Select Page

University of Denver School of Law
Pepper, Stephen L.

Tort outline    
Wednesday, November 25, 2009
10:29 PM
i-Negligence basics: :” the common legal acceptation is the failure to exercise that care and caution which a reasonable and prudent person ordinary would exercise under like conditions or circumstances.”-pg 155
1.       Never assume d owes a duty of care, always analyze this 1st
2.       Remember p must show actual cause of action (cause in fact) and proximate cause (legal cause)
3.       Negligence: is the word used to describe the conduct of the person being evaluated. Another commonly used rubric for negligence is conduct that falls below the standard of care established by law for the protection of others against the unreasonable risk of harm. –reasonable standard of care applies to both the p and d.
a.Five elements of negligence
1.       To use reasonable care under the circumstances, for the protection of others from unreasonable harm.
                                                       ii.            Breach:
                                                                         1.            A failure to conform to the required standard of care
                                                                                           a.            A jury normally determines if this has been breached
                                                      iii.            Standard of care
                                                                         1.            Each person owes a duty to behave as a reasonable person would under the same circumstances. The standard never varies for anyone except for professional and child.
                                                     iv.            Cause in fact: “but for cause”, without the breach the resulting injury would not have occurred
                                                       v.            Proximate cause: doctrine that limits liability even if there are other elements resulting in damage
                                                     vi.            Damages: actual loss resulting to the interests of another.
More probable than not to get to the jury…
Judge-made Decision
Judge-made Decision
X (A rebuttal/excuse can send it back to the Jury)
Cause in Fact
Proximate Cause
ii. Duty: a general duty is owed to use reasonable care under the circumstances to avoid creating an unreasonable risk to harm to others.
1-Ordinary standard of care: reasonable care under the circumstances (intelligence doe not matter)
a- reasonable person standard: each person owes a duty to behave as a reasonable person would under the same or similar circumstances. If an ordinary man would take certain precautions to avoid a problem, then failing to take the same precautions is negligence
i-objective test: this is an objective standard and is therefore immaterial that the d believed in “good faith” (subjectively) that he was being careful. Issue isn’t  what d believed but how ” a reasonable person of ordinary prudence”  would behave.
                                       i.            Foreseeability: if a reasonable person can foresee a circumstance there is a duty to act with reasonable care.
                                                       1.            Look at
                                                                         a.            Extent of risks posed by the conduct
                                                                        b.            Likelihood of risk actually causing the harm
                                                                         c.            Whether the alternatives to proposed conduct would achieve same purpose with lesser or greater risks
                                                       2.            Doesn’t matter if more probably than not will happen, the duty to still exercise ordinary care.
                                                       3.            If an ordinary man would take precautions to avoid it, than failure to do so is negligence.
                                                                         a.            The bungcap case: even though the explosion was unusual, and unlikely, they were still held liable.
 f- to who is the duty to care owed?  If a reasonable person would not have foreseen injury to anyone from the conduct, there is no duty owed to any person who is unexpectedly hurt by d’s actions. Split authority however were d could reasonably foreseen danger to someone.  
1.       Palsgraf case:
a.       Dissenting Andrews view: (broad) if duty owed when p is injured by d’s negligent act, the d is responsible regardless of whether the reasonable person would have foreseen a risk of harm in the circumstances to this particular person, as long as the p’s injuries were proximately caused  by the d’s negligence towards someone.
b.      Cardozo view- narrow view- duty owed to “foreseeable p”, or “zone of danger doctrine”
a.       P owes a duty of care to those persons as to whom the reasonable person would have foreseen a risk of harm under the circumstances. Therefore, before the d may be held liable under any duty of care to the p it must appear that the reasonable person would have foreseen a risk of harm to the p or a class of persons to which the p belongs. Ie- the p was a “foreseeable p” located in a foreseeable “zone of danger.”
c.       Rescuers
                                    ii.            Objective knowledge: a person cannot escape liability if they should have known . In most cases, the jury decides if they should have known. Additionally, forgetfulness is NOT an excuse.
2-Special Circumstances:
                                      i.            Custom:   custom is admissible as evidence of the standard of care owed but is never conclusive. The fact that d has acted or failed to act as others in the community customarily do may provide a clue as to the reasonableness of the conduct. Learned Hand said “. . . Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.” 
                                    ii.            Emergency doctrine:  to qualify as an emergency, the event must be unforeseen, sudden and unexpected. If confronted with an emergency, the actor is not held to exercise the same judgment that you are under for normal circumstances
                                                       1.             Also, if the emergency is created by the actor, the emergency doctrine does not apply.
                                  iii.            Physical disability:
                                                       1.             “(bli

udged by the reasonable person standard w/o any allowance for their mental deficiency.
Might be allowed in proving contributory negligence
8.       Privity of Contract (No longer bars tort causes of action)
a.       Nonfeasance: In general, where there is only the promise and the breach, only the contract action will lie, and no tort action can be maintained.
                                                                           i.            Exceptions:
1.       A public utility or common carrier that has undertaken the duty of serving the public, becomes liable in tort when it fails to do so, whether or not it has made a contract.
2.       A defendant who makes a contract without the intention to perform it is regarded as committing a form of misrepresentation or fraud for which a tort action of deceit will lie.
b.      Misfeasance: When the defendant misperforms the contract, the possibility of recovery in tort is greatly augmented.
c.       Example of Privity:
                                                                           i.            A and B contract but because of A’s breach of the contract C gets hurt. Under the rules of privity, A had a duty to B under the contract but A did not have a duty to C, therefore A is not liable to C. Why should this be if all of the 6 elements of negligence are met between A and C? The court saw C as a bystander to the contract and consequently A had no duty to rescue/protect C.
                                                                         ii.            Two ways to think about it:
1.       There is a tort duty between A and C because the risk was foreseeable BUT
2.       There is no contractual duty between A and C because they did not contract a duty.
9.       Pure Economic Loss: economic loss cannot be collected on if there is no accompanying injury
10.   EMOTIONAL DISTRESS?? Do we need to know??
11.   No duty to rescue-
1.Failure to Act
a.       Generally, there is a no duty to rescue rule. A defendant is under no legal obligation toward the plaintiff to act with the care of a reasonable person and is not liable even though his conduct falls short of that standard and the other is injured as a result.
b.      There are several exceptions to this rule that impose a duty to take reasonable affirmative action:
1.       Instrumentality Under Control: A defendant may have a duty to rescue if the instrumentality causing the harm is under his control (example: an escalator in a department store is injuring a customers hand)
2.       Special Relationship: If the defendant is in a special relationship with the plaintiff or injured party. These relationships include the following:
a.       Common carrier and passenger
b.      Innkeeper and guest