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University of Kentucky School of Law
Davis, Mary J.

General Policy
General goals
Consistency of the law, social insurance, fault allocation, fairness, deterrence/accident prevention, corrective justice.
The key question in tort liability is: when to shift losses from the person on whom the loss fell to the person who caused the loss?
No liability system: each person is in charge of preventing their own injuries/losses
People feel paranoid regarding their own safety
People feel no responsibility for the safety of others
Absolute liability system: loss lies on the actor
Holmes: this punishes for acts where the evil can’t be prevented or foreseen
Reduces interactions as well because people are paranoid for the safety of others.
Degree of social utility outweighs the risk created by the choice to act, generally.
Posner’s view: balance the social utility of the activity against the risk created by the choice to act
For what types of wrongs do we want to provide redress?
Intentional torts
Unintentional torts
Negligence: fault basis of liability
Strict liability: non-fault-based.
Hammontree: events that are less foreseeable are less likely to be considered negligent.
Rejecting strict liability: auto accidents distinguished from products manufacturing.
Negligence Generally
Elements of a prima facie case
Act or Actionable Omission (when under an affirmative duty to act) by Defendant
Duty of Due Care
Reasonable care under the circumstances to prevent creation of an unreasonable risk of foreseeable harm.
Objective standard, the key question is how the reasonable person of ordinary prudence would have acted.
Considers foreseeable risks of injury.
Considers the extent of risks posed by his conduct.
Considers the likelihood of a risk actually causing harm.
Considers whether alternatives to his proposed conduct would achieve the same purpose with a lesser risk.
Considers the costs of various courses of action in determining what is reasonable.
Bethel: reasonable person isn’t infallible.
Breach of duty (lack of due care)
Actual Cause (cause in fact)
Proximate Cause (legal cause)
Negligent Acts
Act/omission by ∆ + duty of due care owed to the π + breach of duty by creation of unreasonable risk of harm=Negligent Act
Causation and damages must also be satisfied for liability for the negligent act, to establish “negligence.”
Standard itself: always reasonable care under the circumstances.
Adams v. Bullock: Cardozo says there is in negligence a duty to “adopt all reasonable precautions to minimize the resulting peril.” Duty was not ignored because:
accident wasn’t foreseeable
no similar accident had occurred before
wires could not be insulated
there was public benefit to the trolley- Burden of preventing the accident was unreasonable.
Risk of harm: more foreseeable risks of harm and greater amounts of harm require greater care (but still “reasonable person” standard)
Emergency: certain conduct is acceptable in emergency but not in nonemergency situations.
But an increasing number of states are refusing the grant emergency instructions in negligence cases. Levey v. Denardo.
Common carriers: owe “utmost care” (Andrews v. United Airlines, Bethel v. NYC Transit Authority)
Level of potential harm is greater
Potential liability incentivizes common carriers to exercise the “highest degree of care”
Does history weigh into assessment of reasonable care?
Absence of previous accidents doesn’t prove that future accidents aren’t foreseeable (e.g. juggling nitroglycerin bottles)
Dependent upon proof of the circumstances:
Custom: admissible as evidence but never conclusive of due care.
Focus on the custom when the event occurred, not the present.
Advantages to custom:
Reliable- industry standards, research and development renders expertise in setting standards
Notice that people are operating in a particular manner- whether actual or constructive
Feasibility of a particular precaution
Proof of compliance with custom may indicate that an adverse decision will affect many people (i.e., industry changing its standard of conduct) + show there’s no better alternative to perform the task.
Proof of deviation from custom may aid the π because it shows that a finding a negligence will not upset an industry practice and show that an alternative safer course of conduct existed and the ∆ knew/should have known of the custom.
When dangers can be removed by a customary way of doing things, this custom may prove lack of due care.
Statute: compliance is admissible as evidence but never conclusive of due care.
Non-compliance with a statute can be used:
Jury can use it as some evidence of negligence.
Prima facie negligence case evidence
Violation of a safety statute may be negligence per se.
Martin v. Herzog-
Action in question under the statute is unexcused.
Violation of statute must be willful and heedless.
Unavoidable accident causing a violation of the statute may constitute negligence per se.
Violation itself has to cause the injury.
Under 2nd Restatement § 286, a court might adopt as a standard of conduct a statute whose purpose is:
to protect a class of persons which includes the one whose interest is invaded
to protect the particular interest which is being invaded
to protect that interest against the kind of harm which has resulted
to protect that interest against the particular hazard from which the harm results.
Statutory violations don’t establish liability if the intent of the statute is to protect against a particular hazard that was unrelated to the actual harm that occurred.
Licensing statutes have not been used to establish a standard of care because their purpose is to protect the public from actions by unskilled persons.
π has to show that the ∆ lacked the required skill, thus proving negligence.
The Learned Hand Formula: B < PL (United States v. Carroll Towing)
Reasonable person takes precaution against injury if the burden of doing so is less than the severity of loss if the injury occurs multiplied by the probability that the injury will occur.
Risk-benefit balancing:
∆’s conduct will be considered unreasonable (and th/f negligent) if the magnitude of the risk that would be perceived in advance by a reasonable person in the ∆’s position outweighs its utility.
Cost of safeguarding against the risk must always be measured by anticipated likelihood and gravity of damage.
In risk/utility test,

Negligence is attributable to the defendant or instrument in the defendant’s control.
“Exclusive control” standard- (Byrne v. Boadle)
(More common view) Whether the injury to the π is one that the ∆ owes a duty to guard against.
Res ipsa inference allowed against multiple defendants (restricted often to medical defendants)
Ybarra case- π, while under anesthetic, sustained shoulder injury during an appendectomy. Res ipsa loquitur was held applicable against all doctors and hospital employees connected with the operation, even though there was no proof when the injury occurred or which ∆s were present at the time. Each ∆ was charged with a duty to guard against injury to π.
Ybarra std. rejected in most jurisdictions today.
Policies for:
Plaintiff does not know what happened while he was unconscious, he shouldn’t be left remedy-less.
Res ipsa gives innocent defendants incentives to come forward to explain what occurred.
Here, res ipsa functions as a better alternative than absolute liability.
Plaintiff or third party did not contribute to plaintiff’s injuries.
No inference of negligence if plaintiff’s own conduct (or a third party for whom defendant is not responsible) could be as likely a cause of the accident as defendant’s conduct.
Effect of establishing res ipsa loquitur
Majority view: inference of negligence is permissible
A conclusion that the trier of fact may choose to draw from the facts.
Res ipsa establishes prima facie evidence of negligence- jury can still find for defendant and reject the inference.
But sometimes facts can be so strong that an inference must be drawn if not rebutted.
Minority view: presumption of breach of duty
Here, the burden shifts to the ∆ to give a satisfactory explanation of how the injuries occurred, by a preponderance of evidence
If defendant fails to prove this, plaintiff is entitled to directed verdict on liability.
Minority view: “disappearing” presumption
If defendant can simply produce evidence sufficient to sustain a finding of fact in his favor, the presumption has no further evidentiary effect
Burden of proof is back on the π to persuade the trier of fact that the ∆ breached duty of care under the circumstances.
The Reasonable Person Standard- Special Groups
minors are held to the reasonable person standard, with age, intelligence, and experience of the individual being considered as part of the circumstances.
Minimum age (majority approach- 4, minority approach- 7 with a rebuttable presumption that children between 7 and 14 are incapable of being negligent).