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University of Mississippi School of Law
Percy, E. Farish

Professor Percy – 2004

I. Introduction
II. Negligence
A. Elements
1.Duty & Breach
a. Standard of Care
b. Rules of Law
c. Negligence as a Matter of Law
d. Res Ipsa Loquitor
a. Causation in Fact
b. Proximate Cause
B. Defenses Based on Plaintiff’s Conduct
C. Vicarious Liability
D. Joint Tortfeasors/Allocation of Fault
E. Duty of Care
F. Other Defenses
G. Owners and Occupiers of Land/Premises Liability

I. Introduction

Tort – civil wrongs other than a breach of contract for which the law provides a remedy; a civil wrong committed by one person against another.

P in a torts case wants damages as a remedy. Occasionally, P’s seek injunctive relief or class action – but usually seek money damages.

Types of Money Damages:

Economic Damages

· Injury – medical costs (i.e., bills, prescriptions, etc.)
· Lost wages – projection of future wages – a particular table is used for this
· Property damage

Non-economic Damages

Pain and suffering – jury can award this. The decision is not based on a particular formula
Loss of consortium – filed by husband or wife
Loss of companionship – as a parent with child
Loss of enjoyment of life – similar to pain and suffering – this is sometimes awarded after death

Justification for Torts system:

Deter behavior – make people take precautions/act in a certain way or not act in a certain way

Corrective justice – strong rationale for intentional torts, but most theorists more opposed to this in negligent torts, prevent taking law into your own hands


Prevent the risk – ensure against danger, encourage socially responsible behavior

II. Negligence

General issue: P must prove that D was negligent in order to recover for injuries.

Negligence – failure to use reasonable care; conduct which falls below the standard of care established by law for the protection of others against the unreasonable risk of harm.

Reasonable care – the degree of care which a reasonably prudent person would use under like or similar circumstances.

A. Elements of a Cause of Action:

Duty – a recognized obligation requiring the actor to do, or refrain from doing, something that puts others at an unreasonable risk of harm. Duty may be established by:

rules of law
the reasonably prudent person standard – all states recognize the “reasonably prudent person” as the standard to determine if there was a duty of care.
duty is a question of law for the courts to decide (when the duty is set up by statutes or rules of law)

Breach – a failure to conform to the required standard. A breach is a question of fact for the jury to decide, unless reasonable minds could not differ in the decision

Causation – the conduct resulted in an injury. Types of causation include:

cause in fact – decided by jury
proximate cause – decided by court

Damages – there must be actual damage in order for P to recover (If D’s risk – creating negligent conduct threatens but does not harm the P, the P may obtain an injunction and stop the activity as a nuisance, but he does not have a negligence suit). Damages are decided by the jury.

In order to prove negligence, the P must prove by a preponderance of the evidence that:
1. D owed P a duty
2. D breached that duty

A preponderance of the evidence means that reasonable persons would conclude it is more likely than not that the facts presented by the P substantiate his claim.

A. General Questions to Ask in a Negligence Case

Was there a duty?
Was the duty breached?
Was the D’s breach the cause of the injury?
Were there damages?

A Negligence Formula
The Learned Hand formula is used to determine whether or not an actor breached his duty of care. This formula emerged from U.S. v. Carroll Towing Co.

B < P x L = Negligence
B = burden
P = probability of injury *If cost of preventing is less than cost of accident=negligence*
L = gravity of injury *If cost of preventing is greater tha

re w/ beneficial use?

Approach to bridge case – burden on public is too great – The burden in terms of monetary cost is too high for a public entity to protect against every anticipated accident. (Utility outweighs risk).

· About forty years later, the Supreme Court reversed a decision in a case almost exactly like this one. The Justices said, “We do not consider the ideas of the Court, expressed forty years ago, as necessarily authoritative on the engineering and financial phases of the same problem today. We are satisfied that the parties should have the opportunity of presenting evidence as to the practicality of guardrails or barriers on dangerous or misleading roadways.”

6. Loose barge case – includes Hand Formula – burden of precaution less than risk and gravity of harm – There is a duty of care to protect others from harm when the burden of taking adequate precautions is less than the product of the probability of the resulting harm and the magnitude of harm.
*If cost of preventing is less than cost of accident = negligence*–U.S. v. Carroll Towing

1. Duty & Breach

a. Standard of Care

* The general duty is to act as a reasonably prudent person would act in like or similar circumstances.

Most courts hold a super smart person to the ordinary, reasonable person standard, but the Restatements say they should be held to a higher standard.

The reasonably prudent person is a fictional legal entity used to determine the standared of care which a reasonably prudent person would exercise under circumstances based on normal human experiences – OBJECTIVE standard. (Hayrick Case),

Factors to Consider When Determining Whether a Person Breached his Duty