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University of Mississippi School of Law
Berry, William W.

Professor Berry
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
*For Negligence, must always be duty, breach, causation, and damages
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 itself, the gravity of harm that can result, and the burden/cost of the precautions which would reduce the risk of harm.
Economic Theory of Negligence:
Liability depends on whether Burden < (probability)*(Injury) -Plaintiff is negligent if: burden of adequate precaution (B) is less than Probability of injury (P) multiplied by the loss (gravity of injury)(L) or B < (P)(L)   3) Reasonable v. Customary Conduct T.J. Hooper 1)      Absence of an industry custom does not absolve one from unreasonable behavior. Trimarco v. Klein 1)       Evidence of custom or industry practice may be used as evidence of what the reasonable person would do under the circumstances, but is not conclusive of the issue. Custom as a sword: Evidence of failure to comply with custom is evidence of UNREASONABLENESS (breach of duty of care) Custom as a Shield: evidence of compliance with custom is evidence of REASONABLENESS (complyi

ve negligence:
1)      A plaintiff can use direct evidence to establish both the burden of production and the burden of persuasion
2)      A plaintiff can use circumstantial evidence to establish both the burden of production and the burden of persuasion
3)      Res Ipsa Loquitur
Burden of Proof:
In a tort lawsuit, the plaintiff’s burden of proof consists of two separate burdens:
1)      Burden of Production (prima facie case)): What plaintiff must show to get to the jury
2)      Burden of Persuasion: What plaintiff must show to get a verdict from the jury
-Burden of Production is the burden of going forward with the evidence. It is a measure by the judge of the “legal sufficiency” of plaintiffs claims. Plaintiff must demonstrate that a jury could infer Negligent conduct (duty, breach, cause, and damage) from the evidence
-Failure to satisfy the burden of production (plaintiff’s prima facie case) results in dismissal of the plaintiff’s cause of action
-Burden of persuasion measures the persuasiveness of the evidence. The jury must decide whether plaintiff has demonstrated by a preponderance of the evidence that defendant was negligent. In other words, to find for the plaintiff, the jury must conclude that the plaintiff has demonstrated that it is more likely than not that the defendant was Negligent.
Rule is:
Where a jury can infer negligence from the facts presented by the plaintiff, the plaintiff has satisfied his/her burden of production
Where a jury does infer Negligence from the facts presented by the plaintiff, the plaintiff has satisfied his/her burden of persuasion.
a) Circumstantial Evidence
Goddard v. Boston & Maine RR
Anjou v. Boston Elevated Railway
Joye v. Great Atlantic and Pacific