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University of Mississippi School of Law
Pittman, Larry J.

Larry Pitman – Section 1 – Fall 2013
Outline of a Tort Lawsuit:
1.    FIle a complaint stating the facts as are related to your client’s case.  At this time, you must state the elements:  Duty, Breach, Causation, Damages.
2.   The Defendant must then file an answer.  The answer must:
a.   Respond or address each and every allegation the plaintiff has made (admit, deny or state you have a lack of sufficient knowledge to admit or deny
b.   Lay out the Defendant’s affirmative defenses (statute of limitations, plaintiff assumed the risk, etc)
3.   Status Conference before the judge
4.   Formal Discovery
a.   Interrogatories
b.   Request for Production of Documents
c.   Depositions
d.  Request for Admissions
5.   Motion for Summary Judgement filed by either side
a.   Even if everything they said is true, they still don’t have a cause of action.
6.   Trial
a.   Plaintiff goes first.  Once rested,
b.   Defendant will request a directed verdict.  If denied,
c.   Defendant puts on his case
d.  Jury Instructions
e.   Jury Deliberations
f.    Jury Verdict.  Three Burdens applied by the jury:
i.     Burden of Pleading – applicable at the complaint and answer stage.  If the 4 elements are not stated, the burden of pleading is not met.
ii.   Burden of Production – MFSJ and Directed verdict stages of the trial.  Plaintiff must produce evidence to win his case
iii. Burden of Persuasion – in most civil cases, the plaintiff must prove his case by a preponderance of the evidence (51%)
7.   Losing party can appeal to the judge for a Judgement Notwithstanding the Verdict (JNOV)
8.   Loser can ask for a new trial
9.   If JNOV and New trial motions denied, the loser can appeal
10.              Appellate Court can reverse the decision
(1)   Duty
(2)   Breach
(3)   Causation
(4)   Damages
Risk of Harm (Gravity of Harm) + Likelihood of Harm + Burden of Precaution
RH (GH) + LH + BP
One is negligent when the risk is greater than the utility of the activity in question.
–   Look at the social value society places on an activity
–   The extent of the chance that this interest will be advanced by the activity
–   The extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct
            Magnitude of Risk
–   Social value the law attaches to the interests which are imperiled
–   The extent of the chance that the actor’s conduct will cause an invasion of any interest of the other or one of a class of which the other is member
–   The extent of the harm likely to be caused
–   The number of persons who are likely to be harmed by the activity
Lubitz v. Wells
–   Facts:  Defendant left a golf club in the backyard where his son picked it up and injured a friend
–   Court found not negligent
–   RH (low) + LH (VERY low) + BP (low)
Blyth v. Birmingham Waterworks
–   Facts:  Water main busted during a severe freeze
–   Court found not negligent
–   RH (moderate) + LH (so incredibly low) + BP (VERY high)
–   Company in MS not expected to build to sustain WI temperatures
Gulf Refining Co v. Williams
–   Facts:  Defendant sold drum of oil to plaintiff.  Upon opening, the drum burst into flames
–   Court held Defendant negligent
–   RH (VERY high) + LH (moderate) + BP (low)
–   When the risk of harm is so great, it takes only a small likelihood to be held liable.
Chicago v. Krayenbuhl
–   Facts:  An unlocked railroad turnstile located in close proximity to a walking path caused a child to lose his foot
–   Court

–   Duty becomes what would a RPP do in an emergency situation.
Roberts v. State of Lousisana
–   Facts:  Blind man working in a state building. Walking to bathroom without his cane. 
–   RULE:  Disabled persons must act as the RPP with the same or similar disability would in same or similar circumstances.
Robinson v. Lindsay
–   Facts:  Defendant was a 13 year old child driving a snowmobile when he injured the plaintiff.
–   RULE:  If a child is performing an inherently dangerous, adult activity, he can be held to an adult standard.
–   Further child standards
–   NORMALLY children are held to the standard of a child of the same age, intelligence, maturity, training and experience
–   Location of the activity matters (child driving a tractor in MS may not be negligent, but in Washington DC, yes)
–   Rule of 7
–   under 7 deemed to be incapable of negligence
–   7 to 14 years of age: presumed to be capable of negligence, but may be proved to be negligent
–   over 14 years of age:  presumed to be capable of negligence, but may be proved incapable of negligence
Breunig v. American Family Insurance Co
–   Facts:  An accident occurred when the driver was suffering from a dellusion
–   RULE:  A person who is overcome with a sudden mental incapacity is held to the standard of a RPP with a sudden mental incapacity.
–   similar to physical incapacity of a heart attack, seizure, stroke, etc
–   MINORITY RULE – most states do not use.