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University of Mississippi School of Law
Percy, E. Farish

Professor Percy – 2001

I. Introduction
II. Negligence
A. Elements
B. Standard of Care
C. Negligence as a Matter of Law
D. Res Ipsa Loquitor
E. Proximate Cause
F. Joint Tortfeasors
G. Duty of Care
H. Owners and Occupiers of Land/Premises Liability
I. Defenses
J. Vicarious Liability
K. Damages

Chapter 1 – 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 the risk – ensure against danger

Chapter 4 – 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.

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 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 than cost of accident=no negligence*

Three Factors to Determine Negligence

Likelihood of harm (probability – “P”) – Will the injury likely occur? The greater the chance of harm, the more likely an actor is to owe a duty to take steps to prevent it. As the risk of harm increases, so does the level of care required.

Gravity of harm (“L”) – How great will the injury be? Will it be a severe injury?

Burden of precaution (“B”) – What is the cost of prevention? How hard is it to prevent the harm?

Social utility is also a factor. If risk outweighs social utility, there is negligence. On the other hand, when risk does not outweigh social utility, there is not negligence. For example, the cost of putting rails along every highway is simply too great.

Cases Studied

Golf club case – golf club is not “obviously and intrinsically dangerous” – Conduct which is reasonable and has a low probability of resulting in harm to others is not negligence.

Pipe leaking during severe frost case – not negligent because such a severe frost was unforeseeable – Negligence involves the creation of an “unreasonable” risk, by act or omission, which a reasonable and prudent person would not create. A reasonable person acts with reference to average circumstances of ordinary times.

3. Gas cap without repair case – existence of real likelihood of danger should induce action – An action for negligence exists when the defendant incurs a risk that makes the possibility of harm real enough so that a person of ordinary prudence would take some action to avert the threatened danger. Probability v. Foreseeability

Railroad turntable case – danger to be anticipated outweighs the burden of precaution – When the owner of dangerous premises knows, or has good reason to believe, that children trespassers, so young as to be ignorant of the danger will be attracted to and will resort to such premises, he is under a duty of care to protect such children from the risks arising from such premises.

Attractive Nuisance Doctrine– imposes responsibility on owners of property who have a sort of “dangerous attraction” on their property. Ex. a swimming pool.

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*

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

1. Ignorance – not a defense. People are expected to understand common facts, and if they are ignorant of those facts, they are expected to investigate. (Example – purple traffic lights, bald tires). Also good faith mistakes are not a defense.

2. Custom and usage – Evidence of custom and usage by others engaged in the same business is admissible as bearing on what is reasonable conduct under the circumstances, but it doesn’t prove or disprove negligence. The jury still decides what is reasonable behavior, regardless of custom. (Example – Glass shower door case – Timarco v. Klein)

3. Emergency situations – What otherwise would be negligence, might not be in an emergency situation. A person is expected to act as a reasonably prudent person in that emergency situation would behave. A person is not necessarily negligent if, in an emergency, he acts to avoid injury to himself and, in doing so, injures bystanders. (Example – hijacked cab case). This rule does NOT apply if the actor created the emergency himself. MS has abolished the “sudden emergency doctrine” because it added nothing to jury instructions. In MS, in an emergency one is expected to act as a RPP and jury will take into account circumstances on their own.

4. Physical limitations – The actor must behave the same as a reasonably prudent person with the same handicap in similar circumstances. (Blind man without cane case – Roberts v. State of LA).

5. Children
§ Majority Ru

tor testify that he personally would not have done the same procedure as the D; he must testify that the actions deviated from reasonable standards.

· Informed Consent – A doctor is under legal obligation to disclose sufficient information to a patient to enable him to make an informed decision regarding a proposed medical treatment. To have adequate informed consent, a doctor must tell patient about:
1. All material risks (A material risk is any one that is likely to affect a patient’s decision).
2. Alternatives
3. Adequate information regarding treatment
4. The doctor’s personal interests – unrelated to the patient’s health – that may affect his judgment (Example: Moore v. Regents – spleen removed and used for research)

Three Elements of Cause of Action Based on Lack of Informed Consent:

1. The doctor must have failed to notify patient of material risks.
2. If the patient had been informed, he wouldn’t have even had the surgery.
§ The Canteburry case uses a “reasonable man” or an objective approach – where if the reasonable man had been properly informed, he wouldn’t have had the surgery. MS recognizes the reasonable patient rule – says that a physician MUST disclose
§ The Scott case (in our text) uses a “reasonable patient” or subjective approach – whether this patient, if properly informed, wouldn’t have had the surgery, treatment, etc. MS uses the “reasonable patient” rule.
3. The patient must have been injured as a result of undergoing the treatment of which he was not properly informed.

MS uses the “reasonable patient rule. At a minimum, doctors in MS must disclose:

¨ Diagnosis
¨ Nature and purpose of tx
¨ Material risks of tx – risk is material if it would likely affect patient’s decision
¨ Possibility of success of tx
¨ Alternatives with material risks
¨ Risk of no tx

Subjective Test: Plaintiff would not have consented to the treatment if she knew of the adverse consequences.
Objective Test: Reasonable person wouldn’t have had the procedure.

Exceptions to Informed Consent Requirement:

1. The risks are already known by the patient or are so obvious that they should be known.
2. Full disclosure of the risks might be detrimental to the patient. (Such as emotionally upsetting an unstable patient).
3. When there is an emergency and a patient is in no condition to decide about treatment.

Negligence in actions of malpractice must be affirmatively proven. There is no presumption of negligence from the mere fact that:
· The treatment was unsuccessful
· The treatment failed to bring the best result
· The patient died

Aggravated Negligence – Spectrum of Fault

1. Slight negligence – failure to use great care
2. Ordinary negligence – failure to use reasonable care
3. Gross negligence – failure to exercise even slight care
4. Recklessness – a level of fault substantially greater than ordinary negligence, conscious disregard for the risk of others
5. Intentional tort – substantially certain that harm will occur – this is no longer negligence

Violation of Statute

Example – Failure to label poison case – Driving without lights (both of these cases are negligence per se)

Certain standards must be met in order to use a statute as a standard of conduct:

1. The person invoking the statute must prove that he is within the class of persons that the statue is intended to protect.
2. The person must prove that the harm suffered was the kind the legislature intended to prevent by enacting the legislation.
3. The violation of the statute is the cause of the harm.
4. The statute provides a standard of care. (The court makes this determination).
5. There must be no valid excuse for the violation