Select Page

Torts
University of Mississippi School of Law
Weems, Robert A.

Torts I

Robert Weems

Fall 2011

University of Mississippi School of Law

1. Duty

a. To do what a RPP would do under the circumstances to avoid unreasonable risk to others; to use reasonable care.

b. Duty owed if a foreseeable risk to P is created by D’s conduct.

c. Duties are determined by law (by a judge), not by a jury.

2. Breach of duty = Negligence

a. Failure to conform to the required standard

b. Requires P allege and prove D did some specific act that breached his duty.

c. Breach of duty questions

i. What was the duty?

ii. What was the specific act of negligence?

iii. Would a reasonably prudent person have done that under these circumstances?

d. Ways judge can answer the breach of duty question

i. A reasonable person wouldn’t have acted that way, so directed verdict for P

ii. D was not negligent, so directed verdict for D

iii. Maybe, reasonable minds could differ, so goes to jury

1. Causation

a. Must be a reasonably close connection between the conduct and resulting injury

b. Cause in fact

i. “But for” test (or substantial factors)

c. Legal cause

i. Forseeability

2. Damages

a. Actual loss or injury must be the result to recover damages.

THE NEGLIGENCE FORMULAS

1. Risk vs. Burden of precaution formula

a. If risk outweighs the burden of precaution, then it’s reasonable to take on the burden of precaution.

2. Hand’s formula (subjective analysis)

a. Take the probability injury will occur (risk) and the severity of the resulting injury.

i. If those outweighs the burden of precaution, then RPP wouldn’t do it

1. P * S > B —— There’s negligence

ii. If the burden of precaution outweighs those, then an RPP would do it, and there’s no negligence if someone does.

1. P * S < B —— There’s no negligence

3. Restatement formula

a. If the probability of injury outweighs the utility of the act, it’s negligent

b. Court looks at the social utility of the risk in determining negligence.

i. Utility measured by balancing advantages and disadvantages

c. Foreseeability of risk

i. Restatement indicates there’s some acts a RPP wouldn’t recognize as a risk

I. STANDARD OF CARE (THE DUTY ELEMENT OF A C/O/A)

1. Standard of care – To act as a RPP would act under the circumstances.

2. RPP test – Objective (not based on an individual’s best judgment; not subjective)

3. What should a RPP know?

a. Things everyone knows, common acceptance of danger

b. Facts a person should know b/c of inspection that a RPP would make.

4. If an RPP would not recognize a risk, then it’s not foreseeable, then no negligence.

5. Custom and usage

6. For emergencies

7. For physically handicapped

8. For insane

9. For minors

10. For professional

STANDARD OF CARE: CUSTOM AND USAGE

1. Common practice of a particular industry or community as the standard of care

a. Evidence of custom and usage is admissible, but not conclusive.

b. Custom and usage must still be what a RPP would do (everyone may do it that way, but if it’s unreasonable, it’s still negligence).

c. Failure to adhere to a custom is irrelevant if one uses ordinary and reasonable care.

STANDARD OF CARE FOR EMERGENCIES

1. In an emergency not of the person’s own making, duty is to act as a RPP would in the same emergency situation.

a. Duty doesn’t change, only the circumstances

2. Emergency Doctrine

a. Exempts a person from the RPP standard if that person acted instinctively to meet a sudden and urgent need for aid.

STANDARD OF CARE FOR THE PHYSICALLY HANDICAPPED

1. Duty is to act as a RPP

a. General rule – Attorney who acts in good faith and in honest belief where his advice/acts are well founded/in best interest of his client isn’t liable for mere error in judgment/mistake in point of law that’s not been settled by the state’s court of last resort and that other attorneys have reasonable doubt about too.

1. There’s some questions in every profession that reasonable prudent members of the profession disagree on.

ii. Attorney isn’t liable if a sizeable portion of the profession would’ve done the same thing under the circumstances (usage and custom).

b. Minority (MS uses this) – Stop giving the good faith/best judgment standard because it’s too general and allows professionals to be ignorant.

5. Medical malpractice

a. Locality rule – Medical professionals are to be measured by the standard of conduct expected of other medical professionals in the same community.

b. Majority rule (including MS) – Adopts the national standard of care of doctors (abolishes locality rule)

c. Minority rule – Medical professionals are held to the standard of care found in a “similar community in similar circumstances.”

d. MS rule for doctors

i. MS doctors measured against doctors nationally who have the same facilities, services, equipment, and options available to them.

ii. P must give doctor 60 days notice describing doctor’s breach before filing suit.

iii. P must have an expert testimony saying D was negligent to file suit.

iv. Caps non-economic damages at $500,000

v. SOL is 2 years