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University of Mississippi School of Law
Weems, Robert A.


1. History

Tort law is primarily derived from the common law. Generally, judges of each state make the tort law for that particular state.

Tort suits are damage suits. We have a fault-based tort system. P must prove D is liable of some kind of fault.

Three types of torts:

1. Intentional torts: D intentionally causes injury to P (for ever crime there is a tort counterpart)
2. Unintentional torts (Negligence): D acts negligently resulting in P’s injury
3. Strict liability: mere act is sufficient to constitute D’s liability

Aside: Question posed by Weems: Why would a judge ever grant a J.N.O.V. motion since he has necessarily already denied party’s motion for a directed verdict? Answer: Two reasons why judge may deny motion for D.V. and later grant motion for J.N.O.V.:
1. Judge may change his mind and decide that “reasonable minds could not differ” after hearing evidence presented at trial (in spite of jury’s finding).
2. More commonly, judge may deny motion for D.V. during trial for the benefit of seeing how a jury would decide the case. That prevents the case from having to be tried all over again if judge’s motion for D.V. gets overturned on appeal and gives the appeals court the benefit of knowing how a jury would decide the case. Concept of “judicial economy”.

2. Elements of a Cause of Action

Four elements of a negligence cause of action:

1. Duty
2. Breach of duty
3. Proximate cause
4. Damages

Burden of proof :

Burden of proof in negligence action is “by a preponderance of the evidence” (i.e., just greater than 50%).

Plaintiff has burden of proof in negligence action.

Analysis of duty:

Duty is matter of law and therefore a matter for the judge, not the jury. P must convince judge (1) that D owed P a duty and (2) what that duty was.

Usual duty in a negligence suit: Duty to act as a reasonable prudent person would act under the circumstances. AKA “duty of care”: Duty to act with reasonable care under the circumstances.

Duty can vary somewhat according to classification of D (e.g., children, professionals, physically disabled people, etc.).

Usually, P has no trouble establishing duty.

Analysis of breach of duty:

P must prove D did some fairly specific thing or things to breach the duty of care.

The D’s specific act is examined in regards to the breach of duty issue, not the duty issue. In other words, we consider the actions of D when analyzing the breach, not when establishing the existence and nature of the duty. (If you considered the act as part of the duty issue, you would have the jury determining matters of law, and juries can only determine matters of fact. Matters of law are decided by the judge only.)

Circumstances must be taken into account when considering whether D has breached duty.

Question to decide in determining existence of breach: Would a reasonable prudent person have acted as D acted under the same circumstances? Judges may answer this question in one of three ways:

1. Yes – if yes, judge decides reasonable minds could not differ that D exercise reasonable care under the circumstances > verdict for D (“not negligence as a matter of law”)
2. No – if no, judge decides reasonable minds could not differ that D did not exercise reasonable care under the circumstances > verdict for P (“negligence as a matter of law”)
3. Maybe – judge decides reasonable minds could differ as to reasonableness of D’s conduct under the circumstances > question goes to jury

3. A Negligence Formula

Hand’s Formula (Judge Learned Hand)

P = Probability that an event leading to an injury will occur
L = Gravity of injury if event does occur
B = Burden of taking adequate precautions


PL = Risk of harm

B = Utility of the conduct

If PL > B, conduct is negligent.
If PL < B, conduct is not negligent

Hand’s risk-utility formula is not given to juries. Hand’s formula is for judges only. Court instructs jury with the reasonable prudent person standard.


eople in society must know (Example: A reasonable prudent person would know that driving on worn-out tires can cause a blowout.)
2. Actual knowledge – knowledge acquired from things disclosed by inspections a reasonable prudent person would make (Example: A person must know the condition of their tires since a reasonable prudent person would make periodic inspections of their tires.)

Custom & Usage

Custom and usage refers to rules and practices common to a particular business or trade.

Custom and usage evidence is admissible but is not conclusive as to negligence. Jury must still decide (1) whether a particular custom and usage is reasonable and (2) if D did not conform to a particular custom and usage, if D’s departure from custom and usage was reasonable under the circumstances.

Custom and usage evidence may sometimes be used to establish a prima facie case of negligence if custom and usage existed in D’s business and D did not conform to it.

Emergency Situations

Standard of care in emergency situations: duty is to act as a reasonable prudent person would act in the same emergency. In exigent circumstances, D does not have time to deliberate the issue of reasonable conduct the way he normally would.

This does not mean a D can do anything at all during an emergency. Duty of reasonable care under the circumstances still exists and D can still be held negligent if conduct is unreasonable under the circumstances.

Physically Disabled Persons

Standard of care for people with physical disabilities: duty to act as a reasonable prudent person with a given disability under the circumstances.