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University of Mississippi School of Law
Weems, Robert A.

Torts I – Weems
Originally prepared by
Intro to Liability based on Fault
Basis of Tort Liability:
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
Duty is imposed by law and determined by judge, not jury
Breach of Duty
Failure to conform to required standard
Question: Would a reasonable prudent person have done this under the circumstances?
P must allege a specific act of negligence committed by D
To formulate breach of duty question, ask (1) What was the duty? (2) What was the specific act of negligence?
Must be a reasonable close connection between the conduct and the resulting injury
Cause in Fact (but for…)
Legal Cause
1. Actual loss or injury to another must result
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):
P = probability that the event will occur
L = gravity of resulting injury if it occurs
B = burden to take adequate precaution
If P * L > B, then RPP would not do the act and is negligent to not take on burden
If P * L < B, then RPP would do the act and is not negligent to not take on burden C. Restatement (Second) of Torts - § 291 (restatement of Hand formula): 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. The court will look at the social utility of the risk when determining if the risk is unreasonable Focuses on the utility of the act rather than the burden of not acting "When" indicates there are some acts that a RPP would not recognize as having any risk of harm (foreseeablity) Reasonableness measured by balancing advantages and disadvantages STANDARD OF CARE A. To act as a reasonable prudent person would act under the circumstances Objective test (not based on individual’s best judgment – subjective) A reasonable prudent person should have two types of knowledge: a. Walking around sense – things everyone should know b. Facts known by inquiry – things that a RPP should know to make inquiries about An act cannot be deemed as negligent if there is not a reasonably foreseeable risk of harm (RPP would not recognize the harm) B. Custom & Usage – general (not necessarily unanimous) practices of a particular industry or community. Evidence of custom & usage is admissible in court, but is not conclusive proof of negligence. Does not change the standard of care. To be compelling evidence of negligence, the custom must be reasonable and prudent (i.e. everyone may do it that way, but if it is unreasonable, it is negligent) Failure to adhere to a custom is irrelevant if one uses ordinary and reasonable care.   C. Emergency Situation (not of persons own making) Duty to act as a RPP would under the circumstances Duty does not change, only the circumstances D. Physically Handicapped Persons Duty is to act as a RPP with the same handicap would Physical handicap is a circumstance E. Mental Illness (Insanity) Majority – not a defense, mentally ill held to same standard of care as normal adult Minority – sudden attack of insanity can be a defense as long as unforeseeable and unpredictable. Why not a defense? a. fear it would lead to false claims b. induce those interested in estate of insane person to restrain and control him c. general preference that the person who caused the injury should be responsible F. Minors Majority – Duty imposed on children to act as a reasonable prudent child of like age, intelligence, and experience. a. Inherently Dangerous Activity Exception – majority rule not applied when child is engaged in an inherently dangerous activity. The child is then held to an adult standard of care. (ex – operation of motor vehicles) Minority – arbitrary age limits a. under 7 – no negligence b. 7 – 13 – presumed incapable, but may be found capable if shown to have "exceptional capacity" c. 14 – 20 – presumed capable but may be found incapable G. Professionals Professionals are required to act as a reasonable prudent member of that profession would act under the circumstances. a. Professional duty applies to everyone who holds himself out to have the necessary learning, skill, and ability of that occupation. b. Specialists are required to act as a reasonable prudent specialist (higher standard of care than a practitioner) c. Newly licensed professionals are held to same standard of care as experienced members. P must accuse the professional of a particular act

ce as a matter of law)
Majority – presumption of negligence which may be rebutted by a valid excuse
a. Must look to see if RPP would have acted this way
Minority – evidence that the court can consider in evaluation of party’s conduct, let jury decide
D. Excuses for Violation (Restatement § 288a)
Violation is reasonable b/c of the actor’s incapacity
Actor neither knows nor should know of the occasion for compliance
Actor is unable after reasonable diligence or care to comply
Actor is confronted by an emergency not due to his own misconduct
Compliance would involve a greater risk of harm to the actor or to others
Licensing Statutes
Doctor practicing w/o a license: D is not negligent for failing to obtain a license. This fails the two part test because the statute is designed to protect the public from unfounded representation of skill, not to protect from improper medical treatment. P must still prove duty and breach.
Driving w/o a license: D is not negligent for failing to obtain a license. Fails test b/c the statute is designed to prevent negligent driving. If D is driving negligently, he is liable anyway and violation of statute does not matter.
– failure to get or maintain a license is not a basis for recovery in negligence
Adherence to the statute does not prove that reasonable care was being exercised (no reasonable care per se). Circumstances must be considered
Intentional conduct
Negligent conduct that creates risk
Conduct neither intentional nor negligent, but party is liable b/s of public policy (strict liability)
– Liability must be based on legal fault
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
– a civil wrong other than criminal or breach of contractEd Everitt during Fall 2003. This outline was updated and re-formatted by Brad Morris during Fall 2005.