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University of Mississippi School of Law
Percy, E. Farish

A. Definition of Tort- A civil wrong, other than a breach of contract, for which the law provides a remedy
B. What’s the remedy?
1. Damages
a) Economic- lost wages, medical expenses, etc.
b) Non-economic- pain and suffering, loss of enjoyment of life, etc.
2. Injunctive relief
C. Why recognize torts?
1. Corrective justice (punish fault)
2. Deterrence
3. Enterprise Theory- if a business is making profits, they should also bear the costs
D. Sources of tort law
1. Common law- law derived from the court’s opinions
2. Statutes
3. Restatement
1. The burden of proof is on the ∏.
2. Negligence must be proved by a “preponderance of the evidence”
3. Must show all that all four elements of negligence exist:
a) Duty- a duty to use reasonable care.
b) Breach- a failure to conform to the required standard.

c) Causation- a reasonably close causal connection between the conduct and the resulting injury. Causation involves a combination of two elements—causation in fact and legal or “proximate” cause.
d) Damages- actual loss or damage resulting to the interests of another.
1. Negligence cannot be established in a case unless the ∆ knew or should have known of the possibility of an accident from such an event as occurred.
a) Lubitz v. Wells: Son of ∆ swings golf club that was left in back yard and injures ∏. Court found for ∆. “It would hardly be good sense to hold that this golf club is so obviously and intrinsically dangerous…”
b) Blyth v. Birmingham Waterworks Co.: The pipes had been in the ground for 25 years and had worked well. A reasonable person would act with reference to the average circumstances of the temperature in ordinary years. The court is hesitant to impose liability because the cost to prevent unforeseeable damages (the bursting of the pipes due to an extreme and abnormal freeze) would be very large.
2. The ∏ doesn’t have to show that the accident was probable, only foreseeable.
Gulf Refining Co. v. Williams: Gasoline drum with worn threads on the cap was used to hold gas delivered to Williams. Williams used hammer to open it and it exploded. Found for Williams.
3. If the burden of adequate precautions is greater than the probability of accident and the gravity of the resulting injury, then the party is not liable for negligence. If the burden is less than the probability of accident and gravity of resulting injury, then the party is liable for negligence. (Risk v. Utility)
a) Chicago B & QR Co. v. Krayenbuhl: Child plays on a railroad turntable which was not locked as it was supposed to be and severed his foot. He sues the railroad company for negligence. Krayenbuhl wins. The cost of the lock is minimal.
b) Davidson v. Snohomish County:∏ drove their car into the guard rail of a bridge, and through the railing. ∏ was injured and sue the county for negligent construction and maintenance. ∆ wins. Cost of building sturdy guardrails on the bridge would be too much and it is not technologically possible at this point.
c) United States v. Carroll Towing Co: (Learned Hand) Bargee was not on boat, another company moved the moorings, barge came loose and sunk. Company employing the bargee found partly responsible. (Hand’s formula: B<PL, liable; B>PL, no liability.)
4. Restatement (Second) of Torts
a) § 291. Unreasonableness; How Determined; Magnitude of Risk and Utility of Conduct: Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.
b) § 292. Factors Considered in Determining Utility of Actor’s Conduct: In determining what the law regards as the utility of the actor’s conduct for the purpose of determining whether the actor is negligent, the following factors are important:
(1) the social value which the law attaches to the interest which is to be advanced or protected by the conduct;
(2) the extent of the chance that this interest will be advanced or protected by the particular course of conduct;
(3) the extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct.
c) § 293. Factors Considered in Determining Magnitude of Risk: In determining the magnitude of the risk for the purpose of determining whether the actor is negligent, the following factors are important:
(1) the social value which the law attaches to the interests which are imperiled;
(2) the extent of the chance that the actor’s conduct will cause an invasion of any interest of the other or of one of a class of which the other is a member;
(3) the extent of harm likely to be caused to the interests imperiled;
(4) the number of persons whose interests are likely to be invaded if the risk takes effect in harm.
1. The Reasonable Prudent Person
a) People have a duty to act in a manner as would a reasonable and prudent individual, in the same or similar circumstances. (This is an objective test; it is not based on the individual.)
(1) Vaughn v. Menlove: ∆ built a hay rick near the ∏’s property. He knew or should have known it was likely to ignite. He took no precautions. Fire burned the ∏’s cottages. Ruling for ∏.
(2) Delair v. McAdoo: ∆ was driving his car on obviously worn out tires. When he tried to pass the ∏, the tire exploded and wrecked his car into the other car. Ruling for the ∏.
b) What is usually done (standards and customs) may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not. Compliance with a custom or standard is not dispositive. The custom or standard must be found to be reasonable.
Trimarco v. Klein: ∆ owned apartment building, where he had failed to put in safety glass in the bathrooms. Glass shattered and ∏ was injured. It had been customary for landlords to install plastic or safety glass for almost 25 years. New trial ordered.
c) Someone in an emergency situation must exercise reasonable and prudent care as a person would in that situation.
(1) He is not held to the exercise of that mature judgment required of him under circumstances where he has the opportunity for deliberate action. (There is no superman standard.)
(2) Emergency must not be of the ∆’s own making. If the person causes the emergency, he cannot claim it as a reason not to apply the reasonable person standard.
(3) Cordas v. Peerless Transportation Co: Cab driver was threatened by passenger with a gun. Driver jumped out of car in an effort to save his own life, and the car drove up on the sidewalk and injured a mother and her child. Court found for the cab driver.
d) A person with a physical handicap must act in a manner as would a reasonably prudent person with that handicap would act in the same or similar situation.
Roberts v. State of Louisiana: Blind man walks from his stand to the bathroom without his cane. He bumps in

ds recognized by all surrounding states.
(5) Locality Rule- held to a standard of reasonable care based on the location in which you practice medicine; antiquated
b) Informed Consent
(1) Before a medical procedure, a doctor must advise his patient of all material risks and any available alternatives and collateral risks. There is no need to disclose risk that either ought to be known by everyone, is already known by the patient, when the disclosure would be detrimental to the patient’s total care and best interests, or in an emergency situation. (Scott v. Bradford)
(2) In order for a doctor to satisfy his fiduciary duty and obtain the patient’s informed consent, he must disclose any personal interests unrelated to the patient’s health. (Moore v. Regents)
(3) Duty of Disclosure
i. Majority Rule- A doctor has a duty to disclose that information that a reasonable doctor would disclose.
ii. Minority Rule- A doctor has a duty to disclose that information that a reasonable patient would want to know.
iii. Mississippi Rule- A doctor has a duty to disclose that information that a minimally competent doctor in the same field would disclose.
(4) Rules of Proving Causation
i. Majority Rule- Had they been informed, a reasonable patient would not have consented to the procedure; Mississippi rule; more objective
ii. Minority Rule- Had they been informed, the individual patient would not have consented to the procedure; puts the doctor at the mercy of the patient’s hindsight; more subjective
1. Negligence Per Se- Negligence established as a matter of law, so that breach of the duty is not a jury question. Where a statute imposes a specific duty for the protection or benefit of others, neglecting to perform that duty creates liability for any injuries of the character which the statute was designed to prevent.
Osborne v. McMasters: ∆ sold ∏ poison that was not labeled as such. Wife of the ∏ consumed the poison and died. ∏ sued for damages. A state statute required that poisons must be labeled.
2. Applicability of Statute
a) Majority Rule: In order to establish Negligence Per Se, you must meet the following criteria:
(1) ∏ must be in the protected class
(2) Injury must be the kind that the statute meant to prevent
(3) Is the standard of care appropriate to adopt in a civil case? What effect will it have?
(4) Should compliance with a statute be reasonableness per se? NO. Compliance with a law does not automatically mean that you’re acting reasonable under the circumstances.
b) Minority Rules:
(1) Rebuttable presumption: there may be a valid excuse for violating the statute under the circumstances of the case; the burden is on the offending party to prove an excuse
(2) Violation of a Statute as Evidence of Negligence: violation of statutes serve only as evidence of negligent activity