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University of Denver School of Law
Pepper, Stephen L.

Torts Pepper Fall 2017

Development of Liability Based on Fault

Intentional conduct
Negligent conduct that creates an unreasonable risk of harm
Conduct that is neither intentional nor negligent but subjects the actor to strict liability for some public policy reason
Cohen v. Petty (driving/pass out)

To prove negligence there must be a reasonable consideration that a negative event will occur and that reasonable consideration was ignored
No negligence if the defendant could not reasonably have anticipated the negative outcome
No negligence if car accident occurs because driver is overcome by a sudden AND unanticipated illness

Spano v. Perini (blasting)

Absolute liability: do not need to find negligence if SOC, breach, and duty are matters of strict liability (blasting deemed inherently dangerous activity with or without negligence)
EXAM HYPO: what if the City of New York was a defendant?


Definition: unintentional conduct involving a foreseeable or unforeseeable risk to a third party and the failure to use reasonable care under the circumstances (RCUC)
Six Elements of Negligence

Duty- to use reasonable care; to conform to a certain standard of conduct for the protection of others against unreasonable risk
Standard of Care

Subjective- RCUC
Objective- ordinary standard of care (statute)

Breach- failure to conform to the required standard
Cause in Fact
Proximate Cause
Damages- actual loss resulting in damage to others

Negligence Formulae

Lubitz v. Wells (golf club)

This case concerns the reasonability of the negligence formula
A golf club is not so inherently dangerous that leaving it on the ground where children may stumble upon it is negligent

EXAM HYPO: what if it was a rifle?

Blyth v. Birmingham (frozen water pipes)

Negligence is the omission to do something that a prudent and reasonable man in the circumstances would do (RCUC). A reasonable man would act with reference to the average temperatures of the region.
Frost at such a low temperature was unforeseeable by all accounts, therefore no negligence because SOC was not breached
B>PL – foreseeability of pipes breaking was low

Pipher v. Parsell (teenagers jerking steering wheel)

Parents are not liable for the torts of their minor children
RCUC standard of care not violated when third party’s behavior that contributes to accident is not foreseeable
The probability is relevant only in that it dictates how a reasonable person would act –> if the probability of an accident occurring is high enough that a reasonable person would take precautions, it would be negligent not to

Chicago R.R. v. Krayenbuhl (turn table)

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<PL)
The test to determine negligence in these types of cases (attractive nuisance) must include an analysis of

Character and location of premises
Purpose or use
Probability of injury
Precautions necessary to prevent injury
Nature and impact of the precautions

“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 not to interfere with the beneficial use to society, but must be reasonable.

Davison v. Snohomish County (curvy bridge, car broke through railing)

Negligence must be weighed against public economic interest and reasonability (at the time, roads and bridges were still relatively new and could not expect all to have adequate railings)
Burden on municipalities to put barriers would be greater than the accidents they might prevent (impractical

reasonable & prudent person would have known
Persons are responsible for the conditions of their property and the maintenance thereof


Emergency circumstances can make a normally negligent act reasonable if it is what a reasonable person would do under such extreme circumstances (RCUC- these circumstances are emergent)

Note: emergency exception does not apply if the emergency is created by the actor’s own negligence

Cordas v. Peerless (robber takes cab, which, once abandoned, hits woman and children)

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


EXAM HYPO: What if mother and children had been killed?

According to this court, based on this reasoning result should be the same as the foreseeable loss did not change even though the actual loss did; also, still emergency situation

EXAM HYPO: What if the car was on the downhill, towards a packed group of people watching Thanksgiving Day parade?

P and L have gone way up- no certainty of injury, but it’s a pretty high likelihood
Good chance of different outcome