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University of Mississippi School of Law
Pittman, Larry J.

Torts Outline
Prof. Pitman
Fall 2018
1. 4 Elements of Cause of Action pg. 140
Duty: RPP in S/SC to guard against unreasonable risk of harm to others. For both Δ and Π  
Breach: Failure to use RPP care OR acting like RPP wouldn’t
Duty + Breach = Negligent Behavior
Causation: Connection between the conduct and injury
      Causation in Fact + Proximate Cause.
Damage: Loss or Damage resulting to the interests of another
Negligence Formula pg. 141
LH+GH+BP [Carrol Towing] to establish duty when none existed, court imposed
Lubitz v. Wells- Object that isn’t obviously and intrinsically dangerous isn’t negligent to leave lying on the ground. Duty based on danger of the instrument.
Blyth v. Birmingham Waterworks- Risk perceived defines the duty of care. Average care under ordinary circumstances.
Pipher v. Parsell- Driver owes duty to passengers because intentionally or not, injury is foreseeable in a crash.
Driver owes duty to passenger for foreseeable injury.
Usually, when passenger’s actions that cause a crash aren’t foreseeable the driver isn’t negligent BUT when passenger’s actions that interfere w/ driver’s driving are foreseeable it may breach duty to passengers and public
Chicago v. Krayenbuhl- If an owner fails to take precautions a man of ordinary care and prudence would, under same/similar circumstances, he is guilty of negligence. BP may be too costly or impossible to use in certain situations.
Character and location
Purpose of use
Probability of injury
Precautions to prevent injury
Relation of precautions to beneficial use
Davison v. Snohomish County- BP may be too costly or impossible in some situations. There’s no duty of care above the existing technology of the day.
US v. Carroll Towing- Liability for negligence for failure to take precautions exists IF burden of precaution is less than probability of injury multiplied by gravity of resulting injury. B < P x L = Negligence liability       Restatement of Torts § 3 Negligence- A person acts negligently if they don’t use reasonable care under the circumstances. Primary factors to consider in determining if conduct lacks reasonable care are: 1. Foreseeable likelihood of harm 2. Foreseeable severity of harm that may occur 3. Burden of precautions to eliminate or reduce risk of harm     Standard of Care pg. 155   A. THE REASONABLE PRUDENT PERSON STANDARD OF CARE   Vaughan v. Menlove- (Haybarn) RPP standard is objective NOT subjective   General Knowledge and Skill: everyone is deemed to have certain minimum level of skill/knowledge and everyone is held to a minimum standard of care     Delair v. McAdoo- Drivers/car owners must know the condition of vehicle parts likely to become dangerous when the flaws/faults would be seen by a reasonable inspection.   Constructive Notice: thing you’re deemed to know whether you know them or not     CUSTOMS Trimarco v. Klein- CUSTOMS. Negligence when a custom/accepted practice + proof that ignoring it was the proximate cause of injury, must show: Proof of custom/usage is well defined in the field Jury must determine reasonableness of LH+GH+BP   Some precautions even if universally disregarded won’t excuse your neg for following   EMERGENCY Cordas v. Peerless Transportation- Emergency circumstances affect duty owed UNLESS they’re caused or foreseen by Δ. Standard is what would RPP do if faced with S/S emergency situation     PHYSICALLY DISABLED Roberts v. State of Louisiana- Disabled person held to standard of RPP with the same disability and must take precautions that person would. Disability is relevant to duty of care.   CHILDREN Robinson v. Lindsay- (Snowmobile & Kid) Child engages in inherently dangerous activity à adult standard of care Child engages in adult activity à adult standard of care Age standard: Child is usually held to standard of a child of same age, intelligence, maturity, training, and experience in same/similar circumstances.     MENTALLY ILL Breunig v. American Family Ins- Mental incapacity must be sudden AND unforeseeable to claim partial insanity   Most States: mentally ill people held to normal RPP standard   Doesn’t apply to self-inflected mental alteration like drugs and alcohol       PROFESSIONAL STANDARD OF CARE   If you have higher degree of knowledge, skill, or experience à held to higher standard of care   Professionals Must Have: Same Knowledge, Skills, Training, and Learning as ordinary pro in the same field Must apply same skills and learning with same care as commonly possessed by pro in the same field       Heath v. Swift Wings- RPPro is uniform/objective and DOESN’T change based on individual levels of training and experience               Degree of care does vary according to the circumstances though               MUST possess the knowledge, training, and skills of a RPPro in their same field   Duty of Professionals: Act with a minimum standard of competency Possess same knowledge and use due care Must use best judgement      Hodg

atient) for error in duty / not providing all needed info
Note 7. MD has –duty to warn patient if they’re sick UNLESS life threatening
Consulting MD, -treating/seeing patient, may owe limited duty from talk with 1st MD. Local Rules
Not all actions by MD are Malpractice, could be ordinary negligence
Equal Protection Clause- damages/pain recovery should be equal and not limited in MD malpractice claims.
Pitman doesn’t believe the Medical Malpractice Crisis is real.
Degrees of Care: Varies with the risks. High risk of danger = Higher Care
Known Dangers require highest degree of care / utmost caution of RPP
Degree of Negligence: differing types of conduct w/ differing legal consequences
Slight Negligence: Failure to use great care (bailment / common carrier context)
Ordinary Negligence: Failure to use RPP care in s/s circumstances
Gross Negligence: Failure to use slight care. Extreme Departure for RPP standard of care
Ordinary Negligence is used as the standard now
Willful, Wanton, and Reckless Conduct: Deliberate and conscious disregard for a know high chance of harm to another, based on D’s state of mind. Punitive Damages. Worse than gross negligence
Automobile Guests Statute: usually simple negligence BUT gross negligence can apply depending on situation. Unfair to apply gross negligence when a free guest would have to show that level of disregard, while paid guests only has to show simple negligence
Establishing Duty common law, rule of law, violation of statute
Common Law: RPP duty imposed by court
Rule of Law: court created standard basically rule of law. DUTY DEPENDS ON CIRCUMSTANCES and judge decided to adopt as RPP standard or not
Violation of Statute: Criminal/Civil statute used to impose duty
Majority View: violation of statute is Neg Per Se, Δ has defense of contributory neg and assumption or risk
Pokora v. Wabash Ry. Co- (RR Tracks) Duty depends on circumstances. Judge shouldn’t impose duty that an RPP wouldn’t follow.