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University of Kentucky School of Law
Davis, Mary J.



Fall 2014

I. Introduction to Tort Liability

a. When should unintended injury Result in Liability- When should liability for the injury shift from the injured to the injurer?

1. No liability

a. Loss always lies on the victim

b. No incentive to prevent harm in our day to day actions.

2. Absolute liability

a. You need only to prove that my conduct caused your harm.

b. Creates a disincentive to act.

c. Cost prohibitive

3. To have an action in tort you must prove:

a. Duty

b. Breach

c. Causation

d. Damage

ii. Hammontree v. Jenner

1. Strict liability does not apply to automobile accidents as it does in product liability because the driver is not actively engaged in producing something as an integral part of his operation of a motor vehicle.

2. Drivers are not responsible for sudden onsets of illness such as seizures or heart attacks.

b. The Parties and Vicarious Liability

i. Respondeat Superior

1. The employer is liable for the actions of the employee if certain conditions are met. Conditions:

a. Conduct must be of the general kind the employee is hired to perform.

b. Conduct must occur within the time and spatial boundaries of employment.

c. Conduct must be motivated by the purpose of serving the employer’s interests.

II. The Negligence Principle

a. Historical Development of Fault Liability

1. Burden of proof lies with the plaintiff

2. If a person is exercising ordinary care in the commission of a lawful act than they can’t be held liable for the results of that action.

b. The Central Concept

i. The Standard of Care – Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under the circumstances similar to those shown in the evidence. It is the failure to use ordinary care. Negligence is the breach of ordinary or reasonable care.

1. Ordinary/reasonable care- that kind of care, which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger.

2. As the level of danger increases so does the duty of care. If you are using a gun you have a higher duty of care than walking around with a stick.

3. Negligence must be proven by the plaintiff.

4. Contributory Negligence must be proven by the defendant.

5. Adams v. Bullock – Kid with the wire

a. Reasonable care was exercised as the wire was placed in such a way that only an extraordinary circumstance could lead to injury as a result. Reasonable care did not require the foresight to see a young boy with an unusually long length of wire.

6. B

i. P = probability of the event

L= gravity of the injury

B= burden of adequate precautions

ii. This is not a hard and fast rule, but rather a guidepost to evaluate defendant conduct by.

7. Risk- Did the defendants conduct create an unreasonable risk of harm?

8. Classifications of conduct requirements:

a. Common Carriers- Still the rule in most jurisdictions. Airplanes, bus lines, trains, etc.

b. Reasonably prudent person- This is the standard that applies to most actors.

ii. The Reasonable Person- What a reasonable prudent person of abilities consistent with the defendant would do under the circumstances.

1. Physical incapacities can adjust the level of prudence.

2. Physical gifts may also adjust the level of prudence upward.

3. Mental Incapacity- total incapacity is the only allowable defense

a. They act à they harm à they pay

b. This is a small pocket of strict liability. It encourages estates to care for their charge.

4. Children are held to the capabilities consistent with their age:

a. < 7 – unable to be held negligent

b. 7 – 14 – consistent with age

c. >14 – refutably presumed to be competent

5. Emergency- treated as an additional circumstance.

6. Bethel v. New York City Transit Authority

a. Overturned Common Carrier idea in New York.

b. Not widely followed.

c. Stated that the reasonably prudent carrier was enough.

c. The Roles of Judge and Jury- Judges decide matters of law; juries decide matters of fact.

i. In General

1. Baltimore & Ohio Railroad v. Goodman

a. Where there is

of of Negligence

1. Constructive Notice- There is evidence that you should have known of the hazardous condition and you failed to account for it.

a. Dirty baby food on the floor.

b. No sound of broken glass.

2. Res Ipsa Loquitur (the thing speaks for itself) – Can be used as a rule of evidence.

a. Requirements:

i. Exclusive defendant control of the instrumentality.

ii. Must be an accident that doesn’t usually occur without negligence.

iii. No contributory negligence on the part of the plaintiff.

b. It is a rebuttable presumption of negligence the shifts the burden of proof to the defendant. The defendant must then prove that one of the above presumptions is false.

c. Plaintiff must show direct evidence of negligence if they can do so. They cannot ignore the presence of evidence.

3. Business model considerations- If your business model creates inherent risks of harm you must account for those.

a. Selling grapes from an open bin would require extra care to assure that spilled grapes on the floor are taken care of quickly.

4. Negri v. Stop and Shop

a. As a customer you owe me a standard of care because you are receiving an economic benefit.

b. Constructive notice.

5. Gordon v. American History Museum

a. No constructive notice because there was no evidence that the paper had been there for a lengthy period of time or that their business model was consistent with something that would create a constant hazard.

6. Byrne v. Boadle

a. R.I.L. case

i. Barrel was in the exclusive control of the defendant.

ii. Barrels don’t fall out of windows unless someone does something negligent.

iii. Byrne was just walking down the street and therefore there was no contributory negligence.