Select Page

University of Mississippi School of Law
Berry, William W.

TortsProfessor William BerryFall 2008
·         What is a Tort?
o       Civil wrong (i.e. non-criminal) not arising out of a contract
o       Common Law cause of action
o       Intentional
§         On purpose
§         Elements
·         Touching (Battery)
·         Offensive
·         Intentional
o       Negligence
§         Reckless; you should have known better
§         Elements
·         Duty
·         Breach (little “n” negligence)
·         Causation (proximate cause; but for + substantial factor)
·         Damage
o       Strict Liability
§         Abnormally dangerous – no need of proof of danger
·         Rationale for Tort Law
o       Corrective Justice: making the offended whole
o       Compensation & Deterrence
o       Cost/Benefit Analysis: looking at society/economic view
o       Social Justice: big companies should shoulder the burden
The Burden of Production
·         The Burden of Production is a burden of going forward with the evidence. It is a measure by the judge the “legal sufficiency” of Π’s claims. Π must demonstrate that a jury could infer Negligent (duty, breach, cause, and damage) conduct from the evidence.
·         Failure to satisfy the burden of production (Π’s prima facie case) results in dismissal of the Πs CoA
The Burden of Persuasion
·         The Burden of Persuasion measures the persuasiveness of the evidence. The jury must decide whether Π has demonstrated by a preponderance of the evidence that defendant was Negligent. In other words, to find for the Π, the jury must conclude that the Π has demonstrated that it is more likely than not that Δ was Negligent.
Breach may be measured in a number of ways
·         Unreasonable Conduct
·         Custom
·         Hand Formula
·         Professional Standard
·         Statute/Ordinance (Negligence per se)
Ways to Prove Negligence
1.      A Π can use DIRECT evidence to establish both the Burden of Production and the Burden of Persuasion (video of the Δ running red light)
2.      A Π can use the CIRCUMSTANTIAL evidence to establish both the Burden of Production and the Burden of Persuasion (blackness/grittiness of banana)
3.      Res Ipsa Loquitur
1. The Reasonably Prudent Person
·         Vaughan v. Menlove
o       Fact Summary: Haystack fire
o       Issue: Whether one must act as a RPP or to the best of one’s ability
o       The RPP standard is OBJECTIVE rather than SUBJECTIVE
o       The Standard for negligent conduct is what would a RPP do
·         Delair v. McAdoo
o       Fact Summary: Tire blowout causes wreck
o       One’s knowledge is not an issue, the only issue is what a RPP would know
o       The knowledge of RPP is imported on Δ regardless of Δ’s actual knowledge
·         Cordass v. Peerless Transportation Co.
o       Fact Summary: Thief commandeers taxi, taxi driver bails and car hits pedestrian
o       In peril, the standard is a “RPP in an emergency”
o       If one creates the emergency, he cannot escape the consequences of not acting as RPP
·         Roberts v. State of Louisiana
o       Fact Summary: Blind man runs into customer in post office
o       The physical characteristics of the person whose conduct is being evaluated are taken into account in applying the RPP standard (i.e. RP blin

Fact Summary: 4 year old is hurt on a R.R. turntable
o       Rule: The jury must consider a number of factors (premises, use, probability of injury, needed precautions, how precautions related to use, et al) in determining whether conduct meets the R care std. under particular circumstances – asking whether the risk is a reasonable one under the circumstances.
o       In this case, the jury must consider how near the turntable was to pedestrian routes, whether it was an “attractive nuisance”, whether it should be locked, how locking it would inhibit utility
·         Davidson v. Snohomish
o       Fact Summary: Man drove off bridge and sued county for inadequate railing
o       Issue: Whether county inadequately protected drivers
o       Rule: The “under the circumstances” portion of the RPP standard includes the cost of whatever additional safety precautions Π is advocating
o       In this case, the cost of building rails to hold cars on bridges would be unduly burdensome on the county so they are not required to do it
·         U.S. v. Carroll
o       Fact Summary: Barge breaks free, hits tanker, spills flour
o       The Hand Negligence Formula: PL > B = Negligent
§         The probability damage will happen (P)
§         The gravity of resulting injury (L)
§         The burden of adequate precautions (B)