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University of Mississippi School of Law
Pittman, Larry J.

FALL 2005
TORT –A civil action, other than a breach of contract, for which the law provides a remedy; involves a harm to individual property or some vested interest…seeks damages for actions of another party.
            Purposes of Tort Law:
(1)Compensate people who are injured
(2)Deter future conduct of like behavior
Chapter 4: Negligence
NEGLIGENCE – Conduct falling below the standard of care established by law, society, custom, or courts set forth for the protection against the unreasonable risk of harm to others
Degrees of Negligence:
·        simple negligence – slight deviation of care
·        gross negligence – failure to exercise even slight care
·        willful, wanton conduct – intentional or reckless disregard; may receive punitive damages
Three main ways to prove negligence:
(1)Res Ipsa
(2)Circumstantial Evidence
(3)Direct Evidence
Elements necessary for a CAUSE OF ACTION:
(1)DUTY – to use the care of a reasonably prudent person in same or similar circumstances.
Duty comes from 4 sources:
(a)Common Law – RPP standard is the general rule
(b)Statutes that are Legislative enactments adopted by a civil court
(c)Statute itself gives a civil liability cause of action
(d)Judicial pronouncement as to what one’s duty is (Eye Pressure Exam)
(2)BREACH – failure to conform to the required standards; violation of a duty
(3)CAUSATION – a reasonably close causal connection between the conduct & injury; breach MUST cause the injury!
2 Types of causation:
      (a) Cause in Fact
      (b) Proximate/Legal Cause
(4)DAMAGES – actual loss or damage to the interest of another
Justice Learned Hand’s “Negligence Formula”:
Liability depends upon whether:            RH + LH > BP
If the risk is > than the burden of precaution, a RPP must undertake the burden to             prevent the risk. BUT, if the risk is unforeseen, there is no duty to prevent it. You need merely a possibility of harm, not a probability.
Foreseeability applies here to the likelihood of the harm, as well as under proximate cause.
Restatements Formula:
§ 291- Unreasonableness; How Determined; Magnitude of Risk and Utility of Conduct
–        Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the ri

Standard (MS/Majority) – asks whether a RPP would have acted in             same/similar circumstances
Subjective Standard (Minority) – ask whether one individual would have refrained from a certain activity
Knowledge: 2 types:
1.Knowledge through observation- if shipper saw threads through observation.
2.Constructive knowledge- if something is open/obvious…whether you’ve seen it or not…you will be expected to notice it.
Custom-The manner and means by which an industry performs a certain task.
This can be used to establish a standard of care; especially in the case of industries or professionals; may need an EXPERT to tell us this (TRIMARCO – custom to replace glass door w/ shatterproof door). A custom is not a matter of law, but is a matter of fact for which evidence is presented to jury to decide. Therefore, the jury decides (a) reasonableness of custom & (b) whether the had a duty to abide by the custom. Just b/c