formula probably does not apply

§ Actor’s Skill/Expertise

· Standard is that of a reasonable man with superior attributes (“standard” doesn’t change, “reasonable” changes)

· Does not apply to “below average” attributes of people (can’t lower the bar for retards…actually though…see mental disabilities)

§ Youth: Special Treatment for Minors

· The same care that a reasonably careful child of the same:

o Age;

o intelligence;

o maturity;

o training; and

o experience…

…would exercise under the same or similar circumstances

· No Expert Testimony (as to how a reasonable child acts)

· Exceptions: (applyàAdult Standard)

o When activity is normally only engage in by adults

o Inherently dangerous

· Common Law: Parents are not obligated to pay for harms their children might cause—so no point in suing kids unless insurance plan that will pay or is has own wealth

o States enact statutes dealing with it

§ Physical and Mental Disabilities

· Physical Disabilities

o Standard of Care: What a Reasonably Prudent Person with THE SAME disability would exercise under the same or similar circumstances

o Intoxication is not a defenseàreasonable person standard applies

§ Doesn’t matter if the plaintiff or the defendant was intoxicated…must have acted reasonably regardless

· Mental Disabilities

o Majority Rule:

§ Ignore Mental Disability in evaluating an actor’s conduct

§ Treat the actor as one with typical mental abilities

§ Too hard to evaluate deficiency

o Depends on duty, sometimes a defendant owes no duty to a plaintiff (like the Alzheimer’s patient and his nurse)

o Recklessness

§ Recklessness:

· Intentional or Unreasonable Disregard of a Risk that presents at High Degree of Probability that Substantial Harm will result

§ Substantial Harm:

· Combination of Likelihood and Seriousness

§ Reckless Conduct is encompassed in “Intentional Infliction of Emotional Distress

§ Restatement (Third) of Torts:

(1) person knows of the risk of harm created by the conduct or knows facts that make that risk obvious to anyone in the person’s situation; AND

(2) the precaution that would eliminate or reduce that risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk

§ Policy:

· Sometimes punitive damages are applied here when they wouldn’t be for conduct that is only negligent

· Intentional Torts

o Ba

imminent harmful or offensive contact, without regard to whether the contact occurs

· Must be imminent (almost at once), not just mere near future

· Words alone are not enough to make an actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension of imminent harmful or offensive contact

· Use Objective Test:

o the defendant’s conduct would normally arouse apprehension in the mind of a reasonable person

o extra sensitive people are not contemplated in objective test

§ Transfer of Intent Amount People Between Torts

· Transfer of Intent between Torts

o Plaintiff can recover for assault even if the defendant only intended a battery, and vise versa

· Transfer of Intent between People

o If defendant intends to assault or batter one person, but assaults or batters another, defendant is liable to the other as if the other had been the intended target

· Case where guy intended to assault a car full of thugs by shooting a gun towards them, but ended up hitting his neighbor

o Intended to Assault X, but Battered Y

o Y recovers on both theories of Transfer

o Defenses to Assault and Battery

§ Consent

· can be Express or Implied

· Arises when a person voluntarily relinquishes the right to be free from harmful or offensive contact or imminent apprehension of such contact

· Must be sober at time of consent, and consent can be withdrawn at any time

o If withdrawn, must provide adequate notice

· Consent must be knowing, informed, and voluntary

· Defendant Cannot Escape Liability When:

o Uninformed: Plaintiff was mistaken about the nature and quality of the invasion intended

o Fraud: Defendant concealed an important fact that would have affected the plaintiff’s decision to consent

· When a person voluntarily (giving in to peer pressure=voluntary) participates in an altercation, he may not recover for the injuries which he incurs, unless force in excess of that necessary is used and its use is not reasonably anticipated

o Excessive force is contact inconsistent with the understood rules of the game

o Consent still exists when unanticipated results occur