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University of Kentucky School of Law
Davis, Mary J.

Torts Outline (Davis/Torts/Fall/2013)                        9/10/14 8:00 PM
I.       Introduction to Tort Liability
A.      Prologue
B.      When Should Unintended Injury Result in Liability?
1.       Tort: a civil wrong causing injury, not arising out of a K
i.        The primary concern of tort law has been whether one whose actions harm another should be required to pay compensation for the harm done
ii.        The fundamental issues addressed by a system of tort inability for unintended
injury is when losses should be shifted from an injured victim to an injurer or some other source of compensation
2.    Four Elements of any cause of action in Tort
iii.    Duty: legal duty to comply w/ a particular std of care
iv.     Breach of duty: failure to comply w/ the applicable std of care
v.       Causation
vi.     Damages
vii.   Goals in Tort Law
viii.       To create predictable rules of law
ix.     Accident prevention (main goal)
x.       Wealth redistribution (deepest pocket pays)
xi.     Social insurance (spread cost, lost spread)
xii.   Retribution (personal & social)
3.      Strict Liability: liability not depended on negligence (fault) or intent to harm but based on breach of duty to make something safe.
xiii.       Does not require proof of fault
xiv. Different from absolute liability: need only to establish ∆ “caused” injury
xv.   Theories
a.       Holmes: loss from an accident must lie where it falls;
i.       liability should be based on choice & if the person couldn’t have foreseen & prevented the danger, then should be held liability
b.      Posner Theory of Negligence
i.       It is not economically feasible to take the measures to prevent the harm in some times so the ∆ should not be condemned
4.       Negligence: the failure to exercise the standard of care that a reasonably prudent person would have in a similar situation
xvi. Requires proof of fault
5.       Hammontree v. Jenner: driver that falls unconscious at wheel is held to std of neg, not strict liability
C.      The Litigation Process
1.       Summary Jdgm’t: motion to dismiss the case b/c there is no proof proved by the opposition or that the opposition’s facts could not be proven true
2.       Directed Verdict: AKA judgm’t as a matter of law (asking the judge to rule on case b/c
there is no question of fact, only so no need for jury)
3.      Burden of Proof: burden of providing the essential facts of case
i.        Introduce sufficient evidence
ii.      Burden of persuasion (these facts “more likely than not” what occurred)
4.       Judgm’t notwithstanding the verdict: motion for judge to make a judgm’t different than jury b/c a reasonable jury could not have found this (judgm’t as a matter of law)
5.       Jury Inst: describe to jury that they must decide; parties must do work to essentially propose jury inst.
6.       Damages: compensatory dmgs
7.       No liability: loss lies where it falls
8.       Product liability: anticipate flaws
9.       Why shouldn’t tort law evolve?
i.        Legislative responsible for change
10.       Loss of consortium: the individual’s spouse is injured
D.     The Parties & Vicarious Liability
1.       Vicarious liability: E’er bears liability for the actionable conduct of an E’ee b/c relationship between two parties
i.        Jury Question
ii.      Purely by employm’t proof
iii.    Goalààasuring compensation
iv.     Respondent superior: E’er are vicariously responsible for E’ee acting in their scope of employm’t
2.       Indemnity: E’er sues E’ee for monetary dmgs. Lost through vicarious liability
3.      Strict liability: not required to proof of any fault.
4.       Test for Vicarious Liability:
i.        Is the person an E’ee or independent contractor?
a.       Test if an independent contractor/E’ee
i.       How much control over the means and method over how the hired person does his job does the hiring party have
b.      Independent contractor: one who is hired to undertake a specific project but who is left free to do the assigned work and to chooise the method of accomplishing
ii.      If an E’ee; liabile if proven the E’ee is in the scope of the employm’t
a.       Birkner test for “scope of employm’t” (all three must be met)
i.       E’ee conduct must be of general kind hired to perform, not wholly personal endeavor
ii.       Conduct must occur substantially w/I hours and ordinary spatial boundaries
of employm’t
iii.       Conduct must be motivated, in part, by the purpose of serving the e’er interest
iii.    If an independent contractors; not liable unless ostensible agency is proved by ∏
(2nd Rest. For Agency § 267)
a.       Test for Ostensible agency (all three must be met)
i.       Requires action by the principle
ii.       Causes person to reasonably believe that the person is an E’ee
iii.       The person must have a reliance on the appearance of agency
5.       Non-delegable duty: a duty that cannot be assigned to another party
6.       E’er still has option of indemnity against E’ee later
i.        Christensen v. Swenson
II.    The Negligence Principle (Breach)
A.      Historical Development of Fault Liability
1.       Fault=negligence,  blame,  carelessness,  culpability
i.        Negligence: the failure to exercise the std. of care that a reasonably prudent person would have in similar situation
2.       Ordinary care=reasonable care
i.        Kind and degree of care a prudent, cautious person
ii.      Required by exigency of the case
iii.    Necessary to guard against probable danger (foreseeability)
iv.     Nature of circumstances may require extraordinary care
3.      Prima Facie Case of Negligence/Cause of action (∏ must prove all)
i.        ∆ owed a duty to use (existence of duty)
a.       Reasonable/ordinary  care
ii.      Breach of the std of reasonable care (Breach of duty)
iii.    Causation (proximate cause)
iv.     Harm (damage or injury to ∏)
4.       Burden of Proof (start on ∏)
i.        Burden of production: burden to produce some kind of evidence to have a trial (must be met to send trial to jury)
ii.      Burden of persuasion: burden to persuade the jury to agree with you
5.       Prima Facie case: required proof, fact presumed to be true unless is disproved
6.       Trespass: If a man throws a log into the highway and in that act the log hits me, b/c its immediate wrong
7.       Trespass on the case: if as the log lies there I tumble over it and receive an injury
i.        Indirect harm (not w/ force/arms)
ii.      Circumstance  based
iii.    Came about to permit flexibility
8.       Gen. Summary
i.        Where a ∆’s act is lawful (permitted) and unintentionally causes injury, ∆ is liable only if ∏ proves that D acted in want of ordinary care.
a.       Test (dic

ii.      Non-compliance
ii.      Statutory standardààduty of careààgive content to what reasonable person does
iii.    Common law: Martin & Tedla
iv.     2nd Rest. § 286
a.       Reasonable people assessààhazard, who do I protect
i.      Who does statute protect? **important
ii.      Particular  interests
iii.       Kind of risk/harm **important
iv.      Particular  risk/harm
b.      Violation of a statute is per se negligence (Martin Rule)
i.      Exceptions (∆ has burden to prove exceptions):
1.       When it is safer to violate the statute then it is to follow it (excusable like Tedla)
2.      Where the ∆ exercised reasonable care to comply w/ statute
3.      Where the ∆ had a sudden incapacity that prevents the compliance w/ statutes  (unavoidable)
c.       HYPO: drive w/o license and drive negligently; are you liable based on no license? NO. License is irrelevant to reasonable care
d.      HYPO: school buses light flashing to protect children, hit car down the road after not stopping for bus, under statute std.; not negligent b/c statute relies on who it protects
v.       Federal regulatory requirements is a minimum
a.       Compliance is NOT conclusive
b.      Just b/c you follow law you can still be negligent
vi.     Negligence & Evidence
a.       Some evidence of negligence
b.      Prima Facie: sufficient to establish a fact or raise a presumption unless disproved or rebutted (“on its face” MUST be evidence about negligence/rebuttable)
i.      Evidence:
1.       Evidence sufficient to establish element of a cause of action—that is, if a
∆ produces no evidence contra, Judge must enter summary judgment for ∏
2.      If ∆ offers evidence contra, then unless Judge finds that no reasonable
jury could find for ∆, ∏’s case goes to jury
c.       Negligence Per-Se: of, in, or by itself; standing alone, w/o reference to additional fact. (definitive negligence, MUST find negligence) (if violates statutes ààmatter of law)
i.      Evidence:
1.       Establishes element as a matter of law, thus decided by the judge, not jury
a.       Doesn’t matter if you claim you acted reasonable.
d.      Prima facie std: satisfies the burden of production on the party of the ∏ and shifts the burden of production to the ∆ to prevent summary judgment
vii.   Determination of negligence for civil purposes does not turn on the ∆’s criminal liability—becomes std. of care only b/c civil court has accepted as such
viii.       Martin v. Herzog: violation of a safety statute is negligence per se
a.       Reasoning: safety statutes establish a std. of care, therefore when you do not follow the state you are falling below the std. of care, and thus are negligent as a matter of law (negligence per se)