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University of North Carolina School of Law
Saver, Richard S.



FALL 2012

A. Outline of a Negligence Case

Duty – Did the defendant have a legal obligation to exercise reasonable care to avoid the risk of harming persons or property? Is there an obligation?

· Breach – Was defendant’s conduct, in light of the foreseeable risks created by the conduct, unreasonable under the circumstances?

· Causation – Does a causal connection exist between Defendant’s unreasonable conduct and the Plaintiff’s harm?

· Scope of Liability – Does the defendant’s duty extend to the plaintiff, the general type of incident that occurred, and the harm plaintiff suffered? Did the negligence cause the type of harm that reasonable conduct would have prevented from occurring?

· Damages – What legally recognized losses has plaintiff incurred to date, and what losses will be incurred in the future?

B. Determining Duty & Breach of Duty

· Foreseeable Risks

· Custom – was there a custom? Was it reasonable?

· Statutory Law

a. Was plaintiff a member of the class of persons the legislature sough to protect?

b. Was the harm suffered by the plaintiff the type of harm the legislature sought to protect against?

c. statutory standard of care approaches

i. strict negligence per se – violation of the statute is proof of negligence

ii. presumption of negligence – burden is shifted to the defendant to rebut the impact of the statutory violation.

iii. evidence of negligence

· Reasonable Person Standard

1. Objective standard of reasonable person under similar circumstances.

2. Physically disabled persons are held to the standard of a reasonable person with the same disabilities.

3. Mentally disabled persons have no such standard

§ General rule: reasonable person standard

§ Minority rule: care consonant with diminished mental capacities (with burden of proof of incapacity on party asserting incapacity.)

§ Sudden onset situations

· Sudden onset usually only applies to physical illness, except in some jurisdictions where it’s treated like a heart attack (WI).

· Application of reasonable person standard.

4. Children

§ General rule: reasonable child of like age, intelligence, maturity, and experience.

§ Minimum age for negligence

§ Exception for certain activities

· inherently dangerous activities, or

· Adult activities.

5. Hand’s Formula for determining reasonableness

§ Probability of risk happening (P) x Nature and seriousness of harm (L) v. Cost and effort of feasible, safer alternative conduct that does not unduly impair utility or activity (B).

6. Possible Excuse Doctrines

§ Incapacity

§ No knowledge of occasion for compliance

§ Inability after reasonable diligence to comply

§ Emergency

§ Compliance Involves Greater Risks

§ Otherwise Reasonable under the Circumstances

§ Res Ipsa Loquitor

a. Inference that someone was negligent.

o Accident is the kind that doesn’t happen outside of negligence. (proof includes: facts of accident, common knowledge, common sense, experts)

b. Inference that Defendant was negligent

§ Jury must find that more likely than not the defendant’s negligent conduct or omission caused the accident. (proof includes: ∆’s exclusive control, negligence occurred while instrumentality was under ∆’s control, disprove possible negligence of third parties, remove Π as possible contributor of negligence) YBARRA V. SPANGARD

§ Limited Duty

No duty to assist, act or rescue (nonfeasance)


o Special relationship FARWELL V. KEATON

o Voluntary assumption of duty – rescue attempt

o Innocent prior conduct

o Reliance on gratuitous promise

o Intentional prevention of aid by others

o Statute

o Other

Duty to rescue by public agency if: Kircher v. Jamestown

o An assumption by the municipality, through promises or action

o Knowledge on the part of the municipality’s agents that inaction could lead to harm

o Some form of direct contact between the municipality’s agents and the injured party and

o The party’s justifiable reliance on the municipality’s affirmative undertaking.

Duty to Warn Tarasoff and Dunkle v. Food Service East

o There must be an identifiable victim.

o Belief that the perpetrator has the will and the means.

o A warning can be a type of rescue.

o A psychiatrist who is in the business of listeni

But For Causation

a. Analyze the injury that occurred before the wrongful conduct.

b. Plaintiff has burden to show that there was enough cause-in-fact.

Sowles v. Moore (horse in the snow on the frozen pond)

Substantial Factor

a. If the defendant was a substantial factor in causing the accident they are liable.

b. Acting in concert/parallel activities (drag racing)

Corey v. Havner (motor tricycles on either side of horse)

2. Proving Causation

a. Cumulating Proof – Must prove each step of the causation

Ingersoll v. Liberty Bank (man with box on stairs and heart attack)

· There can’t be too many possible scenarios that don’t involve the ∆. The Π has to narrow down the other possible scenarios so that the jury could possibly infer the Π’s story.

b. Untaken Precautions – Failure to act caused an injury.

Phillips v. Perils of Pauline Food (attack in parking lot)

· Had to prove that ∆’s untaken precautions caused the accident.

c. appointment of damages or joint liability

· When there are 2 negligent defendants and no way to tell who did what, they’re jointly liable for the whole thing – they go after each to figure out who owes what after the plaintiff is paid.

· Proving who caused the harm? Multiple parties but only one can be liable.

o Alternative Liability (when only one of the parties is liable) – Summers v. Tice

Joint liability – a common law when defendants act in concert there is a joint enterprise; vicarious liability, either one is responsible and can be responsible for whole amount and go after the other defendants. Independent negligent activities with joint harm (2 fires that both destroy house). Two motorcycles come up on the sides of the cars (substantial factor – independent acts, but come together.)