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University of Kentucky School of Law
Davis, Mary J.

Davis Fall '10
I.                        Intro to Tort Liability
A.    Steps of a Tort Case (4 Elements of a Negligent Action):
1.      Determine if there is a duty.
2.      Determine if there is a breach of duty.
3.       Determine if there was
a.       actual causation (factual)
b.      proximate causation (legal)
4.      Determine damages.
B.     3 Classes of Tort Liability:
1.      Liability based on D’s intent
2.      Liability based on D’s negligence
3.      Strict Liability
II.                        Negligence:
A.    Defined: Conduct which, given the circumstances,
1.      creates an unreasonable risk of harm, or
2.      results in harm from failure to use reasonable care
B.     Standard of Care:
A.    Hammontree v Jenner. negligence is the basic principle for liability in auto accident cases, unless the auto accident is somehow the product of commercial enterprise.   For unintended injuries to be compensable the injury must be caused by negligence (or even recklessness).
B.     Brown v Kendall. Conduct that create risk of harm is not negligence unless it creates an unreasonable risk of harm. It is only fair to make people responsible for their conduct only if it falls below what society expects of us- ordinary care.  (exception: common carrier)
C.     Adams v Bullock. Reasonable care in the use of a destructive agency imports a high degree of vigilance. 
1.   Negligence is the doing of something which a reasonably prudent    person would not do, or the failure to do something which a reasonable person would do, under circumstances similar to those shown by the evidence.
2.   Foreseeability should be one standard, there must be some ability to prevent a harm.
3.   “A chance of harm, though remote, may betoken harm if needless.”
D.    Bethel v NY Transit Authority. Standard of Care owed by common carriers (utmost care).
E.     US v Carroll Towing. Risk calculus B < PL = Burden < Probability x Liability F.      Christensen v Swenson.  Vicarious Liability attaches to employers (respondeat superior) when (1) action must be of general kind hired to perform (2) time and spatial requirements of job (3) motives must be to serve the employers interest. (Birkner test). 1.   Strict Liability attaches for employers a.       The employer can bear the loss of reckless employees, they regulate employees b.      The employer is in control of the employee.  c.       It forces the employer to act more responsible d.      His acts are not for the public good if they give rise to tortious acts.    C.     External, Objective Standard – Did D act as a reasonable person would under the circumstance? 1.      Objective:              a.       Reduced mental skills no excuse for liability. b.      Children doing adult activities (driving) held to adult standard c.       Elderly with reduced skills held to adult standard.                                     (in auto cases, no exculpation unless total loss of consciousness) 2.      Exceptions:           a.       Physical Disabilities – what would a reasonable disabled person do? b.      Superior Skills – held to superior standard (unless in emergency) c.       Children – common law 7-14 yrs: rebuttable presumption of incapacity                                     > 14: reasonable person of like age
Roles of Judge and Jury:
1.      Judges: less bias; more consistent; more adherence to law; Judges always decide when:
a.       No material issue of fact exists
b.      No reasonable juror could find for the non-moving party (viewed in light most favorable to the non-moving party)
c.       Was there a foreseeable risk? – question of law for the judge.
2.      Juries: better for unique cases; more representative of public
a.       a single disputable fact can create a jury question
b.      Was behavior reasonable? – question of fact for jury.
Role of Custom:
1.      “Ordinary customs within industry” can be used. Custom is merely evidence of the standard of care owed to P.
a.       Adhering to customs suggests no negligence, but courts can decide otherwise. Custom can be unreasonable – jury can still find negligence if D complies.
b.      Conversely, departure from custom suggests negligence, but courts can find otherwise
c.       Test is still whether the average reasonable person would have so acted under the same or similar circumstances.
Role of Statute: Negligence Per Se (Assumed Negligence)
1.      Statutory violation is conclusive evidence of negligence (Minority: statutory violation is only evidence of negligence)
2.      Must Prove:
a.       Statute was designed to protect against risks of type and accident that occurred
b.      Pl is part of the class statute is designed to protect (third parties can be among the class)
c.       Causation
3.      Valid excuses for statutory non-compliance
a.       Safer to violate than comply
b.      Reasonable attempt to comply
c.       Necessity or emergency
d.      Incapacity
e.       Statute is no longer in force
Res Ipsa
1.      D must have had exclusive control of the instrumentalities causing injury.
2.      The accident would not normally occur without negligence.
3.      The accident must not have been due to any voluntary action by P.
III.                        Duty Requirement for Physical Injuries
A.    Rule: The basic rule is that no one has an inherent duty to act; No Affirmative Duty to Aid/Rescue absent a special relationship.
1. Exception: common carriers, innkeepers, land possessors, custodial relationship, social companions
B.     Assumption of Duty Creates a Duty to Rescue.
1.   Voluntary assumption of duty creates obligation to render aide.
2.   Once you have render aide, you must continue giving aide until there is no more danger. 
3.   If you have voluntarily offered to render aide, you prevent someone else from doing so.
C.     Randi W
1.      Did defendants owe a duty of care? Court held in previous cas

ant Trespassers: A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if
                                                                    i.            the condition
(i)                 is one which the possessor has created or maintains and
(ii)               is, to his knowledge, likely to cause death or seriously bodily harm to such trespassers and
(iii)              is of such a nature that he has reason to believe that such trespassers will not discover it, and
                                                                  ii.            the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.
4.      Children Trespassers: A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
                                                              i.            the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
                                                            ii.            the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
                                                          iii.             the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
                                                          iv.            the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
                                                            v.             the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. *Attractive Nuisance.
b.      Licensee: social guests included, Limited permission  
1.      Duty: warn of hidden/known risks and No duty to inspect for dangers.
2.      Landowners have a duty to use reasonable care in the maintenance of their premises for the protection of lawful visitors.