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University of Kentucky School of Law
Davies, Julie M.

Torts Davies Fall 2015

Unintended Injury Results in Tort Liability

Hammontree v. Jenner

Liability for Unintentional Injury


Deterrence, risk reduction, creates incentives, compensation

Fault system: negligence

Holmes: Loss where it falls

Created disincentive to action (which benefits society at large)

We don’t want to discourage making choices

The Litigation Process
The Parties and Vicarious Liability

Christensen v. Swenson D worked for Burns and ordered food at a nearby restaurant and drove her personal car to pick up the food. D had auto accident. P sought damages for negligent driving from D and D’s employer. Rule: Apply Berkner test to determine if employer is liable. Because reasonable minds could differ whether the trip to the café fell within the Berkner criteria, summary judgment was not appropriate.

Respondeat superior: employer is responsible for employees actions if within the scope of employment
Berkner Test:

Conduct must be generally what he was hired to do, doing duties assigned (as opposed to being wholly involved in a personal endeavor)
Must occur substantially within the hours and ordinary spatial boundaries of the employment
Must be motivated, at least in part, by serving the interest of the employer

Reasoning: Economic incentive

Can spread losses across enterpirse (like products liability)
Vicarious liability will encourage employers to select well, supervise well, and discipline employees

This won’t necessarily solve liability issues

Could give incentive to consider alternatives such as reduction or mechanization

Negligence Principle

Historical Development

Brown v. Kendall (p. 36) D hit P in the eye with a stick while trying to break up a fight between the D’s and P’s dogs. P argues bc D obviously trespassed, I should recover. Court: more than trespass is required, must show lack of due care to recover. Rule: P should have to prove lack of due care. (If not, everyone would sue.)

Definition of ordinary care: that kind and degree 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.
Holmes: Industry does not benefit from strict liability; discouraging acts limits society

Central Concept

The standard of care (negligence = breach of the standard of reasonable care)

Adams v. Bullock (p. 39) D operates trolley line on overhead wire system. P boy was walking on a bridge and swinging a wire which hit trolley line and shocked P.

Negligence is usually a question of fact to be found by the jury (this case court said as a matter of law the original verdict cannot stand)
Only alternative here were underground lines—would be an enormous task to change entire system
The standard of care: Duty to adopt reasonable precautions to “minimize resulting perils” (not to prevent risks)
Should anticipate the risks from your acts and act accordingly
No special danger, no similar accident, no custom disregarded…
With increased risk, must use increased care

“reasonable care in the use of a destructive agency imports a high degree of vigilance”
a remote and needless chance of harm can result in negligence

Braun D hung electric wires above vacant lot with insulation expected to last 3 yrs. They were never inspected. 15 yrs later a building was started on the lot. Court: D could have foreseen the building being built there, and should have taken precautions to ensure the safety of the wires.

Greene P tripped over D in a store. No negligence because D would have needed extraordinary foresight to suspect that P would trip over him. (D normally would expect that P saw him in the floor, no duty to warn bc unforeseeable.)

U.S. v. Carroll Towing (p. 43) D, Carroll, a tug boat, did not hold the Anna C properly. Anna C broke away and damaged a tanker, that sunk and lost all of its cargo. Rule: B > PL, then no negligence.

Created Hand formula (risk calculus):

Burden of precaution (B)

Can look at custom to help determine burden

Probability of harm (P)
Gravity of injury (L)

More difficult to measure—use the foreseeable risk of harm at the time the D was acting (not the actual harm that occurred)

The burden of having a bargee on board was less than the probability of an accident and the gravity that could occur.

b. The reasonable person

Bethel v. NYC Transit Authority (p. 49) D’s wheelchair accessible on bus seat collapsed under P. Court does not apply the utmost duty of care for common carriers bc outdated. (Unusual finding.) Rule: Reasonable person under the circumstances.

Circumstances: external circumstances (what we can see)
Circumstances: measured objectively (with exceptions)

Exception: physical ability of actor (ex: blindness)

We can usually see the physical conditions and can act on them

Mental ability is not an exception

Because: makes the rule too vague

Difficult to draw a line
Easy to fake it
D shouldpay for damages in the world he lives in
Encourage people to look after them

Some jurisdiction treat this differently

Superior attributes: must be held to your superior attributes (ex: doctor?)
Children: must exercise care that a reasonable child of their actual age, intelligence, and experience would exercise (this isn’t the same for the elderly)

Use subjective first: determine what the child actually did
Then objective: what a reasonable child… would have done (and compare)

Less than 7: no negligence can be found
7-14: rebuttable presumption: Pcan prove negligence against the person’s age

Most jurisdictions: parents aren’t vicariously liable

Parents can be negligent in supervision though

Inexperienced people: shouldn’t matter your experience


atutory purpose and see if it’s relevant to the case
Compliance with the statute doesn’t necessarily = reasonable care
Following the statute in this case could lead to more danger (therefore, not contributory negligence)
Lack of liscence does not equal negligence

P must prove D lacked required skill (negligence)

Harm that occurs must be of the type that legislation was seeking to prevent

Ex. P was supposed to keep sheep separated in pens on boat to keep disease down.Sheep drowned. Not negligent because statute wasn’t to protect that type of harm.

Proof of Negligence


Real (photo)
Direct (lab results )

Slip and Fall (Constructive Notice)

Negri v. Stop and Shop (p. 86) P slipped on broken baby food in D’s store. Evidence that time had elapsed since the jars broke. Rule: Jury should be allowed to analyze the circumstantial evidence to determine if notice was given to D.

Gordon v. American Museum of Natural History (p. 86) P fell on D’s front step after slipping on paper. Rule: To constitute sufficient notice a defect must be visible with sufficient time prior to accident.

A general awareness that a condition may be present isn’t enough to constitute constructive notice
Business practice rule: need not establish constructive notice when the business practice provides continuous and foreseeable risk

Res Ipsa Loquitor

Event must be tied to the D and
Must be an event that normally doesn’t occur without some negligence

Byrne v. Boadle (p. 90) P was struck from a barrel falling out of window as he walked past D’s flour shop. There was no proof of negligence. Rule: The fact that there is an accident at all is prima facie evidence of negligence in some cases—Res Ipsa Loquitor.


D had control of the barrels, so he had a duty to not cause accidents
D has the evidence (unavailable to P)

Possible Effects of RIL:

Prima facie evidence (supports negligence, not compels)
Rebuttable presumption of neg.: D must come forward with evidence or negligence is presumed (minority view)
Presumption of negligence and shifts the entire burden of proof to the D

Must prove that the injury was not a result of his negligence

Res ipsa wouldn’t apply in Negri or Gordon because direct control over the baby food and paper isn’t in control of the D