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University of Mississippi School of Law
Pittman, Larry J.



Fall 2015 (finals checklist at bottom)


1. Negligence: Any conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. (Restatement 2d Torts §282) (Negligence is inattentive behavior that does not have intent).

2. History

a. Emergence of professionals in public callings

b. Rise coincided with Industrial Revolution

3. Elements of a Cause of Action

a. DUTY – owed by D to exercise reasonable care; obligation recognized by law

b. BREACH – failure to conform to req’d std.

i. D could be negligent but not liable if he was under no duty to P

c. CAUSATION – reasonably close causal relationship between D’s conduct and resulting injury to P


e. All elements must be present for someone to be liable for negligence!

f. A judge imposes a duty of care, a jury decides if the defendant has breached that duty.

i. DEFAULT: Judge states duty generally – RPP in same or similar cirumstances – and leaving specific terms to jury.

ii. Sometimes judge states duty in specific terms.

4. A Negligence Formula

a. Unreasonable Risk – A person is bound only to use care that is matching with the hazard involved. The risk reasonably perceived defines the duty owed.

i. FORMULA (Learned Hand): What is the liklihood of harm, the gravity of harm and the burden of precaution? (LH + GH + BP)

1. 90% of time, Courts will use Menlove Standard. Rarely will they establish a new DUTY using Hand Formula.

2. Jury uses Hand Formula to make decisions on BREACH

3. Courts don’t like imposing BP on people. Even if LH is low, GH is high (ex. Earthquake proofing Square; tornado proofing CA)

ii. Possibility versus Probability: Lubitz v. Wells

1. Did not breach duty by leaving the golf club in the backyard (specific duty from judge)

2. GH small, LH is small, BP is small

3. If it was a shotgun the situation would be much different

4. Sometimes when the GH is so great and the LH is small (even 1%), there is still a breach of duty (mere possibility of something happening is enough *think leaving loaded gun unattended*)

5. Golf club not obviously and intrinsically dangerous [compared to shotgun or garden hoe]

6. If probability >50%, then D should have foreseen

7. BP in this case is small – how hard is it to put up your golf clubs?

iii. Unusual Conditions: Blythe v. Birmingham Waterworks Co.

1. D built the pipe according to the weather standards of the region

2. Duty – reasonably prudent person wouldn’t build for extreme weather (specific duty)

3. Breach – no duty to breach

4. Not foreseeable

iv. Foreseeability: Pipher v Parsell

1. Passenger grabs steering wheel once, no action by driver to reprimand or remove from vehicle

2. Grabs wheel again, causes accident

3. Driver owes duty to passengers if foreseeable some injury might occur

4. First grab was unforeseeable, but second grab wasn’t.

v. Gulf Refining Co. v. Williams

1. Defective bung cap case

2. RH gasoline fire so great that a small LH is irrelevant

3. When BP is small too, a reasonably prudent person should have been more careful

4. Probability v. Possibility – possibility +of serious injury makes the risk HIGH (must consider all possible injuries/harm)

b. Justified Risk – Tort law does not require elimination of all risk. Life cannot be made absolutely safe. The utility of a product must be balanced against the risk it presents.

i. Utility versus Harm: Chicago, B. & Q.R. Co. v. Krayenbuhl

1. GH is high, LH medium (near footpath), BP is small (just lock when not in use)

2. Determining the Burden of Precaution (BP):

a. Character and location of premises

b. Purpose of use

c. Probability of injury

d. Precautions to prevent injury

e. Relation of precautions to beneficial use of premises

3. The turntable is not so dangerous that the RR company is negligent for merely having it – PUBLIC UTILITY (social value)

a. Negligence for merely having something vs. manner in how you use it

4. Utility > Harm

a. Grenade in classroom


ii. Knowledge: Davison v. Snohomish County

1. On-ramp guardrails case – driving over the cliff

2. GH is medium, LH is low, BP is HIGH

3. Cost to society can sometimes negate LH and RH

4. Utility > Harm

5. No specific duty of town to make guardrails strong enough on approaches to bridges to prevent cars from falling off

a. Too costly

b. Technologically not feasible

i. Changes in tech. over time changes facts of case.

6. Directed verdict for D.

iii. Possible harm great. When the risk is serious (possible harm great), the possibility that the injury will occur need not be high for the duty to guard against it to arise.

iv. The Hand Formula: United States v. Carroll Towing Co.

1. Breakaway barge with no bargee present

2. Both parties had a duty to use reasonable care to avoid damage to the barge

3. Breach occurred when they failed to do what a RPP would have done – or they did something that a RPP would not have done

4. There was a lot of risk around an unattended boat in busy waters

5. BP on Individual; if burden on individual is greater than LH and GH, then there is no duty – here, LH+GH > BP

c. Another test for negligence:

i. Risk is greater than the utility of the activity à R > U

ii. To determine Utility…

1. Social value which the law attaches to the interest which is to be advanced or protected by the conduct

2. Extent of the chance that this interest will be advanced or protected by the particular course of conduct

3. Extent of the chance that such interest can b

w jury treats it

7. Evidence of custom to prove reasonableness: Trimarco v. Klein

a. Shattering glass shower door

b. D should have followed custom by replacing ordinary glass door with safety glass door – duty to follow custom

c. To prove negligence based on custom:

i. Proof of custom and usage

ii. Custom must be reasonable

iii. Person must be informed of custom

iv. Custom can’t be illegal

iv. Emergency. The reasonable person confronted with an emergency may act differently than he would if there were no emergency. Emergency conditions are added to the circumstances that are taken into consideration in determining how a reasonable person would act when confronted with the situation. One has the duty to act as a reasonable prudent person under the same emergency situation/conditions. (Still an objective standard)

1. Two types of emergencies: (1) Your own personal emergency, and (2) the one occurring as a result of your actions in your own personal emergency

2. Must still analyze situation with RH + LH + BP and R>U

3. Must still use CARE

4. No Liability for Quick Response: Cordas v. Peerless Transportation Co.

a. Cab case – alleged negligent act was jumping out of the moving cab


c. RH is great and LH is great

d. Fight or flight (it’s okay to flee)

e. D cannot have created the emergency to plead the exception

f. If emergency is anticipated, may be negligent

5. Caveat. The emergency doctrine is limited. It does not apply when D creates the emergency himself or when he should have anticipated.

v. Physical Attributes/Disabilities The physical attributes of the reasonable person are deemed to be identical to those of the actor. This applies to all disabilities which would prevent a person from carrying out normal everyday activities (i.e. shortness, tallness, obesity, paralyzed, loss of taste)

1. Blindness: Roberts v. State of Louisiana

a. A disabled person must take the precautions that the ordinary reasonable person would take if he were blind.


c. What would a RPP do who is blind in the same or similar circumstances?

d. Here, blind person not negligent because acting as a RP BLIND P would act

e. Intoxication is NOT a disability…