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Torts
University of Mississippi School of Law
Pittman, Larry J.

Torts Outline
§3 Pittman
Fall 2009
 
I. NEGLIGENCE p. 131
 
1. Negligence- any conduct, except reckless, which falls below the standard established by law for the protection of others against unreasonable risk of harm
 
2. Elements of Negligence COA:
DUTY to use reasonable care. Obligation recognized by law, requiring the actor to conform to a certain SOC, for the protection of others against unreasonable risk.
BREACH- failure to conform to required duty / SOC
CAUSATION- reasonably close causal connection b/t the conduct and the resulting injury
DAMAGES- Π suffers harm
 
Burden of Proof- Π must allege and prove each element by a preponderance of the evidence. Negligence can be based on Δ’s act or omission to act if he is under an affirmative duty.
 
3. A Negligence Formula
 
Unreasonable Risk-          
Π must show that Δ’s conduct imposed an unreasonable risk of harm on Π.
 
Lubitz v. Wells, 1955 p. 133- golf club on lawn- Ct. looks at LH v. RH. Act must not be unreasonable. Shotgun would have been different.
 
*RH and LH- the higher the RH, the more likely the court will find duty.
 
Two purposes for Tort Law:
to compensate people injured
to deter future conduct of same nature
 
Blythe v. Birmingham Waterworks Co, 1856 p. 134- water main freezes and causes flood. Take precautions a reasonable ordinary person would take under same or similar circumstances- Unusual condition for it to get so damn cold in AL; never had before.
 
Gulf Refining Co. v. Williams, 1938 p. 135- defective gas container explodes. It is only necessary that injury is likely to occur, NOT that it’s highly probable, especially if gravity of harm is great.
 
Chicago (R.R.) v. Krayenbuhl 1902 p. 138- child’s foot cut off b/c playing on RR turntable w/ no padlock. Utility v. Risk of product. Operator of inherently dangerous equipment has duty to take reasonable precautions to make equipment safe. Burden of precaution was low- put $10 padlock on. What would a RPP do?
 
Davidson v. Snohomish County, 1928- car skids off bridge b/c it has crappy rails. Now we bring Cost (C) into LH and RH equation. Here, C is burden public could not bear, so no duty exists. BP not static, it changes over time.
 
U.S. v. Carroll Towing Co., 1947- barge’s mooring lines break b/c no attendant watching.  If Probability and Gravity of Harm are greater (>) than the Burden of Precaution, a duty should be imposed. The Learned-Hand Formula: Π x L (injury) > B (like a cost-benefit analysis).
 
Restatement (2d) §291: A risk is unreasonable and an act negligent if the risk is of such magnitude as to outweigh utility of the act.
 
4. STANDARD OF CARE
 
     A. The Reasonable Prudent Person
 
Vaughan v. Menlove, 1837- burning hay rick. Rule of RPP is an objective standard, not subjective. One has a duty to act as if there is an existence of some likelihood of injury great enough that a RPP would take precautions. Ignorance/Stupidity/Lack of Intelligence are NOT defenses.
 
S.O.C.- a reasonable man of ordinary prudence, ordinarily prudent man, typical prudent man, average person of ordinary prudence.
 
RPP ≠ extraordinarily careful person
 
Delair v. McAdoo, 1936- old tire blows out. Duty exists to have general knowledge, i.e. should know whentire needs repair. One is deemed to know condition of car parts (generally). Constructive notice: when something is so important you are deemed to have notice whether you actually do or not. Rule: Whether or not one has actual notice, may still be negligent if RPP would have had reason to know of the risk or danger.
 
Trimarco v. Klein, 1982- glass shower door shatters in apartment. A custom or usage can be used as SOC. Custom must be reasonable under ALL circumstances. To show jury a custom, use expert if necessary (industry custom). Jury ultimately decides reasonableness of custom and whether Δ had a duty to abide by custom.
 
Special Circumstances
 
Emergency:
Cordas v. Peerless Transportation Co., 1941- gunman in taxi, driver bails. Emergency may cause RPP to act differently. An emergency falls under RPP when “considering all the circumstances.” If emergency is caused by Δ, he’s negligent. Emergency must also be unf

will use reasonable care and diligence in applying requisite skills and knowledge to client’s case. 
Professionals who exercise GOOD FAITH and BEST JUDGMENT, and adhere to professional SOC are NOT held liable for mere error.
 
Attorneys who hold themselves out as Attorneys state:
–          You posses the requisite degree of learning, skill and ability that minimally competent lawyers posses.
–          You will use best judgment
–          You will use reasonable and ordinary diligence to do client’s work.
 
***Remember:
1)       Attorney is a member of a profession and held to a higher SOC
2)       Custom was okay in Hodges b/c it was something a RPP attorney would have done.
 
Doctors:
Doctors SOC à look at ordinary, minimally competent physician. An expert will tell what training, knowledge, and skill a RPP doctor would have.
 
Two components for all SOC:
1.       must have knowledge
2.       must apply it
 
Boyce v. Brown, 1938- ankle fracture, no x-ray. If negligence by doctor isn’t “grossly apparent,” proper SOC must be established by expert medical testimony. Not enough to say one doctor would have taken x-ray. What a doctor would personally do isn’t important.
 
Must prove either that doctor:
1.       Didn’t posses the knowledge of an avg. ordinary doctor; or
2.       That he did, but he didn’t use it
-Expert witness testimony is deemed conclusive
-Custom: if customary practice is lagging behind à liable for negligence.
 
Nat’l SOC:
Morrison v. MacNamara, 1979- Δ.C. lab using bad practice in urine test, Π fainted. Court abandons locality rule for national standard. Reasoning: 1.) standardized education; 2.) board certification.