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University of Mississippi School of Law
Weems, Robert A.

Torts – Weems
Fall 2006
Intro to Liability based on Fault
2 kinds of fault recognized by the law:
1) Intentional Fault—where you intend to cause the injury (called intentional torts—assault, battery, etc.)–∏ has to ∆ intended to cause the injury
2) Negligent—the person did something that a reasonable prudent person in those circumstances would not have done or failed to do something that a reasonable prudent person would have done
**An exception is STRICT LIABILITY—even though you didn’t intentionally do it and you didn’t negligently do it. These are anomalies and departures from the others.
Basis of liability: 1) Intentional Fault, 2) Negligence, or 3) Strict Liability
1st Semester we will study Negligent cause of action (n)—other 29 next semester.
4 Elements to a Negligence Cause of Action:
1) Duty
2) Breach of Duty
3) Proximate Cause
4) Damages
Hypothetical: X picked up a rock and threw it and it injured Y (don’t know why but assume that X didn’t mean to hit Y) not an intentional tort and not strict liability crime
Y will have to prove the 4 elements of the Negligence Cause of Action:
First, have to decide what duty, if any, X owed to Y—if any:
1) The judge will decide what duty if any X owed to Y –the judge will be guided by the law and the law as established by prior cases of the appellate court. The duty is expressed by the law in general terms and when the judge talks about duty the judge will not mention a rock. The issue will be something on which the parties disagree, duty is not an issue in vast majority of lawsuits. The judge is going to say that the defendant’s duty is WHAT A REASONABLE PRUDENT PERSON WOULD HAVE DONE UNDER THOSE CIRCUMSTANCES—provided that X is not a child and no other special circumstances exist. The Negligent duty that is going to exist in majority of lawsuits is the same (both parties agree to this definition of duty owed).
2) After duty is established, then in negligence lawsuit, ∏ is required to allege that the ∆ done some fairly specific thing that a reasonable prudent person would not have done under those circumstances.
3) Once duty is established and once ∏ has identified a specific act ∆ did or failed to do, then we can now frame the breach of duty aspect—would a reasonable prudent person not have thrown a rock under these circumstances—the trial judge will get the 1st shot at answering the question—the answer can be one of three things:
     a) the judge should say, yes, if she believes reasonable, prudent minds won’t differ (he/she would be ruling as a matter of law that this was negligence)—judge would grant directed verdict for ­­∏ on breach of duty issue,
    b)   In some situations, the judge would say no it’s not negligence…(for example out in the middle of the woods throwing a rock at a tree—thinking he’s alone and Y steps out from behind a tree)—grant directed verdict in favor of ∆.
     c) Maybe—in majority of situations—maybe so, maybe not and reasonable minds could differ—motion for directed verdict is denied and issue will got to jury for them to decide if a reasonable, prudent person under these circumstances would have thrown a rock
              **Judge gets the first chance and is required to decide the breach of duty question but can answer it one of 3 ways and most of time will be answered as maybe and that means that jury will have to decide.  If directed verdict for ∏, yes negligence—then goes on to decide proximate cause and damages.
              ***If there were a statute defining the law, then there wouldn’t be a breach of duty question—this is rare—legislatures haven’t done this in most situations. If there were such a law, there would certainly be some situations in which a person wasn’t acting contrary to what a reasonable, prudent person would have done. This would result in unfairness in some situations. Very rare for this to happen. Same thing goes for appellate decision and appellate courts. Most are reluctant to say that in a case same as legislature is reluctant to say in statutes because there are certain circumstances in which a reasonable prudent person would not have been acting contrary to what a reasonable prudent person would have done.
(THERE WILL NOT BE ANY RULE IN MOST SITUATIONS THAT ANSWERS THE BREACH OF DUTY QUESTION—MOST JD’S HAVE 12 JURORS, 9 of the 12 jurors MUST AGREE AS TO WHAT CONSTITUTES OR DOESN’T CONSTITUTE NEGLIGENCE.  IF 6:6 MISTRIAL). In federal courts, there doesn’t have to be 12 maybe only 9 jurors but instead have to reach unanimous decision.
Tort – a civil wrong other than criminal or breach of contract
·         Provide peaceful means for adjusting rights
·         Deter wrongful conduct
·         Encourage socially responsible behavior
·         Compensate injured parties
–Economic damages—lost wages, medical
–Non-economic damages—pain, suffering
Rule – Liability must be based on legal fault
Basis of Tort Liability:
·         Intentional conduct
·         Negligent conduct that creates risk
·         Conduct neither intentional nor negligent, but party is liable b/c of public policy (strict liability)
A.      Duty to do what a reasonable prudent person would do under the same circumstances
1.     Duty to use reasonable care so as to avoid unreasonable risk to others
2.     Duty is a standard of care
3.       Duty is imposed by law and determined by judge, not jury
B.      Breach of Duty
1.       Failure to conform to required standard
2.       Question: Would a reasonable prudent person have done this under the                               circumstances?
3.       P must allege a specific act of negligence committed by D
4.       To formulate breach of duty question, ask (1) What was the duty? (2) What was the specific act of negligence?
C.      Causation
1.       Must be a reasonable close connection between the conduct and the resulting injury
a.       Cause in Fact (but for..)
b.       Legal Cause
D.      Damages
1.   Actual loss or injury to another must result
E. Cases
1. Lubitz v. Wells—(duty father had to the little girl—to do what a reasonable, prudent person would have done under similar circumstances). BOD? Would a reasonable,, prudent person have left a golf club lying in the yard under these circumstances. Judge answered the BOD ? and said No, not negligence—ruled in favor of ∆… would hardly be good sense to hold that this golf club is so obviously and intrinsically dangerous that it is negligence to leave it lying on the ground in the yard.
     a. In order for negligence, under the circumstances the situation has to have an element of danger
2. Blyth v. Birmingham Water Works Company—
    a.   Duty—do what a reasonable prudent water works company would have done under these circumsntances
    b. ∏ says ∆ didn’t protect fire plug against frost—either should have put pipes deeper into the ground or perhaps to have insulated the pipes better than they did
    c. How did trial judge answer the Breach of Duty ? Maybe, Jury says YES—negligent, then appellate court says NO—not negligent (they aren’t supposed to overturn jury verdict when they feel that reasonable minds could not disagree—they are saying that the jurors either didn’t have reasonable minds or they weren’t using them that day)—The ∆’s had provided against such frosts as experience would have led men, acting prudently, to provide against—and they aren’t guilty of negligence, b/c their precautions proved insufficient against the effects of the extreme severity of the frost of 1855, which penetrated to a greater depth than any which ordinarily occurs south of the polar regions. Such a state of circumstances constitutes a contingency against which no reasonable man can provide. The result was an accident for which the ∆’s cannot be held liable—it was so unlikely that this would happen that a reasonable prudent person wouldn’t take the extra step.
     d. Key Point—not enough, danger or possibility of risk of harm
3. Gulf Refining Co. v. Williams
      a. Duty—to do what a reasonable, prudent gas co. would have done under these circumstances
      b. ∏ said bung cap on drum of gas was in poor repair—bent, jagged—when he tried to get cap off, it caused a spark due to the condition of the cap
      c. Breach of duty—would a reasonable, prudent Oil Co. have ensured bung caps and gas tanks were in good condition under these circumstances; would a reasonable prudent gas co. have sent the drum out in this condition?
      d. Trial judge said maybe, jURy said Yes—breached this duty—negligence and appellate court affirmed
      e. Appellate court said when the inquiry is one of foreseeability, is as regards a thing that may happen in the future and to which the law of negligence holds a party to anticipation as a measure of duty, that inquiry is not whether the thing to be foreseen or anticipated is one which will probably happen, according to the ordinary meaning of that term, but whether it is likely to happen, even thought the likelihood may not be sufficient to amount to a comparative probability. The test (as respects foreseeability) is not the balance of probabilities, but the existence, in the situation in hand, of some real likelihood of some damage and the likelihood is of such appreciable weight and moment as to induce, or which reasonably should induce, action to avoid it on the part of person of a reasonably prudent mind. The roof is sufficient to which appellants were charged, should have known of the condition aforesaid and should reasonably have anticipated, as a likelihood of weight and moment, that a sudden fire or explosion would be caused by the stated condition of unrepair; and hence appellants are liable for the injury to appellee which resulted.
    f. In a tort lawsuit, the ∏ has the burden of proof and has to prove the events happened the way he says they happened. Burden of proof is by a preponderance of the evidence (more than 50%)—jury has to find that the reason the gas tank blew up was b/c of the defect. >50% chance that events happened the way he says they happened. He doesn’t have to prove that the risk that occurred was more likely to happen or not. How likely does it have to be? It has to be so likely and of such magnitude that a reasonable and prudent person would have taken steps to avoid it. The risk doesn’t have to be probable to happen
   g. Gasoline case and Water works case—are similar in that both are very unusual and extreme events. A fundamental difference b/t the 2 cases is the GRAVITY OF THE HARM IF IT DID HAPPEN (waterworks—property gets wet, Gasoline—Severe injury or harm to person—severe personal injury)
4. Chicago, B&QR co. v. Krayenbuhl
      a. Duty—to do what a reasonable and prudent person would have done under these circumstances
     b. ∏ says ∆ should have locked the turntable
     c. Breach of duty ? Would a reasonable, prudent, railroad Co. have locked the turntable under these circumstances (when not in use)
     d. Trial judge said maybe, jury said yes, appellate court affirmed
     e. Appellate court—in all cases of this kind the determination of the question of negligence, regard must be had to the character and location of the premises, the purpose for which they are used, the probability of injury, therefrom, the precautions bear to the beneficial use of the premises. The nature of the precautions bear to the beneficial use of the premises. The nature of the precautions would depend on the particular facts in each case. In some cases a warning to the children or the parent might be sufficient in others, more active measures might be required. But in every case they should be such as a man of ordinary care and prudence, under like circumstances would observe, he is guilty of negligence
     f. burden of prevention as compared to the risk of harm—burden on railroad in keeping it locked was slight in comparison to risks involved in not locking it. The burden of preventing it was less than risk of harm if kept unlocked then a reasonable and prudent person would do it.—This is the RISK/UTILITY analysis.
5. Davison v. Snohomish County
     a. Duty owed was to do what a reasonable and prudent county would have done with regards to the construction and maintenance of its roadways.
     b. ∏ says ∆ was negligent in construction and maintenance of the elevated approach to a bridge—insufficiency of the railing or guard to prevent respondents’ automobile from skidding off of the approach.
     c. Breach of duty would a reasonable and prudent county under these circumstances have provided more sufficient railings or guards that would have kept a car from going over the side.
     d. Trial judge said maybe, jury said yes, appellate court said no
     e. Appellate court—“Roads must be built and traveled, and to hold that the public cannot open their highways until they are prepared to fence their roads with barriers strong enough to hold a team and wagon when coming in violent contact with them, the condition being the ordinary condition of the county, would be to put a burden upon the public that it could not bear. It would prohibit building of new roads and tend to the financial ruin of the counties undertaking to maintain the old ones. This principle applies with special force to elevated causeways constructed of wood, such as the approach from which the respondent’s automobile fell, as upon such a structure the railing can be anchored or secured only to the deck of the causeway.
    f. Burden at this time was felt to be too great. Risk didn’t outweigh the benefit of not doing it. BURDEN WAS TOO GREAT. Note 1—burden that was too great in 1928 is not too great in 1968.
A.    Weigh risk vs. burden of precaution. If risk outweighs the burden, then it is reasonable to take on the burden of precaution. It is negligent not to take on that burden.
B.    Judge Hand’s Formula (subjective analysis):
1.       P = probability that the event will occur (injury will occur)
2.       L = gravity of resulting injury if it occurs
3.       B = burden to take adequate precaution (burden of preventing)—(how much will it cost ∆ to keep injury from occurring)
                P*L= Risk of the harm
If P * L > B, then RPP will take the burden (risk outweighs the burden); however,
If P * L < B, then RPP will not take the burden (Burden outweighs the risk).    **Formula doesn’t produce the answer but it defines the answers to be used.   C.    Restatement (Second) of Torts - § 291 (restatement of Hand formula): by ALI but not the law. Will not be the law until a state SC adopts them ·         Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done. 1.       The court will look at the social utility of the risk when determining if the risk is unreasonable 2.       Focuses on the utility of the act rather than the burden of not acting 3.       “When” indicates there are some acts that a RPP would not recognize as having any risk of harm (foreseeablity) and therefore the act cannot be negligent. 4.       Reasonableness measured by

issors left in stomach)
5.       Locality Rule – members of the medical profession are to be measured solely by the standard of conduct expected of other members of the medical profession in the same community.
a.     Majority (MS) – abolished locality rule and adopted national standard of care
b.     Minority – some jurisdictions have adopted “similar community, in similar circumstances” test
c. originated to keep only local m.d. from being sued in old days, as medical curriculum became more uniform….more and more states decided that they no longer needed the locality rule. It also made it difficult for the ∏ to find expert witnesses. (if they could find a m.d. they didn’t want to testify against their peer because they were friends—it made it difficult to find a physician who would testify) Today no j.d’s follow the locality rule
6.       Informed Consent – every competent person has the right to decide what will or will not happen to their body, if no informed consent, then battery occurs
a.     Inherent duty is for doctor to inform patient of all alternatives to action and all possible consequences of action. 2 approaches:
1) majority – what a reasonable and prudent physician would tell their patient (professional standard/customary practice rule)
2) minority (MS) – full disclosure of all material risks involved—a risk which a reasonable, prudent patient would consider (ex. a reasonable and prudent pat. Is not going to say that a material risk is one in which it occurs 1 in 800,000 txs; however, it’s serious enough that a reasonable prudent person would want to be informed of it. (LAY STANDARD)—but moving back towards the prof. std. 
b.     Doctor can avoid liability if there was a good reason for not disclosing (ex – knowledge may be detrimental to the healing process)—patient is in no shape to intelligently make an informed consent (shock, emotional upset, etc.—emergent situations)
c.     Medical malpractice action under informed consent must allege and prove causation:
–          Δ failed to inform P adequately of a material risk before P’s consent to proposed treatment.
–          If P had been informed, he would not have consented to treatment
–          The adverse consequences that were not made known did in fact occur and the P was injured as a result of submitting to the treatment
7. Cases
a. Heath v. Swift Wings, Inc.—negligence claim against the pilot’s estate (he was killed in plane) wife’s estate (and son’s) estate suing the husband’s estate (pilot)
     i. ∆ says his duty was to do what a reasonable prudent pilot who had Mr. Heath’s training and experience
    ii. trial judge used ∆’s version (subjective) interjection—used training and experience and returned a verdict for the ∆.
   iii. Similar to Vaughn v. Menlove—hay rick case 1837—Standard doesn’t apply. Appealed—have to use the objective standard.
    iv. Some say it would be what an ordinary pilot would do in same situation. MS says minimally qualified.
     v. Duty to do what reasonable, prudent pilot would have done in these circumstances.
b. Hodges v. Carter—person who owns property has buildings burned down, brought claim to ins. Co.’s, they deny their claims. He then hires 2 attorney’s , they filed a complaint and they serve process. Ins. co.’s were foreign co.’s were foreign corporations. Serve process on Secretary of State. Could mail summons (common practice in NC). While still some 60 days left, ins. co. filed motion to dismiss which said Sec. had to be personally served with process.
        i. Trial court said no, properly served. 
 ii. Supreme Court said not properly served with process—Statute of Limitations had run—can’t refile
iii. Duty of Atty.—do what reasonable prudent lawyers would have done under same circumstances
iv.  ∏ says once ins. co. raised the issue, still had 60 days to serve in-hand.
 v. BOD Issue—would a reasonably, prudent lawyer have properly served alias summon once notified of question. 
vi. Court says that a lawyer makes 3 implied representations—says going to have to allege some act that the ∆ did or failed to do or point to specific act)—Can’t make a general statement that lawyer didn’t know enough—NOT MALPRACTICE.
vii. AS for use of best judgment, lawyers have not been held liable for errors in interpretation of the Rule against Perpetuities. Similarly, doctors are given wide discretion in making a diagnosis. The best example of a lawyer’s failure to use due care is the failure to file a suit before the Statute of Limitations runs—no exercise of judgment is involved.
viii. Court says an attorney acting in good faith and with an honest belief that his actions are in the best interest of his client is not liable for mistaken advice in an area of unsettled law.—This may be taking it a little too far—should duty not be what a reasonable and prudent attorney would do in these circumstances.
ix. Duty—to do what a reasonable and prudent attorney would do in these circumstances.
x. There are situations where there is an honest disagreement among professionals. There may be 2 schools of thought in how to treat this particular diagnosis. **In the ordinary case, the MS supreme court says the above is confusing to the jury. The bottom line is not whether the atty. or doctor or whoever acted in good faith rather question is what a reasonable and prudent atty. would have done in the same circumstances (this is the correct duty).
c. Day v. Morrison (1985)—announced to trial judges don’t tell juries the business about good faith and honest and reasonable judgment.
d. Boyce v. Brown—whether or not negligence on the part of a physician or a surgeon, by reason of this departure from the proper standard of practice, has to be established by expert medical testimony. (applying locality rule)
     i. Negligence on the part of a physician or surgeon, by reason of his departure from the proper standard of practice, must be established by expert medical testimony, unless the negligence is so grossly apparent that a layman would have no difficulty in recognizing it. 
    ii. in this case, the ∏ did not provide necessary testimony. Directed verdict for the ∆ b/c