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University of Kentucky School of Law
Davis, Mary J.



Fall 2015

I. Introductory Principles

Someone claims they have been harmed by another and looks to the law for relief
Primary concern in tort law is whether or not compensation should be paid to injured parties
90% of the time loss lies where it falls, tort liability is about allocating loss to the party best suited to handle it in the 10% of cases were loss does not lie where it falls
Two broad theories for tort liability: Negligence and Strict Liability
Strict liability does not depend on negligence, but is based on a duty to compensate harm directly caused by an activity or behavior
Negligence is failure to exercise a standard of care any reasonable prudent person would have in the circumstances.

A negligence claim carries with it a sense of fault and denotes a culpable carelessness, wrongfulness, and blameworthiness on the actor

Justice Holmes is critical of a strict liability approach. He believes acts are inherently good and a theory of strict liability would disincentive people from acting in society. His view showcases a utilitarian thinking about the law; that by maximizing acts we are ultimately maximizing utilities in society. He argues for a fault-based system of liability where harm must be foreseeable from actions for liability to attach.
Justice Posner argues for a system of negligence under an economic theory. He finds the dominant function of the tort fault system is to bring the most cost effective solution. If it would be cheaper to prevent a negligent act then to allow it, prevention should be done. However, if the cost of prevention would have been more than the cost of the accident it reasons that an actor should not have to implement prevention.
Issue of Respondent Superior: holding an employer liable for the actions of its employees while acting within the scope of their employment. A form of vicarious liability. Three elements are required to show someone is acting within the scope of their employment:

Conduct must be of the general kind the employee was hired for
Conduct must occur within hours and ordinary spatial bounds of employment
Conduct must be motivated in part by the purpose of serving employer’s interest

II. The Negligence Principle

A. Introductory Principles

1. Negligence is the failure to use ordinary, reasonable care to avoid injury to others in the circumstances

a. Ordinary care is the kind and degree of care which sensible and cautious men would use, as required by the particular circumstances of the case, and necessary to prevent probable danger.

b. The burden to prove ordinary care is on the plaintiff.

c. This is the basis for liability for unintentionally caused harms

d. When evaluating whether reasonable care was used, economic factors may be considered.

(1) Adams v Bullock: Trolley operator used reasonable care to prevent injury in his placement of overhead trolley lines. The only way to prevent injury in this case would be to place wires underground. The financial burden this would place on the defendant outweighs its benefit in preventing injury.

(2) US v Caroll Towing: Judge Hand advocated a risk calculus analysis. If the burden on the defendant to implement reasonable care (B) is less than the probability of injury (P) times the severity of resulting injury (L) then reasonable care is expected. B < PL

(a) This is a case by case analysis; every situation is different so there can be no general rule

(b) Cost-benefit analysis to evaluating reasonable care

e. Usual standard for evaluating ordinary care is that of a reasonable prudent person in the circumstances.

(1) Takes into account, specific facts of the case

(2) External, objective standard to judge actions

(3) Who is the reasonable prudent person?

(4) Mental capacity is not evaluated and considered

(5) Physical attributes are considered

(6) Age is also considered; typically there is no negligence for defendants under the age of 7, a presumption of no negligence which can be overcome for children age 7-14, and children over 14 are regarded as adults

f. Negligence evaluates unreasonable conduct that creates foreseeable risk.

2. Once a particular risk has been identified to cause injury, a defendant may have a duty to take extra precautions to prevent future injury.

3. The higher the resulting peril of a negligent act may be, the greater the level of care required. A higher level of care is required for more destructive instruments.

4. There are four requirements to sustain a negligence cause of action. The plaintiff must prove: (1) there was a duty to exercise reasonable care; (2) that duty was breached by the defendant; (3) the breach of duty caused the plaintiffs injuries; and (4) there are recoverable damages that result.

B. Role of the Judge and Jury

1. Standard of care to be applied is a question of law for a judge to decide

2. Whether or not the facts, circumstances, of a case conform to the applicable standard of care is a question of fact for the jury

3. In the case of common carriers (airlines, buses, other modes of transportation) which owe the highest degree of care, it is for a jury to decide whether that standard of care was met. Did the airline in Andrews do everything in its power to prevent injury to passengers from overhead baggage shifting during flight?

C. Role of Customs

1. Customs can be some evidence of reasonable care to follow, but are not conclusive proof that reasonable care was not followed.

2. What duty a defendant has to exercise reasonable care is set by a reasonable prudent person standard. Particular customs in an industry may be evidence of what ought to be done, but reasonableness is still the standard.

3. Customs must be evaluated to determine if they are reasonable by the jury.

D. Role of Statutes

1. When a statute is silent on its role in civil litigation (as most are) a court will decide its relevance. When the legislature has assigned relevance to civil action in the statute it cannot be ignored by the court

2. A statute may imply a right of action under Restatement § 286 when it is designed to:

a. protect a particular class of persons

b. protect particular interests

c. protect against a certain kind of harm

d. protect against a particular hazard

3. The statutory purpose may be relevant.

a. If the statute is a safety statute which defines a standard of ca

ndant to show his actions where not negligent.

d. The exclusive control requirement does not necessarily mean physical control, but simply a right to control.

(1) Example: In Ybarra v Spangard the plaintiff was “out under” for medical treatment, and could not prove which plaintiff had actual physical control of the instrumentality that caused his injury, but he could show all defendants had exclusive right to control the instrument.

(2) All defendants who had the right to control the instrumentality which may have caused the injury may be called upon to meet the inference of negligence and explanation of their conduct.

e. Res Ipsa especially useful in circumstances were common-sense tells us that but for the failure to exercise reasonable care the accident would not have occurred.

(1) Examples where it is not useful: tire blow outs and falling down stairs – common experience tells us these things do happen absent negligence so an inference is not permitted.

(2) Examples where it is useful: Object’s falling from defendants property (flour falling from second story window), fall of an elevator, escape of gas/water/electricity, explosion of a boiler, derailment of a train – common experience tells us these things do no happen generally without negligence and the use of res ipsa may be allowed

(3) The court has said res ipsa is especially applicable in “wayward wheel cases” because common experience tells us with the thousands of automobiles that use our streets, we do not expect the air to be filled with flying tires

f. Res Ipsa in medical negligence cases:

(1) Commonly used where the patient is unconscious and the only one who knows what happened is the defendant.

(2) Because of the defendant’s superior knowledge of the incident, courts are more willing to infer negligence when the defendant has exclusive control (or right to control) over the instrument which likely caused injury.

(3) Generally, when an inference of negligence through res ipsa is established in medical malpractice suits, it is up to the defendants to prove their actions where not negligent, since often the plaintiff was unconscious and unable to offer proof of negligence.

(4) Expert testimony is an essential element to proving a standard of care in medical malpractice suits. Where historically a “similar locality” rule was applied in allowing experts to testify for medical negligence cases, that is no longer the case. Typically, any doctor with knowledge or familiarity with the procedure may testify as to the applicable standard of care and whether it was deviated from.