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Torts
University of Mississippi School of Law
Percy, E. Farish

Types of Torts

Intentional
Negligence—liability based on fault
Strict Liability

Anonymous

Strict liability as standard

Weaver v. Ward
· Burden laid with D to prove not at fault
· Slight shift from strict liability
Brown v. Kendall

Ordinary care—care that a reasonably prudent person would use
RULE—Can only find for P if D failed to use ordinary care

P bears burden of proof

D hit P in eye with stick while D beating two dogs who were in a fight

Jury to determine if ordinary care used

P argues that D’s actions were not necessary, thus D should be liable

Necessity is too stringent—would produce chilling effect

Ø REASONABLE/ORDINARY CARE IS THE ONE STANDARD FOR EXTREME CIRCUMSTANCES AND NORMAL CIRCUMSTANCES

A NEGLIGENCE FORMULA

Negligence cannot be established unless D knew or should have known of the possibility of an accident from such an event as the one that occured
Lubitz v. Wells

Negligence: DBCD

Burden of proof on P
Preponderance of the evidence

D’s son struck in jaw with golf club that P swung

P argues father of D negligent in leaving golf club out when he knew or should have known kids would play with it in a dangerous manner

Demurrer sustained

No reasonable jury could find that leaving a golf club out is negligent
Gray area develops—what types of actions constitute negligence

Blyth v. Birmingham

Establishes ordinary care a reasonably prudent water company would exercise
Water main installed, freezes

P argues D should have prepared for such freeze
Freeze was unusual, arguably foreseeable

Look to what a reasonably prudent water company would do

Gulf Refining Co. v. Williams

Foreseeability must be proven to have negligence

Foreseeability does not equal probability (more than 50%)
Foreseeability would have to lead a reasonable prudent person or company in the same or similar circumstances to take precautions

Bung cap damaged, caused spark which led to explosion when unscrewed

Foreseeable that damaged bung cap would lead to explosion—reasonable care should have been exercised

Chicago, B. & Q.R. Co. v. Krayenbuhl

Determination of negligence

Character and location of premises
Purpose for which premises used
Probability of injury
Precautions necessary to prevent injury
Relations such precautions bear to beneficial use of premises

Child accessed unlocked turntable and was injured

Lock was necessary because company had policy of locking turntable, thus they knew a risk existed
Lock was easy to put in place
Foreseeable that children would access unlocked turntable and could be injured by accessing the turntable

D argues children were trespassing and therefore owe them a lesser duty of reasonable care, and the P did everything it could to ensure safety

Factors Considered in Determining Utility of Actor’s Conduct: In determining what the law regards as the utility of the actor’s conduct for the purpose of determining whether the actor is negligent, the following factors are important:

the social value which the law attaches to the interest which is to be advanced or protected by the conduct;
the extent of the chance that this interest will be advanced or protected by the particular course of conduct;
the extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct.

§ 293. Factors Considered in Determining Magnitude of Risk: In determining the magnitude of the risk for the purpose of determining whether the actor is negligent, the following factors are important:

the social value which 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 of one of a class of which the other is a member;
the extent of harm likely to be caused to the interests imperiled;
the number of persons whose interests are likely to be invaded if the risk takes effect in harm.