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University of Mississippi School of Law
Berry, William W.

Torts Outline:
Elements of cause of action
1) Duty to use reasonable care
2) Failure to conform to the required standard (breach of duty)
3) Reasonably close causal connection between the conduct and the resulting injury
4) Actual loss or damage resulting to the interests of another

I. Core of Negligence: Unreasonable conduct that causes physical harm
A) Standards of Reasonable Conduct:
1) The Reasonable Person:
Vaughan v. Menlove
1) The standard for negligent conduct is what an objectively reasonable person would have done under the circumstances. (Objective not subjective standard)
Delair v. McAdoo
1) The knowledge of an ordinary reasonable person is imputed to the defendant, regardless of his actual knowledge
Cordas v. Peerless Transport Co.
1) The standard of care applicable to a person acting in the face of sudden peril, not of his own making, is a “reasonable person in an emergency”.
Roberts v. State of LA
1) The physical characteristics of the person whose conduct is being evaluated are taken into account in applying the reasonable person standard.
Robinson v. Lindsay
1) The standard of care to be applied to minors is to act as a reasonable child of like age, intelligence, and experience, unless the minor is engaged in adult activities or in certain dangerous activities.
MS Rule of Seven:
1) Children 0-7 are incapable of unreasonable behavior
2) Children 7-14 are presumed to be incapable of unreasonable behavior, but presumption can be rebutted
3) Children over 14 are presumed to be capable of unreasonable behavior, but can be proved incapable
Breuning v. AFI
1) The mental illness of the actor usually is not taken into account in evaluating the reasonableness of the conduct

2) Negligence Formula:
Negligence Formula – If the cost of safety measures or of curtailment- whichever cost is lower- exceeds the benefit in accident avoidance to be gained by incurring the cost, society would be better off, in economic terms, to forego accident prevention.” Richard Posner
Lubitz v. Wells
1) It is reasonable conduct (and not negligent) to leave a golf club lying in one’s backyard b/c the probability of injury is low
Blyth v. Birmingham Waterworks
1) The reasonable person acts with reference to the average circumstances and is not liable for accidental happenings outside those average circumstances.
Gulf Refining Co. v. Williams
1) Defendants could be found negligent where they knew or should have known of a condition that gave rise to some risk of harm even if they were not aware of any other situation where the condition had resulted in this particular harm.
Chicago, B & Q v. Krayenbuhl
1) A jury must consider a number of factors (premises, use, probability of injury, needed precautions, how precautions relate to use) in determining whether conduct meets the reasonable care standard under particular circumstances – asking whether the risk is a reasonable one under the circumstances.
Davison v. Snohomish County
1) The “under the circumstances” portion of the reasonable care standard includes the cost of whatever additional safety precautions plaintiff is advocating.
U.S. v. Carroll Towing Co.
1) Determination of conduct reasonable under the circumstances is done by balancing the probability that the risk of harm will manifest i

ian is required to disclose physician’s own research or economic interests in the patient’s treatment protocol under the standard of care for informed consent.

4) Who Determines Reasonableness?

a) Judge or Jury?

Holmes, The Common Law
Baltimore and Ohio RR v. Goodman
1) Questions of due care are generally for the jury, but judges may create “standards of conduct.”
Pokora v. Wabash Ry. Co.
1) A “rule of law” does not necessarily apply to every case – some questions are for a jury to determine reasonableness.

b) Legislature (Negligence per se)

Osborne v. McMasters
1) The standard imposed by a statute may be used as a shortcut to prove what the reasonable person would do.
Stachniewicz v Mar-Cam Corp
1) In order to determine whether the standard of a statute can be used to establish the standard of care in a negligence action, the judge must determine 1) that the party seeking to prove the violation is a member of class the legislature intended to protect and 2) that the hazard that occurred was one the legislature intended to prevent.
Ney v. Yellow Cab
1) Trial court must determine the risk against which the legislature intended to protect the class of persons to be protected.
Martin v. Herzog
1) In some states, the unexcused violation of a statute is negligence per se.
Zeni v. Anderson