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Torts
University of Mississippi School of Law
Pittman, Larry J.

Torts Outline
§3 Pittman
Fall 2007
 
Negligence – any conduct, except reckless, which falls below the standard established by law for the protection of others against unreasonable risk of harm
 
Elements of Negligence:
DUTY to use reasonable care-conform to certain SOC as a RPP
BREACH – failure to conform to required Duty/Standards
RH + LH + BP = Breach of Duty
CAUSATION
DAMAGES
 
Burden of Proof- Π must allege and prove each element by preponderance of the evidence.
–          Negligence can be based on Δ’s act or omission to act if he is under an affirmative duty.
–          Π must show more likely than not (51%) that the Δ was negligent
 
DETERMINATION OF RISK
 
Unreasonable Risk-   
Π must show that Δ’s conduct imposed an unreasonable risk of harm on P.
 
Lubitz v. Wells-
Facts:
–        golf club on lawn
Holding:
–        An individual is liable in negligence is his/her conduct causes an unreasonable risk of harm to others.
–        Ct. looks at LH & RH. Act must not be unreasonable. Shotgun would have been different.
o      The likelihood of an injury of happening is very low and the risk of harm is very low
 
*RH and LH- the higher the RH, more likely ct will find duty.
 
Two purposes for Tort Law:
to compensate people injured
to deter future conduct of same nature
 
Blythe v. Birmingham Waterworks Co.- 
Facts:
–          water main freezes and causes flood
 
Holding:
–          An individual is negligent when he/she fails to act as a reasonable prudent person under the same circumstances.
–          Take precautions a reasonable ordinary person would take under same circumstances- Unusual conditions.
 
Gulf Refining Co. v. Williams- 
Facts:
–          defective gas container explodes
Holding:
–          An individual may be negligent if, by act or omission, causes injury, even though the probability of the injury occurring as a result of that act or omission may be very low
–          It is only necessary that injury is possible, not that it’s highly probably. 
–          Low likelihood of harm but very high risk of harm
Chicago (R.R.) v. Krayenbuhl- 
Facts:
–          child’s foot cut off b/c playing on RR turntable w/ no padlock
Holding:
–          Utility v. Risk: An inherently dangerous instrument may be used as long as its beneficial social use and utility outweighs the risk of unreasonable injury.
–          If the burden of precaution is low the negligent person must take that measure
–          Attractive Nuisance Doctrine: kids are attracted to items which may harm them
Davidson v. Snohomish County- 
Facts:
–          car skids off bridge b/c crappy rails
Holding:
–          COST ANALYSIS. Costs associated with preventing harm must be considered in determining negligence
–          Burden of Precautionis extremely high; public could not bear, so no duty exists.
 
U.S. v. Carrol Towing Co.- 
Facts:
–          barge’s mooring lines break b/c no attendant
Holding:
–          Learned Hand. An individual may be held liable for failing to take reasonable precaution against great risk of injury even when the probability of injury is low
–          If Possibility and Likelihood of Harm are greater (>) than the Burden, a duty should be imposed. The Hand Formula: PxL>B (like a cost-benefit analysis).
 
Restatement(2d) §291: A risk is unreasonable and an act negligent if the risk is of such magnitude as to outweigh utility of the act
 
STANDARD OF CARE- RPP under Same or similar circumstances
 
The Reasonable Prudent Person under Circumstances   
 
Vaughan v. Menlove-
Facts:
–          Burning hay rick
Holding:
–          An individual is negligent when he/she fails to act as a reasonable prudent person under the same circumstances.
–          An objective standard, not subjective. 
–          One has a duty to act if there is an existence of some likelihood of injury great enough that a RPP would take precautions.
o         Ignorance/Stupidity/Lack of Intelligence is not a defense.
–          Sets Reasonable Prudent Standard
S.O.C.- a reasonable man of ordinary prudence, ordinarily prudent man, typical prudent man, average person of ordinary prudence.
 
RPP ≠ extraordinarily careful person
 
Delair v. McAdoo-
Facts:
–          old tire blows out
Holding:
–          An individual may be negligent even if he did not have actual knowledge of the risk or danger associated with his conduct if the RPP would have had reason to know. 
–          Duty exists to have a general knowledge. One is deemed to know condition of car parts(generally).
Constructive Notice: when something is so important you are deemed to have notice whether you actually do or not
Trimarco v. Klein-
Fact:
–          Glass shower door shatters
Holding:
–          CUSTOM may be used to establish a standard of care. But Jury decides reasonableness of custom and whether Δ had a duty to abide by custom.
–          A custom can be used as standard of care (SOC). Custom must be reasonable under all circumstances.
 
Special Circumstances:
 
Emergency: Cordas v. Peerless Transportation Co.
Facts:
–          Gunman in taxi, driver bails
Ho

 
Attorneys who hold themselves out as Attorneys state:
–          You posses the requisite degree of learning, skill and ability that minimally competent lawyers posses.
–          You will use best judgment
–          You will use reasonable and ordinary diligence to do client’s work.
 
***Remember:
1)      Attorney is a member of a profession and held to a higher SOC
2)      Custom was okay in Hodges b/c it was something a RPP attorney would have done.
 
Doctors:
Doctors SOC: look at ordinary, minimally competent physician. An expert will tell what training, knowledge, and skill a RPP doctor would have.
 
Two components for all SOC:
1.      must have knowledge
2.      must apply it
 
Boyce v. Brown
Facts:
–          Ankle fracture, no x-ray
Holding:
–          Use customary practice in profession
–          PHYSICIAN. In medical malpractice, П has the burden to prove that the Δ’s conduct deviated from the standard of care in the medical community.
–          If negligence by doctor isn’t “grossly apparent,” proper standard must be established by expert medical testimony. What a doctor would personally do isn’t important.
Must prove either that doctor:
1.      Didn’t posses the knowledge of an avg. ordinary doctor, or
2.      That he did, but didn’t use it
-Expert witness testimony is deemed conclusive
-Custom: if customary practice is lagging behindàliable for negligence
 
Nat’l SOC: Morrison v. MacNamara
   Facts:
–          D.C. lab using bad practice in test, plaintiff fell
Holding:
–          Ct. abandons locality rule for nat’l standard.
o        Standardized education
o        Board certification
 
SOC is differs with jurisdiction:
1.      Locality rule- conduct measured by other members in same locality/community.
2.      Same/Similar locality- other communities of same size/resources
3.      Nat’l Standard- usually used for board certified physicians. 
a.       MS makes exceptions depending on resources. 
b.      Hall v. Hilver- MS- est. 2 components for Nat’l SOC: 
1. Knowledge of
2.  Resources.