Weems – Fall 2006
a. Definition of Tort
i. a civil wrong other than criminal or breach of contract – a person either doing something or failing to do something to harm another person – the law allows person X to take person Y to court to force Y to pay monetary damages because of their injuries
1. assault, battery, false imprisonment, etc
1. do or refrain from doing something a reasonable, prudent person would or wouldn’t do in that situation (most torts)
iii. exception: some torts have strict liability without intent or negligence
1. Rock example: X throws rock at Y, injures, no intent
i. Provide peaceful means for adjusting rights
ii. Deter wrongful conduct
iii. Encourage socially responsible behavior
iv. Compensate injured parties
1. Economic damages—lost wages, medical
2. Non-economic damages—pain, suffering
i. Liability must be based on legal fault
e. Basis of Tort Liability
i. Intentional conduct
ii. Negligent conduct that creates risk
iii. Conduct neither intentional nor negligent, but party is liable b/s of public policy (strict liability)
II. Elements of a Cause of Action
i. Duty to do what a reasonable, prudent person would do in the circumstances so as to avoid unreasonable risk to others
ii. Duty is a standard of care; owed if foreseeable risk to ¶ is created by ∆’s conduct
iii. Duty is determined by law (by the judge), not by the jury
iv. Duty is general, not specific, and is usually not the issue.
b. Breach of Duty
i. Failure to conform to the required standard
ii. Breach of duty question
1. Would a reasonable, prudent person have done this act under these circumstances?
iii. ¶ must allege a specific act of negligence committed by ∆
iv. To formulate the breach of duty question, ask
1. What was the duty?
2. What was the specific act of negligence?
v. Trial judge can answer question of Breach 3 ways:
1. Yes, a reasonable person wouldn’t have acted that way
a. directed verdict for ¶
2. No, no negligence exists
a. directed verdict for Δ
3. Maybe, reasonable minds could differ
a. directed verdict denied for both
b. goes to Jury for decision
i. Must be a reasonably close connection between the conduct and the resulting injury
ii. Cause in fact (“But for” test)
iii. Legal cause (Foreseeability)
i. Actual loss or injury must result
III. The Negligence Formula
a. Risk vs. Burden of precaution
i. If risk outweighs the burden, then it is reasonable to take on the burden of precaution
ii. It is negligent not to take on that burden.
b. Judge Hand’s Formula (subjective analysis):
i. P = probability that the event will occur
ii. L = gravity of resulting injury if it occurs
iii. B = burden to take adequate precaution
c. If P * L > B, then RPP would not do the act and is negligent to not take on burden
i. Gasoline (bung cap) case
d. If P * L < B, then RPP would do the act and is not negligent to not take on burden
i. Waterworks (flooding from hydrant) case
e. Restatement 2d of Torts – § 291 (restatement of Hand formula):
i. 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.
ii. The court will look at the social utility of the risk when determining if the risk is unreasonable
iii. Focuses on the utility of the act rather than the burden of not acting
iv. “When” indicates there are some acts that a RPP would not recognize as having any risk of harm (foreseeability)
v. Reasonableness measured by balancing advantages and disadvantages
IV. Standard of Care
a. To act as a reasonable, prudent person would under the circumstances.
i. Reasonable, prudent person is an objective test. (not based on an individual’s best judgment – subjective)
ii. What should a reasonable, prudent person know?
1. Walking around sense – things everyone must know; common acceptance of danger
2. Facts that a reasonable, prudent person should know because of inspection that a reasonable, prudent person would make
a. Case of tire exploding
3. An act is cannot be deemed as negligent if there is not a reasonably foreseeable risk of harm (RPP would not recognize the harm)
b. Custom and Usage: General (not necessarily unanimous) practices of a particular industry or community – shower door case)
i. Evidence of custom and usage is admissible but not conclusive. Once its existence is credited, a custom is not necessarily conclusive or even compelling.
ii. Custom and usage evidence does not change the standard of
3. Newly licensed professionals are held to the same standard of care as experienced members. There is a minimum standard of competence.
ii. As in all cases, the П must accuse the professional of a particular act of negligence.
iii. There is no requirement that the professional succeed for a client, only that the professional act with the requisite amount of skill as practiced by a reasonable, prudent professional in that field.
iv. Expert testimony is usually required to determine the professional standard of care, unless the malpractice is so clear that an ordinary citizen would know that it is negligent (ex: scissors left in body)
1. The testimony must be about what a reasonable, prudent professional would have done; not what that particular professional should have done.
v. Attorney Malpractice Cases
1. General rule: An attorney who acts in good faith and in an honest belief that his advice and acts are well founded and in the best interest of his client is not answerable for a mere error of judgment or for a mistake in a point of law which has not been settled by the court of last resort in his State and on which reasonable doubt may be entertained by well-informed lawyers.
2. this says that there are some questions in every profession upon which reasonable, prudent members of that profession disagree
3. not liable if a sizable segment of the profession would have done the same thing under the circumstances
vi. MS view – Day v. Morrison
1. Told trial courts to stop giving the good faith/best judgment instruction because it is too general and allows professionals to be ignorant.
h. Medical Malpractice
i. Locality Rule
1. 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.
2. Duty – to do what a reasonable, prudent (professional) in that locality would have done under the same circumstances