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Torts
University of Mississippi School of Law
Berry, William W.

Torts
Final Exam Notes

On exam, go through each part for each defendant:

DUTY
BREACH
– reasonably prudent person
– Learned Hand formula – do precautions outweigh consequences
– Custom
– Professional Standard
– Statute/Ordinance (negligence per se)
CAUSE
DAMAGES

Negligence

The Reasonable Person
Vaughan – The standard for negligent conduct is what an objectively reasonable person would have done under the circumstances.

Delair – An owner or operator of a car is liable if the car injures another due to a defect in the car that he should be aware of. It is an objective standard.

The knowledge of an ordinary reasonable person is imputed to the defendant, regardless of his actual knowledge.

Cordas – 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.”

If the emergency is created by the actor’s negligence, this doctrine doesn’t apply.
The event must be (a) unforeseen, (b) sudden, and (c) unexpected.

Roberts – The physical characteristics of the person whose conduct is being evaluated are taken into account in applying the reasonable person standard.

He must take the precautions of a reasonably prudent blind man.
The conduct of the handicapped individual must be reasonable in the light of his knowledge of his infirmity.

Robinson – 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. Then it is an adult standard.

Mississippi Rule of 7:

Children 0-7: incapable of unreasonable behavior
Children 7-14: presumed incapable of unreasonable behavior but presumption can be rebutted.
Children 14+: presumed capable of unreasonable behavior but can be proved incapable.

Breunig – The mental illness of the actor usually is not taken into account in evaluating the reasonableness of the conduct.

However, if there is sudden insanity, sometimes the court will make an exception.
Driver went momentarily insane and caused an accident. The court said, due to her history, she should’ve known this could happen.

A Negligence Formula
Lubitz – It is reasonable conduct (and not negligent) to leave a golf club lying in one’s backyard because the probability of injury is low.

Blyth – The reasonable person acts with reference to the average circumstances and is not liable for accidental happenings outside those average circumstances.

Defendant installed water mains. A severe winter caused them to leak. He couldn’t anticipate such a severe, unusual occurrence.

Gulf Refining – 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.

Plaintiff opened a drum of gas with jagged threads and a fire resulted.

Economic Approach
*Krayenbuhl – In the determination of the question of negligence, regard must be had to the character and location of the premises, the purpose for which they are used, the probability of injury therefrom, the precautions necessary to prevent such injury, and the relations such precautions bear to the beneficial use of the premises.

Child severed foot on loose turntable. Defendant could’ve easily used lock without incurring much cost.

Davison – The “under the circumstances” portion of the reasonable care standard includes the cost of whatever additional safety precautions plaintiff is advocating.

Plaintiffs sued County alleging insufficiency of rails to prevent car going through.
Court said the costs would be prohibitive.
Cost-benefit approach (not corrective justice).
Case would probably be decided differently today.

Carroll Towing – 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.

Hand Approach – plaintiff is negligent if burden of adequate precaution (B) is less than the probability of injury (P) times the loss (gravity of injury).

If, B < P*L, then negligence.
If, B > P*L, then NO negligence.

Posner Approach – 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. See p. 33.

Objections: human safety s

nt want to know this? MS
Subjective Patient Standard – what this patient would’ve chosen.

A patient must prove that if he had been informed of the risks he wouldn’t have consented to the treatment.

Who Determines Reasonableness: Judge or Jury?
B&O v. Goodman – Questions of due care are generally for the jury, but judges may create “standards of conduct.”

Train accident – you must stop, look, and listen.

Pokora – the duty or lack of duty to stop and listen should be determined by a jury.

Negligence Per Se
Osborne – The standard imposed by a statute may be used as a shortcut to prove what the reasonable person would do.

Martin – In some states, the unexcused violation of a statute is negligence per se.

Zeni – Person whose conduct is being evaluated is permitted to show that she had an excuse for the conduct that violated a statute.

Exceptions to following statutes:

no knowledge of the rule and you shouldn’t have known
incapacity
emergency
cannot comply after reasonable diligence
compliance would involve greater risk of harm

*Stachniewicz – In order to determine whether the standard of a statute can be used to establish the standard of care in a negligence action, the judge must determine (1) that the party seeking to prove the violation is a member of the class the legislature intended to protect and (2) that the hazard that occurred was one the legislature intended to prevent.

Indian fight in bar. Statute prohibited serving an intoxicated person alcohol.

Ney – The trial court must determine the risk against which the legislature intended to protect and the class of persons to be protected.

Taxi driver permitted his cab to remain unattended without first stopping the engine or locking the ignition or removing the key. A thief stole the cab and ran into plaintiff’s vehicle causing property damage